Master and Postgraduate Program International Business Law 2012 / 2013

Transcription

1 University of Macau Faculty of Law Master and Postgraduate Program International Business Law 2012 / 2013 MMIB/PLIB 014 Dispute Resolution Professor Muruga Perumal Professor Fernando Dias Simões Course Outline Part I: Fernando Dias Simões Assistant Professor

2 Introduction: In the first part of the course several important topics in commercial international arbitration will be discussed. In each of the five sessions a different matter shall be addressed. Required reading materials are available for download on the Web Course. Students should read these materials in advance, as they will be discussed on class. 1 st session Autonomy of the arbitration agreement. The doctrines of competence-competence and separability (30 November, 19h00-21h00) In the first session we analyze two important doctrines: the doctrine of competence-competence and the doctrine of separability. While the former empowers the tribunal to decide on its own jurisdiction, the latter ensures that it can decide on the merits. These two doctrines can be considered as two of the true transnational rules of international commercial arbitration. 1.1 John J. Barceló III Who Decides the Arbitrator's Jurisdiction - Separability and Competence-Competence in Transnational Perspective, Vanderbilt Journal of Transnational Law, vol. 36 (2003), pp Susler Ozlem The Jurisdiction of the Arbitral Tribunal: A Transnational Analysis of the Negative Effect of Competence-Competence, Macquarie Journal of Business Law, vol. 6 (2009), pp

3 1.3 Janet A. Rosen Arbitration under Private International Law: The Doctrines of Separability and Competence de la Competence, Fordham International Law Journal, vol. 17 ( ), pp nd session Drafting of the arbitration agreement (3 December, 19h00-21h00) The arbitration agreement is the key factor to every arbitration. Ambiguous or defective arbitration agreements can lead to lengthy litigation challenging jurisdiction both at the outset and when enforcement of the award is sought. In the second session we will we discuss the essential ingredients of an arbitration agreement, namely, the agreement to arbitrate, the scope of the arbitration agreement and the finality of the award. 2.1 Oliver Dillenz Drafting International Commercial Arbitration Clauses, Suffolk Transnational Law Review, vol. 21, issue 2 ( ), pp Thomas E. Carbonneau, The Exercise of Contract Freedom in the Making of Arbitration Agreement, Vanderbilt Journal of Transnational Law, vol. 36 (2003), pp

4 2.3 Deborah L. Holland Drafting a Dispute Resolution Provision in International Commercial Contracts, Tulsa Journal of Comparative & International Law, vol. 7 ( ), pp rd session Multi-party and multi-contract arbitrations (4 December, 19h00-21h00) Increasingly arbitrations involve more than two parties. There are two types of situations which may result in multiparty arbitration: a single contract with several parties, and a web of related or interdependent contracts between different parties. In the third session we will discuss the different problems posed by multi-party and multi-contract arbitrations and the possible solutions. 3.1 Okuma Kazutake Party Autonomy in International Commercial Arbitration: Consolidation of Multiparty and Classwide Arbitration, Annual Survey of International & Comparative Law, vol. 9 (2003), pp Olivier Caprasse The setting up of the arbitral tribunal in multiparty arbitration, International Business Law Journal, 2006, n. 2, Michael P. Daly Come One, Come All: The New and Developing World of Nonsignatory Arbitration and Class Arbitration, University of Miami Law Review, vol. 62 ( ), pp

5 4 th session Impartiality, independence and immunity of arbitrators (5 December, 19h00-21h00) The relationship between the parties and the arbitrator is normally based on a contract by which the arbitrator agrees to settle the dispute. The arbitrator has to be and remain independent and impartial and disclose all facts which may be relevant. A breach of any of these duties may result in the removal of the arbitrator and the annulment of the award. In the fourth session, we will also discuss whether the arbitrator should benefit from any sort of immunity. 4.1 Leon Trakman The Impartiality and Independence of Arbitrators Reconsidered, University of New South Wales Faculty of Law Research Series, 2007, paper Hong-Lin Yu, Laurence Shore Independence, Impartiality, and Immunity of Arbitrators - US and English Perspectives, International & Comparative Law Quarterly, vol. 52 (2003), pp Catherine A. Rogers The Ethics of International Arbitrators, Bocconi University, Institute of Comparative Law (IDC), Research Paper No

6 5 th session Recognition and enforcement of foreign awards (6 December, 10:30-12:30) The recognition and enforcement of awards is of paramount importance for the success of international commercial arbitration. In the fifth session we will establish the distinction between recognition and enforcement, analyze the rule applicable to the recognition and enforcement of foreign awards, namely the New York Convention, and discuss the different ground for refusal of enforcement Ramona Martinez Recognition and Enforcement of International Arbitral Awards under the United Nations Convention of 1958: The Refusal Provisions, International Lawyer, vol. 24 (1990), pp Susan Choi Judicial Enforcement of Arbitration Awards under the ICSID and New York Conventions, New York University Journal of International Law and Politics, vol. 28 ( ), pp May Lu The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Analysis of the Seven Defenses to Oppose Enforcement in the United States and England, Arizona Journal of International & Comparative Law, vol. 23, No. 3 (2006), pp