Title

Parallel proceedings and international commercial arbitration: The International Law Association's recommendations for arbitrators

Date of this Version

5-1-2009

Document Type

Journal Article

Publication Details

Citation only.

Ma, Winnie (Jo-Mei) (2009). Parallel proceedings and international commercial arbitration: The International Law Association's recommendations for arbitrators. Contemporary Asia Arbitration Journal, 2(1), 49-82.

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2009 HERDC submission. FoR code: 1801

© Copyright Contemporary Asia Arbitration Journal, 2009.

Abstract

In 2006 the International Law Association adopted various recommendations to facilitate consistency in the arbitrators' approach to parallel proceedings. The ILA confirms the possibility of parallel judicial and arbitral proceedings notwithstanding the persistent debate on whether the arbitral tribunals or the state courts should have priority in determining arbitral jurisdictions. By widening the definition of parallel proceedings to include related proceedings involving substantially the same parties and issues, the ILA provides different recommendations for different types of parallel proceedings. These recommendations advise arbitrators to consider the interests of arbitral efficiency and the possibility of annulment when deciding whether to exercise or decline their jurisdiction.

Through a critical analysis of the ILA recommendations, this paper explores the debate surrounding the parallelism bewteen arbitration and litigation, the adaptability of the principles governing parallel litigation to arbitration (specifically lis pendens and forum non conveniens), as well as the controversy of whether the principles governing parallel proceedings should pertain to public policy. It concludes that the ILA recommendations appropriately balance the interests of avoiding parallel proceedings with the arbitrators' duties to exercise their jurisdiction and render enforcable awards. Nevertheless, it is hoped that the ILA (and the arbitration community) will further explore the solutions for parallel proceedings other than staying arbitration, as well as the interaction between parallel proceedings, anti-suit injunctions, res judicata and public policy.

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This document has been peer reviewed.