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List of contents
1 Introduction 1.1 Arbitral Jurisdiction in Private International Law and Arbitration1.1.1 Jurisdiction as Adjudicatory Competence in Cross-border Disputes
1.1.2 Jurisdiction, Arbitration, and Party Autonomy
1.2 Recurring Themes1.2.1 Arbitral Jurisdiction and Parallel Proceedings in International Commercial Disputes
1.2.2 Private International Law Analysis of Arbitral Jurisdiction: Comparison, Parallels, and Transposition
1.2.3 Economic Globalisation, Global Law, and Arbitral Jurisdiction
1.2.4 Jurisdictional Focus: Arbitral Jurisdiction in England and Wales
1.3 The Enquiry1.3.1 Research Question
1.3.2 Contribution to Knowledge
1.3.3 Scope
1.3.4 Structure
2 Globalisation and Commercial Disputes2.1 Globalisation and the Rise of Private Actors in International Commerce2.2 State Interests in Private Commercial Disputes2.3 Private Interests and Risks in International Commercial Transactions and Disputes2.4 Arbitration, Merchants, and International Commercial Disputes2.4.1 Arbitration as a Dispute Resolution Method for Merchants
2.4.2 Arbitral Jurisdiction in the Context of International Commercial Disputes
3 Cross-border Jurisdiction in Commercial Disputes3.1 Jurisdictional Issues in International Commercial Disputes3.1.1 Jurisdictional Disputes and Private International Law
3.1.2 Tactical Nature of Jurisdictional Disputes
3.1.3 Party autonomy and jurisdiction
3.2 Jurisdictional Issues in International Arbitration3.2.1 Traditional doctrinal approach to arbitral jurisdiction
3.2.2 Jurisdictional Intersections
4 Party Autonomy in Private International Law and Arbitration4.1 Traditional Paradigms of Private International Law and Party Autonomy4.2 Creature of Contract or Creature of Party Autonomy?4.3 Arbitration Agreements as an Expression of Party Autonomy in International Commercial Arbitration4.3.1 Common Law - Contractual Paradigm
4.3.2 Civil Law approach - Procedural Contracts
4.3.3 Dual nature and Effects of Arbitration Agreements
4.4 Arbitration, Party Autonomy, and International Commercial Dispute Settlement5 Existing Approaches For Regulating Arbitral Jurisdiction5.1 Regulation of Jurisdictional Issues in International Instruments5.1.1 New York Convention 1958
5.1.2 Parallels from the 2005 Hague Convention on Choice of Court Agreements
5.2 Regulation of Arbitral Jurisdiction in a Comparative Context5.2.1 New French Code of Civil Procedure-A rule of Temporal Priority
5.2.2 United States of America - Separability as a Delineating Mechanism
5.2.3 Germany-Abandoning a rule of contractual competence-competence
5.3 Theoretical Models of Regulating Arbitral Jurisdiction5.3.1 Rau's Solar System
5.3.2 Paulsson's Presumptive Allocation of Authority
5.3.3 Reversing the Default Position
6 A global law model for arbitral jurisdiction6.1 A Contemporary Private International Law Proposal on Arbitral Jurisdiction: from Subordination to Synergy6.1.1 Fitting Party Autonomy to the Traditional Paradigms or Changing the Paradigm?
6.1.2 Arbitral jurisdiction in a Shifting Paradigm of Dispute Resolution
6.1.3 Horizontal Model of Arbitral Jurisdiction
6.2 Adopting the Proposed Model6.2.1 Top-down adoption via multilateral treaties and model laws
6.2.2 Arbitral Jurisdiction and State Regulatory Competition
6.2.3 Private Regulation and Arbitral Jurisdiction
6.2.4 Horizontal Choice and English Commercial Arbitration and Litigation
7 Arbitral jurisdiction from a state court's perspective7.1 Stay of Proceedings7.1.1 Stay of Proceedings under Section 9 Arbitration Act 1996
7.1.2 Inherent/Case Management Stays
7.1.3 Restated Approach
7.2 Declarations of Validity: Cost Management Tools or Jurisdictional Encroachment?7.2.1 Declaration under Section 32 of the Arbitration Act 1996
7.2.2 Powers under Section 72 of the Arbitration Act 1996
7.2.3 Restated Approach
7.3 Enforcement of Arbitration Agreements: Traditional and Equitable Remedies7.3.1 Court-Ordered Anti-Suit Injunctions
7.3.2 Specific Performance Order: the Positive Obligation
7.3.3 Restated Approach
7.4 Enforcement of Arbitration Agreements: Damages7.4.1 Damages in the Law and Practice of England and Wales
7.4.2 Restated Approach
7.5 Post-award Intersections: Jurisdictional Review and Control7.5.1 Grounds and Standard of Review
7.5.2 Conflict of Judgments
8 Arbitral Jurisdiction: Issues Before Arbitral Tribunals8.1 Competence to Decide Jurisdictional Issues Redux8.2 Stay of Arbitration Proceedings8.3 Enforcing the Arbitration Agreement: Arbitral Enforcement Orders8.3.1 Jurisdiction to Grant Arbitral Enforcement Orders
8.3.2 Enforcement
8.3.3 Restated Approach
8.4 Monetary Sanctions and Damages as Tools Bolstering Arbitral Enforcement Orders8.4.1 Monetary Sanctions
8.4.2 Enforcing the Arbitration Agreement with a Damages Award
8.5 Contractual Undertakings9 Conclusions: Arbitral Jurisdiction Architecture
Summary
International commercial arbitration and litigation are often seen as competing fora, fields of law, or markets. This intersection is at its highest at the forefront of any proceedings, at the jurisdictional stage.
