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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
I - Introduction
1. This report is not intended to exhaust the subject of the relations between arbitration and the courts nor to make a comparison among the various national laws in order to assess the status of the art in this field.
On the one hand, a selection of issues is imposed by the great variety of situations which, depending on the specific legal system, may prompt judicial intervention with respect to arbitral proceedings. On the other hand, a comparison among national laws would presuppose a thorough knowledge not only of the individual legal systems but also of the manner in which rules of law are interpreted and applied by the local courts, which is obviously an impossible task for a single rapporteur.
The latter has rather felt it important to identify the tendency lines of legislators' and courts' action regarding the relations between state justice and arbitral justice. Considering the object of other reports, the analysis will be limited to European legal systems, disregarding, however, features which are specific to a particular system.
It would rather be for the participants during the discussion which will follow to examine critically the issues dealt with in this Report and to provide information on the status of their national system, including their own judges' approach to individual issues.
II - State justice and arbitral justice
2. Justice is a universal concept the objective of which is "suum cuique tribuere " according to the wellknown definition given by Ulpian in his Digest.
Like any other objective, justice may also be attained by different means to which, therefore, the same function is entrusted. However, the way by which each such means will attain the common objective is different.1
Both judge and arbitrator, when their respective role is examined in the context of a given national system, are said to exercise a jurisdictional function. However, while the source of the former's jurisdictional power is to be found in the state's general investiture inasmuch as the judge is a state [Page14:] organ, the latter, finding the source of its jurisdiction in the will of the parties, is not a state organ, its jurisdiction being limited to the specific dispute or types of disputes referred to its decision by the parties.
The distinctive features of state court's jurisdiction and arbitral jurisdiction are even more accentuated in the international context, where the separation between the two is wider than at domestic level.
3. Arbitral justice has historically represented one of the most primitive forms of justice, widely practised in ancient Rome and widespread in the Middle Ages among members of trade communities. Arbitration, however, has never enjoyed a completely autonomous status but has always depended on state justice, to a more or less significant extent contingent upon the level of the statalisation of society, law and justice within the individual nation.2
It is not surprising, therefore, that a wellknown commentary on commercial arbitration has considered arbitration more in terms of its relationship with the courts than for its own distinctive features: "The law of private arbitration is concerned with the relationship between the courts and the arbitral process."3
As a matter of fact, the history of arbitration has been marked by the attitude of states and their courts regarding the acceptability of this alternative method of rendering justice.
4. It would go far beyond the limits of this paper to record in detail such historical developments. Starting from the time when states have assumed full sovereignty within their own territory and law and justice have institutionally become states' prerogatives, arbitration has emerged as a means of rendering justice less formalistic and more adapted to the parties' needs in their trade relations. Concurrently therewith, the antagonism between the two functions has emerged. State laws and courts have shown a measure of hostility towards arbitration, inasmuch as the latter was viewed more as a way of ousting the state jurisdiction than as a viable and acceptable method of rendering justice. Rigid requirements regarding the form of the arbitration agreement and the parties' capacity to stipulate the same as well as limitations regarding arbitrability of disputes and the arbitrator's competence to judge on its own competence have all been means by which, particularly in a domestic context, states have tried to limit the freedom and autonomy of arbitration. Viewing arbitral intervention as a derogation to state jurisdiction rather than as an alternative to state courts, enjoying equal dignity, opened the way to such limitations.
State courts have lent their support to the attitude of their legislators by offering a restrictive interpretation of the arbitration agreement by establishing the principle that in all cases of doubts about the parties' real intent the effect of derogating to the court's jurisdiction should be excluded.
The antagonism, sometimes even the hostility, characterizing the relations between state courts' jurisdiction and arbitration is to some extent emphasized by the reasons proclaimed for the parties' preference for arbitration. Such reasons are mostly founded on the asserted inability of state courts to ensure a prompt and effective justice. The saying "justice delayed is justice denied" has been frequently referred to as a justification [Page15:] for the search of alternative methods of dispute resolution, including arbitration, in view of the greater flexibility and rapidity by which such methods may ensure that justice be done to the parties. The development of alternative methods of dispute resolution ("ADR") may be viewed as evidence of the failure of state justice to attain its goal.
6. The pressure exerted by the needs of international trade after the second world war has contributed to the emergence of arbitration as an acceptable alternative to state jurisdiction and to its steadfast process of progressive freedom from the rigid subjection to state laws and to state courts' control.
The possibility of entrusting the settlement of disputes to personalities selected by the parties, the confidential nature of the proceedings, the parties' cooperation in the conduct of arbitration induced by its consensual foundation are, among others, all factors favouring the recognition and acceptance of arbitration, particularly in the international context.
The prior disfavour towards arbitration is thus progressively replaced by its acceptance as a valid alternative to state justice on condition that the limitations imposed by the law for allowing the parties to adopt this method of dispute settlement are respected. The more such limitations are reduced in their scope, thanks also to the courts' liberal interpretation, the more may arbitration claim to be autonomous from the courts' power of intervention and control.
