In determining whether a dispute is “subject to arbitration”, a practitioner should use relevant national or international law, depending on the place and stage of the proceedings at which the issue is raised (see also applicable law).6 As the ICSID Court has stated, “arbitrability is governed by the law applicable to the arbitration or arbitration clause”.7 With respect to the Convention of the International Centre for Dispute Settlement between the Investment disputes (“ICSID Convention”) are as follows: there is no reference to the concept of arbitrability. Article 25 determines, inter alia, the scope of the issues submitted to ICSID arbitration and, in particular, the parties may expressly exclude a particular issue from the jurisdiction of the Tribunal in accordance with paragraph 4. Therefore, the issue of arbitrability is addressed in the ICSID Convention by using a general term of “jurisdiction” instead of arbitrability. [5] In New York, the courts will apply an arbitration agreement and will not remove the issue of arbitrability from the arbitrator if the parties expressly provide for it: First faci test – The Vidya Drolia II tribunal held that the court`s jurisdiction to consider the prima facie validity of an arbitration agreement includes the following issues: However, the amendment of section 8 of the Act in 2015 resulted in uncertainty regarding the jurisdiction of the Tribunal has the power to rule on the arbitrability of disputes during the pre-arbitration phase. A dispute arose over whether the Port Authority improperly allowed one of the successor tenants, the non-partisan Westfield Corporation (“Westfield”), to “rename” the World Trade Center`s visual identity in violation of certain design standards under the agreements. In particular, the dispute concerned the signage that Westfield had placed in certain retail areas of the site and the possible location of two kiosks in the room: “Does the legal barrier contained in section 35 of the Indian Stamp Act, 1899 apply to instruments subject to stamp duty under section 3, which reads in the schedule to the Act, Would the arbitration agreement contained in such a document, which is not subject to payment of stamp duty, also be considered non-existent, unenforceable or invalid until payment of stamp duty on the contract/material document? “***] Arbitral tribunals which are not courts or which have been established under the auspices of the State may not bring legal proceedings to concern those who: who are not bound by the arbitration clause. [28] Thus, the Court extended the non-autonomy of rights in rem to matters involving third parties and non-signatories to arbitration agreements. At a time when, particularly in view of the increasing number of multi-party and multi-contractual disputes, the consolidation and communitarization of third parties in arbitration proceedings is the subject of much debate, the Supreme Court`s observations are significant. Double filter test – The law as previously established in the case of M/s Duro Felguera S.A.c.M/s Gangavaram9; limited the judicial review of a claim under Article 11(4) of the Arbitration Rules to `the existence of an arbitration agreement`. Interestingly, in Garware Wall Ropes Limited v. Coastal Marine Constructions and Engineering Limited10 (“Garware Wall Ropes”), it was held that an agreement becomes a contract only if it is legally enforceable.
Enforceability would be decided on the basis of contract law, which allows courts to deal with both the existence and validity of an agreement. Citing Garware Wall Ropes` decision, the Supreme Court ruled in this case, after lengthy deliberation, that the phrase “existence of an arbitration agreement” in section 11 of the Arbitration Act would also include the “validity” aspect of an arbitration agreement, although the court would use the prima facie test in the cross-reference phase. There may be restrictions on a party`s ability to enter into arbitration agreements, which means that some companies (e.B. States or government agencies) may not be permitted to enter into arbitration agreements or require special authorization to do so for political reasons (“subjective arbitrability”) or object-based restrictions (“objective arbitrability”). Certain disputes may concern sensitive questions of public policy which, under national law, are left exclusively to the jurisdiction of the national courts. [2] Antitrust and competition law may be limited to arbitration because of their influence on the structure of the market and may not be subject to arbitration. Arbitration is an alternative to court proceedings. This is an adversarial procedure in which the parties can call witnesses and present evidence to a neutral arbitrator or panel of arbitrators.
The rules of discovery and proof are relaxed to make it a shorter and more cost-effective process. A retired lawyer or judge who works for a private company conducts the proceedings. .