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Judicial support and supervision over arbitration proceedings are necessary to safeguard the integrity of these proceedings and protect the public interest. However, such judicial intervention can obstruct the efficiency of arbitration in resolving commercial disputes. Given the United Arab Emirates (UAE) developing trade relations, it is crucial for UAE laws to offer appropriate supervision and support for the arbitration proceedings so that both domestic and foreign parties can have confidence in the arbitral system in the UAE. This study focuses on the new UAE Arbitration Law 2018 to attempt to identify the main concerns of the UAE's court interventions in two critical stages. First, establishing and challenging the arbitral tribunal. Second, recognition and enforcement of arbitral awards. The purpose of this study is to see whether the court's involvement will obstruct the efficiency of arbitration in resolving commercial disputes. The study also discusses the role and perspective of Shari'a in terms of the UAE arbitration rules generally, and the UAE court interventions specifically. In addition, there will be a comparative analysis with national and international arbitration rules. On the international level, the New York convention will be discussed and compared with the court's intervention under the New UAE Federal Arbitral law 2018. Furthermore, on the national level, there will be a discussion regarding various national laws that adopt the Model Law rule. This comparative discussion will support the study to show whether the current UAE regulations are compatible with international arbitration standards and whether they support International Commercial Arbitration.

The research question of this thesis is a simple one: when should a court review a settlement agreement? In South Africa, mediation as an alternative dispute resolution tool is a popular mechanism for aggrieved parties in commercial disputes, where litigation may be limited or inappropriate in the circumstances. Where a mediation concludes with a settlement agreement, and one of the parties then regrets his or her acceptance of the agreement, he or she may approach a court of law for legal review. However, when dealing with a mediated settlement that is primed for legal review, there is uncertainty in the law. There are no fixed rules to guide a court in determining when the legal review of the mediated settlement agreement is appropriate. Judicial review raises complex questions that sit at the intersection of public policy and the constitutional freedom to contract in South Africa, yet the law provides no coherent framework for assessing when judicial review of a settlement agreement is appropriate. Examining the law of legal privilege; confidentiality and without prejudice settlements, and how these principles might affect the legitimacy of the legal review of a mediated settlement agreement, this research reveals that there are no legal tests to be used by the courts, and, that this is an area of the law of mediation that is in need of urgent reform. Searching for a new fount of knowledge in terms of alternative dispute resolution, this research plumbs South African labour law to ask whether we can use labour law principles to supplement our understanding of the legal review of mediated settlement agreements. This thesis contends that by using principles from South African labour law cases and related legislation, the law of mediation in South Africa can be supplemented and developed. This thesis will show that individual labour law principles, public policy and overarching constitutional norms can provide useful contributions to private, voluntary mediation. It will be argued, by way of doctrinal analysis, that South African labour law has the capacity to augment the jurisprudence of mediation in South Africa, specifically where the suitability of judicial review of a mediated settlement agreement needs to be assessed. Building on this analysis of labour law, the thesis develops the concept of variables as a novel theoretical framework for indicating whether judicial review of the settlement agreement is likely. Further developing this framework, suggestions are offered as to how such variables might be used to inform reform in this area of law. These reforms, should they be adopted by the South African legislature, would provide the courts and legal practitioners with a cogent and well-articulated framework to use when assessing whether the legal review of a mediated settlement agreement is apt.

The works presented for the PhD by publication are all connected in the way they engage in a functionally comparative study of the English and French law responses to common problems pertaining to contractual performance and contractual interpretation. My comparative inquiry demonstrates that both France and England have stayed true to their historic responses in times of peace and crisis confirming different mentalités juridiques. As neither England nor France offers ideal solution, parties may be better off finding a resolution to their disputes beyond the legal realm and respond to calls for collaboration. This nevertheless shows persisting differences in Anglo-French approaches. This thesis however argues that these divergences may nevertheless lead to common results through the lens of a taxonomy of commercial contracts - professionally drafted contracts may lead to converging results given the common application and interpretation of frequently used clauses beyond a domestic legal culture; by contrast, rudimentary contracts produce diverging results as the interpretation of these agreements is marked by a distinctive domestic socio-legal culture. This taxonomy has the potential to improve the predictability of outcomes in commercial disputes in England and France.