The last twenty years have been marked by a process which has seen the most industrialized states engaged in a sort of competition in ensuring the best possible legal environment for arbitration within their own territory. England in 1979 and France in 19801981 set the precedent for this process, followed by other countries in all areas of the world. In establishing this policy of favour for arbitration, each state had to take into account its legal tradition in the field and its own court's attitude. The results, however, have been remarkable for the increased autonomy and efficiency of arbitration.
7. In his report for the celebration of the 60th Anniversary of the Court of Arbitration of the ICC in 1983, the late Professor Berthold Goldman addressed the subject of the complementary roles of judges and arbitrators in ensuring that international commercial arbitration be effective. In his opening remarks he underlined the fact that the word "complementary" suggested a certain equality between the judge and the arbitrator in their respective roles and, at the same time, a collaboration between the two replacing the competition, indeed the rivalry, that existed between them in the past.4
This rather optimistic assessment of the current status of the relations between arbitrators and judges was influenced by the then relatively recent enactment of the English Arbitration Act of 1979 and the French decrees on arbitration of 1980 and 1981. As a matter of fact, both laws marked a significant step towards the gaining by arbitration of a larger measure of autonomy visàvis the courts' intervention, by eliminating situations making arbitration dependent upon the judge's exclusive jurisdiction in certain cases 5 or by assigning to the judge a function of assistance for the efficient conduct of the arbitral proceedings.6[Page16:]
8. The increasing favour of national legislators for international arbitration is confirmed by the number of states which have become parties to international arbitration conventions 7 or which have enacted laws regarding arbitration in general or, more specifically, international arbitration.8
In this context, a particular place is to be assigned to the UNCITRAL Model-Law on international commercial arbitration, approved in 1985, truly a summa of the principles prevailing at international level for the regulation of arbitration.9
III - The courts' cooperation regarding the arbitral process
9. It has become commonplace to refer to the progress marked by arbitration in its way to gaining full autonomy visàvis state courts' jurisdiction as if the ultimate ideal target would be to sever the relationship between the courts and arbitration and leave the latter to float alone in the transnational space. It is submitted that this result would be contrary to the parties' interests. Leaving aside the fact that states have shown themselves to be willing to keep a measure of control over the manner in which justice is rendered on their territories whatever the method chosen by the parties for settling their disputes, experience indicates how important the courts' intervention may be in the exercise of the two functions typically identified as one of assistance and one of control.
The assistance, both to the parties and the arbitrator, aims at ensuring that the arbitral process be set in motion without obstructions or delays and be thereafter conducted in the most efficient manner towards its natural outcome, the rendering of the award.
The control, which applies particularly in the postaward phase of the challenge or the enforcement of the award, is a safeguard against the risk of procedural injustice which may arise even when arbitral proceedings are conducted by experienced arbitrators (which is not always the case).
Two general observations can be made with regard to these two functions. First, a state court never intervenes of its own motion but only upon a party's request (as to control) or the arbitrators or a party's request (as to assistance). Second, the current attitude of states is to enlarge the situations in which courts' assistance is provided and to restrict those in respect of which control is exercised, by even permitting the parties to opt out of such control in some cases.10
10. The following comments will be limited to the courts' function of assistance during the arbitral proceedings, the control regarding a phase when the arbitrator is normally functus officio . The analysis will include the courts' cooperation in recognizing agreements to arbitrate.
Prior to examining the role currently entrusted to courts with regard to arbitration, it is worth mentioning that the parties' freedom in organizing their settlementofdisputes mechanism includes the power to choose the rules of procedure they consider most adapted to a speedy and efficient [Page17:] conduct of their arbitration and a seat of arbitration located in a legal system favouring arbitration.
Either aspect may have a bearing in determining which state court is competent to intervene regarding arbitration and the arbitral process and which are the court's powers as compared to those enjoyed by the arbitrator.11
Now that the territoriality of arbitration appears to be the predominant rule, resort is in principle to be made to the court of the place of arbitration for the required assistance. When such place is not yet fixed, alternative criteria for identifying the competent court are fixed by national laws.12
IV - The arbitrator's power to rule on its jurisdiction
11. Most legal systems provide for a measure of control by their courts over arbitration regarding the arbitrator's jurisdiction. This control is different from the one which is exercised by the court following a party's recourse for the annulment of the award or a party's request for its enforcement. The former control is exercised by the court when seized by a party of an action notwithstanding the presence of an arbitration agreement covering the same matter.
Recognition by the courts of the agreements to arbitrate by refusal to hear a case tends to assist effective arbitration. Most legal systems make provisions to that effect.
In cases falling within the purview of the New York Convention, Art. II (3) thereof provides for the court's duty to refer the parties to arbitration unless it finds that the arbitration agreement is "null and void, inoperative or incapable of being performed." Courts of civillaw jurisdictions have shown an attitude favourable to arbitration by declining to assume jurisdiction and referring ordinarily disputes to the arbitrator. This attitude together with the acceptance by national laws 13 and international conventions,14 founded also on the autonomy or severability of the arbitration clause, that the arbitrator is competent to rule on its own jurisdiction ("Kompetenz-Kompeten z"), has contributed to the recognition of the efficacy of the parties' agreement to resolve their disputes by arbitration, thus favouring the arbitrator's jurisdiction in the largest majority of cases.
