Global Guide on Arbitration-Related Court Proceedings

Starting with interim measures, passing through setting aside actions and going all the way to both domestic and international enforcement efforts, arbitration-related court proceedings often have a significant impact during an arbitration, and beyond it.

National courts play a fundamental role in how arbitral proceedings are conducted and what the ultimate fate of the award resulting from them will be. Understanding the varying approaches among the various domestic legal frameworks and the municipal nuances and intricacies within them can be the difference between a smoothly-run and effective process and a cumbersome and potentially ineffective one.

Arguably, the main goal of parties involved in an arbitral proceeding is to obtain a final and enforceable decision in an efficient manner. This is true in both commercial and investment arbitration settings. Understanding the legal framework and the main traits of the systems in which such enforcement efforts will take place is key. This is also the case where the enforcement and execution of an arbitral award is sought in more than one jurisdiction. There, instruments such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 and the ICSID Convention of 1965 stand out as two of the main pillars upon which the efficiency and international success of the system rest. But the global success and wide-spread adoption of these instruments must not take a party’s focus away from the importance of domestic considerations.

Just as awards can be enforced, discontented parties may also wish to invoke grounds that could lead to a refusal of enforcement or may wish to seek to have awards annulled or set aside. Although, by rule of thumb, it may be expected that national courts in most jurisdictions will exercise restraint when carrying out such review, no general ‘one size fits all’ exists. In the vast majority of arbitral proceedings (with the notable exception of ICSID arbitration), the courts at the seat will constitute the most important layer of control over the arbitration and its outcome. Thus, being familiar with the grounds, knowing the approaches and understanding the local lenses through which national courts will review an award and the proceedings leading to it can have fundamental consequences for the survival of the award and, naturally, for its potential enforcement.

In this comparative review, we take a practical look at some of the most relevant questions that parties to arbitral proceedings have when it comes to the role that national courts may play in relation to arbitration. We examine, for example, in which context national courts will step in to provide support, the availability of interim relief (including anti-suit injunctions), what the approach of national courts may be in setting aside proceedings, how domestic and foreign awards are enforced, and how long setting aside proceedings and enforcement proceedings usually last. Jurisdictions covered include: Australia, Belgium, France, Germany, Greece, Hong Kong SAR, Italy, Japan, Luxembourg, Netherlands, Poland, Portugal, Singapore, South Africa, Spain, Sweden, the United Kingdom and The United States.

This comparative review is intended to highlight some of the most relevant issues rather than to provide comprehensive advice. If you have any particular questions about arbitration-related court proceedings, please do not hesitate to reach out to the Linklaters lawyers with whom you work or to any of the Key Contacts listed below.