I. The problem

The topic of arbitrability has been addressed comprehensively in recent literature.1 I do not intend here to add to this respectable corpus. Rather, I wish to consider a narrow question: 'whose' notion of arbitrability-whatever it may be-should be applied to determine whether an arbitration agreement or an award should be ignored by a court because it relates to a subject matter forbidden to arbitration?

In the international context it is not easy to determine what rule of arbitrability2 should be applied. As we shall see, the New York Convention, for all its merit in other ways, leaves something to be desired in the way it treats this issue, implicitly as well as explicitly. To perceive the parameters of the debate, let us imagine some legal systems which might have an impact on the parties to an arbitration.

A - the law of the country of which the actual or prospective defendant (in arbitration) is a national;

B - the law chosen by the parties as applicable to the contract;

C - the law of the place of performance of the contract;

D - the law of the place of arbitration;

E - the law of the enforcement forum.

Now suppose that law B-but none of the others-contains a limitation on arbitrability, e.g. 'disputes concerning the scope of a patent may not be arbitrated'. May the defendant pursue 'a court action' in its own country A because law B does not permit arbitration of this kind of dispute, despite the fact that under law A-i.e. that of the court seized-the judge would uphold the arbitration agreement and thus refuse to hear the action?

Or may the defendant invoke law B in support of a jurisdictional objection made 'to the arbitral tribunal', even though:

- law B was intended to regulate activities within country B; and

- law C, where the patent license was intended to have its effect, accepts arbitrability?

Alternatively, if only law D considers the dispute non-arbitrable, may the losing party obtain an annulment of the award even though the governing substantive law (B) and the law of the place of performance (C) allow arbitration? Or could the defendant convince a judge in another forum to refuse enforcement on that basis even though the law there (E) would accept the award?

Yet again, what if only law E considers the matter non-arbitrable? Why in the name of sweet reason should that fact neutralize enforcement when law E had not the slightest ambition to regulate patents in countries B or C (let alone D)?3

These questions-illustrative rather than exhaustive-are not particularly well resolved by the New York Convention.4

II. Arbitrability as reflected in the New York Convention

The Convention does not use the word 'arbitrability', but a series of different expressions that in fact cover the same concept.

First, Article II establishes that agreements to arbitrate shall be recognized insofar as they concern a subject matter 'capable of settlement by arbitration' (subparagraph 1) and that courts must accordingly defer to arbitral tribunals unless they find the arbitration agreement to be 'null and void, inoperative or incapable of being performed' (subparagraph 3).

The notion of arbitrability appears next in subparagraph 1 of Article V, which defines the possible basis of non-enforcement of an award if the resisting party is able to prove certain defects. One of these defects is defined under (a) as the arbitration agreement's being:

'not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made'.

Finally, subparagraph 2(a) provides that the enforcement forum may refuse enforcement-possibly on its own motion, and without requiring the resisting party to bear the burden of proof-if:

'the subject matter of the differences is not capable of settlement by arbitration under the law of that country'.

May these diverse references be understood as pointing to a consistent source of arbitrability criteria?

The perspective of an enforcement forum

The easiest place to begin is Article V(1)(a), because it alone seeks to deal with the matter explicitly. It makes it clear that for its purposes the norms of arbitrability are to be found in the law to which the parties 'subjected' the arbitration agreement, or 'failing any indication thereon, under the law of the country where the award was made'.

There may be disagreement as to whether the parties have 'subjected' their arbitration agreement to a particular law, especially in cases where their contract has a general applicable-law clause but no specific stipulation with respect to the arbitration clause. On past performance, we may expect that Indian courts would examine an allegation of non-arbitrability under Indian law even if the place of arbitration was outside India, and even if the arbitration clause said nothing about the law specifically applicable to it, as long as the generally applicable law of the contract was stipulated or deemed to be Indian law.5 Nevertheless, the rule of Article V(1)(a) ought to be reasonably clear to enforcement judges: they should first look for an expression of the parties' intent, failing which they may examine arbitrability under the law of the place of arbitration.

