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Ms Alessandra Maria Corona Henriques

L.L.M. - Harvard Law School

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Stay of Proceedings

I. Definition

1.

A stay of arbitral proceedings takes place when the arbitral tribunal decides to temporarily suspend an arbitration, usually because there are other proceedings, either at a court or another arbitration, that are relevant to settle the dispute.

II. Arbitrator's power to stay proceedings

2.

The power to stay proceedings has been found to be within the inherent powers of arbitrators.1 Arbitral institutions2 and case law3 recognize that arbitrators have ample procedural powers, which include the power to stay the proceedings.

III. Relation to forum non conveniens

3.

In some cases, arbitrators may decide to stay proceedings because another forum is more appropriate to decide the dispute4 or if their decision is necessary to resolve the matter at hand.5

IV. Relation with court proceedings

4.

It is more common for courts to stay proceedings in favour of arbitration, rather than vice versa.6 Both the New York Convention7 and the UNCITRAL Model Law8 provide that if the matter before the court is covered by a valid arbitration agreement, the court should refer the matter to arbitration, and stay the proceedings when requested by one of the parties. Depending on the State’s arbitration laws, courts may be obliged to stay the proceedings until an arbitration begins or the arbitral award is rendered.9

Bibliography

Binder, P., Analytical Commentary to the UNCITRAL Arbitration Rules, Sweet & Maxwell, 2013.

Brown, C., A Common Law of International Adjudication, 2007.

Caron, D.D. and Caplan, L.M., The UNCITRAL Arbitration Rules: A Commentary, Oxford University Press, 2nd ed. 2012.

Chan, D., Stay of proceedings in favour of arbitration under the court’s inherent jurisdiction, Kluwer Arbitration Blog, 15 August 2012.

Convention on the Recognition and Enforcement of Foreign Arbitral Awards, The United Nations Commission on International Trade Law (UNCITRAL), 6 June 1958.

Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, International Centre for Settlement of Investment Disputes (ICSID), 18 March 1965.

ICC Arbitration Rules, 1 March 2017.

Paulsson, J. and Petrochilos, G., UNCITRAL Arbitration, Wolters Kluwer, 2018.

Fry, J., Greenberg, S. and Mazza, F., The Secretariat’s Guide To ICC Arbitration: A Practical Commentary on the 2012 ICC Rules of Arbitration, International Chamber of Commerce, 2012.

Khvalei, V. and Ponniya, N., Staying Court Proceedings— Compelling Arbitration, International Arbitration Checklists, 3rd ed., 2016.

Luttrell, S. and Devendra, I., Inherent Jurisdiction and Implied Power to Stay Proceedings in Aid of Arbitration: “A Nice Question”, Journal of International Arbitration, Vol. 32, Issue 5, 2015.

Paparinskis, M., Inherent Powers of ICSID Tribunals: Broad and Rightly So, Volume 5, Investment Treaty Arbitration and International Law, 2012.

Reiner, A. and Aschauer, C., Chapter II: ICC Rules, in Schütze, R.A. (ed), Institutional Arbitration: Article-by-Article Commentary, 2013.

ICSID, Rules of Procedure for Arbitration Proceedings, 2006.

Schreuer, C., Article 44: Rules on Procedure, in The ICSID Convention: A Commentary, Cambridge University Press, 2010.

UNCITRAL Arbitration Rules, As amended in 2010, 2011.

UNCITRAL Model Law on International Commercial Arbitration 1985, with Amendments as Adopted in 2006, 2008.

Verbist, H., Schäfer, E. and Imhoos, C., ICC Arbitration Practice, Wolters Kluwer, 2015.

Webster, T.H., Handbook of UNCITRAL Arbitration, Sweet & Maxwell, 2019.

Webster, T. H. and Bühler, M. W., Handbook of ICC Arbitration: Commentary and Materials, Sweet & Maxwell, 2018.

Weiss, F., Inherent Powers of National and International Courts: The Practice of the Iran-U.S. Claims Tribunal, in Binder, C., Kriebaum, A. and Reinisch, A. and Wittich, S. (eds.), International Investment Law for the 21st Century – Essays in Honour of Christoph Schreuer, 2009.

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