Paper's abstract

George A. Bermann, The Respective Roles of Courts and Arbitrators in the Determination of Arbitral Jurisdiction
A perennial issue in the law of arbitration is the proper demarcation of authority between courts and arbitrators in determining the meaning and validity of an agreement to arbitrate– being understood that the higher the jurisdictional barriers to arbitration, the more likely that the purposes of arbitration, as an alternative to litigation, will be defeated. In the U.S., as elsewhere, the notions of Kompetenz-Kompetenz and severability have come to occupy center stage in untangling these issues. The author claims that the doctrine of Kompetenz-Kompetenz, properly limited, continues to be a useful guide to managing the problem of defining arbitral jurisdiction. On the other hand, the contribution of the principle of severability to managing the problem may have been somewhat oversold. The doctrine of severability – at least in its traditional form – is coming under increasing pressure and, in the U.S. law of arbitration, should be regarded as, at best, a point of departure, and by no means the end of the analysis. Stated in the most general terms, it may even be misleading.

Key Words : separability, Kompetenz-Kompetenz
t. 52, 2009 : p. 121-134

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