Negotiation

Conciliation / mediation
Arbitration
Litigation
Arbitration is a method of dispute
resolution involving one or more neutral
third parties who are usually agreed to by
the disputing parties and whose decision is
binding.
1. Final, binding decision
2. Party autonomy
3. Confidentiality
4. International recognition and enforcement
of arbitral awards
Arbitrability, - the situation that whether the
dispute under the arbitration agreement
could be settled by arbitration or not.
The 1958 New York Convention states as
follows: each contracting state shall
recognize an agreement in writing under
which the parties undertake to submit to
arbitration all or any difference which have
arisen or which may arise between them in
respect of a defined legal relationship,
whether contractual or not, concerning a
subject matter capable of settlement by
arbitration.
recognition and enforcement of an arbitral
award may also be refused if the competent
authority in the country where recognition and
enforcement is sought finds that: 1) the
subject matter of the difference is not capable
of settlement by arbitration under the law of
that country, or 2) the recognition or
enforcement of the ward would be contrary to
the public policy of that country.
In France, Civil Code one can arbitrate with
respect to all rights of which one can dispose
freely. one cannot submit to arbitration
questions of status and capacity of persons,
questions relative to divorce and separation,
or questions respecting controversies that
concern public entities or public
establishments and more generally any
matter that concerns the public order.
In china, according to the 1994 Arbitration Law,
contractual disputes between citizen of equal
status, legal persons and other economic
organizations and disputes arising from
property rights may be put to arbitration. And
the following disputes can not be put to
arbitration : 1) disputes arising from marriage,
adoption, guardianship, bringing up of children
and inheritance 2) disputes that have been
stipulated by law to be settled by
administrative organs.
International commercial arbitration is the
process of resolving business disputes
between or among transnational parties
through the use of one or more arbitrators
rather than through the courts.
1. ad hoc arbitration
2. institutional arbitration
Fist adopted in UNCITRAL in 1985.
Commercial a broad interpretation of commerciality should
be adopted: any international arbitration between companies
where the dispute is economic in character will be considered
to be commercial.

International an arbitration is international is:
1. the parties to an arbitration agreement have, at the time of
the conclusion of that agreement, their places of business in
different States, or
2. one of the following places is situated outside the State in
which the parties have their places of business: i) the place of
arbitration if determined in, or pursuant to, the arbitration
agreement ii) any place where a substantial part of the
obligations of the commercial relationship is to be performed
or the place with which the subject-matter of the dispute is
most closely connected; or
3. the parties have expressly agreed that the subject matter of
the arbitration agreement relates to more than one country.
ICA ICC international Court of Arbitration
ICSID international centre for settlement of
investment dispute
WIPO arbitration and Mediation Centre
London Court of International Arbitration
The HK international Arbitration Centre
China International Economic and Trade
Arbitration Commission.
CIETAC recommends the following model
arbitration clause
Any dispute arising from or in connection
with this Contract shall be submitted to the
China International Economic and Trade
Arbitration Commission for arbitration
which shall be conducted in accordance
with the Commissions arbitration rules in
effect at the time of applying for arbitration.
The arbitral award is final and biding upon
both parties.
The parties may also stipulate the dollowing
matter in the arbitration clause:
1. the place of arbitration and hearing
2. the language of the arbitration
3. the number of arbitrations
4. the nationality of arbitrators
5. the method of selection of arbitrators
6. the applicable law of the contract
7. the application of ordinary procedure or
summary procedure.
Arbitration agreement is a contract to refer a
present or future legal dispute to arbitration.
Such agreements are of two kinds, those
referring an existing dispute to arbitration
and those relating to disputes that may arise
in the future.
1. arbitration agreement is an agreement by the
parties to submit to arbitration all to certain
disputes which have arisen or which may arise
between them in respect of a defined legal
relationship, whether contractual or not. An
arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of
a separate agreement.
2. The arbitration agreement shall be in writing.
3. An arbitration agreement is in writing if its
content is recorded in any form. Whether or not
the arbitration agreement or contract has been
concluded orally, by conduct, or by other means.
4. The requirement that an arbitration
agreement be in writing is met by an
electronic communication if the
information contained therein is accessible
so as to be usable for subsequent
reference.
5. An arbitration agreement is in writing if it
is contained in an exchange of statement
of claim and defense in which the
existence of an agreement is alleged by
one party and not denied by the other.
6. The reference in a contract to any
document containing an arbitration clause
constitutes an arbitration agreement in
writing, provided that the reference is
such as to make that clause part of the
contract.

