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Arbitration and the Courts

15-1 By entering into an arbitration agreement parties express their intention that all
disputes between them be referred to and settled by arbitration. This choice at the same time
manifests a decision against dispute resolution by the competent state courts. With the
acceptance of party autonomy the level of court intervention has significantly diminished
over the years. The general trend is towards limiting court intervention to those cases where
it is either necessary to support the arbitration process or required by public policy

15-2 Judicial and effectively state respect for the parties' agreement to arbitrate means that
no court proceedings on the merits of the dispute can be brought before courts and that all
disputes covered by that agreement are referred to arbitration. There are, however, some
situations where court intervention and assistance is needed. For example, courts may be
asked to assist with the appointment or removal of arbitrators, and the collection of evidence.
They may also be asked to order supporting or protective measures where the arbitrators lack
coercive power. Ultimately, state courts have to give effect to and enforce the arbitration
award if it is not complied with voluntarily.

15-3 In addition to their supportive function, courts may also intervene to guarantee that the
minimum requirements of procedural fairness are fulfilled and exercise a supervisory
function. The courts may remove an arbitrator for his lack of impartiality or may annul an
award based on unfair procedures.

15-4 This chapter describes the (1) general approach that has developed and which now
prevails on court intervention, and (2) specific areas of court involvement during the
arbitration process.(1)

1. General Approach to Court Involvement

15-5 In most countries the attitude taken towards arbitration as a voluntary dispute
resolution mechanism and to court intervention in arbitration has changed considerably over
the last century. Courts have moved from strong scepticism resulting in extensive judicial
intervention in the arbitration process or the non-enforcement of arbitration agreements to a
position in favour of arbitration giving priority to party autonomy and eschewing

15-6 English law provides a good example of this evolution. Early English arbitration law
developed devices to make arbitration agreements enforceable which received statutory
recognition in the Arbitration Act 1698.(2)In return, however, the courts retained a large
degree of control over the arbitration process. This is evidenced in particular by the notorious
special case stated procedure which was introduced by Section 4 1854 Common Law
Procedure Act and was retained and developed in the Arbitration Act 1950. It vested the
court with the power to require referral of any question of law it thought ought to be decided
by it.(3) Essentially it allowed for an effective appeal on any relevant point of law. This case
stated procedure could not be excluded.(4)

15-7 In light of strong international criticism the special case procedure was significantly
curtailed by the Arbitration Act 1979.(5) In particular parties were allowed to exclude the
procedure in advance or, in cases concerning shipping, commodity and insurance, after the
dispute had arisen. As a consequence any agreement of the parties on institutional rules,
which contained a waiver of the right to judicial recourse, such as the ICC or LCIA rules, led
to an exclusion of the case stated procedure.(6)

15-8 The Arbitration Act 1979 provided further that when the parties were silent on the
question of appeal, as is the case in the vast majority of cases, an appeal was only possible
with permission of the court. The House of Lords in Pioneer Shipping v BTP Tioxide (The
“Nema”)(7) and Antaios Compania Naviera SA v Salen Rederierna AB (The
“Antaios”)(8) set down strict guidelines as to the exercise of this discretion which clearly
show the change in approach to court intervention. The judges distinguished between one-off
cases and other cases which involve regularly recurring legal problems. In one-off cases
court permission would only be granted if it could be shown that the arbitrators were
“obviously wrong” while for regularly recurring issues it was sufficient if the decision by the
arbitrator was “probably wrong”.(9) In dealing with section 3 of the 1979 Act Lord Diplock
held that it

… gives effect to a reversal of public policy in relation to arbitration as it had been

expounded more than half a century before in Czarnikow v Roth, Schmidt &
Co. "357"Exclusion agreements, which oust the statutory jurisdiction of the High
Court to supervise the way in which arbitrators apply the law in reaching their
decision in individual cases are recognized as being no longer contrary to public

15-9 The House of Lords decision was based on a clear “parliamentary intention to give
effect to the turn of the tide in favour of the finality in arbitral awards” when deciding
between the two conflicting principles of finality and meticulous legal accuracy.(11)

15-10 The Arbitration Act 1996 finally completely abolished the special case stated
procedure. It allows appeal on questions of English law in very limited circumstances.
Furthermore, powers which were originally reserved for the courts, for example in the area
of the administration of evidence, were transferred to the arbitration tribunal.(12) As a result
under English law “courts nowadays generally only intervene in order to support rather than
displace the arbitral process.”(13)

15-11 Although the special case procedure was primarily an English peculiarity a
comparable development towards lesser court intervention has taken place in most other
countries. Supervisory court intervention has the potential of seriously disrupting the
arbitration process and impeding the parties' quest for a speedy dispute resolution. It is a
common feature of recent arbitration legislation to limit the scope for court intervention. The
effect has been that tribunals are given wider powers by statute and can be given further
powers by the parties. The traditional authority of the courts has been limited in some cases
completely excluded or at least made dependent on agreement by the parties.

