International Commercial Arbitration The arbitral tribunal University of Oslo Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University
Ad hoc arbitration Parties agree on arbitration They specify that the arbitration shall be ad hoc, or They do not say anything
Legal framework Arbitration agreement (Arbitration rules) Arbitration law Conventions Soft law
Arbitration rules UNCITRAL Arbitration Rules, if the parties have chosen them http://www.uncitral.org/uncitral/en/uncitral_ texts/arbitration/2010arbitration_rules.html Any rules that the parties may have agreed on Any rules that the tribunal may determine appropriate
Arbitration law, conventions, soft law Fully applicable to ad hoc arbitration
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
Institutional arbitration Parties agree on arbitration under the rules of a specific arbitral institution ICC http://www.iccwbo.org/uploadedfiles/court/arbitration/other/2012_arbitration%20and%20ad R%20Rules%20ENGLISH.pdf LCIA http://www.lcia.org/dispute_resolution_services/lcia-arbitration-rules-2014.aspx SCC http://www.sccinstitute.com/filearchive/3/35894/k4_skiljedomsregler%20eng%20arb%20t RYCK_1_100927.pdf Swiss Rules https://www.swissarbitration.org/sa/download/sria_english_2012.pdf
Legal framework Arbitration agreement Arbitration rules Arbitration law Conventions Soft law
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
Arbitration law, conventions, soft law Fully applicable to institutional arbitration
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)
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
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)
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
Composition of the arbitral tribunal Arbitration agreement Arbitration rules Arbitration law
Number of arbitrators Three arbitrators Sole arbitrator
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
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
Appointmenet of arbitral tribunal Arbitration agreement Arbitration rules Arbitration law
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
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 16-18 Sole: Parties agreement Three: Each party appoints one, two arbitrators appoint chairman Failure: Appointed arbitrator to be treated as sole, or Court
Requirements Independence and impartiality Availability Qualifications Challenge