ARBITRATION Vis International Commercial Arbitration Moot

What is Arbitration?  The Agreement  Arbitration is a contractually agreed upon method of dispute resolution  The power to arbitrate originates from the agreement of the parties  This agreement can be reached before or after the dispute arises  Parties can agree upon both  Procedural rules [ICC]  Substantive law [CISG]

What is Arbitration? The Process  Parties can choose Institutional vs. Ad hoc  Arbitration Rules of the Institution and State The Result  The Award  New York Convention  Enforcement

Why Arbitrate? Reasons for Choosing ArbitrationReasons for Not Choosing Arbitration NeutralityInability to join additional parties or claims Enforceability – NY Convention Many nations have signed Lack of predictability/transparency ConfidentialityLack of right to appeal Choice of Arbitrators (expertise of arbitrators) Cost? Choice of procedure (speed and flexibility) Cost?

Issues that Arise in Arbitration: Arbitration Agreements The Vis Moot Arbitration Agreement Art 20: Arbitration: All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be Vindobona, Danubia, and the language of the arbitration will be English. The contract, including this clause, shall be governed by the law of Danubia. Interpretation  Exclusivity of Arbitration  The tribunal vs. the national courts.  Scope of the Agreement  Choice of Law Applicable to the Agreement

Arbitration Agreement Con’t Enforceability  Institutional v. Ad Hoc  UNCITRAL Model Law & Nat’l Arbitration Legislation  Separability Issues  Non-Arbitrability Doctrine

Issues that Arise in Arbitration: During Arbitration Who Chooses the Arbitrators  Parties themselves?  Appointing Authority? Number of Arbitrators Challenge and Replacement of Arbitrators  Institutional Rules  National Courts Provisional Measures  Arbitrators - Institutional Rules  Arbitrators - National Law  National Courts

Issues that Arise in Arbitration: Recognition and Enforcement of an Award New York Convention  Presumption of Validity  (7) Ways to Overcome that Presumption  Agreements vs. Awards Lex Arbitri (UNCITRAL Model Law)  Selection  Set Aside Action

ICC Rules Procedural Rules (ICC)  Introduction  Commencing the Arbitration (Article 4-6)  Multiple Parties, Contracts, Consolidation (Article 7-10)  The Arbitration Tribunal (Article 11-15)  The Arbitration Proceedings (Article 16-29)  More detail depending on the problem

UNCITRAL Model Law Amendments What the Model Law is The Model Law’s Role  Section I – Introductory Rules  Section II – Composition of the arbitral tribunal  Section III – Arbitral proceedings ** highlight what is relevant to the problem  Article 23 - Jurisdiction of the Arbitral Tribunal  Article 27 - Burden of Proof and Witnesses  Section IV – The Award

New York Convention Article II – Recognition of agreements Aritcle III – Recognition of Awards Article V – Exceptions to Enforcement  (1)(a) Invalid agreement  (1)(b) Lack of proper notice  (1)(c) Award deals with issues beyond the scope of arbitration  (1)(d) Composition of arbitration authority, or the procedure was not in accordance with the agreement of the parties.  (2)(a) Subject matter is not capable of settlement by arbitration under the law of the country of enforcement.  (2)(b) Public policy 

Helpful Resources Websites  ICC Rules  and-ADR/Arbitration/Rules-of-arbitration/Download-ICC- Rules-of-Arbitration/ICC-Rules-of-Arbitration-in-several- languages/ and-ADR/Arbitration/Rules-of-arbitration/Download-ICC- Rules-of-Arbitration/ICC-Rules-of-Arbitration-in-several- languages/  UNCITRAL RULES  History/drafting

Research Process- To be a New Presentation Rule Supporting evidence and evidence which explains your position  Cases  Persuasive authority Policy supporting your position

Persuasive Authority What is persuasive authority? Examples of persuasive authority:  IBA Guidelines  Article 8 – Evidentiary hearings  Article 9 – Admissibility and Assessment of Evidence  Other International Arbitral Institutions  CEPANI  AAA  LCIA  Arbitral cases  From ICC  From other international arbitral institutional  Authors

Helpful Resources Books  Redfern and Hunter on International Arbitration, 5 th Edition, by Alan Redfern and Martin Hunter (2009)  Procedural Law in International Arbitration, by Petrochilos Georgios (2004)  Comparative International Commercial Arbitration, by Julian D.M. Lew (2003)  International Commercial Arbitration, Volume I & II, by Gary Born (2009)  International Commercial Arbitration Commentary and Materials, 2d Edition, Gary Born (2001)