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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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