Abstract
An attempt has been made to investigate the role of the doctrine of Lis Pendens in international commercial arbitration while making a comparison of civil and common law traditions. Arbitration is regarded to be less painful and an effective means for resolving any type of commercial disputes. Sources of the law to investigate Arbitration's regulation on a national, institutional, and international level. However, it is known that the lis pendens doctrine has been rarely codified; thus, scholarly writings and case laws were consulted by the research for determining its adoption and content. It is important to note that the lis pendens is initially regarded as a tool, which has been developed to manage the proceedings of parallel court on a domestic level. The study concludes while arguing that when it comes to civil law tradition, lis pendens is regarded as an independent doctrine in international commercial arbitration since it shares the same claim of being tried in various forums simultaneously. In contrast, lis alibi pendens in the jurisdiction of common law is not known as a doctrine, but it is viewed as one of many factors whole applying the forum non-convenience principle. Both civil and common law need identity between various parties and their claims to constitute lis pendens in two proceedings, and therefore, they have a conform and deep understanding of the concept.
Highlights
An attempt has been made to investigate the role of the doctrine of Lis Pendens in international commercial arbitration while making a comparison of civil and common law traditions
The study would address the following questions: What are Arbitration's concept and its legal sanity in international law? How do the procedures in the common law and civil law traditions influence Arbitration? How does the doctrine of Lis Pendens play its role in international commercial arbitration? Explain the growing phenomena of Lis Pendens and challenges to international commercial Arbitration due to it? What is the possible solution to these challenges? The study would address the following aims and objectives: Investigate the parallel proceedings’ problem and the adoption of Lis Pendens in the common and civil law, respectively, to assess when parallel proceedings accurately take place in international community arbitration
While on the other hand, common law traditions are described as an inductive method to judicial discretion to take all particular and relevant facts regarding any case under consideration
Summary
“Arbitration” is an English concept, whose legal lexicon’s roots are formed by the Greek word “Diaitisia” and the Latin word “Arbitus.”Arbitration was promoted between 330-90 BC by the Greek legal culture as the most valuable social justice instrument to settle all property law related matters(Lew et al, 2003). The literature points out international arbitration’s complications in proceedings under the doctrine of lis alibi pendens. These complications occurred when the first-time rule was violated because the forum clause was excluded in arbitration agreements. In international arbitration’s matters, the Lis Alibi Pendens’ doctrine rises when the implementation of jurisdiction over a case is refused by the court, which is pending in another jurisdiction(Merryman and Pérez-Perdomo, 2018). The study would address the following aims and objectives: Investigate the parallel proceedings’ problem and the adoption of Lis Pendens in the common and civil law, respectively, to assess when parallel proceedings accurately take place in international community arbitration. This study is twofold; it would embark upon presenting the parallel proceedings and lis pendens’ issue through overall perspective while keeping in view a party-oriented approach
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