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We should take note that under paragraph 3, it should be done within three months

upo receipt of the award.


The application for setting aside an award under Article 34 paragraph 2 may only be
made before a court in the state where the award was rendered whereas the
application for enforcement may be done in a court of any state. Thus, it varies
upon the substance of the law applied by the court.
In the case of Apa Insurance Co. Ltd. v. Chrysanthus Barnabas Okemo, High Court,
Nairobi, Kenya, 24 November 2005, it states that setting aside of a proceeding are
not appeal where it will be re-evaluated and the decision of the arbitral tribunal is
examined, this is because the arbitral tribunal decides as a state court and does not
merely constitute a first instance. Moreover, a case in Germany states that the rule
on appeals for extension of time or possible remedies does not apply as it will
defeat the purpose of arbitral proceeding, that which to provide that parties a
speedy and impartial trial.
Also, courts have regularly emphasized the exceptional character of the remedy as
courts should in principle not interfere with the decision of the arbitral tribunal
[Quintette Coal Limited v. Nippon Steel Corp. et al., Court of Appeal for British
Columbia, Canada, 24 October 1990].
In the case of Noble China Inc. v. Lei Kat Cheong, Ontario Court of Justice, Canada,
13 November 1998, it held that the parties may agree to exclude any right they
would otherwise have to apply to set aside an award under article 34 as long as
their agreement does not conflict with any mandatory provision of the legislation
enacting the Model Law, and does not confer powers on the arbitral tribunal
contrary to public policy. The same has been adopted by a Newzealand court.
However, in the case of Shin Satellite Public Co. Ltd. v. Jain Studios Ltd., Supreme
Court, India, 31 January 2006, it held that the exclusion of any recourse against an
arbitral award is not valid.Also, the Indian Supreme Court considered void a clause
which provided a party which disagreed with afirst award rendered in proceedings
under the auspices of an Indian institution with a right to start new proceedings in
London. It considered that the parties could not question the validity of an award in
proceedings other than in setting aside proceedings. In Tunisia, the Court of
Cassation differentiated in this respect between arbitrations involving parties that
have their headquarters, domiciles, or places of business in Tunisia and those that
do not. Only the latter could exclude by agreement the possibility to set aside an
award. If both parties have their place of business in Tunisia, such an agreement
would be void.
Pursuant to the Model Law, generally the court has jurisdiction to hear an
application for setting aside of an arbitral award under article 34 if the place of
arbitration is within the national jurisdiction of said court. Where the parties agreed
that the place of arbitration shall be within a state, only the courts of the state shall

have jurisdiction to hear an application under the said article even if hearings has
been held in another county. In the case of Yograj Infrastructure Ltd. vs. Ssang Yong
Engineering and Construction Co. Ltd it held that courts have adopted a low
threshold for assuming that the parties to arbitration proceedings taking place
outside India have, at least implicitly, excluded the application of the Indian
Arbitration Act. However, if there was no stipulation nor determined by an arbitral
tribunal, it shall be with the courts at the effective place of arbitration, if it cannot
be determined it shall be at the last oral hearing.
Setting aside proceedings under article 34 are admissible against all types of
arbitral awards, irrespective of whether they completely terminate the proceedings
or are awards finally determining certain claims only. The mere fact that a party
consented to an award on agreed terms pursuant to article 30 does not prohibit it
from applying for the setting aside of the award under article 34. Thus, courts
considered that where the award on agreed terms was obtained by fraud, it may be
set aside. Moreover, a German Court has held that setting aside proceedings
against procedural orders of arbitral tribunals are inadmissible. Also, a court does
not have jurisdiction under article 34 to set aside a decision of an arbitral tribunal or
of any other dispute resolution body that does not constitute an arbitral award
within the meaning of the Model Law.
A decision of an arbitral tribunal declining jurisdiction could not be the subject to the
setting aside procedure under article 34. Under a Singapore court, it claims that
such is not within the meaning of the said article. However a German court held
that it is as long as the decision of the arbitral tribunal was rendered in the form of
an arbitral award.
Such issue has been resolved in the national law of some countries. Under the
Austrian law, it states that An arbitral award shall be set aside if: (1) a valid
arbitration agreement does not exists or the arbitral tribunal has denied its
jurisdiction despite the existence of a valid arbitration agreement (...). Thus, the
erroneous denial of jurisdiction constitutes an additional ground for setting aside an
award.
In a German court it held that, A third party intervener in the arbitration has been
allowed to bring an action for the setting aside of an arbitral award where the
parties and the arbitral tribunal have, at least tacitly, consented to the intervention
and where the intervener has a legal interest in the outcome of the arbitral
proceedings. In contrast, the New Zealand court held that, only parties to the
arbitration has a right to set aside an award because third parties lack the legal
standing to initiate setting aside proceeding.
The applicant has the burden of proving a ground on the basis of which the award
should be se aside. These grounds are enumerated under article 34 paragraph 2
which has two categories. These are;

