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26 J. Int'l Arb. 675 (2009)
Arbitrators Granting Antisuit Orders: When Should They and What Authority?

handle is hein.kluwer/jia0026 and id is 685 raw text is: Journal of International Arbitration 26(5): 675-700, 2009. © 2009 Kluwer Law International. Printed in 'The Nethedands. Arbitrators Granting Antisuit Orders: When Should They and on What Authority? Rahim MoLoo* Parallel proceedings are common even when an arbitral agreement mandates that all disputes be resolved in one forum. When a party to an arbitration agreement wishes to prevent the other from pursuing a parallel proceeding it inay seek an antisuit remedy, either from the court at the seat of arbitration or from the arbitral tribunal. This article considers when and on what authority an arbitral tribunal should grant an antisuit order. This article argues that an exclusive arbitration agreement, requiring the parties to resolve their disputes through arbitration to the exclusion of any other forum, gives arbitrators the authority to grant an antisuit order to remedy a breach of the arbitration agreement itself It is also argued that an award of damages covering the costs of the parallel litigation may be an appropriate supplementary remedy for the breach of an arbitration agreement, or an appropriate remedy for the breach of an antisuit order already granted. I. INTRODUCTION The presence of an arbitration agreement providing for disputes between two parties to be resolved exclusively by arbitration (an exclusive arbitration agreement) requires, but does not ensure, that all disputes coming within the scope of the arbitration agreement will be submitted solely to arbitration. Parallel proceedings are common even when an arbitral agreement mandates, and judicial economy suggests, that all disputes be resolved in one forum.' Parallel proceedings may occur when a party decides that a forum other than arbitration pursuant to the arbitration agreement will provide an advantage. The party that favors arbitration may then seek to prevent litigation, and to preserve its right to adjudication before the agreed arbitral forum. It is in such situations that the party preferring arbitration may seek an antisuit injunction. In the international arbitration context, parties have traditionally been able to turn to the courts at the seat of the arbitration to obtain an injunction against parallel suits.2 These orders are in personai remedies directed at one or both of the parties to the arbitration.3 However, as a result of the recent European Court ofJustice (ECJ) decision in the West * Special Legal Consultant, International Arbitration Practice,White & Case L.L.P Washington D.C.This arti- cle represents the view of the author and not of the firm.The author would like to thank N.YU. Adjunct Professor Donald F Donovan who provided him with invaluable guidance and input in drafting this article.The author would also like to thank Paul D. Friedland for his comments on earlier drafts of this article. All mistakes are the author's own. For examples of parallel arbitral and court proceedings, see Paramedics Electromedicina Comercial Ltda. v. GE Medical Systems Information Technologies, 369 F3d 645 (2d. Cir. 2004); General Elec. Co. v. Deutz A.G., 270 F3d 144 (3d. Cir. 2001); and West Tankers Inc. v. RAS Riunione Adriatica di Sicurta S.p.A., [20071 JKHL 4. 2 For examples of provisions permitting domestic courts to assist arbitrations by granting anfisuit injunctions as interim measures see UNCITRAL Model Law on International Commercial Arbitration, UN Doc. A/40/17 Uune 21, 1985), art. 9; and English Arbitration Act 1996, s. 44(2)(e), anailable at <www.opsi.gov.uk/acts/actsl996/ ukpgaj19960023 en_1>. Julian Lew, Control (f Jurisdiction by Ityunctions Issued by National Courts, in International Arbitration 2006: Back to Basics, ICCA CONCURSS SERI.S No. 13, 188 (Albert Jan van den Berg ed., 2007). Copyright 2007 by Kluwer Law International. All rights reserved No claims asserted to original government works

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