Guest: mooter - 2010-10-06 14:57:11
We are just wondering if there can be problem of jurisdiction when the tribunal (in our case not with the original chairman) is not right constituted. Regardless if the replacement of the chairman is possible, is that an jurisdictional issue? Arbitration agreement is - as far as I see it - valid. May be the enforcment of the award may be problematic but not the tribunal's jurisdiction.
deepakelanthoor - 2010-10-06 15:25:01
Jurisdiction issues are not confined to validity of the arbitration clause alone. There may be other issues including the propriety of the constitution of the tribunal. If a tribunal is improperly constituted it may be said to be incompetent or lack the jurisdiction to hear the matter. The principle of competence competence is wide enough to accommodate such circumstances.
For a brief introduction to concepts including competence competence, see http://lexarbitri.blogspot.com/2010/10/vindobona-junction-introduction-to.html
Guest: mooter - 2010-10-06 15:44:07
I see... can this be summarized like the following:
1. There must be an valid agreement to arbitration in "gerneral" and
2. The correctly (according to the agreement) constituted tribunal has to hear the case.
If 1 fails there is no arbitration at all. If 2 fails there is arbitration and a tribunal has jurisdiction but the current one, because it is not correctly constituted. The case, let's say, a commercial arbitration matter with a clear ICC Arbitration Agreement would be refered to an SCC (Stockholm Chamber of Commerce) tribunal would be solved in the way that the SCC tribunal lacks jurisdiction. That is, of course, an extreme example. But in essence one vould argue that this ist the case at hand in die Vis Moot.
Maybe 2 failed because it is simply the wrong tribunal.
Did I got that right?
ofroitzheim - 2010-10-06 17:05:52
I am not sure about that issue, yet. But after looking at http://en.wikipedia.org/wiki/Arbitral_tribunal#Jurisdiction
I think that there are 3 points of jurisdiction for an arbitral tribunal
1. valid clause
2. correctly composed tribunal
3. the right subject matter (not beyond the scope of the clause)
Point 2 is most often no problem since at the beginning the arbitrator is normally accepted. If the parties want to challenge somehow an arbitrator or the tribunal afterwards they try to challenge on the grounds of partiality or dependence.
Here we have a the very special case that the party does not challenge the fact that there is a valid arbitration agreement and does not challenge an arbitrator on gounds of lacking independence or impartiality. This party challenges the tribunal because, without lacking independence or impartiality, it is not the wanted tribunal.This may be compared, according to "mooter", with a totally wrong tribunal (eg SCC in place of ICC). The SCC tribunal may be perfectly independend, impartial, dilligent and so on. But it still is not the wanted tribunal. What is wanted stands in the arbitration agreement. In this year's moot case one may argue that the clause is clear what the parties wanted and the Milan Chamber did not give them.
On the other hand (and not comprised by this topic) it is another question if the tribunal is really wrongly constituted. The Milan Rules provide a strong argument that the Chamber can replace an arbitrator in this case. But, as said above, one may argue otherwise.
ofroitzheim - 2010-10-12 11:24:39
I heard some arguments of people claiming that there is no jurisdictional issue at all since a wrongly constituted tribunal cannot touch the jurisdiction of a tribunal. This might be right when talking about the challenge of arbitrators since there are special rules (in nearly all jurisdictions) to handle that issue. But it is not so clear in the case at hand.
In the following I will present some of the counter argruments with my first impression and arguments. As alway with no claim to be right, comprehensive or even smart ;)
Contra: It is clear from the New York Convention Art. V (1)(d) that a wrong constituted Tribunal will only be a ground for refusing enforcement. e contrario it is not a jurisdictional issue since then this would be expressed in the convention. However, the convention is silent.
1. Pro: The Convention deals ONLY with the enforcement of awards. There is no room to conclude that there is any lacuna indicating something. There is no room at all in the convention for pure jurisdictional issues. Only when those issues are related to the enforcement the convention comes into play.
2. Pro: The Convention deals in Art. V(1)(a), (c) with (apparently) juridictional issues, which would also be an issue during the proceeding. Therefore, nothing listed in Art. V(1) can be said to be exclusively for post-award times. (a) and (c) prove that there are issues that can be raised both, during and after the proceddings.
Contra: Jurisdictional issues are mentioned in Art. V(1). Expecially in (a) and (c). But the composition of the tribunal stands in (d), which indicates that this item is not meant to be part of the "jurisdiction fraction". Moreover, an the end of (d) stands the arbitral procedure which is apparently not a jurisdictional issue. Because of its distance to jurisdictional issues and its proximity to procedural issues one has to conclude that it is merely procedural.
1. Pro: The structure of the NYC is not that clear and clean cut. (a) and (c) are jurisdicitonal issues. (b) arguably not. If there were something like the "jusidictional fraction" why would someone spilt them up? Hence, there is no structure providing us with strong arguments.
2. Pro: If the wrong composition of the tribunal is a mere procedural error why is it mentioned before the general procedural error? Wouldn't it be enough to mention the arbitral procedure if that contained the composition of the tribunal?
Sub-Contra: The seperate mention of the composition of the tribunal has only clarification purposes. It is not meant to establish an autonomous jurisdictional issue.
Sub-Pro: And why is there simply an "or" and not a "or beyond that", "or more general"?
Contra: It would apparently be a jurisdictional issue if, like said in this thread, if there acted a SCC tribunal instead of an ICC tribunal, for instance. But here the case is different. Only one arbitrator is maybe not well appointed. This makes the case different.
Pro: And when would it be a jurisdictional issue? Only if all three memebers of the tribunal are wrongly appointed (SCC / ICC). Or two (One ICC and two SCC arbitrators)? There cannot be any of those arbitrary distinctions. The rule has to be that errors in constituting the tribunal is affecting the tribunal's jurisdiction. The only exception can the the lack of independence or impartiality since that complex has special rules (lex specialis principle).
Sub-Contra: The fact that there are special ruies to challenge an arbitrator which, if not independent or impartial, allow to challenge him, proves that there is no jurisdictional issue. In that case the tribunal would be also wrongly constituted and there would be no need for special challenge rules.
Sub-Pro: The Challenge of Arbitrators is more difficult then the simple question if the appointment procedure stipulated in the agreement is followed. Moreover, there is no actual bias needed. Apparent bías may also justify a challenge. In our case we need an actual error in composition of the tribunal. Those (and other differences) justify that there are special rules for the challenge of arbitrators without any clue that this would prejudice the more simple complex of error in composition / appointment procedure.
I think both points of view have good arguments. I prefer the "Pro" point of view. Therefore, it makes sense that the moot problem refers to an "jurisdictional issue" also in this year's moot.
But maybe I am wrong. Do you have other / more arguements?
ofroitzheim - 2010-10-12 12:08:01
PS: Just found a striking reference: s. 30(1)(b) UK Arbitration Act. This proves that the composition of the tribunal has to be a jurisdictional issue.