Arbitration, a quintessential paradigm of private justice, today occupies an increasingly important place in comparison to State justice. States support arbitration by ensuring, among other things, the enforcement of arbitral awards. This support usually involves the judicial review of arbitration whose criteria delimit, in practice, the boundaries of the arena in which public justice can continue to be deployed without competition. Such boundaries thus reflect the irreducible space that States reserve to themselves in a global world that is characterized by a plurality of legal orders.
Notwithstanding the importance of such boundaries, the criteria regulating the judicial review of arbitral proceedings are still being developed and theorized. The same is true for the role that a-national law plays in arbitration and its legitimization by State law and institutions. The development ─ and gradual crystallization ─ of a substantive and procedural normativity detached from the State can be readily observed. However, the nature of the relationship between this normativity and both national and international law is yet to be defined. By raising the question of control over arbitration and of the increasing place that a-national law shares in such proceedings, this programme provides us with the opportunity to analyse the raison d’être of State justice both in terms of its substantive and procedural aspects; a pillar of the fundamental tension that defines the Rule of Law. From here, it becomes possible to explore not only the full potential of the concept of Rule of Law, but also its limits beyond the boundaries of the State.
This research project places the revival of private justice against the backdrop of the State, its laws and its notion of the Rule of Law. The methodology will essentially be qualitative, rooted in a well-established tradition of critical legal research. This, however, does not exclude the use of empirical analysis. The research, which is divided into four themes, is outlined below: click on each title to find out more.
Theme A: Transnational law, state law and international law
This research axis considers the forms and sources of transnational law from different perspectives, as well as its interactions with international and national law. As a form of emerging law distinct from the well-established legal systems, that is to say international and State law, transnational law applied in international arbitration tends to define itself in relation to these systems.
In considering the relationship between transnational law and other well-established laws, it is clear that the tripartite conceptual framework “national law / public international law / private international law”, must be revised. The emergence of transnational normativity puts into question the primacy of international law, and its role in the regulation of certain private relationships. Will private international law return to its truly international roots? Will substantive transnational law become a new private international law? And what about the transnational rules of procedure developed in arbitration? Can arbitral case law produce a law that can be readily identified and understood by State courts?
As far as the normative process is at stake, the question of precedent becomes imperative. Case law has always been difficult to fit into the conceptual apparatus of international law. Yet, the creation of investment law rules by arbitral case law is undeniable. Can such output from this normative process find its basis in a customary secondary rule (not the substantive obligation, but rather the production and recognition of such obligations)? What is the justification for this approach in both law and practice? The importance of these questions, far from being limited to substantive rules, extends to the contribution of precedent in the development and transnationalization of procedure.
Theme B: Arbitrability, public policy and rule of law
The relationships between the criteria of judicial review that are public order and arbitrability on one hand, and the demands of the Rule of Law on the other, are at the heart of this research theme.
On one hand, we note that several jurisdictions now recognise the power of the arbitrator to apply rules of public order, as well as a margin of error in their application, provided that the recognition or enforcement of that award does not violate public order. Public order thus refers to an ad hoc review of the impact of the arbitral decision while arbitrabitility limits the freedom of the parties to withdraw a subject or question from state jurisdiction in favour of arbitral jurisdiction. While the practical feasibility of developing such a review of public order is yet to be established, it certainly reduces the intensity of the State’s oversight of arbitration and increases the role of arbitrability in defining the relationships between arbitration and public justice.
On the other hand, we notice that the traditional limits of arbitration, and therefore the sphere of arbitrability, continue to expand. As such, we have been witnesses to this phenomenon in areas such as labour law, fraud and corruption, bankruptcy, tax law, intellectual property, competition law, securities and, more generally, consumer law. Whole swathes of regulation in family matters, according to some authors, should also fall within the scope of arbitration. These advances in arbitration are difficult to apprehend in a context where the very definition of arbitrability yields nothing, where the reasons of inarbitrability are never formulated in a satisfactory way, and where the reflection over objectives sought and achieved by arbitration often limits itself to a rhetorical discussion on the importance of contractual freedom in a market economy.
Theme C: Jurisdiction, the power of the arbitrators and consent
The research under this theme tackles the definition of ‘arbitral jurisdiction’ from the perspective of its control by the State judge. The judicial review of arbitral jurisdiction is a complex and controversial issue. If there is indeed a consensus recognizing the arbitral tribunal’s power to determine its own jurisdiction, discrepancies still persist in relation to most questions concerning the distribution of roles and responsibilities in this regard between judges and arbitrators. These differences may result from the definition that is given to the notion of competence (often understood as those of investiture, a mission or authority), which can hardly be analyzed without reference to the consent - often assumed - of the parties.
As far as judicial review of the arbitral tribunal’s decision on its own jurisdiction is at stake, two hypotheses are currently being debated. The first hypothesis focuses on arbitral decisions in which an objection to jurisdiction is made and they are deemed to be final in some countries while subject to review in others. The second concerns the possibility that an arbitration agreement giving the arbitral tribunal the power to determine its own jurisdiction has the effect of delegating to the latter the power to make decisions on the matter of jurisdiction that are as final as awards on the merits. This position, embraced by US jurisprudence but rejected in most other countries, raises thorny questions about the presumed intention of the parties as well as the foundations of the principle kompetenz-kompetenz. The question then raised is whether the recognized power of arbitrators to decide on their own jurisdiction also encompasses the power to have a priority when doing so.
The kompetenz-kompetenz principle would thus have a negative effect, that is, the prevention of judicial review until the arbitrator has ruled. Is this thesis of the principle’s negative effect suited to jurisdictions where state courts are likely to decide in an efficient manner, upstream, on the objections to arbitral jurisdiction? Finally, in situations where review is allowed, both upstream and downstream, the question of the criteria or of the intensity of this review of arbitral jurisdiction is the object of importantly differing views in comparative law.
Theme D: Private justice, rights, and technology
This last theme explores on the potential of online arbitration in terms of access to justice, and in particular to cross-border justice.
Arbitration takes advantage of the freedom of contract, the enforceability of arbitral awards and advances in telecommunication to improve access to justice, but this is not without questioning the constraints, including procedural constraints, of arbitral justice, whose conceptualization is being developed under transnational law.