Chapter 13 International Arbitral Awards.ppt
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1、Chapter 13 International Arbitral Awards,Content of Award,Jurisdiction Procedure Arguments for both parties Tribunals opinion on the issues Award,Classification of the awards,Interim, preliminary award Interlocutory award Consent award Final Award & Partial Award Supplementary award,Final Award,the
2、award contains the final decision of the tribunal on all matters that were submitted to it the award finally settles a portion of the dispute that can be separated from the remainder of the dispute but it does not necessarily terminate the arbitration or the mandate of the arbitrators to consider th
3、e remaining portions of the dispute,Partial Award,a separable portion of the dispute may be finally settled in what is often referred to as a partial award.,Interim award,Generally limited to those awards that do not finally settle any aspect of the dispute, an award on interim measures of protectio
4、n. In some cases it is used to mean a partial award,Consent award,It is a frequent occurrence that the parties in an arbitration are able to arrive at a settlement.,Nationality of the intl award,Source of the legally binding force Power to set aside award National court decides,Criteria to decide th
5、e nationality of intl awards,NYC Territoriality where the award is made Applicable law under which the award is made Other criteria Nationality of the arbitrator:Hungary Signing place of the arbitral award The place of the arbitration institution,Form requirements,Signature Notification Registration
6、? Germany Approval by institution? ICC,Revocation Awards,General principle for remedies: setting aside and refusing enforcement National courts are entitled to set aside their own awards. As to foreign awards, the courts may only decide whether to enforce or not.Revocation of international awards co
7、uld be done only by the national courts that consider the awards as their own (domestic awards).,Intl Standard Elec. Co. (USA) v. Bridas (Argentine),Tibor Varady:International Commercial Arbitraiton, West Group, 1999, 631-636 ICC Arbitration in Mexico city Award in favor of Bridas ISEC (Internationa
8、l Standard Electric Corp) applied to vacate in New York court ISECs petition is dismissed on by the court The forum of arbitration is Mexico city, the governing procedural law is that of Mexico, only the court of Mexico have jurisdiction under the Convention to vacate the award.,International Standa
9、rd Electric Corp.ISEC, a wholly owned subsidiary of International Telephone and Telegraph Co.(ITT) , did business in Argentina by establishing a wholly owned subsidiary, Compania Standard Electric Argentina S.A.(CSEA) Six years later, ISEC sold its 97% interest in CSEA to Siemens, a German multinati
10、onal corporation.,Bridas sought arbitration with the International Chamber of Commerce ICC under the agreement claiming the breach of contract and breach offiduciary obligation for not giving Bridas adequate notice of the proposed sale of its shares to Siemens.Under the agreement the place of arbitr
11、ation was Mexico City and the governing laws of the agreement were those of the State of New York. The arbitrators awarded Bridas damages ,legal fees and expenses of for the costs of the arbitration.,ISEC petitioned to vacate the award at the U.S. District Court for the Southern District of New York
12、, and Bridas cross-petitioned to enforce the award under the 1958 New York Convention. The Court first addressed lack of subject matter jurisdiction to vacate a foreign arbitral award under the Convention. The courts of Mexico, where the award was rendered,were held to have jurisdiction to vacate or
13、 set aside the award.,The Court next considered the phrase “or under the law which, that award was made”for setting aside the award in Article V 1(e)of the 1958 Convention as referred exclusively to the procedural law under which the arbitration was conducted, and not the substantive law of contract
14、 which was applied in the case. The law of the State of New York was the relevant substantive law, and law of Mexico was the governing procedural law.,The Court rejected ISECs defense of manifest disregard of the law, stating that the Convention provided no grounds. The Court granted enforcement of
15、the award.,Croatian co. v. Swiss co.,Tibor Varady:International Commercial Arbitraiton, West Group, 1999, 636-637 Croatian co. applied to the Croatian ct. to set aside the arbitral award made by ICC arbitral tribunal in Switzerland in accordance with substantive Croatian law Rejected by the ct. on t
16、he ground that the procedural law of a foreign state in which award is made was applied.,Conditions for set aside,General principle: procedure issues instead of merits of the case Invalid arbitration agreement Lack of due procedure Tribunal beyond authority Impropriate composition of the tribunal No
17、n-arbitrability of the dispute Award in conflict with the public policy,The Model Law,article 34(a) the party making the application furnishes proof that: (i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to
18、which the parties have subjected it or, failing any indication thereon, under the law of this State; or (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or,(iii) the award
19、 deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submi
20、tted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or,(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provis
21、ion of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or,(b) the court finds that: (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or(ii) the award is in conflict with th
22、e public policy of this State.,Invalid arbitration agreement,ELF Aquitaine Iran(France) v. National Iranian Oil Co. (Iran) 135 Nationalization of oil industry in Iran Arbitration agreement was void. Dispute is settled by the Special Committee of Iran. Sole arbitrator declared its competence.,Lack of
23、 due procedure,Paklito Investment Ltd. v. Klockner East Asia Ltd. Sales contract between the parties Dispute on the defects of the goods Expert opinions and review Award in favor of the buyer Refusing enforcement,Tribunal beyond its authority,Norsolor S. A. (France) v. Pabalk Ticaret Sirketi S.A. (T
24、urkey) Agency agreement b/w French and Turkey co. ICC Arbitration award made in Vienna. Tribunal beyond its authority via amicable compositeur.,Improper composition of the tribunal,Commercial man as arbitrator Engineer of the servant of the parties during the construction work,Arbitrability matters,
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