ࡱ> !q`0[bjbjqPqP 7`::6.rrrrrrrN@N@N@8@DAlM2BBH">H>H>HIXqM\N`bbbbbb$hr`II``rr>H>H k k k`Xr>Hr>H` k`` k k0Xrr>H6B vWAN@qc(`0MifHPr}O~T kX$ \}O}O}OjX}O}O}OM````&J.J.rrrrrr JURISDICTION OF THE ARBITRAL TRIBUNAL Current jurisprudence and problem areas under UNCITRAL Model Law Report for the R.I.Z. / UNCITRAL / DIS - Conference "Draft Digest on the UNCITRAL Model Law on International Arbitration" on March 3-4, 2005 in Cologne, Germany Prof. Dr. Alan Uzelac Contents:  TOC \o "1-4" \h \z \u  HYPERLINK \l "_Toc96395313" I. INTRODUCTION  PAGEREF _Toc96395313 \h 2  HYPERLINK \l "_Toc96395314" A. Outline  PAGEREF _Toc96395314 \h 2  HYPERLINK \l "_Toc96395315" B. General remarks  PAGEREF _Toc96395315 \h 2  HYPERLINK \l "_Toc96395316" II. ARTICLE 16: COMPETENCE OF ARBITRAL TRIBUNAL  PAGEREF _Toc96395316 \h 3  HYPERLINK \l "_Toc96395317" A. Jurisdiction of the tribunal Kompetenz Kompetenz  PAGEREF _Toc96395317 \h 3  HYPERLINK \l "_Toc96395318" B. Separability of the arbitration agreement from the main contract  PAGEREF _Toc96395318 \h 3  HYPERLINK \l "_Toc96395319" C. Procedure for determination of the arbitrators jurisdiction  PAGEREF _Toc96395319 \h 4  HYPERLINK \l "_Toc96395320" i. Time-limit for the pleas as to the lack of jurisdiction  PAGEREF _Toc96395320 \h 4  HYPERLINK \l "_Toc96395321" ii. Effect of the lack of objection in the arbitral proceedings  PAGEREF _Toc96395321 \h 4  HYPERLINK \l "_Toc96395322" iii. Ruling on the jurisdiction by arbitrators: preliminary decision or part of the final award  PAGEREF _Toc96395322 \h 4  HYPERLINK \l "_Toc96395323" III. ARTICLE 8: SUBMITTING THE SUBSTANTIVE CLAIM TO THE COURT AND OBJECTIONS THAT ARBITRATION WAS AGREED UPON  PAGEREF _Toc96395323 \h 6  HYPERLINK \l "_Toc96395324" A.) Court procedure if a dispute in which arbitration was agreed was submitted to the court  PAGEREF _Toc96395324 \h 6  HYPERLINK \l "_Toc96395325" i.) Objections in the court procedure; time-limit for requests for referral to arbitration  PAGEREF _Toc96395325 \h 6  HYPERLINK \l "_Toc96395326" B.) Who rules on its own jurisdiction? Courts or arbitrators?  PAGEREF _Toc96395326 \h 6  HYPERLINK \l "_Toc96395327" i.) Situation 1: Leaving the issue of jurisdiction to be resolved by arbitrators  PAGEREF _Toc96395327 \h 6  HYPERLINK \l "_Toc96395328" ii.) Situation 2.: Independent preliminary decision by the court on the issue of the existence, validity and/or practicability of the agreement  PAGEREF _Toc96395328 \h 7  HYPERLINK \l "_Toc96395329" B.) To refer or not to refer: arguments as to the arbitration agreement  PAGEREF _Toc96395329 \h 7  HYPERLINK \l "_Toc96395330" i.) Interpretation  PAGEREF _Toc96395330 \h 7  HYPERLINK \l "_Toc96395331" ii.) Whether arbitration clause was null and void  PAGEREF _Toc96395331 \h 7  HYPERLINK \l "_Toc96395332" 1.) Arbitrability and existence of the agreement ratione causae  PAGEREF _Toc96395332 \h 7  HYPERLINK \l "_Toc96395333" 2.) Parties to the agreement: agreement ratione personae  PAGEREF _Toc96395333 \h 8  HYPERLINK \l "_Toc96395334" iii.) Whether the arbitration clause was inoperative or incapable of being performed  PAGEREF _Toc96395334 \h 8  HYPERLINK \l "_Toc96395335" C.) Procedural arguments  PAGEREF _Toc96395335 \h 9  HYPERLINK \l "_Toc96395336" i.) Whether objection was made in a timely fashion  PAGEREF _Toc96395336 \h 9  HYPERLINK \l "_Toc96395337" ii.) Whether there was a dispute  PAGEREF _Toc96395337 \h 10  HYPERLINK \l "_Toc96395338" iii.) Premature requests  PAGEREF _Toc96395338 \h 11  HYPERLINK \l "_Toc96395339" IV. ARTICLES 34 AND 36: COURT REVIEW OF THE DECISIONS ON THE JURISDICTION OF THE TRIBUNAL  PAGEREF _Toc96395339 \h 11  HYPERLINK \l "_Toc96395340" A. Can court review the arbitral decisions declining jurisdiction?  PAGEREF _Toc96395340 \h 11  HYPERLINK \l "_Toc96395341" B. Reviewing decisions affirming jurisdiction in setting aside proceedings  PAGEREF _Toc96395341 \h 12  HYPERLINK \l "_Toc96395342" V. ARTICLE 17: JURISDICTION OF THE TRIBUNAL TO ISSUE INTERIM MEASURES OF PROTECTION  PAGEREF _Toc96395342 \h 13  HYPERLINK \l "_Toc96395343" A. Scarcity of reported case law  PAGEREF _Toc96395343 \h 13  HYPERLINK \l "_Toc96395344" B. Interplay of MAL 9 and MAL 17: what has precedence?  PAGEREF _Toc96395344 \h 13  HYPERLINK \l "_Toc96395345" V. CONCLUSIONS: OPEN ISSUES AND PROBLEM AREAS  PAGEREF _Toc96395345 \h 13  HYPERLINK \l "_Toc96395346" A. General remarks  PAGEREF _Toc96395346 \h 13  HYPERLINK \l "_Toc96395347" B. Individual problems  PAGEREF _Toc96395347 \h 14  HYPERLINK \l "_Toc96395348" i. Dual jurisdiction regarding evaluation of validity of the arbitration agreement  PAGEREF _Toc96395348 \h 14  HYPERLINK \l "_Toc96395349" ii. Form of the arbitral decision on jurisdiction as a preliminary question under MAL 16(3) and its effects  PAGEREF _Toc96395349 \h 14  HYPERLINK \l "_Toc96395350" iii. Availability of the remedies against negative arbitral decisions on jurisdiction  PAGEREF _Toc96395350 \h 15  HYPERLINK \l "_Toc96395351" iii. Scope of arbitral authority: do allegations of fraud fall within the scope of submission to arbitration  PAGEREF _Toc96395351 \h 15  HYPERLINK \l "_Toc96395352" v. What does not later then mean?  PAGEREF _Toc96395352 \h 16  HYPERLINK \l "_Toc96395353" v. Residual procedural differences between common and civil law countries  PAGEREF _Toc96395353 \h 16  JURISDICTION OF THE ARBITRAL TRIBUNAL Current jurisprudence and problem areas Report for the R.I.Z. / UNCITRAL / DIS - Conference "Draft Digest on the UNCITRAL Model Law on International Arbitration" on March 3-4, 2005 in Cologne, Germany Prof. Dr. Alan Uzelac I. INTRODUCTION A. Outline The subject of this paper are various issues connected to the jurisdiction of the arbitral tribunal, as defined in the cases collected on the issues of application of the MAL in various countries that have adopted UNCITRAL Model Law on International Commercial Arbitration. Of course, the source of the jurisdiction is the arbitration agreement. Yet, here we will not deal with the arbitration agreement in general, but primarily with the procedural issues of the determination of the jurisdiction (or lack of the jurisdiction) of the arbitral tribunal. To the extent that some substantive issues, such as the existence or scope of the arbitral jurisdiction were invoked as a ground substantiating jurisdictional pleas, these issues will also be taken into account. Further on, the consequences of the arbitral jurisdiction, such as its impact on the court proceedings regarding the same claims, will also be assessed. Finally, within the general topic of the jurisdiction of the arbitral tribunal, a separate subset of question that relate to the topical subject of the authority of the arbitrators to issue interim measures of protection will also be presented. These issues regard the following provisions of the MAL: Art. 8 (Arbitration and substantive claim before court) Art. 16 (Competence of arbitral tribunal to rule on its jurisdiction) Art. 17 (Power of arbitral tribunal to order interim measures) Art. 34(2)(a)(i) (Application for setting aside due to lack of jurisdiction incapacity of the parties or invalidity of the