INTERNATIONAL COMMERCIAL ARBITRATION
2016/2017, Semester 2
Modular Credits: LL4029V ( 5 ) / LL5029V ( 5 ) / LL6029V ( 5 ) / LC5262V ( 5 )
More detailed course description
We will in the course of the semester look at the following topics:
History and forms of arbitral processes
Why choose arbitration rather than a domestic court?
UNCITRAL Model Law
Overview of the arbitral process
2. The Applicable Laws and Rules
Seat/place of the arbitration and
(or arbitration law)
Rules of the arbitration (how they relate to the
Governing law (law of the contract)
Procedural law, law of evidence etc.
3. The Arbitration Agreement
Institutional vs ad hoc arbitrations
Nature, scope and effect of agreement
"International" agreements and impact of institutional rules
Arbitrability of subject matter
Doctrine of separability
4. Judicial Assistance for and Intervention in Arbitration
Challenge of existence of agreement
Stay of court proceedings and summary court judgments in Common Law jurisdictions
Jurisdiction of courts in civil law jurisdictions over matters subject to arbitration
Interim measures by the tribunal or by the courts?
5. The Arbitral Tribunal
Parties’ right to nominate; nomination by appointing authority; arbitral institutions, e.g. ACICA, BANI, CIETAC, ICC, AAA, JCAA, KCAB, SIAC
Independence of arbitrators and absence of conflicts of interests
Appointment by default appointing authority
Jurisdiction of tribunal; jurisdiction to determine own jurisdiction; Kompetenz-kompetenz rule
Jurisdiction as amiable compositeur, power to decide ex aequo et bono
Challenge of jurisdiction : role of domestic court and administering institution
Duties of arbitrators; express and implied; and the power of delegation
Role of Chairman/umpire
Court's powers to remove arbitrators
Immunity of arbitrators; arbitral institutions
6. The Arbitration Proceedings
Commencement and statutory time prescriptions
Conduct of proceedings; ad hoc procedures and institutional rules
Tribunal’s powers as given by local laws during proceedings
Terms of Reference and ‘pleadings’
Evidence in Arbitration
Arbitral powers and concurrent powers of the domestic court
Non-signatories; joinder of ‘third’ parties and consolidation of arbitral proceedings
Difference between civil and common law on proceedings
Interim measures, orders and directions
7. The Arbitral Award
Scope, form and features of award
Reliefs and remedies viz. adjustment, adaptation, filling gaps, renegotiation…etc.
Reasons for award
Mistakes and omissions in awards
Role of arbitral institution in scrutiny and issuance of awards
Interpretation and additional award
Effect of award: on parties, on tribunal
8. Challenge and enforcement of the Awards
Appeals against awards in domestic courts
Setting aside an award
Suspension of award
Setting aside negative jurisdiction rulings?
Enforcement of awards in primary jurisdiction. Treatment of "foreign" and "domestic" awards in domestic laws.
Convention for the Recognition and Enforcement of Foreign Arbitral Awards 1958 ("New York Convention 1958")
Grounds for challenging awards under Convention
Enforcement of awards under bilateral treaties other than under Convention
9. Arbitration in Asia
Difficulties with arbitration in China, India and Indonesia.
NOTE THAT THIS COURSE IS NOT CONCERNED WITH INVESTMENT ARBITRATION
This is a comparative law course. The Seminar / Socratic Method will be used. It is a seminar and students should be prepared to participate in class discussions. In fact, students will be invited to participate (I will call on specific students to answer specific questions). In order to make the class participation effective you have to have read the materials before class. You will be marked on your class participation and it will count toward your final mark (10%). Amongst the criteria used to evaluate class participation will be attendance in class, preparedness for class (student has done readings, is prepared to discuss), ability to answer questions, volunteering for participation, quality of interventions, respect for other students and their opinion (fostering an atmosphere of discussion).
There will be a three-hour take-home exam covering the whole course. It will be worth 60% of the final mark.
There will be a written exercise which will consist of writing a memorandum for one of the parties to a moot arbitration. It will involve some limited research. It will be worth 20%. The problem will be
distributed at the latest on Friday 10 February 2017
. Copies of the memorandum will have to be handed to the Student Counter and to the opposing party on
Monday 13 March 2017
. There will be up to thirteen 45-minutes mini-moots (oral hearings) in groups of four (two for the Claimant, two for the Respondent) on the following dates: Friday, 17 March 2017 (2-7 pm); Saturday, 18 March 2017 (12:30-6:30 pm) OR Monday, 20 March 2017 (6:30-9:30pm) (exact times within these periods will be adjusted according to the number of students in the class). You will be assigned to one of the mini-moot sessions. Assignment to a session will take place after the results of the add-drop period are known and therefore you must keep all three time slots available until the results of the assignments are publicise. Your moot will not be scheduled to conflict with another class of yours. Those participating in an international moot competition sponsored by the faculty will be assigned a different date if the above dates conflict with their moot abroad.
Your oral presentation in the mini-moot will be worth 10%.
Finally, 10% of the final mark will be for class participation (see teaching method below).
In week 3, be prepared to indicate on which of the three dates mentioned above you would prefer to moot (no guarantee though that you will get your first choice).