ARBITRATION Vis International Commercial Arbitration Moot.

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ARBITRATION Vis International Commercial Arbitration Moot

Transcript of ARBITRATION Vis International Commercial Arbitration Moot.

ARBITRATION

Vis International Commercial Arbitration Moot

What is Arbitration?

The Agreement Arbitration is a contractually agreed upon method of dispute

resolution

The power to arbitrate originates from the agreement of the

parties

This agreement can be reached before or after the dispute

arises

Parties can agree upon both

Procedural rules [ICC]

Substantive law [CISG]

What is Arbitration?

The Process Parties can choose Institutional vs. Ad hoc Arbitration Rules of the Institution and State

The Result The Award New York Convention Enforcement

Why Arbitrate?

Reasons for Choosing Arbitration

Reasons for Not Choosing Arbitration

Neutrality Inability to join additional parties or claims

Enforceability – NY Convention Many nations have signed

Lack of predictability/transparency

Confidentiality Lack of right to appeal

Choice of Arbitrators (expertise of arbitrators)

Cost?

Choice of procedure (speed and flexibility)

Cost?

Issues that Arise in Arbitration:Arbitration Agreements

The Vis Moot Arbitration Agreement Art 20: Arbitration: All disputes arising out of or in connection

with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be Vindobona, Danubia, and the language of the arbitration will be English. The contract, including this clause, shall be governed by the law of Danubia.

Interpretation Exclusivity of Arbitration

The tribunal vs. the national courts. Scope of the Agreement Choice of Law Applicable to the Agreement

Arbitration Agreement Con’t

Enforceability Institutional v. Ad Hoc UNCITRAL Model Law & Nat’l Arbitration LegislationSeparability IssuesNon-Arbitrability Doctrine

Issues that Arise in Arbitration:During Arbitration

Who Chooses the Arbitrators Parties themselves? Appointing Authority?

Number of ArbitratorsChallenge and Replacement of Arbitrators

Institutional Rules National Courts

Provisional Measures Arbitrators - Institutional Rules Arbitrators - National Law National Courts

Issues that Arise in Arbitration:Recognition and Enforcement of an

Award

New York ConventionPresumption of Validity(7) Ways to Overcome that

Presumption Agreements vs. Awards

Lex Arbitri (UNCITRAL Model Law)SelectionSet Aside Action

ICC Rules

Procedural Rules (ICC) Introduction Commencing the Arbitration (Article 4-6) Multiple Parties, Contracts, Consolidation (Article

7-10) The Arbitration Tribunal (Article 11-15) The Arbitration Proceedings (Article 16-29)

More detail depending on the problem

UNCITRAL Model Law + 2006 Amendments

What the Model Law isThe Model Law’s Role

Section I – Introductory Rules Section II – Composition of the arbitral tribunal Section III – Arbitral proceedings ** highlight what is

relevant to the problem Article 23 - Jurisdiction of the Arbitral Tribunal Article 27 - Burden of Proof and Witnesses

Section IV – The Award

New York Convention

Article II – Recognition of agreements Aritcle III – Recognition of AwardsArticle V – Exceptions to Enforcement

(1)(a) Invalid agreement (1)(b) Lack of proper notice (1)(c) Award deals with issues beyond the scope of arbitration (1)(d) Composition of arbitration authority, or the procedure was

not in accordance with the agreement of the parties. (2)(a) Subject matter is not capable of settlement by arbitration

under the law of the country of enforcement. (2)(b) Public policy

Helpful Resources

Websites ICC Rules http://www.iccwbo.org/Products-and-Services/Arbitrati

on-and-ADR/Arbitration/Rules-of-arbitration/Download-ICC-Rules-of-Arbitration/ICC-Rules-of-Arbitration-in-several-languages/

UNCITRAL RULES http://www.uncitral.org/uncitral/en/index.html

History/drafting

Research Process- To be a New Presentation

Rule Supporting evidence and evidence which

explains your position Cases Persuasive authority

Policy supporting your position

Persuasive Authority

What is persuasive authority? Examples of persuasive authority:

IBA Guidelines Article 8 – Evidentiary hearings Article 9 – Admissibility and Assessment of Evidence

Other International Arbitral Institutions CEPANI AAA LCIA

Arbitral cases From ICC From other international arbitral institutional

Authors

Helpful Resources

Books Redfern and Hunter on International Arbitration, 5th

Edition, by Alan Redfern and Martin Hunter (2009) Procedural Law in International Arbitration, by

Petrochilos Georgios (2004) Comparative International Commercial Arbitration, by

Julian D.M. Lew (2003) International Commercial Arbitration, Volume I & II,

by Gary Born (2009) International Commercial Arbitration Commentary

and Materials, 2d Edition, Gary Born (2001)