In a general standing, the compendiumof explanations regarding the essence of arbitration have been amalgamated andclassified into four distinctive theories: the jurisdictional theory, thecontractual theory, the hybrid theory (or alternatively, the mixed theory) andthe autonomous theory.
The jurisdictional theory is constructed on the wide-rangingadministrative powers of states to control any international commercialarbitrations within their jurisdiction, whereas the contractual theory contendsthat international commercial arbitration derives from a legal arbitrationagreement amongst the parties and that, consequently, arbitration ought to be directedin accordance with the parties’ requirements. The hybrid theory is positionedat the midpoint of the jurisdictional and contractual theories and hence, it isa compromise between the two. It argues that international commercialarbitration has an equally contractual and jurisdictional personality.
Theautonomous theory, which has been advanced more recently, rejects the conventionalattitude and places prominence on the purpose of international commercialarbitration as a whole. Instead of positioning arbitration into the currentlegal context, the autonomous theory circumscribes arbitration as a purelyautonomous establishment, which should not be controlled by the laws of theplace of arbitration. As a consequence, parties should have unconstrainedautonomy to choose the manner in which the arbitration shall be directed.13.
1 – The Jurisdictional TheoryThe jurisdictional theory petitionsthe importance of the administrative authority of states, chiefly those of theplace of arbitration. Though the jurisdictional theory does not disagree withthe notion that an arbitration derives its source within the parties’arbitration agreement, it upholds that the legitimacy of arbitrationagreements, as well as arbitration procedures, must be controlled by nationallaws and the lawfulness of an arbitral award is indicated by the laws of theseat and the jurisdiction wherein the recognition or enforcement is requested. Advocatesof the jurisdictional theory support that all arbitration practices have to be controlledby the rules of law selected by the parties, if there are any, and those rulesof law in force in the place of arbitration. They correspondingly deem thatarbitrators bear semblance to judiciaries of domestic courts since thearbitrators’ authorities are consequential from the states by means of therules of law. Similarly, arbitrators are required to employ the rules of law ofa specific state to resolve the disputes presented to them. Additionally, theawards prepared by the arbitrators are considered as possessing the equivalent significanceand validity as a judgment delivered by judges convening in a domestic court.As a result, they argue that the awards will be administered by the court wherethe recognition or enforcement is requested in the same way as judgments madeby the courts. Furthermore, supporters of the jurisdictional theory emphasise,in concise terms, the importance of the seat of arbitration, namely Dr.
Mann. The foundation of Dr. Mann’s reasoning isthat each self-governing state is eligible to endorse or condemn the actions thatoccur in its region.2 Considering the correlation between arbitrationand the domestic courts where the arbitration is located or the courts whererecognition or enforcement of the arbitral awards is requested, thejurisdictional theory postulates a solid foundation for the domestic courts implementingadministrative control over the arbitration proceedings.
3According to the jurisdictional theory, the courts in the jurisdiction whererecognition or enforcement is requested similarly possess a regulatory authoritythroughout the matter of arbitrability at the period of recognition orenforcement. In accordance with Article V(2) of the Convention, the courts retainthe option to reject the recognition or enforcement of an arbitral award if it discoversthat “the subject matter of the difference is not capable of settlement byarbitration under the law of that country”4 or”recognition or enforcement of the award would be contrary to the public policyof that country.”5An equivalent approach has similarly been embraced in the United States SupremeCourt, which established the national rule supporting arbitration in the Mitsubishi6case. The Mitsubishi case concerned an anti-trust conflict which wasbarred from being resolved via arbitration in a domestic case. Justice Blackmun pointed out the reason as towhy The United States Supreme Court implemented the arbitration agreementpertaining to this case: “the national courts of the United States will havethe opportunity at the award-enforcement stage to ensure that the legitimateinterest in the enforcement of the anti-trust laws has been addressed.”7Moreover, the “Convention reserves to each signatory country the right torefuse enforcement of an award where the recognition or enforcement of theaward would be contrary to the public policy of that country.”8 Inaccordance with this reasoning, it can be asserted that the association betweenthe courts and arbitration is essentially regulatory, which is in line with thejurisdictional theory.91 Julian Lew, Contemporary Problems in InternationalArbitration (1st edn, Springer Science + Business MediaDordrecht 1987).
2 Francis A. Mann, ‘Lex Facit Arbitnim’ (1983) 2(3)Arbitration International 245.3 Lew (no. 2).4 Convention on the Recognition and Enforcement of Arbitral Awards, ArtV(2).
5 Ibid. 6 Mitsubishi Motors v Soler Chrysler-Plymouth (1985) 473 U.S.
614.7 Ibid. 8 Ibid.
9 Ihab Amro, Recognition and Enforcement of ForeignArbitral Awards in Theory and in Practice: A Comparative Study in Common Lawand Civil Law Countries (1st edn, Cambridge Scholars Publishing2013).