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Subject matter arbitrability

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  1. Introduction
  2. When the question of subject matter arbitrability is raised, by whom, and in front of whom
  3. Which law governs the enquiry as to subject matter arbitrability
  4. Substantive questions relating to subject matter arbitrability
  5. Conclusion

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.

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