Arbitrability and Public Interest in International Commercial Arbitration

Abstract

Summary The aim of this article is to analyse the mutual relationship between arbitrability and public interest. The definition of arbitrability has remained in the domain of national law; there is no internationally unified definition, although a common trend towards the extension of its scope may be observed. There is no doubt about arbitrability in disputes concerning only the individual interests of the parties. However, if the dispute shows elements of public interest, it does not automatically imply that it is not arbitrable. A sign of equation thus cannot be put between public interest and inarbitrability. Disputes arising from economic activities involving public interest can be resolved before the arbitral tribunals. This for instance includes private-law enforcement of competition rules (including EU ones), disputes affected by illegal (criminal) actions, disputes concerning intellectual property rights (in certain countries also with erga omnes effects) or disputes related to insolvency proceedings.

International commercial arbitrator addressing money laundering sua sponte

“…Additionally, considering “gatekeeper” obligations for lawyers under the 2012 FATF Recommendations, others conclude that arbitrators have an obligation to investigate money laundering on their own initiative (Sprange, 2015). Another view suggests that arbitrators have such an obligation under the national law where the arbitration is domiciled or established; otherwise, they appear complicit in the criminal act of the parties (Drlickova, 2018) and thus commit a criminal offense themselves (McDougall, 2005).…”