Introductory Report - Part I - The Review of International Arbitral Awards
Bernard Hanotiau, Professor of Law, University of Louvain, Belgium; Partner, Hanotiau & van den Berg, Brussels.
Olivier Caprasse, Professor of Law, University of Liège and University of Brussels; Hanotiau & van den Berg, Brussels.
When parties decide to insert an arbitration clause in their agreement, they express their will not to have their eventual disputes dealt with by courts one way or another. This does not mean that courts will be excluded from the procedure. They may still play a threefold role. First, they may help the arbitration to proceed: in some countries, courts may help setting up the arbitral tribunal, for instance when one of the parties refuses to appoint its arbitrator; courts may rule on the challenge of an allegedly biased arbitrator, or perfect the award by correcting or interpreting it. Second, the courts’ intervention is naturally required when a party needs to obtain the enforcement of the award. And finally, they may also have to rule on the validity of the award.
In the framework of their various interventions, and obviously more specifically in the last two ones, courts may have the power, or even the duty, to review – to an extent to be determined – the awards rendered by the arbitral panel.
At the occasion of the 2008 IAI Forum, we have been asked to present a comparative study of the review by domestic courts of the arbitral tribunal’s jurisdiction, of the arbitral procedure, of public policy and other aspects of the merits.
These elements correspond to the traditional grounds on which an award may be challenged: jurisdictional grounds, procedural grounds and substantive grounds.
We will compare the law of the jurisdictions represented by the eminent members of the panel: England, France, Sweden and the United States. Due to its importance on the international scene, the Swiss system will also be dealt with, as the Belgian one with which both authors are particularly familiar.
We first have to determine the framework of the review of the awards, i.e., the types of arbitration concerned, the types of decisions that may be challenged and the various procedures which may imply a form of review (I).
We will then study the various grounds for review with respect to jurisdiction (II), procedure (III) and merits (IV).
We will finally examine on a comparative basis the possibility for the parties to conclude an agreement on judicial review (V).