Parallel Proceedings in International Arbitration

Name: Parallel Proceedings in International Arbitration | A Comparative European Perspective
Brand: Kluwer Law International
Price: 267.99 EUR
Availability: OnlineOnly

A Comparative European Perspective

Nadja Erk(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 7. Mai 2014

352 Seiten

E-Book

PDF mit Adobe-DRM

Systemvoraussetzungen

978-90-411-5274-9 (ISBN)

267,99 €inkl. 7% MwSt.

Systemvoraussetzungen

für PDF mit Adobe-DRM

E-Book Einzellizenz

Als Download verfügbar

Beschreibung

Weitere Details

Weitere Ausgaben

Inhalt

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
Dedication
Table of Contents
Preface
List of Abbreviations
List of Figures
Acknowledgements
CHAPTER 1 Introduction
§1.01 SCOPE OF RESEARCH
[A] Research Question
[B] Principal Sources of Law
[1] New York Convention
[2] National Arbitration Laws
[a] UNCITRAL Model Law
[b] German Code of Civil Procedure
[c] French Code of Civil Procedure
[d] Swiss Private International Law Act
[e] English Arbitration Act
§1.02 PARALLEL PROCEEDINGS: A COMMON PHENOMENON
[A] General Motivations behind Commencing Parallel Proceedings
[1] Tactics
[2] Forum Shopping
[B] Specific Interests Involved in Parallel Proceedings before National Courts and Arbitral Tribunals
[1] Parties' Interests
[2] Judiciary's and Arbitration Community's Concerns
[C] Conclusion
§1.03 DEFINITION OF PARALLEL PROCEEDINGS
[A] Definition in the International Law Association's Recommendations
[B] Definition in the Brussels Regulation and Lugano Convention
[1] Article 27 of the Brussels Regulation and the Lugano Convention
[a] Identical Cause of Action: The ECJ's 'Kernpunkttheorie'
[b] Identity of the Parties: The ECJ's Test of Identity and Indissociability of Interests
[2] Article 28 of the Brussels Regulation and the Lugano Convention
[3] Interim Conclusion
[C] Temporal Definition of Parallel Proceedings
[D] Conclusion
CHAPTER 2 Competence-Competence
§2.01 INTERNATIONALLY ACCEPTED PRINCIPLE IN INTERNATIONAL ARBITRATION
[A] International Arbitration Conventions
[1] New York Convention
[2] European Convention
[B] National Arbitration Laws
[1] UNCITRAL Model Law/German Code of Civil Procedure
[2] French Code of Civil Procedure
[3] Swiss Private International Law Act
[4] English Arbitration Act
[C] Institutional Arbitration Rules
[1] UNCITRAL Arbitration Rules
[2] ICC Rules 2012
[3] Swiss Rules 2012
[4] LCIA Rules
§2.02 DIVERGING IMPLEMENTATION OF COMPETENCE-COMPETENCE UNDER NATIONAL ARBITRATION LAWS
[A] UNCITRAL Model Law/German Code of Civil Procedure
[B] French Code of Civil Procedure
[1] Negative Effect Doctrine in French Statutory Arbitration Law
[2] Negative Effect Doctrine in French Case Law
[C] Swiss Private International Law Act
[1] Partial Adoption of the Negative Effect of Competence-Competence in Swiss Case Law
[2] Proposal to Introduce the Negative Effect of Competence-Competence into Swiss Law?
[D] English Arbitration Act
[1] Principle of Competence-Competence in English Statutory Arbitration Law
[2] Principle of Competence-Competence in Recent English Case Law
[E] Comparative Conclusion
[1] Policy Considerations behind the Negative Effect of Competence-Competence
[2] Negative Effect of Competence-Competence: A Blessing or a Curse?
[3] Future Role of the Negative Effect of Competence-Competence
§2.03 COMPETENCE-COMPETENCE AND THE BRUSSELS AND LUGANO REGIME
[A] Arbitration Exception
[1] ECJ's Case Law with a Connection to Arbitration
[a] Ancillary Proceedings: The Marc Rich Case
[i] Facts of the Case
[ii] Reasoning and Comments to the Case
[b] Provisional Measures: The Van Uden Case
[i] Facts of the Case
[ii] Reasoning and Comments to the Case
[c] Parallel Proceedings: The West Tankers Case
[i] Facts of the Case
[ii] Reasoning and Comments to the Case
[2] Interim Conclusion
[B] Recast Brussels Regulation
[1] Historic Development of the Recast Brussels Regulation
[2] Recital 12 Recast Brussels Regulation
[3] Impact on the Lugano Convention
§2.04 SUMMARY
CHAPTER 3 Jurisdictional Pleas and Actions with Parallel Proceedings before an Arbitral Tribunal and a National Court
§3.01 PLEAS AND ACTIONS TO BE INVOKED BEFORE NATIONAL COURTS
[A] Exceptio Arbitri
[1] Arbitration Defence in the New York Convention
[a] Basic Requirements
[b] Interpretation of the Validity of the Arbitration Agreement
[c] Effect of a Valid Arbitration Agreement
[d] Weaknesses of the Arbitration Defence under the New York Convention
[2] Arbitration Defence under National Arbitration Laws
