CONSTITUTING THE TRIBUNAL Flashcards
What is one of the most important things
That parties be allowed choose their arbitrator
For each number of decsion makers say how theyre chosen
1: Agreement of parties
2: Each party chooses 1
3: Each party chooses one and those 2 parties choose presiding
What do the uncitral rules do
Give deadlines so that partys dont use strategic delay tactics
If partys dont agree on arbitrator, go to courts if they dont have an appointing authority.
Article 8 UNCITRAL
If parties cant agree within 30 days, appointing authority, if none , judge
Give list of potential arbitrators
Parties cross out names
Appointing authorrity decides from rest
If still no agreement, appointing authority has discretion
Article 9
If there are 3 arbitrators and one party refuses to choose one, then appointing party will choose
If no agreement on presiding arbitrator, appointing authority will choose
Article 10
If there are multiple parties to the arbitration, they have to decide together
ICC
Article 13: parties can decide who to appoint but ICC reserves the power to confirm or reject appointment
ICDR
Employ a list procedure of arbitrators parties can choose from
Issue with instiutional arb in this context
Lack of autonomy
Whats arbitrability?
Whether or not the dispute is capable of being arbitrated under the applicabe law
Difference of arbitrability and scope
Scope is whether the tribunal can here that issue
Arbitrability means the whole dispute is incapable of being settled by arbitration and will not be enforced by jurisdiction
What are subject matters not capable of settlement by arbitration
Criminal
Copyright
Bancruptcy
Family
Employment
Whats the Ontario Legislation
International Commercial Arbitration Act
Schedule 1
NY Conventon
Article 2: each state shall recognise an arbitration agreement
Articl 5(a) can refse enforcement of agremeent if subject matter is not capable of settlement by arbitration
What if the matter is not arbitrable in the country of enforcement but arbitrable at the law of seat
At award stage: Look at law of enforcement
At enforcement stage: Look at law of seat
Schedule 2
Implements UNCITRAL model law
Article 1: Arb law doesnt change national law
Article 8: Courts can decide that an agreement is null/void/inoperative/incapable of being performed
Article 34: Can set aside award if subject matter not capable of settlement by arbitration
Article 36: Can refuse enforcement if subject matter is not capable of settlement by arbitration
List stages of how a tribunal is establised
Notice of arbitration must be delivered in accordance with proceedural rules,
if no rules agreed on, then law of the seat
Once notice has been delivered, the tribunal can begin to be consituted
No dispute can be settled until the tribunal is constiuted
This takes a long time especially when parties are refusing to participate
What to do in the time being
Can go to the courts to seek interim award/relief
Can get an emergency arbitrator
What do you have to consider for the commencement of arbitration
Any time limits from seat
Any requirements under the contract
When does the clock usually start
When the cause of action arises
Commencement under institutional rules
If the insitution and the applicable law differ, the applicable law prevails unless its waivable
If the applicable law leaves room for agreement of parties, then insitutional rules will apply
ICC rules
4.2 Commencement begins when the secretait receives the notice
Commencement of ad hoc
If there is no agreed upon rules, the law of the place of arbitration will be considered
Emergency arbitrators
If the tribunal hasnt been consituted yet and theres a dispute/urgent matter, insitution can appoint an emergency arbitrator
Can occur ex-parte provided that the emergency arbitrator listens to other party after award issued
Decision of EA not binding on tribunal
How many arbitrators
Usually 1/3
1 is default for ICC 12.2
ICDR 12
Unless situation warrants 3
Advantages of 1
Less expense
Easier to arrange meetings
Less time needed for deliberation
Disadvantages of 1
Room for error
lack of autonomy, especially if cant agree cuz then the courts will have to intervene
Advantages of 3
Less room for error, greater deliberation
Autonomy, each choose their own judge
Disadvantages
More costly
More time consuming
When will choose more than 3
For political rather than practical reasons
How are arbitrators appointed
Agreement by parties
Insitution
The court
Co-arbitrators
President of an insitution
Appointing authority
List system
