INTERNATIONAL COMMERCIAL ARBITRATION

PART I INTRODUCTION TO ARBITRATION AND ADR 6

A. What is arbitration 61. Constitutive elements 6

a. Agreement 6b. Dispute 6c. Arbitrator 6d. Final and binding decision 6

2. Alabama 6

B. Sources of law 71. International instruments 7

a. Treaties and conventions 7b. Soft law 7

2. European law 83. National law 84. Arbitration rules (ICC Rules) 85. Arbitration agreement as such 9

C. ADR 91. Non-binding ADR and binding ADR 92. Hybrid forms 9

D. Why arbitrate 91. Advantages 92. Disadvantages 10

E. Different types of arbitration 101. Institutional vs. ad hoc arbitration 102. Sector vs. non-sector arbitration 113. International vs. domestic arbitration 114. Ping pong arbitration 115. Baseball arbitration 116. Flip flop arbitration 117. Medarb (supra) 118. ArbMed 11

F. Arbitrators 12

PART II THE ARBITRATION AGREEMENT 13

A. Types of arbitration agreements 13

B. Validity requirements: form 13

C. Validity requirements: ratione materiae 13

D. Validity requirements: ratione personae 14

E. Content of an arbitration agreement 141. Essential elements for validity 142. Essential elements for workability 14

3. Advisable elements 154. Unusual Clauses 155. Pathological Clauses 15

PART III COMMENCEMENT OF THE ARBITRATION AND COMPOSITION OF THE ARBITRAL TRIBUNAL 16

A. Commencement 161. Request for arbitration 162. Answer to the Request for Arbitration 173. Prayers for relief 17

B. Interim measures 171. At the outset of the arbitration 172. After the request for arbitration 183. Subject 184. Requirements and modalities 185. Form 186. Preliminary order 18

C. Arbitral tribunal 191. Requirements 192. Constitution 193. Challenge (and replacement) 194. Impartiality and independence 195. Secretary to the tribunal 20

PART IV MANAGEMENT OF AN ARBITRATION 21

A. Applicable rules 21

B. First letter of the tribunal 211. Introduction 212. Practical arrangements 21

C. Case Management meeting 21

D. Terms of reference 221. Content 222. Drafting 223. Signing 224. Timeframe (Art. 23 (2) ICC Rules) 235. Effect and consequences 23

E. The procedural calendar (the n° 1) 231. Procedural order 232. Content 24

F. Meetings and hearings 241. Arbitral tribunal and parties 242. Where? 243. Procedure at hearing 25

a. Continental style 25b. Anglo-saxon style 25

4. Practical considerations 25

G. Written submissions 25

H. Evidence 251. Categories of evidence 252. Documentary evidence 263. Witnesses 26

a. Witnesses of fact 26b. Expert witnesses 26c. Witness hearing 26

4. Expert (appointed by tribunal) 265. Confidentiality 26

PARTV COURTSINARBITRATIONANDAPPLICABLELAW 28

A.Courtsinarbitration 321.Article5ML 322.Jurisdiction 323.EuropeanUnionandarbitration 33

B.Applicablelaw 35

PARTVI CLOSINGOFTHEPROCEEDINGSANDTHEDECISIONSOFTHEARBITRALTRIBUNAL36

A.Closingtheproceedings 36

B.Functionofthearbitrator 361.Decisionmaker 362.Settlementfacilitator 37

C.Typesofdecisions 371.Form 372.Subject 38

D.Content 381.Provisions 38

E.OverviewoftheAward 38

F.Formrequirements 39

G.Timelimits 39

H.Consequences 39

I.Checklist 39

J.Publicationandconfidentiality 40

PARTVII POSTAWARDACTIONS 41

A.Recognitionandenforcement 41

B.Appeal 43

C.Annulment 43

1.Groundsforproceedings:jurisdictionalgrounds 432.Groundsforproceedings:proceduralgrounds 433.Groundsforproceedings:substantivegrounds 434.Groundsforproceedings:countryspecificgrounds 43

PARTVIII THEBELGIANARBITRATIONLAW 45

A.ComingaboutoftheBelgianlaw 45

B.Scopeofapplication 45

C.Arbitrationagreement 451.Formrequirements 452.Arbitrability 46

D.Arbitraltribunal 47

E.Arbitralproceedings 47

F.Decisionandawards 48

G.Courts 49

H.Recourse 50

PARTIX INVESTMENTARBITRATION 51

A.InternationalInvestmentLaw 511.Investments 512.Internationalinvestmentlaw 513.Bilateralinvestmenttreaties 52a.ScopeofapplicationofBITs 52

B.InvestmentTreatyarbitration 521.Conceptandprinciples 522.ICSIDConvention 53a.Jurisdiction(Article25ICSID) 53b.Rationemateriae 54c.Rationepersonae 55d.Procedurallawandapplicablelaw 55e.Theaward 55

C.Consequencesofthepublicinternationalcharacterofinternationaltreatyarbitration56

PARTX HOTTOPICSININTERNATIONALARBITRATION 57

A.Investmentarbitration 57

B.Arbitration 57

C.Arbitrators 57

D.Technicalquestions Error!Bookmarknotdefined.

E.Costs Error!Bookmarknotdefined.

F.Future Error!Bookmarknotdefined.

PART I INTRODUCTION TO ARBITRATION AND ADR A. What is arbitration 1. Constitutive elements a. Agreement This is a fundamental principle of party autonomy, which is the red line through everything that concerns arbitration. Party autonomy is vital in every step of arbitration proceedings. It is for the parties to decide how and when arbitration has to be followed and which procedure has to be followed. b. Dispute It has to be an existing, actual dispute. There must be a discussion about the contract. The dispute has to be arbitrable. Certain disputes can never be subject to arbitration; according to Belgian law, e.g. you cannot arbitrate in family relations. c. Arbitrator There must be an arbitrator d. Final and binding decision This decision is called an ‘award’. Unless the parties have provided for it, there is no appeal. It is enforceable by the courts. The only way to attack it is through annulment proceedings. 2. Alabama The first way to settle disputes was fighting. In very much cultures, settling disputes was done through an elderly who would bring parties together and render a decision. In these times arbitration was popular. This is a curve: arbitration becomes very popular and unpopular at times. Right after the French Revolution, when the State wasn’t very popular, the arbitration became very popular. The Alabama-case is a very famous case, which is the basis for modern arbitration. It brings us back to the American Civil war (1861). The Northern States and the Southern States started fighting. The Northern States blocked all the harbors of the Southern States. This caused blockage of supplies as well. England had declared neutrality. They ordered commercial ships in England, which was brought in the US and armed up. Once the Northerners realized this, they contacted the English, stating that they should prevent these ships from leaving the harbor. One of these ships was called the Alabama. They were going to seize this ship. The responsible officer was away and thus the ship could leave anyway. When the war was over, America filed a claim against England. This specific ship that had to be seized, had actually left the port and did a lot of damage. In order to prevent a war, the English wanted to bring this case before arbitration. The parties agreed to arbitrate through the treaty of Washington (1871). There will be an arbitral tribunal of five arbitrators. Each party

could appoint one arbitrator. One arbitrator would be appointed by the King of Italy, one arbitrator by the Swiss president and one more arbitrator by Brazil. The Treaty of Washington is what we today would call a terms of reference. The Americans claimed 2 Billion or Canada. They had actually two claims: direct damages (number of ships the Alabama had sunk), indirect damages (by the fact that the Alabama sank so many ships, the war took longer). The tribunal had refused this, they would only accept direct damages. They awarded 50 million dollars. The place of arbitration is Geneva in the Washington Treaty. B. Sources of law 1. International instruments a. Treaties and conventions First of all, there is the New York Convention (1958). Arbitration is very popular in an international context. It’s not comfortable, in case of dispute to go for a State court that is not yours. In order to solve this, you put in an arbitration clause, which is neutral. However, an award as such does not have much legal power with regards to the enforceability. Execution of the award has to happen in a certain State court, which needs to judge on the execution, thus ending in the same situation you wanted to avoid. The idea came up, in order to avoid these problems, by UNCITRAL. The New York Convention came into being: foreign awards have to be executed, in other countries, as long as the court who has to execute is part of a Member State, party to the Convention. Secondly, there is the old European Convention on international arbitration (1961). Thirdly, there is another European Convention on a Uniform law for Europe 1966. Fourthly, there are also specific agreements, regional instruments (e.g. Panama Convention). Another element is the BIT’s. The BIT’s are investment treaties, used in the situations, e.g. where foreign investors invest in the host state, which protects foreign investors against expropriation. In order for them to have some kind of dispute resolution mechanism, you put an ISDS in a BIT. There is also the European Energy Charter. Finally, there is the TTIP. In TTIP, there should be a Permanent Arbitration Court, according to the EU. In conclusion, when you look at an arbitral dispute, one needs to check at international instruments that could apply to the dispute. b. Soft law There are institutions that try to draft guidelines on certain topics which relate to international arbitration, in order for the arbitration community to follow them. They are thus not binding, but seeing the quality of these guidelines, they are actually followed up.

There is for instance the International Bar Association (IBA), which provides guidelines on conflicts of interests / guidelines on taking of evidence. UNCITRAL too, has developed the same kind of working method. There is also the ICC. 2. European law For B2C-transactions, there is the Consumer ADR Directive. There is also an important CJEU Case – law (Mostaza Claro – Asturcom, …) There are also some rules on arbitrability. A distinction is made between objective and subjective arbitrability. Subjective arbitrability regards the individual who has signed the clause. Could that individual enter into an arbitral agreement? Objective arbitrability regards the subject of the arbitral agreement (agency law, family law, …) 3. National law One needs to identify the applicable law to arbitration. The parties can choose the applicable law. The distinction must be made between two situations: in arbitration there is always the law applicable to the merits (the actual case). The other situation is the law applicable to the proceedings. If the law of the contract is French law, the merits will be governed under French law. The law applicable to the proceedings will be the law of the seat of arbitration (e.g. Geneva – Swiss law). There is however a tendency that the law applicable to the proceedings is being changed, but this makes it complicated (because you have to take into account public policy). So, the law of the seat will apply to the proceedings (appointment arbitrator, enforcement, annulment, court intervention, …). The law of the seat is of such importance to the proceedings that it is very important to identify a good seat. A whole set of legal consequences come into play. It has become hot topic to draft an attractive arbitral law, so parties would come to your country a lot. Switzerland and Paris still have the top. Every country wants to promote their main city for arbitration. The law of the place of enforcement is also very important. Even if you have an award in your favor, you need to be able to enforce it in a specific place. For example, an investment case in Italy under the Energy Charter for a Luxemburg investor. Enforceability in Italy is bad. Italy has assets all over the world. So no need to try it in Italy. There could be other laws as well (e.g. laws on public policy). The point of reference in this class will be the UNCITRAL Model law. The country can pick it up, get it voted in Parliament and make it their own arbitration law. The importance of this, is that the law becomes recognizable around the world. This makes you more popular as a seat of arbitration. It’s easier to arbitrate in a ‘model law-country’. 4. Arbitration rules (ICC Rules)

In arbitration there’s a difference with institutional arbitration and ad hoc arbitration. In institutional arbitration, you allow an institution to administer a proceeding, according to their rules. They will become part of the contract. The ICC rules are the main rules in the world one could refer to. 5. Arbitration agreement as such C. ADR When we talk about alternative dispute resolution in general, there are several elements (arbitrator, mediator, chairman of mini-trial committee). (1) There is a third party

(2) which contributes, in a structured way contributes to the solution of disputes.

