International business transactions

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OUTLINE International Business Transactions
Arbitration Agreement

  • The parties to an arbitration can also determine by agreement the degree of court intervention of their choice. Yet they can do this only within the limits of domestic law and court practice. These limits are of three different kinds.

    • First, under domestic law courts may refuse to take a measure for which they lack statutory authority, even if authorized by the parties to the agreement to arbitrate;

    • Second, courts may consider null and void or inoperative an agreement to exclude any of its statutory powers;

    • Third, an agreement modifying, limiting or increasing the powers of courts to take measures in connection with arbitration may require special formalities

  • Under the New York Convention:

    • Courts are under a duty to refer the parties to an agreement to arbitrate to arbitration;

    • Courts may not take measures contrary to that duty; and

    • Courts are under a duty to recognize and enforce a foreign arbitral award.

  • Within this framework, court measures are primarily regulated by domestic law and practice, which vary considerably among countries. The parties to arbitration can regulate the availability of court measures within the framework of domestic law. This framework consists of:

    • Rules and practices severely limiting the creation of new court powers through contractual agreement;

    • Mandatory rules prohibiting the exclusion of certain court measures; and

    • Rules demanding specific formalities for the contractual agreements increasing or excluding court powers to take measures in connection with arbitration.

  • Setting aside an award

    • whereas an award set aside at the place where it was made is difficult to enforce under the New York Convention, its enforcement under other treaties or domestic law cannot be completely discarded.

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