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International Commercial Arbitration

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International Commercial Arbitration Lec1: Introduction & Overview (part 1) Readings Zhao, Xiu-wen, International Commercial Arbitration Law, 2004, Chapter 1 Redfern ... – PowerPoint PPT presentation

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Title: 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
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