International Economic Arbitration

Name: International Economic Arbitration
Brand: Kluwer Law International
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Klaus Peter Berger(Author)

Kluwer Law International (Publisher)

Published on 6. March 1993

984 pages

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978-90-411-7425-3 (ISBN)

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Content

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
Foreword
Table of Contents
List of Abbreviations
Table of Cases
Chapter I Introduction: Legislative Competition for International Economic Arbitrations
I. The Competitive Era
II. Legal Problems of Legislative Competition
III. Analysis of Modern Arbitral Legislation: Objectives and Methods
A. OBJECTIVES
B. COURSE AND METHODS OF THE STUDY
1. Party Autonomy and Efficient Enforcement of Awards
2. Uniform Interpretation of Modern Arbitration Laws
Chapter II Procedural Framework: Arbitration Law, Arbitration Rules and Arbitration Agreement
I. Arbitration Laws
A. SWITZERLAND
1. Chapter 12 of the Federal Statute on International Private Law
a. Structure
b. Scope: Special Statute for International Arbitration
2. Federal Law on the Organization of the Federal Judiciary
3. Intercantonal Concordat on Arbitration
4. Cantonal Law of Civil Procedure
B. THE NETHERLANDS: NEW BOOK FOUR OF THE CODE OF CIVIL PROCEDURE
1. Structure
2. Scope: Universal Statute for Domestic and International Arbitrations
C. GERMANY: THE PROJECTED ADOPTION OF THE UNCITRAL MODEL LAW
1. Structure and Genesis of the Model Law
2. General Problems of Acceptance
3. Reception in Germany
a. The 'Small' Arbitration Law Reform of 1986
b. The Radical Reform
4. Scope: Special Statute for International Arbitration
II. Arbitration Rules
A. INTERNATIONAL ARBITRATION RULES OF THE ZURICH CHAMBER OF COMMERCE
B. ARBITRATION RULES OF THE NETHERLANDS ARBITRATION INSTITUTE (NAI)
C. INTERNATIONAL ARBITRATION RULES IN GERMANY
1. Arbitration Rules of the German Institution of Arbitration (DIS)
2. Arbitration Rules of the Arbitration Court Berlin
D. UNCITRAL ARBITRATION RULES
III. Scope of the New Arbitration Laws
A. SUBJECTS COVERED BY THE NEW LAWS
1. 'Economic' Arbitration
a. Delimitation
b. Terminology
2. 'International' Arbitration
3. 'Arbitration '
a. Arbitration, Expertise and 'Bindend Advies'
b. Determination of Constitutive Elements of the Contract
c. Modification and Adaptation of the Contract
B. TERRITORIAL SCOPE OF THE NEW ARBITRATION LAWS
1. Significance of the Territorial Link
2. Dogmatic Foundation of the Territoriality Concept
3. Exceptions from the Rule
a. Norms of the Lex Arbitri without Territorial Nexus
b. 'Opting In' in Foreign Arbitrations?
4. Seat of the Arbitration as Connecting Factor
a. The Notion of 'Seat'
b. Determination of the Seat
c. Court Assistance in Case of Lacking Designation of Seat
C. TEMPORARY SCOPE OF THE NEW LAWS
1. Intertemporal Procedural Law
2. Transitory Norms for Substantive Law
3. Transitory Conflict-of-Law Rules
4. The Special Case of Setting-Aside Procedures before Domestic Courts
IV. Arbitration Agreement
A. CONTENTS
1. Designation of the Parties and Subject Matter of the Dispute
2. Procedural Stipulations in the Arbitration Agreement
B. FORMAL VALIDITY
1. Coexistence of Domestic and Uniform Treaty Law
2. Legal Nature of the Formal Validity Requirements of Domestic Law
