International Commercial Arbitration is gaining traction in many countries around the globe. This particular branch of law is applied to solve major commercial disputes at the international level. Arbitrability answers the question whether a subject matter of a claim is or not reserved to the sphere of domestic courts, under the provisions of national laws.
The arbitrability of a dispute and what amounts to public policy may vary from one country to another, firstly, due to different policy considerations and, secondly, depending on how open the State is to arbitration. Non-arbitrability of a dispute renders the arbitration agreement invalid. One of the most debatable issues regarding arbitrability and public policy is the applicable law. The law governing arbitrability of a dispute may vary depending on whether it is decided by an arbitral tribunal, in accordance with the principle of Kompetenz-Kompetenz; by a State court to which one of the parties has simultaneously submitted the dispute; or in the context of an enforcement procedure.
There may be restrictions regarding the capacity of a party to enter into arbitration agreements, which means that certain entities, (e.g., States or State entities) due to policy considerations, may not be allowed to enter into arbitration agreements or may require a special authorization to do so (“subjective arbitrability”), or limitations based on the subject matter (“objective arbitrability”). Certain disputes may involve such sensitive public policy issues that are left exclusively to the jurisdiction of domestic courts by domestic law.
Keywords: Kompetenz-Kompetenz, Arbitrability, Public Policy
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