International Commercial Arbitration - PowerPoint PPT Presentation

1 / 33
About This Presentation
Title:

International Commercial Arbitration

Description:

International Commercial Arbitration Lec2: Arbitration Agreement Readings Zhao, Xiu-wen, International Commercial Arbitration Law, 2004, Chapter 3 Redfern & Hunter ... – PowerPoint PPT presentation

Number of Views:954
Avg rating:3.0/5.0
Slides: 34
Provided by: Salv57
Category:

less

Transcript and Presenter's Notes

Title: International Commercial Arbitration


1
International Commercial Arbitration
  • Lec2 Arbitration Agreement

2
Readings
  • Zhao, Xiu-wen,
  • International Commercial Arbitration Law, 2004,
  • Chapter 3
  • Redfern Hunter,
  • Law Practice of International Commercial
    Arbitration, 2005,
  • Chapter 3

3
Definition of Arbitration
  • Existence of Dispute
  • What is dispute?
  • Hayter v. Nelson (1990)
  • Existed dispute
  • Future dispute
  • Consensus on Reference of Dispute to a Third
    Person
  • Binding Decision to Be Given

4
Forms of Arbitration
  • Ad hoc Arbitration
  • Submission of a dispute to an arbitral tribunal
    formed for this special case by selected
    arbitrator(s) under the rules selected by the
    parties
  • Institutional Arbitration
  • Submission of a dispute to an institution
    administrating arbitration case to be decided by
    a tribunal formed for this special case under the
    rules of the institution as a default choice or
    rules selected by the parties arbitrators to
    selected by the parties or by the institution
    where no selection made by the parties

5
Definition of Agreement
  • NY Convention
  • Each Contracting State shall recognize an
    agreement in writing under which the parties
    undertake to submit to arbitration all or any
    differences which have arisen or which may arise
    between them in respect of a defined legal
    relationship, whether contractual or not,
    concerning a subject matter capable of settlement
    by arbitration.

6
Forms of Arbitration Agreement
  • Arbitration Clause
  • A clause set in the Contract
  • All disputes arising out of or in connection of
    this contract shall be submitted to CIETAC for
    arbitration in accordance with its Arbitration
    Rules for a final and binding decision.
  • Arbitration Agreement
  • An agreement materially separated from but in
    relation to the Contract

7
Forms of Arbitration Agreement
  • Agreement in Writing
  • Zambia Steel Building Supplies Ltd v James
    Clark Eaton Ltd 1986
  • It was a dispute arising out from an oral
    contract. However, a written draft of the
    contract, within which there was an arbitration
    clause, was sent to the buyer during the
    negotiation. No objection from the buyer has
    ever been made. Both parties performed their
    obligations under the oral contract before a
    dispute occurred. The buyer sued the seller in a
    court, saying that there was no arbitration
    agreement in writing

8
Forms of Arbitration Agreement
  • Agreement in Writing
  • ?.???????????.???????????????????????????
  • ???????????????????,??????,??????LMAA?????????????
    ?,???????,????????????????????????????????????????
    ????????,LMAA??????????????????????,?????????

9
Forms of Arbitration Agreement
  • Agreement in Writing
  • ??????????
  • ???? ?????????????????????????????????????????????
    ???

10
Forms of Arbitration Agreement
  • Agreement in Writing
  • ??????????lt??????????gt???????
  • ??? ?????????????????????,??????????????(???????
    ???????????????)??????????????

11
Contents of Arbitration Agreement
  • Dispute, Consent, Submission
  • Clause giving a choice
  • William Co v Chu Kong Agency Co Ltd Anor
    1993
  • A B/L contained a clause saying all disputes
    under the B/L shall be resolved by arbitration or
    litigation in PRC in accordance with Chinese law.
    The plaintiff brought a claim against the
    defendant in the High Court of HK. The defendant
    then request a stay

12
Contents of Arbitration Agreement
  • Dispute, Consent, Submission
  • Clause giving a choice
  • ??????????lt??????????gt???????
  • ??? ?????????????????????????????,???????

13
Defective Arbitration Agreement
  • ??????????????????1996?????????????,???,2
  • ?????? (Rules of Construction)
  • ?????
  • ?????
  • ????????
  • ?????????????????
  • ????????????
  • ??????????????

14
Defective Arbitration Agreement
  • Arbitration Agreement without Arbitration
  • David Wilson Homes Ltd v Survey Services Ltd 7
    David Jonathan Marshall (2001)
  • Any dispute or difference arising hereunder
    between the Assured and the Insurers shall be
    referred to a Queens Counsel of the English Bar
    to be mutually agreed between the Insurers and
    the Assured or in the event of disagreement by
    the Chairman of the Bar Counsel.

15
Defective Arbitration Agreement
  • Uncertainty in Appointment of Arbitrator(s)
  • Downing v Al Tameer Establishment (2002)
  • In case the difference cannot be settled through
    mutual consultation, the matter shall be
    submitted for arbitration by three arbitrators to
    be appointed by each of the parties hereto whose
    award shall be final and binding.

16
Defective Arbitration Agreement
  • Choosing Both Arbitration and Court Proceedings
  • Arbitration in Hong Kong before the Court.

