UNCITRAL 2012 Digest of Case Law on the Model Law on ...

clear and unequivocal in expressing the party’s intention to
waive its contractual right to have the dispute settled by
arbitration. 71
4. The issue <strong>of</strong> whether or not there has been a waiver
was held by a Hong Kong court as one that has to be
decided by the arbitral tribunal and not by the court. In
that case, a party had applied to the court for security for
costs instead <strong>of</strong> applying to the arbitrator. The applicant
insisted that the court had jurisdiction as the defendant had
waived its right to object to the non-compliance by not
serving a written objection within 28 days after it knew <strong>of</strong>
such non-compliance. The court held that it had no jurisdiction
to decide on the waiver as that was a matter to be
decided by the arbitral tribunal. 72
Part one. <strong>Digest</strong> <strong>of</strong> case law 19
effect <strong>of</strong> the waiver
5. Where, by virtue <strong>of</strong> article 4, a party was deemed to
have waived its right to object, a German court held that
that party would be precluded from raising the objection
during the subsequent phases <strong>of</strong> the arbitral proceedings.
After the award has been issued, such a party may not
invoke non-compliance with the arbitration procedure or
agreement as a ground for setting aside the award 73 or as
a reason for refusing its recognition and enforcement. 74 It
should be pointed out that a waiver has this latter effect
only in cases where the applicable legislation enacting
the Model <strong>Law</strong> includes a provision similar to that <strong>of</strong>
article 4. 75 (See below, section on article 34, paras. 42
and 45)
71 CLOUT case No. 780 [Cairo Regional Center for International Commercial Arbitration, No. 312/200, Egypt, 28 November 2004].
72 CLOUT case No. 676 [Attorney-General v. Vianini Lavori Spa, High Court—Court <strong>of</strong> First Instance, Hong Kong, 11 February 1991],
[1991] HKCFI 221, available on the Internet at http://www.hklii.hk/eng/hk/cases/hkcfi/1991/221.html.
73 Oberlandesgericht Stuttgart, Germany, 1 Sch 08/02, 16 July 2002, available on the Internet at http://www.dis-arb.de/de/47/datenbanken/
rspr/olg-stuttgart-az-1-sch-08-02-datum-2002-07-16-id187; see also CLOUT case No. 637 [Presidium <strong>of</strong> the Supreme Court, Russian
Federation, 24 November 1999].
74 CLOUT case No. 659 [Oberlandesgericht Naumburg, Germany, 10 Sch 08/01, 21 February 2002], also available on the Internet at
http://www.dis-arb.de/de/47/datenbanken/rspr/olg-naumburg-az-10-sch-08-01-datum-2002-02-21-id166.
75 Ibid.