Originally from Dispute Resolution Journal

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INTRODUCTION

Arbitration is a function of contract and therefore of voluntary
agreement. At first sight there are the advantages of speed, simplicity
and economy associated with arbitration and therefore judicial
involvement should be kept to the minimum to avoid undermining
those goals. Arbitration agreements are to be construed according to
general rules governing the interpretation of contracts, taking into
account the intention of the parties and the strong public policy in
favor of arbitration. Arbitrators do not create a new legal status but
they merely interpret the already existing legal rules. Arbitrations
may become more expensive and may not be a workable alternative
to litigation if costs become analogous.

Do national laws attribute the authority to arbitrator’s stand-in the
function of judges in arbitration? The standpoint of arbitration
tribunals is primarily distinctive from that of courts and the courtrelated
conflict resolution mechanisms cannot be mechanically
transposed to arbitration. There is a need to distinguish arbitration from
litigation as a totally independent and co-equal dispute mechanism.

The aim of this concise analysis is the presentation of the
developments concerning arbitrability brought forwards by
Regulation (EU) No 1215/2012

THE CONCEPTION OF ARBITRABILITY

Arbitrability involves the question of what types of issues can and
cannot be submitted to arbitration. Internationally arbitrability is
distinguished between objective and subjective inarbitrability.
Moreover, arbitrability is concerned with the question of whether a
dispute is capable of settlement by arbitration under the applicable
law. It should not be confused with the question of whether a
particular dispute does or does not fall within the scope of the
arbitration agreement, although in the US the term arbitrability is used
to describe this question as well. The FAA only recognizes
contractual inarbitrability, and the grounds for reviewing domestic
arbitral awards do not include the public policy exception to
enforcement. Moreover, in the US the term arbitrability is used in a
sense covering the whole issue of the tribunal’s jurisdiction.