Abstract
Determining the law applicable to arbitrability is of paramount importance because the procedures taken by the legal system are very different. In this way, some systems principally recognize any disputes eligible for referral to arbitration, while some other legal systems have put an emphasis on the general inapplicability of arbitrability to the disputes and only accepts it in a few exceptional cases. The remainder of legal systems have taken a position in the middle of these two theories. Therefore, it is clear that determining the applicable and governing law can also pinpoint the ultimate arbitrability (or not) of the case. The main challenge of this research is to examine the law governing the practice of arbitration and how proceeds the arbitrability at the courts of arbitration. At the end of this study, it will be known that there are several criteria for determining the law governing arbitrability, including the lex fori, the law of the parties’ agreement, the law of the place of enforcement of the award, and the law of one or both of the parties. By the way, today transnational law principles seems to gain more importance. Each of these criteria has its own advantages and disadvantages. Moreover, the norms of human rights have also led to developments in the recognition and enforcement of foreign arbitration awards, in such a way that the tenets of human rights (in the domain of the recognition and enforcement of foreign arbitration awards) have also led governments to recognize acquired rights in foreign countries.
Highlights
The scope of inability to refer to arbitration usually becomes clear in two ways by national laws
Different views are raised here (Van den Berg, 1981, p. 126)2, the preferable view seems to be that the national court investigating an arbitration agreement must apply lex fori to determine whether the dispute in question can be referred to arbitration or not (Lew, Mistelis & Kröll, 2003; Arfazadeh, 2001, p. 76; Arfazadeh, 2005, p. 95) 3
If the arbitral tribunal gets involved in a dispute that is under the exclusive jurisdiction of the national courts of a certain country, it will be more likely that the award that will be issued subsequently will not be enforceable in that country
Summary
The scope of inability to refer to arbitration usually becomes clear in two ways by national laws. It is notable that purely the same reasons of the arbitral regulations support the second category Regulations such as Art. 177 of Swiss Federal Law on Private International Law Act determine the disputes that can be solved by arbitration, including any dispute over properties while the other disputes remain within the jurisdiction of national courts. The two types of national regulations seek to describe the exclusive jurisdiction of national courts From this point of view, the difference between Art. 22 of the regulations of the European Union and a provision, such as Art. 1030 of the German Procedure Code lies firstly within their limits in that the second provision is broader than the former and secondly within their method of preparation drafts. The pros and cons of these principles are critically discussed and, human rights considerations in arbitration laws are examined from the perspective of international arbitration
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