arbitration

what article? -modal law -A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

16(1)

how many signatories to ny convention?

161

when did the maldives join?

17 sept 2019

what article is this? -ny convention -Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

3

- - -(1) The tribunal shall— (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.

33

what article is this? -ny convention -To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply: () The duly authenticated original award or a duly certified copy thereof;

4(1)(a)

what article is this? -ny convention -To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply: () The original agreement referred to in article II or a duly certified copy thereof.

4(1b)

what article is this? -ny convention -If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.

4(2)

what article states refusal of enforcement in ny convention?

5

what section is this? -arb act 96 -agreement to be in writing

5

what section is this? -arb act 96 - Definition of arbitration agreement. (1) In this Part an "arbitration agreement" means an agreement to submit to arbitration present or future disputes (whether they are contractual or not). (2) The reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement.

6

what article is this? -modal law -The arbitration agreement shall be in writing.

7(2)

main functions 1.Third party neutral decision maker (arbitrator) 2. 3.Adversarial procedure and freedom of choice 4.A binding and enforceable arbitral award 5.Arbitration agreement (usually)

Private individual(s) appointed by the parties

grounds for challenge 96 act 1.Want of jurisdiction of the arbitrators;(s.67) 2. 3.Error of law in the Award (s.69).

Procedural unfairness in the conduct of proceedings or some defect in the Award; (s.68)

autonomy is given to what clause?

arb agreement clause

refusal of enforcement ny convention 1a.validity 1b. not given proper notice of arb meeting 1c.concerns decission on issues outwith scope of agreement 1d. 1e. decision has not yet become binding

arb was not in accordance with the agreement or law of arb

ny conventions of refusal of enforcement are verbatim where in modal law?

art 34

where is arb agreement defined in modal law?

article 7

what concept is this? -A clause within a contract can be treated as a separate agreement = contract within the contract . even if the contract is void the arb clause survives. Clause will not be uncertain even if the contract is deemed uncertain

autonomy

arbitrators must be?

independent and impartial

what case is this? -refusal of enforcement of arb award -Between ministry of defence of Iran and national military services UK they agreed to sell tanks to Iran, after that the EU and UK imposed sanctions on iran. That no UK person can pay money to an iranian state person, iran wanted to recover the interest for the period of non-payment. Prevented payment by the sanctions - against public policy

iran v uk

courts have limited jurisdiction when the parties have entered into valid arb agreement; 1.courts have jurisdiction to grant interim relief of various kinds to preserve the subject matter of the dispute 2.they have jurisdiction in order to support the arb process where it breaks down eg appoint of arbitrator 3. 4.jurisdiction to enforce an award

jurisdiction in order to ensure a basic standard of justice is upheld

courts have limited jurisdiction when the parties have entered into valid arb agreement; 1.courts have jurisdiction to grant interim relief of various kinds to preserve the subject matter of the dispute 2.they have jurisdiction in order to support the arb process where it breaks down eg appoint of arbitrator 3.jurisdiction in order to ensure a basic standard of justice is upheld 4.

jurisdiction to enforce an award

what is this? -Establishes the international centre for disputes -Where foreigner investor can lodge a claim against the host government where investment is made

washington convention 1965

what case is this? -commercial arb -swedish nuclear power company contested decision to phase out all nuclear power stations from their territory -Of some relevance as bears reference to commercial arbitrations, often same rules applied to businesses. Also similar with enforcement and is against the sovereign state, my not apply if they agree to region of jurisdiction

waterfall v germany

what is ad hoc arb?

without assistance from any institution. Parties may adopt a set of rules for ad hoc arbitration, e.g. the UNCITRAL Rules 2010.

what article is this? -modal law -(1) The parties are free to determine the number of arbitrators. (2) Failing such determination, the number of arbitrators shall be three.

10

What article is this? -modal law -(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties. (2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article. (3) Failing such agreement, (a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specifi ed in article 6; (b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specifi ed in article 6.

11

what section is this? -arb act 96 -Commencement of arbitral proceedings. (1) The parties are free to agree when arbitral proceedings are to be regarded as commenced for the purposes of this Part and for the purposes of the Limitation Acts. (2) If there is no such agreement the following provisions apply. (3) Where the arbitrator is named or designated in the arbitration agreement, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties a notice in writing requiring him or them to submit that matter to the person so named or designated. (4) Where the arbitrator or arbitrators are to be appointed by the parties, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties notice in writing requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator in respect of that matter. (5) Where the arbitrator or arbitrators are to be appointed by a person other than a party to the proceedings, arbitral proceedings are commenced in respect of a matter when one party gives notice in writing to that person requesting him to make the appointment in respect of that matter.

