Karim A. Youssef, CEO of Youssef & Partners (Youssef + Partners), published an article entitled ‘The Death of Inarbitrability’ in Arbitrability: International and Comparative Perspectives, Kluwer Law International in 2009. The article highlights the vast expansion of the area of arbitration in the last few decades, making the concept of arbitrability (and its counterpart, inarbitrability) increasingly peripheral to arbitration theory, and less and less visible in the practical arbitral environment. Today, the spectrum of rights suitable for arbitration is so broad that it is no longer the primary issue debated in cases concerning jurisdiction. Instead, these instances focus on matters such as third-party involvement, consolidation of proceedings, and the potential clash between commercial and investment jurisdiction.
‘The Death of Inarbitrability’, in Arbitrability: International and Comparative Perspectives, Kluwer Law International, 2009 Kluwer Law International – Home (kluwerarbitration.com)
The significant expansion of the domain of arbitration, in the last few decades, has greatly undermined the relevance of the notion of arbitrability, in international matters. In recent years, the scope of rights amenable to arbitration has grown to such an extent that, the concept of arbitrability (or its mirror image, inarbitrability) as central as it may be to arbitration theory, has virtually died in real arbitral life. The notion of arbitrability has become less and less apparent in disputes on jurisdiction, instead different issues are more frequently disputed in cases of arbitration like third-party involvement, consolidation of proceedings and conflict between commercial and investment jurisdiction.