Arbitrability

This article deals with the question of what law is applicable to the issue of arbitrability in international arbitration. In the article, I find that the New York Convention allows for the contracting States to use whatever choice of law rules they find appropriate. Hence, the answer to the question of what law applies to the issue of arbitrability in international arbitration depends on in what stage and what forum the question arises. Despite the wide range of different approaches, there are general conflict of law aspects that actors in international arbitration need to take into consideration de lege lata. The parties to an arbitration agreement always need to consider how arbitrability is regulated in the lex loci arbitri, the lex loci executionis, and the law of the country that would have jurisdiction if the arbitration agreement were not arbitrable. From a de lege ferenda perspective, the role of arbitrability might be worth reconsidering for national legislators. If a country wants to attract international arbitration, it is generally beneficial to have as liberal and simple rules on arbitrability as possible. In the article, I make three suggestions on how to legislate on arbitrability in international arbitration. First, it is wise to separate domestic arbitrability from international arbitrability. Second, a national arbitration act should never require that the arbitrators take foreign arbitrability into consideration. Third, the typical rationale of arbitrability can be achieved just as well through public policy provisions. For a State that wants to attract international arbitration, it is wise to keep arbitrability exceptions at an absolute minimum and instead consign the arbitrability considerations to public policy provisions. This has the advantage of allowing for arbitration in more matters.