There is no right of ordinary appeal against an arbitral award. However, in certain limited circumstances a party may file setting-aside proceedings seeking annulment of the award. These proceedings are filed before the competent court in the member state of the seat of arbitration. They may be filed at any time between issuance of the award and one month following service of the award after it has been declared enforceable by court order. Unless the arbitral tribunal has ordered provisional enforcement of the award, the filing of setting-aside proceedings suspends enforcement.
Setting-aside proceedings are admissible only if they are based on one or more of the following grounds;
- There was no arbitration agreement, or the arbitration agreement was null and void or had expired by the time the tribunal gave its award;
- The arbitral tribunal was improperly constituted;
- The arbitral tribunal failed to comply with its terms of reference;
- There was a lack of due process in the proceedings;
- The award does not contain reasoning; or
- The arbitral tribunal has violated a rule of international public policy of the member states.
The above limited grounds mean that there can be no review of the merits of the award by the national courts, except to the extent that it may e necessary to determine whether there has been a violation of international public policy. Even in such a case, the court does not give a new decision on the merits, but merely either rejects the application for setting-aside or declares the award null and void.
When the award is declared null and void, either party may begin a new arbitration.
Any judgment which either dismisses the claim or declares the award null and void is subject to ultimate appeal (again on limited grounds) before the CCJA.
The parties also have the possibility of requesting a revision of the award by the arbitral tribunal, when a new fact has come to light since its issuance and when that fact may have had a decisive influence on the outcome of the case had it been known at the time. No time limit is provided for requesting a revision, nor is any provision made for the intervention of the courts if the arbitral tribunal cannot be reconstituted.
THIRD PARTY INTEREST
Any third party who has not been called to participate in the arbitration and who considers that the arbitral award is prejudicial to its own rights may file objections before the arbitral tribunal. This is an unusual provision, since arbitration is personal to the parties to the arbitration agreement, and there is generally no possibility to join third parties to the proceedings.
The Uniform Act does not specify the procedure that must be followed by a third party who wishes to file objections against an arbitral award, nor does it lay down any time limits or provide for the possibility of filing the objections before a court in cases where the tribunal cannot be reconstituted. Here again the CCJA may in the future be called upon to provide an answer.
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