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 (3rd edition)
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.
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).
As a general principle of Cyprus law any clause that prohibits any party to litigate is illegal and such clause must be ignored.
The parties can waive the right for review by not including it in the arbitration agreement.
Pursuant to the CPC, any agreement waiving the right of appeal or challenge of an award before the dispute arises is null and void. Only after the award is rendered, the parties may waive the right to appeal.
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 still be possible to challenge the award before the competent court.
No. Pursuant to article 52(5) of the Contract Law, any agreement inconsistent with the mandatory laws of China shall be null and void. The rules on the right to apply for setting aside an award are mandatory rules in Chinese law.
a. This issue is not governed by the Arbitration act, but it is generally assumed that the right to challenge the award cannot be waived.
The right to challenge an award is considered to be mandatory. Consequently, parties cannot waive their right to file a petition to set aside an award.
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.
UAE - Federal
Article 54(5) of the UAE Arbitration Law provides that the right to challenge an arbitral award cannot be waived prior to the issue of the award.
The grounds on which the arbitral award can be nullified is set out in Article 54 of the UAE Arbitration Law.
The nullification of an arbitral award is only subject to appeal before the Court of Cassation.
UAE - Free-zone Jurisdictions
The DIFC Arbitration Law does not expressly either allow nor 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).
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 by the parties, even with mutual agreement. 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.
The parties may not waive the right to challenge an award by agreement.
The FAA has been interpreted to provide that parties cannot waive any rights of appeal or challenge before a dispute arises. See In re Wal-Mart Wage & Hour Employment Practices Litig., 737 F.3d 1262, 1267 (9th Cir. 2013). Most states have adopted the same position. However, some states allow for pre-dispute waiver, such as California, where a waiver will be upheld if it is “clear and explicit.” See Emerald Aero, LLC v. Kaplan, 1144, 215 Cal. Rptr. 3d 5, 21 (Ct. App. 2017), as modified on denial of rehearing (Mar. 21, 2017), review denied (June 14, 2017).
Parties cannot, under Austrian law, agree to exclude or expand the scope of appeal or challenge.
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.
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.
Parties to an institutional arbitration may expressly agree in writing to waive the right to challenge an award and stipulate that it will be final.
The Irish courts will recognize and vindicate the parties’ right to reach such agreement as they see fit to be contained in their arbitration agreement, including the right to waive any rights of appeal or challenge to an award.
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 right to apply for setting aside an arbitral award cannot be excluded by the parties in advance entirely. The Federal High Court (Bundesgerichtshof) held that such waivers are invalid, in particular as far as the waiver would extend to the right to challenge an arbitral award based on the issue on non-arbitrability as well as on violation of public policy grounds.
The parties may not waive in advance their right to challenge an arbitral award by initiating proceedings for the setting aside of the arbitral award. Argumentum a contrario, parties are free to renounce their right to commence the procedure for the setting aside of the arbitral award after the arbitral award has been delivered.
International arbitration awards are not subject to appeal, as stated in Section 33 above. Furthermore, Article 34 of the ICAL 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.