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Themes

Transnational Law and State Structures

This theme considers the question of the sources of transnational law and possible connections between it and the state apparatus. Regarding the question of sources for transnational law, hypotheses tend to be based on contractual explanations or legal ones. Any reconciliation of these explanations would require a fresh look at the relationship between formal law, usage, and contract that would allow sufficient space for the implicit normative context surrounding written provisions. This might ensure a minimum of conceptual coherence in the emerging field of transnational contract law.

Arbitrability, Public Policy and Rule of Law

This considers the question of the relationship between arbitration and judicial control on the basis of public policy and arbitrability, particularly, imperatives of the rule of law, which are derived from principles of liberal and communitarian justice. How is one to reconcile the fundamental principles of the rule of law and judicial review of legality with arbitral liberty, choice of law, and choice of forum? What must one render onto Caesar in a context of a normative plurality that has long been hidden by the Westphalian system and legal positivism? Is a posteriori judicial review of arbitral decisions for public policy sufficient to respond to the concerns regarding public policy? What is the common denominator between matters that are considered to be inarbitrable?

Arbitral Competence Between Contract and Law

The third theme of the research program considers delineating arbitral competence from the perspective of its supervision by courts. It has been generally accepted that this supervision, subject to to the principle of Kometenz-Kometenz, which provides priority in time to arbitrators, extends to the existence as well as to the scope of the arbitration agreement, and to the proper appointment of arbitrators. The limits of jurisdiction, however, remain fluid in reference to the arbitrator and his powers.

Legal Risks Associated with Online Arbitration

The meeting of arbitration and communication technologies brings the prospect of satisfying a basic and latent demand of the world economy: a rapid and inexpensive means for small and medium enterprises engaged in international commerce to access justice. Online arbitration brings together all of the elements required for this type of justice: freedom of contract, the enforceability of arbitral awards, and advances in communication technologies. However, analysis of legal risk is required, as certain procedural constraints concerning justice may be called into question by these revolutionary technologies.