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

80 uNCItrAL <strong>2012</strong> <strong>Digest</strong> <strong>of</strong> <strong>Case</strong> <strong>Law</strong> on the Model <strong>Law</strong> on International Commercial Arbitration
Appeal rejected the argument, emphasizing that what mattered
to the admissibility <strong>of</strong> the application was whether
the impugned jurisdictional decision had been rendered in
a preliminary matter, rather than the form it took. 411 A 2006
decision <strong>of</strong> the Court <strong>of</strong> Appeal <strong>of</strong> Singapore is to the same
effect. 412
Applicable law
17. Article 16 (3) does not specify which law the court
should apply while reviewing a jurisdictional decision rendered
by the arbitral tribunal. However, it may be noted
that the Model <strong>Law</strong> explicitly mentions which law governs
issues <strong>of</strong> capacity, validity and arbitrability in the context
<strong>of</strong> setting-aside applications (article 34) or recognition and
enforcement applications (articles 35-36) 413 and that the
travaux préparatoires suggest that the conflict-<strong>of</strong>-laws rules
set out in articles 34 and 36 should be followed by arbitral
tribunals while ruling on their own jurisdiction (see above
in this section, para. 11).
Applicable standard <strong>of</strong> review
18. Another issue on which article 16 (3) is silent relates
to the applicable standard <strong>of</strong> review: may the court fully
review conclusions <strong>of</strong> fact and law found in the challenged
decision, or should it rather adopt a deferential stance and
only set it aside if exceptional circumstances are present?
This question <strong>of</strong> practical importance has not been answered
consistently by courts. While in several cases courts have
taken for granted that interim jurisdictional decisions rendered
by arbitral tribunals could be fully reviewed, 414 in the
cases where the issue was addressed in greater detail inconsistent
conclusions were reached.
19. In one case, an arbitral tribunal had rendered an
interim decision dismissing the respondent’s contention that
the parties were not bound by any arbitration agreement.
The respondent subsequently made an application under
article 16 (3) to seek a court ruling on the jurisdictional
issue and asserted arguments that, according to the claimant,
had not been asserted before the arbitral tribunal. The
claimant argued that those arguments were inadmissible on
the ground that, in the context <strong>of</strong> an application based on
article 16 (3), a court could only determine the jurisdictional
issue on the basis <strong>of</strong> arguments presented to the
arbitral tribunal. The High Court <strong>of</strong> Singapore rejected the
argument, noting that a hearing under article 16 (3) is not
by way <strong>of</strong> appeal and that the parties were therefore free
to put forward new arguments. Moreover, it added that a
court intervening pursuant to article 16 (3) was free to
“make […] an independent determination <strong>of</strong> the issue <strong>of</strong>
jurisdiction and is not constrained in any way by the findings
or the reasoning <strong>of</strong> the tribunal.” 415
20. In another case, involving a dispute arising out <strong>of</strong> an
insurance contract, the insured commenced arbitration on the
basis <strong>of</strong> a clause providing for an arbitration seated in Calgary,
Canada and conducted pursuant to the Alberta statute
governing international arbitration. The insurer, the respondent
in the arbitration, objected to the arbitral tribunal’s jurisdiction
on the basis that the parties had agreed that the
arbitration would rather be held in London, England. After
the arbitral tribunal dismissed the jurisdictional objection,
the insurer made an application under article 16 (3) to
seek a court ruling thereon. The court proceeded to a
detailed analysis <strong>of</strong> the applicable standard and—relying
on the fact that courts “are generally reluctant to interfere
with decisions <strong>of</strong> a commercial arbitral tribunal, particularly
in a matter involving an international commercial
arbitration,” as well as on a line <strong>of</strong> Canadian cases standing
411 The Incorporated Owners <strong>of</strong> Tak Tai Building v. Leung Yau Building Ltd., High Court—Court <strong>of</strong> Appeal, Hong Kong Special
Administrative Region <strong>of</strong> China, 9 March 2005, [2005] HKCA 87, available on the Internet at http://www.hklii.hk/eng/hk/cases/
hkca/2005/87.html; see also CLOUT case No. 523 [Weltime Hong Kong Ltd. & Others v. Ken Forward Engineering Ltd., High Court—
Court <strong>of</strong> First Instance, Hong Kong Special Administrative Region <strong>of</strong> China, 6 March 2001], [2001] HKCFI 831, also available on the
Internet at http://www.hklii.hk/eng/hk/cases/hkcfi/2001/831.html; Brunswick Bowling & Billiards Corporation v. Shanghai Zhonglu
Industrial Co. Ltd. and Another, High Court—Court <strong>of</strong> First Instance, Hong Kong Special Administrative Region <strong>of</strong> China, 10 February
2009, [2009] HKCFI 94 at para. 111, available on the Internet at http://www.hklii.hk/eng/hk/cases/hkcfi/2009/94.html, at para. 111.
