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Contents
- Preliminary Material
- Main Text
- 1 Introduction
- Preliminary Material
- I Origin, globalization and modern practice of arbitration
- A History and nature of arbitration
- B Arbitration agreement
- 1.06
- (1) Law governing the validity of the arbitration agreement
- (2) Form and contents
- 1.10
- (2.1) Form of the arbitration agreement
- 1.15 Minimum contents of the arbitration agreement
- 1.16 Decision of a legal dispute by arbitration
- 1.17 A defined legal relationship to be settled by arbitration
- 1.18 Seat of the arbitration
- 1.19 Optional elements of an arbitration agreement
- 1.20 Ad hoc or institutional arbitration
- 1.21 Number of arbitrators
- 1.22 Applicable substantive law
- 1.23 Language of the arbitration
- (3) Effects
- C Dispute resolution in a globalized world
- D Types of arbitration
- 1.43
- (1) Commodity trade arbitration
- (2) Maritime arbitration
- (3) Investment arbitration
- 1.51
- 1.52
- 1.53
- (3.1) History and development of investment arbitration
- (3.2) Bilateral investment treaties
- (3.3) Multilateral agreements
- (3.4) Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID Convention)
- 1.70 Other institutional and ad hoc arbitrations
- (4) Fast procedures
- (5) Others
- II Relationship of arbitral tribunals and courts
- A Different national approaches
- B Harmonization by international instruments
- C Liberal approach to (international) arbitration
- 1.113
- (1) Arbitrability
- (1.1) Definition and distinctive features
- (1.2) The applicable law for determining arbitrability of a dispute
- (1.3) Arbitrable and non-arbitrable disputes
- 1.129 Particular categories of disputes
- 1.130 Competition law.
- (ii) Patents and trade marks.
- 1.134 Bribery and corruption.
- 1.135 Insolvency Law.
- 1.136 Embargoes, acts of state.
- 1.137 Other disputes which often are not arbitrable.
- (2) Limited court interference during the proceedings
- (3) Restricted grounds for setting aside awards
- 1.149
- 1.150
- (3.1) Limited means of recourse against arbitral awards
- (3.2) The particularities of judicial review in international arbitration
- 1.164 Scrutiny and challenge of awards
- 1.165 The New York Convention and the UNCITRAL Model Law as guidelines
- 1.166 Reasons for challenging an award
- 1.167 Defects related to the jurisdiction of the tribunal
- 1.168 Defects related to the arbitral tribunal
- 1.169 Defects related to the procedure
- 1.170 Defects related to the award
- 1.171 Defects related to the public interest
- III Rules governing the arbitral proceedings
- A The procedure according to chosen rules
- (1) Party autonomy
- (2) Ad hoc arbitration
- (3) Institutional arbitration
- 1.180
- 1.181
- 1.182
- 1.183 The ICC Rules of Arbitration (ICC Rules)
- 1.184 The Arbitration Rules of the London Court of International Arbitration (LCIA Rules)
- 1.185 The ICDR International Arbitration Rules (ICDR Rules)
- (3.4) European institutional arbitration rules
- (3.5) Arbitration Rules in Asia and the Middle East
- (4) Supplementary Regulations
- B Applicable procedural and substantive rules
- C Features of institutional and national procedural rules
- A The procedure according to chosen rules
- IV Bibliography
- 2 Austria
- Preliminary Material
- I Introduction
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the arbitration agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of arbitration clauses
- 2.19
- 2.20
- 2.21
- (5.1) Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims which arise in connection with the agreement submitted to arbitration generally fall within the arbitral jurisdiction even if based on a tortious legal basis? Does there exist case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration clause on third parties (eg in case of a guarantee or assignment)
- 2.27
- 2.28
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially,
- (6.2) Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant ( Nebenintervention/ Streitverkündung ; intervention forcée/volontaire ; vouching in; amicus curiae etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- C Decision on the arbitral tribunal’s jurisdiction (‘competence-competence’)
- (1) Separability (independence of the arbitration agreement from the main agreement)
- (2) Competence of the tribunal to decide on its own jurisdiction (including form and time of the tribunal’s decision)
- (3) Extent of the ‘competence-competence’ and role of the courts (including form and time limits of a challenge of the tribunal’s decision)
- D Enforcement of an arbitration agreement within or by court proceedings
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- 2.50
- 2.51
- 2.52 If a party has invoked successfully the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitral proceeding that there is a valid and binding arbitration agreement?
- 2.53 Vice versa, if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such agreement in the ensuing court proceeding?
- (2) Legal remedies and proceedings to enforce an arbitration agreement
- 2.54
- 2.55
- 2.56
- 2.57 Which would be the internationally competent court (i) for obtaining a declaration that an arbitration agreement is valid and binding; or (ii) to compel arbitration? (the defendant’s courts? The courts of the place of arbitration? The claimant’s courts, cf Article 6(2) in fine, ICC Rules?)
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 2.60
- 2.61 Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- 2.62 Which national arbitration institutions may be contacted for obtaining information about qualified (and specialized) arbitrators?
- (2.3) Are judges or civil servants required to obtain permission by their employer to act as arbitrator? Are these permissions given generally or case-by-case? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- C Challenge and replacement of arbitrators
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- 2.69
- 2.70 Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 11, ICC Rules)? If so, at what point in time? May such review be excluded?
- 2.71 Is there case law with respect to truncated arbitral tribunals? (cf Art 12(5), ICC Rules)
- (2) Procedure for appointing a new arbitrator
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- A Number and qualification of arbitrators
- IV The arbitral procedure
- A General principles
- (1) Extent of party autonomy to determine the arbitral procedure
- (2) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
- (3) Oral hearing or proceeding on basis of written documents
- (4) Power of the tribunal (in particular the chairman) to issue procedural orders
- (5) Distinction of matters of substance and matters of procedure
- (6) Persons able to represent a party in an arbitral proceeding
- B Place of arbitration
- C Submissions, deadlines and default
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- 2.94
- 2.95
- 2.96 From what point in time is a claim considered to be pending with the arbitral tribunal? What are the legal effects of such fact (eg on statutes of limitations)?
- (1.2) When is a time limit according to statutes of limitations deemed to be interrupted in case of (i) ad hoc ; and (ii) institutional arbitration?
- 2.100 What is the effect of the withdrawal of the request for arbitration?
- (2) Legal deadlines (provided by law or set by the tribunal) and effect of non-compliance by a party
- (3) Statutory requirements as to notifications during an arbitration (with respect to the request for arbitration and other written pleadings; with respect to notifications by the tribunal)
- (4) Effect of the insolvency of a party
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- D Facts and evidence: general
- (1) Burden of proof (inquisitorial/adversarial procedure)
- (2) Power of the tribunal to determine the admissibility and weight of the evidence produced by the parties
- 2.111
- 2.112
- 2.113 Is the tribunal entitled to take the claimant’s factual allegation as proven if the defendant does not participate in the arbitral proceedings?
- 2.114 May the arbitral tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- 2.115 What is the standard of proof that must be met in order for a fact to be considered to have been established (preponderance of the evidence; beyond reasonable doubt)? Must a stringent requirement be met for certain facts?
- 2.116 May the arbitral tribunal rely on its own knowledge to consider certain facts as proven?
- E Witnesses
- (1) Ability of a person to act as a witness
- (2) Preparation of witnesses and limits thereof
- (3) Admissibility of written witness statements
- (4) Entitlement of a party to have a hearing or cross-examination of witnesses
- 2.124
- 2.125 What are the methods used to establish a record of the arbitral proceedings, in particular witness examinations (tape recording, verbatim court reporters, dictated minutes, other methods)?
- 2.126 May the arbitral tribunal take an oath from a witness?
- 2.127 Does the arbitral tribunal have the power to compel witnesses?
- F Documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- 2.128
- 2.129 Is the submission of ‘agreed documents’ permitted? If yes, what is the extent and effect of such an agreement of the parties (authenticity, existence, acknowledgement of such documents’ contents)?
- (1.2) How may electronic documents (eg emails) be presented and proven?
- 2.132 Does discovery (US- or UK- style), after the procedure has started, violate any procedural rules or public policy considerations?
- (2) Requirement to produce certain documents (as requested by the tribunal) and consequences of a failure to do so
- (3) Protection of the confidentiality of documents (legal privilege etc)
- (1) Form and kind of documents to be presented to the arbitral tribunal
- G Experts
- (1) Appointment and presentation of experts by the party or the arbitral tribunal
- (2) Admissibility and role of expert witnesses
- (3) Influence of the parties upon the selection of questions to be submitted to the expert
- (4) Independence and impartiality of the expert and the right to reject a proposed/appointed expert
- (5) Oral examination of an expert in a hearing
- H Interim measures of protection
- (1) Kind of interim measures which the tribunal may order
- 2.144
- 2.145
- 2.146
- 2.147
- (1.1) Which are, in general, the procedural and substantive prerequisites for the ordering of interim and conservatory measures (eg reduced degree of evidence; urgency; summary evaluation of the claim)?
- (1.2) Are the prerequisites for interim measures ordered by the arbitral tribunal more or less the same as if those are requested from the state court? Is there case law/leading authorities on whether those measures are faster and enforced more easily if taken by the arbitral tribunal or the state court?
- (2) Limits of the tribunal’s powers to order interim measures
- (3) Orders to provide security for the costs of the proceeding
- (4) Attachment of assets by an order of the tribunal
- (1) Kind of interim measures which the tribunal may order
- I Assistance by the courts
- (1) Extent of court assistance in the gathering of evidence
- 2.156
- 2.157 Is it for the arbitral tribunal or for the party to obtain the assistance of state courts with respect to the gathering of evidence?
- 2.158 According to case law and practical experience, are there considerable delays involved when asking a court to give assistance (eg for the obtaining of evidence)?
- (2) Assistance for enforcing the attachment of assets
- (3) Other examples of possible assistance
- (4) Dependence of the power of state courts to intervene during the proceedings on the (national) procedural law applied by the arbitral tribunal.
- (1) Extent of court assistance in the gathering of evidence
- A General principles
- V The award
- A Types of award
- B Deliberations and agreement on the award
- C Form of the award and deposition
- (1) Form and minimum contents of an award
- (2) Requirement to give reasons in the award
- (3) Necessity to specify place and time where and when the award was made
- (4) Other requirements (registration, delivery etc)
- 2.184
- 2.185 Does the award have to be laid down or registered with a state court or agency (even if it has been rendered according to a foreign procedural law)?
- (4.2) Does a foreign award which has been rendered abroad according to this country’s national procedural law, have to be laid down or registered with a state court or agency? Is there a fee or tax for such registration of an award?
- 2.188 How long after the rendering of the award must the file/award be stored by the lawyers and the arbitral tribunal?
- D Applicable substantive law
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 2.214
- 2.215
- 2.216 Is there case law authorizing or prohibiting arbitrators to order a party to pay an advance on the arbitration costs?
- 2.217 May the raising of a set-off claim or counterclaim be made contingent upon payment of the corresponding advance for the relating arbitration costs (cf eg Article 30(5), ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- (2.3) What remedies exist against a party which does not pay its part of the advance on the arbitration costs (eg termination of the arbitration agreement)? How may the other party enforce its rights?
- (3) Costs of the administration by an arbitration institution
- (4) Arbitrators’ fees: law and practice, judicial control
- 2.221
- 2.222
- 2.223 May arbitrators fix their own fees in the award?
- 2.224 How can the parties change the arbitrators’ fees once they are fixed?
- 2.225 Are the arbitrator’s fees subject to income tax if (i) the place of arbitration; or (ii) the normal residence or place of business of the arbitrator is located in this country?
- 2.226 Are arbitrator’s fees submitted to VAT? If yes, is the duty to pay such tax linked to (i) the place of arbitration; or (ii) the arbitrator’s general residence?
- (5) Attorneys’ fees and the winning party’s claim for reimbursement
- (6) Time and form of the decision on costs
- 2.229
- 2.230 May the arbitrators’ decision on the costs (allocation and amount of costs to be reimbursed) be challenged separately from the award itself? Are there time limits for such a remedy?
- 2.231 Are the arbitrators entitled and/or legally obliged to rule on the amount of one or both parties’ costs that are recoverable?
