Analyzing the Arbitrability of Subject-Matter of Disputes in Arbitration

In both domestic and international arbitration, the arbitrability of the subject matter is a primary consideration before the courts and arbitral tribunals. When a party submits a dispute for arbitration, their opponent may resist the arbitration proceedings on the grounds that the dispute is non-arbitrable according to the law of the State and should only be decided by the competent court. In such situations, the arbitrator or court must decide whether a particular claim or dispute is capable of settlement by arbitration under the applicable law. The issue of arbitrability differs between countries and may also change over time. In most countries, disputes or claims relating to commercial or contractual matters are arbitrable, whereas criminal, family, bankruptcy, and insolvency matters are not. In many countries, legislation and judicial decisions have narrowed the scope of non-arbitrability in order to encourage arbitration between parties.