Remedies against state interference with arbitration

The aim of this article is to discuss the remedies available to the victims of breakdowns of the arbitral process, when the breakdown occurs at the hands of a state, and more specifically of its courts. By breakdown I mean a situation in which a domestic court acts in relation to a given arbitral proceeding in a way that would appear objectionable from the point of view of what arbitration experts would consider to be the correct approach to arbitration. The typical cases are those in which a court (i) refuses to uphold an arguably perfectly valid arbitration agreement, (ii) prevents the arbitration from going forward in different ways, typically by enjoining the arbitrators, (iii) sets aside an award in dubious circumstances or (iv) refuses to enforce foreign awards in the absence of one of the grounds provided for by the 1958 New York Convention on the recognition and enforcement of arbitral awards. Breakdowns of this sort occur even today, notwithstanding the fact that arbitration is increasingly accepted internationally, that more and more countries embrace an arbitration-friendly culture, and that domestic arbitration laws around the world are increasing uniform. The question that I propose to examine here is whether there is any type of remedy available to the party that considers itself to be the victim of such encroachments on the reasonable expectations of the users of international arbitration.