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(1) Intro
Arbitration: Born: a process by which parties consensually…
(1) Intro
Arbitration: Born: a process by which parties consensually submit a dispute to a non-governmental decision-maker, selected by or for the parties, to render a binding decision resolving a dispute in accordance with neutral, adjudicatory procedures affording each party an opportunity to present its case.
Features of arbitration
Arbi v Liti
similarities
- formal legal process
- application of law to facts of dispute. also includes standard of law
- follows a procedural framework
- judgement is handed down. judgement is called "an award".
- winner = award creditor
- loser = award debtor
differences
- rights of appeal limited
- x-border enforcement easier: via NYConvention
- parties can choose tribunals
- procedure flexible: arbitrants decide
- arbitrant freedom of choice WRT applicable law/standards
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key features:
- both parties must consent
- non governmental decision-maker selected for or by the parties
- final and binding decision on the parties
- procedural rather than substantive in nature
- private
- enforceable across many jurisd
arbitration procedure
- Arbi agreement
- Legal dispute arising btwn parties
- Request for Arbi
- Appointment of Arbi Tribunal
- Arbi Proceedings
- Rendering an award
court tendency to take a pro-arbitration approach
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Relevant Articles in ML
- an arbitration is international when Art 1(3) ML: (a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business: (i) the place of arbitration … (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected ... ’
- Fung San Trading [1991] HC HK: if the substance of the k is to be performed outside of HKG then it will be regarded as international dispute (arbitration)
- Vanol Far East Marketing [1996] HC SG: Subject matter of dispute was outside Singapore and was therefore ‘international’
ML has a broad reach: covers commercial international arbitration in footnote to art 1.1
- "The term “commercial” should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. "
- key principles: party autonomy; reduced judicial interference (A5); and equality of treatment (A18)
institutional arbitration
- Arbitration rules provide a framework for the ‘internal’ procedure of arbitration, governing conduct
- i.e. ICC, LCIA, AAA, SCC, SIAC
ad hoc arbitration
- Parties to arbitration set out provisions on appointment of arbitrator(s) who then act on basis of rules agreed by parties
- Drafted by the parties (rare)
Chosen by the parties
E.g. parties agree to UNCITRAL arbitration rules
If the parties do not adopt a set of arbitration rules, the ‘internal’ procedure is governed by the applicable law (i.e. the law of the arbitral seat)