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  What is the NYC. Who signed the NYC. Why this is helpful.  Enforcement

Why Arbitrate? Reasons for Choosing ArbitrationReasons for Not Choosing Arbitration NeutralityInability to join additional parties or claims Enforceability – NY Convention Many nations have signed Lack of predictability/transparency ConfidentialityLack 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  Copied here when released 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 Legislation  Separability Issues  Non-Arbitrability Doctrine

Issues that Arise in Arbitration: During Arbitration Who Chooses the Arbitrators  Parties themselves?  Appointing Authority? Number of Arbitrators Challenge 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 Convention  Presumption of Validity  (7) Ways to Overcome that Presumption  Agreements vs. Awards Lex Arbitri (UNCITRAL Model Law)  Selection  Set 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 Amendments What the Model Law is The 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 Awards Article 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  and-ADR/Arbitration/Rules-of-arbitration/Download-ICC- Rules-of-Arbitration/ICC-Rules-of-Arbitration-in-several- languages/ and-ADR/Arbitration/Rules-of-arbitration/Download-ICC- Rules-of-Arbitration/ICC-Rules-of-Arbitration-in-several- languages/  UNCITRAL RULES  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 ** Make sure most recent addition is listed.  Redfern and Hunter on International Arbitration, 5 th 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)