Arbitration Agreement and Substantive Claim before Court

Article 8 was perceived as expressing a universal general principle that was fundamental to international arbitration. A suggestion was put forward whereby the courts would be vested with authority to refuse recourse to arbitration if the award was unlikely to be enforced in the seat. However, it was felt that this obfuscated the very essence of arbitration and in any event there were no assurances that the award would ultimately be challenged, let alone set aside, or that it would not be recognised or enforced in other jurisdictions. While there was no contention that a party could not be allowed to invoke the arbitration agreement following his or her submission of the first statement on substance, it was felt that the court should not be empowered ex officio (i.e. without request) to refer the parties to arbitration.