[a] Procedural Requirements as to the Time by Which the Plea Should Be Raised
[b] Interpretation of the Invalidity of the Arbitration Agreement
[i] Law Governing the Interpretation of the Arbitration Agreement
[ii] Invalidity of the Arbitration Agreement
[c] Effects of the National Court's Decision regarding the Arbitration Defence
[i] Is the Brussels Regulation/Lugano Convention Applicable to Court Decisions on the Arbitration Defence?
[ii] National Court's Referral to Arbitration
[iii] National Court's Refusal to Refer the Parties to Arbitration
[3] Comparative Conclusion
[a] Conclusions from the Perspective of National Courts
[b] Conclusions from the Arbitrators' View
[c] Conclusions from the Parties' View
[B] Exceptio Litis Pendentis
[1] General Introduction
[a] Origins of the Principle of Lis Pendens in Civil Law Jurisdictions
[b] Common Law Doctrine of Forum Non Conveniens
[c] Lis Pendens Rule in International Arbitration Law
[i] Article II(3) New York Convention
[ii] Article VI(3) European Convention
[iii] Article 8 UNCITRAL Model Law
[iv] Brussels and Lugano Regime
[2] Effectiveness of the Plea of Litispendence before National Courts
[a] German, French and English Law Perspectives
[b] Swiss Law Perspective
[i] With Previous Domestic Arbitral Proceedings
[ii] With Previous Foreign Arbitral Proceedings
[3] Comparative Conclusion
[a] Conclusions from the Perspective of National Courts
[b] Conclusions from the Parties' View
[C] Action for Injunctive Relief
[1] Injunctions Restraining Parallel Court Proceedings (Anti-suit Injunctions)
[a] Admissibility of Anti-suit Injunctions
[b] Doctrinal Considerations behind the (In)Admissibility of Anti-suit Injunctions
[i] Comity and the Protection of the Foreign State's Sovereignty
[ii] (In)Compatibility with International Law
[iii] Principle of Competence-Competence
[iv] Practicality
[c] Effects of Decisions on Applications for Injunctive Relief
[i] Is the Brussels Regulation/Lugano Convention Applicable to Anti-suit Injunctions in Support of Arbitration?
[ii] Enforcement of Anti-suit Injunctions in Support of Arbitration
[2] Injunctions Restraining Parallel Arbitration Proceedings (Anti-arbitration Injunctions)
[a] Admissibility of Anti-arbitration Injunctions
[b] Doctrinal Considerations behind the (In)Admissibility of Anti-arbitration Injunctions
[i] Sovereignty and Denial of Justice
[ii] Compatibility with International Law
[iii] Principle of Competence-Competence
[iv] Practicality
[c] Effects of Decisions on Applications for Injunctive Relief
[i] Is the Brussels Regulation/Lugano Convention Applicable to Anti-arbitration Injunctions?
[ii] Enforcement of Anti-arbitration Injunctions
[3] Comparative Conclusion
[a] Conclusions from the Perspective of National Courts
[b] Conclusions from the Arbitrators' View
[c] Conclusions from the Parties' View
[i] Enforcement Considerations
[ii] Alternatives to Anti-suit/Anti-arbitration Injunctions
[D] Action for Declaratory Relief
[1] Admissibility of Declaratory Relief
[a] Declaratory Relief under German Arbitration Law
[b] Declaratory Relief under English Arbitration Law
[2] Considerations behind the (In)Admissibility of Declaratory Relief
[a] National Legislators' Policy Considerations
[b] Necessity of Declaratory Relief
[c] Interim Conclusion
[3] Effects of the Declaratory Judgment on the Arbitration Agreement's (In)Validity
[a] Is the Brussels Regulation/Lugano Convention Applicable to Court Decisions on Declaratory Relief?
[b] Court's Declaration on the Arbitration Agreement's Validity
[i] Possibility of Appealing against a Positive Declaratory Judgment
[ii] Res Judicata Effect of a Positive Declaratory Judgment
[c] Court's Declaration on the Arbitration Agreement's Invalidity
[i] Possibility of Appealing against a Negative Declaratory Judgment
[ii] Res Judicata Effect of a Negative Declaratory Judgment
[4] Comparative Conclusion
[a] Conclusions from the Perspective of National Courts
[b] Conclusions from the Arbitrators' View
[c] Conclusions from the Parties' View
[E] Exceptio Rei Judicatae
[1] General Introduction
[a] The Civil Law Notion of the Principle of Res Judicata
[b] Common Law Concept of Res Judicata
[i] Cause of Action Estoppel
[ii] Issue Estoppel
[iii] Former Recovery
[iv] Abuse of Process
[2] Effectiveness of the Exceptio Rei Judicatae
[a] Law Applicable to Determine Arbitral Awards' Preclusive Effect
[b] Arbitral Awards' Preclusive Effect under National Arbitration Laws
