Concurrent jurisdiction and its consequences in context of enforcement of interim measures of protection in arbitral proceedings
Journal Title: ADR. Arbitraż i Mediacja - Year 2016, Vol 3, Issue 35
Abstract
The purpose of this article is to analyze the issue of concurrent jurisdiction between a state court and an arbitral tribunal as well as between a state court and an emergency arbitrator (EA) in the perspective of Polish regulation on enforcement of interim measures. The first part of the article reviews the concept of concurrent jurisdiction that arises at two instances. First, between the EA and the arbitral tribunal, given the recent adoption of regulations on EA by various arbitration rules providing for parties an additional mechanism of seeking interim measures before constitution of an arbitral tribunal . The second instance regards the concurrent jurisdiction between the arbitral tribunals and a state courts. The second part of the article focuses on the analysis of the Polish legal framework of the overlapping jurisdiction of national courts and arbitral tribunals/EA on interim measures in aid of arbitral proceedings. The third part of the article further develops the possible coordination mechanism between the arbitral tribunal’s and national courts’ competences to grant interim protection measures, from the Polish perspective. In that aspect the res judicata effect in the area of interim measures of protection is considered, i.e. if the interim relief, that has already been granted (or denied) by one forum, could be reconsidered by subsequent application to a different forum . Moreover, it examines whether the national court could refuse to recognize or enforce interim order issued by arbitral tribunal or EA on the grounds that an order of similar effect has already been granted (or refused) by the national court. Such analysis is also vital in the perspective of examining the effectiveness of novel EA’s procedure, since it is up to the parties to decide upon the forum to seek interim protection . Nevertheless, the parties shall bear in mind that freedom to choose the forum at the initial stage may influence the consecutive outcome, especially if EA’s decisions will be found unenforceable. In that aspect it should be also noted, that while the Polish Code of Civil Procedure does not recognize the institution of EA, both, the legitimacy to order interim relief and applicable enforcement provisions might be only applicable to EA’s orders per analogiam to respective regulations on arbitral tribunal’s competences to decide upon the interim measures. Based on such presumption, the following considerations as to the consequences of concurrent jurisdiction between Polish courts and arbitral tribunals also apply to the prospective relations between EA’s and national court’s orders on provisional measures in aid of arbitral proceedings.
Authors and Affiliations
Dominik Horodyski, Marta Kierska
Keywords
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