Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years?
International Arbitration (4th edition)
Under Argentine Law, matters that cannot be subject to compromise or settlement (historically interpreted as those concerning family law, rights in rem, goods or property considered not to be commercial and rights which cannot constitute the subject matter of a contract) cannot be submitted to arbitration (Art. 737 of the CP).
Further, Art. 1651 of the NCCC specifically provides that the following matters are excluded from any arbitration agreement: (a) those that refer to the civil status or capacity of persons; (b) family affairs; (c) those involving the rights of users and consumers; (d) adhesion contracts, whatever their purpose; and (e) those derived from labor relations.
Any pecuniary claim that lies within the jurisdiction of the courts may be submitted to arbitration. Non-pecuniary claims may be submitted to arbitration to the extent parties are able to conclude a settlement agreement on the matter in dispute. Disputes that fall into the competence of the administrative authorities are not arbitrable.
Family law matters as well as all claims based on contracts that are — even only partly — subject to the Tenancy Act (Mietrechtsgesetz) or to the Non-Profit Housing Act (Wohnungsgemeinnützigkeitsgesetz) as well as all claims concerning condominium property may not be made the subject of an arbitration agreement. In addition, certain (collective) labour and social security matters are not arbitrable.
Disputes involving consumers or employees may only be submitted to arbitration (with additional formal requirements) after the dispute has arisen. The additional formal requirements are extensive, rendering arbitration agreements in these areas highly impracticable.
Pursuant to Art.19, para.1 of CPC, any civil or commercial property dispute is capable of settlement by arbitration except for disputes in respect of any rights in rem or possession of real estate, maintenance obligations (e.g. alimony) or rights under an employment relationship or dispute. Per argumentum a contrario from the provision of Art.19 of CPC, any dispute other than a civil or commercial property dispute is also not allowed to be settled by arbitration. These are either disputes that are not civil or commercial, e.g. administrative disputes or non-pecuniary disputes or the legal status of a natural person or legal entities. The amendments of 2017 included in the scope of exceptions of Art.19, para.1 of CPC and disputes where one of the parties is a consumer under §13, item 1 of the Additional Provisions of the Consumer Protection Act.
The FAA provides that it does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. The Supreme Court recently held that a court, rather than an arbitrator, should decide a dispute regarding whether a party falls under the exemption for “contracts of employment” of transportation workers before ordering arbitration. New Prime Inc. v. Oliveira, 139 S.Ct. 532, 537 (2019).
The Supreme Court also recently ruled that the FAA does not allow a court to compel class arbitration when the agreement does not explicitly provide for such because the courts may not infer consent to class arbitration through state-law interpretation of an ambiguous contract. Lamps Plus, Inc. v. Varela, 139 S.Ct. 1407, 1418 (2019).
Additionally, there has been recent pushback to arbitration generally in the United States from some legislators. As discussed above, lawmakers have proposed legislation called the Forced Arbitration Injustice Repeal Act of 2019, or the FAIR Act, which, if enacted into law, would prohibit pre-dispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes, and prohibit agreements that interfere with the right of individuals, workers, and small businesses to participate in joint, class, or collective related to an employment, consumer, antitrust, or civil rights dispute. FAIR Act, S. 610, 116th Cong. § 2 (2019).
In Canada, criminal matters are non-arbitrable. Otherwise, the arbitrability of a dispute depends on the laws of the relevant province or territory. In Quebec, for example, disputes about “the status and capacity of persons, family matters or other matters of public order” are non-arbitrable (art. 2639 of the CCQ). Further, in Ontario, disputes about certain consumer agreements are non-arbitrable. See s. 7(2) of the Consumer Protection Act, 2002, SO 2002 c 30, Sched A and TELUS Communications Inc v Wellman, 2019 SCC 19.
(a)The types of disputes which are considered non-arbitrable are criminal, matrimonial and family matters and disputes concerning minors and disputes of public policy.
(b)There hasn’t been any evolution in recent years.
Under Czech law, property disputes are arbitrable if the parties are allowed to settle on the subject of the dispute, i.e. basically where is no public interest present. This is typical for property rights.
