Law Applicable to Arbitrability: Revisiting the Revisited Lex Fori
ARBITRABILITY: THE INTERNATIONAL AND COMPARATIVE PERSPECTIVES, L. Mistelis, S. Brekoulakis, eds., pp. 99- 119, Kluwer 2009
23 Pages Posted: 5 Jun 2009
The paper examines the issue of what law applies to determine whether a dispute is arbitrable or not, which is a question effectively related to the role and the interests that a State has in arbitration proceedings that take place within its territory. As the relevance of public policy in the arbitrability discussion has been considerably waned in the last decades, the predominance of the lex fori as the law applicable to arbitrability makes less and less sense. The aim of the paper is to revisit the scope of the application of lex fori to arbitrability, under the light of the new theories on the rationale behind inhabitability. In particular, the paper argues that all arbitrability provisions are conflict of jurisdiction rules, whose objective is to delineate the area of exclusive jurisdiction of its national courts. From this jurisdictional viewpoint, the lex fori should not be considered as the default applicable law; rather, it would only be relevant if the actual dispute pending before the tribunal has any territorial or other jurisdiction connection with the national state of the lex fori.
Keywords: Conflict of laws, lex fori, applicable law, arbitrability, inarbitrability, public policy, material scope of arbitration, conflict of jurisdiction between national courts and tribunals
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