Pristojnost za izdajo začasnih ukrepov v arbitražnem postopku

slovenian

2017

volume 43, issue 2

arbitration   concurrent jurisdiction   conflict of jurisdictions   contractual exclusion of jurisdiction   exclusive jurisdiction   interim measures   jurisdiction to issue interim measures   party autonomy   restricted access to court   subsidiary jurisdiction   supportive role of the court   the right of access to court

Narodna in univerzitetna knjižnica
(Obvezni izvod spletne publikacije)

The role of national courts in arbitration is based on the principle of judicial non-interference that limits the courts' intervention to supportive and controlling functions arbitration is not empowered to perform or is ineffective in performing due to its' contractual nature. However, an important exception to the principle of judicial non-interference exists in the scope of interim measures issued in support of arbitration, where arbitral tribunals and national courts often have concurrent jurisdiction to issue interim measures. Which of the two forums is capable of providing more effective legal protection to the parties depends on a variety of circumstances, some of which may even be unknown or unforeseen upon the conclusion of the arbitration agreement. It is therefore of great importance that the parties draft the arbitration agreement in a way that is: (1) flexible enough to enable a party to submit its request for issuance of an interim measure from either forum; and (2) specific enough to allocate the relevant powers between the arbitral tribunal and the court, in order to prevent a potential conflict of jurisdictions. A poorly drafted arbitration agreement may result in procedural delays or even conflicting decisions issued by the court and the arbitral tribunal and can consequently frustrate and detrimentally impact the parties' effective legal protection in urgent circumstances or even result in additional damages incurred by the applicant. This article explains the conditions for (concurrent) jurisdiction of arbitral tribunals and national courts when issuing interim measures in support of arbitration and provides an analysis of the circumstances that call for either the exclusive or parallel jurisdictions of either forum.. Lastly, this article addresses conflicting views on the admissibility of a contractual clause excluding the courts' jurisdiction to issue interim measures and the resulting complex implications on the interplay of the principle of party autonomy and a party's right to access to a court.

09.11.2017