جستجوی مقالات مرتبط با کلیدواژه « رای داوری » در نشریات گروه « فقه و حقوق »

Recognition and enforcement of arbitral awards by the competent court  when the judgment debtor does not comply with the award willingly is the last step in the settlement of a disputes through an agreed arbitration procedure. The recognition of the arbitral award by a court grants the arbitration awards an enforceability likewise the judgement of a courts. Recognition and enforcement of arbitration awards by the courts upscales such awards to an enforceable and binding level as it’s enforceability has been endorsed by the law. Moreover, when an arbitral award has been recognized by the court, then the outstanding case shall enjoy the status of a res judicata award which bars the parties to the dispute to take the case to the court or the arbitral tribunal again. The recognition of arbitral award has been mainly focused in international arbitration and in international legal literature such New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958) as well as in ICSID Convention for settlement of disputes between foreign investors and sates. However, less attention has been paid to the step of recognition in national arbitration awards, yet it calls for a closer consideration under the national applicable law of the seat of arbitration or the place of its enforcement. The study of judicial precedents in Iran proves that recognition of an arbitral award is likewise a prerequisite for its enforcement. Under Iranian law an arbitral award could be enforced by the court when it does not contradicting the public policy, mandatory rules of law, and the rules of substantial law  granting/securing  a right. Consequently, when a court order for enforcement of an arbitral award, in fact the court has preliminary recognized its enforceability and its conformity with  these three said criteria. In this way, the recognition of a national arbitral award should be considered as a distinguished step in the process of its enforcement. This paper, by looking to the Iranian court precedent, intends to answer to the questions relating to the legal nature and consequences of recognition of a national arbitral award, as well as explaining the procedural rules applicable to this concept, such as the method and form which should be followed for such a request, the legal nature of the court’s decision on this matter, and whether this decision is subject to appeal or not.  However, it should be noted that, due to lack of an integrated system for record and publishing of court’s judgments in Iran this research has been confined to the available records.Under Iranian court’s practice and precedent, the recognition of an arbitral award may be requested from the competent court by a “request” from the beneficiary party and  it is not necessary to file a “petition” as requested for bringing substantial claims before a court . The court shall deal with such a request as a matter of procedure and not as a matter of substance by checking the procedures followed by the arbitral tribunal. The court may not invite the parties for a hearing session and is not obliged to follow the default rules set out for proceedings in other cases. The decision of the court on the matter of recognition shall be in the form of and “order or decision” by the court, not a judgment, stating the recognition or rejection of the arbitral award. Such a decision may be subject to an appeal like any other decisions of the courts. If the arbitral award has not been recognized by the court, which means in practice the request for its recognition and enforcement has been rejected by the court, the same case cannot be heard by the arbitral tribunal again, but it should be heard by the competent court. However, according to the dominant practice of the courts, the arbitration agreement shall be survived for any other disputes might arise out of the same contract.In the light of judicial policy of Iranian government to pursue people to the out of court settlement of their economic and commercial disputes, in particular by promoting  mediation and arbitration, Iranian courts have recently shown more tendency to support and help in recognition and enforcement of national arbitration awards. This approach has been demonstrated in the court decisions and judicial precedent referred to in this paper. In brief, the importance of  stage of recognition of an arbitral award should not be broadly interpreted by the courts to jeopardies the said policy,  promotion of arbitration and enforceability of the arbitral awards.

Arbitration is an alternative method for conflict resolution, in this way that the resolution of the dispute is entrusted to a person or persons with the consent of the parties. They issue votes. But what is important among these are the criteria that an arbitration must consider in order for the vote to be valid.

This research was carried out in terms of practical purpose and in terms of gathering information by documentary method and through the study of valid laws and sources, and the obtained information was analyzed in a descriptive-analytical manner.

In order for the arbitrator to be able to issue a valid decision, he must consider the criteria that are provided in the text of the law. In the review of the Civil Procedure Law and the International Commercial Arbitration Law of Iran, these criteria are stated and can be calculated as follows. These cases include maintaining the confidentiality aspect of arbitration, compliance with notification formalities, justification of the decision, eligibility of the parties to the lawsuit and arbitrators, expiry of the arbitration period, non-compliance with legal conditions in the selection of arbitrators, invalidity of the arbitration agreement and non- arbitrariness and non-arbitrability of the dispute. By considering these cases, the arbitrator can issue a valid decision and cancel the preventive decision.

Dispute resolution through arbitration in the domestic and international arena has revolutionized the dispute resolution system. In the meantime, sports disputes are not excluded from this and an international court has supported this structure. Based on this, in this article, we will examine what is the position of dispute resolution in the procedure of the International Court of Arbitration for Sport.

This research was carried out in terms of practical purpose and in terms of gathering information by documentary method and through the study of valid laws and sources, and the obtained information was analyzed in a descriptiveanalytical manner.

