Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure?

International Arbitration (2nd Edition)

Chile Small Flag Chile

International arbitration proceedings and awards may not be appeal under Chilean Law, because it is not possible to review the merits of a case. As stated in Article 34 of the International Commercial Arbitration Law No 19.971 (ICAL), the motion to dismiss (annulment) is the only recourse that parties may try against an arbitral award. Such recourse must be presented before the Court of Appeals within three months since the notification of the final award.

Accordingly, Article 33(2) of the Rules of International Commercial Arbitration of the Santiago Arbitration and Mediation Center states that the arbitral award “will be final, not appealable and binding upon the parties”.

Portugal Small Flag Portugal

Unless otherwise agreed by the parties, an award can only be challenged by an application for setting aside the award according to article 46 of LAV.

Article 46 provides a restricted set of situations in which the award can be set aside, e.g. when one of the parties was under some incapacity; when there was a violation of fundamental principles referred in article 30 of LAV; when the award dealt with a dispute that cannot be considered included in the arbitration agreement; when the Tribunal was not established according the parties’ agreement; when the Tribunal condemned in amount in excess of what was claimed or dealt with issues that it shouldn’t have dealt; when the subject-matter of the dispute cannot be decided by arbitration or when the award is in conflict with the principles of public policy.

The application must be filed at the Portuguese Appeal Court and must be accompanied by a certified copy of the award or a translation into Portuguese of the award if it was granted by a tribunal seated abroad. The application must be filed within 60 days from the date on which the party received the notification of such award.

Luxembourg Small Flag Luxembourg

An arbitration award can only be challenged on the grounds for annulment that are listed in article 1244 of the NCPC.

Specific time limits are applicable in order to file an application to declare the award null and void. This action must be filed within one month from the notification of the award or from the discovery of the fraud (article 1246 of the NCPC).

Switzerland Small Flag Switzerland

In Switzerland an arbitral award is, in principle, deemed final, which is why appeals against arbitral awards do – as a rule – not have suspensive effect. In practice, however, when an appeal is filed, the parties are nevertheless asked not to commence enforcement proceedings.

Both in international and domestic arbitration an arbitral award, whether final or partial, may only be appealed to the Swiss Federal Tribunal (art. 191 PILA and art. 389 para 1 CPC), i.e. the principle of one instance of appeals applies, such instance being the highest court in the country. In domestic arbitration, pursuant to art. 390 para 1 CPC, the parties are given the option to agree that the arbitral award shall first be appealed to the cantonal high court at the seat of arbitration.

Swiss Law provides for only a very restricted number of grounds on which arbitral awards may be appealed. In international arbitration the grounds for appeal provided by art. 190 para 2 PILA are: (i) the irregular composition of the arbitral tribunal, (ii) an incorrect decision on jurisdiction, (iii) the fact that the arbitral tribunal rendered a decision beyond the claims made by the parties or did not answer all claims raised, (iv) the violation of equal treatment of the parties or their right to be heard, and (v) a violation of the (procedural or substantive) principles of public policy.

In domestic arbitration arbitral awards may be appealed on two additional grounds pursuant to art. 393 CPC, namely (i) if the arbitral award is arbitrary in its result due to it being based on findings that are obviously contrary to the facts as stated in the case file or because it constitutes an obvious violation of law or equity, and (ii) if the costs and compensation fixed by the arbitral tribunal are obviously excessive.

Appeals to the Swiss Federal Tribunal are governed by the Federal Tribunal Act (the CPC governs the procedure for appeals to the cantonal court if so chosen by the parties in domestic arbitration). In both proceedings the appeal must be filed in writing within 30 days of notification of the award.

Chances of success with appeals against arbitral awards are remote. Based on available statistics, the chances of success to appeal an arbitral award on all available grounds other than jurisdiction range around 7%, while appeals on grounds of lack of jurisdiction have a statistical chance of success of about 10%. In addition, appeals proceedings are conducted rather swiftly. A decision of the Swiss Federal Tribunal can generally be expected to be rendered within 6 to 8 months following the lodging of the appeal.

Germany Small Flag Germany

German arbitration law does not provide for an appeal mechanism. Nevertheless, the parties are free to determine an appeal mechanism. Absent any party agreement, the only recourse of the parties is to commence setting-aside proceedings.

If the award has been rendered by a tribunal seated in Germany, section 1059 ZPO applies. The award needs to be challenged upon three months from the date on which the challenging party receives the award.

Section 1059 ZPO lists several grounds to set aside a domestic arbitral award. The list is based on the grounds for the refusal of recognition and enforcement under the New York Convention and includes inter alia:

  • Violation of due process (section 1059 (2) no. 1 lit. a ZPO);
  • Violation of the parties’ arbitration agreement (section 1059 (2) no. 1 lit. b ZPO);
  • Excess of the competences of the tribunal (section 1059 (2) no. 1 lit. c ZPO); and
  • Violation of public policy (section 1059 (2) no. 2 lit. b ZPO);

State courts are not allowed to take any other circumstances into account. In particular, they are prohibited to review the arbitral award on substance (no révision au fond).

Pursuant to section 1059 (4) ZPO, the state court can set aside the award and also refer the case back to the tribunal, if appropriate and requested by a party. In the event that an award is set aside and the matter is referred back to the tribunal, the proceedings will continue before the original tribunal. On the other hand, if the award is set aside but the matter cannot be referred back to the original tribunal, the arbitral proceedings must be repeated from the very beginning.

The decision of the competent court (Oberlandesgericht) can be appealed to the Bundesgerichtshof. The appeal is limited to issues regarding the admissibility of the arbitral proceedings, the jurisdiction of the tribunal as well as the setting aside or the recognition and the enforcement of an award (sections 1062 (1) and 1065 (1) ZPO). Otherwise, the decision of the competent court is binding.

Ukraine Small Flag Ukraine

An arbitral award may be challenged in local courts on the grounds similar to those established by the New York Convention for refusing recognition and enforcement of arbitral awards. The application for setting the award aside should be filed by the party to the local courts of general jurisdiction depending on the seat of arbitration and not later than three months after the receipt of the arbitral award by such party.

Panama Small Flag Panama

In Panama, parties cannot appeal an arbitral award. Parties are only entitled to file a motion to set aside the award (to have it declared null and void) if said award was issued in arbitration proceedings seated in Panama.

