International Arbitration

Avishek Ghosh (115) Abhrajit Sett (140) Vishal Thakkar (154)

´ ‡ It is a form of alternative dispute resolution (ADR). .What is Arbitration ? ‡ ³The submission of a dispute to an unbiased third person designated by the parties to the controversy. Freedom to select & decide arbitral procedures. efficient decision. ± ± ± ± Avoid uncertainties associated with litigation in national courts. Obtain a quicker. Enforceability of arbitration agreements. who agree in advance to comply with the award²a decision to be issued after a hearing at which both parties have an opportunity to be heard.

‡ The arbitrator makes a mandatory and (usually) binding decision. ‡ Mediation is a facilitation. ‡ In an arbitration. ‡ The mediator has no power to force the parties to come to a decision ‡ In a mediation. negotiation process in which a trained mediator works to bring the parties to agreement. once it begins there is usually not possibility of withdrawal.Arbitration Vs Mediation ‡ Arbitration is a hearing process in which parties bring their dispute to someone for a decision. either party can withdraw at any time .

.e.Procedures for Arbitration ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ ‡ Pre-Arbitral procedures : Efforts to avoid Arbitration Appointment of an Arbitrator or Tribunal Administrative Filings and Fees The Place (i. ³Seat´) of the Arbitration Request to Arbitrate (Statement of Claim ± Claimant & Respondent) Necessary Parties Consolidation Discovery Arbitral Hearing Post-Hearing Memoranda The Arbitral Award .

1958 ‡ The Convention on the Recognition and Enforcement of Foreign Arbitral Awards ± Widely recognized as a foundation instrument of international arbitration ± Requires contracting States to give effect to o An agreement to arbitrate when seized of an action covered by an arbitration agreement and o To recognize and enforce awards made in other States. ± The Convention entered into force on 7 June 1959.New York Convention. Current number is 192. . ± Initially attended by 142 countries.

‡ Functions: ± select and appoint arbitrators if parties have not selected any ± confirm arbitrators selected. decide upon challenges to arbitrators ± review the first procedural document issued by the tribunal which sets forth the issues in dispute (the ³Terms of Reference´) .International Chamber of Commerce ‡ Headquarters in Paris. France ‡ The two organs of the ICC are the International Court of Arbitration itself and its Secretariat. ‡ The Secretariat consists of several teams of counsel of a variety of nationalities who specialize in different regions of the world. ‡ The Court of Arbitration is constituted by representatives of each member country.

USA ‡ ³AAA Commercial Arbitration Rules´ which are designed for domestic US arbitrations. . nor does the ICDR review the tribunal¶s award before communicating it to the parties.American Arbitration Association ‡ The AAA¶s International Center for Dispute Resolution (ICDR) is headquartered in New York. ‡ The ICDR administrator will set the arbitrators¶ fees on the basis of the arbitrators¶ rate of compensation and the size and complexity of the case. ‡ Provision of sole arbitrator is acceptable under AAA rules ‡ It does not involve the creation of a document similar to the Terms of Reference.

. ‡ WIPO allows the parties to choose the arbitrator on their own or gives them one if required ‡ The WIPO has developed a set of rules dedicated to expedited proceedings. Switzerland. ‡ It sets the administrative and arbitrators¶ fees after consultation with the parties and the arbitrators in accordance with a schedule of fees.World Intellectual Property Organization ‡ Founded in 1994 in Geneva. ‡ WIPO has arbitration rules and procedures specifically attuned to the issues related to intellectual property disputes.

Switzerland. ‡ It sets the administrative and arbitrators¶ fees after consultation with the parties and the arbitrators in accordance with a schedule of fees. .UN Commission on International Trade Law ‡ UNCITRAL was founded in 1994 in Geneva. ‡ WIPO has arbitration rules and procedures specifically attuned to the issues related to intellectual property disputes. ‡ WIPO allows the parties to choose the arbitrator on their own or gives them one if required ‡ The WIPO has developed a set of rules dedicated to expedited proceedings.

1996 In India. .The Arbitration and Conciliation Act. it is the prime legislation relating to ± ± ± ± Domestic arbitration International commercial arbitration Enforcement of foreign arbitral awards and To define the law relating to conciliation and for matters connected therewith or incidental thereto.

e. i. by various alternate dispute resolution methods ‡ Services offered: ± ± ± ± Administrative and support services Appointment of arbitrators Choosing the venue for the arbitration Fixation of the fees of arbitrators and conciliators .FICCI conciliation and Arbitration Tribunal ‡ Founded in the year 1952 ‡ Dispute resolution services primarily to FICCI members and other parties who may desire to submit their disputes ‡ The FACT mission is to resolve business disputes outside the traditional framework offered by courts of law.

± 3 member arbitrators in London applying law of South Africa. ‡ X claims the contract to be null and invalid as Y bribed the govt officials of X to sign the contract. Y hired a 3rd party for information & assistance.307: Parties in Dispute: ± Corp X. ± Both parties presented their case and followed hearing procedures .Case Study: Dispute Resolution by Arbitration ICC Case 11. X demands full contract amount to be returned ‡ Arbitration procedures: ± ICA appointed as the Tribunal body. owned by Sub-Saharan African country govt (Claimant) ± Corp Y in another Southern African country (Respondent) ‡ Y to provide regular maintenance of airplanes owned by X.

claiming any contract tainted by bribery stands invalid. since this value was paid in excess. even if the contract is declared void.Case Study Contd (2) ‡ Interim awards by the tribunal suggested X victorious. it was ordered by the tribunal that this amount should be returned. ‡ However. . ‡ But due to South African Law and equity principles. Therefore. the money paid for services already rendered should not be returned. the arbitrators concluded that the fair price that the X should have paid was the sum that it paid minus the amount Y received extra.

. a reasonable time considering the complexity of the case. ‡ Matter resolved in 3 years. ± Set the proper price per hour for this work that the claimant should have paid to the respondent ± Parties should equally share the costs of the arbitration ‡ A good example of how international arbitration under the rules of the ICC helped to solve a complex international commercial dispute.Case Study Contd (3) ‡ The final award ordered ± Reimbursement of the excess amount paid by claimant.

Borba.org www.newyorkconvention. Marquette University Thank You ! .wikipedia.ficci.org www.References ‡ ‡ ‡ ‡ ‡ www.org www.Igor M.org ³International Arbitration: A comparative study of the AAA and ICC rules´ .iccwbo.

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