15-12 This approach is illustrated by Article 5 Model Law which states that “no court shall
intervene except where so provided in this Law.”(14) This general rule "358"excluding court
intervention where not explicitly permitted is also followed in national arbitration laws
which are not based on the Model Law.(15)

15-13 Court intervention is normally possible only in two situations: where expressly
provided for in the arbitration law, or where the issue is not covered by the law. In the latter
situation court intervention may be possible as a default mechanism for the support of the
arbitration proceedings. For example, the Model Law addresses the issue of interim measures
by the tribunal without providing for a power of the courts to enforce the measures granted.
Nevertheless it is widely accepted that courts can enforce interim measures since the
regulation in the Model Law only extends to the granting of those measures while their
enforcement is not regulated.(16) In some cases it may be difficult to determine whether a
particular issue is regulated by the arbitration law. On the whole the approach will increase
certainty for the parties, since once an issue is governed by the relevant arbitration law it is
no longer possible to rely on general residual powers claimed by the courts.(17)

15-14 In addition to limiting court intervention, the laws often include features with the
intention of minimising the disruption that may be caused by a judicial intervention. Modern
laws provide a very limited or no right of appeal against court decisions rendered in the
context of arbitration. Under the Model Law(18) decisions relating to the appointment or
challenge of arbitrators or concerning the arbitrator's decision on his jurisdiction cannot be
appealed.(19) These restrictions prevent court proceedings in support of the arbitration
becoming a case on its own.

15-15 Another feature to limit court intervention is to, give jurisdiction to a higher court in
the legal system in respect of issues relating to arbitration rather than a court of first
instance.(20) Furthermore, arbitration laws often provide that the arbitration proceedings
may be commenced or continued while an action in court is pending. According to Article
13(3) Model Law, for example, a challenge of an arbitrator in the courts does not prevent the
arbitration tribunal from continuing the proceedings and rendering an award.(21) This is to
prevent court interventions being used solely as a delaying tactic.

15-16 In most arbitration laws court intervention is at least to a certain extent dependent on
the connection a case has with that particular country. Under the Model Law and a number of
other modern laws the granting of supportive measures, such as appointment of arbitrators,
as well as the exercise of a supervisory task, such as the annulment of awards, is dependent
on the place of arbitration being located in that country.(22) Other relevant factors for court
intervention can be nationality of the parties, the law governing the arbitration and domicile
or place of business of the parties.(23)

15-17 A tendency to make court intervention dependent on the existing connections with the
country can also be found in case law. Judges have frequently seen the strength of the
connections with a country as an important factor in the exercise of their discretion to
intervene.(24) The fewer the connections with the forum the lesser the inclination of a
national court to intervene. For example, what interest has an English court to intervene in an
arbitration in "360"France between a German and a Swiss party when the dispute has no
connection to England?(25)

15-18 The previous Belgian law went a step further: it restricted Belgian interest to where a
Belgian party or someone carrying on business in Belgium was involved. Specifically, it
expressly excluded the possibility for an action for annulment of an award rendered in
Belgium if neither the parties nor the dispute had any connection to Belgium.(26) Today the
place of arbitration is considered generally to be a sufficient connecting factor.

15-19 Another factor which influences the exercise of discretion in court intervention is the
type of measures requested. Are the measures sought available under most laws or are they
based more on the character and peculiarities of local procedural law? In the latter case
courts have been more reluctant to make use of their powers as this may have conflicted with
the parties expectations.(27) When selecting the place of arbitration few parties actually look
to the particularities of local law. The choice is mainly based on considerations such as
practical convenience and neutrality of the venue, its acceptability to both parties and issues
of enforceability. Only where it is clear that the parties have actually made an informed
choice based on the particularities of the local law, should the local court make use of its
powers of intervention. In all other cases courts should eschew becoming involved in
accordance with the general practice of arbitration and the legitimate expectations of the

15-20 There are many stages, throughout the arbitration process, for parties to seek the
intervention and support of the court. At each stage, the court must take account of party
autonomy, the help or supervision sought and the mandatory law of the jurisdiction. Above
all, the court must remember its intervention should not violate the parties' expressed
intention to submit their disputes to arbitration.

