When an arbitration process is challenged, who decides whether the arbitration can proceed-and how should that question be answered? This Article discusses how and when courts should decide "gateway" issues in international arbitration, issues that go to the validity of the agreement to arbitrate. Using the examples of France and Germany, the author argues that the dominant Continental doctrines used to address such issues, the doctrines of Kompetenz-Kompetenz and separability, neither adequately explain courts' decisions nor provide a strong logical basis for them. In contrast, the more nuanced U.S. approach, which involves demarcating "gateway" and "non-gateway" issues, has strong explanatory and normative force. The author demonstrates how U.S. arbitration law addresses several areas that remain problematic under the Continental doctrine. The author then argues that recognizing U.S. arbitration law's pragmatic balance between legitimacy and efficacy explains an otherwise confusing set of precedents. Finally, the author explains why the US. approach provides courts with a superior approach for responding to the Gateway problem.
George A. Bermann,
The "Gateway" Problem in International Commercial Arbitration,
Yale J. Int'l L.
Available at: http://digitalcommons.law.yale.edu/yjil/vol37/iss1/2