agreement) Art. 36(1)(a)(i) (Refusal of recognition and enforcement of the award due to lack of jurisdiction). For the sake of clarity, the issues will be presented in a logical and not numerical order, thus starting with the competence of the tribunal to rule on jurisdictional issues (MAL 16), continue with the jurisdictional objections made in court proceedings in which the same substantive claim is raised (MAL 8), present the jurisdictional issues that may occur while the court decides on jurisdictional objections and reviews jurisdictional decisions made by the arbitrators in setting aside and recognition and enforcement proceedings (MAL 34 and 36), and end with the arbitral and court jurisdiction to order interim measures of protection (MAL 17). B. General remarks As opposed to some other articles of the MAL where case-law is scarce, it seems that the Digest has collected a considerable number of cases on the issues of the arbitral jurisdiction, interim measures and the other related issues. Only in CLOUT database there are 35 reported decisions on MAL 8(1) by far the largest number of reported cases on any of the provisions of the MAL. However, the proportion of decisions from various jurisdiction is rather different, and a number of MAL jurisdictions have still to be covered. II. ARTICLE 16: COMPETENCE OF ARBITRAL TRIBUNAL A. Jurisdiction of the tribunal Kompetenz Kompetenz Today, the right of the arbitrators to rule on their own jurisdiction is an almost fully uncontroversial part of the well-established doctrine and practice in international arbitration. The provision of Art. 16 MAL in its basic idea now really reflects the globally harmonized approach to the issue universally called Kompetenz Kompetenz. Practically all countries recognize the right of the tribunal to decide on their jurisdiction, subject to the subsequent court control. This is also demonstrated by some 20 cases collected in CLOUT that all, without exception, assert the right of arbitrators to rule on their own jurisdiction (Cases 13; 18; 20; 27; 101; 114; 127; 147; 148; 182; 357; 367; 369; 373; 382; 392; 403; 441; from various jurisdictions). Yet, in certain details the law is still different, even in the countries that have adopted the MAL (see further infra at E.). As the Digest summarizes, we see now a wide consensus that the arbitral tribunal has the power to rule on all aspects of its own jurisdiction. Reported decisions have showed that the courts recognize the right of the arbitral tribunal to determine: whether arbitration agreement exists between the parties (e.g. Case 127, Bermuda; Case 109, Hong Kong), whether the matter in dispute comes within the scope of the arbitration agreement (e.g. Cases 18, 32 and 357, Canada; Case 127, Bermuda); what is the proper interpretation of the arbitration agreement (Case 357, Canada); whether arbitration agreement is valid or was terminated (e.g. Case 127, Bermuda; Case 369, Canada). B. Separability of the arbitration agreement from the main contract The doctrine of separability (or severability), reflected in the last two sentences of Art. 16(1), is now also a part of the universal consensus among arbitration practitioners, accepted by most legal systems of the world. This is also reflected by the collected court decisions (see Cases 19; 20; 27; 32; 114; 349; 367; 368). Courts have widely recognized that arbitral agreement have a fate independent of the main contract, so that invalidity or termination of the main contract does not necessarily affect validity and binding force of the arbitration clause. E.g. it was recognized that arbitrators may find that the main contract is null and void ab initio, even due to fraudulent behavior of a party or the parties, but that arbitral clause contained in the contract continue to be operative, providing arbitrators with authority to decide on the consequences of the nullity of the main contract (Supreme Court NSW, Australia, 17 Aug 1994). C. Procedure for determination of the arbitrators jurisdiction i. Time-limit for the pleas as to the lack of jurisdiction Although arbitrators have authority to rule on their jurisdiction, they cannot do it on their own initiative. Plea as to the lack of jurisdiction has to be submitted by the respondent in due time under Art. 16(2) not later than the statement of defense. Belated objections regularly cannot be taken into account, as the lack of objection has to be construed as the waiver of the right to object and conclusion of a valid arbitration agreement. Still, the arbitrators have the right to admit the plea if the delay in their submission is considered justified. Under one reported case, it seems that the court held that the plea has to be sufficiently substantiated: an allegation that arbitration agreement does not exist because the party was not successor of the main contract was held to be a substantive defense that precluded later procedural objections as to the jurisdiction (Case 148, Russia). ii. Effect of the lack of objection in the arbitral proceedings The courts had opportunity to evaluate the effect of lack of objections as to the jurisdiction of the tribunal in the arbitral proceedings on subsequent setting aside proceedings. A German court held that the party regularly loses its right to raise the lack or invalidity of the arbitration agreement in the setting aside proceedings if there was no objection to jurisdiction in the arbitral proceedings (OLG Stuttgart, 1 Sch 16/01, 20 Dec 2001). As stated by the same court, failure to raise this objection amounts to conclusion of the new arbitration agreement by passive behavior of the party. This seems to be a generally accepted position, both under MAL Rules as under many national arbitration laws. However, the courts in various jurisdictions had expressed diverging views as to the consequences of cases in which objection to jurisdiction was raised in the arbitral proceedings, but the preliminary decision of arbitrators was not attacked under MAL 16(3) before the competent court. In one Singapore case collected in the Digest, the court held that a party was not prevented from submitting an application for the setting aside of the award on the basis of lack of jurisdiction simply because the party did not challenge arbitral decision on jurisdiction under paragraph (3) before a competent court (Tan Poh Leng Stanely v. Tang Boon Jek Jeffrey, 30 Nov 2000). German courts, on the contrary, held that this was a necessary prerequisite for the successful raising of this ground in setting aside proceedings (BGH, III ZB 83/02, 27 March 2003). iii. Ruling on the jurisdiction by arbitrators: preliminary decision or part of the final award It seems that there were no controversies regarding the recognition of arbitrators discretionary powers to decide whether they would rule on jurisdiction in a separate ruling, or in the final award. As to the consequences of such decision, one court held that decision to postpone the ruling on jurisdiction until the final award cannot be attacked, but that in such a case only setting aside proceedings could review whether the arbitrators erred in finding that