CHALLENGES TO JURISDICTION Flashcards
What are the kinds of challenge?
- Admissibility
- Jurisdiction
- Arbitrability
What is admissibility
This is a partial challenge
Acknowledges that the tribunal has jurisdiction but says the claim shouldnt have been bought to them
Jursidcition
This is a total challenge
The tribunal has no authority under the arbitration agreement to litigate
Arbitrability
No tribunal has authority because that subject matter is not capable of settlement by arbitration
- Admissibility in ToR
If u choose ICC arbitration, the first things the paries need to do is establish a ToR
What is ToR
Terms of reference include the issues that each party brings for the tribunal to have jurisdiction over to determine.
Signed by every member of the tribunal and the parties.
Rule 23(4) ICC
Parties cannot bring submissions outside the ToR unless the tribunal authorises it to do so
Article 16 of model law
Separability
The arbitration agreement is separate from the contract.
If the contract is void, it doesnt mean the arbitration agreement is void.
Competence-competence
The tribunal can rule on its own jurisdiction
Should have priority to deal with challenges
Who should deal with challenges to jurisdiction and why
The tribunal should be the first port of call
A party usually brings it to the courts as a delay tactic
If it were brought to the court and they eventually decide that the tribunal does have jurisdiction,then the tribunal will not really know whats going on in regards to the proceedings.
Challenges brought to the institution
If a challenge is bought to the ICC
they determine if there is jurisdiction, if no, the case is discarded.
Article 8(1) will refer the matter to arbitration unless it is voided
When should proceedings be bifurcated,ie. challenges be dealt with separate
Whether the objection is serious and substantial
Whether the objection is intertwined with the merits of the case
Whether the objection is capable of disposing of the whole case
Whether procedural economy is better served with dealing to it prior to the merits
When can a tribunal rule on jurisdcition
Model Law 16(2)
Challenge to complete jurisdiction no later than statement of defence
Challenge of admissibility as soon as wht theyre determining is outside of the scope
Within 15 days
or can go to coourt within 30 days
How to challenge jurisdiction
Boycott the proceedings
They will proceed ex-parte but tribunal still has to regularly update aprty
Raise obejections
Best option
But then harder to challenge award
Challenge the award
Courts may say that they accquiested
Commence court action
May seek injunciton form court
Main disadvantage if that if they say yes jurisdiction, more difficult to challenge the award
Partial challenge
Whether or not the claim can be brought to the tribunal
This is not a fundamental attack
Can be cured if the parties agree to allow for jurisdcition
If a party obkects, the tribunal must proceed with caution to not hinder the enforcement of the award.
Total challenge examples
Matter is time barred
Arbitration is inoperative
Arbitration was not an agreement in writing
Article 23.1 of Uncitral Rules
Competence Competence
Limitations on jurisdiction
- The law of the seat
The lex-arbitri
Law applicable to the arbitration agreement
Awards made without jursidcition
Will be null and void
Who has the final word on jurisdiction
The courts
Concurrent control
Allows for tribunal to be first port of call and then the courts to be able to issue an interim award before the merits are establshed
Arguments for concurrent control
Saves costs
Saves time
Arguments against concurrrent control
Arbitration agreements shoild have minimal court interference
This only encourages delay tactics
