FamilyMart v Ting Chuan

Although “[t]he concept of non-arbitrability is a cornerstone of the process of arbitration”,1 a stable definition of “arbitrability” remains elusive. As the Singapore Court of Appeal observed in Tomolugen Holdings Ltd v Silica Investors Ltd,2 “the essential criterion of non-arbitrability is whether the subject matter of the dispute is of such a nature as to make it contrary to public policy for that dispute to be resolved by arbitration. Beyond this, the scope and extent of the concept of arbitrability has been left undefined, as a consequence of which, it falls to the courts to trace its proper contours”. This affords national courts (as well as legislators and arbitrators) a margin of discretion when deciding whether competing public policies are sufficiently strong to displace a presumption of arbitrability.