But Article V(1)(a) is not the end of the enquiry for enforcement jurisdictions. There is also Article V(2)(a). As mentioned, this obstacle to enforcement may be raised by the enforcement court itself. Nevertheless, nothing will stop a resisting party from pointing the judge to Article V(2)(a). This is indeed the first thing such a party would do if it found no comfort in the law applicable to the contract or the law of the place of arbitration, because Article V(2)(a) entitles the enforcement jurisdiction to reject the award if the dispute was not 'capable of settlement by arbitration' under its own law. (Naturally one would in this connection be attuned to the possibility that that law permitted a larger domain of arbitrability in cases of an international nature than in purely domestic ones.)

One might wonder whether Article V(2)(a) needs to preoccupy us at all, since an award which offended the enforcement jurisdiction's notions of arbitrability is also likely to offend its public policy under Article V(2)(b). Indeed, that is how the US courts would act under the Mitsubishi approach; an antitrust claim under US law may be arbitrable even if the arbitral tribunal sits in foreign country X and applies foreign law Y, but the resulting award would be unenforceable in the US if the combined effect of the forum/applicable-law clauses had been to operate as a prospective waiver of a statutory remedy, such as treble damages. US courts understandably reject such waivers. (Otherwise they would proliferate, and undermine the foundations of American antitrust law.) An award refusing to accord treble damages on the basis that the contractually stipulated law Y prohibited them would thus likely run into a judicial brick wall in the US. But this is a matter falling under Article V(2)(a).

Professor Philippe Fouchard has suggested that the simple elimination of Article V(2)(a) would not alter the substantive effect of the New York Convention and would have the salutory effect of avoiding possible confusion.6 If his premise is correct (i.e. problems under Article (2)(a) may be subsumed under (b)), he is doubtless right that we would be better off without (a). One cannot remain comfortable with the notion that '(a), properly understood, adds nothing to (b)' because of the obvious counterargument: ut res magis valeat quam pereat.

But the premise is not necessarily correct.

In one of the episodes of Atlantic Richfield's attempt to enforce an award arising out of Libya's nationalization of its concession, a judge of the federal court for the District of Columbia invoked Article V(2)(a) of the Convention to uphold Libya's argument to the effect that the award could not be enforced because it purported to rule on the validity of an act of state.7 In other words, the judge considered that an act of state could not give rise to an arbitrable claim. Although this judgement was quickly repudiated,8 and although an amendment in 1988 to the U.S. Foreign Sovereign Immunities Act provides that the act of state doctrine shall not bar the enforcement of arbitration agreements or awards,9 the fact is that Article V(2)(a) of the New York Convention had the effect of neutralizing the award on the basis of a perceived non-arbitrability rule being a part of the law of the enforcement forum-without any consideration to whether a similar rule obtained as a matter of the law of the place of performance, the law chosen to apply to the concession agreement, or the law of the place of arbitration. It is debatable whether the same result would have been reached under Article V(2)(b).

To conclude this look at Article V and the enforcement court, one is left with the impression that an irrelevant law (that of the place of enforcement) is given unwarranted importance. 'If enforcement is not contrary to the public policy of the enforcement forum (this would fall under Article V(2)(b)), and if the dispute is arbitrable under the law applicable to the contract or in the place of arbitration, why should there be any additional room to prevent enforcement because the dispute would not have been arbitrable as a matter of the law of the enforcement forum,' which is irrelevant to the underlying transaction and was not intended by the lawmakers to be applied to it?

Professor Fouchard is right that Article V(2)(a) should be eliminated, but not necessarily because it is subsumed under subparagraph (b). There may be some independent life in subparagraph (a). It is deleterious; it should be snuffed out.

As for the desirable importance of the law chosen by the parties or that of the place of arbitration, let us revert to it after looking at the remaining relevant passages of the Convention.

The perspective of a competing judicial forum

We now turn to the most difficult of the New York Convention's references to arbitrability. It is doubtless also the most important one in practice, because it arises at the fundamental early stage when a court must decide whether it will hear a claim or yield jurisdiction in favour of arbitration under Article II of the Convention.

