chapter  4
17 Pages

Subject matter scope

Not all disputes can be submitted to the chosen court or arbitral tribunal. Procedural autonomy in deciding the method and forum of dispute resolution is limited by the subject matter. Whether a subject matter can be submitted to arbitration is called ‘arbitrability’. Arbitration is widely known as having ‘a private proceeding with public consequences’;1 some matters are reserved exclusively by courts, in order to protect public interest.2 Arbitrability is determined exclusively by state law and there is no international uniform standard. Comparatively, the scope of jurisdiction agreements is much broader. Although the parties, by using private agreements, decide the forum to dispose their disputes, the disputes are determined by court authorities, with state power behind the proceedings and judgments. Most disputes, as a result, can be subject to jurisdiction agreements, except those where state interest is involved and foreign disposal is inappropriate in relation to state sovereignty.