Introduction
Arbitration is a creature of contract.[1] A principal consequence of the arbitration agreement is that the parties choose arbitration and, by doing so, waive recourse to state jurisdiction;[2] it is therefore natural that this choice, like any contractual agreement, be respected by the parties (pacta sunt servanda)[3] and, where appropriate, enforced by state courts.[4] The jurisdiction of arbitrators is confined exclusively to declaring the law[5] (iurisdictio)[6] or, in other words, to resolving the dispute. However, arbitrators do not possess the powers of imperium or coertio[7] that states ordinarily and naturally possess, especially through the authorities of the court.[8]
As a contractual creature, and to give effect to the arbitration agreement by generating a private process,[9] states generally give immediate recognition to its effects,[10] postponing review of the agreement,[11] the arbitral process, and/or the award to a later stage, while also limiting the specific remedies available against arbitral decision-making.
The premises set out above create the need for legal systems to allow arbitration to proceed without interruption or disturbance before, during, and even after its conclusion, to recognize, respect, and enforce the parties’ will as expressed within the framework of recognized party autonomy. And, although it may seem contradictory or paradoxical,[12] the judiciary is the principal body of the state capable of and suited to guaranteeing specific performance of the arbitration agreement[13] and its consequences.[14] Thus, it becomes inevitable[15] for systems to establish links of cooperation with organs that possess imperium (courts) to assist or support arbitral proceedings and, under certain circumstances, to review them.[16]
To the extent that these relationships arise and develop healthily, one may likewise speak of the good health of arbitration[17] and, ultimately, of dispute-resolution systems. It should be recalled that arbitration, although private, performs a public function;[18] accordingly, the community at large has an interest in its proper functioning.
In this sense, many constitutions tend to elevate access to arbitration to the status of a fundamental right or recognize it at the apex of the normative hierarchy,[19] a recognition that goes hand in hand with international commitments pointing in the same direction,[20] such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) or the Inter-American Convention on International Commercial Arbitration of 1975, together with the incorporation into domestic legislation of the 1985 UNCITRAL Model Law on International Commercial Arbitration (as amended in 2006).
To ensure these relationships between arbitration and the judiciary are appropriately expressed, arbitral rules have recognized the principle of minimal judicial intervention (or interference) in arbitration. But what is minimal intervention? Where is it found? What is its purpose?
Grosso modo, minimal judicial intervention (or interference) in arbitration, is understood as the normative position adopted by a legal system whereby courts should provide support and review only in cases expressly provided for in arbitration law;[21] and, on the other hand, parties facing an arbitral dispute must, in respect of pacta sunt servanda, resolve it through arbitrators (positive effect) and refrain from resorting to judicial organs (negative effect).[22] Thus, minimal judicial intervention is a manifestation of the effects of the arbitration agreement, both its positive and negative effects.[23] This paper will show that the formulation of the rule[24] (and its derivative rules), together with the correspondence between its wording and its purpose,[25] make minimal intervention a legal principle that is decisive for the efficiency[26] and effectiveness of arbitration itself.[27]
Although it is not the purpose of this paper to discuss the nature, source (or origin), and validity of general principles (of law or in law),[28] it is useful to mention that a vast number of theories[29] have been advanced on the subject which, rather than providing a solution, have made clear the variety of forms and the typical ambiguity with which such principles appear in law.[30] For present purposes, however, we may conjecture two characteristics of general principles[31] which we believe the reader may accept: they are fundamental norms,[32] and they are affected by a particular form of indeterminacy.[33] As fundamental norms, they constitute the fabric of a given legal order and may be understood to perform a threefold function: directive, interpretive, and gap-filling.[34]
In the case of minimal intervention, its character as a fundamental norm derives from the importance it has for the effectiveness of arbitration as a dispute-resolution mechanism, and it becomes a general principle of the dispute-resolution system that adopts it, without which the promise of recognizing the parties’ freedom and choice to resolve their disputes through arbitration would be emptied of content. Although procedural systems are heterogeneous and contingent, minimal judicial intervention in arbitration points, in both purpose and formulation, toward the necessary harmonization (and even uniformity) of serving as a tool and guarantee for compliance with and enforcement of the arbitration agreement and for limited review of respect for the boundaries of private autonomy.
This paper argues that minimal judicial intervention should be understood as a functional rule for allocating jurisdiction: the courts should intervene only when that assistance is legally provided for as indispensable to make the arbitration agreement effective, effect the parties’ will, compensate for the arbitral tribunal’s lack of imperium, or exercise the post-award controls expressly established by law.
