On Arbitrability: Persisting Misconceptions and New Areas of Concern

L. Mistelis, S. Brekoulakis, ARBITRABILITY: INTERNATIONAL AND COMPARATIVE PERSPECTIVES, pp. 19-45, Kluwer, 2009

Queen Mary School of Law Legal Studies Research Paper No. 20/2009

28 Pages Posted: 5 Jun 2009

See all articles by Stavros Brekoulakis

Stavros Brekoulakis

Queen Mary University of London, School of Law

Abstract

The paper looks into the topic of arbitrability, which defines the material scope of arbitration. While the issue of what disputes are arbitrable (i.e. capable of being submitted to arbitration) has now become less of a problem, some basic misconceptions in relation to arbitrability still persist. In particular, the paper examines first the rationale behind inarbitrability and the role of public policy in particular. The paper argues that in the limited types of disputes that are still considered inarbitrable, inarbitrability relates to the natural limitations of arbitration as a dispute resolution mechanism of consensual character rather than to public policy. The latter, as argued here, is effectively irrelevant to the discussion of arbitrability. Secondly, the paper looks into the sanctions of inarbitrability, and especially whether it has any impact on the validity of an arbitration agreement. The paper will argue that inarbitrability is an issue concerning the jurisdiction of an arbitral tribunal rather than the validity of an arbitration agreement, as is the prevailing view. This discussion has eventually important practical relevance. In fact, as will be shown, it pertains to the much debatable matter of which forum, national courts or arbitral tribunals, should have priority in determining whether a dispute is arbitrable or not.

Keywords: arbitrability, inarbitrability, public policy, material scope of arbitration, conflict of jurisdiction between national courts and tribunals, validity of arbitration agreement

Suggested Citation

Brekoulakis, Stavros, On Arbitrability: Persisting Misconceptions and New Areas of Concern. L. Mistelis, S. Brekoulakis, ARBITRABILITY: INTERNATIONAL AND COMPARATIVE PERSPECTIVES, pp. 19-45, Kluwer, 2009, Queen Mary School of Law Legal Studies Research Paper No. 20/2009, Available at SSRN: https://ssrn.com/abstract=1410285

Stavros Brekoulakis (Contact Author)

Queen Mary University of London, School of Law ( email )

67-69 Lincoln’s Inn Fields
London, WC2A 3JB
United Kingdom

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