This comparative essay represents an attempt to introduce a measure of counterpoise in a growing and much-heralded development in the world law of arbitration. Recent decisional law in the United States, France, and other countries have challenged the strategic significance of the concept of arbitrability in the legal regulation of arbitration. The essay seeks, first, to clarify the function of arbitrability in the law of arbitration and, second, to argue against its judicial deconstruction in either the international or domestic context. The key objective of the analysis is to demonstrate the vital role of demarcation that arbitrability plays between state authority and the exercise of private rights. Despite the vogue of liberal arbitration statutes and the concurrent movement toward the privatization of political and judicial functions, it is inconceivable that arbitrability wold be reduced to a perfunctory status in the legal conceptualization of arbitral adjudication.
This essay first examines developments in United States law and provides a critical assessment of their implications for transborder and domestic adjudication and the institution of arbitration. It then establishes a comparison between United States and French laws on arbitration to determine whether civil law courts address the issue of arbitrability any different than their European counterparts. The study of United States, French, and other European court opinions that follows clearly demonstrates that the dilution of arbitrability in the United States law is also occurring in France and other European civil law jurisdictions.
Thomas E. Carbonneau and Francois Janson, Cartesian Logic and Frontier Politics: French and American Concepts of Arbitrability, 2 Tul. J. Int'l & Comp. L. 193 (1994).