Sunday, 13 January 2019

“A court’s only role in an international arbitration is to facilitate the process. It has no business intervening into a private process unless both parties have agreed that it can do so.” Critically discuss.


Court involvement in an international arbitration is a fact of commercial life. In England and Wales such intervention should always be confined to the extent specified in Part I of the Arbitration Act 1996. In particular, sections 42-45 provide examples of the court’s power to interfere with the process. Even though a court might be allowed to intervene, it can only do so to the degree and under the conditions prescribed therein. Moreover, the parties can agree to exclude the power of the court under these provisions altogether, with the exception of section 43 which enables the court to require the attendance of a witness in order to give oral testimony or to produce documents or other material evidence. These provisions are intended to supply the court with tools to facilitate the alternative dispute resolution mechanism selected by the parties.

Nonetheless, a party to arbitration may challenge the award issued by the tribunal in a court of law in accordance with sections 67-69 of the Arbitration Act 1996. While section 69, i.e. appeal on point of law, might be ousted by a contrary agreement of the parties, the other two provisions are mandatory in application. It is, however, to be borne in mind that both parties made themselves subject to the substance of the Arbitration Act 1996 by choosing the law of England and Wales as the curial law of the arbitration proceeding. Therefore, it cannot be said that such an intervention of a court would be contrary to the intention of either party.

Unquestionably, the facilitating role of a court of law in respect of an international arbitration is enshrined into the text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention). Pursuant to Article II, III and V of the New York Convention, court involvement is required as support for the arbitral process in the form of recognition and enforcement of an award, nothing else. Nevertheless, under Article V of the convention a court is provided with a substantive power of intervention. Out of the seven grounds for refusal of recognition and enforcement, two can be raised by the court ex officio, the other five being valid for consideration only if brought up by a party to the arbitration. First, recognition and enforcement may be refused if a court believes the subject matter of the dispute in question not to be arbitrable. Secondly, no recognition or enforcement is possible if such would constitute a breach of public policy. Consequently, a court might intervene in the process despite no agreement of the parties to such effect.

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