International Commercial Arbitration
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Transcript of International Commercial Arbitration
International Commercial Arbitration
The procedureUniversity of Oslo
Giuditta Cordero-Moss, Ph.D., Dr.Juris
Professor, Oslo University
Legal framework
• Arbitration agreement
• Arbitration rules
• Arbitration law
• Conventions
• Soft law
• Arbitral tribunal’s discretion
Mandatory principles
• Parties’ consent– Scope of dispute– Parties– Arbitral Tribunal’s powers
• Due process– Impartiality– Each party to be able to present its case
• Arbitrability
• Ordre public
Formal and actual hierarchy
• Arbitration agreement• Arbitration rules• Arbitration law• Conventions
• Soft law• Arbitral tribunal’s
discretion
• Arbitration law• Conventions• Soft law• Arbitral tribunal’s
discretion• Arbitration rules• Agreement bewteen
the parties
Main structure
• Request for arbitration
• Response
• Statement of Claim
• Statement of Defence
• [Terms of reference]
• New exchange of submissions
• Oral Hearing
• Award
Provisional measures: Court’s powers
• Courts have jurisidiction on provisional measures– UNCITRAL Model Law art 17J– Vogl § 8
• Courts may assist in taking of evidence– UNCITRAL Model Law art 27– Vogl §30
Provisional measures: Arbitral tribunal’s power
• Interim measures– UNCITRAL Model Law (post 2006) art 17 A
• Preliminary orders• UNCITRAL Model Law (post 2006) art 17 B
• Emergency arbitrator
Law applicable to the substance
• Parties’ agreement– Not completely unlimited
• Law determined by the arbitral tribunal
How is the applicable law determined?
– The PIL of the place of arbitration• Norway vogl § 31
– The PIL that the arbitrator deems the most appropriate
• UNCITRAL Model Law art. 28– Specific choice-of-law for the arbitration
• Switzerland PILA art. 187– Direct application of the rules of law considered
appropriate• ICC Rules art. 21
– Not specified• Sweden, Italy
Law or rules of law?
• If determined by the arbitral tribunal: law– UNCITRAL Model Law art 28(2)
• If requested by the parties: rules of law• UNCITRAL Model Law art 28(1)
• If requested by the parties: ex bono et aequo• UNCITRAL Model Law art 28(3)
Law or rules of law?
• ICC art. 21, LCIA Art 22.3: rules of law even at tribunal’s initiative
• They are considered as parties’ agreement and are therefore acceptable under Model Law art 28(1)