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27 J. Int'l Arb. 51 (2010)
National Courts and International Arbitration: A Double-Edged Sword

handle is hein.kluwer/jia0027 and id is 55 raw text is: Journal of International Arbitration 27(1): 51-73, 2010.
(O 2010 Kluwer La, International. Printed in The Netherlands.
National Courts and International Arbitration:
A Double-edged Sword?
Sameer SATTAR*
International arbitrations play a key role in resolving cross border conmercial disputes. Parties choose interna-
tional arbitration primarily because it enables the parties to have their disputes adjudicated without any involve-
inent of national courts. It is clear that the supervisory role of national courts is necessary for the proper conduct
of international arbitrations and to ensure that the arbitral process meets the due standards offairness. However,
in recent tinies, the involvement of national courts in aid of effective arbitrations seems to be a growing concern
since their involvement tends to hinder the arbitral process rather than protecting the same. In imany cases, it can
be seen that the supervisory and curial powers are being misused by national courts, the victinis of which are
parties to international arbitrations. This is most apparent in the Asian subcontinent. This paper discusses in
detail the problems arising out of the national court's role in international arbitrations and highlights few of the
leading cases where the national court's involvement has adversely afected international arbitrations. It also
notes the possible dangers associated with undue interferences by national courts which may give rise to state
liability under international law. In this connection, the recent landmark decision of Saipen v. Bangladesh is
analyzed which sends a clear warning to all national courts exercising supervisory jurisdiction over international
arbitrations to exercise their powers cautiously.
I.   INTRODUCTION
In recent times, international arbitration has been the most preferred method of
resolving cross-border commercial disputes. This is because the procedure is flexible and
allows the party greater autonomy in resolving their disputes.There is no doubt that party
autonomy has been one of the key driving forces in support of international arbitration.
However, running parallel to this is the fact that international arbitration is one of the
methods of alternative dispute resolution.
International arbitration is an alternative to the national courts having jurisdiction to
determine disputes which the parties have entangled themselves into. Parties may be
reluctant to submit their disputes to national courts for various reasons. Parties in cross-
border disputes may be unfamiliar with the complicated procedure of litigation and the
language of the national court. In some cases, the parties may not be in a position to fully
trust the national courts. In many countries, the independence of the judiciary cannot be
taken for granted and executive interventions in court proceedings are likely to influence
the outcome of the proceedings.' Also, most businessmen want a quick and efficient
* Md. Sarneer Sattar is a qualified barrister and represented the Respondent in Saipen v. Bangladesh as its junior
counsel. Sameer has been regularly involved in high value commercial disputes and transactions. Given his growing
interest in international arbitrations and international law, Sameer has recently completed his LLM at University College
London with specific modules on international arbitrations and international investment laws. Sameer would like to
thank his parents and wife for all the support he has received throughout. He would also like to give special thanks
to Ajmal Hossain for introducing him to international arbitrations.
' R. Doi.znn & C. SCHREUER, PRINCIPLES OF INTERNATIONAL INvEsTMNr LAw 214 (2008).

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