An award issued in Panama can only be set aside if the party making the application furnishes proof that:

(i) a party to the arbitration agreement was under some legal incapacity to agree to submit the matter to arbitration; or the arbitration agreement is otherwise invalid under the laws to which the parties have subjected it or, failing any indication thereon, under Panamanian Law; or

(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings or it was otherwise unable to present its case; or

(iii) the award deals with a dispute outside the scope of the arbitration agreement or outside the scope of the terms of the submission to arbitration, provided that if the decision on matters properly within the scope of the arbitration proceedings can be separated from those which are not, only the part of the award which contains decisions outside the proper scope of the arbitration proceedings may be annulled; or

(iv) the composition of the arbitration tribunal or the arbitration proceedings were not made or held in accordance with the agreement of the parties or with the submission to arbitration;

(v) the subject-matter of the dispute is not “arbitrable” under Panamanian Law; or

(vi) the award is in conflict with Panamanian public policy (for domestic awards) or with international public policy (for international commercial arbitration awards issued in Panama).

The application for setting aside or annulling an arbitral award has to be filed before the Fourth Chamber of the Panama Supreme Court within thirty (30) working days from the date when the party making the application has received the award. When filing the relevant complaint, the applicant has to present the award, the agreement containing the arbitration clause or the submission to arbitration, as well as any relevant evidence. No evidence can be filed afterwards by the applicant. The Court will grant thirty (30) working days to the other parties to file an answer to the application, and to file all evidence they deem necessary. If the collection of evidence is necessary, an additional twenty (20) working days period may be granted for such purpose. Finally, the Court will have sixty (60) working days to decide. The Court’s decision is final and binding and it is not subject to appeal.

UAE Small Flag UAE

UAE
There are no specific provisions in the UAE CPC to challenge arbitral proceedings which are in motion. Should a party consider that the arbitration has been commenced subject to a defective arbitration clause, or that no arbitration clause exists, a party may instigate legal proceedings, in certain instances, for example if it has a counterclaim.

Further, arbitral proceedings may be suspended pursuant to Article 209 of the UAE CPC where the underlying dispute, subject to arbitration is also subject to criminal proceedings.

The grounds for an application to nullify an arbitral award are set out in Article 216 of the UAE CPC. These grounds include that:

there was no arbitration deed or the award was rendered in absence of a valid arbitration deed;

the validity of the arbitration agreement had lapsed through prescription (through the operation of law);

the actions of the arbitrators exceeded the scope of the arbitration deed;

the arbitrator’s ruling was given by arbitrators not appointed in accordance with the law;

the arbitral award was issued by some not all of the arbitral tribunal, without the permission of the remaining arbitral tribunal;

the award was issued pursuant to a deed of arbitration in which the subject of the dispute was not given;

the award issued pursuant to a deed of arbitration whose signatories were not empowered to form such a deed;

the arbitral award was issued by an arbitrator who did not fulfil the legal requirements; and

in instance where the following generic provision may be deemed by the UAE Courts to apply: ‘…there is something invalid in the ruling or in the procedures affecting the ruling’.

Should a dissatisfied party wish to appeal the nullification or ratification of an arbitral award, it may do so through the remaining tiers of the court system, the:

Court of Appeal;

Court of Cassation or Supreme Court in the Emirate of Abu Dhabi.

At all times, it is the nullification or ratification which is subject to appeal, not the merits of the arbitral award itself.

UAE Off-Shore Jurisdictions
The DIFC Arbitration Law (Article 41) and the ADGM Regulations (Regulation 53) set out the grounds on which an application for setting aside award may be made.

ADGM
An Arbitral Award may be set aside under the ADGM Regulations only where the Court of First Instance finds that:

‘the subject-matter of the dispute is not capable of settlement by arbitration under the Laws of the ADGM’; or

the recognition or enforcement of the award would be contrary to the public policy of the UAE’.

The above grounds are essentially the same as those on which a foreign arbitral award may be refused recognition and enforcement under Article V of the New York Convention.

DIFC
An Arbitral Award may be set aside under the DIFC Arbitration Law where the Court finds that:

‘the subject-matter of the dispute is not capable of settlement by arbitration under DIFC Law;

the dispute is expressly referred to a different body or tribunal for resolution under this Law or any mandatory provision of DIFC Law; or

the award is in conflict with the public policy of the UAE.

The first and last requirement listed above, as with the ADGM Regulations, are essentially the same as in Article V of the New York Convention.

Sweden Small Flag Sweden

Arbitration proceedings and awards cannot be appealed. However, an award may be challenged in the Court of Appeal.

Moreover, an award can be declared invalid if the subject matter was non-arbitrable, violates public policy, or the award was not in writing or signed by the majority of the arbitrators.

An award rendered in Sweden can be set aside, as a whole or partly, if (i) the arbitration agreement is invalid, (ii) the arbitrators have exceeded their mandate, (iii) Sweden was not the proper place of arbitration (iv) an arbitrator was appointed contrary to the parties’ agreement, (v) an arbitrator failed to meet the impartiality standard or did not possess full legal capacity, or (vi) a procedural irregularity exists which likely affected the outcome of the case.

Hearings will be held, if a party so requests and the court does not find it inappropriate.

The judgment of the Court of Appeal may be appealed to the Supreme Court, but only if leave to appeal is granted by the Court of Appeal.

Spain Small Flag Spain

Section 41 of the SAA provides the grounds on which an award can be challenged, stating that an award may be set aside when the applicant demonstrates:

  1. That the arbitration agreement does not exist or, if it does exist, is void.
  2. The applicant has not been notified about the appointment of an arbitrator or about any order or when the applicant has not been able to exercise its rights.
  3. When the arbitrators have adjudicated matters that were not subject to their decision.
  4. When the appointment of the arbitrators and/or the proceeding is in breach of the agreement of the parties, or, failing such agreement or when such agreement is contrary to the SAA, when such appointment or the proceedings were made in breach of the SAA.
  5. When the arbitrators have decided on matters that may not be subject to arbitration.
  6. When the award is contrary to public order.

Any challenge against an award must be filed within two months as of the date of serving of the award and before the Superior Court of Justice corresponding to the seat of arbitration. Within the challenge, the applicant must provide all supporting documentation and propose any relevant means of evidence. The Court will serve the challenge to the adverse party, which will have a 20-business-day term to oppose, also providing documentation and proposing relevant means of evidence. A hearing may take place if requested by the parties and/or when any admitted means of evidence must be executed before the Court. After the hearing, or when no hearing takes place, the Court will issue its judgment, which is final and not subject to further appeal.

