Originally from World Arbitration and Mediation Review (WAMR)

PREVIEW

This article examines how courts across multiple jurisdictions approach challenges to arbitral awards, analyzing the delicate balance between preserving arbitration autonomy and maintaining necessary judicial oversight. Through a transnational comparative methodology, the article surveys court jurisprudence from jurisdictions that are signatories to the New York Convention and have adopted the UNCITRAL Model Law on International Commercial Arbitration. The analysis demonstrates that while arbitration laws reflect a pro-enforcement bias, courts retain limited but critical authority to set aside awards under specific circumstances. The article systematically examines the modes of challenge available to parties, the procedures to be followed in different jurisdictions, and the substantive grounds on which awards may be challenged, including party incapacity, procedural irregularities, defects in tribunal composition, public policy violations, and jurisdictional overreach. Attention is devoted to how courts interpret and apply the public policy exception while avoiding impermissible review of an award’s merits. The article further explores temporal limitations on challenges, examining how jurisdictions such as the United States, the United Kingdom, Singapore, Pakistan, and India impose strict time limits, and analyzes the controversial question whether parties may waive their right to challenge awards through contractual agreement. The comparative analysis reveals significant jurisdictional variation while identifying common principles guiding transnational arbitration practice.

I. INTRODUCTION

The role of the arbitral tribunal ends, and it becomes functus officio (meaning the tribunal’s official authority has ended) once it renders the award, unless such award is subject to correction and interpretation. Nevertheless, the legal process vis-à-vis the dispute between the parties continues. Subsequently, the post-arbitration proceedings start. The prevailing party endeavors to enforce the award, while the losing party attempts to have it set aside by challenging it before the national courts. The enforcement and challenge of awards demonstrate a subtle balance between the autonomy of the arbitration process and the domestic court’s control over arbitration. An excess of autonomy or control can cause haphazardness in the arbitral process.

The arbitration laws of various jurisdictions, reflecting  the policy of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) and the UNCITRAL (“United Nations Commission on International Trade Law”) Model Law on International Commercial Arbitration (“UNCITRAL Model Law”), manifest a pro-enforcement bias.  Despite such bias, a party may challenge an award; nevertheless, the available options for challenge tend to be deliberately limited, and thereby provide limited scope for national courts to set aside an arbitral award. Generally, the law of the place of arbitration (the law of the seat) provides limited provisions for challenging an award. These laws primarily focus on ensuring that the arbitral process has been conducted in accordance with the basic principles of due process, and that parties have equal right to be heard before an unbiased, impartial and independent arbitral tribunal within the purview of an arbitration agreement.  The grounds for the challenge of an award seldom delve into the review of the merits of the arbitral tribunal's decision on facts or law, thereby distinguishing a challenge of an award from an appeal against an award.