Environmental Engineering Reference
In-Depth Information
2.4.1 Double Litigation
There is no hierarchy of courts on an international level.
350
Thus, two different
arbitration tribunals of a domestic court could deal with the same issue, i.e. double
litigation. This can have several reasons, starting from an unclear arbitration
agreement or a different interpretation up to a deliberate attempt to avoid undesir-
able arbitration institutions. Besides the fact that multiple litigations are costly,
inconsistent verdicts are undesirable.
351
There are two important legal doctrines in the case of multiple litigation, namely
lis pendens
and
res judicata
.
352
Lis pendens
is concerned with several courts
dealing with the same issue at the same time and codifies that all courts must
wait for the verdict of the court, which dealt with the legal matter at first.
353
Res
judicata
deals with subsequent court proceedings, emphasizing that courts are
...
'
(
)
...
bound to (
) recognize and give effect to foreign judgments which determine the
matter in issue before it(
354
Nevertheless, both doctrines are not able to solve
all related problems, as issues like the legality of an arbitration provision would
lead to
res judicata
becoming inapplicable.
355
Another tool to avoid multiple
litigation is an anti-suit injunction, which prevents parties from escaping their
arbitration obligations by initiating a different process.
356
Overall, an investor
and Morocco/ONE should avoid getting different courts involved in the same
issue. Various outcomes are not desirable for a successful long-term cooperation.
...
).
'
2.4.2 Applicable Law
Traditionally, the place of arbitration has determined the applicable law. However,
this has started to change in recent years.
357
Some authors mention that it would be
better not to choose domestic law if takes place in the MENA region.
358
If the
applicable law for a concession is the host state law, there is a risk that the state will
use its sovereignty and interrupt the contractual equilibrium.
359
In question of
recognition and enforcement in particular, it is important to find alternative ways
to the Shari
a.
360
'
350
Shookmann (
2010
), 361 (362).
351
Shookmann (
2010
), 361 (362).
352
Shookmann (
2010
), 361 (363).
353
Shookmann (
2010
), 361 (363); Further requirements, in: Vinuesa (
2005
), 331 (354).
354
Shookmann (
2010
), 361 (363-364).
355
Weiler (
2005
), 516, Shookmann (
2010
), 361 (364).
356
Sattar (
2010
), 51 (53) and (54); Shookmann (
2010
), 361 (364-365).
357
McIlwrath and Savage (
2010
), 24-25 para 1-032.
358
Vogl (
2010
), 32 (34).
359
Herdegen (
2003
), 13 (17).
360
Vogl (
2010
), 32 (34).
