Arbitrability of Company Law Disputes: A Comparative Patchworking

Abstract

The paper addresses three questions related to the arbitrability of corporate disputes: the rationale behind the concept of arbitrability at large; the law governing the question of arbitrability and the major arbitrability issues of company law disputes. It argues that arbitrability is predominantly not a public policy but a jurisdictional question and, thus, the exclusive application of the lex fori is not warranted in this regard. This leads to the conclusion, that in matters outside exclusive court jurisdiction, arbitrability should be limited only in case of genuine public policy reasons. Finally, it is argued that, in company law disputes, the third-party effects should, as far as possible, not be treated as an arbitrability issue but rather as a question of the arbitral award’s scope (inter-partes effects).

Keywords: Arbitrability, Arbitration, Corporate Disputes, Lex Arbitri

JEL Classification: K40, K41, K49