Originally from American Review of International Arbitration - ARIA

Preview Page

It is trite, to be sure, to observe that the relations between arbitrators and national courts are critical to the functioning of modern international commercial arbitration.  Trite but true, although acknowledgement of the place of national courts and national law in this picture is sometimes grudging.  The voices of proponents of “a-national” arbitration have not been stilled in the half century since they were first heard.   Nonetheless, if a party that has agreed to submit a dispute to arbitration refuses to arbitrate, unless a national court can be found to lend assistance, the agreement will have no effect.  The aspect of enforcement of an arbitration agreement that sets the stage for the issue considered in this paper is the question how to resolve the issue raised by a party’s assertion that it is not bound to arbitrate under the agreement.  This brings in its wake the further question, at what point and to what extent (if at all) should the national court intervene or, conversely, to what extent should decision of the issue of the arbitrators’ jurisdiction be left with the arbitral tribunal, subject to what (if any) subsequent court review.

It might be thought that the best approach is ultimately a collaborative one, that both the arbitrator and the court have roles to play.  At odds with that view is the current trend in American decisions to treat the matter, not as one of collaboration, but as a matter of “either/or,” sometimes put as the question “who is to decide.”   The First Options decision has introduced (in dictum) the important corollary that if the parties have agreed by “clear and unmistakable” evidence that the arbitrator has primary authority to decide issues of arbitral jurisdiction (or “arbitrability” as it is often put), subsequent judicial review is to be perfunctory, at best.

The focus of this article is on a developing jurisprudence that has improperly, in the view taken here, considered that this “clear and unmistakable” evidence has been established, in effect as a matter of law, by party agreement to arbitrate under the rules of institutions that acknowledge the authority of arbitrators to rule on questions of their own jurisdiction.