12. The arbitrator's jurisdiction is enhanced in many civillaw systems by rules restricting a party's ability to raise a plea of lack of such jurisdiction 15 or which prescribe that a challenge of the arbitrator's decision on its jurisdiction may be raised only in conjunction with a challenge of the award 16 or, if immediately admissible, that the arbitrator may continue the proceedings and make an award notwithstanding the challenge of its jurisdiction.17 Furthermore, the arbitrator's authority to rule on its own jurisdiction extends beyond the case in which a party challenges the validity of the contract containing the arbitration clause to include the case where [Page18:] the arbitration agreement itself is held by a party to be invalid.18 It is worth recalling that one reason for the invalidity of the arbitration agreement is the circumstance that the dispute or disputes covered thereby are not capable of settlement by arbitration, an issue which not always may be immediately perceived since it depends on the actual development of the case and of the parties' claims.19
The courts' cooperation in this area is essential. The more the scope of the court's inquiry is limited by a liberal interpretation of the applicable rules - such as those regarding arbitrability - the more such cooperation will result in enhancing the use of arbitration.
13. The arbitrator's Kompetenz-Kompetenz authority finds its counterpart in civillaw jurisdictions in the court's duty of abstention. French law provides for such a duty in absolute terms in the presence of an arbitral tribunal already seized of a dispute (art. 1458, 1st. al., NCPC); if the arbitral tribunal is not yet constituted, the court may accept jurisdiction only if the arbitration agreement is "manifestly null and void" (Art. 1458, 2nd al., NCPC). Similarly, the Italian Supreme Court has held that the constitution of the arbitral tribunal deprives the national judge of any power to rule on the existence, validity and extent of the arbitration agreement, such ruling being exclusively entrusted to the arbitrator.20
Timebars are fixed by the law for the raising before a court of the plea of lack of arbitrator's jurisdiction, which normally coincide with the first defence on the merits.21 Likewise, if the party has appeared before the arbitrator without raising such a plea in due time, it will be held barred from raising this plea in proceedings before a court.22
The court's determination of the admissibility or inadmissibility of arbitration is centered on the existence and validity of the arbitration agreement, including, as a possible ground for nullity, the non-arbitrability of the relevant dispute. This implies that various national laws may come into application depending on the ground for invalidity which has been alleged by a party.23
14. In England the role of the courts has always been marked by a higher degree of interventionism when compared with others systems in continental Europe.
Prior to the 1996 Act, had a party to the arbitration agreement started legal proceedings in court in respect of matters covered by such agreement, that party might have applied to the court to stay the proceedings. In case of a nondomestic arbitration agreement the granting of the stay was mandatory, unless the court was satisfied that the agreement was null and void or that there was no dispute. Had a stay been refused, the arbitrator could not have proceeded with an arbitration in respect of the same matter and any award made by him would have been ineffective.24
15. The 1996 Act has significantly reduced the role of the courts regarding the arbitrator's jurisdiction. Firstly, sect. 1 (c) of the Act states that the court's intervention in matters covered by Part I (which includes the point of jurisdiction) is limited to those cases which are provided by such Part. There are no longer, therefore, implied or inherent powers of the court, the court's intervention being limited to circumstances where assistance is [Page19:] needed. Secondly, the arbitrator has power to rule on its own jurisdiction, including the question whether there is a valid arbitration agreement (sect. 30), provided the objection to the arbitrator's jurisdiction is raised by a party in its first defence on the merits (sect. 31(1)). A party may also go directly to the court to challenge the arbitrator's jurisdiction, unless it has lost the right to object, but only with the agreement of all other parties to the arbitral proceedings or with the permission of the arbitrator, provided the court is satisfied that there are good reasons why it should decide the matter (sect. 32(2)). Unless otherwise agreed by the parties, the arbitrator may continue the proceedings and render an award while the application to the court is pending (sect. 32(4)).
Any award made by the arbitrator on the jurisdictional issue may be challenged immediately in court (sect. 67(1)), but the arbitrator may continue the proceedings and make a further award while the application to the court is pending (sect. 67(2)).
16. The 1996 Act reflects the preexisting law concerning the staying of actions brought in breach of the terms of an arbitration agreement. Sect. 9 incorporates the provisions of Art. II(3) of the New York Convention and corresponds to Art. 8(1) of the Model Law.25 The main differences with the old law are that:
the court is now bound to grant a stay unless satisfied that the agreement is null and void, inoperative or incapable of being performed;
only a party to an arbitration agreement against whom legal proceedings are brought can apply for a stay of proceedings;
a stay can no longer be refused if the court is satisfied that there is no dispute between the parties.
This last point is worth being underlined since courts have sometimes in the past assumed jurisdiction on the basis that the defendant had no genuine defence and that, as such, there was in reality no dispute between the parties.26 A further restriction to the English courts' power of intervention has thus been introduced.
One may conclude that with the adoption of the Kompetenz-Kompetenz rule, England has approached the other European systems by enabling the arbitrator to decide on its own jurisdiction, the arbitrator's decision remaining in any case subject to a final determination by the court.27
V - The courts' role of assistance
17. The role of assistance exercised by the national judge with regard to arbitration had already emerged when, fifteen years ago, the ICC Court celebrated its 60th Anniversary.28
It seems therefore more interesting to verify how this role has consolidated through the subsequent law enactments as well as the manner in which the same has been interpreted and practically implemented by the national judge. [Page20:]
Following a traditional approach, the courts' role of assistance may be analysed regarding the constitution and composition of the arbitral tribunal, being thus provided to the parties (A), the conduct of the proceedings (B) and the award (C), in which cases the assistance is provided to the arbitrator. Such role is of particular intensity in case of an ad hoc arbitration while it is restricted (although not entirely replaced) by the functions of assistance typically exercised by the institution in the case of administered arbitration.
