Emerging Issues in International Commercial Arbitration: The Evolving Role of Courts

1.0 Introduction
1
The role of courts in international commercial arbitration is crucial, as they play a significant
part in supporting, supervising, and safeguarding the arbitral process. In the face of emerging
issues, courts have a responsibility to uphold the integrity and effectiveness of arbitration while
maintaining a delicate balance between intervention and respect for party autonomy.

1.1 The Appointment of Arbitrators

The appointment of arbitrators is a critical aspect of arbitration, as their neutrality and expertise
contribute to fair and impartial dispute resolution. In cases where the parties are unable to agree
on the appointment of arbitrators, courts often play a role in the selection process. They may
intervene to appoint arbitrators, especially when arbitration agreements or institutional rules
provide for court intervention2. However, courts must exercise caution to ensure that their
intervention does not undermine the principle of party autonomy, which is a cornerstone of
arbitration3.

1.2 Enforcement of Arbitral Awards

The enforceability of arbitral awards is a fundamental aspect of international commercial

arbitration. Parties choose arbitration for its efficiency and enforceability across borders. Courts
play a critical role in enforcing arbitral awards by recognizing and executing them under
applicable laws and international conventions, such as the New York Convention4. However,
challenges can arise when parties seek to resist enforcement or when courts apply different
standards in the recognition and enforcement process. 5Courts must maintain a pro-enforcement
approach to preserve the finality and effectiveness of arbitration awards.
1
Redfern, A., & Hunter, M. (2018). Law and Practice of International Commercial Arbitration. Sweet & Maxwell.

2
Born, G. (2014). International Commercial Arbitration (2nd ed.). Kluwer Law International.

3
Schreuer, C., Malintoppi, L., Reinisch, A., & Sinclair, A. (Eds.). (2021). The ICSID Convention: A Commentary
(2nd ed.). Cambridge University Press.

4
Moloo, R. (Ed.). (2019). Comparative International Commercial Arbitration. Oxford University Press.

5
Klöcker, F., & Nacimiento, P. (Eds.). (2017). Arbitration in Germany: The Model Law in Practice (2nd ed.).
Kluwer Law International.

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1.3 Interim Measures and Court Support

In certain circumstances, parties may need urgent relief before the arbitral tribunal is constituted
or while the proceedings are ongoing. Courts can provide interim measures, such as injunctions
or conservatory orders, to protect the parties' rights and maintain the status quo. The court's role
in granting interim measures is particularly relevant when the arbitral tribunal lacks the power to
issue such orders. Cooperation between courts and arbitral tribunals is crucial to ensure the
effectiveness of interim measures while respecting the tribunal's jurisdiction6.

1.4 Judicial Review of Arbitration-Related Decisions

Courts also play a role in judicial review of arbitration-related decisions. This includes
challenges to arbitral awards or decisions on procedural matters7. Judicial review allows for the
correction of procedural errors or instances of excesses by the arbitral tribunal. Courts may set
aside arbitral awards under limited grounds, such as the violation of public policy or lack of due
process8. The court's role in judicial review helps maintain the integrity of the arbitral process
and protects against potential abuses.

1.5 Emerging Issues and Future Trends

Emerging issues in international commercial arbitration, such as new technologies, digitalization,

and conflicts between national court decisions and arbitral awards, present challenges for both
courts and arbitration9. Courts need to adapt to these emerging issues by embracing technology,
developing specialized knowledge, and fostering a cooperative relationship with arbitral
tribunals. 10Specialized arbitration courts, as seen in some jurisdictions, can provide expertise and
enhance the efficiency and consistency of arbitration-related court proceedings.

In conclusion, the role of courts in international commercial arbitration is multifaceted. Courts

play a vital role in the appointment of arbitrators, enforcement of arbitral awards, provision of
interim measures, and judicial review of arbitration-related decisions11. It is essential for courts to
6
Poudret, J. F., & Besson, S. (2007). Comparative Law of International Arbitration. Sweet & Maxwell.

7
Schreuer, C., Malintoppi, L., Reinisch, A., & Sinclair, A. (Eds.). (2021). The ICSID Convention: A Commentary
(2nd ed.). Cambridge University Press.
8
Gary B. Born (2017) ."The Role of Courts in International Commercial Arbitration"

9
Nigel Blackaby, Constantine Partasides, et al. (2015).”Redfern and Hunter on International Arbitration”

10
Christopher Drahozal (2018).”Courts and Arbitration in a Converging World: A Comparative Study of the Lex
Mercatoria in Practice"
11
Jan Kleinheisterkamp (2015) ."The Influence of the Judiciary on International Commercial Arbitration"
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strike a balance between supporting arbitration and respecting party autonomy, ensuring the
effectiveness and integrity of the arbitral process12. As emerging issues continue to shape the
landscape of international commercial arbitration, courts must adapt and develop strategies to
address these challenges and foster a harmonious relationship between courts and arbitration.

12
Julian D. M. Lew, Loukas A. Mistelis, and Stefan M. Kroll (2012) ."The Powers and Duties of an Arbitral
Tribunal and the Courts in International Arbitration"
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