I. Introduction
In the words of Professor Julian D M Lew QC, "National court involvement in international arbitration is a fact of life as prevalent as the weather.1 The relationship between national courts and arbitral process has many facets and has evolved from being treated by national courts as an inferior dispute resolution mechanism,2 to a symbiotic one today.3 This positive change in the national courts outlook and involvement in arbitration can be attributed to the progressive legislation in favour of arbitration pursuant to the adoption of the UNCITRAL Model Law in the national legal systems.4 Some scholars also define this relationship as the one that swings between forced cohabitation and true partnership and also emphasize that the arbitral process relies upon underlying support by courts, which alone have the power to rescue the system, when one party seeks to sabotage it.5 The Principle of Judicial Non- Intervention embodied in Article 5 of the Model Law is the defining feature of this relationship in national arbitration legislations6 that follow the Model Law and is certainly a recognition of the policy of party autonomy underlying the legislation and also a manifestation of the desire to limit and define the court's role in arbitration in order to give effect to that policy.7 The national courts have also given shape and meaning to arbitration in the absence of an effective arbitration framework in jurisdictions considered hostile to arbitrations by way of pro-arbitration judicial pronouncements.8
The essential role of national courts in supporting the arbitral process can be categorized into three distinct stages of interface between the courts and arbitration i.e. the role of the court before the commencement of arbitration; during the arbitration and after the final award. However, whether the court intervention can be construed as support or mere interference would depend upon numerous factors such as timing, manner and degree of such intervention.9
II. The Evolving Contours of the Role of Courts in Arbitration
The seat theory suggests that the juridical place or the seat where the arbitration takes place determines the lex arbitri or the law of the arbitration. This theory is based on the fact that arbitrations exist primarily because they are recognized and permitted by national laws.10 The choice of seat has a significant role in determining the nature and extent of court intervention in international arbitrations due to varying national attitude towards international arbitrations.11 The need for a constructive role of courts in the arbitral process is a fact acknowledged and underscored by even the advocates of delocalized arbitrations12 and scholars of party autonomy alike.13 The parties can resort to court assistances in numerous ways and in different stages. It is noteworthy that this relationship has evolved from being one of subordination to an executive partnership aimed at aiding and facilitating arbitration. The following is a brief of the essential role played by courts today in supporting the arbitral process:
a) Before Arbitration: The intervention of the court may be necessary before the commencement of arbitration for the enforcement of arbitration agreement, the establishment of the tribunal; and challenges to jurisdiction. The national courts must adopt a constructive approach by referring the parties to arbitration by giving effect to the arbitration agreement14 An anti-suit injunction is another device that can be used by national courts to uphold the sanctity of international arbitrations.15 Although, post-West Tankers16 , anti-suit injunctions do not seem to be available in matters covered by Regulation 44/2001 (EC), but they remain a possibility in many other jurisdictions. The national courts also assume great significance in the absence of adequate provisions for the constitution of arbitral tribunal and such circumstances mandate the intervention of national courts in establishing the tribunal.17 In the absence of any agreed rules, the national court will also deal with any challenge to the constitution of the arbitral tribunal based on the tenets of impartiality and independence.
b) During Arbitration: Certain situations may necessitate the arbitral tribunal or the national court to issue various orders, such as to prevent a party from destroying evidence or a request for documents under the control of third parties. This could be in a situation where the arbitral tribunal has not yet been constituted or when the court's coercive powers are needed in order to ensure compliance.18
c) Post Arbitration: Another prominent support by the courts can be seen after the arbitration award has been rendered. An award devoid of court order lacks the necessary force to impose sanctions on the losing party for non-compliance. The national court orders enforcement of the arbitral award, and the same is treated as decree of the court with adverse consequences for non-compliance. In limited circumstances the national courts also have the power of annulling the award.