Quite simply, Article II does not identify the norm to be applied in determining arbitrability. This raises vexing questions. If the lex fori considers the matter to be arbitrable, should the judge nevertheless listen to arguments to the effect that, say, the lex arbitri considers the dispute 'incapable of settlement by arbitration'?10 Or if to the contrary his own lex fori considers the matter to be non-arbitrable, should the judge nevertheless be swayed by a demonstration that the arbitration would not be impeded in the place of arbitration, and that therefore the arbitral mechanism was plainly 'capable' of settling the dispute?11

To demonstrate that this is not a scholastic exercise, one need only consider the very concrete dilemma of the Tribunal de commerce of Brussels in the case of Van Hopplynus v. Coherent Inc.12

The plaintiff had been the exclusive distributor of Coherent's products under a contract stipulating Californian applicable law and AAA arbitration. The agreement was terminated by Coherent. Van Hopplynus disagreed with Coherent's proposed manner of dealing with used stock, and sought relief before the Tribunal de commerce. When Coherent invoked Article II of the New York Convention, Van Hopplynus referred to the 1961 Belgian Law on Exclusive Distributorships, Article 4 of which provides that in the event of termination the agent 'may always initiate court proceedings in Belgium against the principal' and that in such cases the court 'shall only apply Belgian law'.

Contemplating Article II, the 'Tribunal de commerce' observed that there were three divergent 'currents of thought' as concerns the identification of the norms according to which arbitrability should be assessed for the purposes of deciding whether arbitration should be given precedence.

First, the court pointed to commentary and case law to the effect that in light of Article V(2)(a)'s express reference to the law of the enforcement forum, consistency demands that the same law be taken into account for the purposes of Article II.

Secondly, 'another current' focuses on Article V(1)(a) and its reference to the law chosen by the parties, concluding that this should also be the lodestar for Article II.13

Finally, 'certain authors' maintain that if a law is mandatory-a loi de police, of which the 1961 Exclusive Distributorship Law is accepted, at least for purposes of argument,14 as an example-it must immediately and ineluctably override an inconsistent arbitration clause.

There is in fact a fourth possible conception, namely that the relevant rule should be sought in the law of whichever forum happens to have been seized, and not only by reference to its 'mandatory' rules. There is considerable intuitive appeal in this notion; since the question is whether the courts of a particular country have jurisdiction, and since the relevant international treaty does not direct them otherwise, why should those courts not apply their own law to determine whether their jurisdiction has been validly ousted?15 But this was not one of the three 'currents' discussed in the Van Hopplynus case.

The Brussels Court gave short shrift to the first conception, saying that it is 'hardly coherent' to accept that 'the validity of the arbitration clause varies according to the court appreciating it'. It is certainly true that given the express wording of Article V(2)(a) there may be as many applicable rules of arbitrability as there are enforcement fora, so there is no way of ensuring uniformity under Article II by looking to one of these possibilities. Moreover, it is difficult (and sometimes impossible without the gift of prophecy) for a judge in country X applying Article II to determine whether a hypothetical enforcement forum would in fact reject an award on the grounds of non-arbitrability.16

This, in the Brussels Court's analysis, left the choice between upholding the parties' choice (Californian law) and imposing the mandatory law of the forum (the 1961 Belgian Law).

To make the choice, the Court first recalled the supremacy of international law (i.e. the New York Convention) over national law. It then observed that Article V(1)(a) of the Convention recognizes the principle of freedom to choose applicable law. It noted that in the case before it, the arbitration clause was valid under the law of California as chosen by the parties. The conclusion: 'Art. II of the New York Convention requires, therefore, that the court recognizes the validity of the arbitral clause.'

While one must applaud the outcome, which contrasts favourably with a well-known and, it is hoped, outdated decision of the Belgian Supreme Court,17 the reasoning does not have an air of inevitability about it. True it is that Article V(1)(a) acknowledges the authority of the parties' choice of applicable law as the only foreign law the enforcement judge needs to examine with respect to an objection of non-arbitrability. But this does not mean that the drafters necessarily intended the same choice to be binding for the purposes of Article II. In fact, the contrary seems plausible; if Belgium would be the obvious place of enforcement of an award against the party raising the objection, and if the 1961 Belgian Law would at any rate ultimately prevent enforcement in perfect conformity with Article V(2)(a), it would seem quite consistent for a Belgian court to make that determination at the outset, and to allow the Belgian court action.18 This may moreover be in the interest of efficient administration of justice.