A. Regarding the constitution and composition of the arbitral tribunal
18. More and more legislators have intervened during the past twenty years not only to confirm the usual competence of their national judges to appoint an arbitrator in lieu of a defaulting party or a third arbitrator in case of the parties' failure to agree on such appointment but, more significantly, by providing for the court's intervention in curing a defective arbitration agreement.
Thus, law No 25/1994 reforming the regulation of arbitration in Italy has removed various grounds for nullity of the arbitration agreement by providing that in case of silence by the parties regarding the number and manner of appointment of the arbitrators, there shall be three arbitrators, each party appointing one and the judge intervening to appoint any arbitrator that the parties failed to appoint and by further providing that, since the arbitrators must be of uneven number, the additional arbitrator in case of even number is appointed by the judge (Art. 809, code civ. proc. ).
Similarly, the German 1998 Law provides that should the arbitration agreement give a preponderant right to one party regarding the composition of the arbitral tribunal, the other party may request the court to appoint the arbitrator or arbitrators in derogation of the agreed nomination procedure (Art. 1034(2)).
The law has gone sometimes a step further in ensuring that appointments made by the judge in lieu of the parties are consistent with the parties' agreement or expectations by securing that a personality be selected who meets the agreed qualifications and who in any case is independent and impartial. The English 1996 Act expressly so provides (sect. 19); likewise, the German 1998 Law provides that in the case of a sole or third arbitrator, the court shall take into account also the advisability of appointing an arbitrator of a nationality other than those of the parties (Art. 1035(5)).
19. A similar function of assistance is exercised by the courts in case of a party's request that an arbitrator be removed. [Page21:]
When the parties have not made reference to administered arbitration or are dissatisfied with the decision of the institution, the challenge of an arbitrator must in principle be determined by the court of the seat of arbitration or, absent a seat, by the court designated by the rules of the applicable procedural law.29 The court's decision in such case is crucial as to rapidity and criteria for removing and replacing an arbitrator.
Italian law, as amended in 1994, provides that an arbitrator who fails to act or delays in accomplishing an act of his office may be replaced by the court upon a party's request if the court is satisfied that the arbitrator defaulted in complying with its duties. The court intervenes only in case of failure of an alternative procedure agreed by the parties, as in case of institutional arbitration (Art. 813, 3rd al., code civ. proc. ). A similar provision is made by the German 1998 Law, except that the replacing arbitrator is not appointed by the court but, rather, according to the rules applicable to the appointment of the replaced arbitrator (sections 1038 and 1039).
The English 1996 Act takes a more determinant approach in two respects. Firstly, by providing for the court's power to remove an arbitrator upon a party's application on grounds which, considering their number and rather general tenor, may result in an enlargement of the cases of removal beyond the parties' expectations (sect. 24(1)). Secondly, the court's power of removal appears to be exercisable also in case of administered arbitration, after the applicant has exhausted the available recourse to the institution, which seems to indicate that the court may remove an arbitrator even if the institution has held that no grounds existed for such removal (sect. 24(2)).
20. The manner in which national courts have exercised their role of assistance appears substantially inspired by an attitude of respect both for the parties' autonomy and legitimate expectations and for the arbitrator's prerogatives.
A significant example is offered by France. The role exercised by the President of the Tribunal de grande instance in case of difficulties in the constitution of the arbitral tribunal (Art. 1493 NCPC, applicable to international arbitration) shows that the assistance provided to the parties has been expanded in the court's interpretation to include situations not strictly contemplated by the law 30 and, more significantly, has been prompted by the search for the parties' cooperation and involvement. Thus, in case of resignation of an arbitrator and failure of the appointing party to proceed to its replacement, a timelimit has been accorded to such party to so provide, failing which a national of the same party has been appointed.31
The court's role in France has even evolved to include cases in which a party has requested interventions from the President of the Tribunal de grande instance aimed at solving procedural problems with a view of protecting the award against future attacks, as in the case of a request of confirmation that the arbitral tribunal has been validly constituted.32
It has been remarked that the manner in which the court has exercised its role of assistance has been characterized by the respect for the jurisdictional power of the arbitrator, the court intervening only to overcome obstructions to the arbitral proceedings conformably to the parties' common intent, without interfering with the arbitrator's powers. [Page22:] Furthermore, the courts' approach has confirmed that such a role is subsidiary to that of the institution in case of administered arbitration since the intervention has been limited to cases of conflict between a party and the institution and to the case of insufficiency of the institution's rules to overcome difficulties in the constitution of the arbitral tribunal.33
B. Regarding the conduct of the proceedings
21. Traditionally, arbitrators have no power to compel the parties to comply with their own orders. The consensual foundation of arbitration and the arbitrators' status of a private person explain the arbitrators' lack of coercive powers and their inability to make orders involving third parties. Accordingly, a number of remedies which are unavailable to the arbitrators but which are vested in the national judge are to be used in aid of the arbitral process.
