International commercial arbitration and litigation are often seen as
competing fora, fields of law, or markets. This intersection is at its
highest at the forefront of any proceedings, at the jurisdictional
stage. The analysis of jurisdictional issues at the forefront of an
arbitration has been confined in a descriptive analysis of the law and
jurisprudence, dealing with jurisdictional intersections almost in a
mechanistic manner. These are not, however, issues which can be treated
as mere mechanical rules. They are issues pertaining to core notions of
authority, sovereignty, their origins and their allocation. At the same
time, the pragmatic and practical domination of party autonomy is a fact
which cannot be disregarded when one considers the normative and
theoretical foundations of any model of dealing with these issues. This
book moves beyond an analysis of arbitration and jurisdiction clauses to
reconcile theory and practice, and provides an underlying theoretical
model to explain and regulate jurisdictional intersections at the early
stages of an arbitration from a private international law perspective.
It combines both an in-depth engagement with the theoretical literature
as well as a close examination and analysis of its practical
consequences in the form of a restatement of the law of England and
Wales. From a methodological perspective, it utilises contemporary
theories in private international law to propose a coherent model of
regulating arbitral jurisdictions which promotes autonomy and freedom of
the parties at this stage. Demonstrating, first, how the theoretical
model can be applied in practice and, second, to provide a basis for a
potential future top-down or bottom-up approach of adopting the proposed
model, it includes a succinct and practical codification of the current
state of affairs in relation to the whole spectrum of jurisdictional
issues in England and Wales to serve as a useful tool for practitioners
considering jurisdictional issues both from the perspective of State
courts and from the perspective of arbitral tribunals, as well as
academics researching in these areas.
