Excess of Powers in International Commercial Arbitration : Compliance with the Arbitral Tribunal's Mandate in a Comparative Perspective / Piotr Wilinski.

Format:

Book

Author/Creator:

Wilinski, Piotr, 1986- author.

Language:

English

Subjects (All):

Arbitration (Administrative law).

Physical Description:

1 online resource (559 pages)

Edition:

First edition.

Place of Publication:

The Hague, The Netherlands : Eleven International Publishing, [2021]

Summary:

Although the idea of arbitral tribunal's mandate is in everyday use in the international arbitration scholarship, it remains an elusive concept lacking any legal definition.Often associated with other notions such as the tribunal's mission, powers, authority or even jurisdiction, the meaning of arbitral tribunal's mandate remains a moving target.

Contents:

Intro

Foreword

Table of Contents

List of Abbreviations

Part I

I Introduction

1 Preliminary remarks

1.1 The power to resolve disputes

1.2 The role of legal theories on arbitration

1.3 The discourse over "the excess of mandate" type of challenge

1.4 The concept of the arbitral tribunal's mandate and potential problems in testing its excess

1.5 Working definition of the arbitral tribunal's mandate

1.6 Two dimensions of the mandate and their competing characteristics

1.7 The exceptional character of the post-award procedure

1.8 The place of the "excess of mandate" type of challenge within other grounds for review of the arbitral award

2 Research question(s) and objectives/problem statement

3 Methods and methodology

3.1 Methods and legal sources

3.2 The functional comparison

4 The structure of the research

II The UNCITRAL Model Law on International Commercial Arbitration

1 Introduction

2 Court standard of review at the post-award stage

2.1 The universal "pro-arbitration" approach

2.2 The scope of the court's review

2.3 Remedies at the court's disposal

3 The concept of the arbitral tribunal's mandate under the Model Law

3.1 Temporal aspect of the tribunal's adjudicative function

3.2 Violation of the scope of the submission to arbitration

4 Limits to the arbitral tribunal's "mandate

4.1 Agreement to arbitrate

4.2 Parties' (subsequent) submissions

4.3 Mandatory rules of law of public policy character

4.4 The importance of the consent, the request and the law: the three keyholes test

5 The Model Law approach to the "excess of mandate" type of challenge

5.1 Differences in the official language versions of the Model Law and the implementation of the Model Law

5.2 Textual interpretation of Article 34(2)(a)(iii) of the Model Law.

5.2.1 The importance of "the submission to arbitration

5.2.2 The difference between "the terms of the submission to arbitration" and "the scope of the submission to arbitration