(3) as a result of the parties’ mandate. 1. Non-binding ADR and binding ADR There’s a distinction between non-binding ADR (consensual process), e.g. mediation. When the mediation resulted in an agreement, it does become enforceable however. It is non-binding however, because you don’t have to agree. The same thing goes for conciliation. Mini-trial is the situation where you don’t have a mediator, but someone who has negotiation, arbitration and mediation skills. A mini-trial committee will appoint somebody to be a member of the latter committee, who has the capacity to make binding decisions (e.g. CEO). The parties are included as well. Again here, no obligation to agree. In binding ADR (adjudicative process) there are several mechanisms. If it’s a pure technical discussion, people won’t use arbitration but ask for experts. This is called expert determination. Parties are bound by the expert decision. One could also find binding third party decisions (e.g. in the context of domain name disputes). A third party, not an arbitrator, makes a decision based on the elements of the case. 2. Hybrid forms When parties agree to mediate (or any non-binding ADR), and this fails, they agree to arbitration afterwards. This is called MedArb. Another form is dispute review/adjudication/resolution boards. In construction agreements (e.g. Tunnel between France and England), there is a dispute resolution board. If one contractor starts to sue, because of problems with another subcontractor, the whole project could be jeopardized because everyone stops to work. In order to prevent this, a dispute review board could be installed. A panel of arbitrators is installed, who sit there and any dispute has to be submitted to this board. They take very short decisions. D. Why arbitrate 1. Advantages

− It’s faster. The average is 14 months. − It’s confidential. − There could be more expertise. − It’s enforceable. − It’s more neutral. − It’s a win-win situation, to the extent because arbitration is considered a way

of settling the dispute to allow the parties to continue their relationships. The atmosphere is a lot different than before State Courts.

− It’s a very flexible system. Flexibility is crucial, because certain disputes need a different approach and especially in international contexts, with many legal cultures.

− In continental environments, there are not a lot of witnesses. In arbitration it’s the rule to use witnesses.

− The same goes for disclosure/discovery. They are hardly used before courts, but the production of documents is the rule in arbitration.

2. Disadvantages

− It’s very costly. You have to pay the arbitrator, based on the percentage of the claim at stake. If you win the case, it’s very cheap: the other party pays back your costs.

− It’s hard to appeal. − There could be delays as well. − There are also limits to arbitrators’ powers. He cannot seize an asset for

instance. There can be specific situations in an arbitration proceedings, where the arbitrator has to send a party to the court.

− The award is limited to the parties. This means that when you subcontract without an arbitration clause, and your counterparty sues you, you will not be able to sue your subcontractor before the arbitral tribunal. Only before state Court. You cannot bring third parties before an arbitral tribunal if they haven’t signed the arbitral agreement.

− There could be conflicting awards, due to the confidentiality. When a dispute resolution clause needs to be inserted, there are a lot of elements to take into account before you choose arbitration: for international disputes, there could be arbitration. For domestic disputes, it might make sense to go to arbitration, but not necessarily (it could be much more expensive!). With technical contracts, it is not advised to bring it before arbitration. Different considerations play a role. E. Different types of arbitration 1. Institutional vs. ad hoc arbitration In ad hoc arbitration, it means that you are not going to institutional arbitration. If the proceedings do not go smoothly, there may be several instances where you have to

revert to state court. If the other side refuses to appoint an arbitrator for instance, you need to go to state court. Same goes for conflict of interests. In institutional arbitration, there will be specific rules that will apply (ICC, CEPANI, …). They become an annex to the contract, so the party won’t be able to refuse to go to arbitration. For conflicts of interests, there are fast-track procedures. The cost may be a little higher however. The institution will take an administrative fee. 2. Sector vs. non-sector arbitration There are quite a lot of sectors where they have specific dispute resolution mechanisms (e.g. sports, diamonds, travel business, …) 3. International vs. domestic arbitration As soon as there is a cross-border element, a case/seat will be international. There are several criteria to distinguish these: the main idea is that there must be a foreign element. The same thing goes for awards. The relevance of the distinction is the New York Convention: there can be no discrimination with domestic awards. See also Art. V in this respect. 4. Ping pong arbitration One party submits a memorandum; the other party has an answer to that memorandum. This goes back and forth until everyone is satisfied. Then the arbitrator takes everything in consideration. 5. Baseball arbitration This only applies to claims for money. Baseball arbitration is a situation where both parties will defend their case before an arbitrator and makes an award. The award is however undisclosed and only the arbitrator knows how much he has awarded. Both parties have to submit their offer, which will generally be lower than what was initially claimed. The arbitrator will show the award, and whatever party has the closer amount, will get what he wants. 6. Flip flop arbitration It’s basically the same as the baseball arbitration. He won’t have his own award however. The arbitrator will choose one of the offers of the parties. 7. Medarb (supra) 8. ArbMed As said, the arbitration atmosphere is better than in State Courts. Parties initially want to go to arbitration, but after a certain amount of time, parties consider they could actually settle and negotiate further. Parties settle and it is being put in a consent award.

A simple example: an Israeli distributor of drugs has an agreement with a Dutch subsidiary of a US company. There is a distribution agreement on 23 different kinds of medicine. The business relationship is in Israel, since the products are distributed there. When you want to distribute medicine, you need to get approval of the government. The Americans are used to very speedy proceedings. These kinds of proceedings do not exist in Israel. On the level of investment, this takes more effort. It’s a relatively small market. The Americans disputed the contract and they went to arbitration (institutional ICC). One arbitrator will be appointed. The place of arbitration is London, the applicable law on the merits is Dutch law. The tribunal sits in Brussel. There are issues of public policy. Particular in this case were the different legal cultures (common – Israeli v. civil – Dutch law). They didn’t agree on anything. In the initial stage at the statement of claims, according to common law, you don’t put everything on the table yet (not all exhibits). In civil law you are required to project every exhibit you had. The Israeli lawyers dictated how the proceedings would go. The Dutch agreed, so they couldn’t complain anymore that they didn’t have all the evidence. F. Arbitrators Anybody can be an arbitrator. You don’t have to be legally trained or whatever. There is no list of arbitrators. Twenty years ago, persons who were appointed as arbitrators, were professors. They were considered as ‘éminences grises’ within a certain sector. Arbitration has become extremely complicated however. Knowing the subject matter with regards to the case is still important. There’s a shift to people who know what to do in arbitration proceedings. Lawyers will try to trigger a mistake from an arbitrator. When they get an unfavorable award, they will use this mistake to get the award annulled. A second shift happens with regards to age, towards younger people (40 years). There is a lot more formation. Another evolution is that the younger generation becomes excited for arbitration. It’s very hard to get appointments. There are however commercial firms that give lists of good arbitrators, for money.

PART II THE ARBITRATION AGREEMENT A. Types of arbitration agreements It’s up to the parties to submit a dispute to a arbitration. For this, we need an agreement to arbitrate, i.e. an arbitration clause. There is a distinction between arbitration clauses and submissing agreements. Submissing agreements are about existing disputes. These are usually very detailed and tailor-made. The parties agree to settle their dispute through arbitration. There was legislation before, that didn’t allow parties to settle their future disputes to arbitration. The arbitration clauses are for future disputes. They are rather short, and generally not well drafted. These are called midnight clauses, because these clauses are drafted at midnight (they are usually the last clauses in an agreement). Normally the clauses are quite short and general. Both of these clauses are recognized as independent and valid agreements by international instruments. It is separable from the rest of the contract: when for some reason the contract has to be considered null and void, the arbitration clause will still be valid (separability). B. Validity requirements: form The arbitration agreement should be in writing (Art. 2 NY Convention, Art. 7 Model law). In general, in order for an arbitration clause to be valid, it should be in writing. When you seek the enforcement of an award before a judge, you need to produce the arbitration clause as such (so you need two documents: the clause and the award). There’s been a lot of evolution: many jurisdictions accept that the existence of the arbitration agreement can be proven by all means. Certain countries still need a signed, separate arbitration clause in order for it to be valid (e.g. Germany). Most countries do not require the writing for the validity, only for proof. In Belgium, the situation was prior – 2013, there was a requirement of a separate, signed arbitration clause. Post – 2013, it was only required ad probationem, not ad validitatem. When the law was changed, the enforcement of the award still requires a signed, separate arbitration clause. This is a contradiction. C. Validity requirements: ratione materiae With regards to arbitrability, there is a distinction between objective and subjective arbitrability. Objective arbitrability is about the object of the dispute. Not every dispute can be arbitrated (family law, criminal law, …) These relate to the general interest. (NYC Arts. II (1) and V (2)(a) + Model law (Art. 34 (2)(b)(i) and 36 (2)(b)(i)). In the Mitsubishi v. Soler Chrysler – Plymouth, was about an antitrust case and the first time that a court acknowledged that, even though there is a public policy issue here, the tribunal is still competent, respecting party autonomy. In Europe, the Unamar case is a landmark case in this respect, similar to the Mitsubishi case.

D. Validity requirements: ratione personae In subjective arbitrability, it is about the parties. General contract law applies. It is rarely an issue however. When somebody agrees to an arbitration clause, whilst that individual has no capacity, meaning that it has no competence to conclude the agreement. If it is proven that that capacity was absent, the arbitration clause will be null and void. See also Article V(1)(a) NYC and 34 (2)(a)(i) and 34 (1)(a)(i). With regards to state and state agencies, there are problems with regards to arbitration. It is also sometimes to difficult who is a party or a third party to an arbitration. Group of companies. Company enters into contract and then gets sold or integrated into a bigger group of companies. There is no new contract or transformation of contract. The question will arise of who you will bring into arbitration. You normally bring the party to arbitration who is in breach, which is the party which is bound to the contract. This will firstly be a jurisdiction issue, because the group will claim they are not bound by this. Arbitrators usually did not uphold their jurisdiction, but this has changed today. Today Prof thinks he would take another approach (in favore arbitrantem). If you are a member of the same family of companies, arbitrators should uphold their jurisdiction and apply the arbitration clause on the whole group.

E. Content of an arbitration agreement 1. Essential elements for validity

(cf. Article 7 ML)

This reflects the will of the parties to submit to arbitration. There must be a definition of which disputes are arbitrable. There must be a dispute arising out of a defined legal relationship – (NYC: “contractual or not). A precise though broad definition is important.

Cf. Fiona Trust Case: Dispute regarding charter parties (contracts) between Russian ship owner and three separate chartering companies. It is alleged that these contracts were procured by bribery and contained favourable provisions to the charterers. Owners made arbitration application. Issue of separability, can the bribery affect the arbitration clauses.

It must also be defined which claims: contractual claims, claims in tort, statutory claims:

ICC Model Clause: “ All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules”

2. Essential elements for workability

− Place of arbitration:‘the place of arbitration will be… (city, never a country !)’. In many instances parties forget to determine place of arbitration. Then it is up to the ad hoc tribunal or the institution to determine the seat of arbitrationCities start to promote themselves as ideal places for arbitration, simply because it attracts a lot of money (e.g. Geneva, Singapore, Honolulu, Hong Kong)

− Ad hoc or institutional: institutional is whereby you make reference to an institution and the arbitration rules which that institution applies.

3. Advisable elements

− Arbitrators: “The arbitral tribunal will be composed of (one) or (three) arbitrators”. Always an uneven number to avoid deadlock situations

− Applicable law.“The applicable rules of law are…”. You can choose a certain seat but you don’t want to have the procedural law of that country, then you identify another law (e.g. seat in Belgium, proceedings according to UK law, merits according to French Law). Is becoming more popular in negotiations.

− Language.“The arbitration shall be conducted in…”. Always a good idea to identify the language of the proceedings. If you do not the rule of thumb is that it would be the language of the contract. It is then up to the respondent to act (not do anything, to say explicitly I agree or to argue). It is then up to the tribunal to decide the language of the proceedings in case of discussion. Not advisable to determine two languages because every piece will have to be translated in these two languages

4. Unusual Clauses

− Confidentiality (art. 22(3) ICC Rules) − Discovery Clause. It’s basically a fishing expedition. Normally not accepted

unless the parties have explicitly provided for this. − Appeal Clause

5. Pathological Clauses

− See slide 14 Class 2

Are clauses which are badly written, but not inoperable

PART III COMMENCEMENT OF THE ARBITRATION AND COMPOSITION OF THE ARBITRAL TRIBUNAL A. Commencement 1. Request for arbitration The request for arbitration needs to contain certain elements. You first need to make a claim, provide the facts and provide arguments for that claim. You might already want to submit proof. There are no real rules on this. In the ICC rules it is stated that (1) you should identify the parties, (2) the name and contact details of every person representing the claimant (i.e. the lawyers) (3) description of the facts, (4) a statement of the relief sought together with the amount claimed (i.e. the value of the case) (5) an identification of the arbitration agreement, because this is necessary for arbitration. When it’s institutional arbitration, one has to identify the institution, in order to check whether the arbitration is according to their rules (prima facie check). One checks if one is competent if they are actually competent. There is an element of strategy in this: how many arguments should be included in this request? Not too many, otherwise the other party sees your whole strategy and respond to it. There are two options. (1) Simply identify that you want to arbitrate the case. This makes it a mere notification, very concise. (2) It could be more elaborate (Art. 4(3) ICC Rules), with a full description of the facts and the merits. This could help with knocking out someone with one big hit. What is absolutely essential is that the respondent must be informed (rights of defense). If it’s ad hoc, by the mere filing or notification of the request, the arbitration commences. With institutional arbitration, the institution will check whether the respondent received the request for arbitration (it has to be filed to them and to the respondent at the same time.) The filing requires a filing fee, within institutional arbitration. This will cover the first costs. As long as you have not paid up the filing fee, there is no start of the arbitration proceedings. The consequences of filing a request for arbitration are the following: Firstly, it suspends the limitation periods, to avoid being time barred. This makes it extremely important to know when the arbitration starts. Ad hoc arbitration starts when the other side is notified, at the moment of receiving the request for arbitration. The moment of receiving needs to be determined according to applicable law. In an institutional arbitration, the rules should specify when the arbitration commences (e.g. Art. 4 (2) ICC Rules). This won’t start unless you paid your filing fee and filed your case in a different language than the contract. Secondly, it triggers the time limit for the Answer to the Request. In ad hoc arbitration, there are no rules regarding this; there are no specific periods. When it’s institutional arbitration, the rules will identify the time period for the answer.

