Model law art.
Model law article 8. (validity of the agreement)
There are two ways a court can review an arbitration agreement. how?
Name 3 non-arbitral cases
Criminal matters (tax), family law, private tenancies, bankruptcy, patents
Why is it important to choose a good arbitrator?
Arbitration is final, no appeal (fish)
Crucial with skills, experience, and knowledge of the substance of the dispute
What is UNCITRAL short for?
The United Nations Commission on International Trade Law
NYC article 4 - To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply: ??????
(a) The duly authenticated original award or a duly certified copy thereof;
(b). The original agreement referred to in article II or a duly certified copy thereof
Art. 7 (Separability) “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 con-tractual 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. WHAT IS THE PURPOSE?
If the arbitration agreement is separated from the container contract the invalidity of the container contract does not affect the validity of the arbitration agreement. model law art 16
What is the difference between Ad hoc- and institutional arbitration?
Ad hoc arbitration is when the parties agree to use arbitration and choose an arbitrator on their own.
Institutional arbitration is when two parties hire an arbitrator from an arbitration institution and pays a fee.
What is the arbitrator obliged to do in cases where he is approach in connection with possible appointment.
Art 12
When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence.
What is the difference between an arbitration agreement and the commercial contract (container contract)
Model law art. 7
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 con-tractual or not.
A commercial contract is an agreement between two or more parties on a commercial issue.
UNCITRAL legislative texts address international sale of goods. What does non-legislative texts include?
rules for conduct of arbitration and conciliation proceedings; notes on organizing and conducting arbitral proceedings; and legal guides on industrial construction contracts and countertrade.
Art. 5 (In matters governed by this law no court should intervene) however sometimes judicial assistance is needed. Name three scenarios.
validity of the agreement art. 8, interim measures art. 9, appointment of arbitrators art. 11, challenge procedure/review art. 13, competence review art. 16, Recognition and enforcement of interim measures art. 17, taking evidens art. 27, invalidity art. 34 and Recognition and enforcement of the award art. 35
Preliminary meeting is the meeting before the oral hearing and the award. Name 3 things that should be discussed at the preliminary meeting.
*Seat - to determine the lex arbitri
*Choice of law for the contract
*Language–Use of technology
*Confidentiality
*Schedule for exchange of submissions, time-limits–*Types of documentary evidence
*Witness statements–Expert witnesses–Date and length of the oral hearing
*Security for costs
*Can the chair decide procedural issues alone?*Expedited proceedings / fast track arbitration
What is the purpose of the IBA Guidelines on conflict
of interests?
to make sure that appointed arbitrators remain impartial and independent
What are the formal requirements to the award,
Uncitral Rules, art. 34, Model Law art. 31
Name at least 4
– In writing
– Final and binding
– Supported by reaons
– Signed by the arbitrators
– Dated
– Place of arbitration named
– Communicated to both parties
is it possible for af contracting state to denounce the provisions of the NYC
YES - art 8
Any Contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.
(2) the provisions will still be recognized up until one year after the denunciation
model law art. 9 (Generally accepted that parties may ask a court for interim measures even if arbitration is agreed)
what is the purpose of interim measures?
Model law article 17 (2)
–Maintain or restore status quo
–Preserving assets for enforcement
–Preserve evidence
How is the oral hearing procedure?
•Opening statements
•Testimony
•Written evidence
•Closing statements
What is a consent award?
Sometimes parties settle the dispute
before the tribunal
Model Law, art. 30 - the parties may ask
the tribunal to render an award on the
basis of the settlement
Consent awards are enforceable under
the NYC
Does the NYC apply in cases where the twist regards insolvency? and does it apply in cases where the twist regards insolvency across boarders?
yes :-)
NYC art. 2(3)
If one of the parties goes to court to settle a dispute the court will dismiss the request if there is a valid arbitration agreement.
However, when is a arbitration agreement invalid?
if it is null and void
inoperative
incapable of being performed
Article 10 (1) & (2)?
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
What is an "order" and how is it characterized
An order deals with procedural issues as discovery, evidence issues, places and times of hearings etc
Orders are usually not reviewable by a court.
Orders can and should be objected to before the tribunal
What is a default award and are these enforceable under the NYC?
The respondent does not participate in the
arbitral proceedings
In litigation, courts often automatically deliver
a default judgment in favour of the claimant
In arbitration, this is is possible, thus the
tribunal must still review all the evidence and
the arguments, if any, by the respondent
Default awards are enforceable under the
NYC
Can this dispute be solved by arbitration?
NOVO nordisk and Microsoft have trouble deciding how each party are obligated to fulfil their part of the contract. the contract states that Novo nordisk insulin can only be bought via Microsofts search engines
NO - Arbitration is invalid because breach of TEUF 101 and 102 (og fussion) has an influence on the public and should therefore be settled by the right authority.
NYC art. 7 (2) states that
The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by. this Convention.
What does this mean??
It is ok to use the more favorable provision instead of the NYC if the provision between to contracting states national law is less strict than the NYC.