Table of Contents. vii. Preface. xvii. List of Abbreviations. xix. List of Figures. xxiii. Acknowledgements. xxv

Transcription

1 Preface List of Abbreviations List of Figures Acknowledgements xvii xix xxiii xxv CHAPTER 1 Introduction Scope of Research 2 [A] Research Question 2 [B] Principal Sources of Law 5 [1] New York Convention 6 [2] National Arbitration Laws 7 [a] UNCITRAL Model Law 7 [b] German Code of Civil Procedure 8 [c] French Code of Civil Procedure 8 [d] Swiss Private International Law Act 9 [e] English Arbitration Act Parallel Proceedings: A Common Phenomenon 10 [A] General Motivations behind Commencing Parallel Proceedings 11 [1] Tactics 11 [2] Forum Shopping 12 [B] Specific Interests Involved in Parallel Proceedings before National Courts and Arbitral Tribunals 13 [1] Parties Interests 14 vii

2 [2] Judiciary s and Arbitration Community s Concerns 14 [C] Conclusion Definition of Parallel Proceedings 16 [A] Definition in the International Law Association s Recommendations 16 [B] Definition in the Brussels Regulation and Lugano Convention 17 [1] Article 27 of the Brussels Regulation and the Lugano Convention 18 [a] Identical Cause of Action: The ECJ s Kernpunkttheorie 18 [b] Identity of the Parties: The ECJ s Test of Identity and Indissociability of Interests 20 [2] Article 28 of the Brussels Regulation and the Lugano Convention 21 [3] Interim Conclusion 22 [C] Temporal Definition of Parallel Proceedings 22 [D] Conclusion 23 CHAPTER 2 Competence-Competence Internationally Accepted Principle in International Arbitration 26 [A] International Arbitration Conventions 28 [1] New York Convention 28 [2] European Convention 28 [B] National Arbitration Laws 29 [1] UNCITRAL Model Law/German Code of Civil Procedure 29 [2] French Code of Civil Procedure 30 [3] Swiss Private International Law Act 32 [4] English Arbitration Act 32 [C] Institutional Arbitration Rules 33 [1] UNCITRAL Arbitration Rules 33 [2] ICC Rules [3] Swiss Rules [4] LCIA Rules Diverging Implementation of Competence-Competence under National Arbitration Laws 36 [A] UNCITRAL Model Law/German Code of Civil Procedure 36 [B] French Code of Civil Procedure 37 [1] Negative Effect Doctrine in French Statutory Arbitration Law 38 [2] Negative Effect Doctrine in French Case Law 39 viii

3 [C] Swiss Private International Law Act 40 [1] Partial Adoption of the Negative Effect of Competence-Competence in Swiss Case Law 40 [2] Proposal to Introduce the Negative Effect of Competence-Competence into Swiss Law? 43 [D] English Arbitration Act 46 [1] Principle of Competence-Competence in English Statutory Arbitration Law 46 [2] Principle of Competence-Competence in Recent English Case Law 48 [E] Comparative Conclusion 50 [1] Policy Considerations behind the Negative Effect of Competence-Competence 51 [2] Negative Effect of Competence-Competence: A Blessing or a Curse? 53 [3] Future Role of the Negative Effect of Competence-Competence Competence-Competence and the Brussels and Lugano Regime 56 [A] Arbitration Exception 56 [1] ECJ s Case Law with a Connection to Arbitration 58 [a] Ancillary Proceedings: The Marc Rich Case 58 [i] Facts of the Case 58 [ii] Reasoning and Comments to the Case 58 [b] Provisional Measures: The Van Uden Case 60 [i] Facts of the Case 60 [ii] Reasoning and Comments to the Case 60 [c] Parallel Proceedings: The West Tankers Case 61 [i] Facts of the Case 61 [ii] Reasoning and Comments to the Case 62 [2] Interim Conclusion 64 [B] Recast Brussels Regulation 66 [1] Historic Development of the Recast Brussels Regulation 66 [2] Recital 12 Recast Brussels Regulation 67 [3] Impact on the Lugano Convention Summary 70 CHAPTER 3 Jurisdictional Pleas and Actions with Parallel Proceedings before an Arbitral Tribunal and a National Court Pleas and Actions to Be Invoked before National Courts 72 [A] Exceptio Arbitri 72 [1] Arbitration Defence in the New York Convention 73 [a] Basic Requirements 73 ix

