Legal Instruments and Practice of Arbitration in the EU

DIRECTORATE GENERAL FOR INTERNAL POLICIES

POLICY DEPARTMENT C: CITIZENS' RIGHTS AND

CONSTITUTIONAL AFFAIRS

LEGAL AFFAIRS

Legal Instruments and Practice of

Arbitration in the EU

ANNEXES

PE 509.988 EN

DOCUMENT REQUESTED BY THE COMMITTEE ON LEGAL AFFAIRS

AUTHOR(S)

Mr Tony COLE (Principal Investigator)

Mr Ilias BANTEKAS (Investigator)

Mr Federico FERRETTI (Investigator)

Ms Christine RIEFA (Investigator)

Ms Barbara WARWAS (Researcher/Drafter/Administrator)

Mr Pietro ORTOLANI (Researcher/Drafter)

RESPONSIBLE ADMINISTRATOR

Mr Udo BUX

Policy Department C: Citizens' Rights and Constitutional Affairs

European Parliament

B-1047 Brussels

E-mail: poldep-c[email protected].eu

LINGUISTIC VERSIONS

Original: EN

ABOUT THE EDITOR

Policy Departments provide in-house and external expertise to support EP committees and

other parliamentary bodies in shaping legislation and exercising democratic scrutiny.

To contact the Policy Department or to subscribe to its monthly newsletter please write to:

poldep-citizens@ep.europa.eu

European Parliament, manuscript completed in November 2014.

This document is available on the Internet at:

http://www.europarl.europa.eu/studies

DISCLAIMER

The opinions expressed in this document are the sole responsibility of the author and do

not necessarily represent the official position of the European Parliament.

Reproduction and translation for non-commercial purposes are authorised, provided the

source is acknowledged and the publisher is given prior notice and sent a copy.



CONTENTS

1. ANNEX A–ARBITRATIONS INVOLVING MEMBER STATES/SWITZERLAND, STATE

ENTITIES AND THE EUROPEAN UNION SINCE 1999 .............................................5

1.1. STATES AND STATE ENTITIES IN ARBITRATIONS OTHER THAN INVESTMENT

ARBITRATIONS, STATE-STATE ARBITRATIONS, AND WTO ARBITRATIONS ..........5

1.2. INVESTMENT ARBITRATIONS, STATE-STATE ARBITRATIONS, AND WTO

ARBITRATIONS............................................................................................9

1.2.1. AUSTRIA ................................................................................................ 9

1.2.2. B

ELGIUM ................................................................................................ 9

1.2.3. B

ULGARIA............................................................................................... 9

1.2.4. C

ROATIA ................................................................................................ 9

1.2.5. C

YPRUS................................................................................................ 10

1.2.6. C

ZECH REPUBLIC.................................................................................... 10

1.2.7. D

ENMARK ............................................................................................. 11

1.2.8. E

STONIA .............................................................................................. 11

1.2.9. F

INLAND .............................................................................................. 11

1.2.10. F

RANCE................................................................................................ 11

1.2.11. G

ERMANY ............................................................................................. 12

1.2.12. G

REECE ................................................................................................ 12

1.2.13. H

UNGARY ............................................................................................. 12

1.2.14. I

RELAND .............................................................................................. 13

1.2.15. Italy................................................................................................... 13

1.2.16. L

ATVIA ................................................................................................ 13

1.2.17. Lithuania............................................................................................ 14

1.2.18. Luxembourg....................................................................................... 14

1.2.19. Malta.................................................................................................. 14

1.2.20. Netherlands ....................................................................................... 14

1.2.21. Poland ............................................................................................... 14

1.2.22. Portugal ............................................................................................. 15

1.2.23. Romania ............................................................................................ 15

1.2.24. Slovak Republic ................................................................................. 16

1.2.25. Slovenia ............................................................................................. 16

1.2.26. Spain ................................................................................................. 16

1.2.27. Sweden .............................................................................................. 17

1.2.28. United Kingdom ................................................................................. 17

1.2.29. Switzerland ........................................................................................ 17

1.2.30. European Union (formerly European Communities) ........................... 18

2. ANNEX B – KEY FEATURES OF NATIONAL ARBITRATION LAW IN THE

MEMBER STATES AND SWITZERLAND ............................................................1

2.1. A

USTRIA ...............................................................................................1

2.2. B

ELGIUM ...............................................................................................5

2.3. B

ULGARIA..............................................................................................8

2.4. C

ROATIA .............................................................................................14

2.5. C

YPRUS .............................................................................................18

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

2.6. C

ZECH REPUBLIC .................................................................................21

2.7. DENMARK ..................................................................................................... 25

2.8. E

NGLAND...................................................................................................... 30

2.9. E

STONIA ...................................................................................................... 35

2.10. F

INLAND ...................................................................................................... 38

2.11. F

RANCE........................................................................................................ 43

2.12. G

ERMANY ..................................................................................................... 48

2.13. G

REECE........................................................................................................ 53

2.14. H

UNGARY ..................................................................................................... 58

2.15. I

RELAND ...................................................................................................... 63

2.16. I

TALY ........................................................................................................ 67

2.17. L

ATVIA ........................................................................................................ 74

2.18. L

ITHUANIA ................................................................................................... 78

2.19. L

UXEMBOURG ................................................................................................ 83

2.20. M

ALTA ........................................................................................................ 87

2.21. N

ETHERLANDS ............................................................................................... 93

2.22. P

OLAND ....................................................................................................... 99

2.23. P

ORTUGAL .................................................................................................. 104

2.24. R

OMANIA ................................................................................................... 109

2.25. S

COTLAND .................................................................................................. 115

2.26. S

LOVAKIA................................................................................................... 121

2.27. S

LOVENIA................................................................................................... 125

2.28. S

PAIN ...................................................................................................... 129

2.29. S

WEDEN..................................................................................................... 135

2.30. S

WITZERLAND ............................................................................................. 140

REFERENCES...........................................................................................146

3. ANNEX C – A

RBITRAL INSTITUTIONS QUESTIONNAIRES ..............................1

3.1. A

RBITRATION AND MEDIATION CENTRE OF PARIS (CMAP) ...........................1

3.2. A

RBITRATION INSTITUTE OF THE FINLAND CHAMBER OF COMMERCE................4

3.3. A

RBITRATION INSTITUTE OF THE STOCKHOLM CHAMBER OF COMMERCE (SCC) ........8

3.4. B

ARCELONA ARBITRATION COURT (TAB) ................................................14

3.5. B

ELGIAN CENTRE FOR MEDIATION AND ARBITRATION (CEPANI).................18

3.6. C

ENTRE FOR EFFECTIVE DISPUTE RESOLUTION (CEDR)..............................21

3.7.

HAMBER OF ARBITRATION OF MILAN .....................................................24

3.8. C

IVIL AND MERCANTILE COURT OF ARBITRATION (CIMA) ..........................29

3.9. C

OURT OF ARBITRATION ATTACHED TO THE HUNGARIAN CHAMBER OF COMMERCE

AND

INDUSTRY....................................................................................32

3.10. C

OURT OF ARBITRATION OF THE ESTONIAN CHAMBER OF COMMERCE AND

INDUSTRY ..........................................................................................37

3.11. C

OURT OF ARBITRATION OF THE HAMBURG CHAMBER OF COMMERCE .............40

3.12. C

OURT OF ARBITRATION OF THE POLISH CHAMBER OF COMMERCE.................43

3.13. C

YPRUS ARBITRATION & MEDIATION CENTRE (CAMC) ..............................49

3.14. D

ANISH INSTITUTE OF ARBITRATION ......................................................53

3.15. D

EPARTMENT OF ARBITRATION, ATHENS CHAMBER OF COMMERCE AND INDUSTRY.... 57

3.16. DIS (G

ERMAN INSTITUTE OF ARBITRATION) ............................................63



3.17. I

NTERNATIONAL CENTRE FOR DISPUTE RESOLUTION ..................................67

3.18. I

TALIAN ASSOCIATION FOR ARBITRATION................................................74

6.30. L

ONDON COURT OF INTERNATIONAL ARBITRAITON (LCIA) .........................77

3.19. L

ONDON MARITIME ARBITRATORS ASSOCIATION.......................................82

3.20. M

ADRID COURT OF ARBITRATION (CAM) ................................................85

3.21. M

ALTA ARBITRATION CENTRE ................................................................90

3.22. N

ETHERLANDS ARBITRATION INSTITUTE.................................................. 93

3.23. P

ERMANENT ARBITRATION COURT OF THE SLOVAK BANKING ASSOCIATION ....97

3.24. S

COTTISH ARBITRATION CENTRE..........................................................100

3.25. S

PANISH COURT OF ARBITRATION (CEA) ..............................................103

3.26. S

WISS CHAMBERS' ARBITRATION INSTITUTION ......................................107

3.27. V

ENICE CHAMBER OF ARBITRATION ......................................................110

3.28. V

IENNA INTERNATIONAL ARBITRAL CENTRE ...........................................114

3.29. V

ILNIUS COURT OF COMMERCIAL ARBITRATION (VCCA) ..........................118

REPORTERS ............................................................................................123

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

1. Annex A – Arbitrations involving Member States/ Switzerland,

State Entities and the European Union Since 1999

This Annex lists all identified arbitrations involving Member States/Switzerland, State

Entities and the European Union where a decision occurred from January 1

, 1999 up

through August 2014. It must be emphasised that because of the confidentiality involved in

much arbitration no list of this type can be exhaustive, and so it is unavoidable that further

arbitrations will exist beyond those listed below.

1.1. States and State Entities in Arbitrations other than

Investment Arbitrations, State-State Arbitrations, and WTO

Arbitrations

While the remainder of this Annex will list by name arbitrations in which States or State

Entities have been involved, this information is much more difficult to generate about

commercial arbitrations and other arbitrations that do not fit into the categories used in

Section 4.2. Such arbitrations are often undertaken confidentially, meaning that no

information is publicly available on even the existence of the arbitration, or where its

existence is known, on the specific parties involved.

For this reason it was decided that a list of known arbitrations of this type would provide a

misleading picture of the involvement of States, Parastatal or Public Entities in arbitration.

As a more useful measure, information was gathered from European arbitral institutions

regarding the number of arbitrations they have administered over the past 5 years, the

percentage of those arbitrations that were Investment Arbitrations or State-State

Arbitrations (WTO Arbitrations not being administered by independent arbitral institutions),

and the percentage that involved States, Parastatal or Public Entities. This information was

requested in a broader questionnaire supplied to all the primary arbitral institutions in the

European Union. The responses of those institutions that provided this data is reproduced

below, with an estimate of the number of arbitrations involving States, Parastatal or Public

Entities being calculated from the preceding ones.

While this data is obviously also not exhaustive, it provides the most reliable information

currently available on the extent of involvement of States, Parastatal and Public Entities in

arbitration in the European Union over the past 5 years.

Arbitration and Mediation Centre of Paris (CMAP)

Arbitrations commenced over past 5 years: approximately 90

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU): 0%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 0% (none)

Barcelona Arbitration Court

Arbitrations commenced over past 5 years: 390

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU):

Less than 5%

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): Less than 5% (less than approximately 20)

Centre for Effective Dispute Resolution (CEDR)

Arbitrations commenced over past 5 years: 1,829

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU): 0%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 0% (none)

Court of Arbitration attached to the Hungarian Chamber of Commerce and Industry

Arbitrations commenced over past 5 years: 1111

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU): 6%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 6% (approximately 67)

Court of Arbitration of Madrid

Arbitrations commenced over past 5 years: 632

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party over past 5 years

(including non-EU): 4%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 4% (approximately 25)

Court of Arbitration of the Estonian Chamber of Commerce and Industry

Arbitrations commenced over past 5 years: 85 since 2010

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU):

10%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 10% (approximately 9 since 2010) (estimate of

approximately 11 over past 5 years)

Court of Arbitration of the Hamburg Chamber of Commerce

Arbitrations commenced over past 5 years: 25-50

Investor-State arbitrations: No response

State-State arbitrations: No response

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU): 0%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 0% (none)

Danish Institute of Arbitration

Arbitrations commenced over past 5 years: 647

Investor-State arbitrations: 0.3%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU):

7.7%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 7.4% (approximately 48)

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

Department of Arbitration, Athens Chamber of Commerce and Industry

Arbitrations commenced over past 5 years: 25 completed

Arbitrations involving a State, Parastatal or Public Entity as a party over past 5 years

(including non-EU): 10% (approximately 3 completed) (possibly including Investor-State

and State-State arbitrations)

DIS (German Institute of Arbitration)

Arbitrations commenced over past 5 years: 743

Arbitrations involving a State, Parastatal or Public Entity as a party over past 5 years

(including non-EU): 2% (approximately 15) (possibly including Investor-State and State-

State arbitrations)

ICC International Court of Arbitration

(Data from the ICC was provided independently, and not via questionnaire)

Arbitrations commenced over past 5 years: 3,932

Arbitrations involving a State, Parastatal or Public Entity as a party over past 5 years

(including non-EU): approximately 10.1% (approximately 399) (possibly including

Investor-State and State-State arbitrations)

International Centre for Dispute Resolution (ICDR)

Arbitrations commenced over past 5 years: 4,879

Arbitrations involving a State, Parastatal or Public Entity as a party over past 5 years

(including non-EU): 0.23% (approximately 11) (possibly including Investor-State and

State-State arbitrations)

Italian Association for Arbitration

Arbitrations commenced over past 5 years: 23

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU):

10%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 10% (approximately 2)

London Court of International Arbitration (LCIA)

Arbitrations commenced over past 5 years: 1,297

Arbitrations involving a State, Parastatal or Public Entity as a party over past 5 years

(including non-EU): 5-10% (approximately 65-130) (possibly including Investor-State and

State-State arbitrations)

London Maritime Arbitrators Association

Arbitrations commenced over past 5 years: 6,200

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU): 0%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 0% (none)

Netherlands Arbitration Institute

Arbitrations commenced over past 5 years: 640

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU): 8%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 8% (approximately 51)

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

Permanent Arbitration Court of the Slovak Banking Association

Arbitrations commenced over past 5 years: 29,290

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU): 0%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 0% (none)

Spanish Court of Arbitration (CEA)

Arbitrations commenced over past 5 years: 347

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU):

15%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 15% (approximately 52)

Venice Chamber of Arbitration

Arbitrations commenced over past 5 years: 66

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU): 0%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 0% (none)

Vienna International Arbitral Centre

Arbitrations commenced over past 5 years: 329

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU):

10% (over past 3 years)

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 10% (over past 3 years) (estimate of approximately

33 over past 5 years)

Vilnius Court of Commercial Arbitration

Arbitrations commenced over past 5 years: 151

Investor-State arbitrations: 0%

State-State arbitrations: 0%

Arbitrations involving a State, Parastatal or Public Entity as a party (including non-EU):

2.6%

Commercial and other arbitrations involving a State, Parastatal or Public Entity as a party

over past 5 years (including non-EU): 2.6% (approximately 4)

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

1.2. Investment Arbitrations, State-State Arbitrations, and WTO

Arbitrations

1.2.1. Austria

Investment arbitration: (0)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.2. Belgium

Investment arbitration (1)

Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company

of China, Limited v. Kingdom of Belgium (ICSID Case No. ARB/12/29)

WTO dispute settlement: (3)

United States v. Belgium, DS80 (in consultations on 2 May 1997)

United States v. Belgium, DS127 (in consultations on 5 May 1998)

United States v. Belgium, DS210

State-state arbitration: (4)

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), ICJ

Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v.

Switzerland), ICJ

Legality of Use of Force (Serbia and Montenegro v. Belgium), ICJ

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), ICJ

1.2.3. Bulgaria

Investment arbitration: (7)

Accession Eastern Europe Capital AB and Mezzanine Management Sweden AB v. Republic of

Bulgaria (ICSID Case No. ARB/11/3)

EVN AG v. Republic of Bulgaria (ICSID Case No. ARB/13/17)

Novera AD, Novera Properties B.V. and Novera Properties N.V. v. Republic of Bulgaria

(ICSID Case No. ARB/12/16)

Plama Consortium Ltd. (Cyprus) v. Bulgaria (ICSID Case No. ARB/03/24) 

ST-AD GmbH v. Republic of Bulgaria, UNCITRAL, PCA Case No. 2011-06

Zeevi Holdings v. Bulgaria and Privatization Agency of Bulgaria, Final award, UNCITRAL

Case No. UNC 39/DK, IIC 360 (2006), 25th October 2006, Ad hoc Tribunal (UNCITRAL)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.4. Croatia

Investment arbitration: (5)

Adria Beteiligungs GmbH v. The Republic of Croatia, UNCITRAL

Georg Gavrilovic and Gavrilovic d.o.o. v. Republic of Croatia (ICSID Case No. ARB/12/39)

MOL Nyrt. (Hungary) v. Croatia (ICSID Case No. ARB/13/32)

Lieven J. van Riet, Chantal C. van Riet and Christopher van Riet v. Republic of Croatia

(ICSID Case No. ARB/13/12)

Ulemek v. Croatia, UNCITRAL

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

WTO dispute settlement: (1)

Hungary v. Croatia, DS297

State-state arbitration (2)

Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Croatia v. Serbia), ICJ

Republic of Croatia v. the Republic of Slovenia, PCA

1.2.5. Cyprus

Investment arbitration (2)

Laiki Bank and the Bank of Cyprus v. Republic of Cyprus (in mandatory settlement

discussions prior to filing of claim at ICSID)

Marfin Investment Group Holdings S.A., Alexandros Bakatselos and others v.

Republic of Cyprus (ICSID Case No. ARB/13/27)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.6. Czech Republic

Investment arbitration: (24)

Antaris Solar and Dr. Michael Göde v. Czech Republic, UNCITRAL, PCA

Binder v. Czech Republic, UNCITRAL

CME Czech Republic B.V. v. The Czech Republic, UNCITRAL

Diag Human S.E. v. The Czech Republic, ad hoc

Eastern Sugar B.V.(Netherlands) v. The Czech Republic, SCC Case No. 088/2004

ECE Projektmanagement v. The Czech Republic, UNCITRAL

European Media Ventures SA v. The Czech Republic, UNCITRAL

Frontier Petroleum Services Ltd. v. The Czech Republic, UNCITRAL

InterTrade Holding GmbH v. The Czech Republic, UNCITRAL, PCA

ICW Europe Investments Limited v. Czech Republic, UNCITRAL ad hoc

Invesmart v. Czech Republic, UNCITRAL

Konsortium Oeconomismus v. Czech Republic

Ronald S. Lauder v. The Czech Republic, UNCITRAL

William Nagel v. The Czech Republic, SCC Case No. 049/2002

Georg Nepolsky v. Czech Republic, UNCITRAL

Natland Investment Group NV, Natland Group Limited, G.I.H.G. Limited, and Radiance

Energy Holding S.A.R.L. v. Czech Republic, UNCITRAL ad hoc

Phoenix Action Ltd v. Czech Republic (ICSID Case No. ARB/06/5)

Photovoltaik Knopf Betriebs-GmbH v. Czech Republic, UNCITRAL ad hoc

Pren Nreka v. Czech Republic, UNCITRAL

Saluka Investments B.V. v. The Czech Republic, UNCITRAL

Peter Franz Vocklinghaus v. Czech Republic

Voltaic Network GmbH v. Czech Republic, UNCITRAL ad hoc

WA Investments-Europa Nova Limited v. Czech Republic, UNCITRAL ad hoc

Mr. Jürgen Wirtgen, Mr. Stefan Wirtgen, and JSW Solar (zwei) v. Czech Republic, UNCITRAL

ad hoc

______________________________________________________________

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Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

WTO dispute settlement: (2)

Czech Republic v. Hungary, DS159

Hungary v. Czech Republic, DS148

Poland v. Czech Republic, DS289

State-state arbitration: (0)

1.2.7. Denmark

Investment arbitration: (0)

WTO dispute settlement: (2)

Denmark v. European Union, DS469

Complaint by Denmark in respect of the Faroe Islands

United States v. Denmark, DS83

State-State arbitration (1)

The Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe

Islands v. The European Union), PCA Case No, 2013-30

1.2.8. Estonia

Investment arbitration: (4)

AS Tallinna Vesi v. Estonia, ICSID (filed May 13, 2014)

Alex Genin and others v. Republic of Estonia (ICSID Case No. ARB/99/2)

OKO Pankki Oyj and others v. Republic of Estonia (ICSID Case No. ARB/04/6)

Rail World Estonia LLC and others v. Republic of Estonia (ICSID Case No. ARB/06/6)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.9. Finland

Investment arbitration: (0)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.10. France

Investment arbitration: (2)

The Channel Tunnel Group Limited and France-Manche S.A., and the Governments of the

United Kingdom and France (Eurotunnel Arbitration), PCA

Erbil Serter v. French Republic (ICSID Case No. ARB/13/22)

WTO dispute settlement: (4)

United States v. European Communities, France, Germany, Spain, United Kingdom, DS316

United States v. European Communities, France, Germany, Spain, United Kingdom, DS347

United States v. France, DS131

United States v. France, DS173 (this complaint is identical to the one addressed to the EC

(WT/DS172)

This is not strictly a State-State arbitration, as one pary is the European Union. Beyond this technicality,

however, it is most accurately classified in this section.

______________________________________________________________

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Policy Department C: Citizens' Rights and Constitutional Affairs

State-state arbitration: (7)

The "Camouco" Case (Panama v. France), Prompt Release, ITLOS, Case No. 5

Certain Criminal Proceedings in France (Republic of the Congo v. France), ICJ

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ

The "Grand Prince" Case (Belize v. France), Prompt Release, ITLOS, Case No. 8

Legality of Use of Force (Serbia and Montenegro v. France), ICJ

The "Monte Confurco" Case (Seychelles v. France), Prompt Release, ITLOS, Case No. 6

The Kingdom of Netherlands – Republic of France 1976 Convention on Protection of the

Rhine Against Pollution by Chlorides, PCA

1.2.11. Germany

Investment arbitration: (3)

A case was initiated in 2000 by an Indian investor under the Germany-India BIT pursuant

to UNCITRAL Rules (information on this case is not publicly available)

Vattenfall AB, Vattenfall Europe AG, Vattenfall Europe Generation AG & Co. KG (Sweden) v.

Federal Republic of Germany (ICSID Case No. ARB/09/6)

Vattenfall AB (Sweden) et al v. Germany (ICSID Case No. ARB/12/12)

WTO dispute settlement: (2)

United States v. European Communities, France, Germany, Spain, United Kingdom, DS316

United States v. European Communities, France, Germany, Spain, United Kingdom, DS347

State-state arbitration: (0)

1.2.12. Greece

Investment arbitration: (1)

Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic (ICSID Case No. ARB/13/8)

WTO dispute settlement: (3)

United States v. Greece, DS125

United States v. Greece, DS129

China v. European Union, Italy, Greece, DS452

State-state arbitration: (4)

Certain Property (Liechtenstein v. Germany), ICJ

Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) ICJ

LaGrand (Germany v. United States of America), ICJ

Legality of Use of Force (Serbia and Monténégro v. Germany), ICJ

1.2.13. Hungary

Investment arbitration: (12)

Accession Mezzanine Capital L.P. and Danubius Kereskedöház Vagyonkezelö Zrt. v.

Hungary (ICSID Case No. ARB/12/3)

ADC Affiliate Limited and ADC & ADMC Management Limited v. Republic of Hungary (ICSID

Case No. ARB/03/16)

AES Summit Generation Ltd. (UK subsidiary of US-based AES Corporation) v. Hungary

ICSID Case No. ARB/01/4

Although Greece is known to have been involved in other investment-related arbitrations, accurate statistics are

unavailable due to confidentiality restrictions.

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

AES Summit Generation Limited and AES-Tisza Erömü Kft. (UK) v. Republic of Hungary

(ICSID Case No. ARB/07/22)

Le Chèque Déjeuner and C.D Holding Internationale v. Hungary (ICSID Case No.

ARB/13/35)

Dan Cake (Portugal) S.A. v. Hungary (ICSID Case No. ARB/12/9)

Edenred S.A. v. Hungary (ICSID Case No. ARB/13/21)

EDF International S.A. (France) v. Republic of Hungary, UNCITRAL ad hoc

Electrabel S.A. (Belgium) v. Republic of Hungary (ICSID Case No. ARB/07/19)

Emmis International Holding, B.V., Emmis Radio Operating, B.V., and MEM Magyar

Electronic Media Kereskedelmi és Szolgáltató Kft. v. Hungary (ICSID Case No. ARB/12/2)

Telenor Mobile Communications AS v. Republic of Hungary (ICSID Case No. ARB/04/15)

Vigotop Limited v. Hungary (ISCID Case No. ARB/11/22)

WTO dispute settlement: (7)

Czech Republic v. Hungary, DS159

Hungary v. Czech Republic, DS148

Hungary v. Romania, DS240

Hungary v. Slovak Republic, DS143

Hungary v. Turkey, DS256

Hungary v. Croatia, DS297

United-States v. Japan, DS76 (Acting as a third-country, together with the EC and Brazil)

State-state arbitration: (0)

1.2.14. Ireland

Investment arbitration: (0)

WTO dispute settlement: (2)

United States v. Ireland, DS82

United States v. Ireland, DS130

State-state arbitration: (0)

1.2.15. Italy

Investment arbitration: (1)

Blusun SA, Jean-Pierre Lecorcier and Michael Stein v. Italian Republic (ICSID Case No.

ABR/14/3)

WTO dispute settlement: (1)

China v. European Union, Italy, Greece, DS452

State-state arbitration: (2)

Italian Republic v. Republic of Cuba, ad hoc state-state arbitration

Legality of Use of Force (Serbia and Montenegro v. Italy), ICJ

1.2.16. Latvia

Investment arbitration: (3)

Nykomb Synergetics Technology Holding AB (Sweden) v. The Republic of Latvia, SCC -

Case No 118/2001

Swembalt AB, Sweden v. The Republic of Latvia, UNCITRAL

UAB E energija (Lithuania) v. Republic of Latvia (ICSID Case No. ARB/12/33)

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.17. Lithuania

Investment arbitration: (5)

Vladimir Antonov v. Republic of Lithuania, ICC

Luigiterzo Bosca v. Lithuania, UNCITRAL

Kaliningrad Region v. Lithuania, ICC

OAO Gazprom v. The Republic of Lithuania, UNCITRAL, PCA

Parkerings-Compagniet AS v. Republic of Lithuania (ICSID Case No. ARB/05/8)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.18. Luxembourg

Investment arbitration: (0)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.19. Malta

Investment arbitration: (0)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.20. Netherlands

Investment arbitration: (0)

WTO dispute settlement: (3)

Brazil v. European Union, Netherlands, DS409

India v. European Union, Netherlands, DS408

United States v. Netherlands, DS128

State-state arbitration: (4)

Arctic Sunrise Arbitration (Netherlands v. Russia), PCA

Belgium v. The Netherlands, Arbitration regarding the Iron Rhine Railway, PCA

Legality of Use of Force (Serbia and Montenegro v. Netherlands), ICJ

The Kingdom of Netherlands – Republic of France 1976 Convention on Protection of the

Rhine Against Pollution by Chlorides, PCA

1.2.21. Poland

Investment arbitration: (14)

Cargill v. Poland, UNCITRAL

Cargill, Incorporated v. Republic of Poland (ICSID Case No. ARB(AF)/04/2)

Crespo and others v. Poland, ICC

East Cement for Investment Company v. Poland, ICC

Eureko B.V. v. Republic of Poland

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

Les Laboratoires Servier, S.A.A., Biofarma, S.A.S., Arts et Techniques du Progres S.A.S. v.

