Introduction: Intersection of Courts and Arbitration

This chapter broadly reviews the relationship between the arbitration and judicial systems as well as substantive national laws that restrict the use of the arbitration process.The relationship is inherently in tension because two core principles are in conflict: independence of commercial arbitration and judicial intervention to ensure the fairness of the arbitration process. This chapter reviews and suggests how best to balance these two competing interests, including an analysis of the principle of separability (contract arbitration clauses are independent of the contract) and kompetenz–kompetenz (whether the arbitration panel or the courts are empowered to determine the jurisdiction of the arbitration panel and the scope of the arbitration clause).