The relationships between international arbitration and national courts, with specific reference to provisional measures

• Main Author: Kang, Pyoung-Keun
• Published: University of Edinburgh 1997
• Subjects: 340
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.653200

The aims of research are directed at the relationships between international arbitration and national courts which are discussed in five chapters. Chapter One describes mainly the difference between arbitration and other methods of resolving disputes by emphasising the advantages of arbitration. Chapter Two concentrates on discussions of the legal nature of arbitration. Legality, which is necessary for the success of arbitration, is contrasted with business efficiency. As arbitration is based on its own legal foundation, the courts have gradually come to accept limited exercise of their supervisory powers upon it. Although arbitration may be floating over many different jurisdictions, it is safely recommended that mandatory laws should be observed with regard to arbitral proceedings as well as enforcement of arbitral awards. Chapter Three deals with the matter of how the existence of an agreement to arbitrate is treated when court proceedings for provisional measures take place. When court proceedings are made in spite of the existence of an arbitration agreement, most national courts "stay" the court proceedings until the arbitrators render awards. It is argued that provisional measures should be available only from arbitral tribunal. From the limits of powers of the arbitral tribunal, however, various provisional measures from the courts may be necessary in making arbitration effective. Chapter Four deals with detailed discussions of two different provisional measures: provisional measures from arbitral tribunal and provisional measures from national courts. For the arbitral provisional measures, practices and ICSID Tribunals and Iran-US Claims Tribunals deserve consideration. The practices in the world of arbitration clearly show that the success of any arbitration may be relied not only on the good faith of the parties, but also on the introduction of state power which may be regarded as contrary to the wishes of the parties to resolve their disputes by arbitration.