Republic of Poland, UNCITRAL

Mercuria Energy Group Ltd. (Cyprus) v. Republic of Poland, SCC

David Minotte and Robert Lewis v Republic of Poland (ICSID Case No. ARB(AF)/10/1)

Nordzucker v. Poland, UNCITRAL

Saar Papier Vertriebs GmbH v. Poland, UNCITRAL

Techniques du Progres S.A.S. v. Republic of Poland, UNCITRAL

TRACO Deutsche Travertinwerke GmbH v. The Republic of Poland, UNCITRAL

Vincent J. Ryan, Schooner Capital LLC, and Atlantic Investment Partners LLC v. Republic of

Poland (ICSID Case No. ARB(AF)/11/3)

Vivendi v. Republic of Poland, UNCITRAL

WTO dispute settlement: (4)

European Communities v. Canada (Acting as a third-party together with Australia, Brazil,

Colombia, Cuba, India, Israel, Japan, Switzerland, Thailand, United States), DS114

Poland v. Thailand (European Communities, Japan, United States as third-parties), DS122

Poland v. Slovak Republic, DS235

Poland v. Czech Republic, DS289

State-state arbitration: (0)

1.2.22. Portugal

Investment arbitration: (0)

WTO dispute settlement: (0)

State-state arbitration: (1)

Legality of Use of Force (Serbia and Montenegro v. Portugal), ICJ

1.2.23. Romania

Investment arbitration: (9)

Hassan Awdi, Enterprise Business Consultants, Inc. and Alfa El Corporation v. Romania

(ICSID Case No. ARB/10/13)

Ömer Dede and Serdar Elhüseyni v. Romania (ICSID Case No. ARB/10/22)

EDF (Services) Limited v. Romania (ICSID Case No. ARB/05/13)

Marco Gavazzi and Stefano Gavazzi v. Romania (ICSID Case No. ARB/12/25)

Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack

S.R.L. v. Romania (ICSID Case No. ARB/05/20)

Noble Ventures, Inc. v. Romania (ICSID Case No. ARB/01/11)

The Rompetrol Group N.V. v. Romania (ICSID Case No. ARB/06/3)

S&T Oil Equipment & Machinery Ltd. v. Romania (ICSID Case No. ARB/07/13)

Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1)

WTO dispute settlement: (2)

Hungary v. Romania, DS240

United States v. Romania, DS198

State-state arbitration: (1)

Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

1.2.24. Slovak Republic

Investment arbitration: (13)

Achmea B.V. v. The Slovak Republic, UNCITRAL, PCA Case No. 2008-13 (formerly Eureko

B.V. v. The Slovak Republic)

Alps Finance and Trade AG v. The Slovak Republic, UNCITRAL

Austrian Airlines v. The Slovak Republic, UNCITRAL

Československa obchodní banka, a.s. v. Slovak Republic (ICSID Case No. ARB/97/4)

EuroGas GmbH v. Slovak Republic, UNCITRAL

European American Investment Bank AG v. The Slovak Republic, UNCITRAL, PCA

HICEE B.V. v. The Slovak Republic, UNCITRAL, PCA Case No. 2009-11

Branimir Mensik v. Slovak Republic (ICSID Case No. ARB/06/9)

Jan Oostergetel and Theodora Laurentius v. The Slovak Republic, UNCITRAL

Slovak Gas Holding BV, GDF International SAS and E.ON Ruhrgas International GmbH v.

Slovak Republic (ICSID Case No. ARB/12/7)

U.S. Steel Global Holdings I B.V. (The Netherlands) v. The Slovak Republic, UNCITRAL, PCA

WTO dispute settlement: (3)

Hungary v. Slovak Republic, DS143

Poland v. Slovak Republic, DS235

Switzerland v. Slovak Republic, DS133

State-state arbitration: (0)

1.2.25. Slovenia

Investment arbitration: (3)

Hrvatska Elektroprivreda d.d. (HEP) (Croatia) v. Republic of Slovenia (ICSID Case No.

ARB/05/24)

Impresa Grassetto S. p. A., in liquidation v. Republic of Slovenia (ICSID Case No.

ARB/13/10)

Interbrew Central European Holding B.V. v. Republic of Slovenia (ICSID Case No.

ARB/04/17)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.26. Spain

Investment arbitration: (10)

Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v.

Spain (ICSID Case No. ARB/13/31)

Charanne (the Netherlands) and Construction Investments (Luxembourg) v. Spain, SCC

CSP Equity Investment S.à.r.l. v. Spain, SCC

Eiser Infrastructure Limited and Energia Solar Luxembourg S.a.r.l. v. Spain (ICSID Case

No. ARB/13/36)

Inversión y Gestión de Bienes, IGB, S.L. and IGB18 Las Rozas, S.L. v. Kingdom of Spain

(ICSID Case No. ARB/12/17)

Isolux Infrastructure Netherlands B.V. v. Spain, SCC

Emilio Agustín Maffezini v. Kingdom of Spain (ICSID Case No. ARB/97/7)

Masdar Solar & Wind Cooperatief UA v. Spain (ICSID Case No. ABR/14/01)

The PV Investors v. Spain, Ad hoc UNCITRAL Arbitration

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

RREEF Infrastructure (G.P.) Limited and RREEF Pan-European RREEF Infrastructure (G.P.)

Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v. Kingdom of Spain

(ICSID Case No. ARB/13/30)

WTO dispute settlement: (3)

Argentina v. European Union, Spain, DS443

United States v. European Communities, France, Germany, Spain, United Kingdom (third-

parties: Australia, Brazil, Canada, China, Japan, Republic of Korea), DS316

United States v. European Communities, France, Germany, Spain, United Kingdom (third-

parties: Australia, Brazil, Canada, China, Japan, Republic of Korea), DS347

State-state arbitration: (2)

Legality of Use of Force (Yugoslavia v. Spain), ICJ

The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain), ITLOS,

Case No. 18

1.2.27. Sweden

Investment arbitration: (0)

WTO dispute settlement: (0)

State-state arbitration: (0)

1.2.28. United Kingdom

Investment arbitrations: (1)

Ashok Sancheti v. United Kingdom, UNCITRAL

WTO dispute settlement: (2)

United States v. European Communities, France, Germany, Spain, United Kingdom, DS316

United States v. European Communities, France, Germany, Spain, United Kingdom, DS347

State-state arbitration: (5)

The Channel Tunnel Group Limited and France-Manche S.A., and the Governments of the

United Kingdom and France (Eurotunnel Arbitration), PCA

Ireland v. United Kingdom ("MOX Plant Case")

Ireland v. United Kingdom, proceedings pursuant to the OSPAR Convention

The Republic of Mauritius v. The United Kingdom of Great Britain and Northern Ireland

Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to

Nuclear Disarmament (Marshall Islands v. United Kingdom), ICJ

1.2.29. Switzerland

Investment arbitration: (0)

WTO dispute settlement:

Switzerland v. Slovak Republic, DS133

Switzerland v. United States (third parties: Brazil, Canada, China, Chinese Taipei, Cuba,

European Communities, Japan, Republic of Korea, Mexico, New Zealand, Norway, Thailand,

Turkey, Bolivarian Republic of Venezuela), DS253

Acting as third country:

China v. United States (third parties: Brazil, Canada, Chinese Taipei, Cuba, European

Communities, Japan, Republic of Korea, Mexico, New Zealand, Norway, Switzerland,

Thailand, Turkey, Bolivarian Republic of Venezuela), DS252

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

European Communities v. Canada (third parties: Australia, Brazil, Colombia, Cuba, India,

Israel, Japan, Poland, Switzerland, Thailand United States), DS114

European Communities v. United States (third parties: Australia, Brazil, Canada, Japan,

Switzerland), DS160

European Communities v. United States (third parties: Brazil, Canada, China, Chinese

Taipei, Cuba, Japan, Republic of Korea, New Zealand, Norway, Switzerland, Thailand,

Turkey, Bolivarian Republic of Venezuela), DS248

Japan v. Argentina (third parties: Australia, Canada, China, Ecuador, European Union,

Guatemala, India, Israel, Japan, Republic of Korea, Norway, Saudi Arabia, Kingdom of

Switzerland, Chinese Taipei, Thailand, Turkey, United States), DS445

Japan v. United States (third-parties: Brazil, Canada, China, Chinese Taipei, European

Communities, Republic of Korea, Mexico, New Zealand, Norway, Switzerland, Thailand,

Turkey, Bolivarian Republic of Venezuela), DS249

European Union v. Argentina (third parties: Australia; Canada; China; Ecuador; European

Union; Guatemala; India; Israel; Japan; Korea, Republic of; Norway; Saudi Arabia,

Kingdom of; Switzerland; Chinese Taipei; Thailand; Turkey; United States), DS438

Republic of Korea v. United States (third parties: Brazil, Canada, China, Chinese Taipei,

European Communities, Japan, Mexico, New Zealand, Norway, Switzerland, Thailand,

Turkey, Bolivarian Republic of Venezuela), DS251

New Zealand v. United States, (third parties: Brazil; Canada; China; Chinese Taipei; Cuba;

European Communities; Japan; Korea, Republic of; Mexico; Norway; Switzerland; Thailand;

Turkey; Venezuela, Bolivarian Republic of), DS258

Norway v. United States (third parties: Brazil; Canada; China; Chinese Taipei; Cuba;

European Communities; Japan; Korea, Republic of; Mexico; New Zealand; Switzerland;

Thailand; Turkey; Venezuela, Bolivarian Republic of), DS254

United States v. Argentina (third countries: Australia; Canada; China; Ecuador; European

Union; Guatemala; India; Israel; Japan; Korea, Republic of; Norway; Saudi Arabia,

Kingdom of; Switzerland; Chinese Taipei; Thailand; Turkey; United States), DS444

State-state arbitration: (2)

Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v.

Switzerland), ICJ

Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations

(Commonwealth of Dominica v. Switzerland), ICJ

1.2.30. European Union (formerly European Communities)

WTO dispute settlement:

WTO arbitration under Article 25 of the DSU:

ECP-EC Partnership Arbitration – “Banana Tariffs,” WT/L/616

Second ECP-EC Partnership Arbitration – “Banana Tariffs,” WT/L/625

WTO arbitration under Article 21 of the DSU:

EU (EC) acting as third party to original WTO proceedings:

WT/DS414/12 (China – United States)

WT/DS384/24, WT/DS386/23 (Canada – United States)

WT/DS366/13 (Panama - Colombia)

WT/DS344/15 (Mexico – United States)

WT/DS336/16 (Republic of Korea – Japan)

WT/DS322/21 (Japan – United States)

WT/DS302/17 (Honduras – Dominican Republic)

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

WT/DS285/13 (Antigua and Barbuda – United States)

WT/DS268/12 (Argentina – United States)

WT/DS264/13 (Canada – United States)

WT/DS207/13 (Argentina – Chile)

WT/DS202/17 (Republic of Korea – United States)

WT/DS184/13 (Japan – United States)

EU (EC) acting as Respondent to original WTO proceedings:

WT/DS246/14 (India – EC)

WT/DS265/33, WT/DS266/33, WT/DS283/14 (Australia – EC)

WT/DS269/13, WT/DS286/15 (Brazil – EC)

EU (EC) acting as Complainant to original WTO proceedings:

WT/DS332/16 (EC – Brazil)

WT/DS75/16, WT/DS84/14 (EC – Republic of Korea)

WT/DS87/15, WT/DS110/14 (EC – Chile)

WT/DS114/13 (EC – Canada)

WT/DS160/12 (EC – United States)

WT/DS136/11, WT/DS162/14 (EC – United States)

WT/DS155/10 (EC – Argentina)

WT/DS217/14, WT/DS234/22 (Australia; Brazil; Chile; European Communities; India;

Indonesia; Japan; Korea, Republic of; Thailand – United States)

WTO Complaints launched by the EU:

Argentina, WT/DS121 - Safeguard measures on footwear

Argentina, WT/DS155 - Measures on the export of bovine hides and the import of finished

leather

Argentina, WT/DS157, Definitive Anti-Dumping Measures on Imports of Drill Bits from Italy

Argentina, WT/DS189 - Definitive anti-dumping measures on imports of ceramic floor tiles

from Italy

Argentina, WT/DS330 – Countervailing Duties on Olive Oil, Wheat Gluten and Peaches

Argentina, WT/DS438 – Measures Affecting the Importation of Goods

Australia, WT/DS287 - Quarantine Regime for Imports

Brazil, WT/DS 472 - Brazil Taxation

Brazil, WT/DS Measures on Import Licensing and Minimum Import Prices

Brazil, WT/DS332 - Measures affecting imports of retreaded tyres

Canada, WT/DS114 - Patent protection of pharmaceutical product

Canada, WT/DS142 - Certain measures affecting the automotive industry

Canada, WT/DS321 - Continued Suspension of Obligations in the EC-Hormones Dispute

Canada, WT/DS354 - Tax exemptions and reductions for wine and beer

Canada, WT/DS426 - Measures Relating to the Feed-in Tariff Program

Chile, WT/DS193 - Measures affecting the transit and importation of swordfish

Chile, WT/DS87 - Taxes on alcoholic beverages

China, WT/DS 372 - China – Measures Affecting Financial Information Services and Foreign

Financial Information Suppliers

China, WT/DS 460 - China – Measures Imposing Anti-Dumping Duties on High-Performance

Stainless Steel Seamless Tubes ("HP-SSST") from the European Union

China, WT/DS339 - Measures affecting imports of automobile parts

China, WT/DS395 - China — Measures Related to the Exportation of Various Raw Materials

China, WT/DS407 - Provisional Anti-Dumping Duties on Certain Iron and Steel Fasteners

from the European Union

China, WT/DS425 - Definitive anti-dumping duties on x-ray security inspection equipment

from the EU - China

______________________________________________________________

2007

Policy Department C: Citizens' Rights and Constitutional Affairs

China, WT/DS432 - China - Measures Related to the Exportation of Rare Earths, Tungsten

and Molybdenum

India, WT/DS146 - Measures affecting the automotive sector

India, WT/DS149 - Import restrictions

India, WT/DS150 - Measures affecting customs duties

India, WT/DS279 - Import restrictions maintained under the export and import policy 2002-

India, WT/DS304 - Anti-dumping measures on imports of certain products from the EC

and/or Member States

India, WT/DS352 - India - Measures Affecting the Importation and Sale of Wines and

Spirits from the European Communities

India, WT/DS380, Certain Taxes and Other Measures on Imported Wines and Spirits

Indonesia, WT/DS481, Recourse to article 22.2 of the DSU in the US — Clove cigarettes

dispute

Korea, Republic Of, WT/DS273 - Measures affecting trade in commercial vessels -

Korea, Republic Of, WT/DS75 - Taxes on alcoholic beverages -

Korea, Republic Of, WT/DS98 - Definitive safeguard measures on imports of certain dairy

products -

Mexico, WT/DS314 - Provisional Countervailing Measures on Olive Oil from the European

Communities

Mexico, WT/DS341 - Mexico - Definitive countervailing measures measures on olive oil from

the European Communities

Philippines, WT/DS396 - Philippines - taxes on distilled spirits

Russian Federation, WT/DS462 - Russian Federation- Recycling fee on motor vehicles

Russian Federation, WT/DS475, Measures on the Importation of Live Pigs, Pork and Other

Pig Products from the European Union

Russian Federation, WT/DS479, Anti-Dumping Duties on Light Commercial Vehicles from

Germany and Italy

Thailand, WT/DS370 - Thailand - Customs valuation of certain products from the EC

United States, WT/DS108 - Tax treatment for "Foreign Sales Corporations"

United States, WT/DS136 - Anti-dumping Act of 1916

United States, WT/DS138 - Imposition of countervailing duties on certain hot-rolled lead

and bismuth carbon steel products originating in the UK

United States, WT/DS152 - Sections 301-310 of the Trade Act of 1974

United States, WT/DS160 - Section 110(5) of US Copyright Act

United States, WT/DS160, Section 110(5) of US Copyright Act

United States, WT/DS165 - Import measures on certain products from the EC

United States, WT/DS165, Import Measures on Certain Products from the European

Communities

United States, WT/DS166 - Definitive safeguard measures on imports of wheat gluten from

United States, WT/DS166, Definitive Safeguard Measures on Imports of Wheat Gluten from

the European Communities

United States, WT/DS176 - Section 211 Omnibus Appropriations Act

United States, WT/DS176, Section 211 Omnibus Appropriations Act of 1998

United States, WT/DS186 - Section 337 of the Tariff Act of 1930 and amendments thereto

United States, WT/DS200 - Section 306 of the Trade Act of 1974 and amendments thereto

("carousel")

United States, WT/DS212 - Countervailing measures concerning certain products from the

United States, WT/DS213 - Countervailing duties on certain corrosion-resistant carbon steel

flat products from Germany

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

United States, WT/DS214, Definitive Safeguard Measures on Imports of Steel Wire Rod and

Circular Welded Quality Line Pipe

United States, WT/DS217 - Continued dumping and subsidy offset Act of 2000

United States, WT/DS225, Anti-Dumping Duties on Seamless Pipe from Italy

United States, WT/DS248 - Definitive safeguard measures on imports of certain steel

products

United States, WT/DS262 - Sunset Reviews of Anti-Dumping and Countervailing Duties on

Certain Steel Products from France and Germany

United States, WT/DS294 - Laws, regulations and methodology for calculating dumping

margins ('zeroing')

United States, WT/DS317 - Measures Affecting Trade in Large Civil Aircraft

United States, WT/DS319 - Section 776 of the Tariff Act of 1930

United States, WT/DS320 - Continued Suspension of Obligations in the EC-Hormones

Dispute

United States, WT/DS350 - Continued Existence and Application of zeroing methodology

United States, WT/DS353 - Measures Affecting Trade in Large Civil Aircraft (second

complaint)

United States, WT/DS424 - United States – Anti-Dumping Measures on Imports of Stainless

Steel Sheet and Strip in Coils from Italy

WTO Complaints against the EU:

Argentina, WT/DS349 - EC - Measures affecting the tariff quota for fresh or chilled garlic

Argentina, WT/DS443 - European Union and a Member State — Certain Measures

Concerning the Importation of Biodiesels

Argentina, WT/DS293 - Measures affecting the approval and marketing of biotech products

(GMOs)

Argentina, WT/DS263 - Measures affecting imports of wine

Australia, WT/DS290 - Protection of trademarks and geographical indications for

agricultural products and foodstuffs

Australia, WT/DS265 - Export subsidies on sugar

Brazil, WT/DS219 - Anti-dumping duties on malleable cast iron tube or pipe fittings from

Brazil

Brazil, WT/DS269 - Customs classification of frozen boneless chicken cuts

Brazil, WT/DS266 - Export subsidies on sugar

Brazil, WT/DS409 - European Union and a Member State - Seizure of Generic Drugs in

Transit

Canada, WT/DS135 - Measures affecting the prohibition of asbestos and asbestos products

Canada, WT/DS400 - European Communities - Measures Prohibiting the Importation and

Marketing of Seal Products

Canada, WT/DS 369 - EC - Certain Measures Prohibiting the Importation and Marketing of

Seal Products

Canada, WT/DS48 - Measures affecting livestock and meat (Hormones)

Canada, WT/DS292 - Measures affecting the approval and marketing of biotech products

(GMOs)

China, WT/DS452 - European Union and certain Member States — Certain Measures

Affecting the Renewable Energy Generation Sector

China, WT/DS397 - European Communities - Definitive Anti-Dumping Measures on certain

iron or steel fasteners from China

China, WT/DS405 - European Union - Anti-Dumping Measures on Certain Footwear from

China

Colombia, WT/DS 361 - EC - Regime For the Importation of Bananas

Ecuador, WT/DS27 - Import regime for bananas

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

Guatemala, WT/DS27 - Import regime for bananas

Honduras, WT/DS27 - Import regime for bananas

India, WT/DS246 - Conditions for the granting of tariff preferences to developing countries

India, WT/DS313 - Anti-dumping duties on certain flat rolled iron or non-alloy steel

products

India, WT/DS141 - Anti-dumping duties on imports of cotton-type bed-linen from India

India, WT/DS408 - European Union and a Member State - Seizure of Generic Drugs in

Transit

Japan, WT/DS376 - Tariff Treatment of Certain Information Technology Products

Korea, Republic Of, WT/DS307 - Aid for commercial vessels

Korea, Republic Of, WT/DS301 - Measures affecting trade in commercial vessels

Korea, Republic Of, WT/DS299 - Countervailing measures on dynamic random access

memory chips (DRAMS)

Mexico, WT/DS27 - Import regime for bananas

Norway, WT/DS401 - European Communities — Measures Prohibiting the Importation and

Marketing of Seal Products

Norway, WT/DS328 - Definitive Safeguard Measure on Salmon

Norway, WT/DS 337 - Anti-Dumping Measure on Farmed Salmon from Norway

Panama, WT/DS364 - EC - Regime for the Importation of Bananas

Peru, WT/DS231 - Trade description of sardines

Taiwan (Chinese Taipei), WT/DS377 - Tariff Treatment of Certain Information Technology

Products

Thailand, WT/DS286 - Customs classification of frozen boneless chicken cuts

Thailand, WT/DS242 - Certain measures under the EC's scheme of generalized system of

preference (GSP)

Thailand, WT/DS283 - Export subsidies on sugar

United States, WT/DS375 - Tariff Treatment of Certain Information Technology Products

United States, WT/DS315 - European Communities - Selected Customs Matters

United States, WT/DS223 - Tariff-rate quota on corn gluten feed from the United States

United States, WT/DS27 - Import regime for bananas

United States, WT/DS316 - Measures Affecting Trade in Large Civil Aircraft

United States, WT/DS260 - Provisional safeguards measures on imports of certain steel

products

United States, WT/DS174 - Protection of trademarks and geographical indications for

agricultural products and foodstuffs

United States, WT/DS26 - Measures affecting meat and meat products (Hormones)

United States, WT/DS291 - Measures affecting the approval and marketing of biotech

products (GMOs)

EU as third party to WTO complaints:

Antigua And Barbuda, WT/DS285 - Measures affecting the cross-border supply of gambling

and betting services

Argentina, WT/DS207 - Price band system and safeguard measures relating to certain

agricultural products

Argentina, WT/DS268 - Sunset review of AD measures on oil country tubular goods

Bangladesh, WT/DS306 - Anti-dumping measure on batteries from Bangladesh

Brazil, WT/DS382 - US - Anti-Dumping Administrative Reviews and Other Measures Related

to Imports of Certain Orange Juice from Brazil

Brazil, WT/DS241 - Anti-dumping duties on poultry from Brazil

Brazil, WT/DS267 - Subsidies on upland cotton

Brazil, WT/DS250 - Equalizing excise tax imposed by Florida on processed orange and

grapefruit products

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

Brazil, WT/DS239 - Anti-dumping duties on silicon metal from Brazil

Canada, WT/DS257 - Final countervailing duty determination with respect to certain

softwood lumber

Canada, WT/DS277 - Investigation of the international trade commission in softwood

lumber

Canada, WT/DS391 - Korea — Measures Affecting the Importation of Bovine Meat and Meat

Products from Canada

Canada, WT/DS264 - Anti-dumping - Final dumping determination on softwood lumber

Canada, WT/DS236 - Determination of countervailing duties on certain softwood lumber

Chile, WT/DS238 - Definitive safeguard measures on imports of preserved peaches

Chile, WT/DS232 - Measures affecting the import of matches

Chile, WT/DS261 - Tax treatment on certain products

China, WT/DS379 - United States - Definitive Anti - Dumping and Countervailing duties on

certain products from China

China, WT/DS399 - United States — Measures Affecting Imports of Certain Passenger

Vehicle and Light Truck Tyres from China

China, WT/DS422 - United States — Anti-Dumping Measures on Shrimp and Diamond

Sawblades from China

China, WT/DS437 - United States — Countervailing Duty Measures on Certain Products

from China

China, WT/DS449 - United States — Countervailing and Anti-dumping Measures on Certain

Products from China

Colombia, WT/DS188 - Measures affecting imports from Honduras and Colombia

Costa Rica, WT/DS415 - Dominican Republic — Safeguard Measures on Imports of

Polypropylene Bags and Tubular Fabric

El Salvador, WT/DS418 - Dominican Republic — Safeguard Measures on Imports of

Polypropylene Bags and Tubular Fabric

Guatemala, WT/DS416 - Dominican Republic — Safeguard Measures on Imports of

Polypropylene Bags and Tubular Fabric

Guatemala, WT/DS331 - Mexico ¿ Anti-Dumping Duties on Steel Pipes and Tubes from

Guatemala

Honduras, WT/DS417 - Dominican Republic — Safeguard Measures on Imports of

Polypropylene Bags and Tubular Fabric

Honduras, WT/DS201 - Measures affecting imports from Honduras and Colombia (II)

Honduras, WT/DS302 - Measures affecting the importation and internal sale of cigarettes

India, WT/DS243 - Rules of origin for textiles and apparel products

India, WT/DS206 - Anti-dumping and countervailing measures on steel plate from India

India, WT/DS345 - United States — Customs Bond Directive for Merchandise Subject to

Anti-Dumping/Countervailing Duties

India, WT/DS436 - United States — Countervailing Measures on Certain Hot-Rolled Carbon

Steel Flat Products from India

Indonesia, WT/DS312 - Korea — Anti-Dumping Duties on Imports of Certain Paper from

Indonesia

Indonesia, WT/DS406 - United States — Measures Affecting the Production and Sale of

Clove Cigarettes

Japan, WT/DS322 - Measures Relating to Zeroing and Sunset Reviews

Japan, WT/DS162 - Anti-dumping Act of 1916

Japan, WT/DS184 - Anti-dumping measures on certain hot-rolled steel products from Japan

Japan, WT/DS412 - Canada - Certain Measures Affecting the Renewable Energy Generation

Sector

Japan, WT/DS433 - China - Measures Related to the Exportation of rare Earths, Tungsten

and Molybdenum

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

Japan, WT/DS244 - Sunset review of AD duties on corrosion-resistant carbon steel flat

products

Korea, Republic Of, WT/DS420 - United States — Anti-dumping measures on corrosion-

resistant carbon steel flat products from Korea

Korea, Republic Of, WT/DS336 - CV duty on DRAMS from Korea

Korea, Republic Of, WT/DS296 - CV duty investigation on DRAMS

Korea, Republic Of, WT/DS323 – Japan – Import quotas on dried laver and seasoned laver

JAPAN

Korea, Republic Of, WT/DS402 - US - Use of Zeroing in Anti-Dumping Measures Involving

Products from Korea

Mexico, WT/DS344 - US - Final Anti-Dumping Measures on Stainless Steel from Mexico

Mexico, WT/DS282 - Anti-dumping measures on oil country tubular goods

Mexico, WT/DS281 - Anti-dumping measures on cement

Mexico, WT/DS398 - China — Measures Related to the Exportation of Various Raw Materials

Moldova, Republic Of, WT/DS423 - Ukraine — Taxes on Distilled spirits

New Zealand, WT/DS367 - Australia — Measures Affecting the Importation of Apples from

New Zealand

Panama, WT/DS366 - Colombia - Indicative prices and restrictions on ports of entry

Philippines, WT/DS270 - Certain measures affecting the importation of fresh fruit and

vegetables

Philippines, WT/DS271 - Certain measures affecting the importation of fresh pineapple

Thailand, WT/DS383 - US - Anti-Dumping Measures on Polyethylene Retail Carrier Bags

from Thailand

Thailand, WT/DS343 - United States - Measures Relating to Shrimp from Thailand

Turkey, WT/DS211 - Definitive anti-dumping measures on steel rebar from Turkey

Ukraine, WT/DS434 - Australia - Certain Measures Concerning Trademarks and Other Plain

Packaging Requirements Applicable to tobacco Products and Packaging

Ukraine, WT/DS421 - Moldova — Measures Affecting the Importation and Internal Sale of

Goods (Environmental Charge)

United States, WT/DS295 - Definitive AD measures on beef and rice

United States, WT/DS309 - Value-added tax on integrated circuits

United States, WT/DS403 - Philippines — Taxes on Distilled Spirits

United States, WT/DS431 - China - Measures Related to the Exportation of rare Earths,