- G Publication of the award
- VI Amendment and challenge of the award; liability of arbitrators
- A Amendment, correction or interpretation of the award
- B Appeal on the merits
- C Setting aside of the award
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- 2.260
- 2.261 Do the courts and/or authorities rely on a contractual relationship between the parties and the arbitrator(s), irrespective of whether institutional or ad hoc arbitration is concerned? What is the legal qualification of such a contract (eg provision of services)?
- (1.2) Are there court decisions (or authorities) determining which law governs the question of liability of an arbitrator? What is the position of those courts/authorities as to whether and to which extent a legal liability of an arbitrator (or arbitral institution) may be established?
- 2.264 Is an arbitrator subject to criminal prosecution?
- (2) Possibility to restrict or exclude the arbitrators’ liability
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- VII Enforcement of national awards
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- 2.266
- 2.267 Does the national law make any difference between foreign and domestic awards, and if so, what are the criteria? Does there exist an additional notion of award for the purpose of obtaining exequatur (France: international awards)?
- (1.2) May awards granting conservatory/interim measures be subject to enforcement?
- (2) Details of such enforcement procedure (competent court, reasons for rejection of motion etc)
- 2.273 Appeal against the decision granting exequatur
- (4) Appeal (and procedure) if exequatur has been refused
- (5) Procedure of enforcement (attachment of bank accounts etc)
- 2.275
- 2.276
- 2.277 At the stage of enforcement, may the losing party invoke arguments and circumstances which are based on facts which have occurred before (or after) the award was made?
- (5.2) May the losing party invoke a set-off based on claims that are not related to the matter of the arbitral proceeding? Is it material whether such claim came into existence before or after the award was made?
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- VIII Foreign awards
- IX Appendix
- 3 Belgium
- Preliminary Material
- I Introduction
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the arbitration agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of arbitration clauses
- 3.26
- (5.1) Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims which arise in connection with the agreement submitted to arbitration generally fall within the arbitral jurisdiction even if based on tortious legal basis? Does there exist case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration clause on third parties (eg in case of a guarantee or assignment)
- 3.30
- 3.31
- 3.32
- 3.33
- 3.34
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially, (i) with respect to the objection that the arbitration clause does not specifically provide for a plurality of parties in the same procedure; (ii) with respect to the constitution of the arbitral tribunal; and (iii) with respect to the consolidation of two or more running arbitration proceedings?
- (6.2) Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant ( Nebenintervention/Streitverkündung; intervention forcée/volontaire ; vouching in; amicus curiae etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- C Decision on the arbitral tribunal’s jurisdiction (‘competence-competence’)
- (1) Separability, (independence of the arbitration agreement from the main agreement)
- (2) Competence of the tribunal to decide on its own jurisdiction (including form and time of the tribunal’s decision)
- (3) Extent of the ‘competence-competence’ and role of the courts (including form and time limits of a challenge of the tribunal’s decision)
- D Enforcement of an arbitration agreement within or by court proceedings
- (1) Effects of invoking an arbitration clause within court proceedings (and time limits for such a motion)
- 3.66
- 3.67
- 3.68
- 3.69 If a party has invoked successfully the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitral proceeding that there is a valid and binding arbitration agreement?
- 3.70 Vice versa , if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such agreement in the ensuing court proceeding?
- (2) Legal remedies and proceedings to enforce an arbitration agreement.
- 3.71
- 3.72
- 3.73 Which would be the internationally competent court: (i) for obtaining a declaration that an arbitration agreement is valid and binding; or (ii) to compel arbitration? (The defendant’s courts? The courts of the place of arbitration? The claimant’s courts, cf Art 6(2) in fine, ICC Rules?)
- (1) Effects of invoking an arbitration clause within court proceedings (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 3.78
- 3.79 Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- 3.80 Which national arbitration institutions may be contacted for obtaining information about qualified (and specialized) arbitrators?
- 3.81 Are judges or civil servants required to obtain permission by their employer to act as arbitrator? Are these permissions given generally or case-by-case? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- C Challenge and replacement of arbitrators
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- 3.90
- 3.91
- 3.92
- 3.93
- 3.94
- 3.95
- 3.96
- 3.97 Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 11 ICC Rules)? If so, at what point in time? May such review be excluded?
- 3.98 Is there case law with respect to truncated arbitral tribunals? (cf Article 12(5) ICC Rules)
- (2) Procedure for appointing a new arbitrator
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- A Number and qualification of arbitrators
- IV The arbitral procedure
- A General principles
- (1) Extent of party autonomy to determine the arbitral procedure
- (2) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
- (3) Oral hearing or proceeding on basis of written documents
- (4) Power of the tribunal, especially the chairman, to issue procedural orders
- (5) Distinction of matters of substance and matters of procedure
- (6) Persons able to represent a party in an arbitral proceeding
- B Place of arbitration
- C Submissions, deadlines and default
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- 3.119
- 3.120
- 3.121
- 3.122
- 3.123 From what point in time is a claim considered to be pending before the arbitral tribunal? What are the legal effects of such fact (eg on statutes of limitations)?
- 3.124 When is a time limit according to statutes of limitations deemed to be interrupted in case of: (i) ad hoc ; and (ii) institutional arbitration?
- 3.125 What is the effect of the withdrawal of the request for arbitration?
- (2) Legal deadlines (provided by law or set by the tribunal) and effect of non-compliance by a party
- (3) Statutory requirements as to notifications during an arbitration (with respect to the request for arbitration and other written pleadings; with respect to notifications by the tribunal)
- (4) Effect of the insolvency of a party
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- D Facts and evidence: general
- (1) Burden of proof (inquisitorial/adversarial procedure)
- (2) Power of the tribunal to determine the admissibility and weight of the evidence produced by the parties
- 3.136
- 3.137 Is the tribunal entitled to take the claimant’s factual allegation as proven if the defendant does not participate in the arbitral proceedings?
- 3.138 May the arbitral tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- 3.139 What is the standard of proof that must be met in order for a fact to be considered to have been established (preponderance of the evidence; beyond reasonable doubt)? Must a stringent requirement be met for certain facts (for which ones)?
- 3.140 May the arbitral tribunal rely on its own knowledge to consider certain facts as proven?
- E Witnesses
- (1) Ability to act as a witness
- (2) Preparation of witnesses and limits thereof
- (3) Admissibility of written witness statements
- (4) Entitlement of a party to have a hearing or cross-examination of witnesses
- 3.148
- 3.149 Which are the methods used to establish a record of the arbitral proceedings, in particular witness examinations (tape recording, verbatim court reporters, dictated minutes, other methods)?
- 3.150 May the arbitral tribunal take an oath from a witness?
- 3.151 Does the arbitral tribunal have the power to compel witnesses?
- F Documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- 3.152
- 3.153
- 3.154 Is the submission of ‘agreed documents’ permitted? If yes, what is the extent and effect of such an agreement (authenticity, existence, acknowledgement of such documents ’ contents)?
- 3.155 How may electronic documents (eg emails) be presented and proven?
- 3.156 Does discovery (US- or UK-style), after the procedure has started, violate any procedural rules or public policy considerations?
- (2) Requirement to produce certain documents (as requested by the tribunal) and consequences of a failure to do so
- (3) Protection of confidentiality of documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- G Experts
- (1) Appointment and presentation of experts by the party or the arbitral tribunal
- (2) Admissibility and role of expert witnesses
- (3) Influence of the parties upon the selection of questions to be submitted to the expert
- (4) Independence and impartiality of the expert and the right to reject a proposed/appointed expert
- (5) Oral examination of an expert in a hearing
- H Interim measures of protection
- (1) Kind of interim measures which the tribunal may order
- 3.171
- 3.172
- 3.173 Which are, in general, the procedural and substantive prerequisites for the ordering of interim and conservatory measures (eg reduced degree of evidence; urgency; summary evaluation of the claim)?
- 3.174 Are the prerequisites for interim measures ordered by the arbitral tribunal more or less the same as if those are requested from the state court? Is there case law/leading authorities on whether those measures are faster and enforced more easily if taken by the arbitral tribunal or the state court?
- (2) Limits of the tribunal’s powers to order interim measures
- (3) Orders to provide security for the costs of the proceeding
- (4) Attachment of assets by an order of the tribunal
- (1) Kind of interim measures which the tribunal may order
- I Assistance by the courts
- (1) Extent of court assistance in the gathering of evidence
- 3.178
- 3.179 Is it for the arbitral tribunal or for the party to obtain the assistance of state courts with respect to the gathering of evidence?
- 3.180 According to case law and practical experience, are there considerable delays involved when asking a court to give assistance (eg for the obtaining of evidence)?
- (2) Assistance for enforcing the attachment of assets
- (3) Other examples of possible assistance
- (4) Dependence of the power of state courts to intervene during the proceedings on the national procedural law applied by the arbitral tribunal
- (1) Extent of court assistance in the gathering of evidence
- A General principles
- V The award
- A Types of award
- 3.184
- (1) Interim award (eg on interim measures on the jurisdiction of the tribunal)
- (2) Partial award
- 3.186
- 3.187
- 3.188
- 3.189
- 3.190 Are awards, especially partial awards, binding in the same arbitral proceeding? Does it make a difference if after the rendering of such a partial award, one arbitrator is successfully challenged and removed on grounds that prevailed even before the partial award was rendered?
- (3) Final award
- B Deliberations and agreement on the award
- C Form of the award and deposition
- (1) Award in writing and minimum contents of an award
- (2) Requirement to give reasons in the award
- (3) Necessity to specify place and time where and when the award was made
- (4) Other requirements (registration, delivery etc)
- 3.207
- 3.208
- 3.209
- (4.1) Does the award have to be laid down or registered with a state court or agency (even if it has been rendered according to a foreign procedural law)?
- 3.213 Does a foreign award which has been rendered abroad according to this country’s national procedural law, have to be laid down or registered with a state court or agency? Is there a fee or tax for such registration of an award?
- 3.214 How long after the rendering of the award must the file/award be stored by the lawyers and the arbitral tribunal?
- D Applicable substantive law
- (1) Party autonomy to choose the applicable substantive law
- (2) Deciding according to equity/as amiable compositeur
- (3) Application of lex mercatoria , general principles etc
- 3.222 Applicable substantive law if there is no choice of law by the parties
- 3.223 Is there an autonomous conflict of law rule in the national arbitration law? Is it considered mandatory?
- 3.224 What is the law applicable to interest?
- 3.225 What is the law and practice with respect to legal interest on foreign currency debts?
- (5) Binding effect of state court decisions
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 3.240
- 3.241
- 3.242 Is there case law authorizing or prohibiting arbitrators to order a party to pay an advance on the arbitration costs?
- 3.243 May the raising of a set-off claim or counterclaim be made contingent upon payment of the corresponding advance for the relating arbitration costs (cf eg Article 30(5), ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- (2.3) What remedies exist against a party which does not pay its part of the advance on the arbitration (eg termination of the arbitration agreement)? How may the other party enforce its rights?
- (3) Costs of the administration by an arbitration institution
- (4) Arbitrators’ fees: law and practice, judicial control
- 3.247
- 3.248
- 3.249
- 3.250
- (4.1) May Arbitrators may fix their own fees in the award?
- 3.253 How can the parties change the arbitrators’ fees once they are fixed?
- 3.254 Are the arbitrator’s fees subject to income tax if (i) the place of arbitration or (ii) the normal residence or place of business of the arbitrator is located in this country?
- 3.255 Are the arbitrator’s fees submitted to VAT? If yes, is the duty to pay such tax linked to (i) the place of arbitration; or (ii) the arbitrator’s general residence?
- (5) Attorneys’ fees and the winning party’s claim for reimbursement
- (6) Time and form of the decision on costs
- 3.258
- 3.259 May the arbitrators’ decision on the costs (allocation and amount of costs to be reimbursed) be challenged separately from the award itself? Are there legal provisions, especially time limits for such a remedy?
- 3.260 Are the arbitrators entitled and/or legally obliged to rule on the amount of one or both parties’ costs that are recoverable?
- G Publication of the award
- A Types of award
- VI Amendment and challenge of the award; liability of arbitrators
- A Amendment, correction or interpretation of the award
- B Appeal on the merits
- C Setting aside of the award
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings?
