Decisions on Jurisdiction, Plea of Lack of Jurisdiction - Chapter 15 - Arbitration Law of Czech Republic: Practice and Procedure
Alexander J. Bělohlávek, Univ. Professor, Dr.iur., Mgr., Dipl. Ing. oec/MB, Dr.h.c. Lawyer admitted and practising in Prague/CZE (Branch N.J./US), Senior Partner of the Law Offices Bělohlávek, Dept. of Law, Faculty of Economics, Ostrava, CZE, Dept. of Int. and European Law, Faculty of Law, Masaryk University, Brno, CZE (visiting), Chairman of the Commission on Arbitration ICC National Committee CZE, Arbitrator in Prague, Vienna, Kiev etc. Member of ASA, DIS, Austrian Arb. Association. The President of the WJA – the World Jurist Association, Washington D.C./USA.
15.I. SECTION 15(1) OF THE ARBACT
Arbitrators are authorized to assess their jurisdiction upon an objection raised by a party or of their own motion (regarding decisions on jurisdiction initiated by an objection—see Section 15(2) of the ArbAct). The author is of the opinion, though, that the arbitrators are not only authorized but are also obliged to do so. However, this obligation is not intended to substitute for the activity of the parties and their obligation to raise an active defense. In other words, arbitrators are certainly not obliged to substitute for the respondent’s procedural defense. The arbitrators’ obligation to assess their own jurisdiction corresponds to the general obligation to assess the fulfillment of the procedural requirements and the requirements for hearing the case. (However, absence of the requirements for hearing the case need not influence jurisdiction, whereas absence of jurisdiction always bars the hearing and resolution of the dispute.) Consequently, arbitrators are both entitled and obliged to refuse jurisdiction if necessary, especially if the absence thereof is obvious. In practice, this will primarily apply to the absence of objective arbitrability or to those cases in which the obligation of the forum to assess the fulfillment of the procedural requirements is prescribed by law.