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Fdocuments - in - Arbitration General Arbitration One of The Techniques of Adr Arbitration
Fdocuments - in - Arbitration General Arbitration One of The Techniques of Adr Arbitration
Separability:
E.g. Belgian conflict rule (as stated in Cass. 16 Nov 2006 Van
Hopplynus, and Cass. 14 Jan. 2010 Sebastian) refers to the
application of the Belgian law on arbitrability in all disputes where
the Belgian courts have jurisdiction
Arbitrability and public policy
Arbitrability may be limited in matters governed by rules of public
order, but in general
1° a dispute is arbitrable even if rules of public policy apply;
2° the arbitrators may and must apply rules of public policy that are
relevant for the dispute (e.g. a party invokes that a contract is void
because contrary to competition law), and
3° the judicial control takes place a posteriori.
Comp.:
- Cass. B. 2 Feb. 1973
- ECJ in Eco Swiss / Benetton (1999): competition law is part of the
public policy exception in exequatur procedures (a posteriori
control)
- SC.US in Mitsubishi Motors v. Soler Chrysler-Plymouth (1985):
arbitrable
However, the arbitration agreement may nevertheless be invalid
(see next slide) (better to tackle the problem not merely a
posteriori)
Arbitrability & overriding mandatory law
Arbitration of disputes governed by «overriding mandatory
provisions »: ex ante control or ex post ? (comp. Discussion on
forum clauses) ?
Applications: labour law, some consumer contracts, rules protecting
distributors or commercial agents
Belgian & German case law: 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.
- > 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).
- (continued)
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 (forum clause in agency contract)
- Comp. English High Court in Accentuate (2009)