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Chapter 7 Arbitration Procedure

Chapter 7 Arbitration Procedure. Contents. How the arbitration is to be carried out How to initiate the arbitration How to compose the arbitration tribunal How the merits of the case are tried How to render the Award Decided by the applied ARBITRATION RULES in particular case.

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Chapter 7 Arbitration Procedure

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  1. Chapter 7Arbitration Procedure

  2. Contents • How the arbitration is to be carried out • How to initiate the arbitration • How to compose the arbitration tribunal • How the merits of the case are tried • How to render the Award • Decided by the applied ARBITRATION RULES in particular case

  3. Arbitration Rules v. Law • Purpose: performing v. regulating • mode of application • binding force

  4. Initiation of the Arbitration • Notice of arbitration is received by the Respondent (UNCITRAL Rules) • The Request is received by the Secretariat (ICC, AAA ,LCIA,CIETAC and most of the institutions’ rules)

  5. Notice of Arb. (UNCITRAL) • Demand for arbitration • Names and addresses of the parties • Reference to the arb. Agreement • Dispute covered by the arb. Agreement • Nature of claims and amount involved • Relief or remedy sought • Proposal as to the number of arbitrators

  6. Notice of Arb. (UNCITRAL) • Proposal for the appointments of a sole arbitrator or appointing authority • Notification of the appointment of an arbitrator when 3 arbitrator required • The statement of claim

  7. Statement of Claim(申请书) • Names and addresses of the parties • Statement of the facts supporting the claim • Points at issue • Relief or remedy sought

  8. Statement of Defense(答辩状) • Parties • Facts • Merits • Reliefs

  9. Composition of Tribunal • Sole arbitrator tribunal • Two arbitrators plus an umpire tribunal • Three arbitrators tribunal

  10. R. A. Sally(Fin.) v. S.R.L. Termarea (Italy) 455 • C/P between Sally and Termarea • Arbitration clause • Demurage claim from Sally • Award by two chosen arbitrators • Refusing enforcement by the Italian court due to improper composition of the tribunal

  11. Trial of the case • Terms of reference • Place of arbitration • Method of trial • Award rendered

  12. Terms of reference(ICC Art.18) • Parties’names and descriptions; • Communicable addresses of the parties • Parties’ brief claims and counterclaims • List of issue to be determined • Arbitrators full names and descriptions • Place of the arbitration • Other particulars

  13. 仲裁地点及其决定 • 仲裁地点、开庭地点、仲裁庭合议案件的地点 • 仲裁 • 当事人约定 • 仲裁规则决定 • 仲裁机构所在地与仲裁地点之间的关系

  14. Place of arbitration • The Seat or Legal Place of the arbitration: where the award was made • The place where the case is to be hard • The place where the tribunal deliberate the case • Difference and similarities • Determination of the seat

  15. Determination of the seat • By the applied arbitration rules or law • By Parties autonomy • By the arbitration institution or the tribunal • Whether the place of arbitration is the very location of the institution ?

  16. Place of arbitration in China • No direct provision by law • Indirect provision (Art. 58 Arb. Law) • Art.31 CIETAC Rules • by agreement; • headquarter or sub-commission; • award made at the place of arbitration

  17. CIEATC Rules: Art. 31 仲裁地 • 双方当事人书面约定仲裁地的,从其约定。 • 如果当事人对仲裁地未作约定,仲裁委员会所在地为仲裁地。 • 仲裁裁决应视为在仲裁地作出。

  18. 审理方式 • 开庭审理:oral hearing • 书面审理: without oral hearing based on the written documents

  19. Hearings • Chairman arbitrator declared the parties and the composition of the tribunal • Statement of claim • Answer • Evidence • Conciliation upon the agreement • Close statement

  20. Without Hearing • On the basis of documents and other materials for summary procedure • By parties autonomy

  21. Paklito v. Klockner (251) • CIETAC award in 1990 • Sales contract b/w the parties • White rust on the steel coils • Defects existed during manufacturing process by the report • Comments requirement from the respondent without such comments

  22. US Firm v. FRG Firm (262) • AAA award on written procedure • German court of first instance grant the enforcement • Court of Appeal refused enforcement due to public policy in 1975

  23. Languages to be used • By arbitration rules • By parties autonomy

  24. End of the Procedure • Find out the facts • Apply appropriate law • Render award impartially and independently

  25. 仲裁规则与仲裁法之间的联系 • 规范仲裁行为的规则 • 制定机构与实施机构 • 法律性质 • 覆盖范围

  26. 仲裁规则及其适用 • 仲裁规则的制定与实施 • 临时仲裁庭仲裁规则的适用 • 常设仲裁机构仲裁规则的制定与实施

  27. Applicable Law for Int’l Arbitration Procedure • Basic principle: parties’ autonomy • Role of the law of the State where the arbitration is taken place • Mandatory provisions

  28. Union of India v. Mcdonell Douglas Corporation (269) • Indian Arbitration Act of 1940 or any reenactment or modification thereof • The seat of arbitration proceedings shall be London. • What is the law governing the arbitration proceedings?

  29. Delocalized Arbitration • International arbitration has no real relation with the local legal order. • Gotaverken(瑞典造船厂) v. Libyan General National Maritime Transport • SEEE v. Yugoslavia • 法国和瑞士均拒绝对在其境内作出的裁决行使撤销裁决监督权。

  30. Chromalloy Aeroservices Inc. v. MOD of the Republic of Egypt • K to provide maintenance and support fro a fleet of Sea King Commando helicopters for four years • Egypt party terminated one year before • Chromalloy refused to accept the notification of the cancellation of the K.

  31. Arbitration & Litigation • Award made by ad hoc tribunal • Award was set aside by the Egyptian Ct. • Chromalloy applied to the French and US court for enforcing the award set aside by the Egyptian court.

  32. Practices in China • Arbitration legislation relating to arbitration procedure • Arbitration rules of the arbitration commissions • Conciliation in the arbitration proceedings

  33. 黎明大酒店案(292) • 酒店经营管理合同争议 • 被申请人参加了庭审,一方面提出了管辖权异议;另一方面又就实体问题进行了答辩; • 仲裁协议无效而拒绝承认与执行裁决;仲裁委未能就管辖权异议作出决定。

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