Being an alternative dispute resolution mechanism, arbitration is not bound by conventional legal precedents and is therefore prone to inconsistent decisions. The existence of a mechanism to challenge a foreign arbitral award or in other words, review an arbitral award is essential to the system of arbitration. It is due to these reasons that a party has the option to challenge a foreign arbitral award. In most cases, the courts where an award can be challenged would be the courts of the seat of arbitration. However, it is also possible that the award can be challenged in a country different from the seat of arbitration. This can be done if the law under which the award was made is different to the law of the seat of arbitration. Under the …show more content…
An award may also be challenged on the grounds of irregularity in the conduct of arbitral proceedings. For example, a proceeding in which a proper notice of appointment of the arbitrators or of the commencement of the arbitration proceedings is not given to a party, or a proceeding in which a party was not given the opportunity to present its case is an irregular proceeding. However, mere irregularity in proceedings is not enough to make the award subject to challenge. The challenging party must prove that such procedural irregularity has violated its rights and has caused an injustice. If the procedural errors committed by the arbitrators have led to a mistake of facts but not a mistake of law, the award passed by such erroneous proceedings cannot be challenged .
2. Arbitrability
The principle of party autonomy is a major principle followed in International Commercial Arbitration. It states that the parties to arbitration have the autonomy to decide on the law which would be applicable to the substance of the dispute. The arbitral tribunal derives its power from the arbitration agreement and if the parties have agreed that the proceedings will be conducted based on a specific substantial law, then the arbitral tribunal is bound to apply that law to the merits of the case. If after the award is passed it is found that the subject matter of the dispute does not fall within the scope of the law decided by the parties in the agreement, then the dispute will be
Arbitration is the submission of a disputed matter to an impartial person (the arbitrator) for decision. Arbitration is typically an out-of-court method for resolving a dispute. The arbitrator controls the process, will listen to both sides and make a decision. Like a trial, only one side will prevail. Unlike a trial, appeal rights are limited.
Although the arbitrator’s final awards are legally binding, an unhappy party of arbitration may still go to court under certain circumstances. As mentioned by Fallon & McConnell, “unless one party protests that there was a gross injustice, collusion, or fraud, arbitration that is specified by a contract can be converted into a legal judgment. This requires a petition to the appropriate court” (n.d., p. 388). As expected, this can become costly for the person who is seeking to appeal.
Faced with this evidence, the trial court denied Westlake’s Motion to Compel Arbitration. The court noted that while Westlake’s Spanish version of the contract contained an arbitration provision; Ramos’
Since November 2015, after Justice Marks vacated the RSDCs previous decision, the Nationals have attempted to compel MASN to return to arbitration before the RSDC. The Nationals claimed that a footnote in the Justice’ decision meant that MASN needed to submit to arbitration if the Nationals just changed their lawyers. On the other hand, MASN felt that the sides should agree to submit this case before a different arbitral body and thereby avoid the appeals process. Failing this, MASN wanted its appeal to be heard before a second arbitration case would be heard before the RSDC.
Arbitrators should remind clients there should be no ex parte communication and must send all required documentation to the arbitrator. When there is no administering organization, counsel must submit their pleadings directly to the arbitrator, but those transmittals should not contain any communication that is not also provided to opposing counsel (Cooley & Lubet, 2003). Arbitrators should avoid ex parte communications altogether; however, if both parties are extended an equitable chance to appear, the arbitrator may continue an inquiry without the attendance of all the involved parties.
Finally, based on common law, the principle of comity and equity may oblige the courts to recognize foreign arbitral award, regardless where the arbitration was seated. The US Courts
international courts and tribunals may achieve limited success in some areas of the world, it
One of the foundations of arbitration is that awards rendered are final and not subject to appeal before the courts. In this respect, Article 5 of the UNCITRAL Model Law provides for minimal intervention, and says, “In matters governed by this Law, no court shall intervene except where so provided in this Law“. As a result, the grounds upon which a court may set aside an award or refuse to recognize and enforce the same are limited. Article 34 of the Model Law and Article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards provide the restrictive grounds for such relief.
. Article 50 provides as follows: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
Procedural arbitrability issues concern whether the parties have complied with the terms of an arbitration provision, and are presumptively handled by arbitrators. These issues include whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, as well as allegations of waiver, delay, or a like defense to
Enforcement of Arbitral awards in commercial disputes and the defence of Sovereign immunity: Comparative study UK and Iran
Arbitration is legal technique used to resolve any disputes outside of the courts. Arbitration allows for speedy and cheap resolution of any disputes, the parties involved in a dispute agree to appoint a third person (arbitrator) who will hear their testimonies, and look into the evidence they provide. The arbitrator's decision cannot be challenged in a law court as it is considered final and the parties involved have to accept the decision (Brams & Merrill, 1986). There are only very limited circumstances where the decision of an arbitrator can be challenged, and this is mostly if there can be proof from one of the parties showing that the arbitrator was biased in their decision or ruling. The chosen arbitrator will be an experienced person in the area of the dispute.
Another very prominent criticism is related to flaw regarding the time period for enforcement of a foreign award. The 1996 Act has not provided any provision regarding the time period for the enforcement of the foreign award. However various High Courts have given different opinions but none of which has been unanimously accepted. The Bombay High Court in Noy Vallesina v. Jindal Drugs Limited held that the provision for limitation as provided under Article 136 and 137 of the Limitation Act would apply for enforcement
An important reason for this popularity is that States have consented in advance to compulsory dispute settlement by the WTO and also, but to a lesser extent, by ICSID arbitration. In the case of the WTO it is the WTO Dispute Settlement Understanding that confers compulsory jurisdiction on the WTO Dispute Settlement System; while in the case of ICSID a large number of States have consented in advance to ICSID jurisdiction over their disputes with investors by means of express provisions in Bilateral Investment Treaties. Moreover, an important additional reason for the widespread use of ICSID as a forum for international dispute settlement is that investors – who are in effect the substantive rights holders under Bilateral Investment Treaties – are often given the right to institute ICSID arbitration directly against the host State.
Firstly, the choice of law applicable to the substance of the dispute which the parties have made can be either express or implied and if such choice took place the arbitrators have to apply it. Without any indications concerning choice of applicable law, an arbitral tribunal has to determine such law through the searching of proper