Two relatively recent Italian decisions reported in the ICCA Yearbook deal with the same issue in ways which are difficult to reconcile. The first one was rendered in 1991 by a court of first instance in Lodi.19 This issue was whether the court action (seeking termination of a license agreement) should be dismissed in favour of ICC arbitration in Geneva. The plaintiffs had entered insolvency proceedings; they argued that on that basis the Italian courts had exclusive jurisdiction. The court disagreed and stated as follows:

'… the validity of the arbitration clause must be ascertained according to the law applicable to the enforceability of the arbitral award (sic) … This is the law to which the parties have submitted it (here, Swiss law, see Art. XVI of the contract) or if the parties have not made such a choice, the law of the place of arbitration (see Art. V(1)(a) of the New York Convention).'

The court thus focused on Swiss law, in which it found no impediment to arbitration, and accordingly dismissed the case. This outcome is consistent with that of the Brussels court in Van Hopplynus, although one has the uncertain impression that the reasoning could not have been the same.

The contrasting Italian decision was rendered by the Corte di Appello of Genoa in 1994.20 Here both reasoning and outcome are plainly at odds with the other cases just described. An Italian shipbuilder brought a court case in Italy against the State of Iraq under a contract which in fact called for arbitration under the rules of the 'Paris Chamber of Commerce'. (The imprecise reference to the institution was not at issue.) The shipbuilder alleged that sanctions arising in the aftermath of the Gulf War excluded the possibility of arbitration. The issue thus framed was whether under Article II of the New York Convention the arbitration clause was 'null and void, inoperative or incapable of being performed'. To this question, said the Genoa Court:

'The answer must be sought in Italian law, according to the jurisprudential principle that, when an objection to foreign arbitration is raised in court proceedings concerning a contractual dispute, the arbitrability of the dispute must be ascertained according to Italian law as this question directly affects jurisdiction, and the court seized of the action can only deny jurisdiction on the basis of its own legal system.'21

Summary

What have we seen?

Under Article V of the New York Convention, enforcement courts evaluate arbitrability cumulatively under two sets of criteria, the first of which itself requires a choice between two possible laws. Specifically, enforcement may be denied if the dispute was not arbitrable under:

A1 - the law chosen by the parties

or (if there is no A1)

A2 - the law of the place of arbitration

and (in any case)

B - the law of the enforcement forum.

What is wrong with this?

1. Arbitrability under the law of the enforcement forum should not enter the picture (save to the extent it is already covered by the public policy exception).

2. There may be controversy as to whether parties have indeed chosen a law to govern the arbitration. It would be preferable to make clear that unless the parties have explicitly chosen a different arbitration law to govern the proceedings,22 the law of the place of arbitration governs.23

3. In a system that purports to give priority to the intention of the parties, it seems aberrant that in the absence of a stipulation of applicable law, one would be prepared to accept that a rule of non-arbitrability in the law of the place of arbitration would thwart the arbitration, given that:

- if anything is clear, it is that the parties intended for their disputes to be arbitrated,24 and

- the law of the place of arbitration has no natural claim to apply to foreign parties or to a contract having no significant local connection.

4. With regard to any of the three particularly applicable legal systems, there is no indication of the need to give special consideration to upholding arbitration agreements when the underlying transaction is international.25 It would be preferable that the relevant standards be explicitly identified as being the norms which apply in the context of international transactions.

As for courts asked to hear the dispute notwithstanding the existence of an arbitration clause, the law to be examined to determine arbitrability under Article II of the Convention is undefined, but a review of relevant cases suggests that the array of choices looks similar, although they are not cumulative:

A1 - idem.

or

A2 - idem.

or

B - the law of the court before which Article II is invoked.

The criticism just voiced under points 3 and 4 may of course be reiterated here. What else is wrong?

5. There is an obvious problem of predictability with respect to the choice to be made among these three alternatives, because the Convention does not give priority to any of them. As we have seen, this has led to inconsistent court decisions-on occasion within the same country.

