Control by the Courts: A Plea for More, Not Less

Abstract

In virtually all seminars and articles devoted to international arbitration it can be fairly confidently predicted that the discussion will be tinged with at least some degree of self-congratulation at the role of arbitration in international disputes, and of proselytisation in favour of the various centres in London, Paris, Hong Kong, Kuala Lumpur and Australia which have been or are being created to provide it. Undoubtedly, too, there is currently a very widespread international movement, supported by civil lawyers perhaps more strongly than by common lawyers, advocating international arbitration even between developed countries and systems of law in the much wider context of commercial disputes generally rather than construction contracts in particular. This movement in some cases also advocates an overriding role for an international ‘lex mercatoria’ in such situations. In the narrow context of construction disputes, with which this paper is specifically concerned, these tendencies are strongly supported by civil engineers, architects and other technical arbitrators and experts and their institutions, and above all by contractors' organizations in all countries. Both movements appear to be in favour of removing arbitration generally, and international arbitration in particular, as far as possible from the oversight or control of the Courts (usually, of course, those of the ‘lex arbitrii’). Civil lawyers, in many cases coming from jurisdictions where much less interest or control has been exercised in the past by their own Courts in either commercial arbitration or construction law have, perhaps for this reason, been in the forefront of both movements. Thus the UNCITRAL Model Law of International Commercial Arbitration, for example, appears to permit judicial intervention only in cases of incapacity to contract, invalidity of the agreement, awards in default of service or notice, or excess of jurisdiction. Remarkably, it seems, no attack on an arbitrator's assumption of jurisdiction is …