Week 5 Arbitration (II)

Question 1

How do you determine the number of arbitrator(s)?

Answer 1

The parties are free to determine this - this is also an advantage of arbitration as parties have influence in the appointment of the arbitrator(s)
In general, there is one (sole) arbitrator or three (a panel of arbitrators)
- See art 10 UNCITRAL ML/ art 1026 DCCP

Question 2

What is the disadvantage of having a panel of arbitrator(s)?

Answer 2

The proceedings will be slowed down

Question 3

How to appointment arbitrator(s)

Answer 3

Each party appoints one arbitrator, bot arbitrators jointly appoint the chair/third arbitrator (see art 11 DCCP)

Question 4

How to accept the mandate of arbitrator in Dutch Law?

Answer 4

In writing - Art 1029(1) DCCP

Question 5

What is the applicable arbitration rule for the procedure if it is ad hoc arbitration?

Answer 5

UNCITRAL Arbitration Rules

Question 6

What is the applicable arbitration rules if it is institutional

Answer 6

By the standing set of rules of the institution. So if it is the NAI, then NAI Arbitration Rules (2015) apply

Question 7

What is the sequence of events in arbitration?

Answer 7

1. Notice/request for arbitration.
2. Response/answer to the notice of arbitration.
3. Procedural order by Tribunal
4. Statement of claim
5. Statement of defence
6. Oral hearing

Question 8

Notice/request for arbitration

Answer 8

States the parties, the contract, refers to the agreement, states the lawyers

Question 9

Can parties appoint the arbitrators in summary proceedings (e.g., at the NAI)?

Answer 9

No! parties are not allowed to appoint arbitrators in summary proceedings (at an institution) because it may cause a very long discussion.

Question 10

Response to notice of arbitration

Answer 10

• Gives some preliminary views on the claim starting with the defence
• Used by institution if they have to appoint the arbitrators because then they know the topic of discussion
• This is the point a party or arbitrator(s) can argue that agreement is not valid

Question 11

Procedural order by Tribunal

Answer 11

Procedural order is often the conference when the tribunal comes up with how to proceed
- E.g., one written round of written statements from each party will do, then an oral hearing, etc.

Question 12

Statement of claim

Answer 12

• This contains a further elaboration of the position taken at the start of the arbitration
• This tribunal will always ask if you have proof of a specific statement
• Filed within 6 weeks so they know exactly the date when the tribunal rendered the procedural orders

Question 13

Statement of defence

Answer 13

From when the statement of claim is filed, you have another 6 weeks to give the defence

Question 14

Oral hearing

Answer 14

Integral part of general principles of ECHR - Art 6 ECHR: entitled to oral hearings. This part is repetitive as it is just repeating what’s written down.

Question 15

Termination of proceedings

Answer 15

Settlement: arbitrator or tribunal will try to reach a reasonable settlement
Final award
Order for termination (see Art 32(2) UNCITRAL Model Law)

Question 16

What is an interim arbitral award

Answer 16

Requires submission evidence

Question 17

What is a final arbitral award

Answer 17

Outcome of dismissal or awarding the claim and is the end of the dispute

Question 18

In general, the 5 parts of the award

Answer 18

1. ‘Administrative’ information: Parties involved, arbitrators, applicable law
2. Course of the proceedings
3. Position of the parties
4. Considerations court/tribunal
5. Operative part

Question 19

Can there be remedies in arbitration?

Answer 19

Generally, no, as there is no chance of appeal as arbitration has finality of the award.
Remedy/appeal can only happen if the parties agree in the arbitration clause that an appeal is allowed.

Question 20

Can you set aside an arbitral award?

Answer 20

There is limited grounds under Art 1065 DCCP/Art 34 UNCITRAL ML

Question 21

Setting aside proceedings

Answer 21

Goal: setting aside/annulling the award
Who has jurisdiction?
- wherever the place of arbitration is
- DCCP: since 1 January 2015, Court of Appeal
- UNCITRAL ML: Art 6
Applicable law?
- Procedural law of place of arbitration
-See Art 1065 DCCP
Look at the (limited) grounds for setting aside
- Art 1065 DCCP/Art 34(2) UNCITRAL ML
- Art 1064 + Art 1065 Book 4 DCC: provides how to set aside Court proceedings after the judgement has been given
What happens once the award is annulled?
- Then, there is no arbitration agreement and you must go to court proceedings
- Otherwise, the award is annulled, but the arbitration agreement is still in force and you must arbitrate again, unless the parties agree otherwise

Question 22

What happens if parties cannot agree on number of arbitrators?

Answer 22

Default Mechanism under the 2013 UNCITRAL Arbitration Rules:
If no agreement on the number of arbitrators and the method of their appointment is reached, either party may request the application of the default solutions under the applicable UNCITRAL Arbitration Rules.
Based on Articles 7 through 9 of the 2013 UNCITRAL Arbitration Rules.

Question 23

Advantage of having one arbitrator

Answer 23

• The advantage of one arbitrator is that it is quicker proceeding
• Also, no dissenting opinion (as is possible under Dutch and international law), and so no backing in that sense if you want to set aside the judgement

Question 24

Advantage of having three (a panel/tribunal) of arbitrators

Answer 24

• The judgement will be more comprehensive as three experts have looked at this and gave their opinion
• Also, if it is a big money case or more complex case, then more arbitrators could be beneficial as it can be more holistic and comprehensive.