Minimal Judicial Intervention in the UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL ML)
Scholars indicate that arbitration cannot function in a vacuum[35] and assert that arbitration would not survive without the support of the courts.[36] Without disregarding the interesting conception that points to the delocalization of arbitration from any seat[37] and even to its autonomy,[38] the truth is that without the force of a specific legal order it is very difficult, if not impossible, to guarantee the effectiveness of an arbitral proceeding and its outcome.[39] In other words, arbitration as an adjudicative mechanism would have doubtful effectiveness if there were no normative framework allowing the enforcement of the arbitration agreement, support for the arbitral proceeding, and ultimately the granting—or denial—of effect to the product of the arbitral proceeding: the award.[40]
For this reason, the arbitral proceeding has, first, a natural pre-award connection with the place—the seat of arbitration—where the proceeding is or will be conducted, and even a connection with places where judicial support may be available for proceedings outside that place;[41] and, second, a post-award connection related to the possible places where the award will produce legal effects.[42] This connection entails a relationship between an arbitral proceeding and a given legal system.[43] That relationship is conditioned by the contractual nature of the agreement that gives life to arbitration and by the legal effects it produces,[44] which ideally translate into tolerating only those interventions by the judiciary that such systems expressly allow, so as not to affect the parties’ choice to submit their dispute to arbitration,[45] to avoid procedural abuses, and to ensure that arbitration ultimately serves as a single adjudicatory mechanism (one-stop adjudication).[46]
Thus, Article 5 of the UNCITRAL ML provides that:
In matters governed by this Law, no court shall intervene except where so provided in this Law.[47]
In the preparatory works underlying the instrument, different perspectives emerged regarding the scope and interpretation of the normative provision mentioned above.[48] However, it may be inferred that the drafters intended to establish, as a rule, that any eventual judicial intervention in arbitration would be excluded, subject only to the cases described in the Law (and in laws following the UNCITRAL ML) in which judicial intervention in arbitration is authorized.[49]
Accordingly, the purpose was to establish the rule of non-intervention or non-interference by the judiciary and, as an exception to that rule, to permit intervention only in the cases expressly regulated in arbitration laws. Thus, article 5 of the UNCITRAL ML must be read in coordination with article 6 of the same instrument, since, as will be seen, together they are “the front and reverse of a single rule of law.”[50] In this sense, article 6 established: “The functions referred to in articles 11(3) and (4), 13(3), 14, 16(3), and 34(2) shall be performed by . . . [Each State enacting this model law specifies the court, courts or, where referred to therein, other authority competent to perform these functions].”[51]
That is to say, the Model Law describes the matters in which judicial intervention may be necessary, such as the appointment of arbitrators in cases of failure to agree on their appointment,[52] challenges to the disqualification of an arbitrator,[53] lack of agreement on the removal of an arbitrator for failure or impossibility to perform his or her functions,[54] challenges to the arbitral tribunal’s decision affirming its own jurisdiction,[55] or hearing an application for setting aside the award.[56] The instances of judicial assistance in the appointment, challenge, or termination of an arbitrator’s mandate are typical of ad hoc arbitral proceedings and, in principle, unnecessary in institutional arbitration, since in the latter the institution itself assumes these tasks through its own bodies.[57]
Additionally, there are cases not provided for in article 6,[58] such as the participation of courts in ordering interim provisional measures,[59] court assistance in taking evidence,[60] and recognition and enforcement of awards,[61] including the recognition and enforcement of interim measures.[62]
As may be seen from the preparatory works of the Model Law, the intention was to seek a balance between the independence of the arbitral process and the intervention of judicial courts, through the necessary presence of a framework rule[63] coordinated with special rules describing the cases of judicial intervention.[64] This was intended to give certainty to the parties and to courts as to the cases in which assistance or supervision by courts may be expected,[65] consistently with the positive and negative effects of the arbitration agreement.[66] Indeed, the idea of judicial intervention, or of the general framework governing it, is to exclude any residual or general power of intervention, limiting it only to those cases in which the Model Law legislator considered it strictly necessary to guarantee the effectiveness of the arbitral proceeding; otherwise, judicial intervention would frequently and “normally” be used as a delaying tactic, a guerrilla tactic,[67] or a way of “normalizing” procedural abuses to paralyze or frustrate the arbitral proceeding.[68]
This normative provision of the Model Law has been adopted by many jurisdictions,[69] either literally or with certain modifications,[70] but with the same spirit of harmonizing[71] arbitral practices in pursuit of procedural neutrality.[72]
Thus, it is evident that the purpose of the rule of minimal judicial intervention (and its subsequent applications), as understood in the preparatory works of the UNCITRAL ML and up to its formulation and adoption by a large number of legislations, was to establish a fundamental normative provision—or a series of fundamental normative provisions—for the efficient functioning of arbitration as a dispute-resolution mechanism.[73]
The Principle of Minimal Judicial Intervention Through the Lens of International Conventions
The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or the 1958 New York Convention,[74] forms part of the lex arbitri of at least 173 States;[75] likewise, the Inter-American Convention on International Commercial Arbitration, or the 1975 Panama Convention,[76] is in force in at least 19 countries in the Americas.[77] These instruments are essential to the development of arbitration and to the understanding and application of minimal judicial intervention or interference.[78]
Although they are generally recognized for their fundamental function and purpose, namely the recognition and enforcement of arbitral awards,[79] they also, as importantly,[80] recognize the effects of the arbitration agreement.[81] Specifically, Article II of the New York Convention provides: [82]
1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. [83]
The New York Convention requires Contracting States to recognize the arbitration agreement.[84] This normative provision refers not only to referral to arbitration by state bodies (through the corresponding procedural mechanism) but also requires the Contracting State to recognize the effects of the agreement before, during, and even after the award has been rendered.[85] Properly understood, it refers to the obligation of states to recognize the procedural effects of the agreement[86] and of the arbitral proceeding.[87] In other words, it means recognizing the parties’ autonomy of will, by which they have preferred the neutrality of the arbitral proceeding,[88] speed, efficiency, procedural flexibility,[89] the expertise and discretion of the arbitral tribunal, as some of the advantages considered when agreeing to arbitration, excluding intervention by the organs of the judiciary.[90]
For this reason, the advantages offered by the arbitral proceeding are essential elements considered by the parties when agreeing to arbitration; therefore, it is natural to infer that this choice must be respected as binding. Accordingly, it is necessary to avoid intervention or interference in the arbitral proceeding by state organs, since such intervention itself entails a risk of frustrating the intention to resolve the dispute swiftly and effectively.[91] It is in this sense that the principle of minimal intervention has been grounded in the New York Convention itself.[92] Contracting States have the obligation to recognize the arbitration agreement so that the arbitral process may develop in accordance with what the parties intended—that is, a proceeding tailored to the parties’ will.