6. There should be no place for the law of the forum under Article II. Otherwise arbitrability could vary infinitely depending on where a court action might be started, irrespective of the lack of connection between that forum and the contract. This plainly promotes disharmony. It is no answer to say, as the Court of Appeal of Genoa did, that a 'court seized of an action can only deny jurisdiction on the basis of its own legal system'. For this reasoning is tautologous; it presumes the answer to the question being put-or, if one prefers, ignores it entirely-by failing to see that the issue is what a court should do when 'its own legal system' has committed itself to the New York Convention.

Conclusions and proposals

One may take the position that the incongruities discussed above do not have a significant impact on the international arbitral process, which by and large works rather well, and therefore do not justify the considerable effort involved in promoting an international reform.

On the other hand, the international regime of arbitrability is in fact incoherent. We have seen that it is not successfully treated in the New York Convention. Indeed, it is not clarified in the UNCITRAL Model Law, which did no more than repeat the New York Convention's language in the definition of grounds of annulment or refusal of enforcement.26 It may have been expedient to use familiar language, but did nothing to solve the problem. This is, to say the least, paradoxical in the context of a document designed to promote harmonization of national laws.

If clarification is thought sufficiently desirable, one must consider both 'method' and 'substance'.

The question of method might in and of itself occasion a lively debate, but it is beyond the concern of this paper.27 Suffice it to say that a protocol to the New York Convention is obviously not the only solution. An amendment to the Model Law would work just as well, since any substantive solution would be by way of purposive clarification to the Convention, and not variance from it.

As to the substance of a desirable clarification, the starting point should be to accord decisive importance to the intention of the parties. That this is already a dominant trend may be inferred by reference to the fact that a majority of reported decisions follows the logic that Article II should be consistent with Article V(1)(a), which states that arbitrability shall be determined in accordance with the law chosen by the parties. (Since Article II says nothing about the applicable criteria, one cannot violate Article II by applying those defined in Article V(1)(a).)

But what is the law the parties intended to have applied to issues of arbitrability? I have never seen a contractual clause stipulating that 'issues of arbitrability shall be decided in accordance with the law of [country X]'. Even a more general formulation concerning the law applicable 'to the arbitration agreement' is exceedingly rare. It may be handy to conclude that the parties intended that issues of arbitrability should be decided under the law applicable to their contact overall, but that would be not only a fiction-it is a patent falsehood. Similarly, while it may be convenient to fall back on the idea that the parties intended issues of arbitrability to be resolved by reference to the law of the place they chose as the arbitral venue, that too would be a demonstrable falsehood. 'For what the parties obviously intended above anything else-because that is what the arbitration clause says-was that the disputes arising under their contract should be arbitrable.' To put it polemically, if one really has to look for a national law as a foundation of arbitrability, the answer must be that as long as there is a single law somewhere in the world which upholds arbitrability in the relevant circumstances, the appropriate fiction must be that the parties be deemed to have wanted that law to apply.

The desired effect however seems largely attainable with a more orthodox approach, based on the following premises:

- the parties could not have intended for a law to apply to issues of arbitrability if that law deems this dispute non-arbitrable;

- although the 'national' law of the place of arbitration often has no natural reason to apply to issues of arbitrability with respect to an 'international' contract having no connection with the country, in the interest of predictability it is useful to make it a law of reference; the risk of running afoul of local peculiarities should be attenuated by establishing that:

(i) the law shall be applied to the extent it is intended to relate to specifically 'international' transactions, and

(ii) at any rate arbitrability is ensured if the resisting party fails to demonstrate non-arbitrability under a law stipulated by the parties.

- a court faced with an Article II problem has no business applying its domestic notions of non-arbitrability; fundamental societal interests, such as the proscription of fraude à la loi, may be ensured at the stage of enforcement by virtue of Article V(2)(b).

Bearing these elements in mind, the way to deal with arbitrability may be seen more clearly if the following principles were established-by whatever type of instrument may be chosen-to direct national courts when they examine the issue in the context of the New York Convention.

1. For the purposes of Articles II and V(1)(a), an arbitration agreement shall be considered effective in causu unless the party resisting arbitration, or opposing recognition and enforcement of the award, proves to the satisfaction of the court that the agreement is invalid under both:

(a) the law chosen by the parties to govern their agreement, and

(b) the law of the country where the place of arbitration is located,

it being understood that reference will be made only to such provisions of these laws as are applicable to arbitration of an international character.

