Transcript Arbitrability

Chapter 9
Applicable Law for
International Arbitration
Applicable Law in Int’l Arb.
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Applicable law for the arbitration
agreement
Applicable law for the arbitration
procedure
Applicable for merits of the case
Applicable Law for
Arbitration Agreement
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Arbitration agreement : contract
between the parties to settle their
dispute by arbitration
Principles of private international law or
conflict of law rules in national law
General Principles of
Private International Law
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Parties’ autonomy
Closest relationship with the contract
Compulsory application of particular law
in different countries
Chinese Practices
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CAL, Contract Law 1999
Art.16, Judicial Interpretation of CAL in
2006
First – that of selected by the parties
Second – that of the seat of arbitration
Lastly - that of the national court
Development in the Field
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The national court should make the
international arbitration agreement
effect as possible as it can.
Art.187 of Swiss PL: an arbitration agreement
is valid if it conforms either to the law
chosen by the parties, or to the law
governing the subject matter of the
dispute, in particular the main contract,
or to Swiss law.
Zueblin Case
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Construction agreement with FIDIC
Green Book General Conditions by
reference in its appendix：Arbitration
15.3 ICC Rules Shanghai shall
apply
Woco brought the lawsuit to the Ct.
Zueblin brought the case to ICC for
Arbitration
Zueblin Case （2）
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Court decided its jurisdiction according
to local law;
Arbitral tribunal decides its jurisdiction
according to the arbitration agreement
and the applied ICC Rules.
Court refused enforcement due to the
invalid arbitration agreement.
AL of the Arb. Procedure
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Whether the parties may select to apply
procedure law of the other country?
Process to negotiate NYC
Nationality of the award
Deciding Authority
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Arbitration institution
Arbitration tribunal
National court
Union of India v. Mcdonell
Douglas Corporation (269)
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The applicable law of the arbitration
“In the event of dispute or difference arising out of or
in connection with this agreement, which cannot be
resolved by amicable settlement, the same shall be
referred to an arbitration tribunal consisting of three
members………The arbitration shall be
conducted in accordance with the procedure
provided in the Indian Arbitration Act of 1940
or any reenactment or modification
thereof……The seat of the arbitration
proceedings shall be London……
Indian Supreme Ct. Case
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National Thermal Power Corporation
(India) v. The Singer Company (USA)
Construction Contract with arbitration
clause: ICC Rules, seat decided by ICC,
Indian law apply
Award made in London
Indian ct. refused enforcement and set
aside the award
Conclusion of AL in Procedure
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The seat decided the applicable law for
the arbitration procedure;
The seat could be decided by the
parties, and by the arbitration
institution or the court in the absence of
the agreement between the parties
Chinese Practices
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No special provision on the seat apart from
CIETAC, but the name of arbitration
commission;
The location of the arbitration commission is
usually considered as the seat of arbitration,
since there is no distinction between the seat,
the place of hearing and that of deliberation
of the case by the tribunal.
Applicable Law for Zueblin
Case
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Arbitration agreement
Arbitration procedure
Merits of the case (main contract)
AL for Int’l Arb. Agreement
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NYC has no provision
National law decides the issue
Delocalized Arbitration
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Denationalized arbitration
International award has no relation with
the legal order of any country
Such award is floating until it is
enforced.
Gotaverken Case 1980
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Gotaverken (Sweden) v. Libyan General
National Maritime Transport
ICC Rules, Paris
French court refused setting aside the
award on the ground of lack of
jurisdiction;
The Swedish court enforced the award.
SEEE Case
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SEEE (France) v. Yugoslavia
K to build railway in 1932
Award made by two arbitrators in Vaud, Switzerland
in 1956
Court in Vaud refused setting aside because Art.514
of Vaud CPL required uneven number of arbitral
tribunal. The award was a Swiss award.
The Dutch court enforced the award as Swiss award
in 1973, while the French court enforced it as anational award made in another NYC member state.
Chromalloy Case (1996,US)
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Chromalloy Aeroservices Inc. (USA) v.
Ministry of Defence (MOD) of the
Republic of Egypt
Contract of sale and service for 4 years
MOD terminated K before it expired
Arbitrated and set aside in Egypt
French and US court ruled to enforce
AL for the Merits of the Case
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What law should be applied to decide
the merits of the case?
Proper law (applicable law) of the
contract
Basic Principles
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Parties’ autonomy
Closest relationship with the contract
General principles of law, lex mercatoria,
law merchant
Norsolor(France) v. Pabalk(Turkey)
at 381
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Agency contract with arbitration clause
Arbitrated by ICC sole-arbitrator tribunal
in Vienna
Tribunal applied neither law of the
parties, but equity
Whether the tribunal may rule in equity
as amiable compositeurs
Harmonization of the Applicable
Law in International Contract
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CISG: Vienna Convention on Contract
for the International Sales of Contract
by UNCITRAL
Principles of European Contract Law
UNIROIT (International Institute for
Unification of Private Law) Principles for
International Commercial Contract
Application the Uniform Law in
the International Arbitration
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Art.17 of ICC Rules
(1) The parties shall be free to agree upon the rules
of law to be applied by the Arbitral Tribunal to the
merits of the dispute. In the absence of any such
agreement, the Arbitral Tribunal shall apply the
rules of law which it determines to be appropriate.
(2) In all cases the Arbitral Tribunal shall take
account of the provisions of the contract and
the relevant trade usages.
(3) The Arbitral Tribunal shall assume the powers of
an amiable compositeur or decide ex aequo et bono
only if the parties have agreed to give it such powers.
Art.1474 French CCP
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The arbitrator shall decide the dispute
according to the rules of the law unless
the parties have authorized him in the
arbitration agreement to rule as
amicable compositeur.
Chinese Practices
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Contract Law 1999
Parties’ autonomy in general in priority:
provisions in the contract
Compulsory applicable law for the
particular contracts: joint venture
contracts
Application of bilateral and multilateral
convention