Meaning and legal effect of Remission under Kosovo Arbitration Law in comparative perspective

AuthorMentor Ejup Bislimi
PositionEuropean Centre for Peace and Development
Pages114-123
Vo
l.
6
N
o
.
3
N
ovem
b
er
,
2020
A
cademic Journal o
f
Business,
A
dministration, Law and Social Science
s
II
PCCL Publishin
g
, Graz-
A
ustri
a
I
SSN 2410-391
8
A
cces online at www.ii
p
ccl.or
g
11
4
M
eanin
g
and le
g
al e ect of Remission under Kosovo Arbitration Law
in comparative perspectiv
M
entor E
j
up Bis
l
im
i
E
uropean Centre
f
or Peace and Development
Ab
str
a
c
t
I
n this work, it will be discussed de nition, meanin
g
and le
g
al e ect of remission or re-
arbitration procedure according to Kosovo
A
rbitration Law (hereina er: K
A
L) comparing
with
U
NC
I
TR
A
L Model Law
(
hereina
er: Model Law
)
and di
erent national arbitration laws.
I
n particular, this paper will review two main points: Firstly, the purpose of remission.
S
econdly, Remission or re-arbitration objective is to suspend or set aside domestic award.
F
urthermore, the paper will assess, analyse and interpret K
A
L provisions of article 36 (4) and
compare those to Model Law and other national legislations.
The purpose o
f
this study is to elaborate, examine, analyse, compare and interpret provisions
d
etermining meaning, legal e ect of remission and identify existing gaps in the K
A
L
.
A
rticle 36
(
4
)
of the K
A
L which determine re-arbitration di ers from article 34
(
4
)
of the Model
Law. The di erence of remission under the K
A
L with the Model Law provisions is substantial.
F
irstly, the rst essential distinction is that, according to the K
A
L, the court ex-o cio is
e
mpowered to set aside an award whereas according to Model Law, the court has jurisdiction
t
o suspend arbitration proceedings.
S
econdly, according to K
A
L, the court ex-o cio may set aside arbitration award a er the
party has led a claim, while under Model Law the parties are authorized to request that the
proceedings be suspended and the case remit to arbitral tribunal.
I
n end, it could be concluded that remission provides
f
or the temporary termination o
f
the
arbitration procedure in order to give the tribunal time to avoid the de
ciencies that would
l
ead to a se in
g
aside an award.
Regarding the legal consequences of a se ing aside award and the interest of the parties, the
KA
L remains silent. Nevertheless, because an award o
f
the arbitral tribunal is set aside by the
court, it can be concluded that that according to the K
A
L provisions, parties decide how the
d
ispute resolution process will proceed.
K
e
y
words: arbitration, remission, se ing aside, suspend,
U
NC
I
TR
A
L Model Law
.
I
ntr
odu
ct
io
n
The term remission is in use in the common law s
y
stem. “The conce
p
t o
f
remission is
r
e
l
ative
ly
new in most civi
l
l
aw countries (Lew, et.a
l
2003,
p
.683)”. Some
l
egis
l
ations
instead incor
p
orated the term re-arbitration,
E
xem
p
li causa, Chinese
A
rbitration
Law
(
hereina
er CH
A
L
)
article 61;
A
lbanian dra
-law on
I
nternational
A
rbitration
(hereina
er:
A
DL
IA
) article 45 (4). Whereas, “
I
n some jurisdictions this is re
f
erred to
as a “reman
d
” (Fr
y
, et.a
l
2012,
p
.357)”.
“Generall
y
, remission is a main remed
y
in common law jurisdictions; it is o
f
lesser
signi
cance in Model Law jurisdictions (Lew, et.al 2003,
p
.683)”. Nevertheless,
r
emission is
f
oreseen in both the Common law s
y
stem and the Civil law s
y
stem,

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