'Lis Pendens and Dépeçage in International Arbitration – An Anomalous Paradox or Orthodox Reality?'
Summary of research
The growing complexity and intricacy of transnational disputes and arbitral proceedings has brought about an imminent threat and an enigma that has truly become a global paradox, that is: parallel and overlapping proceedings between the same parties and regarding the same or related disputes. Such parallelism risks inconsistencies and possibly irreconcilable awards, manifest breach of due process, destabilizing the value system norms of the arbitration system, encouraging recourse to public policy, and undesirably escalating fees and cost.
The aforementioned complexity and paradox are greatly exacerbated when the substantive and procedural aspects of the dispute(s) are governed by different leges causae and leges arbitri in a clear manifestation of conceptual ‘dépeçage’. This irrefragably augments the risks of: (a) having inconsistent/conflicting awards, (b) the vacation of arbitral awards by national courts that adopt divergent approaches, (c) the refusal of recognition and/or enforcement of arbitral awards, and (d) the creation of limping arbitral awards.
There is a dire need to prevent the transmogrification of international arbitration to a process profoundly tainted with irregularities, and accordingly, a novel theoretical framework for re-conceptualizing modern international arbitration is required.
Due process mandates efficiency and aversion of anomalies, abuse and inconsistencies. Overlapping and artificially engineered parallel proceedings, encompassing different choice-of-law clauses, can seriously undermine the very existence of the arbitral process and arbitration system, which are founded on due process, consent, legitimate expectations, certainty and predictability, finality, control of dilatory tactic, and supremacy of justice.
One shall endeavour to re-think and re-visit existing legal paradigms and classical perceptions of established legal rules and practices in order to introduce a new realism regarding the role of the rule of law in societies; de lege ferenda – what the law ought to be, as opposed to what the law is, lex lata.
That said, the researcher aims to reach certain findings and positive outcomes to eliminate or, at least, parallelize such a perilous problem.