International Commercial Arbitration

1
International Commercial Arbitration

• Lec1 Introduction Overview (part 1)

2
Readings

• Zhao, Xiu-wen,
• International Commercial Arbitration Law, 2004,
• Chapter 1
• Redfern Hunter,
• Law Practice of International Commercial
  Arbitration, 2005,
• Chapter 1

3
Introduction

• Meaning of Arbitration
• Fouchard, Gaillard Goldman on International
  Commercial Arbitration
• 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)

4
Introduction

• Meaning of Arbitration
• Fouchard, Gaillard Goldman on International
  Commercial Arbitration
• 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.

5
Introduction

• Meaning of Arbitration
• Law Practice of International Commercial
  Arbitration
• 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.

6
Introduction

• Doctrinal Basis of Arbitration
• Party autonomy
• Agreement to arbitrate
• Selection of arbitrator(s)
• Autonomy in arbitral proceedings

7
Introduction

• Fundamental Features of Arbitration
• An alternative to national court
• A Private mechanism for dispute resolution
• Selected and controlled by the parties
• Final and binding determination of parties
  rights and obligations

8
Introduction

• History of Arbitration
• Arbitration of antiquity
• The Baltic Exchange
• Modern arbitration

9
Introduction

• Relationship between Arbitration and Courts
• Supporting role
• Supervising role

10
Introduction

• International Conventions
• Convention on the Settlement of Investment
  Disputes between States and Nationals of States
  1965 or ICSID Convention or Washington Convention
• Convention on the Recognition and Enforcement of
  Foreign Arbitral Awards 1958 (The New York
  Convention 1958)

11
Introduction

• UNCITRAL Model Law on International Commercial
  Arbitration
• UNCITRAL Model Rules on International Commercial
  Arbitration

12
Introduction

• Meaning of International
• UNCITAL Model Law
• An arbitration is international if  

13
Introduction

• (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
  

14
Introduction

• (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

15
Introduction

• (c) the parties have expressly agreed that the
  subject-matter of
• (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.

16
Introduction

• Meaning of International
• New York Convention
• 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.

17
Introduction

• Meaning of Commercial
• UNCITAL Model Law
• 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.

18
Overview of Arbitral Process

• Arbitration agreement
• Dispute
• Reference to arbitration
• Constituting arbitral tribunal
• Settling the schedule
• Hearings
• Award
• Enforcement/Challenge

19
Forms of Arbitration

• Ad hoc Arbitration
• Advantages disadvantages
• Institutional Arbitration
• Advantages disadvantages
• International Arbitration Institutions
• Private international institutions
• Local institutions
• Regional institutions
• Others
• Industry focused and commodity institutions