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.
Fourteen 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.
The 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.
To 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 estoppel.
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. Laurence Usunier , 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. Sylvain Bollée , 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 ” reasonable attitude ” of courts when examining whether or not to set aside an arbitral award. To illustrate the different problematics discussed during the afternoon’s debates, Alexandre Reynaud , 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, Thomas Granier , 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, Jean-Pierre Ancel , Honorary President of Chamber at the Court of Cassation and a leading figure of afavor arbitrandum 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. Daniel Cohen , 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.