they are competent to decide (Case 441, Germany). If the arbitral tribunal decides on the issue of jurisdiction as a preliminary question, and concludes that it has jurisdiction, this ruling may be subject to challenge under MAL 16(3). Regularly, the competent authority will be a state court. However, in some jurisdictions that is not necessarily so. E.g. in Croatia whose Law on Arbitration departs slightly from the text of the MAL in respect of designation of authority from MAL 6 parties may by their agreement transfer the authority to control separate decisions on jurisdiction to some other authority. Thus, in an unreported decision, a Croatian Commercial Court confirmed that the arbitration rules of an institutional arbitration institution may replace court control with some other controlling mechanism (in this case, with the decision of the President of the arbitral institution). The time limit for the application to the court is 30 (thirty) days from the date when the party has received notice of the ruling of the arbitral tribunal. As to this time-limit, a German court held that an application was launched in due time if it was submitted to a court within the 30-days period, notwithstanding the fact that the court to which the application was filed was not competent (OLG Frankfurt, 3 Sch 02/00, 6 Sep 2001). One, potentially controversial decision, dealt with the consequences of the form of the preliminary ruling by which arbitrators assert their jurisdiction. The MAL does not determine in which form should the arbitrators decide on jurisdiction as a preliminary issue. In procedural theory, it should be taken for granted that such a decision is of a procedural, and not substantive nature. From that, it would follow that the arbitrators may issue it only in the form of a procedural order. However, in some jurisdictions, such decisions are being taken in the form of arbitral awards, as well. In the Digest, diverging judicial opinions as to the effect of designation of the decision on jurisdiction as arbitral award on jurisdiction are noted. High German juridical authorities, while noting strong and influential voices in the doctrine that such decisions cannot be regarded as arbitral awards, since there are no procedural arbitral awards (Prozeschiedssprche), have finally decided that such decisions can take the form of arbitral award, and even be attacked in setting aside proceedings (OLG Hamburg, 11 Sch 02/00; BGH III ZB 44/01, 6 June 2002). In these cases, however the German courts dealt only with the preliminary decision in which the arbitrators have declined their jurisdiction (see infra at IV.A). The view that a decision made under MAL 16(3) can take form of the award was also taken by a Bermuda court (Court of Appeal of Bermuda, 6 Dec 2002), yet with even more far-reaching consequences. That court found that, if the preliminary decision on jurisdiction was issued in the form of an award, it may be challenged in a separate setting-aside proceedings, even if the party would successfully challenge the ruling in accordance with the procedure set in Art. 16(3). This particular decision open a number of issues, including those relating to duplication of work, possible diverging decisions, applicability of the grounds from Art. 34 MAL etc. Another interesting opinion on possibility of reviewing arbitral decisions on jurisdiction was expressed in a recent Croatian case, where the Constitutional Court, changing its previous case-law, held that it can control of the arbitral ruling that declined jurisdiction on the basis of alleged breach of the right to access to efficient dispute-resolution mechanism (U-III-669-2003, Croatia, 27 Oct 2004). Again, the decision was controversial: it was issued with several dissenting opinions and criticized in the doctrine (see also infra, at IV.A). III. ARTICLE 8: SUBMITTING THE SUBSTANTIVE CLAIM TO THE COURT AND OBJECTIONS THAT ARBITRATION WAS AGREED UPON A.) Court procedure if a dispute in which arbitration was agreed was submitted to the court i.) Objections in the court procedure; time-limit for requests for referral to arbitration Just the same as the arbitrators regularly cannot rule on their jurisdiction unless an objection was raised by the respondent in the arbitral proceedings, the court to which a substantive claim for which arbitration was agreed upon cannot take this fact on its own initiative (High Commercial Court, Croatia, P~-5168/01, 29 April 2001; P~-7481/03, 27 April 2004). Plea as to the lack of jurisdiction in the court proceedings has to be submitted by the respondent in due time under Art. 8(1) that corresponds to 16(2) in arbitral proceedings - not later than when submitting his first statement on substance of the dispute. Belated objections regularly cannot be taken into account, as the lack of objection has to be construed as the waiver of the right to request referral to arbitration (High Commercial Court, Croatia, P~-7481/03, 27 April 2004). Moreover, the lack of timely objections in the court proceedings may be construed as termination of the arbitration agreement: regularly, by submitting the statement of claim to the court plaintiff expresses his wish to abandon the arbitration agreement; by submitting his statement of defense, the defendant accepts the offer to amend their dispute resolution mechanism by agreeing on court litigation instead of arbitration (High Commercial Court, Croatia, P~-5168/2001, 29 April 2001). B.) Who rules on its own jurisdiction? Courts or arbitrators? i.) Situation 1: Leaving the issue of jurisdiction to be resolved by arbitrators When a party submits a claim to the court, and the other party opposes on the ground that an arbitration agreement was concluded, there are two possible scenarios. Under MAL 8, the court is bound to refer the case to arbitration, unless the agreement is null and void, inoperative or incapable of being performed. Under MAL 16, the tribunal may rule on its own jurisdiction, including any objections regarding the existence or validity of the agreement. Thereby, the same objection (of the validity of the arbitration agreement) can be resolved either as a preliminary issue in court proceedings, upon motion to refer the dispute to arbitration, or in the arbitral proceedings in a separate decision or in the award on the merits. Recognizing the right of the arbitrators to rule on their own jurisdiction, in some cases the courts were reluctant to enter into examination of the existence and validity of the arbitration agreement, holding that the arbitral tribunal alone was competent to decide on its jurisdiction (Case 182, Canada). In the same case, it was held that the arbitrators have jurisdiction to decide whether a party enjoys absolute immunity from judicial process (and/or arbitration) of any kind. The courts also left to the arbitrators the issues that regarded alleged invalidation of the arbitration agreement due to public law reasons (UN embargo, national legislations) see Case 392, Canada. Moreover, in other cases the superior courts found that a court has no discretion, but is obliged to refer the matter to arbitration if