NCJ Number
98777
Date Published
1984
Length
29 pages
Annotation
This discussion of court intervention in international arbitration indicates that the drafting of an arbitration clause has considerable impact upon the degree of judicial involvement in the enforcement of arbitration agreements, control over the proceedings, and control over transnational awards.
Abstract
If the parties have been attentive in the arbitration clause to matters relating to the formal and substantive validity of the arbitration agreement, recourse to the judiciary should be confined within narrow limits. The arbitration clause should focus on the scope of consent to arbitration and its continued effectiveness as well as the severability of the arbitration clause from the main contract to which it relates. The modern view of judicial control over arbitral proceedings is that the effectiveness of transnational arbitration depends on the courts' refraining from interfering with the powers of arbitrators and assisting arbitrators or the parties when necessary. Regarding the enforcement of the arbitration agreement, the courts generally will not permit a party to renege on its obligations by diverting a dispute from arbitral to judicial adjudication or to frustrate arbitral proceedings by not cooperating. Concern judicial control over transnational arbitration awards, modern treaty, statutory, and judicial developments all contribute to facilitating the recognition and enforcement of transnational awards by limiting the grounds upon which recognizing courts can deny effect to such awards. Specific cases are cited to demonstrate the intervention and nonintervention of courts in transnational arbitration. A total of 111 footnotes are provided.