NEW YORK CONVENTION

Articles II
The court of a Contracting State, when seized of an action in a matter in respect of which the
parties have made an agreement within the meaning of this article, shall, at the request of one of
the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void,
inoperative or incapable of being performed.

Article III
Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance
with the rules of procedure of the territory where the award is relied upon, under the conditions
laid down in the following articles.

Article V
1. Recognition and enforcement of the award may be refused, at the request of the party against
whom it is invoked, only if that party furnishes to the competent authority where the recognition
and enforcement is sought, proofincapacity, invalidity, lack of due process etc.

2. Recognition and enforcement of an arbitral award may also be refused if the competent
authority in the country where recognition and enforcement is sought finds that: (a) The subject
matter of the difference is not capable of settlement by arbitration under the law of that country;
or (b) The recognition or enforcement of the award would be contrary to the public policy of that
country.

UNCITRAL Model Law

Article 5 provides that no court shall intervene except where so provided in this Law,
Article 6 designates just three areas for court involvement in an arbitration within its jurisdiction.

TAKEAWAY

1. Court intervention is crucial in circumstances supporting the arbitral process and for
recognition and enforcement of arbitration agreements and awards but nothing else.

2. The only courts that should delve in the arbitration process are those at the seat of arbitration or
the place of enforcement.

3. Court intervention may be divided into four stages: 1) Prior to the establishment of a tribunal;
2) At the commencement of arbitration; 3) During the arbitration process; 4) During the
enforcement stage.

QUESTION:
EXPLAIN THE ROLE OF NATIONAL COURTS AT THE BEGINNING OF
ARBITRATION. WHY IS THEIR ROLE IMPORTANT? CONSIDER RECENT
DEVELOPMENTS OF INTERNATIONAL COMMERCIAL ARBITRATION.

ROLE OF LOCAL COURTS AT THE BEGINNING OF ARBITRATION

Enforcement of Arbitration Agreement pursuant to Article II of the New York

Convention
 Protection of a partys urgent needs that cannot await the appointment of the tribunal
such as interim reliefs.
o To preserve status quo or prevent destruction of evidence
o A party may be denied justice if the court becomes impotent in granting interim
reliefs.
o Applicability in the Philippines: Chapter 4, Rule 2 (4.9) of ADR Act of 2004
states: A party may request from a court before the institution of an arbitral
tribunal or during the arbitral proceedings an interim measure of protection to the
extent that the tribunal has no power to act or unable to act effectively. These
interim measures include injunction, appointment of receiver, preservation,
inspection of property etc.
o However, the tribunals consent is necessary before making the court application
so as not to offend the formers view on the substance of the case.
Court has an authority to give effect to the parties agreement through an establishment of
appropriate tribunal to take oversee the settlement of the dispute pursuant to Article 11(5)
of UNCITRAL Model Law
o Where, under an appointment procedure agreed upon by the parties, (a) a party
fails to act as required under such procedure, or (b) the parties, or two arbitrators,
are unable to reach an agreement expected of them under such procedure, or (c) a
third party, including an institution, fails to perform any function entrusted to it
under such procedure, any party may request the court or other authority
specified in article 6 to take the necessary measure, unless the agreement on the
appointment procedure provides other means for securing the appointment.

SOURCES:

Does National Court Involvement Undermine the International Arbitration Processes? By Julian
D M Lew. Accessed through:
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1094&context=auilr

No Arbitration is an Island: THE ROLE OF COURTS IN AID OF INTERNATIONAL

ARBITRATION by Charles Correll Jr. and Ryan Szczepanik