- 3.294
- 3.295
- 3.296
- 3.297
- 3.298
- 3.299 Do the courts and/or authorities rely on a contractual relationship between the parties and the arbitrator(s), irrespective of whether institutional or ad-hoc arbitration is concerned? What is the legal qualification of such a contract (eg provision of services)?
- 3.300 Are there court decisions (or authorities) determining which law governs the question of liability of an arbitrator? What is the position of those courts/authorities as to whether and to which extent a legal liability of an arbitrator (or arbitral institution) may be established?
- (1.3) Is an arbitrator subject to criminal prosecution?
- (2) Possibility to restrict or exclude such liability
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings?
- VII Enforcement of national awards
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- 3.304
- 3.305 Does the national law make any difference between foreign and domestic awards, and if so, what are the criteria? Does there exist an additional notion of award for the purpose of obtaining exequatur (France: international awards)?
- 3.306 May awards granting conservatory/interim measures be subject to enforcement?
- (2) Details of such enforcement procedure (competent court, reasons for rejection of motion etc)
- (3) Appeal against the decision granting exequatur
- (4) Appeal etc if exequatur has been refused
- (5) Procedure of enforcement (attachment of bank accounts etc)
- 3.318
- 3.319 At the stage of enforcement, may the losing party invoke arguments and circumstances which are based on facts which have occurred before (or after) the award was made?
- 3.320 May the losing party invoke a set-off based on claims that are not related to the matter of the arbitral proceeding? Is it material whether such claim came into existence before or after the award was made?
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- VIII Foreign awards
- IX Appendix
- 4 China and Hong Kong
- Preliminary Material
- I Introduction
- 4.01
- 4.02
- A Current status of the law on arbitration
- (1) Short history
- (2) Law in force and future projects
- (3) Distinction between national and international arbitration
- 4.20
- 4.21
- 4.22
- 4.23
- 4.24
- (3.1) If there are different systems and rules for national/international arbitration, what are the criteria for the distinction between both systems?
- 4.25
- 4.26
- (i) If there are different systems and rules for national/international arbitration, what are the criteria for the distinction between both systems?
- (ii) If there are different systems and rules for national/international arbitration, what are the criteria for the distinction between both systems?
- (iii) If there are different systems and rules for national/international arbitration, what are the criteria for the distinction between both systems?
- 4.27
- 4.28
- B Practice of arbitration
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the arbitration agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of arbitration clauses
- 4.71
- 4.72
- 4.73
- 4.74
- 4.75
- (5.1) Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims which arise in connection with the agreement submitted to arbitration generally fall within the arbitral jurisdiction even if based on a tortious legal basis? Does there exist case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration clause on third parties (eg in case of a guarantee or assignment)
- 4.79
- 4.80
- 4.81
- 4.82
- 4.83
- 4.84
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially, (i) with respect to the objection that the arbitration clause does not specifically provide for a plurality of parties in the same procedure; (ii) with respect to the constitution of the arbitral tribunal; and (iii) with respect to the consolidation of two or more running arbitration proceedings?
- (6.2) Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant (Nebenintervention/ Streitverkündung; intervention forcée/volontaire; vouching in; amicus curiae etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- C Decision on the arbitral tribunal’s jurisdiction (‘competence-competence’)
- (1) Separability (independence of the arbitration agreement from the main agreement)
- (2) Competence of the tribunal to decide on its own jurisdiction (including form and time of the tribunal’s decision)
- (3) Extent of ‘competence-competence’ and role of the courts (including form and time limits of a challenge to the tribunal’s decision)
- D Enforcement of an arbitration agreement within or by court proceedings
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- 4.123
- 4.124
- 4.125
- (1.1) If a party has invoked successfully the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitral tribunal proceeding that there is a valid and binding arbitration agreement?
- (1.2) Vice versa, if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such agreement in the ensuing court proceeding?
- (2) Legal remedies and proceedings to enforce an arbitration agreement
- 4.130
- 4.131
- 4.132
- (2.1) Which would be the internationally competent court (i) for obtaining a declaration that an arbitration agreement is valid and binding; or (ii) to compel arbitration? (The Defendant’s courts? The courts of the place of arbitration? The claimant’s courts, cf Art 6 (2) in fine, ICC Rules?)
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 4.140
- 4.141
- 4.142
- 4.143
- 4.144
- (2.1) Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- (2.2) Which national arbitration institutions may be contacted for obtaining information about qualified (and specialised) arbitrators?
- (2.3) Are judges or civil servants required to obtain permission from their employer to act as arbitrator? Are these permissions given generally or on a case-by-case basis? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- C Challenge and replacement of arbitrators
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- 4.167
- 4.168
- 4.169
- 4.170
- 4.171
- 4.172
- 4.173
- 4.174
- (1.1) Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Article 11, ICC Rules)? If so, at what point in time? May such review be excluded?
- (1.2) Is there case law with respect to truncated arbitral tribunals? (cf Article12(5), ICC Rules)
- (2) Procedure for appointing a new arbitrator
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- A Number and qualification of arbitrators
- IV The arbitral procedure
- A General principles
- (1) Extent of party autonomy to determine the arbitral procedure
- (2) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
- (3) Oral hearing or proceeding on basis of written documents
- (4) Power of the tribunal (in particular the chairman) to issue procedural orders
- (5) Distinction between matters of substance and matters of procedure
- (6) Persons able to represent a party in an arbitral proceeding
- B Place of arbitration
- (1) Determination of the place of arbitration in absence of an agreement by the parties
- (2) Importance and legal effect of place (seat) of the arbitration
- C Submissions, deadlines and default
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- 4.225
- 4.226
- 4.227
- 4.228
- 4.229
- 4.230
- (1.1) From what point in time is a claim considered to be pending with the arbitral tribunal? What are the legal effects of such a fact (eg on statutes of limitations)?
- (1.2) When is a time limit according to statutes of limitations deemed to be interrupted in case of (i) ad hoc ; and (ii) institutional arbitration?
- (1.3) What is the effect of the withdrawal of the request for arbitration?
- (2) Legal deadlines (provided by law or set by the arbitrators) and effect of non-compliance by a party
- (3) Statutory requirements as to notifications during an arbitration (with respect to the request for arbitration and other written pleadings; with respect to notifications by the tribunal)
- (4) Effect of the insolvency of a party
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- D Facts and evidence: general
- (1) Burden of proof (inquisitorial/adversarial procedure)
- (2) Power of the tribunal to determine the admissibility, and weight of the evidence produced by the parties
- 4.257
- 4.258
- 4.259
- 4.260
- (2.1) Is the tribunal entitled to take the claimant’s factual allegations as automatically proven if the respondent does not participate in the arbitral proceedings?
- (2.2) May the arbitral tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- (2.3) What is the standard of proof that must be met in order for a fact to be considered to have been established (preponderance of the evidence; beyond reasonable doubt)? Must a stringent requirement be met for certain facts?
- (2.4) May the arbitral tribunal rely on its own knowledge to consider certain facts as proven?
- E Witnesses
- (1) Ability of a person to act as a witness
- (2) Preparation of witnesses and limits thereof
- (3) Admissibility of written witness statements
- (4) Entitlement of a party to have a hearing or cross-examination of witnesses
- 4.283
- 4.284
- 4.285
- (4.1) What are the methods used to establish a record of the arbitral proceedings, in particular witness examinations (tape recording, verbatim court reporters, dictated minutes, other methods)?
- (4.2) May the arbitral tribunal take an oath from a witness?
- (4.3) Does the arbitral tribunal have the power to compel witnesses?
- F Documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- 4.293
- 4.294
- 4.295
- (1.1) Is the submission of ‘agreed documents’ permitted? If yes, what is the extent and effect of such an agreement of the parties (authenticity, existence, acknowledgement of such documents’ contents)?
- (1.2) How may electronic documents (eg emails) be presented and proven?
- (1.3) Does discovery (US- or UK-style), after the procedure has started, violate any procedural rules or public policy considerations?
- (2) Requirement to produce certain documents (as requested by the tribunal) and consequences of a failure to do so
- (3) Protection of the confidentiality of documents (legal privilege etc)
- (1) Form and kind of documents to be presented to the arbitral tribunal
- G Experts
- (1) Appointment and presentation of experts by the party or the arbitral tribunal
- (2) Admissibility and role of expert witnesses
- (3) Influence of the parties upon the selection of questions to be submitted to the expert
- (4) Independence and impartiality of the expert and the right to reject a proposed/appointed expert
- (5) Oral examination of an expert in a hearing
- H Interim measures of protection
- (1) Kind of interim measures which the tribunal may order
- 4.336
- 4.337
- 4.338
- 4.339
- (1.1) Which are, in general, the procedural and substantive prerequisites for the ordering of interim and conservatory measures (eg reduced degree of evidence; urgency; summary evaluation of the claim)?
- (1.2) Are the prerequisites for interim measures ordered by the arbitral tribunal more or less the same as if those are requested from the state court? Is there case law/leading authorities on whether those measures are faster and enforced more easily if taken by the arbitral tribunal or the state court?
- (2) Limits of the tribunal’s powers to order interim measures
- (3) Orders to provide security for the costs of the proceeding
- (4) Attachment of assets by an order of the tribunal
- (1) Kind of interim measures which the tribunal may order
- I Assistance by the courts
- (1) Extent of court assistance in the gathering of evidence
- 4.354
- 4.355
- 4.356
- (1.1) Is it for the arbitral tribunal or for the party to obtain the assistance of state courts with respect to the gathering of evidence?
- (1.2) According to case law and practical experience, are there considerable delays involved when asking a court to give assistance (eg for the obtaining of evidence)?
- (2) Assistance for enforcing the attachment of assets
- (3) Other examples of possible assistance
- (4) Dependence of the power of state courts to intervene during the proceedings on the (national) procedural law applied by the arbitral tribunal
- (1) Extent of court assistance in the gathering of evidence
- A General principles
- V The award
- A Types of award
- (1) Interim award (eg on interim measures or the jurisdiction of the tribunal)
- (2) Partial award
- (3) Final award
- B Deliberations and agreement on the award
- C Form of the award and deposition
- (1) Form and minimum contents of an award
- (2) Requirement to give reasons in the award
- (3) Necessity to specify place and time where and when the award was made
- (4) Other requirements (registration, delivery etc)
- 4.401
- 4.402
- 4.403
- (4.1) Does the award have to be laid down or registered with a state court or agency (even if it has been rendered according to a foreign procedural law)?
- (4.2) Does a foreign award which has been rendered abroad according to this country’s national procedural law, have to be laid down or registered with a state court or agency? Is there a fee or tax for such registration of an award?
- (4.3) How long after the rendering of the award must the file/award be stored by the lawyers and the arbitral tribunal?
- D Applicable substantive law
- (1) Party autonomy to choose the applicable substantive law
- (2) Decisions according to equity or as amiable compositeur
- (3) Application of lex mercatoria , general principles etc
- (4) Applicable substantive law if there is no choice of law by the parties
- (5) Binding effect of state court decisions
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 4.468
- 4.469
- (2.1) Is there case law authorizing or prohibiting arbitrators to order a party to pay an advance on the arbitration costs?
- (2.2) May the raising of a set-off claim or counterclaim be made contingent upon payment of the corresponding advance for the relevant arbitration costs (cf eg Article 30(5), ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- (2.3) What remedies exist against a party which does not pay its part of the advance on the arbitration costs (eg termination of the arbitration agreement)? How may the other party enforce its rights?
- (3) Costs of the administration by an arbitration institution
- (4) Arbitrators’ fees: law and practice, judicial control
- 4.481
- 4.482
- 4.483
- 4.484
- 4.485
- (4.1) May arbitrators fix their own fees in the award?
- (4.2) How can the parties change the arbitrators’ fees once they are fixed?
- (4.3) (A) Are the arbitrators’ fees subject to income tax if (i) the place of arbitration; or (ii) the normal residence or place of business of the arbitrator is located in this country?
- (4.4) Are arbitrators’ fees submitted to VAT? If yes, is the duty to pay such tax linked to (i) the place of arbitration; or (ii) the arbitrator’s general residence?