However, non-arbitrable disputes include those arising out of contracts concluded between a consumer and an entrepreneur (since 2016), enforcement disputes and incidental disputes (disputes within insolvency proceedings).
UAE- Federal Jurisdiction
Commercial disputes which relate to the registration of real estate, insurance policies and commercial agencies are generally not arbitrable. The arbitrability of each dispute will, however, be considered on its own merits.
UAE - Common Law Jurisdictions
Although Article 41(2)(b)(i) and 44 (1)(b)(iv) of the DIFC Arbitration Law and Articles 53(2)(b)(i) and 57(1)(b)(i) of the ADGM Regulations provide for the possibility of a subject-matter not being capable of settlement by arbitration, there is no prescriptive list within either of these laws as to what matters may not be arbitrable.
Both contractual and non-contractual disputes can be submitted to arbitration (s.6(1) of the 1996 Act, see also Fiona Trust & Holding Corporation v. Privalov (2007) UKHL 40). Examples of non-arbitrable matters under English law include criminal matters, insolvency proceedings (which are subject to the statutory regimes set out in the Insolvency Act 1986), certain family law matters and certain instances where a statutory body has jurisdiction over particular disputes (see Clyde & Co LLP v Bates van Winkelhof  EWHC 668, where an employee had statutory rights to have their case heard before an employment tribunal). Consumer disputes for sums under £5,000 are not arbitrable pursuant to the Unfair Arbitration Agreements (Specified Amount) Order 1999 (SI 2167/99).
S 11(1) of the IAA states that ‘[a]ny dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless it is contrary to public policy to do so’. There is no exhaustive list of types of disputes the resolution of which by arbitration would be contrary to public policy and that are, therefore, non-arbitrable in Singapore. The Singapore Court of Appeal has recognized several types of disputes that may be non-arbitrable, however, based on the legislative histories of the AA and the IAA in the case of Larsen Oil and Gas Pte Ltd v Petropod Ltd (in official liquidation in the Cayman Islands and in compulsory liquidation in Singapore),  3 SLR 414 [Larsen] at . Areas of law that the Larsen Court recognized to have public interest elements that may give rise to non-arbitrability include:
- • citizenship or legitimacy of marriage;
- • grants of statutory licenses;
- • validity of registration of trademarks or patents;
- • copyrights;
- • winding-up of companies;
- • bankruptcies of debtors; and South Korea singapore
- • administration of estates.
Additionally, in the case of Maniach Pte Ltd v L Capital Jones Ltd and another,  3 SLR 801 at 162, the High Court of Singapore held that a statutory minority oppression claim under s 216 of the Companies Act was non-arbitrable.
The 2016 amendment to the Arbitration Act (the “Act”) broadened the definition of the term “arbitration” from a procedure to resolve “any dispute in private laws” to a procedure to resolve “a dispute over a property right or a dispute over a non-property right, which can be settled by compromise between parties” (Article 3(1) of the Act). There still remains a difference of opinions regarding whether the elimination of the “private laws” restriction in the definition of arbitration should be interpreted to encompass antitrust, environmental, and intellectual property disputes.
Objective arbitrability is dealt with at section 1030 (1) ZPO. Any claim involving an "economic interest" ("vermögensrechtlicher Anspruch") is arbitrable. The German arbitration law hence differs from the UNCITRAL Model Law which requires a dispute to be "commercial" for its arbitrability.
An arbitration agreement concerning claims not involving an economic interest shall have legal effect to the extent that the parties are entitled to conclude a settlement on the issue of the dispute.
There is a number of matters which are considered non-arbitrable under German law. The following list is not exhaustive:
- Pursuant to section 1030 (2) ZPO, an arbitration agreement relating to disputes on the existence of a lease or residential accommodation within Germany shall be null and void, except for residential accommodations as specified in section 549 (2) Nos. (1) to (3) BGB.
- Divorce, child custody matters, issues of family status, criminal law matters are not arbitrable.
- Employment matters are only arbitrable in accordance with specific provision of the German Labour Court Act.
