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Jurisdictional Challenges and Interim Measures – a review
Nigel Cooper Q.C.
Scope of this talk
The purpose of my short session will be to look at:
Challenges to the jurisdiction of the Tribunal
Interim measures to assist the arbitral process
Challenges to the Jurisdiction
Three Principal Issues:
Is the dispute within the scope of the arbitration agreement? (Question of Construction)
Is the arbitration agreement valid? (Separability)
Who decides? (Kompetenz Kompetenz)
Vee Networks Ltd. v. Econet Wireless International Ltd
Challenges to the JurisdictionConstruction:
Purposive approach – avoids narrow distinctions between different wordings of clauses
Starts from the position that assumes that commercial parties intended all disputes arising from their contract to be determined by the arbitration Tribunal
Matters such as whether contract can be rescinded for fraud/bribery/mis-representation likely to be within the scope of the clause.
Fiona Trust v Privalov [2008] 1 Lloyd’s Law Rep. 254
Challenges to the Jurisdiction
Separability
Principle that the arbitration agreement is a separate agreement from the underlying agreement in which it is found.
SIAC Rules 2010, Article 25.2; ICC Rules 2012, Article 6.3
Arbitration Act 1996, s. 7; Arbitration Act 2002, s.21(1)
If the underlying agreement is invalid, this will not affect the validity of the arbitration agreement
But what if there no agreement at all?
Challenges to the Jurisdiction of the Tribunal
Who decides?
International consensus now is that challenges to the jurisdiction should be dealt with primarily by the Tribunal or arbitral body chosen by the Tribunal
SIAC Rule 2010, article 25
ICC Rules 2012, article 6
Uncitral Arbitration Rules 2010, Article 23 (Model Law, Article 16)
Arbitration Act 1996 (UK), s.30 and s.32(3)
Challenge to the jurisdiction of the Tribunal
Bundesgerichtshof decision of 27 Feb 1970 (1990) Arbitration International vol 6, no. 1, p.79
“There is every reason to presume that reasonable parties will wish to have the relationships created by their contract and the claims arising therefrom, irrespective of whether their contract is effective or not decided by the same tribunal and not by two different tribunals
Challenge to the jurisdiction of the TribunalComandate Marine Corporation v. Pan Australia
Shipping [2008] 1 Lloyd’s Rep. 119, [2006] FCAFC 192 at para. 165:
“This liberal approach is underpinned by the sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places. … The benevolent and encouraging approach to consensual alternative non-curial dispute resolution assists in the conclusion that words capable of broad and flexible meaning will be given liberal construction and content. This approach conforms with a common sense approach to commercial agreements, in particular when the parties are operating in a truly international market and come from different countries and legal systems and it provides a appropriate respect for party autonomy.”
Challenge to the jurisdiction
Jurisdictional challenges before the Tribunal
Objections to be taken early – before first step in proceedings/statement of defence
May be dealt with as part of Award on merits or as Preliminary Issue
Note possibility of seeking injunctive relief from Tribunal if party seeking to uphold Tribunal’s jurisdiction
Challenge to the JurisdictionWhat if unwilling to submit to jurisdiction of the Tribunal
Ad hoc submission
Take no part in the arbitration and contest the jurisdiction of the Tribunal at the enforcement stage
Seek declaratory relief/injunctive relief from a national court
Interim MeasuresRange of measures but of particular note are:
Protection of the right to arbitrate;
Preservation of evidence/assets:Early disclosure;
Preservation of assets (freezing injunctions/disclosure of assets)
Common international arbitration rules enable Tribunal to grant such orders and provide a procedure for appointment of emergency arbitrator if needed
Interim Measures
Relief from national court:
May be accessible more quickly;
Effective against third parties;
Possibly greater deterrent effect;
But:Need to establish that relief from Tribunal not available/effective;
May require counter-security or only be available in case of urgency or with permission of the Tribunal (law of the seat)
Range of Measures
Uncitral Model Law – Article 26.2:Maintain or restore the status quo
Action to prevent or restrain action that cause current or imminent harm or prejudice arbitral process
Means of preserving assets
Preserving evidence
Harm not reparable by damages/reasonable prospect of success
Interim Measures
See also:
LCIA Rules, Article 25
SIAC Rules, Article 26
ICC Rules, Article 28
Note Rules generally provide that application to a judicial authority for interim measures will not be deemed incompatible with the agreement to arbitrate
Procedure
Difficulty with interim measures from Tribunal is the time associated with a consensual process
Major sets of arbitration rules therefore moving towards procedures such as procedure for appointment of an emergency arbitrator
Allows the appointment of an emergency arbitrator to grant urgent relief before the Tribunal has been constituted
Procedure
Parties’ consent to the emergency arbitrator procedure assumed from consent to the relevant arbitration rules as governing any dispute between the parties
Basic procedure:
Application by one party
Appointing authority makes appointment of emergency arbitrator from panel (typically within one day)
Procedure
Limited period for right of challenge to arbitrator (again typically one day)
Emergency arbitrator establishes timetable for decision (typically again within two days)
Same jurisdiction to make interim orders as Tribunal
Emergency Arbitrator may require security
Emergency Arbitrator’s jurisdiction revoked once Tribunal is appointed
Points to Note
Parties can opt out
Orders of Emergency Arbitrator subject to review by Tribunal
Emergency Arbitrator procedure does not prevent application to national court
Some doubts about the enforceability of an order by an Emergency Arbitrator under the New York Convention (is it a ‘final award’)
Examples
ICC Rules 2012, Article 29 and Appendix V
SIAC Rules 2010, Article 26 and Schedule 1
ICDR Rules 2009, Article 37
SCC Rules 2010, Appendix II
Expedited Procedures
Not concerned with interim measures per se but mechanism to enable swift resolution of dispute
May be limited to lower value disputes (see for example KCAB International Arbitration Rules 2011, Article 38)
Absence of procedure does not prevent the parties agreeing their own expedited timetable
Quadrant Chambers10 Fleet StreetLondon EC4Y 1AU020 7583 4444www.quadrantchambers.com