International Commercial Arbitration Function and legal framework University

International Commercial Arbitration Function and legal framework University of Oslo Giuditta Cordero-Moss, Ph. D. , Dr. Juris Professor, Oslo University

Arbitration • Private settlement of disputes • Alternative to courts

Two main effects • It excludes national court’s jurisdiction • It results in an enforceable award

Contractual or judicial? • Based on will of the parties • Enjoys judicial recognition

Arbitration v. Courts • • • Neutrality Expertise Confidentiality Finality Enforceability (New York Convention of 1958) • Jurisdiction (New York Convention of 1958) • Costs • • One party’s country General legal background Publicity Appeals • Limited and not harmonised enforceability (Lugano Convention, Brussels I, Hague convention) • Limited and not harmonised regulation of jurisdiction (Lugano Convention, Brussels I, Hague convention) • Length

”International” Arbitration • Character of the dispute (France) • Residence of the Parties (Swiss, Sweden, Belgium) • Character or residence (Italy) • Character, residence or choice (UNCITRAL) • No need to distinguish (Holland, Germany, Norway)

International v. domestic arbitration • Less formal requirements • Less interference by courts

Is International Arbitration International? (”Delocalisation”) • Mostly voluntarily carried out • Venue chosen out of practical convenience • Parties want flexibility • If not voluntarily carried out, courts must intervene • Venue determines arbitration law (e. g. Arbitrators’ injunctive powers), arbitrability, validity of award • Parties want predictability

Legal framework • Arbitration agreement (contractual nature) • Arbitration rules (contractual nature) • Domestic arbitration law (legislative nature, but few mandatory rules) • International conventions (legisltive nature, rules mandatory for the parties) • Soft law (voluntary nature) few

Arbitration agreement • Consent of the parties is the basis for the arbitral tribunal’s powers

Arbitration agreement • • • Type of arbitration Scope [Seat] [Number of arbitrators] [Language] [Procedural rules]

Arbitration rules • Rules of the chosen institution • UNCITRAL Rules if chosen by the parties (in case of ad hoc arbitration) • Rules written by the parties in case of ad hoc arbitration • Rules determined by the arbitral tribunal in the absence of an agreement between the parties

Arbitration rules • • • Constitution of the arbitral tribunal Seat Powers of the arbitral tribunal Procedural rules Costs

Arbitration law • The arbitral procedure is regulated by arbitration law of the place of arbitration

Arbitration law • Part of domestic legal system in each state • To a large extent harmonised thanks to the UNCITRAL Model Law • Model Law is not binding • Even Model Law countries may have different regulation • Always check the local arbitration law!

UNCITRAL Model Law • http: //www. uncitral. org/uncitral/en/uncitral_ texts/arbitration/1985 Model_arbitration. ht ml • Adopted in nearly 70 countries: http: //www. uncitral. org/uncitral/en/uncitral_ texts/arbitration/1985 Model_arbitration_sta tus. html • Autonomous interpretation http: //www. uncitral. org/uncitral/en/case_law. html

Arbitration law • • • Recognition of arbitration agreements Arbitrability Role of courts Constitution of the arbitral tribunal Seat Powers of the arbitral tribunal Procedural rules Costs Mandatory principles on due process Validity of arbitral awards Enforcement of arbitral awards

New York Convention • http: //www. uncitral. org/uncitral/en/uncitral_ texts/arbitration/NYConvention. html • Ratified by 146 countries: http: //www. uncitral. org/uncitral/en/uncitral_ texts/arbitration/NYConvention_status. html

Convention • Recognition of arbitration agreements • Enforcement of arbitral awards

Soft law • IBA Rules on taking of evidence http: //www. ibanet. org/Document/Default. a spx? Document. Uid=68336 C 49 -4106 -46 BFA 1 C 6 -A 8 F 0880444 DC • IBA Rules on conflict of interest http: //www. ibanet. org/Document/Default. a spx? Document. Uid=e 2 fe 5 e 72 -eb 14 -4 bbab 10 d-d 33 dafee 8918

Soft law • Matters within the discretion of arbitral tribunal