Parallel Proceedings In International Arbitration

摘要

The same dispute or two closely related disputes may result in parallel proceedings before different arbitral tribunals (or between a national court and an arbitral tribunal), with a resulting risk of conflicting decisions and awards. While there is no unanimous solution to this problem, different procedural mechanisms have been developed to avoid or mitigate the undesirable effects of parallel proceedings. These mechanisms include the doctrines of Us pendens and res judicata, which apply to arbitration if certain identity requirements are met. Other techniques included in certain international investment agreements include the so-called fork in the road' clauses and waivers, but these techniques call for prudence and particular attention to the language of the treaty. The possibility of consolidation of proceedings has become a necessary feature to achieve legal certainty, but it usually requires consent of all parties. Mandatory consolidation is therefore the most effective technique to confront the problems of parallel proceedings, as it removes the need for an agreement between the parties. A few national laws, arbitration rules and international agreements already provide mandatory joinder or consolidation provisions, and other regimes are likely to adopt a similar approach.