Tungsten and Molybdenum

United States, WT/DS427 - China — Anti-Dumping and Countervailing Duty Measures on

Broiler Products from the United States

United States, WT/DS430 - India — Measures Concerning the Importation of Certain

Agricultural Products from the United States

United States, WT/DS440 - China — Anti-Dumping and Countervailing Duties on Certain

Automobiles from the United States

United States, WT/DS276 - Measures relating to exports of wheat and treatment of

imported grain -

United States, WT/DS308 - Tax measures on soft drinks and other beverages

United States, WT/DS305 - Measures affecting imports of textile and apparel products

United States, WT/DS275 - Import licensing measures on certain agricultural products

United States, WT/DS204 - Measures affecting telecommunication services

United States, WT/DS245 - Measures affecting the importation of apples

United States, WT/DS175 - Measures affecting trade and investment in the motor vehicle

sector

United States, WT/DS360 - India - Additional and Extra-Additional duties India - Additional

and Extra-Additional duties on imports from the United States

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

United States, WT/DS363 - Measures affecting trading rights and distribution services for

certain publications and audiovisual entertainment products

United States, WT/DS362 - Measures affecting the protection and enforcement of

intellectual property rights

United States, WT/DS413 - China — Certain Measures Affecting Electronic Payment

Services

United States, WT/DS414 - China — Countervailing and Anti-Dumping Duties on Grain

Oriented Flat-rolled Electrical Steel from the United States

Viet Nam, WT/DS404 - United States - Anti-Dumping Measures on Certain Shrimp from Viet

Nam

Ordered by defendants:

Argentina, WT/DS238 - Definitive safeguard measures on imports of preserved peaches

Argentina, WT/DS241 - Anti-dumping duties on poultry from Brazil -

Australia, WT/DS271 - Certain measures affecting the importation of fresh pineapple

Australia, WT/DS270 - Certain measures affecting the importation of fresh fruit and

vegetables

Australia, WT/DS367 - Australia — Measures Affecting the Importation of Apples from New

Zealand

Australia, WT/DS434 - Australia - Certain Measures Concerning Trademarks and Other Plain

Packaging Requirements Applicable to tobacco Products and Packaging

Canada, WT/DS412 - Canada - Certain Measures Affecting the Renewable Energy

Generation Sector

Canada, WT/DS276 - Measures relating to exports of wheat and treatment of imported

grain

Chile, WT/DS207 - Price band system and safeguard measures relating to certain

agricultural products

China, WT/DS309 - Value-added tax on integrated circuits

China, WT/DS427 - China — Anti-Dumping and Countervailing Duty Measures on Broiler

Products from the United States

China, WT/DS440 - China — Anti-Dumping and Countervailing Duties on Certain

Automobiles from the United States

China, WT/DS398 - China — Measures Related to the Exportation of Various Raw Materials

China, WT/DS413 - China — Certain Measures Affecting Electronic Payment Services

China, WT/DS414 - China — Countervailing and Anti-Dumping Duties on Grain Oriented

Flat-rolled Electrical Steel from the United States

China, WT/DS433 - China - Measures Related to the Exportation of rare Earths, Tungsten

and Molybdenum

China, WT/DS431 - China - Measures Related to the Exportation of rare Earths, Tungsten

and Molybdenum

China, WT/DS363 - Measures affecting trading rights and distribution services for certain

publications and audiovisual entertainment products

China, WT/DS362 - Measures affecting the protection and enforcement of intellectual

property rights

Colombia, WT/DS366 - Colombia - Indicative prices and restrictions on ports of entry

Dominican Republic, WT/DS416 - Dominican Republic — Safeguard Measures on Imports of

Polypropylene Bags and Tubular Fabric

Dominican Republic, WT/DS415 - Dominican Republic — Safeguard Measures on Imports of

Polypropylene Bags and Tubular Fabric

Dominican Republic, WT/DS418 - Dominican Republic — Safeguard Measures on Imports of

Polypropylene Bags and Tubular Fabric

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

Dominican Republic, WT/DS417 - Dominican Republic — Safeguard Measures on Imports of

Polypropylene Bags and Tubular Fabric

Dominican Republic, WT/DS302 - Measures affecting the importation and internal sale of

cigarettes

Egypt, WT/DS211 - Definitive anti-dumping measures on steel rebar from Turkey

Egypt, WT/DS305 - Measures affecting imports of textile and apparel products

India, WT/DS430 - India — Measures Concerning the Importation of Certain Agricultural

Products from the United States

India, WT/DS360 - India - Additional and Extra-Additional duties India - Additional and

Extra-Additional duties on imports from the United States

India, WT/DS175 - Measures affecting trade and investment in the motor vehicle sector

India, WT/DS306 - Anti-dumping measure on batteries from Bangladesh

Japan, WT/DS336 - CV duty on DRAMS from Korea

Japan, WT/DS323 - JAPAN – IMPORT QUOTAS ON DRIED LAVER AND SEASONED LAVER

Japan, WT/DS245 - Measures affecting the importation of apples

Korea, Republic of, WT/DS391 - Korea — Measures Affecting the Importation of Bovine

Meat and Meat Products from Canada

Korea, Republic WT/DS312 - Korea — Anti-Dumping Duties on Imports of Certain Paper

from Indonesia

Mexico, WT/DS331 - Mexico ¿ Anti-Dumping Duties on Steel Pipes and Tubes from

Guatemala

Mexico, WT/DS295 - Definitive AD measures on beef and rice.

Mexico, WT/DS308 - Tax measures on soft drinks and other beverages

Mexico, WT/DS204 - Measures affecting telecommunication services - Mexico

WT/DS232 - Measures affecting the import of matches

Moldova, Republic Of, WT/DS421 - Moldova — Measures Affecting the Importation and

Internal Sale of Goods (Environmental Charge)

Nicaragua, WT/DS188 - Measures affecting imports from Honduras and Colombia

Nicaragua, WT/DS201 - Measures affecting imports from Honduras and Colombia (II)

Philippines, WT/DS403 - Philippines — Taxes on Distilled Spirits

Ukraine, WT/DS423 - Ukraine — Taxes on Distilled spirits

United States, WT/DS399 - United States — Measures Affecting Imports of Certain

Passenger Vehicle and Light Truck Tyres from China

United States, WT/DS449 - United States — Countervailing and Anti-dumping Measures on

Certain Products from China

United States, WT/DS404 - United States - Anti-Dumping Measures on Certain Shrimp from

Viet Nam

United States, WT/DS345 - United States — Customs Bond Directive for Merchandise

Subject to Anti-Dumping/Countervailing Duties

United States, WT/DS343 - United States - Measures Relating to Shrimp from Thailand

United States, WT/DS322 - Measures Relating to Zeroing and Sunset Reviews

United States, WT/DS277 - Investigation of the international trade commission in softwood

lumber

United States, WT/DS296 - CV duty investigation on DRAMS

United States, WT/DS282 - Anti-dumping measures on oil country tubular goods

United States, WT/DS420 - United States — Anti-dumping measures on corrosion-resistant

carbon steel flat products from Korea

United States, WT/DS422 - United States — Anti-Dumping Measures on Shrimp and

Diamond Sawblades from China

United States, WT/DS436 - United States — Countervailing Measures on Certain Hot-Rolled

Carbon Steel Flat Products from India

______________________________________________________________

Annex A – Arbitrations involving Member States/Switzerland, State Entities and the EU since 1999

United States, WT/DS437 - United States — Countervailing Duty Measures on Certain

Products from China

United States, WT/DS406 - United States — Measures Affecting the Production and Sale of

Clove Cigarettes

United States, WT/DS281 - Anti-dumping measures on cement

United States, WT/DS379 - United States - Definitive Anti - Dumping and Countervailing

duties on certain products from China

United States, WT/DS244 - Sunset review of AD duties on corrosion-resistant carbon steel

flat products

United States, WT/DS184 - Anti-dumping measures on certain hot-rolled steel products

from Japan

United States, WT/DS162 - Anti-dumping Act of 1916

United States, WT/DS243 - Rules of origin for textiles and apparel products

United States, WT/DS206 - Anti-dumping and countervailing measures on steel plate from

India

United States, WT/DS264 - Anti-dumping - Final dumping determination on softwood

lumber

United States, WT/DS257 - Final countervailing duty determination with respect to certain

softwood lumber

United States, WT/DS236 - Determination of countervailing duties on certain softwood

lumber

United States, WT/DS267 - Subsidies on upland cotton

United States, WT/DS250 - Equalizing excise tax imposed by Florida on processed orange

and grapefruit products

United States, WT/DS239 - Anti-dumping duties on silicon metal from Brazil

United States, WT/DS268 - Sunset review of AD measures on oil country tubular goods

United States, WT/DS285 - Measures affecting the cross-border supply of gambling and

betting services

United States, WT/DS344 - US - Final Anti-Dumping Measures on Stainless Steel from

Mexico -

United States, WT/DS402 - US - Use of Zeroing in Anti-Dumping Measures Involving

Products from Korea

United States, WT/DS383 - US - Anti-Dumping Measures on Polyethylene Retail Carrier

Bags from Thailand

United States, WT/DS382 - US - Anti-Dumping Administrative Reviews and Other Measures

Related to Imports of Certain Orange Juice from Brazil

Uruguay, WT/DS261 - Tax treatment on certain products

Venezuela, WT/DS275 - Import licensing measures on certain agricultural products

State-State arbitration:

The Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe

Islands v. The European Union), PCA Case No, 2013-30

Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the

South-Eastern Pacific Ocean (Chile/European Union), Case No. 7

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

2. Annex B – Key Features of National Arbitration Law

in the Member States and Switzerland

2.1. Austria

The principal piece of arbitration legislation in Austria is the 2006 Arbitration Law, which

was amended in 2013 (with effect from 1 January 2014). The 2006 Law was meant to

incorporate the major elements of the UNCITRAL Model Law. The 2013 amendment is

significant for only one amendment, namely the abandonment of several tiers of appeals or

other actions before the Austrian courts for matters related to ongoing arbitration

proceedings in Austria with a single tier, the Austrian Supreme Court (OGH). The rationale

was to render Austria an attractive forum for arbitration whose legal system is seen as

guaranteeing speedy resolution without unnecessary suits before several tiers of its courts.

The Supreme Court’s authority in respect of arbitration proceedings does not extend to

arbitral disputes concerning consumer and labour matters, with the jurisdiction of lower

courts remaining intact in such cases. It should be noted that much like its other civil law

counterparts the Austrian arbitration law is incorporated into the country’s civil procedure

code (CCP) and as a result all citations to this law will be from the relevant provisions in the

CCP.

In addition, it should be emphasised that because arbitration culture is rather strong in

Austria, the institutional rules of the country’s main arbitral institutions, but chiefly the

Vienna International Arbitration Centre (VIAC), set the standard for the relevant law and

are amply cited by the courts in their judgments. Moreover, the attitude of the Austrian

Supreme Court has been arbitration-friendly with many of its judgments making a

sustained effort to save arbitral proceedings or to incorporate prevailing scholarship or

acknowledged soft law instruments in its analysis.

In one case, for example, the OGH held

that among differing interpretations as to the existence or not of an arbitration clause that

which preserves the clause (assuming it coincides with the parties’ will) will be preferred.

In yet another case the OGH was faced with a contract where the parties had inserted a

choice of forum clause (therefore showing a preference for litigation) in addition to an

arbitration clause. Although the arbitration clause in such a case may have been viewed as

inoperable, the OGH held that the arbitration clause prevails (the choice of law clause may

be used for the purposes of the arbitral process, such as requests to national courts for

interim measures).

Scope of application (international versus domestic): there is no distinction between

domestic and international arbitration, although there are obviously in the CCP specifically

for international arbitrations, such as those relating to the recognition and enforcement of

foreign arbitral awards.

Scope of application (commercial versus other): there is equally no distinction

between commercial and other non-commercial disputes, albeit labour and consumer

disputes are subject to other rules. However, the Arbitration Law is not applicable to

In case 20b112/12b, the OGH in its judgment of 17 June 2013 used the IBA’s Guidelines on Conflicts of Interest

in International Arbitration in order to determine whether the particular conflict was so severe as to outweigh the

legal certainty that would have come if it had decided to annul the award.

Limited Liability Co v Limited Liability Co, case no 60b168, judgment (9 September 2013).

Claimant v Three Companies, OGH judgment (24 April 2013).

______________________________________________________________

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Policy Department C: Citizens' Rights and Constitutional Affairs

institutions subject to the Austrian Associations and Societies Act (Vereinsgesetz) for the

conciliation of disputes arising out of the circumstances of the association.

Agreement in writing: This must be in writing (including faxes, telex and email by

implication) but does not encompass oral agreements.

Scope of application (ratione loci): The relevant rules in the CCP apply only if the seat is in

Austria,

or where the seat has yet to be determined if one of the parties has its seat,

domicile or ordinary residence in Austria.

Arbitrability: The general rule is that pecuniary claims can be the subject of an arbitration

agreement.

Non-pecuniary claims are equally arbitrable as long as the subject matter of

the dispute is amenable to settlement.

Several pecuniary claims are, nonetheless, not

susceptible to arbitration. This includes claims in matters of family law as well as all claims

based on contracts that are even only partly subject to the Austrian Landlord and Tenant

Act (Mietrechtsgesetz) or to the Austrian Non-profit Housing Act

(Wohnungsgemeinnützigkeitsgesetz), including all disputes regarding the conclusion,

existence, termination and legal characterization of such contracts and all claims resulting

from or in connection with the ownership of apartments may not be made subject to

arbitral proceedings.

Austrian company law has traditionally excluded company-related disputes from arbitration,

such as Article 10 of the county’s Limited Liability (Companies) Law which excluded

compensation claims against company directors of limited liability companies or claims for

the reimbursement of invested capital.

Such exclusions are no longer valid as the Austrian

Supreme Court has gone on to deal with a large number of cases concerning arbitration

clauses and suits in the context of limited liability companies and has consistently held that

such clauses are valid. In one particular case, the Supreme Court went as far as claim that

the arbitration clause inserted in the company’s articles of association was operable even

though the company in question had been dissolved.

Consumer disputes: Article 617(1) CCP stipulates that consumer disputes are arbitrable

but an agreement to this effect can only be drawn up once the dispute between business

and consumer arises. In addition, the arbitration agreement, whatever contractual form

this takes, must be distinct from any other terms between the parties (which must

therefore be inserted in a distinct agreement).

This means that consumer disputes can

only be the subject of arbitration by means of a compromis. The same is also applicable in

respect of labour disputes mutatis mutandis.

Even so, the Supreme Court has held that

arbitration clauses in consumer contracts do not violate Austrian public policy so long as

they were individually negotiated.

In the case at hand the defendants did not claim that

the clause was not individually negotiated, but it is clear that this judgment constitutes a

clear deviation from the express dictates of Article 617(1) and (2) of the CCP.

Art 577(4) CCP.

Art 583 CCP.

Art 577(1) CCP.

Art 577(3) CCP.

Art 582(1) CCP.

Id.

Art 582(2) CCP.

Karollus-Bruner (2013), at 85.

Claimant v Defendant, OGH judgment (8 May 2013).

Art 617(2) CCP.

Art 618 CCP.

LAS (Denmark) v Jürgen H, Judith Elizabeth H and Others, case no 30b144/09m, judgment (22 July 2009).

_______________________________________________________________________

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Third parties to arbitration agreements: Despite its liberal attitude to arbitration, the

OGH has consistently held that awards do not produce legal effects for third parties. The

position of a third (contractual) party is no different to that of a minor or the creditors of an

estate in inheritance proceedings. According to the continuous jurisprudence, the latter do

not enjoy the status of a party, the ability to appeal decisions and thereby the right to be

heard in the relevant proceedings. The OGH stated that the opposing opinion outlined in

legal literature could not be followed.

The situation is, of course, different where third

parties benefited from the relevant agreement or in any other way participated in its

execution despite never signing it.

Public policy: The articulation of public policy by Austrian courts in the field of arbitration

concerns the conformity of the measures, agreements and other acts of the parties or of

the tribunal with Austrian substantive and procedural law. Thus, arbitrations seated in

Austria or those seeking to enforce awards in Austria will not be confronted with vague or

socially-bound notions of public policy. For example, this will arise where one of the parties

was denied the right to be heard, or was otherwise arbitrarily excluded from arbitral

proceedings in violation of the European Convention of Human Rights.

Equally, it has

been held by the OGH that the failure by one arbitrator to append his signature to the

award as well as the failure of all arbitrators to deliberate in person before rendering the

award was not offensive to Austrian public policy.

Moreover, in the LAS (Denmark) case

cited above the Austrian Supreme Court justified its argument that pre-dispute arbitration

clauses are valid (as long as they are individually negotiated) despite an expressly

antithetical provision of the CCP on the ground that they do not violate public policy.

Arbitrators’ qualifications: Neither the arbitration law or other laws impose any distinct

qualifications, although the various arbitral institutions may demand specific expertise.

When appointed by the court it is expected that relevant expertise will be taken into

consideration.

Exceptionally, Art 63(5) of the Act on Professional Rights and Duties of

Judicial Officers states that judicial officers during their tenure may not be appointed as

arbitrators, which is certainly not the norm in international practice.

Tribunal acting as amiable compositeur: This is indeed possible in accordance with

Article 603(3) of the CCP.

Arbitrator liability: This is contractual in nature. Article 594(4) of the CCP provides that

an arbitrator who does not (at all) or does not timely fulfil his obligation resulting from the

acceptance of his appointment, shall be liable to the parties for all damages caused by his

culpable refusal or delay.

Legal representation during proceedings: Article 594(3) of the CCP provides that the

parties may be represented or counselled by persons of their choice. This right cannot be

excluded or limited.

Costs and fees: Article 609(1) provides that the arbitral tribunal shall in its exercise of

discretion take into consideration the circumstances of each case, in particular the outcome

of the proceedings. The obligation to reimburse may include any and all reasonable costs

Shareholder v Limited Liability Co, case no 6Ob42/12p, OGH judgment (19 April 2012).

GmbH v S Aktiengesellschaft, case no 7Ob266/08f, judgment (30 March 2009).

See Joint Stock Company v Limited Partnership, case no 15 Cg 115/10v, Vienna Commercial Court judgment (4

November 2011) where the claim was ultimately dismissed.

Joint Stock Company v Limited Liability Company, case no 3Ob154/10h, OGH judgment (13 April 2011).

Art 587(8) CCP.

______________________________________________________________

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Policy Department C: Citizens' Rights and Constitutional Affairs

appropriate for bringing the action or defence. The decision on costs may be made in the

form of a separate award.

The Supreme Court has held that a claim for reimbursement for the payment of the

defaulting party's share cannot be brought before the state courts but has to be decided by

the arbitral tribunal.

The Supreme Court has recognized an arbitral award ordering the

payment of a cost deposit given effect by a tribunal seated in Switzerland granting one

party a right of recourse after it had paid the other party's portion of the deposit on costs.

The Supreme Court found that the decision conform with Austrian public policy and indeed

held that it was “thoroughly reasonable” for an arbitral tribunal to issue an award

redressing a party's default of its obligation to pay its share of deposit.

Award forms: Besides final awards, the tribunal may issue partial and other awards,

such as in relation to costs. There is also the possibility of additional awards.

accordance with Article 612 of the CCP where the applicant has a legal interest, he or she

can apply for a declaration of the existence or non-existence of an arbitral award.

Interim and conservatory measures: The parties may validly request, before or during

arbitral proceedings, interim or protective measures from the courts without such a request

affecting their rights or obligations under the arbitration clause.

The general power of the

tribunal to order interim and conservatory measures is derived from Article 593(1) CCP. In

accordance with paragraph 3 of this provision where the measure provides for a measure of

protection unknown to Austrian law, the court can upon request and hearing of the

opponent, execute such measure of protection under Austrian law that comes closest to the

measure of the arbitral tribunal. In this case, the court can also upon request amend the

measure of the arbitral tribunal in order to safeguard the realization of its purpose. The

court may, under Article 593(4) of the CCP, refuse to enforce or execute an interim or

conservatory measure if:

1. the place of arbitration is in this state and the measure suffers from a defect which

would constitute a reason for setting aside an arbitral award of this state under

Articles 611 paragraph (2), 617 paragraph (6) and (7) or 618 of this Law;

2. the place of arbitration is not in this state and the measure suffers from a defect

which would constitute cause for refusal of recognition or enforcement of a foreign

arbitral award;

3. the enforcement of the measure would be incompatible with a court measure of this

state which was either applied for or made earlier, or would be incompatible with a

foreign court measure which was made earlier and which is to be recognized;

4. the measure provides for a measure of protection unknown to Austrian law and no

appropriate measure of protection as provided by Austrian law was applied for.

Art 609(4) CCP.

OGH, case no 6 Ob 143/00y, judgment (28 June 2000).

OGH, case no 3 Ob 89/85, judgment (30 October 1985); see further OGH, case no 7 Ob 252/05t, judgment (8

March 2006), cited in FT Schwartz and CW Conrad, The Revised Vienna Rules: An Overview of Some Significant

Changes (and a Preview of the New Austrian Arbitration Law 2014), (2013) 31 ASA Bulletin 797, at 810-11.

Art 592(1) CCP in respect of awards on the tribunal’s jurisdiction; see also Art 605(2) CCP in respect of a record

of settlement which takes the form of an award.

Art 610 CCP.

Art 585 CCP.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Court assistance in taking evidence: In accordance with Article 599(1) of the CCP the

arbitral tribunal is authorized to decide upon the admissibility of the taking of evidence, to

conduct such taking of evidence and freely evaluate the results of such evidence.

Exceptionally, under Article 602 of the CCP, the tribunal or a party following the tribunal’s

approval may request from the court the conduct of judicial acts for which the arbitral

tribunal has no authorization. The judicial assistance may also consist of the court

requesting a foreign court or authority to conduct such acts. Article 37(2) to (5) and

Articles 38, 39 and 40 of the Austrian Judicature Act (Jurisdiktionsnorm) shall apply

accordingly, provided that the arbitral tribunal and the parties to the arbitral proceedings

shall have the right to appeal in accordance with Article 40 of the Austrian Judicature Act

(Jurisdiktionsnorm). The arbitral tribunal or an arbitrator mandated by the arbitral tribunal

and the parties may participate in the taking of evidence by the court and may put

questions.

Setting aside of awards: An award may be set aside under Article 611(2) of the CCP if:

1. there is no valid award or the parties are under some incapacity;

2. lack of proper notice or inability to present one’s case (due process violations);

3. there is an excess in powers or the award deals with matters not submitted to the

tribunal;

4. there is inappropriate composition of the tribunal;

5. the arbitral procedure was not carried out in accordance with the fundamental

provisions of the Austrian legal system (public order)

6. the requirements have been met according to which a judgment by a court can be

appealed by an action for revision under Article 530(1) CCP;

7. the dispute in question is not arbitrable;

8. the award (as opposed to the process) is in conflict with Austrian public order. Points

(7) and (8) are examined by the court ex officio.

Res judicata: The Austrian Supreme Court has held that an arbitral award is not legally

binding and enforceable as long as the agreed arbitration procedure provided for a

possibility to appeal the award.

2.2. Belgium

The current Belgian Arbitration Law was enacted on 24 June 2013 and has been in force

since 1 September 2013. It replaces a previous law initially introduced in 1972, as

subsequently amended in 1985 and 1998. Whereas the previous law was partially based on

the UNCITRAL Model Law the current 2013 law is wholly predicated on the UNCITRAL Model

Law, the purpose being to clarify certain ambiguities in the previous law (particularly those

relating to arbitrability, the form of the submission agreement and the role of the local

courts) and to render Belgium a key nation for settling disputes through arbitration.

From the point of view of drafting and form, just like most continental legal systems, the

new arbitration law is incorporated in the country’s code of civil procedure, the Judicial

Code (JC), as Part VI. Although the new law substitutes the old one this does not mean that

the previous practice, jurisprudence and academic writings in Belgium no longer apply.

Rather, it is assumed that where the new law does not specifically depart from its

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Policy Department C: Citizens' Rights and Constitutional Affairs

predecessor any case law based on the latter continues to be in force.

The following

constitute distinct characteristics of the new legal regime:

Scope of Application: The Law makes no distinction between domestic and international

arbitrations. This is not stated explicitly but it was one of the key aims of the new statute

and hence it is implicit therein. Even so, a nationality-based procedure has been inserted in

the Law. Specifically, where none of the parties is Belgian or a Belgian resident they can

agree to waive annulment/set aside proceedings before the courts, whereas if at least one

of the parties is Belgian or a Belgian resident such a waiver is not possible.

The section on delocalisation will demonstrate that although the key requirement for the

application of the Belgian Law is the seat of the arbitration,

its courts are competent to

assist the tribunal and the parties even where the arbitration is not seated in Belgium.

Arbitrability: Belgium excludes certain types of disputes from being resolved by

arbitration, most notably regarding the termination of exclusive distributorship agreements

of indefinite duration where the governing law is not that of Belgium,

but also certain

intellectual property disputes and labour disputes (particularly employment contracts).

Employment contracts can only be submitted to arbitration by agreement after the dispute

has arisen.

The new Law established a double criterion of objective arbitrability, namely

that: a) “any claim involving an economic interest can be the subject of arbitration”, as well

as b) “claims not involving an economic interest with regard to which a settlement can be

made”.

The judgment by the Court of Cassation that questions of arbitrability are settled

in accordance with the law of the lex fori continues to apply as good law.

Annulment or setting aside of awards: Besides the reasons offered by the UNCITRAL

Model Law

the new Belgian Law offers three additional grounds for setting aside awards.

These are: a) absence of reasoning (essentially lack of justification);

b) the tribunal has

See, for example, CB v XD and VB, case No C 12.0405.F/1, Court of Cassation judgment (22 November 2013),

where the principle of separability was confirmed.

Art 1718 JC.

Art 1676(7) JC.

See Belgium’s Distribution Law of 27 July 1961 (as amended in 1971), which subjects distributorship

agreements performed in Belgium to the exclusive jurisdiction of Belgian courts. The requirement under Arts 4 and

6 of this Law that the parties’ governing law be exclusively Belgian law was confirmed by the Cassation Court in

Sebastian International Inc v Common Market Cosmetics, case No C 08.0503.N, judgment (14 January 2010). The

Court held that such a restriction is permissible by virtue of the fact that the New York Convention does not

specify the choice of law in determining arbitrability. This case law was further confirmed in Air Transat AT Inc v

Air Agencies Belgium SA,, Court of Cassation judgment (3 November 2011) and in United Antwerp Maritime

Agencies (UNAMAR) nv v Navigation Maritime Bulgar, Court of Cassation judgment (5 April 2012). See also Mobica

NV v Alias S.p.A, Commercial Court Brussels 6 November 2012 (confirming that a clause that brings a dispute

concerning the termination of a distribution agreement under submission of foreign law is void).

Art 13 of the Belgian Law on Employment Contracts; Art 1676 (5) JC. See Demeersman v Mij X., Labour Court

Ieper judgment (24 May 1985) . Note that Art 69 of the Belgian Law on Employment Contracts provides that this

exception does not apply to employees who earn more than € 65.771 (index. 2014) a year. Such employees can

also submit their disputes to arbitration before they arise. See D. v De Sociale Verzekeringen van het Bouwbedrijf,

Labour Court of Appeals of Ghent judgment (28 March 1986).

Art 1676(1) JC.

Van Hopplynus Instruments v Coherent Inc, case No C 02.0445.F/1, judgment (16 November 2006).

Art 1717(3) JC.