1. Grounds which are to be proven by one party:


Like, lack of capacity of the parties to conclude an arbitration agreement;
lack of a valid arbitration agreement; lack of notice of appointment of an
arbitrator or of the arbitral proceedings or inability of a party to present its
case; the award deals with matters not covered by the submission to
arbitration; the composition of the arbitral tribunal or the conduct of arbitral
proceedings are contrary to the effective agreement of the parties or, failing
such agreement, to the Model Law.
2. Grounds that a court may consider of its own initiative:
Like, nonarbitrability of the subject-matter of the dispute or violation of public
policy
Courts have emphasized the finality of the award as the main purpose of the
Model Law and the national laws thereon so that awards should not be set
aside easily. Thus, the appropriate standard of review of arbitral awards under
article 34 was considered to be one that sought to preserve the autonomy of
the arbitral procedure and to minimize judicial intervention.
A great number of cases underline that the Model Law does not permit review
of the merits of an arbitral award. This has been found to apply in principle
to issues of law as well as to issues of fact and was considered by a court in
Singapore to be trite law. However in practice, parties usually argue
claiming that the award is unfair or are contrary to law.
In respect of both paragraphs (2)(a) and (2)(b), several Canadian decisions
provided that even if one of the grounds for setting aside an award were
fulfilled, it was still within the discretion of the court to decide whether the
award should be upheld or set aside. Also, a Hongkong Court held that since
the procedural defect did not affect the outcome of the case, given that the
award was based on several conclusions, the court should make use of its
discretion in deciding whether to uphold or set aside the award. Moreover in
practice, courts have usually set aside those parts of the award that were
affected by the defect. The unaffected portion has the res judicata effect.
A court in Uganda held that the existence of incapacity of a party to the
arbitration agreement must be assessed when the parties entered into the
arbitration agreement. Hence, the mere fact that a party entered into
liquidation during the arbitral proceedings are not those ground enumerated
under the Model Law.
The Doctrine of separability means that the alleged invalidity of the main
contract containing the arbitration agreement does not affect, in principle,
the validity of the arbitration agreement.
Notwithstanding said doctrine, the inexistence or invalidity of the main
contract may be invoked as an argument to show that the arbitration clause
is inexistent or invalid. In that light, in a case where the arbitral tribunal had
dealt in detail in the arbitral award with the alleged non-existence of the
contract containing the arbitration clause, a court held that it should not

review the existence of the arbitration clause at the stage of setting aside
proceedings.
A court ruled that an arbitration agreement contained in a contract was not
automatically binding in relation to a guarantor to the extent the guarantor
was not a party to the said agreement and its obligations were independent
from the principal agreement. By contrast, arbitration agreements contained
in framework agreements were extended to disputes arising out of related
contracts. Accordingly, the Hungarian Supreme Court refused to set aside an
award dealing with a dispute arising from a contract where the underlying
asset management contract contained a broadly worded arbitration clause.
Generally, the Model Law does not provide for any time limits for rendering
an award. However, the arbitration rules and laws sometimes provide for
such time limit. In some cases, courts have held that awards made beyond
the expiry of the time agreed by the parties could be set aside.
Decisions have found negative jurisdictional rulings to be reviewable on the
ground that they constitute awards subject to setting-aside proceedings
under article 34. Particularly noteworthy is a decision of the German Federal
Court of Justice in which the arbitral tribunal had denied jurisdiction on the
ground that the respondent had effectively withdrawn from the arbitration
agreement.
According to the court, article 34 does not allow courts to review the merits of
negative jurisdictional decisions; such decisions can only be set aside in one
of the specific circumstances explicitly mentioned in article 34. While a
Canadian court deemed the arbitral tribunals decision to be reviewable
pursuant to article 34, it noted that a review of the merits of that decision
was impermissible under article 34 since an arbitral decision is not invalid
because it wrongly decided a point of fact and law. In contrast to a decision
of the Court of Appeal of Singapore finding that negative jurisdictional rulings
do not constitute arbitral awards.
In a German court it held that if a party did not raise objections to the
existence of an arbitration agreement at the latest in the submission of the
statement of defense (article 16 (2)), such party was precluded from raising
that objection in an application under article 34. However, where the
respondent failed to submit a statement of defense due to the arbitral
tribunals failure to request the respondent to submit such a statement of
defense, it was found that the party would then not be precluded from raising
such objection under article 34.