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- Preliminary Material
- Summary Contents
- Contents—Detailed
- Table of Cases
- International Courts, Tribunals and Rules
- Ad hoc arbitration
- Arbitration Institute of the Stockholm Chamber of Commerce
- Belgian Centre for Arbitration and Mediation (CEPANI)
- Court of Arbitration for Sport
- European Court of Human Rights
- European Court of Justice
- ICSID
- International Chamber of Commerce
- Iran-US Claims Tribunal
- Permanent Court of Arbitration
- UNCITRAL
- National Jurisdictions
- Albania
- Argentina
- Australia
- Austria
- Belgium
- Bermuda
- Brazil
- Bulgaria
- Canada
- Cayman Islands
- Colombia
- Croatia
- Cyprus
- Denmark
- Egypt
- England and Wales
- France
- Germany
- Greece
- Hungary
- India
- Ireland
- Israel
- Italy
- Japan
- Jordan
- Kazakhstan
- Kenya
- Korea
- Luxembourg
- Malaysia
- Mauritius
- Mexico
- Netherlands
- Netherlands Antilles
- New Zealand
- Nigeria
- Norway
- Paraguay
- People’s Republic of China and Hong Kong
- Peru
- Poland
- Portugal
- Russian Federation
- Singapore
- South Africa
- Spain
- Sweden
- Switzerland
- Tunisia
- Ukraine
- United States
- Zimbabwe
- International Courts, Tribunals and Rules
- Table of Legislation
- List of Contributors
- Main Text
- Part I Introduction
- 1 Introduction
- Preliminary Material
- I Dispute Resolution in a Globalized World
- II The Arbitration Agreement and its Effects
- A Arbitration agreement
- B Institutional versus ad hoc arbitration
- C Place of arbitration
- D Choice of substantive law
- E Language of arbitration
- F Jurisdiction of the arbitral tribunal
- G Number of arbitrators
- III The Arbitral Proceedings
- A Applicable rules and general structure of arbitral proceedings
- B Commencement of arbitral proceedings
- C Constitution of the tribunal
- D Major procedural steps
- 1.189
- (1) Organization of procedure through the arbitral tribunal
- (2) Defences
- (3) Multiparty arbitration
- (4) Taking of evidence
- (5) Post-hearing briefs, settlement attempts, and deliberations by the tribunal
- (6) Procedural efficiency—fast-track proceedings and summary judgment
- (7) Interim measures ordered by the tribunal
- E Assistance of the courts
- IV The Award and its Enforcement
- V Bibliography
- 1 Introduction
- Part II Country Reports
- 2 Outline for the Country Reports
- I Introduction
- II Jurisdiction of the Arbitral Tribunal
- III The Arbitral Tribunal
- IV The Arbitral Procedure
- V The Award
- VI Amendment and Challenge of the Award; Liability of Arbitrators
- VII Enforcement of National Awards
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- B Details of such enforcement procedure (competent court, reasons for rejection of motion, etc)
- C Appeal against the decision granting exequatur
- D Appeal (and procedure) if exequatur has been refused
- E Procedure of enforcement (attachment of bank accounts etc)
- VIII Foreign Awards
- IX Appendix
- 3 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 content 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
- 3.19
- 3.20
- 3.21
- (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 case law exist 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)
- 3.27
- 3.28
- (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; (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)
- 3.50
- 3.51
- (1.1) 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?
- (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
- (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
- 3.60
- (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 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
- 3.69
- 3.70
- (1.1) Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 14 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 Art 15(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)
- 3.95
- 3.96
- (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 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 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
- 3.112
- 3.113
- (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?
- (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
- 3.125
- (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
- 3.129
- (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
- 3.145
- 3.146
- 3.147
- 3.148
- (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
- 3.157
- (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
- 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)
- 3.185
- (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
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 3.215
- 3.216
- (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 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
- 3.222
- 3.223
- (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) 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 value added tax (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
- 3.230
- (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 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
- 3.261
- (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) 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
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- 3.267
- (1) 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)?
- (2) May awards granting conservatory/interim measures be subject to enforcement?
- B Details of such enforcement procedure (competent court, reasons for rejection of motion, etc)
- C Appeal against the decision granting exequatur
- D Appeal (and procedure) if exequatur has been refused
- E Procedure of enforcement (attachment of bank accounts etc)
- 3.276
- 3.277
- (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?
- (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?