14

what section is this? -arb act 96 -The arbitral tribunal. (1) The parties are free to agree on the number of arbitrators to form the tribunal and whether there is to be a chairman or umpire. (2) Unless otherwise agreed by the parties, an agreement that the number of arbitrators shall be two or any other even number shall be understood as requiring the appointment of an additional arbitrator as chairman of the tribunal. (3) If there is no agreement as to the number of arbitrators, the tribunal shall consist of a sole arbitrator

15

what article? -modal law -The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case

18

what section is this? 1996 act -the object of arb is to obtain their fair resolution of disputes by an impartial tribunal without unneccesary delay or expense

1a

what section is this? 1996 act -the parties should be free to agree how their disputes are resolved, subject only to safeguards as are necessary in the public interest

1b

what section is this? 1996 act -in matters governed by this part the court should not intervene except as provided by this part

1c

what article is this? -ny convention - Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.

2(1)

what article is this? -ny convention -The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams

2(2)

what article is this? -ny convention -The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

2(3)

- -Power of court to remove arbitrator. (1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the following grounds— (a) that circumstances exist that give rise to justifiable doubts as to his impartiality; (b) that he does not possess the qualifications required by the arbitration agreement; (c) that he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so; (d) that he has refused or failed— (i) properly to conduct the proceedings, or (ii) to use all reasonable despatch in conducting the proceedings or making an award, and that substantial injustice has been or will be caused to the applicant.

24

what section is this? -arb act 96 -Whether agreement discharged by death of a party. (1) Unless otherwise agreed by the parties, an arbitration agreement is not discharged by the death of a party and may be enforced by or against the personal representatives of that party. (2) Subsection (1) does not affect the operation of any enactment or rule of law by virtue of which a substantive right or obligation is extinguished by death.

8

what article is this? -modal law -A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his fi rst statement on the substance of the dispute, refer the parties to arbitration unless it fi nds that the agreement is null and void, inoperative or incapable of being performed.

8(1)

what section is this? - arb act 96 -"A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter."

9

main functions 1.Third party neutral decision maker (arbitrator) 2.Private individual(s) appointed by the parties 3.Adversarial procedure and freedom of choice 4. 5.Arbitration agreement (usually)

A binding and enforceable arbitral award

main functions 1.Third party neutral decision maker (arbitrator) 2.Private individual(s) appointed by the parties 3. 4.A binding and enforceable arbitral award 5.Arbitration agreement (usually)

Adversarial procedure and freedom of choice

appeals may be allowed on what grounds in england?

Allows on the law but not on the facts of the case

what does s69 96 allow?

An appeal on a question of law may be brought under s. 69 with the agreement of all of the other parties to the proceedings (including an agreement in advance of the proceedings) or with leave of the court

sources of arb rules 1.contract itself 2.The rules of a body or ad hoc rules 3.

Applicable arbitration law

main functions 1.Third party neutral decision maker (arbitrator) 2.Private individual(s) appointed by the parties 3.Adversarial procedure and freedom of choice 4.A binding and enforceable arbitral award 5.

Arbitration agreement (usually)

grounds for challenge 96 act 1.Want of jurisdiction of the arbitrators;(s.67) 2.Procedural unfairness in the conduct of proceedings or some defect in the Award; (s.68) 3.

Error of law in the Award (s.69).

what is procedural unfairness in arb?

Failing to notify the parties for arb, failed to appear at hearing and have no ability to present any objections - one sided hearing

how does arb agreement turn into litigation?

Happens when the agree to disregard the arb agreement and go to law despite the agreement

appeals may be allowed on what grounds in modal law country?

In modal law country you can not appeal the law on the legal grounds, national courts never review the merits of the case that the tribunal decided, never review the law.

an arb agreement will only occur when?

Only if the consumer agrees to dispute after it has arised, no longer before

96 appeal requirements 1. 2. The question is one of general public importance and the decision of the tribunal is at least open to serious doubt

The decision of the tribunal is obviously wrong

96 appeal requirements 1.The decision of the tribunal is obviously wrong 2.

The question is one of general public importance and the decision of the tribunal is at least open to serious doubt

sources of arb rules 1.contract itself 2. 3.Applicable arbitration law

The rules of a body or ad hoc rules

under article 5 section 2 what grounds may the court refuse enforcement of an arb award? 2a. 2b. contrary to public policy

The subject matter of the difference is not capable of settlement by arbitration under the law of that country = arbitrarily

main functions 1. 2.Private individual(s) appointed by the parties 3.Adversarial procedure and freedom of choice 4.A binding and enforceable arbitral award 5.Arbitration agreement (usually)

Third party neutral decision maker (arbitrator)

grounds for challenge 96 act 1. 2.Procedural unfairness in the conduct of proceedings or some defect in the Award; (s.68) 3.Error of law in the Award (s.69).

