Problems with Parallel and Duplicate Proceedings: The Litispendence Principle and International Arbitration

Abstract

A recent (and thoughtful) essay about litispendence and international arbitration begins with the observation that it ‘seems to treat the quintessential non-subject.1 The authors proceed to cite a number of French, Swiss, German, and Austrian writers who deny the existence of any question of litispendence in the context of arbitration. These writers base their conclusions on different grounds. All of these grounds are related to the notion that a contractual undertaking to arbitrate is sufficient, in and of itself, to preclude the concurrent exercise of jurisdiction by public authorities, thus mooting the problem of litispendence. However, Schweizer and Guillod end their essay with the suggestion that judges should apply the litispendence principle by suspending court proceedings whenever an arbitration involving the same dispute and the same parties is already pending, and should do so prior to assessing the effects of the arbitration agreement under the New York Convention or other similar law.2 This suggestion is sound, but it raises the question of whether and under what circumstances a corresponding rule might also be applied by arbitrators when another court or arbitral proceeding involving the same dispute and the same parties presents the risk of a conflicting decision.3 The discussion which follows addresses the arbitral side of the litispendence question. It does not aim at a comparative law analysis of the litispendence principle in different legal systems. It is concerned with the place, if any, for the litispendence principle in the repertory of a developing procedural law of international arbitration. For this reason, the examples contained in this article are drawn exclusively from published international arbitral decisions rather than from national court decisions. As will be seen, however, these examples are merely illustrative of particular rationales given by a variety of arbitral tribunals. They are generally too sparse …