Transcript STUDYING LAW AT ROME TRE INTERNATIONAL ARBITRATION …

STUDYING LAW AT ROME TRE
FALL SEMESTER
INTERNATIONAL ARBITRATION
Domenico Di Pietro
11 October 2009
WHERE? LEGAL CONSIDERATIONS
• The place (or seat) of arbitration is one of the necessary elements of
arbitration and one of the most important aspects to be considered. It
determines the “nationality” of the award
• It is not necessarily the place where the tribunal holds the hearings. It
is the place where the arbitral process is legally rooted
• The place of arbitration is important because the local law affects the
arbitral process and the local courts may affect the award.
• The law of the place of arbitration makes the predominant part of the
so-called lex arbitri
• The lex arbitri is composed of the rules of law governing the
nationality, legality, structure and procedure of the arbitration. It
comprises:
• the specific agreement of the parties
• the arbitration rules expressly or impliedly incorporated by the
parties; and
• national and international procedural rules adopted by the parties and
by the arbitrators to govern the arbitration and most importantly
• the mandatory law of the place of arbitration
WHERE? PRACTICAL CONSIDERATIONS
• What are the grounds for annulment of arbitral awards
rendered in that country?
• What is the actual attitude of local courts towards
arbitration?
• Is it a “New York Convention country”?
• Is one of the parties the Government of that country?
THE ARBITRATION AGREEMENT:
PECULIARITIES
• Separability/Autonomy
- The arbitration clause is autonomous from the rest of of the
contract
- Extent of application
• Competence/Competence
- The tribunal’s power to rule on its own jurisdiction
• The Law applicable to arbitration agreements
- Contract
- Forum
SEPARABILITY
MODEL LAW Article 16. Competence of arbitral
tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its own jurisdiction,
including any objections with respect to the existence or
validity of the arbitration agreement. For that purpose, an
arbitration clause which forms part of a contract shall be
treated as an agreement independent of the other terms
of the contract. A decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
SEPARABILITY
Section 7 EAA 1996
“Unless otherwise agreed by the parties, an arbitration
agreement which forms or was intended to form part of
another agreement (whether or not in writing) shall not
be regarded as invalid, non-existent or ineffective
because that other agreement is invalid, or did not come
into existence or has become ineffective, and it shall for
that purpose be treated as a distinct agreement”
SEPARABILITY
CIETAC ARBITRATION RULES
Article 5(4)
An arbitration clause contained in a contracts shall be treated as
a clause independent and separate from all other clauses of the
contract […] The validity of the arbitration clause shall not be
affected by any modification, rescission termination, transfer,
expiry, invalidity ineffectiveness, revocation or non-existence of
the contract.
Article 6(1)
The CIETAC shall have the power to determine the existence
and validity of an arbitration agreement and its jurisdiction over
an arbitration case. The CIETAC may if necessary delegate such
power to the arbitral tribunal
ARBITRATION CLAUSES EVERYWHERE
HARMONISED LEGISLATION
• The New York Convention 1958
• The UNCITRAL Model Law 1985
THE NEW YORK CONVENTION 1958
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Actual scope of application
Article II
Controversial provision
Maximum Standard
ARTICLE II
1. Each Contracting State shall recognise an agreement in
writing under which the parties undertake to submit to
arbitration all or any differences which have arisen or which may
arise between them in respect of a defined legal relationship,
whether contractual or not, concerning a subject matter
capable of settlement by arbitration.
2. The term "agreement in writing" shall include an arbitral
clause in a contact or an arbitration agreement, signed by
the parties or contained in an exchange of letters or
telegrams.
3. The court of a Contracting State, when seized of an action in a
matter in respect of which the parties have made an agreement
within the meaning of this article, shall, at the request of one of
the parties, refer the parties to arbitration, unless it finds that
the said agreement is null and void, inoperative or incapable of
being performed
ANALYSIS
• An agreement in writing:
- regarding a defined legal relationship
- to arbitrate existing and/or future disputes
- commercial and non commercial
• The definition of writing under Article II(2)
- arbitration clause (in a contract) or arbitration agreement
which is either:
(i) signed by the parties or
(ii) contained in an exchange of letters or telegrams
• The aim of the Convention is to establish awareness
ARBITRATION AGREEMENTS
AND THE MODEL LAW
Article 7. Definition and form of arbitration agreement
(1) "Arbitration agreement" is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. An agreement is in writing
if it is contained in a document signed by the parties or in an exchange
of letters, telex, telegrams or other means of telecommunication which
provide a record of the agreement, or in an exchange of statements of
claim and defence in which the existence of an agreement is alleged by
one party and not denied by another. The reference in a contract to a
document containing an arbitration clause constitutes an arbitration
agreement provided that the contract is in writing and the reference is
such as to make that clause part of the contract.
MORE FAVOURABLE DOMESTIC PROVISIONS
Section 5 EAA 1996
(2) There is an agreement in writing(a) if the agreement is made in writing (whether or not it is signed by
the parties),
(b) if the agreement is made by exchange of communications in writing,
or
(c) if the agreement is evidenced in writing.
(3) Where parties agree otherwise than in writing by reference to terms
which are in writing, they make an agreement in writing.
(4) An agreement is evidenced in writing if an agreement made otherwise
than in writing is recorded by one of the parties, or by a third party, with
the authority of the parties to the agreement.
(5) An exchange of written submissions in arbitral or legal proceedings in
which the existence of an agreement otherwise than in writing is alleged
by one party against another party and not denied by the other party in
his response constitutes as between those parties an agreement in
writing to the effect alleged.
(6) References in this Part to anything being written or in writing include
its being recorded by any means
MORE FAVOURABLE DOMESTIC PROVISIONS II
CIETAC ARBITRATION RULES
ARTICLE 5(3)
The arbitration agreement shall be in writing. An arbitration
agreement is in writing if it is contained in a tangible form of
a document such as a contract, letter, telegram, telex,
facsimile or email […]
COMPETENCE/COMPETENCE
UNCITRAL MODEL LAW
Article 16 - Competence of arbitral tribunal to rule
on its jurisdiction
1. The arbitral tribunal may rule on its own jurisdiction,
including any objections with respect to the existence or
validity of the arbitration agreement. […]
THE LAW APPLICABLE TO
ARBITRATION AGREEMENTS
• CHOICE
• CONTRACT?
• LEX FORI?