The national court of the seat of arbitration

The national court of the seat will be the one avenue of challenge available to a party seeking to set aside an award, while the court(s) of the state or states where recognition and enforcement are sought will be the venue where a party is seeking to argue that such recognition and enforcement should be refused.

Consideration of the role of the court as envisaged by the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 (Model Law) gives perhaps the most insightful snapshot. As was highlighted in Module 2, the Model Law makes it clear that the role of the national court in intervening in an arbitration conducted under its provisions is limited to only those matters that are specifically provided for in the Model Law itself. There are some variations in the arbitration laws of some Model Law states, but nevertheless, the general proposition that court involvement should only occur in very limited circumstances holds true. Thus, the national court may be expected to have a part to play where called upon in the following instances:

1. challenge to and termination of the mandate of an arbitrator
2. challenge to the arbitral tribunal’s jurisdiction
3. the setting aside of an arbitral award
4. court assistance in taking evidence
5. court ordered interim measures
6. recognition of the arbitration agreement, including issues as to its compatibility with interim measures that have been ordered by the court
7. recognition and enforcement of interim measures, or
8. recognition and enforcement of an arbitral award.

(Although not addressed in the Model Law, a court may also have engagement in any issue arising as to the contractual relationship between a party and an arbitrator and as to the consolidation of arbitral proceedings.)