an objection was raised (Case 70 and 179, Canada). As stated in one case, once a reference to arbitration had been made, there was no residual discretion in the court to refuse to stay the proceedings between the parties to arbitration even though there may be particular issues that are not subject to arbitration. The language of this decision would even imply the duty of the court to stay the proceedings on the matters that are clearly outside the scope of the arbitration agreement, if the arbitral jurisdiction in other connected issues was asserted. This, however, may be a mistaken conclusion, since an inference can be drawn from the line of other cases that, at best, the court has inherent discretionary authority to stay or not to stay the proceedings (Case 15, 31 and 33 - Canada), which can also be only partially granted, in respect to some of the parties (Case 17, 36 - Canada). Yet, in order to refuse to grant a stay, strong reasons are required (Case 34, Canada). ii.) Situation 2.: Independent preliminary decision by the court on the issue of the existence, validity and/or practicability of the agreement As MAL 8 authorizes the court to refuse the motion to refer the dispute to arbitration if it finds that the agreement is null and void, inoperative or incapable of being performed, in a number of cases the courts have decided to go the other way: they did, in a preliminary fashion, deal with the issues of existence, validity and practicality of the agreement. B.) To refer or not to refer: arguments as to the arbitration agreement i.) Interpretation In a number of cases, wording of the arbitration clauses was broadly interpreted, so that the courts preferred arbitration and referred parties to it if substantive claim was made before court even in cases of some clauses when the other party invoked an arbitration clause that could have been, under circumstances, viewed as pathological. E.g. a court interpreted words may be submitted to arbitration as shall be submitted to arbitration, and the words incompleteness of the contract as a failure to perform the contract (Case 38, Hong Kong). Reference to arbitration in 3rd country, under the rules of International Commercial Arbitration Association was also saved by interpretation the court held that the arbitration clause sufficiently indicated the parties intention to arbitrate (Case 57, Hong Kong; see also Case 373, Germany the latter decided in setting aside proceedings). Yet, there are cases in which, e.g. ambiguity of the clause with regard to the competent arbitral institution was held to be sufficient to make this clause null and void (Germany, 4 Z SchH 13/99, 28 Feb 00, DIS web-site). Faced with the motions to refer disputes to arbitration under Art. 8, in a number of reported cases the courts openly showed their tendency towards favoring arbitration, sometimes expressly quoting the legislative policy to foster arbitration (e.g. Cases 73, 324, 382, 387, all Canada). If in the parties negotiations the option of changing the dispute resolution mechanism was deliberated in favor of court proceedings, clear and unambiguous proof of the intention to renounce arbitration was required. One court has characteristically stated that whilst it was true that parties to an arbitration agreement could abandon it and proceed to Court, the decision to do so must be clearly evidenced (Case 370, Zimbabwe). ii.) Whether arbitration clause was null and void 1.) Arbitrability and existence of the agreement ratione causae When arguing for court jurisdiction and disputing validity and existence of the agreement, one possible line of argument relates to the non-arbitrability of the dispute. This argument was, however, not always successful. The case law on the Arts. 8 and 16 demonstrates that the courts held that arbitration is not precluded in a wide area of matters. E.g., it was found that the fact that a claim is grounded in tort does not preclude arbitration (Case 35, Canada). It was also found that construction lien legislation did not prohibit arbitration but, on the contrary, contemplate it (Case 183, Canada, see also Cases 73 and 74). It has also been found that shareholders dispute and disputes regarding management of commercial companies are arbitrable, if the law does not expressly require court litigation (High Commercial Court, Croatia, P~-195/04, 10 Feb 2003.) Diverging opinions were, however, expressed by the court regarding the claims grounded on the allegations of fraud. In one, potentially controversial case, it was found that conspiracy, deceit and fraud were not matters arising out of this agreement (Case 65, Canada). Similar arguments were reflected in a few other cases. In one of them (Case 383, Canada criticized in doctrine), the judge refused to stay the proceedings even though an ICC tribunal was already seized of the jurisdictional issue, because the issues such as damages for misrepresentation (fraudulent or otherwise), breach of contract, inherently defective equipment and negligent performance of contract were not covered by an arbitration clause. In other case (Case 350, Canada) it was also held that the fraud claim was not subject to arbitration as it was not contractual in nature. In contrast with these decisions, a plea that a UN embargo deprives the arbitral tribunal of the power to decide and resolve upon the dispute was rejected by the courts (Case 392, Canada). In such a case, the court affirmed the right of the arbitrators to decide such an issue, subject to a later review within the context of the recourse for recognition or avoidance of a final award. 2.) Parties to the agreement: agreement ratione personae Another possible objection relates to the parties to the arbitration agreement. There is a number of cases in which some or all of the parties in a multy-party setting initiated court proceedings arguing that they were not parties to the arbitration agreement. Such an assertion, under one decision (Case 148, Russia) had to be clearly designated as the plea regarding the jurisdiction of the arbitral tribunal, because the mere statement that a party is not a legal successor regarding the main contract could not be taken into account. iii.) Whether the arbitration clause was inoperative or incapable of being performed As to the obligation of the court to refer parties to arbitration, one may even argue that some courts were even overly generous in interpreting the arbitration clauses in favorem arbitratii. In one case (Case 449, Hong Kong), the court referred parties to arbitration, stating that a clause that gave one party the right to opt for either litigation or arbitration should be construed as valid and binding, notwithstanding the fact that the party that had right to opt had opted for litigation (it would unduly stretch the wording of MAL 8(1) to deem such an agreement inoperative for the reason that the party with the right to elect to settle its dispute throught arbitration chose not to exercise that right [!?]). Yet, in other cases, courts were more sensitive to the fact that the parties had agreed on multiple dispute-resolution mechanisms, so that a