Investor Presentaiton
152
INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
agreement of the parties, unless such agreement was
in conflict with a provision of this Law from which the
parties cannot derogate, or, failing such agreement,
was not in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of
settlement by arbitration under the law of this State;
or
(ii) the award is in conflict with the public policy of
this State."
The conditions for set-aside under the UNCITRAL Model Law
largely mirror the provisions of the New York Convention on the
Recognition and Enforcement of Arbitral Awards (see section II.Q
below). The first four grounds for setting aside an award must be
argued by the party seeking set-aside of the award, while the latter
two can be decided of the court's own volition. The first four reflect
concerns about due process and the scope of consent given by the
parties who agreed to the arbitration, while the second two reflect
concerns about public policy in the enforcing State.
176
Not all States have adopted the UNCITRAL Model Law. Yet
there is general agreement that, at the least, due process and legality
are preconditions for arbitration, and a tribunal's violation of them is
always grounds for setting aside an award." Awards are subject to
challenge in the event of the absence or invalidity of the initial
agreement to arbitrate, if there was irregularity in the constitution of
the arbitral tribunal, if there were serious procedural irregularities
implicating the fundamental fairness of the procedure, or if the
arbitral tribunal exceeded its jurisdiction or failed to honour the
agreement of the parties. 177 A reviewing court might also set aside
176
177
See, e.g., Lew, Mistelis and Kröll, 2003, p. 674.
Ibid., pp. 674-677.
UNCTAD Series on International Investment Agreements IIView entire presentation