- (5) Attorneys’ fees and the winning party’s claim for reimbursement
- (6) Time and form of the decision on costs
- 4.499
- 4.500
- (6.1) May the arbitrators’ decision on the costs (allocation and amount of costs to be reimbursed) be challenged separately from the award itself? Are there time limits for such a remedy?
- (6.2) Are the arbitrators entitled and/or legally obliged to rule on the amount of one orboth parties’ costs that are recoverable?
- G Publication of the award
- A Types of award
- VI Amendment and challenge of the award; liability of arbitrators
- A Amendment, correction or interpretation of the award
- B Appeal on the merits
- C Setting aside of the award
- (1) Reasons for setting aside an award
- (2) Procedure and deadlines for challenging an award
- (3) Effect of a court decision which sets aside the award
- (4) Appeal against the court’s decision to set aside or not set aside the award
- (5) Possibility of the parties excluding actions for setting aside
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- 4.560
- 4.561
- 4.562
- 4.563
- 4.564
- 4.565
- 4.566
- (1.1) Do the courts and/or authorities rely on a contractual relationship between the parties and the arbitrator(s), irrespective of whether institutional or ad hoc arbitration is concerned? What is the legal qualification of such a contract (eg provision of services)?
- (1.2) Are there court decisions (or authorities) determining which law governs the question of liability of an arbitrator? What is the position of those courts/authorities as to whether and to which extent a legal liability of an arbitrator (or arbitral institution) may be established?
- (1.3) (A) Is an arbitrator subject to criminal prosecution?
- (2) Possibility to restrict or exclude the arbitrators’ liability
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- VII Enforcement of national awards
- 4.575
- 4.576
- 4.577
- 4.578
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- 4.579
- 4.580
- 4.581
- 4.582
- (1.1) Does the national law differentiate between foreign and domestic awards, and if so, which are the criteria? Does there exist an additional notion of award for the purpose of obtaining exequatur (France: international awards)?
- (1.2) May awards granting conservatory/interim measures be subject to enforcement?
- (2) Details of such enforcement procedure (competent court, reasons for rejection of motion etc)
- (3) Appeal against the decision granting exequatur
- (4) Appeal (and procedure) if exequatur has been refused
- (5) Procedure of enforcement (attachment of bank accounts etc)
- 4.602
- 4.603
- (5.1) At the stage of enforcement, may the losing party invoke arguments and circumstances which are based on facts which have occurred before (or after) the award was made?
- (5.2) May the losing party invoke a set-off based on claims that are not related to the matter of the arbitral proceeding? Is it material whether such a claim came into existence before or after the award was made?
- VIII Foreign awards
- A Recognition and/or enforcement of foreign awards (national law)
- 4.610
- 4.611
- (1) Rules according to national law
- (2) Requirements to be fulfilled by the applicant (procedure, time limits)
- (3) Remedies against decisions granting or declining enforcement
- B Recognition and/or enforcement of foreign awards (conventions, treaties)
- C Application of the New York Convention
- A Recognition and/or enforcement of foreign awards (national law)
- IX Appendix
- 5 England
- Preliminary Material
- I Introduction
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the arbitration agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of the arbitration agreement
- 5.32
- 5.33
- 5.34
- (5.1) Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims which arise in connection with the agreement submitted to arbitration generally fall within the arbitral jurisdiction even if based on tortious legal basis? Does there exist case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration agreement on third parties (eg in the case of an assignment or guarantee)
- 5.37
- 5.38
- 5.39
- 5.40
- 5.41
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially (i) with respect to the objection that the arbitration clause does not specifically provide for a plurality of parties in the same procedure; (ii) with respect to the constitution of the arbitral tribunal; and (iii) with respect to the consolidation of two or more running arbitration proceedings?
- 5.45 Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant (Nebenintervention/ Streitverkündung; intervention force/volontaire; vouching in; amicus curiae etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- (1) ‘Personal arbitrability’ (capacity to conclude arbitration agreements)
- 5.49
- 5.50 May a state (or state agency) as party invoke sovereign immunity before the arbitral tribunal or before a state court (eg in a procedure of enforcement)?
- (i) May a state (or state agency) as party invoke sovereign immunity before the arbitral tribunal or before a state court (eg in a procedure of enforcement)?
- (ii) May a state (or state agency) as party invoke sovereign immunity before the arbitral tribunal or before a state court (eg in a procedure of enforcement)?
- (2) ‘Objective arbitrability’ (eg of patent, trade mark and antitrust matters)
- (1) ‘Personal arbitrability’ (capacity to conclude arbitration agreements)
- C Decision on the arbitral tribunal’s jurisdiction (‘competence-competence’)
- (1) Separability (independence of the arbitration agreement from the main agreement)
- (2) Competence of the tribunal to decide on its own jurisdiction (including form and time of the tribunal’s decision)
- (3) Extent of the principle of ‘ Kompetenz-Kompetenz ’ and role of the courts (including form and time limits of a challenge to the tribunal’s decision)
- D Enforcement of an arbitration agreement within or by court proceedings
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- 5.63
- 5.64
- 5.65 If a party has invoked successfully the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitral proceeding that there is a valid and binding arbitration agreement?
- 5.66 Vice versa, if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such agreement in the ensuing court proceeding?
- (2) Legal remedies and proceedings to enforce an arbitration agreement
- 5.67
- 5.68
- 5.69
- (2.1) Which would be the internationally competent court (i) for obtaining a declaration that an arbitration agreement is valid and binding, or (ii) to compel arbitration? (The defendant’s courts? The courts of the place of arbitration? The claimant’s courts, cf Article 6(2) in fine of the ICC Rules?)
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 5.75
- 5.76 Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- 5.77 Which national arbitration institutions may be contacted for obtaining information about qualified (and specialized) arbitrators?
- 5.78 Are judges or civil servants required to obtain permission from their employer to act as arbitrator? Are these permissions given generally or case-by-case? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- C Challenge and replacement of arbitrators
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- 5.85
- 5.86
- 5.87
- 5.88 Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg ICC Rules Article 11)? If so, at what point in time? May such review be excluded?
- 5.89 Is there case law with respect to truncated arbitral tribunals? (cf ICC Rules Article 12(5))
- (2) Procedure for appointing a new arbitrator
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- A Number and qualification of arbitrators
- IV The arbitral procedure
- A General principles
- (1) Extent of party autonomy to determine the arbitral procedure
- (2) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
- (3) Oral hearing or proceeding on basis of written documents
- (4) Power of the tribunal (in particular the chairman) to issue procedural orders
- (5) Distinction of matters of substance and matters of procedure
- (6) Persons able to represent a party in an arbitral proceeding
- B Place of arbitration
- C Submissions, deadlines and default
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- 5.110
- 5.111 From what point in time is a claim considered to be pending with the arbitral tribunal?
- 5.112 When is a time limit according to statutes of limitations deemed to be interrupted in case of (i) ad hoc ; and (ii) institutional arbitration?
- 5.113 What is the effect of the withdrawal of the request for arbitration?
- (2) Legal deadlines (provided by law or set by the tribunal) and effect of non-compliance by a party
- (3) Statutory requirements as to the notifications during an arbitration (with respect to the request for arbitration and other written pleadings; with respect to notifications by the tribunal)
- (4) Effect of insolvency of a party
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- D Facts and evidence: general
- (1) Burden of proof (inquisitorial/adversarial procedure)
- (2) Power of the tribunal to determine the admissibility and weight of the evidence produced by the parties
- 5.124
- (2.1) Is the tribunal entitled to take the claimant’s factual allegation as proven if the defendant does not participate in the arbitral proceedings?
- 5.127 May the arbitral tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- 5.128 What is the standard of proof that must be met in order for a fact to be considered to have been established (preponderance of the evidence; beyond reasonable doubt)? Must a stringent requirement be met for certain facts?
- 5.129 May the arbitral tribunal rely on its own knowledge to consider certain facts as proven?
- E Witnesses
- (1) Ability of a person to act as a witness
- (2) Preparation of witnesses and limits thereof
- (3) Admissibility of written witness statements
- (4) Entitlement of a party to have a hearing or cross-examination of witnesses
- 5.137
- 5.138 Which are the methods used to establish a record of the arbitral proceedings, in particular witness examinations (tape recording, verbatim court reporters, dictated minutes, other methods)?
- 5.139 May the arbitral tribunal take an oath from a witness?
- 5.140 Does the arbitral tribunal have the power to compel witnesses?
- F Documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- 5.141
- 5.142 Is the submission of ‘agreed documents’ permitted? If yes, what is the extent and effect of such an agreement of the parties (authenticity, existence, acknowledgement of such documents’ contents)?
- 5.143 How may electronic documents (eg emails) be presented and proven?
- 5.144 Does discovery (US or UK style), after the procedure has started, violate any procedural rules or public policy considerations?
- (2) Requirement to produce certain documents (as requested by the tribunal) and consequences of a failure to do so
- (3) Protection of the confidentiality of documents (legal privilege etc)
- (1) Form and kind of documents to be presented to the arbitral tribunal
- G Experts
- (1) Appointment and presentation of experts by the party or the arbitral tribunal
- (2) Admissibility and role of expert witnesses
- (3) Influence of the parties upon the selection of questions to be submitted to the expert
- (4) Independence and impartiality of the expert and the right to reject a proposed/appointed expert
- (5) Oral examination of an expert in hearing
- H Interim measures of protection
- (1) Kind of interim measures which the tribunal may order
- 5.158
- 5.159
- (1.1) Which are, in general, the procedural and substantive prerequisites for the ordering of interim and conservatory measures (eg reduced degree of evidence; urgency; summary evaluation of the claim)?
- (1.2) Are the prerequisites for interim measures ordered by the arbitral tribunal more or less the same as if those are requested from the state court? Is there case law/leading authorities on whether those measures are faster and enforced more easily if taken by the arbitral tribunal or the state court?
- (2) Limits of the tribunal’s powers to order interim measures
- (3) Orders to provide security for the costs of the proceeding
- (4) Attachment of assets by an order of the tribunal
- (1) Kind of interim measures which the tribunal may order
- I Assistance by the courts
- (1) Extent of court assistance in the gathering of evidence
- 5.168
- 5.169
- 5.170
- 5.171 Is it for the arbitral tribunal or for the party to obtain the assistance of state courts with respect to the gathering of evidence?
- 5.172 According to case law and practical experience, are there considerable delays involved when asking a court to give assistance (eg for the obtaining of evidence)?
- (2) Assistance for enforcing the attachment of assets
- (3) Other examples of possible assistance
- (4) Dependence of the power of state courts to intervene during the proceedings on the (national) procedural law applied by the arbitral tribunal
- (1) Extent of court assistance in the gathering of evidence
- A General principles
- V The award
- A Types of award
- B Deliberations and agreement on the award
- C Form of the award and deposition
- (1) Form and minimum contents of an award
- (2) Requirement to give reasons in the award
- (3) Necessity to specify place and time where and when the award was made
- (4) Other requirements (registration, delivery etc)
- 5.198
- 5.199
- 5.200 Does the award have to be laid down or registered with a state court or agency (even if it has been rendered according to a foreign procedural law)?
- 5.201 Does a foreign award which has been rendered abroad according to this country’s national procedural law, have to be laid down or registered with a state court or agency? Is there a fee or tax for such registration of an award?
- 5.202 How long after the rendering of the award must the file/award be stored by the lawyers and the arbitral tribunal?
- D Applicable substantive law
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 5.225
- 5.226
- 5.227 Is there case law authorizing or prohibiting arbitrators to order a party to pay an advance on the arbitration costs?
- 5.228 May the raising of a set-off claim or counterclaim be made contingent upon payment of the corresponding advance for the relating arbitration costs (cf eg Article 30(5) of the ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- (2.3) What remedies exist against a party which does not pay its part of the advance on the arbitration costs (eg termination of the arbitration agreement)? How may the other party enforce its rights?
- (3) Costs of the administration by an arbitration institution
- (4) Arbitrators’ fees: law and practice, judicial control
- 5.232
- 5.233
- 5.234 May arbitrators fix their own fees in the award?
- 5.235 How can the parties change the arbitrators’ fees once they are fixed?
- 5.236 Are the arbitrator’s fees subject to income tax if (i) the place of arbitration; or (ii) the normal residence or place of business of the arbitrator is located in this country?