If no place of arbitration has been selected, reference shall be to the country in which is situated the authority charged with the appointment of the presiding arbitrator in the absence of party agreement thereto.

2. Subparagraph V(2)(a) shall not prevent recognition and enforcement unless the non-arbitrability of the subject matter is a matter of such fundamental importance that recognition and enforcement would also violate subparagraph V(2)(b).

1
See, e.g., the collection of reports and materials delivered at the Swiss Arbitration Association's conference held on 19 November 1993 and published as the Association's Special Series No 6, entitled 'Objective Arbitrability-Antitrust Disputes-Intellectual Property (1994)'; the special issue of 12 Arbitration International (No 2, 1996), as well as the four additional articles published in id., No 4; William Craig, William Park & Jan Paulsson, International Chamber of Commerce Arbitration, Sec. 5.07 (3rd ed. 1998).

2
U.S. courts unfortunately use the word 'arbitrability' interchangeably with the word 'jurisdiction'. The Supreme Court set the example in First Options of Chicago Inc. v. Kaplan, 115 S. Ct. 1920 (1995). The fuzziness of the Court's terminology is exposed in William Park, 'The Arbitrability Dicta in First Options v. Kaplan' 12 Arb. Int. 137 (1996). Before making its choice of words, the Court would have done well to consider Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration (2nd ed. 1991), p. 138. Of course the law is a field where words often take on whatever meaning may gain acceptance. And one may concede that it is logical to say that if the arbitral tribunal does not have jurisdiction the dispute is not arbitrable. To allow this overlap is however to blur a useful distinction. For our purposes, the concept of arbitrability is limited to the inquiry whether the claims raised are prohibited by law from being resolved by arbitration irrespective of the otherwise undoubted jurisdiction of the arbitral tribunal.

3
And moreover the arbitration clause in no sense ousted the jurisdiction of the courts of E; if the dispute had not been arbitrated, it might have been heard by the courts of A or C, but not those of E. (It is of course a different matter if A and E are the same.)

4
Nor is the issue necessarily clarified if the parties have chosen ICC arbitration. Under the ICC Rules, it is clear that parties may choose the rules of procedure (Article 15(1)) and substance (Article 17(1)) to be applied. On the other hand, while the Rules make clear that the arbitral tribunal may decide whether an arbitration agreement is valid (and the tribunal thus has jurisdiction), the relevant Article 6(4) does not define the law or rules to be applied in determining jurisdictional issues. How the arbitral tribunal may and should seek the solution to issues of arbitrability is thus left open.

5
See Sir Michael Kerr, 'Concord and Conflict in International Arbitration' 13 Arb. Int. 137 (1997). This is the kind of problem the drafters of the WIPO Arbitration Rules had in mind in Article 59(b): 'The law applicable to the arbitration shall be the arbitration law of the place of arbitration, unless the parties have expressly agreed on the application of another arbitration law and such agreement is permitted by the law of the place of arbitration.'

6
'Cette inarbitrabilité ne doit être sanctionné dans ce pays [i.e. the enforcement forum] que si elle répond à ses conceptions fondamentales de l'accès à la justice publique et si, dans le cas concret, l'objet même de la sentence porte atteinte à l'ordre public de ce pays ; or la violation de cet ordre public est déjà un grief recevable', 'La portée internationale de l'annulation de la sentence arbitrale dans son pays d'origine', 1997, Rev. arb., pp. 32947. Prof. Fouchard notes in this connection that by virtue of the 1986 reform Article 1076 of the Netherlands Code of Civil Procedure eliminated non-arbitrability from the list of grounds for refusal to enforce awards.

7
LIAMCO v. Libya, 482 F. Supp. 1175 (DDC 1980), dismissed as moot, Order, DC Cir. Nos. 80-1207 and 801252 (6 May 1981), summarized in VII ICCA Yearbook 382 (1982).

