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Enforcement of Arbitration Agreements by National Courts: What Level of Review?

Research output: Chapter in Book/Report/Conference proceedingChapter

Original languageEnglish
Title of host publicationFach Gómez K, López Rodríguez AM (eds) 60 Years of the New York Convention: Key Issues and Future Challenges
EditorsKatya Fach Gómez
PublisherWolters Kluwer
Chapter1
Pages3-17
Number of pages15
ISBN (Print)9789403501550
Publication statusPublished - 2019

King's Authors

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.

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