OMAN Law and Practice Contributed by: Sultan Al Ghafri, Nasser Al Riyami, Abdullah Al Aufi and Joud Lashko, Al Khalili, Al Ghailani & Co. LLP (K&Co.)
5. Jurisdiction 5.1 Challenges to Jurisdiction
Arbitration Law within 30 days of being notified of it, and the judgment of that court is final and not subject to appeal by any means (Article 19 (3)). Neither the making of a challenge nor an appeal against its rejec - tion suspends the arbitral proceedings; if, however, the challenge succeeds, whether before the tribunal or on appeal, everything done in the arbitration up to that point, including any award already rendered, is deemed never to have taken place (Article 19 (4)). Arbitrators may also be removed by agreement of the parties, or where they become unable to perform their duties, fail to act within a reasonable time, or withdraw or are otherwise removed by the court. 4.5 Arbitrator Requirements Article 16 of the Arbitration Law addresses both eli - gibility to sit as an arbitrator and the arbitrator’s dis - closure obligations. Under Article 16 (1), an arbitrator may not be a minor, a person under interdiction, or a person deprived of civil rights by reason of a con - viction for a felony or for a misdemeanour involving moral turpitude or breach of trust, or by reason of an adjudication of bankruptcy unless rehabilitated. Article 16 (2) provides that an arbitrator need not be of any particular sex or nationality, unless the parties have agreed otherwise or the law provides to the contrary. Under Article 16 (3), acceptance of the appointment must be in writing, and on accepting it, the arbitrator must disclose any circumstances liable to give rise to doubts as to their independence or impartiality. The same provision imposes a continuing obligation: where such circumstances arise after the appointment or in the course of the arbitral proceedings, the arbi - trator must move promptly to disclose them to both parties and to the other arbitrators. Beyond these stat - utory disclosure obligations, the Arbitration Law does not prescribe a detailed conflicts code comparable to the IBA Guidelines, although tribunals and Omani courts frequently have regard to generally accepted international standards of independence and impar - tiality when assessing a challenge. Where the parties adopt institutional rules, such as those of the Oman Commercial Arbitration Centre, additional require - ments as to arbitrator independence, disclosure and conduct set out in those rules will apply in addition to the statutory minimum.
The principle of competence-competence is recog - nised under Omani law. Article 22 (1) of the Arbitration Law empowers the tribunal to determine pleas that it lacks jurisdiction, including pleas that no arbitration agreement exists, that it has lapsed or is void, or that it does not extend to the subject matter of the dispute. Any such plea must be raised no later than the time for service of the respondent’s defence under Article 30 (2), and is not waived by a party’s appointment of, or participation in the appointment of, an arbitra - tor; a plea that the agreement does not cover a mat - ter raised in the course of the proceedings must be made immediately, failing which it is waived, though the tribunal may admit a late plea where the delay is justified. Under Article 22 (3), the tribunal decides the plea before the merits or joins it to the merits for determination together. This power derives both from the general international acceptance of the principle, reflected in the UNCITRAL Model Law on which the Arbitration Law is based, and from the doctrine of sep - arability under Article 23, which allows the tribunal to assess the validity of the arbitration clause indepen - dently of the underlying contract. A tribunal’s decision upholding its own jurisdiction is not final in the sense of being immune from judicial scrutiny: where the tri - bunal rejects the plea, Article 22 (3) provides that it may be raised again only by way of an action to annul the final award under Article 53. 5.2 Circumstances for Court Intervention Omani courts can address issues of jurisdiction of an arbitral tribunal principally in two contexts: first, under Article 13 (1) of the Arbitration Law, where a party commences court proceedings notwithstanding an arbitration agreement, the court must declare the claim inadmissible if the defendant raises the arbitra - tion agreement before submitting any other request or defence on the merits; and second, following the rendering of an award, where a party applies under Article 53 to annul it on jurisdictional grounds, includ - ing that no arbitration agreement existed or that it was invalid or had lapsed (Article 53 (1)(a)), that the tribunal was improperly constituted (Article 53 (1)(e)), or that the tribunal exceeded the scope of the mat - ters referred to it (Article 53 (1)(f)). Consistent with the
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