8
See Craig, Park & Paulsson, op. cit. note 1, Sec. 36.03.

9
S. 2204, 123 Congressional Record S. 17209 (21 October 1988).

10
Under French law, arbitration clauses included in the statutes of legal entities constituted under civil law are null and void (Art. 2061, Civil Code); this applies to law firms (Court of Appeal of Angers, 2 July 1975, Gaz. Pal., 1975.2.776). Does this mean that a New York judge faced with a suit brought by a French law firm in the United States against one of its former members should refuse to defer to AAA arbitration in New York, which is a standard feature of US partnership agreements? In fact the Court of Appeal of Paris has upheld an AAA clause in the statutes of a French professional corporation established by US nationals practising as 'conseils juridiques' in Paris, on the basis that the dispute had an 'international' element, Rawlings v. Kevorkian et Partners, 1 December 1993, 1994, Rev. arb., 695. French law is not alone in considering that otherwise non-arbitrable disputes become arbitrable when the context is international; in the words of the US Supreme Court in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, antitrust claims were held arbitrable 'even assuming that a contrary result would be forthcoming in a domestic context', 473 US 614, p. 629 (1985). Twenty years later, the Supreme Court maintained this pro-international arbitration stance in Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer et al., 115 S. Ct. 2322 (1995), excerpts in XXI Yearbook 773 (1996) and expressed the policy objectives in these terms: 'If the United States is to be able to gain the benefits of international accords and have a role as a trusted partner in multilateral endeavours, its courts should be most cautious before interpreting its domestic legislation in such a manner as to violate international agreements.'

11
In the Rawlings v. Kevorkian case described in note 10 supra, the Court of Appeal of Paris relied on a legal opinion ('certificat de coutume') to the effect that the dispute would be arbitrable under the laws of New York.

12
5 October 1994, 1994, Rev. arb., 311; excerpts in English, XXII Yearbook 637 (1997).

13
Article 6(2) of the European Convention of 1961 lists the law chosen by the parties as having the first priority in determining arbitrability. This provision represents an evolution from the Geneva Protocol of 1923, which required in Section 1 that arbitrability be determined by each relevant national system of conflict of laws.

14
For a suggestion that the 1961 Law is mandatory only in the sense that its substantive provisions may not be varied, but not in the sense of invalidating agreements to arbitrate, see Pierreux NV v. Transportmaschinen Handelhaus GmbH, Brussels Rechtbank van Koophandel, 6 May 1993, extracts in XXII Yearbook 631 (1997).

15
See Albert Jan van den Berg, 'Consolidated Commentary' XXI Yearbook 447 (1996): 'The courts in the United States are of the opinion that in principle the law of the forum where the [arbitration] agreement is invoked governs… According to the German courts… the conflict rules provided in Art. V(1)(a) of the Convention should be applied by analogy.' Van den Berg reports, id., that the German view has been adopted in Italian and Japanese decisions. But see the 1994 Genoa decision described in text at note 20 infra, which seems to go the supposedly American way. In Petrasol BV v. Stolt Spur Inc., 1996 Tijdschrift voor arbitrage 35 (No 1), excerpts in XXII Yearbook 762 (1997), a court of first instance in Rotterdam faced with an Article II problem asked for further submissions to be made as to the validity of an arbitration agreement under New York law on the grounds that the choice of New York as the place of arbitration 'implies the choice for the law of New York as applicable to the arbitration', id. p. 765.

16
The fact that the issue of the Belgian Law on Exclusive Distributorships is well-known does not make it more predictable; au contraire. See Bernard Hanotiau, 'What Law Governs Arbitrability?' 12 Arb. Int. 391, p. 392 (1996).

17
See, e.g., Audi-NSU Auto Union A.G. v. S.A. Adelin Petit & Cie, judgement of 28 June 1979, excerpts in V Yearbook 257 (1980).

18
Cf. the judgement of 18 August 1985 of the Brussels Court of Appeal, involving parties identified only as Company M (Switzerland) and Company M (Belgium), excerpts in XIV Yearbook 618 (1989), holding that arbitrability for purposes of Article II was subject to the 'law of autonomy' (i.e. the law chosen by the parties), but arbitrability for the purposes of Article V depended on the law of the enforcement forum. The court offered as an 'explanation' of this dichotomy the fact that awards are 'in the majority of cases, executed without the intervention of an enforcement court-either spontaneously or under the pressure of moral or professional sanctions', id. p. 620. This rationalization seems naive. How many awards would really be complied with voluntarily if the loser knew the decision would be given no weight by courts asked to enforce it?