III. Concluding Remarks
The dominant theme in the debate about the evolving role of courts in arbitral process has been that national courts support for arbitration is equivalent to court non-intervention but that may or may not be so as support and intervention are not necessarily antagonistic. The support for arbitration does postulate particularly at the pre-arbitration stage, the fact that court has to proactively assist in the efficacy of the arbitral process; first, by mandatorily referring parties to arbitration where prima facie an arbitration agreement exists; second, courts are bound to intervene effectively and grant interim measures on being sought by parties. In fact, an added responsibility is cast upon courts to grant interim measures of protection proactively in jurisdictions where arbitral institutions are yet to incorporate the requirements of an Emergency Arbitrator or in places where ad hoc arbitrations dominate the arbitral landscape. Another relevant area of concern is effective management of arbitration litigation caseload before the courts by designating specialized benches to deal with arbitration matters. On a concluding note, it would be apposite to quote Prof. Lew, "despite the autonomous nature of arbitration, it must be recognized that just as no man or woman is an island, so no system of dispute resolution can exist in a vacuum."19
Footnotes
1 Julian D M Lew QC, Does National Court Involvement Undermine the International Arbitration Process?, 24 Am. U. Int'l L. Rev. 489 2008-2009.
2 Czarnikow v Roth Schmidt and Co [1922] 2 478 KB. Lord Justice Scutton observed that the role of courts in arbitration was to "ensure the proper administration of the law by inferior tribunals".
3 William G Bassler, The Symbiotic Relationship Between International Arbitration and National Courts, 7 Disp. Resol. Int'l 101 2013.
4 UNCITRAL Model Law on International Commercial Arbitration, 24 I.L.M. 1302 (1985), with amendments adopted on 7 July 2006. (Hereinafter " Model Law")
5 See, Blackaby, Nigel, Constantine Partasides, Alan Redfern and Martin Hunter, Redfern and Hunter on International Arbitration, 415 (6th ed. 2015); see also, Lew, Julian D. M., Loukas A. Mistelis, and Stefan Kröll, Comparative International Commercial Arbitration, 355-375, The Hague, London: Kluwer Law International, 2003.
6 See e.g., § 1 (c) of the English Arbitration Act, 1996 and § 5 of the Indian Arbitration Act, 1996
7 Sutton, David St. John, Judith Gill, Matthew Gearing, and Francis Russell, Russell On Arbitration. 345-545, 23rd ed. London: Sweet & Maxwell, 2007.
8 See e.g. The Supreme Court of India in a landmark pronouncement hailed as the harbinger of change, restrained an Indian Court from interfering with a foreign-seated arbitration, Bharat Aluminium Company vs. Kaiser Aluminium Technical Services Inc, (2012) 9 SCC 552.
9 See, John Lurie, Court Intervention in Arbitration: Support or Interference?, 76 Arb: The International Journal of Arb., Mediation & Disp. Mgmt. 447 (2010); see also, A. Bucher, Court Intervention in Arbitration, in International Arbitration in the 21st Century: Towards "Judicialisation" and Uniformity? 29 (R. Lillich & C. Brower eds., 1994).
10 Born, Gary. "Selection of Arbitral Seat in International Arbitration." In International Commercial Arbitration, 2nd ed., 2051-2103. Wolters Kluwer, 2014.
11 Giulia Carbone, Interference of the Court of the Seat with International Arbitration, e Symposium, 2012 J. Disp. Resol. (2012), available at: h p://scholarship.law.missouri.edu/jdr/vol2012/iss1/9.
12 J. Paulsson, Delocalisation of International Commercial Arbitration: When and Why it Matters, 32 Int'l & Comp. L.Q. 53, 54 (1983).
13 Julian D M Lew QC, Achieving the Dream: Autonomous Arbitration, 22 Arb. Int'l 179, 181 (2006).
14 This is reflected in New York Convention, Article II and Article 8 of the Model Law.
15 Harsh Hari Haran, Anti- Suit Injunctions Issued by National Courts in Favour of Arbitration: Need for Greater Judicial Restraint, Asian International Arbitration Journal, Kluwer Law International 2015, Volume 11 Issue 2) pp. 153 - 168
16 Allianz SpA and Others v West Tankers Inc. [2009] EUECJ C-185/07
17 Model Law, Art. 11
18 Coppee Levalin NV v Ken-Ren Fertilisers and Chemicals [1994] 2 Llyod's Rep 109 (HL), at 116; see also, Lord Mustill, 'Comments and conclusions', in International Chamber of Commerce (ICC) (ed.) Conservatory Provisional Measures in International Arbitration: 9th Joint Colloquium (ICC, 1993), p. 118
19 Supra note 2
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