Home > Law Journals > JDR > Vol. 2012 > Iss. 1 (2012)
This article looks upon two fundamental questions: (1) whether arbitrators should comply with a local court's order aimed at suspending or interrupting the running of arbitral proceedings, and (2) what type of remedies should a party receive when courts unjustly interfere with their right to arbitrate. This article will explore these two questions in four parts. Part II focuses on the interference with international commercial arbitration by the court at the place of the arbitration. It does so by taking into account ICC cases, some relevant national judgments, and deals with the solutions offered by Articles 8 and 16 of the UNCITRAL Model Law. Part Ill deals with the recent trend of investors bringing claims before ICSID or NAFTA tribunals alleging that courts' interference amount to a denial of justice and/or a violation of the Fair and Equitable Treatment standard. Part IV draws some conclusions on the basis of the literature and jurisprudence examined. Although rejecting the idea of arbitration as "floating in the transnational firmament, unconnected with any municipal system of law,"" it is hard to deny that in choosing to refer their dispute to an international arbitration, the parties have consensually waived resorting to the national legal system. Therefore, if local courts abuse their supervisory powers to the extent that they materially impede the arbitration, the original intentions of the parties (or at least of the party who has not provoked the intervention of the courts) will be thwarted.
Interference of the Court of the Seat with International Arbitration, The Symposium,
2012 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2012/iss1/9