3. Formal Validity Requirements of Arbitration Agreements
a. Both Parties Have Agreed in Writing
b. Only One Party Has Agreed in Writing
c. Oral Arbitration Agreement
d. Arbitration Agreement by Reference
C. SUBSTANTIVE VALIDITY
1. Applicable Law
a. Applicable Domestic Law
b. Application of Principles of Transnational Law: The 'Group Concept'
c. Scope of Applicable Law
2. Participation of State Parties
a. States as Parties to Arbitration Agreements
b. Arbitrability and Capacity to Arbitrate
c. Plea of Immunity
d. Identification of the State Party
3. Arbitrability of the Subject Matter
V. Summary
Chapter III The Arbitral Tribunal: Constitution and Competence
I. Constitution of the Arbitral Tribunal
A. APPOINTMENT OF ARBITRATORS
1. Number of Arbitrators
2. Qualifications of Arbitrators
a. Lawyer versus Engineer
b. Judges as Arbitrators
c. Nationality of Arbitrators
3. Procedure
a. Appointment Procedure under the New Laws
b. Appointment by the Parties
c. Appointment by the Court
d. Substitution al Appointment by the Court
B. CONTRACT BETWEEN ARBITRATOR AND PARTIES
1. Conclusion and Contents
2. Arbitrators' Immunity from Liability
3. Arbitrator's Remuneration
C. PRIVILEGED POSITION OF ONE PARTY IN APPOINTING THE ARBITRATORS
II. Challenge and Replacement of Arbitrators
A. GROUNDS FOR CHALLENGE
1. Justifiable Doubts as to the Arbitrator's Independence or Impartiality
2. Challenge of Party-Appointed Arbitrators
3. Other Grounds for Challenge
4. Challenge of Secretaries
B. DISCLOSURE AND PRECLUSION
1. Arbitrator's Duty to Disclose
2. Preclusion
a. Prerequisites and Effects During the Arbitration
b. Preclusion Before the Court
C. CHALLENGE PROCEDURE
1. Time Limits for Challenge
2. Court Control
a. Right to Apply for Court Control and Time Limits
b. Mandatory Court Control?
c. The Parties' Right of Appeal
d. Suspension of the Proceedings During Challenge
D. REPLACEMENT OF ARBITRATOR
E. TERMINATION OF MANDATE AND RELEASE FROM MANDATE
III. Multi-Party Arbitration
A. INVOLVEMENT OF THIRD PARTIES
1. Court-Ordered Consolidation
2. Consolidation under the ZuArbR
3. Joinder of Third Parties
B. COMPOSITION OF THE TRIBUNAL IN MULTI-PARTY ARBITRATION
IV. Jurisdiction of the Arbitral Tribunal
A. ENFORCEMENT OF THE ARBITRATION AGREEMENT
1. Prerequisites
2. Applicable Law
3. Effect
4. Means of Appeal
5. Relationship between Court and Arbitral Control of Competence
B. INTERIM MEASURES OF PROTECTION
1. Legal Basis
2. Prerequisites
3. Scope
4. Enforceability
5. Provisional Relief Ordered by the Courts
C. 'KOMPETENZ-KOMPETENZ' OF THE ARBITRAL TRIBUNAL
1. Ex Officio Examination and Preclusion
a. Preclusion as to Pleas Concerning the Validity of the Arbitration Agreement
b. Preclusion as to Pleas Concerning the Composition of the Tribunal and Other Pleas
2. Court Control
a. Tribunal's Negative Ruling on Jurisdiction
b. Tribunal's Positive Ruling on Jurisdiction
V. Summary
Chapter IV Introduction and Course of the Proceedings
I. Introduction of the Arbitration
A. LIS PENDENS
B. REQUEST FOR ARBITRATION
1. Regular Procedure
a. Contents
b. Administration Fee
2. Procedure in Urgent Cases
II. Preparatory Measures
A. ADVANCE FOR COSTS
B. REPRESENTATION OF THE PARTIES
C. LANGUAGE
D. PREPARATORY PROCEDURAL MANAGEMENT
1. 'Decree for Directions'/'Terms of Reference'
2. Pre-Hearing Conference
