Regulating Arbitral Jurisdiction: A Private International Law Proposal
This PhD thesis focuses on the regulation of jurisdictional issues in relation to the arbitral resolution of international commercial disputes. It provides an account based on a contemporary analysis of these issues utilising the tools of private international law. The analysis is divided in two parts: a theoretical and a practical one. The theoretical part is informed by the triangle of: (a) the particular characteristics of international commercial disputes in a globalised economy; (b) the role of party autonomy as a shifting paradigm of jurisdiction in cross-border disputes; and (c) the resulting relationship between arbitration and litigation as dispute resolution methods in the global commercial arena. The thesis proposes a model based on a horizontal relationship of equality between court litigation and arbitration in cases involving an arbitration agreement, albeit a disputed one. This model depicts the relationship of the two dispute resolution methods as two streams. Parties in international commercial transactions—and resulting disputes—can choose in which stream their dispute will enter. These streams are parallel and equal streams, not exclusive, allowing, therefore, for movement between them, creating jurisdictional intersections in all phases of a dispute. Focusing on the arbitration stream, and based on this theoretical model, the thesis proceeds by examining these jurisdictional intersections in the context of the law and practice of arbitration in England and Wales. This practical exercise serves a twofold purpose: (a) to consider the extent in which the current statutory and case-law framework can accommodate the proposed model; and (b) to provide a restatement of the law and practice in England and Wales in the form of rules of arbitral jurisdiction. In fulfilling both purposes, the analysis focuses on issues pertaining to the initial threshold, standard, and content of proof, the prerequisites for moving from the arbitration to the litigation stream, and various methods employed in each stream for ensuring that the choice of the parties is enforced. The thesis, in its theoretical framework and restatement of the law and practice, proposes a novel, horizontal architecture of arbitral jurisdiction based on a contemporary conception of private international law in a globalised world.
arbitration, private international law, global law, conflict of laws, jurisdiction
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