43 - Role of State Courts in Controlling Arbitration

Summary

State courts have been instrumental in the success of arbitration as a dispute resolution process, by giving it international enforceability. Whilst parties choose arbitration to avoid dispute resolution in Courts, even the most fervent supporters of arbitration tend to welcome Courts as supporting actors in the process. The support offered by Courts naturally has limits and this this chapter concerns itself with those limits, exploring the main measures adopted by Courts in controlling arbitration.

The chapter will consider the application of Article II of the New York Convention which requires Courts to decline jurisdiction in the presence of a valid arbitration agreement and look at how this applied in practice, including the varying approaches to the Kompetenz Kompetenz principle, the review of arbitral jurisdiction by Courts and the controversial subject of anti-arbitration injunctions. The chapter will also explore Courts’ ability to refuse enforcement of arbitral awards under Article V of the New York Convention . There is a general consensus that this is an area in which a degree of control by Courts is acceptable, though the boundaries are contested.

The chapter will also consider recent developments in international litigation and the impact of these on arbitration.