Review Flashcards
AQZ V. ARA
Changed the number of arbitrators because the ICC applied the new rules of proceeding. 3 arbitrators than 1
Sources of law
International convention
National acts
Arbitration rules
Party autonomy
Soft law
What is it about art. 2 NYC
Arbitration Agreement
What is about article 2.1 of the New York convention
It’s about the legal relationship that is contained inside the agreement and it talks about the arbitrability because it mentions the capacity of the dispute to be settled by arbitration
What is article 2.2 of the New York convention about?
It’s about the writing requirement of the agreement. It can be by the sign of the contract or exchange of letters
Compagnie de Navigation et Transports v. Mediterranean Shipping
The bill of lading had an arbitration agreement without signature.
However because of the good faith it recognized the exchange of letters without a signature
What is the battle of forms
The last shot rule says that the last set of rules that was proposed will be the one we’ll apply to the case
What it is about article 2.3 of the New York convention
It is about the faculty that courts have to review an arbitration agreement and send it to the arbitral tribunal unless it is null, void, or inoperable. Is the contrary to the principal competence competence
Tennessee v. Prix
Parties agreed in the arbitration court of Venice chamber of Commerce but this place doesn’t exist so with the interpretation of the court we understand that the place that the parties want to say is the ICC in Venice. Pro arbitri
HKL V. RIZQ
Parties agreed in the Arbitration Committee at Singapore, but it doesn’t exit.
The Court stablized 4 elements to qualify the clause as effective:
- To generate mandatory consequences
- Exclude courts
- Give power to the arbitrators
- Find a clause that has the best conditions of efficiency and rapidity
What are the theories for the choice of law_
1 Express choice of law by the parties
2 The law of the main contract
3. The law of the seat. Most accurate because of the article 5.1a New York Convention.
4. Transnational law
Sulamerica v. ENESA
Three options for choosing the law.
1. The explicit choice
2. The implied choice
3. System of law with which the arbitration agreement has the closest and most real
connection
Peterson Forms v. C&M FARMING
It talks about the group of companies doctrine, for the intention to bind non signatory parties.
DALLAH V. Ministry of religious affairs of the government of Pakistan.
It’s possible to bind non signatory parties if they are involved in the contract performance. Therefore: implicit intention and behavior.
PEPSICO V. Oficina Central de Asesoria y Ayuda Tecnica
One party intent to obtain an anti suit injection in the New York Court to stop the process in Caracas Court.
The New York court refused to enjoin the parallel proceeding in Venezuela. Venezuelan
court must be afforded the opportunity to determine the issue of arbitrability.
West Tankers Case
One party intends to obtain an anti suit injunction to stop a process in one European country. However, because of the Brussels 1, it’s not possible to issue an anti suit injunction against other country of the European Union.
What should the court review for the validity of the arbitration agreement?
- Meeting of minds
2.The claim falls within the scope of the arbitration agreement.
- That the arbitration agreement has all the requirements of the contractual law for validity
- That the arbitration agreement is not inoperative or incapable of being performed.
When the arbitration agreement is inoperative or incapable of being performed
When parties agreed in other settlement mechanism. Or when one party is enabled to fund the arbitration
What is the difference between impecunious or insolvent?
That the insolvency receiver succeeds the arbitration agreement and the impecunious is no longer bindable to the arbitration agreement. (Switzerland)
MENORA INSURANCE V. INX REINSURANCE
Facts: The parties entered into reinsurance contracts with arbitration clauses. The seat of arbitration is Israel. The parties had a dispute regarding an insurance claim. Menora sent INX a letter asking the latter’s assent to arbitration. INX stated it would not arbitrate because of its financial condition.
Menora foiled suit in Israel and was able to obtain a Default Judgment. Menora then filed an “exequatur” (action to execute a judgment from another jurisdiction) in San Juan (Puerto Rico) court. INX, however, moved to dismiss, invoking the arbitration agreement.
Held: INX waived its right to go to arbitration and only invoked the arbitration agreement during the enforcement proceedings. Arbitration clauses were not mean to be a weapon for imposing delay and costs in the dispute resolution process. Hence, INC’s motion was denied.
What is Article 16.1 of the model law about?
It’s about the separability of the arbitration agreement from the contract and Competence competence
SOJUZNEFTEEXPORT (SNE) V. JOC OIL LIMITED
The contract was never formed, so it’s possible to talk about the non existence of the arbitration agreement.
LIS PENDENS IN ARBITRATION
It’s possible to challenge the jurisdiction decision, but the proceeding may continue according to the article 16.3 of the model law. This is also a conclusion that the arbitral tribunal doesn’t have full competence competence.
FIRST OPTIONS V. KAPLAN
If the parties agree, is possible to exclude the review by the courts
What are the elements of arbitrability?
Subjective element: Who is the party? Is it capable?
Objective element: Scope
MITSUBISHI V. SOLER
For US, International arbitral tribunals have jurisdiction to decide matters involving federal antitrust
claims.
There is no reason to assume that international arbitration will not provide a mechanism to enforce US antitrust laws
What is the law applicable to review the capacity of the parties?
The law applicable to the parties
VIVENDI V. ELEKTRIM
One party is insolvent, but the court decide that when it signed the arbitration agreement, it was capable. So it’s enough.
What are the restrictions for the arbitrability? According to the capacity of the parties,
Public entities incapable weaker parties.
ECO SWISS V. BENETTON
The award issued by the arbitral tribunal should be in accordance with the public policys.
FINCANTIERI V. IRAQ
If the substantive law has a provision measure, It doesn’t mean that the matter is non arbitrable.
TOMOLUGEN V. SILICA
Minorities have a major level of protection and public interest.
SYSKA V. VIVENDI
The capacity matters of the party should be review according to the law of the country of the party, not by the law of the seat.
What are the requirements to issue an interim relief?
- Request
- Prima facie jurisdiction
- Prima facie claim. It means that looks appropriate.
- Urgency because we have a harm that is substantial and irreparable.
What are the types of applicable law?
Arbitration agreement
merits
procedure
setting aside
What is hierarchy for choosing the applicable law for the procedure?
General rule is the law of the seat.
1. Mandatory rules of the arbitration act, such as the rights and principles.
2. Agreed rules.
3. No mandatory rules of the arbitration act.
4. Discretion of the arbitral tribunal. According to article 22 ICC Rules
What type of evidence do we have?
Documents
witness of facts
experts
Site inspections
What are the requirements for the document production? According to the IBA rules on the taking of evidence.
Request
Specify the document
Explained I don’t have the document
Establish the importance of the document
What are the constellations of the multi party arbitration?
From the start
Jjoiner and
Consolidation
What are the requirements to have a multi contract process?
That the court or the arbitrage tribunal make a primal facie decision in which they can analice that the claims are compatible and that they can be determined in a single arbitration.