Subject matter arbitrability, also called objective arbitrability or arbitrability ratione materiae, usually refers to the question of whether the particular subject matter of a given dispute may be resolved by arbitration. Such a question arises due to the tension between two policies: the policy which aims to ensure that matters of public interest are adequately and appropriately addressed, traditionally in front of national courts; and the policy that promotes arbitration as an alternative means of dispute resolution.
The concern regarding subject matter arbitrability can be found in various conventions and model laws, in greater or lesser degrees of precision. For example, it is found in broad terms in Art. II(1) of the New York Convention, which indicates that the "subject matter" must be "capable of settlement by arbitration"; whereas in Art. 34(2)(b)(i) and 36(1)(b)(i) of the UNCITRAL Model Law, it is specified that the "subject-matter of the dispute" should be "capable of settlement by arbitration under the law of this State" (my italics), that is, the law of the seat of arbitration. This demonstrates that there are various ancillary questions to be addressed pertaining to subject matter arbitrability aside from the substance of arbitrability itself.
[...] This is especially since national judges have come to realise and understand that arbitral awards implicating questions of public policy will eventually be subject to their supervision at the recognition and/or enforcement stage anyway. Thus, although matters of public interest have traditionally been addressed via national courts, it has gradually been accepted that an exclusive consideration by the national courts is not the only way for these matters to be treated adequately. The two policies of addressing public interests and promoting arbitration are thereby reconciled. Bibliography Aksen, Gerald, Karl-Heinz Böckstiegel, Michael J. [...]
[...] More precisely, though, there are four general cases where subject matter arbitrability might be raised: at the beginning of the arbitration, by a contracting party, before the arbitral tribunal; at the beginning of the arbitration, by a contracting party, before the national court of the seat of the arbitration; after the arbitration, during the setting aside proceedings, by the losing party, before the national court of the seat of the arbitration; after the arbitration, during the recognition and/or enforcement stage, by the losing party, before the State court deciding on the recognition and/or enforcement of the award. In the former two cases, when the question is raised at the start of (or even before) the arbitration proceedings, it should be noted that the kompetenzkompetenz principle—and by implication the national arbitral procedural laws pertaining to this principle—also comes into play. This leads me to the next issue to be explored, which is the applicable law for the enquiry of subject matter arbitrability. [...]
[...] Mustill, Paolo Michele Patocchi, Anne Marie Whitesell, eds. Global Reflections on International Law, Commerce and Dispute Resolution: Liber Amicorum in honour of Robert Briner. Paris: ICC Publishing Briner, Robert. Arbitrability of Intellectual Property Disputes with Particular Emphasis on the Situation in Switzerland”. Worldwide Forum on the Arbitration of Intellectual Property Disputes, WIPO Publication No Geneva, March http://arbiter.wipo.int/events/conferences/1994/briner.html Fouchard, Philippe, Emmanuel Gaillard, Berthold Goldman, John Savage. Fouchard, Gaillard, Goldman on International Commercial Arbitration. The Hague: Kluwer Law International Redfern, A., M. [...]
[...] The concern regarding subject matter arbitrability can be found in various conventions and model laws, in greater or lesser degrees of precision. For example, it is found in broad terms in Art. II(1) of the New York Convention, which indicates that the “subject matter” must be “capable of settlement by arbitration”; whereas in Art. and of the UNCITRAL Model Law, it is specified that the “subject-matter of the dispute” should be “capable of settlement by arbitration under the law of this State” (my italics), that is, the law of the seat of arbitration. [...]
[...] Hunter. Law and Practice of International Commercial Arbitration. London: Sweet & Maxwell, 3rd ed Sanders, Pieter, ed. Comparative Arbitration Practice and Public Policy in Arbitration. Deventer: Kluwer Law & Taxation Publishers, 1987. [...]
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