CEU Electronic Theses and Dissertations, 2007
| Author | Ngenge, Yuhniwo |
|---|---|
| Title | THE SCOPE OF ARBITRABILITY |
| Summary | When a court is seised with a matter for judicial determination, the judge generally turns to the various rules of positive law to determine the source and scope of his power over the issue submitted to him for adjudication. This is because his adjudicative jurisdiction finds its basis in a systematized legal order . This jurisdiction is usually general in nature, encompassing both criminal and civil matters. By contrast, in private dispute resolution, the private judge’s jurisdiction to decide a matter submitted to him for determination may not be so broad. This might result partly from limitations imposed on him by the parties, and partly from restrictions imposed by the law, or from both. For instance, in the area of international arbitration today, it is common to find such restrictions on the arbitrator’s power, whether by party agreement or by law. Through extensive data and case analyses, I will examine the scope of the principle of arbitrability in international commercial arbitration. The focus will be on the extent of its applicability on commercial claims, which, though forming part of a private dispute settlement agreement by arbitration, remain excluded from the jurisdiction of arbitration tribunals. Main areas discussed include, anti trust and competition claim, securities claims, intellectual property and bankruptcy disputes. A discussion of the recent decisions on the cases in this area will also reveal that the scope and applicability of the doctrine has undergone serious decline today. The reason is that the vast majority of contemporary interpretations of the doctrine show increasing judicial preference for the arbitrability of previously non-arbitrable claims. Such a finding implies that as global commerce expands and more actors continue to prefer arbitration, the distinction between arbitrable commercial claims and non-arbitrable commercial claims by courts may be losing its practical importance. |
| Supervisor | Varady, Tibor |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2007/ngenge_yuhniwo.pdf |
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