Abstrakt

When making an application for interim measures to the state court, an arbitration exception -- based on a valid arbitration clause -- cannot be raised (art. 1166 § 1 PCPC). The conflict cannot be avoided by the application of the principle of lis pendens. There is no legal basis to the stay of proceedings concerning identical application for interim measures, when the court is informed that the proceedings in this matter are pending before the arbitral tribunal. The principle of res iudicata does not apply to interim orders or awards, since they are not final. Nevertheless, it should be stated, that the previous decision on interim measures cannot be ignored. If interim measures are granted, there is no need for the second order regarding this matter. Moreover, the danger of conflicting decisions can be resolved due to the principle of binding effect of the previous decision regarding the same issue (art. 358 or art. 332 § 1 in connection with art. 361 PCPC). This principle should not be confused with the principle of res iudicata (art. 366 PCPC) or binding effect of final award (art. 365 PCPC). The second application for interim measures cannot be rejected, it should be considered, and dismissed, unless there is a change of circumstances. When two decisions were issued and the second one cannot be appealed or changed, the principle lex posterior derogat legi priori should be applied.