Originally from Pro-Arbitration Revisited: A Tribute to Professor George Bermann from his Students Over the Years

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“…if a policy or practice sufficiently enhances arbitration’s legitimacy, or at least avoids discrediting it, that policy or practice may legitimately be regarded as in itself decidedly arbitration-friendly, notwithstanding the fact that it makes arbitration somewhat more costly, curtails party autonomy, invites judicial intervention, removes a category of claims from the universe of arbitrable disputes, or sacrifices in some other way what we traditionally associate with arbitration-friendliness.”

- George Bermann, “What Does it Mean to Be ‘Pro-Arbitration’?”

A fundamental premise of arbitration is that the parties to a dispute have agreed to remove that dispute from the jurisdiction of State courts. If jurisdiction is challenged, national arbitration laws commonly accord arbitral tribunals with competence-competence to rule on the extent of their own jurisdiction over the matters put before them. But it is also a common feature of national arbitration laws to authorize national courts to hear complaints that an arbitral tribunal lacks or lacked jurisdiction in particular instances: see, for example, UNCITRAL Model Law, articles 16 and 34(2). The court’s supervision on the question of jurisdiction is an important check and balance to the autonomy otherwise enjoyed by the parties and their tribunal.

A question arises as to how far a court at the arbitral seat should be able to go in enquiring whether a tribunal has correctly concluded that it has jurisdiction over a dispute. Is the court’s role to sense-check the tribunal’s determination based on the facts and arguments which were put before the tribunal, or should the court be conducting its own re-hearing of the underlying circumstances?