[i] With a Previous Domestic Arbitral Award
[ii] With a Previous Foreign Arbitral Award
[3] Comparative Conclusion: Conclusions from the Parties' View
[F] Summary
§3.02 PLEAS AND ACTIONS TO BE INVOKED BEFORE ARBITRAL TRIBUNALS
[A] Plea of Lack of Jurisdiction
[1] Procedural Requirements as to the Time by Which the Plea Should Be Raised
[2] Effects of the Arbitral Tribunal's Decision on Jurisdiction
[a] Form of the Decision on Jurisdiction
[b] Effect of the Decision Admitting Jurisdiction
[i] Possibility of Court Control of an Arbitral Tribunal's Positive Decision on Jurisdiction
[ii] Res Judicata Effect of an Arbitral Tribunal's Positive Decision on Jurisdiction
[c] Effect of the Decision Denying Jurisdiction
[i] Possibility of Court Control of an Arbitral Tribunal's Negative Decision on Jurisdiction
[ii] Res Judicata Effect of an Arbitral Tribunal's Negative Decision on Jurisdiction
[3] Comparative Conclusion
[a] Conclusions from the Perspective of National Courts
[b] Conclusions from the Arbitrators' View
[c] Conclusions from the Parties' View
[B] Exceptio Litis Pendentis
[1] Appropriateness of the Application of the Lis Pendens Doctrine in the Context of Arbitration
[2] ILA Recommendations on Lis Pendens
[3] Effectiveness of the Plea of Litispendence
[a] German, French and English Law Perspectives
[b] Swiss Law Perspective
[i] With Previous Foreign Court Proceedings
[ii] With Previous Domestic Court Proceedings
[4] Comparative Conclusion
[a] Conclusions from the Arbitrators' View
[b] Conclusions from the Parties' View
[C] Action for Injunctive Relief
[1] Admissibility of Anti-suit Injunctions Issued by Arbitrators
[2] Doctrinal Considerations on Arbitrators' Competence to Issue Anti-suit Injunctions
[3] Effects of Anti-suit Injunctions Issued by Arbitrators
[a] Form of Anti-suit Injunction: Arbitral Award or Procedural Order?
[b] Effectiveness of Anti-suit Orders
[i] Support by National Courts to Enforce an Anti-suit Injunction
[ii] Possible Sanctions to Be Ordered by an Arbitral Tribunal
[iii] Recognition and Enforcement of Anti-suit Injunctions Abroad
[4] Comparative Conclusion
[a] Conclusions from the Perspective of National Courts
[b] Conclusions from the Arbitrators' View
[c] Conclusions from the Parties' View
[D] Exceptio Rei Judicatae
[1] The ILA Recommendations on Res Judicata
[2] Effectiveness of the Exceptio Rei Judicatae
[a] Law Applicable to Determine Res Judicata Effect of Court Judgments
[b] Court Judgments' Preclusive Effect under National Arbitration Laws and Practice
[i] German, French and English Law Perspectives
[ii] Swiss Law Perspective
[3] Res Judicata: A Principle of International Public Policy?
[4] Comparative Conclusion
[a] Conclusions from the Arbitrators' View
[b] Conclusions from the Parties' View
[E] Summary
CHAPTER 4 Final Conclusion
§4.01 EFFECTS OF PARALLEL PROCEEDINGS
[A] Party-Related Concerns
[B] System-Related Concerns
[C] Interim Conclusion
§4.02 EVALUATION AND COMPARISON OF THE JURISDICTIONAL PLEAS AND ACTIONS IN THE CONTEXT OF PARALLEL PROCEEDINGS
[A] Exceptio Arbitri before National Courts and Plea of Lack of Jurisdiction before Arbitral Tribunals
[1] Scope of Review of National Courts/Arbitral Tribunals
[2] Substantive and Procedural Requirements
[3] Res Judicata Effect of Decision on Jurisdiction
[B] Plea of Litispendence before National Courts and Arbitral Tribunals
[C] Applications for Anti-suit/Anti-arbitration Injunctions before National Courts and Applications for Anti-suit Injunctions before Arbitral Tribunals
[D] Actions for Declaratory Relief
[E] Plea of Res Judicata before National Courts and Arbitral Tribunals
[1] International Principle of Res Judicata
[2] Procedural Requirements
[3] Preclusive Effect of Res Judicata
[F] Conclusion on Evaluation and Comparison
§4.03 CONCLUSION IN SCENARIOS
[A] Scenario No 1: Arbitral Proceedings Were Initiated Prior to Court Proceedings
[1] If the National Court Is Located at the Seat of Arbitration
[2] If the National Court Is Located Abroad
[B] Scenario No 2: Court Proceedings Were Initiated Prior to Arbitral Proceedings
[1] If the Seat of the Arbitral Tribunal Is Located in the Same Country as the Court Proceedings
[2] If the Seat of the Arbitral Tribunal Is Located Abroad
[C] Scenario No 3: Final Court Judgment with Subsequent Arbitral Proceedings
[D] Scenario No 4: Final Arbitral Award with Subsequent Court Proceedings
Bibliography
Table of Cases
Table of Materials
Index
Back Cover

Systemvoraussetzungen

Als PDF speichern Als Link merken