2. Answer to the Request for Arbitration In institutional arbitration, one is supposed to answer briefly; one could also be more elaborate and give your opinion on the facts and the legal arguments and maybe file a counterclaim. A classic tactic is the filing of a counterclaim for a much higher amount than the initial claim. Again, it’s essential to inform the claimant, according to the rights of defense. If it’s ad hoc, you just send it to the claimant. In institutional arbitration, it is the institution that will do this. Some institutions do not ask for a fee for the counterclaim. Others do. 3. Prayers for relief With regards to claims, it could be that they are full quantum claims. This doesn’t happen a lot, that parties establish the value of their claims. Most of the time, this happens through expert witnesses (quantum experts). It could also be that you ask for a provisional claim. In the course of the proceedings, you identify the full amount through experts on quantum. It could also be an unquantifiable claim, in which case the value of the dispute has to be assessed. It could also be a counterclaim. It could also be a new claim (infra). No arbitral proceedings will commence until the parties have paid the advance on costs. Both parties will have to pay this, in order to secure payment of the tribunal. In 80% of the situations, the advance on costs will be based on the quantum. Nothing happens until the full amount is paid. The respondent might not pay; the institutions apply the rule that if the respondent doesn’t pay, they will invite the claimant to pay the other half. If the claimant is eager to start proceedings, he will pay the full amount. It’s common tactics, to use big counterclaims; because of the fact of the advance on costs will be half of these big counterclaims. This is used as deterrence for the claimant (dilatory tactics). Many rules, in this case, provide for a specific rule, which says that they will split the advance on costs: the claimant pays the full amount on his claim, the respondent pays full amount on the counterclaim. Some institutions work with an hourly tariff. When the advance on costs, is based on a percentage of a small claim, the arbitrator will not be paid a lot. The hourly tariff takes into account the amount of hours. B. Interim measures These are basically urgent matters. 1. At the outset of the arbitration The claimant could have a big issue with the respondent that he wants to see solved immediately. For this, one needs to go to a state judge, because the arbitral tribunal has not been formed yet. Within this context, there is a new phenomenon: the emergence arbitrator (only within the context of institutional arbitration). Before you file the request for arbitration, you could file for emergence arbitration.

There is however an urgency requirement to this. One will have to prove that the request is urgent otherwise it will be inadmissible. 2. After the request for arbitration One needs to go to the panel of arbitrators, but one can still go to a state judge, if this is allowed by the applicable law. In Belgium, it is allowed. With regards to urgency, in this case there is no need to prove urgency, if this happens before the panel. However, if you go to a state judge, depending on the procedural law of that State, you will have to prove urgency. 3. Subject Interim measures are temporary. It could be an injunction, a freezing of assets, security for costs, in which the respondents asks in case of stupid claims, a deposit from the claimant that would cover the costs of legal fees, etc or production of documents or other practical issues. It could maintain or restore the status quo pending the determination of the dispute. (e.g. a temporary judging on the ownership of assets in order to exercise voting rights in big companies; in a specific case, the voting rights were frozen for both parties). It could also take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself. It could provide a means of preserving assets out of which a subsequent award may be satisfied or to preserve evidence (e.g. a temporary judging on the ownership of assets in order to exercise voting rights in big companies; in a specific case, the voting rights were frozen for both parties). 4. Requirements and modalities One may not touch upon the merits of the case – otherwise you are prejudging.

− The harm may not adequately reparable by an award. − There must be a reasonable possibility of success on the merits − A tribunal may modify, suspend or terminate interim measures, motu proprio − There must be an appropriate security − Anybody who obtains interim measures, that prove to be dilatory, is liable for

costs and damages. 5. Form This could happen through procedural order or through award. Procedural order is faster. 6. Preliminary order This is a very specific situation of interim measure. If one files a request for interim measures, it must be notified to the respondent. An answer to this, takes a week and then valuable assets may be gone. A preliminary order is ex parte, without informing the other party. Most countries will not accept the preliminary order. It is done to

avoid frustration of the purpose of the interim measure. It can never be an award and it’s not subject to enforcement by court. C. Arbitral tribunal 1. Requirements The number is important here. Most arbitration laws ask for an odd number of arbitrators. Many institutions and national legislations have default rules. This could also be dependant on the value of the claim. The qualities of these arbitrators could be varying (e.g. language, education, training, special expertise, place of residence, …) There can be restrictions in the agreement or in legislation. The agreement could explicitly state that the arbitrator cannot have the nationality of the parties for instance. Legislation could do the same (e.g. ICSID Convention) I am morgan and I smell bad 2. Constitution This depends on the applicable rules. There is a difference in ad hoc and institutional. The institution will provide for guidance and rules. In ad hoc, we need to check the lex arbitri. Who the third arbitrator will be, is a ‘casting’. One wants the best possible arbitrator for their case. It’s in essence a beauty contest. They make up shortlists. It happens at the arbitrator’s office, telephone –or video conference. The rule of thumb is that it should be lead by an external lawyer and not during an event involving hospitality. There should be no benefit involved. The content must be disclosed to the other side. In Dutco, it was considered a fundamental right of a respondent to choose its own arbitrator. 3. Challenge (and replacement) Challenge is a situation where the tribunal is appointed, and one of the parties discovers a fact which could impair the independence or impartiality of one of the arbitrators and have him replaced. This cannot be a dilatory tactic. When it’s an institutional arbitration it’s the rules that say what happens. Ad hoc, it’s the lex arbitri. The consequences of this are that proceedings are stayed. It could also be that he is replaced or that the prior proceedings have to be repeated. 4. Impartiality and independence Independent means that one is independent from the parties and the counsel. One does not follow their instructions. Impartiality means that one is not prejudiced.

The criterion is that the arbitrator should disclose conflicts of interest. Due to certain facts, you are not independent or impartial viz. the parties. When one is an arbitrator he must sign a declaration of independence / impartial. So, the first test is for the arbitrator himself: he must do the assessment whether he is impartial/independent. There might however be facts which are, in the eyes of the parties, an impairment to impartiality/independence. These facts will have to be disclosed. (see also Ghana case) The most famous guidelines are the IBA Guidelines on conflicts of interests. They work with red lists, orange lists and green lists (exam!). These are facts as regarded by the parties. The red list will knock out the arbitrators completely. It could be non-waivable; it could be waivable but then it has to be disclosed. The green list is less important (e.g. connecting on social media). 5. Secretary to the tribunal No requirements. Appointed by the tribunal. There is a declaration of independence and impartiality. One needs to prepare letters/help the arbitrators/transmit documents/organize and attend hearings/conduct research/proofreading.

PART IV MANAGEMENT OF AN ARBITRATION A. Applicable rules An arbitrator has to make sure that both parties don’t kill each other. You have to control the procedure. It could be quite aggressive however. The task of an arbitrator to manage an arbitrator has become crucial. Even if you have excellent legal knowledge on the merits, you’re nothing with that if you don’t have the procedural knowledge. So, arbitrators have a large autonomy. It is however restricted by several aspects.

− party autonomy: when parties agree amongst themselves on certain steps in the proceedings, as an arbitrator you don’t have much to say anymore, unless it regards the efficiency of the arbitration, mandatory rules or public policy (e.g. Art. 19 ML and ICC rules)

− Mandatory and public policy rules (e.g. Art. 18 ML, art. V(1)(b) NYC) − Efficiency requirements (e.g. Art. 22 ICC Rules)

There have been several inquiries done with the users, and there are two remarks that always come back: the time it takes. A solution to this is low fees for longer proceedings. The second remark is the cost. B. First letter of the tribunal Once you get appointed there is the first letter. 1. Introduction You introduce yourself and establish that you are independent. This is called the confirmation of independence. You also need to establish that the tribunal is constituted. This is very important, because starting from this, the arbitration starts (in ad hoc arbitration). 2. Practical arrangements With this, there is contact info. Will you use registered mail or not? In an ad hoc arbitration you will have to indicate the amount of advance on costs. You also decide which further steps need to be taken. Dates are very important as well. C. Case Management meeting This was invented, in order to have a smooth proceeding and have a first talk with the parties and their counsel. Parties are invited to establish the procedural calendar. This could be by telephone or video conference. This is important for efficiency reasons.

Parties discuss and agree on procedural calendar. It’s very important to have the actual clients included. Otherwise the lawyers will establish very long calendars. With the clients present, the lawyers will not take that long calendars. Most of the times, some smaller issues will also be solved (e.g. place of witness hearings, applicable law, language). This is to prevent bifurcation. In this case, the problem is split up: you first look at the procedurals, and then only judge on the merits. Another way to bifurcate is first to decide on liability and afterwards on the damages. This is important for negotiations. D. Terms of reference 1. Content This is a document to be signed by the lawyers and the tribunal. It is in essence a document that identifies the dispute, and a set of rules that you agree upon when you proceed. It starts with details of the parties, counsel and Tribunal. You basically establish to who you are going to talk and send e-mails. There is a summary of the parties’ respective claims and the relief sought by each party. There is a summary of the facts and of each party’s positions. Also, the particulars of procedural rules are there. 99% of the arbitrators will insert the IBA rules on the taking of evidence. It’s soft law, but they have a lot of factual authority. By inserting them in the terms of reference, you make them binding rules. Both parties have to sign, this is very important. There must be a very clear phrasing that by signing it doesn’t mean that you accept the claims from the other side. 2. Drafting As soon as the tribunal has received the file from the secretariat (institutional) or when you have received the file from the parties (in ad hoc), it must be drafted. It’s based on facts available. It will corner the dispute. If something comes up in the course of the proceedings (e.g. identifying of a new problem, moral damages, …) this cannot be entered into the proceedings because they are not in the terms of reference. In many instances, the parties will ask the tribunal to insert a phrase with regards to new claims. In case of new claims, this shall be discussed between tribunal and the parties and the tribunal has the power to allow a new claim. If it’s a claim that follows out of the existing ones, normally it will be no problem. If it’s completely new, it might be harder to decide whether one can allow these (e.g. dilatory tactics). As long as it doesn’t delay the proceedings, there is no problem. Otherwise you’ll have to launch a second arbitration. 3. Signing It takes about 8 weeks to get the terms signed. You can do this during a hearing (inefficient). You could make a number of originals (4) and you send them to the claimant, to be forwarded to the respondent. The more effective way is letting the parties sign the last page and let them sign it to the tribunal.

