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DEVELOPMENTS IN English law take place either by way of legislation or by judicial decision. Often, one mode of law reform is invoked when the other is unavailable; statute steps in when the common law is unable to assist further or the Courts do their best to render workable a statutory lacuna. Perhaps more rarely, if only because the immediate need is less, the legislature will be seen to cement developments first set in place by the Courts. As and when clause 3 of the draft Arbitration Bill becomes law, in the context of the ‘separability’ or ‘autonomy’ of the arbitration clause, statute will anchor in English law the achievement of the Courts in Harbour v. Kansa .1 Both the draft Bill and the decision in Harbour v. Kansa represent in the present context, landmarks in English law. It is the purpose of this Note to comment, briefly, on the draft Bill, to trace the development of ‘autonomy’ in English case law, culminating in Harbour v. Kansa and to inquire as to the remaining limits on the doctrine in English law. As to the draft Bill, the mere fact of the enactment of autonomy as statutory law otherwise than by adoption of the UNCITRAL Model Law, is noteworthy in itself.2 The topicality of the draft Bill is such as to merit consideration first, although, chronologically, it post-dates Harbour v. Kansa . Harbour v. Kansa is a decision of major importance for English arbitration law. It is authority for the proposition that an arbitration clause can survive the (alleged) invalidity or illegality ab initio of the underlying contract in which it is contained. The result is that English case law now recognizes the ‘separability’ or ‘autonomy’ of the arbitration clause at least to the extent generally applicable in international …

TYPICALLY in English law, a legal concept gradually develops with each individual case and not as a sudden process of logical reasoning from a set of first principles. So it is not surprising that while relatively few English lawyers and arbitrators, at least until recently, would have used as legal terms of art the actual phrases ‘autonomy of the arbitration clause’1 or ‘competence of competence’, nonetheless English arbitration law has long experience in the practical application of these different legal concepts. This note seeks to demonstrate that the concept of competence of competence is alive and well in English arbitration law2 and that the concept is applied in practice in a flexible manner, despite its absence as an ordinary English legal term of art. It is axiomatic that commercial arbitration depends first on consent. As recently restated by Messrs Redfern & Hunter ‘An arbitration tribunal may only validly determine disputes which the parties have agreed that it should determine. This rule is an inevitable consequence of the voluntary nature of arbitration. In consensual arbitration, the authority or competence of the arbitral tribunal comes from the agreement of the parties; indeed, there is no other source from which it can come. It is the parties who give to what is essentially a private tribunal the authority to decide disputes between them; and the arbitration tribunal must take care to stay within the terms of this authority… an arbitral tribunal must not exceed its jurisdiction…’3 This obvious limitation on the jurisdiction of arbitrators, imposed by the dependence of that jurisdiction on the consent of the parties, gives rise to a logical problem and a practical need. The logical problem is that an examination by an arbitrator of his own jurisdiction in the event of challenge, involves an assumption that …

The GATT/WTO Settlement System by Ernst-Ulrich Petersmann. Published by Kluwer Law International, Dordrecht (1997, xvii + 344 pp ). Softback. Price £60. ISBN 90-411-0933-1. Readers of this publication will require little persuasion as to the importance of international arbitration to the conduct of world trade. It may be taken almost as axiomatic that arbitration between private parties facilitates international trade by making available neutral tribunals in which the parties are prepared to place their confidence. Accordingly, disputes, as and when they arise, can be resolved predictably and the arbitrators' awards will be enforceable internationally through the framework of the New York Convention. The use to which arbitration can be put has even been extended in the investment area Covered by the Energy Charter Treaty, so as to permit private investors to compel arbitration against host states (an exciting development, as discussed in (1996) 12 Arbitration International 429). All these dispute resolution techniques assume access to the market in question in the first place. The value of the book now under review is that it offers an introduction to the dispute settlement system of the World Trade Organization (WTO), which addresses these questions of market access. As this may well be an area not over-familiar even to relatively experienced arbitration practitioners, the book has the potential to make a significant contribution to the development of a rounded knowledge of dispute resolution in international trade. The author, Ernst-Ulrich Petersmann, writes with obvious knowledge of his subject-matter and the authority of his position as Legal Adviser to the WTO (and previously to GATT). The agreement establishing the WTO came into force on 1 January 1995, following the completion of the marathon Uruguay Round of multilateral trade negotiations (1986–1994). The WTO …