Abstrakt

  I. It is a generally accepted standard in arbitration that a party who entered the dispute as to the merits – in practice it means respondent submitting his statement of defence – without raising an objection to the jurisdiction of the arbitral tribunal, cannot make such plea at a later date unless the arbitrators shall consider the delay justified.   II. However, theoretical reasons behind this practical solution can vary. One should take into account a conclusion that the statement of claim (by the very fact of being addressed to the arbitral tribunal) and the statement of defence (by not objecting thereto) form together an arbitration agreement; however, even failing this, the objection may be considered time-barred as the matter of procedure. In the latter case, a further question arises: whether the objection shall be time-barred in the arbitration proceedings only, or is it totally forfeited so that it cannot be raised as the premise of the setting aside of a domestic arbitral award or of the refusal of the recognition and enforcement of a foreign award.   III. There are two motives for the selection of the topic of this report. One is a recent decision of the Polish Supreme Court; the other, an outstanding sentence in the new VIAC Arbitration Rules of 2013.   The comparison of the VIAC Rules with the rules of Polish arbitration institutions: the Lewiatan Court of Arbitration Rules of 2012 (in particular, Sec. 27) and the 2007 Rules of the Court of Arbitration at the Polish Chamber of Commerce (in particular, Sec. 4) shows that all these regulations are essentially based on the ideas and even language of the UNCITRAL Model Law and, as the result, are very similar. The basic feature of the model regulation is the distinction between the objection as to the jurisdiction of the arbitral tribunal in the matter of the dispute as the whole (which usually results from the asserted lack of...