4 [b] Interpretation of the Validity of the Arbitration Agreement 74 [c] Effect of a Valid Arbitration Agreement 76 [d] Weaknesses of the Arbitration Defence under the New York Convention 77 [2] Arbitration Defence under National Arbitration Laws 80 [a] Procedural Requirements as to the Time by Which the Plea Should Be Raised 82 [b] Interpretation of the Invalidity of the Arbitration Agreement 84 [i] Law Governing the Interpretation of the Arbitration Agreement 85 [ii] Invalidity of the Arbitration Agreement 87 [c] Effects of the National Court s Decision regarding the Arbitration Defence 91 [i] Is the Brussels Regulation/Lugano Convention Applicable to Court Decisions on the Arbitration Defence? 92 [ii] National Court s Referral to Arbitration 93 [iii] National Court s Refusal to Refer the Parties to Arbitration 95 [3] Comparative Conclusion 102 [a] Conclusions from the Perspective of National Courts 103 [b] Conclusions from the Arbitrators View 104 [c] Conclusions from the Parties View 106 [B] Exceptio Litis Pendentis 107 [1] General Introduction 108 [a] Origins of the Principle of Lis Pendens in Civil Law Jurisdictions 108 [b] Common Law Doctrine of Forum Non Conveniens 109 [c] Lis Pendens Rule in International Arbitration Law 110 [i] Article II(3) New York Convention 110 [ii] Article VI(3) European Convention 111 [iii] Article 8 UNCITRAL Model Law 112 [iv] Brussels and Lugano Regime 112 [2] Effectiveness of the Plea of Litispendence before National Courts 113 [a] German, French and English Law Perspectives 113 [b] Swiss Law Perspective 115 [i] With Previous Domestic Arbitral Proceedings 115 [ii] With Previous Foreign Arbitral Proceedings 116 [3] Comparative Conclusion 117 [a] Conclusions from the Perspective of National Courts 118 [b] Conclusions from the Parties View 118 x

5 [C] Action for Injunctive Relief 119 [1] Injunctions Restraining Parallel Court Proceedings (Anti-suit Injunctions) 120 [a] Admissibility of Anti-suit Injunctions 120 [b] Doctrinal Considerations behind the (In)Admissibility of Anti-suit Injunctions 125 [i] Comity and the Protection of the Foreign State s Sovereignty 126 [ii] (In)Compatibility with International Law 127 [iii] Principle of Competence-Competence 128 [iv] Practicality 128 [c] Effects of Decisions on Applications for Injunctive Relief 128 [i] Is the Brussels Regulation/Lugano Convention Applicable to Anti-suit Injunctions in Support of Arbitration? 129 [ii] Enforcement of Anti-suit Injunctions in Support of Arbitration 130 [2] Injunctions Restraining Parallel Arbitration Proceedings (Anti-arbitration Injunctions) 131 [a] Admissibility of Anti-arbitration Injunctions 131 [b] Doctrinal Considerations behind the (In)Admissibility of Anti-arbitration Injunctions 134 [i] Sovereignty and Denial of Justice 134 [ii] Compatibility with International Law 134 [iii] Principle of Competence-Competence 135 [iv] Practicality 135 [c] Effects of Decisions on Applications for Injunctive Relief 136 [i] Is the Brussels Regulation/Lugano Convention Applicable to Anti-arbitration Injunctions? 136 [ii] Enforcement of Anti-arbitration Injunctions 136 [3] Comparative Conclusion 137 [a] Conclusions from the Perspective of National Courts 137 [b] Conclusions from the Arbitrators View 138 [c] Conclusions from the Parties View 141 [i] Enforcement Considerations 142 [ii] Alternatives to Anti-suit/Anti-arbitration Injunctions 143 [D] Action for Declaratory Relief 146 [1] Admissibility of Declaratory Relief 147 [a] Declaratory Relief under German Arbitration Law 147 [b] Declaratory Relief under English Arbitration Law 149 xi

6 [2] Considerations behind the (In)Admissibility of Declaratory Relief 151 [a] National Legislators Policy Considerations 152 [b] Necessity of Declaratory Relief 154 [c] Interim Conclusion 155 [3] Effects of the Declaratory Judgment on the Arbitration Agreement s (In)Validity 156 [a] Is the Brussels Regulation/Lugano Convention Applicable to Court Decisions on Declaratory Relief? 156 [b] Court s Declaration on the Arbitration Agreement s Validity 156 [i] Possibility of Appealing against a Positive Declaratory Judgment 156 [ii] Res Judicata Effect of a Positive Declaratory Judgment 157 [c] Court s Declaration on the Arbitration Agreement s Invalidity 157 [i] Possibility of Appealing against a Negative Declaratory Judgment 158 [ii] Res Judicata Effect of a Negative Declaratory Judgment 158 [4] Comparative Conclusion 158 [a] Conclusions from the Perspective of National Courts 158 [b] Conclusions from the Arbitrators View 159 [c] Conclusions from the Parties View 159 [E] Exceptio Rei Judicatae 162 [1] General Introduction 163 [a] The Civil Law Notion of the Principle of Res Judicata 163 [b] Common Law Concept of Res Judicata 164 [i] Cause of Action Estoppel 164 [ii] Issue Estoppel 165 [iii] Former Recovery 165 [iv] Abuse of Process 166 [2] Effectiveness of the Exceptio Rei Judicatae 167 [a] Law Applicable to Determine Arbitral Awards Preclusive Effect 168 [b] Arbitral Awards Preclusive Effect under National Arbitration Laws 168 [i] With a Previous Domestic Arbitral Award 173 [ii] With a Previous Foreign Arbitral Award 174 [3] Comparative Conclusion: Conclusions from the Parties View 175 [F] Summary 177 xii

