AZERBAIJAN Law and Practice Contributed by: Parviz Huseynov, GRATA International, Azerbaijan
judicial practice concerning the review of an arbitral tribunal’s decision on jurisdiction remains at a very early stage of development. Consequently, it is not yet possible to determine whether the national courts will adopt a deferential approach to jurisdictional and admissibility determinations made by arbitral tribunals or apply a more intensive standard of review. Nevertheless, judicial review should not be under - stood as permitting the courts to determine such issues afresh in place of the arbitral tribunal. Accord - ingly, while the precise scope and intensity of judicial review remain uncertain, it cannot be equated with an unrestricted de novo determination of questions of jurisdiction or admissibility. 5.5 Breach of Arbitration Agreement Pursuant to Article 17 of the Law on Arbitration, where a claim is brought before a national court in respect of a matter that is the subject of an arbitration agree - ment, and before the examination of the merits either party objects to the resolution of the dispute by the court, the court shall leave the claim without examina - tion and refer the parties to arbitration, provided that the arbitration agreement is not manifestly invalid, has not manifestly ceased to have effect, and there are no circumstances rendering its performance impossible. Where no such objection is raised before the exami - nation of the merits, the court shall examine the dis - pute on its merits. A party that has not raised such an objection may do so during the court proceedings only if it proves that it was not possible, for reasons beyond its control, to raise the objection before the examination of the merits. A similar provision is also reflected in the Civil Proce - dure Code. Thus, pursuant to Article 259.0.5 of the Civil Procedure Code, where the parties have con - cluded, in accordance with the law, an arbitration agreement providing for the resolution of the relevant dispute by an arbitral tribunal, and either party raises an objection to the resolution of the dispute by the court before the examination of the merits, or such objection is raised during the court proceedings, pro - vided that the party substantiates that it was not pos - sible – for reasons beyond its control – to raise the
objection before the examination of the merits, the court shall leave the claim without examination. In practice, the courts follow these provisions. If a party objects before the merits are examined, or later with justified reasons, and the arbitration agreement is not manifestly invalid, ineffective or incapable of performance, the claim is left without examination and the parties are referred to arbitration. Otherwise, the court proceeds to examine the dispute on its merits. 5.6 Jurisdiction Over Third Parties With regard to the arbitral tribunal’s jurisdiction over third parties, it should be noted that, under the appli - cable legal framework, all commercial disputes, as well as any disputes in respect of which the parties are entitled to dispose of the subject matter of the dispute and which do not affect the rights or legiti - mate interests of third parties, may be resolved by arbitration, with the exception of disputes that are not capable of settlement by arbitration (as discussed in 3.2 Arbitrability ). As follows from the above-mentioned, only disputes that do not affect the rights or legitimate interests of third parties may be referred to arbitration. According - ly, where a third party is not a party to the arbitration agreement, it cannot be concluded that the arbitral tribunal’s jurisdiction automatically extends to such third party. The Law on Arbitration contains provisions govern - ing interim measures. Unless otherwise agreed by the parties, the arbitral tribunal may, upon the request of a party, order the granting of interim measures. With respect to the legal effect of decisions on interim measures, it should be noted that, irrespective of the country in which such a decision is rendered, a deci - sion of an arbitral tribunal granting interim measures is recognised as binding and enforced upon an appli - cation to the Baku Appeal Court, provided that no grounds exist under Azerbaijani legislation for refusing its recognition or enforcement and unless otherwise decided by the arbitral tribunal. 6. Preliminary and Interim Relief 6.1 Types of Relief
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