This thesis proposes to examine the law of jurisdiction to render provisional and protective measures in transnational commercial disputes in order to identify the main problems that arise in each dispute resolution system. Legal scholarship in this area is extensive, albeit fragmented and chaotic. Academic commentators have immersed themselves in the undertaking to examine the authority of courts and arbitral bodies to render interim measures without proper insight or analysis of basic concepts of the law of jurisdiction such as adjudicatory jurisdiction, competence, and procedural powers. Furthermore, the traditional divide between litigation and arbitration appears to have prevented a comprehensive analysis of jurisdictional aspects in the specialist area of interlocutory relief. This chaotic scenario has also reached national courts and arbitral bodies which, in practice, have not properly categorised these jurisdictional issues. Against this background, the thesis: i) conducts a comprehensive analysis of the two adjudicatory methods of dispute resolution - litigation and arbitration -, ii) is based on a detailed examination of the relevant concepts of the law of jurisdiction that come into contact in the law and practice of interim measures, and iii) conducts a practice-focused analysis with reference to published decisions in order to discern how courts and arbitral bodies address, in practice, the issue of their jurisdiction and competence to render interim relief. Once the relevant legal sources are gathered and the law of jurisdiction is comprehensively analysed, the thesis identifies the main problems that arise in each dispute resolution system. The analysis of these problems leads to two significant conclusions. First, the distinction between jurisdiction and competence is important since these concepts have different legal implications in the practice of provisional measures. Secondly, a closer dialogue is needed between international commercial arbitration and private international law. International arbitration did not reinvent jurisdictional concepts; however, the notion of jurisdiction as understood in private international law has not been always applied in the arbitration setting. Indeed, in some instances, the jurisdictional decisions of arbitral tribunals and emergency arbitrators in the area of provisional measures have not rested on proper juridical concepts and legal principles. The adoption, in arbitration, of the vertical paradigm of jurisdiction as applied in private international law would have prevented unfortunate arbitral decisions. Furthermore, from a doctrinal point of view, the application of this jurisdictional paradigm can be based on the fact that international arbitration predominantly operates within private international law. Based on the above-mentioned conclusions, this thesis proposes different recommendations to the actors involved in each dispute resolution system, that is, litigation and arbitration users, law and policymakers, and the adjudicatory bodies involved. The purpose of these recommendations is to facilitate the future work of courts and arbitral bodies and to offer some degree of predictability to litigants and arbitration users. In particular, the thesis recommends the following. As regards international litigation, the thesis concludes that one of the main developments in the area, Article 35 of the Brussels I Recast, is founded on the principle of open jurisdiction. Jurisdictional norms based on the notion of open jurisdiction create more problems than they solve, particularly, if their purpose is legal harmonisation or unification. Accordingly, a clear rule of jurisdiction based on proper connecting factors should be adopted instead. Furthermore, the thesis recommends that national courts should avoid adopting a differential treatment between arbitration and litigation when it comes to judicial support since the connecting factors adopted by each dispute resolution system are fundamentally the same. As regards international arbitration, the thesis identifies an important problem in the context of the assessment of prima facie jurisdiction conducted by arbitral tribunals. The thesis then demonstrates that the concept of prima facie jurisdiction should include the issue of whether the parties have consented to arbitrate. Lastly, the relatively recent institution of emergency arbitration is examined. After concluding that there are no legal impediments that would advise against the implementation of the jurisdictional role of emergency arbitrators, the thesis recommends lawmakers to embrace the development first adopted in Singapore which equates the powers of tribunals and emergency arbitrators albeit, of course, restricted to the pre-arbitral stage.

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise and in turn, has detrimentally affected trade and investments, making the system an inefficient alternative to the contentious and long drawn litigations. The study of the DMRC dispute is distinguished because it involves a public-private partnership and is exceptional for two reasons. First, being the first public-private partnership project in metro rail infrastructure in the country, the extraordinary delay in execution of the arbitral award alone highlights the need to create a level-playing field when government is involved as a party. Second, the case showcases glaring loopholes in India’s existing arbitration regime which has allowed courts to unduly intrude and cause inordinate delays at every stage of the process, as a result of which, the amount of interest accumulatedeventually outstripped the principal sum initially claimed by DMRC’s private partner in the project. For instance, it took ten months to constitute an arbitration panel, 68 hearings to pass an arbitral award which culminated in 4.5 years from the date of invocation of arbitration clause by DMRC, several layers of appeal, most of which favored one party, and the execution of the award is still pending!! The paper concludes by recommending plausible solutions to strengthen India’s arbitration laws, so that the DMRC fiasco does not get repeated in future at perilous costs borne by foreign and Indian private investors.