court (Case 388, Canada) had refused to refer parties to arbitration because it found that a particular dispute was not covered by the arbitration agreement, since the clause allowed court proceedings for specifically listed default events (such as the one submitted to the court), while retaining arbitration for all other disputes. A similar conclusion was reached in another case, in which arbitration was agreed for all disputes, except of differences involving a question of law (Case 113, Canada). In all such cases courts found that arbitration agreement was in the particular case either inoperative or for the particular dispute non-existent. In some reported cases, the courts have rejected the motions for referral to arbitration under MAL 8 because the arbitration agreement was found to be inoperative. One clause (Case 66, Canada) was, e.g. found to be inoperative on the ground that under the signed clause one of the parties to a dispute had to act in the role of arbitrator. The court held that a party cannot act as neutral and impartial arbitrator and thus held this clause to be inoperative (interestingly, the clause as such was not pronounced null and void). A relatively recent case invoked lively debates about the meaning of inoperative agreements. A very senior German court found that an arbitration agreement may become inoperative due to the lack of funds on behalf of one party to pay costs of arbitration proceedings (Case 404, Germany). The court invoked the right of the party to due process of law, and argued that such a right cannot be excluded merely because a party caused its own inability to pay the arbitration expenses, unless the inability to pay was caused in bad faith. C.) Procedural arguments i.) Whether objection was made in a timely fashion Under MAL 8, the objection that an action is brought in a matter which is the subject of an arbitration agreement shall be raised not later than when submitting ... first statement on the substance of the dispute. Consistently with this requirement, the courts have often dealt with the issue whether a party has requested referral to arbitration in due time (e.g. Case 17, 31, 181, 352 - all Canada). The same rules that apply to requests to refer claims to arbitration were found to be applicable to counterclaims (Case 355, Canada). A party that invoked arbitration agreement was regularly defendant (or counter-defendant) in court proceedings (see e.g. Case 17, Canada); however, in one case (Case 33, Canada), the plaintiffs in court proceedings asked for the stay of the proceedings they had themselves instituted. This move, described by the court as a very unusual step, was considered to be untimely (the court observed that by no stretch of the imagination can such request be considered as having been made in a timely fashion). This case, as also another one (Case 118, Canada, reversed on appeal), has also confirmed that statement on the substance of the dispute referred to in MAL 8 means pleadings in courts and not statements made to the arbitral tribunal. It seems that there may be some disagreements by the courts regarding what exactly is meant by the phrase not later than..... Two issues arose in this connection. First, it had to be decided whether not later phrase is applicable when defendant failed to challenge the court jurisdiction and ask for referral to arbitration within the time limit set by the court for the defense, if no statement of defense was launched. In one case, only upon appeal to the highest judicial authority it was found that reliance on the arbitration clause was timely, irrespective of the fact that it was made after expiry of the time limit for statement of defense, since the existence of the arbitration agreement was invoked before the oral hearing on the substance (Case 435, Germany). Second issue that arose was the interpretation of the requests that were made simultaneously with the pleadings on the merits. In some jurisdictions, procedural objections made in the same pleading in which defense on the merits is made are not regarded as untimely, since they are not made later than such a statement. The contrary position was, however, outlined in one reported case (Case 119, Canada) in which request that was filed with the parties first statement on the substance of the dispute was regarded to be untimely. The court stated that the correct procedure would be to apply for a stay of court proceedings, after receiving the statement of claim but before submitting a statement of defence. In a crisp contrast to the preceding case, one court found that an objection to court jurisdiction was made in a timely fashion although the defendant invoked arbitration clause almost 4 years after initiation of the proceedings, after a series of procedural steps that included joint motions for particulars, a demand for a security for costs and discovery (Case 186, Canada Quebec). In such a case the court has specifically argued that given the general policy favouring arbitration .... the delay in invoking the arbitration clause and the steps undertaken in the judicial proceedings did not amount to renunciation of the arbitral procedure. An interesting case is reported (Case 356, Canada) in which the court referred the parties to arbitration irrespective of the fact that it was indisputable that the defendant failed to raise the objection in due time. In this case, both parties initiated court actions in the courts of two different countries, while they had arbitration agreement referring to arbitration in the third country. In the second court proceedings, plaintiff successfully invoked arbitration clause, yet continued to pursue his own court action. In this other court proceedings, the court found that the entire matter has to be referred to arbitration irrespective of the belated objection, since plaintiff was acting unfairly in both forcing [defendant] to arbitrate its claim while [he] pursued its court action. Dealing with the timeliness of the defendants objection, the court took into account that the arbitration clause had been in a timely fashion invoked in prior proceedings by a party in this proceedings. ii.) Whether there was a dispute In several cases, faced with the request to refer the matter to arbitration, the courts had to deal with the issue whether there is at all a dispute that can be referred to any dispute resolution mechanism. It was generally regarded that MAL 8 procedure can be used only if there was an existing dispute between the parties. The reported cases demonstrate divergent approaches to the issue of the existence of the dispute. On one hand, we have cases in which the courts refrained from entering into deeper examination. One court held that it was not necessary to have evidence of a dispute initially, but that it suffices that this becomes evident in subsequent process (Case 322, Zimbabwe). In another case (Case 128, Hong Kong), the court found that it is not concerned with investigating whether the Defendant has an arguable basis for disputing the claim. For the purposes of MAL 8, it was held sufficient that defendant did not admit the claim. It