A Second Look at Arbitrability:Approaches to Arbitration in the United States, Switzerland and Germany

Abstract

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...