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- VIII Foreign Awards
- IX Appendix
- 4 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
- 4.31
- (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)
- 4.37
- 4.38
- 4.39
- 4.40
- 4.41
- 4.42
- 4.43
- 4.44
- (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 court proceedings (and time limits for such a motion)
- 4.80
- 4.81
- 4.82
- 4.83
- 4.84
- (1.1) 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?
- (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
- (1) Effect 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
- 4.95
- (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 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
- 4.107
- 4.108
- 4.109
- 4.110
- 4.111
- 4.112
- 4.113
- 4.114
- (1.1) Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 14 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 Art 15(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)
- 4.141
- 4.142
- 4.143
- 4.144
- 4.145
- (1.1) 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)?
- (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 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
- 4.160
- (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?
- (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 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
- 4.175
- (4.1) 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)?
- (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
- 4.179
- 4.180
- 4.181
- (1.1) 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)?
- (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 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
- 4.202
- 4.203
- 4.204
- 4.205
- 4.206
- (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
- (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
- 4.220
- (1) Interim award (eg on interim measures on the jurisdiction of the tribunal)
- (2) Partial award
- 4.222
- 4.223
- 4.224
- 4.225
- (2.1) 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)
- 4.248
- 4.249
- 4.250
- (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
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 4.283
- 4.284
- (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 relating arbitration costs (cf eg Art 36(3) 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
- 4.290
- 4.291
- (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) 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 value added tax (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
- 4.298
- (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 legal provisions, especially time limits for such a remedy?
- (6.2) 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
- 4.339
- 4.340
- 4.341
- 4.342
- 4.343
- 4.344
- (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) 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
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- 4.352
- 4.353
- (1) 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)?
- (2) May awards granting conservatory/interim measures be subject to enforcement?
- B Details of such enforcement procedure (competent court, reasons for rejection of motion, etc)
- C Appeal against the decision granting exequatur
- D Appeal (and procedure) if exequatur has been refused
- E Procedure of enforcement (attachment of bank accounts etc)
- 4.367
- 4.368
- (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?
- (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?
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- VIII Foreign Awards
- IX Appendix
- 5 Brazil
- Preliminary Material
- I Introduction
- II Jurisdiction of the Arbitral Tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the content 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
- 5.53
- 5.54
- 5.55
- 5.56
- (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 tortuous 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)
- 5.60
- 5.61
- (6.1) What is the law/leading authorities’ position on multiparty 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; (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 a 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)
- 5.77
- 5.78
- 5.79
- (1.1) 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?
- (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
- (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
- 5.86
- (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 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
- 5.96
- 5.97
- 5.98
- (1.1) Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 14 ICC Rules)? If so, at which point of time? May such review be excluded?
- (1.2) Is there case law with respect to truncated arbitral tribunals? (cf Art 15(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)
- 5.116
- (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 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
- 5.129
- 5.130
- (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?
- (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
- 5.144
- (4.1) 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)?
- (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
- 5.148
- (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
- 5.163
- 5.164
- (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
- 5.171
- (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 jurisdiction of the tribunal)
- (2) Partial award
- 5.181
- 5.182
- 5.183
- 5.184
- (2.1) 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) 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)
- 5.208
- (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
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- (2.1) 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 relating arbitration costs? (cf eg Art 36(3) ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- (2.3) Which remedies do 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
- 5.231
- (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) 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 value added tax (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
- (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 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
- 5.264
- (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) 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
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- 5.274
- 5.275
- (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)?
- (2) May awards granting conservatory/interim measures be subject to enforcement?
- B Details of such enforcement procedure (competent court, reasons for rejection of motion, etc)
- C Appeal against the decision granting exequatur
- D Appeal (and procedure) if exequatur has been refused
- E Procedure of enforcement (attachment of bank accounts etc)
- 5.288
- (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?
- (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?
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- VIII Foreign Awards
- IX Appendix
- 6 People’s Republic of China and Hong Kong
- Preliminary Material
- I Introduction
- II Jurisdiction of the Arbitral Tribunal
- A Arbitration agreement
- (1) Arbitration clause and submission agreement
- (2) Requirements as to the content 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
- 6.60
- 6.61
- 6.62
- 6.63
- (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 such 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)
- 6.66
- 6.67
- 6.68
- 6.69
- 6.70
- (6.1) What is the law/leading authorities’ position on multiparty 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; (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/Streitverkundung; 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)
- 6.110
- 6.111
- 6.112
- 6.113
- (1.1) 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?
