Bài tập Luật Thương mại quốc tế bằng Tiếng Anh: Việc lựa chọn địa điểm sẽ ảnh hưởng như thế nào đến quá trình và kết quả của phiên xét xử trọng tài? Phân tích khái quát về địa điểm trọng tài, tầm quan trọng của việc lựa chọn địa điểm trọng tài phù hợp, ảnh hưởng của địa điểm trọng tài đến trong quá trình xét xử và kết quả xét xử.
FOREWORD Over the years, arbitration has grown to be one of the most preferred dispute resolution mechanisms between parties, particularly in the areas of international business Arbitration is a form of alternate dispute resolution for the settlement of disputes where an independent third party makes a decision that is binding Arbitration is generally a voluntary and consensual process, it is very important to take into account all the key factors that generally affect an arbitral process In this regard, one of the key factors that underlie in any arbitral agreement is selecting the seat of arbitration In order to gain further knowledge about how important in deciding where an arbitration should be venued and how it would affect the arbitral proceedings, I chose the assignment: “How the choice of venue would affect the process and the outcome of an arbitration?” CONTENT General information about “venue” Venue is the seat, or the legal place, of an arbitration The venue of an arbitration is important at every stage of an arbitral proceeding Hence, the choice of where an arbitration is venued, has important implications and should not be made lightly Parties should carefully review a venue’s local laws because the different jurisdictions vary significantly in terms of the authority of the local courts and extent of their intervention in an arbitration As business continues to globalize, and the number of cities promoting themselves as favorable venues for arbitration continues to grow, parties should thoroughly consider where an arbitration should be venued https://www.law.cornell.edu/wex/venue The importance of carefully choosing the venue Careful selection of the venue of an arbitration is important for several reasons: First, state courts of the selected venue have a role in supervising the arbitration and can influence the process not only before the proceedings have been initiated, but also during the arbitral hearing The parties, therefore, should pay attention to the local laws and general judicial attitude towards arbitration in the chosen jurisdiction Second, the selection of the seat determines the law governing the arbitration procedure The reason is that the jurisdiction of the seat is not necessarily the same as the governing law of the contract.2 For example, the governing law of the contract can be the law of Viet Nam but the seat of arbitration can be in Singapore, i.e the procedural law of the arbitration will be governed by the Singapore law while substantive law of contract to be analysed by the arbitral tribunal is governed by Viet Nam laws Third, the local laws of the seat of arbitration will be important for the enforcement of the ultimate award or for the applications seeking to annul it The choice of venue impacts many other issues, including some that may significantly affect cost and convenience For example, the venue is frequently (although not always) the location where the hearings are held Thus, it is important to ensure parties and their witnesses have easy physical and legal access to the area The influences of venue on the process and the outcome of an arbitration http://www.mondaq.com/uk/x/153932/Contract+Law/The+Seat+Of+Arbitration+Why+Is+It+So+Important 3.1 The influences of venue on the process Convenience for the parties and arbitrators The significance of the arbitral seat includes relatively mundane issues of convenience and cost Although such factors are often given undue weight, they can be important to the conduct and outcome of an arbitration Moreover, factors such as visa requirements, availability of air or other transportation, hearing facilities, hotel accommodations, support staff (such as interpreters, stenographers, secretaries), and the like can bear heavily on the smooth progress of an arbitration It is important that issues such as availability of appropriate venues and a supportive arbitral infrastructure are also important to allow the arbitration to run smoothly In this regard, another important factor to consider is the convenience for the parties and arbitrators during the process of arbitration The seat of arbitration should be geographically convenient for most people who will be involved in the arbitration like parties, witnesses, arbitrators and lawyers Another important aspect is the local language of the arbitral tribunal/arbitrators It is important that both the parties and the arbitrators converse and fairly conduct proceedings in a common language Quality of Judiciary, Court System and Political Stability In international commercial arbitration, quicker, reliable resolution of dispute is of great importance Hence, the quality of judiciary, the court system and political stability becomes a very important factor in deciding the seat of arbitration The courts must be experienced in dealing with complex commercial matters in an independent and objective manner Although States may have adopted the UNCITRAL model law, there is difference and one must distinguish between formal legislation and actual practice in real cases That practice can be demonstrates only over time, and many States are in this transition period Another dimension to this point is the lack of supportive infrastructure and experience of local courts in judicial assistance in cases where appointment of arbitrators and arbitral forum is difficult for the parties to finalize Further political situation of a country also plays a role, for example choosing Hong Kong as a seat of arbitration in Asia is unadvisable because of concerns regarding neutrality and independence The involvement of local court The seat will also determine the extent to which the local court will involve itself in the arbitral process Some countries have laws which restrict party autonomy, for example, in imposing conditions on the eligibility of arbitrators and allow the courts to intervene in the process agreed by the parties in their arbitration agreement Conversely, some countries' laws are relatively "arbitrationfriendly" and allow the parties a high degree of procedural autonomy Such courts also offer supportive relief such as interlocutory awards Many parties believe that, once the arbitral process has started, the local courts of the venue no longer have influence over it That is, however, frequently not the case The courts can and intervene in the arbitral process Before selecting a venue, the parties should fully understand the circumstances that may trigger such intervention One of the most important considerations in this category is the local courts’ position on compelling testimony and evidence Fact-gathering is critical to successful dispute resolution, yet arbitral tribunals have limited power over third-parties Thus, parties may need assistance from local courts to secure testimony from third-parties or compel them to produce evidence The assistance that local courts can provide, however, varies by jurisdiction (For example, a German court cannot compel the production of evidence, while a French court might exercise that power On the other hand, although courts in Germany and Switzerland can order provisional measures even after arbitral proceedings have started, other courts (for example, in France) have authority to order such measures only before the start of the arbitration) 3.2 The influences of venue on the outcome If the state where arbitration is venued is a signatory to New York Convention (which now includes 150 countries), the party can seek to confirm and enforce the arbitral award in each of the other contracting states, subject to limited grounds for challenge It is thus important to ensure that the arbitration takes place in one of the New York Convention states Venue, however, matters most importantly for the annulment of the award An arbitral award can be vacated only at the seat of the arbitration, under its laws and procedures The degree to which an arbitral award may be challenged will be determined according to the seat of the arbitration, as it is common that the local courts hear appeals in relation to arbitral awards Further, the extent to which judicial review is available to parties will be dependant on the principles of the law of the seat Both factors will govern the extent to which an award is considered final In addition, any petition for annulment in local court is conducted in the official language of the venue This means that all pleadings must be in the local language, and the award itself may need to be translated Some of the most important effects of the choice of venue are revealed only at the post-award stage The timeframe during which the parties can demand annulment also varies significantly by jurisdiction The award can be set aside only in local courts of the venue under their local rules and procedures, and the proceedings are conducted in the local language.3 Thus, the time and cost associated with annulment actions will vary greatly from one venue to another CONCLUSION The choice of venue for an international arbitration can cause significant repercussions once a dispute arises So parties should choose carefully, depending on their specific concerns https://blog.oup.com/2014/02/importance-of-venue-selection-in-international-arbitration/ REFERENCES https://lawexplores.com/7-selection-of-arbitral-seat-in-international- arbitration/ http://www.mondaq.com/uk/x/153932/Contract+Law/The+Seat+Of+Arbitrat ion+Why+Is+It+So+Important https://www.lexology.com/library/detail.aspx?g=b35b33fb-8065-4bc3-971a- 126b7c00f5f7 https://blog.ipleaders.in/seat-of-arbitration-factors/ https://blog.oup.com/2014/02/importance-of-venue-selection-ininternational-arbitration/