PRACTICE OF INTERNATIONAL ARBITRATION JULIUSMAXIMILIANSUNIVERSITT WRZBURG 15 OCTOBER

PRACTICE OF INTERNATIONAL ARBITRATION JULIUS-MAXIMILIANS-UNIVERSITÄT WÜRZBURG 15 OCTOBER 2016 Friederike Schäfer, Counsel, ICC Court of International Arbitration

INTRODUCTION ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

2015 STATISTICS STATISTICAL REPORT - ICA BULLETIN • 801 new cases including 10 applications for Emergency Measures • 56 different countries as place of arbitration • 2 283 parties from 133 different countries • 1 531 ongoing cases • 498 Arbitral Awards rendered (Final, Partial/ Interim, by Consent) • 13, 1% of the cases involved a state or state entity • Amount in dispute < 1 million US $ in 23. 2 % of cases 1 st case filed under the 1998 Rules: case number 9 827 1 st case filed under the 2012 Rules: case number 18 744 Today > 21 000 cases ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

THE SECRETARIAT Documentation and Research Centre President of the Court Publications (Bulletin ICA, Incoterms, UCP…) Commission on Arbitration (revision of rules, studies & reports) Training & Conferences Alexis Mourre International Centre for ADR & Expertise, Dispute Boards, Docdex Secretary General Andrea Carlevaris Deputy Secretary General Managing Counsel Jose Ricardo Feris Alexander Fessas SICANA (New York) R. Digon RD French MENA Latin America Common Wealth Swiss Italian Eastern Europe Diamana Diawara DDA Ana Serra e Mourra ASM Tunde Ogunseitan TO Gabriele Ruscalla GR Maria Hauser. Morel MHM ICC COURT OF OF ARBITRATION ® ICC INTERNATIONAL COURT ICC CENTRE FOR ADR ICC INTERNATIONAL CENTRE German Frederieke Schäfer FS Eastern Mediterranean Asia (HK) Ziva Filipic ZF Pui Ki Ta PTA

DIVERSITY OF ICC ARBITRATION: PARTIES Origin of Parties 2015 North & West Europe Central & Eastern Europe North Africa 12% 2% 10% 32% 17% 12% 3%2% 10% ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Sub-Saharan Africa North America Latin America & Caribbean Central & West Asia South & East Asia Oceania Number of parties in 2005 1422 parties 117 countries Number of parties in 2015 2283 parties 133 countries

DIVERSITY OF ICC ARBITRATION: ARBITRATORS Origin of Arbitrators 2015 North & West Europe Central & East Europe North Africa 4% 4% 5% 14% 13% 54% 1% 1%5% ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Sub-Saharan Africa North America Latin America & Caribbean Central & West Asia South & East Asia Oceania 2005 948 arbitrators 68 countries 2015 1313 arbitrators 77 countries

CONSTITUTING THE ARBITRAL TRIBUNAL Arbitrators 2015 By parties Direct appointment Upon NC proposal 0, 3% By others By co-arbitrators 9, 7% 12, 6% 18, 7% ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR 59%

GENERAL STATISTICS: AWARDS Number of Awards Approved 600 500 400 300 200 100 0 2006 2009 2011 2012 2013 2014 2015 ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Number of Awards Approved in 2015 498

ARBITRATION AGREEMENT ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

PARTY AUTONOMY • « Party autonomy is the guiding principle in determining the procedure to be followed in an international commercial arbitration. » (Redfern and Hunter on International Arbitration (2015) – Para. 6. 07) • Two-fold: Ø Derogation of national court’s right to rule Ø Determination of procedural rules ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

AUTONOMY TO SUBMIT A DISPUTE TO ARBITRATION ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR 10

ARBITRATION AGREEMENT • Valid arbitral agreement is condition of derogation from jurisdiction of state courts • Requirements of validity – Standard to be applied? – Sources of law • Law of the seat? • Law of state of potential enforcement? • Transnational system of justice? ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

ARBITRATION AGREEMENT • UNCITRAL Model Law on International Commercial Arbitration Article 7. Definition and form of arbitration agreement (As adopted by the Commission at its thirty-ninth session, in 2006) (1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) The arbitration agreement shall be in writing. […] ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

DETERMINATION OF VALIDITY • Requirements of lex arbitri fulfilled? – Agreement – to submit to arbitration – Disputes in respect of a defined legal relationship • Did the parties submit to arbitration? – Interpretation of arbitration agreement – Standard to be applied / law applicable to arbitration agreement Ø Law chosen by the parties Ø Lex contractus? Ø Lex arbitri? – Does a general presumption in favor of arbitration exist? • Doctrine of separability ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

WHO DECIDES ON JURISDICTION ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR 14

