The Role of Domestic Courts in International Commercial Arbitration

Abstract

With the tremendous growth in international trade and investments, international commercial arbitration has become a frequently used mechanism to settle investment/trade/contractual disputes. Most people are of the opinion that resolution of dispute by litigation in court is time consuming and money consuming whereas arbitration may speed the resolution and lower the expenses of disputes. However to ensure the integrity of the arbitral process and protect the public interest, the courts must support and supervise that process. On the other hand, to prevent the confidence of users of the arbitral system from being damaged, the level of judicial control should not be too high. The debate in international commercial arbitration is what scale of judicial intervention should be allowed. While it is argued that arbitration must be free from courts, in order to be effective, it is also accepted that arbitration needs the support of national courts to be effective. Flowing from this contention laws and rules has been formulated to balance the competing interests. In this paper, the author discusses the key features of international commercial arbitration, theories behind judicial intervention in international commercial arbitration and the role of domestic courts on the major concepts of international commercial arbitration such as; arbitration agreement, the concept of arbitrality, seperability, competence-competence, assistance in taking evidence and, recognition and enforcement of arbitral awards by court without which the arbitral process cannot hold. The author concludes that the increasing growth in international trade and investments require the presence of active international commercial arbitration to settle disputes but since arbitration is private in nature, parties need courts to enforce the arbitration agreement and enforce arbitral awards. That there is need to sensitize domestic courts to support the arbitral process, without which arbitration will remain ineffective, particularly in developing economies.