Thỏa thuận trọng tài arbitration agreement

International Commercial Arbitration Nguyen Manh Dzung, MCIArb Managing Partner - Dzungsrt & Associates Vice President - Pacific International Arbitration Center (PIAC) Hà Nội - 14/10/2009 www.piac.com.vn Agreement to Arbitrate What are essentials of arbitration agreement? ƒ What you wish to find in arbitration agreement? ƒ What are you seeking to protect? ƒ What you want to prevent? ƒ What you want to happen? ƒ www.piac.com.vn Standard Clauses ICC “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.” UNCITRAL “Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force NOTE: Parties may wish to consider adding: (a) The appointing authority shall be [name of institution or person); (b) The number of arbitrators shall be [one or three]; (c) The place pf arbitration shall be [town or country]; (d) The language (s) to be used in the arbitral proceedings shall be [ ].” www.piac.com.vn Form of arbitration agreement Objective: record/confirm agreement of parties? Can arbitration agreement be oral? Must arbitration agreement be in writing? Must arbitration agreement be signed? www.piac.com.vn Types of arbitration agreement? Submission agreement Existing dispute Agreement or clause Future disputes See: Model Law Article 7(1) www.piac.com.vn Law governing arbitration agreement National law Multiplicity of rules (European Convention Article VI & Article VII.2) Other laws and rules International conventions (New York Convention 1958) International standards v national standards www.piac.com.vn When does it matter what law governs? Various stages Jurisdiction Challenge Recognition / enforcement www.piac.com.vn Categorisations Law governing formal validity New York Convention NYC sets maximum standards Law governing substantive validity Contract law Arbitration law Law applicable to capacity of parties Law of their nationality/incorporation Special case: states and state entities www.piac.com.vn Determination of applicable law to arbitration agreement Choice of parties Mandatory national law place of parties Place of arbitration International instruments International practice Does it matter? www.piac.com.vn Legal requirements Model Law Article 7(2) Ordinance on Commercial Arbitration in 2003 (Article 9.1) www.piac.com.vn 10 Revised Model Law, art Option I Article Definition and form of arbitration agreement (2) The arbitration agreement shall be in writing (3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means Option II Article Definition of arbitration agreement Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not www.piac.com.vn 17 The exchange requirement NYC art.II(2):“or contained in an exchange of letters or telegrams” Model Law art.7: “exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement” Similarly, Article 14 (b) of the Draft of Arbitration Law (edition dated 30/04/2009) www.piac.com.vn 18 Revised Model Law art.7 (4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy www.piac.com.vn 19 Relation between the different formal validity standards Conflict between national laws and New York Convention? Importance of the New York Convention In general, writing is still alive if you want to be safe, put it in writing www.piac.com.vn 20 Substantive Validity Consent for arbitration is the key-issue Incorporation by reference-is there a need for specific “arbitration consent”? Reference to the back of the contract Reference to a separate document Reference to a separate document between one of the parties and a third party www.piac.com.vn 21 Defective or pathological clauses “All disputes shall be resolved by arbitration” www.piac.com.vn 22 Defective or pathological clauses “In the event of any claims arising between the parties the matter shall be referred to the Arbitration Court of London or Paris” www.piac.com.vn 23 Defective or pathological clauses “Any difference between the parties, including with respect to interpretation, which they cannot resolve by agreement, shall be amicably resolved by international arbitration under the English Supreme Court There shall be three arbitrators, one each to be nominated by the parties, and the chairman to be agreed” www.piac.com.vn 24 Defective or pathological clauses In the event of any dispute arising between the parties such matter shall be resolved by arbitration by one or three arbitrators to be agreed at the time In the event that the parties cannot agree on the arbitrators to be appointed the chairman of the tribunal shall be appointed by the President of the London Court of International Arbitration The arbitration shall be conducted in accordance with the arbitration rules of the International Chamber of Commerce www.piac.com.vn 25 Incorporation by reference II New Model Law art 7(6): “The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract www.piac.com.vn 26 Substantive validity II Consent and assignment The role of the doctrine of “Separability” Consent and third parties Consent and several contracts www.piac.com.vn 27 Arbitration agreements and Interpretation Application of contract interpretation techniques to determine validity of arbitration agreements Effectiveness and scope of arbitration agreements www.piac.com.vn 28 Essential ingredients for arbitration agreement • • • • • • • • Institutional/ad hoc Pre-conditions Subject matter Number of arbitrators How arbitrators are appointed Arbitration rules Seat of arbitration Place of hearings www.piac.com.vn 29 Additional considerations for arbitration agreements Language of the arbitration Applicable law Amiable composition/ex aequo et bono Multiple parties Consolidation Confidentiality www.piac.com.vn 30 Thank you for your attention ! Dzungsrt & Associates Suite 901, HAREC building, 4A Lang Hạ str, Ba Đình Dist, Ha Noi Tel (4) 3772 6970 / Fax (4) 3772 6971 Email dzung.nguyen@dzungsrt.com Web www.dzungsrt.com Pacific International Arbitration Center – PIAC 11A, Phan Ke Binh Str, Dist 1, Ho Chi Minh City Tel (8) 3911 8048/ Fax (8) 3911 8049 Email dzung.nguyen@piac.com.vn Web www.piac.com.vn – www.piac.vn www.piac.com.vn 31 ... parties? Can arbitration agreement be oral? Must arbitration agreement be in writing? Must arbitration agreement be signed? www.piac.com.vn Types of arbitration agreement? Submission agreement Existing... of arbitration agreement (2) The arbitration agreement shall be in writing (3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement. .. conduct, or by other means Option II Article Definition of arbitration agreement Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen