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International Arbitration > W3: Arbitration Agreements I > Flashcards

W3: Arbitration Agreements I Flashcards

Types Validity Scope Enforceability Arbitrability

1
Q

Intro to Conflict of Laws in ICA

A

Amazonica Case: Law Governing -

  1. Substantive Contract: Substance/Merits
  2. Agreement to Arbitrate and it’s Performance: Jurisdiction
  3. Conduct of Arbitration: Procedure
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2
Q

Law Governing Agreement to Arbitrate

A
  1. Law of Contract (applicable law clause)
  2. Law of Seat of Arbitration
  3. Parties’ Common Intention - A French ‘third’ way
  4. Combining Several Approaches - A Swiss Model
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3
Q

Law of Contract

A

Acceptability: Of Contract = Of Arbitration Clause
HOWEVER, Separability and Autonomy, comparable to Submission Agreement
NYC Art. V(1)(a); Model Law Art. 34(2)(a):
“law parties’ subjected to it”/”law of the seat of arbitration”

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4
Q

Law of Seat of Arbitration

A

LCIA Rules Art. 16(4): “… unless and to the extent that the parties have agreed in writing on the application of other laws or rules of law and such agreement is not prohibited by the law applicable at the arbitral seat”

Sulamerica Case: Law of the Seat (English) > Law of Contract (Brazilian)

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5
Q

Sulamerica Case (Brazilian Case)

A

3 Stage Inquiry:

  1. Express Law
  2. Implied Law
  3. Closest and Most Real Connection w Arbitration Agreement (Law of the Seat)

Assumption: Same law to govern entire relationship, ‘natural inference’ - Law of Contract

HOWEVER, 2 reasons why Law of Seat:
1. One Party Enforcement u Brazilian Law: Serious risk - entirely undermine the arbitration agreement
2. Law of the Seat = Lex Arbitri, to govern all aspects of arbitration agreement
* C v D; XL Insurance Ltd v Owens Corning
English Law > Law of New York

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6
Q

Bulbank Case (Bulgarian Case)

A

Law of Seat (Swedish) > Law of Contract (Austrian); on the basis of separability, as no applicable law clause provided

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7
Q

Matermaco v PPM Cranes (Belgian Case)

A

Law of Seat (Belgium) > Law of Contract (Wisconsin State)

NYC Arts. II(1) and V(1)(a): lex fori/lex arbitri

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8
Q

US Cases:

  1. Pedcor Mgt Co. Inc. Welfare Benefit Plan v North American Indemnity (Texan Law)
  2. AT&T Mobility LLC v Concepcion (California Law)
  3. County of Nassau v Chase (New York Law)
A

FAA: Federal/Foreign Law > State Law, iff state policies are inconsistent w FAA

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9
Q

Parties’ Common Intention - A French ‘Third Way’

A
  • Existence and scope determined exclusively by reference to the parties’ discernible common intentions
  • Arbitration agreement = Independent of national laws deemed applicable
  • Prevents ‘conflicts of laws’ and particularities of pvt. int’l law regimes
  • Dalico Case: Delocalised EXCEPT for French Law
  • Uni-Kod Case: Parties’ express common intention to designate national legal system/set of conflict of laws
  • Dallah Case: French law recognises supranational/transnational principles as potentially applicable to determine the existence, validity and effectiveness of an international arbitration agreement
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10
Q

Combining Several Approaches - A Swiss Model

A

Section 178(2) of the Swiss Federal Statute of Private International Law (Swiss PIL):
WRT substance: Valid, if conforms to:
1. Law chosen by parties
2. Law governing subject-matter of dispute (law of contract)
3. Swiss Law

This formulation allows Swiss courts maximum opportunity to uphold the validity of the arbitration agreement

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11
Q

Types of Agreements

A
  1. Clause
  2. Submission
  3. Exclusive/Non-Exclusive
  4. Multi-Tier DR Clauses
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12
Q

Agreement to Arbitrate

A
  1. Arbitration Clauses (w in Contract) - PRIOR
  2. Submission Agreements (separate) - POST
  3. Investor Arbitration Clause - PRIOR (standing offer for resolution of ‘investment disputes’
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13
Q