Two areas of courts' intervention are worth being mentioned in this context since they both mark a significant development in the cooperation between arbitrators and the courts: provisional and conservatory measures and the taking of evidence. Consolidation of arbitral proceedings and courts' powers to that effect will be also mentioned.
22. There are national systems which do not recognize that arbitrators may have power to determine whether the conditions exist for the granting of a provisional and conservatory measure and to make an order to that effect.34 This position has been in some cases motivated by the arbitrators' lack of coercive powers. However, such a lack only explains the arbitrators' inability to enforce compliance with their own orders, contrary to the national judge. To conclude from the lack of coercive powers that the arbitrators are unable to determine the content of an order for interim measures of protection disregards the fact that by the same token arbitrators should be considered unable to render an award since they have no power to enforce it. Further, this position compels a party to resort for any such measure, pending arbitration, to a national court which, not being entrusted with the merits of the case, is not in the best position to evaluate whether the grounds exist for granting the requested measure.
These reasons have prompted other legislators to recognize that the arbitrator has the power to order provisional or conservatory measures, sometimes subject to the parties' agreement (which may be embodied in institutional rules of arbitration to which they have made reference),35 and that should the party so ordered fail to comply therewith voluntarily the competent court shall give the necessary assistance upon the arbitrator's request.36 More recently, Belgium has gone a step further in making effective the arbitrator's orders by providing for the arbitrator's power to condemn a party to the payment of a penalty.37 There are systems which provide for a concurrent jurisdiction of the courts to grant interim relief. Thus, under the English 1996 Act a party may seek an injunction directly from the court under sect. 44(1) and (2) instead of the arbitrator. It is interesting to note that if so requested the court shall only act "if or to the [Page23:] extent that the arbitral tribunal and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively." This provision shows a remarkable degree of deference to the arbitrator's powers and to the parties' will.
23. The court's assistance in the taking of evidence in the course of the arbitral process is another area of cooperation required by the arbitrator in view of the lack of coercive powers. An order for examination of witnesses by the court or a request for the examination of witnesses out of the jurisdiction, the conservation of evidence, the taking of samples out of a party's property, the production of documents, the access to premises and, more generally, the taking of evidence even when available to third parties are all situations as to which in the last twenty years national legislators have shown a clear policy favouring arbitration by providing for the competent court's assistance to the arbitrator (or to a party, upon the arbitrator's authorization).38
24. The consolidation of arbitral proceedings relating to subject matters which are connected one to the other is provided by some states of the United States but has in Europe a rather limited application.
Apart from certain rules of institutional arbitration providing for consolidation of connected proceedings pending between the same parties,39 the Netherlands law on arbitration of 1986 has a rule contemplating the forced consolidation of arbitral proceedings having their seat in the country, even if pending among parties which are not all parties to the same arbitration agreement, when the respective subject matters are connected (Art. 1046). The order of consolidation is issued by the President of the District Court in Amsterdam upon request by any party to such proceedings, on condition only that the parties have not agreed otherwise.
Consolidation of arbitral proceedings is favoured by certain sectors of the industry, such as the construction sector. It may be in the contractor's interest, in fact, to join to its dispute with the owner its own subcontractor(s) so as to obtain an award binding on all parties concerned at the end of one proceedings, thus avoiding conflicting results when matters in dispute are connected and the available evidence is the same in both cases. The owner, however, may dislike the idea of having to fight against not only its contractor but also a third party with whom it has no contractual relations. On balance, it may be said that forced consolidation of arbitral proceedings is not favoured by international operators, as confirmed by its limited application in the Netherlands and other European countries. 40 Thus, the best solution is to leave to the parties to appreciate freely whether consolidation of proceedings should be ordered by the arbitrator.41[Page24:]
C. Regarding the award (correction and interpretation)
25. Another kind of cooperation of the judge with the arbitrator is worth mentioning for its peculiarity: the correction of errors in the award as well as its interpretation.
Two obstacles may prevent the arbitrator from intervening in that regard. The first is of a legal nature: once the award is rendered the principle is that the arbitrator, being functus officio , has lost any power to intervene even if only to correct or interpret the award. The second is practical: the arbitrator, particularly when consisting of more than one person, may no longer be available to perform this particular task.
The first obstacle may be removed by the rules of institutional arbitration to which the parties have made reference providing for the arbitrator's power to correct errors of the award or to interpret it.42 Thus, by will of the parties the arbitrator's authority is extended for these limited purposes beyond the date the award is rendered. In the absence of such reference, the law of the seat of arbitration may contain provisions empowering the arbitrator so to act.43 More critical is the second obstacle. The court's power to intervene for interpreting the award, unless provided by the applicable law, is not automatic. Certain national laws provide for such an intervention if, following a party's request, the arbitrator is unable to act.44
The courts' intervention for correcting an error of calculation or a typographical error of the award represents another case of useful cooperation between the judge and the arbitrator. More problematic is the court's intervention for interpreting a point or a passage of the award, such an interpretation becoming part of the award itself. As a matter of fact, if a part of the award is so obscure or ambiguous as to require an interpretation, one can hardly conceive that such interpretation, with the weight it may carry with it, be given by somebody, even if such person is a judge, who has not participated in the intellectual exercise of the formation of the decision first and then of its drafting in the form of an award.45
VI - Concluding remarks
26 The last twenty years have seen the progressive recognition by national legislators and courts that arbitration, far from being antagonistic to state justice, is a method of dispute settlement particularly suited to the context of trade and industrial relations. This policy favouring arbitration is even more developed when trade and industrial relations are entertained in the transnational space, as shown by numerous legislative instruments specifically devoted to international arbitration.
