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Court Litigation over Arbitration Agreements: Is it Time for a New Default Rule?
The American Review of International Arbitration (2012)
  • Jack Graves
Abstract

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This paper briefly surveys the problem, as well as a few current proposed solutions, and then proposes its own novel solution in the form of a new convention making arbitration the default legal rule for resolution of international commercial disputes.

Keywords
  • Arbitration,
  • Agreement,
  • Commercial,
  • Competence-compliance,
  • FAA,
  • Federal Arbitration Act,
  • New York Convention,
  • recognition and Enforcement of Foreign Arbitration Awards,
  • International,
  • Jurisdiction,
  • Graves,
  • Jack Graves,
  • litigation,
  • Competence,
  • international commercial arbitration,
  • negative competence-competence,
  • competence-competence,
  • UNCITRAL
Publication Date
2012
Citation Information
Jack Graves. "Court Litigation over Arbitration Agreements: Is it Time for a New Default Rule?" The American Review of International Arbitration Vol. 23 Iss. 1 (2012)
Available at: http://works.bepress.com/jack_graves/9/