INTERNATIONAL DISPUTE SETTLEMENT 2003-2004
See
generally: Redfern & Hunter, 3rd
ed., ch. 4.
Fouchard, Gaillard, Goldman on International
Commercial Arbitration (1999), Part III
And
see the Arbitration materials on http://www.bodley.ox.ac.uk/oxlip/index.html
(under ‘Law’)
Time limits
1. The time limits in arbitration may be
much shorter than those in courts. See ICC, UNCITRAL &c Rules, passim;
National courts may have power to extend time limits, applying the lex arbitri: see e.g., UK Arbitration
Act 1996, ss. 12-14, published at http://www.hmso.gov.uk/acts/acts1996/1996023.htm
; Thomas, [1981] LMCLQ 529; Comdel Commodities Ltd v. Siporex Trade SA (No. 2) [1991] 1 AC
148; Kalmneft JSC v Glencore International AG [2002] 1 AH II ER 76Note
relevance of prescription: Ambatielos claim,
(1956) 23 ILR 306 at 314
Appointment of Arbitrators
2. Arbitration rules stipulate how
arbitrators are to be appointed: e.g., 1998 ICC Rules art. 8, http://www.iccwbo.org/court/english/arbitration/introduction.asp
; UNCITRAL Rules art.5; UNCITRAL Model Law art. 10(2). Published at http://www.uncitral.org/en-index.htm
UK Arbitration Act 1996, ss. 15-16, 17. (Note: the lex arbitri may require certain qualifications of arbitrators).
Appointing authority
3. Arbitration rules often provide a
default procedure for appointments where the parties fail to make them. The
power of the Appointing Authority under default procedures is important, and
can facilitate the resolution of procedural difficulties in the arbitral
process: cf., the role of the
Multiparty Arbitrations
4. Particular problems arise in the case
of multiparty arbitrations, where it may be difficult to secure the acceptable
‘representation’ or ‘equality of arms’ of parties on the tribunal. See Dutco (Siemens AG and BKMI Industrienlagen GmbH v. Dutco Consortium Construction Co.)
French Cour de Cassation, 1992) See J-L DJlvolvJ, ‘Multipartism: The Dutco
Decision of the French Cour de cassation’ 9 Arbitration
International 197 (1993). And see s. 35, UK Arbitration Act 1996. See
further, International Law Association, Sixty-Sixth-Report, (1994), 689-714.
[For reference: Isaak Dore, Theory and Practice of Multiparty Commercial
Arbitration (1990). See also notes on Intervention in the ICJ, etc.]
5. Arbitrators may be challenged for
prejudice, misconduct or lack of qualifications. Challenges are made initially
to the (rest of the) tribunal or to the appointing authority, then to a court
of competent jurisdiction administering the lex
arbitri. Tupman, ‘Challenge and Disqualification of Arbitrators in
International Commercial Arbitration’, 38 ICLQ 26 (1989); A. Alvarez, ‘The challenge of arbitrators’, (1990) 6 Arbitration International 203; M.
Bedjaoui, ‘Challenge of arbitrators’, in A. J. Van Den Berg (ed.), International Arbitration in a Changing
World: International Council for Commercial Arbitration Congress series no.6
(Deventer, 1994), 85. UNCITRAL Rules art. 10; 1998 ICC Rules, art 11; ICSID
Rules, Rule 9, http://www.worldbank.org/icsid/basicdoc/basicdoc.htm
.
Organization
6. The organization of the tribunal and
its work may be set out in the compromis,
or by the adoption of, e.g., ICC rules, or left for the tribunal to determine.
Powers and Duties of
Arbitrators
7. Arbitrators’ powers are generally
understood to be conferred (i) by agreement of the parties, either directly or
by the choice of e.g. UNCITRAL rules, or (ii) by operation of the lex arbitri. See, e.g., UK Arbitration
Act 1996, ss. 33-46. Jarvin, ‘The
sources and limits of the arbitrator's powers’, in Lew (ed), Contemporary Problems in International
Arbitration (1986), 50. There are also certain inherent powers: see, e.g., E-Systems,
Inc. v. The Islamic Republic of Iran, “an inherent power to issue
such orders as may be necessary to conserve the respective rights of the
Parties and to ensure that [its] jurisdiction and authority are made fully
effective” [71 ILR 631 at 639]. See further below; and note the crucial role of
courts applying the lex arbitri. See
also notes on interim measures.
The Authority of Truncated
Tribunals
8. If a minority of the arbitrators are
unable or unwilling to co-operate with the work of the tribunal, the general
view is the majority (a ‘truncated tribunal’) may proceed to render a binding
award. This is necessary if commitments to arbitrate disputes are to be
effective. Schwebel, International
Arbitration: Three Salient Problems, (1987), ch. 3. Jay Treaty tribunals:
Schwebel, p. 180.
9. The jurisdiction of the tribunal is
conferred and delimited by the agreement of the parties (though the lex arbitri might in theory confer,
e.g., jurisdiction over counter-claims). The tribunal’s jurisdiction may be
challenged by the parties (see also The Arbitral Process: 2 Submission). Challenges are made initially to
the tribunal [compétence de la compétence],
then to a court of competent jurisdiction administering the lex arbitri.