WHAT ARE ARBITRABLE MATTERS

The overview of arbitrable matters that you should know

CHAMAN LAW FIRM

2/4/2022 2 min read

WHAT ARE ARBITRABLE MATTERS

Arbitrable matters simply mean matter that can be easily resolve by the mechanisms of Alternative Dispute Resolution, which goes to the jurisdiction of the arbitration this the concept of Arbitrability. Arbitrability concerns whether a type of a dispute can or cannot be settled by arbitration. In practical terms, arbitrability answers the question of whether a subject matter of a claim is or not reserved to the sphere of domestic courts, under the provisions of national laws.

If the dispute is not arbitrable, the arbitral tribunal is limited in its jurisdiction and the claim must instead be submitted to domestic courts.

There may be restrictions regarding the capacity of a party to enter into arbitration agreements, which means that certain entities, (e.g., States or State entities) due to policy considerations, may not be allowed to enter into arbitration agreements or may require a special authorisation to do so (“subjective arbitrability”), or limitations based on the subject matter (“objective arbitrability”). Certain disputes may involve such sensitive public policy issues that are left exclusively to the jurisdiction of domestic courts by domestic law.

The arbitrability of a dispute may vary from one country to another, firstly, due to different policy considerations and, secondly, depending on how open the State is to arbitration. The general trend in national laws is towards a broader approach of allowing submission to arbitration of matters that have been traditionally outside of its scope, usually involving criminal law cases, family matters, or disputes of a commercial nature involving patents, antitrust and competition laws, bribery, corruption and fraud. These issues may be restricted to party autonomy, as manifestations of national or international public policy matters.

The Arbitration and Conciliation Act ("ACA") does not explicitly list conflicts that are not arbitrable. The test is whether the conflict can be settled legitimately by method for accord and fulfilment (United World Ltd Inc v MTS (1998) 10 NWLR 106). The accumulative opinion of the legal scholars is that any such matters that affect the legal status of any individual are not arbitrable. A recent court decision mentions that such commercial conflicts resulted out of the fiscal clauses of contracts are not arbitrable, as the debate impacts on the government's duty of tax collection.

Some examples as to arbitrable and non-arbitrable matters are as follows:

 Disputes that can be settled by arbitration include:

  1. Breach of contract

  2. Matrimonial causes

  3. Tort

  4. Compensation for acquisition of land.

Arbitration cannot be used in settlement of the following matters:

  1. Disputes involving crime

  2. Disputes involving the interpretation of the constitution or other statutes.

 

On this note, matters regarding agreement between parties are arbitrable matter which ADR will basically help to resolve dispute. But there are some matters that arbitration cannot be engaged to resolve this dispute which are mostly when it affects public policies.

 

 

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