The parties’ consent is required for an arbitration clause to be valid and effective. However, the lawfulness of the arbitration clause depends on the question of whether the disputed subject matter of the arbitration clause is arbitrable. Arbitrability is key to ensuring the lawfulness of the arbitration clause and ultimately the enforceability of a resultant arbitral award.
Accordingly, if consent is meant to protect the parties to an arbitration agreement, arbitrability is meant to protect societies vis-à-vis arbitration (at least in most legislators’ view). Thus, arbitration begins with the question of arbitrability and eventually comes down to it as “national laws establish a priori the domain of arbitration vis-à-vis State justice.”
In the MENA countries, international conventions and some national legislation indicate that non-arbitrable disputes constitute a primary ground for refusing the enforcement of a foreign or a domestic award. With that in mind, practitioners are often invited to ask themselves the following question: Is arbitration prohibited for certain types of disputes or are certain parties precluded from submitting their disputes to arbitration?
In order to answer the foregoing question with a somewhat homogenous answer (as one single answer does not exist) we will consider and compare specific provisions of laws and/or jurisprudence of the United Arab Emirates (UAE), the Kingdom of Saudi Arabia (KSA), Bahrain, Qatar, Egypt, Syria and Lebanon and, in doing so, shall be guided by the concepts of (i) objective arbitrability; and (ii) subjective arbitrability.