- 5.237 Are arbitrator’s fees submitted to VAT? If yes, is the duty to pay such tax linked to (i) the place of arbitration; or (ii) the arbitrator’s general residence?
- (5) Attorneys’ fees and the winning party’s claim for reimbursement
- (6) Time and form of the decision on costs
- 5.240
- 5.241 May the arbitrators’ decision on the costs (allocation and amount of costs to be reimbursed) be challenged separately from the award itself? Are there time limits for such a remedy?
- 5.242 Are the arbitrators entitled and/or legally obliged to rule on the amount of one or both parties’ costs that are recoverable?
- G Publication of the award
- VI Amendment and challenge of the award; liability of arbitrators
- A Amendment, correction or interpretation of the award
- B Appeal on the merits
- C Setting aside of the award
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- 5.267
- 5.268
- 5.269
- 5.270 Do the courts and/or authorities rely on a contractual relationship between the parties and the arbitrator(s), irrespective of whether institutional or ad hoc arbitration is concerned? What is the legal qualification of such a contract (eg provision of services)?
- 5.271 Are there court decisions (or authorities) determining which law governs the question of liability of an arbitrator? What is the position of those courts/authorities as to whether and to which extent a legal liability of an arbitrator (or arbitral institution) may be established?
- 5.272 Is an arbitrator subject to criminal prosecution?
- (2) Possibility to restrict or exclude the arbitrators’ liability
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- VII Enforcement of national awards
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- 5.274
- 5.275
- 5.276 Does the law make any difference between foreign and domestic awards, and if so, what are the criteria? Does there exist an additional notion of award for the purposes of obtaining exequatur (France: international awards)?
- (1.2) May awards granting conservatory/interim measures be subject to enforcement?
- (2) Details of such enforcement procedure (competent court, reasons for rejection of motion etc)
- (3) Appeal against the decision granting exequatur
- (4) Appeal (and procedure) if exequatur has been refused
- (5) Procedure of enforcement (attachment of bank accounts etc)
- 5.296
- 5.297
- (5.1) At the stage of enforcement, may the losing party invoke arguments and circumstances which are based on facts which have occurred before (or after) the award was made?
- (5.2) May the losing party invoke a set-off based on claims that are not related to the matter of the arbitral proceeding? Is it material whether such claim came into existence before or after the award was made?
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- VIII Foreign awards
- IX Appendix
- 6 France
- Preliminary Material
- I Introduction
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the arbitration agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of arbitration clauses
- 6.16
- (5.1) Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims which arise in connection with the agreement submitted to arbitration generally fall within the arbitral jurisdiction even if based on tortious legal basis? Does there exist case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration clause on third parties (eg in case of a guarantee or assignment)
- 6.20
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially, (i) with respect to the objection that the arbitration clause does not specifically provide for a plurality of parties in the same procedure; (ii) with respect to the constitution of the arbitral tribunal; and (iii) with respect to the consolidation of two or more running arbitration proceedings?
- 6.24 Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant (Nebenintervention/ Streitverkündung; intervention forcée/volontaire; vouching in; amicus curiae etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- C Decision on the arbitral tribunal’s jurisdiction (‘competence-competence’)
- D Enforcement of an arbitration agreement within or by court proceedings
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- 6.34
- 6.35 If a party has invoked successfully the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitral proceeding that there is a valid and binding arbitration agreement?
- 6.36 Vice versa, if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such agreement in the ensuing court proceeding?
- (2) Legal remedies and proceedings to enforce an arbitration agreement
- 6.37
- 6.38
- 6.39 Which would be the internationally competent court (i) for obtaining a declaration that an arbitration agreement is valid and binding; or (ii) to compel arbitration? (The defendant’s courts? The courts of the place of arbitration? The claimant’s courts, cf Article 6(2) in fine, 1998 ICC Rules?)
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 6.42
- (2.1) Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- 6.45 Which national arbitration institutions may be contacted for obtaining information about qualified (and specialized) arbitrators?
- 6.46 Are judges or other civil servants required to obtain a permission by their employer to act as arbitrator? Are these permissions given generally or case-by-case? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- C Challenge and replacement of arbitrators
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- 6.53
- 6.54
- 6.55
- 6.56
- 6.57 Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 11, 1998 ICC Rules)? If so, at what point of time? May such review be excluded?
- 6.58 Is there case law with respect to truncated arbitral tribunals? (cf Art 12(5), 1998 ICC Rules)
- (2) Procedure for appointing a new arbitrator
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- A Number and qualification of arbitrators
- IV The arbitral procedure
- A General principles
- (1) Extent of party autonomy to determine the arbitral procedure
- (2) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
- (3) Oral hearing or proceeding on basis of written documents
- (4) Power of the tribunal (in particular the chairman) to issue procedural orders
- (5) Distinction of matters of substance and matters of procedure
- (6) Persons able to represent a party in an arbitral proceeding
- B Place of arbitration
- C Submissions, deadlines and default
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- 6.74
- 6.75
- 6.76 From what point in time is a claim considered to be pending with the arbitral tribunal? What are the legal effects of such fact (eg on statutes of limitations)?
- 6.77 When is a time limit according to statutes of limitations deemed to be interrupted in case of (i) ad hoc ; and (ii) institutional arbitration?
- 6.78 What is the effect of the withdrawal of the request for arbitration?
- (2) Legal deadlines (provided by law or set by the tribunal) and effect of non-compliance by a party
- (3) Statutory requirements as to notifications during arbitration (with respect to the request for arbitration and other written pleadings; with respect to notifications by the tribunal)
- (4) Effect of the insolvency of a party
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- D Facts and evidence: general
- (1) Burden of proof (inquisitorial/adversarial procedure)
- (2) Power of the tribunal to determine the admissibility and weight of the evidence produced by the parties
- 6.87
- 6.88 Is the tribunal entitled to take the claimant’s factual allegation as proven if the defendant does not participate in the arbitral proceedings?
- 6.89 May the tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- 6.90 What is the standard of proof that must be met in order for a fact to be considered to have been established (preponderance of the evidence; beyond reasonable doubt)? Must a stringent requirement be met for certain facts?
- 6.91 May the arbitral tribunal rely on its own knowledge to consider certain facts as proven?
- E Witnesses
- (1) Ability of a person to act as a witness
- (2) Preparation of witnesses and limits thereof
- (3) Admissibility of written witness statements
- (4) Entitlement of a party to have a hearing or cross-examination of witnesses
- 6.99
- 6.100 Which are the methods used to establish a record of the arbitral proceedings, in particular witness examinations (tape recording, verbatim court reporters, dictated minutes, other methods)?
- 6.101 May the arbitral tribunal take an oath from a witness?
- 6.102 Does the arbitral tribunal have the power to compel witnesses?
- F Documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- 6.103
- 6.104 Is the submission of ‘agreed documents’ permitted? If yes, what is the extent and effect of such an agreement of the parties (authenticity, existence, acknowledgement of such documents’ contents)?
- 6.105 How may electronic documents (eg emails) be presented and proven?
- 6.106 Does discovery (US- or UK-style), after the procedure has started, violate any procedural rules or public policy considerations?
- (2) Requirement to produce certain documents (as requested by the tribunal) and consequences of a failure to do so
- (3) Protection of the confidentiality of documents (legal privilege etc)
- (1) Form and kind of documents to be presented to the arbitral tribunal
- G Experts
- (1) Appointment and presentation of experts by the party or the arbitral tribunal
- (2) Admissibility and role of expert witnesses
- (3) Influence of the parties upon the selection of questions to be submitted to the expert
- (4) Independence and impartiality of the expert and the right to reject a proposed/appointed expert
- (5) Oral examination of an expert in a hearing
- H Interim measures of protection
- (1) Kind of interim measures, which the tribunal may order
- 6.118
- 6.119 Which are, in general, the procedural and substantive prerequisites for the ordering of interim and conservatory measures (eg reduced degree of evidence; urgency; summary evaluation of the claim)?
- (1.2) Are the prerequisites for the interim measures ordered by the arbitral tribunal more or less the same as if those are requested from the state court? Is there case law/ leading authorities on whether those measures are faster and enforced more easily if taken by the arbitral tribunal or the state court?
- (2) Limits of the tribunal’s power to order interim measures
- (3) Orders to provide security for the costs of the proceeding
- (4) Attachments of assets by an order of the tribunal
- (1) Kind of interim measures, which the tribunal may order
- I Assistance by the courts
- (1) Extent of court assistance in the gathering of evidence
- 6.125
- 6.126
- 6.127 Is it for the arbitral tribunal or for the party to obtain the assistance of state courts with respect to gathering evidence?
- 6.128 According to case law and practical experience, are there considerable delays involved when asking a court to give assistance (eg for the obtaining of evidence)?
- (2) Assistance for enforcing the attachment of assets
- (3) Other examples of possible assistance
- (4) Dependence of the power of state courts to intervene during the proceedings on the (national) procedural law applied by the arbitral tribunal
- (1) Extent of court assistance in the gathering of evidence
- A General principles
- V The award
- A Types of award
- B Deliberations and agreement on the award
- C Form of the award and deposition
- (1) Form and minimum contents of an award
- (2) Requirement to give reasons in the award
- (3) Necessity to specify place and time where and when the award was made
- (4) Other requirements
- 6.147
- 6.148 Does the award have to be laid down or registered with a state court or agency (even if it has been rendered according to a foreign procedural law)?
- 6.149 Does a foreign award which has been rendered abroad according to this country’s national procedural law, have to be laid down or registered with a state court or agency?
- 6.150 How long after the rendering of the award must a file/award be stored by the lawyers and the arbitral tribunal?
- D Applicable substantive law
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 6.170
- 6.171 Is there case law authorizing or prohibiting arbitrators to order a party to pay an advance on the arbitration costs?
- 6.172 May the raising of a set-off claim or counterclaim be made contingent upon payment of the corresponding advance for the relating arbitration costs (cf eg Article 30(5), 1998 ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- 6.173 What remedies exist against a party which does not pay its part of the advance on the arbitration costs (eg termination of the arbitration agreement)? How may the other party enforce its rights?
- (3) Costs of the administration by an arbitration institution
- (4) Arbitrators’ fees: law and practice, judicial control
- 6.175
- 6.176 May arbitrators fix their own fees in the award?
- (4.2) How can the parties change the arbitrators’ fees once they are fixed?
- 6.179 Are the arbitrators’ fees subject to income tax if (i) the place of arbitration; or (ii) the normal residence or place of business of the arbitrator is located in this country?
- 6.180 Are arbitrator’s fees submitted to VAT? If yes, is the duty to pay such tax linked to (i) the place of arbitration; or (ii) the arbitrator’s general residence?
- (5) Attorneys’ fees and the winning party’s claim for reimbursement
- (6) Time and form of the decision on costs
- 6.183
- 6.184 May the arbitrators’ decision on the costs (allocation and amount of costs to be reimbursed) be challenged separately from the award itself? Are there time limits for such a remedy?
- 6.185 Are the arbitrators entitled and/or legally obliged to rule on the amount of one or both parties’ costs that are recoverable?
- G Publication of the award
- VI Amendment and challenge of the award; liability of arbitrators
- A Amendment, correction or interpretation of the award
- B Appeal on the merits
- C Setting aside the award
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- 6.203
- 6.204 Do the courts and/or authorities rely on a contractual relationship between the parties and the arbitrator(s), irrespective of whether institutional or ad-hoc arbitration is concerned? What is the legal qualification of such a contract (eg provision of services)?
- 6.205 Are there court decisions (or authorities) determining which law governs the question of liability of an arbitrator? What is the position of those courts/authorities as to whether and to which extent a legal liability of an arbitrator (or arbitral institution) may be established?
- 6.206 Is an arbitrator subject to criminal prosecution?
- (2) Possibility to restrict or exclude the arbitrators’ liability
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- VII Enforcement of national awards
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- 6.208
- 6.209 Does the national law make any difference between foreign and domestic awards, and if so, which are the criteria? Does there exist an additional notion of award for the purpose of obtaining exequatur (France: international awards)?
- 6.210 May awards granting conservatory/interim measures be subject to enforcement?
