There is nothing in English legislation to indicate the system of law by reference to which the question of arbitrability is to be tested. Moreover, there is no English authority directly on this point. However, after making an analysis of the relevant rules contained in the Arbitration Act 1996 and their application at the different stages where arbitrability could be raised as an issue, it can be concluded the rules of arbitrability under the law of the seat of arbitration play a decisive role under the 1996 Act. Thus, arbitrability under English law must always be considered by the English courts and arbitral tribunals based in England.

Arbitrability,1 in the sense in which it is used in this article, involves determining which types of disputes may be resolved by arbitration and which belong exclusively to the domain of the courts.2 In England, there is a general proposition that “any dispute or claim concerning legal rights which can be subject to an enforceable award is capable of being settled by arbitration”.3 However, the fact that different national laws may adopt different solutions with regard to arbitrability of disputes submitted to arbitration indicates that English courts and arbitral tribunals based in England will have first to ascertain the law applicable to the issue of arbitrability in any dispute where the issue of arbitrability has been raised.