International Commercial Arbitration

Transcription

1 International Commercial Arbitration The arbitral tribunal University of Oslo Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

2 Ad hoc arbitration Parties agree on arbitration They specify that the arbitration shall be ad hoc, or They do not say anything

3 Legal framework Arbitration agreement (Arbitration rules) Arbitration law Conventions Soft law

4 Arbitration rules UNCITRAL Arbitration Rules, if the parties have chosen them texts/arbitration/2010arbitration_rules.html Any rules that the parties may have agreed on Any rules that the tribunal may determine appropriate

5 Arbitration law, conventions, soft law Fully applicable to ad hoc arbitration

6 Distinguishing feature Need for appointing authority UNCITRAL Rules (art. 6): designated by the parties or by the Secretary General of the PCA UNCITRAL Model Law (art.11): court e.g.norwegian Arbitration Act 6, 13: court that would have had jurisdiction or court of first instance in Oslo Fragile if no applicable rules were designated

7 Institutional arbitration Parties agree on arbitration under the rules of a specific arbitral institution ICC R%20Rules%20ENGLISH.pdf LCIA SCC RYCK_1_ pdf Swiss Rules

8 Legal framework Arbitration agreement Arbitration rules Arbitration law Conventions Soft law

9 Arbitration rules By choosing the institution, its rules automatically become applicable The parties may also agree to have the proceeding administered by an institution under the UNCITRAL Rules

10 Arbitration law, conventions, soft law Fully applicable to institutional arbitration

11 Distinguishing feature Institution acts as appointing authority Institution acts as a secretariat in respect of costs Depending on the rules, it may be complex and time consuming (terms of reference, court of arbitration)

12 Seat of arbitration Proceedings in the territory are subject to that country s arbitration law, e.g. UNCITRAL Model Law art 1(2) Arbitration law is procedural, not substantive

13 Seat v. hearings Hearings do not have to be held at the seat Model Law art 20(2), vogl 22 UNCITRAL Arbitration rules art 18(2) ICC Arbitration rules art 18(2) SCC Arbitration rules art 20(2)

14 Arbitration law Recognition of arbitration agreements Arbitrability Role of courts Constitution of the arbitral tribunal Seat Powers of the arbitral tribunal Procedural rules Costs Mandatory principles on due process Validity of arbitral awards Enforcement of arbitral awards

15 Composition of the arbitral tribunal Arbitration agreement Arbitration rules Arbitration law

16 Number of arbitrators Three arbitrators Sole arbitrator

17 Arbitration rules If parties have not agreed, UNCITRAL Rules Three arbitrators unless Appointing authority deems sole appropriate, One party requests, and The other party does not object SCC Three arbitrators unless Arbitration Institute deems sole appropriate ICC Sole arbitrator unless Court of arbitration deems three appropriate

18 Arbitration law If parties have not agreed and there are no arbitration rules, UNCITRAL Model Law art. 10(2), vogl 12: Three arbitrators English Arbitration Act sec. 15(3): Sole arbitrator

19 Appointmenet of arbitral tribunal Arbitration agreement Arbitration rules Arbitration law

20 Arbitration rules If parties have not agreed, UNCITRAL Rules art.8, 9: Sole: Parties agreement Three: Each party appoints one, two arbitrators appoint chairman Failure: Appointing authority with list method Failure: Appointing authority SCC art 13 Sole: Parties agreement Three: Each party appoints one, Arbitration Institute appoints chairman ICC Failure: Arbitration Institute Sole: Parties nominate Three: Each party nominates one, Court of Arbitration appoints chairman Failure: Court of Arbitration

21 Arbitration law If parties have not agreed and there are no arbitration rules, UNCITRAL Model Law art 11, vogl 13 Sole: Parties agreement Three: Each party appoints one, two arbitrators appoint chairman Failure: Court English Arbitration Act sec Sole: Parties agreement Three: Each party appoints one, two arbitrators appoint chairman Failure: Appointed arbitrator to be treated as sole, or Court

22 Requirements Independence and impartiality Availability Qualifications Challenge