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 methodNon-judicial methodADR (Alternative dispute resolution)Arbitration as an independent dispute resolution
3 Classification of the Disputes --by subject-matter Sale of goodsSale of servicesInvestment disputes:both foreign direct and indirect disputesIntellectual property disputes
4 Classification of Disputes --by parties Between different statesBetween state and nationals of other statesBetween nationals of different statesWTO 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 DSConvention on the Settlement of Investment Disputes between States and Nationals of Other States
7 ICSID JurisdictionThe 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:litigationNon-judicial methodAlternative Dispute Resolution (ADR)Litigation in national court, various barriers: language, culture, legal systemWhether ADR covers arbitration?
9 Characteristics of ADR Alternative by the parties’ consentLegal status of the resolutionApplication of ADR
10 Expression of ADR Negotiation Conciliation or mediation Good offices Mini-trialJoint conciliation
11 Application of ADR Applied independently Combination with litigation and arbitration
12 International Litigation JurisdictionApplicable lawRecognition 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 conventionsPrinciple rules on the jurisdiction v. national procedure lawDifficult enforcement of foreign judgment due to lack of appropriate international conventionMost 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 conventionsDomestic law & reciprocity
17 Arbitration Voluntary method for the settlement of disputes Based on the arbitration agreementBinding force for the awardEnforcement mechanism based on the New York Convention
18 Sources of International Arbitration Law Domestic arbitration lawInternational legislation: bilateral judicial cooperation treaty, international convention, model law
19 New York ConventionRecognition 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 1927World Bank Convention of 1965UNCITRAL Model Law on Int’l Commercial Arbitration of 1985UNCITRAL Arbitration Rules
21 Principles of International Commercial Arbitration Parties’ autonomyIndependent and impartial settlement disputes by the arbitral tribunalNational courts’ supervision on the arbitration
22 China’s Int’l Arbitration Law Domestic arbitration lawBilateral judicial cooperation treaty and international convention to which China is a party
23 Arbitration Practices Comparative studies on international commercial arbitration practicesInstitutional v. ad hocJudicial review in different countries
24 Main Topics Arbitration institutions International arbitration agreementArbitration tribunalArbitration proceduresThe law governing the arbitrationAward and remediesCourt 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.