Recognizing the arbitration agreement necessarily entails recognizing its effects: on the one hand, recognizing that the process it generates should proceed without external interventions outside the arbitral forum itself, and that its outcome should be reviewed only in the cases and within the limits provided in arbitral systems; and, on the other hand, tolerating only those interventions necessary to complete or supplement the reluctance or absence of will of one of the parties, or to assist in remedying the arbitral tribunal’s lack of imperium or coertio. In this way, effectiveness is given to the negative and positive effects arising from the arbitration agreement.[93]
Thus, legal systems grant the arbitral proceeding legal priority as a mechanism for resolving the dispute and therefore impose on state organs the duty to recognize that priority; a priority which, it should be said, is not definitive but temporary, to the extent that the product of the arbitral process is subject to subsequent judicial controls. Indeed, if we consider the grounds for denying recognition and enforcement of an arbitral award,[94] we can observe how they may be approached as situations in which the agreement or the arbitral proceeding is questioned because it was carried out in disregard or ignorance of the autonomy of the parties that should have given life to arbitration, or outside the framework and limits of private autonomy. Nor is it an absolute priority, but a relative one, since, as noted, it is necessary or inevitable[95] to rely on the assistance or support of the judiciary to cover the absence of coercion or imperium required to enforce the arbitration agreement and its effects.
Thus, the New York Convention, specifically Article II,[96] represents a solid foundation in favor of minimal judicial intervention in arbitration, derived from one of the most successful international treaties in promoting the uniformity of legal rules. The same statement applies to other international treaties or conventions, such as the aforementioned 1975 Panama Convention (Articles 1, 2, and 3); however, the advantages of the New York Convention—because of its larger number of signatories, its bias in favor of arbitration (or pro-arbitration perspective), as well as Article VII(1), which establishes the application of rules more favorable to arbitration—make it an appropriate international legal instrument that favors the effectiveness and effects of the arbitration agreement and the recognition and enforcement of arbitral awards.
In short, the binding nature of the arbitration agreement and its effects—both positive and negative—are recognized by states not only in their arbitration laws, which follow the harmonizing trend of the Model Law, but also through their recognition in international treaties. This commitment by states is likewise a binding reason for judicial organs to intervene only in the cases provided for within the arbitral ecosystem.
Concluding Remarks
Judicial intervention in arbitration must therefore be understood as an exceptional and strictly regulated competence. Its purpose is not to displace the arbitral forum chosen by the parties, but to preserve the effectiveness of that choice by allowing court assistance or review only where the applicable arbitral framework expressly provides for it. This approach protects the parties’ expectation that their dispute will be resolved through a specialized, flexible, and self-contained arbitral process, rather than through ordinary judicial proceedings.[97]
The common pattern across modern arbitration laws is that courts may intervene only in limited circumstances: to compensate for the arbitral tribunal’s lack of imperium or coertio,[98] to complete or supplement the parties’ will where agreement or cooperation is absent, and to conduct the limited review permitted after an award has been rendered. These functions may arise before the arbitration begins, during the proceedings, or after their conclusion, but in each case the governing principle remains the same: judicial power must be confined to the situations expressly contemplated by the arbitral system.
This limited intervention also reflects the positive and negative effects of the arbitration agreement. Positively, courts may assist the parties, arbitrators, or arbitral institutions when such support is necessary for the arbitration agreement to achieve its purpose, including through interim measures, access to evidence, appointment-related assistance, or enforcement of the award. Negatively, courts must prevent the dispute from being diverted to a forum other than the arbitral tribunal, thereby respecting the parties’ waiver of ordinary judicial adjudication.
At the same time, minimal judicial intervention should not be confused with the absence of judicial support. Because arbitrators, as private adjudicators, generally lack coercive authority,[99] the assistance of state courts remains indispensable when public force is required to secure rights, preserve evidence, impose provisional relief, or give effect to the award. Yet that assistance must remain functional and supportive, not supervisory in a broad or residual sense.
