WHAT YOU WILL LEARN1. THE PROPER DEGREE OF COURT INTERVENTION2. FACTORS DETERMINING THE DEGREE OF COURT INTERVENTION3. INTERIM MEASURES OF PROTECTION4. COURT INTERVENTION IN THE COMPOSITION OFTHE ARBITRAL TRIBUNAL5. SETTING ASIDE THE AWARD6. CASE STUDIES7. FURTHER READINGUNITED NATIONS CONFERENCE ON TRADEAND DEVELOPMENTDispute SettlementInternational Commercial Arbitration5.8 Court MeasuresUNITED NATIONSNew York and Geneva, 2005Dispute SettlementiiN O T EThe Course on Dispute Settlement in International Trade, Investmentand Intellectual Property consists of forty modules.This module has been prepared on the basis of a first draft by Mr. Rodrigo P.Correa Gonzalez at the request of the United Nations Conference on Tradeand Development (UNCTAD). The views and opinions expressed in this moduleare those of the author and not necessarily those of the United Nations, WTO,WIPO, ICSID, UNCITRAL or the Advisory Centre on WTO Law.The designations employed and the presentation of the material do not implyan expression of any opinion whatsoever on the part of the United Nationsconcerning the legal status of any country, territory, city or areas or of itsauthorities, or concerning the delimitations of its frontiers or boundaries. Inquotations from the official documents and the jurisprudence of internationalorganizations and tribunals countries are designated as reported.The United Nations holds copyright to this document. The course is alsoavailable in electronic format on the UNCTAD website (www.unctad.org).Copies may be downloaded free of charge on the understanding that they willbe used for teaching or study and not for a commercial purpose. Appropriateacknowledgement of the source is requested.Copyright © United Nations, 2005All rights reservedUNCTAD/EDM/Misc.232/Add.425.8 Court MeasuresiiiTABLE OF CONTENTSNote iiWhat You Will Learn 11. The proper degree of court intervention 31.1 The proper degree of court intervention 31.2 Test your understanding 42. Factors determining the degree of court intervention 52.1 Determining the relevant jurisdictions 52.2 Factors determining court powers in connection withinternational commercial arbitration 62.3 Maximum and minimum degree of court intervention 62.4 Domestic laws and court practices 92.5 International treaties, multilateral and bilateral 112.6 UNCITRAL Model Law 112.7 Arbitration agreement 122.8 Expansion and exclusion of court powers by agreement 122.9 Test your understanding 143. Interim measures of protection 153.1 Enforcement of measure of protection taken by an arbitraltribunal 153.2 Interim measures of protection taken by courts 173.3 Test your understanding 194. Court intervention in the composition of the arbitral tribunal 214.1 Appointment of arbitrators 214.2 Challenge of arbitrators 244.3 Test your understanding 265. Setting aside the award 275.1 Control of adjudication in court litigation 275.2 Control of adjudication in arbitration 275.3 Appeal to a second level arbitral tribunal 275.4 Control of arbitration at time of enforcement 285.5 Setting aside an award 285.5.1 Proper jurisdiction to set aside 295.5.2 Effects of an award set aside 305.5.3 Staying enforcement while application to set asideis pending 315.5.4 Level of control 325.6 Test your understanding 336. Case studies 356.1 Cases to be studied in groups 356.2 Other case studies 376.3 Mastery test - Yes or No test 40Dispute Settlementiv7. Further reading 417.1 Important websites 417.2 Printed publications 415.8 Court Measures1WHAT YOU WILL LEARNThis module discusses some of the main problems presented by the involvementof state courts in international commercial arbitration. It does not treatenforcement of the award, which is the subject of a separate module (5.7“Recognition and Enforcement of the Award”, P. Sarcevic). In section 1 youwill learn that the intensity of court intervention varies, and that to establishits proper degree the expectations of the parties to the arbitration agreementneed to be taken into consideration. You will then learn in section 2 that thedegree of court intervention depends on a number of factors, among whichthe most relevant are the domestic law of the arbitral situs and the agreementof the parties. International treaty law provides only the framework withinwhich domestic laws and the parties determine the actual degree of courtintervention. Therefore, not much can be said in general on the law thatregulates specific court measures. Accordingly, the next sections point to themain problems you might confront in relation with the most typical courtmeasures. Section 3 takes up interim measures of protection. Section 4discusses court intervention in the appointment and challenge of arbitrators.Finally, section 5 introduces you to the setting aside of the award.5.8 Court Measures31. THE PROPER DEGREE OF COURT INTERVENTIONUpon completion of this section you will have learned that both toolittle and too much court intervention in international commercialarbitration are undesirable. You will also have learned that the idealdegree of court intervention depends not only on theoreticalconsiderations, but also on the expectations of the parties in a specificcase. Therefore, it is a consideration that the parties should ideally payattention to at the negotiation of the agreement to arbitrate.1.1 The proper degree of court interventionBy choosing arbitration, parties expect to exclude courts from both the conductof the proceedings and the adjudication of the case. This expectation caneasily be frustrated by various court measures. A court can block an arbitrationaltogether by enjoining a party from participating therein. It can also disturbarbitration proceedings by interfering with the composition of the arbitraltribunal, by restraining foreign attorneys from representing a party in arbitrationproceedings, by hearing challenges against procedural orders of the arbitrators,or by taking any other measure directed to control the course of the arbitralproceedings. Finally, courts can reverse the final award on appeal or deprive itof most of its legal force by setting it aside. Arbitration only exists in the spaceallowed to it by courts. Too much court intervention simply suffocatesarbitration.Notwithstanding the fact that arbitration exists to the extent that courts retreat,it is also the case that arbitration cannot exist without some degree of courtintervention. At a minimum, court intervention is needed to enforce the arbitralaward when the
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