Validity: ‘In Writing’

Justification: Parties Waive Recourse to Courts in favour of Arbitration, should be evidenced in writing

A

NYC 1958:

  • Art. II:
    (1) ‘agreement in writing’ (then sign not imp.)
    (2) ‘including arbitration clauses and submission agreements’
  • Art. IV: to obtain enforcement - produce written agreement/duly certified copy

Changes:

  1. Modern Methods of Communication > ‘Letters and Telegrams’
  2. Increased Complexity of Int’l Trade > Presumption of only 2 Parties (states, corporations and individuals - not parties but wish to join/joined irrespective)

Model Law:
Art. 7(1)
- Defined Legal Relationship (Contractual or Non-Contractual)
- Arbitration Clause/Submission Agreement

Expansion of ‘In Writing’:
‘an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement’

Swiss Law:
‘in writing, by telegram, telex, telecopier or any other means of communication which permits it to be evidenced by a text’

Modern Business Dealings = Revised Model Law, Art. 7 (Option 1):

  • Orally, in a meeting/telephone conversation
  • Conduct
  • Other means (record ‘in any form’ of the content of the arbitration agreement)
  • Adopting States: 2 Options
    1. Adhere to Writing Requirement, INCLUDING eCommunications of all types; Exchange of Statements of Claim/Defence - existence of agreement alleged and not denied; Reference to Document containing Arbitration Clause (so as to make that part of contract)
    2. Dispense w Writing Requirement (inconsistent application in diff. jurisdictions)
  • eCommunication: communications b/w parties by ‘data messages’
  • Data Messages: information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.

*triumph of substance over form: as long as there is some written evidence of an agreement to arbitrate, the form in which that agreement is recorded is immaterial

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14
Q

Arbitration Clauses: Clause Compromissoire (Civil Law)/’Midnight Clauses’

A
  • Short and to the point
  • In practice, terse forms are not recommended
  • LCIA & ICC Rules have own recommended forms

UNCITRAL Rules: Model Arbitration Clause

  • Dispute, Controversy, Claim
  • Breach, Termination, Invalidity
  • Settled by Arbitration u/UNCITRAL Arbitral Rules

[Standard Clause in internationally accepted Standard Contracts: Shipping, Insurance, Commodity Trading, Civil Engineering]

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15
Q

Submission Agreements: compromis/compromiso

A
  • Institutional/Ad Hoc (Parties’ Decision)
  • Fairly detailed document:
    1. Constitution of Tribunal
    2. Procedure to be followed
    3. Issues to be decided
    4. Substantive law
    5. Other matters
  • ALL basic elements
    6. Definition/Outline of Arbitrable Disputes
    7. Procedural Arrangements (prob. better in separate agreement or w Tribunal’s assistance)

[Historically, used to be only recognised type as recourse to arbitration was only for EXISTING disputes. Some states STILL hold this position]

Negotiation of Submission Agreement may be a lengthy process b/c:

  1. Dispute already arisen
  2. Est. kind of dispute - structured arbitration
  3. Conflicting interests of parties

Case: Turriff Arbitration (Peace Palace, Hague)

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16
Q

Importance of Arbitration Agreements

A
  • Proof of Consent of Parties to opt for Arbitration, and waive recourse to Courts
  • NO unilateral withdrawal after valid consent is given
  • Arbitration Clause survives (separability and autonomy):
    1. End of Original Contract
    2. Challenge on Validity of Contract
  • Allows claimants to begin proceedings based on survival of arbitration clause
  • Allows Tribunal to decide on own jurisdiction (incl. objections wrt existence/validity of arbitration agreement), ie., Tribunal is competent to judge on its own competence (Competence-Competence Doctrine: Positive)

Continental Jurists:

  • Expression of Will of Parties
  • On the basis of Autonomy (l’autonomie de la volonté) - Int’l Arb. be ‘denationalised’/’delocalised’
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17
Q