Accordingly, the principle of minimal intervention operates as a cornerstone of arbitration’s effectiveness. It channels judicial authority toward the protection and enforcement of the arbitration agreement, while preventing abusive, delaying, or guerrilla tactics that could frustrate the arbitral process.[100] Properly applied, it confirms that court intervention is a matter of strict law, guided by a pro-arbitration approach and limited to the cases in which judicial action is necessary to support—not replace—the arbitral mechanism.
About the Author
Jorge I. González Carvajal is an attorney admitted to practice law in Venezuela and Mexico. He holds a doctorate in law, a master’s degree in procedural law, and postgraduate specialization in the same field. He is a professor of contract law and arbitration procedure. An active arbitrator, he serves on the Panel of Arbitrators of the International Centre for Dispute Resolution and on the rosters of several other arbitral institutions.
[1] See Benito Marco de Llopis-Lombart, El convenio arbitral: su eficacia obligatoria (Civitas 2010); but see Fabio Núñez del Prado, The Fallacy of Consent: Should Arbitration Be a Creature of Contract? 35 Emory Int'l L. Rev. 219 (2021).
[2] See Francisco González de Cossío, Arbitraje 1227 (Porrúa 5th ed. 2018).
[3] See Franco Ferrari et al, International Commercial Arbitration: A Comparative Introduction 22 (Edward Elgar 2021).
[4] See Floyd B. Odlum, National System of the American Arbitration Association, 1 Arb. J. 6, 6 (1937). See also Gary B. Born, International Commercial Arbitration 1254 (Kluwer Law Int'l 2d ed. 2014).
[5] One can find systems where the work of arbitrators is increasingly closer to that of State judges, as in the case of Colombia, which has recently sanctioned Law 2540 (2025) on arbitration for executive proceedings, which establishes in its Article 1: “La presente ley tiene como objeto implementar el mecanismo jurídico de arbitraje, en el trámite de los procesos ejecutivos a través de la formulación de lineamientos para su adecuación, operación, funcionamiento y contribuir a la descongestión del sistema judicial”.
[6] See Adolfo Alvarado Velloso & Jorge I. González Carvajal, Manual de derecho procesal: Teoría general del proceso 139–40 (Caracas 2025).
[7] See Gérard Cornu, Vocabulaire juridique 408 (3d ed. 1987). Id. at 144. See also Giuseppe Chiovenda, Principii di diritto processuale civile 384 (1965).
[8] See José Luís González-Montes Sánchez, La asistencia judicial al arbitraje (Ley 60/2003, de 23 de diciembre) 13 (Reus 2009). See also Ferrari et al, supra note 3, at 125.
[9] See Born, supra note 4, at 1253.
[10] See David Joseph, Jurisdiction and Arbitration Agreements and Their Enforcement 111 (Sweet & Maxwell 3d ed. 2015).
[11] See Javier Íscar de Hoyos, El Principio Kompetenz-Kompetenz en la jurisprudencia estadounidense: Un análisis comparado del caso Henry Schein v. Archer & White, Rev. Arg. de Arb., no. 4, 2019.
[12] See González de Cossío, supra note 2, at 1227; José Carlos Fernández Rozas, Tratado de arbitraje comercial en América Latina 983 (2008).
[13] See Odlum, supra note 4, at 6.
[14] See Dominique Vidal, Droit français de l'arbitrage interne et international 85 (2012).
[15] See Adolfo Hobaica, La conexión inevitable entre poder judicial y arbitraje, 4 Anuario Venezolano de Arbitraje Nacional e Internacional 20 (2023).
[16] See Francisco González de Cossío, El arbitraje y la judicatura passim (2007).
[17] See Fernández Rozas, supra note 12, at 978.
[18] See Vidal, supra note 14, at 21. See also ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes, Preamble (2004).
[19] See Interference in the Conduct of International Arbitration by the Political Constitutions of Ibero-American Countries, at 4, 10 (Latin-American and Iberian Chapter of the ICC Institute of World Business Law, International Chamber of Commerce 2022); see also Fernández Rozas, supra note 12, at 300.
[20] European Convention on International Commercial Arbitration, Apr. 21, 1961, 484 U.N.T.S. 349, arts. V(3), VI(3)–(4).
[21] See UNCITRAL, CLOUT Abstracts, A/CN.9/SER.C/ABSTRACTS/5; Vibroflotation A.G. v. Express Builders Co. Ltd., [1994] H.K.C.F.I. (High Ct.) (Aug. 15, 1994); Quintette Coal Ltd. v. Nippon Steel Corp., [1991] 1 W.W.R. 219 (B.C. C.A.).
[22] See Arbitration in Saudi Arabia: Case Law and Legislative Analysis in Light of the UNCITRAL Model Law and Saudi Arbitration Framework, Saudi Center for Commercial Arbitration, July 2026, at 48.
[23] See Born, supra note 4, at 1254.
[24] Gary Born, The Principle of Judicial Non-Interference in International Arbitral Proceedings, 30 U. Pa. J. Int'l L. 999, 1000 (2009).
[25] See Francesco Messineo, 1 Manual de derecho civil y comercial, at 104 (Santiago Sentís Melendo trans., Ediciones Jurídicas Europa-América 1979).
