Playing Offence, Not Defence, In International Arbitrations


What is the best way to protect the authority of international commercial arbitrations? Is a party obliged to "play defence" and not ask the courts of the seat of the arbitration to interfere until after arbitration proceedings are commenced? Or can a party "play offense" and ask those courts to take jurisdiction before any arbitration proceedings begin? This is the issue which the UK Court of Appeal addressed in AES-Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower Plant JSC.

Clearly, if the courts of countries which are not the seat of the arbitration "play offence" and issue conflicting declarations and injunctions, it would play havoc with the arbitration regime. There must be one and only one court system which exercises this supervisory "sooner or later" jurisdiction, and that is the court system of the seat of the arbitration. For those who need the pro-active internention of that court system to protect an arbitral regime, the Kamenogorsk decision is a powerful pronouncement.

internation commercial arbitration, declaratory relief, jurisdiction of the court

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Thomas Heintzman
Arbitration Place

Thomas G. Heintzman specializes in arbitration and mediation at Arbitration Place in Toronto. His... View Profile »

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