Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?
International Arbitration (2nd Edition)
International arbitration awards are not subject to appeal, as stated in Section 30 above. Furthermore, Article 34 of the International Commercial Arbitration Law No 19.971 provides that the only recourse against an international award is the motion to set aside. Such recourse cannot be waived by the parties for it is deemed to be a public policy matter.
The awards on the merits is only subject to appeal if the parties have expressly agreed on such possibility in the arbitration agreement and provided that the dispute has not been decided ex aequo bono or through amiable composition.
Article 1231of the NCPC provides that the parties may exclude the possibility of an appeal on the merits.
The parties may waive any possibility at all to appeal an arbitral award if all parties to the dispute have their domicile or place of business outside Switzerland. Such waiver can either be outlined in the arbitration agreement or be made subsequently by written declaration of the parties. Such waiver must, given its implications, be made expressly be the parties. Reference to institutional rules providing for the finality of arbitral awards do not suffice for such purposes.
No, such waivers are invalid. The Bundesgerichtshof held that the right to an application for setting-aside proceedings may not be entirely excluded by the parties in advance. In particular, the parties cannot waive their right to challenge an award based on the non-arbitrability of the subject matter and the violation of public policy grounds.
This issue is not specifically established in Ukrainian law and by analogy the prevailing opinion is that the provisions entitling the parties to challenge the award based on certain grounds are mandatory and such waiver is not valid under Ukrainian law.
In Panama, the parties cannot, under any circumstance, waive any rights to challenge an award.
The right to challenge an arbitral award cannot be waived prior to the issue of the award.
The right of challenge may be exercised at the time when the Court is validating the arbitral award. The grounds for such a challenge is set out at Article 216 of the UAE CPC, as previously outlined and subject to appeal under Article 217 of the UAE CPC.
There are two levels of appeal which a dissatisfied party may avail of, the:
Court of Appeal;
Court of Cassation or Supreme Court in the Emirate of Abu Dhabi.
As noted previously it is only the ratification or annulment that can be challenged, not the merits of the award.
UAE Off-Shore Jurisdictions
The DIFC Arbitration Law does not expressly restrict the parties to the arbitration from agreeing to exclude rights of appeal or recourse to the Courts.
This right may however be waived by the parties or the grounds on which such an application may be permitted can be limited by agreement under the ADGM Regulations (Regulation 54).
The right to declare an award invalid may not be waived by agreement.
If neither party is domiciled in Sweden or has its place of business here, the parties may waive the right to set aside an award or limit the scope of a potential challenge. Such right is not available for parties to arbitrations with at least one of the parties domiciled or having its place of business in Sweden.
The parties cannot exclude or expand the scope of appeal or challenge under the Spanish Arbitration Act.
An award may be set aside only if the applicant alleges and proves (Section 41 of the SAA):
- that the arbitration agreement does not exist or is not valid;
- that the applicant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;
- that the award contains decisions on questions not submitted to arbitration;
- that the appointment of the arbitrators or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with an imperative provision of this act, or, failing such agreement, was not in accordance with this act;
- that the subject-matter of the dispute is not apt for settlement by arbitration;
- that the award is in conflict with public policy.
The grounds contained under Section 41 of the SAA are numerous clausus and must always be respected.
Under Serbian law, a waiver of right to challenge an award before the dispute arises would be considered as null and void. Even if the parties included such a waiver in their agreement, it would have no legal effect and it would be possible to challenge the award before the court.
Under the Civil Code of the Philippines, any stipulation that the arbitrators’ award or decision shall be final, is valid. Arbitration is a consensual agreement between the parties. Therefore, parties may include a stipulation regarding the waiver of rights to challenge an award.
However, this waiver may possibly be questioned in court as being contrary to “morals, good customs, public order, or public policy”.
The Arbitration and Conciliation Act, 1996 specifically provides for appeal against the award of the Domestic Tribunal. In India, it is settled principles of law that a party by way of contract cannot waive any statutory right or any agreement contrary to the statute is null and void to that extent. The doctrine of contractual estoppels is still not recognised in India. Therefore, a party cannot waive any rights of appeal or challenge to an award by agreement before the dispute arises.
