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Chapter 4 Arbitrability

Chapter 4 Arbitrability. Definition. Whether the dispute under the arbitration agreement could be settled by arbitration. Why not arbitration. Public interest consideration Different interpretation in different period of time even in the same state.

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Chapter 4 Arbitrability

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  1. Chapter 4 Arbitrability

  2. Definition • Whether the dispute under the arbitration agreement could be settled by arbitration

  3. Why not arbitration • Public interest consideration • Different interpretation in different period of time even in the same state

  4. Sion Soleimany (father) v. Abner Soleimany (son) p.118 • Engaged in the export of Persian carpets from Iran in contravention of Iranian Revenue Laws and export controls • Award • Court procedures

  5. Non-arbitrable Matters • By statute • By case

  6. Applicable law • Proper law of the contract • Proper law of the arbitration agreement • Law of the place of arbitration • Lex loci

  7. Authorities that decide the applicable law • Arbitral tribunal • National court the court with jurisdiction where the arbitration is taken place where the enforcement is sought

  8. SPA Italy v. MOD Iraq p.129 • Ks to build ships for Iraq navy b/w the parties with arbitration clause • Effect of UN embargo in 1990 on the Ks • SPA’s claim for the frustration of Ks and damages before Ks were performed • Ct. of first instance – no jurisdiction • Ct. of Appeal: non-arbitrability of the case according to Italian law

  9. State’s capacity to arbitration and applicable law • ELF Aquitaine Iran (France) v. National Iranian Oil Company (NIOC) p.135 • K b/w NIOC and ERAP(French state agency) & Sofiran • ERAP entitled to buy certain discovered oil at a preferential price • ERAP transferred rights to ELF • Arbitrability of the dispute on nationalization issues • The arbitrator ruled his own jurisdiction

  10. M.S.A. (Belgium) v. Co. M. (Switzerland) p.151 • Exclusive distributorship agreement between the parties with Swiss Law applicable • Arbitration agreement is invalid under the Belgian Law because the subject matter is non-arbitrable. • Belgian District Ct. granted the claim • Ct. of Appeal reversed on the ground that arbitrability is ascertained according to the law which applies to the arbitration agreement

  11. Securities Arbitration • Wilko v. Swan (1953) • Sherk v. Alberto-Culver Co. (1974) • Rodriguez v. Shearson/American Express (1989)

  12. Arbitration for IP Rights • Dispute over the validity of the rights • Dispute under the licensing agreements • US practices

  13. Antitrust Claims • American Safety Equipment Corp. v. J.P. Maguire & Co. (1968)：反托拉斯法项下的争议不宜通过仲裁方式解决。 • Mutsubishi Motors Corp. v. Soler Chrysler-Plymouth(1985)：合谋划分市场的违反反托拉斯法的请求权项可以通过仲裁的方式解决。

  14. Labor dispute • Arbitrable unless the law provides otherwise

  15. Practices in China • Arbitration Law Art. 2 • Securities • Intellectual properties • Labor disputes

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