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Abstract

In search of actual consequences of (mis)use of the available remedies, Chapter II of the foregoing article starts by exploring whether the Model Law implies “choice of remedies” policy by examining its travaux préparatoires (hereinafter “travaux”). It also seeks to determine existence of “alternative system of defences” at cross-border level between remedies at the seat of arbitration and in the enforcement country. Chapter III engages in a determination of general framework of preclusions under the Model Law by analyzing specific provisions such as Article 4, 13 and 16(2).

Chapter IV, by analyzing the travaux, determines the primary purpose of the Model Law. It further engages in analysis and discussion of what may affect purported preclusionary nature of Article 16(3) by looking at the form of the preliminary ruling, language of the article and analyzing time limit provided therein.

Subsequently, Chapter V examines the correlation between Article 16(3) and remedies against final award under the Model Law. By detailed analysis of travaux, the article determines whether Article 16(3) should fall under the purported “choice of remedies” policy or rather under the framework of preclusion of the Model Law. The chapter engages in examination of pertinent case law and literature in order to reach the conclusion on the preclusiveness Article 16(3) of the Model Law on post-award stages.

Finally, the article provide author’s conclusion on the preclusive nature of Article 16(3) of the Model Law and proposes a possible solution in order to address the problem of ambiguity and inconsistency.