Dismissal of a Motion to Annul an Arbitral Award - Chapter 33 - 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.
33.I. CONCEPT AND CONSTITUTIONAL COMPLIANCE OF SECTION 33 OF THE ARBACT
The court is obliged to dismiss a motion to annul an arbitral award if the party requesting the annulment failed to plead the grounds therefor in the arbitral proceedings before the party’s first act in the merits of the case, despite having an opportunity to do so. This applies to the following cases: (•) the alleged reason for annulment of the arbitral award is invalidity of the arbitration agreement (i.e. not the lack of [objective] arbitrability of the dispute) with respect to the subject matter of the dispute, or (•) the reason for annulment of the arbitral award is arbitrator challenge.
It is necessary to point out that the compliance of Section 33 of the ArbAct (today, the first sentence of the provision) with the Constitution has also been confirmed by the ConCourt. Section 33 of the ArbAct was challenged in a constitutional complaint filed against the Decision of the AC, Case No. Rsp 181/2000. The complainant demanded that the Constitutional Court repeal the said provision, arguing that Section 33 is unconstitutional and referred to breach of the right to one’s lawful judge enshrined in Article 38 of the Charter. The motion to repeal the provision was in that case rejected by Resolution of the ConCourt, Case No. III. ÚS 460/2001.3 The ConCourt held that the motion was filed by an unauthorized person in terms of Section 43(1)(c) of the ConCourtAct and Section 64(1)(d) of the ConCourtAct. It is necessary to emphasize, though, that the concept of the first sentence of Section 33 of the ArbAct corresponds to the principle of confidence in non-exercising a particular right, and it does not constitute any excess from the perspective of Czech domestic civil procedure. Besides, the right to one’s lawful judge does not apply in arbitration, it is transformed (as a result of the arbitration agreement) into the right to constitute the arbitral panel or to influence the composition of the arbitral forum (see Section 7 of the ArbAct). The compliance of this provision with respect to the grounds for annulment of an arbitral award pursuant to Section 31(b) of the ArbAct is based on the manner of establishing the jurisdiction of arbitrators, i.e. by agreement within the structure of the statutory framework (lex arbitri).