[26] See Loukas Mistelis, Efficiency. What Else? Efficiency as the Emerging Defining Value of International Arbitration: Between Systems Theories and Party Autonomy at 11 (Queen Mary Univ. of London Sch. of L., Legal Stud. Rsch. Paper No. 313/2019, 2019).
[27] See Jennifer Kirby, Efficiency in International Arbitration: Whose Duty Is It?, 32 J. Int'l Arb. 689, 689–695 (2015).
[28] Italian Constitutional Court [Corte cost.], June 26, 1956, n. 6 ("Fa d’uopo relevare che..."). See Norberto Bobbio, Saggi sulla scienza jurídica 96 n.10 (Giappichelli 2011).
[29] See Bobbio, supra note 30, at 98; Riccardo Guastini, La sintassi del diritto 73 (Giappichelli 2011); Genaro R. Carrió, Notas sobre derecho y lenguaje 198 (6th ed. Abeledo Perrot 2011). On principles, see also 1 Georges Ripert & Jean Boulanger, Tratado de derecho civil según el Tratado de Planiol 13 (D. Garcia Daireaux trans., La Ley 1965).
[30] On the formulation of legal principles in common law systems, see Anna Pintore, Norme e principi: Una critica a Dworkin, Quaderni di filosofia analitica del diritto 19 (Milan 1982).
[31] See José Ovalle Favela, Derecho procesal civil 10 (11th ed. Porrúa 2025).
[32] See Guastini, supra note 29, at 74.
[33] See Guastini, supra note 29, at 75.
[34] Ovalle Favela, supra note 31, at 10.
[35] See González de Cossío, supra note 2, at 1227.
[36] See John Lurie, Court Intervention in Arbitration: Support or Interference?, 76 Arb.: Int'l J. Arb. Med. & Disp. Mgmt. 447 (2010).
[37] See Jan Paulsson, Arbitration Unbound: Award Detached from the Law of Its Country of Origin, 30 Int'l & Comp. L.Q. 358, 363 (1981); Jan Paulsson, Delocalisation of International Commercial Arbitration: When and Why It Matters, 32 Int'l & Comp. L.Q. 53 (1983).
[38] See Jalal El Ahdab & Daniel Mainguy, Droit de l'arbitrage: Théorie et pratique 136 (LexisNexis 2022); Emmanuel Gaillard, Legal Theory of International Arbitration 60 (Martinus Nijhoff 2010). See Franco Ferrari, Plures leges, sed leges faciunt arbitrum, Rev. Arb. Com. & Inv. 16 (Jan.–May 2022).
[39] See Ferrari, supra note 38, at 15.
[40] See Ferrari et al, supra note 3, at 9.
[41] This occurs in the jurisdictions that incorporate or follow the UNCITRAL ML and its article 9 (and the complement today of article 17(J) UNCITRAL ML 2006). See UNCITRAL, Digest of Case Law on the Model Law on International Commercial Arbitration 53, 94 (2012). See Cód. Com. arts. 1425, 1478 (Mex.); Instituto Mexicano de Arbitraje, Legislación Mexicana de Arbitraje Comercial Comentada 73 (Porrúa 2015). In this regard, see Christopher Boog, The Laws Governing Interim Measures in International Arbitration, in Conflicts of Law in International Arbitration 445 (Franco Ferrari & Stefan Kröll eds., 2011). Likewise, with respect to the interpretation of the rule on assistance in obtaining evidence ex art. 27 of the UNCITRAL ML, see UNCITRAL, Digest of Case Law on the Model Law on International Commercial Arbitration 118 (2012). And even in systems that do not follow the Model Law, such as the Federal system of the United States of America, before the Supreme Court's decision, ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), dated June 13, 2022, the competence of U.S. judges to support foreign-based arbitrations in the taking of evidence was recognized, in accordance with the provisions of 28 U.S.C. § 1782. See Theodore J. Folkman & David L. Evans, The U.S. Judicial Assistance Statute: A Powerful Tool in International Arbitration?, Disp. Resol. J., July–Aug. 2014, at 1.
[42] Both the place where the arbitration is located, where the remedies of challenging the award can be exercised, see Aída Patricia Hernández Silva, Recurso de anulación del laudo arbitral. Aspectos generales, in Recurso de anulación de laudos arbitrales 23 (Universidad Externado de Colombia, 2016), as the place where it is intended to be executed, see UNCITRAL, Digest of Case Law on the Model Law on International Commercial Arbitration 134 (2012).
[43] See Valentín Cortés Domínguez, De la sustanciación de las actuaciones arbitrales (Arts. 24-33), in Comentario a la Ley de Arbitraje 29, 30 (A. de Martín Muñoz & S. Hierro Anibarro coords., Marcial Pons 2006); Instituto Mexicano de Arbitraje, supra note 44, at 137; Jorge I. González Carvajal, Comentario al artículo 9 de la Ley de Arbitraje Comercial Venezolana, in Comentarios a la Ley de Arbitraje Comercial venezolana, vol. I, 621 (CIERC 2022).
