Limitation on the role of the court

Article 5 of the Model Law has the effect of restricting the role that a court may play in arbitration, with its intervention being confined to matters provided for in the Model Law. Although it is true that some states have departed from or not followed the Model Law in that respect and have given the courts a wider power, nevertheless it is generally the case that the role of the national court is clearly defined and usually deliberately narrow.

This reflects the underlying reality: parties (and commercial parties at that) to an arbitration have made a reasoned decision not to have recourse to the courts for the purposes of settling their dispute.

Indeed, if a party to an arbitration agreement seeks to circumvent or “trump” that agreement by initiating litigation, then art 8(1) of the Model Law (and indeed, art II(3) of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 UNTS 3 (entered into force 7 June 1959)) is clear: the court before which such an action is brought must, on a request by the party seeking to uphold the arbitration agreement, refer the parties to arbitration unless it finds that the arbitration agreement itself is null and void, inoperative or incapable of being performed.

Where it is being argued before the court that an arbitration agreement should be upheld, the court will be asked to stay the legal proceedings and refer the parties to arbitration. As to the test that the court will apply, the usual position of the court will be to proceed with a prima facie review as to the existence and validity of the arbitration agreement. This is the stance of the courts in Singapore, with a prima facie test being confirmed in respect of s 6 of the International Arbitration Act (the equivalent provision to art 8(1) of the Model Law) by the Court of Appeal in Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals [2016] 1 SLR 373; [2015] SGCA 57.

The practical effect of this is that a party seeking to rely on an arbitration agreement will have to show that there is a plainly arguable case in favour of arbitral jurisdiction. The courts in Hong Kong adopt the same threshold of the prima facie test, which will be satisfied “if the court was of the view that cumulatively the evidence was cogent and arguable and not dubious or fanciful” (see Ocean Park Corporation v Proud Sky Co Ltd [2007] HKCU 1974 and PCCW Global Ltd v Interactive Communications Service Ltd [2007] 1 HKLRD 309; [2006] HKCA 434). Conversely, it should be had in mind that other states (including England), though, take the approach that a full review should be conducted.