1. Introduction to International Commercial Arbitration
Prof. Giorgio F. COLOMBO

2. What is International Commercial Arbitration?
Lesson n.2

3. General Definition
International Commercial Arbitration is a private form of adjudication by which entities involved in commercial activities decide to solve a business dispute of an international character

4. «International» International Arbitration vs. Domestic Arbitration
Subjective Internationality: parties from different States. What does «from» mean?
Objective Internationality: international nature of the obligation e.g. place of performance

5. «International» (2)
The definition adopted in the most widespread model:
An Arbitration is International if
The parties [...] have their place of business in different States;
One of the following places is situated outside the State in which the parties have their place of business:
The place of arbitration [...]
Any place where a substantial part of the obligations of the commercial relationship is to be performed [...]
The parties have expressly agreed that the subject- matter of the arbitration agreement relates to more than one country.

6. «Commercial»
Distinction in Civil Law countries between civil and commercial matters (Civil Code vs. Commercial Code)
Wide interpretation of «Commercial»
«Commercial» as opposed to «Consumer» or «Labour»

7. Key Elements of an International Arbitration
According to Redfern and Hunter, the key elements of a (Commercial) International Arbitration are:
The agreement to arbitrate
A dispute
The appointment of an arbitral tribunal
The arbitral proceedings
The decision (award) of the tribunal
Enforcement of the award

8. Why arbitration? Main advantages of arbitration are:
Neutrality of the forum
Confidentiality
Professionality
Quickness
(but is it really so?)
Enforceable decision

9. Why not? Cost No appeal (exceptions)
(Possible) need to cooperate with national courts
Joinder

10. Arbitration ≠ Litigation
Arbitration Agreement
Private (and confidential)
Many voluntary features (appointment of arbitrators, procedural rules, etc.)

11. Arbitration ≠ Conciliation
Formal (even procedurally)
Adjudicative

12. Dispute resolution techniques
Settlement
Conciliation/Mediation
Arbitration
Litigation

13. Sources of International Commercial Arbitration
International Sources
Multilateral conventions
Bilateral treaties (BITs)
Regional treaties (E.g. Panama Convention, 1975)
Sectorial treaties (E.g. Washington Convention, 1965)
Model laws (E.g. UNCITRAL Model Law)
National sources
National legislations
Private sources
Arbitration rules
Arbitration awards (?)

14. Types of Arbitration
Lesson n.2

15. Institutional (Administered) Arbitration vs. Ad Hoc Arbitration
In the Arbitration Agreement, parties must choose whether they want their arbitration to be administered by an Arbitration institution or they want it to be ad hoc

16. Institutional (Administered) Arbitration vs. Ad Hoc Arbitration
In case of Institutional Arbitration, there is a specialized arbitral institution that administers the procedure according to its rules
In the case of Ad Hoc Arbitration, the procedure will be administered according to the rules set forth by the parties (or by the Arbitral Tribunal, upon agreement by the parties)

17. In any case...
The Arbitration procedure will be always subject to the lex loci arbitri, i.e. the mandatory rules of the place of arbitration (which is something conceptually different from the law applicable to the merits of the dispute)
The Arbitral Tribunal and the Arbitral Institution (in case of Institutional Arbitration) are two different entities

18. Institutional Arbitration
Main Features
A set of pre-determined Rules that automatically apply to the procedure
Administrative staff to take care of the clerical part of the proceedings (e.g. collecting fees, reminding time limits, etc.)
Scrutiny of the Award from a formal point of view
A list of Arbitrators (open/closed)

19. Institutional Arbitration
Disadvantages:
Cost
Sometimes closed list of Arbitrators
Predetermined rules, sometimes is not possible to derogate from them
Another subject is involved

20. Ad Hoc Arbitration Main features
No fixed procedure. The parties have the possibility to decide their own rules (but the may choose a set of rules, e.g. the UNCITRAL Arbitration Rules)
No other entity involved, but the parties and the Arbitral Tribunal

21. Ad Hoc Arbitration Disadvantages: No support No external control
All based on the cooperation by the parties (and the Arbitral Tribunal, once established)
It is difficult to contrast dilatory techniques

22. Arbitration according to Law/Ex Aequo et Bono
In the first case, the Arbitral Tribunal shall decide according to the law
In the second case, the Arbitral Tribunal shall decide ex aequo et bono (i.e. according to equity)

23. Arbitration involving States
There are some institutions devoted to administer disputes between States and private entities
The State may be allowed to enter into «private» arbitration agreements

24. How to choose and Arbitral Institution
Reputation
Permanency (incl. risk of closing down)
Rules
Staff
Charges
Regional expertise

25. Particular Trades/Particular Disputes
Some institutions provide services for particular trades or particulare disputes
Trade: e.g. Maritime Arbitration
Dispute: e.g. Intellectual Property (WIPO)

26. Some famous Arbitration Institutions
ICC
LCIA
AAA
CIETAC
WIPO
ICSID

27. ICC

28. ICC Promotional Material
10 reasons to choose ICC
Reputable
Global
Neutral
Accessible
Flexible
Controlling time and costs
Predictable fees
Interim measures
Confidential
Scrutiny of the Award

29. ICC Cost

30. ICC Cost

31. LCIA

32. CIETAC

33. Arbitration Institute of the Stockholm Chamber of Commerce

34. SIAC

35. HKIAC

36. Group Discussion
On the basis of which criteria would you choose an Arbitral Institution?