Serbia Small Flag Serbia

It is not possible to challenge the award on merits by an appeal to the court. The only way in which a party may challenge an award before the court is by requesting that the court set aside a domestic award. Foreign awards may be challenged in the course of procedure for their recognition.

Under Serbian law, the award may be set aside for following reasons:

(i) if the arbitration agreement is invalid under the law applicable to its validity;

(ii) if the party against whom the award was rendered was not properly informed on the arbitration proceedings, appointment of arbitrator, or was prevented from making its arguments for other reasons;

(iii) if the arbitral tribunal decided on matters beyond the scope of the arbitration agreement;

(iv) if the composition of the arbitral tribunal or the conduct of arbitration proceedings were in contradiction to the arbitration agreement or the applicable arbitration rules of a particular arbitration institution;

(v) if the arbitral award is based on a false statement of a witness or expert, on a falsified document or if the award was made due to a criminal offense of a party or on arbitrator (provided that these reasons are proven by a final judgement of a criminal court);

(vi) if under Serbian law, the subject matter of the award is not arbitrable;

(vii) if the decision is contrary to the public policy of Serbia.

Philippines Small Flag Philippines

Challenging Awards in Court
For awards in domestic arbitration, the arbitral award may be vacated on the following grounds:

a. The arbitral award was procured through corruption, fraud or other undue means;

b. There was evident partiality or corruption in the arbitral tribunal or any of its members;

c. The arbitral tribunal was guilty of misconduct or any form of misbehavior that has materially prejudiced the rights of any party such as refusing to postpone a hearing upon sufficient cause shown or to hear evidence pertinent and material to the controversy;

d. One or more of the arbitrators was disqualified to act as such under the law and willfully refrained from disclosing such disqualification; or

e. The arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a complete, final and definite award upon the subject matter submitted to them was not made.

The award may also be vacated on any or all of the following grounds:

a. The arbitration agreement did not exist, or is invalid for any ground for the revocation of a contract or is otherwise unenforceable; or

b. A party to arbitration is a minor or a person judicially declared to be incompetent.

The petition to vacate an arbitral award on the ground that the party to arbitration is a minor or a person judicially declared to be incompetent shall be filed only on behalf of the minor or incompetent and shall allege that (a) the other party to arbitration had knowingly entered into a submission or agreement with such minor or incompetent, or (b) the submission to arbitration was made by a guardian or guardian ad litem who was not authorized to do so by a competent court.

In deciding the petition to vacate the arbitral award, the court shall disregard any other ground than those enumerated above.

Not later than thirty (30) days from receipt of the arbitral award, a party may file a Petition to Vacate the Award. A Petition to Vacate the Arbitral Award may also be filed in opposition to a Petition to Confirm the Arbitral Award, not later than thirty (30) days from receipt of the award by the petitioner. The other party, after due notice, shall be given fifteen (15) days from receipt to file a Comment or Opposition to the Petition to Vacate or in lieu of opposition, the other party may file a Petition in Opposition to the Petition. The petitioner may, within fifteen (15) days from receipt of the Petition in Opposition thereto, file a Reply. The court may require the parties to simultaneously submit the affidavits of their witnesses within fifteen (15) days from receipt of such order and to submit reply affidavits thereto within ten (10) days from receipt of the affidavits being replied to. In either case, there must be attached to the affidavits or reply affidavits the documents relied upon in support of the statement of facts in such affidavits or reply affidavits. Unless a ground to vacate an arbitral award as enumerated above is fully established, the court shall confirm the award.

For an award in an international commercial arbitration conducted in the Philippines, the court may set aside or refuse the enforcement of the arbitral award only if:

a. The party making the application furnishes proof that:

(i) A party to the arbitration agreement was under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereof, under Philippine law; or

(ii) The party making the application to set aside or resist enforcement was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside or only that part of the award which contains decisions on matters submitted to arbitration may be enforced; or

(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of Philippine law from which the parties cannot derogate, or, failing such agreement, was not in accordance with Philippine law;

b. The court finds that:

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of the Philippines; or

(ii) The recognition or enforcement of the award would be contrary to public policy.

In deciding the petition, the Court shall disregard any other ground to set aside or enforce the arbitral award other than those enumerated above.

The petition to set aside or a pleading resisting the enforcement of an arbitral award on the ground that a party was a minor or an incompetent shall be filed only on behalf of the minor or incompetent and shall allege that (a) the other party to arbitration had knowingly entered into a submission or agreement with such minor or incompetent, or (b) the submission to arbitration was made by a guardian or guardian ad litem who was not authorized to do so by a competent court.

A Petition to Set Aside an Arbitral Award may only be filed within three (3) months from the time the petitioner receives a copy of the Arbitral Award. Such Petition shall be verified by a person who has personal knowledge of the facts stated therein. The other party, after due notice, shall be given fifteen (15) days from receipt to file an Opposition to the Petition to Set Aside or in lieu of opposition, the other party may file a Petition to Set Aside in opposition to a Petition to Recognize and Enforce or a Petition to Recognize and Enforce in opposition to a Petition to Set Aside. The petitioner may file a Reply within fifteen (15) days from receipt of such Opposition of Petition. If the court finds that the issue between the parties is mainly one of law, the parties may be required to submit briefs of legal arguments, not more than fifteen (15) days from receipt of the order, sufficiently discussing the legal issues and the legal basis for the relief prayed for by each of them. If the court finds that there are issues of fact, it shall require the parties to simultaneously submit the affidavits of their witnesses within fifteen (15) days from receipt of such Order and to submit reply affidavits thereto within ten (10) days from receipt of the affidavits being replied to. In either case, there must be attached to the affidavits or reply affidavits the documents relied upon in support of the statement of facts in such affidavits or reply affidavits. If it deems necessary, the court may conduct oral hearing. Unless a ground to set aside as enumerated above is fully established, teh court shall dismiss the Petition.

For foreign arbitral awards, a Philippine court shall not set aside a foreign arbitral award but may refuse its recognition and enforcement on any or all of the grounds similar to the grounds for setting aside or refusal of enforcement of an award in an international commercial arbitration conducted in the Philippines, as previously enumerated. However, as an additional ground, a foreign arbitral award may be refused recognition and enforcement if the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which that award was made.

The court shall disregard any ground for opposing the recognition and enforcement of a foreign arbitral award other than those enumerated above.

