Journal of Legal Research

Journal of Legal Research

Distinguishing Inherent and Relative Grounds of Nullity in Domestic Arbitration: Foundations and Implications

Document Type : Original Article

Authors
Mehdi Moinifar 1
Ahmad Amir Moezzi 2
Abdolhamid Mortazavi 3
1 PhD Student in Private Law, Sari Branch, Islamic Azad University, Sari, Iran.
2 Assistant Professor, Law Department, Adib Institute of Higher Education, Sari, Iran.
3 Assistant Professor, Law Department, University of Judicial Sciences and Administrative Services, Tehran, Iran.
10.48300/jlr.2024.430309.2518
Abstract
Articles 489 to 492 of the Iranian Code of Civil Procedure, at least prima facie, indicate that the scope of judicial review over arbitral awards is confined to the framework of an action for annulment initiated by the parties, in such a manner that upon the expiration of the statutory time limit, the court is effectively compelled to issue an enforcement order. However, certain grounds for annulment pertain to public policy and entail serious consequences for the integrity, legitimacy, and interests of society. Accordingly, adopting judicialsabstention toward such grounds merely because of the parties’ failure to initiate annulment proceedings cannot be regarded as acceptable. Therefore, unlike relative or party-dependent (waivable) grounds of nullity, in respect of which the right to challenge the arbitral award is extinguished upon the expiration of the twenty-day objection period, the State’s ex officio supervisory competence in matters implicating inherent and public-policy (non-waivable) nullity is not extinguished by the lapse of time. In the Iranian International Commercial Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, following internationally accepted principles, a distinction has been recognized between public-policy grounds and party-dependent grounds for annulment. Nevertheless, in the realm of domestic arbitration, despite the fact that legal doctrine has acknowledged both the necessity and rationale for distinguishing inherent grounds of nullity from relative grounds, the absence of an explicit statutory basis and the lack of a sufficiently reasoned doctrinal foundation have rendered reliance upon such a distinction, and consequently the attachment of its legal effects, difficult in practice. This article seeks, through a descriptive-analytical approach and library-based research, to address the absence of a clear legal foundation for distinguishing inherent (absolute) grounds of nullity from relative grounds in domestic arbitration and to elucidate the legal principles underpinning such distinction.
Keywords
Domestic Arbitration
Grounds of Nullity
Invocability
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Iranian International Commercial Arbitration Act
Almasi, Nejad-Ali. Private International Law. 16th ed. Tehran: Mizan Publishing, 2006. (in Persian)
Aslani, Hamidreza. Audio Lecture: “Arbitration Agreement.” Presented at the Arbitration Center of the Chamber of Commerce, 2016. (in Persian)
Böckstiegel, Karl-Heinz. “Public Policy as a Limit to Arbitration and Its Enforcement.” IBA Journal of Dispute Resolution, Special Issue (2008), 1–10. (In English)
Chong, Adeline Swee Ling. “Transnational Public Policy in Civil and Commercial Matters.” Law Quarterly Review, 128 (2012), 88–113. (In English)
Dolinger, Jacob. “World Public Policy: Real International Public Policy in the Conflict of Laws.” Texas International Law Journal, XVII, II (1982), 167–193. (In English)
Gaillard, Emmanuel and Gordon E. Kaiser. The Guide to Challenging and Enforcing Arbitration Awards. London: Law Business Research Ltd, 2019. (In English)
Gaillard, Emmanuel. “Enforcement of Awards Set Aside in the Country of Origin: The French Experience.” ICSID Review – Foreign Investment Law Journal, 14, 1 (1999), 16–45. https://doi.org/10.1093/icsidreview/14.1.16 (In English)
Gelander, Jessica L. “Judicial Review of International Arbitral Awards: Preserving Independence in International Commercial Arbitrations.” Marquette Law Review, 80, 2 (1997), 625–644. (In English)
Hassani, Mohammad Mahdi. “The Possibility of Enforcing Arbitral Awards Contrary to Law and Public Policy.” Quarterly Journal of the Khorasan Bar Association, 2, 6 (2012), 35–52. (in Persian)
