Some pre-trial problems in international commercial arbitration

Abstract

Pre-arbitration procedure is an evolving field. Practitioners have to cope with new strategies in arbitration, but it is difficult to identify the real issues. Anti-suit injunctions are increasingly used in civil law jurisdictions as is discovery. It is analysed how an arbitrator shall deal with mandatory law of the enforcement state although it is not the applicable law of procedure clearly chosen by the parties. With regard to how to deal with the impecuniosity of one party it is proposed that impecuniosity gives good grounds to the arbitrators to ask for security for costs in order to secure arbitration to take place. Illicit behaviour of one or both parties poses a growing problem in the Asian region. It is suggested that arbitrators are not always duty bound but have to react on certain types of illicitness once they become aware of it.