Arbitrability in international arbitration
Arbitrability in international arbitration

The following Arbitration guidance note provides comprehensive and up to date legal information covering:

  • Arbitrability in international arbitration
  • Objective v subjective arbitrability
  • On what basis are disputes deemed non-arbitrable?
  • Non-arbitrability of subject matter and the validity of arbitration agreements
  • Provisions for non-arbitrability in international conventions
  • When can non-arbitrabilty be raised as an issue?

Arbitration proceedings may, in principle, be used to resolve almost any type of dispute. However, in most jurisdictions there is a limit on matters that may be resolved using arbitration. This is referred to as the 'doctrine of non-arbitrability' whereby certain disputes may not be resolved using the arbitral process.

The generally accepted principle of 'non-arbitrability' is that disputes relating to the fundamental rights of citizens and matters of public policy should not be resolved using a private arbitral process. The following are commonly excluded categories:

  1. disputes arising from criminal acts where a fine or prison sentence may be imposed

  2. employment disputes

  3. certain family law disputes

  4. certain trusts disputes

  5. disputes that affect third parties (see Practice Note: Arbitration and the Contracts (Rights of Third Parties) Act 1999) and

  6. disputes that have public policy ramifications

The general consensus is that parties’ autonomy to agree to arbitration should be respected subject only to circumstances in which the public interest would not be served.

Objective v subjective arbitrability

If an issue arises as to the arbitrability of a dispute, it generally relates to the objective arbitrability of the subject matter. Namely, whether there are any public policy considerations or effects on third parties or the general public that would serve to preclude arbitration proceedings.

Subjective arbitrability relates to the capacity of a party to enter into