Agreement To Arbitrate

Question 1

Where will the agreement be found?

Answer 1

Contractual clause / submission agreement.

Question 2

What are the types of law to be found in ICA?

Answer 2

1. Law governing parties’ capacity to enter the arbitration agreement.
2. Law governing the arbitration agreement, and the performance of the contract.
3. Law that governs existence/proceedings of arbitration tribunals (lex arbitri).
4. Law governing substantive issues (law applicable to contract) in dispute.
5. Law applicable to recognition/enforcement of award.

Question 3

For what reasons would an arbitration clause be declared invalid?

Answer 3

1. Inconsistency: court usually strike out offending article
2. Uncertainty: courts usually generous
3. Inoperability: usually in practical sense.

Question 4

What will an arbitration clause/agreement ideally contain?

Answer 4

1. Constitution of tribunal, appointment of arbitrators/choice of appointing authority.
2. Seat of where arbitration takes place - lex arbitri.
3. Law to which it is subject - often same as applicable law to contract as a whole.
4. Default procedures eg binding award where party refuses to cooperate with arbitration.

Question 5

On what points may a party dispute a potential arbitration?

Answer 5

1. Dispute is injusticiable.
2. Dispute is not arbitrable.
3. Arbitration clause is invalid.

Cannot say void contract voids the arbitration clause (unless agreed by parties in the clause), referred to by CaL as ‘compromissory clause.’

Question 6

What is the significance of the Mitsibushi case?

Answer 6

The US Supreme Court ruled, contrary to usual practice, that antitrust dispute was arbitrable.

Question 7

What are excluded usually from arbitration?

Answer 7

Criminal, family, bankruptcy, employment disputes.

Question 8

Who may initiate proceedings on behalf of a parent company?

Answer 8

A subsidiary company; alternatively, anyone who is devolved rights or benefits.

Question 9

What is significance of Solel Boneh case?

Answer 9

The tribunal said “the doctrine of sovereign immunity has no application whatsoever in arbitration proceedings.”

Question 10

Who wrote the article on the Bahrain freezone?

Answer 10

Karrar-Lewsley.

Question 11

What is the Freezone?

Answer 11

Where parties agree to foreign law as jurisdiction, this cannot be challenged in Bahraini courts. There is no threat of the court annulling or refusing to apply any arbitration decision on this basis.

Question 12

What is the risk of the freezone? What is the academic response?

Answer 12

There is a risk that a decision, unchallenged in Bahrain, may be successfully challenged elsewhere. K-L suggests this is unlikely, because as the freezone is a Bahraini concept, and most Western courts, reluctant to look into its workings, will thus let their freezone status stand, equated as it is with (non-justiciable) international law.

Also, Najar calls for cultural considerations to be made in ICA. Bahraini and Eastern conciliation style DR must be respected in order to foster trade between East and West.

Question 13

What phrase do RaH use?

Answer 13

L’autonomie de la volonté - wishes of the parties. The phrase regards primacy of parties as source of autonomous law vs requirement of law within a seat.

Question 14

New York Convention requires what?

Answer 14

The agreement must be in writing. Different states have different requirements of what is written.

Question 15

What is the significance of Kavent Steel Crane Ltd v Kone Corporation?

Answer 15

Alberta QBD refused stay against arbitration by Kone. It said tort-based claims are admissible if part of a contractual relationship.

Question 16

According to Giuditta Moss, what is the limit of UNCITRAL’s latest revised rules?

Answer 16

Its exemption agreements may suggest certain provisions of states can be ousted from. However, it is not clear says Moss whether such exclusions will be valid. Further, the suggestion of free rules can mean unenforceability per NY Covention.