Arbitration Academy
Session 2012
Special course
Prof. Gabrielle Kaufmann-Kohler
Parallel proceedings in international arbitration
Day 2
1
Outline of today’s class
1.
Res judicata and lis pendens
1.1 Res judicata
• Concept
• Requirements
1.2 Lis pendens
• Concept and requirements
2.
Consolidation
2.1 Concept: Consolidation of proceedings distinguished
from agregation of claims
2.2 Requirements
2.3 Illustration: Canfor v. USA
2.4 Limitations and assessment
2
1.1 Res judicata
1.1.1 Concept
• A dispute cannot be adjudicated twice
• General principle of law
• Art. III NYC: « Each contracting state
shall recognize arbitral awards as
binding […] ».
• Issue preclusion / estoppel v. claim
preclusion
3
Requirements
•
bars re-adjudication provided there is
triple identity:
– identity of facts
– identity of cause of action
– identity of parties
4
1.2 Lis pendens
1.2.1 Concept and requirements
– Corollary of res judicata when both
proceedings still pending
– Same identity tests
5
–
Defense before courts in Europe
« 1. Where proceedings involving the same cause of
action and between the same parties are brought
in the courts of different Member States, any court
other than the court first seised shall of its own
motion stay its proceedings until such time as the
jurisdiction of the court first seised is established.
2. Where the jurisdiction of the court first seised is
established, any court other than the court first
seised shall decline jurisdiction in favour of that
court. » (Art. 27 Council Regulation (EC) N°
44/2001 [Brussels Regulation])
–
Implies courts / tribunals of competent
jurisdiction
6
1.2.2
–
–
–
Applicability in arbitration?
Only one arbitral tribunal of competent
jurisdiction
E.g. “It [the arbitral tribunal] shall decide on
its jurisdiction notwithstanding an action on
the same matter between the same parties
already pending before a state court or
another arbitral tribunal, unless there are
serious reasons to stay the proceedings.”
(Art. 186(1)(bis) Swiss PILA)
Assessment
7
2.3 Related action / Connexity defense / forum
non conveniens
–
Before courts in Europe
« 1. Where related actions are pending in the courts of different
Member States, any court other than the court first seised may stay
its proceedings.
2. Where these actions are pending at first instance, any court other
than the court first seised may also, on the application of one of the
parties, decline jurisdiction if the court first seised has jurisdiction
over the actions in question and its law permits the consolidation
thereof.
8
3.
For the purposes of this Article, actions are deemed to be related
where they also so closely connected that it is expedient to hear and
determine them together to avoid the risk of irreconcilable
judgments resulting from separate proceedings. » (Art. 28 Brussels
Regulation I)
–
–
Applicability in arbitration?
Assessment
9
2. Consolidation
2.1 Concept
• Consolidation of two
proceedings into one
/
several
pending
• As opposed to claims under different
instruments (e.g. two contracts) brought in one
arbitration – broad dispute resolution clause
and compatibility of dispute settlement systems
10
2.2 Requirements – Commercial arbitration
Article 10 ICC Rules 2012: Consolidation of Arbitrations
a) the Court may, at the request of a party, consolidate two
or more arbitrations pending under the Rules into a single
arbitration, where
the parties have agreed to
consolidation; or
b) all of the claims in the arbitrations are made under the
same arbitration agreement; or
c) where the claims in the arbitrations are made under more
than one arbitration agreement, the arbitrations are
between the same parties, the disputes in the arbitrations
arise in connection with the same legal relationship, and
the Court finds the arbitration agreements to be
compatible. […]
11
Article 4 SRIA 2012 : Consolidation and joinder
1. Where a Notice of Arbitration is submitted between parties
already involved in other arbitral proceedings pending under
these Rules, the Court may decide, after consulting with the
parties and any confirmed arbitrator in all proceedings, that the new
case shall be consolidated with the pending arbitral
proceedings. The Court may proceed in the same way where a
Notice of Arbitration is submitted between parties that are not
identical to the parties in the pending arbitral proceedings. When
rendering its decision, the Court shall take into account all relevant
circumstances, including the links between the cases and the progress
already made in the pending arbitral proceedings. Where the Court
decides to consolidate the new case with the pending arbitral
proceedings, the parties to all proceedings shall be deemed to
have waived their right to designate an arbitrator, and the Court may
revoke the appointment and confirmation of arbitrators and apply
the provisions of Section II (Composition of the Arbitral Tribunal). […]
12
2.2 Requirements - Investment arbitration
Article 1126(2) NAFTA
« Where a Tribunal established under this Article is
satisfied that claims have been submitted to
arbitration under Article 1120 that have a question of
law or fact in common, the Tribunal may, in the
interests of fair and efficient resolution of the claims,
and after hearing the disputing parties, by order
(a) assume jurisdiction over, and hear and determine
together, all or part of the claims; or
(b) assume jurisdiction over, and hear and determine
one or more of the claims, the determination of
which it believes would assist in the resolution of
the others. »
13
2.3 An illustration: Canfor v. USA
– Facts
– Issue
– Outcome
14
2.4 Limitations? Assessment?
15
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