Arbitrating “Arbitrability”* - WAMR 2013 Vol. 7, No. 3
Originally from World Arbitration And Mediation Review (WAMR)
A word about the title: I appreciate of course that the term “arbitrability” is highly fraught, and that our usage is completely at odds with the way the term is used in other legal systems; see Jan Paulsson, Jurisdiction and Admissibility, in GLOBAL REFLECTIONS ON INTERNATIONAL LAW, COMMERCE AND DISPUTE RESOLUTION: LIBER AMICORUM IN HONOUR OF ROBERT BRINER 601, 609 (Gerald Aksen ed., 2005) (our “persistent abuse” of this “vaporous locution” “has led to international disharmony, because elsewhere that word has an established meaning” referring to public policy limitations upon what it is legally permissible to arbitrate). I have in fact often suggested that the term “can easily be dispensed with.” Rau, Separability, supra note *, at 120. But the idiom is well-entrenched, and in the absence of anything with a clearly superior claim – and allowing for the allure of alliteration – I am led to believe it does no great harm. I take “question of arbitrability” to mean, the question “whether there is ‘a duty for the parties to arbitrate’ the dispute – whether the parties have consented to a final arbitral judgment on the issues – whether, in short, the arbitrators have ‘jurisdiction’ to decide;” see text accompanying infra notes 51-52.
The respective roles of courts and arbitral tribunals is, in one form or another, the foundational, primal question around which our whole law of arbitration revolves. True, there is nothing here that hasn’t often been said before (and often enough – although that can hardly be thought to make things any better – by me). The outlines should be abundantly familiar by now. But the endless downpour of cases, and the overgrowth of commentary – inevitable after heavy rains – suggest that it may still be necessary to clear away some brush. It is somewhat easier for me to justify going over all this ground again in this brief exercise, when I bear in mind Johnson’s admonition that “men more frequently require to be reminded than informed.”1