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Research

The area reserved for state justice is the last bastion of state monopoly on the administration of justice in respect of the determination of cases and controversies, but also in respect of the establishment of substantive law. This area for judicial review of arbitration thus becomes a reflection of the irreducible domain of the state in legally pluralistic societies and the globalized normative universe. The principles and modalities of judicial review of arbitration are being constructed and have yet to be satisfactorily conceptualized, as is also the case with the relationship between non-state law and its recognition by the law and institutions of the state.

A growing number of jurisdictions have adopted an approach to judicial review for public policy that recognizes not only the arbitrator’s authority to apply rules pertaining to public policy, but also his 'right to err' in their application, provided that the very recognition or enforcement of such erroneous awards does not threaten public policy. The process of freeing up arbitration is apparent in the constant questioning of the traditional limits that have been set for arbitration and in the ensuing extension of the domain of arbitrability.

Expansion of consensual arbitration into areas as varied as bankruptcy, competition law, consumer law, family matters, fraud, labour relations, intellectual property, securities, and taxation has been witnessed. There is a need to consider the appropriateness of the delineation of matters open to arbitration and the place carved out by the state for judicial monopolies. One requires profound reflection on the nature and validity of the reasons for which certain domains remain reserved for state justice, as well as, on the effectiveness of the conceptual tools associated with judicial review.