2. Specific Areas of Court Involvements

2.1. Proceedings Concerning Validity of the Arbitration Agreement

15-21 A party may initiate court proceedings in an attempt to avoid arbitration proceedings
either because it prefers or believes the courts will be to its advantage, or because it
genuinely challenges the validity of the arbitration agreement. A crucial element in ensuring
that arbitration proceedings can take place without court intervention is the obligation for
courts not to hear actions on the merits. In all states party to the New York Convention there
is a mandatory obligation, under public international law, for national courts to stay their
proceedings and refer matters to the arbitration system selected by the parties.(28)

15-22 Differences exist concerning as to what extent the courts can at the pre-award stage
review the existence of a valid arbitration agreement. The greatest limitations on court
intervention at that stage is in the French law. There the arbitrator has a right of first decision
and any court review is deferred to the post award stage. The majority of arbitration laws as
well as the international conventions, however, do not go as far but allow at least a review of
the prima facie existence of an arbitration agreement or even a complete review.

15-23 In addition some arbitration laws provide for a specific action to determine
preliminary points of jurisdiction.(29) The narrow limits under which these rights exist
prevent important issues from being decided by the courts contrary to the parties' agreement.
The advantages of having an early and binding decision on the arbitrator's jurisdiction by a
competent court counterbalance the intrusion on the competence of the arbitrator.

2.2. Anti-suit Injunctions

15-24 Closely related to the issue of jurisdiction are “anti-suit injunctions”. These are
national court orders used, especially in common law countries, either to protect the
jurisdiction of the arbitration tribunal or to prevent the tribunal from assuming jurisdiction.
Through such an injunction, operating in personam against the party to the action, a party
can be ordered not to pursue court proceedings initiated in breach of an arbitration
agreement.(30) By corollary, a party may be ordered not to take any further steps in
arbitration if the court has decided that the arbitration agreement is invalid or
ineffective.(31) Both types of orders are found in practice but they are granted only in
limited circumstances.

a. Injunctions restraining arbitration proceedings

15-25 Injunctions restraining the further conduct of arbitration proceedings are in general
only granted where it is absolutely clear that the arbitration proceedings have been wrongly
brought.(32) By contrast, these measures should not be granted where it is simply more
convenient to hear the case in court, for example, because third parties can be joined or the
tribunal does not have the power to dispose of all issues in dispute. In such cases the parties
are bound by their arbitration agreement and a court should not interfere with it.(33)

15-26 These injunctions can be directed against the parties alone. They may, however, also
be directed against the arbitrators, if the court granting the injunction has personal
jurisdiction over them. They are then enjoined from hearing the case.(34) Parties or
arbitrators continuing the proceedings despite an "363"award rendered in these proceedings
will probably be unenforceable at least in the country where the injunction was granted.

15-27 In particular, Indian and Pakistani parties have been successful in convincing their
courts to grant injunctions restraining arbitration proceedings.(35) These injunctions were
not only granted in order to restrain arbitration proceedings but also to order a party not to
continue enforcement of an award. That was the case in ONGC v Western where a tribunal
having its seat in London had issued an award in favour of a US party. Since the arbitrators
applied Indian law the Indian party started proceedings in India to have the award set aside
and applied for an injunction ordering the American party not to enforce the award in the US.
The Indian Supreme Court granted the injunction.(36)

b. Injunctions restraining parallel court proceedings

15-28 More frequent are injunctions intended to prevent or restrain proceedings in courts in
breach of an arbitration agreement. As their aim is to enforce an agreement between the
parties, the courts are more willing to grant these measures. Such injunctions are typical
where there are concurrent court proceedings in another country. These proceedings could
frustrate the ongoing arbitration: they absorb resources in time and expense and lead to re-
litigating the same issue. A judgment rendered may prevent the enforcement of the final
award of the tribunal, if its findings are irreconcilable with the award.