[44] See Born, supra note 4, at 1257. See also Jorge I. González Carvajal, Acuerdo de arbitraje y responsabilidad civil, Rev. Ítalo-Esp. Der. Procesal, no. 2, 2019, at 17–40.
[45] See the Supreme Court of the United States judgment of June 17, 1974, case: Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974).
[46] See John Lurie, supra note 36, at 447. See also Lesotho Highlands Dev. Auth. v. Impregilo SpA [2005] UKHL 43, [18].
[47] See Richard Garnett, Article 5 of the Model Law: Protector of the Arbitral Process?, J. Int'l Arb., Vol. 38, No. 2, 2021, at 127.
[48] The objections are summarized in Rep. of the U.N. Comm'n on Int'l Trade L., 18th Sess., June 3–21, 1985, U.N. Doc. A/40/17; GAOR, 40th Sess., Supp. No. 17, 58–65, at 14–15 (1985). See also Howard M. Holtzmann & Joseph E. Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary 219 (Kluwer 1989).
[49] See Report of the Secretary-General, Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration, U.N. Doc. A/CN.9/264, 2, at 18 (Mar. 25, 1985).
[50] See Antonio Hernández-Gil Álvarez Cienfuegos, Disposiciones generales (Arts. 1, 2, 3-8), in Comentario a la Ley de Arbitraje 233 (A. de Martín Muñoz & S. Hierro Anibarro coords., Marcial Pons 2006).
[51] See Report of the Secretary-General, U.N. Doc. A/CN.9/264, supra note 49, 3, at 18.
[52] See UNCITRAL Model Law on International Commercial Arbitration, art. 11(3)–(4) (1985).
[53] See UNCITRAL Model Law, art. 13(3).
[54] See UNCITRAL Model Law, art. 14.
[55] See UNCITRAL Model Law, art. 16(3).
[56] See UNCITRAL Model Law, art. 34(2).
[57] However, it is possible that the lex arbitri itself directly grants powers of support to an arbitral institution although it is not an institutional arbitration. See Section 8 of the International Arbitration Act 1994 (Singapore). In the same vein, Section 13 of the Malaysian Arbitration Act 2005 (revised 2018) provides that the Director of the Asian International Arbitration Centre shall have the competence to appoint arbitrators in cases of disagreement, while Section 15 gives the High Court jurisdiction to decide the challenge of arbitrators that has been rejected. For its part, the Arbitration Ordinance (Cap. 609) of the Hong Kong Special Administrative Region of the People's Republic of China (2014) establishes in Section 13(2) that the Hong Kong International Arbitration Centre shall have the competence to appoint arbitrators in cases of disagreement provided for in Articles 11(3) and (4) of the UNCITRAL ML, whereas Section 13(4) gives jurisdiction to the Court of First Instance of the High Court to decide the challenge of arbitrators which has been rejected and to decide on the cessation of an arbitrator's term of office, also Section 13(5) and (6) gives jurisdiction to the same court to decide to challenge the arbitral tribunal's decision asserting its own jurisdiction, to hear the request for annulment of the award or assistance in the taking of evidence. Similarly, the Mauritius International Arbitration Act 2008, grants supporting powers to the Permanent Court of Arbitration (PCA) for the appointment of arbitrators, Section 12(3)(a)(ii) & (b), (5), (6) & (7) and Section 16(2), (3) & (4), to decide the challenge rejected by the arbitral tribunal, according to Section 14(3) or disagreements on the removal of an arbitrator due to lack or impossibility of exercising his or her functions (Section 15(2)).
[58] See Report of the Secretary-General, U.N. Doc. A/CN.9/264, supra note 49, 3, at 18.
[59] See UNCITRAL Model Law, art. 9 (1985); UNCITRAL Model Law, art. 17J (2006).
[60] See UNCITRAL Model Law, art. 27.
[61] See UNCITRAL Model Law, arts. 35–36.
[62] See UNCITRAL Model Law, art. 17H (2006).
[63] This framework rule (art. 5 UNCITRAL ML) is considered a mandatory provision, for example, in Noble China Inc. v. Lei Kat Cheong, 1998 CanLII 14708 (Can. Ont. S.C.).
[64] See Report of the Secretary-General, U.N. Doc. A/CN.9/264, supra note 49, 3, at 18.
[65] Id.
[66] See Fernández Rozas, supra note 12, at 984.
[67] See Jorge I. González Carvajal, Incorrect Behaviours and Guerrilla Tactics in Arbitration: An Analysis – Part I, Disp. Resol. J., Sept.–Oct. 2025, at 243.
[68] See UNCITRAL, Digest of Case Law on the Model Law on International Commercial Arbitration 21 (2012). See also U.N. Comm'n on Int'l Trade L., Report of the United Nations Commission on International Trade Law on the Work of Its Eighteenth Session, U.N. Doc. A/40/17, Supp. No. 17, 63, at 15 (1985).
