Early Determination of Arbitral Jurisdiction by the National Court
Paragraf 1 of Article 8 of the UNCITRAL Model Law and Paragraf 3 of Article 2 of the New York Convention express the duty of the court in referring the matter to arbitration. The mentioned articles oblige the court to refer the matter to arbitration if requested by one of the litigants, unless it fi...
| Main Authors: | , |
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| Format: | Article |
| Language: | fas |
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Tarbiat Modares University
2025-01-01
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| Series: | پژوهش های حقوق تطبیقی |
| Subjects: | |
| Online Access: | http://clr.modares.ac.ir/article-20-76413-en.pdf |
| _version_ | 1826534895729508352 |
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| author | Mohammadjavad Hoseinpour Ali Ansari |
| author_facet | Mohammadjavad Hoseinpour Ali Ansari |
| author_sort | Mohammadjavad Hoseinpour |
| collection | DOAJ |
| description | Paragraf 1 of Article 8 of the UNCITRAL Model Law and Paragraf 3 of Article 2 of the New York Convention express the duty of the court in referring the matter to arbitration. The mentioned articles oblige the court to refer the matter to arbitration if requested by one of the litigants, unless it finds that the arbitration agreement is not valid. Researches show that the consideration of judges in this assumption can be done in two ways: A) Breif Review, B) Substantive Review. The important difference between these two methods is that the announcement of the court's result in the brief review is not considered a verdict according to most legal systems; But when the court conducts a substantive review in relation to the arbitration agreement, it will lead to the issuance of a decision. Proponents of the brief review theory believe that respecting the principle of jurisdiction over jurisdiction requires that judges be the first judges of their jurisdiction, but the authors in this research have argued that in the draft paragraph 1 of Article 8 of the UNCITRAL Model Law, it is proposed to insert a phrase that defines the concept of brief review It evokes that it was given, but it was not accepted by the members of the UNCITRAL working group, as well as the absolute acceptance of the negative effect of the principle of jurisdiction over jurisdiction, contrary to the decreasing trend of courts' involvement in arbitration and the establishment and development of the arbitration institution as an independent authority will lead to theoretical conflicts and have the opposite result. The judicial opinions in this field are completely mixed, but it seems that the approach of the opinions that accepted the middle opinion by accepting the elements of both theories is more correct. |
| first_indexed | 2025-03-14T02:30:18Z |
| format | Article |
| id | doaj.art-65c8436bfd1d49fea7c1ede7ed2de657 |
| institution | Directory Open Access Journal |
| issn | 2251-6751 2476-6801 |
| language | fas |
| last_indexed | 2025-03-14T02:30:18Z |
| publishDate | 2025-01-01 |
| publisher | Tarbiat Modares University |
| record_format | Article |
| series | پژوهش های حقوق تطبیقی |
| spelling | doaj.art-65c8436bfd1d49fea7c1ede7ed2de6572025-03-11T06:08:52ZfasTarbiat Modares Universityپژوهش های حقوق تطبیقی2251-67512476-68012025-01-01284130Early Determination of Arbitral Jurisdiction by the National CourtMohammadjavad Hoseinpour0Ali Ansari1 Master's student in Private Law, Faculty of Law and Political Sciences, Allameh Tabatabai University, Tehran, Tehran. Associate Professor of Private Law, Faculty of Law and Political Sciences, Allameh Tabatabai University, Tehran, Iran Paragraf 1 of Article 8 of the UNCITRAL Model Law and Paragraf 3 of Article 2 of the New York Convention express the duty of the court in referring the matter to arbitration. The mentioned articles oblige the court to refer the matter to arbitration if requested by one of the litigants, unless it finds that the arbitration agreement is not valid. Researches show that the consideration of judges in this assumption can be done in two ways: A) Breif Review, B) Substantive Review. The important difference between these two methods is that the announcement of the court's result in the brief review is not considered a verdict according to most legal systems; But when the court conducts a substantive review in relation to the arbitration agreement, it will lead to the issuance of a decision. Proponents of the brief review theory believe that respecting the principle of jurisdiction over jurisdiction requires that judges be the first judges of their jurisdiction, but the authors in this research have argued that in the draft paragraph 1 of Article 8 of the UNCITRAL Model Law, it is proposed to insert a phrase that defines the concept of brief review It evokes that it was given, but it was not accepted by the members of the UNCITRAL working group, as well as the absolute acceptance of the negative effect of the principle of jurisdiction over jurisdiction, contrary to the decreasing trend of courts' involvement in arbitration and the establishment and development of the arbitration institution as an independent authority will lead to theoretical conflicts and have the opposite result. The judicial opinions in this field are completely mixed, but it seems that the approach of the opinions that accepted the middle opinion by accepting the elements of both theories is more correct.http://clr.modares.ac.ir/article-20-76413-en.pdfpreliminary determination of the jurisdiction of the arbitral courtthe principle of jurisdiction over jurisdictioninternational commercial arbitrationuncitral model lawnew york conventioncourt's intervention in arbitration. |
| spellingShingle | Mohammadjavad Hoseinpour Ali Ansari Early Determination of Arbitral Jurisdiction by the National Court پژوهش های حقوق تطبیقی preliminary determination of the jurisdiction of the arbitral court the principle of jurisdiction over jurisdiction international commercial arbitration uncitral model law new york convention court's intervention in arbitration. |
| title | Early Determination of Arbitral Jurisdiction
by the National Court |
| title_full | Early Determination of Arbitral Jurisdiction
by the National Court |
| title_fullStr | Early Determination of Arbitral Jurisdiction
by the National Court |
| title_full_unstemmed | Early Determination of Arbitral Jurisdiction
by the National Court |
| title_short | Early Determination of Arbitral Jurisdiction
by the National Court |
| title_sort | early determination of arbitral jurisdiction by the national court |
| topic | preliminary determination of the jurisdiction of the arbitral court the principle of jurisdiction over jurisdiction international commercial arbitration uncitral model law new york convention court's intervention in arbitration. |
| url | http://clr.modares.ac.ir/article-20-76413-en.pdf |
| work_keys_str_mv | AT mohammadjavadhoseinpour earlydeterminationofarbitraljurisdictionbythenationalcourt AT aliansari earlydeterminationofarbitraljurisdictionbythenationalcourt |