Book Description
The Allocation of Power between Arbitral Tribunals and State Courts by A.S. Rau The ultimate question that runs through all of our law of arbitration is the allocation of responsibility between state courts and arbitral tribunals: Arbitrators are private individuals, non-public actors. If they assume the power to adjudicate the affairs of other private parties - or, for that matter, of public entities - that is, if they presume to bind others with definitive judgments - we must ask, where does this authority come from? A shorthand for this question is to speak in terms of "jurisdiction." (The French word compétence conveys the equivalent concept of the power to adjudicate). In the only cases which are likely to claim our attention, the notion of an arbitrator's "jurisdiction" will be precisely congruent with the presence of "consent" A "jurisdictional" challenge simply rests on the proposition that a party should not be required to submit himself to arbitral determination of any dispute without having first agreed to do so: For where else may an arbitrator - fundamentally different in this respect from a state judge - derive his legitimacy? The answer is, only from that exercise of private ordering, of mercantile self-government, which characterizes any voluntary commercial transaction. A "jurisdictional" challenge asserts that this is "simply not the sort of process to which I have been willing to subject myself." I begin then with the dimensions of "consent" - how it should properly be understood, and how it manifests itself in connection with the various contexts in which challenges to the duty to arbitrate are raised. I then carry forward the discussion to explore how party autonomy in the contracting process may give rise to the voluntary reallocation of presumptive authority (from courts to arbitrators and conversely, from arbitrators to courts); I conclude with the necessary inquiry into the nature of autonomy with respect to the governing law - the "chosen law" that will govern the agreement to arbitrate itself.
