Arbitration and the Courts

“The topic of arbitration and the courts is… wide in the extreme. Some consider that there is necessarily some tension between these two forms of dispute resolution, criticising courts for what they regard as unwarranted intereference in the arbitral process. But arbitration needs the support of courts, and courts need to support arbitration…

There are many points of detail on the exact line that should be drawn between the powers that should be possessed by arbitrators and those confined to the courts and likely to be disagreement on where that line should be drawn in any given instance. But given the courts pay proper respect to the parties’ agreement to arbitrate rather than litigate, and seek wherever possible to uphold that agreement rather than subvert it, I see no reason why arbitration and the courts should not work together in reasonable harmony”

The Right Honourable Lord Saville in his lecture on “Arbitration & the Courts” at the Chartered Institute of Arbitrators Accelerated Route to Fellowship Workshop, Maxwell Chambers, Singapore, 8 June 2012.

In most jurisdictions, the relationship or interface between arbitration and the courts is far from straightforward. On the one hand, courts look to uphold and apply the basic principle of party autonomy. On the other, legislation and statutory provisions necessarily impose limits on the jurisdiction and powers exercised by arbitral tribunals.  

Followers of this blog who are interested in The Right Honourable Lord Saville’s views on this topic may wish to read his lecture on “Arbitration & the Courts” which he recently delivered at the Chartered Institute of Arbitrators Accelerated Route to Fellowship Workshop in Maxwell Chambers, Singapore.

Lord Saville comments on issues such as party autonomy; the formation and introduction of the English Arbitration Act 1996; the extent to which statutory rules and principles should go; the problems that arise as a result of the interface between arbitration and the courts; whether arbitrators should have the power to order interim orders ex parte, i.e. deliberately without notifying the other party; the tribunal’s power to rule on its own jurisdiction (competenz-competenz); and the increasing trend for arbitration agreements to empower tribunals to determine disputes based on general considerations of justice and fairness, or based on lex mercatoria (i.e. a set of transnational rules and principles), rather than based on the law of any particular country.

About Jonathan Choo

Singapore international arbitration lawyer with a practical approach to dispute resolution, Partner at Olswang Asia.
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