International Arbitration

Paper Summary:

This paper discusses the success of international commercial arbitration among private actors and the desire of many prominent legal systems to ensure the respect of their public policies, especially in the business sector. It examines the US approach with the well-known Mitsubishi decision of 1985 and then looks at the French approach in the landmark Labinal case.

Table of Contents:
US and France : A Convergent Approach as to the Arbitrability of Competition Law
The US Approach : The Mitsubishi Case
The French Approach : The Labinal Case
US and France : A Divergent Approach as to the Notion of "Second Look"
A Large Appreciation of the "Second Look" according to the American and the European Case Law
The Controversial and Restrictive Approach of the Recent French Case Law on "Second Look"

From the Paper:

"In his commentary on the decision, Christophe Seraglini clearly showed his disappointment as regards the outcome of the case, insofar as the equilibrium to be found between the prohibition of judicial review on the merits and the necessary respect of competition law issues seemed broken in his eyes. In particular, he pointed towards the danger of an artificiality of the control of the award in these conditions, which could lead in the future to an inefficient protection of the international public order . In any event, such criticisms of the approach of the Cour d'Appel de Paris thus indicate that the debate has now shifted from the scope of the notion of "arbitrability" itself to the role of the judge a posteriori, to the overall benefit of international arbitration."

Sample of Sources Used:

• Paris, 19 mai 1993, Labinal, Revue de l'Arbitrage 1993, p 645, note Ch. Jarrosson.
• Mitsubishi Motors Corporation v Soler Chrysler-Plymouth Inc, 473 U.S. 614 (1985).
• American Safety Equipment Corp v J.P. Maguire & Co, 391 F.2d 821 (1968).
• Scherk v Alberto-Culver Co, 417 U.S. 506 (1974).
• Paris, 20 janvier 1989, Revue de l'Arbitrage 1989, p.280, obs Idot.

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