International Commercial Arbitration

The arbitral tribunalUniversity of Oslo

Giuditta Cordero-Moss, Ph.D., Dr.Juris

Professor, Oslo University

Ad hoc arbitration

• Parties agree on arbitration

• They specify that the arbitration shall be ad hoc, or

• They do not say anything

Legal framework

• Arbitration agreement

• (Arbitration rules)

• Arbitration law

• Conventions

• Soft law

Arbitration rules

• UNCITRAL Arbitration Rules, if the parties have chosen them http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html

• Any rules that the parties may have agreed on

• Any rules that the tribunal may determine appropriate

Arbitration law, conventions, soft law

• Fully applicable to ad hoc arbitration

Distinguishing feature

• Need for appointing authority– UNCITRAL Rules (art. 6): designated by the

parties or by the Secretary – General of the PCA

– UNCITRAL Model Law (art.11): court e.g.Norwegian Arbitration Act §§6, 13: court that would have had jurisdiction or court of first instance in Oslo

• Fragile if no applicable rules were designated

Institutional arbitration

• Parties agree on arbitration under the rules of a specific arbitral institution– ICC http://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/2012_Arbitration

%20and%20ADR%20Rules%20ENGLISH.pdf

– LCIA http://www.lcia.org/Dispute_Resolution_Services/LCIA_Arbitration_Rules.aspx

– SCC http://www.sccinstitute.com/filearchive/3/35894/K4_Skiljedomsregler%20eng

%20ARB%20TRYCK_1_100927.pdf

– Swiss Rules https://www.sccam.org/sa/download/SRIA_english.pdf

– …

Legal framework

• Arbitration agreement

• Arbitration rules

• Arbitration law

• Conventions

• Soft law

Arbitration rules

• By choosing the institution, its rules automatically become applicable

• The parties may also agree to have the proceeding administered by an institution under the UNCITRAL Rules

Arbitration law, conventions, soft law

• Fully applicable to institutional arbitration

Distinguishing feature

• Institution acts as appointing authority

• Institution acts as a secretariat in respect of costs

• Depending on the rules, it may be complex and time consuming (terms of reference, court of arbitration)

Seat of arbitration

• Proceedings in the territory are subject to that country’s arbitration law, e.g. UNCITRAL Model Law art 1(2)

• Arbitration law is procedural, not substantive

Seat v. hearings

• Hearings do not have to be held at the seat– Model Law art 20(2), vogl §22

– UNCITRAL Arbitration rules art 18(2)– ICC Arbitration rules art 18(2) – SCC Arbitration rules art 20(2)

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

Composition of the arbitral tribunal

• Arbitration agreement

• Arbitration rules

• Arbitration law

Number of arbitrators

• Three arbitrators

• Sole arbitrator

Arbitration rules

• If parties have not agreed,

• UNCITRAL Rules

– Three arbitrators unless

• Appointing authority deems sole appropriate,

• One party requests, and

• The other party does not object

• SCC

– Three arbitrators unless

– Arbitration Institute deems sole appropriate

• ICC

– Sole arbitrator unless

• Court of arbitration deems three appropriate

Arbitration law

• If parties have not agreed and there are no arbitration rules,

• UNCITRAL Model Law art. 10(2), vogl § 12:– Three arbitrators

• English Arbitration Act sec. 15(3):– Sole arbitrator

Appointmenet of arbitral tribunal

• Arbitration agreement

• Arbitration rules

• Arbitration law

Arbitration rules

• If parties have not agreed,

• UNCITRAL Rules art.8, 9:– Sole: Parties’ agreement

– Three: Each party appoints one, two arbitrators appoint chairman

– Failure: Appointing authority with list method

– Failure: Appointing authority

• SCC art 13– Sole: Parties’ agreement

– Three: Each party appoints one, Arbitration Institute appoints chairman

– Failure: Arbitration Institute

• ICC– Sole: Parties nominate

– Three: Each party nominates one, Court of Arbitration appoints chairman

– Failure: Court of Arbitration

Arbitration law

• If parties have not agreed and there are no arbitration rules,

• UNCITRAL Model Law art 11, vogl § 13

– Sole: Parties’ agreement

– Three: Each party appoints one, two arbitrators appoint chairman

– Failure: Court

• English Arbitration Act sec 16-18– Sole: Parties’ agreement

– Three: Each party appoints one, two arbitrators appoint chairman

– Failure: Appointed arbitrator to be treated as sole, or Court

Requirements

• Independence and impartiality

• Availability

• Qualifications

• Challenge