15-29 The position taken on this issue by the English Courts can be found in the judgment
of the Court of Appeal in Aggeliki Charis Compania Maritima v Pagnan (The Angelic
Grace). In explaining the general approach to be adopted the court held that

where an injunction is sought to restrain a party from proceeding in a foreign Court in

breach of an arbitration agreement governed by English law, the English Courts feel
no diffidence in granting the injunction, provided that it is sought promptly and
before the foreign proceedings are too far advanced. … The justification for the grant
of the injunction in either case is without it the plaintiff will be deprived of its
contractual rights in a situation in which damages are manifestly an inadequate
remedy. The jurisdiction is, of course, discretionary and is not exercised as a matter
of course …(37)

15-30 The court made it clear that, unlike in other types of anti-suit injunctions based on
considerations of forum non conveniens, it would not use its discretion sparingly. The foreign
action is contrary to an agreement of the parties and would deprive the applicant of its
contractual right to arbitrate.(38) Where an English court has jurisdiction over the defendant
the requirements for an anti-suit injunction are therefore that a valid arbitration agreement
exists, an application is made without undue delay(39), the foreign action is not well
advanced and there is no other good reason why the injunction should not be granted.(40)

15-31 A similar approach prevails in Australia(41) while in the US a slightly stricter test for
antisuit injunctions against foreign proceedings exists. It is set out in BHP Petroleum v
Baer where the court compelled the defendant to arbitrate in "365"Texas and issued an
injunction restraining him from pursuing proceedings in Ecuador. The court referred to the
test applicable for antisuit-injunctions in support of court proceedings and considered it to be
relevant also for injunctions in support of arbitration. It held

that an injunction barring a foreign action was proper if the simultaneous prosecution
of an action would result in ‘inequitable hardship’ and ‘tend to frustrate and delay the
speedy and efficient determination of the cause.’ …. The focus of the inquiry is
whether there exists a need to prevent vexatious or oppressive litigation. In light of
the strong federal policy favouring arbitration, the court finds that plaintiffs would be
irreparably harmed if Baer were permitted to continue litigating in Ecuador while the
same claims were being arbitrated. Therefore, the court grants plaintiffs' application
for injunction.(42) [References omitted.]

15-32 The relevant standard to be met under the US approach is “irreparable harm”.
Furthermore in deciding whether to grant the requested injunction the stage of the foreign
proceedings is an issue, as well as the expectation of the parties to litigate in that particular
court. While there is little case law on such international cases courts have been more willing
to issue injunctions restraining proceedings in state court.(43)

15-33 Enforcement of anti-suit injunctions may pose problems. Although supposed to

work in personam, foreign courts, in particular in civil law countries, have considered anti-
suit injunctions to be an unacceptable intrusion on their jurisdiction.(44) Unless the
addressee of the injunction has assets in the issuing state which could be attached for any
breach of the court's order, enforcement is often not possible.(45) Within the EU there is a
prevailing view that antisuit injunction "366"should not be granted to restrain court
proceedings within another Member State.(46)

2.3. The Role of the Court before the Tribunal is Established

15-34 It is not uncommon that once a dispute has arisen immediate protective action is
required and it would be commercially damaging to wait until the arbitration tribunal has
been constituted. Evidence may have to be preserved(47) or rights of a party protected from
irreparable harm. In such cases “if the parties and the arbitral process need protection there is
nowhere to turn but the national Court.”(48) Since the arbitration tribunal is not yet in
existence the parties cannot turn to it to request those measures. It is not possible to turn to
the agreed arbitration institution for such measures.(49)
15-35 As a consequence most national laws and the Model Law, provide that the courts have
the right to grant interim relief and that an application for such relief is compatible with the
existence of an arbitration agreement. In exercising their discretion under those rules courts
should take account of the non-availability of other forms of interim relief. National court
intervention in such cases is not disruptive, but rather beneficial to the arbitration
proceedings.(50) Therefore, as long as the requested measures cannot be postponed and do
not pre-empt the decision on the merits, courts should not feel restricted by the arbitration
agreement to exercise their powers. Where the measures granted would effectively determine
the dispute a less interventionist approach should be adopted.

2.4. Proceedings in relation to the Composition of the Arbitration Tribunal

15-36 Courts have an important role to play in the composition of the tribunal, either as a
fall back appointing authority or during challenge procedures. The former is the case if the
parties cannot agree on the arbitrator or where the prescribed appointment mechanism does
not work. The Model Law(51) and most national laws provide that in such a situation the
arbitrators are to be appointed by the courts.(52) In such situations court intervention is
necessary to make the agreement to arbitrate workable.

