Court Litigation over Arbitration Agreements: Is it Time for a New Default Rule?

Court litigation over the existence or validity of arbitration agreements is a major threat to the efficacy of international commercial arbitration. While New York Convention Article II(3) requires a court to “refer the parties to arbitration” when faced with a valid and effective arbitration agreement, it fails to provide any guidance with respect to the process for answering that question, thus leaving the issue to national law. A recalcitrant respondent may, therefore, have a variety of options for court challenges—based on a disparate array of national laws—in seeking to delay or at least complicate any claims subject to arbitration. This paper briefly surveys the problem, as well as a few current proposed solutions, and then proposes its own novel solution in the form of a new convention making arbitration the default legal rule for resolution of international commercial disputes