Article 5 of the Model Law: Protector of the Arbitral Process?

Abstract

The question of judicial intervention remains highly significant in international commercial arbitration. Article 5 of the Model Law was included in the text both to identify those matters in which intervention is permitted and to define the nature and manner of such intervention. WhileArticle5 has been largely effective in regulating judicial intervention in matters expressly governed by the Model Law, the issue of abuse of process raised by the presence of concurrent court and arbitration proceedings has been more contentious. This article contends that this issue should also fall within the scope of the Model Law as a matter concerning court intervention in arbitral jurisdiction. While Article 5 does not directly apply to foreign-seated arbitrations, the policies of limited court intervention and respect for arbitral jurisdiction should still be influential.

Note: “Reprinted from Journal of International Arbitration, Volume 38 Issue 2, pp. 127 - 146, with permission of Kluwer Law International.”

Keywords: arbitration, judicial intervention, UNCITRAL Model Law, Article 5, abuse of process, anti-suit injunction, anti-arbitration injunction