CEU Electronic Theses and Dissertations, 2016
| Author | Ahmadloo, Saideh |
|---|---|
| Title | Jurisdiction of national courts to appoint an arbitrator to prevent denial of justice |
| Summary | The scope of national courts’ jurisdiction to intervene in arbitration process to assist the applicability of arbitration agreement has been discussed over many years by different scholars. A problematic issue that this thesis deals with is related to a situation when one party of an arbitration agreement fails to appoint a co-arbitrator when the arbitration is ad hoc, with no specification about the place of arbitration or the governing law of the arbitration procedure, with no acceptance by any national court to appoint the arbitrator or to decide the merits of the dispute. In this situation, the plaintiff faces a road block and no available justice. In 2005, for the first time French Court of Cassation faced this situation in the case of National Iranian Oil Company (NIOC) v. Israel (NIOC Case). In this case, the new ground for judicial appointment of an arbitrator applied by French Court by relying on “theory of denial of justice”. This thesis examines the facts and five different court’s judgments in the NIOC case in light of the theory of international denial of justice to evaluate the new introduced ground for jurisdiction of the national court in appointing an arbitrator. This thesis shows an additional way of looking at different layers of international denial of justice which can justify the court intervention to appoint an arbitrator to imply justice by making the arbitration agreement applicable. This thesis employs both doctorial and comparative law methods for exploring a practical principle from the NIOC case. By distinguishing between total denial of justice and arbitral denial of justice, it concludes that the existence of all the elements of NIOC case combined with pro-arbitration policy create universal responsibility for national courts to appoint an arbitrator. |
| Supervisor | Markus Aurel Petsche |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2016/ahmadloo_saideh.pdf |
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