jurisdictional Challenges

jurisdictional challenges may be made to an award, but they are more usually made at the beginning of
the arbitration, rather than after the award is rendered. Under many laws, if a party does not challenge
the jurisdiction at the beginning of the arbitration, it may lose the right to object. It is obviously more
efficient to determine whether jurisdiction is proper at the beginning of an arbitral procedure, rather
than after parties have expended time, effort, and resources to reach the final award.

Thus, if a party waits until the award is handed down before it objects to the tribunal's jurisdiction, it
may well have lost its opportunity to challenge. On the other hand, if it has boycotted the proceedings
completely, it may be permitted to make the challenge." If it loses the challenge, however, the award
will be enforced against it. For that reason as well, in most cases it would be better to test the
jurisdictional question at the beginning of the arbitration, and if the challenge fails, then participate in
the arbitration. A jurisdictional challenge to the award, however, may be based on a claim that the
tribunal exceeded its powers. A tribunal may have had jurisdiction under the arbitration agreement, but
nonetheless rendered an award that it was not entitled to make. For example, if a party only claimed a
certain quantum of damages, and the tribunal awarded more than that amount, the tribunal may have
exceeded its jurisdiction .9 The award may also be challenged if the tribunal either fails to consider all of
the issues before it, or if it decides certain issues that were not before it. In some instances, if a court
finds that the tribunal has exceeded its powers, the issues that were improperly decided may he
severed, leaving the award as to other issues intact."

2. Procedural Challenges

Awards are most often challenged on procedural grounds. Most arbitration laws provide that certain
standards of due process must be met." Under the UNCITRAL Model Law, for example, there are four
grounds on which a party can base a challenge, all of which relate to some aspect of due process

they include (1)a party must not be under any incapacity, and the agreement must be valid; (2) a party
must have been given proper notice of both the appointment of the arbitrator and the scheduling of the
proceedings, and must have been able to present its case; (3) the subject matter within the scope of the
arbitration agreement; and (4) the arbitral tribunal must be constituted in accordance with the
agreement of the parties, on each of these grounds, the party making the challenge bears the burden of
proof.

Two other grounds may be raised and determined by the national court sua sponte: (I) whether the
subject matter is arbitrable, and (2,) whether the award conflicts with the public policy of the state. The
arbitrability ground will not cause many awards to be vacated, because there are Very few matters
today that are not considered arbitrable. The second ground that a court could raise is a violation of
public policy. Public policy is defined differently in different jurisdictions, but in most, an award could be
vacated if it was not consistent with fundamental notions of justice, honesty, and fairness. Thus,
corruption, fraud, or lack of integrity in the process could be considered a violation of public policy,
requiring the award to be annulled.