Author: Sampurna Mukherjee*
There can be no doubt that today, the preference, adoption and practice of arbitration as an alternative to traditional litigation, has positively flourished in different jurisdictions across the world through consistent progress. Indisputably, arbitration with its faster and flexible procedural certainty, including comparatively simpler and less formal rules of evidence promoting authoritative enforceability of the arbitral award, with limited grounds of challenge, is the apposite functional link to a speedy conflict resolution system.
One of these developments has been preconditions to arbitration. In the past decade or so, leading practitioners and academicians have commented on the nature of arbitral preconditions, describing them as “procedural” in nature only with no substantive bearing, that may or may not be complied with. However, in recent judicial decisions, two crucial components have been acutely and fatally disregarded or at best ignored. These two components predominantly impact and are key to understanding the proposition at hand in so far as it is perceived, interpreted and understood. They include 1) multi-tiered contractual preconditional escalation clauses to arbitration (broadly containing any combination of Alternative Dispute Resolution [“ADR”] mechanisms such as negotiation, amicable settlements, arbitration, mediation, pre-arbitral adjudication through an expert panel and conciliation as well as 2) the twin debatable and unavoidable questions of jurisdiction of a tribunal versus admissibility of a particular claim to be heard before such a tribunal, that may have arisen, in the light of such preconditions.
This has led to the establishment of a zero-sum game. If the current predicament were to be accepted, that would undermine the core tenets of arbitration: neutrality, confidentiality, consensuality, party autonomy, and the binding nature of an arbitral award. As such, this article argues that contractual preconditions to arbitration should be regarded as impediments to a tribunal’s jurisdiction.
II. A BALANCING ACT: WEIGHING THE DIFFERENT ARGUMENTS
A. Construction of ‘Shall’ and ‘May’ Clauses in Contractual Preconditions to Arbitration
Let us consider the mandatory ‘shall’ clause found in pre-arbitral contractual preconditions. National courts across different jurisdictions have held such clauses to be “compulsory” in nature, deemed to be “necessarily fulfilled” by “substantially complying,” as a matter of solemn duty, reasonably, with the condition. It is to give due importance to the settled procedure of ADR based preconditions, on account of the two principles of party autonomy and party consent, that led to the inclusion of these contractual preconditions in the first place.
Due to these ‘Contractual Preconditions to Arbitration’, there is a large chance of the parties being “sent back” to the previous step and fulfil the ADR precondition(s), within a reasonable time period. This is true even when the tribunal itself has jurisdiction, because the claim was not mature enough, which shows that these arbitral preconditions are indeed impediments to the jurisdiction of the arbitral tribunal. The rules of contractual interpretation impose a mandate or an obligation on the parties to fulfil the precondition first, at least substantially, if not completely and fully, and then proceed to arbitration if required.
In the case of ‘May’ clauses as contractual preconditions to arbitration, there is only negligible leeway granted in case of ‘May’ clauses to not follow the contractual preconditions, when compared to the binding ‘Shall’ clauses. This is because the twin elements of consent and party autonomy also matte, and when these ‘May’ clauses followed or enforced by the Court, have similar practical ramifications. The consideration of public policy is also a factor for upholding ‘Shall’ clauses, something that is seen at all levels of the judiciary in different jurisdictions. Contractual preconditions to arbitration are not conflicting dispute resolution clauses, they are only meant to be “escalatory” in nature. This is because, not only do the parties get an opportunity to engage and ‘settle the matter amicably at the first instance’, there is a relative saving of money, time and human relationship, that any rational human being would want to employ.
This has been summed up quite eloquently, articulately and rather historically recently, by the Hon’ble Chief Justice N V Ramana of the Indian Supreme Court, when he referenced ADR mechanisms being used in the Indian epic of Mahabharata and the need to make ADR mechanisms mandatory as a matter of public policy for dispute resolution. To use another example, the Singapore Court of Appeal in 2013, in the case of Lufthansa held that compliance with pre-arbitral steps in a pre-arbitration clause is binding and mandatory on the parties. Even though the judgment required only actual compliance, the court observed that even if only “substantial compliance” is required, parties would be motivated to comply. The FIDIC form, whether it is the 1999 Rainbow suite or the 1987 Fourth Edition, that is still used fairly widely in France and the Middle East today, is an example of a binding pre-arbitral adjudication. Commencing arbitration in either case requires, as a precondition, compliance with DAB procedures.