A counsel cannot sign the terms of reference unless they have a specific power of attorney. This means that the parties themselves should sign terms of reference. If they want their counsel to sign, they will have to issue the specific power of attorney. This is also necessary for hearings, submission of memoranda. (>< state courts where it is presumed that you are allowed to represent). It might happen that parties do not want to sign. There are two situations (1) they do not agree with the content of the terms of reference (2) or you have a respondent who doesn’t want to go in arbitration (nullity of the arbitration clause). This could be dilatory or justified. It could be procedural rules, jurisdiction, … Does this means that the arbitration is stayed? In ad hoc arbitration, there will be an agreement to draft terms of reference (this is a practice). If they don’t sign afterwards you just proceed. This is why the procedural calendar is a separate document. If it’s institutional (Art. 23 (3) ICC Rules), it could be that the proceedings continue without the terms of reference or the Institution confirms the terms of reference themselves. 4. Timeframe (Art. 23 (2) ICC Rules) There is no general rule. It can be signed whenever you want. Most institutional arbitration rules will provide for 2 months. 5. Effect and consequences There used to be some national legislation, which would not allow parties to enter into arbitration before a dispute had arisen. The terms of reference were invented by the French. These terms of reference became the arbitration clause. It could be a remedy for invalid arbitration agreement. With regards to procedural matters, it could be that terms of reference are in conflict with arbitration rules (e.g. communication by mail vs. registered letter). When you have the arbitration rules of an institution, some rules are less important. The element of party autonomy still plays. If you deviate from the rules by way of the terms of reference, this should not constitute a problem. Obviously, some articles are very important, which cannot be deviated from (e.g. drafting final award, before sending it to the parties, it has to be scrutinized by the institution (i.e. mathematical mistakes, practical errors, …). It circumscribes claims, though no acceptance It’s only a snapshot. What if changes occur? (new claims) A plea on jurisdiction should be done in limine litis. E. The procedural calendar (the n° 1) 1. Procedural order It is in the procedural order, not in the TOR.

2. Content

− Actions of parties − Actions of Tribunal − Practical considerations − Leading principle: due process!

In a case management hearing, the procedural calendar is being discussed. One of the parties gets a longer time, you need to make sure the respondent has an issue with this. The parties shall be treated with equality and each party shall be given a full opportunity of presenting its case. Party autonomy and due process are absolutely crucial. (see example) It’s basically a time calendar, containing when each party has to submit its memoranda. They don’t do hearings, production of documents in continental law In common law, there are more obligations and the calendar is more detailed. There will be witnesses, production of documents, … Continental lawyers, when the first memorandum is submitted; you are expected to submit all evidence you have. In a common law environment, this is different: only main evidence is provided. In discovery, it’s a situation whereby one party has the right to request the other party to submit documents (e.g. all the minutes of the board meetings from 2011-2013, with regard to the execution of the contract). After each stage, the other side has the right to reply. At a certain stage, all the exhibits have to be exchanged and all the big arguments have to be submitted. The affidavits have to be exchanged: it’s a written witness statement. F. Meetings and hearings 1. Arbitral tribunal and parties There can be hearings on preliminary issues or on the merits. There could also be a preliminary meeting as well. 2. Where? It could be anywhere. It could be the place of arbitration. The only link with the place of arbitration is the applicable procedural law. It should be a neutral venue. A certain level of accommodation.

3. Procedure at hearing a. Continental style Normal pleadings, you give word to the claimant. You agree on a timeframe. You allocate equal time to the respondent. There is a rebuttal and a response to the claim. There could be questions (e.g. it is a wrong article that is being mentioned) and briefs on one/two outstanding issues (e.g. an arbitrator does not agree on how something is written. Parties should issue new briefs on that respect (e.g. issues with public policy so it can be put in the award in order to avoid annulment)). An arbitrator must be very cautious on how to express yourself, in order to not prejudge. b. Anglo-saxon style First you start with opening statements. These are extremely well-prepared. After this, there are witness examination and cross examination. After this, there are expert examination and cross examination. After this, there are closing statements. Post hearing briefs summarize the main argument, and is worded as such that it could be put in a final award. Several issues could arise (e.g. new exhibits) Prepare and push yourself to the limit; be prepared, get into the zone, think on your feet and never be afraid. 4. Practical considerations These are issues on logistics (see slide) You need:

− Rooms and breakout rooms − Copy rooms, internet − Hearing hours − Conduct of the parties − Translation services − Transcription services − Parties and counsel present + ex parte hearings (Art. 25 ML)

G. Written submissions (supra) H. Evidence 1. Categories of evidence

− Documentary evidence − Witnesses of fact

− Expert witnesses (on foreign law e.g.) − Inspection of the subject – matter (most of the times in construction matter)

2. Documentary evidence Article 3 and 9 IBA Rules on the taking of Evidence are very important in this respect. There is also a Redfern Schedule. In the n° 1, you fill out a request to produce documents. The redfern schedule will be used. The first three columns are to be used by the claimant. The last 3 should be used by the respondent. 3. Witnesses a. Witnesses of fact It could be that parties are witnesses: the witness is employed by the party. It could be a witness that is not a party representative. The witness must be prepared, for its statement but also for cross-examination. Both counsels will examine the witness. These are pretty aggressive: either you find an issue where the witness got it wrong, either you stress out the witness completely by firing questions non-stop so he makes mistakes. These could go very loud. b. Expert witnesses They could be questioned, regarding issues regarding the law (e.g. foreign law) or on quantum. c. Witness hearing 4. Expert (appointed by tribunal) This happens with the agreement of the parties. A specific terms of reference is drafted. Most of the times there will be a dedicated hearing. Especially in international arbitration an arbitral tribunal will not appoint an expert because its too sloppy. 5. Confidentiality

In the Ali Shipping Case, “the court expressly held that the term of confidentiality was implied, not on the basis of business efficacy, but was implied by the law ‘as a necessary incident of a definable category of contractual relationship’. The effect of this was that, instead of seeking to adapt the general rule to fit the specific circumstances of each case by determining what each party would have intended at the time of entering into the agreement, the law would formulate ‘exceptions of broad application to be applied in individual cases’. In this regard, the court noted:

...English law has recognised the following exceptions to the broad rule of confidentiality: (i) consent, ie where disclosure is made with the express or implied consent of the party who originally produced the material; (ii) order of the court, an

obvious example of which is an order for disclosure of documents generated by an arbitration for the purposes of a later court action; (iii) leave of the court. It is the practical scope of this exception, ie the grounds on which such leave will be granted, which gives rise to difficulty. However, on the analogy of the implied obligation of secrecy between banker and customer, leave will be given in respect of (iv) disclosure when, and to the extent to which, it is reasonably necessary for the protection of the legitimate interests of an arbitrating party. In this context, that means reasonably necessary for the establishment or protection of an arbitrating party’s legal rights vis-à-vis a third party in order to found a cause of action against that third party or to defend a claim (or counterclaim) brought by the third party... Finally, in at least one decision, the English court has tentatively recognised a further exception (v) where the ‘public interest’ requires disclosure...

The effect of the court’s holding was essentially that all documents generated in an arbitration were confidential as between the parties, and that no disclosure of them could be made without leave of court. Note that this is substantially different from the approach in the earlier cases where the question was whether a document was subject to the duty of confidence or whether it fell outside the scope of the duty (for example, due to the requirement of reasonable necessity). If it fell outside the scope of the duty, a party was not bound by the obligation and did not need leave of court to disclose it. Hence, under that basis, a party wishing to enforce an arbitral award, for example, did not need the preliminary leave of court to disclose that award in the enforcement process.” In the Esso Australia Resources Ltd v Plowman [1995] 128 ALR 391 came to the opposite conclusion. There is no implied rule of confidence between the parties. This has been established in Panhandle v. USA as well. In short, there is no common approach due to the different legal systems. Issues on confidentiality must be pre-agreed (in the agremeent or in the terms of reference) or it must be referred to an institution which has no confidentiality rules. Even in the US Courts (Panhandle eastern corp) the implied rule is not accepted as well. So, UK accepts it. USA and Australia don’t. What about Canada? In the Pizza Pizza case was stated that there is loss of confidentiality, when there is award enforcement, appeal or interim relief. This disadvantages arbitration practices. Confidentiality can also arise within an arbitral dispute (e.g. submission of a third party contract). The confidential document would be produced for the tribunal’s eyes only.

PART V COURTS IN ARBITRATION AND APPLICABLE LAW SEE SLIDES. Except for the presentations we have seen nothing + preparatory readings!

• Content I. Courts in arbitration

I.1. Art. 5 ML I.2. Jurisdiction I.3. Interim and conservatory measures I.4. Competent Court I.5. European Union

I. Applicable law II.1. Arbitration agreement II.2. Arbitration proceedings II.3. Merits of the dispute

• I. Courts in arbitration I.1. Article 5 ML In matters governed by this Law, no court shall intervene except where so provided in this Law.

– Declaration of independence? – Autonomy? – Third legal order?

• I. Courts in arbitration – At the outset of the Arbitration

• Jurisdiction • Supportive measures, e.g: establishing arbitral tribunal • Interim and conservatory measures

– During the Arbitration • Supportive measures, e.g: evidence • Interim and conservatory measures

– After the Arbitration • Exequatur • Annulment

I.2. Jurisdiction – Definition – Grounds for challenge

• Lack of arbitration agreement (Total) – Separability

– Scope of jurisdiction (Partial) I.2. Jurisdiction

– Challenge before the arbitral tribunal • Kompetenz-Kompetenz? (article 16 ML comp. Art. 6 ICC

Rules) • Consequences?

– Decision at the outset: partial award • Decision: no jurisdiction

– Next step for claimant? • Decision: jurisdiction

– Challenge of the award?

» Article 16 ML: immediately » Article 1690(4) BJC: with award on the merits

– Decision in the final award on the merits • Challenge of the award

I.2. Jurisdiction – Apply to the national court

• Respondent: – Remedy restraining the arbitral tribunal from

proceeding (anti-suit injunction) • Declaratory judgment (e.g. England, Switzerland) • Commence litigation

– See article 8 ML: concurrent jurisdiction – See article II NY Convention

I.3. Interim and conservatory measures – Why resort to the courts?

• Before (since 2012: see article 29 ICC Rules) • Arbitrators sometimes lack necessary powers • Arbitrators’ powers restricted to parties • Enforceable under NY Convention? • Ex parte application?

• I. Courts in arbitration I.3. Interim and conservatory measures

– When allowed to resort to the courts? • Concurrent powers?

– Article 28 ICC Rules (notification!) – Article 9 Model law

• Hierarchy? • Logistical problems

I.4. Competent court – Supportive (‘ancillary’) measures

• Defined by lex arbitri (usually seat) – Provisional and interim measures

• PIL-question I.5. European Union and arbitration

– Preliminary ruling? Nordsee – Regulation 44/2001

• Marc Rich • Van Uden • West Tankers

I.5. European Union and arbitration • Court decisions on appointment of arbitrator (ancillary

requests) excluded from the scope of Bxl I Convention, even when the existence or validity of an arbitration agreement is a preliminary issue in that litigation

• Article 24 Bxl I Convention is applicable to determine jurisdiction of the court deciding over interim request in arbitration (provisional measures), provided subject matter is within scope of Convention and request is for provisional measure

• An anti-suit injunction restraining a person from suing in a court of another member state on the ground of the arbitration agreement is contrary to Regulation 44/2001 if the subject matter of that dispute is within the Scope of the Regulation

II.1. Arbitration agreement – Issues

• Capacity • Formal validity • Substantive validity

– Tricky: arbitrability and public policy – Potentially applicable laws

• Parties’ express choice • Parties’ common intention (France) • Law of the underlying contract • Law of the seat of the arbitration (art. V NYC) • Combined approach (Switzerland)

II.2. Arbitration proceedings – Lex Arbitri

• Place of arbitration (or foreign law = not recommendable) – How is this determined?

» Article 1(2) and 20 Uncitral Model Law » Article 18 ICC Rules

• Issues – National legislature’s discretion – Domestic vs International arbitration – Arbitration agreement, arbitral tribunal, KK, rights of

defense, interim measures, default proceedings, court intervention, award, annulment, etc

• Caveat: mandatory and public policy provisions ~ Siska Vivendi

II.3. Merits of the dispute – Parties’ choice

• “French law shall govern the contract” • “The arbitrators shall decide as amiable compositeurs” • Restrictions? Public policy

– Soleimany v Soleimany II.3. Merits of the dispute

– Arbitration and PIL • PIL method

– Forum? ILI (International Law Institute) ↔ nature of arbitration

– Arbitrator’s discretion (Art. 28(2) ML) » Comparative or cumulative method » Method of closest connection

» Residence, registered office, signing of contract, performance of contract, etc.

