Judicial review of preliminary affirmative rulings on jurisdiction under Article 16(3) of the UNCITRAL Model Law remains a largely overlooked area in international arbitration. The absence of clear guidance in the Model Law regarding the intensity of review has caused national courts in Model Law countries to apply differing interpretations and approaches. This inconsistency has created conceptual ambiguity, a lack of clarity, and increased uncertainty, highlighting the need for a more harmonised approach to the review, writes Mette Ankersen, based on her Master’s thesis.
By Mette Ankersen, Junior Associate at Bech-Bruun
The Model Law Article 16(3) permits judicial review of arbitral tribunals’ preliminary rulings on jurisdiction while arbitration proceedings are ongoing. The primary legal issue before national courts is whether the arbitral tribunal’s jurisdiction is validly derived from the parties’ arbitration agreement. This review involves an assessment of the facts, evidence, and arguments presented before the arbitral tribunal. The intensity of judicial review determines whether national courts defer to the arbitral tribunal’s decisions on factual and legal matters or whether they independently render their own decisions, potentially disregarding the tribunal’s conclusions. Although there are commonalities in how courts assess the tribunal’s legal and factual findings, the level of deference to these conclusions varies considerably.
Key Considerations in Determining the Intensity of Review
The arbitration process is fundamentally anchored in the principle of party autonomy, which allows parties to choose arbitration over court litigation. The establishment of an arbitral tribunal is contingent upon the voluntary consent of the involved parties. Consequently, any attempt to impose arbitration without such consent risks undermining the tribunal’s legitimacy, credibility, and fairness, as it contravenes the core principle of party autonomy that underlies the arbitration process.
When national courts review preliminary affirmative rulings, they essentially interfere with the principle of party autonomy and the competence granted to the arbitral tribunal. Such interference is legitimised by the review authority under Article 16(3) of the law which purpose is to prevent the parties from wasting time and resources on unnecessary arbitration cases and to deter delay tactics.
However, it may be necessary to find a balance between judicial review and the competence of the arbitration tribunal to ensure that both purposes are adequately served. This does not imply uncritical support for arbitration parties, arbitrators, or institution. Rather, it reflects recognition of arbitration as a dispute resolution mechanism chosen by the parties acknowledging that arbitration offers distinct advantages, such as flexibility, confidentiality, and specialised expertise, which are better suited to the parties’ needs and preferences. This balance, however, neither reflects hostility towards courts or government authority. Instead, it emphasises that supporting arbitration is about ensuring it fulfils its intended purpose effectively.
Awards and Setting Aside Procedures
Model law countries generally agree that Article 16(3) should be interpreted in conjunction with Articles 34(2)(a)(i) and(iii). This interpretation may be supported by Article 2A of the UNCITRAL Model Law, which encourages uniformity in the interpretation and application of its provisions.
However, there is no consensus on whether a preliminary ruling qualifies as an award or how intense the review is under these provisions. Case law in international arbitration may indicate that national courts should intervene under Article 34(2)(a)(i) and (iii) only when the arbitral tribunal’s decision is fundamentally flawed or in exceptional circumstances. This approach reflects significant deference to the tribunal’s findings of fact and law, with limited opportunities to introduce new evidence. A less intensive review particularly serves the interests of party autonomy and demonstrates a high level of respect for the competence of the arbitral tribunal. However, the intensity of review under Article 34(2)(a)(i) and (iii) continues to be unclear.
Should preliminary rulings not be considered awards, the intensity of review under Articles 16(3) and 34(2)(a)(i) and (iii) may vary. This could result in speculation and delaying tactics, especially if Article 16(3) does not have a preclusive effect, thus defeating its purpose.
De Novo and Correctness Standards
A literal interpretation of Article 16(3) may suggest that “deciding the matter” involves a new hearing that allows for the introduction of new evidence, arguments, and grounds for challenging jurisdiction. This broadens the basis upon which courts conduct their review, resulting in a higher degree of intensity.
When parties enter into arbitration agreements, they waive the associated legal safeguards that comes with court proceedings. The intense review aims to validate this waiver and enable its confirmation by national courts, thereby maintaining minimum standards of procedural fairness within the arbitration process.
Two approaches to intense reviews, as derived from various case law, are the correctness standards and the de novo standards. Under correctness standards, it seems that national courts independently review the arbitral tribunal’s decisions on legal and factual matters, as well as any new evidence presented. The courts are not obligated to automatically defer to or adopt the tribunal’s legal and factual decisions as binding for their own judgments. Instead, the judges exercise their own discretion in evaluating the correctness of the tribunal’s ruling.
Under de novo standards, derived from [2010] UKSC 46 (“Dallah v Pakistan”), national courts undertake a completely new and independent examination of the jurisdictional issue, forming their own legal and factual conclusions. The courts are not restricted to consider the arbitral tribunal’s findings.
Dallah v Pakistan – scope for article 16(3)?
As mentioned above, Dallah v Pakistan is frequently cited in support of the de novo standards. The English Supreme Court held that the jurisdiction of an arbitral tribunal should be independently reviewed, necessitating a new hearing and examination. This approach is referred to as de novo, which is Latin for “anew” or “from the beginning”. This raises the question of whether such a review applies under Article 16(3) of the Model Law. Dallah v Pakistan did not address Article 16(3), but focused on the New York Convention, which governs the recognition and enforcement of arbitral awards.
The Convention aims to establish a framework that facilitates the recognition and enforcement of arbitration awards across different jurisdictions, ensuring a more seamless process, thereby preventing contracting states from imposing overly restrictive rules. Additionally, national courts are encouraged to consider international considerations, such as diplomatic relations, when enforcing arbitral awards. If an award cannot be enforced in relevant jurisdictions, the core purpose of arbitration—providing a quicker, more cost-effective dispute resolution—fails, potentially leading to significant financial losses for the parties. These considerations, however, may not be applicable or relevant under Article 16(3) of the Model Law, as the arbitration proceedings are ongoing and no final decision on the merits has yet been made during the judicial review.
Any Limits on Review?
While the competence-competence principle does not explicitly limit the intensity of review, it may set boundaries for introducing new arguments. This is particularly relevant if the jurisdictional objections undergo significant changes, potentially resulting in a new objection. National courts may also be sceptical of a party’s requests to include evidence not previously presented to the tribunal, especially when delayed submissions lack a compelling justification. A thorough examination of this, however, falls outside the scope of this article.
Harmonising the Review
To uphold the integrity of the arbitration process and prevent the pitfalls of ‘forum shopping,’ a more harmonised approach to these reviews is essential. Achieving such harmonisation would contribute to safeguarding the purpose of Article 16(3), creating a more reliable and predictable framework within international arbitration. This, in turn, would also enhance overall efficacy, legitimacy, credibility, and fairness of arbitration proceedings.
Mette Ankersen
Junior Associate at Bech-Bruun.