Originally from World Arbitration And Mediation Review (WAMR)

Professor Thomas J. Stipanowich

Introduction and Moderator

Professor Alan S. Rau and Timothy G. Nelson

Co-Panelists

I want to try to sharpen some points of discussion in this rather complex area, and also permit you, at some point, to ask some questions of our three speakers this morning. Let me just see if I can sharpen a couple of points that have been raised in your papers and in your presentations. Professor Alan Rau, of the University of Texas School of Law, and Tim Nelson, of Skadden, Arps, Slate, Meagher & Flom LLP, will offer perspectives on what they consider to be the key points of distinction between two paradigms, that is, what really matters, what are the elements of concern in terms of differences between the paradigm represented by French procedure in this arena and what we will call the American, maybe American/U.K. approach. I realize that this, itself, is a subject for a whole program, but Alan will take a few minutes and talk about that.

ALAN: Well, as I said, when we are talking about the problem of timing or chronology, I cannot get away from the idea that it is largely a cost/benefit analysis and one could take the view that since most challenges are frivolous, it is best to let the arbitration proceed unhindered. Maybe the party that was resisting arbitration will win anyway, so the whole matter becomes moot. Or, one could take the approach, which is the American approach, that it is best to have some sort of traditional imprimatur right now; it is best to have the courts determine right now a motion to compel or a motion to enjoin the arbitration so that the parties do not go through a process that later turns out to be totally pointless and futile and expensive because it is later found that there is no jurisdiction. Now, I do not know which one is the preferable approach, but I do know the relevant question, which I think is an empirical one: of the two approaches which is most likely to reduce the systemic cost.