INTERNATIONAL COMMERCIAL ARBITRATION July 25, 2017 Law School – National University of Rosario Preparation “Willem Vis Moot”

Presentación del tema: "INTERNATIONAL COMMERCIAL ARBITRATION July 25, 2017 Law School – National University of Rosario Preparation “Willem Vis Moot”"— Transcripción de la presentación:

1 INTERNATIONAL COMMERCIAL ARBITRATION July 25, 2017 Law School – National University of Rosario Preparation “Willem Vis Moot”

2 Arbitration as a Dispute Settlement Mechanism Definition Mechanism for the final and binding determination of disputes, contractual or other relationship with an international element, by a independient arbitrators, in accordance with procedures, structures and substantive legal or non- legal standards chosen directly or indirectly by the parties. Features An alternative to national court, private mechanism for dispute resolution, selected and controlled by the parties, final and binding determination of parties' rights and obligations. Arbitration compared with National Courts (Flexible procedure, suitability for international transactions, final and binding, easy enforcement, neutrality, expert arbitrators, confidentiality, expedition, cost)

3 Regulatory Framework for Arbitration For arbitration suceed. Control the legal status and effectiveness of arbitration. Effect to the agreement to arbitrate, the organisation of the arbitration process and the finality and enforceability of the arbitration award. Arbitration established by the States but selected by the parties. The extend to which parties can refer their disputes to arbitration (matter regulated by law)

4 Essential Characteristics of International Commercial Arbitration The meaning of Commercial Many jurisdictions → Many definitions. UNCITRAL Model law (Art. 1.1. footnote) 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. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business cooperation; carriage of goods or passengers by air, sea, rail or road.

5 Essential Characteristics of International Commercial Arbitration The meaning of International International – Domestic → Application of different set of rules. Objective criterion International commerce interests, cross-border elements (underlying contract), the dispute is referred to a genuinely international arbitration institution. Subjective criterion Diversity of Nationality, place of business of parties. Restrictive. Modern combined criterion. UNCITRAL Model Law approach (3) An arbitration is international if: (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 if determined in, or pursuant to, the arbitration agreement; (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; or(c)the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

6 Delocalised arbitration Emancipation from national laws Detached completely from the law of the place of arbitration – no need support by local courts.

7 Drafting of the arbitration agreement - Consent to arbitrate: Clear and unambiguos. - Validity: writing and signed. - Importance of drafting an arbitration clause. Grant jurisdiction to the tribunal and lead the procedure efficiently and quickly

8 Drafting of the arbitration agreement - Consent to arbitrate: Clear and unambiguos. - Validity: writing and signed. - Importance of drafting an arbitration clause. Grant jurisdiction to the tribunal and lead the procedure efficiently and quickly

9 Elements of the arbitration clause - Essential Ingredients of an Arbitration Agreement (the agreement to arbitrate, the scope of the arbitration agreement and the finality of the award). - Other relevant considerations (which institution, the place of arbitration, the number of arbitrators, the method of appointment and qualification of the arbitrators, the language of the arbitration, the procedure to be followed, the applicable rules to determina the issues in dispute, timetable for the award, etc.)