Composition & Jurisdiction of the Arbitral Tribunal

Chartered Institute of Arbitrators

Entrance Course in International Arbitration Dubai, 5 February 2011

Welcome

Ian Dalley
MEng CEng MIET FCIArb CEDR accredited mediator Solicitor (England & Wales) DLA Piper Middle East LLP, Abu Dhabi

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Appointment
 Nominated in the arbitration agreement  Agreement after the dispute has arisen
 under agreement to refer future disputes  ad hoc agreement

 Agreed appointing authority or other agreed procedure  By appointed arbitrators

 two appointed arbitrators appoint 3rd arbitrator (Model Law Art. 11)

 By Court or other authority

 default of a party or other appointment mechanism or failure of the two appointed arbitrators to agree on the 3rd arbitrator (Model Law Art. 11(3))

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Number of arbitrators

 Stated in the arbitration agreement  Agreement after dispute has arisen  If no agreement:
 there will be three (Art. 10(2))  each party appoints one, and the two party appointed arbitrators appoint a third (Art. 11(3)(a))

 Preferences and considerations

 Cost, time, expertise

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Qualifications of the Tribunal

 Expressly stated by the Model Law:
 Impartiality  Independence  Prospective arbitrator must disclose justifiable doubts as to impartiality or independence (Art. 12(1))  Diligence (Art. 14(1))
 unable to perform his duties  fails to act without undue delay

 Qualifications specified by the arbitration agreement (Art. 11)

 e.g.: nationality, professional qualifications,

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Personal qualities and other considerations

 Judicial temperament / capacity  Management skills  Competence  Diplomacy  Discretion  Flexibility  Availability

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Jurisdiction

 Definition:

the overall mantle of authority vested in the arbitral tribunal to determine the dispute
 Sources:
 Arbitration agreement  Submission to arbitration
 referral  appointment document

 Arbitration rules  Procedural law

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Objections to substantive jurisdiction

 Separability (Art. 16)

 an arbitration agreement (clause) is a separate contract from the underlying contract of which it forms part  important where there is a question whether the underlying contract is illegal, invalid etc

 Kompetenz-Kompetenz (Art. 16 and 34)

 the arbitral tribunal has jurisdiction to determine its own jurisdiction

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Challenges to jurisdiction

 When are they made? (Art. 16)

 must be raised not later than the submission of the statement of defence or as soon as the matter is raised  Tribunal can consider a later objection if it considers the delay is justifiable

 How are they dealt with? (Art. 16)

 As a preliminary question, referable to Court within 30 days  In a substantive award on the merits

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Duties

Definition: mandatory requirements which regulate the exercise of powers i.e.: what the tribunal must do
 Sources:
 Arbitration Agreement  Arbitration rules  Procedural law

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Principal Duties (Model Law)

 To treat the parties with equality (Art. 18)  To give each party a full opportunity to present its case (Art. 18)  To conduct the arbitration in such a manner as the arbitration tribunal considers appropriate, subject to the agreement of the parties (Art. 19)  To conduct the procedure in accordance with any agreement by the parties (Art. 34(2)(a)(iv))  To decide neither more nor less than the disputes submitted (Art. 34(2)(a)(iii))  To proceed without undue delay (Art. 14)

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Powers

 Definition:
the tools conferred on the arbitral tribunal by arbitration agreement and procedural law reinforce the exercise of the arbitral tribunals authority i.e.: what the arbitrators may do the to

 Sources:
 Arbitration agreement  Arbitration rules  Procedural law

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Powers under the Model Law: I

 To rule on its own jurisdiction (Art. 16)  To order interim measures of protection (Art. 17)
 e.g.: preserve assets or evidence

 To inspect goods, other property or documents (Art. 24(2))  To make interim or partial awards (Art. 31)  To correct awards (Art. 33(1)(a))  To give interpretation of a specific point or part of an award (Art. 33(1)(b))  To make additional awards (Art. 33(3))

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Powers under the Model law: II

Subject to the contrary agreement of the parties:
 To determine the procedural law (Art. 19)
 includes determination of the admissibility, relevance, materiality and weight of any evidence

 To determine the place of the arbitration (Art. 20)  To determine the language of the arbitration (Art. 22)  To determine whether to hold oral hearings or oral submissions (Art. 24)  To appoint one or more experts to report on specific issues (Art 26(1))

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Powers under Model Law for party default

Subject to the contrary agreement of the parties (Art. 25):
 Where the claimant fails to communicate its statement of claim, the tribunal shall terminate the proceedings  Where the respondent fails to communicate its statement of defence, the tribunal shall proceed with the reference without treating the failure, as itself, as an admission of the claimants allegations  Where a party fails to appear at a hearing or produce documentary evidence, the tribunal may proceed with the reference and render an award on the basis of the material before it

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Questions

 Any questions?

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