International Arbitration

Question 1

What does it cover?

Answer 1

• Covers any reference to arbitration involving parties in different states
• New York Convention (1958) makes it easy to enforce the award anywhere in the world

Question 2

MEANING OF ‘INTERNATIONAL’ IN ARBITRATION

Answer 2

At the time of conclusion of an arbitration agreement:

• the parties have their place of business in different states, or
• Either the place of arbitration (if determined in the agreement) or place where a substantial part of the obligations of the commercial relationship is to be performed/connected to is situated outside the state where the parties have their place of business, or
• The parties have expressly agreed that the subject-matter relates to more than one country

Question 3

ADVISING THE CLIENT

Answer 3

• Where a foreign system of law applies, advise on how it differs from English law
• Where the seat is overseas, advise client to instruct local lawyers

Question 4

WHAT IS THE SEAT?

Answer 4

• Same as ‘place’
• Designated by the parties in the agreement, an institution, or the tribunal
• The system of law that governs the arbitration (i.e. providing the framework for the procedural steps to be followed)
• In England, the AA 1996 governs
• Doesn’t need to be the geographical location of the hearing

Question 5

How is the seat designated?

Answer 5

• Decided on the basis of the parties’ intentions
• Where a clause says the arbitration is conducted in accordance with Paris ICC rules, and the venue is London: London is the seat.
• Where one clause says the seat was Scotland but another said that England had exclusive jurisdiction to settle the dispute, it was held that the England clause had the effect that England was the seat, and Scotland was just the location.
• Where there is no express designation, look at:
  
  • whether the parties have agreed to arbitration by an institution located in a particular country
  • whether a particular system of law has been agreed as the law of the substantive contract or of the procedural law of the arbitration

Question 6

What is supervisory jurisdiction?

Answer 6

• The courts of the seat have supervisory jurisdiction
• Any challenge to an award/order must be made in the courts of the seat
• They will not always have jurisdiction, so certain applications might have to be brought in another country where an order will be effective (e.g. England will grant a stay of English litigation whether or not the seat is in England)
• Similarly, applications relating to enforcement of arbitral awards are made in the country where the enforcement will take place, rather than the seat

Question 7

What is the place of award?

Answer 7

• The seat is also (unless otherwise agreed), the place where an award is treated as made
• Important because certain grounds for refusing to recognise awards in the NYC apply to matters arising in the place of the award (e.g. if a party was under an incapacity under the law of the place)

Question 8

What are the different aspects of law applicable?

Answer 8

It will be assumed (unless the parties indicate otherwise) that the parties intended for the whole of their relationship to be governed by the same system of law.

• The substantive contract
• The arbitration agreement – the law governing the obligation to refer the dispute to arbitration
• The curial law – the procedural law governing how the arbitration is conducted
• The law relating to the contracts with the arbitrators and the institution
• The law of any place where actual hearings take places
• The law relating to any agreement to compromise the dispute?
• The law of the place(s) where it is sought to register and enforce any arbitral award