International arbitration must of necessity rely on the courts to uphold and enforce arbitral awards and to support the arbitral process. In words of Professor Jan Paulsson, “the great paradox of arbitration is that it seeks the cooperation of the very public authorities from which it wants to free itself.” (Jan Paulsson, Arbitration in Three Dimensions, LSE Legal Studies Working Paper No. 2/2010 (January 13, 2010)) The courts, not the arbitrators, have to give effect to the arbitral award. Hence, one of the major issues in the law of arbitration continues to be the tension between the courts and the arbitral process: while judicial support is vital to the arbitral process, excessive interve [...]
For many years, the standard of review by French courts of awards rendered in international arbitration proceedings on grounds of violation of international public policy has been controversial. Scholars have debated the relative merits of a “minimalist” as opposed to a “maximalist” approach. In court decisions, the “minimalist” approach prevailed.
In the area of competition law, the “minimalist” standard of review found expression, perhaps most famously, in the 2004 Paris Court of Appeal decision in SA Thales Air Defence v. GIE Euromissile and SA EADS France (1er Ch., sect. C, 18 November 2004) with the requirement that relevant breach of international public policy be “f [...]
The Singapore courts have a well-earned reputation for supporting arbitration proceedings and favouring minimal curial intervention. That reputation has been enhanced by a number of recent decisions in which the courts have either granted stays of court actions pending the resolution of arbitration proceedings or rejected applications for arbitral awards to be set aside, including two recent cases, TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd  SGHC 186 and BLC and others v BLB and another  SGCA 40. By contrast, the recent decision of the Singapore High Court in AKM v AKN and another and other matters  SGHC 148 provides a rare example of the courts gran [...]
In further nod to the non-interventionist and pro-arbitration stance of the Singapore courts, the Singapore Court of Appeal in BLC and ors v. BLB and anor  SGCA 40 (“the BLC decision“) reversed the decision of the High Court to set aside part of an arbitration award (“Award“) on the ground of a breach of natural justice. The court also provided valuable guidance on Articles 33(3) and 34(4) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law“).
The dispute arose out of an unsuccessful joint venture between the parties. The appellants commenced arbitration against the respondents alleging that they had breached several agreements, in particula [...]
In an order dated 28 January 2014 (file number III ZB 40/13), the German Federal Supreme Court (Bundesgerichtshof, the “Court”) clarified that an arbitral award can only be set aside in recognition or enforcement proceedings by a state court in “extremely exceptional cases”, i.e. if an award breaches the fundamental principles of the German legal system in a manifest way.
The Court considered this clarification was necessary because by its wording, the relevant provision of the German arbitration law, Sect. 1059 para. 2 no. 2 b) of the code of civil procedure (Zivilprozessordnung – “ZPO”), does not require such “manifest” breach of the fundamental legal principles. The wording of the prior [...]
Arbitration proceedings sometimes spawn a host of parallel court proceedings. It is not unheard for parties to seek to instrumentalise courts, sometimes with the complicity of the courts themselves, to escape the jurisdiction of an arbitral tribunal. Such conduct may, however, expose parties to liability for breach of the arbitration agreement, as was confirmed by a recent decision of the Swiss Supreme Court (4A_232/2013 of 30 September 2013).
In many cases, parties referring a dispute which is covered by an arbitration agreement to a state court do it for tactical reasons, with the hope of obtaining a more favourable decision from the courts in their home jurisdiction than from a neutra [...]