Jafari Langroudi, Mohammad Jafar. Legal Terminology. 6th ed. Tehran: Ganj-e Danesh, 1993. (in Persian)
Karimi, Abbas and Hamidreza Partow. Domestic Arbitration Law. 4th ed. Tehran: Dadgostar Publishing, 2016. (in Persian)
Katouzian, Amir Nasser. Res Judicata. 5th ed. Tehran: Dadgostar Publishing, 1997. (in Persian)
Khodabakhshi, Abdollah. Arbitration Law and Related Litigation in Judicial Practice. Tehran: Sherkat-e Sahami Enteshar, 2012. (in Persian)
Kia, Hassan, Hassan Mohseni, and Isa Amini. “Judicial Approaches to the Invalidity of Domestic Arbitral Awards.” Legal Research, 20, 47 (2021), 147–164. (in Persian)
Madani, Seyed Jalal al-Din. Civil Procedure, vol. 2. Tehran: Allameh Tabataba’i Printing House, 1997. (in Persian)
Mansouri, Ayoub and Seyed Morteza Hosseini. “Applying the Compatibility Rule and the Right to Choose the Most Favorable Rule under the New York Convention.” Judicial Legal Perspectives, 24, 88 (2019), 125–140. (in Persian)
Mansouri, Parisa. “The Role of Domestic Courts in International Commercial Arbitration.” Qanunyar Quarterly, 3, 9 (2019), 321–342. (in Persian)
Mohajeri, Ali. Comprehensive Civil Procedure, vol. 4. Tehran: Fekrsazan Publications, 2007. (in Persian)
Mohammadzadeh Asl, Heydar. Arbitration in Iranian Law. 1st ed. Tehran: Ghoghnoos Publications, 2000. (in Persian)
Moradi Gavarashki, Ali Asghar. “The Possibility of Challenging an Arbitral Award after the Expiry of the Time Limit.” Internal Journal of the Khorasan Bar Association, 3, 10 (2013), 45–67. (in Persian)
Moradvand, Karim and Jalal Jafari. “Grounds for Challenging Domestic Arbitral Awards with Reference to the Iranian International Commercial Arbitration Act and the 1958 New York Convention.” Judicial Legal Research, 2, 3 (2021), 385–420. (in Persian)
Mortazavi, Abdolhamid. Procedure of International Commercial Arbitration. 1st ed. Tehran: Javedaneh Publications, 2013. (in Persian)
Nikbakht, Hamidreza. Recognition and Enforcement of Arbitral Awards in Iran. 1st ed. Tehran: Institute for Commercial Studies and Research, 2012. (in Persian)
Nouri Youshanlouei, Jafar and Sajjad Ghasemi. “A Comparative Study of the Grounds for Setting Aside Arbitral Awards.” Private Law, 19, 1 (2022), 147–178. (in Persian)
Redfern, Alan and Martin Hunter. Law and Practice of International Commercial Arbitration. London: Sweet and Maxwell, 1991. (In English)
Rezaei, Ali. “Party Autonomy in Judicial Review of International Commercial Arbitral Awards.” International Legal Journal, 37, 62 (2020), 307–334. (in Persian)
Sahebi, Mehdi. Interpretation of Contracts in Private Law. 1st ed. Tehran: Ghoghnoos Publications, 1997. (in Persian)
Sarvi, Mohammad Baqer. A Practical Perspective on Arbitration in Iranian Law. Tehran: Fekrsazan, 2010. (in Persian)
Seppälä, Christopher R. “French Domestic Arbitration Law.” The International Lawyer (1982), 749–792. (In English)
Shahbazi-Nia, Morteza. Audio Lecture: “Setting Aside Arbitral Awards.” Presented at the Alborz Bar Association, 2016. (in Persian)
Shams, Abdollah. Civil Procedure, vol. 2. 19th ed. Tehran: Derak Publications, 2008. (in Persian)
Shams, Abdollah. Civil Procedure, vol. 3. 27th ed. Tehran: Derak Publications, 2015. (in Persian)
Tandon, Meher. “English High Court Allows Challenge to Arbitral Award for Having Been Obtained by Fraud and in Violation of Public Policy.” 2 April 2024. Available at: https://www.iisd.org/itn/en/2024/04/02/english-high-court-allows-challenge-to-arbitral-award-for-having-been-obtained-by-fraud-and-in-violation-of-public-policy/ (In English)
Tavakkoli, Mohammad Mahdi. Appointment of Arbitrators: Rules and Legal Effects. 1st ed. Tehran: Mizan Publishing, 2016. (in Persian)
Vahedi, Javad. “Notification of Arbitral Awards.” Journal of the Faculty of Law and Political Science, 30 (1993), 137–164. (in Persian)
van den Berg, Albert Jan. “Should the Setting Aside of the Arbitral Award Be Abolished?” ICSID Review, 29, 2 (2014), 263–288. Available at: https://doi.org/10.1093/icsidreview/sit053 (In English)
Yousefzadeh, Morteza. Arbitration Procedure. 1st ed. Tehran: Sherkat-e Sahami Enteshar, 2013. (in Persian)
Journal of Legal Research
Volume 25, Issue 65
Spring 2026
Pages 345-367