International Commercial Arbitration

The arbitral tribunalUniversity of Oslo

Giuditta Cordero-Moss, Ph.D., Dr.JurisProfessor, Oslo University

Ad hoc arbitration

• Parties agree on arbitration• They specify that the arbitration shall be

ad hoc, or• They do not say anything

Legal framework

• Arbitration agreement• (Arbitration rules)• Arbitration law• Conventions• Soft law

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

Arbitration law, conventions, soft law

• Fully applicable to ad hoc arbitration

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

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.aspx

– SCC http://www.sccinstitute.com/filearchive/3/35894/K4_Skiljedomsregler%20eng%20ARB%20TRYCK_1_100927.pdf

– Swiss Rules https://www.sccam.org/sa/download/SRIA_english.pdf

– …

Legal framework

• Arbitration agreement• Arbitration rules• Arbitration law• Conventions• Soft law

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

Arbitration law, conventions, soft law

• Fully applicable to institutional arbitration

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)

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

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)

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

Composition of the arbitral tribunal

• Arbitration agreement• Arbitration rules• Arbitration law

Number of arbitrators

• Three arbitrators• Sole arbitrator

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

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

Appointmenet of arbitral tribunal

• Arbitration agreement• Arbitration rules• Arbitration law

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

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

Requirements

• Independence and impartiality• Availability• Qualifications

• Challenge