Thanks to this new policy arbitration has gained a more solid status at least in two respects. On one side, the progressive abandonment by state justice of powers which were held to be part of its prerogatives 46 or the recognition that the arbitrator may order provisional or conservatory measures 47 has [Page25:] increased the autonomy of arbitration and correspondingly reduced state justice's intervention.48 On the other side, the enlarged cooperation offered by state courts in support of arbitral proceedings has increased the efficacy of arbitration.49 The trend in recent legislation is to entrust the courts with the task no longer to supervise the arbitral process but rather to strengthen the efficacy of the arbitration agreement and to support the arbitrator's powers by exercising a role which Swiss doctrine happily defines as of "juge d'appu i". 50
The belief that the progress so made is only an intermediate step toward the acquiring by arbitration of a fully autonomous status misconceives the reality of this institution. Daytoday practice shows that the most experienced arbitrator prefers to conduct the arbitral process in the frame of a national system whose rules of procedure may offer guidelines in case of doubts and whose courts may lend support in case of need.
Making the arbitrator more and more similar to a judge by increasing its powers would cause arbitration to lose those characteristics which make this institution so unique, based as it is on the parties' consent with a central role played by a private person selected by the parties and enjoying their trust. It would present a risk for the arbitral process to become tainted by the same formalism and procedural burdens as the proceedings before the national judge by losing that flexibility and rapidity which are also consequent on the arbitrators' more limited powers and the consensual foundation of their authority.
If arbitration wants to remain faithful to its very essence it should therefore be content with the present status of the complementarity of roles between judge and arbitrator as provided by national legislators and which the majority of national judges have shown to interpret in a way which, respecting the parties' will and the arbitrator's prerogatives, is supportive of arbitration. Progress may still be made in improving the cooperation between judges and arbitrators by making judges more and more aware of the needs of the business community and by showing that arbitration is not a way of escaping from the basic conceptions and requirements of justice and legal order which the arbitrator also is bound to respect.
1 Oppetit, "Justice étatique et justice arbitrale," Études offertes à Pierre Bellet, Paris 1991, p. 416.
2 In the beginning of the first century BC the praetor, with the edictum de receptis, undertook to exercise coercitio against the person who, having accepted the arbitrium, tried to escape the obligation to render its decision: "qui arbitrium pecunia compromissa receperit, eum sententiam dicere cogam."
3 Mustill and Boyd, The Law of Commercial Arbitration, 2nd ed., p. 3: cited by Reymond, "L'Arbitration Act, 1996 Convergence et originalité," Rev. arb., 1997, No 1, pp. 523. It goes without saying that the emphasis in England on the relations between the courts and arbitration is due to the long history (dating much before the first law on arbitration, the Arbitration Act 1698) of subjection of the latter to the court's power, including the necessity of the court's recognition of the effectiveness of the arbitration agreement.
4 Goldman, "The Complementary Roles of Judges and Arbitrators in Ensuring that the International Commercial Arbitration is Effective," 60 Years of ICC Arbitration, A Look at the Future, Paris 1984, pp. 257 et seq.
5 A typical example was the English "special case" proceeding imposing to the arbitrator to defer to the High Court the decision on points of law, which was abolished by the Arbitration Act 1979.
6 As in the case of the intervention of the President of the Tribunal de grande instance of Paris, upon a party's request, in case of difficulties in the constitution of the arbitral tribunal, as contemplated by Art. 1493 of the French NCPC, introduced by Decree No 81500 of 12 May 1981 for international arbitration.
7 During this period more than 55 States have ratified the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards and more than 45 States the Washington Convention of 1965 on the Settlement of Investment Disputes between States and Nationals of other States.
8 Limited to Europe, reference may be made to the arbitration laws of The Netherlands (2 July 1986), Portugal (29 August 1986), Switzerland (18 December 1987), Spain (5 December 1988), Italy (5 January 1994), England (17 June 1996), Germany (22 December 1997) and Belgium (2 April 1998). These laws will be referred to hereinafter only by the year of their coming into effect.
9 At present, over thirty States have enacted legislation adopting the Model Law (such as Australia, Bulgaria, Canada, Mexico, Peru, Scotland, states of the United States) or clearly inspired by the latter (such as Egyptian Law No 27 of 1994 or the English 1996 Act).
10 Both the 1987 Swiss LDIP and the 1998 Belgian law amending the Code judiciaire on arbitration allow the parties to waive any recourse against the award when neither of them is resident or has a main establishment in the country.
