The Foundations of Arbitrability in International Commercial Arbitration

Abstract

Arbitrability is concerned with whether a particular type of dispute is amenable to settlement by arbitration, or if instead jurisdiction lies exclusively with the domestic courts or state organs. These determinations are usually made by reference to domestic statute law.1 The parties to a dispute, when considering whether its subject matter is arbitrable, must ensure the said dispute is arbitrable not only in accordance with the law of the lex arbitri, but that it also conforms to the laws and public policy of the governing law of the contract and of those states where enforcement of the award will be sought. It should be said that some confusion exists with regard to the precise terminology associated with the concept of arbitrability. In Europe the term refers, as explained above, to the permission granted by state laws for a dispute to be settled by arbitration, rather than compulsory judicial settlement. In the United States, it has taken on an additional overtone. There, the term has been consistently employed to determine whether an arbitral tribunal has sufficient jurisdiction to hear a dispute as a matter of construction of the arbitral clause,2 as well as whether the arbitrators may validly