Creating a specialized authority to resolve international disputes and providing a flexible, fast and low-cost procedure led to the formation of the Sports Arbitration Court. From the very beginning of its establishment, it was clear that the jurisdiction of the court should not be imposed on athletes or federations, but should be freely available to the parties. The statutes and regulations of the court have provided only one type of dispute proceedings, regardless of the nature of the dispute. The procedure of the court is first based on compromise, and if no peace is reached, proceedings are carried out in order to issue an arbitration award. In 1994, this structure underwent changes, and these changes included the creation of two arbitration divisions (regular arbitration division and appeal arbitration division) in order to create a clear distinction between exemplary disputes and disputes resulting from a decision taken by a sports body. Also, in the rules of this court, the cases that the court has the jurisdiction to deal with have been enumerated.

Despite the necessity of speed and irrevocability of arbitral awards, because of considerations of due process and public order in dispute resolution a certain limit of judicial review on arbitral awards has been recognized in national legal systems including annulment of arbitral awards on the basis of a disputing party litigation. Except for appeal from arbitral awards in French law for domestic awards which with the agreement of the parties leads to a de novo judicial review and in Iranian law is not allowed, hearing an annulment case in both legal systems is only on the basis of the grounds which have been referred to by the parties and court may annules an arbitral award accordingly. In this article, comparative study of grounds for annulment of arbitral awards in French and Iranian law reveals that in French law the grounds for annulment of arbitral awards are more limited especially in international awards and more coherent than Iranian law.

In international arbitration, three objecting techniques to the arbitral awards are distinguished as appeal, adjuration, and annulment. Although no particular definitions of the above-mentioned terms have been expressed through terminology, they have the profound distinctions and differences and it was unknown to the court as well as to the protesting party.

The reviewing authority is the same court which issued the verdict. Likewise, an appeal is based on both the legitimacy review of the decision-making process and a review of judgment merits which will be disposed in a higher court.Conflict of Interest: The author declares no conflict of interest in the proposed study.

The parties to arbitration can agree on the applicable law, however, in case of lack of determination, the arbitrator shall determine it according to the appropriate conflict of law rules. Also, the arbitrator can interpret and determine the applicable law. If the applicable law is disregarded, since the arbitral award is final and the act determines the grounds to challenge, the parties cannot challenge the award. Iran’s International Commercial Arbitration Act does not determine disregarding applicable law as a ground for challenging the award, so the parties’ autonomy and finality are in contrast. The research shows that although the court cannot review the award beyond the expressed grounds, parties can add some grounds to it. In some cases, the disregard of the applicable law could be interpreted as to act out of mandate or or lack of impartiality.

The Arbitration is one method of the Alternative Dispute Resolutions (ADR) with a quasi-judicial nature. The Foundations of this method are reduce the cost of resolving disputes, saving time and etc. The compliance with the objectives is subject to the quality of hearing and award in the arbitration process. The efficiency of arbitration is displayed in the award. The effective award is reasoned. The Iranian legislator approved this rule. Several questions will be asked about this rule: Is the concept of a reasoned arbitration award and a reasoned judicial judgment the same? Are there foundations of judicial judgment in arbitration award? What is the sanction of unreasoned arbitration award? What is the approach of the International Commercial Arbitration Rules?

The rendering of an arbitral award by an arbitrator does not mean the termination of the mandate. The arbitral award may involve several enforcement problems and may require some completions or corrections. Therefore, the role of the arbitrator after rendering the arbitral award is excessively significant and arises some debates such as the scope and limits of arbitrator's intervention. Is the arbitrator competent to render an additional award on subject-matters that have been neglected for any reason? What should be done with the typographical errors or misprints? In the course of arbitration, the arbitrator may make some statements in contradiction with his award and may also make fundamental mistakes in the mentioned award. It is possible that some criminal or civil liability actions being brought against the arbitrator that can lead to his conviction that will be contrary to the arbitral award. Also, the question remains whether the arbitrator is entitled to defend the validity of his rendered award and to intervene in any relevant cases for any reason. These debates and some other issues that can be faced in practice are discussed in this article.

Today arbitration centers offer significant services in context of arbitration. Offered services in centers are not identical, some of centers may perform different activity than others. One of major activities of arbitration centers is scrutiny of the arbitration proceeding. In centers such as the ICC Court of Arbitration and ICSID also scrutiny of the ward take place. Scrutiny of ICC Court take place to draft ward and for issues of form, the tribunal is obliged to follow the Court suggestion. In ICSID scrutiny is an quasi-judicial oversight and center has the right of review and annulment of arbitration award. In this article we will examine the question of whether this type of monitoring is to intervene in the arbitration tribunal or national courts proceeding.

In a governmental court when a judge decision about variance this hold have a rule who’s name is Les judica (Autorite de la chosejugdee) that means the party cannot say again this case.In this research we want to find answer this question rule is current to arbitration or not. Because if a variance is solve by a arbiter haven’t this rule fey again say this case in a new arbiter or a overnmental court and this is seem not true because if can again say a case who solved by arbiter the arbitory is absurd. And we see Iran law & other country about this rule.

The effects of challenging the arbitral award in the country of origin is discussed in two stages. In proceeding stage in court, as the challenged award is binding, this challenge that the court proceedings in the country of origin are pending does not prevent enforcement of the award in other countries. Suspension or annulment of the award in country of origin has been accepted as one of the grounds of refusing of enforcement in national laws and international instruments. However, there is new trend in international commercial arbitration practice in favor of "enforcement of annulled awards" based on the spirit of the New York Convention that has been accepted in some countries jurisprudence.