Autonomous Arbitrability? Whose Autonomy? Whose Arbitrability?

[Extract]
The analysis of whether there is an autonomous meaning of the phrase “capable of settlement by arbitration” in the New York Convention immediately raises two questions: whose autonomy and whose arbitrability?

Arbitrability restricts party autonomy to resolve certain disputes by arbitration. It preserves State autonomy by reserving a monopoly of justice for State courts to resolve certain disputes involving public interests. As such, it requires an intricate balancing act between the New York Convention’s pro-arbitration policy and its Contracting States’ interest in a “safety-valve” or “escape mechanism.” The precise approaches toward arbitrability may differ across jurisdictions. States’ autonomy to develop diverse legislative and judicial approaches to arbitrability therefore correlates with attempts at forum shopping for arbitrability based on party autonomy.

This chapter revisits the main controversies surrounding arbitrability and its applicable law under the New York Convention. The source of the ongoing debate on the interpretation of the phrase “capable of settlement by arbitration” is, paradoxically, the interplay of separate but related provisions in the New York Convention. As Article V(2)(a) together with Article II(1) and (3) demonstrate, arbitrability may need to be examined at the pre-award and at the post-award stage. The decision-makers may involve courts and arbitrators, and they may apply different criteria of arbitrability (e.g., objective versus subjective; domestic versus international). Moreover, different laws may be applicable to arbitrability. They include the law of the enforcement State, the law of the arbitral seat, and the law governing the arbitration agreement. Confusion between the concepts of arbitrability, validity, capacity and public policy has added to the complexity of these choice-of-law problems.