Lis Pendens in International Arbitration - The Newly Adopted Swiss Approach - SIAR 2007-1
Manuel Arroyo - A member of the Swiss bar and former clerk to the Swiss Federal Supreme Court, Dr. Arroyo holds a Master of International Commercial Arbitration Law degree (LL.M.) from Stockholm University. He is an associate attorney-at-law with Bär & Karrer, Zurich (www.baerkarrer.ch), and reachable at: firstname.lastname@example.org (as from 1 October 2007).
Originally from: Stockholm International Arbitration Review
LIS PENDENS IN INTERNATIONAL ABRITRATION - THE NEWLY ADOPTED SWISS APPROACH
A party to an arbitration agreement forming part of an international commercial contract might decide to initiate proceedings in a court of law, rather than take the dispute to arbitration. The reasons for taking this course of action can be manifold. For instance, a party might circumvent the arbitration agreement because of its (presumably) high chances to prevail on the merits in the relevant court. The party might be aware of this court’s readiness to disregard the arbitration agreement and to dismiss the opponent’s plea of lack of jurisdiction. The court action might also be lodged to avoid the application of the law governing the conduct of the arbitration at the seat of arbitration, because this law (the lex arbitri) does not provide effective court assistance regarding interim measures of protection. Issuing court proceedings might as well be used as a means to press the other party to accept a compromise settlement. The party acting in contravention of the arbitration agreement might, of course, simply intend to delay, obstruct or even derail the arbitration.
Despite the pending court proceedings initiated by one of the disputants, the other party might wish to refer the dispute to arbitration. To this end, the party insisting on the arbitration agreement will submit a pertinent request with the competent court of law.4 Most courts are prepared to grant such a request and refer the parties to arbitration, since the enforcement of the arbitration agreement is an obligation imposed by Article II(3) of the New York Convention on all signatory states.