– General principles of PIL • Voie directe method (Art. 21 ICC Rules)

– “rules of law which it considers appropriate”

– “state law with which the dispute is most closely connected”

– … • Is there a difference?

II.3. Merits of the dispute – Ex officio application

• Public policy: obligation • Other laws? Legal sources? Do their own research? Apply a

different interpretation not put forward by the parties? … II.3. Merits of the dispute

– Case 1: Arbitrators decide on jurisdiction • Belgian seat of arbitration, Belgian law applies • Decision of arbitrators based on:

– Two French Cour de Cassation decisions – Two doctrinal articles

Both these sources were not submitted by parties QUID? II.3. Merits of the dispute

– Case 2 : Arbitrators decide against jurisdiction • Jordan seat of arbitration, Jordanian law applies • Claimant and one arbitrator Jordanian • Decision of arbitrators states:

– « Claimant insists that waiver [of the arbitration agreement] has to be explicit but did not cite – NOR COULD THE TRIBUNAL FIND – a single Jordanian authority that supports its affirmation. To the contrary a number of decisions and authorities confirm a different interpretation of Jordanian law on this matter. »

II.3. Merits of the dispute – Case 3

• Arbitral tribunal decides that claim is founded on the basis of a legal ground that was not raised by the parties. Quid?

– Case 4 • Arbitral tribunal requalifies parties’ contract (services contract

rather than sales contract) without parties having raised this issue. Quid?

– Case 5 • May arbitrators impose their strategy on how to explore the

law? II.3. Merits of the dispute

• « The Parties are required to properly substantiate their oral or written allegations, defenses, and claims by the pertinent evidence. While Claimant must give in detail the factual and legal grounds it is relying on, Respondent must respond in detail to the claims made by Claimant. In the respective briefs the proofs must be indicated with precision and the available documents must be filed including copies of all legislation, jurisprudence and doctrine to which reference is made. The provisions of this paragraph apply to the counterclaim[s]

mutatis mutandis. After the exchange of briefs a Party may make a new allegation or prove a fact, if, without its fault, it had no possibility or no reason to make such allegation or offer such evidence before. »

II.3. Merits of the dispute – Ex officio application

• Public policy: obligation (ILA 13) • Other laws?

– Law versus legal issues » Arbitrators may not create new disputes or

introduce new legal issues! » Contents of the applicable law

» Sufficiency of parties’ input » Defaulting respondent » Jurisdiction (obligation) » Merits (possibility) » Weak respondent » Issues at stake » Precendential value

» ALWAYS: communication with the parties (ILA nr. 7-11)

II.3. Merits of the dispute – General principles of arbitration

» Right to be heard » Equal treatment » Impartiality of arbitrators » Nu ultra petita partium

A. Courts in arbitration 1. Article 5 ML In matters governed by this Law, no court shall intervene except where so provided in this Law. Is this a Declaration of independence? What is the Autonomy? Does this constitute a Third legal order? 2. Jurisdiction Courts can play a role at several stages in the arbitral proceedings

− At the outset of the Arbitration o Jurisdiction o Supportive measures, e.g: establishing arbitral tribunal o Interim and conservatory measures

− During the Arbitration o Supportive measures, e.g: evidence

o Interim and conservatory measures − After the Arbitration

o Exequatur o Annulment

With regards to jurisdiction there are several grounds for challenge: lack of arbitration agreement (total lack)/narrow scope of arbitration agreement(partial) The crucial rule is Kompetenz – Kompetenz. It is up to the tribunal to identify whether it has competence or not. If he is incompetent State court will be competent. I.2. Jurisdiction

– Challenge before the arbitral tribunal • Kompetenz-Kompetenz? (article 16 ML comp. Art. 6 ICC

Rules) • Consequences?

– Decision at the outset: partial award • Decision: no jurisdiction

– Next step for claimant? • Decision: jurisdiction

– Challenge of the award? » Article 16 ML: immediately » Article 1690(4) BJC: with award on the merits

– Decision in the final award on the merits • Challenge of the award

I.2. Jurisdiction – Apply to the national court

• Respondent: – Remedy restraining the arbitral tribunal from

proceeding (anti-suit injunction) • Declaratory judgment (e.g. England, Switzerland) • Commence litigation

– See article 8 ML: concurrent jurisdiction – See article II NY Convention

3. European Union and arbitration Sometimes there are conflicts between EU law and arbitration clauses. In respect to the preliminary ruling, the Nordsee case is important. Can these arbitral tribunals ask a preliminary ruling. This depends on the nature of the arbitration in question. It must be similar (procedure and activities) to State Courts. It was held that: “An arbitrator who is called upon to decide a dispute between the parties to a contract under a clause inserted in that contract is not to be considered as a "court or tribunal of a Member State" within the meaning of Article 177 of the Treaty where the contracting parties are under no obligation, in law or in fact, to refer their disputes to arbitration and where the public authorities in the Member State concerned are not involved in the decision to opt for arbitration and are not called upon to intervene automatically in the proceedings before the arbitrator. If in the course of arbitration resorted to by agreement between the parties questions of Community law are raised which the ordinary court may be called upon to examine either in the context of their collaboration with arbitration tribunals or in the course of a review of an arbitration award, it is for those courts to ascertain whether it is necessary for them to make a reference to the Court of Justice under Article 177 of the Treaty in order to obtain the

interpretation or assessment of the validity of provisions of Community law which they may need to apply in exercising such functions.” In the Marc Rich Co. Case, the Court held: “By excluding arbitration from the scope of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, by virtue of Article 1(4) thereof, on the ground that it was already covered by international conventions, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts. Consequently, the abovementioned provision must be interpreted as meaning that the exclusion provided for therein extends to litigation pending before a national court concerning the appointment of an arbitrator, even if the existence or validity of an arbitration agreement is a preliminary issue in that litigation” In the Van Uden-case, the court stated: “On a proper construction of Article 5, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, and by the Convention of 25 October 1982 on the accession of the Hellenic Republic, the court which has jurisdiction by virtue of that provision also has jurisdiction to order provisional or protective measures, without that jurisdiction being subject to any further conditions. However, where the parties have validly excluded the jurisdiction of the courts in a dispute arising under a contract and have referred that dispute to arbitration, it is only under Article 24 of the Convention that a court may be empowered to order such measures, since it cannot do so as the court having jurisdiction on the substance of the dispute. In that connection, where the subject-matter of an application for provisional measures relates to a question falling within the scope ratione materiae of the Convention, that Convention is applicable and Article 24 thereof may confer jurisdiction on the court hearing that application even where proceedings have already been, or may be, commenced on the substance of the case and even where those proceedings are to be conducted before arbitrators. 2. The granting of provisional or protective measures on the basis of Article 24 of the Convention of 27 September 1968 is conditional on, inter alia, the existence of a real connecting link between the subjectmatter of the measures sought and the territorial jurisdiction of the Contracting State of the court before which those measures are sought. A measure ordering interim payment of a contractual consideration does not constitute a provisional measure within the meaning of that article unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the court to which application is made.” In the West Tankers case, the Court held that: “It is incompatible with Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement. If, because of the subject-matter of the dispute, that is, the nature of the rights to be protected in proceedings, such as a claim for damages, those proceedings come within the scope of Regulation No 44/2001, a preliminary issue concerning the applicability of an arbitration agreement, including in particular its validity, also comes within its scope of application. It follows that the objection of lack of jurisdiction raised on the basis of the existence of an arbitration agreement, including the question of the validity of that agreement, comes within the scope of Regulation No 44/2001 and that it is therefore exclusively for the court to rule on that objection and on its own jurisdiction, pursuant to Articles 1(2)(d) and 5(3) of that regulation. Accordingly, the use of an anti-suit injunction to prevent a court of a Member State, which normally has jurisdiction to resolve a dispute under Article 5(3) of Regulation No 44/2001, from ruling, in accordance with Article 1(2)(d) of that regulation, on the very applicability of the regulation to the dispute brought before it necessarily amounts to stripping that court of the power to rule on its own jurisdiction under that regulation.

It follows, first, that an anti-suit injunction is contrary to the general principle that every court seised itself determines, under the rules applicable to it, whether it has jurisdiction to resolve the dispute before it. It should be borne in mind in that regard that Regulation No 44/2001, apart from a few limited exceptions, does not authorise the jurisdiction of a court of a Member State to be reviewed by a court in another Member State. Secondly, in obstructing the court of another Member State in the exercise of the powers conferred on it by Regulation No 44/2001, namely to decide, on the basis of the rules defining the material scope of that regulation, including Article 1(2)(d) thereof, whether that regulation is applicable, such an anti-suit injunction also runs counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under Regulation No 44/2001 is based. Lastly, if, by means of an anti-suit injunction, the national court were prevented from examining itself the preliminary issue of the validity or the applicability of the arbitration agreement, a party could avoid the proceedings merely by relying on that agreement and the applicant, which considers that the agreement is void, inoperative or incapable of being performed, would thus be barred from access to the court before which it brought proceedings under Article 5(3) of Regulation No 44/2001 and would therefore be deprived of a form of judicial protection to which it is entitled. This finding is supported by Article II(3) of The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on 10 June 1958, according to which it is the court of a Contracting State, when seised of an action in a matter in respect of which the parties have made an arbitration agreement, that will, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.” B. Applicable law Soleimany v. Soleimany. This is on party autonomy in choosing applicable law. It has a broader meaning here. The parties to the arbitration agreement are free not only to choose laws but also to conduct the arbitration process. However, it is not unlimited and it may be subject to mandatory rules or public policy. This will be a blockage to enforcement. If there is any dispute against the public policy, then the parties are incapable of choosing another foreign law in an agreement that overrider the mandatory law or public policy of a country.

PART VI CLOSING OF THE PROCEEDINGS AND THE DECISIONS OF THE ARBITRAL TRIBUNAL A. Closing the proceedings Quite an important moment in time in arbitral proceedings. Basically means that is it. As of that moment you take the case into deliberation. No party can enter no more pleas, no more documents. Is it the same time as the closing of a hearing. First topic: you might agree to post memorandum briefs. Parties may have the urge to submit something on the topic. Second topic that might come up are costs. Party can recover full costs of arbitration (cost of arbitration: fees of arbitrator + cost for legal counsel). It is up to the arbitrator to decide on who will bear the cost. You will have to know the amount. Before you close the hearing, you will have to identify with the parties the costs. You will invite the parties simultaneously to submit briefs with their costs. You will give them one more week to rebut each other’s submissions on costs. Most of the time the last topic you deal with before closing the hearing is the court report. The court reports have to be checked by the parties. At the level of UNCITRAL, there is work in progress on notes on arbitral proceedings trying to identify best practices in different stages of the arbitral proceedings. They are guidelines though, so non-binding. If there are any comments on equality of arms or due process. Parties cannot annul the award, if they explicitly confirmed during a hearing that the proceedings are conducted well. It is contested because no party will stand up against arbitrator before he will take the case into consideration. At that time ending of proceedings? No you might have submissions on costs or post memorandum briefs. If you have none of those things it is considered a good thing to not close the proceedings immediately. An arbitrator should take some thinking time. The best moment for the closing of proceedings depends on different styles. If something happens (party goes bankrupt, agreement is in conflict with anti-trust) between the closing the proceedings and the rendering of the award, the case can be re-opened. Anyone can ask to reopen the debates, but it is not done frequently because you will have to have a strong point in order for the arbitrator to refuse. B. Function of the arbitrator 1. Decision maker The first task of the arbitrator is to render an enforceable award. He is a decision maker. He shall make every effort to make sure that the award is enforceable at law (Art. 41 ICC Rules). You will have to be careful not to be in conflict with the lex arbitri because differences occur between different national countries. From a legal point of view it is a commitment to best effort, not achieve a certain result. If you’re a panel of three it is up to the panel to decide. The decision is taken if two out of three agree. Mostly you will try to gain the consent of all three arbitrators. The normal rule is majority within the tribunal. In some situations, either the rules of the institution, agreement, or terms of reference, if the tribunal is not unanimous it will be up to the chairman to decide. What if an arbitrator does not agree with a majority decision. Normally you just accept it. There are two ways for an arbitrator to show he does not agree. The first one

is to not sign the award. Second one is to explain to the parties why they do not agree (‘dissenting opinion’). It is not the same in arbitration as in common law. It does not happen often in international commercial arbitration, mostly in investment arbitration. If you’re going to file an award with a dissenting opinion touching public policy, it is kind of handing the reason to the party to annul the award (contra your task as an arbitrator). 2. Settlement facilitator Can an arbitrator proactively encourage settlement during arbitration? For the professor, the answer is no. the right question is should you be open to go into other forms of settlement if parties ask. MEDARB. A situation can occur where in fact the parties want to apply MEDARB. Could be during the proceedings or at the outset. The parties know that you are somewhat familiarized with the case. MED means mediation and a mediator has specific techniques to make the parties come to an agreement. Another technique is confidential talks (caucus). There is no way you can do all that when you are an arbitrator. In no stage in arbitration you can talk to the parties separately. If you get into a stage of MEDARB it is basically a facilitated negotiation. If you accept MEDARB (not a mediator) or facilitated negotiations. There are some guarentees and best practices related to this (see also CEDR rules). Informed consent in writing, provide a time limit, confidential, no caucusing, resignation if impartiality is impaired. C. Types of decisions 1. Form

− Final award

Final award means you settle every aspect of the dispute and your job is finished.

