Conflicts of Procedure between Courts and Arbitral Tribunals with Particular Reference to the Right of Access to Court
|01 September 2011
|01 September 2011
International commercial arbitration has always been an area where different legal traditions tended towards similarities in regard to their regulatory policies, legal processes and judicial theory. Courts play a vital supporting role in relation to arbitration agreements and awards. Nonetheless, unnecessary conflicts between arbitration and judicial adjudication occur often. Tension develops between fairness, arbitral autonomy and party autonomy; or when the fairness implicit in the balance between adjudicatory fora competes with the fairness associated with a constitutional rights perspective that guards access to court. Commercial confidence is marred whenever this tension remains unresolved. Jurisdictions that have tackled the issues associated with the priority and exclusivity in conflicts of jurisdiction between courts and arbitral tribunals along the model provisions found in the UNCITRAL Model Law on International Commercial Arbitration
The United Nations Commission on International Trade Law (UNCITRAL) adopted the 1985 Model Law on International Commercial Arbitration on 21 June 1985. United Nations documents A/40/17, annex I. Significant amendments were effected in 2006 (UNCITRAL's report on the work of its 39th session (UN Doc. A/61/17 Annex I)).seem to be doing fine. In the European Union, various efforts have been made to improve the interface between curial and extra-curial proceedings. However, none of the reform proposals promise lasting solutions. In several other jurisdictions such as South Africa, various interests have fallen into disharmony in this area of the law. McLachlan has envisioned
Whereas party autonomy and arbitral autonomy encourage stability in dispute resolution, court intervention could lead to delays, tactical manoeuvring and inefficiency. There is much to gain from an agreement lending arbitrators the final authority to rule on their competence, the chance to do so first, and excluding a review of the arbitral award on the merits. Nonetheless, legal systems may pursue policies of judicial centralisation of the review of arbitral awards.
The quest for balance between arbitral autonomy and the powers of national courts gives rise to both practical and conceptual difficulties. Moreover, while the litigants may have chosen in favour of the enforcement of arbitral authority, at the crucial junctures (that is, referral or application for interim relief, enforcement of the arbitral award or setting aside the award), this autonomy may be denied or endorsed by the court in question. Both party autonomy and arbitral autonomy may be denied in order to safeguard procedural due process and a basic respect on the part of the arbitrator for the interests of those involved.
N. Blackaby and C. Partasides,
The simple idea of maximising court support and curbing court interference that stifles – or disrupts – arbitration is intended to strike a balance between the interests.
Explanatory Note on the 1985 Model Law on International Commercial Arbitration as amended in 2006; C. Reymond, ‘The
With reference to public interest and basic fairness, see for example
Examples include article 16 of the UNCITRAL Model Law on International Commercial Arbitration (which represents a near complete regulation of the tension between protecting arbitration from obstruction and preserving the right to have access to court in legitimate disputes over arbitrator jurisdiction), and section 1 of the English Arbitration Act 1996 (which provides that the court shall not intervene except as provided for in Part I). See P. Shine, ‘Establishing Jurisdiction in Commercial Disputes: Arbitral Autonomy and the Principle of
Compare judicial policy in the US and France (discussed in the text accompanying n. 54–60). C. Pamboukis, ‘On Arbitrability: The Arbitrator as a Problem Solver’, in L. A. Mistelis and S. L. Brekoulakis (eds),
This article provides a comparative assessment of the balance of power on the part of national courts and arbitral tribunals with reference to recent developments in the EU and South Africa. This analysis takes due notice of the position and status of
W. W. Park, ‘The Arbitrator's Jurisdiction to Determine Jurisdiction’, 13
International Law Association, Toronto Conference (June 2006),
The key role of the doctrine of
For example, J. J. Barceló III, ‘Who Decides the Arbitrators’ Jurisdiction? Separability and Competence-Competence in Transnational Perspective’, 36
F. G. De Cossío, ‘The
Attention is drawn in Part II to the contexts in which the doctrine of
The EU responded well to the need to develop a regional system by which to regulate jurisdiction and the free circulation of judgments. It has been less successful with regard to introducing a European Convention that would cater for arbitration.
European Convention providing a Uniform Law on Arbitration, done at Strasbourg, 20 January 1966,
EU Regulation 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters
Concluded 10 June 1958; 9 USCA §§ 201–8.
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