Abstrakt

I. Introduction  Parallel proceedings before two different fora, between the same parties and the same cause of action constitute an inconvenient situation which needs to be addressed. On the national level – as far as two domestic court’s proceedings are concerned – certain rules adopt the principle of lis pendens and prevent costly parallel proceedings and protect parties from oppressive litigation tactics. Although the principle of lis pendens varies depending on the country, in principle it provides that the court first seized will be competent to decide the case, unless it finds that it has no jurisdiction.  In international arbitration such principle does not exist. Instead, in order to avoid concurrent court and arbitration proceedings, the exclusive jurisdiction of an arbitral tribunal (which should be respected universally) entitles it to decide on all issues including its own jurisdiction. In essence this should suffice. Usually as a consequence of dilatory, oppressive tactics of a respondent in international arbitral proceedings – an arbitral panel may have to face lis pendens situations1. In that case, a respondent in arbitration brings an action before a national court other than at the seat of the arbitration, claiming the invalidity of an arbitration agreement. Accordingly it deliberately chooses a foreign forum in order to frustrate its previous contractual bargain.  Eliminating the likelihood of parallel court and arbitral proceedings became an issue of utmost importance within the European Union. As unwanted consequences of a number of European Court of Justice decisions, frustrating arbitration proceedings became as possible as never before. That is why in latest revision of the Brussels I Regulation, the European Commission introduced a new mechanism tailored at eliminating the concurrent proceedings in the context of international arbitration.  The study aims to establish whether the principle of lis pendens arbitralis might emerge as a consequence of the Brussels I Regulation revision and whether such principle is actually needed.  The research will be divided into four parts. The first one will be devoted to explain legal paradigms that underline the principle of the exclusive jurisdiction of the arbitral tribunal (hence severability of arbitration agreement and the doctrine of competence-competence)135which essentially should prevent any parallel proceedings from occurring in the first place. Second and third part will introduce different national approaches with respect to the interface between the court and arbitration proceedings. As each legal system provides different legal features (e.g. anti-suit injunction, negative competence-competence, declaratory relief) facilitating interaction between fora, they will be analyzed subsequently. Final part aims to introduce the development of the Brussels Regime2 which might call for elaborated mechanism of preventing concurrent proceedings as a consequence of the ECJ case law.  Use of comparative research is particularly important. In the first chapters it shows that the underlying principles are recognized universally both on international and national level. In the two following chapter it is reasonable to confront different legal features introduced in different legal systems. In the fourth and final chapter European and national approach has to be contrasted.  The analysis of the national legislation will be primarily based upon the English, French and German arbitration legal orders with some auxiliary use of the law from different jurisdiction. Consequently, from international perspective, the New York Convention (1958), Geneva Convention (1961) and Model Law (1985 and its update on 2006) will be analyzed. From the European point of view, the Brussels Regime should be studied. Additionally in order to assess the development of the Brussels Regime, the ECJ case law will be examined.  Author is aware of the fact that some of the terms used have in principle different meaning. Notwithstanding for the purpose of this research expressions like arbitration agreement and arbitration clause, or competence-competence and Kompetenz-Kompetenz and few others will be used interchangeably.  The research takes into account recent developments in area of arbitration law meaning: amended French Code of Civil Procedure, the review of the New York Convention offered by A. van den Berg as well as the European Commission proposal on reviewing Brussels I Regulation.II. Establishing Arbitral Jurisdiction: principles reinforcing its exclusive character  Exclusive jurisdiction of arbitral tribunals is a legal paradigm established on the basis of two principles of international arbitration: severability of the arbitration agreement and the rule of competence-competence, which will be discussed respectively. In essence the doctrine of separability allows an arbitral tribunal to decide on the merits, whereas competence-competence doctrine empowers a tribunal to decide on its own jurisdiction3. When read together they allow an arbitral tribunal to decide on all disputes arising out136of the contract. Consequently – at least in theory – a conflict between two legal fora should not be possible. Nevertheless when the very existence of an arbitral agreement is in question, the arbitral mandate is not that evident. Considering that “any private mechanism of dispute resolution – whenever it falls on the spectrum running from consensual settlement all the way through binding arbitration – depends in the last resort on public sanctions and the public monopoly of force”4, it seems that a clash of power is inevitable. Therefore it is necessary to establish to what extent jurisdiction of the tribunal is in fact exclusive.1. Autonomous character of the arbitration agreement5 and its consequences  It has been recognized that an arbitration agreement fulfills a number of functions of a jurisdictional character: it shows consent of the parties to resolve their disputes in arbitration, it establishes the jurisdiction and authority of arbitral tribunals and finally it is the basic source of the power of the arbitrators6.  Notwithstanding that such agreement usually stands amongst other contractual provisions it has been accepted to treat it individually as an autonomous contract. The concept of separability (or severability) of an arbitration clause allows it to survive the termination of the contract. In general, even joint termination of a contractual relationship by all parties is not extended to an arbitration agreement7. It rather retains its validity for all the disputes arising out of the terminated contract8. The logic behind an agreement to arbitrate is to establish a legal obligation for the parties to arbitrate9 and – as pointed out by M. Hunter – “Indeed, it would be entirely self-defeating if a breach of contract or a claim that the contract was voidable was sufficient to terminate the arbitration clause as well; this is one of the situations in which the arbitration clause is most needed”10. It also implies that an autonomous arbitration clause will be valid even if the underlying contract is void11 or even argued as non-existent12. Therefore the arbitration agreement is not automatically burdened with defects of the main contract. Nonetheless it is also stressed that “in reality, the arbitration clause remains closely connected to the parties’ main contract and has an interrelated, supportive function. While the arbitration agreement should generally be «separated» from the underlying contract for various purposes, it is never entirely or necessarily «autonomous» or «independent» from the underlying agreement”13 hence on a case-by-case an analysis arbitration clause might follow the destiny of the main contract14.137  Accordingly independence of an arbitration agreement certainly facilitates its functioning. It is not however the main reason for an arbitral tribunal to have an exclusive power over the dispute15.a. Direct consequences of the autonomy of the arbitration agreement  Two direct consequences of the legal autonomy of arbitral agreements are to be mentioned. Firstly, an agreement to arbitrate is not affected by the status of the main contract; secondly it might be governed by a different law than the lex contractus16. Nonetheless, in order to retain sufficient focus on the researched topic, attention will be given to the indirect effect of the independence of the arbitration clause rather the direct one17.b. Indirect consequence(s) of the autonomy of the arbitration agreement  As offered by E. Gaillard “with any firmly established rule that is well formulated, the principle of the autonomy of arbitration agreements has often been relied upon as the basis for developments which go far beyond its initial raison d’etre. These developments include the «competence-competence» rule”18. As the principle of competence-competence will be discussed below (under the section on the principle of competence-competence), due attention will now be paid on the correlation between those two concepts.  Treating the arbitration agreement as a separate contract is designed for convenience as a solution in a case when the main contract is invalid or...