Original scientific paper
Possibilities of challenging the arbitral decision
Miljenko Appio Giunio
Abstract
The author deals with essential differences between arbitral and court proceedings, reasons for derogation of the court and submission of the dispute to arbitrators who enjoy confidence of parties, as well as the reasons for setting aside the (arbitral) award, primarily according to Croatian positive law, but also with regard to the UNCITRAL Model Law on International Commercial Arbitration, as well as the solutions of the first draft of the Croatian Arbitration Act (which is, after having been drafted by the working group, in the Ministry of Justice of the Republic of Croatia for further preparation for adoption by the Croatian Parliament ). The existing and (possible) future legal solutions for recognition and enforcement of arbitral awards (with special regard to the relevant provisions of the multilateral conventions) are presented. The need for compatibility of grounds for setting aside and those for denial of recognition and enforcement of arbitral awards are pointed out. Emphasizing the private law character of the arbitral award (as well as the arbitral process), the author justifies the orientation of the drafters towards harmonization of domestic and foreign arbitral awards concerning enforcement procedure. Special attention is paid to the theoretical and practical dilemma on (non)submission of arbitral awards to the constitutional court control upon the constitutional complaint. In this connection, the author attempts to answer the following questions: is the arbitral tribunal “a body with public authority”; is there any need for two different state bodies, each within their jurisdiction, to review the correctness of the arbitral decision; particularly, is there rational justification for reviewing arbitral awards (in parallel or in phases) by the regular court on the basis of certain criteria (reasons for setting aside) and the constitutional court on the basis of other criteria (violation of constitutional rights); is the setting aside procedure a presumption for admissibility of the constitutional complaint; would the annulment of the award by the constitutional court mean the final ruling on the case from judicial jurisdiction (i.e. setting aside of the award)?
The author analyses two (so far the only) decisions (rulings) of the Constitutional Court of the Republic of Croatia rendered upon the application for the annulment of two arbitral awards, as well as the implications of the argumentation of these decisions.
Keywords
arbitration; challenging of the arbitration decision; recognition and enforcement of the arbitral award; Constitutional Court
Hrčak ID:
5127
URI
Publication date:
20.4.2006.
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