[69] Zivilprozessordnung [ZPO] [Code of Civil Procedure], § 1026 (Ger.); Código Civil y Comercial de la Nación [Cód. Civ. y Com.] art. 1656 (Arg.); Ley No. 27.449 de Arbitraje Comercial Internacional, art. 12 (Arg.); Zivilprozessordnung [ZPO] [Code of Civil Procedure], § 578 (Austria); International Commercial Arbitration Act, 2007, Cap. 110A, § 8 (Barb.); Commercial Arbitration Act, R.S.C. 1985, c. 17 (2d Supp.), sched. 1, art. 5 (Can.); International Commercial Arbitration Act, R.S.A. 2000, c. I-5, sched. 2, art. 5 (Can. Alta.); International Commercial Arbitration Act, R.S.B.C. 1996, c. 233, § 5 (Can. B.C.); International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, sched. 5, art. 5 (Can. Ont.); Ley No. 19.971 sobre Arbitraje Comercial Internacional, art. 5 (Chile); Ley 1563 de 2012, arts. 3, 67 (Colom.); Ley No. 8937 sobre Arbitraje Comercial Internacional, art. 5 (Costa Rica); Ley 60/2003 de Arbitraje, art. 7 (Spain); Fla. Stat. § 684.0006 (2025); Ley de Arbitraje, Decreto No. 67-95, art. 8 (Guat.); Ley de Conciliación y Arbitraje, Decreto No. 161-2000, art. 36.1 (Hond.); Arbitration Ordinance, (2014) Cap. 609, § 12 (H.K.); Arbitration and Conciliation Act, 1996, § 5, No. 26, Acts of Parliament, 1996 (India); Arbitration Act, 2017, § 8 (Jam.); Chūsai Hō [Arbitration Act], Act No. 138 of 2003, art. 4 (Japan); Arbitration Act 2005, Act 646, § 8 (Malaysia); International Arbitration Act 2008, § 2 (Mauritius); Código de Comercio [Cód. Com.] art. 1421 (Mex.); Ley 131 de 2013, art. 11 (Pan.); P.R. Laws Ann. tit. 32, § 3206 (2024); Ley No. 489-08 sobre Arbitraje Comercial, art. 8 (Dom. Rep.); Arbitration Act, Chap. 5:01, § 8 (Trin. & Tob.); Ley No. 19.654 sobre Arbitraje Comercial Internacional, art. 5 (Uru.); Ley de Arbitraje Comercial, G.O. (No. 36.430), art. 5 (1998) (Ven.).
[70] See, e.g., Commercial Arbitration Act, R.S.C. 1985, c. 17 (2d Supp.), § 4(2) (Can.) (“In interpreting the Code, recourse may be had to (a) the Report of the United Nations Commission on International Trade Law on the work of its eighteenth session, held from June 3 to 21, 1985; and (b) the Analytical Commentary contained in the Report of the Secretary General to the eighteenth session of the United Nations Commission on International Trade Law”); International Commercial Arbitration Act, R.S.A. 2000, c. I-5, § 12(2) (Can. Alta.); International Commercial Arbitration Act, R.S.B.C. 1996, c. 233, § 6(1)(b) (Can. B.C.); Code of Civil Procedure, CQLR c. C-25.01, art. 649 (Can. Que.); International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, sched. 5, § 13 (Can. Ont.). See also International Arbitration Act 1994, Cap. 143A, § 3(1) (Sing.) (“Subject to this Act, the Model Law, with the exception of Chapter VIII of the Model Law, has the force of law in Singapore…”); Arbitration Ordinance, Cap. 609, § 4 (2014) (H.K.) (“The provisions of the UNCITRAL Model Law that are expressly stated in this Ordinance as having effect have the force of law in Hong Kong subject to the modifications and supplements as expressly provided for in this Ordinance”).
[71] UNCITRAL Model Law on International Commercial Arbitration, U.N. Doc. A/40/17, Annex I (June 21, 1985). The instrument was intended to achieve uniformity in arbitral procedural law and in the practice of international commercial arbitration. See Explanatory Note by the UNCITRAL Secretariat on the 1985 UNCITRAL Model Law on International Commercial Arbitration, 1. G.A. Res. 40/72, 1 (Dec. 11, 1985).
[72] See Arbitration Act 1996, c. 23, § 1 (UK).
[73] See Ley No. 7561/2025 de Arbitraje, art. 9 (Parag.).
[74] See Status: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), UNCITRAL, https://uncitral.un.org/es/texts/arbitration/conventions/foreign_arbitral_awards/status2 (last visited May 2, 2026).
[75] See Contracting States, New York Convention Guide, https://www.newyorkconvention.org/contracting-states/contracting-states (last visited May 2, 2026).
[76] See Inter-American Convention on International Commercial Arbitration (B-35): Signatories and Ratifications, Organization of American States, https://www.oas.org/juridico/spanish/firmas/b-35.html (last visited May 2, 2026).
[77] See European Convention on International Commercial Arbitration arts. V(3), VI(3)–(4), Apr. 21, 1961, 484 U.N.T.S. 349.
[78] This is especially true in countries that do not follow the UNCITRAL Model Law. On the convergence of purposes between the UNCITRAL ML and the English arbitration system regarding minimum judicial intervention, see Alan S. Reid, The UNCITRAL Model Law on International Commercial Arbitration and the English Arbitration Act: Are the Two Systems Poles Apart?, 21 J. Int’l Arb. 227, 227–38 (2004); see also Lesotho Highlands Dev. Auth. v. Impregilo SpA, [2005] UKHL 43, 30.