Enforcement of Arbitration Agreement

A
  • Capable of being enforced at law, otherwise = statement of intention (morally binding but NO legal effect)
  • Agreement to Arbitrate = Contract of Imperfect Obligation:
    1. Damages: Unquantifiable Loss
    2. Specific Performance: Parties cannot be compelled to arbitrate (Horse to Water Idiom)

SOLUTION:

  • Indirect Enforcement: STOP on Court Proceedings in breach of Arbitration Agreement
  • Only available recourse: Arbitration as per agreement
  • Int’l Enforceability, not only in place of award (1923 Geneva Protocol and NYC 1958)
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18
Q

Powers Conferred by Arbitration Agreement

A
  1. Est. obligation to arbitrate
  2. Basic source of powers for Tribunal
  3. Est. jurisidiction of Tribunal

In Principle and w/in limits of Public Policy:
Exercise Powers -
1. Parties entitled to/do confer, expressly/impliedly (basic powers)
2. Lex Arbitri (additional/supplementary powers)

Basic Powers:

  1. No. of Arbitrators (Tribunal)
  2. Appointment of Tribunal
  3. Seat of Arbitration
  4. Powers
  5. Procedure
19
Q

Int’l Conventions

A
  1. 1923 and 1927 Geneva Protocols: Recognition and Enforcement of Arbitration Agreements; and Execution of Foreign Arbitral Awards
  2. 1958 NYC (partial misnomer): starting point = Recognition and Enforcement of Arbitration Agreements; and Int’l Enforcement of Awards (comply w specified criteria)
  3. 1975 Panama Convention (US & Latin American States): Estd. Arbitration as recognised method of regional DR
20
Q

Int’l Standards

A
  • 1958 NYC
  1. Art. II(1) [Formal]
    * in writing
    * existing/future disputes
    * defined legal relationship (contractual or not)
    * arbitrable subject matter
  2. Art V(1)(a) [Material]
    * legal capacity of parties
    * validity of agreement (Art. II(3): must NOT be ‘null and void, inoperative, incapable of being performed’)
21
Q

Defective Arbitration Clauses

A
  1. Inconsistency: ‘surviving clause’ carries into effect the real intention of the parties and the ‘discarded clause’ would defeat the object of the agreement.
  2. Uncertainty (pathological arbitration clauses): ‘disastrous compromise’ - extensive lit. (unrelated to dispute merits) to sort out conflict of applicable laws
  3. Inoperability:
    a) Null and Void - Devoid of Legal Effect: mistake, duress, fraud
    b) Inoperative - Ceased to have Legal Effect: limitation, repudiation, revocation
    c) Incapable of Being Performed*: impossibility
    * ‘back door’ for a party wishing to escape the arbitration agreement.
    * NOT APPLICABLE TO: inability to pay advances for cost/payment of award
    - BUT in India:
    ‘stay of court proceedings should be refused on the grounds that exchange control regulations would prevent payments in foreign currency to the arbitrators and other overseas expenses of those participating in a foreign arbitration’
22
Q

A Defined Legal Relationship

A

NYC and Model Law: sufficient - ‘defined legal relationship’ b/w parties, whether contractual or not (real/implied contractual relationship - arbitration agreement as basis for arbitral proceedings)

May be governed by principles of delictual/tortious liability rather than contract law.

Sub: any provisions of the relevant applicable law, terms of arbitrator’s jurisdiction and powers… depend on proper construction of arbitration agreement. Tribunal must consider dispute, then elicit from arbitration agreement intention of parties to resolve such dispute by arbitration.

23
Q

Kaverit Steel Crane Ltd. v Kone Corporation (Canadian Case)

A

Arb. Cl.: “all disputes ‘arising out of/in connection with this contract’ would be referred to Arbitration

Alberta QB: refused stay - sounds that some of Kaverit’s claims contained allegations that went beyond Breach of Contract, e.g., Conspiracy and Inducing Breach. HELD: tort-based claims fell outside scope of arbitration clause.

Alberta CoA HELD: wording of arbitration clause wide enough to bring w/in scope any claim that relied on existence of contractual relationship, even if claim = tort. Those claims that were not based on such existence should proceed to trial, not arbitration. -
“‘conspiracy by unlawful means to harm’ relied upon a breach of contract as the source of ‘unlawfulness’”

24
Q

Subject Matter Capable of Settlement by Arbitration

A

‘Arbitrability’ involved determining which types of dispute may be resolved by arbitration, and which belong exclusively to domain of courts.

