Part I International Arbitration Law, Arbitral Jurisdiction, and Arbitral Institutions, 1 Explaining Arbitration Law

Abstract

This chapter considers the challenges in explaining arbitration law. Unlike most fields of law that provide guidance on how courts decide cases, arbitration law tells judges when not to decide disputes, in deference to private decision-makers selected by the litigants. However, if one side regrets a decision to arbitrate, or the parties diverge about what the arbitration clause covers, courts may be asked to assist in implementing the arbitration agreement or resulting award. At such moments, arbitration law normally includes two limbs: first, to hold parties to their bargains to arbitrate; second, to monitor the basic integrity of the arbitral process, so the case will be heard by a fair tribunal that listens before deciding, stays within its mission, and respects the limits of relevant public policy. The chapter then discusses case studies that illustrate two issues that persistently vex courts and commentators: allocating tasks between judges and arbitrators; and determining what law applies to an arbitration clause.