At anytime after receipt of a foreign arbitral award, any party to the arbitration may Petition the proper trial court to recognize and enforce such award. The other party, after due notice, shall be given thirty (30) days from receipt of the Notice and Petition, to file a Verified Opposition. If the court finds that the issue between the parties is mainly one of law, the parties may be required to submit briefs of legal arguments, not more than thirty (30) days from receipt of the order, sufficiently discussing the legal issues and the legal basis for the relief prayed for by each of them. If the court finds that there are issues of fact, it shall require the parties to simultaneously submit the affidavits of their witnesses within a period of not less than fifteen (15) days nor more than thirty (30) days from receipt of the Order. The court may allow the submission of reply affidavits thereto within a period of not less than fifteen (15) days nor more than thirty (30) days from receipt of the Order granting the request. In either case, there must be attached to the affidavits or reply affidavits the documents relied upon in support of the statement of facts in such affidavits or reply affidavits. If it deems necessary, the court may conduct oral hearing. It is presumed that a foreign arbitral award was made and released in due course of arbitration and is subject to enforcement by the court.

Right of appeal
There is no right of appeal against an arbitral award. An arbitral award is final and binding. Consequently, a party to an arbitration proceeding is precluded from filing an appeal under Rules 41 and 45, Rules of Court or a Rule 65 petition for certiorari (by alleging grave abuse of discretion amounting to lack or excess of jurisdiction was committed in the rendition of the Arbitral Award), questioning the merits of an arbitral award with the courts. However, an arbitral award can be vacated, modified, corrected, or set aside under very limited specified grounds by court action.

The exception to the general rule is an arbitral award rendered by the Construction Industry Arbitration Commission (CIAC), which is appealable to the Court of Appeals.

As just-stated, arbitral awards are final and binding, thus, not appealable. However, a party to an arbitration may petition the Regional Trial Court to confirm, correct or vacate an arbitral award in accordance with the Special ADR Rules. The decision and orders of the Regional Trial Court relating to the arbitral award may be reviewed by the Court of Appeals and subsequently by the Supreme Court.
An appeal to the Court of Appeals through a petition for review is allowed only from the following final orders/decisions of the Regional Trial Court:

a. Granting or denying an interim measure of protection;

b. Denying a petition for appointment of an arbitrator;

c. Denying a petition for assistance in taking evidence;

d. Enjoining or refusing to enjoin a person from divulging confidential information;

e. Confirming, vacating or correcting/modifying a domestic arbitral award;

f. Setting aside an international commercial arbitration award;

g. Dismissing the petition to set aside an international commercial arbitration award even if the court does not decide to recognize or enforce such award;

h. Recognizing and/or enforcing an international commercial arbitration award;

i. Dismissing a petition to enforce an international commercial arbitration award;

j. Recognizing and/or enforcing a foreign arbitral award;

k. Refusing recognition and/or enforcement of a foreign arbitral award;

l. Granting or dismissing a petition to enforce a deposited mediated settlement agreement; and

m. Reversing the ruling of the arbitral tribunal upholding its jurisdiction.
Moreover, when the Regional Trial Court, in making a ruling under the Special ADR Rules, has acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law, a party may file a special civil action for certiorari with the Court of Appeals to annul or set aside certain orders of the Regional Trial Court, to wit:

a. Holding that the arbitration agreement is inexistent, invalid or unenforceable;

b. Reversing the arbitral tribunal’s preliminary determination upholding its jurisdiction;

c. Denying the request to refer the dispute to arbitration;

d. Granting or refusing an interim relief;

e. Denying a petition for the appointment of an arbitrator;

f. Confirming, vacating or correcting a domestic arbitral award;

g. Suspending the proceedings to set aside an international commercial arbitral award and referring the case back to the arbitral tribunal;

h. Allowing a party to enforce an international commercial arbitral award pending appeal;

i. Adjourning or deferring a ruling on whether to set aside, recognize and/or enforce an international commercial arbitral award;

j. Allowing a party to enforce a foreign arbitral award pending appeal; and

k. Denying a petition for assistance in taking evidence.

A party, who is not satisfied with the decision of the Court of Appeals, may appeal to the Supreme Court. However, review by the Supreme Court is not a matter of right, but of sound judicial discretion, which will be granted only for serious and compelling reasons resulting in grave prejudice to the aggrieved party. The following, while neither controlling nor fully measuring the court's discretion, indicate the serious and compelling, and necessarily, restrictive nature of the grounds that will warrant the exercise of the Supreme Court’s discretionary powers, when the Court of Appeals:

a. Failed to apply the applicable standard or test for judicial review prescribed in these Special ADR Rules in arriving at its decision resulting in substantial prejudice to the aggrieved party;

b. Erred in upholding a final order or decision despite the lack of jurisdiction of the court that rendered such final order or decision;

c. Failed to apply any provision, principle, policy or rule contained in these Special ADR Rules resulting in substantial prejudice to the aggrieved party;

d. Committed an error so egregious and harmful to a party as to amount to an undeniable excess of jurisdiction; and

e. Any ground closely analogous to the above.

Grounds and procedure
Arbitral Awards made by the CIAC are appealable through the regular procedure for appeal of decisions of quasi-judicial bodies to the Court of Appeals under Rule 43 of the Rules of Court of the Philippines. Such appeal must be initiated within fifteen (15) days from receipt of the Arbitral Award by filing a verified Petition for Review and payment of proper docket and other lawful fees. The Court of Appeals may require the respondent to file a Comment on the Petition for Review within ten (10) days from notice. The Court of Appeals may also require the parties to file their respective Memorandum within fifteen (15) days from notice or set the case for oral arguments. Thereafter, the case will be submitted for Decision. However, the appeal will not stay the execution of the award unless the Court of Appeals directs otherwise. The decision of the Court of Appeals may be reviewed by the Supreme Court under a Petition for Review.

India Small Flag India

(i) Challenging or application to set aside a domestic award under Section 34 of the Arbitration and Conciliation Act, 1996:

Grounds for Challenge:

a) Party was under some incapacity

b) Arbitration agreement was not valid under the law

c) Party was not given proper notice of the appointment of an arbitrator

d) Arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration

e) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties

If the Court finds that:

a) That the subject matter was not capable of settlement or;

b) Arbitral award in conflict with the public policy of India

Award will be in conflict with the public policy of India only if:

a) The making of the award was induced, or affected by fraud or corruption or was in violation of Section 75

b) It is in contravention with the fundamental policy of Indian law

c) It is against the basic notions of moral and justice

Procedure:
Such appeal or challenge need to be filed within a period of 90 days from the date of receipt of such award, however, the Court has a power to extend the time for another 30 days, if sufficient cause has been shown. After the lapse of 120 days, the Courts have no power to entertain any challenge to the Award. The challenge to the Award needs to be filed before the competent Court which has territorial as well as pecuniary original jurisdiction.

