Open Access Research Article
ARBITRAL TRIBUNALS’ POWER TO GRANT ANTI-SUIT RELIEF: LIMITS OF TRIBUNAL AUTHORITY IN INTERNATIONAL ARBITRATION
Abstract
An
arbitration clause carries an unstated promise that neither side will take the
dispute to court. That promise is often broken. A party unhappy with the
arbitral route may start a suit in its own country, sometimes to slow things
down, sometimes to gain leverage, and sometimes because it expects a better
hearing there. Earlier, the only real remedy was to approach a court for an
injunction against the other party. Now the request is increasingly made to the
arbitrators themselves, who are asked to direct the party in breach to withdraw
from the court case.
The
first part of this paper asks whether arbitrators can make such an order at
all. Their authority is normally said to flow from three places: the agreement
to arbitrate, the arbitration law of the seat, and whatever institutional rules
the parties have adopted. The 2006 revision of the UNCITRAL Model Law gives
tribunals an express power, in Article 17(2)(b), to stop a party from conduct
that would harm the arbitration. Indian law reaches a similar position through
Section 17 of the 1996 Act, and after the 2015 amendment an interim order of
the tribunal can be enforced in the same way as a court’s order. Two decisions
are examined in some detail. In Gazprom (2015), the European Court of Justice
found nothing in the Brussels I Regulation that prevented an arbitral award
from restraining court proceedings. In Amazon v. Future Retail (2021), the
Supreme Court of India held that an emergency arbitrator’s order could be
enforced under the Act.
The
second part deals with the limits on this power, which are significant.
Arbitrators act only because the parties have consented to their authority.
They cannot direct a court, they cannot bind outsiders to the arbitration
agreement, and they have no machinery of their own to make a party obey.
Respect for the jurisdiction of foreign courts adds a further restraint. The
researcher concludes that relief of this kind from a tribunal is helpful but
incomplete, and that it depends heavily on the support of national courts.
Suggestions are offered for making the power clearer in Indian legislation.
Published Paper
Author Details
Authors: NEHA JADHAVRegistration ID: 1013474 | Published Paper ID: IJLRA13474Approved ISSN: 2582-6433 | Country: Delhi, IndiaPage No.: 2564-2577
Article Information
ARBITRAL TRIBUNALS’ POWER TO GRANT ANTI-SUIT RELIEF: LIMITS OF TRIBUNAL AUTHORITY IN INTERNATIONAL ARBITRATION
Authors: NEHA JADHAV
- Journal IJLRA
- ISSN 2582-6433
- Volume 3
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
- AccessOpen Access
- LicenseCC 4.0
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