- (2) Details of such enforcement procedure (competent court, reasons for rejection of motion etc)
- (3) Appeal against the decision granting exequatur
- (4) Appeal (and procedure) if exequatur has been refused
- (5) Procedure of enforcement (attachment of bank accounts etc)
- 6.220
- 6.221
- 6.222 At the stage of enforcement, may the losing party invoke arguments and circumstances which are based on facts which have occurred before (or after) the award was made?
- 6.223 May the losing party invoke a set-off based on claims that are not related to the matter of the arbitral proceeding? Is it material whether such claim came into existence before or after the award was made?
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- VIII Foreign awards
- IX Appendix
- 7 Germany
- Preliminary Material
- I Introduction
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of arbitration clauses
- 7.15
- (5.1) Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims, which arise in connection with the agreement submitted to arbitration, generally fall within the arbitral jurisdiction even if based on tortious legal basis? Does there exist any case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration clause on third parties (eg in case of a guarantee or assignment)
- 7.19
- 7.20
- 7.21
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially (i) with respect to the objection that the arbitration clause does not specifically provide for a plurality of parties in the same procedure; (ii) with respect to the constitution of the arbitral tribunal; and (iii) with respect to the consolidation of two or more running arbitration proceedings?
- (6.2) Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant (Nebenintervention/ Streitverkündung; intervention forcée/volontaire; vouching in; amicus curiae etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- C Decision on the arbitral tribunal’s jurisdiction (‘competence-competence’)
- (1) Separability (independence of the arbitration agreement from the main agreement)
- (2) Competence of the tribunal to decide on its own jurisdiction (including form and time of the tribunal’s decision)
- (3) Extent of the ‘competence-competence’ and role of the courts (including form and time limits of a challenge of the tribunal’s decision)
- D Enforcement of an arbitration agreement within or by way of court proceedings
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- 7.40
- 7.41 If a party has successfully invoked the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitral proceeding that there is a valid and binding arbitration agreement?
- 7.42 Vice versa, if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such agreement in the ensuing proceeding?
- (2) Legal remedies and proceedings to enforce an arbitration agreement
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 7.46
- 7.47 Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- 7.48 Which national arbitration institutions may be contacted for obtaining information about qualified (and specialized) arbitrators?
- (2.3) Are judges or civil servants required to obtain permission by their employer to act as arbitrator? Are these permissions given generally or case-by-case? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- C Challenge and replacement of arbitrators
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- 7.57
- 7.58
- 7.59
- 7.60 Do state courts review challenge procedures, which took place in accordance with a specific procedure agreed upon by the parties (eg Article 11, ICC Rules)? If so, at what point in time? May such review be excluded?
- 7.61 Is there case law with respect to truncated arbitral tribunals? (cf Article 12(5), ICC Rules)
- (2) Procedure for appointing a new arbitrator
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- A Number and qualification of arbitrators
- IV The arbitral procedure
- A General principles
- (1) Extent of party autonomy to determine the arbitral procedure
- (2) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
- (3) Oral hearing or proceeding on basis of written documents
- (4) Power of the tribunal (in particular the chairman) to issue procedural orders
- (5) Distinction of matters of substance and matters of procedure
- (6) Persons able to represent a party in an arbitral proceeding
- B Place of arbitration
- C Submissions, deadlines and default
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- 7.77
- 7.78
- 7.79
- 7.80
- 7.81
- 7.82 From what point in time is a claim considered to be pending with the arbitral tribunal? What are the legal effects of such fact (eg on statutes of limitations)?
- 7.83 When is a time limit according to statutes of limitations deemed to be interrupted in case of (i) ad hoc ; and (ii) institutional arbitration?
- 7.84 What is the effect of the withdrawal of the request for arbitration?
- (2) Legal deadlines (provided by law or set by the tribunal) and effect of non-compliance by a party
- (3) Statutory requirements as to notifications during arbitration (with respect to the request for arbitration and other written pleadings; with respect to notifications by the tribunal)
- (4) Effect of the insolvency of a party
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- D Facts and evidence: general
- (1) Burden of proof (inquisitorial/adversarial procedure)
- (2) Power of the tribunal to determine the admissibility and weight of the evidence produced by the parties
- 7.96
- 7.97
- 7.98 Is the tribunal entitled to take the claimant’s factual allegation as proven if the defendant does not participate in the arbitral proceedings?
- 7.99 May the arbitral tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- 7.100 What is the standard of proof that must be met in order for a fact to be considered to have been established (preponderance of the evidence; beyond reasonable doubt)? Must a stringent requirement be met for certain facts (for which ones)?
- 7.101 May the arbitral tribunal rely on its own knowledge to consider certain facts as proven?
- E Witnesses
- (1) Ability of a person to act as a witness
- (2) Preparation of witnesses and limits thereof
- (3) Admissibility of written witness statements
- (4) Entitlement of a party to have a hearing or cross-examination of witnesses
- 7.110
- 7.111 Which are the methods used to establish a record of the arbitral proceedings, in particular witness examinations (tape recording, verbatim court reporters, dictated minutes, other methods)?
- 7.112 May the arbitral tribunal take an oath from a witness?
- 7.113 Does the arbitral tribunal have the power to compel witnesses?
- F Documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- 7.114
- 7.115 Is the submission of ‘agreed documents’ permitted? If yes, what is the extent and effect of such an agreement of the parties (authenticity, existence, acknowledgement of such documents’ contents)?
- 7.116 How may electronic documents (eg emails) be presented and proven?
- (1.3) Does discovery (US- or UK-style), after the procedure has started, violate any procedural rules or public policy considerations?
- (2) Requirement to produce certain documents (as requested by the tribunal) and consequences of a failure to do so
- (3) Protection of the confidentiality of documents (legal privilege etc)
- (1) Form and kind of documents to be presented to the arbitral tribunal
- G Experts
- (1) Appointment and presentation of experts by the party or the arbitral tribunal
- (2) Admissibility and role of expert witnesses
- (3) Influence of the parties upon the selection of questions to be submitted to the expert
- (4) Independence and impartiality of the expert and the right to reject a proposed/ appointed expert
- (5) Oral examination of an expert in a hearing
- H Interim measures of protection
- (1) Kind of interim measures which the tribunal may order
- 7.131
- (1.1) Which are, in general, the procedural and substantive prerequisites for the ordering of interim and conservatory measures (eg reduced degree of evidence; urgency; summary evaluation of the claim)?
- (1.2) Are the prerequisites for interim measures ordered by the arbitral tribunal more or less the same as for those requested from the state court? Is there case law/legal authorities on whether those measures are faster and enforced more easily if taken by the arbitral tribunal or the state court?
- (2) Limits of the tribunal’s power to order interim measures
- (3) Orders to provide security for the costs of the proceeding
- (4) Attachment of assets by an order of the tribunal
- (1) Kind of interim measures which the tribunal may order
- I Assistance by the courts
- (1) Extent of court assistance in the gathering of evidence
- 7.142
- 7.143 Is it for the arbitral tribunal or for the party to obtain the assistance of state courts with respect to the gathering of evidence?
- (1.2) According to case law and practical experience, are there considerable delays involved when asking a court to give assistance (eg for the obtaining of evidence)?
- (2) Assistance for enforcing the attachment of assets
- (3) Other examples of possible assistance
- (4) Dependence of the power of state courts to intervene during the proceedings on the (national) procedural law applied by the arbitral tribunal
- (1) Extent of court assistance in the gathering of evidence
- A General principles
- V The award
- A Types of award
- B Deliberations and agreement on the award
- C Form of the award and deposition
- (1) Form and minimum contents of an award
- (2) Requirement to give reasons in the award
- (3) Necessity to specify place and time where and when the award was made
- (4) Other requirements (registration, delivery etc)
- 7.171
- 7.172 Does the award have to be laid down or registered with a state court or agency (even if it has been rendered according to a foreign procedural law)?
- 7.173 Does a foreign award, which has been rendered abroad according to this country’s national procedural law, have to be laid down or registered with a state court or agency? Is there a fee or tax for such registration of an award?
- 7.174 How long after the rendering of the award must the file/award be stored by the lawyers and the arbitral tribunal?
- D Applicable substantive law
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees?
- 7.200
- 7.201
- 7.202 Is there any case law authorizing or prohibiting arbitrators to order a party to pay an advance on the arbitration costs?
- (2.2) May the raising of a set-off claim or counterclaim be made contingent upon payment of the corresponding advance for the relating arbitration costs (cf Article 30(5), ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- (2.3) What remedies exist against a party, which does not pay its part of the advance on the arbitration costs (eg termination of the arbitration agreement)? How may the other party enforce its rights?
- (3) Costs of the administration by an arbitration institution
- (4) Arbitrators’ fees: law and practice, judicial control
- 7.208
- 7.209
- 7.210 May arbitrators fix their own fees in the award?
- 7.211 How can the parties change the arbitrators’ fees once they are fixed?
- 7.212 Are the arbitrators’ fees subject to income tax if (i) the place of arbitration; or (ii) the normal residence or place of business of the arbitrator is located in this country?
- 7.213 Are arbitrators’ fees submitted to VAT? If yes, is the duty to pay such tax linked to (i) the place of arbitration; or (ii) the arbitrator’s general residence?
- (5) Attorneys’ fees and the winning party’s claim for reimbursement
- (6) Time and form of the decision on costs
- 7.217
- 7.218 May the arbitrators’ decision on the costs (allocation and amount of costs to be reimbursed) be challenged separately from the award itself? Are there time limits for such a remedy?
- 7.219 Are the arbitrators entitled and/or legally obliged to rule on the amount of one or both parties’ costs that are recoverable?
- G Publication of the award
- VI Amendment and challenge of the award; liability of arbitrators
- A Amendment, correction or interpretation of the award
- B Appeal on the merits
- C Setting aside of the award
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- 7.245
- 7.246
- 7.247 Do the courts and/or authorities rely on a contractual relationship between the parties and the arbitrator(s), irrespective of whether institutional or ad hoc arbitration is concerned? What is the legal qualification of such a contract (eg provision of services)?
- 7.248 Are there court decisions (or authorities) determining which law governs the question of liability of an arbitrator? What is the position of those courts / authorities as to whether and to which extent a legal liability of an arbitrator (or arbitral institution) may be established?
- 7.249 Is an arbitrator subject to criminal prosecution?
- (2) Possibility to restrict or exclude the arbitrators’ liability
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- VII Enforcement of national awards
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- 7.251
- 7.252 Does the national law make any difference between foreign and domestic awards, and if so, which are the criteria? Does there exist an additional notion of award for the purpose of obtaining exequatur (France: international awards)?
- 7.253 May awards granting conservatory/interim measures be subject to enforcement?
- (2) Details of such enforcement procedure (competent court, reasons for rejection of motion etc)
- (3) Appeal against the decision granting exequatur
- (4) Appeal (and procedure) if exequatur has been refused
- (5) Procedure of enforcement (attachment of bank accounts etc)
- 7.258
- (5.1) At the stage of enforcement, may the losing party invoke arguments and circumstances, which are based on facts which have occurred before (or after) the award was made?
- 7.261 May the losing party invoke a set-off based on claims that are not related to the matter of the arbitral proceeding? Is it material whether such claim came into existence before or after the award was made?
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- VIII Foreign awards
- IX Appendix
- 8 Italy
- Preliminary Material
- I Introduction
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the agreement (eg in writing requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of arbitration clauses
- 8.26
- 8.27
- 8.28
- (5.1) Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims which arise in connection with the agreement submitted to arbitration generally fall within the arbitral jurisdiction even if based on tortious legal basis? Does there exist case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration clause on third parties (eg in case of a guarantee or assignment)
- 8.31
- 8.32
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially, (i) with respect to the objection that the arbitration clause does not specifically provide for a plurality of parties in the same procedure; (ii) with respect to the constitution of the arbitral tribunal; and (iii) With respect to the consolidation of two or more running arbitration proceedings?
