Determining Arbitral Jurisdiction: Allocation of Tasks Between Courts and Arbitrators – Vol. 8 No. 2

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AuthorWilliam W. Park*

Published: July 1997

Right to Decide on Jurisdiction
Court Decisions

Description: To what extent — if at all — should judges defer to arbitrators’ jurisdictional findings? If courts do pass upon arbitral jurisdiction, when and how should their review be conducted?

The very form in which these questions are posed creates a significant risk of loading the analytic dice. Imagine that Bloggs, in a document styled “Arbitration Award,” orders XYZ Inc. to pay ABC Ltd. $1 million. In resisting enforcement, XYZ argues that Bloggs was never given authority to decide the questions giving rise to his order. In this context, for a court to ask “Should the decision of the arbitrator be enforced?” presumes that in making the order Bloggs was, in fact, the authorized decision-maker. Yet the capacity in which Bloggs acted is precisely the matter in controversy. With respect to any given issue, Bloggs remains only the “alleged arbitrator” until the enforcement forum decides otherwise.

This conceptual and linguistic conundrum is easy to see when controversy surrounds the existence of the arbitration clause or the identity of the parties. An individual who hears a claim for loan repayment filed by First National Bank against Bob Biggs is not an arbitrator at all (at least in that dispute) if the arbitration clause was forged or was signed by Susan Small.

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*Professor of Law, Boston University. Counsel, Ropes & Gray. Vice-President, London Court of International Arbitration. © Copyright, William W. Park.