international commercial arbitration the arbitral tribunal university of oslo giuditta cordero-moss,...
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International Commercial Arbitration
The arbitral tribunalUniversity 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%20ADR%20Rules%20ENGLISH.pdf
– LCIA http://www.lcia.org/Dispute_Resolution_Services/LCIA_Arbitration_Rules.aspx
– SCC http://www.sccinstitute.com/filearchive/3/35894/K4_Skiljedomsregler%20eng
%20ARB%20TRYCK_1_100927.pdf
– Swiss Rules https://www.sccam.org/sa/download/SRIA_english.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
– Failure: Arbitration Institute
• ICC– 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