Articles 34 and 36 of the Uncitral Model Law on International Commercial Arbitration: The Court's Discretion

Posted: 30 Nov 2011

See all articles by Amokura Kawharu

Amokura Kawharu

University of Auckland - Faculty of Law

Date Written: November 28, 2011

Abstract

The opening paragraph of art 34(2) Model Law provides that “an arbitral award may be set aside by the court…”. In art 36(1), an enforcement court is directed that “recognition or enforcement of an arbitral award… may be refused” only on proof one of the enumerated grounds. The use of the permissive word “may” in these provisions indicates that a reviewing court in a setting aside proceeding under art 34, and an enforcement court acting under art 36, has a residual discretion whether to set aside or to refuse enforcement, despite the proof of a relevant ground. The court’s discretion in arts 34 and 36 implicates one of the basic issues in modern arbitration law, namely the extent of the court’s role in reviewing awards. The paper briefly considers the existence of the discretion, since it has not been universally accepted. It then moves to consider the scope of the discretion and the principles which have been judicially recognised as relevant to its exercise.

Keywords: UNCITRAL Model Law on International Commercial Arbitration, article 34, article 36, may be set aside, may be refused, discretion

Suggested Citation

Kawharu, Amokura, Articles 34 and 36 of the Uncitral Model Law on International Commercial Arbitration: The Court's Discretion (November 28, 2011). Available at SSRN: https://ssrn.com/abstract=1965741 or http://dx.doi.org/10.2139/ssrn.1965741

Amokura Kawharu (Contact Author)

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
3,983
PlumX Metrics