Arbitrability Trouble – Vol. 23 No. 3-4

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Author: George A. Bermann*

Published: August 2012

Description: The general notion of arbitrability is practically as old as arbitration itself, and yet it remains profoundly misunderstood, at least in U.S. arbitration law. For many – particularly outside the United States – arbitrability has a single and very precise meaning, signifying the legal capacity of a claim or dispute to be the subject of arbitration rather than litigation1 or, to borrow the language of the UNCITRAL Model Law and the New York Convention, signifying that a claim or dispute is “legally capable of being arbitrated.” By this understanding, a claim or dispute is “non-arbitrable” within a given legal system if the system’s legislature or, less commonly, the system’s courts acting on their own determine that its adjudication is reserved, as a matter of law, to the courts of that system. This represents what may be called arbitrability stricto sensu. To determine whether a claim or dispute is arbitrable or not, in this sense of the term, one needs essentially to consult the statute books and judicial gloss that may have been given to any particular statutory claim.
The narrowness of this definition of arbitrability has important consequences. In the first place, under this definition, the arbitrability or non-arbitrability of a claim or dispute should be readily ascertainable. It should not depend on the factual circumstances surrounding the claim. Used in this way, arbitrability entails a purely legal inquiry. Thus, however else one may understand the principle of arbitrator competence-competence, that principle would not prevent a …

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*Jean Monnet Professor of European Union Law and Walter Gellhorn Professor of Law; director, Center for International Commercial and Investment Arbitration (CICIA), Columbia Law School.