Role of public policy in the arbitrability of disputes under US and English law

With the increased use of arbitration over the recent years there have been increasing attempts to extend the scope of arbitration as a dispute resolution mechanism, resulting in legal questions on the number of disputes that can be settled via arbitration. For example, in December 2019 the Hague Rules on Business and Human Rights Arbitration (BHR Arbitration Rules hereafter) which were an interesting development as although traditionally business disputes were considered arbitrable, human rights dispute cannot be settled via arbitration. In addition, in 2020, the legal question before the English High Court in Riverrock Securities Ltd v International Bank of St Petersburg ¹ was to what extent are insolvency disputes arbitrable, and before the English Court of Appeal in Bridgehouse (Bradford No.2) Ltd v BAE Systems Plc ² the legal question was whether disputes relating to restoration of a company in the companies register under s.1028 of the Companies Act 2006, were arbitrable. In light of this, this article examines the doctrine of arbitrability and the role of public policy, when the courts determine whether certain disputes are arbitrable. It does this through examining the arbitrability of family and child, criminal, employment, intellectual property, corporate governance insolvency, bankruptcy and competition law disputes under English and US law. In doing so, the article identifies four common public policy considerations the courts consider when determining if certain laws are arbitrable. Firstly, the legislative intent, secondly, the overall benefits and limitations of arbitration, thirdly, the effect of using of arbitration for parties where they are of unequal bargaining power, and fourthly the need to ensure equal and uniform application of the law.