Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
34 Cards in this Set
- Front
- Back
|
Introduction |
- How it's done - Bharat v Kaiser - NYC Article V - STET International |
|
|
How? |
The award debtor can either do nothing and wait for the creditor to enforce the award or can apply to the seat to set aside the award. |
|
|
Bharat v Kaiser |
When considering how to set aside the award, the seat of arbitration must be consulted as this has the power and legislation to do so. This can either be the ML or AA. |
|
|
NYC Article V |
As setting aside the award will be pursued in the national courts of one country, article V will not need to be applied as this concerns cross-border enforcement of awards. |
|
|
STET International |
A case concerning public policy as well, but also recognises that the grounds to set aside an award are very narrow so as not to undermine the validity of the arbitration agreement. |
|
|
Procedures and Conditions |
- Time Limits - Exhausting other remedies - Waiving your right to object |
|
|
Time Limits |
Under the Model Law article 34 the applicant has 3 months after the award has been given to set aside the award. The AA S70 limits this to 28 days. |
|
|
Exhausting other remedies |
This is mentioned in the AA S70 but not in the Model Law. |
|
|
Waiver |
AA S73 and ML 4 both consider that a party waives their right to set aside the award if they do not object at the outset. |
|
|
Setting Aside: Merits |
- S69 - Shell Egypt - Sangi Polyster - Schwebel |
|
|
S69 |
Is an appeal on a point of law strictly limited to English law and the AA. This does not appear in the ML. |
|
|
Shell Egypt |
As S69 is a non-mandatory provision within the AA (Schedule 1) parties can expressly exclude the section. However this is an onerous test. So in this case, the AA expressly stating that the award shall be final was not sufficient to exclude s69. |
|
|
Sangi Polyster |
Parties expressly stating to accept the ICC arbitration rules means an implied exclusion of S69 |
|
|
Schwebel v Schwebel |
Only English law can be appealed under S69 |
|
|
Setting aside: Lack of jurisdiction |
- ML 34 - Fiona Trust - Sumukan - AA 67 |
|
|
ML 34 |
The courts of the seat may set aside an award if there is an invalid AA, the dispute arose outside of the AA scope or there was improper composition. |
|
|
Fiona Trust |
The courts will however seek to construe all disputes coming under the arbitration agreement unless expressly said otherwise |
|
|
Sumukan |
The court may set aside the award where the correct composition procedure was not followed. |
|
|
Procedural Irregularity |
- ML 34 - Lew - Swedish AA S34 - S68 - S73 |
|
|
ML 34 |
The courts may set aside an award if it relates to the list of procedural irregularities mentioned |
|
|
Lew |
The test is of 'significant injustice' cause to one of the parties. They suggest that the award should be said aside if it could be said that had the 'injustice' not have happened, a different decision would have been made. |
|
|
Swedish AA S34 (6) |
Takes a far more relaxed approach than Lew which only requires that there be irregularity affecting the outcome |
|
|
S68 |
Concerns where serious irregularity affects the tribunal, procedure and award |
|
|
S73 |
Parties will however waive their right to object if they fail to bring proceedings within the time limits |
|
|
Case examples |
- Vee Networks - Lesotho Highlands - Schwebel v Schwebel - B v A |
|
|
Vee Networks |
Where the irregularity causes an arbitrator to come to an unfavourable outcome. Also noted that the material issue of the claim must not be twisted to meet the facts. No substantial injustice within the meaning of S68 as the alleged ultra vires did not cover the arbitrator's reasoning. |
|
|
Lesotho Highlands |
House of Lords ruled that policy may restrict the setting aside of the award in relation to ultra vires, exercised improperly, tribunal exercises power it does not have. These are all not considered 'serious irregularity'. A mere error of law would not amount to an excess of power under s 68(2)(b). L's challenge to the award of pre-award interest failed because the precondition of "substantial injustice" in s 68(2) had not been established. |
|
|
Schwebel v Schwebel |
Generally in relation to S68, a 'serious wrong' will be required to satisfy setting aside of the award. |
|
|
B v A |
This cases recognised that a party cannot bring a setting aside claim under S68 by bringing a S69 claim. This is to avoid opening the floodgates to such claims. |
|
|
S68 |
- S68 (3) - S68 (2) (a) (S33) - Born - STET International |
|
|
S68 (3) |
The courts may set aside the award i.e. they have capacity to remit the award or restart proceedings if appropriate |
|
|
S68(2) (a) |
Consider if there is a defect in the award or lack of reasons for the decision of the award in relation to S33 |
|
|
Born |
The obligaiton on the arbitrator is only to give reasons for the award, these do not have to be good reasons |
|
|
STET International |
Award may be set aside if it is against public policy but only in the event of corruption or neglect of justice |