Art 1717(3)(a)(iv) JC. In C v S, the Brussels Court of First Instance, judgment (18 August 2011), held that

contradiction in the reasoning of an award constitutes a ground for setting it aside when it has “an impact on the

result of the award”. A misunderstanding by the tribunal in its explanation or reasoning in the award does not

constitute lack of reasoning that could culminate in setting the award aside. This has been confirmed by the Court

of cassation, see Africa Industrial Services v Polycra, case No C 04.0452N, Court of Cassation judgment (10

November 2005). Moreover, in Havas, EURO RSCG Worldwide v Dentsu Inc., case No C.10.0302.F, Court of

Cassation judgment (13 January 2011), the Court confirmed that a contradiction in the reasoning of an award

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

exceeded its powers

and; c) the award was obtained by fraud (this ground can be raised

ex officio by the court seized of an annulment request, like the grounds based on a breach

of public policy or inarbitrability).

It should be stressed that much like the rationale

underlying the UNCITRAL Model Law the Belgian Law makes it clear that the courts should

not annul/set aside awards lightly but should remand these to the arbitral tribunals for

further remedy in order to salvage them.

This means that Belgian courts will not set aside

awards by reason of mere technicalities or where circumstances allow an award to be

remedied by further remedial actions by the tribunal or the parties themselves. Where,

however, the tribunal has violated due process rights the award may be set aside even if

the violation has not had an impact on the award. However, under the new Law a breach of

due process can now only be invoked if it was not known and therefore could not have

been raised during the arbitration process, and annulment will only occur if it cannot be

proven that the irregularity had no impact on the award (burden of proof rests on the

defendant in the annulment proceedings).

Annulment proceedings can only be brought

before the court of first instance, the decisions of which can only be appealed to the

Supreme Court on points of law.

The role of national courts: One of the key aims of the new Law was to give weight to

party autonomy and thus restrict the parties’ access to intentional delays and multiple tiers

of court proceedings at the annulment and enforcement stages.

One of the features of the

previous regime was the ability to make applications at various court levels before reaching

all the way to the Supreme Court of Cassation.

The new Law has eliminated this process.

In respect of most matters that may be referred to the courts (appointment and challenge

of arbitrators, time limits of award and taking of evidence) these are handled exclusively by

the President of the Court of First Instance who shall adopt a decision in summary

proceedings.

All other matters are handled by the Court of First Instance (as opposed to

merely its President). There is no possibility of appeal against the decisions of the court.

However, recourse to the Supreme Court on points of law remains available.

Delocalised Arbitration: Despite the fact that Belgian law applies to arbitrations seated in

Belgium, the country’s courts (essentially the first instance court) enjoy jurisdiction in

respect of certain suits and actions linked to arbitrations seated abroad, namely: with

constitutes a valid ground for setting the award aside. Importantly, however, these judgments were issued prior to

the entry into force of the new Law, which removed as a distinct ground of annulment the existene of a

“contradiction in the reasoning of the award”. It remains to be seen whether a contradiction in the reasoning of an

award will be treated by courts as constituting a “lack of reasoning”, and hence still provide a ground for

annulment under the new Law.

This is not only where it has bypassed its powers under the submission agreement. In A v B, case No

2010/RG/927, judgment (28 April 2010), the Liege Court of Appeal held that failure to honour the time-limit set

out in the submission agreement is considered as the tribunal having exceeded its powers. See also M.P. v M.S.,

M.L., case No C.08.0028.F, Court of Cassation judgment (5 March 2009), where the Court set aside an award

because the tribunal had failed to honour the time limit set, even though the parties did not raise an objection on

this point before the award was issued.

Art 1717(3)(b) JC.

Art 1715(7) JC

See Articles 1717.3(a)ii and v.

Art 1680(5) JC.

The previous system recognised a second instance of appeal before going on to cassation proceedings.

By way of illustration, the Liege Court of Appeal in ASBL v URBSFA, judgment (19 February 2008), previously

held that a decision of the President of the First Instance Court to appoint an arbitrator could be appealed.

Art 1680 JC.

Art 1680(5) JC. However, the party against which enforcement is sought may raise an appeal by way of third

party opposition against the order of exequatur issued by the court of first instance. See International Hotels

Worldwide Inc v Etat Belge and Banca Monte Paschi Belgio, case No C 12.0405.F/1, Court of Cassation judgment

(4 October 2013).

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Policy Department C: Citizens' Rights and Constitutional Affairs

respect to the validity of arbitration agreements;

adoption of provisional or conservatory

measures;

taking of evidence;

recognition and enforcement of provisional or

conservatory measures ordered by a tribunal (seated abroad).

This delocalised feature of

the law, although not unique to Belgium, allows the parties to use the Belgian legal system

and its courts in order to undertake certain actions and enforce orders of the tribunal, albeit

in practice its utility is limited to actions within Belgium (i.e. the courts and authorities of

the seat would probably not accept to enforce an order from the Belgian courts in respect

of arbitral proceedings taking place there).

Provisional and Conservatory Measures: The Belgian Law follows Article 17 of the

UNCITRAL Model Law as regards the power of the tribunal to order provisional and

conservatory measures, save that Belgian law excludes the possibility of obtaining

unilateral measures (essentially ex parte preliminary orders). Belgian law also expressly

prevents the arbitrators from making attachment orders.

Measures adopted by the tribunal may take the form of orders or awards.

Other powers of arbitral tribunals: These are no different to those stipulated under the

UNCITRAL Model Law. A notable addition is the power granted to arbitrators to decide

claims concerning the verification of writings and the alleged forgery of documents.

Institutional vs. ad hoc arbitration and which institutions are preferred:

Institutional arbitration is far more prevalent than ad hoc arbitration. Counsel make use of

local chapters of international institutions such as the ICC but Belgian institutions are also

popular.

Backgrounds of arbitrators: there is no requirement that arbitrators be lawyers or

judges or that they have any particular qualification.

Costs and fees: these are born by the parties and there is no single formula for

calculating these.

Legal representation during an arbitration: there is no requirement that this should be

a registered member of the bar.

2.3. Bulgaria

Arbitration in Bulgaria is regulated through a multitude of instruments, although the

principal piece of legislation is the 1988 (as subsequently amended, with the latest coming

into force in 2008) Law on International Commercial Arbitration (LICA) which covers both

domestic and international arbitration. Equally, the Private International Law Code settles

certain issues relating to international arbitration, whereas the pertinent articles of the Civil

Procedure Code (CCP) deals with the practicalities of form and jurisdiction of Bulgarian

courts with respect to writs of execution, as well as recognition and enforcement of arbitral

Art 167(8) JC

Art 1682 JC

Art 1698 JC

Art 1708 JC.

See Verbist (2013), at 601-02.

The judgment by the Antwerp Court of Appeal in BVBA Bouwonderneming Segreto Venaruzzo v PF, RD and EM

(30 May 2011) whereby a contractual provision that provides for the appointment of an expert to decide on the

quality of the works done and to calculate the final amount owed by one party to another, does not lead to an

arbitral award but to a binding third party decision, continues to stand as good law.

Art 1700(5) JC. See also Verbist (2013), at 603.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

awards. The LICA is based on the UNCITRAL Model Law but contains several variations

which will be examined in the course of this chapter.

Since the transformation of the Bulgarian political and financial system from state-run to

market-oriented the country’s Supreme Court of Cassation has adopted a significant

amount of judgments concerning domestic and international arbitration, the effect of which

has been to render the country arbitration-friendly and in tune with consistent international

practice in the field of arbitration.

Scope of application (international versus domestic): Article 1(1) of LICA provides

that an arbitration is regarded international if the domicile or the seat of at least one of the

parties is not in Bulgaria. If the domicile or the seat of all parties is in Bulgaria the

arbitration is considered domestic even if any or all of the parties are subject to full or

partial foreign shareholder ownership or control.

Seat of arbitration: Although Article 19(2) of LICA suggests that arbitration between

Bulgarian parties must always be conducted in Bulgaria, the Supreme Court of Cassation

has ruled that awards granted to Bulgarian parties in foreign jurisdictions must be enforced

in Bulgaria.

The rationale behind this judgment is to ensure respect of the NY Convention

in the event of a clash with Bulgarian law. In fact, the Supreme Court in this case held that

the Bulgarian restriction with respect to the seat (if the parties are Bulgarians) is not of a

public policy nature (otherwise it would conflict with the NY Convention). Rather, it

emphasised that if there was any invalidity of the arbitration clause this could only arise

under Article V(1)(a) of the NY Convention in conjunction with the compatibility of the

agreement under the law governing the arbitration clause (English law in the case at

hand).

Scope of application (commercial versus other): Article 1(1) LICA applies to

international arbitration of commercial disputes and to domestic arbitration of commercial

or non-commercial disputes. Under Article 286 of the Law on Commerce, a commercial

transaction is defined as any transaction entered into by a merchant that is related to the

business activity it carries out. All commercial companies are regarded as merchants.

Regardless of the capacity of the persons participating in them, the following transactions

are also regarded as commercial: purchase of goods or other chattels with the purpose of

reselling them in their original, processed or finished form; sale of goods manufactured by

the seller; purchase of securities with the purpose of reselling them; commercial agency

and brokerage; commission, forwarding and transportation transactions; insurance

transactions; banking and foreign-exchange transactions; bills of exchange, promissory

notes and cheques; warehousing transactions; licensing transactions; compliance

supervision of goods; transactions with intellectual property; hotel operation, tourist,

advertising, information, entertainment, impresario and other services; purchase,

construction or furnishing of real property for the purpose of sale; and leasing transactions

(Art. 1 of the Law on Commerce).

In domestic arbitration the parties cannot exclude the application of LICA to the procedural

and substantive aspects of their dispute.

Range of disputes: Article 7(1) of LICA, much like its UNCITRAL Model Law counterpart,

subjects disputes arising from all legal relationships (subject to the limitations of

Case no 183/2004, Supreme Cassation Court judgment no 717 (27 July 2005).

See Ganev (2010), at 17.

Alexiev (2010), at 2.

Para 3, LICA transitional and final provisions.

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Policy Department C: Citizens' Rights and Constitutional Affairs

arbitrability), irrespective of the type of the type of agreement in which they are contained,

thus allowing for trust, tort, unjust enrichment and other relationships.

Agreement in writing: Article 7(2) of LICA dictates that arbitration agreements must be

in writing, thus excluding oral agreements. Moreover, in the absence of a written

agreement, such will be deemed to exist also when the respondent in writing or by a

statement, recorded in the minutes of the arbitration hearing, accepts the dispute to be

heard by an Arbitral Tribunal or when the respondent participates in arbitration proceedings

without challenging the jurisdiction of the arbitral tribunal.

A merchant is deemed tacitly to have accepted an offer by another party with which the

merchant is in a long-term relationship, if the offer is not rejected immediately (Law on

Commerce, Article 292(1)). However, such a tacit acceptance is not deemed to encompass

the arbitration clause included in the offer, as the written form is not complied with.

Arbitrability: The basic rule is laid down in Article 19(1) of the CPC, according to which all

pecuniary disputes are arbitrable unless the subject matter of the dispute concerns

ownership rights or possession of immovable property,

alimony or rights under an

employment relationship. This also includes disputes arising from family relationships.

Expert commentators further suggest that disputes under management agreements

between companies and their directors are arbitrable. However, the following types of

disputes are not arbitrable: a) disputes involving non-pecuniary rights; b) administrative

and other public law disputes; c) disputes involving non-transferrable personal rights (such

as security and privacy); d) civil law disputes that may be initiated by a prosecutor or those

requiring the participation of a prosecutor and; e) disputes concerning the validity of

decisions made by corporate bodies.

Under Articles 637 and 638 of the Law on Commerce no new court or arbitral proceedings

on pecuniary civil or commercial cases against the debtor, other than claims by third

parties, owners of property in the insolvency estate – for defense of their rights, and

employment disputes, are admissible after the opening of the insolvency proceedings.

Under Article 638 of the Law on Commerce, all execution proceedings against the debtor

are stayed after the commencement of the insolvency proceeding. Such proceedings would

include the execution of an enforceable arbitral award, if it is not complied with

voluntarily.

Moreover, disputes falling outside Brussels I (EC Regulation 44/2001) are not arbitrable,

including disputes over industrial property rights where a patent or other registration has

been issued in Bulgaria, as well as disputes affecting the legal status of entities registered

in Bulgaria.

Applicable law: Although it is not clear from the wording of Article 38(1) of LICA, it is

suggested by a commentator that the parties may designate as their governing law only

the law of a particular legal system (hence this would exclude Islamic law or African

Case no 1726/2001, Supreme Cassation Court judgment no 112 (5 February 2002).

Art 7(3) LICA.

Alexiev, at 8.

The Supreme Court of Cassation, decision no 560 (18 November 2008), civil case 437/2007 ruled that an

agreement to de-mortgage a property in the context of a sale of goods agreement was an issue within the sole

jurisdiction of the courts and thus rendered the dispute as a whole non-arbitrable.

Ganev (2010), at 19.

Alexiev (2010), at 12-13.

Alexiev (2010), at 11-12.

Ganev (2010), at 18-19.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

customary law, for example).

There is no case law on this point and the construction

given by Alexiev is a matter for further analysis, particularly since this meaning is not

derived from the existing translation and in any event paragraph 3 of Article 38 provides

that the court (where the parties have not designated a governing law) may apply trade

usages.

In domestic arbitration cases, the arbitrators have to apply Bulgarian law to the dispute,

unless the legal relationship in dispute contains an international element that according to

the PILC leads to the application of a foreign law.

Public policy: This is largely confined to compliance with the law and maintenance of the

rule of law and in the arbitral process it concerns due process rights and the parties’

equality of treatment.

Multi-party disputes and joinders: There is no relevant provision in the LICA, but this

possibility exists under the BCCI Rules, specifically Articles 14(5) and (6), provided that the

parties’ consent is expressly provided.

Court intervention: This section will examine only those laws and practices that deviate

from the UNCITRAL Model Law.

A ruling of the court rejecting the objection that an arbitration agreement exists is subject

to appeal before a second instance court, whose ruling on the issue is not subject to further

appeal before the Supreme Court of Cassation.

In contrast to Article 16(3) of the Model Law, a ruling by a tribunal regarding whether it

possesses jurisdiction in a particular case may not be subject to review by the courts unless

it is issued with the final award (or a partial final award) and the court is seized with a

claim for the setting aside of the award.

Arbitral awards rendered in Bulgaria do not need leave for enforcement. With its delivery to

one of the parties the award enters in force and becomes binding and directly enforceable

in the same way as a Bulgarian court judgment that has entered into force

If the award is

not complied with voluntarily, the interested party may then commence the enforcement

procedure under the CCP by an enforcement agent based on the writ of execution.

It is

not possible to appeal arbitral awards rendered in Bulgaria to the courts; recourse is

possible only through set aside proceedings. This process can only be brought before the

Supreme Cassation Court.

As regards the enforcement of foreign awards, the court may be expected to apply, besides

the grounds set out in the New York Convention, the grounds provided in Article 120(1) of

the PILC, ex officio to check compliance with the provisions of Article 117 of the PILC.

However, others have expressed the view that the courts will not look at the PILC at all.

At the enforcement stage the courts will not examine the substance of the dispute or

Alexiev (2010), at 35.

Case no 1832/2003, Supreme Court of Cassation judgment no 630 (28 July 2004).

Art 33 BCCI Rules.

Case no 249/2008, Supreme Cassation Court judgment no 224 (7 October 2008).

Alexiev (2010), at 34.

Art 41(3) LICA and Art 404(1) CCP.

Arts 426-434 CCP.

Case no 62/2007, Sofia City Court judgment (16 February 2008).

Ganev (2010), at 71.

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Policy Department C: Citizens' Rights and Constitutional Affairs

whether there has been an error in the law, but only the award’s compliance with relevant

treaty requirements.

Tribunal acting as amiable compositeur: Although no mention of this made in the LICA

it is suggested by commentators that the tribunal may not be requested to decide a dispute

ex aequo et bono.

Interim and conservatory measures: While the parties may seek interim measures

from the tribunal under Article 21 of LICA, this function is principally entrusted to local

courts in accordance with Article 9 of LICA. If the parties, by agreement, request interim

measures from the tribunal a writ is required from the courts for the purpose of execution.

Such a writ is obviously at the sole discretion of the courts and hence the tribunal’s order

may be rejected.

No interim measures may be imposed against the state or other state

instrumentalities.

Arbitrator qualifications: No particular qualifications are mandated in respect of

international arbitrations,

although judges may not assume the role of arbitrator.

With

regard to domestic arbitrations the general rule is that only Bulgarian nationals may be

appointed as arbitrators,

but given Bulgaria’s EU membership and the fact that the status

of arbitration is considered contractual this position seems to offend the non-discrimination

principle in EU law. Under Article 7(4) of the Statute of the BCCI Court, the following

persons may not serve as arbitrators: members of Parliament, ministers, deputy ministers,

heads of governmental agencies, members of the Constitutional Court or other persons

barred by law from being arbitrators.

Legal representation in arbitral proceedings: There are no particular requirements for

the representation of a party in arbitral proceedings. Any person competent under the law

may do so.

Liability of arbitrators: No reference to liability is made in the LICA but it is suggested

that under the Bulgarian law of obligations an arbitrators is liable to the parties if he or she

intentionally fails or is otherwise negligent in the performance of the duties entrusted upon

him or her.

Institutional versus ad hoc arbitration: The vast majority of arbitrations in Bulgaria are

institutional and many cases involving Bulgarians or Bulgarian interests are resolved abroad

in other international arbitral institutions. By far the most important and influential

institution in Bulgaria is the Bulgarian Chamber of Commerce and Industry (BCCI), whose

rules and resolutions of its Court influence relevant arbitral proceedings before local courts.

Tribunal powers: This section will only examine those powers that are different from

those envisaged in the UNCITRAL Model Law. Under Article 36(1) of LICA the tribunal may

appoint one or more experts at its own initiative. In this connection, the tribunal may order

the parties to submit to the experts all necessary information, including the goods or

objects under contention/consideration.

Art 121(1) PILC; case no 183/2004, Supreme Cassation Court judgment no 717 (27 July 2005).

Alexiev (2010), at 35.

The relevant procedure is described in Arts 389-403 CCP.

Art 11 LICA.

Art 195(1)(5) Law on the Judiciary. This was recently clarified by the Supreme Cassation Court in its judgment

no 111 (30 August 2011), case no 696/2010.

Para 3(1) LICA transitional and final provisions.

Alexiev (2010), at 20.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Types of awards: Other than final awards, additional awards

and awards on costs, all

other matters resolved by the tribunal are concluded in the form of orders or rulings (which

are not enforceable) not awards. It is suggested that the parties may by consent request

the tribunal to issue partial awards in respect of particular matters, each being enforceable

in respect of the issues it determines.

Confidentiality: Although there is no specific rule in the LICA this is generally considered

to be the case (as regards the proceedings and the award) and this attitude is reflected in

Article 24(5) of the BCCI Rules. This, of course, is antithetical to the general rule regarding

openness of judicial proceedings and their public nature.

Fees and costs: Although the LICA does not have a specific provision on allocation of

costs, the “loser pays” rule is generally applied, unless agreed otherwise by the parties.

In ad hoc arbitrations, the arbitrators usually fix their fees themselves, unless otherwise

agreed between the parties. In institutional arbitrations, the fees of the arbitrators are

included in the institutional fees, which on their part are fixed in a scale reflecting the

amount in dispute, and separate financial arrangements between the parties and the

arbitrators are not accepted. The practice of Bulgarian arbitral institutions is not to disclose

the actual amount of the arbitrators' fees. The fees of arbitrators for arbitrations taking

place in Bulgaria are generally subject to value added tax (VAT) at the rate of twenty

percent and the arbitrators have to issue invoices for their fees.

It is customary to reimburse the winning party a proportion of its reasonable costs for legal

assistance. This proportion reflects the percentage of the amount in dispute for which the

party is successful. The tribunal may decide to what extent it accepts the party's costs for

legal assistance as reasonable in view of factors such as the amount in dispute, the

complexity of the case and the number of lawyers representing the party. The BCCI Rules

provide that the prevailing party shall recover administrative fees, arbitrators’ fees,

attorneys’ fees, and other expenses related to the proceedings, if they are reasonable and

supported by sufficient proof. Otherwise, the party will be awarded only the minimal

attorneys’ fees set by the Bulgarian Bar Council.

Setting aside of award: This process is governed by Article 47 of LICA and requests can

only be submitted to the Supreme Cassation Court. The grounds in Article 47 of LICA are

similar to those found in Article 34 of the Model. The Supreme Cassation Court has held

these grounds to be exhaustive and the requesting party shares the burden of proof.

review as to the merits or with respect to errors in the application or interpretation of the

law is not possible.

The Supreme Cassation Court has offered some interesting

interpretations regarding the grounds for setting aside. Among these one should note its

claim that an arbitration clause which gives one of the parties a (unilateral) entitlement to

opt for litigation or arbitration is invalid as such a choice can only be made by the law not

by contract.

Equally, the violation of due process rights encompasses a number of

possibilities. In one case the Court set aside an award where the tribunal considered

evidence not collected in the proceedings and equally failed to analyse evidence submitted

Art 44 LICA.

Alexiev (2010), at 30; see also Art 37(2) BCCI Rules.

Art 11 CCP.

Alexiev(2010), at 39.

Alexiev (2010), id.

Case no 1010/2002, Supreme Cassation Court judgment no 185 (15 June 2004).

Case no 67/2009, Supreme Court of Cassation judgment no 46 (22 April 2009).

Case no 193/2010, Supreme Court of Cassation judgment no 71 (2 September 2011).

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Policy Department C: Citizens' Rights and Constitutional Affairs

by the parties.

The parties are not permitted to waive their right to the set aside

procedure.

2.4. Croatia

The key legislative text for the regulation of arbitration in Croatia is the 2001 Law on

Arbitration which has been drafted on the basis of the UNCITRAL Model Law. Although it

came into force prior to the 2006 version of the Model Law, commentators and current

practice suggest that the general attitude would be to accept the 2006 version. The 2001

Arbitration Law, in fact, is so similar to the Model Law that only very slight variations can

be found. As a result, our analysis will largely concentrate on these minor divergences. It

should also be stressed that Croatian law (including the Arbitration Law) view the bulk of

arbitral procedure through the lens of permissive rules and hence even when the parties

have failed to agree on a particular procedure (e.g. in the field of evidence and its

treatment) there are few specific fallback provisions.

In the case of evidence, for

example, rules on disclosure and treatment of evidentiary material is wide and hence the

arbitrators may agree to admit all evidence if they deem it to have probative or other

value.

Scope of application (international versus domestic): The Arbitration Law is

applicable to both international and domestic arbitrations. However, in accordance with

Article 2(1) the designation of a dispute as either international or domestic is based on the

parties’ seat. Hence in accordance with point (7) of Article 2(1) a “dispute with an

international element” means a dispute in which at least one party is a natural person with

domicile or habitual residence abroad, or a legal person established under foreign law. The

implication of this distinction is that in respect of disputes which do not have an

international element the parties are not allowed to designate as their seat a country other

than Croatia.

The rationale underlying this restriction is to prevent the parties from

avoiding Croatian set aside rules whose application is mandatory and not subject to

waivers.

Scope of application (commercial versus non-commercial): Article 3(1) makes no

distinction between commercial and non-commercial disputes and following the Model Law

a dispute may be subjected to arbitration whether it is contractually-based or other.

Consumer disputes: Given the permissive nature of Article 3(1) consumer disputes may

be subjected to arbitration as long as the submission to arbitration has been individually

negotiated. This is specifically stated in Article 6(6). Exceptionally reference to consumer

arbitration may be incorporated in a contract dealing with other issues so long as it was

notarised.

Ad hoc versus institutional arbitration: Institutional arbitration constitutes the norm in

Croatia, albeit there is evidence of ad hoc arbitration.

Case no 64/2011, Supreme Court of Cassation judgment no 200 (9 December 2011).

However, there are sometimes noticeable trends in practice, even though they are not required by law. For

example, particularly in domestic arbitrations, it is common for arbitrators to invite, or even actively encourage,

the parties to agree to apply the rules of the Code of Civil Procedure.

See.

Art 3(1) and (2) Arbitration Law.

At least one commentator has argued that this restriction is inconsistent with EU law: Babic (2011).

Art 6(6) Arbitration Law.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Agreement in writing: In accordance with Article 6(2) of the Arbitration Law the

arbitration agreement must be in writing, thus excluding oral agreements. Nonetheless,

Article 6(3) broadens the scope of what is acceptable by deeming an agreement in writing

to exist (although it is not) if:

1. it is contained in one party’s written offer, or if a third party transmitted to both

parties such an offer, provided that against such offer no objection was timely raised,

and such failure to object, according to usages in transactions, may be considered to

constitute acceptance of the offer,

2. after an orally concluded arbitration agreement, a party communicates to the other a

written communication, referring to the arbitration agreement concluded earlier

orally, and the other party fails to object timely, and such failure, according to usages

in transactions, may be considered to constitute acceptance of the offer.

Moreover, in accordance with paragraph 4 of Article 6 the reference in a contract to a

document containing an arbitration clause (general terms of a contract, text of other

agreement or similar) constitutes an arbitration agreement provided that the reference is

such as to make that clause part of the contract. Furthermore, under paragraph 5 an

arbitration agreement may also be concluded by the issuance of a bill of lading, if the bill of

lading contains an express reference to an arbitration clause in a charter party.

Arbitrability: The general rule is stated in Article 3(1), which is that in respect of matters

of which the parties can freely dispose they can seek arbitral resolution. As a result, there

are very few disputes that the parties cannot submit to arbitration. Commentators suggest

that this includes disputes over intellectual property rights, bankruptcy and anti-trust,

although no pertinent case law exists.

A basic arbitrability rule, as already stated in

another context, is that disputes between Croatian nationals (or entities seated there)

cannot designate the seat of their arbitration abroad. Whereas a bankruptcy case with a

transnational element may be submitted to arbitration outside Croatia, in cases where the

parties have their seat in Croatia the arbitration is valid only if undertaken there.

It should be noted, however, that a recent Supreme Court case suggests that the Court

may in the future restrict arbitrability. In Revr 500/08-2, Supreme Court decision of 21

January 2009, the court held that parties may not freely dispose of the right to termination

of an employment contract. The reasoning adopted by the Court suggests that when a

matter is regulated by mandatory norms, the parties may are not free to dispose of related

rights. Applied in the context of arbitration agreements, this reasoning would entail that

parties are also not free to arbitration disputes relating to such matters. This raises serious

doubts about the limits of arbitrability under Croatian law.

State entities: Unlike other post-socialist nations, Article 7(2) of the Arbitration Law

expressly stipulates that all state entities may validly submit disputes to arbitration.

Multi-party arbitrations and joinders: There is no specific rule in the Arbitration Law,

but it is generally suggested that there is no bar to multi-party proceedings or joinders

provided that the parties so consent.

Uzelac (2009), at 15-16.

Uzelac (2009), at 14.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Arbitrators’ qualifications: There are no restrictions for eligibility as arbitrator,

save for

the requirement under Article 10(2) of the Arbitration Law that serving judges may only be

appointed as chair of a tribunal or as sole arbitrator.

Liability of arbitrators: There is no specific provision, but it is generally assumed that

their appointment is based on a quasi-employment contract and therefore they are liable

for failure (intentional or negligent) to carry out the duties entrusted upon them.

Nonetheless, it is equally suggested that because the function of making an award is

judicial in nature they carry no civil or other liability for the award itself.

100

Legal representation during proceedings: There are no restrictions as to who may

represent parties to arbitral proceedings. However, under Article 36(1)(b) of the Arbitration

Law lack of proper representation may lead to the award being set aside. Although this is

by no means a requirement, Article 47 of the Law on Attorneys provides that foreign

attorneys may represent clients in arbitral proceedings in Croatia.

Court intervention: If a challenge against an arbitrator (which is addressed by the

arbitrators at first instance) does not meet the expectation of one of the parties, they may

turn to the appointing authority. If they have not designated one, the matter will be

forwarded to the President of the High Commercial Court or the President of the county

court in Zagreb in respect of non-commercial disputes.

