Institutional Rules and Arbitral Jurisdiction: When Party Intent is Not “Clear and Unmistakable” – Vol. 17 No. 4

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Author: Richard W. Hulbert*

Published: December 2008

Categories of Disputes
Commercial Disputes
Enforcement of Arbitral Awards

Description: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…

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*Senior Counsel to Cleary Gottlieb Steen & Hamilton LLP, Adjunct Professor at New York University School of Law, and a former Vice Chairman of the ICC International Court of Arbitration. The author expresses his appreciation for the research and editorial assistance of Jennifer Gorskie, an associate at Cleary Gottlieb.