Comparative Law Researches

Comparative Law Researches

Jurisdictional or Admissibility Issue of the Breach of the Multi-Tiered Dispute Resolution Clauses

Document Type : Original Research

Authors
Younes Nouranimoghaddam 1
faizollah Jafary 1
mehrnaz mokhtari 2
1 Assistant Professor in Private Law* , Bu-Ali Sina University, Hamadan, Iran
2 Ph. D. Student in Private Law, Bu-Ali Sina University, Hamadan, Iran
Abstract
Nowadays, by the increasing expansion of commercial contracts in the international arena, the use of multi-tiered dispute resolution clauses have been increased. These clauses have many functions for the parties compared to other judicial and arbitration methods. Identifying this issue is very useful in the practical procedure, assuming that the terms of the dispute resolution are binding, the arbitrator starts the arbitration regardless of the observance of these terms by the parties, the arbitration award is invalid due to the lack of competence of the arbitrator, or the violation of the terms is simply a matter of admissibility. A group is of the opinion that non-compliance with the condition of multi-tiered dispute resolution clauses directly affects the jurisdiction, and the arbitrator has exceeded the limits of his jurisdiction, subsequently the decision issued according to the law is null, and it has no legal effect. In contrast, some believe that this issue is related to the admissibility, which is a gentler approach and in line with respecting the sovereignty of the volition governance principle to resolve the dispute through arbitration and non-intervention of the court. Basically, their basis for supporting this theory is that the claim is merely defective in form, and the arbitration agreement between the parties is valid. Regarding the types of legal reactions to non-compliance with the conditions of dispute resolution, suspending the arbitration process at the same time as granting a deadline to comply with the pre-arbitration conditions is preferable to other solutions.
Keywords
Jurisdiction
Admissibility
Arbitration
Dispute Resolution Clauses

Subjects

In Persian:
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