17
Defective Arbitration Agreement
  • Choosing Both Arbitration and Court Proceedings
  • Smith Ltd v H S International 1991
  • 13. Settlement of Dispute If any dispute or
    difference shall arise between the parties hereto
    concerning the construction of this Agreement or
    the rights or liabilities of either party
    hereunder the parties shall strive to settle the
    same amicable but if they are unable to do so the
    dispute or difference shall be adjudicated upon
    under the Rules of Conciliation and Arbitration
    of he ICC by one or more Arbitrators appointed in
    accordance with those Rules.
  • 14. Language and Law This Agreement is written
    in English and shall be interpreted according to
    English law. The Court of England shall have
    exclusive jurisdictions over it to which
    jurisdiction the parties hereby submit.

18
Defective Arbitration Agreement
  • Choosing Both Arbitration and Court Proceedings
  • The Nerano (1994)
  • A written clause in the B/L reads
  • The conditions as per relevant charterparty
    dated 02.07.1990 are incorporated in this bill of
    lading and have precedence if there is a
    conflict, English law and jurisdiction applies.
  • A printed clause in the B/L reads
  • All terms and conditions liberties exceptions
    and arbitration clause of the Charterparty, dated
    as overleaf, are herewith incorporated.

19
Defective Arbitration Agreement
  • Conflict between Section Title and Section
    Contents
  • Cott UK Ltd v F E Barber Ltd 1997
  • Arbitration
  • Any dispute or difference arising from the
    construction or performance of the agreement
    shall be referred to the decision of a person to
    be appointed by the Director General of the
    British Soft Drinks Association. The person
    chosen or appointed shall be an independent
    consultant and shall act as an expert and not as
    an arbiter and his decision shall be final and
    binding on the parties.

20
Defective Arbitration Agreement
  • Two Seats, One Arbitration
  • Lovelock Ltd v Exportles 1968
  • Any dispute shall be submitted to arbitration in
    London any other dispute shall be arbitrated in
    Moscow.

21
Defective Arbitration Agreement
  • Floating Arbitration Agreement
  • The Star Texas 1993
  • Any dispute arising under the charter to be
    referred to arbitration in Beijing or London in
    defendant's option.

22
Defective Arbitration Agreement
  • Non-Existence of the Arbitral Institution
    Selected
  • Lucky-Goldstar International v Ng Moo Kee
    Engineering Limited 1993
  • Claims Any dispute or difference arising out
    of or relating to this contract, or the breach
    thereof which cannot be settled amicably without
    under delay by the interested parties shall be
    arbitrated in the 3RD COUNTRY, under the rule of
    the 3RD COUNTRY and in accordance with the rules
    of procedure of the International Commercial
    Arbitration Association. The award shall be
    final and binding upon both parties.

23
Defective Arbitration Agreement
  • ??????????lt??????????gt???????
  • ??? ????????????????,?????????????,????????????
    ??? ?????????????????,?????????,?????????????????
    ????????????????

24
Defective Arbitration Agreement
  • ??????????lt??????????gt???????
  • ??? ???????????????,????????????????????????????
    ???????????,?????????? ????????????????????????
    ????,???????????????????????????,?????????????????
    ??????????????????????,???????

25
Arbitrability
  • Subjective Arbitrability
  • Art. 2060 of the New Code of Civil Procedure
    (France) provides
  • (D)ispute concerning public collectivities and
    public establishments cannot be referred to
    arbitration.

26
Arbitrability
  • Objective Arbitrability
  • Art. 2060 of the New Code of Civil Procedure
    (France) provides
  • (o)ne may not submit to arbitration questions of
    personal status and capacity, or those relating
    to divorce or to judicial separation or disputes
    . and more generally in all areas which concern
    public policy.

27
Separability
  • Autonomy of Arbitration Agreement
  • The status of the main contract does not
    necessarily affect the arbitration agreement.
  • Heyman v. Darwins Ltd (1942)

28
  • ??????????
  • ???? ????????,???????????????,???????????
  • ??????????lt??????????gt???????
  • ??? ??????????????,?????????????????????????????
    ???????????????,????????????????

29
Separability
  • Autonomy of Arbitration Agreement
  • The arbitration agreement may be governed by a
    law different from the governing law of the main
    contract.
  • ??????????lt??????????gt???????
  • ???? ????????????,??????????????????????????????
    ,??????????????????????????????????,????????

30
Non-Signatory Party to Arbitration Agreement
  • Incorporation by Reference
  • Assumption
  • Agency
  • Am. Bureau of Shipping v Tencara Shipyard S.P.A.
    (1999)
  • Veil-Piecing
  • Carte Blanche (Singapore) Pte., Ltd. v Diners
    Club Int'l, Inc. (1993)
  • Estoppel

31
Non-Signatory Party to Arbitration Agreement
  • ??????????lt??????????gt???????
  • ??? ????????????????,??????????????????????????
    ????,????????????????????????????????,??????????
    ????????

32
Non-Signatory Party to Arbitration Agreement
  • ??????????lt??????????gt???????
  • ??? ?????????????,??????????,????????????????????
    ???????????????????

33
Enforcement of Arbitration Agreement
  • Decline of Jurisdiction
  •  
  • Dismiss of Court Action
  •  
  • Stay of Court Proceedings (Common Law
    Jurisdiction)
Write a Comment
User Comments (0)
About PowerShow.com