(ii) For Appeals under Section 37 of the Arbitration & Conciliation Act, 1996:

a) Refusing to refer the parties to arbitration under Section 8;

b) Granting or refusing to grant any measure under Section 9;

c) Setting aside or refusing to set aside an arbitral award under Section 34

Appeal against an order by the Tribunal
a) Accepting plea i.e. that the arbitral tribunal does have any jurisdiction under Section 16(2)

b) Granting or refusing an interim measure under Section 17

(iii) Regarding Foreign Award, the Indian Court has no power to set aside or hear Appeal against that Award, however, at the time of execution, the Indian Courts have power to refuse the enforcement of such Foreign Award on the following grounds, as per section 48 of the Arbitration and Conciliation Act, 1996:

Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that —

The parties to the agreement referred to in section 44 of the Arbitration and Conciliation Act, 1996 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(c) the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration.

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or

(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place ; or

(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

(2) Enforcement of an arbitral award may also be refused if the court finds that—

The subject –matter of the difference is not capable of settlement by arbitration under the law of India; or

(b) the enforcement of the award would be contrary to the public policy of India.

That an award is in conflict with the public policy of India, only if,--

The making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

The test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the Court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.

Ecuador Small Flag Ecuador

Arbitral awards cannot be appealed. Either party may, however, file action to annul the arbitration award in the following events: a) When a claim was not legally served and the litigation was carried out and completed in default, and such absence of the service of notice prevented the respondent from filing pleas and defenses and from exercising his or her rights. In that case, the respondent must have filed a complaint with the arbitration court regarding such omission at the time that the arbitral proceeding was in process; or, b) Court decisions were not served on any of the parties and such circumstances prevented or limited the party’s right to defend him or herself; or, c) If no call was made for the initial hearing (Audiencia de Sustanciación) or if the call was not notified, or if after the call, the evidence requested by the parties or ordered ex officio by the arbitration court was not produced despite the existence of facts to be justified; or, d) The award refers to matters not subject to arbitration (extra petita) or grants more than what is being claimed (ultra petita); and, e) When the procedures established by the Law or by the parties for the appointment of arbitrators or formation of the arbitration tribunal were breached.

The legal action for annulment may be filed for the resolution of the president of the provincial court within a term of ten days from the date the award became final. Within three days from the filing date of the annulment action the arbitration tribunal must send the arbitration file to the president of the court. According to the Law, the president of the provincial court shall resolve within a term of thirty days.

Egypt Small Flag Egypt

Arbitration awards are final, binding and subject to no appeal on the merits. However, awards can be challenged in actions of nullity.

Grounds for nullity are set out in the Arbitration Law, and include:

  • Lack of jurisdiction.
  • Breach of public policy (normally statutory provisions of mandatory application).
  • Failure to grant a party a right of defence.
  • Excluding the application of the agreed law governing the merits of the claim.

If the nullity claim is successful, the arbitration award is declared null and void.

A nullity action must be brought within 90 days from the date on which the successful party notifies the other party of the award. A nullity action does not stop enforcement. However, the enforcement of the arbitration award may be suspended by the court if a nullity action includes a request for suspension, based on prima facie strong grounds.

Norway Small Flag Norway

Arbitration awards may not be appealed to the local courts unless otherwise agreed by the parties. The award may only be challenged on the grounds that it is invalid. An exhaustive list of grounds for invalidity is provided in section 43 of the Arbitration Act. The list is in accordance with Article V of the New York Convention. Examples of reasons for invalidity are that the award falls outside the scope of the tribunal’s jurisdiction, or that the composition of the tribunal was incorrect.

A claim that an arbitration award is invalid must be made in the form of a lawsuit before the courts, and the lawsuit must be filed within three months from the day the party received the arbitral award.

Croatia Small Flag Croatia

The awards of arbitral tribunal may not be appealed before local courts. As a default rule, the awards have the force of the final judgment and there are no appellate proceedings against them. However, the parties may agree on the appeal procedure before an arbitral tribunal of higher instance.

An award can, however, be contested before courts in proceedings for setting aside of an award.

The award may be set aside by the court if party making such application demonstrates that:
a) there was no arbitration agreement or such agreement was not valid;
b) a party to the arbitration agreement was incapable of concluding the arbitration agreement or to be a party to an arbitration dispute or that a party was not duly represented;
c) the party making the application for setting aside was not given proper notice of the commencement of the arbitral proceedings or was otherwise unable to present its case before the arbitral tribunal;
d) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
e) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the Arbitration Act or agreement of the parties which could have influenced the content of the award;
f) the award has no reasons or has not been signed.

If an application for setting aside is made, the court examines ex officio existence of the following reasons which are grounds for setting aside of the award:

a) if the subject matter of the dispute is arbitrable under Croatian law,
b) if the award is conflict with the public policy of Croatia.

The parties may also agree that the application for setting aside can be submitted on the grounds that the party applying for setting aside found new facts or the opportunity to present new evidence on the basis of which an award more favorable to him could have been made if these facts were known or evidence produced in the hearings.

Cyprus Small Flag Cyprus

In international commercial arbitrations governed by the ICA Law, a party may appeal against the arbitral award when:

a) one of the parties to the arbitration agreement lacked contractual capacity at the relevant time; or the arbitration agreement is invalid based on the applicable law that the parties chose or in the absence of a chosen applicable law, based on the laws of the Republic of Cyprus;

b) the party was not notified in a timely manner and on a regular basis of the appointment of the arbitrator or the arbitral proceedings; or has by any other means been deprived from his chance to present his case;

c) the arbitral award refers to matters irrelevant to the terms of the submission to arbitration or contains decisions beyond the scope of the arbitration;

d) the composition of the tribunal or the procedure of arbitration was in breach of the agreement of the parties or contradicts the provisions of the ICA Law;

e) the subject matter of the dispute is not arbitrable under Cypriot law; and

f) the award is in conflict with the public policy of Cyprus.

A party wishing to challenge the arbitral award has to file an application to the District Court requesting the annulment of the award. Τhe application has to be filed within a period of three months from the date of notification of the award.

France Small Flag France

Provisions on challenges to arbitral awards differ substantially depending on whether the arbitration is domestic or international.

