A Plea for a Transnational Approach to Arbitrability in Arbitral Practice

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Arbitral tribunals are created not by states, but by contractual agreements. Moreover, in the case of international commercial arbitration, these tribunals have no allegiance or connection to any single country. It is therefore understandable that some international arbitral tribunals tend to apply not the specific law of some country, but the more general principles of law that have been recognized by a number of legal systems.  This Comment examines this practice for a specific problem–the question of arbitrability. In recent decisions, arbitral tribunals have applied certain principles to this question without citing any specific legal system from which they have taken those principles. In other decisions, arbitrators have referred to laws on arbitrability that had been enacted by states with no connection to the dispute in question. This Comment will try to justify this approach by looking at recent developments in national laws on arbitrability. But it will also show the limits of this approach, which derive mainly from the legitimate interest of states in centralized dispute resolution.