Report on the conference on Parallel Proceedings and Contradictory Decisions in International Arbitration
On 21 March 2014, the ICC hosted a conference concerning the sensitive topic of Parallel Proceedings and Contradictory Decisions in International Arbitration.
This event was organized by and upon the joint
initiative of students and alumni of
international law degrees, in collaboration with two research centers, of the
University of Panthéon-Assas, Paris
II. The conference focused on the ways to avoid this undoubtedly increasing
phenomenon in commercial and investment arbitration.
arbitration practitioners and law professors intervened during the day.
The speakers addressed numerous issues triggered by parallel proceedings and
contradictory decisions in order to circumscribe their legal and economic
consequences. The morning panel was dedicated to investment law, while the
afternoon panel focused on the impact of parallel proceedings and
contradictory decisions in commercial arbitration. “This conference has
successfully approached a particularly technical question under the
double angle of commercial and investment arbitration, exceeding the
ideological gap that has long existed between those two topics”, said Philippe Leboulanger,
former President of the French Arbitration Comity and speaker.
subject was conceived by students and young alumni specializing in transversal
issues in international law. Students of the “Droit des
Relations Economiques Internationales” master's degree (dir. Prof.
Daniel Cohen and Prof. Yves Nouvel) focus on international relations,
arbitration and trade issues, while students from the “Droit
International Privé et Droit du Commerce International” master's degree
(dir. Prof. Léna Gannagé and Prof. Marie Goré, also heads
of the “Centre de Recherche de Droit International”) concentrate their studies on civil and business issues in European and international law.
Students of both degrees strengthen their knowledge in general international
law with complementary courses delivered by the
“Institut des Hautes Etudes Internationales”. The
student associations of those three degrees collaborated to organize this event,
namely the “Association des Diplômés en Droit des Relations Economiques
Internationales”, the “Association des Juristes de Droit International Privé”
and the “Association de l’Institut des Hautes Etudes Internationales”.
The debates started with the presentation of the increasing number of
procedural disorder factors in international arbitration delivered by
Walid Ben Hamida, Lecturer at Sciences Po Paris. Fernando
Mantilla-Serrano, Partner at Shearman & Sterling LLP, subsequently
demonstrated that contradictory decisions could exist due to the insufficiency
of classical procedural regulation instruments
such as res judicata, especially in the field of investment
law. Hence, Ibrahim Fadlallah, Professor emeritus of the University Paris
Ouest (Nanterre – la Défense), presented a critical analysis of the arbitral
tribunals’ trend distinguishing between contract claims and treaty claims. Such
a position incontestably leads to the dislocation of the dispute, solution he
judges “highly unsatisfying” and calls
for other solutions.
tackle this problem, remedies at an institutional and procedural stage have
been suggested by Eloïse Obadia, Partner
at Derains & Gharavi, whose long experience at the ICSID as
a former Senior Counsel and Team Leader permitted to draft a complete landscape
of solutions adopted in BITs as well as practical initiatives taken by the
ICSID and parties to prevent from parallel proceedings. Another type of
remedies based on principles of international dispute settlement were also
suggested by Yves Nouvel, Professor at the University Panthéon-Assas,
Paris II, and chairman of the morning panel. The contestable indifference
that exists between jurisdictional bodies could be limited by the implementation
of effectiveness and fairness principles in investment arbitration that could materialize
through different practical solutions such as, for instance, collateral
During the afternoon panel, Philippe Leboulanger drew a general presentation of specific problems arising in international commercial arbitration. Claire Debourg, Lecturer at the University Paris Ouest (Nanterre – la Défense), made several propositions on the use of preventive mechanisms to manage procedural disorders between judicial and arbitral proceedings. While the ideal solution would be to give wide priority to the arbitrators to rule on their own jurisdiction, two other preventing instruments should be taken into consideration, despite their imperfection: the lis pendens exception and the anti-suit injunctions. Jacob Grierson, Partner at McDermott Will & Emery, deepened the latest subject by presenting multiple practical illustrations of the use of anti-suit injunctions by judges and arbitrators. If anti-suits do accentuate procedural disorders and should be used with caution, they may nonetheless be a useful instrument to oblige parties to comply with their engagement to arbitrate.
The recent amendment of the Brussels I European Regulation questions the exclusion of international arbitration from its scope.
, Professor at the University Paris XIII Nord, explained the reasons and means of such exclusion as well as the consequences that this choice will have when a conflict arises between a judicial and an arbitral procedure, or between a judicial and arbitral decision.
, Professor at the University Paris I, Sorbonne Law School, subsequently retraced the factors favoring contradiction in the control of the arbitral awards made by national courts and the variable effects that such control could favor. He highlighted the fact that the solutions reached in comparative law incontestably weaken the arbitration system and consequently Mr. Bollée called for a "
" of courts when examining whether or not to set aside an arbitral award. To illustrate the different problematics discussed during the afternoon's debates,
, Associate at betto seraglini, presented a recent and particularly twisted affair currently treated by French jurisdictions: the Planor Afrique case.
The day ended with the presentation of two mechanisms aiming to concentrate issues arising from the same dispute. First,
, Counsel at the ICC International Court of Arbitration, focused on the innovations provided by the 2012 ICC arbitration Rules regarding the consolidation of arbitrations when introduced under the Rules. He explained how the International Court of Arbitration monitored parallel arbitrations to avoid contradictory awards. Second,
, Honorary President of Chamber at the Court of Cassation and a leading figure of a
movement in France, recalled the evolution of French law in the recognition of the extension and transmission of arbitral agreements. Combined with the application of the competence-competence principle by French courts, it allows arbitral tribunals to broadly define the scope of the dispute which considerably limits parallel proceedings risks.
, Professor at the University Panthéon-Assas, Paris II, and chairman of the afternoon panel, concluded the debates with a general summary of the main issues. He emphasized the fact that the solutions brought by the speakers responded to a principle of sound administration of justice, which should always prevail in international arbitration.