Chapter 32 - Full De Novo Review Before A New Arbitral Tribunal - International Arbitration Law And Practice, Third Edition
Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.
Originally from International Arbitration Law and Practice, Third Edition
32.1. Hostility to Any Review of the Merits
Arbitration circles generally take the approach that arbitral awards are untouchable on the merits and therefore that such a review is taboo,1 and have maintained that while review of the award on procedural grounds is unavoidable and thus must be tolerated, the award should not be subject to state court review or to review by other arbitrators.
According to the general view, the merits should then remain untouched and the international conventions on commercial arbitration have respected that wish.
In its reasons the court in Dean2 emphasized:
“A party’s choice to accept arbitration entails a trade off. A party can gain a quicker, less structured way of resolving disputes, and it may also gain the benefit of submitting its quarrels to a specialized arbitrator … Parties lose something too: the right to seek redress from the courts for all but the most exceptional errors at arbitration.”
CHAPTER 32: FULL DE NOVO REVIEW BEFORE NEW ARBITRAL TRIBUNAL
The Various Views
32.1 Hostility to Any Review of the Merits
32.2 Weakness of This Position
32.3 Challenges before State Courts or before a Second degree Arbitrator?
The Washington Convention
32.4 The Washington Convention – Ad Hoc Committee
32.5 Commodities Arbitration
32.6 Full De Novo Reconsideration
The European Court of Arbitration
32.7 The European Court of Arbitration Solution
32.8 Condition for Leave to Appeal
The CPR Rules
32.9 The CPR Rules
32.10 Sports Arbitration
The Arbitration Chambers of Paris
32.11 The Arbitration Chambers of Paris
Coordination between the Various Challenges
32.12 Coordination between the Various Challenges to State Courts against the First Instance Award, Appellate Arbitral Proceedings and Challenges against the Latter
Other Supervising Bodies?
32.13 ICSID and European Court of Human Rights as Supervising Bodies