Whilst accepting from a
theoretical perspective that both the jurisdictional and contractual natures of
arbitration can be argued, this article aims to demonstrate that the solution
under substantive law which consists of preferring a hybrid definition of this
institution should not be adopted, by reason of the practical inconsistencies
which this generates. An analysis is instead proposed whereby the arbitral
award is not a jurisdictional act, since one cannot assert that an arbitrator
rules on a dispute, states the law or metes out justice. The author then presents the arbitrator’s
terms of reference as being by nature purely contractual, since the arbitrator,
adopting such analysis, is simply an agent and the award merely a settlement.