“L’interférence des juridictions du siège dans le déroulement de l’arbitrage”, in Liber Amicorum Claude Reymond, 2004, p. 83.
In 1983, an arbitral tribunal presided over by Claude Reymond ruled that Belgium could not escape its freely contracted arbitration agreement by invoking its own domestic law according to which Belgium’s capacity to consent to arbitration was subject to the existence of a treaty authorizing such consent.
The litigation of State contracts has since evolved. States and state-controlled companies now participate more regularly in arbitrations, often as the moving party, leading to greater balance in their outcomes. Yet, there remain different implications as to the influence of the law of the seat when the tribunal is seated in a third state versus in the state that is a party to the arbitration.
This author not only favors permitting arbitrators to render awards on the merits in the face of an injunction issued by the law of the seat, but also favors requiring arbitrators to rule in situations where international public policy is at stake. That point of view takes root in 1) fundamental conceptions of the source of an arbitrator’s powers, and 2) reasons of legal policy.