International arbitral jurisdiction
University of British Columbia
Master of Laws - LLM
Among the several reasons that contribute to the success of international commercial arbitration is the maximization of party autonomy and the minimization of court interventions in arbitration. This paper considers international arbitral jurisdiction in view of party autonomy and court interventions. The nature of international commercial arbitration involves both private consensus and public recognition. Private consensus lies in the agreement of the parties. Problems which arise from the agreement and concern arbitral jurisdiction are where arbitral jurisdiction comes from, whether international arbitrators have the power to decide their own jurisdiction, to what extent international arbitrators can assume jurisdiction and to what extent a national court should review the decisions of the arbitrators. The analysis is primarily based on international arbitration rules, published arbitral awards, arbitration legislations and court decisions of countries which have a fairly developed system of international arbitration. The paper concludes that international arbitrators are empowered to deal with their own jurisdiction and their decision is subject only to attack at a national court. International arbitrators and national courts should cooperate to facilitate a speedy resolution of disputes. National laws should play the role of filling in the gaps of international arbitral jurisdiction. Parties should frame their agreement in a way to avoid future uncertainties.
Law, Peter A. Allard School of