Lecture notes
Lecture notes International Arbitration
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- Brunel University (BU)
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American University International Law ReviewVolume 24 | Issue 3 Article 3
2009
Does National Court Involvement Undermine the
International Arbitration Processes?
Julian D M Lew
Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr
Part of the International Law Commons
Recommended Citation
Lew, Julian D M. "Does National Court Involvement Undermine the International Arbitration Processes?" American University
International Law Review 24, no. 3 (2009): 489-537.
This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American
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, DOES NATIONAL COURT INVOLVEMENT
UNDERMINE THE INTERNATIONAL
ARBITRATION PROCESS? *
PROFESSOR JULIAN D M LEW QC**
INTRODUCTION ...........................................................................490
I. FUNDAMENTAL CHARACTERISTICS OF
INTERNATIONAL ARBITRATION.......................................490
II. FORMS OF COURT INVOLVEMENT ....................................493
III. THE STAGES AT WHICH COURTS CAN AND DO
BECOME INVOLVED.............................................................496
A. PRIOR TO THE ESTABLISHMENT OF A TRIBUNAL ....................496
B. AT THE COMMENCEMENT OF THE ARBITRATION ....................497
C. DURING THE ARBITRATION PROCESS .....................................497
D. DURING THE ENFORCEMENT STAGE ......................................498
IV. INJUNCTIONS INVOLVING ARBITRATION .....................498
A. ANTI-ARBITRATION INJUNCTIONS ..........................................499
1. England............................................................................500
2. The United States.............................................................506
3. Switzerland ......................................................................507
4. France ..............................................................................508
5. Sweden.............................................................................509
6. Should National Courts Grant Anti-Arbitration
Injunctions? ...................................................................509
V. ANTI-SUIT INJUNCTIONS......................................................514
A. SHOULD ARBITRATION CLAUSES BE TREATED
DIFFERENTLY FROM JURISDICTION CLAUSES? .....................519
B. PRO-ARBITRATION ORDERS ...................................................526
* This Article is based on Professor Lew’s remarks in the Thelen Reid
Lecture at American University, Washington College of Law (Oct. 15, 2007).
** Arbitrator and Barrister, 20 Essex Street, Head of School of International
Arbitration, Centre for Commercial Law Studies, Queen Mary, University of
London. I am grateful to Dr Harris Bor, Barrister, SJ Berwin LLP, London, for his
assistance with the preparation of this paper.
489
,490 AM. U. INT’L L. REV. [24:489
1. When Should Courts Compel Parties to Arbitrate?.........526
2. How Far Should Such Orders Reach: To Include Third
Parties Allegedly Covered by the Arbitration
Agreement?....................................................................531
3. What Other Options are There to Compel Arbitration
Other than by Injunction? ..............................................534
CONCLUSIONS .............................................................................535
INTRODUCTION
National court involvement in international arbitration is a fact of
life as prevalent as the weather. National courts become involved in
arbitration for a whole host of reasons, but do so primarily because
national laws are permissive and parties invite or encourage them to
do so. 1 But what is the nature of such involvement? Does it
complement or impede the arbitration process? Is there a place for
any court involvement at all in the system referred to as international
arbitration?
The aim of this Article is to discuss these issues. First, this Article
will discuss the fundamental characteristics of international
arbitration as it co-exists with national courts. Next, this Article will
survey the different stages of national court involvement in the
international arbitration process and the forms of court involvement.
Further, this Article will analyze court awarded injunctions that act
to support of the international arbitration process. Lastly, this Article
will conclude with an assessment of whether court involvement is
helpful to the international arbitration process.
I. FUNDAMENTAL CHARACTERISTICS OF
INTERNATIONAL ARBITRATION
There are four essential characteristics of international arbitration.
First, international arbitration has an autonomous character and
exists in a domain independent of and separate from national laws
1. See Richard Allan Horning, Interim Measures of Protection; Security for
Claims and Costs; and Commentary on the WIPO Emergency Relief Rules (in
Toto): Article 46, 9 AM. REV. INT’L ARB. 155, 156 (1998) (supporting the use of
arbitration by contracting parties because of the simplicity, lower cost, stability,
and binding nature of the process).
, 2009] NATIONAL COURT INVOLVEMENT 491
and jurisdictions. 2 Arbitration does not, as some have suggested,
operate solely on the basis of contract, or from the relinquishment of
jurisdictional control by states, or even a combination of these two
things. Instead, arbitration is an autonomous system with a life of its
own that inhabits a domain wholly outside any system of national
law. 3 Access to the autonomous domain of international arbitration is
obtained through contract and the relinquishment of rights by
national courts. However, once entered, and subject to controls as
discussed later, arbitration exists in its own rarefied domain.
Secondly, by their choice of arbitration parties have expressed a
positive selection of an alternative dispute resolution system. 4 This is
so even when national law has been chosen as the substantive law of
the contract or the curial law of the arbitration. More specifically, the
parties have intentionally and expressly rejected the jurisdiction of
those courts. Parties make this choice for various reasons, such as
the national courts’ being unacceptable, unsuitable, or inappropriate
in the circumstances of the case. 5 Regardless of their reasons, the
parties have agreed the courts should take a back seat. The question
is how far back the courts should be and when the courts should
come forward.
Third, except in rare circumstances, the arbitral tribunal has
primary responsibility for resolving all matters relating to the
settlement of the dispute between the parties. 6 Through the principle
of “separability,” the agreement to arbitrate can survive even where
2. See generally Julian D M Lew QC, Achieving the Dream: Autonomous
Arbitration? in ARBITRATION INSIGHTS, 455, 455-85 (Julian D.M. Lew & Loukas
A. Mistelis eds., 2007) [hereinafter Lew, Achieving the Dream] (discussing the
“dream” of international arbitration as its existence in its own private non-national
sphere, and the “nightmare” as anti-arbitration injunctions, which are designed to
protect the nationals of the issuing court).
3. See Lew, supra note 2, at 457.
4. See Horning, supra note 1, at 156.
5. See id. at 156-57 (listing reasons why parties choose arbitration over
national courts, which include the avoidance of arbitrary jury decisions, the ability
to command the attention of knowledgeable decision makers, and the final and
binding character of any decision).
6. Cf. Stephen M. Ferguson, Interim Measures of Protection in International
Commercial Arbitration: Problems, Proposed Solutions, and Anticipated Results,
CURRENTS: INT’L TRADE L.J., Winter 2003, at 55, 59 (stating that the support for
ordering ex parte interim measures is derived from the fact that resolving disputes
is a necessary component of arbitration).
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