Role of National Courts during the Proceedings

1 Coppée Levalin NV v Ken-Ren Fertilisers and Chemicals [1994] 2 Lloyd’s Rep 109 (HL), at 116 per Lord Mustill.

2 See Chapter 2, paragraphs 2.29ff.

3 See, e.g., the changed attitude of the US courts towards the arbitration of antitrust, securities, or patent issues.

4 See Chapter 10.

5 See, e.g., Goldman, The Complementary Role of Judges and Arbitrators, ICC Publication No. 412 (ICC, 1984), p. 259.

6 See the discussion of separability in Chapter 2, paragraphs 2.101ff.

7 One of the largest arbitrated disputes in history was decided under the UNIDROIT Principles of International Commercial Contracts: see Bonell, ‘A “global” arbitration decided on the basis of the UNIDROIT Principles’ (2001) 17 Arb Intl 249. See also Bonell, An International Restatement of Contract Law: The UNIDROIT Principles of International Commercial Contracts (Brill, 2005), pp. 273–274. For a detailed analysis, see Vogenauer and Kleinheisterkamp (eds) Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (Oxford University Press, 2009).

8 See Chapter 10, paragraph 10.69.

9 The competent court is defined in Model Law, Art. 6, as the court or other authority specified by each state as being competent to perform the functions entrusted to it by the Model Law.

10 See Montpelier Reinsurance Ltd v Manufacturers Property & Casualty Ltd [2008] SC (Bda) 27 Com (24 April 2008), at [7]‌:

… Article 11(4) of the Model Law requires the Court to help constitute an arbitration panel wherever it is clear that the agreed appointment procedures have broken down. The Court’s primary statutory duty is to ensure that the parties can resolve their dispute before an independent and impartial arbitral tribunal without delay. This overriding policy consideration trumps deference to the particular contractual procedure which appears to have broken down. …

11 See Progressive Career Academy Pvt. Ltd v FIIT JEE Ltd (2011) 5 RAJ 7 Delhi, at [20]: ‘The UNCITRAL Model Law, in Article 13(3), explicitly enables the party challenging the decision of the Arbitral Tribunal to approach the Court on the subject of bias or impartiality of the Arbitral Tribunal.’

12 PT Tugu Pratama Indonesia v Magma Nusantara Ltd [2003] SGHC 204, at [12]:

The Model Law, when it comes to questions relating to the jurisdiction of the arbitral tribunal, gives a party who is questioning such jurisdiction two opportunities to challenge the jurisdiction. The first is before the appointed arbitral tribunal itself. The second opportunity, which can only be taken after the first challenge before the tribunal has failed in that the tribunal has given a ruling that it has jurisdiction, is an application to the High Court to decide on the matter. This is the right given to parties to an arbitration by Art 16(3) of the Model Law and this is the right that PT Tugu invoked by filing this application.

13 Model Law, Art. 27. For an application of this rule, see, e.g., Jardine Lloyd Thompson Canada Inc. v SJO Catlin [2006] ABCA 18, at [25]:

The parties to the arbitration can craft an arbitration agreement to suit their own purposes but they cannot, without more, exercise powers over third persons. The Legislature has seen fit, however, to empower tribunals to request the court’s assistance in taking evidence. It is common ground, and properly so, that Article 27 can be used to obtain the evidence of third persons at the arbitration hearing. …

14 See Model Law, Arts 34–36.

15 Mustill, ‘Comments and conclusions’, in International Chamber of Commerce (ICC) (ed.) Conservatory Provisional Measures in International Arbitration: 9th Joint Colloquium (ICC, 1993), p. 118.

16 Ibid.

17 New York Convention, Art. II(3), states:

The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

18 Model Law, Art. 11.

19 Ibid., Art. 13(3).

20 Ibid., Art. 16(3).

21 Ibid., Art. 17.

22 UNCITRAL Rules, Art. 26.

23 ICC Arbitration Rules, Art. 28. Similarly, London Court of International Arbitration (LCIA) Rules, Art. 25, refers to ‘interim and conservatory measures’.

24 Swiss Private International Law Act 1987 (Swiss PIL), Ch. 12, s. 183.

25 Indeed, in the case of ICC arbitrations, interim measures cannot be issued by the tribunal until the file has been transmitted to it: see ICC Rules, Art. 28.

26 NAI Rules, Art. 42(f).

27 SCC Rules, Art. 32(4) and Appendix II, Art. 3; ICC Rules, Art. 29(1) and Appendix V, Art. 1(2); SIAC Rules, Art. 26.2, with proceedings governed by Sch. 1; HKIAC Rules, Art. 23(1) and Sch. 4, Art. 1; ICDR Rules, Art. 6; LCIA Rules, Art. 9B.

28 Hong Kong Arbitration Ordinance of 2013, ss 22A and 22B.

29 Model Law, Art. 17(2).

30 See, e.g., Société Sardisud v Société Technip, Paris Cour d’Appel, 1ere Ch. Civ., 25 March 1994, [1994] Rev Arb 391. The Supreme Court of Queensland refused to enforce an interlocutory injunction issued by an Indiana state court on the basis that it was not an ‘arbitral award’ within the meaning of the New York Convention: Resort Condominiums Inc. v Bolwell (1995) XX YBCA 628. See also Hall Steel Co. v Metalloyd Ltd. 492 F.Supp.2d 215, 217 (ED Mich. 2007): ‘Whether enforcement of an arbitration award is sought under the FAA or the New York Convention, the courts are agreed that the award in question must be “final” in order to be eligible for judicial confirmation.’

31 Israel Arbitration Law of 1968, s. 1; Malaysia Arbitration Act 2005, s. 2.