Originally from Arbitration of International Disputes in New York

PREVIEW

The central issue of “arbitrability,” which in its narrow sense concerns the question of what subject matter is legally capable of settlement by arbitration and arbitrators as opposed to judges in conventional court-based proceedings,  and of arbitral jurisdiction generally (involving questions of privity, scope, and validity)  may arise at various stages and before different adjudicators:

(i)      before a court assessing whether to enforce an existing arbitration agreement, stay litigation and/or compel arbitration; 

(ii)     before an arbitral tribunal determining the scope of its authority or competence; 

(iii)    before a court, typically at the place of arbitration, in a proceeding to vacate or set aside an arbitral award;  and

(iv)   before a court being requested to confirm or enforce an arbitral award. 

As regards the law to be applied in determining questions of arbitrability or arbitral jurisdiction, depending on the stage at which the issue of arbitral jurisdiction is encountered and on what vacatur or enforcement ground is invoked, it may be necessary to have regard to the relevant laws of different jurisdictions. This includes

(i)      the law governing the parties’ arbitration agreement,

(ii)     the law governing the contract containing the arbitration clause,

(iii)    the law of the place of arbitration (which may be in a country other than that of the court having jurisdiction over the issue), and

(iv)   the law of the place, or places, of enforcement (at the post-award enforcement stage).