NYC and Model Law: limited to arbitrable disputes.

In Principle: ANY dispute should be just as capable of being resolved by pvt. arbitral tribunal as by judge of a national court.
HOWEVER - b/c Arbitration is a private proceeding w Public consequences, some disputes are reserved for national courts, w proceedings in public domain, i.e, NOT arbitrable.

National Laws: domains, in accordance w its own socio-political and economic policy.

NON-Arbitrable Disputes:

  1. Criminal matters affecting individuals or corp. entities (bankruptcy/insolvency)
  2. Disputes over grant/validity of TMs
25
Q

Parties to Arbitration Agreement

A

Capacity:

  1. Natural Persons
  2. Corporations
  3. States and State Agencies
26
Q

Capacity: Natural Persons

A

‘Under the law(s) applicable to them’, in context of international contract.

Failure of contract, party lacking capacity u/1 or 2 systems may rely on this as reason for non-performance (incl. agreement to arbitrate)
HOWEVER -

Art. 13, Rome I Regulation:
Invoking incapacity: ONLY IF other party was aware/not aware by negligence

27
Q

Capacity: Corporations

A
  1. Governed by its constitution, and law of place of incorporation.
  2. Reqd. to act thru directors and officers.
  3. Ultra-Vires Transaction (beyond power of corporation): Open to corporation to contend agreement not binding, and not obligated to arbitrate any dispute.
    - States have specific rules of law to restrict/abrogate the Doctrine of Ultra Vires, to protect good faith dealings w corporations.

US:
Failure of corporation to maintain ‘good standing’ - basis of application/motion to stay/dismiss an int’l arbitration filed by such corporation.

28
Q

Capacity: State and State Agencies

A
  1. France:
    Art. 2060, Civil Code - disputes wrt public collectives and establishments, and all public policy matters, may NOT be arbitrable.
    HOWEVER, certain industrial and commercial public entities may be authorised by decree to enter into arbitration agreements. May also be referred to int’l arb.
  2. Belgium:
    Public law entities were prohibited from concluding arbitration agreements - now abolished, save for some restrictions.
  3. Brazil:
    Higher Courts - consistently ruled: State body is NOT prohibited from agreeing to resolve disputes by arbitration, and IS bound by such agreement.
  4. Other Countries:
    State/State Agency must obtain approval of relevant authorities before entering into agreement for ICA.

SUGGESTIONS - Before entering into arbitration agreement w foreign state/state entity, advisable to check:

a) agents of state/state entity have necessary authority to do so.
b) any necessary procedures to obtain consent have been followed.
- Sensible to include statement to this effect on contract.

SOLUTION:

  1. European Convention 1961: ‘legal persons of public law’ should have right to conclude valid arbitration agreements. State wish to limit facility - say so on signing, ratifying or acceding to Convention.
  2. Swiss Law: If party to arbitration agreement is a state/enterprise/Org. controlled by it, cannot rely on own law to contest capacity.
  • Issue of State capacity = issue of (subjective) arbitrability. Self imposed, waivable.
  • Not a true limitation, like mental disability.
29
Q

Analysis of Arbitration Agreement

A
  1. Scope
  2. Basic Elements
  3. Separability
  4. Summary
30
Q

Scope (of Arbitration Agreement)

A

Arbitration agreement confers mandate upon tribunal to decide any and all disputes w/in its ambit. Exceeding mandate = refused recognition/enforcement.
- NYC Art. V(1)(c) and Model Law

THREE Categories of Claim Potentially w/in Scope of Arbitration Agreement:

  1. Contractual Claims (incl. incidental claims, e.g. ‘quantum meruit’)
  2. Tort Claims (DLR)
  3. Statutory Claims
    - Necessary to determine sufficient connection w contract to be covered by arbitration agreement.

Statutory Claims: securities and anti-trust legislation.
- examine claim/defence i.r.t. wording of the arbitration agreement, to decide sufficiently close connection. Forms of words are imp.