Awards in domestic arbitration are generally subject to actions to set aside (recours en annulation). However, the parties can provide for a right to appeal the award, which leads to broader judicial review (Article 1489, CCP). In contrast, awards in international arbitration are subject only to actions to set aside and cannot be appealed (Article 1518, CCP).

Parties to an international arbitration can waive their right to bring an action to set aside an award (Article 1522, CCP). However, the right to bring an action to set aside an award in domestic arbitration is mandatory – that is, the right cannot be renounced – unless the parties have provided for a right to appeal (Article 1491, CCP). Where the right to set aside has been waived in international arbitration, the parties still retain their right to appeal an enforcement order (Article 1522, CCP).

Another difference relates to the effect that an action to set aside or a challenge to an enforcement order may have on the enforcement of an award. In domestic arbitration, enforcement of an award is stayed upon the filing of an appeal or action to set aside, or until the time limit for such an appeal or application has expired, unless the award states that it is provisionally enforceable (Article 1496, CCP). By contrast, Article 1526 of the CCP provides that, in international arbitration, “[n]either an action to set aside an award nor an appeal against an enforcement order shall suspend enforcement of an award”. As a result, an award is immediately enforceable even if it has been challenged, except where the Court of Appeal suspends or adjusts the enforcement to preserve the rights of one of the parties.

For domestic arbitration, the recognition or enforcement of the award must not be contrary to French public policy, and the award can also be set aside if (Article 1492, CCP):

  • There are no stated reasons for the award.
  • There is no mention of the date of the award.
  • There is no indication of the name or signature of the arbitrators.
  • The award was not rendered by a majority.

The following are the five possible grounds for setting aside an international award (Article 1520, CCP):

  • The arbitral tribunal wrongly upheld or declined jurisdiction.
  • The arbitral tribunal was not properly constituted.
  • The arbitral tribunal ruled without complying with the mandate conferred upon it.
  • Due process was violated.
  • Recognition or enforcement of the award would be contrary to French international public policy.

In principle, when the place of arbitration is in France, a party can challenge an award before the Court of Appeal of the place where the award was made (Article 1519, CCP).

Italy Small Flag Italy

The Italian CCP provides three actions for challenging an arbitral award (Article 827 CCP):

A. set aside;
B. revocation; and
C. third-party challenge.

Challenges to arbitral awards shall be brought before the Court of Appeal of the place of the seat of arbitration.

Challenges to arbitral awards do not stay the enforcement proceedings. However, upon request of one party, the Court of Appeal may stay the enforcement if there are serious grounds for doing so.

As to the action under (A.) above—i.e., the action to set an arbitral award aside—Article 829 CCP sets and exhaustive list detailing twelve grounds. The list contains challenges such as the invalidity of the arbitration agreement, breach of due process, irregularity in the compositions of the arbitral tribunal, etc.

A party is precluded from raising grounds for setting aside an award if it contributed to cause such ground or it had waived the right to challenge the award for such ground. A party is also precluded from raising grounds concerning violation of procedural rules if had failed to timely raise an objection in that regard as soon as it had the opportunity to do so.

An award cannot be appealed or challenged for reasons concerning the merits of the dispute, unless:

(a) parties had agreed to such appeal;
(b) an appeal is provided for by the applicable law—e.g., in case of arbitration concerning labor disputes; or
(c) the arbitral tribunal ruled on a preliminary issue that was not arbitrable.

The action to set an award aside shall be instituted within 90 days from the service of the final award or, if has not been served, within 1 year from the date of the last signature of the arbitrator(s). A notification of the award made by an arbitral tribunal or an institution administering the proceedings does not trigger the 90-day time limit.

Pursuant to Article 830 CCP, the Court of Appeal, once set in whole or in part the final award aside, remands the dispute to arbitration in case the action was based on the grounds under (i), (ii), (iii), (iv), and (x) shown above.

If the award was set aside on other grounds, the Court of Appeal also decides the merits of the disputes, unless the parties agreed otherwise. However, if one of the parties resided abroad when it entered into the arbitration agreement, the Court of Appeal may not decide the merits of the dispute, unless the parties agreed otherwise.

With regard to the actions under (B.)—i.e., the action for revocation—and (C.)—i.e., the third-party challenge—above, Article 831 CCP provides for extraordinary grounds for challenge.

In particular, the action for revocation can be instituted in case of fraud by a party or an arbitrator, discovery of forged evidence, or discovery of crucial documents concealed by a party during the arbitration proceedings.

Also, third parties can oppose an arbitral award if such award undermines their rights.

Nigeria Small Flag Nigeria

The law does not allow an appeal to be lodged against an arbitral award. However, a party to a domestic arbitration may within three (3) months from the date of the award apply to a High Court to have an award set aside on grounds that the: (i) tribunal exceeded its mandate or jurisdiction; (ii) tribunal was guilty of misconduct; or (iii) award was improperly procured. See sections 29-30, the ACA. Misconduct entails a wide range of violations such as breach of fair hearing, corruption, taking of bribes, partiality of the arbitrators, failure to comply with the terms, express or implied, of the arbitration agreement. See A. Savoia Ltd. v. Sonubi (2000) 12 NWLR (Pt. 682) 539. In fact, challenges regarding the misconduct of the tribunal or an arbitrator are open to a wide range of interpretations and parties are generally able to allege several grounds of challenge. Stabilini Visinoni Ltd. v. Mallinson & Partners Ltd. (2014) LPELR-23090(CA).

In addition to the foregoing grounds, arbitral awards made in international arbitrations may be challenged or set aside on the following additional grounds: (i) incapacity of a party to the arbitration agreement; (ii) invalidity of the arbitration agreement under the law which the parties have indicated should apply under the laws of Nigeria; (iii) the party seeking to set aside the award is not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; (iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration under the laws of Nigeria; (v) the award contains decisions on matters which are beyond the scope of the submission to arbitration, (however if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced); (vi) the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the agreement of the parties; (vii) there is no agreement between the parties that the composition of the arbitral tribunal, or the arbitral procedure, was not in accordance with the law of the country where the arbitration took place; or (viii) that the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, the award was made; or (ix) that the recognition or enforcement of the award is against public policy of Nigeria. See sections 48 and 52 of the ACA.

A party that is aggrieved by an arbitral award can apply to a High Court usually by way of an originating motion seeking to set aside the award within three months of the date of the award or after the correction of the award. The High Court may set aside the award or part of the award if the party making the application proves that the award or a part of it contains decisions on matters which were beyond the scope of the submission to arbitration. Where an application to set aside an award is brought, the High Court may, at the request of a party, suspend its proceedings for a period that it deems appropriate so that the arbitral tribunal can resume the arbitral proceedings or take other actions to eliminate the grounds for the setting aside of the award.

