Arbitrability Petr Šmerkl Bohuslav Lichnovský Arbitrability lDefinition: -“The characteristic of being arbitrable; the ability to be arbitrated.” Subjective Arbitrability lThe term “subjective arbitrability” refers to the competence of the parties that enter into an agreement to arbitrate. lUnder some jurisdictions, some parties cannot enter into the arbitration agreement. lThe state and its bodies are usually barred from entering such agreements -Notable exception: In the investment arbitration, the state is always the respondent. Objective arbitrability lThe term “objective arbitrability” refers to the types of disputes that can be resolved through the arbitration proceeding lSignificant distinctions between the countries lUsually non-arbitrable: -Affecting third parties -Regarding the status of persons -Family law -Insolvency, bankruptcy lThe selected fields are non-arbitrable because of a protection of the public order Arbitrability - why is it important to examine it? lNon-arbitrable disputes cannot be resolved by arbitration, belong exclusively to the courts B. Lichnovský, 325464 Arbitrability - why is it important to examine it? lNational courts can be less impartial than arbitral tribunals. lNational courts tend to protect public interest – family law, criminal law, even protection of national companies lLitigation is more expensive and time consuming.. lMore pros and cons mentioned earlier Problems with non-arbitrability lOne party may allege that arbitral tribunal has no jurisdiction lOne party may apply to courts for injunction that subject is not capable of arbitration lOne party may commence legal proceedings at the court Problems with arbitrability lCourt must examine, whether the arbitration clause is valid, null, void, inoperative or incapable of being performed lPresumption in favour of the validity of arbitration agreements lNot valid AC → Award of arbitral tribunal may be unenforceable Arbitrability in different countries lCzech republic – zákon o rozhodčím řízení – procedural law lSlovakia – zákon o rozhodcovskom konání – procedural law lGermany – Zivilprocessordnung – procedural law lFrance – Code civile – substantive law lUK – Arbitration act – substantive law lUSA – United states federal arbitration atc – substantive law