Want of jurisdiction of the arbitrators;(s.67)

in order to create an arb agreement there must be?

a legal relationship

what is scottish arb act?

arb act 2010

what is the main governing act?

arb act 96

what case is this? -arbitrator impartiality and independence -Cofely Ltd, the arbitrator acted as adjudicator or arbitrator on a number of occasions over the previous three years, in proceedings where Knowles (the claimant in the arbitration) was a party or provided representation. These matters generated 25% of the arbitrator's income in that period and, in 18 out of 25 of these matters, the arbitrator had found in Knowles' favour. In the circumstances, the court held that there were justifiable doubts about the arbitrator's independence and impartiality.

cofely v bingham

refusal of enforcement ny convention 1a.validity 1b. not given proper notice of arb meeting 1c. 1d. arb was not in accordance with the agreement or law of arb 1e. decision has not yet become binding

concerns decission on issues outwith scope of agreement

sources of arb rules 1. 2.The rules of a body or ad hoc rules 3.Applicable arbitration law

contract itself

under article 5 section 2 what grounds may the court refuse enforcement of an arb award? 2a. The subject matter of the difference is not capable of settlement by arbitration under the law of that country = arbitrarily 2b.

contrary to public policy

courts have limited jurisdiction when the parties have entered into valid arb agreement; 1. 2.they have jurisdiction in order to support the arb process where it breaks down eg appoint of arbitrator 3.jurisdiction in order to ensure a basic standard of justice is upheld 4.jurisdiction to enforce an award

courts have jurisdiction to grant interim relief of various kinds to preserve the subject matter of the dispute

in scotland steading the court for arb agreement is called?

cysting

refusal of enforcement ny convention 1a.validity 1b. not given proper notice of arb meeting 1c.concerns decission on issues outwith scope of agreement 1d. arb was not in accordance with the agreement or law of arb 1e.

decision has not yet become binding

what is an arbitrator meant to observe?

due process

what one duty is placed upon an arbitrator?

duty to act judicially

what does it mean if a clause is inoperative?

expired

what case is this? -separability -The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.

fionas trust v privalov

-what article in ny convention? -effect of arb agreement -The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

ii(3)

who is the most recent signatory of ny convention?

maldives

to arbitrate there must be?

mutual agreement

refusal of enforcement ny convention 1a.validity 1b. 1c.concerns decission on issues outwith scope of agreement 1d. arb was not in accordance with the agreement or law of arb 1e. decision has not yet become binding

not given proper notice of arb meeting

what is this? -Signed by more than 160 states, international treaty. If signatory you can enforce a judgement in their home country

ny convention 1958

what case is this? -investment arb -plain cigarette packaging, not allowed to have logos on them and censored them, asked to send them in plain boxes. Morris believed that it diluted their right to conduct business in Australia and it limited them relying on their trademark. Lodge a claim wanting compensation. Measure that government put in good faith for protection of health. If you want to protect people need to pay cig sellers first.

philip morris v australia

The answer to modal law shows the grounds for challenging an arb award are the same as the grounds for ?

resisting enforcement

where are powers of arb found in 96 act?

s34

-what section is this? -incorporation of separability in 2010 act -(1) An arbitration agreement which forms (or was intended to form) part only of an agreement is to be treated as a distinct agreement. (2) An arbitration agreement is not void, voidable or otherwise unenforceable only because the agreement of which it forms part is void, voidable or otherwise unenforceable. (3) A dispute about the validity of an agreement which includes an arbitration agreement may be arbitrated in accordance with that arbitration agreement. Example of an arbitration clause in a contract (p. 10)

s5

-what section is this? -incorporation of separability in 1996 act -Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement.

s7

Where the arbitrator does not abide by _________________, his decision can be challenged by the courts.

the basic rules of fairness

courts have limited jurisdiction when the parties have entered into valid arb agreement; 1.courts have jurisdiction to grant interim relief of various kinds to preserve the subject matter of the dispute 2. 3.jurisdiction in order to ensure a basic standard of justice is upheld 4.jurisdiction to enforce an award

they have jurisdiction in order to support the arb process where it breaks down eg appoint of arbitrator

what type is this? -United nations commission on international trade law, sits in vienna. Easier for lawyers to help arbitrate as will know a;l the regulations in place.

uncitral modal law

refusal of enforcement ny convention 1a. 1b. not given proper notice of arb meeting 1c.concerns decission on issues outwith scope of agreement 1d. arb was not in accordance with the agreement or law of arb 1e. decision has not yet become binding

validity