Originally from Defeating and Defending Awards: Arbitrability, Public Policy, and Global Court Practice

PREVIEW

4.1   Introduction

This chapter examines the notion of arbitrability, in answer to part of Research Question A: What is understood by the notion of arbitrability? To answer this part of the research question, the following Sub-Research Enquiries will be examined:

A4.        What are the difficulties with arbitrability?
A5.        What are the factors affecting arbitrability?
A6.        What are the categories of arbitrability and when does arbitrability matter?

To discuss these Sub-Research Enquiries, this chapter is roughly divided into the following sections:

A4.        The Arbitrability or Inarbitrability Complexities? (Section 4.2)
A5.        The Three Main Factors Affecting Arbitrability (Section 4.3)
A6.        The Two Categories of Arbitrability and the Four Stages of Arbitrability (Sections 4.4–4.5).

The aim of this text is to arrive at an understanding of the notion of arbitrability by contextualising it. Descriptive questions, such as, what it is, what its elements are, and so on, must be discussed. Different perceptions will also be discussed and compared in an attempt to paint a portrait of the notion from different perspectives. This is not an easy chapter to organise and write, because there are a great many competing issues and naturally not all of them can be addressed. The main issues that deserve discussions include private rights versus the public interest, which leads to jurisdictional concerns against party autonomy, and the categories of arbitrability. Some other controversial issues including the validity of an arbitration agreement need also to be discussed.

Arbitrability is such an important subject that embodies the very core of arbitration. Whether the process of arbitration – and everything else involved with it – may legitimately exist and advance within a particular legal framework depends on the central issue of arbitrability. It “precedes all other matters” in the arbitral process. Therefore, it would not be an exaggeration to state that arbitrability is pivotal to the arbitration process. It is a “key concept” of arbitration law. The question of what is and is not arbitrable is an ever present one that confronts everyone in the process, from the legislatures, the lawyers, the judges, to the arbitrators.  As will be seen in the literature covered by this chapter alone, it is unsurprising that arbitrability has been, and remains, a much–contested issue; not only in practice, but also in academic circles at large, even to the extent that some years ago it was noted that there is a “new wave of academic interest”  in the area that continues to attract “scholarly writing”. 

There is an earlier opposing view, that arbitrability is no longer a topical issue, or at least, that it is becoming less relevant, because of the expansion of the area, and that inarbitrability “has virtually died in real arbitral life”.  The scope of what was traditionally deemed inarbitrable has significantly shrunk in recent years, such as, in certain areas involving public interests. Arbitrators were considered ill-equipped to deal with these matters, but this view has been changing. In some jurisdictions, noticeably Canada and the UK, over the past decade, there has been a gradual expansion of arbitration in areas such as family law and crime  – areas traditionally considered out of bounds for arbitrators, despite there being limits as to what is arbitrable in these instances. These limits remain for good reasons, such as an inefficient procedure to deal with such issues, lack of sanction available to arbitrators, and to protect third parties’ rights; but not for the traditional reason, that arbitrators were considered incapable of dealing with such issues.