CMS Arbitration Atlas
Examining the relationship between arbitration and national courts
Germany: The level of scrutiny of awards applied by German courts - a reality check
Hong Kong: Pro-Arbitration courts intervening only in rare and exceptional circumstances
Singapore: lessons from the Singapore courts in breach of natural justice cases
Dubai: Divergent paths in arbitration enforcement: public policy in UAE onshore vs DIFC Courts
International arbitration is widely recognised as a cornerstone of cross-border dispute resolution, offering parties a neutral, flexible and private forum.
Arbitration does not, however, operate in a vacuum. Instead, the arbitral process reserves a central role for national courts under which the courts can both provide support to tribunals and act as a check on them.
Why are national courts so important to the arbitration process?
National courts have a critical role in supporting the arbitral process by using their powers to preserve evidence, order witnesses to give evidence in arbitration proceedings, and enforce final awards. National courts also perform a supervisory role and have the power to step in and set aside or refuse to enforce an arbitral award, where they consider the circumstances require.
Many jurisdictions have adopted arbitration laws based on established model laws, resulting in a degree of harmonisation. These similarities include allowing for arbitral awards to be set aside where the tribunal lacked substantive jurisdiction. However, important differences remain in how national courts approach and interact with arbitration. These sometimes subtle distinctions can have significant implications, often giving rise to complex issues that shape the outcome of arbitral proceedings.
Data-driven analysis to identify differences in national courts approaches and what this means for arbitration practitioners
Our Arbitration Atlas series has been researched and written by CMS arbitration practitioners across ten key jurisdictions. Over the next few weeks, we will draw on data and information from the national courts to examine the evolving relationship between arbitration and the courts in each jurisdiction.
We begin in Asia, looking at Singapore's approach to procedural fairness in arbitration and Hong Kong's pro-arbitration stance.
In the Middle East, we explore how Dubai’s dual legal system throws up differences between the UAE and DIFC courts and their use of public policy to challenge arbitral award enforcement.
Turning to Europe, we will use CMS data analysis to evaluate the scrutiny of awards by national courts in the United Kingdom, Germany, France and the Netherlands before flying across the equator to South Africa, where we will look at the national courts' roles in enforcing, appealing, and reviewing arbitral awards.
Finally, we look across the Atlantic to South America, where we will consider Peru’s approach to the annulment of awards and we will look at the recent phenomenon in Chile by which the Recurso de Queja (complaint appeal) mechanism has, in recent years, transformed an extraordinary remedy to a day-to-day means of challenging arbitral awards.
We hope you enjoy travelling the world with us. If, on your journey, you need more information about arbitration in any of our featured jurisdictions, please refer to the relevant country chapter in the CMS Guide to International Arbitration.
To receive updates on CMS Arbitration Atlas series, please follow CMS Dispute Resolution on LinkedIn and register for alerts from CMS Law-Now.