- (6.2) Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant ( Nebenintervention / Streitverkündung ; intervention forcée/volontaire; vouching in, amicus curiae ; etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- C Decision on the arbitral tribunal’s jurisdiction (‘competence-competence’)
- (1) Separability (independence of the arbitration agreement from the main agreement)
- (2) Competence of the tribunal to decide on its own jurisdiction (including form and time of the tribunal’s decision)
- (3) Extent of the ‘competence-competence’ and role of the courts (including form and time limits of a challenge of the tribunal’s decision)
- D Enforcement of an arbitration agreement within or by court proceedings
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- 8.62
- 8.63
- 8.64 If a party has invoked successfully the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitral proceedings that there is a valid and binding arbitration agreement?
- 8.65 Vice versa, if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such agreement in the ensuing court proceeding?
- (2) Legal remedies and proceedings to enforce an arbitration agreement
- 8.66
- 8.67
- 8.68
- 8.69
- (2.1) Which would be the internationally competent court (i) for obtaining a declaration that a given arbitration agreement is valid and binding; or (ii) to compel arbitration? (The defendant’s courts? The courts of the place of arbitration? The claimant’s courts, cf Article 6(2) in fine, 1998 ICC Rules?)
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 8.74
- 8.75
- 8.76
- 8.77 Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- 8.78 Which national arbitration institutions may be contacted for obtaining information about qualified (and specialized) arbitrators?
- 8.79 Are judges or other civil servants required to obtain permission by their employer to act as arbitrator? Are these permissions given generally or case-by-case? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- C Challenge and replacement of arbitrators
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- 8.87
- 8.88
- 8.89
- 8.90
- 8.91
- 8.92 Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Article 11, ICC Rules)? If so, at what point of time? May such review be excluded?
- 8.93 Is there case law with respect to truncated arbitral tribunals? (cf Article 12(5), ICC Rules)
- (2) Procedure for appointing a new arbitrator
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- A Number and qualification of arbitrators
- IV The arbitral procedure
- A General principles
- (1) Extent of party autonomy to determine the arbitral procedure
- (2) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal.
- (3) Oral hearing proceeding on basis of written documents?
- (4) Power of the tribunal (in particular the chairman) to issue procedural orders
- (5) Distinction of matters of substance and matters of procedure
- (6) Persons able to represent a party in an arbitral proceeding
- B Place of arbitration
- C Submissions, deadlines and default
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- 8.112
- (1.1) From what point in time is a claim considered to be pending with the arbitral tribunal?
- 8.115 When is a time limit according to statutes of limitations deemed to be interrupted in the case of (i) ad hoc; and (ii) institutional arbitration?
- 8.116 What is the effect of the withdrawal of the request for arbitration?
- (2) Legal deadlines (provided by law or set by the arbitrators) and effect of non-compliance by a party
- (3) Statutory requirements as to notifications during an arbitration (with respect to the request for arbitration and other written pleadings; with respect to notifications by the tribunal)?
- (4) Effects of the insolvency of a party
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- D Facts and evidence: general
- (1) Burden of proof (inquisitorial/adversarial procedure)
- (2) Power of the tribunal to determine the admissibility and weight of the evidence produced by the parties
- 8.126
- 8.127
- 8.128
- 8.129
- 8.130 Is the tribunal entitled to take the claimant’s factual allegation as proven if the defendant does not participate in the arbitral proceedings?
- 8.131 May the arbitral tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- 8.132 What is the standard of proof that must be met in order for a fact to be considered to have been established (preponderance of the evidence; beyond reasonable doubt)? Must a stringent requirement be met for certain facts?
- 8.133 May the arbitral tribunal rely on its own knowledge to consider certain facts as proven?
- E Witnesses
- (1) Ability to act as a witness
- (2) Preparation of witnesses and limits thereof
- (3) Admissibility of written statements
- (4) Entitlement of a party to have a hearing or cross-examination of witnesses
- 8.141
- 8.142
- 8.143 Which are the methods used to establish a record of the arbitral proceedings in particular witness examinations (tape recording, verbatim court reporters, dictated minutes, other methods)?
- 8.144 May the arbitral tribunal take an oath from a witness?
- 8.145 Does the arbitral tribunal have the power to compel witnesses?
- F Documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- 8.146
- 8.147 Is the submission of ‘agreed documents’ permitted? If yes, what is the extent and effect of such an agreement of the parties (authenticity, existence, acknowledgement of such documents’ contents)?
- 8.148 How may electronic documents (eg emails) be presented and proven?
- (1.3) Does discovery (US- or UK-style), after the procedure has started, violate any procedural rules or public policy considerations?
- (2) Requirement to produce certain documents (as requested by the tribunal) and consequences of a failure to do so
- (3) Protection of the confidentiality of documents (legal privilege etc)
- (1) Form and kind of documents to be presented to the arbitral tribunal
- G Experts
- (1) Appointment and presentation of experts by the party or the arbitral tribunal
- (2) Admissibility and role of expert witnesses
- (3) Influence of the parties upon the selection of questions to be submitted to the expert
- (4) Independence and impartiality of experts and the right to reject a proposed/ appointed expert
- (5) Oral examination of the expert in a hearing
- H Interim measures of protection
- (1) Kind of interim measures which the tribunal may order
- 8.165
- 8.166 Which are, in general, the procedural and substantive prerequisites for the ordering of interim and conservatory measures (eg reduced degree of evidence; urgency; summary evaluation of the claim)?
- 8.167 Are the prerequisites for interim measures ordered by the arbitral tribunal more or less the same as if those are requested from the state court? Is there case law and/or leading authorities on whether those measures are faster and enforced more easily if taken by the arbitral tribunal or the state court?
- (2) Limits of the tribunal’s powers to order interim measures
- (3) Orders to give security for the costs of the proceeding
- (4) Attachment of assets by an order of the tribunal
- (1) Kind of interim measures which the tribunal may order
- I Assistance by the courts
- (1) Extent of court assistance in the gathering of evidence
- 8.172
- 8.173
- (1.1) Is it for the arbitral tribunal or for the party to obtain the assistance of state courts with respect to the gathering of evidence
- 8.177 According to case law and practical experience, are there considerable delays involved when asking a court to give assistance (eg for the obtaining of evidence)?
- (2) Assistance for enforcing the attachment of assets
- (3) Other examples of possible assistance
- (4) Dependence of the power of state courts to intervene during the proceedings on the (national) procedural law applied by the arbitral tribunal
- (1) Extent of court assistance in the gathering of evidence
- A General principles
- V The award
- A Types of award
- B Deliberations and agreement on the award
- C Form of the award and deposition
- (1) Form and minimum contents of an award
- (2) Requirement to give reasons in the award
- (3) Necessity to specify place and time where and when the award was made
- (4) Other requirements (registration, delivery etc)
- 8.200
- 8.201 Does the award have to be laid down or registered with a state court or agency (even if it has been rendered according to a foreign procedural law)?
- (4.2) Does a foreign award that has been rendered abroad according to this country’s national procedural law, have to be laid down or registered with a state court or agency? Is there a fee or tax for such registration of an award?
- 8.205 How long after the rendering of the award must the file/award be stored by the lawyers and the arbitral tribunal?
- D Applicable substantive law
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 8.230
- 8.231 Is there case law authorizing or prohibiting arbitrators to order a party to pay an advance on the arbitration costs?
- 8.232 May the raising of a set-off claim or counterclaim be made contingent upon payment of the corresponding advance for the relating arbitration costs (cf eg Article 30(5), 1998 ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- 8.233 Which remedies exist against a party which does not pay its part of the advance on the arbitration costs? Termination of the arbitration agreement? How may the other party enforce its rights?
- (3) Costs of the administration by an arbitration institution
- (4) Arbitrators’ fees: law and practice, judicial control
- 8.235
- (4.1) May arbitrators fix their own fees in the award?
- (4.2) How can the parties change the arbitrators’ fees once they are fixed?
- 8.242 Are the arbitrator’s fees subject to income tax if (i) the place of arbitration; or (ii) the normal residence or place of business of the arbitrator is located in this country?
- (4.4) Are arbitrator’s fees submitted to VAT? If yes, is the duty to pay such tax linked to (i) the place of arbitration; or (ii) the arbitrator’s general residence?
- (5) Attorneys’ fees and the winning party’s claim for reimbursement
- (6) Time and form of the decision on costs
- 8.247
- 8.248 May the arbitrators’ decision on the costs (allocation and amount of costs to be reimbursed) be challenged separately from the award itself? Are there legal provisions, especially time limits for such a remedy?
- 8.249 Are the arbitrators entitled and/or legally obliged to rule on the amount of one or both parties’ costs that are recoverable?
- G Publication of the award
- VI Amendment and challenge of the award; liability of arbitrators
- A Amendment, correction or interpretation of the award
- B Appeal on the merits
- C Setting aside of the award
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- 8.283
- 8.284
- 8.285
- 8.286
- 8.287
- 8.288
- 8.289
- 8.290
- 8.291
- 8.292
- 8.293 Do the courts and/or authorities rely on a contractual relationship between the parties and the arbitrator(s), irrespective of whether institutional ad hoc arbitration is concerned? What is the legal qualification of such contract (eg provision of services)?
- 8.294 Are there court decisions (or authorities) determining which law governs the question of liability of an arbitrator? What is the position of those courts/authorities as to whether and to which extent a legal liability of an arbitrator (or arbitral institution) may be established?
- 8.295 Is an arbitrator subject to criminal prosecution?
- (2) Possibility to restrict or exclude such liability
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- VII Enforcement of national awards
- (3) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- 8.297
- (1.1) Does the national law make any difference between foreign and domestic awards, and if so, which are the criteria? Does there exist an additional notion of award for the purpose of obtaining exequatur (France: international awards)?
- 8.301 May awards granting conservatory/interim measures be subject to enforcement?
- (2) Details of such enforcement procedure (competent court, reasons for rejection of motion etc)
- (3) Appeal against the decision granting exequatur
- (5) Procedure of enforcement (attachment of bank accounts etc)
- 8.305
- (5.1) At the stage of enforcement, may the losing party invoke arguments and circumstances which are based on facts which have occurred before (or after) the award was made?
- 8.308 May the losing party invoke a set-off based on claims that are not related to the matter of the arbitral proceeding? Is it material whether such claim came into existence before or after the award was made?
- (3) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- VIII Foreign awards
- IX Appendix
- 9 Netherlands
- Preliminary Material
- I Introduction
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of arbitration clauses
- 9.24
- 9.25
- 9.26
- (5.1) Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims which arise in connection with the agreement submitted to arbitration generally fall within the arbitral jurisdiction even if based on tortious legal basis? Does there exist case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration clause on third parties (eg in case of a guarantee or assignment)
- 9.30
- 9.31
- 9.32
- 9.33
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially, (i) with respect to the objection that the arbitration clause does not specifically provide for a plurality of parties in the same procedure; (ii) with respect to the constitution of the arbitral tribunal; and (iii) with respect to the consolidation of two or more running arbitration proceedings?
- (6.2) Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant ( Nebenintervention/Streitverkündung ; intervention forcée/volontaire ; vouching in; amicus curiae etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- C Decision on the arbitral tribunal’s jurisdiction (‘competence-competence’)
- (1) Separability (independence of the arbitration agreement from the main agreement)
- (2) The tribunal’s competence to decide on its own jurisdiction (including the tribunal’s decision’s form and time)
- (3) Extent of the ‘competence-competence’ and role of the courts (including form and time limits of a challenge of the tribunal’s decision)
- D Enforcement of an arbitration agreement within or by court proceedings
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- 9.68
- 9.69
- 9.70 If a party has invoked successfully the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitral proceeding that there is a valid and binding arbitration agreement?
- 9.71 Vice versa, if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such agreement in the ensuing court proceeding?
- (2) Legal remedies and proceedings to enforce an arbitration agreement
- 9.72
- (2.1) Which would be the internationally competent court (i) for obtaining a declaration that an arbitration agreement is valid and binding; or (ii) to compel arbitration? (The defendant’s courts? The courts of the place of arbitration? The claimant’s courts, cf Article 6 (2) in fine, ICC Rules?)
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 9.78
- 9.79 Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- 9.80 Which national arbitration institutions may be contacted for obtaining information about qualified (and specialized) arbitrators?
- 9.81 Are judges or civil servants required to obtain permission by their employer to act as arbitrator? Are these permissions given generally or case-by-case? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- C Challenge and replacement of arbitrators
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- 9.100
- 9.101
- 9.102
- 9.103
- 9.104
- (1.1) Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Article 11, ICC Rules)? If so, at what point in time? May such review be excluded?
