PRACTICE OF INTERNATIONAL ARBITRATION JULIUS-MAXIMILIANS-UNIVERSITÄT WÜRZBURG 15 OCTOBER 2016 Friederike Schäfer, Counsel, ICC Court of International Arbitration

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR INTRODUCTION

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR 801 new cases including 10 applications for Emergency Measures 56 different countries as place of arbitration parties from 133 different countries ongoing cases 498 Arbitral Awards rendered (Final, Partial/ Interim, by Consent) 13,1% of the cases involved a state or state entity Amount in dispute < 1 million US $ in 23.2 % of cases 1 st case filed under the 1998 Rules: case number st case filed under the 2012 Rules: case number Today > cases 2015 STATISTICS STATISTICAL REPORT - ICA BULLETIN

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR THE SECRETARIAT ICC INTERNATIONAL COURT OF ARBITRATION ICC INTERNATIONAL CENTRE FOR ADR Secretary General Andrea Carlevaris Secretary General Andrea Carlevaris Deputy Secretary General Jose Ricardo Feris Deputy Secretary General Jose Ricardo Feris Managing Counsel Alexander Fessas Managing Counsel Alexander Fessas Eastern Europe Maria Hauser- Morel MHM Eastern Europe Maria Hauser- Morel MHM Latin America Ana Serra e Mourra ASM Latin America Ana Serra e Mourra ASM Common Wealth Tunde Ogunseitan TO Common Wealth Tunde Ogunseitan TO Swiss Italian Gabriele Ruscalla GR Swiss Italian Gabriele Ruscalla GR German Frederieke Schäfer FS German Frederieke Schäfer FS Eastern Mediterranean Ziva Filipic ZF Eastern Mediterranean Ziva Filipic ZF Asia (HK ) Pui Ki Ta PTA Asia (HK ) Pui Ki Ta PTA French MENA Diamana Diawara DDA French MENA Diamana Diawara DDA President of the Court Alexis Mourre President of the Court Alexis Mourre Documentation and Research Centre Publications (Bulletin ICA, Incoterms, UCP…) Training & Conferences International Centre for ADR & Expertise, Dispute Boards, Docdex Commission on Arbitration (revision of rules, studies & reports) SICANA (New York) R. Digon RD SICANA (New York) R. Digon RD

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR DIVERSITY OF ICC ARBITRATION: PARTIES Number of parties in parties 117 countries Number of parties in parties 133 countries

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR DIVERSITY OF ICC ARBITRATION: ARBITRATORS arbitrators 68 countries arbitrators 77 countries

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR CONSTITUTING THE ARBITRAL TRIBUNAL

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR GENERAL STATISTICS: AWARDS Number of Awards Approved in

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR ARBITRATION AGREEMENT

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR « Party autonomy is the guiding principle in determining the procedure to be followed in an international commercial arbitration. » (Redfern and Hunter on International Arbitration (2015) – Para. 6.07) Two-fold:  Derogation of national court’s right to rule  Determination of procedural rules PARTY AUTONOMY

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR AUTONOMY TO SUBMIT A DISPUTE TO ARBITRATION 10

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Valid arbitral agreement is condition of derogation from jurisdiction of state courts Requirements of validity –Standard to be applied? –Sources of law Law of the seat? Law of state of potential enforcement? Transnational system of justice? ARBITRATION AGREEMENT

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR UNCITRAL Model Law on International Commercial Arbitration Article 7. Definition and form of arbitration agreement (As adopted by the Commission at its thirty-ninth session, in 2006) (1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) The arbitration agreement shall be in writing. […] ARBITRATION AGREEMENT

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Requirements of lex arbitri fulfilled? –Agreement –to submit to arbitration –Disputes in respect of a defined legal relationship Did the parties submit to arbitration? –Interpretation of arbitration agreement –Standard to be applied / law applicable to arbitration agreement  Law chosen by the parties  Lex contractus?  Lex arbitri? –Does a general presumption in favor of arbitration exist? Doctrine of separability DETERMINATION OF VALIDITY

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR WHO DECIDES ON JURISDICTION 14

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR § 1032 Abs. 2 Decision by national court § 1040 Abs. 1 Competence arbitral tribunal § 1040 Abs. 3 iVm § 1059 Application for annulment EXAMINATION OF JURISDICTION Constitution of the arbitral tribunal Partial Award on jurisdiction