412 CLOUT case No. 742 [PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank S.A., Court <strong>of</strong> Appeal, Singapore, 1 December 2006],
also in [2006] SGCA 41, [2007] 1 SLR(R) 597.
413 See articles 34 (2)(a)(i), 34 (2)(b)(i), 36 (1)(a)(i) and 36 (1)(b)(i).
414 Assumption Sisters <strong>of</strong> Nairobi Registered Trustee v. Standard Kebathi & another, High Court at Nairobi (Nairobi <strong>Law</strong> Courts),
Kenya, 21 November 2008, Civil <strong>Case</strong> 497 <strong>of</strong> 2004, available on the Internet at http://kenyalaw.org/; ERG Petroleos v. Realesser, Audiencia
Provincial de Madrid (sección 8ª), Spain, 13 July 2009, res. 289/2009, 28079370082009100167 (Id cendoj), available on the Internet
at http://www.poderjudicial.es/search/indexAN.jsp; Pemex Exploración v. Corporación Mexicana de Mantenimiento Integral S.A. de C.V.,
Ninth District Court in Civil Matters, Federal District, Mexico, 23 August 2007, Amparo 584/2007-IV; CLOUT case No. 373 [Kammergericht
Berlin, Germany, 28 Sch 17/99, 15 October 1999], also available on the Internet at http://www.dis-arb.de/en/47/datenbanken/
rspr/kg-berlin-case-no-28-sch-17-99-date-1999-10-15-id35; Guilde des Musiciens du Québec v. Piché, Superior Court <strong>of</strong> Quebec, Canada,
8 June 1998; [1998] JQ No. 4896 9095-5378 Québec Inc. v. Perform Environnement Inc., Superior Court <strong>of</strong> Quebec, Canada, 18 August
2004, [2004] CanLII 7022 (QC CS), available on the Internet at http://canlii.ca/t/1hnxs; Canadian Ground Water Association v. Canadian
Geoexchange Coalition, Superior Court <strong>of</strong> Quebec, Canada, 15 June 2010, [2010] QCCS 2597, available on the Internet at http://canlii.
ca/t/2b688; CLOUT case No. 1064 [Hanseatisches Oberlandesgericht Bremen, Germany, 2 Sch 4/01, 10 January 2002], also available
on the Internet at http://www.dis-arb.de/en/47/datenbanken/rspr/hanseat-olg-bremen-case-no-2-sch-04-01-date-2002-01-10-id413.
415 CLOUT case No. 567 [PT Tugu Pratama Indonesia v. Magma Nusantara Ltd., High Court, Singapore, 10 September 2003], [2003]
SGHC 204, [2003] 4 SLR(R) 257; see also Christian Mutual Insurance Company & Central United Life Insurance Company & Connecticut
Reassurance Corporation v. Ace Bermuda Insurance Limited, Court <strong>of</strong> Appeal, Bermuda, 6 December 2002, [2002] Bda LR 56;
Mexico v. Cargill Inc., Ontario Court <strong>of</strong> Appeal, Canada, 4 October 2011, [2011] ONCA 622 (CanLII), available on the Internet at http://
canlii.ca/t/fn9qh.