International commercial arbitration and litigation are often seen as competing fora, fields of law, or markets. This intersection is at its highest at the forefront of any proceedings, at the jurisdictional stage. The analysis of jurisdictional issues at the forefront of an arbitration has been confined in a descriptive analysis of the law and jurisprudence, dealing with jurisdictional intersections almost in a mechanistic manner. These are not, however, issues which can be treated as mere mechanical rules. They are issues pertaining to core notions of authority, sovereignty, their origins and their allocation. At the same time, the pragmatic and practical domination of party autonomy is a fact which cannot be disregarded when one considers the normative and theoretical foundations of any model of dealing with these issues. This book moves beyond an analysis of arbitration and jurisdiction clauses to reconcile theory and practice, and provides an underlying theoretical model to explain and regulate jurisdictional intersections at the early stages of an arbitration from a private international law perspective. It combines both an in-depth engagement with the theoretical literature as well as a close examination and analysis of its practical consequences in the form of a restatement of the law of England and Wales. From a methodological perspective, it utilises contemporary theories in private international law to propose a coherent model of regulating arbitral jurisdictions which promotes autonomy and freedom of the parties at this stage. Demonstrating, first, how the theoretical model can be applied in practice and, second, to provide a basis for a potential future top-down or bottom-up approach of adopting the proposed model, it includes a succinct and practical codification of the current state of affairs in relation to the whole spectrum of jurisdictional issues in England and Wales to serve as a useful tool for practitioners considering jurisdictional issues both from the perspective of State courts and from the perspective of arbitral tribunals, as well as academics researching in these areas.