− Partial award

Partial award is where you discuss or settle certain aspects of the discussion (liability, jurisdiction). You should try to avoid partial awards, because drafting an award is a huge job (procedural order is more preferable). You take the content of the procedural order and put in the final award.

− Provisional measures in interim award − Award by consent

Parties find an agreement during proceedings, and the proceedings are stopped. Any party can ask the arbitrator to put the agreement in an award by consent. It is enforceable under the NY Convention. Is it advisable? Not really, not often used. You have to be quite careful with an award by consent, new rules of money laundering. You set up a mock arbitration, suddenly parties reach agreement, award by consent. You’re giving an enforceable document.

− Default award.

Situation where one of the parties (respondent) is not cooperating in any way or just absent. Tricky situation, because you have to make sure to notify the respondent at its

place of residence. It is important that you still look at the case (whether claimant has a claim, supported by contract or aspects of the law. 2. Subject D. Content 1. Provisions Legal requirements (art. 31 ML) Contractual requirements (Art. 31 ICC Rules). You have to be careful to determine a timeframe for a decision. You can ask both parties to waive such a provision, and then you can accept to be the chairman. What about costs? (Art. 37 ICC Rules). Fees of the arbitrators, institutional fees, experts, translators, rooms. Lawyer fees. Arbitrator will decide who will pay the costs. The basic rule is ‘costs follow the event’. It is the rule that states that the losing party will cough up the entire costs of the arbitration. A lot of discussion on that rule. A second element being taken into account is dilatoir tactics. Calderbank is a famous English case where mr and mrs. Calderbank got caught in divorce proceedings. Husband was not rich, Wife was. Husband wanted the house. During proceedings, a confidential letter was sent from the wife to the husband stating he can have the house. Husband denied this. The result was that the husband was awarded the house and the judge had to determine legal fees. Mrs Calderbank took out the letter with the offer. Husband refused this , and he has to pay for legal costs. And the judge accepted that. As an arbitrator, the parties will be notified in case of a calderbank offer and the offer will be disclosed and if the amount of the award is equal or more to the offer. The claimant has to pay the legal fees. E. Overview of the Award I. SUMMARY OF THE FACTS – FACTUAL BACKGROUND I.1. The Parties I.2. The contractual relationship between the Parties II. PROCEDURAL ISSUES AND APPLICABLE LAW III. SUMMARY OF CLAIMS III.1. Claimant’s prayers for relief III.2. Respondent’s prayers for relief IV. THE TRIBUNAL’S ANALYSIS AND CONCLUSIONS IV.1. FIRST ISSUE & SECOND ISSUE (a) Position of Claimant (b) Position of Respondent (c) Position of the Arbitral Tribunal IV.2. THIRD ISSUE … IV.5. SIXTH ISSUE Which of the Parties shall bear the costs of the arbitration (the arbitrator’s fees and expenses, legal fees and all other costs and expenses incurred in connection with this arbitration) or in what proportion shall the costs be born by the Parties?

V. AWARD F. Form requirements Scrutiny of an award can appear in the arbitration rules of an institution (Art. 33 ICC Rules). When the final award is finished you will have to submit it to the institution for a closer look. Making sure that the award is of the same quality that the ICC looks for. An award should be in writing (Art. 31 ML). A signature is required (Art. 31 ML). Notification to the parties (Art. 31 ML, 34 ICC Rules). Normally first by e-mail. And then they will get it in paper with the signature in ink. When you want to enforce it you have to present the original or a duly certified copy of the original. Registration could be a specific rule of the lex arbitri where you have to file the award with the national court (dépôt of the award). They just put it on file, they don’t do anything with it. G. Time limits First of all, there could be a time limit in the arbitral clause. It could be in the arbitration rules. Most clauses state that you should render your award in two months after proceedings. The lex arbitri could provide for specific rules regarding the rendering of an award. Quite a lot of countries provide for this. If there is a problem in the lex arbitri, the first thing you do is talk to the parties. If you do not live up to a time limit, it’s game over. Whatever you produce after that is absolutely null and void. Every secretariat of an institution has procedures when a deadline approaches they call the arbitrators to remind them. H. Consequences What happens after the award? Art. 33 ML The first thing that can occur is that parties don’t understand the award. The normal thing to do is to ask the arbitrator to interpret the award. The problem is you have to agree between the parties to submit that question (no ex parte possible). The second thing that can happen are errors (typo’s). A third specific procedure is when the award is incomplete. An arbitrator forgot to rule on a certain aspect. This can be done ex parte. I. Checklist

− Jurisdiction? − All claims decided on? − Procedural rules complied with? − Legal costs? − Seat of arbitration, date of award? − Formal approval by institution − Signature − Arrangement for communication to parties

J. Publication and confidentiality Confidentiality depends on the lex arbitri, arbitration rules, terms of reference and otherwise it’s party autonomy. Several institutions have the practice of waiting for 10 years and then publish awards anonymously. In investment arbitration awards are published immediately for transparency. Transparency is a huge issue in arbitration lately. There is much criticism on arbitration stating that it is to black box, decisions are taken without people knowing them. ICC will publish every pending case on their website.

PART VII POST AWARD ACTIONS A. Recognition and enforcement The New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards – 1958) is the holy grail of every arbitrator. Why is it crucial for international trade? Imagine you are a Belgian company and you want to conclude a contract of sales of goods with a company in Indonesia: you need a dispute resolution clause. You are absolutely free about its content, but you need that clause. Even if the seat is in Brussels, no problem; Indonesia is part of the NY convention. This convention is incredibly well written. Territorially it is applicable to signatories of the Convention, materially to arbitral awards flowing out of commercial relationships Essential is that it doesn’t make a distinction between domestic and foreign awards, where some legal systems have different procedures for the recognition and enforcement of foreign awards. Article 1.1: This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought. Recognition is a defensive move, it’s used to protect yourself. You have an official document. Enforcement is an attack, you force somebody to do something. The arbitral award is considered as an international award. The last sentence is a catch-all phrase. The third paragraph of art 1 is an opt out clause. Article 2.1: Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. When you agree to the NY convention, you agree that arbitration is legally binding. Article 2.3: The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Exceptio arbitri should be launched by 1 of the parties. What if the arbitration tribunal says that he has no jurisdiction too? This would be a case by case situation. (skipped Article 3)

Conditions for recognition and enforcement (formal) Article 4.1: 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; (it’s the award u receive from the tribunal – you may need certified copies) (b) The original agreement referred to in article II or a duly certified copy thereof. (this may be the original contract; if the agreement was oral, you may use the terms of reference). Grounds for refusal of recognition of the award. 5.1: Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (you are acting ex-parte, u need to enforce an award; on the other hand, 5.2 is ex officio) (a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or (b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or (d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. So basically, there are a few grounds for refusal:

a) incapacity (ex: I’m 6 years old, only the CEO can sign) or not valid under applicable law. There is something wrong with the arbitration agreement itself

b) due process. I wasn’t notified, etc. c) clear enough d) due process again à not respecting party autonomy e) ex: appeal

Annulment is also a ground of refusal for the recognition and enforcement of the award. However, it is only a facility of the judge to refuse enforcement (the provision stipulates ‘may’). 5.2: Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (ex officio)

(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country. B. Appeal Appeal is normally contrary to the idea of an award. It’s contrary to the final and binding nature of an award. Some jurisdictions refuse the possibility of appeal. There are different solutions however. The solution adopted by the US Supreme Court: “parties may not by their agreement create judicial appeals from final arbitration decisions that are at odds with the narrowly prescribed statutory grounds upon which an arbitration decision could be overturned” So, first it identified annulment grounds, so parties may not add new reasons: one exception is when the arbitral tribunal has completely fucked up.

What happens with the 1st award? For example: you have the possibility to appeal, you don’t do it, can you then seek for annulment of the 1st award? Under Belgian law is possible, but it’s not clear. C. Annulment 1. Grounds for proceedings: jurisdictional grounds In essence, one annuls because of the fact that the tribunal had no jurisdiction. But how do we rhyme this with the Kompetenz-Kompetenz principle? This is mainly about incapacity to conclude a valid arbitration agreement, inarbitrability of the dispute, or excess of powers, mainly meaning that one submits to arbitration disputes that are not in the scope of powers of the arbitral tribunal. 2. Grounds for proceedings: procedural grounds For instance, lack of due process is extremely important. These are usually not defined by concrete rules but seen in matters of general principles (see e.g. Article 6 ECHR: equality principle, opportunity to present the case, …). There is also some soft law (e.g. IBA Rules and Guidelines, ICC Notes, Unctiral Notes) 3. Grounds for proceedings: substantive grounds Substantive grounds are about the material qualification of the facts. Can one judge state that what an arbitrator did was rubbish? This would depend on the jurisdiction. (i) this could apply to a misevaluation of the facts (ii) or to a misevaluation of the application of the law to the facts. It would depend on the jurisdiction whether or not one can initiate annulment proceedings for this. 4. Grounds for proceedings: country specific grounds Contradictory reasoning, time limits, fraud, …

In essence, the debate on annulment is very important. It plays in the spectrum of the private interest (no control) versus the public interest (unrestricted control on arbitral awards). These interests also play a role when deciding if and when an arbitral award should be annulled: if the dispute is merely private (e.g. sale of goods) then the control shouldn’t be too harsh. One could state that one needs a certain extent of control, in order to avoid sloppy decisions or contradictory decisions. However, unrestricted control is not desirable either, due to the fact that people actually rely on arbitration. Finally, it is not clear what could be reviewed: can you review the merits, which would be a de novo review? Or can you only review when there is a manifest disregard? There are also several conditions that must be fulfilled. (i) arbitral award that is final (ii) time limits must be respected of the place of arbitration (iii) there should be no waiver of those objections Remission is the situation when the judge will send back the award to the tribunal if there is just a small error. The result depends on the grounds and the applicable law: do you base it on procedural grounds or jurisdictional grounds?

