Court Assistance in Arbitration—Some Observations on the Critical Stand-by Function of the Courts

Abstract

The role of national courts in arbitration is a topic with many facets. In the past, the relationship between the courts and arbitral tribunals has not always been easy. Some judges looked down on arbitration, some arbitration lawyers advocated freeing international arbitration from its links with a national legal system. Today, the relationship has become more pragmatic as lawmakers compete to make their countries attractive arbitration venues. A key feature of these arbitration-friendly jurisdictions is the frequent pro-arbitration bias of their judges. At the same time, lawyers who practice in the field of arbitration have realized that to make arbitration a viable alternative to court litigation, there must be at least some support from national courts. In this new scenario, judges are no longer viewed as competitors, but instead as promoters, of arbitration. They ensure the integrity of the arbitral process by exercising court control within the confines of the applicable arbitration law. Simultaneously, the court safeguards the efficacy of arbitration through various forms of support.

This Article addresses three questions. First, why is court involvement required at all? Second, who do the courts actually support? Third, when do the courts grant assistance? After analyzing these three questions, the Article will consider the future relationship between the courts and arbitration. Will it remain a relatively distant relationship, or will lawmakers reserve a greater role for national courts going forward?