Some disputes belong to the courts alone. Article V(2)(a) lets a court refuse enforcement where the subject matter is not capable of settlement by arbitration — a ground the ADGM Courts may raise of their own motion, but apply sparingly.
A ground the court may raise itself
Unlike the Article V(1) grounds, which a respondent must plead and prove, non-arbitrability under Article V(2)(a) is one of two grounds the enforcing court may consider ex officio. It asks whether the subject matter of the dispute is capable of settlement by arbitration under the law of the forum.
The commercial default is arbitrability
In a modern arbitration jurisdiction the great majority of commercial disputes are arbitrable. Non-arbitrability is reserved for categories a State keeps for its own courts — typically matters such as criminal liability, certain aspects of personal status and family law, insolvency, and some regulatory or public-interest questions. The ADGM, as a common-law commercial forum, starts from the premise that commercial and contractual disputes can be arbitrated.
In a modern arbitration forum, arbitrability is the default and the carve-outs are the exception.
Two systems, one country
The UAE landscape has a nuance worth naming. A dispute's arbitrability may be viewed through the lens of the forum applying the Convention — here, the ADGM's common-law framework — even though the wider UAE legal system has its own categories of non-arbitrable matters. Where enforcement will ultimately reach onshore assets, the disciplined analysis considers arbitrability not only at the ADGM stage but with an eye to the onshore execution that may follow.
Getting ahead of the question
Arbitrability is best addressed at the drafting and jurisdiction stages, not at enforcement. Parties structuring high-value or regulated transactions should test, in advance, whether every strand of a potential dispute is one that arbitration can bind — and design the clause, and the forum strategy, accordingly.
Key instruments: New York Convention 1958 (Article V(2)(a)); UNCITRAL Model Law; ADGM Arbitration Regulations 2015. General information, not legal advice.