Pre-Award Enforcement - Chapter 6.3 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
6.3. PRE-AWARD ENFORCEMENT
Most of the problems to be considered under the heading of “preaward” enforcement relate to the recognition and enforcement (by national courts) of the arbitration agreement itself; a related enforcement issue concerns the availability of so-called interim measures, such as injunctive relief, as a (pre-award) judicial adjunct to the arbitral process.1
6.3.1. Contract Formation, Interpretation & Validity
As regards recognition and enforcement of the parties’ agreement to arbitrate, the main idea is not difficult to grasp: if two merchants have actually agreed (exchanged mutual, voluntary promises) to arbitrate – and, by necessary implication, not to litigate – the general freedomof-contract rule will dictate that they are bound by their word.
For this reason, such problems as do arise when it comes to the
enforcement of arbitral agreements are likely to involve issues essentially similar to those we have previously encountered when courts are asked to enforce private agreements to litigate before the national courts of a given jurisdiction.2
In the present context, to determine whether the parties concerned are bound to arbitrate a given dispute, we need to ask whether the relevant rules which govern the contract formation process lead to the conclusion that these particular parties actually have entered (“made”) an arbitration agreement. If we pass that hurdle, we then need to ask whether that agreement is “binding” upon the parties, or whether — by virtue of the applicable rules of “formal” and “substantive” validity — the party who seeks to avoid arbitration has a viable “defense” to enforcement of the arbitration agreement.
The initial question of whether the parties concerned have actually “made” an arbitration agreement may depend on the application of traditional contract formation (“offer and acceptance”) rules. A good illustration is the Lark International case excerpted below.
CHAPTER 6 INTERNATIONAL COMMERCIAL ARBITRATION
6.3 Pre-Award Enforcement6.3.1 Contract Formation, Interpretation & Validity Kahn Lucas Lancaster v. Lark International (1999) Notes, Questions & Commentary Zambia Steel & Building Supplies v James Clark & Eaton Ltd. (1986) Notes, Questions & Commentary McDonnell Douglas Corp. v. Kingdom of Denmark (1985) Notes, Questions & Commentary Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985) Notes, Questions & Commentary 6.3.2 Interim Measures