Volume 25 (2007) / Issue 2
What are the powers of arbitral tribunals when confronted with a dispute that is already pending before a court? Inversely, what standards should the courts apply when dealing with a lawsuit that may be subject to arbitration? What rules apply to lis alibi pendens in international and domestic arbitration? It is generally admitted that the arbitral tribunal should have the priority, but not the exclusivity, of deciding on the validity of the arbitration agreement (kompetenz-kompetenz). Authorities are diverging, however, whether the courts should in all circumstances give priority to the arbitrators and are not entitled to examine the existence of the arbitration agreement, i.e., the so-called negative effect of the principle of kompetenz-kompetenz, or whether in certain cases, the courts should nevertheless be able to assess the existence and scope of the arbitration agreement. Jean-François Poudret revisits critically the case law of the Swiss Supreme Court, the new article 186(1bis) of the Swiss PIL Act, the Recommendations of the International Law Association as well as a recent paper by Emmanuel Gaillard.
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