UK & Europe
On 30 March 2022, Clyde & Co Paris hosted a conference entitled “Arbitrability: Decoding the Present and Predicting the Future”, offering an interesting overview on the different perspectives and questions that the issue of arbitrability raises and how arbitral tribunal may address these.
The panellists were Bernard Hanotiau, partner at Hanotiau & van den Berg, Jennifer Kirby, independent arbitrator, Loukas Mistelis, professor at Queen Mary University of London and partner at Clyde & Co and Annet van Hooft, independent arbitrator. The event was moderated by Nadia Darwazeh, partner and Head of Arbitration at Clyde & Co Paris, and introductory remarks were given by Ben Knowles, partner, and Head of the global Dispute Resolution Practice Group at Clyde & Co.
The conference began with an innovative keynote speech by Professor Loukas Mistelis on “Promethean Arbitration: Democratisation, Sharing Gifts and Expansion” and a presentation by Nadia Darwazeh on the prominence of the issue of arbitrability.
The panel discussion first focused on the law applicable to the issue of arbitrability. While the panellists agreed that there is no clear-cut answer, they shared slightly different views. Loukas Mistelis considered that arbitrability should be assessed based on the law of the seat or the law of the place of the likely enforcement of the award. Annett van Hooft considered that arbitrability should be studied from all possible aspects whereas Bernard Hanotiau considered that the arbitral tribunal should stick to the law of the agreement and turn to the law of the seat if there are contradicting provisions between the two laws. Jennifer Kirby stressed the importance of the law of the seat of arbitration, as an arbitral tribunal’s primary objective is to render an award that will not be set aside. Ultimately, all four panellists agreed that the issue of arbitrability is particularly challenging when the matter is one of public policy.
After highlighting the differences between objective and subjective arbitrability, the panellists shared their insights on whether the arbitral tribunal had the duty to raise the issue ex officio. According to Professor Loukas Mistelis, such duty lies on the tribunal if arbitrability is a matter of jurisdiction. According to the three other panellists, an arbitral tribunal should raise the issue ex officio if the matter concerns public policy.
Finally, the panellists reflected on the recent evolution of arbitrability and the prospects for the future. While Loukas Mistelis pointed out that, in certain countries, progress was still needed, all four panellists agreed that, all in all, more matters had become arbitrable. Jennifer Kerby explained that in the US virtually, all matters are arbitrable. Looking to the future, all four panellists were optimistic as to the future evolution, but Bernard Hanotiau and Annet van Hooft expressed reservation on the fact that not all matters should become arbitrable.
Nadia Darwazeh concluded the conference by thanking the panellists and highlighting the link between arbitrability and diversity, the theme of the 2022 Paris Arbitration Week.