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

King's College London Law School Research Paper No. 2018-19

15 Pages Posted: 19 Jul 2018 Last revised: 28 May 2020

Date Written: June 25, 2018

Abstract

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

Suggested Citation

Penades, Manuel and Tent Alonso, Pedro, Enforcement of Arbitration Agreements by National Courts: What Level of Review? (June 25, 2018). 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, King's College London Law School Research Paper No. 2018-19, Available at SSRN: https://ssrn.com/abstract=3202520

Manuel Penades (Contact Author)

King's College London ( email )

Strand, Somerset Hous
The Dickson Poon School of Law King's College Lond
London, WC2R 2LS
United Kingdom

HOME PAGE: http://kclpure.kcl.ac.uk/portal/manuel.penades_fons.html

Pedro Tent Alonso

J&A Garrigues ( email )

Avinguda Diagonal, 654
Barcelona, 08034
Spain

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