11 By way of an example regarding rules of procedure, until the 1998 Law, German law considered relevant the application to arbitration of the German rules for determining the local courts' competence to intervene during the proceedings or in case of challenge of the award. From the point of view of the seat, since an arbitrator sitting in Italy has no power to grant interim measures of protection (Art. 818, code civ. proc.) such measures are to be requested to the competent court while an arbitrator sitting in Switzerland, Germany or Belgium may grant such measures (Art. 183 LDIP; Art. 1041 German 1998 Law; Art. 1696 Code judiciaire as amended by Belgian Law of 1998), the court intervening only to ensure the enforcement of the arbitrator's oder.
12 Under Italian law the competent court would be in such a case the one of the place where the arbitration agreement has been signed or, if signed abroad, the court of Rome (Art. 810, code civ. proc.); under the German 1998 Law, competence will lie with the Higher Regional Court where the party opposing the application has his place of business or assets affected by the measure are located, failing which the Berlin Higher Regional Court shall be competent (sect. 1062(2)).
13 Belgian Code judiciaire, Art. 1697(1); UNCITRAL Model Law, Art. 16(1); French NCPC, Art. 1466; German 1998 Law, sect. 1040(1); Netherlands Law of 1986, Art. 1052(1).
14 European Convention on International Commercial Arbitration signed in Geneva on 1961, Art. 5(3); Washington Convention on the Settlement of Investment Disputes of 1965, Art. 41 (1).
15 Normally, such a plea is to be raised not later than the submission of the first defence on the merits: Netherlands Law of 1986, Art. 1052(4); Spanish Law of 1988, Art. 23(1); Portuguese Law of 1986, Art. 21(3); German 1998 Law, sect. 1032(1).
16 Netherlands Law of 1986, Art. 1052(4); Belgian Code judiciaire, Art. 1697(3); Italian code civ. proc., Art. 827, 3rd. al., Spanish Law of 1988, Art. 23(2); Portuguese Law of 1986, Art. 21(4). Under the Swiss LDIP an award ruling on jurisdiction, whether for admitting or for declining it, may be immediately made subject to setting aside proceedings (Art. 190(3)). The same rule is provided by the English 1996 Act (sect. 67(1)).
17 German 1998 Law, sections 1032(3), 1040(3); Geneva Convention of 1961, Art. 5(3).
18 Netherlands Law of 1986, Art. 1052; Portuguese Law of 1986, Art. 21(1); Spanish Law of 1988, Art. 23(1); German 1998 Law, sect. 1040(1); Geneva Convention of 1961, Art. 5(1).
19 This aspect explains why certain laws permit in such a case to raise the plea of lack of arbitral jurisdiction beyond the first defence on the merit: Netherlands Law of 1986, Art. 1052(2).
20 Judgement of 8 July 1996, No 6205, Rev. arb. 1997, 325.
21 Geneva Convention of 1961, Art. 6(1) and national laws cited in note 15.
22 Netherlands Law of 1986, Art. 1052(2).
23 The Geneva Convention of 1961 refers (in Art. 6(2)) to these various laws as follows: "In taking a decision concerning the existence or the validity of an arbitration agreement, courts of Contracting States shall examine the validity of such agreement with reference to the capacity of the parties, under the law applicable to them, and with reference to other questions: a) under the law to which the parties have subjected their arbitration agreement; b) failing any indication thereon, under the law of the country in which the award is to be made; c) failing any indication as to the law to which the parties have subjected the agreement, and where at the time when the question is raised in court the country in which the award is to be made cannot be determined, under the competent law by virtue of the rules of conflict of the court seized of the dispute. The courts may also refuse recognition of the arbitration agreement if under the law of their country the dispute is not capable of settlement by arbitration.
24 Dawson v. Wright [1983], QBD 1065, quoted by Zekos, "The Role of Courts in Commercial and Maritime Arbitration under English Law," Journ. Int. Arb., 1998, p. 55.
25 Veeder, "La nouvelle loi anglaise sur l'arbitrage de 1996: la naissance d'un magnifique éléphant," Rev. arb., 1997, p. 15.
26 Rawlings, "A Mandatory Stay," Arb. Int., 1997, p. 422.
27 Jalili, "KompetenzKompetenz: Recent US and UK Developments," Journ. Int Arb., 1996, p. 174.
28 Goldman, cited in note 4, pp. 275 et seq.
29 Italian code civ. proc., Art. 810; German 1998 Law, sect. 1063(2).
30 For example, to include also the case of a reconstitution of the arbitral tribunal after its initial constitution and, more generally, all cases in which the arbitration may be blocked by the parties' failure to cooperate. See, in that regard, Leurent, "L'intervention du juge," Rev. arb., 1992, pp. 307 et seq.
31 Société lndustrialexport v. K et autres, Ordonnance of 15 February 1995, Rev. arb., 1996, pp. 503 et seq.
32 Philipp Brothers case, Paris (1er ch. suppl.), 6 April 1990, Rev. Arb. 1990, p. 880, note M. de Boisséson. The Court of Appeal, seized of a recourse against the award on the ground of irregularity in the constitution of the arbitral tribunal has refused to examine such ground since the difficulties in the constitution of such tribunal had been solved by the President of the Tribunal.
