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CHRISTA ROODT â 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 conï¬icts 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 conï¬dence is marred whenever this tension remains unresolved. Jurisdictions that have tackled the issues associated with the priority and exclusivity in conï¬icts 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 ï¬ne. 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 ânew science of conï¬ict of litigationâ to better manage
African Journal of International and Comparative Law – Edinburgh University Press
Published: Sep 1, 2011
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