International Business Law Sciences Po Paris Spring 2017

1. International Business LawSciences Po ParisSpring 2017 The arbitral tribunal Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

2. Ad hoc arbitration • Parties agree on arbitration • They specify that the arbitration shall be ad hoc, or • They do not say anything

3. Legal framework • Arbitration agreement • (Arbitration rules) • Arbitration law • Conventions • Soft law

4. Arbitration rules • UNCITRAL Arbitration Rules, if the parties have chosen them http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html • Any rules that the parties may have agreed on • Any rules that the tribunal may determine appropriate

5. Arbitration law, conventions, soft law • Fully applicable to ad hoc arbitration

6. Distinguishing feature • Need for appointing authority • UNCITRAL Rules (art. 6): designated by the parties or by the Secretary – General of the PCA • UNCITRAL Model Law (art.11): court e.g.Norwegian Arbitration Act §§6, 13: court that would have had jurisdiction or court of first instance in Oslo • Fragile if no applicable rules were designated

7. Institutional arbitration • Parties agree on arbitration under the rules of a specific arbitral institution • ICC http://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/2012_Arbitration%20and%20ADR%20Rules%20ENGLISH.pdf • LCIA http://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2014.aspx • SCC http://www.sccinstitute.com/filearchive/3/35894/K4_Skiljedomsregler%20eng%20ARB%20TRYCK_1_100927.pdf • Swiss Rules https://www.swissarbitration.org/sa/download/SRIA_english_2012.pdf • …

8. Legal framework • Arbitration agreement • Arbitration rules • Arbitration law • Conventions • Soft law

9. Arbitration rules • By choosing the institution, its rules automatically become applicable • The parties may also agree to have the proceeding administered by an institution under the UNCITRAL Rules

10. Arbitration law, conventions, soft law • Fully applicable to institutional arbitration

11. Distinguishing feature • Institution acts as appointing authority • Institution acts as a secretariat in respect of costs • Depending on the rules, it may be complex and time consuming (terms of reference, court of arbitration)

12. Seat of arbitration • Proceedings in the territory are subject to that country’s arbitration law, e.g. UNCITRAL Model Law art 1(2) • Arbitration law is procedural, not substantive

13. Seat v. hearings • Hearings do not have to be held at the seat • Model Law art 20(2), vogl §22 • UNCITRAL Arbitration rules art 18(2) • ICC Arbitration rules art 18(2) • SCC Arbitration rules art 20(2)

14. 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

15. Composition of the arbitral tribunal • Arbitration agreement • Arbitration rules • Arbitration law

16. Number of arbitrators • Three arbitrators • Sole arbitrator

17. Arbitration rules • If parties have not agreed, • UNCITRAL Rules • Three arbitrators unless • Appointing authority deems sole appropriate, • One party requests, and • The other party does not object • SCC • Three arbitrators unless • Arbitration Institute deems sole appropriate • ICC • Sole arbitrator unless • Court of arbitration deems three appropriate

18. Arbitration law • If parties have not agreed and there are no arbitration rules, • UNCITRAL Model Law art. 10(2), vogl § 12: • Three arbitrators • English Arbitration Act sec. 15(3): • Sole arbitrator

19. Appointmenet of arbitral tribunal • Arbitration agreement • Arbitration rules • Arbitration law

20. Arbitration rules • If parties have not agreed, • UNCITRAL Rules art.8, 9: • Sole: Parties’ agreement • Three: Each party appoints one, two arbitrators appoint chairman • Failure: Appointing authority with list method • Failure: Appointing authority • SCC art 13 • Sole: Parties’ agreement • Three: Each party appoints one, Arbitration Institute appoints chairman • Failure: Arbitration Institute • ICC • Sole: Parties nominate • Three: Each party nominates one, Court of Arbitration appoints chairman • Failure: Court of Arbitration

21. Arbitration law • If parties have not agreed and there are no arbitration rules, • UNCITRAL Model Law art 11, vogl § 13 • Sole: Parties’ agreement • Three: Each party appoints one, two arbitrators appoint chairman • Failure: Court • English Arbitration Act sec 16-18 • Sole: Parties’ agreement • Three: Each party appoints one, two arbitrators appoint chairman • Failure: Appointed arbitrator to be treated as sole, or Court

22. Requirements • Independence and impartiality • Availability • Qualifications • Challenge