نوع مقاله : نقد رای دادگاه تجدیدنظر
عنوان مقاله English
نویسندگان English
The jurisdiction of an arbitrator to adjudicate claims for rescission or nullity of a contract containing an arbitration clause under Iranian law requires an examination of whether the arbitration clause is separable from, or dependent upon, the underlying contract, in light of a proper interpretation of Article 461 of the Iranian Code of Civil Procedure. If the doctrine of separability is upheld, the arbitrator retains jurisdiction to decide on all forms of contractual dissolution, whether based on rescission or nullity, as the arbitration clause is treated as an autonomous agreement. However, if the arbitration clause is considered dependent on the main contract, a question arises as to whether the arbitrator has jurisdiction to rule on rescission, which essentially involves assessing the continuation or termination of an already valid and existing contract rather than the validity of its formation.
In the case under review, the Court of Appeal, relying on Article 461 of the aforesaid Code, denied the arbitrator’s jurisdiction to adjudicate the rescission claim and subsequently annulled the arbitral award. This research, employing a descriptive–analytical method and based on library sources, critically examines the judicial reasoning adopted in this decision. It demonstrates that the court’s inquiry under Article 461 is merely preliminary and prima facie, with the limited purpose of verifying the apparent existence of an arbitration agreement for the appointment of an arbitrator, rather than a substantive review of the merits or the validity of the arbitration agreement.
Moreover, even if one assumes dependence of the arbitration clause on the underlying contract, a persuasive interpretation suggests that an arbitrator’s confirmation of rescission concerns the continuation or termination of a contract validly concluded, which falls outside the scope of Article 461 and should not trigger judicial intervention at this stage. Accordingly, adopting an interpretation of Article 461 that aligns with the fundamental principles governing arbitration would prevent inconsistency and divergence in judicial practice in this regard.
کلیدواژهها English
