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

Austria Small Flag Austria

No, an agreement to waive a right to an appeal before the dispute has arisen (pactum de non petendo) are generally invalid under Austrian law.

France Small Flag France

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.

Portugal Small Flag Portugal

On the contrary. The arbitral award is only subject to appeal to the competent State court if the parties have expressly contemplated such possibility in the arbitration agreement.

Romania Small Flag Romania

The parties cannot waive the right of appeal or challenge to an award by agreement before the dispute arises. The Code of Civil Procedure provides that any agreement to the contrary is null and void. The parties may waive the right to appeal only after the award is rendered.

Sweden Small Flag Sweden

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.

UAE Small Flag UAE

It is not possible to exclude the right of a party to challenge an onshore award during the ratification phase.

The DIFC Arbitration Law is silent on whether a party may waive its right to challenge an arbitral award. However, under the ADGM Arbitration Regulations, the parties may expressly agree whether in the arbitration agreement or by a subsequent written agreement, to waive their right to bring an action for the setting aside of the award. They may also agree to limit the grounds upon which such an application can be made.

Switzerland Small Flag Switzerland

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.

New Zealand Small Flag New Zealand

It is not possible to contract out of set-aside mechanism in article 34 of Schedule 1 of the Act (Methanex Motunui Ltd v Spellman [2004] 3 NZLR 454 (CA)).

It is, however, entirely possible to contract out of the clause 5 of Schedule 2 appeal on a question of law. To start with, none of the provisions of Schedule 2 apply to an international arbitration held in New Zealand unless the parties specifically agree that the whole of Schedule 2, or specified provisions, will apply. Moreover, even where Schedule 2 applies to an arbitration, an appeal on a question of law is available only by specific party agreement or with leave of the court.

Malaysia Small Flag Malaysia

It is not open to parties to contractually exclude the annulment mechanism under section 37, AA.

By contrast, the reference on questions of law mechanism under section 42, AA may be waived by the parties. As a Part III mechanism, parties to a domestic arbitration may agree to exclude its application in domestic arbitrations, failing which it applies by default. However, parties to an international arbitration have to consensually incorporate the mechanism into the arbitration, failing which section 42 cannot be later invoked.

United States Small Flag United States

Parties cannot waive their rights of appeal or challenge by agreement. Similarly, they cannot expand the grounds of review, as outlined in Questions 26 and 28. See Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (2008).

Singapore Small Flag Singapore

The IAA is silent on whether the parties can waive their right of appeal or challenge to an award by agreement before the dispute arises. The issue of whether parties may contractually exclude the right to set aside an award has not been decided in Singapore. Notably, under the AA (but not the IAA), the right of appeal to court on a question of law arising out of an award may be excluded by the parties.

Brazil Small Flag Brazil

No, the right to judicially challenge the arbitral award may not be subject to prior waiver by either party. Although Brazilian Law does not expressly established the non-waiver of the right to propose the annulment action, it can be deduced from the constitutional text itself, especially from the Article 5º, XXXV, of Federal Constitution, because preventing the analysis of grounds for nullity would mean preventing the submission to the Judiciary of injury of rights, removing any control on the activity of the arbitrators.

Canada Small Flag Canada

The ability of a party to waive rights of appeal or challenges by agreement varies by province or territory. For example, in Ontario, parties can agree to waive any right to appeal before arbitration commences, but that is not possible in Alberta. In an Ontario first instance decision, Re Noble China, the Court held that Article 34 of the Model Law is not a mandatory provision of the Model law, giving the parties power to agree to waive it.

Panama Small Flag Panama

In Panama, the parties cannot, under any circumstance, waive any rights to challenge an award.

Spain Small Flag Spain

It is uncertain in Spain. There are reasons to defend both possibilities.

Turkey Small Flag Turkey

According to the Law No. 4686, the parties may partially or wholly waive their right to file a cancellation action against the award. Additionally, parties which are abroad may waive their rights to file a cancellation action by adding a clear declaration to the agreement or make a further written agreement regarding the waiver.

Germany Small Flag Germany

Under German law, the parties are not allowed to waive any rights of appeal or challenge of an award beforehand. In particular, the parties are not allowed to waive their rights regarding challenging awards conflicting with public policy or the arbitrability of a subject matter pursuant to section 1059 (2) ZPO.

Italy Small Flag Italy

The parties are not allowed to waive their right to challenge an award in advance. However, a party can waive this right after the issue of the award. A party is also precluded from raising grounds for setting aside that were caused by the same party and cannot challenge the award for a violation of a procedural rule that it did not raise at the first opportunity it had.

United Kingdom Small Flag United Kingdom

Yes, they can waive their right to appeal on a point of law (section 69).

Ireland Small Flag Ireland

It does not appear that parties may waive rights before the dispute arises. A party will be deemed to have waived their right to apply to set aside an award under the Model Law where they refused to participate in the arbitral proceedings.

Under Article 13(2) of the UNCITRAL Model Law, the arbitrator’s appointment may be challenged if an action is brought within 15 days of discovering a ground or grounds for such a challenge, for example, reasonable doubts as to the arbitrator’s independence or impartiality.

Poland Small Flag Poland

The right to challenge an award is considered to be mandatory. Consequently, parties cannot waive their right to challenge an award.

Cyprus Small Flag Cyprus

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.

Updated: October 17, 2017