International Commercial Arbitration (Part 1): Who Decides Threshold Issues - the Court or the Arbitrators?

This program is the first in a multiple part curriculum on international commercial arbitration.  It begins by providing an introduction to international commercial arbitration and then addresses the question of “who decides”—the court or the arbitrators—threshold issues involving international arbitration, such as whether an international arbitration agreement exists, whether certain claims or certain parties are covered by an international arbitration agreement, and whether conditions precedent to international arbitration are satisfied.

In this course, Stephen Anway explains that countries have adopted different approaches to this question.  He contrasts the approach used by US courts, which have largely decided the question on a case-by-case basis, with the French legal system, which has adopted a bright-line, pro-arbitration test to addressing the “who decides” question.

In particular, Mr. Anway reviews the body of case law from the US Supreme Court addressing this question in different contexts—most recently in the investment-treaty arbitration context in BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198 (2014).  Mr. Anway reviews that body of case law and discusses the traditional legal tools that have been used to explain the US courts’ varying decisions on this question.

Mr. Anway argues that those traditional legal tools (namely, the Kompetenz-Kompetenz and Separability Doctrines) are not adequate to reconcile the case law and discusses an alternative way of viewing the case law that reconciles each of the Supreme Court’s decisions and provides a framework for addressing the “who decides” question in the future.

Learning Objectives: 

I.    Understand the “who decides” problem and its practical consequences

II.   Differentiate between the approach undertaken by the U.S. and those of other countries, such as France

III.  Know whether to seek assistance from courts on threshold issues 

IV.  Learn whether to resist court involvement on threshold issues when appropriate

V.   Grasp the body of case law that has developed in the U.S. on the “who decides” question and the principles driving the court decisions 

VI.  Apply these principles to new fact patterns as they may arise in the future