CONSTITUTING THE TRIBUNAL

Question 1

What is one of the most important things

Answer 1

That parties be allowed choose their arbitrator

Question 2

For each number of decsion makers say how theyre chosen

Answer 2

1: Agreement of parties
2: Each party chooses 1
3: Each party chooses one and those 2 parties choose presiding

Question 3

What do the uncitral rules do

Answer 3

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.

Question 4

Article 8 UNCITRAL

Answer 4

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

Question 5

Article 9

Answer 5

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

Question 6

Article 10

Answer 6

If there are multiple parties to the arbitration, they have to decide together

Question 7

ICC

Answer 7

Article 13: parties can decide who to appoint but ICC reserves the power to confirm or reject appointment

Question 8

ICDR

Answer 8

Employ a list procedure of arbitrators parties can choose from

Question 9

Issue with instiutional arb in this context

Answer 9

Lack of autonomy

Question 10

Whats arbitrability?

Answer 10

Whether or not the dispute is capable of being arbitrated under the applicabe law

Question 11

Difference of arbitrability and scope

Answer 11

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

Question 12

What are subject matters not capable of settlement by arbitration

Answer 12

Criminal
Copyright
Bancruptcy
Family
Employment

Question 13

Whats the Ontario Legislation

Answer 13

International Commercial Arbitration Act

Question 14

Schedule 1

Answer 14

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

Question 15

What if the matter is not arbitrable in the country of enforcement but arbitrable at the law of seat

Answer 15

At award stage: Look at law of enforcement

At enforcement stage: Look at law of seat

Question 16

Schedule 2

Answer 16

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

Question 17

List stages of how a tribunal is establised

Answer 17

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

Question 18

What to do in the time being

Answer 18

Can go to the courts to seek interim award/relief

Can get an emergency arbitrator

Question 19

What do you have to consider for the commencement of arbitration

Answer 19

Any time limits from seat
Any requirements under the contract

Question 20

When does the clock usually start

Answer 20

When the cause of action arises

Question 21

Commencement under institutional rules

Answer 21

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

Question 22

ICC rules

Answer 22

4.2 Commencement begins when the secretait receives the notice

Question 23

Commencement of ad hoc

Answer 23

If there is no agreed upon rules, the law of the place of arbitration will be considered

Question 24

Emergency arbitrators

Answer 24

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

Question 25

How many arbitrators

Answer 25

Usually 1/3
1 is default for ICC 12.2
ICDR 12
Unless situation warrants 3

Question 26

Advantages of 1

Answer 26

Less expense
Easier to arrange meetings
Less time needed for deliberation

Question 27

Disadvantages of 1

Answer 27

Room for error
lack of autonomy, especially if cant agree cuz then the courts will have to intervene

Question 28

Advantages of 3

Answer 28

Less room for error, greater deliberation

Autonomy, each choose their own judge

Question 29

Disadvantages

Answer 29

More costly
More time consuming

Question 30

When will choose more than 3

Answer 30

For political rather than practical reasons

Question 31

How are arbitrators appointed

Answer 31

Agreement by parties
Insitution
The court
Co-arbitrators
President of an insitution
Appointing authority
List system