was also held that a letter in which the defendant offered compensation to the plaintiff cannot be taken as an admission that would end the dispute (Case 61, Hong Kong). Only unequivocal settlement of the claim in its entirety may, under circumstances, be taken into account (Hong Kong, Hip Hing v. Holyrood, 25 Nov 99). Some cases demonstrate different approach, setting higher thresholds for the existence of the dispute. In one of them (Case 383, Canada), the court accepted the plaintiffs argument that the defendant had no defense to a particular claim it was held that there should be a genuine dispute between the parties. It was also held that, in a dispute about bank loan, defendants objections to the interest payments and the right of the bank to charge interest on interest and commission, were not sufficient to establish the existence of a dispute (Case 324, Zimbabwe). iii.) Premature requests In one case (Case 386, Canada), the court found that under MAL 8 a decision referring the parties to arbitration cannot be made unless the same claim was made in court proceedings. In this case, the claimant asked the court to grant interim measures of protection under MAL 9, and requested the court to refer the parties to arbitration. The court dismissed the application as premature, because there was no action pending (and not even a notice of the wish to arbitrate). There is no right to ask for declaration that a certain dispute would be covered by the arbitration agreement and that such arbitration agreement was valid, operative and capable of being performed. IV. ARTICLES 34 AND 36: COURT REVIEW OF THE DECISIONS ON THE JURISDICTION OF THE TRIBUNAL A. Can court review the arbitral decisions declining jurisdiction? MAL 16(3) provides for a separate procedure of reviewing positive decisions of the arbitral tribunal that were issued on the issue of jurisdiction as a preliminary question (see supra at II.C.iii). If the arbitral tribunal decides to rule on the plea as to the jurisdiction only in an award on the merits, such a decision may be challenged within the setting aside procedure (MAL 34(2)(a)(i)) or within the procedure of recognition and enforcement (36(1)(a)(i)). In the collected case law, the question was posed whether a decision of the arbitral tribunal declining its jurisdiction can be challenged. The highest German court authority gave an interesting and somehow Pythian answer (BGH ZB 44/01 6 June 2002; see also 11 Sch 02/00, 30 Aug 2002; both Germany) that such a decision may be subject to setting aside procedure if it is made in the form of an award, but that none of the reasons for setting aside could be used to set aside an incorrect decision declining jurisdiction. The court held that impossibility to attack successfully the arbitral decision does not deprive parties of their right to legal protection (Rechtsschutz), as a negative decision by the arbitrators opens the way to legal action in court procedure. A contrary conclusion was reached by one constitutional court that has recently annulled an arbitral decision declining jurisdiction on the ground of alleged violation of the right to access to justice (U-III-669-2003, Croatia, 27 Oct 2004). The court reversed its previous case law under which no arbitral decisions could not be challenged directly before the constitutional court. It held that, since there is no legal remedy available against such a negative procedural decision (including setting aside application that was regarded as inadmissible) the Constitutional Court has to apply strict standards since such a decision may violate the constitutional right to a fair proceedings before an independent tribunal. In this case, the court annulled arbitral decisions, pointing in particular to its insufficient explanation, and sent the case back to arbitrators. B. Reviewing decisions affirming jurisdiction in setting aside proceedings If the arbitrators decided that they have jurisdiction, there are two ways of attacking their decision one in the setting aside proceedings, and the other in proceedings for recognition and enforcement of the award. As the reasons in this respect are the same, the courts have generally followed the same line of reasoning. The draft Digest also does not distinguish sharply cases under MAL 34 and 36 in this respect, mixing sometimes decisions in one or the other type of proceedings. In CLOUT, only one case refers directly to the jurisdictional arguments in recognition proceedings (Case 443, Germany). Therefore, we deal here both with jurisdictional arguments in setting aside, and in the recognition and enforcement proceedings. MAL 34(2)(a)(i) provides that a court should set aside an award if, inter alia, the arbitration agreement is not valid under the law to which the parties have subjected it or the lex fori of the setting aside court. The same reason is contained in MAL 36(1)(a)(i) in respect to refusal of recognition of the award. Lack of valid and binding arbitration agreement obviously also covers the cases when no arbitration agreement was concluded at all. Lack of an appropriate agreement in respect of the subject-matter of the dispute partly overlaps with the reasons for setting aside from MAL 34(2)(a)(iii) or MAL 36(1)(a)(iii), i.e. with the situations in which the award deals with a dispute not contemplated by or not falling within the terms of the submissions to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. This is demonstrated by different approaches in several court decisions: faced with the objection that a particular party was not party to the arbitration agreement, some of them referred to subparagraph (i) on lack of valid agreement (OLG Hamburg, 6 Sch 04/01, 8 Nov 2001, Germany), and some of them to subparagraph (iii) on decisions outside the scope of the agreement (Case 12, Canada). In the setting aside proceedings, the court had to deal with the timeliness of the jurisdictional objections made in the arbitral proceedings. If an objection to the existence and validity of the agreement was not raised at the latest in the first statement of the defense on the merits, the courts held that the applying party was precluded from raising this objection (Case 148, Russia). It was also held that failure to raise this objection means conclusion of the new arbitration agreement by tacit consent of the party (OLG Stuttgart, 1 Sch 16/01, 20 Dec 2001), and that the defaulting party should be considered to have waived its right to object to jurisdiction (High Commercial Court, P~-7481/03, Croatia). However, this was recognized only in the cases in which the party has actually participated in the arbitral proceedings, and was invited to submit a statement of defense (OLG Hamburg, 6 Sch 04/01, 8 Nov 2001). The Digest reveals discrepancies in the courts opinions as to whether the failure of a party to apply for court review of the arbitral tribunals decisions under MAL 16(3) implies a waiver of the partys right to contest the jurisdiction. The opinion that a separate application is not necessary because the right to court application was optional was expressed by a Singapore court (Tan Poh