- (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
- (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 arbitrator
- (2) Qualification of the arbitrators
- 6.125
- 6.126
- 6.127
- 6.128
- 6.129
- (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 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
- 6.147
- 6.148
- 6.149
- 6.150
- 6.151
- 6.152
- 6.153
- 6.154
- 6.155
- 6.156
- (1.1) Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 14 ICC Rules)? If so, at which point of time? May such review be excluded?
- (1.2) Is there case law with respect to truncated arbitral tribunals? (cf Art 15(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)
- 6.195
- 6.196
- 6.197
- 6.198
- 6.199
- (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 statute 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 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
- 6.226
- 6.227
- 6.228
- (2.1) Is the tribunal entitled to take the claimant’s factual allegations as proven if the respondent does not participate in the arbitration 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
- 6.252
- 6.253
- (4.1) Which are the methods used to establish a record of the arbitration 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
- 6.262
- 6.263
- 6.264
- 6.265
- (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
- 6.303
- 6.304
- 6.305
- 6.306
- 6.307
- 6.308
- (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
- 6.325
- 6.326
- 6.327
- (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 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)
- 6.367
- 6.368
- 6.369
- (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
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 6.423
- 6.424
- (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 relating arbitration costs (cf eg Art 36(3) ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- (2.3) Which remedies do 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
- 6.433
- 6.434
- 6.435
- 6.436
- 6.437
- (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) 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 value added tax (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
- 6.451
- 6.452
- (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 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
- (1) Reasons for setting aside an award
- (2) Procedure and deadlines for challenging an award
- (3) Effect of a court decision which sets the award aside
- (4) Appeal against the court’s decision to set aside or not set aside the award
- (5) Possibility of the parties to exclude actions for setting aside
- D Liability of arbitrators
- (1) Duties and liabilities of arbitrators regarding the conduct of the proceedings
- 6.513
- 6.514
- 6.515
- 6.516
- (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) 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
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- 6.525
- 6.526
- 6.527
- 6.528
- 6.529
- 6.530
- (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)?
- (2) May awards granting conservatory/interim measures be subject to enforcement?
- B Details of such enforcement procedure (competent court, reasons for rejection of motion, etc)
- C Appeal against the decision granting exequatur
- D Appeal (and procedure) if exequatur has been refused
- E Procedure of enforcement (attachment of bank accounts etc)
- 6.549
- 6.550
- (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?
- (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?
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- VIII Foreign Awards
- IX Appendix
- 7 England
- Preliminary Material
- I Introduction
- II Jurisdiction of the Arbitral Tribunal
- A Arbitration agreement
- (1) Arbitration agreement and submission agreement
- (2) Requirements as to the content of the arbitration agreement
- (3) Form of the arbitration agreement (eg ‘in writing’ requirement)
- (4) Incorporation of an arbitration agreement contained in general terms and conditions
- (5) Law applicable to the interpretation of the arbitration agreement
- 7.49
- 7.50
- 7.51
- 7.52
- 7.53
- (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 agreement 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)
- 7.56
- 7.57
- 7.58
- 7.59
- (6.1) What is the law/leading authorities’ position on multi-party situations? Especially, (i) with respect to the objection that the arbitration agreement 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 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
- 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 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)
- 7.88
- 7.89
- 7.90
- 7.91
- (1.1) 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?
- (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
- (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
- 7.104
- 7.105
- (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 specialized) 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 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
- 7.116
- 7.117
- 7.118
- 7.119
- 7.120
- (1.1) Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 14 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 Art 15(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 arbitrator (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
- C Submissions, deadlines, and default
- (1) Contents and form of submissions (in particular Request for Arbitration and Answer to Request)
- 7.141
- (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 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
- 7.146
- (2.1) What are the powers of the tribunal if a party fails to comply with the time limits set up by the tribunal?
- (2.2) Is the tribunal bound by any mandatory time limits for certain procedural steps (eg hearings, making of an award)?
- (2.3) 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)
- (3) 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
- 7.157
- 7.158
- (2.2) Is the tribunal entitled to take the claimant’s factual allegation as proven if the defendant does not participate in the arbitral proceedings?
- (2.3) May the arbitral tribunal consider an allegation of one party as agreed fact if the other party did not (specifically) dispute the allegation?
- (2.4) 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?
- (2.5) 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
- 7.171
- (4.1) 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)?
