Outside or beyond the scope of the arbitration agreement (Article V(1)(c))

“The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced.”

The grounds for refusal provided under Article V(1)(c) are that the award:
– Deals with a difference or dispute not contemplated by, or not falling within, the terms of the parties’ submission to arbitration, or

– Contains decisions on matters beyond the scope of the parties’ submission to arbitration. The grounds in Article V(1)(c) embody the principle that the arbitral tribunal only has the jurisdiction to decide the issues that the parties have
agreed to submit to it for determination.
In determining what the parties have submitted to the arbitral tribunal, regard must be had to the arbitration agreement and the claims for relief submitted to the arbitral tribunal by the parties. The language of the arbitration agreement that sets out what the parties have agreed to submit to the arbitral tribunal for determination is critically important; issues must remain within that scope.

Model clauses published by Arbitral Institutions are typically drafted to give the arbitral tribunal very broad jurisdiction to determine all disputes arising out of or in connection with the parties’ substantive agreement (usually a contract). Ripeness and similar issues are usually a matter of admissibility (not jurisdiction) and therefore not reviewable courts. (See also Chapter II at III.1 on the competence-competence of arbitrators and court review of arbitration agreements.)
The court has a discretion to grant partial enforcement of an award if the award is only partly beyond the jurisdiction of the arbitral tribunal, provided that the part falling within the jurisdiction of the arbitral tribunal can be separated. This appears from the proviso at the end of Article V(1)(c) (“provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains matters submitted to arbitration may be recognized and enforced” ).

Author: international