Arbitrability

Abstract

IN THE last decade, at least in the industrialised countries, courts adhering to the common law system have enlarged the permissible field of arbitrability beyond all recognition. The Supreme Court of the United States has led the field. Is the world of arbitration putting at risk the adherence of a large part of its constituency particularly in the developing world? Where is the line to be drawn? Do we have it right? Arbitrability of a dispute may come into question at two different stages of the dispute resolution process and may fall for determination in accordance with two or more systems. The first stage is at the commencement of the process. A national court may be asked to stay curial proceedings, instituted in apparent contravention of an arbitration agreement. A stay may be refused on the ground that, according to the relevant national legal system, the dispute is not susceptible to determination by arbitration. Alternatively, at that point a national court may be asked to affirm, by some appropriate declaration or order, the enforceability of an arbitration clause. The other point where the question may arise is at the enforcement stage. Then the question may arise in one or more countries where the award may be sought to be enforced, whether recognition should be refused on the ground that the subject matter of the dispute was not capable of settlement by arbitration ‘under the law of that country’.1 Self-evidently, at the present time it is possible diat the various national legal systems invoked may return different answers.