Austria Small Flag Austria

Arbitral awards can be challenged on (very) limited grounds before the Austrian Supreme Court (as first and last instance). Further, a declaration on the existence or non-existence of an arbitral award may be requested from the Supreme Court if the one seeking such declaration can demonstrate a special (legal) interest in the declaration.

The Austrian Code of Civil Procedure contains an exhaustive list of grounds on which the setting aside of an arbitral award can be sought:

  • In-existence of a valid arbitration agreement or the award extends to matters that are not covered by such agreement;
  • composition or constitution of the tribunal in violation of the (few) mandatory provisions of the Austrian Code of Civil Procedure or against the agreement of the parties;
  • (serious) violations of the right to be heard (such as not being informed of the arbitration proceedings in question);
  • contravention of (other) fundamental principles of good arbitration procedures (procedural ordre public);
  • the award suffers from a deficiency that would allow a court judgment to be challenged by an action for revision; namely, the award is based on a tampered document, a false testimony or a revised criminal judgment, was obtained by means of criminal behaviour or members of the tribunal pursued their duties to the detriment of a party and in violation of criminal provisions;
  • non-arbitrable subject matter;
  • the award is not in line with the fundamental values of the Austrian legal system (general ordre public).

All but the last two grounds (objective arbitrability and general ordre public) must actively be put forward by the party seeking the remedy. The last two grounds can be taken up ex officio if any challenge of the award is brought (as the award is then deemed non-existent).

United States Small Flag United States

The FAA and state arbitration statutes include specified grounds and procedures for challenging (referred to as ‘vacating’ or ‘setting aside’) an arbitration award. The FAA grounds and procedures apply in federal court set-aside proceedings only (an award may be challenged in federal court only if federal subject matter jurisdiction exists, which is the case for example with respect to international awards and awards between parties from different US states).

Under the FAA, an award may be set aside if (1) the award was procured by corruption, fraud, or undue means; (2) there was evident partiality or corruption by the arbitrators; (3) the arbitrators were guilty of misconduct in refusing to postpone the hearing for sufficient cause, in refusing to hear pertinent and material evidence, or any other misbehavior which prejudiced any party’s rights; or (4) the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award was not made. 9 U.S.C. § 10(a). These are the exclusive grounds for setting aside an award under the FAA, and the parties may not expand them by agreement. Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008).

Although many state arbitration statutes mirror the FAA’s set-aside grounds, some state courts have held that such statutory grounds (unlike the FAA’s grounds) are not exclusive. For example, courts in a number of states have held that an award may be set aside for public policy reasons, in addition to the statutory grounds. In another departure from federal law, several states, including for example California, Texas, and New Jersey, allow the parties to expand the scope of judicial review of an arbitration award in state court by stipulating in their arbitration agreement that (a) their agreement is governed by state arbitration law, and (b) the arbitral tribunal has no power or authority to reach a decision based on ‘reversible’ errors of law or fact. Because excess of authority is a recognized set-aside ground, such an agreement, where permitted, effectively results in converting a set-aside proceeding into an appeal. (In Hall Street, the US Supreme Court specifically held that such an expansion of the scope of judicial review is impermissible under the FAA.)

Greece Small Flag Greece

In domestic arbitration, parties are not allowed to take an appeal against the arbitral award before the State Courts (article 895 para. 1 GrCCP). The arbitration agreement may provide for an appeal to be taken before other arbitration (article 895 para. 1 GrCCP), however this is obviously something different.

According to article 897 GrCCP, an arbitral award rendered in domestic arbitration may be set aside, in whole or in part, only by virtue of a court decision on the following grounds: (1) if the arbitration agreement is null and void; (2) if the award was rendered after the arbitration agreement had ceased to exist; (3) if the arbitrators that rendered the award were appointed in violation of the provisions of the arbitration agreement, or of the law, or if the parties had already revoked them, or if they rendered the award despite the fact that they had already been successfully challenged; (4) if the arbitrators that rendered the award acted in excess of the powers vested in them by the arbitration agreement or by the law; (5) if the provisions of paragraph 2 of article 886 GrCCP [regarding the principle of equal treatment], or of articles 891 GrCCP [regarding the majority vote] and 892 GrCCP [regarding the form of the award] were violated; (6) if the award is contrary to public policy rules or to morality; (7) if the award is incomprehensible or contains contradictory dicta; (8) if there are grounds for the reopening of proceedings pursuant to article 544 GrCCP [this is an extraordinary legal remedy provided against final State Court decisions premised upon grounds pertaining to vast procedural irregularities as well as fraudulent conduct].

Said request for setting aside the award is adjudicated by the Court of Appeals in the district of which the award was made (article 898 GrCCP). The procedure applicable is that provided for special property disputes pursuant to articles 614 et seq. GrCCP. Against the decision rendered by the Court of Appeals the aggrieved party may file a petition for cassation with the Supreme Court.

The request for setting aside the award shall be filed within three months from the date the award was notified to the party. Both this term as well as the filing of the request per se do not prevent the enforcement of the award. Following the filing said competent court may order the stay of the enforcement proceedings, with or without a guarantee, until a final decision is issued, in case it deems that a ground pleaded is likely to succeed.

Not only the parties to the arbitration proceedings but also third parties are allowed to challenge the arbitral award assuming that they have legal standing i.e. under the condition that they are bound by its res judicata effect.

Furthermore, in domestic arbitration article 901 GrCCP provides for an additional remedy against the arbitral award, namely the action seeking a binding declaration that the award in non-existent on the following grounds: (a) that an arbitration agreement was never concluded, (b) that the subject matter of the dispute resolved by the award was non-arbitrable, and, (c) that the award was rendered against a non-existent respondent.

This declaratory action is not subject to any time limitation. Apart from that, what has already been stated as regards the request for setting aside the award as to the competent court (CoA), the procedure (special property disputes), the available legal remedies against the decision (petition for cassation before the Supreme Court) and the fact that the enforcement of the challenged award is not ipso jure stayed, applies pursuant to article 901 para. 2 GrCCP also to the declaratory action at hand.

It is noted that the non-existence of the award on said grounds may also be pleaded by means of an affirmative defense. This is due to the fact that the award.