3. Pre-Arbitration Mediation or Conciliation
III. Written Submissions
A. STRUCTURE
B. DEADLINES
IV. Hearing
A. HEARING VERSUS 'DOCUMENTS-ONLY' PROCEDURE
B. STRUCTURING THE HEARING
C. TAKING MINUTES OF THE HEARING
V. Taking of Evidence
A. DOCUMENTS
B. EXPERT EVIDENCE
C. WITNESSES
D. SITE INSPECTION
E. EVALUATION OF EVIDENCE BY THE ARBITRATORS
1. The Parties' Offers of Evidence and their Right to be Heard
2. General Principles Concerning the Parties' Burden of Proof
3. Settlement Negotiations and the Evaluation of Evidence
VI. Court Assistance in the Taking of Evidence
A. INFORMATION ON FOREIGN LAW
B. REQUEST FOR A PRELIMINARY RULING UNDER ART. 177 EC-TREATY
C. OTHER ASSISTORY FUNCTIONS OF THE COURTS RELATING TO THE TAKING OF EVIDENCE
D. FURTHER MEASURES OF JUDICIAL ASSISTANCE?
VII. Counterclaim, Set-Off, Amendment of Claims and Submissions after Closure of Hearing
A. COUNTERCLAIM
B. SET-OFF
C. AMENDMENT OF CLAIM
D. LATE SUBMISSIONS AFTER CLOSURE OF HEARING
VIII. Default
A. DEFAULT OF THE CLAIMANT
B. DEFAULT OF THE RESPONDENT
IX. Summary
Chapter V Applicable Law
I. Procedural Law
A. INCLUSION BY REFERENCE OF FOREIGN ARBITRATION LAW
B. TRANSNATIONAL ARBITRAL PROCEDURE?
C. ARBITRATION RULES AS 'CONTRACTUAL NORMS'
II. Substantive Law
A. CHOICE OF LAW BY THE PARTIES
B. DETERMINATION OF THE APPLICABLE LAW BY THE ARBITRATORS
1. The Different Approaches
2. Convergence of the Different Approaches
a. The Conflict-of-laws Problem in International Economic Arbitration
b. Uniform Approach to Conflict-of-laws
C. INTERPRETATION AND APPLICATION OF SUBSTANTIVE LAW BY INTERNATIONAL ARBITRATORS
1. Practical Relevance: Applicable Law and Case Law
2. The Effect of Precedents in Civil and Common Law
3. The International Arbitrator's Application of Court Precedents
4. The International Arbitrator's Application of Arbitral Precedents
III. Choice and Application of Transnational Law
A. BASIC CONSIDERATIONS
B. CONTENTS OF THE LEX MERCATORIA: A PRIMER ON GENERAL PRINCIPLES OF INTERNATIONAL ECONOMIC LAW
C. POSITION TAKEN BY THE NEW ARBITRATION LAWS
1. Choice of Lex Mercatoria by the Parties
2. Designation of Lex Mercatoria by the Arbitrators
IV. Amiable Compositeur and Trade Usages
A. INTERNATIONAL ARBITRATORS ACTING AS AMIABLES COMPOSITEURS
1. Powers of Amiables Compositeurs
2. Limits oi the Amiable Compositeur's Powers
a. Will of the Parties
b. Ordre Public
B. THE INTERNATIONAL ARBITRATOR'S CONSIDERATION OF APPLICABLE TRADE USAGES
V. Summary
Chapter VI Termination of the Arbitration
I. Award on Agreed Terms
A. PRECONDITIONS
B. EFFECTS
II. Arbitral Award
A. A UNIFORM CONCEPT OF FINAL AWARDS, INTERIM AWARDS AND PROCEDURAL ORDERS
B. RENDERING OF THE AWARD
1. Deliberations
2. Voting
3. Signature
4. Deadline
5. Communication to the Parties and Publication
C. FORM AND CONTENTS
1. Written Form
2. Contents
3. Dissenting Opinions
D. EFFECTS OF THE AWARD
E. DECISION ON COSTS
1. Costs of the Arbitration
2. Costs for Legal Representation and Assistance of the Parties
F. INTEREST
1. Applicable Law
2. General Principles Relating to Interest
a. Simple Interest
b. Compound Interest
3. Particularities in Case o[ English Law as Lex Causae
4. Scrutiny of Awarded Interest by Domestic Courts?
III. Termination of the Arbitral Procedure without Award
A. WITHDRAWAL OF CLAIM
B. OTHER REASONS FOR TERMINATION OF THE ARBITRATION
