Jurisdiction of the Arbitral Tribunal - Chapter 5 - Arbitration of International Disputes in New York
Dr. Peter (Pieter) Bekker is an international arbitration practitioner and professor. He has been a member of the Bar of the State of New York since 1992. He is also a member of the Bar of the Supreme Court of the United States. He is admitted to practice before the U.S. district courts for the Eastern and Southern Districts of New York and the U.S. Court of Appeals for the First Circuit. He is a commissioned New York Notary Public and, as such, a constitutional officer of the State of New York, where he resides.
Originally from Arbitration of International Disputes in New York
The central issue of “arbitrability,” which in its narrow sense concerns the question of what subject matter is legally capable of settlement by arbitration and arbitrators as opposed to judges in conventional court-based proceedings, and of arbitral jurisdiction generally (involving questions of privity, scope, and validity) may arise at various stages and before different adjudicators:
(i) before a court assessing whether to enforce an existing arbitration agreement, stay litigation and/or compel arbitration;
(ii) before an arbitral tribunal determining the scope of its authority or competence;
(iii) before a court, typically at the place of arbitration, in a proceeding to vacate or set aside an arbitral award; and
(iv) before a court being requested to confirm or enforce an arbitral award.
As regards the law to be applied in determining questions of arbitrability or arbitral jurisdiction, depending on the stage at which the issue of arbitral jurisdiction is encountered and on what vacatur or enforcement ground is invoked, it may be necessary to have regard to the relevant laws of different jurisdictions. This includes
(i) the law governing the parties’ arbitration agreement,
(ii) the law governing the contract containing the arbitration clause,
(iii) the law of the place of arbitration (which may be in a country other than that of the court having jurisdiction over the issue), and
(iv) the law of the place, or places, of enforcement (at the post-award enforcement stage).