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Conflicts of Procedure between Courts and Arbitral Tribunals with Particular Reference to the Right of Access to Court

Conflicts of Procedure between Courts and Arbitral Tribunals with Particular Reference to the... CHRISTA ROODT ∗ I. INTRODUCTION International commercial arbitration has always been an area where different legal traditions tended towards similarities in regard to their regulatory policies, legal processes and judicial theory. Courts play a vital supporting role in relation to arbitration agreements and awards. Nonetheless, unnecessary conflicts between arbitration and judicial adjudication occur often. Tension develops between fairness, arbitral autonomy and party autonomy; or when the fairness implicit in the balance between adjudicatory fora competes with the fairness associated with a constitutional rights perspective that guards access to court. Commercial confidence is marred whenever this tension remains unresolved. Jurisdictions that have tackled the issues associated with the priority and exclusivity in conflicts of jurisdiction between courts and arbitral tribunals along the model provisions found in the UNCITRAL Model Law on International Commercial Arbitration1 seem to be doing fine. In the European Union, various efforts have been made to improve the interface between curial and extra-curial proceedings. However, none of the reform proposals promise lasting solutions. In several other jurisdictions such as South Africa, various interests have fallen into disharmony in this area of the law. McLachlan has envisioned2 a ‘new science of conflict of litigation’ to better manage http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png African Journal of International and Comparative Law Edinburgh University Press

Conflicts of Procedure between Courts and Arbitral Tribunals with Particular Reference to the Right of Access to Court

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Publisher
Edinburgh University Press
Copyright
©© Edinburgh University Press 2011
Subject
General Issue Articles; African Studies
ISSN
0954-8890
eISSN
1755-1609
DOI
10.3366/ajicl.2011.0012
Publisher site
See Article on Publisher Site

Abstract

CHRISTA ROODT ∗ I. INTRODUCTION International commercial arbitration has always been an area where different legal traditions tended towards similarities in regard to their regulatory policies, legal processes and judicial theory. Courts play a vital supporting role in relation to arbitration agreements and awards. Nonetheless, unnecessary conflicts between arbitration and judicial adjudication occur often. Tension develops between fairness, arbitral autonomy and party autonomy; or when the fairness implicit in the balance between adjudicatory fora competes with the fairness associated with a constitutional rights perspective that guards access to court. Commercial confidence is marred whenever this tension remains unresolved. Jurisdictions that have tackled the issues associated with the priority and exclusivity in conflicts of jurisdiction between courts and arbitral tribunals along the model provisions found in the UNCITRAL Model Law on International Commercial Arbitration1 seem to be doing fine. In the European Union, various efforts have been made to improve the interface between curial and extra-curial proceedings. However, none of the reform proposals promise lasting solutions. In several other jurisdictions such as South Africa, various interests have fallen into disharmony in this area of the law. McLachlan has envisioned2 a ‘new science of conflict of litigation’ to better manage

Journal

African Journal of International and Comparative LawEdinburgh University Press

Published: Sep 1, 2011

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