What is the meaning of substantive arbitrability?
Querist :
Anonymous
(Querist) 06 October 2011
This query is : Resolved
please someone answer my query.
ajay sethi
(Expert) 06 October 2011
evidencing the agreement by the parties that they “shall” arbitrate “any dispute . . . including the validity, scope and enforceability of these arbitration provisions.”
ajay sethi
(Expert) 06 October 2011
The issue (determined by the court, or under certain circumstances, by the arbitrator) of whether a particular dispute is within the scope of the parties' arbitration agreement or clause and therefore is subject to arbitration.
Dr V. Nageswara Rao
(Expert) 06 October 2011
the arbitrability of a dispute operates at two levels:
1. Is the idspute inherently arbitrable as per law? As a rule, for instance, criminal matters are not arbitrable. Hence, even if the parties agree to refer the criminal matter to arbitration, such an agreement is not enforceable.
2. Second level of arbitrability is, even if the diapute is arbitrable at first level, did the parties in fact agree to refer the particular dispute to arbitration: Does the particular dispute fall within the scope of the arbitration clause of the agreement?
In my view bothe levels can be looked into by the arbitral tribunal as well as the Court. The Internet definitions referred to by our friends above are nor clear.
Dr V. Nageswara Rao
(Expert) 06 October 2011
In three private sector case the United States Supreme Court established the following principles regarding the judiciary's role in the arbitration process. Those principles are:
1. Arbitration is contractual and neither party can be required to arbitrate a dispute it has not agreed to arbitrate.
2. Substantive arbitrability (whether the
subject matter of the dispute is arbitrable) is for the courts to decide, unless the parties empower the arbitrator to decide the issue.
3.The courts, in deciding substantive
arbitrability issues, must resolve all doubts in favor of coverage and not deny
arbitration "unless it may be said with
positive assurance that the arbitration
clause is not susceptible to an interpretation that covers the asserted dispute."
prabhakar singh
(Expert) 06 October 2011
I am in complete agreement of the view expressed by Dr V. Nageswara Rao.
