11/15/2010 International Commercial Arbitration Arbitration and The Court Nguyen Manh Dzung, MCIArb LLM in International & Comparative Dispute Resolution (QMUL) Managing Partner of Dzungsrt & Associates Vice President of Pacific International Arbitration Center (PIAC) Hanoi- 15/11/2010 Functions, effects and developments • Protection of vital interest of state • Delimitation of scope of private dispute settlement • Effect on jurisdiction of arbitral tribunal • Effects on validity of arbitration agreement? • Prevailing tendency: increase scope for private dispute settlement New York Convention Article II Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration … The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed 11/15/2010 Subjective Arbitrability • Who may submit to arbitration? • Distinction from questions of power of acting persons to enter into an arbitration agreement • International and national rules dealing with subjective arbitrability Examination of Arbitrability Powers of the arbitral tribunal: alleged lack of jurisdiction: * tribunal’s competence competence *make and record the decision in ** a jurisdiction Award, or** a combined jurisdiction and merits Award * tribunal decides which kind of Award, unless the parties agree 11/15/2010 Jurisdiction and Competence to Arbitrate • stay arbitral proceedings • challenge under own volition or party agreement Competence - competence: • Party autonomy • power to remove competence competence • the arbitral tribunal may rule on its own substantive jurisdiction • ‘may’ rule binding decisions: • * to rule * whether tribunal has jurisdiction Law governing Arbitrability • • • • • Stages where question may become relevant Differentiation between Court – Tribunal Pre-award and post award National – international cases Examination of arbitrability in court proceedings -applicable law- 11/15/2010 Law to be applied to arbitrability by arbitral tribunal • Possible options • Pros and cons of the various options • Lex arbitri (law of the seat of arbitration) and the obligation to render an enforceable award Provisions dealing with arbitrability • • • • • No direct regulation in international rules conflict of laws provision at enforcement stage Different concepts of the national arbitration laws no special regulation – general principles (e.g UK – US) special rule: general principles for exceptions only (Germany, Switzerland) • Relevant factors in national laws which regulate arbitrability • pecuniary nature • right to dispose of matter Criteria of Arbitrability • Claims capable of party settlement •Which law determines whether capable of settlement? • Claims involving a monetary interest/involving property •Public policy •Balancing of interest •Rules providing for exclusive jurisdiction of the courts 11/15/2010 Areas of law where arbitrability may be an issue • Competition Law / Antitrust Law • Securities Transaction • Sole distributorship • Intellectual Property Rights • Illegality and Fraud • Bribery and Corruption •Investment contracts relating to resources or crucial infrastructure natural Duty to deal with arbitrability ex officio? • Lack of arbitrability not always raised by parties • Arguments against dealing with arbitrability ex officio • Arguments in favour of a duty to deal with arbitrability ex officio • What is the role of the arbitrator? General attitude • Model Law Article • See Ordinance on Commercial Arbitration in 2003 • Law on Commercial Arbitration in 2010 • Intervention and territorial application of arbitration laws 11/15/2010 Powers of Courts - Stages Pre-arbitration • Validity of the arbitration agreement • Anti-suit injunctions • Interim relief before the tribunal is established • Constitution of tribunal Arbitration pending • • • • Assistance in taking evidence Interim relief Extension of time limits Preliminary determination of a question of law 11/15/2010 Post-arbitration • Setting aside • Recognition and enforcement Thank you for your kind attention! Dzungsrt & Associates Unit 901, HAREC Building No 4A Lang Ha Str, Ba Đinh Dist, Ha Noi city Tel (84-4) 3772 6970 / Fax (84-4) 3772 6971 Email dzung.nguyen@dzungsrt.com Web www.dzungsrt.com Pacific International Arbitration Center– PIAC No 11A Phan Ke Binh str, District 1, Ho Chi Minh City Tel (84-8) 3911 8048/ Fax (84-8) 3911 8049 Email dzung.nguyen@piac.com.vn Web www.piac.com.vn – www.piac.vn ... on Commercial Arbitration in 2003 • Law on Commercial Arbitration in 2010 • Intervention and territorial application of arbitration laws 11/15/2010 Powers of Courts - Stages Pre -arbitration •... may become relevant Differentiation between Court – Tribunal Pre-award and post award National – international cases Examination of arbitrability in court proceedings -applicable law- 11/15/2010... Arbitrability • Who may submit to arbitration? • Distinction from questions of power of acting persons to enter into an arbitration agreement • International and national rules dealing with subjective