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR The arbitral tribunal’s competence to decide on its own jurisdiction = Kompetenz-Kompetenz Art 16 UNCITRAL Model Law on International Commercial Arbitration The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. DECISION ON JURISDICTION - KOMPETENZ-KOMPETENZ

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR PARTIES’ AUTONOMY TO FRAME PROCEEDINGS 17

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Abs. 1, 3 Lex arbitri Abs. 3 Alt. 1 Parties’ agreement Abs. 4 Non- mandatory rules of lex arbitri Abs. 4 HIERARCHY OF NORMS (§ 1042 ZPO) Discretionary decisions of arbitral tribunal

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Abs. 1, 3 Mandatory provisions of lex arbitri Abs. 3 Alt. 1 OLG Frankfurt aM, , 26 SCH 13/10 Arbitration rules chosen by the partiesn in their agreement Discretionary decisions of arbitral tribunal HIERARCHY OF NORMS REGARDING PROCEDURE (§ 1042 ZPO)

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR EXCURSUS: NEW YORK CONVENTION Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the "New York Convention") Where to locate in hierarchy of norms? Not applicable to procedure Not applicable in setting aside proceedings BUT  Enforceability of an award is ultimate aim of proceedings  In general, the obligation of the arbitrator/s is to render an enforceable award

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR ELEMENTS OF AN ARBITRATION AGREEMENT 21

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR ELEMENTS OF AN ARBITRATION AGREEMENT  the seat of the arbitration  the institutional or other rules applicable to the arbitration  number and method of appointment of the arbitrators  the language of the arbitration  (the law applicable to the merits of the parties’ dispute)  (the law applicable to the arbitration agreement)  (participation of multiple parties)  (other procedural provisions, eg on translation, time limits) 22

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR „All disputes, arising of the Contract or of its violation termination or invalidity, shall be solved in accordance with provisions of court arbitration of the International arbitration court at Chamber of Commerce of Austria (Vienna) and also according to the orders of the international Chamber of Commerce and Industry in Paris. Arbitral decision of this court shall be final for each party and shall be executed. Place of proceedings shall be Austria, Vienna. Language of arbitration shall be English.”. ARBITRATION AGREEMENT – EXAMPLE 1

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR “1. In the event the Parties are unable to resolve any dispute: a) by amicable negotiation, pursuant to Article 23.1 or b) by referral to the Dispute Adjudication Expert, pursuant to Art. 23.2, such dispute 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 of Arbitration. The arbitrator shall also settle who shall bear the costs of the proceedings, including he legal costs of the Parties. 2. The arbitration proceedings shall take place in Stockholm, unless otherwise agreed and be conducted in the English language, unless otherwise agreed. 3. The Owner and the Supplier shall both give effect forthwith to every decision and shall comply with the award.” ARBITRATION AGREEMENT – EXAMPLE 2

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Role of the institution  Notification of the Request for Arbitration  pathological clauses – how to deal with it?  Clarification / Determination of questions regarding the interpretation of the arbitration agreement  Place of arbitration  Number of arbitrators  Language?  Decision on jurisdiction? EXCURSUS: ROLE OF INSTITUTION IN THE CONTEXT OF JURISDICTION

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR When: i.A party’s answer is missing, or ii.A party raises jurisdictional objections: (1) validity, scope or existence of arb. Agreement (2) as to whether all claims made in the arbitration can be determined together in a single arbitration) Art. 6(3): SG can decide to refer the matter the Court. Art. 6(4): The arbitration shall proceed if the Court is prima facie satisfied that an arb. agreement under the ICC Rules may exist. Test: i.Existence of an arbitration clause (existence, validity or scope of the clause) ii.Reference to the ICC Rules iii.Contract signed by the parties iv.A uniform transaction (several parties) PRIMA FACIE JURISDICTION (ART. 6) ICC INTERNATIONAL COURT OF ARBITRATION ICC INTERNATIONAL CENTRE FOR ADR

ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR THANK YOU FOR YOUR ATTENTION! Friederike Schäfer Counsel ICC International Court of Arbitration 33-43, Avenue du President Wilson Paris France