15-37 The use of the court's supervisory powers in connection with challenges to arbitrators
is also important even though it will seriously disrupt the arbitration proceedings. This is
obvious in the case of a successful challenge when it may be necessary to review all issues
from the beginning. However, even an unsuccessful challenge will have a disruptive effect as
it may bring the proceedings on the merits to a halt and hamper the relationship between the
parties and the tribunal. To discourage parties from using challenge procedures as a means of
delaying the arbitration proceedings courts are generally reluctant to make use of their
powers to remove an arbitrator.(53)

2.5. Court Involvement during the Arbitration Proceedings

15-38 During the arbitration proceedings issues may arise where the tribunal lacks the
necessary coercive powers to conduct the arbitration in an appropriate way, protect the rights
of the parties or preserve existing evidence. Therefore the Model Law, as well as many
national laws, provide for several types of court intervention. These include granting
assistance in the taking of evidence, interim relief, extension of time limits, or determining
preliminary points of law.

a. Governing principles

15-39 Most laws give the courts considerable discretion on whether to grant the supportive
measures requested. In exercising that discretion different considerations apply depending on
the type and nature of the measure requested. "368"Despite differences in national laws it is
possible to classify the different forms of court intervention to one of three categories:

• the ordering of purely procedural steps which

cannot be ordered or enforced by the arbitrators;
• orders for maintaining the status quo; and
• measures to ensure that the award has the
intended practical effect and can be

15-40 The first type of measures does not involve any encroachment on the merits of the
dispute. It just supplements missing powers of the tribunal. By contrast measures of the
second type, such as money or asset blocking orders, may call for an assessment of the claim.
As this involves some trespassing on the arbitrator's territory, courts are and should be more
hesitant to grant such orders. An even stronger potential for such encroachment is involved
in measures of the third type such as interlocutory injunctions. To order such measures the

court will often find it necessary to consider whether a particular state of affairs
which the arbitrators are being asked to create or declare (for example whether one
party is obliged to do a certain act or abstain from doing another) is likely in the event
to be created or declared by the award, in order to decide whether it is just to order
holding relief in the shape of an injunction; and the intrusion will of course be even
greater where the interim measure takes the shape of an order that the party shall
perform in advance of an award the very obligation the existence of which the
arbitrators are in the course of deciding.(55) [references omitted]

15-41 Orders of the third type, i.e. to ensure the award has its intended effect, should
therefore generally be reserved for the tribunal. This is especially the case if the measure is
more a national peculiarity rather than an internationally available remedy in arbitration.

b. Assistance in the taking of evidence

15-42 The consensual nature of arbitration and the resulting lack of coercive powers
sometimes limits the tribunal's options in taking evidence. In general it cannot force
witnesses to appear at a hearing or answer questions, or order third parties to produce
documents. For those and comparable measures arbitration tribunals therefore have to rely on
court support.

15-43 This power is set out in Article 27 Model Law which provides

The arbitral tribunal or a party with the approval of the arbitral tribunal may request
from a competent court of this State assistance in taking evidence. The court may
execute the request within its competence and according to its rules on taking

15-44 Since such assistance in taking evidence clearly belongs to the first category of
supportive measures, courts have in general been willing to make use of their powers in aid
of arbitration.(57) The threat of unwanted intrusion into the arbitration is minimised by the
fact that the request for support in general must come from the tribunal itself or at least with
its approval.

c. Interim relief

15-45 In general the right of the courts to grant interim relief is not limited to the pre-
constitution phase but also extends to the time after the tribunal has been constituted. There
are a number of measures which an arbitration tribunal cannot take but which are from time
to time necessary to make the arbitration agreement effective. The most obvious are
attachments and injunctions affecting third parties, which can normally be granted
effectively only by state courts.

15-46 However, courts are hesitant to use their powers, especially where the interim relief
requested is identical to the relief requested in the arbitration.(58) The courts are very
reluctant to effectively remove the matter from the arbitrators, contrary to the parties'
agreement. This applies in particular where the provisional measures requested can also be
granted by the arbitration tribunal.(59)"370"The situation may, however, be different in the
countries where interim relief by courts exists as a matter of right and is not at the courts

d. Extension of time limits

15-47 By choosing particular rules parties often agree on time limits for starting the
arbitration, the appointment of arbitrators or the rendering of an award. If the required action
has not been taken within the agreed time limit the whole arbitration agreement may become
ineffective and there will be no forum in which the parties' disputes can be determined. To
overcome this situation the question arises whether the national courts have the power to
vary or grant an extension of those time limits.

