The concept of arbitrability
Arbitrability
General introduction
Arbitrability is a term used to indicate the "arbitrability" of a dispute, i.e. the procedural possibility of considering a particular dispute in international commercial arbitration [1].
Arbitrable disputes can be submitted to arbitration, while non-arbitrable ones, on the contrary, cannot be considered in arbitration and must be considered in national courts within their exclusive competence. The scope of the dispute's arbitrability is not identical and depends on the legislation of a particular State (lex loci arbitri or the law of the State where the arbitral award is recognized).
Arbitrable disputes can be submitted to arbitration, while non-arbitrable ones, on the contrary, cannot be considered in arbitration and must be considered in national courts within their exclusive competence. The scope of the dispute's arbitrability is not identical and depends on the legislation of a particular State (lex loci arbitri or the law of the State where the arbitral award is recognized).
According to Black's legal dictionary, the term "arbitrability" is literally defined as "the quality or condition in which a dispute is subject to arbitration; the ability of a dispute to be resolved through arbitration" [2]. Similarly, Gary B. Born considers the concept of "arbitrability", but in addition emphasizes that this is a fundamental issue that determines the validity of an arbitration agreement and the possibility of enforcement of an arbitral award [3].
The distinction between subjective and objective arbitrability
Subjective arbitrability ("arbitrability ratione personae") is related to the parties' legal capacity to conclude an arbitration agreement, as well as the need for representatives of a legal entity to have the authority to conclude an arbitration agreement.
Objective arbitrability ("arbitrability ratione materiae") refers to the question of whether a particular subject of dispute can be considered in arbitration.
According to Professor Beckstigel, when determining whether a case is subject to arbitration, it should be borne in mind that both criteria — that is, subjective and objective arbitrability — complement each other [4].
Objective arbitrability ("arbitrability ratione materiae") refers to the question of whether a particular subject of dispute can be considered in arbitration.
According to Professor Beckstigel, when determining whether a case is subject to arbitration, it should be borne in mind that both criteria — that is, subjective and objective arbitrability — complement each other [4].
Applicable law
Objective and subjective arbitrability is recognized at the international legal level in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
Thus, in article II (1), the authors agree with the statement that the State has long been an arbitration proceeding in relation to "what could be better than what we offer to the arbitration business". Article (a) of the article in (1) of the Manual states that the lack of control by management may be an awareness for others of a negative transformation.
In States that have adopted the UNCITRAL Model Law, disputes are usually clearly divided into arbitrable and non-arbitrable. Non-arbitration disputes include those disputes that affect relationships in which the public (state) interest in achieving a certain result is so important that any agreements that change the rules to achieve this result are unacceptable.
In Russia, law enforcement practice, contrary to the position of the Constitutional Court of the Russian Federation in its Resolution No. 10-P dated May 26, 2011, proceeds from the fact that disputes concerning the application of public law norms are automatically non-arbitrable, even if the remedy sought in them is civil law, and the dispute itself does not fall under any jurisdiction. from the categories specified in part 2 of Article 33 of the APC of the Russian Federation (Definition of the Supreme Arbitration Court of the Russian Federation dated March 22, 2010 no. VAS-3174/10 in case no. A42−6967/2008).
At the same time, in international investment arbitration, arbitrators regularly consider issues of public law (corruption) and reject investor applications if they conclude that such events are likely (the world of duty-free trade). Ltd v. Republic of Kenya, Arbitral Award dated October 4, 2006, ICSID case No. ARB/00/7).
Thus, in article II (1), the authors agree with the statement that the State has long been an arbitration proceeding in relation to "what could be better than what we offer to the arbitration business". Article (a) of the article in (1) of the Manual states that the lack of control by management may be an awareness for others of a negative transformation.
In States that have adopted the UNCITRAL Model Law, disputes are usually clearly divided into arbitrable and non-arbitrable. Non-arbitration disputes include those disputes that affect relationships in which the public (state) interest in achieving a certain result is so important that any agreements that change the rules to achieve this result are unacceptable.
In Russia, law enforcement practice, contrary to the position of the Constitutional Court of the Russian Federation in its Resolution No. 10-P dated May 26, 2011, proceeds from the fact that disputes concerning the application of public law norms are automatically non-arbitrable, even if the remedy sought in them is civil law, and the dispute itself does not fall under any jurisdiction. from the categories specified in part 2 of Article 33 of the APC of the Russian Federation (Definition of the Supreme Arbitration Court of the Russian Federation dated March 22, 2010 no. VAS-3174/10 in case no. A42−6967/2008).
At the same time, in international investment arbitration, arbitrators regularly consider issues of public law (corruption) and reject investor applications if they conclude that such events are likely (the world of duty-free trade). Ltd v. Republic of Kenya, Arbitral Award dated October 4, 2006, ICSID case No. ARB/00/7).
Resource
- Billiet J. et al., International Investment Arbitration, A Practical Handbook, Maklu Publishers, 2016
- Black's Law Dictionary
- Born G. International Commercial Arbitration (Wolters Kluwer, 3rd ed., 2021)
- Beckstigel, K.H., Public policy as a constraint for arbitration and its application, in the book "The New York Convention - 50 Years", IBA Journal of Dispute Resolution, 2008