“English law has never arrived at a general theory for distinguishing those disputes which may be settled by arbitration from those which may not…” Discuss.

This statement suggests that English law lacks a comprehensive framework for determining which disputes can be resolved through arbitration and which cannot. To discuss this, we need to consider several aspects:

1. Understanding Arbitration: Arbitration is a form of alternative dispute resolution where a neutral third party, known as an arbitrator, makes a decision that is usually binding. It is often used in commercial disputes and is seen as a quicker and more cost-effective alternative to litigation.

2. Arbitration in English Law: English law recognizes arbitration as a legitimate form of dispute resolution. The Arbitration Act 1996 is the primary legislation governing arbitration in England and Wales. It provides a legal framework for the conduct of arbitrations but does not explicitly outline which disputes can or cannot be arbitrated.

3. Types of Disputes: Generally, disputes that involve matters of personal status (like divorce or child custody), criminal matters, or issues of public policy are not suitable for arbitration. However, these are not explicitly outlined in the Arbitration Act 1996, leading to the statement that English law has not arrived at a general theory for distinguishing disputes suitable for arbitration.

4. Judicial Discretion: English courts have discretion to decide on a case-by-case basis whether a dispute is arbitrable or not. This discretion allows for flexibility but also leads to uncertainty as there is no definitive list of arbitrable disputes.

5. Need for a General Theory: The lack of a general theory can lead to unpredictability and inconsistency in decisions. A more defined framework could provide clarity and certainty for parties considering arbitration.

In conclusion, while English law does not have a general theory distinguishing arbitrable and non-arbitrable disputes, it does provide a legal framework for arbitration. The discretion of the courts allows for flexibility, but also leads to uncertainty. There may be benefits to developing a more defined theory, but this would need to balance the need for flexibility and the desire for certainty.