Karim A Youssef, CEO of Youssef & Partners (Youssef + Partners), has written a thought-provoking publication on the challenges posed by modern arbitration. In ‘Universal Arbitration Between Freedom and Constraint: The Challenges of Assessment and Control of Jurisdiction in Multiparty Multi-Contract Arbitration‘, which is published in the ICCA Congress Series 2011, Youssef examines the state of arbitration and its changing dynamics in the last few decades. The publication explores the emergence of arbitration as a popular method for dispute resolution and how expanding jurisdiction practices have posed a challenge to traditional commercial justice in the form of national courts.
‘Universal Arbitration Between Freedom and Constraint: The Challenges of Assessment and Control of Jurisdiction in Multiparty Multi-Contract Arbitration’, Arbitration: The Next Fifty Years, ICCA Congress Series, 2011 Kluwer Law International – Home (kluwerarbitration.com)
Arbitration has emerged as a popular means of dispute resolution, it stands side by side with the commercial national justice. Expansive practices of jurisdiction in the last decades (in particular, the so-called “extension” of the arbitration agreement to non-signatories or to related contracts) brought a serious challenge to the idea that national courts are the natural judge of international commerce.
As the developments to follow will show, the gradual (re-)construction of a global arbitral justice has had a direct effect on consent to arbitrate or the requirement that those who may be compelled to arbitrate must have consented, which is the legal and conceptual foundation of arbitration. The effect goes to the manner of assessment of consent and its relative role as basis of jurisdiction.