101

If the request is unsuccessful the

unhappy party may once again challenge the arbitrator’s bias or other lack of independence

at the setting aside stage.

The tribunal does not have the power to compel the attendance of witnesses. Article 45(1)

of the Arbitration Law provides that the arbitral tribunal, or a party with the approval of the

arbitral tribunal, may request legal assistance from a competent court in taking evidence

that the arbitral tribunal itself could not take.

The parties may request the court to issue interim measures independently of the arbitral

proceedings.

102

In accordance with Article 15(3) of the Arbitration Law the tribunal’s preliminary ruling on

jurisdiction may be reviewed by a court. Notably, although the text of Article 15(3) only

permits review of positive rulings on jurisdiction, the Constitutional Court has in the past

allowed suits against negative jurisdictional decisions of arbitral tribunals, although the

Court’s practice is inconsistent in this respect.

103

In accordance with Article 49(5) of the Arbitration Law the parties may appeal to the

Supreme Court any judgments rejecting recognition and enforcement of foreign awards.

Confidentiality: Although under Article 23(5) arbitral proceedings must remain

confidential, such confidentiality is in contrast to the public nature of judicial proceedings.

This means that where the parties seek the intervention of the courts (e.g. in respect of set

aside proceedings, request for interim measures etc) the proceedings and the judgment will

be public, save in exceptional circumstances under Article 307 of the Croatian CCP in order

to safeguard business secrets and only where the court deems that the publicity of the

Art 10(1) Arbitration Law.

100

Uzelac (2009), at 23.

101

Art 43(3) Arbitration Law.

102

Art 44 Arbitration Law; equally Art 43(6) of the Law on Enforcement.

103

See, e.g. Decision No. U-III/669/2003, a summary of which is available at 12 Croatian Arbitration Yearbook

281 (2005).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

proceedings is likely to prejudice the interests of justice. However, published judgments will

anonymise the identities of the parties.

Tribunal powers: These are generally based on those offered under the Model Law.

Moreover, Article 18(2) of the Arbitration Law provides arbitrators with freedom to evaluate

evidence, particularly as regards admissibility, relevance and due weight. Exceptionally,

following standard Croatian practice, witnesses will not be compelled to take an oath.

104

The arbitral tribunal can also request witnesses “to answer questions in writing within a

certain period of time”.

105

Tribunal acting as amiable compositeur: Under Article 27 of the Arbitration Law the

tribunal may act as amiable compositeur if the parties so wish.

Interim and conservatory measures: Article 16(1) of the Arbitration Law provides that

arbitrators are authorized, unless otherwise agreed by the parties, to “order any party to

take such interim measures of protection as the arbitral tribunal may consider necessary in

respect of the subject matter of the dispute”. Article 16 does not specify what measures are

available and so this is left to the discretion of the court and the tribunal. Although these

may be ordered by the tribunal, the latter has no authority to enforce its order and so the

requesting party must apply to the courts in case the tribunal’s order is not complied.

Set aside proceedings: The grounds for setting aside under Article 36 of the Arbitration

Law are broadly the same as those found in the UNCITRAL Model Law, with the addition of

a provision allowing set aside where the award does not provide reasons for the decision,

or has not been signed in accordance with the law.

Types of awards: Under Article 30(1) of the Arbitration Law, unless the parties have

agreed otherwise the tribunal may issue, in addition to final awards, also partial and interim

awards. If the parties agree to settle their dispute before the tribunal concludes the

proceedings or before it issues a final award, the tribunal may record the settlement in the

form of an award which has the same force as any other award on the merits.

106

The

tribunal may only refuse to record the settlement in an award if it considers that the

settlement violates Croatian public policy.

107

There is no prescribed method of registering

awards and no registration is even required, albeit the courts may accept registration of

awards as well as notaries.

108

Costs and fees: Article 35(1) of the Arbitration Law allows the arbitrators to freely

determine how costs are to be allocated among the parties. The arbitral tribunal shall

decide on the costs of the proceedings according to its free evaluation, taking into account

all circumstances of the case, especially the outcome of the dispute.

109

The fees of arbitrators are usually predetermined by the appropriate institutional

regulations. Article 9 of the Rules on Costs of Arbitration and Conciliation of the PAC-CCC

determine how this is to be assessed. The fees mostly depend on the amount in dispute;

however, other elements, such as the complexity of the case, may also play a role.

110

104

Art 25(3) Arbitration Law.

105

Art 25(2) Arbitration Law.

106

Art 29(1) and (3) Arbitration Law.

107

Art 29(2).

108

See Art 43(1) Arbitration Law.

109

Art 35(2) Arbitration Law.

110

Uzelac (2009), at 41.

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Policy Department C: Citizens' Rights and Constitutional Affairs

2.5. Cyprus

Arbitration in Cyprus is governed by two different laws. The first one is the Arbitration Law,

Cap.4, which applies to the resolution by arbitration of commercial differences between

Cypriot nationals. Cap. 4 came into force on the 6

January, 1944 and with minor

amendments is applicable to the present day. Section 30 of the said law, provided that the

Governor of Cyprus (Cyprus was then a colony of United Kingdom) with the advice and

assistance of the Chief Justice may make Rules of Court for regulating the practice and

procedure in respect of proceedings of any kind under the said law. Pending the publication

of such rules, it was provided by the same section that the Civil Procedure Rules as may be

amended from time to time shall apply. Such rules were not published to the present day

either by the Governors of Cyprus or the Council of Ministers after Independence.

During the eighties it was felt by the commercial and industrial world of Cyprus that, due to

its Arbitration Law, Cyprus could not be offered as a basis for carrying out any arbitration

proceedings and as a result in 1987, the International Commercial Arbitration Law of 1987

(Law No 101/1987) as subsequently amended with slight variations, was enacted into law.

The said Law is essentially a verbatim reproduction of the UNCITRAL Model Law with only

slight variations, which will be examined further below.

111

There is an absence of any

commentary on the arbitration law and practice of Cyprus, principally because of its

verbatim reliance on the Model Law and secondly because its courts have not had the

opportunity to discuss arbitration-related cases. Despite the fact that Cyprus had, prior to

joining the EU, maintained a thriving off-shore economy, it does not seem from the

available data that it has enjoyed also a thriving arbitration industry, although perhaps this

is only a matter of time and changing attitudes. It should be stated from the outset that the

Cypriot courts and the country’s legal system are infused with a mixture of common law as

well as continental civil law, the latter in part because of the island nation’s Greek heritage

and the fact that most of its legal professionals have studied law in Greece or are otherwise

exposed to the Greek legal system. In the only case cited in which the Cypriot Supreme

Court has examined an arbitration seated in Cyprus (concerning whether proceedings

should be stayed on account of on-going litigation elsewhere under the lis pendens

principle), the Court examined the issues at hand (particularly that of public policy) from

the perspective of English law as well as Greek civil law and practice.

112

The attitude of the

courts is pro-arbitration

113

and this follows the international outlook of the Arbitration Law.

Agreement in writing: In accordance with sections 7 and 20 of the Arbitration Law

agreements can only be in writing (including faxes, telex etc.), but oral agreements are not

accepted.

Scope of application (international vs. domestic): The Arbitration Law differentiates

between domestic and international arbitration and applies only with respect to commercial

arbitration.

114

According to section 2(2), arbitration is international if:

111

For an excellent overview of Cypriot international arbitration law and practice, see Athanasiou, Berryman and

Born (2011).

112

Attorney-General of the Republic of Kenya v Bank fur Arbeit und Wirtsschaft AG, case No 10071, judgment on

jurisdiction (28 April 1999).

113

See, for example, Leliana Tourist Services v Andreas Karpasitis and Sons, (1991) 1 CLR 75 regarding

reluctance to stay arbitral proceedings as well as Yiola A Skaliotou v Christoforos Pelekanos (1976) 1 CLR 251,

similarly dismissing a stay request.

114

A distinct legal regime applies with respect to domestic arbitrations (the so-called chapter 4 of the Consolidated

Laws of Cyprus) but given that Cyprus is a hub for foreign companies with multiple funders and shareholders (and

foreign control) the domestic statute could apply to them because of their Cypriot incorporation. Chapter 4 is

similar to and in fact is modelled after the 1950 English Arbitration Act.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

a) parties to an arbitration agreement have, at the time of the conclusion of that

agreement, their places of business in different States; or

b) 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

c) the parties have expressly agreed that the subject-matter of the arbitration

agreement relates to more than one country.

Scope of application (commercial arbitration): In accordance with section 2(4) an

arbitration is commercial if it relates to commercial relationships, whether contractual or

other. Given that Cyprus remains a thriving trusts jurisdiction it is natural that non-

contractual relationships, such as those arising from trusts, corporate articles etc suffice to

validate the arbitration clause.

Arbitrability: The Arbitration Law does not state which disputes are not arbitrable,

referring instead to the possibility that other laws may exclude certain disputes from being

subjected by the parties to arbitration. This is a matter for further investigation as there

exists no available commentary. Nonetheless, section 2(5) of the Arbitration Law provides a

good indication of the range of disputes that are arbitrable through the definition of

“relationships of a commercial nature”, which includes “but is not limited to”:

“any trade transaction for the supply or exchange of goods or services; distribution

agreement; commercial representation or agency; leasing; construction of works;

consulting; engineering; licensing; investment; financing; banking; insurance; exploitation

agreement or concession; joint venture and other forms of industrial or business co-

operation; carriage of goods or passengers by air, sea, rail or road.”

Public policy: Historically, Cypriot courts have been very reluctant to apply a public policy

exception in order to deny recognition and enforcement of foreign awards. We have already

examined Attorney-General of the Republic of Kenya v Bank fur Arbeit und Wirtsschaft AG,

where a stay request on public policy grounds was rejected. There, the Cypriot Supreme

Court provided a rather broad definition encompassing “the fundamental principles which a

society, at a given time, recognises as governing transactions, as well as other

manifestations of the life of its members, on which the established legal order is based.” In

fact, the Cypriot Supreme Court has gone as far as claim that allegations (even if proven)

of corruption against an award do not constitute sufficient public policy grounds for non-

enforcement as the policy underlying the recognition and enforcement of awards outweighs

the policy against other illicit conduct, such as bribery.

115

This outcome seems to be

somewhat outdated as it will hardly be consistent with the English references to which the

Supreme Court referred and seems to be inconsistent with the (narrow) principle of

international public policy.

It is taken for granted that awards which provide informal recognition in one way or

another to the Turkish Republic of Northern Cyprus (TRNC) or which hamper the property

115

Beogradska Banka DD v Westacre Developments Inc, (2008) 1B CLR 1217, at 1222-24.

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Policy Department C: Citizens' Rights and Constitutional Affairs

or other rights of Cypriots by the law and practice of the TRNC regime will fall under the

Cyprus public policy rubric. Arguably any such awards or contracts with a similar rationale

will also fail by reason of the fact that the disputes in issue are not arbitrable (e.g. property

rights of refugees).

Arbitrators’ qualifications: There are no particular requirements (other than

independence and impartiality) in order to be eligible for appointment as arbitrator.

Representation of parties during proceedings: There is no requirement that the

parties’ representatives during arbitral proceedings be lawyers.

116

It has also been

confirmed by the Cypriot Supreme Court.

117

Institutional vs ad hoc arbitration: Anecdotal reports suggest that ad hoc arbitration is

the norm in Cyprus, although there is clear no data to support this claim.

Kompetenz-kompetenz power: This doctrine is explicitly recognised by the Arbitration

Law.

118

Liability of arbitrators: The matter has not been specifically dealt with by the courts or

the pertinent legislation. Arbitral rules in Cyprus contain a waiver of liability in respect of

the institution and its arbitrators, which however makes the case that liability may arise

where the act or omission is intentional or the result of serious negligence.

119

This suggests

that arbitration is viewed as having a largely contractual character.

120

In one case,

following conclusion of the hearing the arbitrators discussed the case with one of the

parties and were quoted as saying that the case was “a waste of time”. It was held that

such behaviour constituted impermissible misconduct which destroyed the trust that

litigants such have towards an arbitrator.

121

Interim and conservatory measures: This follows the relevant provisions in the

UNCITRAL Model Law. Article 24 of the CEDRAC Rules allows the tribunal, following a

request by the parties, to adopt interim measures. These must be honoured by the parties,

failing which a request may be made to the courts. Paragraph 9 of Article 24 of the CEDRAC

Rules suggests that the parties may request interim measures from the courts and not

through the tribunal if they so wish. In order for a court to agree to interim relief the

requesting party must satisfy that: there is a serious issue at stake; the applicant would

otherwise be likely entitled to the relief and; unless the relief is adopted there is a serious

risk of injustice.

122

Cypriot courts, particularly the country’s Supreme Court, have shown

themselves willing to assist the parties in relief applications not only with respect to assets

or evidence in Cyprus but also worldwide with the issuance of mareva injunctions.

123

There

are no relevant provisions with respect to conservatory measures.

Multi-party arbitration: Although there is no reference to this in the Arbitration Law it is

generally assumed that it is permitted as it is found in the rules of all arbitral institutions,

such as Article 9(1) of the CEDRAC.

116

See Art 5 CEDRAC Rules.

117

Open Joint Stock v Metal Base, (2003) 1C CLR 1856.

118

s 16, Arbitration Law.

119

Art 44(1) CEDRAC Rules.

120

In Stavrou v Tylli, (2007) 1B CLR 1172 it was held that the courts may remove an arbitrator where he or she is

found to be partial, which it defined as “any form of behaviour which tends to compromise and destroy the

confidence that parties must have in their arbitrators, that the latter would render a just award”.

121

Bank of Cyprus Ltd v Dynacon Ltd and Another (1990) 1B AAD 717.

122

Law on Courts No 14/1960, section 32.

123

See Seamark Consultancy Services Ltd v Joseph Lasala and Others (2007) 1A AAD 162.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Form of awards: Given the silence of the Arbitration Law the practice of arbitral

institutions suggest that other than final awards, tribunals can issue partial or interim

awards.

124

Tribunal as amiable compositeur: This is indeed permissible as it is foreseen in the

Law/UNCITRAL Model Law, as well as general practice in Cyprus.

125

Costs and fees: There does not seem to be any particular formula under the law and in

practice costs and fees are determined by the pertinent rules of arbitral institutions without

reference to fees and costs applicable to civil suits.

2.6. Czech Republic

The Czech Republic had a long history of arbitration prior to World War II and this was

reinvigorated following its return to a market economy in 1990. The country’s legislature

adopted a new arbitration statute in 1994

126

but retained its 1963 code of civil procedure

(CCP)

127

unlike many other former socialist nations. The CCP applies alongside the 1994

arbitration law but does not supersede it. There are several peculiarities inherent in the

1994 law, specifically that it is largely predicated on the 1985 UNCITRAL Model Law

128

but

does not reflect the changes introduced to the Model Law in 2006. Moreover, since the

Czech Republic is now part of the EU it has incorporated all the acquis into its legal system,

most notably for the purposes of this country study the restrictions to consumer arbitration

clauses.

It should be stressed that the arbitration statute is less specific in its articulation of the

regulation of arbitration than the Model Law and as a result the CCP is a necessary tool for

judges and arbitrators. Secondly, the rationale underlying the arbitration statute is towards

the least amount of interference by the local authorities and the courts in arbitral

proceedings. It was specifically intended that party autonomy would fill any gaps as well as

the institutional law of arbitral institutions. Unlike other arbitration statutes, for example,

the Czech counterpart’s provisions on interim and conservatory measures are rather thin,

although these provisions are mandatory, and cannot be varied through agreement of the

parties. Thirdly, the arbitration statute does stipulate several provisions as being

mandatory in nature, particularly on arbitrability, that the arbitration agreement be in

writing, due process guarantees, the procedures and guarantees relating to the

appointment of arbitrators, the conditions for setting aside and enforcement of awards, the

possibility of establishing arbitral institutions only by law and a few others.

129

Scope of application: The 1994 law applies to both domestic and international

arbitrations, the latter being understood as arbitral proceedings with an international

element as long as the seat is in the Czech Republic.

130

124

Art 33(1) CEDRAC Rules

125

Art 29(2) CEDRAC Rules.

126

Act No 216/1994 Coll., on Arbitral Proceedings and Enforcement of Arbitral Awards (as subsequently

amended).

127

Act No 99/1963 Coll.

128

Explanatory memorandum to the Act No. 216/1994 Coll., on Arbitral Proceedings and Enforcement of Arbitral

Awards (as subsequently amended) available in the Czech language only at

http://www.psp.cz/eknih/1993ps/tisky/t113600.htm

129

See generally, Maisner & Olik (2010).

130

There is, however, no definition of the term in the 1994 Arbitration Act.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Form of agreement: Section 3 of the 1994 arbitration law suggests that the arbitration

clause or submission agreement be in writing, including also telegraph, telex, or other

electronic means of communication that allows the content of the communication to be

recorded and the parties identified.

131

E-mails meet this requirement only if guaranteed

electronic signatures are used, otherwise the arbitration clause will be null and void.

132

However, section 3 seems to exclude implicit references to arbitration (unlike Article 7(3) of

the UNCITRAL Model Law), which are otherwise recognised in most jurisdictions. It also

excludes oral agreements to submit a future dispute to arbitration. Importantly, the

Supreme Court has also held that an arbitration agreement must always reflect the

agreement of the parties, and thus, for example, a public announcement (i.e. not directed

to particular persons) containing an arbitration clause will be null and void.

133

Arbitrability: Section 2(1) of the arbitration law stipulates that parties may submit all

property disputes to arbitration, with the exception of disputes relating to the enforcement

of decisions, incidental disputes, inheritance disputes, disputes arising out of proceedings

relating to the Czech Commercial Registry, and some others. Some of these require

clarification. The term “property” dispute encompasses all contractual obligations as well as

the determination as to the existence of an obligation, provided that the requested

determination affects the property rights of one of the parties. Disputes relating to the

enforcement of decisions embraces all disputes arising out of the execution of court

decisions. Incidental disputes, on the other hand, encompass a variety of disputes that

arise in insolvency proceedings in accordance with the 2006 Czech Insolvency Act.

134

Unlike other nations whose laws prohibit all public entities and instrumentalities from

entering into arbitration clauses with private parties, there is no such restriction in the

Czech Republic.

Consumer disputes: The Czech legislator has taken on board the concerns of the ECJ

regarding protection of a consumer in arbitrations. As a result a new paragraph 3 has been

added to section 3 of the 1994 Act whereby for a pre-dispute arbitration agreement with a

consumer to be valid it has to be concluded separately from the main contract, and not as

a part of the conditions that govern the main agreement. Section 3(5) of the Act imposes

an obligation to provide certain truthful, exact and full information in the arbitration clause

(e.g., information on the arbitrator, the method of initiating the arbitration, the form of the

arbitration proceedings, the remuneration of the arbitrator and the other expected

expenses that may arise for the consumer during arbitration proceedings, the place of the

arbitration proceedings, the method of delivery of the arbitral award to the consumer and

the fact that the final arbitral award is enforceable). Only at the permanent courts of

arbitration can this information be provided with reference to the organizational guidelines

and regulations of permanent courts. Since April 2012 arbitrators are obliged to adhere to

consume protection rules in the course of dispute arbitration under section 25 (paragraph

3) to the 1994 Act.

Public Policy: In accordance with section 121 of the Act No. 91/2012 Coll., on Private

International Law, foreign awards will be refused recognition and enforcement if they are in

conflict with Czech public policy. However, neither the Act, nor the CCP (or any other

commentators) specify what constitutes such public policy.

135

131

Sec. 3 (1) of the Arbitration Act ’94

132

This is in accordance with Act No 227/2000 Coll., on Electronic Signatures.

133

Decision of the Supreme Court of the Czech Republic No. 23 Cdo 3895/2011 dated 17 December 2013.

134

Act No 182/2006 Coll.

135

Section 121 of the Act No. 91/2012 Coll., on Private International Law

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Separability: The doctrine of separability is provided for in Art. 576 of the new 2014 Civil

Code.

136

It has also been explicitly confirmed by the Czech Supreme Court.

137

Institutional vs. ad hoc arbitration: Institutional arbitration is predominant and this is

facilitated by the fact that arbitral institutions can only operate if they are established

pursuant to a particular law and their rules, as already explained, are meant to elaborate

where the arbitration law and the CCP are silent.

Arbitrators’ qualifications: there no formal qualifications other than the fact that the

arbitrators possess legal capacity under their personal law (if foreign) or Czech law.

138

New

requirements have been added specifically for arbitrators involved in consumer disputes.

These must be registered in a special register of the Ministry of Justice. In practice, Czech

arbitral institutions demand other requirements, particularly that they possess legal

expertise.

Initiation of arbitral proceedings: Section 14 introduces an aberration that is not at all

supported in the theory and practice of international arbitration or comparative civil

procedure law. More specifically, it provides that proceedings are deemed to have

commenced when the statement of claim is received by the arbitrator (in ad hoc

proceedings) or the arbitral institution, as opposed to the usual rule whereby proceedings

are initiated when the statement of claim (or suit in litigation) is served to the respondent.

139

However, while this is unusual internationally, this approach copies that used before

Czech courts.

Form of proceedings: The parties are free to choose how proceedings are conducted and

in practice this will be determined by their chosen institutional rules. In the exceptional

case where the parties have not expressly decided on the form of proceedings, section

19(3) of the Arbitration Act dictates that these are solely oral.

140

Multi-party disputes and third parties to proceedings: The Arbitration Act and the

CCP do not prohibit or expressly regulate multi-party disputes or the participation of third

parties in arbitral proceedings to which they are not signatories (as to the clause). It is

generally assumed, therefore, that such instances fall under the law’s non-mandatory

provisions and that the parties are free to agree as they see fit. In practice, the gap is filled

by institutional rules.

Liability of arbitrators: Czech practice suggests that the relationship between the parties

and arbitrators is contractual, albeit the matter is not at all regulated under the Arbitration

Act or the CCP. The Czech Constitutional Court has held that arbitrators do not enjoy the

status of judges and hence any violations attributable to arbitral tribunals and arbitrators

are not attributable to the state.

141

It is accepted by commentators that the contractual

nature of arbitration does not release arbitrators from civil liability arising from negligence

or intentional breaches of their duties to the parties. In practice, arbitral awards are

adopted in the name of arbitral institutions (not the arbitrators’ names) and hence any

liability will probably be assumed by said institutions. In this light, institutions such as

ACEC have proceeded to adopt limitation of liability rules.

142

136

Art. 576 of the Act No. 89/2012 Coll., the Civil Code

137

Decision of the Supreme Court of the Czech Republic No. 23 Cdo 2628/2010 dated 22 January 2013

138

Section 118 of the Act No. 91/2012 Coll., on Private International Law

139

See Art 21 UNCITRAL Model Law.

140

See Art 24 UNCITRAL Model Law

141

Czech Constitutional Court, File No IV. US 174/02, judgment (15 July 2002).

142

See Maisner and Olik (2010), at 21-22.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Legal representation during an arbitration: There are no restrictions as to who can

assume this role, although in practice it is unlikely that the parties will hire anyone other

than a lawyer. The only requirement is that the person possesses full legal capacity but

authorisation must be proven by a power of attorney. Given the lack of restrictions as to

nationality, this means that a lawyer registered in a foreign jurisdiction may represent a

party in Czech arbitral proceedings.

143

Interim and conservatory measures: Section 22 of the 1994 Act stipulates that interim

measures may be adopted by local courts upon request by any of the parties where there is

a threat to the viability of the award. This is in contrast to the UNCITRAL Model Law (and

general practice) whereby the arbitral tribunal (alone or in concert with national courts)

may decide matters pertinent to interim measures. What this means is that if the parties

were to bypass the local courts by requesting the tribunal to adopt interim measures these

will later be declared null and void and an excess of arbitral powers because the power of

the courts in this instance is mandatory. Section 76 of the CCP provide a list of indicative

interim measures, including the safekeeping of funds or sensitive items by the courts or the

prohibition to dispose of certain items or rights.

There is no provision for conservatory measures in the 1994 Act other than section 22. As a

result, by virtue of Article 30 of the Act the CCP will apply mutatis mutandis.

Appeals: The Arbitration Act does not allow appeals against arbitral awards (other than

those relevant to set aside grounds). However, where the court has appointed an arbitrator

any of the parties may have recourse to an appeal against the judgment of the court.

Arbitrators as amiable compositeurs: Although no such distinction is drawn in the 1994

Act, commentators suggest that it does not allow arbitrators to act as amiable

compositeurs.

144

Form and content of award: Unlike Article 31 of the UNCITRAL Model Law the Arbitration

Act does not require indication as to the date or place or issue. Moreover, it does not

require all the signatures of the arbitrators as long as the award was signed by the majority

of the arbitrators.

145

Types of awards: The Arbitration Act recognises the existence of a full award under

section 23(a) of the Arbitration Act. Subparagraph (b) of the same section stipulates that

any other act by which the tribunal terminates proceedings – other than through a final

award – as would be the case where the parties consent to withdraw without settlement

shall be recorded in a “resolution”, which is similar to “orders” recognised in the UNCITRAL

Model Law terminology. The CCP, on the other hand, recognises partial and interlocutory

awards as do the institutional rules of arbitral institutions in the country, such as ACEC. It

is safe to assume therefore that were a tribunal to issue an award in respect of an

interlocutory issue (but not one involving interim measures) it would not be acting ultra

vires.

Additional awards are also recognised in practice, although there is no mention to such

awards in the Act or the CCP.

143

Maisner and Olik (2010), at 27.

144

Maisner and Olik (2010), at 3.

145

Art 25(1) Arbitration Act.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Costs: There is no uniform practice in the allocation of costs by the arbitrators.

146

Annulment/setting aside procedures: The parties cannot waive their right to petition

the courts to set aside awards. In accordance with Article 31 of the Arbitration Act an

award rendered in the Czech Republic may be set aside by the courts where:

(a) it was rendered in a matter in which no arbitration agreement can be validly

concluded;

(b) the arbitration agreement is invalid for other reasons, or was cancelled, or does not

apply to the subject matter;

either on the arbitration agreement or otherwise, or that the arbitrator lacked the

capacity to be an arbitrator;

(d) the arbitral award was not decided by a majority of the arbitrators;

(e) a party was not provided with the opportunity to heard or present its case;

(f) the arbitral award requires a party to proceed with performance that was not

requested by the claimant or performance that is impossible or unlawful under

domestic law;

(g) a single arbitrator or a permanent arbitration court decided on the dispute arising

out of a consumer contract in breach of consumer protection laws or in apparent

breach of good morals or public policy.

(h) an arbitration agreement regarding the disputes arising out of a consumer contract

does not contain specific information on arbitrators, form of initiating and conduct of

proceedings, remuneration and expected costs, the way of delivery of the award and

on enforceability of the award, or such information is on purpose or largely

incomplete, inaccurate or untrue, or

(i) it is established that reasons for the resumption of civil proceedings have been

given.

147

Other remedies against awards: In accordance with section 35 of the Arbitration Act

even if a request to set aside an award has not been filed, the same party may submit a

request to stay enforcement of the award.

148

The four grounds for this remedy are: the

award was affected by an error; lack of legal representation in the course of arbitral

proceedings; the person acting as legal representative was not approved by the party he or

she purported to represent; and certain specific reasons restricted to consumer disputes.

2.7. Denmark

The key legislative instrument in Denmark is the 2005 Arbitration Act which is based almost

entirely on the UNCITRAL Model Law (without the latter’s 2006 amendments).

149

Prior to

this, the Arbitration Act of 1972

150

was rather liberal in its application and one of its

146

Maisner and Olik (2010), at 40.