PART VIII THE BELGIAN ARBITRATION LAW A. Coming about of the Belgian law There was a European Convention of 1966. These principles became part of the Judicial Code (part VI) in 1972. In the ‘80’s and ‘90’s there were minor adaptations to the law to make Belgium more attractive as arbitration-friendly country. In 2010, at the CEPANI a group of 10 experts was constituted. They redrafted the law from scratch. The idea was to adopt the UNCITRAL Model Law. UNCITRAL is part of the UN, created to foster international trade. One of the features is to have a good dispute resolution method (through Working Group II, which created the model law). The structure of it is the structure of arbitration proceedings. The content and structure of the arbitration law is the same of the model law. It is in force since 1 September 2013. When a country is identified as a model law country, one knows what to expect. B. Scope of application A few options were open for the working group. There is the difference between monism and dualism. Many countries make a difference within their law between domestic proceedings and international proceedings. Several countries provide for a specific set of rules for international proceedings to make it friendlier. The countries that do not make a distinction are called ‘monistic’, since they have one set of rules for all kinds of proceedings. Dualism is the opposite: there is a different set of rules for international proceedings. There is one clause that is inserted in Belgium (Article 1718 Ger.W.): the waiver annulment of non-national decisions. When there are arbitral proceedings in Belgium, without a connection to Belgium, and when Belgian law does not apply to the merits, one could exclude by contract the possibility to seek annulment of the award. Private international law applies to international arbitration (Article 1676 (6,7) Ger.W. – but this is being redrafted). When the law was written, it was discovered that there was too much room for interpretation. There is no difference between Belgian v. foreign awards (Article 1721 (1) Ger.W.) The scope of application is the same as the Uncitral model law. It is not limited to commercial disputes. C. Arbitration agreement 1. Form requirements Belgian law required a written document (ad probationem). Today, you can start proceedings on the basis of oral proceedings. Obviously, one will have to be able to prove this, so a written document will still be necessary. The necessity to have a

written arbitration agreement for its validity is however left out of the law. The burden of proof is for the party who wishes to rely on the agreement. The New York Convention has a reference to a written and signed agreement, however there is no issue for this due to Section 7, which allows a deviation from this provision. Article 1720 (4) Ger.W. regards the recognition of the enforcement of arbitral awards. Normally, in order to do this one needs to submit the award and the agreement. How do we do this when its not required to have a written agreement? This has been a mistake. This requirement is being adapted in the amendments to the law. 2. Arbitrability The former law stated that in order to be arbitrable, the subject matter of the dispute should be subject of a transaction: only those subjects that are able to be transacted between the parties, were able to be arbitrated. This was narrow in the law, but interpreted broadly by the doctrine. Today, there’s a double material criterion for objective arbitrability. Any pecuniary claim may be submitted to arbitration (Article 1676 (1) Ger. W.) Non-pecuniary claims, which are able to be the object of a transaction are also arbitrable. Article 1676 (5) Ger.W. states that labour law can not be submitted to arbitration. But what about distribution contracts? Sebastian Case: are concession agreements arbitrable? In essence Belgium likes to protect Belgian concessionaires. This prevents arbitrability. The Court stated that Article 2 NYC allows the Belgian Court to refuse the arbitrability as soon as ‘any relevant rule’ of Belgium prevents arbitration. It is very likely that Belgian courts will use lex fori to determine whether something is arbitrable. Objective (in-)arbitrability is judged on three conditions: arbitration agreements must be clear that foreign law is only applicable to the merits of the dispute. There is no possibility to take the dispute from the jurisdiction of the national courts: this causes something to be objectively inarbitrable. If these two conditions are fulfilled, there is no arbitrability. Only when Belgian law would be applicable to the merits of the case, there would be arbitrability. So, if you have assets outside the EU you are in trouble, otherwise there would be no problem. Maison du Whisky Case: the respondent stated that they did not respect Belgian jurisdiction based on Brussels I Regulation. The Court stated that Article 2 Brussels I prevails over conflicting national laws of jurisdiction (e.g. the Belgian law of 1961 (exclusive distribution contracts)). The Court assessed whether the distribution agreement is a contract for the sale of goods or a contract for the supply of services? It isn’t a sale of goods. It is the supply of services so Article 5 (1) (b) Brusssels I. + very important definition of distributorship + written forum clause is very important. The former law stated that with regards to subjective arbitrability, public entities could not enter into an arbitration agreement. Today this has changed in Article 1676 (3) Ger.W., they are allowed. Based on several European developments, consumers have specific regimes.

D. Arbitral tribunal Here as well, there are default rules. They are applicable unless the parties agree otherwise (e.g. the composition of the arbitral tribunals, the appointment procedure, quality standards, … ). This applies only to ad hoc arbitration of course, since the institutional rules could differ. Only when this does not provide for an answer, then one should look at the law. When it comes down to the competent State Court, it is always the chairman of the Court of First Instance, within the resort of a Court of Appeal (Antwerp, Brussels, Ghent, Liège and Mons). There will be no appeal to this. This is to make arbitration more efficient. There are imperative rules as well. First of all, the number of arbitrators should always be odd. Secondly, arbitrators should be independent and impartial. One cannot discriminate and there is a principle of equality. The principle of due process should be respected. One can however provide that the arbitrator should not have the nationality of either parties. With regards to disclosure (Article 1686 Ger.W.), it is stated that the arbitrator should disclose any circumstances which could give rise to doubts to his independence and impartiality. With regards to challenge (Article 1687 Ger .W.) of an arbitrator, it is the competence of the president of the Court of First instance. With regards to termination (Article 1688 Ger.W.) of the mandate of an arbitrator, when he cannot perform his acts anymore for any reason. Once you get appointed as an arbitrator, you can’t change your mind. You must submit your question to the president of the CFI. The parties could however agree to let you go. Replacement of an arbitrator is quite a serious business, since you have to redo stuff. E. Arbitral proceedings Article 1702 Ger.W. is about the commencement of the arbitral proceedings. Again, in institutional rules this could differ. The Article states that the moment when the application has been received by the respondent, the proceedings start. There are provisions on notifications (Article 1677 (1) Ger.W.). In Article 1678 Ger.W. there are some problems. Notifications mean that one is notified that something will happen. It is very hard to prove that the respondent has read it or not. In principle, it is the addressee’s known address: then it’s the date of communication. By sending it out, it is considered to be notified. This had to be modified: the principle was inserted, but for some reason the date of receipt was inserted. This is however not how it is applied. There are so many default rules: - Article 1701: place of arbitration - Article 1703: language - Article 1700: procedure There are also imperative rules: equality and due process (Article 1699 Ger.W.)

There are also some efficiency provisions, to make the arbitration more efficient (see e.g. Article 1706 Ger.W.) With regards to hearings and pleas and documents, hearings are no longer the rule (Article 1705 Ger.W.). There is no obligation to have terms of reference and PO’s but it might be a good idea to have them (Article 1704 Ger.W.) Experts could be appointed under Article 1707 Ger.W. With regards to the submission of evidence, Article 1700 is important: there are more powers to the arbitral tribunal as with regards to evidence. The law provides for specific provisions on witness testimonies. There is no need for an oath. The Courts may assist (Article 1708 Ger.W.) in the taking of evidence. With regards to the forging of documents, the tribunal could not rule on these issues (e.g. false signature). The law now explicitly provides that a tribunal may take a decision on this. Third party joinder (Article 1709 Ger.W.): a third party can join arbitration proceedings at the written request of a third party or call of the parties. A third party may have an interest to intervene in order to safeguard its rights. Obviously, you need an arbitration agreement for this and it should be an unanimous consent of the arbitral tribunal. With regards to termination (Article 1714 Ger.W.), after the signing of the awards there will be termination. F. Decision and awards It recognizes the fact that disputes could be bifurcated (Article 1713 BJC). With regards to jurisdiction there is a specific rule on Kompetenz – Kompetenz (Article 1690 Ger. W.) : the arbitral tribunal rules on its own jurisdiction. When jurisdiction is disputed, there will be no suspension of the arbitral proceedings (Article 1682 Ger.W.) The parties identify the applicable law on the merits of the dispute (Article 1710 Ger. W.) – it refers only to domestic law. Its not private international law. A tribunal should stay close to the contract: contract terms and trade usages should be respected as well. The default rule is majority voting (Article 1711 (1-3) Ger. W.), unless otherwise agreed by the parties. When one arbitrator refuses to take part in the deliberations in the dispute, the law provides that you can proceed (truncated tribunal) (Article 1711 (4) + Article 1713 (3) Ger. W.) Once the tribunal knows that it will go into a truncated tribunal, the parties should be informed thereof. There is a possibility of a settlement award (Article 1712 Ger.W.): either they will inform the tribunal that there is no longer any dispute, or to invite the tribunal to put

the settlement into an award. With regards to the time limit, the arbitral tribunal should respect the time limits inserted in the arbitral agreement (Article 1713 (2) Ger. W.). if there is no limits in the agreement but an arbitrator is slow, it should be replaced. The form and content of the award is regulated in Article 1713 Ger. W.: it should be written and signed by the arbitrators, there must be a reasoning (this is domestic public policy), there is a division of costs + penalty. These costs must be reasonable and must be allocated (e.g. dilatory tactics) The award must be notified (Article 1713 (8) Ger. W.) and filed. The old law provided for the depot of the arbitral award. The chairman has the obligation to go to the CFI, to deposit it. It has no legal consequence whatsoever. There are correction (mathematical mistakes), interpretation (only if both parties agree) and completion possibilities (Article 1715 Ger.W.) G. Courts Court of the place of arbitration (ratione loci) but always within the resort of a court of appeal. Most of the time it will be the president of the court. The general rule is that one has no recourse against decisions of the CFI. With regards to interim and conservatory measures, (Article 1691-1698 Ger.W.); if you need an interim measure, either you go to state court or you go to the tribunal, unless agreed otherwise. In the arbitral clause one could state that it is prohibited to go to state courts. This is not advisable, since the tribunal cannot seize. The big difference between both is that there is an absolute necessity by law to rpove that your request is urgent. If interim measures are requested before the tribunal, one cannot do this ex parte. It can be the case that one need an interim measure but one does not want the other side to know. To a state court, you can go ex parte. Once interim measures have come into place, they can be terminated, amended or suspended if there’s a new element in the case. This means that even if a state judge orders interim measures, the tribunal has the right to, when new elements show up, termine, amend or suspend the interim measures. There’s a specific provision with regards to liability: Article 1695 Ger. W.: as a tribunal you cannot take any risks when allowing interim measures because you don’t know enough. In the end of the proceedings, there could be misuse of the request of interim measures. If one requests interim measures, you are liable for these interim measures that caused damages. With regards to enforcement(Article 1696-1697 Ger.W.) : interim measures can be enforced. Usually interim measures are taken by preliminary order. The law says this is enforceable as well. This is open for debate however.

H. Recourse Appeal on the merits is possible (Article 1716 Ger. W.) but is quite rare. With regards to annulment, this is only possible for awards with res judicata: there is a distinction between two types of ground: submitted by the parties or ex officio (arbitrability, public policy, fraud). The UNCITRAL grounds are applicable + two Belgian grounds: fraud + not reasoned awards. Parties must prove this however. Some of these grounds are special: the irregularity must have had an effect on the arbitral award. Remission (Article 1717 (6) Ger. W): situation whereby the award is not in conformity with the law but its such a minor problem that a state judge can send back the award to the tribunal, ask them to set it right and then basically send it back. (e.g. addresses forgotten) NYC: copy paste. The grounds for opposing enforcement are identical for Belgian and foreign arbitral awards. One thing will be changed: you should go to the place of arbitration for annulment of the award. With regards to the enforcement, one should go to the place of residence of the party viz. you seek enforcement. Meaning that you could have different places for proceedings: one for annulment and one for enforcement. You could end up with conflicting judgments. There is only one place for arbitration, to change this: joinder of these proceedings, in order to avoid conflicts.

