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Parallel Proceedings and the Notion of Lis Pendens
 On April 14, Lorraine M. Brennan, Director of Arbitration and ADR for the ICC International Court of Arbitration, spoke on a panel about parallel proceedings at the spring meeting in New York of the American Bar Association’s Section of International Law and Practice. Ms. Brennan focused her remarks on the notion of lis pendens (i.e., two parallel court proceedings where priority is given to the first filed case) and how that doctrine had been applied in international commercial arbitration. She explained that lis pendens was traditionally deemed inapplicable to arbitration, since the effect of a valid arbitration clause was to remove a case from the jurisdiction of the courts.
This traditional view was turned on its head by the Swiss Supreme Court (the Federal Tribunal) in Fomento de Construcciónes y Contratas S.A. v. Colón Container Terminal S.A., Official Court Reporter 127 III 279 (May 14, 2001). In Fomento, the Swiss Supreme Court, using the concept of lis pendens, set aside an arbitral award on jurisdiction, which was rendered while court proceedings were already pending in an action in Panama. This case is significant, particularly in light of the fact that Switzerland is a popular venue for international arbitrations (e.g., in 2003, 73 ICC arbitrations were venued in Switzerland).
The topic of parallel proceedings will be one of the many current issues in international commercial arbitrations discussed at the ICC’s upcoming conference on September 19-21 at the Chatham Bars Inn in Cape Cod, Massachusetts.
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