International Commercial Arbitration

The procedureUniversity of Oslo

Giuditta Cordero-Moss, Ph.D., Dr.Juris

Professor, Oslo University

Legal framework

• Arbitration agreement

• Arbitration rules

• Arbitration law

• Conventions

• Soft law

• Arbitral tribunal’s discretion

Mandatory principles

• Parties’ consent– Scope of dispute– Parties– Arbitral Tribunal’s powers

• Due process– Impartiality– Each party to be able to present its case

• Arbitrability

• Ordre public

Formal and actual hierarchy

• Arbitration agreement• Arbitration rules• Arbitration law• Conventions

• Soft law• Arbitral tribunal’s

discretion

• Arbitration law• Conventions• Soft law• Arbitral tribunal’s

discretion• Arbitration rules• Agreement bewteen

the parties

Main structure

• Request for arbitration

• Response

• Statement of Claim

• Statement of Defence

• [Terms of reference]

• New exchange of submissions

• Oral Hearing

• Award

Provisional measures: Court’s powers

• Courts have jurisidiction on provisional measures– UNCITRAL Model Law art 17J– Vogl § 8

• Courts may assist in taking of evidence– UNCITRAL Model Law art 27– Vogl §30

Provisional measures: Arbitral tribunal’s power

• Interim measures– UNCITRAL Model Law (post 2006) art 17 A

• Preliminary orders• UNCITRAL Model Law (post 2006) art 17 B

• Emergency arbitrator

Law applicable to the substance

• Parties’ agreement– Not completely unlimited

• Law determined by the arbitral tribunal

How is the applicable law determined?

– The PIL of the place of arbitration• Norway vogl § 31

– The PIL that the arbitrator deems the most appropriate

• UNCITRAL Model Law art. 28– Specific choice-of-law for the arbitration

• Switzerland PILA art. 187– Direct application of the rules of law considered

appropriate• ICC Rules art. 21

– Not specified• Sweden, Italy

Law or rules of law?

• If determined by the arbitral tribunal: law– UNCITRAL Model Law art 28(2)

• If requested by the parties: rules of law• UNCITRAL Model Law art 28(1)

• If requested by the parties: ex bono et aequo• UNCITRAL Model Law art 28(3)

Law or rules of law?

• ICC art. 21, LCIA Art 22.3: rules of law even at tribunal’s initiative

• They are considered as parties’ agreement and are therefore acceptable under Model Law art 28(1)