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The Courts’ Discretion under UNCITRAL articles 34 and 36.

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thesis
posted on 2021-11-14, 01:56 authored by Liebelt, Franziska

This paper addresses the question whether or not courts have the discretion to disregard one of the grounds listed in arts 34 and 36 of the UNCITRAL Model Law and not set aside or enforce an award despite one of the grounds being proven. It further more analyses in what circumstances the courts disregard the grounds. This paper comes to the conclusion that the issue is not a question of the use of the word “may” in the relevant provisions because courts that do not accept the discretion nevertheless disregard grounds for the same reasons as courts that do accept the discretion as a matter of narrow interpretation of the grounds. This paper then moves on to discuss estoppel and materiality as reasons to disregard the grounds. It concludes that these two principles are international recognised and therefore justify the preservation of an award. It suggests that to reach further harmonisation in this issue the Model Law should include provisions on estoppel and materiality.

History

Copyright Date

2013-01-01

Date of Award

2013-01-01

Publisher

Te Herenga Waka—Victoria University of Wellington

Rights License

Author Retains Copyright

Degree Discipline

Law

Degree Grantor

Te Herenga Waka—Victoria University of Wellington

ANZSRC Type Of Activity code

970118 Expanding Knowledge in Law and Legal Studies

Victoria University of Wellington Item Type

Masters Research Paper or Project

Language

en_NZ

Victoria University of Wellington School

School of Law