Enforcement of Arbitration Agreements by National Courts: What Level of Review?
In Fach Gómez K, López Rodríguez AM (eds) 60 Years of the New York Convention: Key Issues and Future Challenges, Wolters Kluwer, 2019, 3-17
15 Pages Posted: 19 Jul 2018 Last revised: 28 May 2020
Date Written: June 25, 2018
Despite being a classic topic in arbitration, the doctrine of kompetenz-kompetenz continues to generate controversy in practice. This paper examines a 2017 decision of the Spanish Supreme Court concerning the enforcement of arbitration agreements by national courts at the pre-award stage and compares it with the English and French solutions. The divergence evidenced by these jurisdictions is motivated by the silence of article II(3) NYC on the meaning of ‘null and void, inoperative and incapable of being performed’. The authors explore the issues of burden and standard of proof that derive from this provision and from national practices, and argue that the gap left by the NYC cannot be filled up with a “one-size-fits-all” rule. Rather, the better solution requires distinguishing between the different scenarios in which national courts might be asked to examine the validity, effectiveness and scope of arbitration agreements.
Keywords: Arbitration, Kompetenz-Kompetenz, New York Convention, Spain, England, France
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