ABSTRACT
Arbitration is based on the consent of the parties, but by the time a dispute has arisen, one party will often no longer wish to arbitrate. Legal systems around the world have progressively enlarged the boundaries of arbitrability, so that many types of disputes once argued to be inappropriate for arbitration, can be arbitrated. Different legal systems have different rules regarding when courts and arbitral tribunals may rule on the existence and validity of an arbitration agreement. The wording of an arbitration agreement may be sufficiently unclear that the parties disagree whether a particular dispute is covered by the agreement, even though they both acknowledge that there is an arbitration agreement between them. Not only are disputes presumptively arbitrable, but the boundaries of arbitrability have been progressively expanding in jurisdictions throughout the world. In the context of international commercial arbitration, pre-dispute arbitration agreements are unquestionably the norm, with only a minority of arbitrations arising from post-dispute arbitration agreements.