- Matters typically involving third party interests may be considered non-arbitrable, such as disputes about the existence of a patent or shareholder disputes aiming at erga omnes effect (unless the parties obey the strict rules formulated by the Federal Supreme Court for certain company types (GmbH and KG) in the decisions Schiedsfähigkeit II and Schiedsfähigkeit III in 2009 and 2017, respectively; the DIS has enacted Supplementary Rules for Corporate Law Disputes that aim to comply with the Federal Supreme Court's rulings).
Pursuant to section 1059 (2) no. 2 a) ZPO, an award can be set aside if the court finds that the subject-matter of the dispute is not capable of settlement by arbitration under German law.
Non- Arbitrable disputes are following -
- Matrimonial disputes (relating to divorce, judicial separation, restitution of conjugal rights and child custody);
- Guardianship matters;
- Insolvency and winding-up matters;
- Matters relating to public charities or public charitable trusts under the Public Trusts Act;
- Testamentary matters (grant of probate, letters of administration and succession certificate); and
- The enforcement of a mortgage has been held to be a right in rem for which proceedings in arbitration would not be maintainable
- In the matter A. Ayyaswamy vs. A. Paramasivam and Ors. , the Hon’ble Supreme Court held that following are the disputes which are considered non-arbitrable:
- Disputes relating to rights and liabilities which arise out of criminal offences
- Eviction or tenancy matters.
- Patent, trade-marks and copyright
- Anti-trust/competition laws;
- Bribery/corruption laws
There has been no evolution in the types of non-arbitrable disputes in recent years. Only disputes within the fields of trade and commerce are considered arbitrable. To take one example, a dispute concerning a right over n intellectual property under a licencing agreement may be resolved through arbitration.
Pursuant to § 599 of the Liechtenstein CCP, any claim involving an economic interest ("vermögensrechtlicher Anspruch") in relation to which the ordinary courts would have jurisdiction may be the subject matter of an agreement to arbitrate.
An arbitration agreement, the subject matter of which does not involve an economic interest, has nevertheless legal effect to the extent that the subject matter can be resolved by way of a settlement.
Family law matters and claims under apprenticeship contracts pursuant to the Law on Vocational Training are not arbitrable (§ 599 para. 2 of the Liechtenstein CCP).
§ 599 para. 3 Liechtenstein CCP finally provides that the jurisdiction of the Liechtenstein courts in proceedings that can only be initiated on the basis of mandatory provisions of Liechtenstein law (i.e. ex officio or upon application or notification by the foundation supervisory authority or the public prosecutor) may not be waived by an arbitration clause in the articles or statutes or similar constitutional documents of a corporate entity, foundation or trust.
With respect to commercial disputes, there is no doubt that such disputes are arbitrable. With respect to certain non-commercial disputes involving corporations, foundations or trusts the prevailing opinion is that such disputes are arbitrable unless these proceedings would aim at the initiation of supervisory proceedings. Claims for the removal of a member of the Foundation Council of a Liechtenstein foundation and claims for the rescission or nullification of resolutions of the Foundation Council of a Liechtenstein Foundation are not arbitrable.
Previously, Section 4(1) of the Arbitration Act provided that any dispute which parties have agreed to submit and/or refer to arbitration may be determined by arbitration unless the arbitration agreement is contrary to public policy.
However, amendments to the Arbitration Act has been made and post amendments, under section 4(1) of the Arbitration Act, another category of dispute which may not be “arbitrable”, aside from public policy, are matters where the subject matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia.
