The Law Governing Arbitrability

The non-arbitrability of the subject matter of a dispute may arise at various points in the procedure: from the outset until the recognition and enforcement stage. Since this issue might be raised at different stages of the procedure and before different fora, it is essential to examine what law should govern the issue of arbitrability.
The determination of the law applicable to objective arbitrability depends, in the first place, on whether it is decided by an arbitral tribunal, by a state court to which one of the parties has concurrently submitted the dispute or in the course of a setting-aside or enforcement procedure. While different opinions exist on the applicable law at each of these stages, many commentators have expressed a preference for applying the lex loci arbitri by the arbitral tribunal and lex fori by state courts. The aim of this paper is to review different approaches toward the applicable law on arbitrability and to demonstrate how the strict application of lex loci arbitri and lex fori may result in drawbacks. Having in mind that the rationale behind arbitrability doctrine is to protect exclusive jurisdiction of national courts in certain areas, the lex loci arbitri and lex fori would only be relevant to the extent that the exclusive jurisdiction of the national courts of the lex loci arbitri or lex fori is at stake