Chapter 5 focuses on judicial assistance for arbitration and the importance of a court’ oversight role. Courts have resources, such as coercive powers, that tribunals lack. These powers enable courts to enter orders and impose penalties on parties who fail to comply. Additionally, courts play an important oversight role to ensure that arbitration adheres to minimum standards of fairness and due process. The chapter discusses the various ways that parties may seek court assistance, including asking the court to enforce an agreement to arbitrate, compel arbitration or rule on jurisdictional issues. Courts can also provide emergency relief such as orders to maintain the status quo, attach assets, or secure costs to preserve the effectiveness of the arbitration process. Although the extent of judicial review varies among jurisdictions, in most jurisdictions, courts and tribunals have concurrent jurisdiction to grant interim measures. in general, parties may seek provisional measures from a court before the tribunal is constituted, but once the tribunal is in place, they may need the tribunal’s authorization to seek court relief, or may only seek court relief in exceptional cases.

Arbitrators derive their jurisdiction from the agreement of the parties. The underlying contractual basis of their jurisdiction and the supervisory powers of the courts over arbitrator’s jurisdictions raises several issues which are examined in this chapter.

The first part of the paper briefly examines the principle of competence-competence and its ramifications on various matters, such as who has, or should have, priority to rule on jurisdiction (the courts or the tribunals) and what should be the appropriate level of scrutiny by the supervising courts.

The second part examines which issues are to be regarded as ‘jurisdictional’. A broader or narrower understanding of the term will reflect on the scope of the courts’ review.

The third part examines who and when is to rule on jurisdiction and the various scenarios that can be triggered depending on how the jurisdictional review is initiated. Prior to the constitution of the tribunal the matter can only be brought before the court. Once the tribunal is constituted, the issue of jurisdiction can be brought both before the court and before the tribunal, and the court may be called upon to review tribunal’s findings. Post-award jurisdictional review can be triggered both in the set-aside and recognition proceedings. Issues of particular importance in this regard are standard of review to be used by the courts and whether the courts should be entrusted to review negative jurisdictional rulings of the tribunals.

The final part of this chapter discusses anti-suit and anti-arbitration injunctions and their perceived pros and cons, form and legal basis.

The negative effect doctrine discussed in this chapter deals with when, if ever, a state court will stay proceedings before it and refer disputants to the arbitrators for them to decide, in the first instance, whether an arbitration agreement between the parties (i) exists, (ii) is valid, and (iii) has a scope that covers the dispute in question. An affirmative answer on each of these points would mean that the dispute’s merits must be decided in arbitration. Thus, the negative effect issue concerns whether a decision on these three jurisdiction sub-issues should be decided with finality by the court itself at the outset, or, in the first instance, by the arbitrators themselves, with possible court review on jurisdiction delayed until later.The chapter discusses the dramatically different approaches to the negative effect issue followed in several leading arbitral jurisdictions: France, Germany, the U.S., Switzerland, the U.K., and Canada (Quebec).It also discusses the underlying policy issues at stake in the different national approaches to the doctrine.In conclusion the chapter offer’s the author’s view of a preferred approach to the negative effect issue.

The occurrence of parallel proceedings involving the same dispute and the same parties in international commercial arbitration is a well known phenomenon. In particular, this scenario arises when two identical proceedings regarding jurisdictional matters and/or the merits of the case are pending at the same time before a state court and a foreign arbitral tribunal, or before two arbitral tribunals seated in different jurisdictions. In order to prevent the undesirable effects of the proliferation of proceedings (namely the risk of lengthy and costly proceedings and the risk of irreconcilable decisions), different tools can be deployed. The analysis of the techniques most frequently employed to address this problem shows that many of the procedural mechanisms available are ill-suited, given the specificity of international commercial arbitration. Hence, the undisputed emergence of international arbitration as a reliable and effective alternative to court litigation and the judicial policy of minimal interference with the arbitration process suggest that a pro-arbitration approach in dealing with the lis pendens issue should be embraced. As regards the situation of lis alibi pendens before a state court and a foreign arbitral tribunal, this entails the prioritarization of arbitral tribunals over national courts as long as a dispute covered by a prima facie existent arbitration agreement is brought before an arbitral tribunal. Conversely, in a scenario in which proceedings are already pending before a national court, it is suggested that a (foreign) arbitral tribunal should be entitled to stay proceedings in order to avoid protracted and expensive parallel litigation, although it is certainly not to bound to do so, at least in the absence of a joint request by the parties or in presence of a clear waiver of the arbitration agreement. A comparable flexibility should also guide the solution to be adopted in parallel arbitral proceedings, where the tribunal second seized should be free to act according to case management considerations.

The (positive) competence-competence principle is one of the most fundamental principles of international arbitration. It provides the arbitral tribunal with the competence to decide on its own competence. These positive effects relating to the jurisdiction and the competence of the arbitral tribunal are nearly universally recognized, contrary to the consequences following from it for the jurisdiction of the state courts. Despite the positive effect’s broad recognition, its justification raises difficult questions which touch the very basics of arbitration. The entry discusses the historic and conceptual background of the principle as well as some of the controversial questions as to its scope and the form, timing and requirements of an arbitral tribunal’s jurisdictional decision, setting out the approaches adopted in the various jurisdictions.

Consists of a historical analysis of international commercial arbitration in the United States. It traces the origins of international commercial arbitration to the arbitration agreements that follow the 1687 enactment of the Statute of Fines and Penalties in England, and also references the Act of 1854 in England that vested courts with the discretion to stay a legal proceeding in deference to arbitration agreements. This chapter also documents early U.S. common law authority that was antagonistic to arbitration generally. This introduction in abbreviated manner reviews landmark Supreme Court decisions that most descriptively represent the development of international arbitration and arbitration generally as standing in pari materia with judicial proceedings.

The second chapter consists of an analysis of shifting paradigms based on critical exploration of the United States Supreme Court’s strictures in Wilko v. Swan, Scherk v. Alberto-Culver, and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. While this particular story has been told and retold, rarely has it been historically contextualized.