37 Yale J. Int'l L. [i] (2012)

handle is hein.journals/yjil37 and id is 1 raw text is: THE YALE JOURNAL
Volume 37, Number 1, Winter 2012
The Gateway Problem in International                         George A. Bermann
Commercial Arbitration
When an arbitration process is challenged, who decides whether the arbitration
can proceed-and how should that question be answered? This Article discusses how and
when courts should decide gateway issues in international arbitration, issues that go
to the validity of the agreement to arbitrate. Using the examples ofFrance and Germany,
the author argues that the dominant Continental doctrines used to address such issues,
the doctrines of Kompetenz-Kompetenz and separability, neither adequately explain
courts' decisions nor provide a strong logical basis for them. In contrast, the more
nuanced U.S. approach, which involves demarcating gateway and non-gateway
issues, has strong explanatory and normative force. The author demonstrates how U.S.
arbitration law addresses several areas that remain problematic under the Continental
doctrine. The author then argues that recognizing U.S. arbitration law's pragmatic
balance between legitimacy and efficacy explains an otherwise confusing set of
precedents. Finally, the author explains why the US. approach provides courts with a
superior approach for responding to the Gateway problem.
International Law at Home: Enforcing Treaties in               Oona A. Hathaway,      51
U.S. Courts                                                     Sabria McElroy &
Sara Aronchick Solow
While the landmark 2008 Supreme Court decision Medellin v. Texas upended the
presumption that treaties creating private rights of action are self-executing,
jeopardizing the judiciary's power to enforce several important international treaties,
this Article explains why the Medellin decision does not sound the death knell for
enforcement of treaties in U.S. courts. The Article begins by providing an account of the
broader legal and historical context of Medellin-examining both the case law that led
up to the decision and ways in which the lower courts have begun to respond to it.
At the start of the twentieth century, the courts applied a strong presumption that
treaties could be used by private litigants in court to press their claims. As international
treaties-and international human rights treaties in particular-proliferated after World
War II, however, the courts largely abandoned this presumption in favor of enforcement.

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