EUROPEAN & INT’L COMMERCIAL LAW

1. EUROPEAN & INT’L COMMERCIAL LAW 30 September 2009

2. Overview of today’s lecture What is arbitration? 3 Litigation vs. arbitration – terminology etc. 4 Basicconcepts in arbitration5 Basicrules in international arbitration 8 UNCITRAL MAL: selected provisions 9 Arbitrationrules11 Enforcement12

3. What is arbitration? Arbitration is a business of old, white men. Arbitration is a means of solving disputes in a binding manner without going to court through the use of privately appointed “judges”

4. Litigation vs. arbitration – terminology etc. • Litigation • Arbitration • Judgment • Judge • Plaintiff • Defendant • Lawyers stand • Award • Arbitrator • Claimant • Respondent • Lawyers sit =

5. Basicconcepts in arbitration • Extremely popular in international commercial dispute resolution • Why do commercial parties arbitrate? • Confidential • Fast (one stop shop) • They control the process • Forum is independent, including independent of national interests • Much more enforceable around the world • Not because it’s cheap!

6. Basicconcepts in arbitration – cont’d • When parties have agreed on arbitration, ordinary courts have no jurisdiction • No judicial review of the merits of the arbitral award • Arbitral awards are enforceable – very much so • Why are awards rendered in a hotel room more enforceable around the world than judgments delivered in courts of law? • Because the parties agreed so.

7. Basicconcepts in arbitration – cont’d • Ad hoc arbitration vs. institutional arbitration • One or more arbitrators • Appointment of arbitrator(s) • Ad hoc • Institutional

8. Basic rules in int’l arbitration • Lexarbitri • The legal rules which govern the arbitral proceedings • Usually the arbitration legislation of the country where the arbitration takes place – “lex loci arbitri” • Rules on various aspects, including assistance of the national courts in the arbitration process • UNCITRAL MAL

9. UNCITRAL MAL - Selected provisions • Art. 18 – equality (sanctioned in art. 34 (2) (a) (iv)) • Art. 10 – number of arbitrators (3 failing contrary agreement) • Art. 11 – appointment of arbitrators (3 arbitrators: Each party appoints 1, the party-appointed arbitrators appoint the chairman) • If the parties or arbitrators do not appoint arbitrators as provided, the national courts are authorised to assist in appointing the arbitrator • Art. 28 – applicable substantive law • Art. 28(1) – parties may choose the applicable law, including lexmercatoria(not very common) • Art 28(2) – failing party choice, the arbitrators choose the applicable (national) law by use of the choice-of-law rules which they deem appropriate

10. UNCITRAL MAL - Selected provisions – cont’d • Art. 16 – competence of the arbitral tribunal • Kompetenz-kompetenz • Principle of severability • Art. 17 – interim measures • Two types: injunctions and attachments • Interim measures ordered by the Tribunal • Interim measures ordered by the courts • Enforcement

11. Arbitrationrules • Procedural rules governing the arbitration • Not to be confused with the lexarbitri • Ad hoc arbitration: There might not be any rules (the arbitrators decide on procedural issues) • UNCITRAL Rules (do not confuse with the UNCITRAL MAL!) • Institutional arbitration: The institutions publish rules • Example: http://www.iccwbo.org/court/arbitration/id4199/index.html

12. Enforcement • This lecture: Pre-award enforcement • Enforcement of arbitral agreement • Formation • Interpretation • Validity • Law governing validity: • Law “chosen” by the parties? • Putative law? • LexSitus? • Law of the party alleging invalidity?

13. Enforcement – cont’d • New York Convention on the recognition and enforcement of foreign arbitral awards • Selected provisions: • Art II: “In writing”-requirement • Minimum standard? • E-mails? • On-line acceptances?