Arbitrability in international arbitration
Arbitrability in international arbitration

The following Arbitration practice 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?
  • The position under English law
  • Non-arbitrability of subject matter and the validity of arbitration agreements
  • The relevance of the New York Convention
  • The relevance of the UNCITRAL Model Law
  • Provisions for non-arbitrability in international conventions
  • When can non-arbitrabilty be raised as an issue?

It is considered a general principle that arbitration may be used to resolve almost any type of claim or dispute concerning legal rights. This has been referred to as a ‘presumption’ of arbitrability (see, for example, the comments of the Singapore Court of Appeal in Larsen Oil and Gas Pte v Petroprod).

However, in most jurisdictions, including England and Wales, there are limits (or reservations) to that general principle, and, in accordance with the doctrine or principle of non-arbitrability, certain disputes may not be resolved using the arbitral process even if they fall within the scope of the relevant arbitration agreement (see, for example, the statement of the English High Court in RiverRock Securities v International Bank of St Petersburg). Nevertheless, while it is generally accepted that certain categories of disputes are arbitrable and some are not, the precise boundary between the two can be hard to draw. Indeed, the concept of arbitrability itself lacks precise definition. It has been referred to as ‘the susceptibility of a particular kind of dispute to a binding objective decision’ (Mustill & Boyd, Commercial Arbitration, Second Edition, 2001 Companion, page 73). In addition, a claim may be non-arbitrable per se (such that the entire claim is non-arbitrable even though its determination involves elements which, considered in isolation or in other contexts, would be arbitrable) or it may be that

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