- 9.107 Is there case law with respect to truncated arbitral tribunals? (cf Article 12(5), ICC Rules)
- (2) Procedure for appointing a new arbitrator
- (1) Grounds, procedure and deadlines for challenging an arbitrator
- A Number and qualification of arbitrators
- IV The arbitral procedure
- A General principles
- (1) Extent of party autonomy to determine the arbitral procedure
- (2) Basic procedural principles or mandatory rules to be applied by the arbitral tribunal
- (3) Oral hearing or proceeding on basis of written documents
- (4) Power of the tribunal (in particular the chairman) to issue procedural orders
- (5) Distinction of substantive matters and procedural matters
- (6) Persons able to represent a party in an arbitral proceeding
- B Place of arbitration
- C Submissions, deadlines and default
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- 9.134
- (1.1) From which point in time is a claim considered to be pending with the arbitral tribunal? What are the legal effects of such fact (eg on statutes of limitations?)
- (1.2) When is a time limit according to statutes of limitations deemed to be interrupted in case of (i) ad hoc ; and (ii) institutional arbitration?
- (1.3) What is the effect of the withdrawal of the request for arbitration?
- (2) Legal deadlines (provided by law or set by the tribunal) and effect of non-compliance by a party
- (3) Statutory requirements as to notifications during an arbitration (with respect to the request for arbitration and other written pleadings; with respect to notifications by the tribunal)
- (4) Effect of a party’s insolvency
- (1) Contents and form of submissions (in particular request for arbitration and answer to request)
- D Facts and evidence: general
- (1) Burden of proof (inquisitorial/adversarial procedure)
- (2) Power of the tribunal to determine the admissibility and weight of the evidence produced by the parties
- 9.157
- 9.158
- 9.159
- 9.160
- (2.1) Is the tribunal entitled to take the claimant’s factual allegation as proven if the defendant does not participate in the arbitral proceedings?
- 9.163 May the arbitral tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- 9.164 What is the standard of proof that must be met in order for a fact to be considered to have been established (ie preponderance of the evidence, beyond reasonable doubt)? Must a stringent requirement be met for certain facts?
- 9.165 May the arbitral tribunal rely on its own knowledge to consider certain facts as proven?
- E Witnesses
- (1) Ability of a person to act as a witness
- (2) Preparation of witnesses and corresponding limits
- (3) Admissibility of written witness statements
- (4) Entitlement of a party to have a hearing, examination and cross-examination of witnesses
- 9.174
- 9.175
- 9.176 Which are the methods used to establish a record of the arbitral proceedings, in particular witness examinations (tape recording, verbatim court reporters, dictated minutes, other methods)?
- 9.177 May an arbitrator take an oath from a witness?
- (4.3) Does the arbitral tribunal have the power to compel witnesses?
- F Documents
- (1) Form and kind of documents to be presented to the arbitral tribunal
- 9.180
- 9.181 Is the submission of ‘agreed documents’ permitted? If yes, what is the extent and effect of such an agreement of the parties (authenticity, existence, acknowledgement of such documents’ contents)?
- 9.182 How may electronic documents (eg emails) be presented and proven?
- 9.183 Does discovery (US- or UK-style), after the procedure has started, violate any procedural rules or public policy considerations?
- (2) Requirement to produce certain documents (as requested by the tribunal) and consequences of a failure to do so
- (3) Protection of the confidentiality of documents (legal privilege etc)
- (1) Form and kind of documents to be presented to the arbitral tribunal
- G Experts
- 9.188
- (1) Appointment and presentation of experts by the party or the tribunal
- (2) Admissibility and role of expert witnesses
- (3) The parties’ influence upon the selection of questions to be submitted to the expert
- (4) Independence and impartiality of the expert and the right to reject a proposed/appointed expert
- (5) Oral examination of an expert in a hearing
- H Interim measures of protection
- (1) Kind of interim measures which the tribunal may order
- 9.201
- 9.202
- 9.203
- 9.204
- 9.205
- 9.206
- 9.207 Which are, in general, the procedural and substantive prerequisites for the ordering of interim and conservatory measures (eg reduced degree of evidence, urgency, summary evaluation of the claim)?
- 9.208 Are the prerequisites for interim measures ordered by the arbitral tribunal more or less the same as if those are requested from the state court? Is there case law/leading authorities on whether those measures are faster and enforced more easily if taken by the arbitral tribunal or the state court?
- (2) Limits of the tribunal’s powers to order interim measures
- (3) Orders to provide security for the costs of the proceeding
- (4) Attachment of assets by an order of the tribunal
- (1) Kind of interim measures which the tribunal may order
- I Assistance by the courts
- A General principles
- V The award
- A Types of award
- B Deliberations and agreement on the award
- C Form of the award and deposition
- (1) Form and minimum contents of an award
- (2) Requirement to give reasons in the award
- (3) Necessity to specify place and time and where and when the award was made
- (4) Other requirements (registration, delivery etc)
- 9.239
- 9.240 Does the award have to be laid down or registered with a state court or agency (even if it has been rendered according to a foreign procedural law)?
- (4.2) Does a foreign award which has been rendered abroad according to this country’s national procedural law, have to be laid down or registered with a state court or agency? Is there a fee or tax for such registration of an award?
- 9.243 How long after the rendering of the award must the file/award be stored by the lawyers and the arbitral tribunal?
- D Applicable substantive law
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 9.266
- 9.267
- 9.268 Is there case law authorizing or prohibiting arbitrators to order a party to pay an advance on the arbitration costs?
- 9.269 May the raising of a set-off claim or counterclaim be made contingent upon payment of the corresponding advance for the relating arbitration costs (cf eg Article 30(5), ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- 9.270 What remedies exist against a party which does not pay its part of the advance on the arbitration costs (eg termination of the arbitration agreement)? How may the other party enforce its rights?
- (3) Costs of the administration by an arbitration institution
- (4) Arbitrators’ fees: law and practice, judicial control
- 9.276
- (4.1) May arbitrators fix their own fees in the award?
- (4.2) How can the parties change the arbitrators’ fees once they are fixed?
- 9.281 Are the arbitrator’s fees subject to income tax if (i) the place of arbitration; or (ii) the normal residence or place of business of the arbitrator is located in this country?
- 9.282 Are arbitrator’s fees submitted to VAT? If yes, is the duty to pay such tax linked to (i) the place of arbitration; or (ii) the arbitrator’s general residence?
- (5) Attorneys’ fees and the winning party’s claim for reimbursement
- (6) Time and form of the decision on costs
- 9.285
- 9.286 May the arbitrators’ decision on the costs (allocation and amount of costs to be reimbursed) be challenged separately from the award itself? Are there time limits for such a remedy?
- 9.287 Are the arbitrators entitled and/or legally obliged to rule on the amount of one or both parties’ costs that are recoverable?
- G Publication of the award
- VI Amendment and challenge of the award; liability of arbitrators
- A Amendment, correction, or interpretation of the award
- B Appeal on the merits
- C Setting aside of the award
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- 9.310
- 9.311 Do the courts and/or authorities rely on a contractual relationship between the parties and the arbitrator(s), irrespective of whether institutional or ad hoc arbitration is concerned? What is the legal qualification of such a contract (eg provision of services)?
- (1.2) Are there court decisions (or authorities) determining which law governs the question of liability of an arbitrator? What is the position of those courts/authorities as to whether and to which extent a legal liability of an arbitrator (or arbitral institution) may be established?
- 9.315 Is an arbitrator subject to criminal prosecution?
- (2) Possibility to restrict or exclude the arbitrators’ liability
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- VII Enforcement of national awards
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- 9.317
- 9.318
- 9.319
- 9.320
- 9.321
- 9.322 Does the national law make any difference between foreign and domestic awards, and if so, which are the criteria? Does an additional motion of award exist for the purpose of obtaining exequatur (France: international awards)?
- 9.323 May awards granting conservatory/interim measures be subject to enforcement?
- (2) Details of such enforcement procedure (competent court, reasons for rejection of motion etc)
- (3) Appeal against the decision granting exequatur
- (4) Appeal (and procedure) if exequatur has been refused
- (5) Procedure of enforcement (attachment of bank accounts etc)
- 9.329
- 9.330 At the stage of enforcement, may the losing party invoke arguments and circumstances which are based on facts which have occurred before (or after) the award was made?
- 9.331 May the losing party invoke a set-off based on claims that are not related to the matter of the arbitral proceeding? Is it material whether such claim came into existence before or after the award was made?
- (1) Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur )
- VIII Foreign awards
- IX Appendix
- 10 Singapore
- Preliminary Material
- I Introduction
- A Current status of the law on arbitration
- (1) Short history
- (2) Law in force and future projects
- (3) Distinction between national and international arbitration
- A Practice of arbitration
- A Current status of the law on arbitration
- II Jurisdiction of the arbitral tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the contents of the arbitration agreement
- (3) Form of the arbitration agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration clause contained in general terms and conditions
- (5) Law applicable to the interpretation of arbitration clauses
- 10.30
- 10.31 Do courts accept a wide competence of the arbitral tribunal or do they restrict arbitral competence? Do claims which arise in connection with the agreement submitted to arbitration generally fall within the arbitral jurisdiction even if based on tortious legal basis? Does there exist case law with respect to the wording in an arbitration clause as ‘arising out of/under/in connection with the present contract’ and its specific meaning?
- (6) Binding effect of an arbitration clause on third parties (eg in case of a guarantee or assignment)
- 10.32
- 10.33
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially, (i) with respect to the objection that the arbitration clause does not specifically provide for a plurality of parties in the same procedure; (ii) respect to the constitution of the arbitral tribunal; and (iii) with respect to the consolidation of two or more running arbitration proceedings?
- 10.37 Is there case law/authorities with respect to the admissibility of third party participation in an arbitration without being a claimant or defendant ( Nebenintervention/Streitverkündung ; intervention forcée/volontaire; vouching in; amicus curiae etc)? What are the prerequisites and effects of such participation (if permitted)?
- (7) Termination of an arbitration agreement by a party (reasons and case law)
- B Arbitrability
- C Decision on the arbitral tribunal’s jurisdiction (competence-competence)
- (1) Separability (independence of the arbitration agreement from the main agreement)
- (2) Competence of the tribunal to decide on its own jurisdiction (including form and time of the tribunal’s decision)
- (3) Extent of the ‘competence-competence’ and role of the courts (including form and time limits of a challenge of the tribunal’s decision
- D Enforcement of an arbitration agreement within or by court proceedings
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- 10.48
- 10.49
- 10.50
- 10.51
- 10.52
- 10.53 If a party has invoked successfully the arbitration agreement in a court proceeding, is it then entitled to deny within the arbitration proceedings that there is a valid and binding arbitration agreement?
- (1.2) Vice versa, if a party has successfully objected to an arbitral proceeding by denying that there is a valid arbitration agreement, may it then invoke such an agreement in the ensuing court proceedings?
- (2) Legal remedies and proceedings to enforce an arbitration agreement
- 10.54
- 10.55 Which would be the internationally competent court (i) for obtaining a declaration that an arbitration agreement is valid and binding; or (ii) to compel arbitration? (The defendant’s courts? The courts of the place of arbitration? The claimant’s courts, cf Article 6(2) in fine, ICC Rules?
- (1) Effect of invoking an arbitration clause within a court proceeding (and time limits for such a motion)
- A Arbitration agreement
- III The arbitral tribunal
- A Number and qualification of arbitrators
- (1) Sole arbitrator or arbitral tribunal with several arbitrators
- (2) Qualification of the arbitrators
- 10.59
- 10.60 Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- (i) Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- (ii) Are there mandatory requirements for the qualification of arbitrators (statutory requirements or indirect requirements through eg general conditions of insurance contracts)?
- 10.61 Which national arbitration institutions may be contacted for obtaining information about qualified (and specialized) arbitrators?
- 10.62 Are judges or civil servants required to obtain permission by their employer to act as arbitrator? Are these permissions given generally or case-by-case? What are the consequences if such permission has not been obtained?
- B Appointment of arbitrators
- A Number and qualification of arbitrators
- 1 Introduction