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. See also Parallel Proceedings.
The power to stay proceedings has been found to be within the inherent powers of arbitrators.1 International arbitration rules such as those of the ICSID, the UNCITRAL and the ICC2 as well as case law3 recognize that arbitrators have ample procedural powers, which include the power to stay the proceedings where the tribunal has jurisdiction.4 However under ICSID, the parties may not unilaterally suspend the arbitral proceedings.5
The tribunal exercises discretion in granting a stay but it also decides for how long the stay should last.6 Nevertheless, the stay of proceedings is an exceptional remedy7 that should not be employed if it would endanger the rights of the parties including equal treatment, no unreasonable delay and the right to a fair hearing.8
However, tribunals tend to refuse to stay the proceedings:
It is more common for courts to stay proceedings in favour of arbitration, rather than vice versa.16 As such, some tribunals held that staying the arbitration proceedings until the court’s decision is rendered might amount to requiring the exhaustion of local remedies.17 However, a tribunal may stay the arbitral proceedings, for instance to enable the claimant to exercise its right to have recourse to domestic courts,18 or to deal efficiently with an admissibility issue.19
Both the New York Convention20 and the UNCITRAL Model Law21 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.22
Arbitral tribunals have notably refused to stay the arbitral proceedings in the following situations involving parallel court proceedings:
Under Rule 22(2) of the ICSID Arbitration Rules, ICSID tribunals are required to stay the proceedings pending arbitrator disqualification27 This “does not in and of itself have as a consequence that the proceedings are adjusted by the number of days of the suspension,” but the schedule of the proceedings may be adjusted.28
Arbitral tribunals have also decided to stay the proceedings for the following procedural considerations:
Once an award is rendered, the parties may seek its enforcement or its setting aside and these proceedings may be brought in parallel before different jurisdictions. See Enforcement of ICSID awards, Enforcement of non-ICSID awards, Compliance with the award. National courts requested to enforce the award may decide to stay the proceedings pending other courts’ decisions (See further Stay of enforcement of non-ICSID awards) or pending the annulment decision before an ICSID ad hoc Committee (See further Stay of enforcement of ICSID awards).
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.
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.
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.
Reiner, A. and Aschauer, C., Chapter II: ICC Rules, in Schütze, R.A. (ed), Institutional Arbitration: Article-by-Article Commentary, 2013.
Schreuer, C. et al., Article 44: Rules on Procedure, in The ICSID Convention: A Commentary, Cambridge University Press, 2010.
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, U., Reinisch, A. and Wittich, S. (eds.), International Investment Law for the 21st Century – Essays in Honour of Christoph Schreuer, 2009.
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