THE ARBITRATION FRAMEWORK
A commercial contract contains an arbitration clause. One party later files a lawsuit in a national court.
Should the court hear the case? Why or why not?
ARGUMENT STARTER:
At first glance, it may seem that... However,...
Generally, no. If there is a valid and applicable arbitration agreement, the dispute should normally be referred to arbitration, subject to the applicable national law and any exceptions. Courts may be required to respect the parties' agreement to arbitrate.
Who normally chooses the arbitrator(s), and what happens if the parties cannot agree?
ARGUMENT STARTER:
Generally speaking,...
The parties generally have a role in appointing the arbitrator(s), according to the arbitration agreement and applicable institutional or procedural rules. If they cannot agree, the relevant appointing authority or arbitral institution may make the appointment.
What is the fundamentl difference between arbitration and litigation?
ARGUMENT STARTER:
Whereas litigation..., arbitration...
Arbitration is a private dispute-resolution process in which the parties submit their dispute to an arbitral tribunal. Litigation is conducted before a state court and forms part of the public judicial system. Arbitration is based on the parties' agreement to arbitrate.
Why might a party object to an arbitrator's appointment?
ARGUMENT STARTER:
The objection could be based on...
A party may challenge an arbitrator where circumstances give rise to justifiable doubts about the arbitrator's independence or impartiality, or where the arbitrator does not satisfy requirements established by the applicable rules.
The parties agreed to arbitration before any dispute arose. Why is the arbitration agreement important once a dispute actually occurs?
ARGUMENT STARTER:
This is significant because...
The arbitration agreement establishes the parties' consent to submit specified disputes to arbitration. It is the legal foundation for the tribunal's authority to hear the dispute.
An arbitrator has previously worked for one of the parties' law firms.
Why could this be relevant?
ARGUMENT STARTER:
This could raise concerns about... However,...
The previous professional relationship could raise questions about the arbitrator's independence or impartiality. Whether it actually justifies a challenge depends on the circumstances and the applicable arbitration rules.
One party argues that the dispute falls outside the scope of the arbitration clause.
What issue must the tribunal determine?
ARGUMENT STARTER:
The key issue is whether...
The tribunal must determine whether the dispute is covered by the arbitration agreement. This is a question concerning the scope of the tribunal's jurisdiction.
The claimant submits evidence after the deadline established by the tribunal.
Should the tribunal accept it?
ARGUMENT STARTER:
On the one hand... On the other hand...
Not automatically. The tribunal generally has procedural discretion, but it should consider factors such as the reason for the delay, prejudice to the other party, procedural fairness, and the applicable rules or procedural orders.
A party challenges the jurisdiction of the arbitral tribunal.
What arguments could that party raise?
ARGUMENT STARTER:
One possible argument is that... Furthermore,...
Possible arguments include that there was no valid arbitration agreement, that the agreement does not cover the particular dispute, that the tribunal was improperly constituted, or that the tribunal is being asked to decide a matter outside the parties' agreement.
A tribunal orders the parties to produce documents relevant to the dispute. One party refuses.
What could the tribunal consider when deciding how to respond?
ARGUMENT STARTER:
The tribunal would have to consider whether...
The tribunal may consider the relevance and materiality of the documents, the reasons for refusing production, the applicable procedural rules, confidentiality or privilege issues, and whether the refusal affects the fairness of the proceedings. Depending on the applicable framework, procedural consequences or adverse inferences may also be possible.