Arbitrability; Arbitration Agreement - Chapter 2 - Arbitration Law of Czech Republic: Practice and Procedure
Alexander J. Bělohlávek, Univ. Professor, Dr.iur., Mgr., Dipl. Ing. oec/MB, Dr.h.c. Lawyer admitted and practising in Prague/CZE (Branch N.J./US), Senior Partner of the Law Offices Bělohlávek, Dept. of Law, Faculty of Economics, Ostrava, CZE, Dept. of Int. and European Law, Faculty of Law, Masaryk University, Brno, CZE (visiting), Chairman of the Commission on Arbitration ICC National Committee CZE, Arbitrator in Prague, Vienna, Kiev etc. Member of ASA, DIS, Austrian Arb. Association. The President of the WJA – the World Jurist Association, Washington D.C./USA.
2.I. ARBITRABILITY AND THE LEGAL BASIS FOR THE ASSESSMENT OF ARBITRABILITY
2.I.1. Arbitrability and the scope of arbitrability
The necessary prerequisite for the hearing and resolution of disputes in arbitration is their arbitrability. The concept of arbitrability in connection with the concept of arbitration were analyzed in the commentary to Section 1 of the ArbAct. The Act on Arbitration and Enforcement of Arbitral Awards, effective from 1 January 1995, introduced a major change both as concerns the [authoritative] resolution of disputes by entities other than courts, and in the support for the so called substitute methods of dispute resolution. The changes consisted primarily in the newly introduced empowerment of arbitrators to resolve disputes other than those from international commercial transactions; no such right existed under the preceding law on arbitration (1963 ArbAct) until 1995. A dispute may be submitted to arbitration providing the law allows the hearing of such a dispute in arbitration (arbitrability of the dispute) and providing the parties entered into a valid arbitration agreement (concerning this issue, see also the partial analysis in the commentary to Section 1 of the ArbAct). Objective arbitrability under Czech law is provided for in Sections 1 and 2 of the ArbAct and requires the simultaneous fulfillment of the following conditions:
• It must be a dispute between the parties to an arbitration agreement (Section 1 of the ArbAct).
• The dispute must be a property dispute (Section 1 of the ArbAct).
• It must not be a dispute arising in connection with enforcement proceedings; incidental disputes are excluded, too.2 Formerly (until 30 December 2011), the law also excluded as nonarbitrable those disputes which involved public non-profit institutional health care facilities.3