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

handle is hein.journals/yjil37 and id is 1 raw text is: THE YALE JOURNAL OF INTERNATIONAL LAW Volume 37, Number 1, Winter 2012 Abstracts Articles 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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