THE ROLE OF NATIONAL COURTS AT THE THRESHOLD OF ARBITRATION - ARIA - Vol. 28, No. 3
George A. Bermann - Professor of Law and Director of the Center for International Commercial and Investment Arbitration, Columbia Law School.
Originally from American Review of International Arbitration - ARIA
There is a broad consensus that national courts of the arbitral seat have some kind of role to play during the pendency of an arbitration, though the exact contours of that role may differ from jurisdiction to jurisdiction. Similarly, it seems clear that national courts have a role to play on a post-award basis. While jurisdictions may vary as to the extent of control in annulment actions, the New York Convention brings a high degree of consensus over the role of courts in the recognition and enforcement of foreign awards, even though the Convention may receive different interpretations in different countries.
By comparison, much less well-aligned is the role of national courts prior to arbitration, and more particularly in deciding whether, how, and to what extent to refer parties to arbitration in the face of resistance by one of them. And yet, this stage of judicial involvement in international arbitration is a vital one. Unless courts are willing to enforce arbitration agreements, there may be no arbitral proceedings to which national courts may lend assistance and no arbitral awards to be annulled or granted recognition or enforcement.
This all-important early stage in the relationship between courts and arbitral tribunals has simply not received the sustained attention it deserves. This is especially remarkable due to the fact that it is not just the courts of the arbitral situs that may decide whether or not to refer the parties to arbitration. The question whether to refer the parties to arbitration may come before any court, worldwide, and not only before the courts of the arbitral situs. Whenever a plaintiff institutes litigation – anywhere – the defendant may invoke an arbitration agreement as a basis for dismissal of the action in favor of arbitration in the arbitral situs.