Leng Stanely v. Tang Boon Jek Jeffrey, 30 Nov 2000); on the other hand, a German court (OLG Oldenburg, 9 SchH 09/02, 15 Nov 2002) held that application for a review is a prerequisite for successful raising of the same ground in the setting aside proceedings. V. ARTICLE 17: JURISDICTION OF THE TRIBUNAL TO ISSUE INTERIM MEASURES OF PROTECTION A. Scarcity of reported case law While the MAL 8 and 16 are among the provision of the UNCITRAL Model Law covered with the most extensive jurisprudence (MAL 16 alone is the provision that has absolutely the widest coverage in CLOUT database), the provision of MAL 17 is among the least well-covered: precisely there is only one case in the CLOUT database that would point to MAL 17 in the search engine of the UNCITRAL (Case 386 Canada). Even this only case mentioned interim measures of protection ordered by the tribunal only obiter dicta, asserting that, once arbitration would be commenced, the arbitral tribunal sitting in Switzerland could order interim measures that would be enforceable in Canada. This lack of cases is apparently in a sharp contrast with the on-going interest of the UNCITRAL on the revision of Art. 17, and the work of its Working Group on Arbitration that was engaged in drafting of appropriate provisions in the past five years. B. Interplay of MAL 9 and MAL 17: what has precedence? In spite of the scarcity of reported cases, come ambiguities with regard to parallel jurisdiction of both the arbitrators and the court to order interim measures in the same matter have already surfaced. In one case connected with the application of MAL 9, a court had to resolve the issue whether interim measures of protection that could be taken by courts included the interim order granted in that case or whether such an order could be granted only by the arbitral tribunal dealing with the substance of the dispute. The court referred to travaux preparatiore regarding MAL 9 and quoted dual principles that, first, a party does not waive its right to go to arbitration by requesting (or obtaining) interim measures of protection from a national court, and, second, that a national court is not prevented from granting such measures by the existence of an arbitration agreement. However, another court decision (Case 386, Canada), without special reference to authorities and UNCITRAL documents, another court had seemingly come to the opposite conclusion, namely that, if arbitrators may order themselves interim measures that are enforceable in court, a direct application to the court for interim measures should be dismissed. V. CONCLUSIONS: OPEN ISSUES AND PROBLEM AREAS A. General remarks After this general presentation of the court decisions on application of MAL provisions that deal with the jurisdiction of the arbitral tribunal, we will summarize the main problems that surfaced, directly or indirectly, from the collected case-law. We will focus only on most important issues that may affect harmonization of the international arbitral law. Minor matters, but also important questions in which the practice demonstrated higher level of uniformity, are intentionally left out. B. Individual problems i. Dual jurisdiction regarding evaluation of validity of the arbitration agreement First problem area arises from the dual jurisdiction with respect to determining whether arbitration agreement is valid and binding. Although there is no doubt that arbitrators are empowered to rule on their own jurisdiction upon timely objections raised in the arbitral proceedings, a virtually same authority is also given to the court if the claim is raised in a court action, and the other party objects on the ground that this claim was covered by an arbitration agreement. This parallel regime raises a number of questions regarding the division of labor between arbitrators and the courts; regarding potential duplication of work; regarding the possibility of incompatible decisions; regarding the effects of the arbitral and/or courts final determination etc. In the reported case law, the courts had differently interpreted their authority to refuse referring the case to arbitration if the agreement is null and void, inoperative or incapable of being performed. Some courts apparently tried to escape this issue, pointing that the arbitrators have to determine it first; other courts were satisfied with prima facie evidence of the existence and validity of the arbitration agreement; some courts went into more details; and it seems that some might even be tempted to enter into substantive issues such as the validity of the main contract. Under current rules of MAL, there are hardly any chances to escape these problems. In our view, the courts would have to exercise a prudent and reasonable approach, evaluating all circumstances of the case. Under MAL 8(1) the courts clearly have the right and duty to evaluate independently the validity and practicability of the arbitration agreement; however, it would be wise both for the courts and for the arbitrators to have an eye on the process conducted before the other tribunal, perhaps suspending the proceedings until the decision in the other process is being made but only if this would not cause undue hardship to parties in the proceedings. If there are parallel proceedings in the court and before the arbitrators, it would also be wise to award certain precedence to the arbitrators ruling (at least in the order of decision making, if possible), and to await the outcome of the challenge of jurisdiction there. A precondition would, however, be that the court is satisfied with prima facie existence of the agreement: party invoking the arbitration agreement before the court needs to have at least an arguable case. Otherwise, a way to abuses and undue delays would be opened. ii. Form of the arbitral decision on jurisdiction as a preliminary question under MAL 16(3) and its effects Another problem area deals with the form of the separate decision on jurisdiction in the arbitral process, if such a decision is done prior to the award on the merits, based on the discretionary right of arbitrators to resolve the jurisdictional challenge as a preliminary matter. Here, the MAL does not provide clear guidance, and basically leaves the determination to national procedural laws and/or practices. Apparently, there is a trend in international arbitration to expand the circle of decisions that are entitled arbitral awards from decisions on the substance of the dispute to procedural matters, usually those that end the proceedings, but sometimes also to those that are regarded to be of any greater importance. Proper or improper naming of decisions should, in our view, not affect the procedural fate of the decision falsa nominatio non nocet. Yet, in reported cases, from various part of the globe, the courts also went into a different directions, drawing from the name award on jurisdiction inferences as to the admissibility of setting aside of such awards. We think that this only contributes to confusion, as the original concept of the MAL 16(3) certainly did not envisage multiple (double or even triple) court proceedings controlling