As related to “May” clauses, the concepts of unconscionability, waiver, and certainty require some brief discussion.
Notably, unconscionability as a defence to contractual preconditions to arbitration has largely and wholeheartedly been rejected. In most judicial forums, including tribunals, it has a very low success rate, because of a wide range of misuses that is concerning to say the least. Arbitration is a “mutual” right to arbitrate, where the supposed “asymmetrical or unilateral right to choose an arbitrator” will not invalidate an valid arbitration agreement.
Waiver as a defense, with regard to the preconditions, can be asserted in two ways. First, through reduction of these preconditions into an empty formality because parties are unresponsive or have already adopted a rigid stand which they are unwilling to alter. Second, through the “interim relief exception” where a waiver of the arbitral preconditions is treated as mandatory to avoid defeating a party’s substantive rights, including a party’s access to urgent interim reliefs or claims. The defense of waiver, in case of non-compliance by the other party, has to be balanced with its conduct. If these contractual preconditions to arbitration are not regarded as impediments, the litigants would be incentivized to indulge in forum shopping, involving additional investment of time and resources in the preferred forum or delaying the process of dispute resolution, leading to intentional non-compliance and deviation from such contractual preconditions. In addition, no matter of the substantive defenses taken by the opposing party, the two situations of empty formality and interim relief exception are undermined by the fact that the even the smallest communication that has occurred between the parties can be used, to show that there has been no frustration of these preconditions, per se, and move ahead with arbitration. In addition, the tribunal can still require the parties to simply comply with these preconditions within a reasonable time period and/or order interim reliefs based on the extent of compliance of these preconditions by each party’s conduct accordingly, in a bid to truly uphold the principles of impartial justice.
As far as certainty as a defence is concerned, it is important to note that too much of emphasis on certainty seen in the English precedents of Walford v. Miles, Holloway v. Chancery, and Sulamérica Cia Nacional de Seguros SA v. Enesa Engelharia SA, is misplaced. This is because they are directly antithetical to the principles of (i) Verba ita sunt intelligenda ut res magis valeat quam pereat, i.e., the contract should be interpreted so that it is valid rather than ineffective, where absolute clarity is ‘unattainable’; and (ii) that the objective theory of contract is generally not concerned with the subjective expectations of parties, and that the court should always aim to protect the reasonable expectations of parties by looking at the terms of the agreement and appreciating how the procedure will be administered instead of “actual compliance” as expressed unambiguously by Lord Wright, Lord Steyn, and Longmore LJ. Further, if there is an ambiguous essential term, substantial compliance by the parties should be sufficient to address any certainty concerns, as well as the idea that there is “no good reason why negotiation in good faith should not be upheld.”
All of these principles have been accepted in different jurisdictions. For example, in the recent case of Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd, where the English High Court upheld a tiered clause that required parties to attempt to resolve their dispute by friendly discussion for a continuous period of four weeks before initiating arbitration. The court enforced the clause because it was complete and certain in that it required “fair, honest and genuine discussion.” The Court cautioned against conflating the difficulty of proving a breach with uncertainty and further held that such clauses were in the public interest in helping parties avoid an “expensive and time-consuming arbitration.” In the Australian case of United Group Rail Services, the Court upheld the dispute resolution clause which provided for the parties to “meet and undertake genuine and good faith negotiation with a view to resolving the dispute”; failing such resolution the dispute could be arbitrated.
B. Precedents, Precedence, and a “Catch-22” Situation – Issues with Shifting to an “Admissibility” Model instead of a “Jurisdictional” Model
Jurisdiction is a primary issue that goes to the ability of a tribunal to hear a claim. Admissibility may be a secondary issue that aims at the attributes of the claim itself, and determines its appropriateness to be heard before a tribunal, at a given time period, with the presumption that the tribunal already has jurisdiction. Contractual preconditions to arbitration are not mere admissibility’ concerns only. Contractual preconditions are jurisdictional questions that should and have been construed as impediments to the tribunal’s jurisdiction.
Claimants have attempted to use MFN clauses to bypass preconditions to arbitration by importing dispute settlement clauses from other BIT bilateral investment treaties that did not mandate such preconditions. Unlike the Siemens Tribunal,, that borrowed the heavily criticised, debated and controversial decision from the Maffezini Tribunal, leading the former to uphold the investors’ attempts to bypass an arbitral precondition of “submitting all disputes to local courts for 18 months” before going to international arbitration, the Wintershall Tribunal disagreed and held differently.