5.2.3 The meaning of a "dispute

5.2.4 The meaning of "matters

5.2.5 Conclusion of the textual analysis

5.3 The interface between grounds for challenge prescribed by the Model Law

6 Application of the three keyholes test to selected issues that might fall outside the arbitral tribunal's "mandate

6.1 Decisions on parties' claims

6.1.1 Decision on contractual claims

6.1.2 Decision on contractual counterclaims

6.1.3 Decision on set-off

6.1.4 Decision on claims/counterclaims based on torts or pre-contractual liability

6.1.5 Decision on new claims/counterclaims and change of claims/counterclaims

6.1.6 Decision not covering all claims/counterclaims

6.2 Process of application of law by the arbitral tribunal

6.2.1 Determining the method of selection of applicable law

6.2.2 Decision on applicable law

6.2.3 Ascertaining the content of applicable law by the arbitral tribunal

6.2.4 Application of mandatory rules of law (of public policy character) by the arbitral tribunal

6.2.5 Decision reached ex aequo et bono or as amiable compositeur

6.3 Decisions on remedies

6.3.1 Decision on damages

6.3.2 Decision on specific performance

6.3.3 Decision on contract adaptation and filling of gaps in the contract

6.4 Decisions accessory to the parties' main submissions and the merits of the case

6.4.1 Decision on interest

6.4.2 Decision on costs

6.4.3 The procedural decisions of the arbitral tribunal

7 Concluding remarks

III France and Book IV of the Code of Civil Procedure

2 Dualism of the French arbitration regime: different statutory architecture for domestic and international arbitration.

2.1 Legal framework for international arbitration

2.2 The importance of domestic arbitration law

3 Court standard of review during the setting aside

3.1 Pro-arbitration approach towards the arbitration award

3.2 The scope of the court's review

3.3 Remedial powers of the courts

4 Delineation of the mandate: the importance of the consent, the request and the law: the three keyholes test

4.2 Relevance of parties' submissions: reference of a dispute and other requests of the parties

4.3 Mandatory rules of law of (French international) public policy and their impact

5 The French concept of the arbitral tribunal's mandate and testing its excess at the post-award stage

5.1 The functional aspect of the arbitral tribunal's mandate

5.2 The contractual framework of the arbitral tribunal's mandate

5.3 The time limits for the execution of the arbitral tribunal's mandate

5.4 The concept of the mandate (and of its excess) under Article 1520(3) of the CCP

5.5 (Contractual) waiver of the right to set an arbitral award aside

6 Application of the excess of mandate ground to selected decisions of the arbitral tribunal

6.2.1 Decision on the method of determining applicable law

6.2.4 Application of mandatory rules of law by the arbitral tribunal.

6.2.5 Decision reached as amiable compositeur or on equity

6.4.3 Decision on procedure

IV England and the Arbitration Act of 1996

2 Historical overview of the development of judicial scrutiny over arbitral awards under English arbitration law

2.1 Judicial control of arbitral awards before the 1889 Act

2.2 Judicial review of arbitral awards before the 1996 Act

2.3 The 1996 Act: work in progress

3 The three-headed concept for the challenge procedure

4 Testing the scope of the substantive jurisdiction: the importance of the contractual framework for the arbitral tribunal's powers

4.1 The court standard of review when faced with the challenge

4.1.1 The scope of the court's review

4.1.2 Remedies at the court's disposal

4.2 Limits to the scope of the arbitral tribunal's substantive jurisdiction

4.2.1 The agreement to arbitrate and its scope

4.2.2 Relevance of parties' submissions

4.2.3 Overriding and mandatory rules of public policy

5 Substantial injustice and the concept of "serious irregularities" and its relevance for testing the mandate

5.1 The court's standard of review as conditioned upon the seriousness of irregularity

5.1.1 The scope of the court's review limited to the irregularities listed

5.1.2 The two-step test exercised by the courts faced with challenge

5.1.3 The high threshold for the irregularity to amount to substantial injustice

5.1.4 Remedies at the court's disposal.

5.2 Selected "irregularities" relevant in the context of the arbitral tribunal going beyond the parties' requests

5.2.1 Breach of general duties of the arbitral tribunal

5.2.2 Excess of powers

5.2.3 Failure to deal with all the issues that were brought before the arbitral tribunal

5.2.4 Uncertainty or ambiguity as to the effect of the award

6 "Appeal on point of law": a limited safeguard of the system and the arbitral tribunal's discretion to apply the law

6.1 The court's standard of review when faced with challenge

6.1.1 Review based on factual findings made in the arbitral award

6.1.2 Remedies at the court's disposal

6.2 Distinctive features of the Section 69 challenge

6.2.1 The opt-out character of the system

6.2.2 Appeal on point of law not fact

6.2.3 Appeal on point of English law only

7 The application of a three-headed concept to selected issues that might fall outside the arbitral tribunal's authority

7.1 Decisions on parties' claims

7.1.1 Decision on contractual claims

7.1.2 Decision on contractual counterclaims

7.1.3 Decision on set-off

7.1.4 Decision on claims/counterclaims based on torts and pre-contractual liability

7.1.5 Decision on new claims/counterclaims and change of claims/counterclaims

7.1.6 Decision not covering all claims/counterclaims

7.2 The process of application of law by the arbitral tribunal

7.2.1 Determining the method of selection of applicable law

7.2.2 Decision on applicable law

7.2.3 Ascertaining the content of the applicable law by the arbitral tribunal

7.2.4 Application of mandatory rules of law by the arbitral tribunal

7.2.5 Decision based on equity or reached ex aequo et bono

7.3 Decisions on remedies

7.3.1 Decision on damages

7.3.2 Decision on specific performance.

7.3.3 Decision on contract adaptation and filling of gaps in the contract.

Notes:

Description based on publisher supplied metadata and other sources.

Description based on print version record.

Includes bibliographical references.

ISBN:

9789460945120

9460945120

OCLC:

1250089404