| Abstract [eng] |
Master thesis analyzes reasons of parallel litigation and arbitration proceedings and possible ways to avoid them. Despite the fact that countries recognize the principle of lis alibi pendens, which prohibits proceedings like this, parallel court and arbitration proceedings are still often encountered. The parties reaching for the most favorable decision, despite the arbitration decision, often make parallel claims to state courts after an improper arbitration decision. In the majority of cases, there are no sanctions or other preventive measures for initiating parallel proceedings. Arbitrators also cannot prevent such actions because the right to issue anti-suit injunctions is given to them only in few countries. Meanwhile, state courts do not recognize arbitration jurisdiction and revoke the mandates of arbitrators in certain cases although such actions are contrary to international law. One of the reasons of parallel litigation and arbitration proceedings is the inconsistent practice of European Union Court of Justice, related to Brussels I Regulation application to arbitration. In three cases (West tankers, Gazprom and Cartel Damage Claims) it stated three different positions on this issue. The problem of parallel litigation and arbitration should be solved not only in national laws, but most importantly – at the international and European Union levels. According to different opinions, it is time to change the New York Convention. In addition, it is stated that practice of arbitration should be unified by soft law instruments. Also, arbitrators could have the right to issue anti-suit injunctions and not complying with such prohibitions should be ensured by a legal sanction. It is essential to make a clear distinction between arbitration and state court jurisdictions. Even res judicata assurance to arbitrators` awards or the exclusion agreement can help to achieve that goal. Parallel arbitration and court proceedings lead to negative consequences for the parties and state. The legislator, courts and parties have to take action to change this vicious practice. |