The Siemens tribunal interpreted the scope of the MFN clause in the Argentina-Germany BIT to be sufficiently wide to invoke the wider dispute resolution clause in the Argentina-Chile BIT, in spite of the former BIT being narrower in scope than the latter BIT. By framing it as a procedural requirement, in the opinion of the tribunal, it was held to be a matter of mere admissibility in the opinion noted by the tribunal.
This is in direct juxtaposition with the verdict of the Wintershall tribunal that held all BIT-based dispute resolution provisions to be by their very nature “jurisdictional.” Interestingly, both of them involved the common principle that “dispute settlement arrangements are inextricably related to the protection of foreign investors.” On this basis, it was found by the latter tribunal that since the 18-month domestic courts provision constitutes a treaty-based pre-condition to the host State’s consent to arbitrate, where it cannot be bypassed or otherwise waived by the tribunal as a mere ‘procedural’ or ‘admissibility-related’ matter. It is interesting to note that, Professor Domingo Bello Janeiro, in the Daimler Tribunal, who had been one of the Wintershall majority, and also on the Siemens tribunal, took a different position in Wintershall than he did in in Daimler, and provided a separate opinion to explain his “change of heart.”
Similarly, umbrella clauses are used to assert jurisdiction over contract claims, containing dispute resolution clauses of domestic litigation, or amicable settlement, before being submitted to arbitration. In SGS v. Philippines the tribunal found that it did have jurisdiction, but chose not to exercise it.  The tribunal would have exercised its jurisdiction, had there been no specific dispute-resolution mechanism in the contract, subsequently rendering it an “inadmissible claim” on account of which the tribunal’s jurisdiction could and would not be exercised. This is because the tribunal believed that priority and primacy had to be given to the forum selection clause, as part of the contractual dispute resolution procedure in the contract, based on the maxim of “lex generalis non derogat lex specialis” that entails a general provision cannot override a specific provision. Consequently, the proceedings were stayed in favour of the dispute resolution forum as specified contractually.
It has been seen that, for the sake of convenience or vexed conscience, it has been found easier to dodge the characterisation of contractual preconditions to arbitration as either ‘jurisdictional’ or ‘admissibility’ questions, thereby impacting the extent or degree of these arbitral preconditions, acting as impediments to the tribunal’s jurisdiction nonetheless. For instance, in the 2013 decision of Philip Morris v. Oriental Republic of Uruguay, the tribunal was hesitant to characterize the jurisdiction versus admissibility debate with regard to contractual preconditions to arbitration, which set out a six-month period for amicable settlement and an 18-month domestic litigation requirement. The claimant, Philip Morris, had not complied with either of the requirements. It was, however, contradictorily recorded by the tribunal that the claimant had in fact been complied with them, in spite of noting that the “core objective” of the twin preconditions was to give local courts, including the six month period for amicable settlement, the opportunity to consider the disputed matter, and ensure that it was met. In addition, the Philip Morris tribunal expressly avoided a precise characterization of the domestic litigation requirement as either one of admissibility or of jurisdiction. This becomes very important because there is a greater need to scrutinize and probe into the questions of admissibility and jurisdiction, given that the latter has a higher threshold sieve than the former. There is a crucial distinction, insofar as, in general, decisions on jurisdiction will be reviewable, whereas findings of admissibility would not or may not be reviewed. This has been remarked by the noted Swedish scholar Jan Paulsson. For example, a tribunal’s determination whether it possesses jurisdiction or not can be regularly challenged before ad hoc committees in the case of ICSID proceedings or before national courts in the case of non-ICSID arbitrations.
A tribunal’s finding that a specific claim is admissible or inadmissible, however, will lead to their bring set aside by domestic courts or to an annulment by an ICSID ad hoc committee. For all such purposes, it is important, if not rudimentary to the facts and circumstances of the case, to determine whether an issue is one pertains to jurisdiction or to admissibility, and that reviewing bodies should have the power to reclassify a tribunal’s categorization in order to avoid its attempted immunization from review.