7 3.02 Pleas and Actions to Be Invoked before Arbitral Tribunals 179 [A] Plea of Lack of Jurisdiction 179 [1] Procedural Requirements as to the Time by Which the Plea Should Be Raised 180 [2] Effects of the Arbitral Tribunal s Decision on Jurisdiction 183 [a] Form of the Decision on Jurisdiction 184 [b] Effect of the Decision Admitting Jurisdiction 186 [i] Possibility of Court Control of an Arbitral Tribunal s Positive Decision on Jurisdiction 186 [ii] Res Judicata Effect of an Arbitral Tribunal s Positive Decision on Jurisdiction 189 [c] Effect of the Decision Denying Jurisdiction 191 [i] Possibility of Court Control of an Arbitral Tribunal s Negative Decision on Jurisdiction 191 [ii] Res Judicata Effect of an Arbitral Tribunal s Negative Decision on Jurisdiction 195 [3] Comparative Conclusion 195 [a] Conclusions from the Perspective of National Courts 197 [b] Conclusions from the Arbitrators View 197 [c] Conclusions from the Parties View 198 [B] Exceptio Litis Pendentis 199 [1] Appropriateness of the Application of the Lis Pendens Doctrine in the Context of Arbitration 199 [2] ILA Recommendations on Lis Pendens 201 [3] Effectiveness of the Plea of Litispendence 203 [a] German, French and English Law Perspectives 203 [b] Swiss Law Perspective 205 [i] With Previous Foreign Court Proceedings 206 [ii] With Previous Domestic Court Proceedings 212 [4] Comparative Conclusion 213 [a] Conclusions from the Arbitrators View 213 [b] Conclusions from the Parties View 215 [C] Action for Injunctive Relief 216 [1] Admissibility of Anti-suit Injunctions Issued by Arbitrators 216 [2] Doctrinal Considerations on Arbitrators Competence to Issue Anti-suit Injunctions 220 [3] Effects of Anti-suit Injunctions Issued by Arbitrators 222 [a] Form of Anti-suit Injunction: Arbitral Award or Procedural Order? 222 [b] Effectiveness of Anti-suit Orders 222 [i] Support by National Courts to Enforce an Anti-suit Injunction 223 xiii

8 [ii] Possible Sanctions to Be Ordered by an Arbitral Tribunal 224 [iii] Recognition and Enforcement of Anti-suit Injunctions Abroad 226 [4] Comparative Conclusion 226 [a] Conclusions from the Perspective of National Courts 227 [b] Conclusions from the Arbitrators View 227 [c] Conclusions from the Parties View 229 [D] Exceptio Rei Judicatae 231 [1] The ILA Recommendations on Res Judicata 232 [2] Effectiveness of the Exceptio Rei Judicatae 234 [a] Law Applicable to Determine Res Judicata Effect of Court Judgments 235 [b] Court Judgments Preclusive Effect under National Arbitration Laws and Practice 236 [i] German, French and English Law Perspectives 236 [ii] Swiss Law Perspective 237 [3] Res Judicata: A Principle of International Public Policy? 239 [4] Comparative Conclusion 241 [a] Conclusions from the Arbitrators View 242 [b] Conclusions from the Parties View 243 [E] Summary 244 CHAPTER 4 Final Conclusion Effects of Parallel Proceedings 248 [A] Party-Related Concerns 248 [B] System-Related Concerns 249 [C] Interim Conclusion Evaluation and Comparison of the Jurisdictional Pleas and Actions in the Context of Parallel Proceedings 250 [A] Exceptio Arbitri before National Courts and Plea of Lack of Jurisdiction before Arbitral Tribunals 250 [1] Scope of Review of National Courts/Arbitral Tribunals 250 [2] Substantive and Procedural Requirements 251 [3] Res Judicata Effect of Decision on Jurisdiction 252 [B] Plea of Litispendence before National Courts and Arbitral Tribunals 253 [C] Applications for Anti-suit/Anti-arbitration Injunctions before National Courts and Applications for Anti-suit Injunctions before Arbitral Tribunals 255 [D] Actions for Declaratory Relief 257 xiv

9 [E] Plea of Res Judicata before National Courts and Arbitral Tribunals 258 [1] International Principle of Res Judicata 258 [2] Procedural Requirements 259 [3] Preclusive Effect of Res Judicata 259 [F] Conclusion on Evaluation and Comparison Conclusion in Scenarios 264 [A] Scenario No 1: Arbitral Proceedings Were Initiated Prior to Court Proceedings 264 [1] If the National Court Is Located at the Seat of Arbitration 264 [2] If the National Court Is Located Abroad 267 [B] Scenario No 2: Court Proceedings Were Initiated Prior to Arbitral Proceedings 269 [1] If the Seat of the Arbitral Tribunal Is Located in the Same Country as the Court Proceedings 270 [2] If the Seat of the Arbitral Tribunal Is Located Abroad 271 [C] Scenario No 3: Final Court Judgment with Subsequent Arbitral Proceedings 272 [D] Scenario No 4: Final Arbitral Award with Subsequent Court Proceedings 273 Bibliography 275 Table of Cases 299 Table of Materials 311 Index 313 xv

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