1. International Business Law Sciences Po Paris Spring 2017
Arbitration:
Function and legal framework
Giuditta Cordero-Moss, Ph.D., Dr.Juris
Professor, Oslo University

2. Is an arbitration clause really sufficient to exclude relevance of national law?
Fine as long as you are within the closed circuit (voluntary compliance)
But what if you need assistance to enforce the award?

3. Arbitration
Private settlement of disputes
Alternative to courts

4. Two main effects It excludes national court’s jurisdiction
It results in an enforceable award

5. Contractual or judicial?
Based on will of the parties
Enjoys judicial recognition

6. Arbitration v. Courts Neutrality Expertise Confidentiality Finality
Enforceability (New York Convention of 1958)
Jurisdiction (New York Convention of 1958)
Costs
One party’s country
General legal background
Publicity
Appeals
Limited and not harmonised enforceability (Lugano Convention, Brussels I, Hague convention)
Limited and not harmonised regulation of jurisdiction (Lugano Convention, Brussels I, Hague convention)
Length

7. ”International” Arbitration
Character of the dispute (France)
Residence of the Parties (Swiss, Sweden, Belgium)
Character or residence (Italy)
Character, residence or choice (UNCITRAL)
No need to distinguish (Holland, Germany, Norway)

8. International v. domestic arbitration
Less formal requirements
Less interference by courts

9. Is International Arbitration International? (”Delocalisation”)
If not voluntarily carried out, courts must intervene
Venue determines arbitration law (e.g. Arbitrators’ injunctive powers), arbitrability, validity of award
Parties want predictability
Mostly voluntarily carried out
Venue chosen out of practical convenience
Parties want flexibility

10. Legal framework International conventions Domestic arbitration law
Arbitration agreement
Arbitration rules
Domestic arbitration law
International conventions
Soft law

11. Sources interaction International conventions Domestic arbitration law
Soft law
Arbitration agreement
Arbitration rules

12. Arbitration agreement
Consent of the parties is the basis for the arbitral tribunal’s powers

13. Arbitration agreement
Type of arbitration
Scope
[Seat]
[Number of arbitrators]
[Language]
[Procedural rules]

14.
Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
Recommended additions:
The arbitral tribunal shall be composed of three arbitrators/a sole arbitrator.
The seat of arbitration shall be […].
The language to be used in the arbitral proceedings shall be […].
This contract shall be governed by the substantive law of […].

15.
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules. Note. Parties should consider adding: (a) The appointing authority shall be ... [name of institution or person]; (b) The number of arbitrators shall be ... [one or three]; (c) The place of arbitration shall be ... [town and country]; (d) The language

16. Arbitration rules Rules of the chosen institution
UNCITRAL Rules if chosen by the parties (in case of ad hoc arbitration)
Rules written by the parties in case of ad hoc arbitration
Rules determined by the arbitral tribunal in the absence of an agreement between the parties

17. Arbitration rules Constitution of the arbitral tribunal Seat
Powers of the arbitral tribunal
Procedural rules
Costs

18. …

19. Arbitration law
The arbitral procedure is regulated by arbitration law of the place of arbitration

20. Arbitration law Part of domestic legal system in each state
To a large extent harmonised thanks to the UNCITRAL Model Law
Model Law is not binding
Even Model Law countries may have different regulation
Always check the local arbitration law!

21. UNCITRAL Model Law
Autonomous interpretation

22. Arbitration law Recognition of arbitration agreements Arbitrability
Role of courts
Constitution of the arbitral tribunal
Seat
Powers of the arbitral tribunal
Procedural rules
Costs
Mandatory principles on due process
Validity of arbitral awards
Enforcement of arbitral awards

23. New York Convention
Ratified by 150 countries:
Autonomous interpretation:

24. Convention Recognition of arbitration agreements
Enforcement of arbitral awards

25. Soft law
IBA Rules on taking of evidence
IBA Rules on conflict of interest

26. Soft law Matters within the discretion of arbitral tribunal
Is a valuable guideline in the exercise of discretion
But: [2016] EWHC 422 (Comm)

27. Arbitration law and rules

28. Materials on the Model Law, the New York Convention, the UNCITRAL Arbitration Rules