31
Q

Scope: Forms of Wording

A

The arbitration agreement should be drafted in broad, inclusionary terms, rather than referring only certain categories of dispute to arbitration and leaving others to the jurisdiction of national courts.

  1. General Words: claims, differences, disputes, controversies
  2. Linking Words: in-connection-with, in-relation-to, in-respect-of, with-regard-to, arising-out-of, under
  3. Party Conduct: implied agreement to confer wide jurisdiction, beyond agreement; e.g. Tort claim addressed by parties in arbitral proceedings w/out reservation as to jurisdiction

UK Law:
‘presumption of one-stop arbitration’ in the interpretation of the arbitration agreement
*Fiona Trust Case

Swiss Law:
A general reference to ‘disputes related to the agreement’ may extend to claims arising out of ancillary or connected contracts, provided that those contracts do not contain different dispute resolution clauses

32
Q

Basic Elements (of Arbitration Agreement)

A
  1. Valid Arbitration Agreement
  2. *No. of Arbitrators (1 or 3)
  3. Est. of Tribunal
  4. Type: Ad Hoc/Institutional (switch thru submission agreement)
  5. Filling Vacancies in Tribunal
  6. *Seat of Arbitration
  7. *Governing law(s)
  8. Default Clauses (UNCITRAL Rules, Art. 30)
  9. Language (ICC Rules, Art. 20)
  10. Multi-Tier Clauses
  11. Sole-Option Clauses
  12. Other Procedural Matters (only for Ad Hoc type - incl. additional/special powers)

*Recommended: Use of Model Law

33
Q

Basic Elements: Multi-Tier DR Clauses

A
  • at least 2 diff. forms of DR procedure
  • enforceable if provides for certainty threshold.

Australian Law:
An agreement to negotiate in good faith entails an undertaking to to behave in a particular manner, therefore = more than a mere ‘agreement to agree’.

Singapore Law:
Bare agreement to mediate is valid and enforceable wrt Traditional Asian value of “promoting friendly negotiations and settlement whenever possible”

UK Law:
*Cable & Wireless: ‘sufficiently certain and definable minimum duty of participation’
[[BUT]]
*Sulamerica Case: no clear undertaking, no defined mediation process
*Tang Chung Wah Case: too equivocal, too nebulous, no guidance as to quality/nature of attempt to be made to resolve dispute

Swiss Law:
X GmbH: no procedural framework for negotiations, no prescribed time-limit for initiation of conciliation proceedings

  • advantage: fully explore possibility of amicable settlement
  • disadvantage: if amicable settlement possible, likely to explore before dispute arises, if not, pre-arbitral tiers simply delay and obstruct launch of determinative proceedings

Duty of CARE

  1. Clearly defined ADR procedure (specific time period)
  2. Parties’ respective obligations
34
Q

Basic Elements: Sole Option Clauses

A

Sole/Unilateral Option: One party has a choice as to whether to bring a claim in a specified forum other than the DR forum binding other party.

UK Law: Valid and Enforceable
*Law Debenture Trust

Russian Law: Not Valid
*Russian Telephone Co. - violated principal of procedural equality b/w parties. Did not strike out, but conferred right on BOTH parties.

French Law: Uncertain
*X v Banque Privée Edmond de Rothschild Europe (Rothschild Case) - Clause was ‘protestative in nature’, ‘for sole benefit of the Bank’, therefore contrary to Brussels Regulation.

35
Q

Separability

A

Analysis 1:
Arbitration clause in contract is considered separate from main contract - survives termination/breach of that contract; for purpose of measuring claims arising out of such breach and determining mode of settlement.

Analysis 2:
2 separate contracts - primary/main (commercial obligations) and secondary/collateral (obligation to arbitrate)

Int’l Rules:

  1. UNCITRAL Rules: In context of pleas as to the tribunal’s jurisdiction, ‘an arbitration clause shall be treated as independent (of other terms of contract) agreement.
  2. Model Law Art. 16(1): A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
  3. LCIA Rules Art. 23(2): A decision by the Arbitral Tribunal that such other agreement is non-existent, invalid or ineffective shall not entail (of itself) the non existence, invalidity or ineffectiveness of the arbitration clause.