19
Adda Officine Elettromeccaniche e Meccaniche et al. v. Alsthom Atlantique SA et al., 28 Rivista di diritto internazionale privato e processuale 340 (1992), excerpts in XXI Yearbook 580 (1996).

20
Fincantieri-Cantieri Navali Italiani SpA et al. v. Ministry of Defence of Iraq, 4 Rivista dell'arbitrato 505 (1994), excerpts in XXI Yearbook 594 (1996).

21
Id. pp. 599-600.

22
Cf. Article 59(b) of the WIPO Rules, note 5 supra.

23
The argument that the law of the place of arbitration in many cases has no connection with the parties and no natural title to impose itself on them is overcome by the desideratum of foreseeability.

24
'Accord', as to the concept of favor arbitrandum, see Hanotiau, supra note 16, p. 394.

25
As a US federal court put it: 'The determination of whether a type of claim is "not capable of settlement by arbitration" under Article II(1) must be made on an international scale, with reference to the laws of the countries party to the Convention', Meadows Indemnity Co. Ltd. v. Baccala & Shoop Insurance Services, Inc., et al., 760F. Supp. 1030 (EDNY 1991), excerpts in XVII Yearbook 686, p. 691 (1992). Thus, the fact that a contract between an executive and a company establishing the terms of an assignment in country X is subject to the law of country Y does not mean that a rule of non-arbitrability of employment contracts under the law of Y should defeat the relevant arbitration clause. In disregarding such restrictions, arbitrators and judges often give a theoretical justification founded on the autonomy of the arbitration clause. See e.g. the 1970 landmark judgement of the Court of Appeal of Paris in Hecht v. Buismans, 1972, Rev. arb., 67, holding that the rule under French law to the effect that a commercial agent cannot enter into a binding arbitration agreement may not be invoked to nullify an arbitration clause in a contract between a French agent and a Netherlands company, irrespective of the fact that the stipulated proper law of the contract was that of France, because 'in international arbitration, the agreement to arbitrate, whether concluded separately or within the legal document to which it relates, always has a complete juridical autonomy, save exceptional circumstances, from the latter'. Another way of putting it is that the effect of domestic legislation should be attenuated-if not neutralized-with respect to international transactions to which they were not intended to apply (or in the context of which the domestic legislation may violate international law, which is preeminent even within the national sphere), while the security of contractual stipulations requires an especially high degree of recognition, free of national protectionism, in an international context. For a particularly didactic articulation of this approach by Professor Pierre Lalive, sitting as sole arbitrator, see ICC Case 1512/1970, summarized in V Yearbook 174 (1980); final award held enforceable by the Court of Appeal in England, National Bank of Pakistan v. Dalmia Dairy Industries Ltd., [1978] 2 Lloyd's Rep. 287.

26
Nor did the Model Law propose substantive criteria of respect to arbitrability; Article 1(5) provides that: 'This Law shall not affect any other laws of this State by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Law.' It is rather ironic in retrospect to read in the UNCITRAL Secretariat's 'Analytical Compilation of Government Comments' of 19 March 1985, i.e. just before finalisation of the Model Law, that it was felt that '… Article II(1) of the 1958 New York Convention solves [sic] the question of arbitrability in a general way'. See Howard Holtzmann & Joseph Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration p. 141 (1989).

27
After a review which includes in particular a summary of the legal position in Latin America, Carlos Altaro & Flavia Guimarey, 'Who Should Determine Arbitrability? Arbitration in a Changing Economic and Political Environment' 12 Arb. Int. 415 (1996), conclude as follows at page 427: 'Because arbitrability rules vary from country to country-when they are not altogether absent from arbitration statutes-a multilateral agreement concerning arbitrability rules should include a detailed list of the non-arbitrable matters that will be left for the exclusive jurisdiction of the courts.' Although the proposals made in this paper-motivated by considerations of practicality and feasibility-would not require such an inventory by consensus, the authors' perception of a need for such an ambitious project is itself revealing.