See for example the Federal Court decision in Arch Reinsurance Ltd v Akay Holding Sdn Bhd  1 CLJ 305 where the Federal Court held that a private agreement to curtail a statutory right of a charge to an indefeasible title of land and to sell charged security in the event of default by a chargor was contrary to public policy on the basis that the National Land Code of Malaysia which sets out the rights and remedies of parties under a statutory charge over land, are exhaustive and exclusive. In this respect, the Federal Court held as follows:-
‘ The NLC is a complete and comprehensive code of law governing the tenure of land in Malaysia and the incidence of it as well as other important matters affecting land: United Malayan Banking Corp Bhd v. Pemungut Hasil Tanah, Kota Tinggi & Another Case  2 CLJ 146;  1 CLJ (Rep) 51;  2 MLJ 87. In Kimlin Housing Development Sdn Bhd v. Bank Bumiputera (M) Bhd, it was held that the provisions of the NLC setting out the rights and remedies of parties under a statutory charge over land comprised in Pt XVI are exhaustive and exclusive and any attempt at contracting out of those rights unless expressly provided for in the Code - would be void as being contrary to public policy. Hence, the dispute triggered by the statutory notice of demand in Form 16D is not arbitrable under s. 4(1) of the Arbitration Act 2005’
Yes, for example, the Hydrocarbons Law, establishes the non-arbitrability of disputes involving administrative rescission; the Law of Public Works and Related Services and the Law of Acquisitions, Leases and Services of the Public Sector excludes arbitration from matters regarding the validity of the administrative rescission or the early termination of contracts entered into by the private sector with public entities.
Apart from the above, all family and criminal matters are not arbitrable and of exclusive jurisdiction of national courts.
The ACA does not set out the disputes that are considered non-arbitrable. However, section 57 of the ACA defines arbitration to mean commercial arbitration, and “commercial” entails all relationships of a commercial nature. Further, the full title of the ACA states that it is an Act to provide a unified legal framework for the fair settlement of commercial disputes by arbitration and conciliation. Disputes arising from non-commercial transactions may not be referred to arbitration under the ACA. Criminal prosecutions, proceedings for the judicial review of administrative action and proceedings to dissolve marriages, for example, are unabitrable. See United World Ltd Inc v MTS (1998) 10 NWLR (Pt. 568) 106. One can find broader suggestions that issues as to whether a conduct amounts to a crime or a payment or transaction is taxable (Esso Petroleum and Production Nigeria Limited & SNEPCO v NNPC, Appeal CA/A/507/2012), or whether given parties are or were truly married are all non-arbitrable, but these all appear, strictly speaking, to be overbroad. The test is usually whether the dispute can be compromised lawfully by way of accord and satisfaction (United World Ltd Inc v MTS (1998) 10 NWLR (Pt. 568)106).
Yes – in addition to the general requirement that the dispute must be concerned with the legal relations between the parties, only disputes settled by agreement pursuant to Norwegian law may be referred to arbitration. For instance, parties cannot settle disputes concerning criminal acts or other disputes involving public concerns, while disputes concerning the civil law implications of competition law matters may be referred to arbitration. There has not been any specific evolution in this regard in recent years.
The tribunal's competence may be challenged. This also includes whether the parties are entitled to refer the dispute to arbitration – a question that the tribunal considers ex officio.
If a Norwegian court finds that the subject matter of the dispute was incapable of settlement by arbitration pursuant to Norwegian law, recognition and enforcement of the arbitral award may be refused or the award may be set aside.
Yes. The ADR Act does not apply to the resolution or settlement of labor disputes, the determination of the civil status of persons, validity of a marriage, existence of grounds for legal separation, jurisdiction of courts, future legitime, future support, criminal liability, and other matters that cannot legally be the subject of compromise. (Sec. 6, ADR Act)
Any dispute may be arbitrable except for the following:
- Disputes relating to personal status
- Matters not subject to settlement
- Disputes between the Saudi Government or any of its agencies and other parties (whether Saudi or foreign), including under government procurement contracts, without first obtaining official approval.
Parties may have recourse to arbitration with respect to any right that they freely enjoy (French Civil Code, Article 2059). Article 2060 of the French Civil Code provides that the only disputes that cannot be resolved by arbitration are those relating to civil status and capacity of natural persons, divorce and judicial separation of spouses, or disputes involving public authorities and entities and more generally any matter of public policy.