CASE LAW:

  1. French: Gosset case
  2. US: Prima Paint case
  3. China
  4. UK: Fiona Trust case - EAA 1996 S.7 - ‘shall not be regarded as invalid, non existent or ineffective because that other agreement … did not come into existence’
36
Q

Categories of Dispute for Which Questions of Arbitrability Arise

A
  1. Patents, TMs, and Copyright (IPR)
  2. Anti-trust and Competition Laws
  3. Securities Transactions
  4. Insolvency
  5. Bribery and Corruption
  6. Fraud
  7. Natural Resources
  8. Corp. Governance Disputes
37
Q

Arbitrability: IPR

A

YES, b/c:

  1. Freedom of choice (expertise)
  2. Privacy (confidentiality of trade secrets)
38
Q

Arbitrability: Antitrust and Competition Laws

A

YES:

  1. France: Mors/Labinal case
  2. Swiss
  3. US: American Safety case < Mitsubishi case (arbitrable u/FAA
  4. EU: Eco Swiss Chine Time Ltd. v Benetton Int’l NV
  • A ‘minimalist’ standard of review is appropriate
39
Q

Arbitrability: Securities Transactions

A

US:
1953: NOT arbitrable
1974: Arbitrable
*Scherk v Alberto-Culver
HELD: “a ‘parochial refusal by the courts of one country to enforce an international arbitration agreement’:
1. Frustrate the purpose of the agreement
2. ‘Damage the fabric of international commerce and trade
3. Imperil the willingness and ability of businessmen to enter into international commercial agreements.”

Germany: Restricts availability of arbitration to commercial cases - both parties are estd. businesses/companies.

40
Q

Arbitrability: Insolvency

A

Distinction b/w:

  1. ‘Core’/’Pure’ Insolvency Issues: Inherently NON-Arbitrable (e.g. Adjudication of insolvency/verification of creditors’ claims)
  2. Remaining circumstances of cases involving insolvency of one of the parties to a Commercial Arb. Agreement.
    - Precise location of division varies b/w countries, will depend partly on national insolvency laws

STRICT:

  1. US
  2. EU
  3. Argentina

LIBERAL:

  1. Switzerland
  2. Germany (except ‘Pure’)
  3. UK: EAA 1996 introduced specific procedure into English Insolvency Act 1986 - allows a trustee in bankruptcy to adopt/reject arbitration agreement. Allows trustee to recognise ‘unprofitable’ contracts.
41
Q

Arbitrability: Bribery and Corruption

A

Unclear, but may be arbitrable based on doctrine of separability

Suo Motu investigation = straying into Ultra Petita territory;
HOWEVER, NOT investigating = threaten enforceability of award

[Striking right balance is not easy]

42
Q

Arbitrability: Fraud

A

YES.

Fougerolle case:
Tribunal refused reversal of award (approved by ICC Court). Annulment possible if fraud was proved - but decided there was no fraud in this case.

43
Q

Arbitrability: Natural Resources

A

YES.

1982 Utopian Case: Tribunal made an important distinction b/w the govt. decision itself (to stop
the exploitation of natural resources, i.e., exercise of sovereignty = unchallengeable) and financial consequences of that decision wrt the
disputed (arbitrable) contract

44
Q

Arbitrability: Corp. Governance Disputes

A

YES.
UK: Fulham Football Club case: HELD “there was no reason why an ‘unfair prejudice’ claim should be ‘inherently unsuitable’ for determination by arbitration.”

APPLICABILITY TEST:
“the matters in dispute … engage third party rights or represent an attempt to delegate to the arbitrators what is a matter of public interest which cannot be determined within the limitations of a private contractual process”

EXCEPTIONS:

  1. Dutch Courts: NOT - HELD “a dispute concerning the validity of a shareholders’ meeting or resolution is not arbitrable.”
  2. Russian Courts: NOT.
    * Maximov v Novolipetsky Metallurgicheskiy Kombinat

International Arbitration (19 decks)

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