[79] In the travaux préparatoires of the Convention, reference was made to antecedents such as the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927. See U.N. ECOSOC, Conference on International Commercial Arbitration, Summary Record of the First Meeting, U.N. Doc. E/CONF.26/SR.1, at 3 (May 20, 1958). However, during initial discussions, the working group did not expressly refer to the arbitration agreement. See U.N. ECOSOC, Summary Record of the Fifth Meeting, U.N. Doc. E/CONF.26/SR.5 (May 23, 1958). Concerns regarding the necessity of recognizing the arbitration agreement were raised by Poland, see U.N. Docs. E/CONF.26/7, E/CONF.26/SR.7, E/CONF.26/SR.9, at 8, and Sweden, see U.N. Doc. E/CONF.26/L.8. See also Summary Record of the Seventh Meeting, U.N. Doc. E/CONF.26/SR.7, at 8–10, 12 (“… noted that the Draft Convention, unlike the Geneva Convention, did not contain any explicit provision concerning the law determining the validity of the arbitral clause. Amendments to remedy the omission had been proposed both by the Polish and his own delegation (E/CONF.26/L.7 and E/CONF.26/L.8). The Swedish Federation felt that the Conference must adopt a provision to the effect that every Contracting State expressly recognize the validity of any agreement under which the parties agreed to submit the dispute to arbitration”).
[80] See Int'l Council for Com. Arb., ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges 14 (2024).
[81] See Rana Rizwan Hussain, Jurisdictional Issues in Enforcement of International Arbitration Agreements in Pakistan: A Critical Analysis - Part I, 79 Dispute Resol. J. 458 (2026).
[82] The normative provision was inspired by Article 1 of the Protocol on Arbitration Clauses (known as the Geneva Protocol of 1923). The preparatory work evidences an intense discussion on the incorporation of a normative provision of this type, proposed by Poland and Switzerland, considering, on the one hand, many of the States, inter alia, that incorporation was outside the scope and object of the Convention, while others supported the inclusion of this article. The matter was put to a vote, and it was decided both that the conference was competent to include in its discussion the normative provision relating to the arbitration agreement, and to approve the inclusion of a normative provision of this kind in the convention. See U.N. Doc. E/CONF.26/SR.9, at 3 (1958); U.N. Doc. E/CONF.26/SR.23, at 13 (1958); U.N. Doc. E/CONF.26/SR.24, at 10 (1958). Another opinion considers that the incorporation of the rule was due to the proposal of the Netherlands. See Int'l Council for Com. Arb., ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges v (2024).
[83] See Born, supra note 4, at 1027.
[84] See Sixth Ct. First Instance Civil & Traffic Matters Metropolitan Area Caracas, Aug. 2, 2006, reprinted in 33 Y.B. Com. Arb. 1228, 1228–39 (2008).
[85] See Born, supra note 24, at 1005.
[86] See Int'l Council for Com. Arb., ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges 8 (2024).
[87] See Born, supra note 24, at 1005.
[88] See Born, supra note 24, at 1001.
[89] U.N. Comm'n on Int'l Trade L., UNCITRAL Notes on Organizing Arbitral Proceedings, pp. 1–2, 6 (2016).
[90] See Roque Caivano, Arbitraje 33–34 (2d ed. 2008); see also Augusto Morello, Lectura Procesal de Temas Sustanciales 242 et seq. (2000).
[91] In fact, if you look closely, what is known as minimum judicial intervention in arbitration is strictly speaking, from the perspective of the New York Convention, minimum state intervention in arbitration. See Ley 131 de 31 de diciembre de 2013, Que Regula el Arbitraje Comercial Nacional e Internacional en Panamá, art. 17.
[92] See Born, supra note 25, at 999; see also Int'l Council for Com. Arb., ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges 8 (2024).
[93] See Born, supra note 4, at 1263.
[94] The same applies to the cases of challenge to the award and refusal of recognition and enforcement provided for in the UNCITRAL ML, arts. 34 and 36 UNCITRAL LM. See U.N. Comm'n on Int'l Trade L., UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration 133 et seq. (2012).
[95] See Hobaica, supra note 15, at 20.
[96] See European Convention on International Commercial Arbitration arts. I, IV–VI, Apr. 21, 1961, 484 U.N.T.S. 349.
[97] See Primer Tribunal Colegiado en Materia Civil del Primer Circuito [TC], Semanario Judicial de la Federación y su Gaceta, Novena Época, Tomo XXXII, Diciembre de 2010, Tesis I.7o.C.150 C, p. 17343, Reg. Digital 16341 (Mex.).
[98] See Cornu, supra note 7, at 408.
[99] See 2 Humberto Briseño Sierra, Estudios de Derecho Procesal 202 (1980).
[100] See U.N. Comm'n on Int'l Trade L., UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial Arbitration 21 (2012); see also U.N. Comm'n on Int'l Trade L., Rep. on the Work of Its Eighteenth Session, U.N. Doc. A/40/17, 63, at 15 (1985).