1. INTERNATIONAL ARBITRATION Domenico Di Pietro STUDYING LAW AT ROME TRE SECOND SEMESTER 2009/2010 12 October 2009

2. WHERE? LEGAL CONSIDERATIONS The place (or seat) of arbitration is one of the necessary elements of arbitration and one of the most important aspects to be considered. It determines the “nationality” of the award It is not necessarily the place where the tribunal holds the hearings. It is the place where the arbitral process is legally rooted The place of arbitration is important because the local law affects the arbitral process and the local courts may affect the award. The law of the place of arbitration makes the predominant part of the so-called lex arbitri The lex arbitri is composed of the rules of law governing the nationality, legality, structure and procedure of the arbitration. It comprises: the specific agreement of the parties the arbitration rules expressly or impliedly incorporated by the parties; and national and international procedural rules adopted by the parties and by the arbitrators to govern the arbitration and most importantly the mandatory law of the place of arbitration

3. WHERE? PRACTICAL CONSIDERATIONS What are the grounds for annulment of arbitral awards rendered in that country? What is the actual attitude of local courts towards arbitration? Is it a “New York Convention country”? Is one of the parties the Government of that country?

4. THE ARBITRATION AGREEMENT: PECULIARITIES Separability/Autonomy - The arbitration clause is autonomous from the rest of of the contract - Extent of application Competence/Competence - The tribunal’s power to rule on its own jurisdiction The Law applicable to arbitration agreements - Contract - Forum

5. SEPARABILITY MODEL LAW Article 16. Competence of arbitral tribunal to rule on its jurisdiction (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

6. SEPARABILITY Section 7 EAA 1996 “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”

7. SEPARABILITY CIETAC ARBITRATION RULES Article 5(4) An arbitration clause contained in a contracts shall be treated as a clause independent and separate from all other clauses of the contract […] The validity of the arbitration clause shall not be affected by any modification, rescission termination, transfer, expiry, invalidity ineffectiveness, revocation or non-existence of the contract. Article 6(1) The CIETAC shall have the power to determine the existence and validity of an arbitration agreement and its jurisdiction over an arbitration case. The CIETAC may if necessary delegate such power to the arbitral tribunal

8. ARBITRATION CLAUSES EVERYWHERE

9. HARMONISED LEGISLATION The New York Convention 1958 The UNCITRAL Model Law 1985

10. THE NEW YORK CONVENTION 1958 Actual scope of application Article II Controversial provision Maximum Standard

11. ARTICLE II 1. Each Contracting State shall recognise 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. The term "agreement in writing" shall include an arbitral clause in a contact or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams. 3. 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

12. ANALYSIS An agreement in writing: - regarding a defined legal relationship - to arbitrate existing and/or future disputes - commercial and non commercial The definition of writing under Article II(2) - arbitration clause (in a contract) or arbitration agreement which is either: (i) signed by the parties or (ii) contained in an exchange of letters or telegrams The aim of the Convention is to establish awareness

13. ARBITRATION AGREEMENTS AND THE MODEL LAW Article 7. Definition and form of arbitration agreement (1) "Arbitration agreement" is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.

14. MORE FAVOURABLE DOMESTIC PROVISIONS Section 5 EAA 1996 (2) There is an agreement in writing- (a) if the agreement is made in writing (whether or not it is signed by the parties), (b) if the agreement is made by exchange of communications in writing, or (c) if the agreement is evidenced in writing. (3) Where parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing. (4) An agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement. (5) An exchange of written submissions in arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and not denied by the other party in his response constitutes as between those parties an agreement in writing to the effect alleged. (6) References in this Part to anything being written or in writing include its being recorded by any means

15. MORE FAVOURABLE DOMESTIC PROVISIONS II CIETAC ARBITRATION RULES ARTICLE 5(3) The arbitration agreement shall be in writing. An arbitration agreement is in writing if it is contained in a tangible form of a document such as a contract, letter, telegram, telex, facsimile or email […]

16. COMPETENCE/COMPETENCE UNCITRAL MODEL LAW Article 16 - Competence of arbitral tribunal to rule on its jurisdiction 1.The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. […]

17. THE LAW APPLICABLE TO ARBITRATION AGREEMENTS CHOICE CONTRACT? LEX FORI?