1 - Introduction

Summary

This chapter broadly reviews the relationship between the arbitration and judicial systems as well as substantive national laws that restrict the use of the arbitration process. The relationship is inherently in tension because two core principles are in conflict: independence of commercial arbitration and judicial intervention to ensure the fairness of the arbitration process. This chapter reviews and suggests how best to balance these two competing interests. This will include an analysis of the principle of separability (contract arbitration clauses are independent of the contract) and kompetenz–kompetenz (whether the arbitration panel or the courts are empowered to determine the jurisdiction of the arbitration panel and the scope of the arbitration clause). The chapter concludes by describing the structure and content of the chapters to follow and providing some final remarks. The editors would like to note that the scholarly contributors include some of the very best minds in legal scholarship. The list of contributors includes a diverse mix of scholars and practitioners from fifteen countries.