As regards international commercial arbitral proceedings having their seat in Greece, article 34 L. 2735/1999 incorporates the provisions of Model Law as to the grounds for setting aside the award. The distinction between grounds that must be pleaded by the plaintiff and grounds that are considered ipso jure is thus preserved. As it is well known, said grounds are almost identical to those provided under article V of the New York Convention. That being said, in legal literature it is argued that their interpretation may differ given that the legal consequences pegged to the annulment of the award are different compared to the legal consequences pegged to the refusal of its recognition and enforcement in a specific country.

The same procedural rules as to the request for setting aside an award rendered in domestic arbitral proceedings apply with regard to the competent court (CoA), the legal standing (parties to the arbitration proceedings and third parties bound by the res judicata effect of the award), the procedure (special property disputes), the available legal remedies against the decision (petition for cassation before the Supreme Court), the time limitation for filing the request (three months) and the fact that the enforcement of the challenged award is not ipso jure stayed.

It is disputed whether third parties which are not bound by the res judicata effect of the Award but are nevertheless adversely affected by it may bring a third-party-challenge against it. The question is posed both in domestic as well as in international commercial arbitral proceedings. A third-party-challenge is a specific remedy provided for under article 583 GrCCP against judicial decisions or extrajudicial acts which adversely affect the interest of third parties which were not heard in the process. Many commentators answer this question in the affirmative.

Israel Small Flag Israel

Until 2008 an arbitral award could not be appealed and once it was given it was final, and the only way to challenge it was by way of filing an application to set aside the arbitral award on one of the grounds enumerated in a closed list (provided under Section 24 of the Arbitration Law that included the following grounds): (1) The arbitration agreement was not valid; (2) The award was made by an arbitrator not properly appointed; (3) The arbitrator acted without authority or exceeded the authority granted to him by the arbitration agreement; (4) A party was not given a suitable opportunity to state his case or to produce its evidence; (5) The arbitrator did not determine one of the matters referred to him for determination; (6) The arbitrator did not assign reasons for the award, although the arbitration agreement required him to do so; (7) The arbitrator did not determine the award in accordance with law, although the arbitration agreement required him to do so; (8) The award was determined after the period for determination had expired; (9) The contents of the award are contrary to public policy; (10) A ground exists on which a court would have set aside a final, non-appealable judgment.

An application to set aside an arbitral award will be filed within 45 days of the date of rendering the arbitral award. However, if an application to approve the arbitral award was filed within these 45 days, the application to set aside will be filed within 15 days of filing the approval application, provided however that 45 days have not elapsed from the day the arbitral award was rendered.

In 2008 the Arbitration Law was amended to include two additional alternatives to appeal the arbitral award. The first alternative (Section 21A of the Arbitration Award) provides that an appeal on the arbitral award may be filed where the parties to arbitration have agreed in the arbitration agreement that the arbitral award may be appealed before an arbitrator. In this case the parties may file an application to set aside the arbitral award under narrow grounds only – if there is a ground that is contrary to public policy (Section 24(9) of the Arbitration Law) or if a ground exists on which a court would have set aside a final, non-appealable judgment (Section 24(10) of the Arbitration Law).

Unless the parties agreed otherwise as to the applicable dates of the appeal, the appeal to an arbitrator on a given arbitral award will be filed within 30 days of the date on which the arbitral award was served on the parties or of the date on which the arbitrator was appointed in the appeal, at the latest. The other party may file a reply within 30 days and the appellant may file a response to the reply within 15 additional days.

The second alternative to appeal the arbitral award is when the parties agreed in advance that the arbitral award would be appealed before the court subject to receipt of its permission (Section 29B(a) of the Arbitration Law). The Arbitration Law provides four accumulative conditions in this matter upon the fulfillment of which a request to appeal the arbitral award would be given: (1) The parties stipulated in the arbitration agreement that the arbitrator must decide in accordance with the law; (2) The parties agreed that the arbitral award may be appealed with permission of the court; (3) A fundamental mistake has occurred in the implementation of the law under the arbitral award; (4) The fundamental mistake in the implementation of the law could cause miscarriage of justice. In addition to these requirements, there are two cogent sub-requirements which also need to be fulfilled in order to file an appeal under this alternative – the first is that the arbitration sessions shall be documented in a protocol, and the second – that the arbitral award should be reasoned.

Filing an application to leave to appeal will be filed, as a rule, at the district court, within 30 days of the date of rendering the decision, and it will briefly specify the reasons for the appeal indicating the relevant case law. If a leave to appeal is granted, the appeal will be filed within 15 days thereafter.

United Kingdom Small Flag United Kingdom

Under the 1996 Act, an award may be challenged (a) as to its substantive jurisdiction (s.67(1)); or (b) due to the existence of a serious irregularity affecting the tribunal, the proceedings or the award (s.68). Unless otherwise agreed by the parties, the parties can appeal to the court on a question of law arising out of an award made in the proceedings (s.69(1)). Appealing under s.69 is difficult and only happens in rare circumstances. The grounds for challenge and appeal are stated in these sections and the procedure is outlined in the Civil Procedure Rules.

Romania Small Flag Romania

The parties may file a request to set aside the arbitral award on the following grounds:

  • the dispute was non-arbitrable
  • the arbitration agreement did not exist or was invalid or ineffective
  • the constitution of the arbitral tribunal was not in accordance with the arbitration agreement
  • the party requesting the setting aside of the award was not duly notified of the hearing when the main arguments were heard and was absent when the hearing took place
  • the arbitral award was rendered after expiry of the time limit, even though at least one party submitted its intention to object to the late issuance of the award and the parties opposed the continuation of the proceedings after expiry of the time limit
  • the award granted something which was not requested (ultra petita) or more than was requested (plus petita).
  • the award failed to mention the tribunal’s decision on the relief sought and did not include the reasoning behind the decision, the date and place of the decision or the signatures of the arbitrators.
  • the award violated public policy, mandatory legal provisions or morality.
  • subsequent to issuance of the final award, the Constitutional Court has declared unconstitutional the legal provisions challenged by a party during the arbitral proceedings or other legal provisions included in the challenged piece of legislation that are closely related to and inseparable from those challenged.

The request to set aside the arbitral award may be filed within one month of service of the award on the parties, unless the request is grounded on the subsequent issuance of the Constitutional Court, where the time limit is three months after publication of that court’s decision. Certain reasons for setting aside an arbitral award may be deemed waived if they are not raised before the arbitral tribunal at the start of the process (particularly those relating to the jurisdiction and constitution of the arbitral tribunal). A request to set aside is subject to a fixed court fee under the law.

Updated: November 22, 2017