one and the same arbitral decision on jurisdiction as the main matter one under Art. 16(3); the other, independent setting aside of the award on jurisdiction; and, eventually, another setting aside of the award on the merits for the reasons stated in Art. 34(2)(i). If such practice would develop, it could have a discouraging effect on the arbitrators that would like to resolve jurisdictional issues in their preliminary decisions. iii. Availability of the remedies against negative arbitral decisions on jurisdiction Another area of ambiguities is concerned with the availability of remedies in cases in which the arbitrators have issued decisions rejecting their jurisdiction. One, classic approach, would consider these decisions as irrefutable, inter alia because no one can force the arbitrators to arbitrate if they are convinced that they have no jurisdiction. However, as this is a final decision, the pressure of dissatisfied parties led to emergence of court decisions that expressed the opposite view once relying on the formal reasons (form of the award, see supra at ii.), the other time relying on alleged procedural rights to seek court review at least in respect of the procedural correctness of the arbitral decision-making. In our opinion, although one can well understand dissatisfaction of the parties that were convinced that they had right to arbitrate their disputes, this additional controllability is not necessary, and may ultimately prolong and complicate the process, without bringing substantial benefits for the parties. If arbitrators pronounced that they are not competent to arbitrate, the most efficient and logical next step is to turn immediately to the second closest match to another arbitration or to the competent state court. Arbitrators that were reluctant to rule on the substance of the dispute in the first round will, most likely, remain to be reluctant even if for procedural reasons or otherwise a court authority finds it necessary to strike down their decision. iii. Scope of arbitral authority: do allegations of fraud fall within the scope of submission to arbitration When the courts had to evaluate, in a preliminary fashion, the validity and scope of the arbitral agreement, they were usually expressing favorable views about the use of arbitration, and interpreted broadly the authority of arbitrators. One eminent exception in some jurisdictions relates to the cases in which one party accused the other of fraudulent behavior. Some courts alluded that conspiracy, deceit and fraud are not matters that can be covered by the arbitration agreement. Yet, in commercial reality, mutual allegations of immoral, illegal or fraudulent actions happen often, and excluding them from the scope of arbitral agreements may effectively cripple their effectiveness. Therefore, for the sake of harmonization of the global practice, it would be good to take a uniform position on such objections, and in our view there are no valid reasons why would the broad interpretation that is normally applied to other issues not be applicable to these situations as well. iv. Meaning of inoperative agreements Case law on MAL 8 demonstrates also certain divergences in the interpretation of the meaning of the inoperative arbitration agreements. Differences go into both extremes. Some courts attempted to demonstrate such radical pro-arbitration agreement that they declared as operative agreements that were rightfully abandoned, e.g. by forcing a party to arbitrate, although that party had expressed the wish to use its right to opt for litigation provided in the dispute resolution clause. On the other hand, the position of the German BGH that lack of financial resources makes the arbitration agreement inoperative stretches this term in the opposite direction. In our opinion, if the position of the BGH would become a general rule, it would head the way to abuses, opening ample opportunities to evade the willfully chosen dispute resolution mechanism on the sheer ground of financial weakness. v. What does not later then mean? The moment when a party loses its right to object to arbitral jurisdiction was differently understood by courts in different jurisdictions and even in the same jurisdictions. The strictest rule was applied by a Canadian court, that required a separate plea to the jurisdiction, prior to any statement on the substance. Other courts (also Canadian) were much more relaxed, accepting pleas raised several years after the initiation of the proceedings. In our view, the clause not later than when submitting.... first statement on the substance should be construed in the plain and simple meaning of these words: objection should be raised before, or simultaneously with the statement on substance of the dispute. vi. Should court make substantive inquiries as to whether a dispute exists? Requirement that only disputes can be referred to arbitration has also proven to be ambiguous. In our view, some courts have posed too high thresholds for the existence of disputes, especially taking into account that the evaluation of differences that exist between the parties should be left to arbitrators. 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Such a position is, we believe, wrong: original ideas behind the MAL clearly envisaged dual jurisdiction regarding interim measures. Recent work of UNCITRAL on the revision of provisions on interim measures may, once it is completed, contribute to resolution of such issues by additions and clarifications. v. Residual procedural differences between common and civil law countries Finally, some discrepancies in court reasoning can be attributed to the procedural differences and even different procedural cultures in common law and civil law countries. Only one such difference should be noted in the context of arbitral jurisdiction: in common law jurisdictions, if a plea as to the lack of jurisdiction (due to existence of the arbitration agreement in the same matter) is successfully raised, the court will stay the proceedings. In civil law, the court will not stay the proceedings, but dismiss the claims regarding which the arbitration was agreed upon as inadmissible. Such differences in approach may sometimes have far-reaching effect on the case law and even some substantive reasoning of the courts. As an illustration, a well-covered debate in Canadian courts regarding whether stay of proceedings should be mandatory, or should it be granted under residual discretion that is enjoyed by the courts is imaginable only in a common law jurisdiction. Only gradually, by slow approximation of laws and practices, can we expect that these differences will become milder, and only then can we fully expect that a sufficiently high level of harmonization in the application of the basic rules of international commercial arbitration will be achieved.     PAGE  PAGE 17 UUUUU+V5V]V^VkVVWW*XXXCYJYzYZZZZZZZZZZZZZZZZZZZZZZ[[[սսսͲhZ0JmHnHuhSD hSD0JjhSD0JUh jh UhlhEmH sH h`YmH sH hmH sH hEmH sH hAHmH sH hs,mH sH h]h]mH sH hqpXmH sH h]mH sH +ZZZZZZZZZZZZ[[[[[gdxDh]hgdMz$ &`#$gdf#-5 01h:pMz$. 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