Tuo Huang, ‘The Two Voices of Federal Law on “Arbitrability”: Substantive Common Law, Federalism, and Choice of Law for International Commercial Arbitration Agreements’

ABSTRACT
The Supreme Court’s 2020 decision in GE Energy v Outokumpu clarified that nonsignatories to an international commercial arbitration agreement might nevertheless have the right to enforce the agreement under doctrines such as equitable estoppel and that the New York Convention does not prohibit such enforcement. However, misunderstandings and confusions continued regarding the appropriate governing law for such questions of enforcement involving nonsignatories. Some recent appellate court jurisprudence and scholarship point to application of federal substantive law based on the long-standing proposition that federal law uniformly governs questions of ‘arbitrability’. While this proposition is technically correct, it does not support the application of federal substantive law to determine substantive contract law questions in enforcement of international commercial arbitration agreements. This article sets out to clarify the misunderstandings surrounding the ‘federal substantive law of arbitrability’ through a review of all Supreme Court decisions invoking the concept of ‘arbitrability’ …

Huang, Tuo, The Two Voices of Federal Law on ‘Arbitrability’: Substantive Common Law, Federalism, and Choice of Law for International Commercial Arbitration Agreements (March 4, 2021). Journal of Law and Commerce, forthcoming.

First posted 2021-07-02 09:00:58

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