The Courts’ Discretion under UNCITRAL articles 34 and 36.

Abstract

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.