EXAMINATION OF JURISDICTION Constitution of the arbitral tribunal § 1032 Abs. 2 • Decision by national court ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR Partial Award on jurisdiction § 1040 Abs. 1 • Competence arbitral tribunal § 1040 Abs. 3 i. Vm § 1059 • Application for annulment

DECISION ON JURISDICTION - KOMPETENZ-KOMPETENZ • The arbitral tribunal’s competence to decide on its own jurisdiction = Kompetenz-Kompetenz • Art 16 UNCITRAL Model Law on International Commercial Arbitration The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause. ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

PARTIES’ AUTONOMY TO FRAME PROCEEDINGS ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR 17

HIERARCHY OF NORMS (§ 1042 ZPO) Abs. 1, 3 • Lex arbitri Abs. 3 Alt. 1 • Parties’ agreement Abs. 4 • Nonmandatory rules of lex arbitri Abs. 4 ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR • Discretionary decisions of arbitral tribunal

HIERARCHY OF NORMS REGARDING PROCEDURE (§ 1042 ZPO) • Mandatory provisions of lex arbitri Abs. 1, 3 Abs. 3 Alt. 1 Arbitration rules chosen by the partiesn in their agreement Discretionary decisions of arbitral tribunal ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR • OLG Frankfurt a. M, 17. 2. 2011, 26 SCH 13/10

EXCURSUS: NEW YORK CONVENTION • Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the "New York Convention") • Where to locate in hierarchy of norms? • Not applicable to procedure • Not applicable in setting aside proceedings • BUT - Enforceability of an award is ultimate aim of proceedings - In general, the obligation of the arbitrator/s is to render an enforceable award ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

ELEMENTS OF AN ARBITRATION AGREEMENT ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR 21

ELEMENTS OF AN ARBITRATION AGREEMENT § the seat of the arbitration § the institutional or other rules applicable to the arbitration § number and method of appointment of the arbitrators § the language of the arbitration § (the law applicable to the merits of the parties’ dispute) § (the law applicable to the arbitration agreement) § (participation of multiple parties) § (other procedural provisions, eg on translation, time limits) ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR 22

ARBITRATION AGREEMENT – EXAMPLE 1 „All disputes, arising of the Contract or of its violation termination or invalidity, shall be solved in accordance with provisions of court arbitration of the International arbitration court at Chamber of Commerce of Austria (Vienna) and also according to the orders of the international Chamber of Commerce and Industry in Paris. Arbitral decision of this court shall be final for each party and shall be executed. Place of proceedings shall be Austria, Vienna. Language of arbitration shall be English. ” . ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

ARBITRATION AGREEMENT – EXAMPLE 2 “ 1. In the event the Parties are unable to resolve any dispute: a) by amicable negotiation, pursuant to Article 23. 1 or b) by referral to the Dispute Adjudication Expert, pursuant to Art. 23. 2, such dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules of Arbitration. The arbitrator shall also settle who shall bear the costs of the proceedings, including he legal costs of the Parties. 2. The arbitration proceedings shall take place in Stockholm, unless otherwise agreed and be conducted in the English language, unless otherwise agreed. 3. The Owner and the Supplier shall both give effect forthwith to every decision and shall comply with the award. ” ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

EXCURSUS: ROLE OF INSTITUTION IN THE CONTEXT OF JURISDICTION Role of the institution Ø Notification of the Request for Arbitration Ø pathological clauses – how to deal with it? Ø Clarification / Determination of questions regarding the interpretation of the arbitration agreement Ø Place of arbitration Ø Number of arbitrators Ø Language? Ø Decision on jurisdiction? ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR

PRIMA FACIE JURISDICTION (ART. 6) When: i. A party’s answer is missing, or ii. A party raises jurisdictional objections: (1) validity, scope or existence of arb. Agreement (2) as to whether all claims made in the arbitration can be determined together in a single arbitration) Art. 6(3): SG can decide to refer the matter the Court. Art. 6(4): The arbitration shall proceed if the Court is prima facie satisfied that an arb. agreement under the ICC Rules may exist. Test: i. iii. iv. Existence of an arbitration clause (existence, validity or scope of the clause) Reference to the ICC Rules Contract signed by the parties A uniform transaction (several parties) ICC OF ARBITRATION ® ICC INTERNATIONAL COURT OF ICC CENTRE FOR ADR ICC INTERNATIONAL CENTRE

THANK YOU FOR YOUR ATTENTION! Friederike Schäfer Counsel ICC International Court of Arbitration 33 -43, Avenue du President Wilson 75116 Paris France friederike. schaefer@iccwbo. org ICC INTERNATIONAL COURT OF ARBITRATION ® ICC INTERNATIONAL CENTRE FOR ADR