The jurisdiction of the courts is not something one usually thinks of when it comes to the conclusion of an arbitration agreement. Despite doctrines advocating for a transnational or anational approach to international arbitration, arbitral proceedings are being conducted under the national lex arbitri. In some ways, they are reliant on the courts, especially with regard to judicial assistance and the performance of the controlling functions that the state retains over arbitration.
Unlike the jurisdiction of the Arbitral Tribunal, which is the direct result of the Parties´ autonomy, the jurisdiction exercised by courts is determined by the law of the particular state and cannot be influenced by the Parties. Contrary to the general belief, the involvement of courts may prove to be quite complicated.
The national lex arbitri usually reserves the full jurisdiction of the courts only for proceedings that are considered domestic in the relevant state. When it comes to foreign proceedings, the scope of jurisdiction of the courts varies significantly. In some cases, the Parties to such proceedings or the Arbitral Tribunal have no access to the courts of another state at all. What makes the situation even more complex is the fact that the seat of arbitration as the decisive (but not exclusive) connecting factor needs to be seen as an “artificial” legal concept. It does not have to have any real connection to the Parties or the subject of arbitration, which makes the need for intervention by the courts of another state (that has an actual connection to the proceedings) more likely.
There are different ways in which the choice made by the Parties with regard to the seat of arbitration influences the way in which judicial assistance of the courts may be sought. When determining the seat of arbitration, the Parties should take into account several key issues in order to ensure that the arbitral proceedings won´t be jeopardised due to a lack of judicial assistance.