ARBITRATION Vis International Commercial Arbitration Moot

Why Arbitrate? Reasons for Choosing ArbitrationReasons for Not Choosing Arbitration NeutralityInability to join additional parties or claims Enforceability – NY ConventionLack of predictability/transparency ConfidentialityLack of right to appeal Choice of Arbitrators (expertise of arbitrators) Cost? Choice of procedure (speed and flexibility) Cost?

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 [CEAC]  Substantive law [CISG]

What is Arbitration? The Process  Institutional vs. Ad hoc  Arbitration Rules The Result  The Award  New York Convention  Enforcement

Issues that Arise in Arbitration: Arbitration Agreements Interpretation  Exclusivity of Arbitration  The tribunal vs. the national courts.  Scope of the Agreement  Choice of Law Applicable to the Agreement 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 Lex Arbitri  Selection  Set Aside Action

CEAC Rules  Preamble  Section I - Introductory Rules  Article 1 – Scope Subsection 3 – Incorporation UNCITRAL Arbitration Rules  Section II – Composition of the Arbitral Tribunal  Section III – Arbitral Proceedings  Article 23 – Jurisdiction of the tribunal  Article 27 – Evidence 1. Burden of Proof 2. Witnesses 4. admissibility, relevance of evidence  Section IV – The Award

UNCITRAL Arbtiration Rules Section I – Introductory Rules Section II – Composition of the arbitral tribunal Section III – Arbitral proceedings  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 VI – 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 

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  ICC  AAA  LCIA  Arbitral cases  From CEAC  From other international arbitral institutional  Authors

Research Process Rule Supporting evidence and evidence which explains your position  Cases  Persuasive authority Policy supporting your position

Helpful Resources Websites  CEAC   UNCITRAL RULES  History/drafting

Helpful Resources Books  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)