147

The grounds set out in (g) are stipulated in Art 228 of the CCP and relate to:

(1)

a discovery of new circumstances, decisions or evidence that could not have been used in the previous

proceedings due to no fault on the part of the respective party [..]; and

(2)

the possibility of producing evidence that could not be produced in the original proceedings [..].

148

Subject to the conditions laid down in section 268 of the CCP.

149

Act no 553 of 24 June 2005.

150

Act no 181 of 24 May 1972.

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Policy Department C: Citizens' Rights and Constitutional Affairs

rationales was to avoid court-interference as much as possible. This attitude largely

explains why arbitration is prevalent for the resolution of the majority of business disputes

in the country. By way of illustration, almost all construction disputes are subject to

arbitration pursuant to the general terms of contract used in almost all larger construction

contracts, all of which refer to the Building and Construction Arbitration Court.

151

Although

the 1972 Act is different in several respects from its 2005 counterpart, because the

underlying rationales and liberal attitudes of both instruments are identical the case law

relating to the older law continues to be valid and respected.

152

Scope of application (international versus domestic): The Act, according to Article

1(1) applies to all types of arbitration, whether domestic or international taking place on

the territory of Denmark (except for the Faroe Islands and Greenland, which are still

subject to the 1972 Act). However, according to the preparatory works, if the parties agree

that the place of arbitration is Denmark even though the proceedings have no connection to

Denmark, the proceedings would not fall within the scope of the Arbitration Act.

153

doubt, this caveat is meant to signal that Danish law and the country’s court will not

validate or provide assistance to proceedings (including a subsequent award) if the

arbitration has not taken place in Denmark. Implicitly, and given that Denmark advertises

itself as a forum for arbitration, foreign parties may arbitrate a dispute in Denmark even if

unrelated to this country.

Scope of application (commercial versus non-commercial): The Act applies

(implicitly, in the absence of relevant mention) to all types of disputes, whether commercial

or otherwise. It does not, however, apply to labour

154

and consumer disputes.

155

Ad hoc versus institutional arbitration: Commentators suggest that ad hoc arbitration

is very popular, but this is also the case with institutional arbitration.

156

Arbitrability: The Danish position follows that in the UNCITRAL Model Law, allowing the

submission to arbitration of any “legal relationships in respect of which the parties have an

unrestricted right of disposition.”

157

This naturally includes intellectual property disputes as

well as anti-trust as long as the particular subject matter relates to the parties’ inter-se

relations.

Commentators suggest, unlike some other jurisdictions, that arbitration applies in cases of

bankruptcy, particularly the application of arbitration clauses concluded by the debtor prior

to his or her insolvency, unless the award will have an impact on the rights of third parties.

Equally, the administrator is free to use his discretion to enter into (but essentially activate)

contracts of the debtor with an arbitration clause.

158

151

See Spiermann (2009), at 3. It should be noted, however, that proceedings before the Arbitration Court are

modelled closely on the Administration of Justice Act, and so do not closely resemble those in traditional

arbitration.

152

Id, at 2.

153

Id, at 2.

154

Art 1(5) Arbitration Act, which originally excluded only collective labour disputes, was amended pursuant to Act

no 106 of 26 February 2008 and now reads as follows: “This Act shall not apply to disputes which are to be

resolved by an industrial arbitral tribunal under s. 21, see s. 33(1), of the Labour Court and Industrial Arbitral

Tribunals Act. This Act shall not apply to disputes submitted to arbitral tribunals established by statute for the

resolution of disputes in relation to particular matters”.

155

Art 7(2) Arbitration Act.

156

Spiermann (2009), at 3.

157

Art 6 Arbitration Act.

158

Spiermann (2009), at 9.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Consumer disputes: Article 7(2) of the Arbitration Act states that an arbitration clause in

a consumer contract in respect of a dispute that has not yet arisen is not binding on the

consumer. Therefore, only submission agreements are valid for the purpose of arbitration.

However, unlike other arbitration laws in Europe, Article 7(2) does not require that the

submission agreement be individually negotiated or that it should not include any other

provisions.

Public policy: Public policy is referred to in the Arbitration Act in two places, namely as

regards set aside proceedings

159

and enforcement of foreign awards.

160

The concept is not

defined but in general terms it is assumed that it encompasses conformity with the Danish

legal system and the rule of law (although some commentators suggest that it also includes

international public policy).

161

Agreement in writing: There is no strict requirement in Danish law for an arbitration

agreement to be in writing, thus deviating from the UNCITRAL Model Law in this respect.

Oral agreements (although rare in practice) are accepted as long as there is some evidence

of the parties’ intention.

162

Arbitration clause (void): The Supreme Court held that an arbitration clause was void by

reason of the fact that the arbitral institution it referred to did not exist (the Copenhagen

Maritime Arbitrators’ Association).

163

As a result, the dispute was referred to the Danish

courts under Danish law, rather than the parties’ chosen governing and procedural law.

Multi-party arbitration: These are generally permitted (as there is no mention in the

Arbitration Act) unless the parties decide otherwise.

164

A Danish court has held that the rule

of lis pendens applies to arbitral proceedings, in the sense that once a dispute has been

submitted to an arbitral tribunal the exact same dispute cannot be submitted to another

tribunal.

165

Stay of proceedings: In accordance with Article 357(1) of the Administration of Justice

Act any objections as to the validity of the arbitration agreement must be submitted in the

first submission.

Arbitrators’ qualifications: There are no required qualifications for arbitrators. However,

according to Article 16 of the Rules of Arbitration Procedure of the Danish Institute of

Arbitration, the presiding arbitrator must have a law degree and unless the parties agree

otherwise this requirement may be imposed on the party-appointed arbitrators. Equally,

the Building and Construction Arbitration Court usually appoints an arbitral tribunal

consisting of a Danish titular judge (as chairman) and two technical experts.

166

Arbitrator independence: It is acceptable in Danish practice for party-appointed

arbitrators to seek the advice of the appointing party as regards the umpire, with both the

159

Art 37 Arbitration Act.

160

Art 39, Arbitration Act.

161

Spiermann (2009), at 30.

162

Spiermann (2009), at 8. In one case, the Court of Arbitration for Building and Construction decided a claim

despite the absence of an arbitration agreement which the parties referred to it for resolution. Prefab Building

Plant v Concrete Plant, Award, VBA case no VG2006.C-8965 (3 July 2006).

163

Dregg EHF v Jensen Shipping A/S, Danish Supreme Court, judgment (12 June 2012).

164

Danish Maritime and Commercial Court, judgment (2005) Ugeskrift for Retsvæsen 2560.

165

Danish Maritime and Commercial Court, judgment (2003) Ugeskrift for Retsvæsen 885.

166

Spiermann (2009), at 12.

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Policy Department C: Citizens' Rights and Constitutional Affairs

parties and the party-appointed arbitrators being privy to this process.

167

Moreover, the

jurisprudence of the Danish Supreme Court clearly shows that whereas a person may be

appointed as arbitrator in several cases by the same party, this is not so where the same

person has acted as counsel in one or more cases as such an eventuality raises a real

conflict of interest.

168

Moreover, where a practitioner has taken a position with regard to an

issue (legal or factual) in the abstract, he or she is not considered as having lost his or her

impartiality or independence.

169

In the case at hand, the practitioner had consulted one of

the parties during negotiations and his position had not been considered by the party.

Liability of arbitrators: There is no provision in the Arbitration Act on this matter, as is

the case with the vast majority of arbitration statutes in Europe. It is, however, suggested

that arbitrators’ bear liability for intentional or negligent behaviour in the performance of

his or her duties, whether as a result of contract or tort. The rules of tort in Denmark are

not statute-based but court-driven and therefore unless a precedent is established the only

reliance is on academic and practitioner opinions. It is also suggested that the limitation of

liability clauses in the rules of Danish arbitral institutions is of limited value (based on the

above considerations).

170

Legal representation during proceedings: No requirements or restrictions are placed

by Danish law, other than the need for a power of attorney so as to ensure that the

representative is duly empowered to represent the party in question.

Court assistance/intervention: In accordance with Article 27(1) of the Arbitration Act

the tribunal may request the court to administer the taking of evidence (especially since

the tribunal’s rulings to this effect are not enforceable and in light of the fact that it is not a

criminal offence for witnesses testifying before a tribunal to provide false information).

Although subject to the parties’ agreement the pertinent rules of evidence are to be

interpreted and applied liberally by the tribunal, in a recent case the absence of specific

rules or guidance in respect of evidentiary matters led one of the parties to petition the

courts for a preliminary ruling prior to the commencement of arbitral proceedings. Although

such a petition seems to violate the authority of the arbitration agreement, the Supreme

Court ultimately ruled that in the absence of any guidance in the pertinent rules of the

designated institution (the Danish Institute of Arbitration) or indeed in the Arbitration Act,

the request to the courts was valid and did not constitute a violation of the arbitration

clause.

171

The Danish Institute has since appended new provisions (appendix 2 to its

revised 2013 Rules).

Importantly, under paragraph 2 of Article 27 a tribunal seated in Denmark may request the

local courts to request the ECJ to provide a preliminary ruling on a question of European

law if this is necessary for determining the case at hand. This is a significant provision and

had it not been for the fact that the ECJ does not consider arbitral tribunals as “courts”

competent to request preliminary rulings

172

the Danish Arbitration Act would have allowed

tribunals to make the request directly without any court intervention.

167

Spiermann (2009), at 12.

168

Danish Supreme Court, judgment (1997) Ugeskrift for Retsvæsen 172.

169

JMK Transport ApS v Danish Crown AMPA, Danish Supreme Court, judgment (19 December 2009), (2009)

Ugeskrift for Retsvæsen 550.

170

Spiermann (2009), at 15.

171

Vestas Wind Systems A/S v ABB A/S , Danish Supreme Court judgment (13 January 2012).

172

Case 102/81 Nordsee v Reederei Mond (1982) ECR 3415.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Interim measures: The tribunal may order interim measures under Article 17 of the

Arbitration Act. The provision is cursory and does not even provide for a range of indicative

measures available to the tribunal. It is suggested that the range of measures available to

the courts are also available to tribunals, but the key issue here, of course, is that the

tribunal’s rulings are not enforceable, so serious measures such as asset freezing, would

need court intervention in cases of non-compliant parties under Article 9 of the Arbitration

Act. However, under Danish tort law if a party suffers harm from the non-compliance of

interim orders made by the tribunal compensation may be sought by the aggrieved party.

Tribunal acting as amiable compositeur: This is indeed possible if the parties so agree

under Article 28(3) of the Arbitration Act.

Setting aside proceedings: The grounds listed in Article 37(2)(1) are the same as those

set out for non-recognition and enforcement of foreign arbitral awards, which are

themselves based (almost verbatim) on the UNCITRAL Model Law and the New York

Convention.

Kompetenz-kompetenz: Article 2(2) of the Arbitration Act renders the tribunal’s

kompetenz-kompetenz power dispositive and hence the parties may by mutual agreement

refer the matter for determination to the courts or a third entity (another tribunal or

institutional court).

Confidentiality: Although this matter is not regulated in the Arbitration Act it is generally

assumed that unless otherwise stipulated the parties are under no general duty of

confidentiality as to the proceedings and the award. Commentators differ regarding

whether a duty of confidentiality exists for arbitrators. In addition, when the parties or the

tribunal seek assistance from the courts, proceedings therein are held in public although

exceptionally the court, following a request by the parties, may determine that in order to

protect trade or other secrets no access to the public will be possible in accordance with the

Administration of Justice Act.

Award types: The Arbitration Act does not limit the tribunal solely to final awards

173

but

allows it, if the parties so agree, to other types of awards, to awards on the merits,

174

awards “on the evidence before it”,

175

awards on agreed terms (at the discretion of the

tribunal)

176

and additional awards.

177

Commentators note the tradition in Denmark whereby

arbitrators ask the parties whether instead of a final award they would rather have a

simplified ruling, often confined to legal reasoning and conclusion (tilkendegivelse). This is

not, however, an award and the benefits include less drafting for arbitrators and hence it

reduces their fees, which may serve as an attraction for some parties.

178

It has been

criticised by the Danish Supreme Court.

179

Appeals against merits of awards: Although this ground is not generally recognised

under general principles of international commercial arbitration and indeed Danish law, the

173

Art 32(1) Arbitration Act.

174

Art 16(3) Arbitration Act.

175

Art 25(3) Arbitration Act.

176

Art 30 Arbitration Act.

177

Art 33(3) Arbitration Act.

178

Spiermann (2009), at 21.

179

Danish Supreme Court, judgment (1994) Ugeskrift for Retsvæsen 458.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Danish High Court has held that if the parties so agree they can appeal an award to the

courts regarding the merits.

180

Enforcement of foreign awards: Article 39 of the Arbitration sets out the same grounds

as the New York Convention and the UNCITRAL Model Law. The decisions of Danish courts

regarding enforcement may be appealed before to the High Court (and exceptionally also

the Supreme Court) in accordance with the Administration of Justice Act.

Costs and fees: Danish arbitral institutions typically estimate their fees (including those of

the arbitrators) on the basis of a schedule available on their websites, which is dependent

on the amount in dispute. Danish tax authorities exempt arbitrators’ fees from the payment

of VAT despite the contractual nature of their appointment for which they are expected to

render a service in return for payment. The determination as to the costs of the

proceedings is made by the tribunal, which has authority to demand that a party pays part

or all of the costs of the other party in accordance with Article 35, but this will be

enforceable only when rendered as an award, not as an order.

181

2.8. England

Arbitration in England is regulated by the 1996 Arbitration Act (AA) which constitutes a

consolidation and modernisation of the previous Act and subsequent case law on

arbitration, of which England has an exceptionally rich tradition. Although the 1996 Act is

not a direct adoption of the UNCITRAL Model Law, it is naturally compatible with it and as

section 1 aptly stipulates, it is premised on three fundamental principles, namely fair

resolution of disputes, limited court intervention and extensive party autonomy, save for

reasons necessitated by public interest. These principles have influenced the Scottish

Arbitration Act of 2010 and have been applied verbatim. It should be noted that arbitration

developments in England, particularly judgments by the Supreme Court (previously the

House of Lords) and by other senior courts, are regarded with much respect abroad, not

only in common law but also civil law jurisdictions and are cited widely in support of the

arguments of parties and the courts. Moreover, despite the extensive practice of contract

law in England the Arbitration Act must necessarily develop along the lines of international

arbitration practice, which may be contrary to principles of contract law developed under

the common law, such as those relating to the validity of oral agreements as regards

arbitration. Article 81 AA makes the point that any part of the common law which is in

conflict with the AA is inapplicable, thereby rendering the AA lex specialis.

Scope of application (international versus domestic): In accordance with section 2(1)

of the AA the Act applies where the arbitration is seated in England and Wales or Northern

Ireland (henceforth England for convenience). As a result, the AA does not apply to

Scotland or British dependencies such as the Channel Islands, which possess their own

arbitration legislation. The remainder of section 2 makes it clear that certain parts of the AA

will apply to arbitrations seated abroad, particularly as regards enforcement, taking of

evidence and interim measures. Overall, therefore, it is evident that the AA does not

distinguish in any meaningful way between domestic and international arbitrations (save

for foreign arbitral awards). Given the importance of the arbitration’s seat, section 3

clarifies that the concept of seat relates to the juridical seat as determined by the parties

and their agreement, not necessarily where the proceedings (in whole or in part) take

place; although the parties may be treading a fine line if they conduct all of the

proceedings abroad. Under section 53 AA, unless otherwise agreed by the parties, where

180

Danish High Court, judgment (2002) Ugeskrift for Retsvæsen 681.

181

Unknown parties, High Court of Eastern Denmark, judgment (7 June 2012).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

the seat of the arbitration is in England and Wales or Northern Ireland, any award in the

proceedings shall be treated as made there, regardless of where it was signed, despatched

or delivered to any of the parties.

Scope of application (commercial versus other): Subject to arbitrability restrictions,

the AA makes no distinction between commercial or other disputes. In fact, the AA makes

no reference whatsoever to the types of disputes covered under it, particularly section 6(1).

It is assumed therefore that there are no restrictions.

Agreement in writing: Section 5 of the AA takes an especially broad view of an

agreement in writing, encompassing any relevant agreement the terms of which can be

some form of written evidence, or where in the course of proceedings one of the parties

fails to raise an objection as to the existence of a written agreement. Under the common

law oral agreements to arbitrate have long been recognised, but this position is probably

inconsistent with the Model Law and international practice and its application would create

more problems than those destined to resolve. As a result, section 81(b) of the AA

stipulates that oral agreements under the common law are incompatible with the AA.

Stay of arbitral proceedings: This is only possible in accordance with section 9(3) AA if

the arbitration agreement is null and void, inoperative or incapable of being performed.

Arbitrability: Arbitrability was not defined, even in broad terms, in the AA.

182

Its ambit is

certainly very broad and encompasses all matters affecting the civil (private) interests of

the parties.

Consumer arbitration: In accordance with sections 89-91 AA consumer disputes are

arbitrable as long as the parties respect the 1994 Unfair Terms in Consumer Contracts

Regulations and the amount sought is beyond a threshold as specified by law. Presumably,

therefore, pre-dispute clauses will be considered unfair and an agreement subsequent to

the dispute must be individually negotiated.

Ad hoc versus institutional arbitration: Both have long been recognised and practiced

in English law. It seems fair to say that institutional arbitration is preferred among parties

choosing London as their seat.

Court assistance and intervention: Subject to the fundamental principle of limited court

intervention the role of the courts is to assist the parties and the arbitration. Under section

12 the courts may extend the deadlines for rendering awards as set by the parties (or as

laid down in institutional rules) where it is reasonable based on current exigencies or where

the recalcitrant conduct of one of the parties necessitates such an intervention by the

courts. Appeals against a decision of the court at first instance are allowed, but only after a

leave of court in accordance with paragraph 6 of section 12 AA.

Equally, under section 18 AA the parties may apply to the court in order to appoint

arbitrators where they themselves are unable to do so. The court’s decision is appealable

where permission for appeal is granted.

In accordance with section 24 AA the parties may apply to the courts in order to challenge

an arbitrator either because of a lack of independence or because he or she is not mentally

or physically capable of discharging his duties or because his performance is injurious to

182

Exceptionally, section 48(5)(b) AA stipulates that tribunals have no power to order the specific performance of

a contract relating to land.

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Policy Department C: Citizens' Rights and Constitutional Affairs

the parties. The court may hear the arbitrator in question before giving its decision on the

matter. As in all other instances where court assistance is sought, the parties may appeal

the decision provided that leave is granted by the court.

The tribunal’s decision as to its jurisdiction may be challenged before the courts under

section 32 AA.

The courts may be approached either by the parties or the tribunal in order to enforce any

orders (such as interim measures) made by the tribunal. The court will refuse to enforce if

it is satisfied that the party in question has not first exhausted all available recourse

available to the tribunal.

183

Unless otherwise agreed by the parties, the court may on the application of a party (upon

notice to the other parties) determine any question of law arising in the course of the

proceedings which the court is satisfied substantially affects the rights of one or more of

the parties.

184

The court may extend the time period indicated by the parties for rendering an award if

satisfied that a substantial injustice would otherwise be done, under section 50 AA.

Multi-party arbitration and joinder: Several parties may join the proceedings if they

claim rights or duties under the terms of the agreement between the original parties or

where third parties invoke rights or duties in similar terms.

185

Concurrent proceedings are

possible where the original parties so agree and under the terms agreed by them. The

tribunal has no power to consolidate proceedings.

186

Group of companies doctrine: English courts have confirmed that this doctrine does not

form part of English law.

187

Statute of limitations: Section 13 makes it clear that applicable statutes of limitations

under English law apply to arbitral proceedings in the same way as they do in respect of

court proceedings.

Number of arbitrators: Section 15(2) implicitly confirms that the parties may choose an

even number of arbitrators, although this is unusual in practice.

Liability of arbitrators: That some liability does exist is evident from the wording of

section 25(1)(b) and 3(a) of the AA which refer to the possible liability of arbitrators in

cases of unjustifiable resignation from their office. Liability for unjustified resignation is

however a very specific form of liability under the AA. The general rule is found in section

29(1) AA which stipulates that an arbitrator “is not liable for anything done or omitted in

the discharge or purported discharge of his functions as arbitrator unless the act or

omission is shown to have been in bad faith”.

188

Hence, apart from unjustified resignation

cases, it is evident that negligence that does not amount to bad faith will not be enough to

give rise to liability.

183

Section 42 AA.

184

Section 45(1) AA.

185

See Oxford Shipping Co Ltd v NYK (The Eastern Saga), [1984] 2 Lloyd’s Reports 373, confirming the general

rule under English law that third parties are generally excluded from arbitral proceedings.

186

Section 35 AA.

187

Petersen Farms Inc v C and M Farming Ltd [2004] All ER (D) 50, effectively overturning Roussel-Uclaf v GD

Searle & Co [1978] 1 Lloyd’s Rep 225.

188

The same principle applies with respect to arbitral institutions, in accordance with section 74 AA.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Chairman and umpire: Given that the parties may appoint an even number of arbitrators

they may not wish for the existence of an arbitrator with the casting vote. If they do, this

person will be the chairman which the parties appoint themselves or through the party-

appointed arbitrators. The chairman possesses the decisive vote where the other

arbitrators are split.

189

Umpires, on the other hand, are not chairmen and do not as a rule

take part in proceedings. They only have a role to play where one or more arbitrators are

challenged and removed from the proceedings.

190

There is no provision for the function of

chairman in the UNCITRAL Model Law.

Arbitrators’ qualifications: No particular qualifications are required of arbitrators in order

to qualify for office. There are no exceptions for judges and hence judges may be appointed

as arbitrators.

191

When the courts are approached to appoint arbitrators they may at that

stage have due regards to any qualifications demanded by the parties.

192

Legal representation during arbitral proceedings: There are no restrictions as to who

may represent the parties in arbitral proceedings.

193

Foreign lawyers need not be registered

to practice in England.

Tribunal powers: Tribunals have authority to decide relevant issues to the proceedings,

194

so here we shall concern ourselves with indicative powers. First and foremost, in

accordance with section 30 AA tribunals possess kompetenz-kompetenz powers. The

tribunal’s decision may be challenged under section 32 AA.

In accordance with section 42(3) AA the court shall not act unless it is satisfied that the

applicant has exhausted any available arbitral process in respect of failure to comply with

the tribunal’s order.

The tribunal may withhold an award in the eventuality of non-payment in accordance with

section 56 AA.

Interim measures: The tribunal “may give directions to a party for the preservation for

the purposes of the proceedings of any evidence in his custody or control”.

195

This is

equivalent to interim orders under the UNCITRAL Model Law, but the power conferred upon

the tribunal is certainly far smaller (direction as opposed to an order or an award).

However, under section 39 AA the tribunal, if the parties so agree, shall have the power to

grant interim or similar measures in the form of provisional (or interlocutory) awards. This

power is therefore extensive and the provision in question does not envisage recourse

against such award to the courts.

Types of awards: The tribunal may make final awards as well as partial awards under

section 47 AA but as we have already seen it may grant an award on preliminary

(interlocutory) issues related to the arbitral process. Other types of final awards are

envisaged, such as additional awards.

196

The parties may request the tribunal to offer any

189

Section 20 AA.

190

Section 21.

191

Section 93 AA.

192

Section 19 AA.

193

Section 36 AA.

194

Section 38 AA.

195

Section 38(6) AA.

196

Section 57 AA.

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Policy Department C: Citizens' Rights and Constitutional Affairs

remedies they wish (e.g. an order to do or refrain from doing something or an order for

specific performance).

197

Enforcement of awards (rendered in England): Much like the Swiss Private

International Law Act, the AA makes a distinction between the binding nature of awards

between the parties per se, while at the same time providing for a procedure of

enforcement of awards by the courts, in accordance with section 66 AA. This procedure

therefore is not mandatory and requires the leave of the court.

Costs and fees: Sections 59-65 of the AA discuss costs and fees but there is no indication

therein as to a specific rule that should guide the costs and arbitrators as to the allocation

of both costs and fees. The general rule is that this is a matter to be decided by the parties,

which includes reference to the arbitral institution’s rules of procedure.

Challenging awards rendered in England: Under section 67 AA any of the parties may

apply to the courts in order to challenge an award on the basis of the tribunal’s substantive

jurisdiction. Under section 68 AA awards can be challenged in respect of a serious

irregularity. Paragraph 2 of section 68 contains a list of grounds giving rise to a serious

irregularity, which in very large part are similar to those provided in the UNCITRAL Model

Law in respect of set aside proceedings. They consist of:

a) failure by the tribunal to comply with section 33 (general duty of tribunal);

b) the tribunal exceeding its powers (otherwise than by exceeding its substantive

jurisdiction under section 67);

c) failure by the tribunal to conduct the proceedings in accordance with the procedure

agreed by the parties;

d) failure by the tribunal to deal with all the issues that were put to it;

e) any arbitral or other institution or person vested by the parties with powers in

relation to the proceedings or the award exceeding its powers;

f) uncertainty or ambiguity as to the effect of the award;

g) the award being obtained by fraud or the award or the way in which it was procured

being contrary to public policy;

h) failure to comply with the requirements as to the form of the award; or

i) any irregularity in the conduct of the proceedings or in the award which is admitted

by the tribunal or by any arbitral or other institution or person vested by the parties

with powers in relation to the proceedings or the award

In respect of both challenges, the court may vary the award, remit the award back to the

tribunal for rectification or declare the award null and void. The third type of challenge

consists of an appeal on a point of law, under section 69 aa, which requires the consent

of both parties and provide that the court provides appropriate leave. The law in question

must be the law of England and Wales for a court in England and Wales, or the law of

Northern Ireland for a court in Northern Ireland. Leave may be granted where (in

accordance with section 69(3) AA) the court is satisfied:

(a) that the determination of the question will substantially affect the rights of one or

more of the parties;

(b) that the question is one which the tribunal was asked to determine;

(d) the decision of the tribunal on the question is obviously wrong, or

197

Section 48 AA. The only restriction relates to a performance order relating to land under section 48(5)(b).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

(e) the question is one of general public importance and the decision of the tribunal is at

least open to serious doubt, and

(f) that despite the agreement of the parties to resolve the matter by arbitration, it is

just and proper in all the circumstances for the court to determine the question.

2.9. Estonia

Arbitration in Estonia is regulated by sections 712 to 757 of the country’s Code of Civil

Procedure (CCP), which came into effect in 2006 and is based on the 1985 version of the

UNCITRAL Model Law. Commentators suggest that the differences between the Estonian

CCP and the Model Law are almost identical to those found in the German Arbitration Law.

It should be noted that, with respect to arbitration, the Estonian CCP replaced the Act of

the Republic of Estonia on the Court of Arbitration of the Estonian Chamber of Commerce

and Industry. Thus the previous regime only regulated arbitration in respect of this

particular institution in the exclusion of any other, or ad hoc arbitration. Perhaps as a

result, the difference in the setting up of arbitral institutions under its neighbour Latvia is

striking (by comparison, until recently in Latvia it was possible for anyone to set up an

arbitral institution and the situation was much abused). It should be stated that Estonian

courts are in some respects liberal in their interpretation of arbitration, having, e.g., held

that in their interpretation of the NY Convention they take the practice of other nations into

consideration for guidance.

198

Scope of application (international versus domestic): The CCP covers all arbitral

proceedings whose seat is in Estonia and does not distinguish between these regardless if

one is purely domestic and another has international elements. Naturally, awards rendered

outside Estonia are treated as foreign awards and subject to the NY Convention regime for

recognition and enforcement.

Scope of application (commercial versus other): Just like the German Arbitration Law,

the Estonian CCP makes it clear that it applies to relationships of a proprietary (financial)

nature, which must be given broad construction. An arbitration agreement involving a non-

proprietary claim is valid if the claim is capable of settlement. An administrative proprietary

claim can be submitted to arbitration if, according to the Administrative Procedure Act, an

administrative contract can be executed on the object of the claim.

