Originally from American Review of International Arbitration - ARIA

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1. The first draft I saw of the program for today’s discussion contained a
misprint. It read “Arbitration and the Rule of Law” and immediately I panicked.
“What have I let myself in for?” I asked myself, though without waiting for an
answer I began to think that, maybe, it could be interesting to speculate whether
arbitrators are or should be concerned with the wider principles of justice and
human rights and matters of that sort. However, the misunderstanding was
removed, and I am asked to address “Arbitration and the Role of Law” which, as
will appear, I would prefer to paraphrase as “Arbitration and the Role of National
Courts.”

2. One preliminary – all that I or anyone else can say is conditioned by our
personal experience, whether as arbitrators or judges or, as I have been fortunate
to be, as both. Whilst acknowledging this, I shall try to speak of institutions rather
than individuals, and of the relationship between two essentially different
processes of dispute resolution, between arbitration and proceedings in national
courts.

3. I appreciate that the background to any discussion of this topic is a
widespread feeling, or wish, among some practitioners, that international
commercial arbitration (which will be my primary concern) has now achieved
some transnational or independent status which makes it wholly independent both
of national courts and of national systems of law. I am not qualified and I do not
intend to venture into that jurisprudential debate. My object is to describe things
as I see them and I leave it to others – and to you – to decide whether international
arbitration has achieved the total independence that is sometimes claimed for it.

4. So I begin with some basic propositions that may or may not be challenged,
though I hope not. These are:

a. National Courts are the judicial arm of the State – and only the State has
power, through its executive arm, to enforce judgments made by Courts
and awards made by arbitrators against persons within its jurisdiction.
(Note there are limited forms of self-help in the commercial context,
including for example rights of set-off and to exercise liens and to settle
accounts through a third party; and it is probably correct that in the great
majority of commercial arbitrations, certainly those conducted under the
auspices of arbitration institutions, awards are settled voluntarily so the
need for enforcement does not arise.)