15-48 Most laws, including the Model Law, do not give such powers to the courts. Quite the
opposite: Article 5 Model Law and comparable rules provide that courts can only intervene
in an arbitration to the extent provided for in the law. Unless expressly allowed, no variations
or extensions of time can be granted by state courts.

15-49 By contrast, some arbitration laws provide for the extension of time limits by the
courts. For example under English law the courts can grant extensions of time for the
commencement of proceedings(61), the time during which an award has to be made(62) and
all other time limits agreed by the parties.(63) While the first power belongs to the
mandatory provisions of the Arbitration Act, the parties can exclude the other two by
agreement. These powers do not extend to statutory time limits outside the Arbitration Act
and an application can only be made after any available arbitration process for obtaining an
extension has been exhausted.

15-50 To limit the possible interference with the arbitration the granting of extensions under
all provisions is subject to restrictive conditions. For example, time limits for
commencement of arbitration proceedings can only be extended by the English courts if they
are satisfied

(a) that the circumstances are such as were outside

the reasonable contemplation of the parties
when they agreed the provision in question, and
that it would be just to extend the time, or
(b) that the conduct of one party makes it unjust to
hold the other party to the strict terms of the
provision in question.(64)

15-51 The extension of all other time limits is dependent on the court considering that
substantial injustice would otherwise be done.(65) This is also the case if the application is
made by the tribunal, but in such circumstances, there is less need for a restrictive
interpretation of the provision. If the application comes from the tribunal any extension
granted by the courts has, in effect, the character of filling a gap or extending the arbitration
tribunal's powers.

15-52 Under French law, the courts can extend the period of time during which the
arbitrators have to render their award before their mandate expires.(66) In particular in ad
hoc arbitration the power is often used.(67)The six month period provided for in French law
is very short and the parties can often not agree on an extension, so that recourse to the courts
is necessary. The application has to be made before the time has expired but the decision
may be rendered afterwards.(68) The courts have also used their powers in relation to
international arbitrations having their seats in France even when they were not submitted to
French law.(69)

e. Preliminary determination of question of law

15-53 In general it is for the arbitration tribunal to determine all questions of fact and law.
Some cases will turn on questions of law which are of general interest. This may be the case
when the question arises frequently or involves issues of public policy. Alternatively, the
question of law may involve issues of public policy and an appeal is likely whatever the
tribunal decides. In such cases there may be an advantage in seeking a court ruling at an
early stage.

15-54 The English Arbitration Act provides a possibility either for the parties or the
arbitration tribunal to refer that question of law for a preliminary decision to the courts. A
court does not need to accept the case unless it is satisfied that the question of law
“substantially affects the rights of one or more of the parties” and that there is likely to be a
substantial saving in costs by the court determining the question. Furthermore, if the
substantive dispute is governed by a law other than English law(70), or if the parties agree
that the award can be made without reasons, then there is no right to ask the English courts to
determine the question of law.(71)

15-55 The Model Law and most laws do not contain comparable provisions.(72) Given the
principle of party autonomy the parties should, however, be allowed to agree on having
preliminary questions of law decided by the competent state court. Whether the same applies
also for referral by the arbitration tribunal without the parties' consent is an open question.
Any such referral of a preliminary question of law to the state courts defeats the parties'
intention to have their disputes solely decided by the arbitration tribunal. A referral by the
arbitration tribunal may streamline the arbitration process and result in an enforceable award
where a question of law which may otherwise give rise to an appeal has already been decided
at a preliminary stage.

2.6. The Role of the Court Involvement after the Award has been rendered: Challenge,
Appeals and Enforcement

15-56 After the award has been rendered the courts may become involved when a party
challenges or lodges an appeal against the award, or seeks to enforce it.(73) The courts in
which this relief is sought will invariably be different. A challenge or appeal will be in the
courts of the country of the place of arbitration. Enforcement proceedings will be either
where the respondent is resident or has its principal place of business, or where it has money
or other assets against which the award can be enforced.

15-57 The increasingly favourable climate for arbitration has led to arbitration awards being
considered final and binding and to a pro-enforcement policy over the last twenty years.
Challenge proceedings are generally based on an excess of jurisdiction of the tribunal or
some procedural irregularity which has prevented a fair procedure. In some countries the
previously existing possibilities to appeal against awards on points of law have largely been
abolished.(74) Generally grounds for appeal are interpreted in a restrictive manner. The same
applies for the limited grounds to resist enforcement under the New York Convention or
national laws.