INTERNATIONAL ARBITRATION Domenico Di Pietro

1. STUDYING LAW AT ROME TREFALL SEMESTER INTERNATIONAL ARBITRATIONDomenico Di Pietro 7-8 October 2010

2. WHICH ARBITRATION? • Ad hoc arbitration (or non-administered) - Popular with sovereign States - law of the place of arbitration fills the gaps) or - UNCITRAL Rules - pros and cons (not allowed in China) • Institutional (or administered) - (ICC, LCIA, CIETAC, HKIAC, SIAC, AAA/ICDR, Stockholm, Milan etc) - costs (hourly basis vs ad valorem) - default provisions (arbitrators, place, powers etc) - pros and cons

3. WHAT TO LOOK FOR IN THE RULES • Costs *Fees & Allocation (advance, counterclaims), Consequences for failure to pay, Transparencyof costs • Formation of Tribunal *(Actual) Appointing authority, Number of arbitrators *Duty of disclosure *Time limits/extension of Time *Multiparty arbitrations • Powers of the Tribunal *Interim measures *applicable law *Evidence • The Award *Time limits, Scrutiny, Waiver of right to appeal

4. HARMONISATION AND INTERNATIONAL INSTRUMENTS • International Conventions (binding) * The New York Convention 1958 * The Washington (ICSID) Convention 1965 • Other International Instruments (non-binding) * UNCITRAL Model Law 1985 * UNCITRAL Arbitration Rules 1976 * UNCITRAL Notes on Organising Arbitral Proceedings * IBA Rules on the Taking of Evidence

5. ESCALATION CLAUSES LCIA MEDIATION AND ARBITRATION In the event of a dispute arising out of or relating to this contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation in accordance with the LCIA Mediation Procedure, which Procedure is deemed to be incorporated by reference into this clause. If the dispute is not settled by mediation within [............] days of the appointment of the mediator, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.

6. ARBITRABILITY • What is arbitrable? • Status disputes? • Family disputes? • Antitrust disputes? • Trademark and intellectual property disputes? • Fraud and illegality?

7. WHERE? LEGAL CONSIDERATIONS • The place (or seat) of arbitration is one of the necessary elements of arbitration and one of the most important aspects to be considered. It determines the “nationality” of the award • It is not necessarily the place where the tribunal holds the hearings. It is the place where the arbitral process is legally rooted • The place of arbitration is important because the local law affects the arbitral process and the local courts may affect the award. • The law of the place of arbitration makes the predominant part of the so-called lex arbitri • The lex arbitri is composed of the rules of law governing the nationality, legality, structure and procedure of the arbitration. It comprises: • the specific agreement of the parties • the arbitration rules expressly or impliedly incorporated by the parties; and • national and international procedural rules adopted by the parties and by the arbitrators to govern the arbitration and most importantly • the mandatory law of the place of arbitration

8. WHERE? PRACTICAL CONSIDERATIONS • What are the grounds for annulment of arbitral awards rendered in that country? • What is the actual attitude of local courts towards arbitration? • Is it a “New York Convention country”? • Is one of the parties the Government of that country?

9. THE RELATIONSHIP BETWEEN COURTS AND ARBITRAL TRIBUNALS • COMPETITION? • EXCLUSION? • Article 9 Model Law • SUPPORT? • INTERACTION?