Professional Documents
Culture Documents
Double nature :
- On the one hand on a contractual basis (more correctly 2 contracts:
1° between the parties and 2°with the arbitrator(s))
- On the other hand jurisdictional as to:
its procedure (procedure is analogous to judicial procedure), and
its effects:
1° impact: normal judge has lack of jurisdiction;
2° the arbitral decision is a jurisdictional decision (res iudicata) and
not merely a contractually binding decision even if not enforceable
yet (auctoritas, not yet potestas)
(National) arbitration statutes
Separability:
No or only few specific rules; the rules of general contract law on formation
and validity normally apply (Implied consent by a third party in Cass.Fr. 26
Oct. 2011 CMN / Fagerdala). Often a writing reguirement (flexible, art. 7 (2
ff.) Model law)
Case law in B, Austria, Italy, Germany: ex ante control: where parties can
waiver their right only after the dispute has arisen, they cannot on
beforehand be bound to arbitration, unless the arbitrators are required to
apply these mandatory provisions irrespective of the otherwise applicable
law.
- > traditional Belgian case law: ‘conditional arbitrability’: disputes concerning
termination of distributorship or commercial agency on Belgian territory
(Belgian Distributorship Act 1961 and Commercial Agency Act 1995) are not
arbitrable unless requiring the arbitrators to apply these provisions of
national law (Cass. 28 June 1979 & Cass. 14 Jan 2010 distributorship; Cass.
3 nov 2011 agency).
- > discussion whether still the case under new Arbitration Act 2013, art.
1676 Belgian Jud.C. Lower courts have accepted arbitrability in principle
(subject to control a posteriori)
Arbitrability & overriding mandatory law
Arbitration of disputes governed by «overriding mandatory
provisions »:
- Comp. German case law, OLG München 17 May 2006 (likely danger
that foreign tribunal will not apply the mandatory provision;
arbitration clause combined w/ choice of foreign law is presumption
of likeliness). BGH 5 Sep 2012 (Virginia agency case, forum clause
in agency contract)
- Comp. English High Court in Accentuate (2009) and in Fern
Computers (2014)
- In Austrian OGH 1 March 2017 (T Gmbh /O Inc.), there was already
a partial arbitral award (New York state); the arbitration clause with
a choice of law referring to NY law was deemed invalid.
The nominated arbitrator has in principle jurisdiction over the questions of:
validity of the arbitration agreement, legal capacity to refer to arbitration,
and arbitrability (‘provisional’ competence-competence - but subject to a
possible annulment of the award by the court of the place of arbitration).
Comp. Art. 16 Model law
The otherwise competent* national court has also jurisdiction to judge the
validity of an arbitration agreement invoked (as ‘exceptio arbitrandi’) by a
party to deny the jurisdiction of that court**, but not always to question an
arbitral decision on the facts on which it bases jurisdiction.
Some countries give also a « negative effect » to the competence-
competence, suspending any judgment on the validity until there is an
arbitral award, unless the arbitration agreement is manifestly/prima facie
invalid (e.g. Swiss interpretation of art. 178 Swiss PIL; French case law
interpreting art. 1448 CCP: Cass. 7 June 2006, Tag Heuer case; Portugal;
Malaysia)
Multi-party arbitration: Uncitral has specific rules on appointment (also some national
statutes do and some rules of arbitration institutions); also specific rules in the LCIA
Rules;
the basic rules for the proceedings (classical rules such as adversary
character, possibility to decide in absentia (by default), whether partial
awards possible, whether dissenting opinions may be made public, duty to
motivate award, notification of the award, ...)
Whether curia novit ius or law has to be invoked (and possibly proven) by
the parties
Next slide …
Arbitration
– procedural rules
Procedural rules may determine in which cases the state court can help /
intervene
E.g. parties can ask a court order where the arbitrator has no authority, eg
for an Actio ad exhibendum against a 3rd party (order to produce
documents)*
E.g. replacement of arbitrator(s)
See also Art. IV ECICA on remaining jurisdiction of courts in relation to
arbitration
* The request may be within the jurisdiction of the courts of the place of
arbitration
• If not, the question arises how to seize a ‘foreign’ court having jurisdiction
over that evidence. See Ch. 11 on taking evidence abroad. Question
whether arbitrator or arbitrating parties can directly go to the foreign court
or not – depends on the rules of jurisdiction in that country. E.g. in the US
foreign litigants can directly request such a court order on the basis of S.
1782 USC (now usually accepted that this is also possible in case of foreign
arbitration). Idem art. 27 Model law.
Arbitration
– the award
The award must be:
- signed by the arbitrators, at least by a majority (art. 31 (1) Model
law)
- stating reasons (motivated) (art. 31 (2) Model law)