PART IX INVESTMENT ARBITRATION A. International Investment Law The way the proceedings are conducted share common features with normal arbitration. 1. Investments The first question is what investment is. There are two main types of investments: (i) foreign direct investments (FDI) (or ‘active investment’): a company or individual situated in one State acquires a lasting interest in an enterprise that is situated in another State. There is a transnational element. The main concept here is the ‘lasting interest’. The purpose is to gain an effective voice in the management of the enterprise (ii) Portfolio investment (or ‘passive investment’): one buys shares and securities from foreign companies. The idea here is to have a lasting interest as well. BIT’s usually apply to both FDI and portfolio investment. Traditionally, customary international law only applied to FDI, which is why the distinction was made. With FDI there would be a physical presence of staff in the host State. When they drafted the Lisbon Treaty, only competences were transferred in regards to FDI, not for portfolio investments. This is why States are now saying investment treaties should be seen as ‘mixed agreements’ thus allowing the States to ratify them individually. The top 5 host economies are US, China, Hong Kong, Brazil, British Virgin Islands. The Top 5 investor economies are US, Japan, China, Hong Kong, UK. We see a shift where developing countries are not longer the only host states: they are also on the capital-exporting end. Arbitral tribunals now accept more and more the right to regulate. 2. International investment law The investor is not a citizen/resident of the host State and the investment should be done through transfer of funds or capital from one State to the other. The main idea is that one regulates the protection of foreign investment against the sovereign acts of host States through commitments of states with respect to the treatment they will accord to foreign investors (FET, MFN, NT, FPS and expropriation). It includes as well a mechanism to ensure enforcement of these commitments. The reason why one regulates this is due to the capacity of host States to affect the investment. The FDI happens through presences of foreign investors; one would require a lasting interest. Investment treaties are signed to ensure economic development, stimulate capital flows and make sure there is some kind of co-operation between the States. There is likely to be sociological, economic and cultural consequences. The main

principle is that one should protect foreign investment, to attract foreign investment. This theory has however never been proven. International investment law is treaty law. It’s based on bilateral investment treaties, bilateral trade agreements and plurilateral treaties (BITs, FTA’s, ECT, NAFTA, DR-CAFTA). There are over 2700 investment treaties in force. 3. Bilateral investment treaties The First BIT was the Germany – Pakistan (without dispute settlement). In 1968 the first ISDS was included in the Netherlands – Indonesia BIT (but with stringent conditions). In 1969 the conditions were removed (Chad – Italy BIT). In 1990 the first ICSID case came. Today there are more than 3000 BITs. a. Scope of application of BITs The BIT defines its own scope of application. This scope of application is very important for the jurisdictional requirements of the arbitral tribunal. Ratione temporis, the bilateral investment treaty usually includes two possibilities (i) the Treaty applies to investments after signing of the Treaty (usually developing States defend this) (ii) the treaty applies to investments even before (current, actual and future investments). Treaties often have sunset clauses: once the Treaty is terminated, the protection continues for a period of X years. Ratione personae you need to be an investor Ratione materiae you need to have an investment. B. Investment Treaty arbitration 1. Concept and principles There are several types of arbitration. There is mixed arbitration and interstate arbitration. Within mixed arbitration, there could be investment treaty arbitration and international commercial arbitration. It is very important to know that when (i) there is international commercial arbitration, the jurisdiction of the tribunal is based on the contract (ii) if there is international treaty arbitration, there is jurisdiction on the basis of the treaty. Sometimes one can choose between both jurisdictional grounds. We will focus on investment treaty arbitration. The consequence of this is that there is a double layer of obligations. If it’s a treaty based arbitration, the claim relates to the breach of the Treaty. However, if you have a contract-based claim, the tribunal will check the legality with the contract of the act. This has another consequence: the nature of the State is different: the treaty is negotiated in a ‘State’ capacity, while contracts are more negotiated as a private partner. Investor-State arbitration is essentially a dispute between States and foreign investors. The investor has direct access to arbitration tribunal. This is different from customary international law (where there would be ‘state immunity’), where normal persons

would have to go to domestic courts. If the violation persists, there could be diplomatic protection. The claim will be taken from State to State in an international sphere. The diplomatic protection has a consequence that States sue before international courts. However, the right of a diplomatic protection is a right of the State, not of the individual. The whole procedure is very lengthy and costly which is why there is direct access to tribunals. Not all the Courts have the same requirements of due process, … This distinguishes investment treaty arbitration from ICA: an investor exercises the right of the State to protect itself. This implies that access to arbitration under the Treaty is not an alternative to going to the domestic courts, but to bypass the diplomatic protection. The fora for arbitration is based on the free choice of the parties (the most commonly used is ICSID, then the PCA, ad hoc under UNCTRAL and there are also regional centres). For contract-based arbitration (there is e.g. ICA, ICC, …) 2. ICSID Convention The reason why ICSID is so popular is (i) due to the internal annulment mechanism (ii) there is automatic enforcement (iii) there is a fixed set of procedural rules. Domestic courts have no role to play at any stage. The law of the seat of arbitration has no role to play at all. For non-ICSID, there is enforcement under the NY Convention and a free choice of procedural rules (exception: institutional arbitration). In order to know whether there is a Treaty claim, one should assess the essential element of the clause (FET? Indirect Expropriation? …). One exception to this, is the ‘umbrella clause’: every commitment that States have made towards foreign investors is guaranteed by a Treaty obligation. If a State breaches a contractual commitment, it at the same time breaches the umbrella clause and thus the Treaty. This is important to gain access to investment arbitration. This is highly controversial: what if the forum for dispute settlement provided for in the contract has not been seized for the dispute related to the contract? Can the Treaty tribunal then decide whether there is a breach of the contract? Because, in order to know whether there is a treaty breach, one needs to know whether there is a contract breach. The ICSID Convention is officially called the Washington Convention on the Settleemnt of Investment Disputes between States and Nationals of Other States. It’s part of the World Bank Group. The ICSID is not a permanent tribunal. a. Jurisdiction (Article 25 ICSID) ICSID limits the types of disputes one can submit to the ICSID Convention. (i) There must be a legal dispute (ii) Arising directly out of an investment. The ICSID Convention does not define what investments are.

(iii) Between a Contracting State (iv) a national of another contracting state (dual nationals are excluded) (v) Which the parties to the dispute consent in writing to submit to the Centre Its not because a State has signed the ICSID Convention, this does not imply submission to arbitration to ICSID. How does one have to consent to arbitration? There is a need for separate consent in writing. This could flow from a concession contract, legislation (SPP v. Egypt), BIT or the individual consent by the investor. However, consent in the treaty is basically consents between two States. How does this affect the investor? The legal reasoning that is being used, is that an arbitration clause in the Treaty is an ‘offer to arbitrate’ by the State to all potential and existing investors of the other State. In commercial arbitration, there is ex ante a contract between two parties. Once the consent is given, no other means can be used (Article 26 ICSID). One does not have to exhaust local remedies, unless explicitly provided by the State (Article 26 ICSID). The jurisdiction of the ICSID excludes diplomatic protection (Article 27 ICSID). Once the consent is given, one cannot unilateral withdraw this. Very often, a choice is given to the investor to either submit to ICSID or UNCITRAL arbitration. This is to avoid that the investor would not meet the requirements of Article 25. There are specific clauses: the ‘fork in the road’ / U-Turn clause means that one can choose domestic courts or arbitration, but one cannot change this choice. Of course, treaties can deviate from this. b. Ratione materiae For defining the scope of application ratione materiae, the ‘double barrel’ test is important: one needs to meet the requirements of the Treaty, and also those of Article 25 ICSID. One needs to qualify as an investment/investor under the BIT and then finally under the ICSID. (i) Article 25 ICSID however contains no definition of investments. The tribunal had to make this definition (Salini v. Morocco, Salini-test). An investment implies four elements: (i) a financial contribution (ii) certain duration of performance (iii) participation in the risks of a transaction (iv) contribution to the economic development of the host State of the investment. This means that the investment should be beneficial to the public interest (i.e. more than a commercial transaction). This last element remains controversial however. This is why an alternative was developed by some tribunals: only the Treaty provisions must be used. The only thing that everyone agrees on is that a purely commercial transaction is never an investment. (ii) the BIT definition of an investment. Its very similar in all BIT’s. Its usually quite broad, ‘asset-based’, followed by a non-exhaustive list of examples. In these lists, it could be a mere commercial transaction. The conditions of the BIT would be fulfilled, but not the ICSID Convention. This is why one would use UNCITRAL.

Often there is the requirement that the investment must be made in accordance with laws / regulations of the host State. (1) to avoid claims brought for investments that have been acquired through corruption (2) to make sure the investment is legal. c. Ratione personae There must be a (i) Contracting State or agency of a State. This means that if one has a claim against East-Flanders, one must bring it against the State. Acts that are non-attributable to the State (e.g. non-State entity) do not give rise to ICSID arbitration. (ii) a national of another State (Article 25 (2) a ICSID). The nationality-criterion applies. Dual nationalities are excluded. Essential is that the nationality must be different from the host State. Article 25 (b) includes legal persons. Essentially, the foreign control plays a big role: even if the company is a national of the host State, but there is a foreign control, it could be a different nationality (if this is agreed in the BIT). In BIT’s there is the nationality requirement as well. This is easy for natural persons. However, for legal persons it’s harder: either its incorporation, seat, nationality of individuals controlling the company, … (e.g. Dutch approach is very broad, could be against the bilateral character). d. Procedural law and applicable law The procedural law is only the law of the ICSID and the Arbitration Rules. There are also other rules but then you don’t benefit from the automatic enforcement (additional facility rules) The applicable law is the choice of the parties or Article 42 ICSID. It depends on the type of dispute submitted. If its contract – based, usually it will be municipal law and international law. Treaty-based there will be international law and sometimes also municipal law. e. The award The award is final and binding inter partes (Article 52 and 53) but there is a complete internal system of annulment, coupled with automatic enforcement (Article 54). Awards are to be enforced ‘like domestic judgments’. All you can do is check if its authentic. It can not be reviewed. If there is no compliance with awards, diplomatic protection revives. Even if you comply with an award, immunity must be upheld (Article 55). In non-ICSID arbitration one needs to rely on the NY Convention. Article V provides in this respect that one can refuse the enforcement due to the public policy. One is obliged to implement the award in good faith. However, there is an internal annulment procedure (Article 52 ICSID (1)). The grounds are similar to the NY Convention. This ad hoc committee who review it, act as a proper arbitral tribunal. Manifest excess of powers is the most widely used ground. However wrongly applying the law, does not amount to a manifest excess of powers. A failure to apply the law conform the Treaty is a manifest excess of powers.

What is the link between necessity defences under customary international law and the treaty based necessity defences? If there are different definitions, and one is not used, this leads to the failure to apply the law (namely customary international law). A complete nullification of the award is not usual. C. Consequences of the public international character of international treaty arbitration In principle, not much differs, with a few exceptions. (i) qualification of arbitrators in treaties include knowledge of international investment law or public international law. The vast majority of the treaty arbitrations are fully transparent: everything is made public. It’s very easy to know the previous decisions in which the arbitrator has participated as counsel or arbitrator (impartiality/independence). The standards are relatively similar, such as the conflicts of interests. (ii) Transparency and public access to investment treaty arbitration (through amicus curiae briefs): NGO’s should be able to submit briefs, if they can bring an argument different from the parties to the dispute. In many cases, there is access to the proceedings. (iii) Damages. In general international law has three rules on damages: property should be restituted, alternatively compensated. If this is not possible, satisfaction should be given. At first, compensation was the rule: today restitution is the big idea. Most of the times, the arbitral tribunals give the choice to the State.

PART X HOT TOPICS IN INTERNATIONAL ARBITRATION A. Investment arbitration (i) In TTIP, the investment mechanism would be judged on by special Courts of state judges. Having a private way of dealing with conflicts with States is because of the fact no one would invest in that State otherwise. If this private mechanism wasn’t there, one would have to deal with corrupt judges, … (ii) The community of arbitrators is very small in investment arbitration. B. Arbitration (i) Will arbitration one day replace Courts? Majority thinks not. Courts resolve most disputes. (ii) Is arbitration / mediation better than Courts? Arbitration is not the best way. Neither is mediation. Courts aren’t either. The best is: choice. Case by case, it must be assessed which conflict resolution system is best for that case. Should a combination be necessary? Combinations are to be distrusted. First of all, three mediators are a bit much. However, there are no definitive answers: it depends on the facts of the case, whether arbitration and mediation could be combined and how the proceedings should be going. (iii) Advantages of arbitration? Confidentiality (but not always, depends on the institution!); evidence (e.g. Belgium: exclusions, except public policy, UK not possible); expertise (in the subject matter/arbitration process), in international context neutrality, party autonomy, witnesses (common law: general rule to have recourse to witnesses; civil law: not the case; arbitration: in between, exchange of submissions, no discovery, spontaneous production of evidence and written statements of the witnesses, with a possibility to cross-examine). (iv) Main fields in which arbitration is used: business contracts, sales, consultancy, post M&A disputes, construction contracts, … (v) Places. Choosing a seat is choosing a legal location of the award (but not of the hearings, ...). There might be psychological expectations of the parties. NY Convention must be ratified. How is the lex arbitri? What is the situation of the Courts? C. Arbitrators (i) How does one become an arbitrator? Reputation, networking, expertise in the subject matter. You just go to the arena. Go to the colloquia, conferences, … (ii) Qualities of an arbitrator. Independence, language skills, good listener, empathy, social skills, management of emotions, don’t be afraid of your shadow, be sure of yourself.

(iii) Place of women. More and more women are coming. (iv) double hat. Is it possible to be arbitrator and counsel? Yes.