Calibrating De Novo: Judicial Review of Arbitral Jurisdiction

Abstract

De novo review of arbitral jurisdiction at the post-award stage that typically involves full, independent assessment of arbitrators’ findings with respect to questions of law and fact has become the norm under most legal regimes. This approach is geared towards legitimacy of the arbitral process and ensures that a party contesting jurisdiction has full opportunity to do so before the courts. However, while seeking to preserve important public policy objectives, de novo review may sometimes lead to inefficiencies and unfairness in the process, contrary to arbitration’s stated goals of obtaining the fair resolution of disputes without unnecessary delay or expense. This article thus calls for a critical evaluation of the de novo standard with a view to developing a more balanced system that would pay due regard to the competing goals of efficiency and legitimacy of the arbitral process. arbitral jurisdiction, jurisdiction of arbitrators, control of jurisdiction, review of jurisdiction, standard of review, de novo review, full review, rehearing of jurisdiction, deference to arbitrators, jurisdiction and admissibility