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Jan 01, 2013

Transcending National Legal Orders for International Arbitration

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Partner Emmanuel Gaillard (Paris-International Arbitration) has published an article, "Transcending National Legal Orders for International Arbitration," in International Arbitration: The Coming of a New Age?, ICCA Congress Series 371 (A. J. van den Berg ed., 2013).

The role of national courts in international arbitration is a relatively well defined concept. National courts may intervene at the end of the arbitral process for purposes of the enforcement or review of an arbitral award; they may also intervene during the arbitral process, most frequently to assist the arbitral process, for example in relation to the constitution of the arbitral tribunal. Opinions differ, however, as to the extent to which national courts can and should interact with the arbitral process, and whether national court decisions rendered in relation to the arbitral process should be given transnational effect. The reason for these conflicting views is to be found in the manner in which one views the fundamental relationship between national legal systems and international arbitration.

Three visions of international arbitration appear to constitute a dividing line, each having a distinct theoretical ground and implying extremely concrete practical consequences. A potent example of the practical consequences of adhering to one or the other vision of international arbitration is provided by anti-suit injunctions, as recognizing that national courts may decide whether or not an arbitration may proceed ultimately calls into question the fundamental autonomy of the arbitral process. A potent example of the practical consequences of adhering to one or the other vision of international arbitration is provided by anti-suit injunctions, as recognizing that national courts may decide whether or not an arbitration may proceed ultimately calls into question the fundamental autonomy of the arbitral process.

View the full article, Transcending National Legal Orders for International Arbitration

Authors and Contributors

Emmanuel Gaillard

Partner

International Arbitration

+33 1 53 89 70 00

+33 1 53 89 70 00

Paris