Admissibility of the Arbitral Proceedings - Article 11 - Chamber of Arbitration of Milan Rules: A Commentary

ANDREA CARLEVARIS is a Partner at Bonelli Erede Pappalardo law firm in Rome. His practice focuses on international arbitration and private and public international law. He has acted as counsel and as an arbitrator in numerous international arbitrations, both ad hoc and institutional, including proceedings under the Rules of the ICC and ICSID. He holds a doctorate in International Law from the University of Rome. From 1999 to 2003 he was Counsel at the Secretariat of the ICC International Court of Arbitration. He is a member of the ICC International Court of Arbitration, of the ICC Commission for International Arbitration, of the Steering Committee of the International Arbitration Commission of UIA (Union Internationale des Avocats), of the Board of AIA (the Italian Association for Arbitration) and of the Editorial Board of the Rivista dell’Arbitrato. He is one of the founders of ArbIt, the Italian forum on international arbitration and ADR. He regularly lectures at several Italian universities. Recognized as one of the top 45 international arbitration lawyers under the age of 45 (45 under 45) by Global Arbitration Review, Andrea Carlevaris is the author of a monograph on interim measures in international arbitration (La tutela cautelare nell’arbitrato internazionale, Padova, 2006) and of numerous articles and notes on arbitration and international law.

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Originally from Chamber of Arbitration of Milan Rules: A Commentary

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ARTICLE 11 - ADMISSIBILITY OF THE ARBITRAL PROCEEDINGS

1. Where a party objects to the application of these Rules before the Arbitral Tribunal is constituted, the Arbitral Council shall decide on the admissibility of the arbitration.

2. The decision of the Arbitral Council that the arbitration is admissible shall not be binding on the Arbitral Tribunal.

1. Overview

1.1. In most arbitration rules, objections to the jurisdiction of the arbitrators are left for the arbitral tribunal itself to resolve.1 The same obviously applies to ad hoc arbitrations, given the absence of an arbitral institution which could make a decision in the first instance.2 Conversely, other rules,3 including the Rules, provide for a preliminary decision by the arbitral institution. The purpose of these provisions is to avoid the effort and expenses entailed in appointing an arbitral tribunal and preparing submissions on jurisdiction if the request for arbitration has manifestly spurious jurisdictional bases.

1.2. Article 11 of the Rules remained unchanged from Article 13 of the prior version of the Rules. It applies where the jurisdiction of the arbitral tribunal is contested on the grounds that the parties did not agree to submit the dispute to arbitration under the Rules, or on some other grounds, and it provides for the Arbitral Council’s preliminary assessment of jurisdiction.

Table of Contents:

1. Overview.
2. Pre-Conditions for the Application of the Article.
3. The Objection Which Triggers the Council’s Decision.
4. The Effects of the Council’s Decision and the “Competence-Competence” Principle.
5. The Interaction with Court Proceedings.