In the case of an international employment contract containing an arbitration clause, the French courts once considered that the arbitration clause was not valid and that the employee was free to initiate a claim before the French Employment Courts (French Court of Cassation, Social Chamber, 16 February 1999, No. 96-40.643). Now, according to Article 2061 of French Civil Code, an arbitration clause involving a consumer is legal. Nevertheless, following the 2016 reform, the second paragraph of this article provides that the clause cannot be relied on against a party which did not contract in a professional capacity.
Yes, the EAL provides that any matter that is not capable of settlement is non-arbitrable (article 11). Non-arbitrable matters principally pertain to matters of personal or family status, public policy, criminal matters, or rights in rem relating to immovables such as registration of real estate mortgages.
Otherwise, the EAL requires that the right subject to arbitration be of an economic nature (article 2).
Due to Art. 1 of the LAM that provides that the arbitration can take place in disputes arising in matters subject to transaction, it is understood that all all matters that are not subject to transaction cannot be submitted to arbitration. In Ecuador matters that are considered as not subject to transaction are: civil status, almost all criminal matters, tax and in general those that are considered as public order matters.
Pursuant to articles 229-230 of the Chilean Judiciary Code, family law, criminal law, specific matters submitted to the lowest courts of the country, disputes against two individuals being one the legal representative of the other, and the disputes in which a judicial prosecutor must be heard, are not arbitrable.
IP disputes, disputes submitted to specialised courts like antitrust/competition, and employment/labour are not arbitrable either, are not arbitrable either.
In general, there has been no evolution in this regard. The exception is the arbitrability of differences in the process of collective negotiation –belonging to the domain of labour law.
In international arbitration, art. 177 para 1 PILA and the case law of the Swiss Federal Tribunal provide for a broad definition of disputes deemed arbitrable as any dispute of financial interest, i.e. any claim that ultimately pursues an economic purpose, may be subject of an arbitration procedure. Thus, also monetary claims in family and inheritance law, monetary claims relating to intellectual property and competition as well as antitrust law are deemed arbitrable in Switzerland. Thus, solely matters concerning the legal status (e.g. marriage, separation, divorce, matrimony, paternity, adoption etc.) and some matters relating to insolvency law (opening of bankruptcy proceeding, arrest etc.) are deemed non-arbitrable in international arbitration.
In contrast thereto, the definition of arbitrability in Swiss domestic arbitration is more restrictive than its understanding in Swiss international arbitration. Pursuant to art. 354 CPC, a dispute may only be submitted to an arbitral tribunal if the parties are free to dispose over the rights and duties in question. In particular and contrary to the situation in international arbitration, labor law disputes in a domestic context are solely arbitrable if the respective arbitration agreement was concluded a minimum of one month after the end of the employment relationship (art. 341 para 1 Swiss Code of Obligations). In addition, labor law rights confirmed by the Swiss Code of Obligations as non-waivable will also not be deemed arbitrable in a domestic context.
The notion of arbitrability in Switzerland did not undergo any major changes throughout the last few years. The interpretation of arbitrability continues to be broad, particularly in international arbitration. Also the partial revision of the PILA will not change this situation.
As mentioned, Article 1, Paragraph 2 of the AL provides that only disputes that may be resolved through settlement can be resolved through arbitration. Examples of disputes that may not be submitted to arbitration include domestic violence/family matters, criminal matters, competition law violations, and patent & trademark validity matters.
The arbitrability question is controlled by article 867 GrCCP as regards domestic and international commercial arbitration alike. It provides that any private law dispute may be referred to arbitration as long as the parties are vested under law with the power to freely dispose of its subject matter. Certain classes of disputes which meet said prerequisite are nevertheless expressly excluded on the basis of other considerations. This holds true for example as regards labor disputes, the exclusion of which is premised upon the perceived necessity to protect the interests of employees.
Said doctrine is well-established in legal literature and case law. No recent developments exist. There is an ever-growing body of case law ruling on the arbitrability of certain types of disputes along lines which are indeed predictable given the said standard derived from substantive law.
Under Turkish law, parties can freely agree to arbitrate any dispute as long as the subject matter of the dispute are at parties’ free disposal. It is explicitly stipulated that the disputes related to real rights concerning immovables and to disputes that are not within the parties' disposal are non-arbitrable.