Interference by National Courts - Chapter 8
Jan Paulsson is the Head of the arbitration practice group of Freshfields Bruckhaus Deringer. He is also President of the London Court of International Arbitration and the World Bank Administrative Tribunal. He has acted as counsel or arbitrator in hundreds of international arbitrations, including some of the largest ever. He has conducted cases under the ICC, UNCITRAL, ICSID, LCIA, and AAA Rules, as well as before the International Court of Justice. Mr. Paulsson holds the Ibrahim Shihata Chair as Professor of International Investment Law at the University of Dundee, is a Yorke Distinguished Visiting Fellow at the University of Cambridge, and is a Visiting Professor at the London School of Economics.
Much has been written about judicial interference with arbitral awards, far less about interference with arbitrators. Yet the latter may be of intense and immediate concern to practitioners. What may an arbitral tribunal do, or what should it do, when faced with judicial actions or pronouncements that purport to paralyse its work?
Out of the gloom of a wintry London evening in my fledgling years of practice, I was led wide-eyed – a callow apprentice just out of his twenties – into a deadly trap before a packed audience in an amphitheatre on Russell Square. It was not a sundrenched Andalusian plaza de toros; the decorous spectators did not scream for blood; but the intent was the same. I was to be cut to pieces.
Cajoled by a flattering invitation, I had made the journey from Paris to address an audience which would be interested, or so I was naively led to believe, in views I had expressed in an article. As I descended the stairs of the arena, I knew something was amiss: too big a place, too many people. A distinguished-looking man two generations my senior waited at the podium, bald and courtly, but of a steely sort of manner that did not suggest affinity to compromise – bringing to mind, perhaps, Olivier as the implacable dentist in Marathon Man. I recognised him from newspaper photographs. “Ah,” said the ineffably charming faculty member who was serving as my escort, “allow me to introduce you to your opponent in tonight’s debate.” (Surely none of Albion’s minions has ever used more dulcet tones to announce the fait accompli of perfidy.) “I don’t believe you have met Dr. F.A. Mann.”
My throat suddenly parched, I tried desperately to understand how this calamity had come to pass. Some time before, when studying the possibilities of enforcing an award against the Government of Libya, I had become intrigued by the Götaverken case, which suggested that an international arbitral award rendered in France could be enforced elsewhere (namely Sweden) notwithstanding the possibility that it might be set aside by the French courts. Indeed why not? If an international arbitral tribunal has the authority to render an unappealable award, and if the foundation of that authority is the consent of the parties, what difference should it make – as long as another relevant authority is in a position to verify that their consent has not been vitiated – what the courts in that place might think of the award? Developing this thought, I had written an article entitled “Arbitration Unbound.” It suggested that awards need not be anchored in the legal system of the place where they happened to be rendered, but could have their legitimacy tested by courts which are asked to enforce them, and solely under the legal regime (statutes, jurisprudence and treaties) applicable there. The article had appeared in The International and Comparative Law Quarterly, and that explained the invitation.