IV. Correction, Interpretation and Supplementation of the Award
A. CORRECTION
B. INTERPRETATION
C. ADDITIONAL AWARD
V. Summary
Chapter VII Awards before Domestic Courts: Setting Aside and Enforcement
I. Judicial Control of Awards at the Seat of the Arbitration
A. SIGNIFICANCE OF COURT CONTROL OF ARBITRAL AWARDS AT THE SEAT OF THE ARBITRATION
1. Extraterritorial Effect of Setting-aside Decisions
2. Quality and Intensity of Court Control
B. AWARDS SUBJECT TO SETTING ASIDE
1. The Principle
2. Exceptions for Awards on Jurisdiction, Challenges of Arbitrators and Partial Awards under Swiss Law
C. GROUNDS FOR SETTING ASIDE
1. Procedural Irregularities
2. Errors Relating to Substantive Law
a. Violations of Ordre Public
b. Errors in the Application of Substantive Law
c. Application of the 'Wrong' Law
d. Ex Aequo et Bono Decisions Without Authorization from the Parties
e. Application of the Lex Mercatoria
f. Violation of Mandatory Norms
3. Revocation of the Award
D. PROCEDURE
1. Time Limit
2. Competent Court and Stages of Appeal
3. Suspension of Enforcement
4. Effects of Setting Aside
E. EXCLUSION OF RECOURSE
1. Waiver of Recourse after Receipt of the Award by the Parties
2. Exclusion Agreements in the Pre-Award Stage
a. Effects in Case of Award Granting the Relief Sought
b. Effects in Case of Award Denying the Relief Sought
3. Conclusion
II. Recognition and Enforcement of Awards
A. ENFORCEMENT OF DOMESTIC AWARDS
B. ENFORCEMENT OF FOREIGN AWARDS
III. Summary
Chapter VIII Conclusion
I. Monistic or Dualistic Legislative Approach?
II. Comprehensiveness of Modern Arbitral Legislation
A. REGULATORY MINIMALISM VERSUS LEGISLATIVE PERFECTIONISM
B. EXPECTATIONS OF PARTIES, COUNSEL, ARBITRATORS AND ARBITRAL INSTITUTIONS
C. ADVANTAGES OF LEGISLATIVE ARBITRATION RULES
D. AMENDMENTS OF THE MODEL LAW?
III. Quintessence
Bibliography
Annex 1 Addresses of Arbitral Institutions
I. German Institution of Arbitration (DIS)
II. Arbitration Court Berlin
III. Netherlands Arbitration Institute (NAI)
IV. Zurich Chamber of Commerce
V. Secretary-General of the Permanent Court of Arbitration
Annex 2 Model Arbitration Clauses
I. German Institution of Arbitration (DIS)
II. Arbitration Court Berlin
III. Netherlands Arbitration Institute (NAI)
IV. Zurich Chamber of Commerce
V. UNCITRAL-Arbitration Rules
VI. Ad Hoc Arbitration Clause
Annex 3 Arbitration Rules
I. Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS))
II. Arbitration Court Berlin Arbitration Rules
III. Netherlands Arbitration Institute Arbitration Rules
IV. International Arbitration Rules of Zurich Chamber of Commerce
V. UNCITRAL Arbitration Rules
Annex 4 Arbitration Laws
I. UNCITRAL Model Law on International Commercial Arbitration as amended by the Working Group of the German Institute of Arbitration
II. Netherlands Arbitration Act 1986
III. Swiss Federal Statute on Private International Law
A. CHAPTER 12: INTERNATIONAL ARBITRATION
B. CHAPTER 13: TRANSITORY PROVISIONS (EXCERPTS)
C. CHAPTER 1: GENERAL PROVISIONS (EXCERPTS)
IV. Swiss Federal Statute on the Organization of the Federal Judiciary of December 16, 1943 (Excerpts)
Annex 5 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Annex 6 New York Convention of 1958 List of Contracting States
Index
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International Economic Arbitration

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