33 Pluyette, "Intervention à la suite du rapport de M. S. Leurent," Rev. arb., 1992, p. 317. The limits of the French court's cooperation are clearly indicated in a decision of 16 November 1996 in the case Société Regimage c. Société Mitan Presse, Rev. arb., 1995, p. 659: "Le Président du Tribunal de grande instance n'a pas le pouvoir... de se substituer aux parties pour imposer les termes d'une convention d'arbitrage et aux arbitres pour délivrer une injonction à la partie réputée défaillante..." Another example of how courts have interpreted their role is offered by Irish courts, which have continuously expressed themselves to be very supportive of arbitration (Doyle v. Kildare County Council [1995] 2 LR 424) and that it is in principle desirable as a matter of policy that the courts should respect the finality of arbitration awards (The ICC International Court of Arbitration Bulletin, 1998, Vol. 9/No 1, p. 60).
34 Among such systems one may include Italy (Art. 669quinquies and 818 code civ. proc.), Austria (ZPO, Art. 1036) and Libya (Law on Civil and Commercial Procedure 1954, Art. 757759). On the subject, Bernardini, "The powers of the arbitrator, Conservatory and Provisional Measures in International Arbitration," 1993, pp. 21 et seq., ICC Publication No 519.
35 Swiss LDIP, Art. 183(1); English 1996 Act, sections 38, 41; German 1998 Law, sect. 1041 (1); Belgian law of 1998, Art. 6.
36 Swiss LDIP, Art. 183(2); English 1996 Act, sect. 42; German 1998 Law, sect. 1041(2)(3).
37 Belgian law of 1998, Art. 12, adding Art. 1709 bis to the Code judiciaire, which reads as follows: "Les arbitres peuvent condamner une partie au paiement d'une astreinte."
38 Swiss LDIP, Art. 184(2); Netherlands Law of 1986, Art. 1041; Portuguese Law of 1986, Art. 18; Spanish Law of 1988, Art. 27, English 1996 Act, sections 42(1) and 43; German 1998 Law, sect. 1050; Belgian Code judiciaire, Art. 1696.
39 ICC Rules of arbitration, 1998, Art. 4(6).
40 Information, Rev. arb., 1996, p. 564.
41 As it is provided by the English 1996 Act, sect. 35, by what a leading arbitration practitioner defines as "no more than a general statement of party autonomy" regarding "the thorny question of consolidation:" Hunter, "The Procedural Powers of Arbitrators under the English 1996 Act," Arb. Int., 1997, p. 358.
42 ICC Rules of arbitration, 1998, Art. 29; LCIA Rules, Art. 27 (limited to the correction of errors).
43 Netherlands Law of 1986, Art. 1060; Spanish Law of 1988, Art. 36; Italian Law of 1994, Art. 826 (as to correction of errors); English 1996 Act, sect. 57; German 1998 Law, sect. 1058; Belgian 1998 Law of 1998, Art. 10 adding Art. 1702 bis to the Code judiciaire.
44 Italian Law of 1994 gives power to correct errors in the award to the court of lower instance (pretore) with which the award is filed for purposes of its enforcement (Art. 826, last al. code civ. proc.); Belgian Law of 1998 gives power to interpret or correct the award to the court of first instance, whose president is competent to grant the exequatur of the award, "lorsque les mêmes arbitres ne peuvent plus être réunis" (Art. 1702 bis, No 5, added to the Code judiciaire by Art. 10).
45 Considering the short time-limits for the filing by a party of a request for interpretation and for the giving by the arbitrator of such interpretation, the case of a court's intervention appears rather remote.
46 Such as the abolishment in England in 1979 of the "special case" procedure or in Italy in 1994 of the vis atractiva exercised by a court proceedings in respect of an arbitration pending on a connected case (Art. 819 bis, code civ. proc.).
47 See note 35.
48 A significant indication of the states' attitude in this regard is contained in the 1985 UNCITRAL Model Law on International Commercial Arbitration, adopted as an internal law by numerous States. The Model Law makes provisions for several instances of state court intervention in aid of arbitration, as in the case of interim measures (Art. 9), the appointment of arbitrators (Art. 11), the challenge procedure (Art. 13), the assistance in taking evidence (Art. 27) and the challenge and the enforcement of awards (Art. 34, 35 and 36). It states the important principle according to which "In matters governed by this Law, no court shall intervene except where so provided in this Law" (Art. 5). The purpose of this provision, which may be found also in the English Arbitration Act 1996 (Art. 1(c)), is, as noted by the UNCITRAL Secretariat, to "exclude any general or residual powers" given to a court of the enacting States in statutes other than the Model Law, to give certainty to the parties and to further the cause of uniformity.
49 Referring to the most significant features of the English 1996 Act Lord Mustill speaks of "obligations légales, spécifiquement imposées aux tribunaux étatiques, afin de ne pas affaiblir la portée de la nouvelle loi de 1996. Ils devaient soutenir un arbitre qui se sert de ses pouvoirs résolument et dans l'esprit voulu par la loi de 1996:" "La nouvelle loi anglaise sur l'arbitrage de 1996: philosophie, inspiration, aspiration", Rev. arb., 1997, p. 42.
50 LalivePoudretReymond, "Le droit de l'arbitrage interne et international en Suisse," Lausanne, 1989, p. 327. In the same context, FouchardGaillard-Goldman, Traité de l'arbitrage international, Paris 1996, p. 538.