Presentation is loading. Please wait.

Presentation is loading. Please wait.

Chapter 1 Introduction to International Commercial Arbitration Law

Similar presentations

Presentation on theme: "Chapter 1 Introduction to International Commercial Arbitration Law"— Presentation transcript:

1 Chapter 1 Introduction to International Commercial Arbitration Law
Prof. Zhao Xiuwen

2 Classification of the Methods for the Dispute Resolution
Judicial method Non-judicial method ADR (Alternative dispute resolution) Arbitration as an independent dispute resolution

3 Classification of the Disputes --by subject-matter
Sale of goods Sale of services Investment disputes:both foreign direct and indirect disputes Intellectual property disputes

4 Classification of Disputes --by parties
Between different states Between state and nationals of other states Between nationals of different states WTO DSM, international court of justice:jurisdiction based on the ICJ charter: ICSID DS:based on the convention and arbitration agreement 中美纺织品、中欧纺织品争议

5 WTO DS Disputes between WTO members DSB under WTO Rules
Settlement disputes in accordance with WTO Rules (DSU & Various Agreements)

6 ICSID DS Convention on the Settlement of Investment Disputes between States and Nationals of Other States

7 ICSID Jurisdiction The jurisdiction of the Center shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Center by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Center. When the parties have given their consent, no party may withdraw its consent unilaterally.

8 DS between Nationals of Different States
Judicial method:litigation Non-judicial method Alternative Dispute Resolution (ADR) Litigation in national court, various barriers: language, culture, legal system Whether ADR covers arbitration?

9 Characteristics of ADR
Alternative by the parties’ consent Legal status of the resolution Application of ADR

10 Expression of ADR Negotiation Conciliation or mediation Good offices
Mini-trial Joint conciliation

11 Application of ADR Applied independently
Combination with litigation and arbitration

12 International Litigation
Jurisdiction Applicable law Recognition and enforcement of foreign judgment

13 Jurisdiction Determination
Territorial supremacy(属地优越权) Personal supremacy (属人优越权) Concurrent jurisdiction (并行管辖) BP Case

14 Parallel Litigation Consent jurisdiction: forum shopping
Exclusive jurisdiction

15 Litigation in National Courts
Few conventions Principle rules on the jurisdiction v. national procedure law Difficult enforcement of foreign judgment due to lack of appropriate international convention Most cases are subject to arbitration under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

16 Enforcement of Foreign Judgment
Few international conventions Domestic law & reciprocity

17 Arbitration Voluntary method for the settlement of disputes
Based on the arbitration agreement Binding force for the award Enforcement mechanism based on the New York Convention

18 Sources of International Arbitration Law
Domestic arbitration law International legislation: bilateral judicial cooperation treaty, international convention, model law

19 New York Convention Recognition and enforcement of arbitration agreement ; Recognition and enforcement of foreign arbitral awards

20 Other International Documents
European Convention on International Commercial Arbitration; Geneva Conventions of 1923 and 1927 World Bank Convention of 1965 UNCITRAL Model Law on Int’l Commercial Arbitration of 1985 UNCITRAL Arbitration Rules

21 Principles of International Commercial Arbitration
Parties’ autonomy Independent and impartial settlement disputes by the arbitral tribunal National courts’ supervision on the arbitration

22 China’s Int’l Arbitration Law
Domestic arbitration law Bilateral judicial cooperation treaty and international convention to which China is a party

23 Arbitration Practices
Comparative studies on international commercial arbitration practices Institutional v. ad hoc Judicial review in different countries

24 Main Topics Arbitration institutions
International arbitration agreement Arbitration tribunal Arbitration procedures The law governing the arbitration Award and remedies Court supervision

25 German Zueblin v. Wuxi Woco
22/12/00, two-page Agreement b/t the parties to construct a factory for Woco in Wuxi, Jiangsu Province, China; FIDIC Green Book General Terms and Conditions as Appendix incorporated by reference in the Agreement; Appendix: Arbitration: 15.3 ICC Rules, Shanghai shall apply.

26 Litigation in the Court
10/10/02,Woco sued Zueblin in the Wuxi District Court over the Construction Contract then changed to torts claims; Zueblin challenged the jurisdiction of the Court based on the Arbitration Clause; The District Ct. decided its jurisdiction over the case, which was confirmed by the Wuxi Intermediate Ct. on 20/02/03.

27 Zueblin with ICC Arbitration
23/ 04/03, Zublin applied to ICC for arbitrating the dispute with Woco. 10/11/03, ICC tribunal rendered preliminary award to confirm its jurisdiction under the applied ICC Rules. 30/03/04, final award was made in Shanghai in favor of Zueblin.

28 Court’ Decision on the Validity of the Arbitration Agreement
29/04/03, Zueblin applied to Wuxi district Ct. for confirmation of the validity of the arbitration agreement. 02/09/04, Court denied the validity of the arbitration clause after the Reply from the Supreme Court on 8 July 2004 through the Report system.

29 Chinese Court’s Decision on Enforcement of the ICC Award
30/08/04, Zueblin applied to the Wuxi Intermediate People’s Court for enforcement of the ICC Award. 19/07/06, Wuxi Intermediate People’s Court decided to refuse enforcement of the ICC Award due to invalid arbitration agreement under New York Convention.

30 References 《国际商事仲裁法》,21世纪国际法学系列教材,人大版,2004; 《国际商事仲裁案例解析》,人大版,2005;

Download ppt "Chapter 1 Introduction to International Commercial Arbitration Law"

Similar presentations

Ads by Google