There is not a specific rule on this topic. As stated above, only action to annul the award is permitted. In our opinion, this is a public order provision and an arbitration clause in another written agreement between the parties to waive the right to take such action would not be valid. Under Ecuadorian law, the Ecuadorian State and State entities are not permitted to waive their rights and, therefore, they cannot include a provision waiving their rights in an arbitration agreement.
The right to bring a nullity action cannot be waived prior to the issuance of the award, by contract or otherwise. Following the issuance of the award and its notification to both parties, the right to initiate a nullity action can be waived.
The parties may not by agreement waive the right to challenge an award before the dispute has arisen. The statutory provisions on the right of challenge to an award are therefore mandatory. It is generally assumed that waiver would violate the basic principles of justice and fairness, and that the statutory grounds for the setting aside of an award are minimum rights in a democratic society. The Norwegian act does not adopt the view that waiver of the right to challenge may be based in the principle of party autonomy.
The parties may not waive in advance their right to challenge an award by initiating proceedings for setting aside of the award. Argumentum a contrario, parties would be free to renounce the right to commence the setting aside procedure after the award has been delivered.
The ICA Law grants a statutory right to the parties to arbitration to appeal against an arbitral award. Since the Law does not expressly state, as it often does, that, if they so wish, the parties may contract out of this right in the arbitration agreement, it appears that such restriction would not be valid and binding to the parties. This is further supported by section 28 of the Contracts Law, Cap.149, which provides that a party cannot contract out of the right to recourse to justice. However, according to caselaw, a contractual term restricting the period of time that the innocent party has a right of recourse to Justice, constitutes a mutually agreed term, entailing waiver of right and would not contravene the provisions of article 28.
In domestic arbitration, an award can be appealed only if the parties have so agreed (Article 1489, CCP). Where the parties have agreed that appeal is permissible, the parties cannot initiate setting aside proceedings (Article 1491, CCP).
In international arbitration, awards can never be appealed. International arbitration can therefore be subject only to setting aside proceedings (Article 1518, CCP). While an appeal permits a fresh review of the merits of a case, setting aside proceedings permit only the setting aside of an award, on narrowly defined grounds. In the latter case, no review of the merits is in principle permitted (see Question 30).
Parties cannot agree to waive any ground for challenge provided for by Article 827 CCP.
The parties are free to insert any terms in their contract and would be bound by the terms of their agreement. The fact that the parties are empowered to waive their right to challenge an arbitral award is buttressed by the fact that the statutory provisions on challenges to arbitral awards are not mandatory. The validity of such provisions may be challenged in view of the fact that there is a right to approach courts in Nigeria. The Nigerian courts have held in other circumstances that access to the judicial system is a public right which cannot be waived or ousted by agreement.
A general waiver of the rights to appeal is impermissible in Austria. Apart from objective arbitrability and general ordre public, grounds for appeal may be waived once the award has been issued.
Under the FAA, ‘the grounds for vacatur of an arbitration award . . . are not waivable, or subject to elimination by contract.’ In re Wal-Mart Wage & Hour Employment Practices Litig., 737 F.3d 1262, 1267 (9th Cir. 2013). Most state courts that have addressed this issue have reached the same conclusion under state law. However, California will enforce waiver of the right to challenge a judgement confirming an arbitration award where the waiver is “clear and explicit.” Emerald Aero, LLC v. Kaplan, 1144, 215 Cal. Rptr. 3d 5, 21 (Ct. App. 2017), as modified on denial of reh'g (Mar. 21, 2017), review denied (June 14, 2017).
Pursuant to article 900 GrCCP the parties may not ex ante waive their right to challenge the award. An ex post waiver is always deemed valid. Nevertheless, an ex ante waiver may be deemed valid in case the respective agreement is ratified by law which prevails over article 900 GrCCP as lex specialis.
Under the Israeli Arbitration Law, the rule is that there is no right of appeal on the arbitral award unless the parties decided in the arbitration agreement on one of the alternatives of appeal provided for under the law (see answer to question 30 above).
Under s.69(1) of the 1996 Act, the parties to arbitral proceedings can agree to waive the right to appeal to the court on a point of law.
The right to challenge the award for lack of jurisdiction or serious irregularity cannot be waived. However, s.73 of the 1996 Act states that if a party continues to take part in the proceedings, it may lose the right to raise such an objection late in the proceedings unless it can prove it did not know of the grounds for objection at the time.