Author(s): Menno Aden
Subject(s): Law, Constitution, Jurisprudence, International Law, Law and Transitional Justice, Public Law, Sociology, Welfare services
Published by: Казанский (Приволжский) федеральный университет
Keywords: error in substantive by arbitrator; challenge of award; UN Convention; interpretation of arbitration; reasons of award;

Summary/Abstract: It is universally accepted that an arbitral award can be challenged if the arbitrator did comply with the agreement of the parties (cf. Art. V of New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958). However, theory and practice do not always meet. Many jurisdictions seem to allow the arbitrator to deviate from such agreement without effect to the award. The article focuses on the question as to which extent the arbitrator is bound by the state/national law chosen by the parties or applicable but by virtue of international private law. Common wisdom has it that an arbitral award cannot be annulled or denied recognition because the arbitrator erred in the interpretation of the substantive law. Author accepts that in a motion to challenge an arbitral award the state court shall not act as some kind of court of appeal. Therefore, arbitrator must not apply the substantive law in the same way the courts of the respective country do, but he is obliged and the state court is competent to review, whether the award has been made in accordance with the agreement of the parties. To this end, the arbitration clause must be carefully interpreted to find out what the parties by choosing, e.g., Swiss law really meant: namely, “law” and not a paralegal regime like ex aequo et bono, as well as “Swiss” – and not German, English etc. Unless this is shown in the reasons of the award, it may be annulled or denied recognition for not being in accordance with the agreement of the parties.

  • Issue Year: 158/2016
  • Issue No: 2
  • Page Range: 322-330
  • Page Count: 9
  • Language: English