Arbitrability: The general rule is that parties have the right to submit to arbitration any

dispute which they are entitled to dispose of, as long as this is of a proprietary nature.

According to the CCP the following disputes are not amenable to arbitration: non-

proprietary claims (unless the object of the dispute is capable of settlement by the parties);

disputes over the validity or cancellation of the residential lease contracts concerning a

dwelling in Estonia and vacating the dwelling located in Estonia; disputes over the

termination of employment contracts.

Consumer arbitration: Consumer arbitration is allowed, provided that the agreement is

recorded in a document bearing the handwritten or digital signature of the consumer.

Public policy: Pursuant to section 751(2) of the CCP, the court shall annul the award

based on the request of a party or at the court's initiative if the court establishes that the

decision of the arbitral tribunal is contrary to Estonian public order or good morals.

199

The

198

Case no 2-05-23561, Court of Appeals judgment (9 March 2007).

199

Case no 3-4-1-1-08, Supreme Court order (5 February 2008).

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Policy Department C: Citizens' Rights and Constitutional Affairs

Supreme Court has also held in its affirmation of the doctrine of separability that an

arbitration agreement that violates or at least ignores the public policy would be null and

void.

200

Awards may be annulled when they violate “good morals”. The Court of Appeals has

interpreted the term “against good morals” as being concerned with rights and morals,

including activities that are generally condemned.

201

Ad hoc versus institutional arbitration: As has already been stated, ad hoc arbitration

was not regulated until 2006 but at the same time it was not forbidden. However, since the

coming into force of the CCP in 2006, ad hoc arbitrations appear to be more common,

although there is no clear evidence on this point.

Agreement in writing: The CCP, following the Model Law, requires agreements to be in

writing (Article 719(1)), stressing the need for a written record. The arbitration agreement

can be executed as a separate agreement or as a separable clause in a contract (Article

717(2)),

202

The Supreme Court has stressed that the arbitration agreement must be clear

as to the parties’ intentions.

203

Estonian courts have shown themselves to be rather

flexible, with the Court of Appeals taking the view that an agreement between the parties

need not be printed and signed. An agreement is valid even through an exchange of

sending letters and faxes, assuming there is both offer and consideration.

204

Arbitration agreement: The Estonian Supreme Court, whose judgments although

persuasive are only binding on the parties to the dispute before it, has held that where

there exists an arbitration agreement but neither party raises its existence in limine litis

during court proceedings, it is presumed by their conduct that they have waived their right

to rely on the arbitration agreement.

205

In another judgment it held that in its

interpretation of a suretyship agreement the behaviour of the parties is relevant in

assessing whether they have tacitly waived their right to arbitration. In the case at hand,

the surety providers did submit to the city court an application for terminating the

proceedings due to arbitration agreement but did not appeal on the same ground. On this

basis the Supreme Court held that they had waived their right to arbitration.

206

The Supreme Court has equally held that if the claimant disputes the validity of the

arbitration agreement and the statement of claim is taken into proceedings, then it would

be efficient to resolve the dispute over the validity of the arbitration agreement by interim

award.

207

The Supreme Court and lower courts have stressed the autonomy of the arbitration clause

and the resulting doctrine of separability.

208

The failure of the parties to indicate their preferred arbitral institution does not serve to

invalidate the arbitration agreement.

209

200

Case no 3-2-1-34-04, Supreme Court judgment (15 April 2004).

201

Case no 2-07-14594, Court of Appeals judgment (29 June 2007).

202

This provision was subjected to minor amendments on 1 January 2013.

203

Case no 3-2-1-38-02, Supreme Court order(28 March 2002).

204

Case no 2-05-23561, Court of Appeals judgment (9 March 2007).

205

Case no 3-2-1- 9-07, Supreme Court order (14 February 2007).

206

Case no 3-2-1-38-02, Supreme Court order (28 March 2002).

207

Case no 3-2-1-130-07, Supreme Court order (16 January 2008).

208

Case no 3-2-1-34-04, Supreme Court judgment (15 April 2004); Case no 3-2-1-130-07, Supreme Court order

(16 January 2008).

209

Case no 2-06-39773, Court of Appeals order (28 May 2007). Even so, commentators stress another case by

the same court where the same failure of the parties was found by the court to have invalidated their arbitration

agreement. See case no 2-05-984, Appeals Court judgment (6 March 2009).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Third parties: The Supreme Court has indicated that an arbitration agreement does not

bind third parties.

210

Of course, where there has been a transfer of claim to a person that

was not an original party to the agreement, it is assumed that the effects of the arbitration

clause were also transferred to said person.

211

Multi-party arbitration: The CCP does not regulate multi-party arbitration but given the

prevalence of party autonomy it would not be out of place to argue that if the parties so

wish and are able to agree on joint arbitrators then multi-party arbitration raises no difficult

legal issues. By way of analogy, in assessing whether an arbitration clause extended to

third parties (the result was negative) the Supreme Court held that the law does not oblige

the claimant to file the claim against persons jointly and severally liable to the same

court.

212

Human rights and constitutionality: In one case the Estonian Supreme Court held that

there is nothing in the CCP or other laws on the basis of which the tribunal may dismiss a

particular law and declare it to be in conflict with the constitution. The tribunal therefore is

deemed as not having the power of judicial review. Moreover, provided that the arbitration

agreement is valid and that the tribunal is competent to resolve the dispute, the parties

have waived, in a way allowed in a private law relationship, their right to resolve their

dispute in court, and by this, at least partly the right to the protection of constitutional

rights that can be exercised only in court (the review of constitutionality of applicable

norms).

213

However, the Supreme Court also noted that the tribunal could disregard a

particular norm on other grounds (e.g. good faith), and that the constitutionality review

could be carried out in the annulment phase.

Interim measures: Under the CCP the parties may request for interim measures prior to

the constitution of the arbitral tribunal and during the course of arbitral proceedings. The

tribunal’s ruling in relation to interim orders is not automatically enforceable but requires

an enforcement judgment from the courts, following a request by the parties. Available

interim measures are extensive and include the seizure of the defendant’s property,

insertion of a notation in the property register and others (however excluding measures

restricting personal freedom). The tribunal (and the court) may request security for

applying interim measures. Institutional arbitration courts (i.e. the board) may forward the

interim measures request to the court even prior to constituting the arbitral tribunal.

Types of awards: The CCP does not distinguish between awards and other forms of relief

(this might also be just a question of language, as in practice both orders/rulings and

awards are issued, depending on the nature of the respective decision). Commentators

suggest that the law allows for partial as well as most forms of interim awards, although as

we have already seen the tribunal does not have the power to order enforceable interim

measures.

Arbitrators’ qualifications: Any person with sound legal capacity may be appointed as

arbitrator by the parties. With respect to attorneys, only sworn advocates have the capacity

to act as arbitrators in accordance with the Estonian Bar Association Act (excluding

attorneys with lower qualification). Judges are not permitted to act as arbitrators appointed

by the parties (but they can be appointed e.g. by the institutions).

210

Case no 3-2-1-90-07, Supreme Court order (2 November 2007).

211

Case no 2-06-39773, Court of Appeals order (28 May 2007.

212

Case no 3-2-1-90-07, Supreme Court order (2 November 2007).

213

Case no 3-4-1-1-08, Supreme Court order (5 February 2008).

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Policy Department C: Citizens' Rights and Constitutional Affairs

Liability of arbitrators: The CCP and general Estonian law makes no reference to such

liability and there are no cases providing any guidance. Hence, it is unclear what the law is

in this respect.

Legal representation during arbitral proceedings: There are no restrictions as to who

may represent the parties during arbitral proceedings. There are no restrictions on foreign

lawyers representing clients in Estonia.

Tribunal deciding ex aequo et bono: The CCP allows the parties to request the tribunal

to decide the case on the basis of fairness and equity (only upon clear party agreement on

this and still applying the imperative provisions of the otherwise applicable law).

Set aside proceedings: Arbitral awards rendered in Estonia may be annulled (equivalent

to set aside proceedings) under grounds that are identical to those found in the UNCITRAL

Model Law.

Res judicata: An award rendered in Estonia enters into force on the day it is issued and

has res judicata effect from there on (Article 746). However, an ad hoc award issued in

Estonia is recognised and enforceable only when so declared by the courts (Article 753).

Awards made through arbitral institutions are automatically recognised and enforceable.

Enforcement of foreign awards: Estonian law follows the NY Convention verbatim, so no

particular analysis is required. However, it should be stressed that the Supreme Court has

confirmed that Estonian courts shall not review the material correctness of a foreign

award.

214

The Supreme Court has also stressed that the Brussels Regulation (44/2001/EC)

is not applicable to enforcement of foreign arbitral awards.

215

Costs and fees: Commentators suggest that the costs of the winning party are generally

fully compensated at the expense of the losing party.

2.10. Finland

In 1992 a new Arbitration Act was adopted in Finland,

216

which replaced an act that had

been in place since 1925. The 1992 is not predicated on the UNCITRAL Model Law, but the

two are deemed by commentators to be substantially compatible. Although Finland has a

long tradition of arbitration and the country has a thriving economy, it is not a host to

international arbitrations in the same manner as New York, London or Paris. Rather, the

vast majority of arbitrations contain a Finnish element. The list of available cases,

particularly those resolved by the country’s Supreme Court are few and the most significant

judgment involving arbitration resolved the legal nature of arbitrators’ liability.

Scope of application (international versus domestic): Article 1 of the Arbitration Act

(AA) clarifies from the outset that it applies to both domestic and international arbitrations.

Whereas Articles 2-50 apply solely to domestic arbitrations, the remainder (Articles 51-55)

applies to international arbitrations. The distinction between the two is the seat of the

arbitration, whereby if this is Finland then by implication the arbitration is considered

domestic.

214

Case no 3-2-1-118-03, Supreme Court order (1 December 2003).

215

Case no 3-2-1-100-10, Supreme Court order (15 November 2010).

216

Act No 967/1992.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Scope of application (commercial versus non-commercial): Article 2 of the AA

specifies that its application extends to any civil or commercial dispute as long as this is

susceptible to settlement by the parties.

Consumer disputes: There is no reference to consumer disputes in the AA. According to

section 12:1d of the Consumer Protection Act (38/1978), pre-dispute arbitration clauses in

consumer contracts are invalid and not susceptible to arbitral resolution, however, a post-

dispute agreement to submit the dispute to arbitration is possible.

Arbitrability: Article 2 simply states that all civil and commercial disputes that can be

settled by agreement are arbitrable. The scope of arbitrability is thus broad and would only

seem to exclude disputes of public law or family law nature and hence encompasses the

entire range of intellectual property rights where the subject matter of the dispute concerns

the parties’ inter se relations. The same principle applies with respect to anti-trust

disputes.

217

In respect of bankruptcy, if the debtor has concluded an arbitration agreement before the

bankruptcy, the agreement binds both the administrator and the other party to the

proceedings and each can insist that any dispute to which the agreement applies be

referred to arbitration. If the administrator wants to have a transaction made by the debtor

declared null and void or rescinded since the transaction violates the creditors' rights, the

administrator will not be bound by an arbitration agreement which the debtor has

concluded before the bankruptcy with the other party to the transaction.

218

Public policy: This concept is not defined in the AA, save in order to denote that a

violation of public policy renders an award null and void.

219

Equally, the tribunal is

empowered to reject an award on agreed terms (arising out of a settlement) if the tribunal

deems that it violates public policy under Article 33 AA. It is suggested that the concept

coincides with the law and legal system of Finland.

Institutional versus ad hoc arbitration: There is not much information in the public

domain about ad hoc arbitration, but commentators believe that while it is widely used it is

less common than institutional arbitration.

Agreement in writing: This corresponds strictly to Article 7(2) of the UNCITRAL Model

Law.

220

As a result, oral agreements submitting a dispute to arbitration are excluded.

Nonetheless, the AA, in Article 3, extends the scope of an agreement in writing to:

“arbitration clauses in wills, deeds of gift, bills of lading or similar documents, in the bylaws

of an association, of a foundation, of a limited liability company or of another company or

corporate entity and by which the parties or the person against whom a claim is made are

bound”.

Multi-party arbitration and joinder: There is no mention of this eventuality in the AA

but there are no known restrictions under Finnish law that prevent the parties from

conducting multi-party arbitration joining relevant proceedings if they so desire. This

possibility arises in Articles 10-13 of the FCC Rules.

221

217

Möller (2008), at 5.

218

Möller (2008), at 5.

219

Art 40(2)(2).

220

Art 3 AA.

221

Arbitration Rules of the Finland Chamber of Commerce 2013 Rules (in force as of 1 June 2013), hereinafter

“FCC Rules”.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Third parties: The Supreme Court found that an arbitration agreement was binding

against an entity that was not a party to the original contract on the basis that said entity

predicated a subsequent claim on the insurance agreement containing the arbitration

clause.

222

The Supreme Court, therefore, follows the trend whereby third parties are not

bound by an arbitration clause without their consent, save for situations where they have

tacitly assumed rights or duties under a contract to which they are not parties.

Powers of arbitral tribunals: It is suggested that arbitral tribunals possess the implicit

power under Finnish law to fill gaps in the course of interpreting a contract, as well as

adapt contracts to fundamentally altered circumstances, despite not having been

authorised by the parties to do so.

223

Obviously, there is a fine line between exercising such

implicit powers and excess of authority. In one case, the tribunal had adjusted the parties’

contractual provision in accordance with Article 36 of the Finnish Contracts Act and as a

result the aggrieved party claimed that the tribunal had exceeded its vested powers and

hence requested that the award be set aside. The Supreme Court accepted the arbitral

tribunal's view that a contractual provision may be adjusted by reference to section 36 of

the Finnish Contracts Act even if adjustment has not been invoked (for instance where a

claim is based on a contractual provision allegedly being void). The Supreme Court also

noted that the arbitral tribunal is not tied to the legal views presented by the parties in the

proceedings.

224

Tribunal acting as amiable compositeur: The parties may validly request the tribunal to

resolve the dispute on the basis of equitable principles in accordance with Article 31(3) of

the AA.

Kompetenz-Kompetenz power: There is no provision in the AA as regards the tribunal’s

power to determine its own jurisdiction (at least in the sense of a binding power). The

tribunal may as a matter of fact examine whether it possesses jurisdiction so that it can

continue to the merits but this is not a definitive determination and cannot be recorded in

an order or an award. If the parties dispute the tribunal’s jurisdiction they may approach

the courts with a relevant petition.

225

What this means, however, is that recalcitrant parties

may use the local courts with a view to protracting and delaying arbitral proceedings.

Arbitrators’ qualifications: In accordance with Article 8(1) of the AA there are no

restrictions as to the qualifications of arbitrators, including restrictions as to legal expertise.

Moreover, under paragraph 2 of Article 8 there is equally no requirement of nationality and

hence any person can be appointed to act as arbitrator in an arbitration seated in Finland.

Unlike some nations, judges may be appointed as arbitrators.

Liability of arbitrators: Just like all arbitration statutes modelled under or influenced by

the UNCITRAL Model Law the AA equally does not contain a provision on the liability of

arbitrators. Although the issue was moot for some time and academic opinion shifted back

and forth towards both liability in tort and under contract, a landmark judgment by the

Finnish Supreme Court in 2005 changed the landscape and gave potential arbitrators in

222

A v Assuranceforeningen Gard, Supreme Court decision (KKO) 2007:39. .

223

Möller (2008), at 6.

224

Werfen Austria GmbH v Polar Electro Europe BV, Zug Branch, Supreme Court decision (KKO) 2008:77.

225

Möller (2008), at 17. See e.g. following recent Finnish Appeal Court decisions where the issue of the arbitral

tribunals jurisdiction has been discussed: Rovaniemi Appeal Court decision 15.3.2012 (S11/905), Vaasa Appeal

Court decision 2.2.2012 (S 11/476), Helsinki Appeal Court 17.8.2011 (S10/2248), Turku Appeal Court 13.4.2011

(S10/1847) and Turku Appeal Court 13.4.2011 (S10/1847). Furthermore, Article 32 of the FCC Rules contain

express provisions on “Pleas as to the jurisdiction of the arbitral tribunal.”

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Finland something to think about.

226

In the case at hand, in the course of construction

arbitration one of the parties realised that the arbitrator appointed by the other party had

been its legal counsel. As a result, proceedings against this person (X) commenced before

the civil courts for damages related to his failure to make a full disclosure and the question

which arose was whether the liability of the arbitrator to the parties was contractual, tort or

both. The case ultimately reached the Supreme Court which held that the liability of an

arbitrator was predicated solely by his contractual obligations to the parties, thus requiring

a causal link between the alleged act or omission (failure to disclose) and the harm caused

(in this case the other party’s legal and other expenses). No liability can arise under tort,

namely the 1974 Finnish Tort Liability Act and in event even the contractual character of

arbitrator liability is deemed to be exceptional.

227

Legal representation during proceedings: There are no restrictions as regards

qualifications and nationality for the representation of a party during arbitral proceedings.

This means that the presence of a lawyer is not necessary but a power of attorney as proof

of the party’s consent to be represented is essential.

Court intervention or assistance: In general, the powers of arbitral tribunals to

undertake certain tasks that would ordinarily require binding powers are limited. By way of

illustration, although Article 27(1) of the AA empowers tribunals to call witnesses and

administer all aspects of the proceedings, its rulings to witnesses are not binding and it

“may not impose any penalty, nor use other means of constraint, nor shall it administer

oaths or equivalent affirmations”.

228

Equally, under Article 29(1) of the AA if the tribunal (or the parties) requires expert advice

in a particular case an application to the courts is required where it is necessary to examine

a witness or expert in court under oath.

In accordance with Article 43 of the AA final or partial awards require writ (or exequatur)

from the local courts for their enforcement. The party against whom it is sought may be

given an opportunity to be heard,

229

although this does not amount to an appeal on the

facts or merits of the dispute.

Appeals to the courts in respect of awards are not envisaged in Finnish law. Commentators,

however, suggest that appeals are exceptionally possible in respect of arbitrations

mandated by law (not by reason of party autonomy), as is the case with arbitrations falling

under the Act on Limited Liability Companies.

230

Interim measures: Tribunals may order interim measures but Article 5(2) of the AA

clarifies that a court or another authority has a parallel entitlement to do so as well. The

FCC Rules contain an express provision (Article 36) on interim measures of protection

where it is clearly stated that the tribunal at the requests of a party may grant any interim

protection measures it deems appropriate.

Award types: With the exception of provisional awards there are no limitations in the AA

as regards the legal form of a tribunal determination. Thus, full, partial, additional

231

226

See Möller (2006).

227

Ruola Family v X, Supreme Court decision (KKO) 2005:14.

228

Art 27(2) AA.

229

Art 43(3) AA.

230

Möller (2008), at 23.

231

Art 39(1) AA.

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Policy Department C: Citizens' Rights and Constitutional Affairs

other awards are possible, so long as the tribunal possesses the power to dispense with a

particular issue definitively and in a binding manner (e.g. this does not apply to interim

measures).

Null and void awards: In accordance with Article 36(1) awards must be in writing and

signed by all arbitrators. Article 40(1) of the AA enumerates those instances where awards

are considered null and void. Besides dealing with disputes not susceptible to arbitration or

those against public policy, the provision also lists those awards that are so obscure or

incomplete that it does not appear in it how the dispute was decided or those that are not

in writing or otherwise signed by the arbitrators. Exceptionally, paragraph 2 of Article 40

states that:

“the absence of the signature of one or more arbitrators shall not make the award null and

void if it has been signed by a majority of all members of the arbitral tribunal provided that

they have stated on the award the reason why an arbitrator who has participated in the

arbitration has not signed the arbitral award.”

Reasoned award: There is no requirement in the AA that arbitral awards must be

reasoned or in any other way justified, unless of course the parties so demand. Although

this eventuality poses no problems for awards enforced in Finland and most nations, the

situation may arise where the lack of reasoning may be perceived as an offence to public

policy where the award is to be recognised and enforced abroad.

Setting aside awards: The grounds for setting aside awards under Article 41 of the AA

are fewer than those enumerated in the UNCITRAL Model Law and limitations apply in

addition. The applicable grounds for setting aside are:

a) the arbitral tribunal has exceeded its authority;

b) an arbitrator has not been properly appointed;

c) an arbitrator could have been challenged under section 10, but a challenge properly

made by a party has not been accepted before the arbitral award was made, or if a

party has become aware of the ground for the challenge so late that he has not

been able to challenge the arbitrator before the arbitral award was made; or

d) the arbitral tribunal has not given a party a sufficient opportunity to present his

case.

Even so, parties are prevented from requesting a court to set aside an award under points

1-3 if they have taken part in the proceedings and failed to state their objections thereto.

Costs and fees: In accordance with Article 46(1) of the AA unless otherwise agreed or

provided, the parties shall be jointly and severally liable to pay compensation to the

arbitrators for their work and expenses. Under section 2 of Article 46 the compensation to

the arbitrators shall be reasonable in amount, taking into account the time spent, the

complexity of the subject-matter and the other relevant circumstances. It is argued by

commentators that as a rule the costs of the arbitration are finally awarded against the

losing party. The arbitral tribunal is, however, free to apportion the costs among the parties

if it deems it justified (e.g., each party prevails in part on the merits).

232

As a rule the losing party shall be ordered to pay the total amount of the costs of the

arbitration, including the costs for legal representation and legal assistance.

233

232

Möller (2008), at 19.

233

Art 49 AA.

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       

Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

2.11. France

Arbitration in France is regulated by Book IV of the country’s Code of Civil Procedure (CCP),

as recently amended.

234

The Book divides arbitration in two parts. Articles 1442 to 1503

deal with domestic arbitration, whereas Articles 1504 to 1527 deal with international

arbitration. Articles 2059 to 2061 of the French Civil Code equally concern domestic

arbitration. The 2011 reform has extended to domestic arbitration some rules which were

previously only applicable to international arbitration, thus harmonising the two regimes

from many points of view. The regulation of arbitration in the CCP predates the UNCITRAL

Model Law and its current manifestation is considered far more liberal than the arbitration

treaties to which France is a party. Hence, French courts cite the CCP rather than those

instruments. The French courts have a long and elaborate jurisprudence relating to

international arbitration and case law – contrary to what is generally perceived about civil

law nations – substitutes the gaps or ambiguities in the written law.

Scope of application: The CCP distinguishes between domestic and international

arbitration. An international arbitration is defined under Article 1504 CCP where

international trade interests are at stake. Although this is not a clear definition, it is taken

to mean that the arbitration is commercially linked to more than one country. Although the

different nationalities of the parties or the law chosen may be relevant in distinguishing

between domestic and international arbitration, neither of these is determinative in and of

themselves.

235

Equally, the intention of the parties as to the international nature of the

arbitration is of no relevance.

236

The concept of “international trade” need not involve more

than one nation. The economy of a single nation suffices to render the arbitration

international so long as it is not that of France.

237

It should be stated that within the scope

of international arbitration the CCP encompasses both arbitral proceedings (with an

international element) seated in France as well as foreign awards (rendered abroad) for

which recognition and enforcement is sought in France.

Notably, while the jurisdiction of French courts regarding arbitration is overwhelmingly

restricted to arbitrations seated in France, since 2011 French law has expressly endorsed

the rule adopted in the Nioc case

238

, in accordance with which French courts have universal

jurisdiction (i.e. relating to arbitrations seated anywhere in the world) to resolve problems

arising from a party’s refusal to appoint an arbitrator, where this refusal risks a denial of

justice.

Scope of application (commercial versus other): It is clear from Article 1504 CCP that

only commercial (or trade)-related arbitration is covered under the relevant part of the

CCP. This should be construed broadly,

239

however, and does include consumer activities

with a transnational nature, such as the sale of stocks and other financial instruments,

which may otherwise fall under consumer relations. This flexibility is in line with available

case law, whereby an arbitration clause involving international trade disputes and providing

234

Decree No. 2011‐48 of 13 January 2011.

235

Carthago Films case, Paris Court of Appeals judgment (29 March 2001).

236

Chefaro case, Court of Cassation judgment (13 March 2007).

237

Asecna case, Court of Cassation judgment (17 October 2000).

238

Cass. Civ. 1, 1 February 2005, Nioc, Rev. arb. 2005.695, note H. Muir-Wat, where the NIOC company faced the

Israel state refusing to appoint an arbitrator, and thus blocking the proceedings. The French judge benefits from

an international competence notwithstanding whether the case has connection with France or not.

239

See also Art 2061 of the Civil Code, which refers to “professional activities”.

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Policy Department C: Citizens' Rights and Constitutional Affairs

simply for “arbitration Paris” was found to be operable as making reference to an

arbitration seated in Paris.

240

Ad hoc versus institutional arbitration: Both institutional and ad hoc arbitration are

recognised and reportedly common in France.

Arbitrability: The general rule on arbitrability is stated in Article 2059 of the Civil Code,

which states that all persons may agree to arbitration in relation to rights which they are

free to dispose of. Article 2060 of the Civil Code goes on to exclude all matters of civil

status and capacity. There is no equivalent provision on arbitrability specifically related to

international arbitration. The Court of Cassation has made it clear that the restrictions on

arbitrability in the Civil Code do not apply to international arbitration and hence the scope

of arbitrability is especially broad.

241

French law treats international awards as not related

to any particular legal order and hence the validity of an award is determined in accordance

with the law of the country where recognition or enforcement is sought (i.e. French law).

242

Public policy: In accordance with Article 1514 of the CCP an award will not be recognised

or enforced in France if it is in conflict with international public policy. It should be noted

that domestic French public policy (which applies to domestic arbitration) is significantly

broader as compared to international public policy. As a result, violation of domestic public

policy does not necessarily entail a violation of international public policy.

243

In general,

French international public policy is defined as the body of rules and values which the

French legal order regards as fundamental in situations of an international character.

244

French case law distinguishes between substantive and procedural international public

policy, as grounds for setting awards aside. A substantive public policy violation arises

where the act or omission in question is actual, blatant and concrete.

245

In respect of

procedural public policy claims, the claimant must demonstrate that the breach actually

caused it harm.

246

Agreement in writing: Article 1507 CCP states that an international arbitration

agreement shall not be subject to any requirements as to its form. This means that the

parties are free to choose any form provided that the agreement is recorded or is otherwise

implicit. Such a confirmation may be found in a telex or an invoice signed by one of the

parties.

247

Although there has not been any case law on oral agreements, French courts

generally assume a “common intent to arbitrate” where one of the parties has by its silence

accepted arbitration, particularly where there is a history of consistent and repeated

practice by the parties of arbitration in successive contracts, even if the disputed contract

in question contains no arbitration clause.

248

Where a party initiates or participates in

arbitration proceedings, or does not object to the existence of an arbitration agreement

during those proceedings, it is estopped from later doing so.

249

As for domestic arbitration, the arbitration agreement must be in writing in order to be

valid (Article 1442 CCP). In case of a submission agreement (i.e. an agreement concluded

240

Limak case, Paris Court of Appeals judgment (23 October 2008).

241

Vivendi case, Court of Cassation judgment (28 January 2003).

242

Putrabali case, Court of Cassation judgment (29 June 2007).

243

Intrafor case, Paris Court of Appeals judgment (12 March 1985).

244

LTDC case, Paris Court of Appeals judgment (27 October 1994).

245

Verhoeft case, Court of Cassation judgment (21 March 2000); SNF case, Paris Court of Appeals judgment (23

March 2006).

246

Nu Swift case, Paris Court of Appeals judgment (21 January 1997).

247

Comptoir Commercial Blidéen case, Paris Court of Appeals judgment (13 September 2007).

248

Van Dijk case, Paris Court of Appeals judgment (18 March 1983).

249

Golshani case, Court of Cassation judgment (6 July 2005).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

after the dispute has arisen between the parties), the parties must also specifically indicate

the dispute they wish to submit to arbitration.

