Originally from: Towards a Uniform International Arbitration Law?

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I. INTRODUCTION

There exists a growing corpus of arbitral case law that witnesses arbitral tribunals continuing with their proceedings and rendering awards notwithstanding injunctions issued by the courts of the place of arbitration enjoining their proceedings. These cases make for provocative reading. On the theoretical level, they raise fundamental questions as to the legal basis of an international arbitration. On the practical level, they often involve arbitral tribunals using great ingenuity to push their autonomy to the limit. This contribution is divided into two parts. First, I describe two recent cases in which, in varying circumstances, Arbitral Tribunals disregarded injunctions enjoining their proceedings at the place of arbitration, and the methods they used to do so.

Secondly, I make some observations as to when it might be appropriate--and inappropriate--for tribunals to make use of such methods.

II. TWO RECENT CASES

The two cases that I discuss share some common features. They both involved claims brought by foreign investors against state or municipal authorities. They both had their seats in the state party’s own jurisdiction. And they both involved the local court imposing injunctions enjoining the arbitrations proceedings. Finally, in both cases the Arbitral Tribunal chose to ignore the injunction, continued their proceedings and, ultimately, rendered awards.