Newsletter-21

170 NEWSLETTER 2016 included in the dispute resolution clause is mandatory. Further it re- solved that a conciliation attempt had been realized pursuant to the ADR Rules and in good faith between the parties. Following arbitral tribunal’s decision, the Respondent filed a claim before the Court requesting the award to be set aside, alleg- ing that the discussion provided under Art. 5(1) was not fulfilled. Respondent further requested from the Court to decline its jurisdiction ratione temporis or stay the arbitration proceedings. Claimant in contrary alleged that Respondent’s reliance on the dispute resolution clause should be considered an abuse of rights. Decision The Court examined whether parties attempted to resolve their dispute by means of conciliation and exhausted this prerequisite for arbitration. In this respect the Court accepted Respondent’s application. Pri- marily the Court evaluated the type of alternative dispute resolution mechanism that the parties agreed on. After establishing that the par- ties agreed on conciliation the Court examined whether the discussion foreseen under Art. 5 (1) of the ADR Rules is fulfilled. Art. 6(1)(b) of the ADR Rules provide that the conciliation pro- ceeding shall be terminated upon the notification in writing to the conciliator by one or more parties, at any time after the discussion referred to in Article 5(1) has occurred, of a decision no longer to pursue the ADR proceedings. Pursuant to this article none of the party can terminate the conciliation proceeding unless the discussion stated under Art. 5(1) has taken place. The Court was on the view that even though there were exchanges of correspondence between the parties and the conciliator, exchange of views in an in-person meeting or at least through video conference or teleconference in a way to satisfy Art.5 of the ADR Rules did not take place. The Court also analyzed whether Respondent’s objection to the arbitral tribunal’s jurisdiction is an abuse of right. In this respect the