Skip to main content Accessibility help
×
Home
Hostname: page-component-99c86f546-vl2kb Total loading time: 0.312 Render date: 2021-12-02T02:00:47.147Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

Chapter Five - Judicial Assistance for Arbitration

Published online by Cambridge University Press:  05 June 2012

Margaret L. Moses
Affiliation:
Loyola University, Chicago
Get access

Summary

In international commercial arbitration, most of the time parties and arbitrators do not want interference from a court. There are, however, times when the support of a court can prove essential. The primary reason is that courts have resources that are lacking to a tribunal – in particular, coercive powers – that is, the ability to make someone do something. Courts can require performance because they have the ability to impose negative consequences if a person does not perform – in the form of fines, incarceration, or other penalties. Although tribunals have some ability to impose negative consequences on parties, such as drawing an adverse inference if a party does not produce documents, they have no ability to make a party carry out an order, and no coercive powers that can be applied to persons who are not party to the arbitration.

Courts also have an oversight role. Although arbitration is a private system of justice, organized and regulated by the parties in light of the rules and procedures they have chosen, it is still governed by law, and almost always by the arbitration law (lex arbitri) of the seat of the arbitration. Courts expect to retain a level of control to ensure that the private system of justice meets at least minimum standards of fairness – so that arbitration is not a system that is fraudulent, corrupt, or lacking in essential due process.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Park, William W.The Specificity of International Arbitration: The Case for FAA Reform 36 2003
Frédéric, BachandDoes Article 8 of the Model Law Call for Full or Prima Facie Review of the Arbitral Tribunal's Jurisdiction? 22 2006
Lew, Mistelis, Kroll, 2003
2002
Barcelo, John J.Who Decides the Arbitrators’ Jurisdiction? Separability and Competence-Competence in Transnational Perspective 36 2003
Tao, JingzhouVon Wunschheim, ClarisseArticles 16 and 18 of the PRC Arbitration Law: The Great Wall of China for Foreign Arbitration Institutions 23 2007
Herrer Petrus, ChristianSpanish Perspectives on the Doctrines of Kompetenz-Kompetenz and Separability 11 2000
Poznanski, Bernard G.The Nature and Extent of an Arbitrator's Powers in International Commercial Arbitration 4 1987
Tao, JingzhouVon Wunschheim, ClarisseArticles 16 and 18 of the PRC Arbitration Law: The Great Wall of China for Foreign Arbitration Institutions 23 2007
Moser, Michael J.Yuen, PeterThe New CIETAC Arbitration Rules 21 2005
2004
Tan, DanielAnti-Suit Injunctions and the Vexing Problem of Comity 45 2005
Reetz, C. Ryan 2007
2007
2008
2007
2008
Tan, DanielAnti-Suit Injunctions and the Vexing Problem of Comity 45 331 2005
2009 1
Illmer, MartinBrussels I and Arbitration Revisited 75 2011
Radicati di Brozolo, Luca G.Arbitration and the Draft Revised Brussels I Regulation: Seeds of Home Country Control and of Harmonization? 4 2011
Coe, Jack J. 1997
Born, Gary 2009
Garfinkel, Barry H.Miller, Yuval M. 2004
SmitInternational Litigation under the United States Code 65 1026 1965
2008

Send book to Kindle

To send this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Send book to Dropbox

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox.

Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

Available formats
×