NON-ARBITRABILITY OF DISPUTES: PROBLEMS OF DEFINITION

Abstract

The purpose of the article is to study the non-arbitrability doctrine, to analyze the existing scientific definitions of the concept of "arbitrability" and "non-arbitrability", and to study the main approaches of different countries' legislators regarding the limitation of arbitrability (positive and negative approaches).

As a result of the research, it was concluded that there is no conventional or legal definition of the concept of "non-arbitrability" as well as there is no single scientific definition of the term. The UN Convention "On the Recognition and Enforcement of Foreign Arbitral Awards" and the UNCITRAL Model Law on International Commercial Arbitration were analyzed with the purpose of settling the issue of non-arbitrability of disputes. The problem of the relationship between the non-arbitrability of the subject of the dispute was researched and the contradiction of the rendered decision with public order as grounds for annulment of the arbitration decision and refusal to enforce was reviewed. The author's position on the specified issue is presented.

The problems of choosing the legislation according to which the non-arbitrability of the dispute should be established were considered. The main positions of scientists on this issue are analyzed and the most popular approaches to determining the legislation to apply when establishing the arbitrability of a dispute are highlighted.

According to the comparative method, a review of the implementation of non-arbitrability concept of disputes in a number of foreign countries, in particular, in Sweden, France, China, Germany, Switzerland, etc was made. It was concluded that currently there exists the tendency to narrow the list of non-arbitrable disputes and it continues at both levels: the legislation of many countries and judicial practice. The categories of disputes that are recognized as non-arbitrable in the majority of foreign countries are defined.