Browsing by Author "Willgren, Tuuli Maria"

This thesis deals with two conflicting interests: the privacy of arbitration proceedings and the need for efficient judicial control. The question has been narrowed down to the most fundamental issue of all, review of the existence of a valid arbitration agreement. Arbitration is based on a private contract, a common will of the parties to renounce the right to have their disputes resolved in a court of law. Therefore, there can be no valid arbitration without a valid agreement to arbitrate. The way in which challenges to the jurisdiction of the arbitral tribunal are treated is a reflection of how much trust and leverage arbitrators are given in a specific system. Thus, the question of challenges to jurisdiction is linked to a larger question: the founding theories of arbitration. Many states have adapted their laws in order to attract international disputes. Instead of dealing with national considerations, states now enact legislation in the hopes of better catering for the needs of the international business community. The success of the UNCITRAL Model Law on International Commercial Arbitration is an example of the popularity of arbitration-friendly statutes. Besides the Model Law, the study explores the provisions of French and Swedish arbitration laws in order to illustrate the consequences of opposite solutions to the same question, judicial review of competence/competence. The position of arbitration as the preferred method of dispute resolution in international commercial relationships can be attributed to the neutrality of the proceedings and the extensive enforceability of arbitral awards. Neutrality is attained through the fact that arbitration can take place in a state that is not home ground to either party. If neither party tries to hinder the arbitration, there is a possibility of the dispute remaining private throughout the proceedings. The arbitral award shall be final and carried out by the parties. Depending on the seat of arbitration and the law governing the proceedings, an objecting party may, however, have numerous possible ways in which to disrupt the proceedings and cause losses of time and money by commencing litigation in the neutral and thus foreign court. The benefits of arbitration, i.e. finality, swiftness, efficiency, adaptability, and secrecy, are quashed if one of the parties decides to bring about court action to delay the arbitral proceedings or to set aside the award. Inefficiency and loss of time due to judicial control are reasons that may discourage parties from choosing arbitration as their form of dispute resolution, or at least from choosing a certain state as the seat of arbitration. With this in mind, the paper will illustrate certain situations that parties choosing the seat of arbitration should consider.