Transcript International Commercial Arbitration

International
Commercial Arbitration
Lec1: Introduction & Overview
(part 1)
Readings
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Zhao, Xiu-wen,
International Commercial Arbitration Law, 2004,
Chapter 1
Redfern & Hunter,
Law & Practice of International Commercial Arbitration, 2005,
Chapter 1
Introduction
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Meaning of Arbitration
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Fouchard, Gaillard & Goldman on International Commercial
Arbitration:
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Arbitration is a device whereby the settlement of a
question, which is of interest for two or more persons, is
entrusted to one or more other persons – the arbitrator
or arbitrators – who derive their powers from a private
agreement, not from the authorities of a State, and who
are proceed and decide the case on the basis of such an
agreement. (France)
Introduction
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Meaning of Arbitration
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Fouchard, Gaillard & Goldman on International Commercial
Arbitration:
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a private method of settling disputes, based on the agreement
between the parties. Its main characteristic is that it involves
submitting the dispute to individuals chosen, directly or
indirectly, by the parties. In international arbitration, this
definition is preferable to the negative definition found in
domestic law, according to which the principle characteristic of
arbitration is the fact that the dispute is removed from the
jurisdiction of the courts.
Introduction
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Meaning of Arbitration
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Law & Practice of International Commercial Arbitration
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two or more parties faced with a dispute which they
cannot resolve themselves, agreeing that some private
individual will resolve it for them and if the arbitration
runs its full course… it will not be settle by a
compromise, but by a decision.
Introduction
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Doctrinal Basis of Arbitration
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Party autonomy
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Agreement to arbitrate
Selection of arbitrator(s)
Autonomy in arbitral proceedings
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Introduction
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Fundamental Features of Arbitration
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An alternative to national court
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A Private mechanism for dispute resolution
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Selected and controlled by the parties
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Final and binding determination of parties’ rights and
obligations
Introduction
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History of Arbitration
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Arbitration of antiquity
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The Baltic Exchange
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Modern arbitration
Introduction
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Relationship between Arbitration and Courts
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Supporting role
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Supervising role
Introduction
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International Conventions
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Convention on the Settlement of Investment Disputes
between States and Nationals of States 1965 or ICSID
Convention or Washington Convention
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Convention on the Recognition and Enforcement of
Foreign Arbitral Awards 1958 (The New York Convention
1958)
Introduction
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UNCITRAL Model Law on International Commercial
Arbitration
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UNCITRAL Model Rules on International Commercial
Arbitration
Introduction
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Meaning of International
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UNCITAL Model Law:
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An arbitration is international if:
Introduction
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(a)
the parties to an arbitration agreement have, at the time
of the conclusion of that agreement, their places of
business in different States; or
Introduction
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(b)
one of the following places is situated outside the State in
which the parties have their places of business:
(i)
the place of arbitration if determined in, or pursuant to,
the arbitration agreement;
(ii)
any place where a substantial part of the obligations of
the commercial relationship is to be performed or the
place with which the subject-matter of the dispute is
most closely connected; or
Introduction
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(c) the parties have expressly agreed that the subjectmatter of
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(i)
In the interpretation of this Law, regard is to be had to its
international origin and to the need to promote
uniformity in its application and the observance of good
faith.
(ii)
Questions concerning matters governed by this Law the
arbitration agreement relates to more than one country.
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Introduction
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Meaning of International
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New York Convention:
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This Convention shall apply to the recognition and
enforcement of arbitral awards made in the territory of a
State other than the State where the recognition and
enforcement of such awards are sought, and arising out of
differences between persons, whether physical or legal. It
shall also apply to arbitral awards not considered as
domestic awards in the State where their recognition and
enforcement are sought.
Introduction
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Meaning of Commercial
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UNCITAL Model Law:
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The term "commercial" should be given a wide interpretation so as to
cover matters arising from all relationships of a commercial nature,
whether contractual or not. Relationships of a commercial nature include,
but are not limited to, the following transactions: any trade transaction for
the supply or exchange of goods or services; distribution agreement;
commercial representation or agency; factoring; leasing; construction of
works; consulting; engineering; licensing; investment; financing; banking;
insurance; exploitation agreement or concession; joint venture and other
forms of industrial or business co-operation; carriage of goods or
passengers by air, sea, rail or road.
Overview of Arbitral Process
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Arbitration agreement
Dispute
Reference to arbitration
Constituting arbitral tribunal
Settling the schedule
Hearings
Award
Enforcement/Challenge
Forms of Arbitration
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Ad hoc Arbitration
Advantages & disadvantages
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Institutional Arbitration
Advantages & disadvantages
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International Arbitration Institutions
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Private international institutions
Local institutions
Regional institutions
Others
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Industry focused and commodity institutions
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