The Interaction of Arbitration and State Courts: A Growing Confrontation or a Peaceful Coexistence?
pages 195 - 216
ABSTRACT:

In this article the question of the interaction between arbitration and state courts is considered in a bilateral aspect. We consider whether the state recognizes the jurisdictional nature of arbitration, on the one hand, and whether the forms of interaction between arbitration and state courts do correspond to the essence of arbitration, on the other hand. During the analysis the conclusion is demonstrated that the contract or non-jurisdictional theory of the legal nature of arbitration as simply a pre-trial settlement instrument should be left in the past. Arbitration proceedings are accepted worldwide as an alternative form of dispute resolution. In this regard such a common concept that ‘justice is carried out only by the court’ does not itself deny the jurisdiction of the arbitral tribunals. It is necessary to clearly distinguish such concepts as the state protection of rights and judicial protection, with the latter as a subspecies of the former. To give justice the sense that it forms a departure or the function of the state government only is not entirely consistent with the constitutional principle of the rule of law. Among the generally accepted legal ways of resolving civil disputes in modern society, arbitration means the existence of a dispositive or discretionary basis for civil substantial and procedural relations, arising from the contractual freedom along with the autonomy of the will of the participants in commercial and other economic activities. Because of this the character of interaction with the state courts is the result of a consensus, in which the state court provides the necessary support which ensures the enforceability of arbitral awards, and its controlling capabilities over arbitration proceedings are severely restricted by law. Such a general approach is confirmed through an examination of various issues related to the organization and conduct of arbitration (in particular, appointment, challenge and termination of the mandate of an arbitrator, the jurisdiction of the arbitral tribunal and the setting aside of the arbitral award), as well as through an examination of issues related to ensuring effective implementation of disputable interests of the parties. In particular, court assistance in taking evidence, the compatibility of court-ordered interim measures with the arbitration agreement, the recognition and enforcement of interim measures, and the recognition and enforcement of arbitral awards are all significant issues.

keywords
Jurisdiction
autonomy
state courts
arbitration
court interaction
UNCITRAL Model Law
about the authors

Alexander P. Sergeev, Doctor of Law, professor of the Civil Law Department at the Law Faculty of St.Petersburg State Economical University, counsel with DLA Piper, Russian Government Prize laureate, President of Arbitration Court ‘IUS’, arbitrator of Arbitration Court of St. Petersburg CIC, expert in international disputes on Corporate, Contract, Intellectual Property Law, author and co-editor of more than 100 articles, works on Russian /English.

e-mail: apsergeev2004@mail.ru

Tatiana A. Tereshchenko has a Ph.D. in Law. She is an associate professor of the Civil Law Department at the Law Faculty of St. Petersburg State Economical University,. She is also an advocate with the Law Firm ‘Prime Advice Saint-Petersburg’, FCIArb, and an arbitrator in the Arbitration Court ‘IUS’ specializing in international disputes on Corporate, Contract, Intellectual Property Law. She is the author of more than 35 articles in both Russian and English.

e-mail: t.tereshchenko@hlbprime.com, t_t.06@mail.ru