1 Introduction
1.1 Arbitral Jurisdiction in Private International Law and Arbitration
1.1.1 Jurisdiction as Adjudicatory Competence in Cross-border Disputes
1.1.2 Jurisdiction, Arbitration, and Party Autonomy
1.2 Recurring Themes
1.2.1 Arbitral Jurisdiction and Parallel Proceedings in International Commercial Disputes
1.2.2 Private International Law Analysis of Arbitral Jurisdiction: Comparison, Parallels, and Transposition
1.2.3 Economic Globalisation, Global Law, and Arbitral Jurisdiction
1.2.4 Jurisdictional Focus: Arbitral Jurisdiction in England and Wales
1.3 The Enquiry
1.3.1 Research Question
1.3.2 Contribution to Knowledge
1.3.3 Scope
1.3.4 Structure
2 Globalisation and Commercial Disputes
2.1 Globalisation and the Rise of Private Actors in International Commerce
2.2 State Interests in Private Commercial Disputes
2.3 Private Interests and Risks in International Commercial Transactions and Disputes
2.4 Arbitration, Merchants, and International Commercial Disputes
2.4.1 Arbitration as a Dispute Resolution Method for Merchants
2.4.2 Arbitral Jurisdiction in the Context of International Commercial Disputes
3 Cross-border Jurisdiction in Commercial Disputes
3.1 Jurisdictional Issues in International Commercial Disputes
3.1.1 Jurisdictional Disputes and Private International Law
3.1.2 Tactical Nature of Jurisdictional Disputes
3.1.3 Party autonomy and jurisdiction
3.2 Jurisdictional Issues in International Arbitration
3.2.1 Traditional doctrinal approach to arbitral jurisdiction
3.2.2 Jurisdictional Intersections
4 Party Autonomy in Private International Law and Arbitration
4.1 Traditional Paradigms of Private International Law and Party Autonomy
4.2 Creature of Contract or Creature of Party Autonomy?
4.3 Arbitration Agreements as an Expression of Party Autonomy in International Commercial Arbitration
4.3.1 Common Law – Contractual Paradigm
4.3.2 Civil Law approach – Procedural Contracts
4.3.3 Dual nature and Effects of Arbitration Agreements
4.4 Arbitration, Party Autonomy, and International Commercial Dispute Settlement
5 Existing Approaches For Regulating Arbitral Jurisdiction
5.1 Regulation of Jurisdictional Issues in International Instruments
5.1.1 New York Convention 1958
5.1.2 Parallels from the 2005 Hague Convention on Choice of Court Agreements
5.2 Regulation of Arbitral Jurisdiction in a Comparative Context
5.2.1 New French Code of Civil Procedure—A rule of Temporal Priority
5.2.2 United States of America – Separability as a Delineating Mechanism
5.2.3 Germany—Abandoning a rule of contractual competence-competence
5.3 Theoretical Models of Regulating Arbitral Jurisdiction
5.3.1 Rau’s Solar System
5.3.2 Paulsson’s Presumptive Allocation of Authority
5.3.3 Reversing the Default Position
6 A global law model for arbitral jurisdiction
6.1 A Contemporary Private International Law Proposal on Arbitral Jurisdiction: from Subordination to Synergy
6.1.1 Fitting Party Autonomy to the Traditional Paradigms or Changing the Paradigm?
6.1.2 Arbitral jurisdiction in a Shifting Paradigm of Dispute Resolution
6.1.3 Horizontal Model of Arbitral Jurisdiction
6.2 Adopting the Proposed Model
6.2.1 Top-down adoption via multilateral treaties and model laws
6.2.2 Arbitral Jurisdiction and State Regulatory Competition
6.2.3 Private Regulation and Arbitral Jurisdiction
6.2.4 Horizontal Choice and English Commercial Arbitration and Litigation
7 Arbitral jurisdiction from a state court’s perspective
7.1 Stay of Proceedings
7.1.1 Stay of Proceedings under Section 9 Arbitration Act 1996
7.1.2 Inherent/Case Management Stays
7.1.3 Restated Approach
7.2 Declarations of Validity: Cost Management Tools or Jurisdictional Encroachment?
7.2.1 Declaration under Section 32 of the Arbitration Act 1996
7.2.2 Powers under Section 72 of the Arbitration Act 1996
7.2.3 Restated Approach
7.3 Enforcement of Arbitration Agreements: Traditional and Equitable Remedies
7.3.1 Court-Ordered Anti-Suit Injunctions
7.3.2 Specific Performance Order: the Positive Obligation
7.3.3 Restated Approach
7.4 Enforcement of Arbitration Agreements: Damages
7.4.1 Damages in the Law and Practice of England and Wales
7.4.2 Restated Approach
7.5 Post-award Intersections: Jurisdictional Review and Control
7.5.1 Grounds and Standard of Review
7.5.2 Conflict of Judgments
8 Arbitral Jurisdiction: Issues Before Arbitral Tribunals
8.1 Competence to Decide Jurisdictional Issues Redux
8.2 Stay of Arbitration Proceedings
8.3 Enforcing the Arbitration Agreement: Arbitral Enforcement Orders
8.3.1 Jurisdiction to Grant Arbitral Enforcement Orders
8.3.2 Enforcement
8.3.3 Restated Approach
8.4 Monetary Sanctions and Damages as Tools Bolstering Arbitral Enforcement Orders
8.4.1 Monetary Sanctions
8.4.2 Enforcing the Arbitration Agreement with a Damages Award
8.5 Contractual Undertakings
9 Conclusions: Arbitral Jurisdiction Architecture
Biography
Faidon Varesis is Teaching Fellow at National Kapodistrian University of Athens, Greece. He has completed his Ph.D. at the University of Cambridge on 'Regulation of Arbitral Jurisdiction: a Private International Law Proposal' and he has taught at Cambridge, Oxford, Milan, and Athens. His research interests focus on International Commercial Arbitration and Conflict of Laws. He holds an M.Jur. (Distinction) from the University of Oxford having already completed an LLM in Civil law (Summa cum Laude) and an LLB (Summa cum Laude) from the National and Kapodistrian University of Athens, Greece.
Aside from his academic endeavours, he is a qualified attorney practicing in international commercial and investment arbitration, as well as representing clients in international transactions.