What is lacking is the ability to identify, study, and courageously explore, investigate, examine, analyze the question, and apply the distinction without shying away, both in the approach and subsequently the recorded verdict. The decisions that have been rendered in the past year or so, confirm this. Compliance with arbitral preconditions is not only a procedural requirement, which can be understood from the discussions above, but also establishes permeable boundaries between the two concepts of jurisdiction and admissibility. Hence, while determining a particular case for jurisdiction or admissibility, not only does the dispute resolution clause with the pre-arbitral and arbitral mechanisms need to be scrutinized, but the underlying factors, whether factual or legal, should be taken into consideration as well. These concerns have been present in the recent decisions of the UK and Hong Kong jurisdictions.
In English decision of Republic of Sierra Leone v SL Mining Ltd., the High Court dismissed the arbitration claim application made by the claimant under Sections 67 and 30(1)(c) of the Arbitration Act, 1996. There was a contractual precondition of endeavoring to reach an amicable settlement within a period of three months, in good faith, and only if none was reached would the matter be submitted to the exclusive jurisdiction of an ICC Arbitration Tribunal. The American precedent of BG Group PLC v. Republic of Argentina, among two other judgments, was relied on and applied, to deliver the judgment in this case.
This is problematic because firstly, the difficulty in BG Group arose due to the preconditional requirement for non-binding local litigation under the Argentina-UK Bilateral Investment Treaty, whereas the inclusion of “and only if none was reached” in the contract in Sierra Leone case made it a complete bar to the tribunal’s jurisdiction unless that was complied with. Secondly, the Honorable Judge in Sierra Leone, noted that the issue was “not whether the claim was arbitrable” but “whether it ha[d] been presented too early” that was supposedly made clear in the American precedent. There was only a cursory and insignificant mention of the latter, that was not even remotely pertinent to the issue identified, and at best vague, without any act of distinguishing, if that was the intention. Thirdly, it was held by the tribunal in BG Group that “[a]s a matter of treaty interpretation,” the local litigation provision “cannot be construed as an absolute impediment to arbitration”, but should be an impediment nonetheless to the exercise of the tribunal’s jurisdiction.
The judgment of Sierra Leone also had a hasty application of factually dissimilar judgments of BBA v. BAZ and BTN v. BTP in addition to the above judgment, belonging to the Singaporean jurisdiction. In case of the former judgment, there was a completely different question, in paragraph 73 of the judgment, where the issue of time bars arising from the expiry of the statutory limitation periods, that was not the case in Sierra Leone, was held as a question of admissibility and not jurisdiction. Even in that case, it is still an impediment before the inadmissibility is cured.
As for the latter case, the judgment itself mentions that BTN v. BTP deals with different issues, such as tribunals’ decisions on objections regarding preconditions to arbitration, like time limits, the fulfilment of conditions precedent such as conciliation provisions before arbitration may be pursued, mootness, and ripeness are matters of admissibility, not jurisdiction. C v. D, that was relied upon in Sierra Leone, has lacunae of its own, that found the general trend of admissibility to be applicable, in favour of international trends, without opining anything substantial on the unattended interpretation of Section 81 of the Ordinance, containing the “true question of jurisdiction”. Neglecting the significance of Section 81 of the Ordinance, as a result, led to another superfluous outcome in the jurisprudential development of such decisions.
The decisions above run counter to the principles of transparency and accountability that demand that the contents and application of jurisdiction and admissibility be mandatorily distinguished, and the reasons recorded for doing so, with the former being the preliminary question over the latter. As a matter of principle, if contractual preconditions to arbitration are deemed to be jurisdictional in nature, non-compliance should and would be a complete impediment to the tribunal’s jurisdiction because arbitrators cannot decide cases if they do not have jurisdiction and a challenge to jurisdiction may prompt judicial intervention. Compare this with contractual preconditions to arbitration being deemed as “admissibility” concerns. If contractual preconditions to arbitration are construed as “inadmissible” in nature, then there should and would be a partial impediment to the tribunal’s jurisdiction, unless the defect of the inadmissible claim was cured.
Even if the contractual precondition to arbitration were construed as an admissibility issue, the tribunal’s jurisdiction would still be subject to the above mentioned considerations of forum shopping, rules of contractual interpretation, public policy relevance and substantive practices statutorily coded in different jurisdictions, no matter their dismissal otherwise as mere procedural concerns only. Although the courts of Singapore have rarely set aside awards, they would not hesitate to do so when the parties’ fundamental right to delimit the tribunal’s jurisdiction is breached. In light of these considerations, the inherent power of the arbitral tribunal to rule on its own jurisdiction should be reasonably and adequately exercised by the tribunal, consisting of the arbitrators, and refusing adjudication over the admissible claim that was included and intended to legally and fairly spread, improve and advance arbitration and the arbitral process.
