P Wilinski

P Wilinski
Assistant Professor Erasmus School of Law Handelsrecht
Location
Burg. Oudlaan 50, Rotterdam
Room
-
Email
wilinski@law.eur.nl

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Title of Research: Post-award relief for the excess of the arbitral tribunal’s mandate

The power to settle disputes between parties is exceptional. Historically reserved for gods or kings, in modern democracies it remains an exclusive domain of a judiciary in accordance with Montesquieu’s model for the separation of powers. It means, in turn, that it constitutes the reflection of sovereignty. It is truly remarkable that arbitral tribunals can be granted such a vast authority. However, as Justice Kagan once quoted: “in this world, with great power there must also come – great responsibility.”

Without a doubt, the power to resolve a dispute constitutes a great responsibility. It therefore comes with an…

Title of Research: Post-award relief for the excess of the arbitral tribunal’s mandate

The power to settle disputes between parties is exceptional. Historically reserved for gods or kings, in modern democracies it remains an exclusive domain of a judiciary in accordance with Montesquieu’s model for the separation of powers. It means, in turn, that it constitutes the reflection of sovereignty. It is truly remarkable that arbitral tribunals can be granted such a vast authority. However, as Justice Kagan once quoted: “in this world, with great power there must also come – great responsibility.”

Without a doubt, the power to resolve a dispute constitutes a great responsibility. It therefore comes with an obligation not to exceed the authority. If such a power is abused, parties will have a legitimate reason to challenge the decision. In a traditional court system, it is evidenced with a review of court judgments by the courts of higher instance (appeal mechanism). Importantly, the scrutiny of the reviewing court may also involve the lower court’s findings on the facts and on the law. In arbitration, however, the system operates differently. It is based on a limited court intervention in the arbitral process and the tribunal’s findings. In principle, the post-award court review is narrow and allowed only in a listed number of cases. This is why it may be tempting for the parties to apply the grounds for recourse ever so broadly.

The ground directly relevant to the tribunal’s dispute resolution power is the “excess of mandate” type of challenge. In principle, every legal system will guarantee a post-award recourse against an alleged “excess of mandate” even though they do not, again in principle, define what the “mandate” itself entails. This, in turn, attracts a broad interpretation made by the aggrieved parties and may frustrate the fundamental value of arbitration – the finality of the arbitral award. It is therefore essential to determine how the national courts review arbitral awards on the basis of “excess of mandate” and consequently in what instances they accept the argument that the tribunal acted in violation of its mandate. This study aims at recognizing the similarities and differences of the “excess of mandate” type of challenges in selected legal systems (namely the UNCITRAL Model Law, France, England, the U.S. and the New York Convention).

It is expected that looking through the spectacles of what selected legal systems (and their national courts) consider to be an “excess” of the elusive “mandate” and identifying the common features of the “excess of mandate” type of challenge in reviewed jurisdictions may contribute to a better understanding of the concept of the arbitral tribunal’s mandate itself. Accordingly, this research’s objective is to add a building block to a definition of the tribunal’s mandate.

Piotr obtained his first master's degree in Law from the University of Wroclaw in 2010. In the same year, he continued his studies within the Commercial Law LL.M. programme at Erasmus University, and graduated in 2011. Before starting his PhD in the Department of Private International and Comparative Law in 2012, he was working in arbitration departments of major law firms both in Poland and in the Netherlands.

      • P. Wilinski (2019). Should the Miami Draft be given a second chance? The New York Convention 2.0. Spain Arbitration Review / Revista del Club Español de Arbitraje, 2019 (34), 77-90.
      • G. Alvarez, B. Blasikiewicz, T. van Hoolwerff, K. Koutouzi, N. Lavranos, M. Mitsi, E. Spiteri-Gonzi, A. Verdegay Mena & P. Wilinski (2016). A response to the criticism against ISDS by EFILA. Journal of International Arbitration, 2016 (1).
      • P. Wilinski (2011). Emergence of lis pendens arbitralis in Europe. Is it called for? ADR Arbitraz i Mediacja, 2011 (3).
      • P. Wilinski (2010). Skuteczność umowy o arbitraż. ADR Arbitraz i Mediacja, 2010 (4).
      • P. Wilinski (2018, april 4). Should the Miami Draft Be Given a Second Chance? Or the New York Convention 2.0. Sevilla, International Conference: 60 Years of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Key Issues and Future Challenges.
  • Nauta Dutihl

    Start date approval
    Feb/2018
    End date approval
    Is current
    Place
    ROTTERDAM
  • Commercial Law

    Title
    Commercial Law
    Year
    2018
    Year level
    (master)

    Research & Writing Skills

    Title
    Research & Writing Skills
    Year
    2018
    Year level
    (master)

    Research & Writing Skills

    Title
    Research & Writing Skills
    Year
    2018
    Year level
    (master)

    Research & Writing Skills (ITL)

    Title
    Research & Writing Skills (ITL)
    Year
    2018
    Year level
    (master)

    Commercial Contracts

    Title
    Commercial Contracts
    Year
    2018
    Year level
    (master)

    Trade Finance Law

    Title
    Trade Finance Law
    Year
    2018
    Year level
    (master)

    Willem C. Vis Moot Court

    Title
    Willem C. Vis Moot Court
    Year
    2018
    Year level
    (master)

    Master thesis Commercial and Company Law

    Title
    Master thesis Commercial and Company Law
    Year
    2018

    Master thesis Maritime & Transport Law

    Title
    Master thesis Maritime & Transport Law
    Year
    2018

    Master thesis International Trade Law

    Title
    Master thesis International Trade Law
    Year
    2018
  • Assistant Professor

    University
    Erasmus University Rotterdam
    School
    Erasmus School of Law
    Department
    Handelsrecht
    Country
    The Netherlands

Address

Visiting address

Burg. Oudlaan 50 3062 PA Rotterdam

Postal address

Postbus 1738 3000 DR Rotterdam