Recueil des cours, Collected Courses, Tome 390

Series:

The Allocation of Power between Arbitral Tribunals and State Courts by A.S. Rau

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Biographical Note

Co-publication with: The Hague Academy of International Law. Alan Scott Rau, born on 23 December 1942 in New York. Holds the Mark G. and Judy G. Yudof Chair of Law at the University of Texas at Austin. Earned his B.A. and LL.B. from Harvard University, and, before joining the faculty at the University of Texas, practised law with Coudert Frères in Paris. Advisor to the American Law Institute Project on the Restatement of International Commercial Arbitration. Frequently serves as an arbitrator and consultant and is a member of the panel of the American Arbitration Association and the panel of mediators of the Court of Arbitration for Sport. Has taught as a Visiting Professor at the University of Toronto Faculty of Law; at the China University of Political Science and Law in Beijing; at the University of Geneva Faculty of Law; and at the University of Paris-I and the University of Paris-II. In the fall of 2014, Distinguished Professor in Residence at Queen Mary University, London.

Table of contents

Excerpt from Table of Contents I. Dimensions of the Problem: “Consent” and Agreement A. The Insidious “Gateway” Metaphor B. “I Used to Teach Contracts; Did You Know That?”: Challenges Based on a Lack of “Agreement” and Challenges to the “Arbitration Agreement Itself” C. Burden of Proof D. Construction of True “Consent”: The Dallah Case E. Contracts of Adhesion F. Consent to Arbitrate “This Dispute”: Default Rules and the Problem of “Scope” II. The Unmysterious Notion of “Separability” A. “Just One More Discrete Controversy” B. “To Particularize is the Alone Distinction of Merit” C. “Lapse, Expiration, Rescission” D. The “Illegality” of a Contract E. “The Arbitration Clause Itself” F. “Void, Schmoid” G. Being and Nothingness: Or Does the Overall Contract Even “Exist”? III. The “Spectrum of Consent”: Third Parties, “Preconditions,” and Remedies A. The Question of “Scope” B. Signatories and Non-Signatories C. “Who, Whom”? D. “Preconditions” and “Admissibility” E. Excluding Remedies IV. “Party Autonomy” and Contractual Re-allocation of Power A. The Notion of Party Autonomy B. Party Autonomy and Re-allocation by Contract C. “Expanded Review” V. “Party Autonomy” and the Choice of Law A. The “Separable” Governing Law B. The Problem of Fredonia C. The Restatement and the Rome Regulation D. The Sarhank Case E. The Chosen Law F. Substantive Law and the Mastrobuono Case G. English Law: The Sulamérica Case H. The “Principle of Validity” I. “Federal Common Law” J. French Law and the “ Règle Materielle” K. “Formal Validity”

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