International Commercial Arbitration

1.

International
Commercial Arbitration

2.

Introduction
International commercial arbitration is a means of resolving disputes arising
under international commercial contracts. It is used as an alternative to
litigation and is controlled primarily by the terms previously agreed upon by the
contracting parties, rather than by national legislation or procedural
rules. Most contracts contain a dispute resolution clause specifying that any
disputes arising under the contract will be handled through arbitration rather
than litigation. The parties can specify the forum, procedural rules, and
governing law at the time of the contract.
Arbitration can be either “institutional” or “ ad hoc .”

3.

Model Law on International Commercial Arbitration
Under Article 1(3) arbitration is international if:
-the parties to the arbitration have their places of business in different states at
the time of conclusion of the arbitration agreement
-or one of the following places is situated outside the State in which the parties
have their place of business:
–or the parties have expressly agreed that the subject matter of the arbitration
agreement relates to more than one country.

4.

Under Articles 3:4:5
Unless the parties have agreed otherwise, any written communication (excluding those
relating to court proceedings) is deemed to have been received if it is delivered to the
addressee personally or it is delivered at his place of business, habitual residence or
mailing address.
The communication is deemed to have been received on the day it is delivered.
A party waives his right to object to non-compliance with this Model law

5.

Arbitration agreement
Under Article 7 an arbitration agreement:
shall be in writing (in a document signed by the parties, or in an exchange of
letters, or other means of telecommunication which provide a record of the
agreement in which the existence of an agreement is alleged by one party
and not denied by the other)
Under Article 9 it is declared that it is not incompatible with an arbitration
agreement for a party to request, before or during the arbitral proceedings,
from a court an interim measure of protection and for court to grant such a
measure

6.

Arbitral tribunal
In respect of arbitrators:
the number shall be determined by the parties (Article 10(1))
if the parties do not determine the number, there shall be three arbitrators
(Article 10(2))
no one shall be precluded from being an arbitrator due to nationality, unless the
parties agree otherwise (Article 11(1))
the parties are free to agree on a procedure of appointing the arbitrator or
arbitrators (Article 11(2))
if the parties do not agree the procedure, each party shall appoint one arbitrator
and the two arbitrators thus appointed shall appoint the third one. If a party fails
to appoint an arbitrator within 30 days of a request by the other party to do so, or
the two appointed arbitrators fail to appoint a third, the appointment shall be
made by the relevant court or authority, on request of one of the parties (Article
11(3)(a))
the relevant court or authority is the one specified by each particular state when
enacting the Model Law Article 6

7.

Awards
The arbitral tribunal shall make the arbitral decision:
by a majority decision (Article 29)
in accordance with whichever rules of law are chosen by the parties (Article
28(1))
if the parties have not agreed on the applicable rules of law, the arbitral
tribunal shall apply the law determined by the conflicts of laws rules which it
considers applicable (Article 28(2))

8.

Recourse
Under Article 34 an arbitral award may only be set aside by the court designated in
the agreement if:
the party making the application for it to be set aside proves:
– that the arbitration agreement was not valid
– they were not given proper notice of the appointment of an arbitrator and were
unable to present their case
– the award deals with a dispute falling outside of the scope of the arbitration
agreement
– the tribunal or its procedure was not in accordance with the model law, or
the court finds that the subject matter of the dispute was not capable of
settlement by arbitration under the law of the land, or that the award is contrary
to public policy.