- (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 at arbitral tribunal
- 7.175
- (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 failure to do so
- (3) Protection of the confidentiality of documents (legal privilege etc)
- (1) Form and kind of documents to be presented at 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 at hearing
- H Interim measures of protection
- (1) Kind of interim measures which the tribunal may order
- 7.197
- 7.198
- (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
- 7.205
- 7.206
- 7.207
- (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 awards (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)
- 7.241
- 7.242
- (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
- E Settlement
- F Costs of the arbitration
- (1) General allocation of the costs of the proceedings
- (2) Deposits or advances for costs or fees
- 7.271
- 7.272
- (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 relating arbitration costs (cf eg Art 36(3) 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
- 7.279
- 7.280
- (4.1) Arbitrators fix their own fees in the award?
- (4.2) How can the parties change the arbitrators’ fees once they are fixed?
- (4.3) Are the arbitrator’s fees subject to income tax if (i) the place of arbitration; or (i) the normal residence or place of business of the arbitrator is located in this country?
- (4.4) Are arbitrator’s fees submitted to value added tax (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
- 7.287
- (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 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
- 7.320
- 7.321
- 7.322
- 7.323
- (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) 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
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- 7.328
- 7.329
- (1) 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 purposes of obtaining exequatur (France: international awards)?
- (2) May awards granting conservatory/interim measures be subject to enforcement?
- B Details of such enforcement procedure (competent court, reasons for rejection of motion, etc)
- C Appeal against the decision granting exequatur
- D Appeal (and procedure) if exequatur has been refused
- E Procedure of enforcement (attachment of bank accounts etc)
- 7.350
- 7.351
- (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?
- (2) May the losing party invoke a set-off based on claims that are not related to matter of the arbitral proceeding? Is it material whether such claim came into existence before or after the award was made?
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- VIII Foreign Awards
- IX Appendix
- 8 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 content 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
- 8.17
- (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)
- 8.21
- (6.1) What is the law/leading authorities’ position on multiparty 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; (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 a 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)
- 8.43
- 8.44
- 8.45
- (1.1) 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?
- (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
- (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
- 8.54
- (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 specialized) arbitrators?
- (2.3) 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
- 8.67
- 8.68
- (1.1) Do state courts review challenge procedures which took place in accordance with a specific procedure agreed upon by the parties (eg Art 14 ICC Rules)? If so, at which point of time? May such review be excluded?
- (1.2) Is there case law with respect to truncated arbitral tribunals? (cf Art 15(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 the 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)
- 8.86
- 8.87
- (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 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
- 8.98
- (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?
- (2.2) May the 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
- 8.110
- (4.1) 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)?
- (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
- 8.114
- (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
- 8.130
- (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 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
- 8.138
- 8.139
- (1.1) Is it for the arbitral tribunal or for the party to obtain the assistance of state courts with respect to gathering 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)
- 8.160
- (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 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
- 8.183
- (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 relating arbitration costs (cf eg Art 36(3) ICC Rules)? May such a condition be agreed upon when entering into the arbitration agreement?
- (2.3) Which remedies do 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
- 8.188
- (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) 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 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
- 8.196
- (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 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
- 8.219
- (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) 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
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- 8.224
- (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)?
- (2) May awards granting conservatory/interim measures be subject to enforcement?
- B Details of such enforcement procedure (competent court, reasons for rejection of motion, etc)
- C Appeal against the decision granting exequatur
- D Appeal (and procedure) if exequatur has been refused
- E Procedure of enforcement (attachment of bank accounts etc)
- 8.237
- (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?
- (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?
- A Requirement of a particular procedure to make an award enforceable (leave for enforcement, exequatur)
- VIII Foreign Awards
- IX Appendix
- 9 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 content 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
- 9.16
- 9.17
- (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)
- 9.21
- 9.22
- 9.23
- (6.1) What is the law/leading authorities’ position on multiparty 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)
- 9.43
- (1.1) 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?
- (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 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
- 9.49
- (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 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
- 9.61
- 9.62
- 9.63
- 9.64
- 9.65
- (1.1) Do state courts review challenge procedures, which took place in accordance with a specific procedure agreed upon by the parties (eg Art 14 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 Art 15(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)
- 9.84
- 9.85
- 9.86
- 9.87
- 9.88
- (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 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 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
- 9.103
- 9.104
- (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?
- (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 (for which ones)?
- (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
- 9.117
- 9.118
- (4.1) 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)?
- (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
- 9.122
- (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
- 9.139
- (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 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
- 9.150
- (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
- 2 Outline for the Country Reports
- Part I Introduction