An arbitration agreement shall contain the
following: 1) the expression of application
for arbitration 2) matters for arbitration 3)
the arbitration commission chosen
An agreement for arbitration shall be invalid
in one of the following case: 1) the matters
agreed for arbitration exceed the scope of
arbitration provided by law 2) agreements
concluded by people being incapable or
restricted in civil acts 3) an agreement
forced upon a party by the other party by
means of coercion.
The functions of arbitration agreement include:
a) Arbitration agreement is the legal basis for the
arbitration settlement of international commercial
disputes, and is binding upon both parties.
b) Arbitration agreement is the warranty for
arbitration authorities and arbitrators to obtain the
jurisdiction over the disputes therein specified.
c) A valid arbitration agreement eliminates the
jurisdiction of the court over relative disputes.
Once there is an arbitration agreement, no party to
the agreement can bring the dispute to the court
anymore.
d) A valid arbitration agreement is the warranty for
the future arbitral award to be recognized and
enforced, domestically and abroad.
1958 New York Convention states, - to recognize
and enforce an arbitration award, there should be
a valid arbitration agreement.
validity of arbitration clause
china in settling disputes through
arbitration , an agreement to engage in
arbitration should first of all be reached by
parties concerned upon free will. Without
such an agreement, the arbitration
commission shall refuse to accept the
application for arbitration by any one single
party.
seperability and Law governing the
arbitration agreement
UNCITRAL Model Law the arbitral tribunal
may rule on its own jurisdiction, including
any objections with respect to the existence
or validity of the arbitration agreement. For
that purpose, an arbitration clause which
forms part of a contract shall be treated as
an agreement independent of the other
terms of the contract.
China the effect of an agreement for
arbitration shall stand independently and
shall not be affected by the alteration,
dissolution, termination or invalidity of a
contract. An arbitration tribunal has the
right to establish the validity of a contract.

application and acceptance
To apply:
1. There is an agreement for arbitration
2. There are specific requests for arbitration
and facts and reasons
3. The matters shall fall into the limits of the
authority of the arbitration commission.
An arbitration tribunal may be composed of
three arbitrators or one arbitrator. In the case
of three arbitrators, there should be a chief
arbitrator.
Choice of arbitrators
Withdrawal of arbitrators
1) an arbitrator shall be withdrawn and the parties concerned have the
right to request withdrawal, whereas:
a) the arbitrator is a party involve in the case or a blood relation or
relative of the prties concerned or their attorneys.
b) The arbitrator has vital personal interests in the case.
c) The arbitrator has other relations with the parties or their attorneys
involved in the case that might effect the fair ruling of the case.
d) The arbitrator meets the parties concerned or their attorneys in
private or has accepted gifts or attended banquets hosted by the
parties concerned or their attorneys.

2) In requesting or withdrawal, the parties concerned shall state
reasons before the first hearing of the tribunal. If the reasons are
known only after the first hearing, they may be stated before the
end of the last hearing.

3) The withdrawal of an arbitrator of an arbitrator shall be decided
upon by the chairman of the arbitration commission. Whereas the
chairman of the arbitration commission serves as an arbitrator, the
withdrawal shall be decided upon collectively by the arbitration
commission.
three questions will arise: 1) what are the
conditions required for recognition or
enforcement? 2) What procedure should be
expected? 3) What defence might be available?
Legal rules in the New York Convention
recognition and enforcing under the principle of national
treatment
Each contracting state shall recognize arbitral
awards as binding and enforce them in accordance
with the rules of procedure of the territory where
the award is relied upon. There shall not be
imposed substantially more onerous conditions or
higher fees or charges on the recognition or
enforcement of arbitral awards to which the
Convention applied than are imposed on the
recognition or enforcement of domestic arbitral
awards.

documents to supply to obtain the recognition and
enforcement
the duly authenticated original award or a duly
certified copy
the original agreement or a duly certified copy
1. the parties to the agreement were, under the law applicable to
them, under some incapacity, or the said agreement is not valid
under the law to which the parties have subjected it or, failing any
indication thereon, under the law of the country where the award
was made, or
2. the party against whom the ward is invoked was not given proper
notice of the appointment of the arbitrator or of the arbitration
proceedings or was otherwise unable to present his case, or
3. the award deals with a difference not contemplated by or not
falling within the terms of the submission to arbitration, or it
contains decision on matters beyond the scope of the submission
to arbitration, provided that, if the decision on matters submitted
to arbitration can be separated from those not so submitted, that
part of the ward which contains decisions on matters submitted to
arbitration may be recognized and enforced, or
4. the composition of the arbitral authority or the arbitral procedure
was not in accordance with the agreement of the parties, or failing
such agreement, was not in accordance with the law of the country
where the arbitration took place, or
5. the award has not yet become binding on the parties, or has been
set aside or suspended by a competent authority of the country in
which , or under the law of which , the award was made.