Jurisdiction: Courts Versus Arbitrators
Document Type
Book Chapter
Publication Date
10-2025
Abstract
The problem of arbitral jurisdiction, while easily stated, is not easily resolved: What is the optimal allocation of authority between courts and arbitrators in interpreting an arbitration agreement and determining whether an arbitration is valid, applicable, and enforceable? This chapter assesses this allocation of authority in New York, a matter largely governed, in view of its subject, by federal law. It examines the different scenarios in which the question arises, attempting to describe, among other things, courts’ and arbitrators’ likely choice of applicable law and the degree of independent judgment or deference that courts and arbitrators exercise in each scenario.
Arbitration agreements are a type of forum selection clause that “specify an arbitral forum for resolution of differences” between the parties. While forum selection clauses may be of a “derogation” nature (i.e., may designate an exclusive forum for the resolution of covered disputes) or of a “prorogation” nature may merely identify an available possible and leave all other available for a intact), arbitration clauses are ordinarily deemed to have an exclusive character.
Disciplines
Dispute Resolution and Arbitration | International Law | Law
Recommended Citation
George A. Bermann,
Jurisdiction: Courts Versus Arbitrators,
International Commercial Arbitration in New York, James H. Carter & John Fellas (Eds.), Oxford University Press
(2025).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4723