ALBANIA Law and Practice Contributed by: Maksim Haxhia, Artan Hajdari and Eris Hysi, Haxhia & Hajdari Attorneys at Law
sion is final, and the challenge does not automatically suspend the arbitration or prevent an award. 4.5 Arbitrator Requirements Independence and impartiality are mandatory statu - tory requirements. On accepting appointment, an arbitrator must make a written declaration confirming that there are no circumstances capable of creating reasonable doubts as to independence or impartiality and confirming compliance with any agreed qualifica - tion requirements. The duty is continuing. An arbitrator must disclose a circumstance giving rise to reasonable doubts within five days after becoming aware of it, unless the par - ties already know the relevant facts. Law No 52/2023 also contains an extensive list of relationships and prior roles that may justify exclusion or challenge. These statutory requirements apply alongside any more detailed standards contained in the rules of the chosen arbitral institution. In practice, parties and arbitrators should therefore review both the Albanian statutory conflict rules and the applicable institutional disclosure framework at appointment and throughout the proceedings. The principle of competence-competence is expressly recognised. Under Article 22 of Law No 52/2023, the arbitral tribunal has authority to rule on its own juris - diction and on the validity of the arbitration agreement. A plea that the tribunal lacks jurisdiction must gener - ally be raised no later than the statement of defence. A party is not prevented from making the plea merely because it appointed, or participated in appointing, an arbitrator. An objection that the tribunal is exceeding the scope of its authority must be raised when the allegedly excess matter is introduced in the proceed - ings. The tribunal may admit a late objection where the delay is justified, subject to the statutory condi - tions. Competence-competence operates together with separability and the court referral rule, creating a system in which the tribunal addresses jurisdiction in 5. Jurisdiction 5.1 Challenges to Jurisdiction
the first instance, with targeted judicial review avail - able in the cases specified by the law. 5.2 Circumstances for Court Intervention Court review of jurisdiction is available through defined statutory routes rather than through general intervention in the arbitral process. At the litigation stage, a court must decline jurisdiction over a dis - pute covered by an arbitration agreement unless the agreement is manifestly invalid. The court may also consider the existence or manifest invalidity of the arbitration agreement when exercising specific sup - port functions, such as a default appointment. Where the tribunal rejects a jurisdictional objection and rules that it has jurisdiction, the objecting party may apply to the competent first-instance court at the seat within 30 days. The court must decide the appli - cation within the statutory period, and the arbitration may continue while review is pending. The law does not provide the same immediate standalone review route for a tribunal’s negative ruling that it lacks juris - diction. Jurisdictional defects may also be relevant after an award in setting-aside proceedings. Overall, the statutory structure limits court intervention and favours continuation of the arbitration pending review. 5.3 Timing of Challenge A jurisdictional objection should first be raised before the arbitral tribunal. The general deadline is the state - ment of defence. An objection that the tribunal has exceeded its authority should be made when the matter said to fall outside the tribunal’s jurisdiction is introduced. The tribunal may accept a late objection in the circumstances permitted by the law where the delay is justified. If the tribunal rejects the objection and confirms its jurisdiction by an interim decision, the challenging party has 30 days to apply to the competent first- instance court at the seat. It is therefore unnecessary to wait for a final award in order to seek judicial review of a positive jurisdiction ruling. The court application does not suspend the arbitration or the tribunal’s abil - ity to render a final award. After an award, defects concerning the validity or scope of the arbitration agreement may also fall within the statutory setting- aside grounds.
18 CHAMBERS.COM
Powered by FlippingBook