C. Going back to the drawing board – ‘Impediments’ Still
By and large, jurisdiction relates to the consent of the parties, whereas admissibility objections such as the contractual preconditions to arbitration are often of a temporal nature, i.e., an impediment to the tribunal’s jurisdiction, unless cured. Rules on admissibility represent potential limits or impediments on or to the jurisdictional powers of the tribunal, that is, they define the circumstances under which tribunals can or should decline to exercise their jurisdiction over cases brought before them.
An inadmissible claim would have to have the defect cured first to lawfully allow the exercise of the tribunal’s jurisdiction. The first ground on which a claim becomes inadmissible is “mootness of a dispute” involving a conflict of interest. The second ground on which a claim becomes inadmissible is where there is a delay in submitting the case before a tribunal and it becomes time barred as a result. The third ground on which a claim becomes inadmissible is wherea necessary third party is not present. In such circumstances, the court may sometimes not be able to rule on the case. This is because the rights and obligations of third parties would be greatly impaired otherwise. The presence of corruption in the dispute itself, including unlawfully obtained evidence, would constitute the fourth and fifth grounds of inadmissibility, respectively.
Contractual preconditions to arbitration reflect the preferences of litigants, involving their choice of ADR mechanisms such as arbitration, mediation, negotiation, conciliation and pre-arbitral adjudication over traditional litigation. As far as the arbitrability of the disputes is concerned, courts in most cases applaud and approve the use of these alternative mechanisms, using several tests to determine its jurisdiction. The arbitral process is built on certain core or fundamental principles and values, that protect party autonomy and consent over everything else. Hence, when the question of these preconditions being impediments is concerned, they are very much so, in that can be curable or not i.e. non-admissible or jurisdictional in nature. Diminishing them as being admissibility concerns only would result in a gross miscarriage of fairness and justice to both the parties.
- While drafting the contractual preconditions to arbitration, it is recommended that they should be detailed enough to allow a well-rounded decision on the weight of all the options used instead of pitting one against the other, with specific roles assigned to the parties as well as timelines, which may or may not be extended after consultation or pre-arbitral adjudication is deemed to have been failed;
- The clauses that provide for access to urgent interim reliefs should not be barred if the parties can show, using the “bare minimum standard” postulated above, that there has at least been at attempt to communicate and resolve the dispute by one party using the party-approved preconditions to arbitration, regardless whether the other party responds or not, to prove that there was an intention to comply with the precondition at its bare minimum, where such a standard may be codified in the statute as a provision, as may be deemed fit by the legislature;
- Implement statutory provisions in the respective Arbitration Acts, such as Sections 16(2) and 4 of the Indian Arbitration and Conciliation Act, 1996 (which allows a party to raise its objection, such as a plea of lack of jurisdiction), applicable in cases of non-compliance with arbitral preconditions before an arbitral tribunal, either at the time of or before the submission of its statement of defense, without being precluded to do so because he has appointed or participated in the appointment of an arbitrator for the subsequent arbitral process. This is because, by merely appointing an arbitrator, a party should not be considered to have waived its right to raise a jurisdictional objection premised on the non-compliance with a pre-arbitral step
- Allow the arbitral tribunal to exercise its inherent jurisdiction under the Kompetenz-Kompetenz principle but in case of implicit and inherent defects of judicial reasoning that does not ‘reasonably’ apply the distinction between jurisdiction and admissibility as an issue formulated in the matter, the parties may have the remedy of approaching the Courts, as it maybe, who then may exercise their discretion sparingly and upon adequate findings, may direct the parties to a fresh arbitral tribunal or dismiss the application; and
- Lay down a detailed statutory mechanism for non-admissible turned admissible claims, that is to be followed by arbitral tribunals, once the latter are not inflicted by innate “inadmissibility impediments.” This would be beneficial because it would give much needed clarity to the process and its participants, procedurally speaking, for curing the defect and then navigating the process, either once again or from where they had left and make it easier for the Tribunals to rule in such cases, with legislative backing present while preserving the supremacy of the arbitral process.
* Sampurna Mukherjee is a fourth year undergraduate student of law [B.A.;L.L.B(Hons.)] at Symbiosis Law School, Pune, India. Her areas of interest include Arbitration – ADR, International Relations, Comparative Constitutional Law, History, Jurisprudence and Literature.
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