A Second Look at Arbitrability:Approaches to Arbitration in the United States, Switzerland and Germany
| Autor: | Patrick M. Baron, Stefan Liniger |
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| Rok vydání: | 2003 |
| Předmět: | |
| Zdroj: | Arbitration International. 19:27-54 |
| ISSN: | 1875-8398 0957-0411 |
| Popis: | ACCORDING TO the principle of Kompetenz-Kompetenz , an arbitral tribunal is vested with the authority to decide upon its jurisdiction with respect to any given dispute. In making such a decision, it will review the respective arbitration agreement and it will consider general legal principles affecting its jurisdiction. This decision will inevitably include an assessment as to whether the dispute at hand is arbitrable. The arbitral tribunal's determination, however, is not necessarily final. It might be subject to judicial review. In a motion to set aside the tribunal's determination or during a challenge of the final award at the recognition and enforcement stage, a court may take a ‘second look’ at the arbitrability of a particular matter. The nature of such judicial review has been the subject of extensive scholarly debate in the past. The key point of this debate has been a conflict of interests with significant bearing on international arbitration as an institution. On the one hand, there are national concerns of public policy calling for the exclusive jurisdiction of state courts with respect to the adjudication of certain disputes, whereas, on the other hand, a more liberal and ‘international’ concept of arbitrability appears to be highly desirable for international trade, with a lesser degree of state control over private dispute resolution. Arbitrability, in essence, is a matter of national public policy. As public policy can differ from one country to another, the arbitrability of a particular dispute may vary considerably from jurisdiction to jurisdiction. Naturally, judges of different states will look at the question of whether a given dispute is arbitrable from different angles. Arbitrators, of course, will take yet a different approach to that question. While state judges will make their determination in accordance with their national laws and interests, arbitrators will strive to strike a … |
| Databáze: | OpenAIRE |
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