Arbitration agreement (scope of issues): French courts have taken the view that the

drafting of the clause determines which disputes are encompassed under it – contrary to

some arbitration statutes that assume all types of disputes, unless the parties specifically

narrow the terms of the clause. As a result, it has been held that only broadly worded

clauses will be deemed as covering both contractual and tort claims (arising from the

contract).

250

Negative effect of competence-competence: Since 2011 French law has also included

an explicit assertion of the negative aspect of competence-competence. Under this rule

French courts are actually precluded from deciding on the validity of an arbitration

agreement

251

unless the arbitral tribunal has not been yet seized

252

and the arbitration

agreement is manifestly null and void.

253

However, this point must be raised by the

respondent in the court proceedings prior to taking any action on the merits, and courts

have no obligation to automatically decline jurisdiction absent such an objection. This rule

only applies, however, in the business context, and not with respect to parties such as

customers, employees and policyholders.

Choice of law: Article 1511 of the CCP follows the obvious rule whereby the tribunal

decides the dispute in accordance with the substantive law designated by the parties,

failing which in accordance with the law which the tribunal considers appropriate. However,

paragraph 2 of Article 1511 goes on to add that in either case the tribunal “shall take into

account trade usages”. It is not entirely clear if this is an obligation on the tribunal, but if

so, it is certainly a limitation on the parties’ autonomy, as they might well desire to exclude

trade usages in a particular dispute. The concept of “rules of law” in Article 1511 is broader

than national law and includes usages and practices. The Court of Cassation has held that

an award decided on the basis of “rules of international commerce determined by practice

recognised in national court case law” was compatible with “rules of law”.

254

This is also

evidence of the flexibility of French courts where the parties intention to submit to

arbitration is manifest.

Tribunal deciding as amiable compositeur: Article 1512 of the CCP states that if the

parties so wish the tribunal may be asked to decide a dispute as amiable compositeur. In

French law, the concepts of ex aequo et bono and amiable compositeur are legally

synonymous. French courts have set the boundaries somewhat. For one thing, they have

made it clear that when deciding on the basis of equity, tribunals are bound to observe the

parties’ due process rights and international public policy more generally.

255

In the seminal

Minhal case, the Paris Court of Appeals held that where the tribunal is asked to decide on

the basis of equitable considerations it is presumed that the parties have waived the effects

and benefits of legal rules as well as the right to expect a strict application of the law. It is

evident that when a tribunal decides a dispute on the basis of equity it may have to

moderate the effects of the parties’ contractual arrangements. Nonetheless, it may not go

as far as to create a new set of contractual relationships that were not originally intended

250

Sucres et Denrées case, Paris Court of Appeals judgment (19 May 2005).

251

Cass. Civ. 1, 7 May 1963, Gosset, JDI, 1964.82, note J.-D. Bredin; reaffirmed in Cass. Civ. 1, 26 June 2001,

ABS, Rev. arb. 2001. 529, note E. Gaillard.

252

An arbitral Tribunal is considered to be seized under French Arbitration Law when it is constituted and the

arbitrators have accepted their mission (Article 1456 al.1 CCP), unless agreed otherwise by the parties (Article

1461 CCP).

253

Cass. Civ. 1, 16 October 2001, Quarto Children’s book, Rev. arb. 2002.919, note D. Cohen .

254

Compania Valencia de Cementos Portland, Court of Cassation judgment (22 October 1991).

255

Minhal case, Paris Court of Appeals judgment (28 November 1996).

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Policy Department C: Citizens' Rights and Constitutional Affairs

by the parties.

256

If the tribunal were to render an award that includes no evident

considerations of fairness and instead involves a strict application of the contract on the

basis of formal law may be reason to refuse enforcement.

257

Where the parties have

complicated things and asked the tribunal to decide the dispute upon a mixture of equity

and rules of law, the dominant view (on the basis of case law) is for the tribunal to first

identify the chosen law and then compare it to the equitable solution, ultimately deciding

the outcome (if a conflict between the law and equity exists) in accordance with its own

sense of fairness.

258

Liability of arbitrators: The CCP makes no reference to the liability of arbitrators for acts

or omissions related to the proceedings and which produce harm to the parties. The Paris

Court of Appeals has held, nonetheless, that arbitrators may be liable for any harm caused

in respect of their failure to make a full disclosure about circumstances which may

jeopardise their independence and impartiality.

259

In addition, due to the contractual

dimension of an arbitrator’s role, liability can also be engaged in cases of fraud, duress or

grave mistake.

Independence of arbitrators: The CCP is generally very much consistent with the

relevant provisions of the UNCITRAL Model Law. However, some of the pertinent case law

of the French courts is interesting. In particular, the Paris Commercial Tribunal has held

that the repetitive appointment of an arbitrator by the same party in similar disputes may

give rise to doubts as to his independence and impartiality.

260

The duty of arbitrators to

disclose starts from the moment of their appointment until the close of arbitral

proceedings.

261

Challenge to the independence or impartiality of an arbitrator may be

brought at any time, including after the award has been rendered. The provisions on

independence and impartiality apply equally to domestic and international arbitration.

Arbitrators’ qualifications: There are no restrictions as to the person or qualification of

arbitrators under French law in respect of international arbitrations.

Legal representation during arbitral proceedings: There are no limitations as to who

can represent parties in arbitral proceedings.

Interim measures: In accordance with Article 1468(1), which applies both to domestic

and international arbitration, the tribunal may order upon the parties any conservatory or

provisional measures that it deems appropriate, set conditions for such measures and, if

necessary, attach penalties to such order. However, only courts may order conservatory

attachments and judicial security.

Tribunal powers: Among the interesting provisions of the CCP, the following should be

mentioned:

In accordance with Article 1470(1) of the CCP, “unless otherwise stipulated, the arbitral

tribunal shall have the power to rule on a request for verification of handwriting or claim of

forgery in accordance with Articles 287 through 294 and Article 299.”

256

Taurus Films case, Paris Court of Appeals judgment (4 November 1997).

257

Bachelier case, Paris Court of Appeals judgment (3 July 2007).

258

Vanoverbeke case, Paris Court of Appeals judgment (15 January 2004).

259

L’Oréal case, Paris Court of Appeals judgment (9 April 1992).

260

Chomat case, Paris Commercial Tribunal judgment (6 July 2004).

261

J&P Avax case, Paris Court of Appeals judgment (12 February 2009).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Under Article 1467 of the CCP, the arbitral tribunal has the power to issue an injunction to

a party to disclose evidence that it holds.

Under Article 1469 of the CCP, tribunal has the power to resort to a French judge to order

third parties to produce evidence where necessary to the outcome of the dispute, provided

the third party resides in France.

Types of awards: French law recognises as awards final, partial and interim awards. This

includes arbitral decisions on provisional measures that settle all or part of the parties’

dispute.

262

However, decisions on interlocutory issues other than the ones set out above,

such as those relating to the tribunal’s finding of jurisdiction and generally all those that do

not terminate the procedure are not afforded the status of awards.

263

Overall, the

determination as to whether a particular ruling is or is not an award is made by the courts

and does not depend on the classification made by the tribunal.

264

In addition, a new rule has been incorporated into the CCP vesting the chair of an arbitral

tribunal with the power to adopt a decision on his/her own where no majority amongst the

members of the tribunal can be reached. If this is done it must be specifically mentioned in

the award (Art. 1513(3)CCP).

Enforcement of international awards: We have already made it clear that French law

recognises two types of international awards, namely those that have an international

element but rendered in France and those decided abroad but the parties seek to enforce

this (foreign) award in France. Both of these awards must be recognised and enforced in

France in accordance with Article 1514 of the CCP. Article 1516 of the CCP goes on to say

that “an arbitral award may only be enforced by virtue of an enforcement order

(exequatur) issued by the Tribunal de grande instance of the place where the award was

made or by the Tribunal de grande instance of Paris if the award was made abroad.”

Paragraph 2 of Article 1516 makes it clear that exequatur proceedings shall not be

adversarial, whereas paragraph 3 stipulates that the relevant application may be submitted

by the “most diligent party”, which is typically one of the parties; albeit, French courts have

construed this to also encompass individual arbitrators themselves.

265

In accordance with Article 1523(1) of the CCP an order of the court by which it denies

recognition and enforcement of international awards rendered in France are subject to

appeal. However, in accordance with Article 1524 CCP, no recourse may be had against an

order granting enforcement of an award.

In conducting enforcement proceedings, the courts will not allow arguments as to the

tribunal’s reasoning, even if this seems erroneous or inconsistent.

266

In addition, since 2011 annulment or appeal against enforcement judgments do not have a

suspensive effect on execution of the award. However, a party can obtain summary

judgment to suspend execution of the enforced award, provided such execution is at high

risk of infringing fundamental rights of the applicant.

262

Otor case, Paris Court of Appeals judgment (7 October 2004).

263

Crédirente case, Paris Court of Appeals judgment (29 November 2007).

264

Brasoil case, Paris Court of Appeals judgment (1 July 1999).

265

Republique de Guinée case, Paris First Instance Court judgment (29 November 1989).

266

France Animation case, Paris Court of Appeals judgment (18 January 2007); IAIGC case, Court of Cassation

judgment (14 June 2000).

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Policy Department C: Citizens' Rights and Constitutional Affairs

Setting awards aside: Under Article 1522 (1) CCP, parties to an international arbitration

may waive at any time their right to annulment proceedings. Nonetheless, even if such a

waiver is given, parties retain their right to challenge any enforcement order issued by a

national court on the grounds listed under Article 1520 CCP.

International awards rendered in France can only be challenged by set aside proceedings,

in accordance with Article 1518 CCP. The grounds for setting aside, under Article 1520 CCP,

are:

(1) the arbitral tribunal wrongly upheld or declined jurisdiction; or

(2) the arbitral tribunal was not properly constituted; or

(3) the arbitral tribunal ruled without complying with the mandate conferred upon it; or

(4) due process was violated; or

(5) recognition or enforcement of the award is contrary to international public policy.

It should, once more, be pointed out that under French law awards set aside at the seat of

the arbitration may still be recognised and enforced in France.

267

This outcome is based on

the rationale that the validity of an international award must be assessed by the rules of

the country where recognition and enforcement is sought. As a result, the suspension of a

foreign award by the courts of the seat does not bind French courts when assessing the

recognition and enforcement of said award.

268

In domestic arbitration, under Article 1489 CCP, parties can provide that the award is

subject to appeal: in this case, the State court can review the merits of the arbitral

decision. On the contrary, in the absence of an explicit agreement in this regard, the award

can only be challenged by set aside proceedings, on the same grounds as an international

award.

2.12. Germany

Arbitration in Germany is regulated by the 1998 Arbitration Law which was adopted in

order to bring German law in line with international developments and render Germany an

attractive forum for resolving arbitral disputes. The Law is therefore modelled under the

UNCITRAL Model Law. As is the case with the vast majority of civil law nations, the

Arbitration Law was incorporated into the country’s code of civil procedure (ZPO) and in

particular in the Tenth Book of the ZPO. Where there are gaps in the application and

interpretation of the Arbitration Law one must have recourse to other parts of the ZPO and

the Civil Code in order to derive general principles of general application, as is the case, for

example, with the liability of arbitrators which is not mentioned in the ZPO.

Scope of application (international versus domestic): Section 1025(1) ZPO does not

distinguish between purely domestic arbitration (i.e. between German nationals or German

domiciled companies) and international arbitration. Rather, the Arbitration Act applies to all

arbitral proceedings whose seat is in Germany. Section 1025(3) goes on to state that if the

place of arbitration has not yet been determined, the German courts are competent to

perform the court functions specified in sections 1034, 1035, 1037 and 1038 if the

respondent or the claimant has his place of business or habitual residence in Germany.

267

Hilmarton case, Court of Cassation judgment (23 March 1994).

268

Polish Ocean Lines case, Court of Cassation judgment (10 March 1993).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Scope of application (commercial versus other): The ZPO does not limit arbitration to

commercial relationships but extends itself to all relationships that involve an economic

interest, in accordance with section 1030(1). Moreover, section 1029(1) allows parties to

submit disputes to arbitration that arise from a contractual or other relationship, thus

including trusts and testamentary relationships.

Arbitrability: As we have already discussed in the previous section, section 1030(1) ZPO

stipulates that any claim involving an economic interest may be submitted to arbitration.

However, even claims not involving an economic interest may be subjected to arbitration,

as long as the parties “are entitled to conclude a settlement on the issue in dispute”. The

parties do not possess such freedom as regards family disputes, but there are no issues as

regards arbitration clauses arising in wills and testaments, provided that the heir agrees to

be bound by the arbitration clause. Section 1066 ZPO introduces a rule in this respect

which has no equivalent in the Model Law. It goes on to say that the Arbitration Law

“applies mutatis mutandis to arbitral tribunals established lawfully by disposition on death

or other dispositions not based on agreement”. This non-agreement based arbitration, or

testamentary arbitration has been held to be admissible.

269

Private law claims arising from restrictive trade practices and anti-trust,

270

as well as claims

against resolutions of shareholders in respect of limited liability companies are arbitrable.

271

Section 1030(2) ZPO further identifies disputes over the existence of a lease of residential

accommodation within Germany as non-arbitrable.

As far as employment disputes are concerned, those between employers and trade unions

are arbitrable in accordance with sections 101-110 of the German Labour Court Law. On

the other hand, individual labour disputes are not arbitrable.

272

Consumer arbitration: Section 1031(5) ZPO regulates consumer arbitration, which is

generally permissible and encompassed under the Arbitration Law provisions of the ZPO.

This provision requires that the agreement be concluded in a separate document, signed by

the consumer (including electronically), and containing no additional agreements not

relating to the arbitral proceedings This latter restriction does not apply to a notarized

document.

273

Failure to observe this statutory requirement invalidates the agreement and

the consumer is no longer obligated to submit to arbitral proceedings, even if the party

challenging the agreement is not the consumer.

274

The BGH has taken the view that the

reference to arbitration in standard terms contained in a contract between a domestic

consumer and a foreign stock broker violates the express dictates of section 1031(5)

ZPO.

275

Institutional versus ad hoc arbitration: Both forms of arbitration are allowed and

provided for in German law and practice. However, it seems that institutional arbitration is

by far the most prevalent form.

269

OLG Hamm (8 October 1990).

270

Lörcher (2009), at 369.

271

BGH judgment (6 April 2009), II ZR 255/08.

272

See Lörcher (2009), at 386.

273

Under s 13 of the German Civil Code (BGB) a consumer is defined as “a natural person who is concluding a legal transaction

(Rechtsgeschäft) for a purpose which can be regarded as outside his trade or self‐employed profession”.

274

D v C, case no II ZR 16/11, BGH judgment (19 May 2011).

275

Domestic consumer v Foreign broker, BGH judgment (25 January 2011).

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Policy Department C: Citizens' Rights and Constitutional Affairs

Agreement in writing: Section 1031 ZPO makes it clear that an arbitration agreement

must be made in writing and the provision generally follows the mould of the UNCITRAL

Model Law, including as regards bills of lading and incorporation by reference. Hard copy

agreements as well as electronic means of communication are acceptable as long as there

is a record of the agreement. Significantly, subsection 2 of section 1031 ZPO provides that

an agreement in writing is deemed to exist if in accordance with “common usage” the

arbitration clause is considered to be part of that document. Hence, oral agreements are

excluded from the ambit of the ZPO.

Arbitration agreement: Both the ZPO and the German courts have shown a profound

inclination to salvage arbitration where possible and not be held back by technicalities if the

parties’ intention was to submit future disputes to arbitration. OLG Berlin has held that in

case the arbitration institution designated in an arbitration agreement does not exist, the

arbitration agreement has to be interpreted using established principles of contract

interpretation, such as the history of the negotiations and the intent of the parties, to

determine the competent arbitration institution. The designation of a non-existing

arbitration institution does not, per se, impact the validity of the arbitration agreement.

276

Court assistance and intervention: The aim of the Arbitration Law is to assist the

parties as much as possible and refrain from judicial intervention. In this light the following

instances of assistance may be highlighted

Under section 1032(2) ZPO, prior to the constitution of the arbitral tribunal, an application

may be made to the court to determine whether or not arbitration is admissible. Under

section 1032 ZPO the courts are obliged to reject an action as inadmissible where such

action relates to a matter that is the subject of an arbitration agreement and where the

respondent raises an objection to the jurisdiction of the local courts prior to the hearing on

the merits.

Equally, under section 1033 ZPO, the parties may request the court to order interim

measures even before the constitution of the tribunal, without being deemed as violating

the arbitration agreement.

Under section 1034(2) ZPO, if the arbitration agreement grants preponderant rights to one

party with regard to the composition of the arbitral tribunal which place the other party at a

disadvantage, that other party may request the court to appoint the arbitrator or

arbitrators in deviation from the nomination made, or from the agreed nomination

procedure. This is a clear reference to the right to fair trial and party equality.

Under section 1035 ZPO the parties may approach the court in order to appoint one or

more arbitrators in case the parties are unable to agree on such appointment.

Under section 1037(3) ZPO the parties may challenge an arbitrator before a court if he has

not been removed following the exhaustion of all other (institutional) remedies at their

disposal.

Equally, under section 1038(1) ZPO, where the arbitrator is physically unable to act the

parties may approach the courts in order to have him or her removed and replaced.

276

OLG Berlin, judgment (3 September 2012); equally held by the BGH (Federal Supreme Court of Justice) in F v

G, case no III ZB 70/10, judgment (14 July 2011).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Under section 1040(3) ZPO, although the tribunal possesses the power to render a

determination on its jurisdiction, if one of the parties disagrees with the tribunal’s ruling, he

or she may request the courts for a final decision on the matter.

Under section 1050 ZPO, the arbitral tribunal or a party with the approval of the arbitral

tribunal may request from a court assistance in taking evidence or performance of other

judicial acts which the arbitral tribunal is not empowered to carry out. The arbitrators are

entitled to participate and ask questions.

Tribunal powers: Subject to the parties’ agreement and the powers of assistance granted

to the courts, tribunals have the powers provided in the UNCITRAL Model Law. This section

will illustrate some of these.

Under section 1040(1), tribunals possess full kompetenz-kompetenz to examine their

jurisdiction by examining the validity or existence of the arbitration clause. In accordance

with paragraph 3 of section 1040 the tribunal’s decision may be recorded in a preliminary

ruling, but it is equally open to the tribunal to decide the jurisdictional issue in its final

award on the merits, particularly where it considers that the objection to jurisdiction is a

mere tactical device to delay the proceedings. Under section 1042(4) ZPO the tribunal,

unless the parties agree otherwise, is free to assess and admit evidence.

In accordance with section 1046(2) ZPO, unless otherwise agreed by the parties, either

party may amend or supplement his claim or defence during the course of the arbitral

proceedings, unless the arbitral tribunal considers it inappropriate to allow such

amendment having regard to the delay in making it without sufficient justification.

Tribunal deciding ex aequo et bono and as amiable compositeur: This is specifically

permitted, subject to the parties’express agreement, under section 1051(3) ZPO.

Interim measures: These are permitted and as we have already seen the parties may

seek interim measures from the courts even prior to the constitution of the arbitral tribunal.

Once the tribunal has been constituted, any of the parties may request such measures,

which the tribunal is competent to order. This order is binding upon the parties but the

order itself is not automatically enforceable and in accordance with section 1041(2) ZPO

any of the parties may request the courts to render the tribunal’s order enforceable. The

OLG Frankfurt has held that interim relief is in exceptional circumstances possible even

when an award has been rendered (assuming that the challenging party is lawfully pursuing

set-aside proceedings), but the claim for relief cannot be tantamount to suspending the

application of the terms of the award.

277

Time limits: The ZPO does not impose a duty on the courts, unlike some other nations, to

invalidate or terminate the arbitral process if the tribunal has exceeded the time-limit for

rendering an award (if a limit has been agreed by the parties). The OLG Koblenz has held

that this is not a valid ground for non-enforcement of a foreign award, especially if the

challenging party failed to object when the time-limit had expired.

278

Multi-party arbitration and joinders: There is no relevant provision in the ZPO and

commentators generally suggest that if the parties are able to agree on joint arbitrators

and the proceedings are fair without any undue advantage to anyone of the parties, there

277

OLG Frankfurt, case SchH 6/13, judgment (13 June 2013).

278

OLG Koblenz, judgment (27 November 2012).

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Policy Department C: Citizens' Rights and Constitutional Affairs

is no reason why the courts (and the tribunal) should prohibit multi-party arbitrations. In

fact, this form of arbitration exists in the ICC and DIS institutional rules without any

reported problems.

279

In practice, the BGH has held that standard form arbitration clauses

(in the case at hand an agency agreement with a stock broker) conferring the right to

initiate or participate in arbitration to third parties must be interpreted restrictively.

280

Legal representation during arbitral proceedings: There are no limitations or

restrictions in the ZPO as to who may represent the parties in arbitral proceedings. As is

the case in all jurisdictions, any applications to the courts can only be submitted or

defended by registered lawyers.

Arbitrators’ qualifications: The ZPO does not place any limitations or restrictions as to

who may be appointed to undertake the functions of an arbitrator.

Although not strictly a qualification, under section 1036 ZPO (and section 16.3 DIS Rules),

members of the tribunal are required to be impartial and independent and disclose any

newly-arising or apparent circumstance giving rise to evident partiality.

Liability of arbitrators: The Arbitration Law does not mention anything about the possible

liability of arbitrators. Commentators suggest that the legal position of arbitrators is that of

someone under contract and that their liability is the same (mutatis mutandis) as that of

judges. As a result, they incur criminal liability for intentionally erroneous awards, as well

as for negligence under the general law of obligations for any failure to disclose acts that

would undermine their independence, if by doing so they cause harm to the parties.

Notarised documents: We have already seen that a consumer agreement submitting a

dispute to arbitration may be concluded through a notarised document. The assistance of

notaries is significant in German law. Under section 1053(4) ZPO, an award on agreed

terms may, upon agreement between the parties, also be declared enforceable by a notary

whose notarial office is in the district of the court competent for the declaration of

enforceability according to section 1062 subs. 1, no. 2.

Types of awards: We have already seen that orders or rulings of tribunals on preliminary

or interlocutory matters are to be dealt with in the form of preliminary orders, rather than

awards. The form of award is reserved for final awards on the merits, decisions on costs

(which may be rendered through a separate award),

281

or additional awards.

282

It is

assumed that the tribunal may render partial awards with respect to discrete claims of the

parties. With respect to awards on agreed terms, the OLG Munich has held that an arbitral

award on agreed terms need not identify the parties as would a state court judgment

caption or specifically indicate that the settlement constitutes a decision of the tribunal; the

identity of the parties must, however, be ascertainable without doubt if a declaration of

enforceability is to be issued pursuant to sections 1062(1) and 1064 ZPO.

Setting awards aside: The grounds for setting awards aside are laid down in section

1059(2) ZPO and they are similar to those listed in the relevant provision of the UNCITRAL

Model Law.

279

Lörcher (2009), at 377.

280

Case no XI ZR 168/08, judgment (8 February 2011).

281

Section 1057 ZPO.

282

Section 1058 ZPO.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Complaint on a point of law: This is a distinctive remedy and is regulated in accordance

with section 1065(1) ZPO, as follows:

A complaint on a point of law to the Federal Court of Justice (Bundesgerichtshof) is

available against the decisions mentioned under section 1062 (1)(2) and (4) [i.e.

appointment of arbitrator; admissibility of arbitration agreement and; setting aside or

decision on enforceability] if an appeal on points of law would have been available against

them, had they been delivered as a final judgment. No recourse against other decisions in

the proceedings specified in section 1062(1) may be made.

In accordance with paragraph 2 of section 1065 ZPO, the Court may only examine whether

the order is based on a violation of a treaty or of another statute.

2.13. Greece

Greece uses a dual system of regulating arbitration. On the one hand, the 1999 Law on

International Commercial Arbitration (LICA),

283

which is based on the UNCITRAL Model Law

(minus the 2006 amendments), applies to international arbitrations seated in Greece,

whereas on the other hand Articles 867-903 of the Code of Civil Procedure (CCP) regulated

all aspects of domestic arbitration. In equal measure, the CCP supplements the LICA in

several respects, namely in that Articles 918-919 discuss the modalities related to the

enforcement of awards (although the same issue is covered in LICA as regards the

substantive requirements for the enforcement of foreign award), as well as by providing a

more comprehensive commentary in cases where the LICA is silent.

284

Hence, the courts

may have recourse to relevant provisions (mutatis mutandis) if no solution is offered by the

LICA. Moreover, it should be stressed that another relevant source is the Introductory Law

to the CCP as well as several discrete laws dealing principally with investor-related matters

and under which a unique statute-based, mandatory form of arbitration is imposed, as is

the case with matters falling under the aegis of the regulatory authority for energy or in

respect of public private partnerships (PPPs). The Greek courts have been heavily engaged

with questions pertinent to arbitration and as a result a very rich jurisprudence on

arbitration has emerged.

Scope of application (international versus domestic): The LICA and specialised laws,

particularly where one of the parties is a foreign national or legal person, applies in respect

of international arbitration, whereas Articles 867-903 of the CCP apply to cases of domestic

arbitration. An arbitration is international under Article 1(2)(a) and (b) of LICA where the

place of business of the parties is in different states at the time of their agreement, or

where one of the following places is situated outside the state in which the parties have

their places of business:

1. the place of arbitration, when this is determined by the arbitration agreements, or

if its determination arises from the arbitration agreement;

2. 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.

283

Law 2735/1999.

284

Although exceptionally Arts 882(2) and 882A(1) of the CCP refer to international arbitration.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Exceptionally, where a party has multiple places of business, the appropriate one for the

purposes of arbitration will be considered that which is more closely connected to the

arbitration agreement. If the party has no place of business, this will be its habitual

residence and in the case of legal persons the place where they maintain an office.

285

Scope of application (commercial versus non-commercial): Disputes are not limited

to commercial ones and need not only be contractual in nature. This applies to both

domestic and international arbitration, save of course for the range of disputes that are not

amenable to arbitration.

The parties may submit to arbitration all disputes, whether contractual or not, thus

including tort

286

and unjust enrichment

287

as well as any relationships arising from

negotiations. Such broad arbitration clauses are permissible assuming the construction as

to whether they fall within the arbitration clause is determined with clarity.

Institutional and /or mandatory arbitration: Exceptionally, several investor and

infrastructure-related laws provide for institutional and/or mandatory arbitration.

Specifically, Article 37 of Law 4001/2011 provides for an amicable dispute-resolution and

arbitral procedure, if agreed by the parties, administered by the Regulatory Authority of

Energy (hereinafter “RAE”); Article 31 of Law 3943/2011 on combating tax evasion, which

sets up a body of tax arbitrator for the resolution of pertinent tax disputes; Article 31 of

Law 3389/2005 on Public Private Partnerships (“PPPs”) relating to agreements on the

interpretation and application of PPPs; and Article 12 of Law 2687/1953 on the Investment

and Protection of Foreign Capital.

Arbitrability: The general rule is that any dispute which the parties are free to dispose

may be submitted to arbitration. This excludes disputes of a family nature, as well as

labour disputes that are not of a purely commercial nature.

288

Disputes involving

bankruptcy and enforcement proceedings are equally excluded from arbitration.

289

Antitrust

disputes, according to the prevailing view, may be subject to arbitration, taken into account

the promotion of private enforcement of antitrust rules at a European level. Disputes

concerning harm to one’s personality are also excluded from arbitral proceedings.

290

The

arbitration of tax is possible under the terms of Law 3943/2011 on combating tax evasion

as well as under international investment agreements.

291

Agreement in writing: Article 7(4) of LICA specifically admits oral agreements and also

assumes the existence of an agreement where the parties have not claimed otherwise in

limine litis. However, Articles 7(3)-(5) of LICA, while encompassing all modern means of

communicating an arbitration agreement, seem to exclude email exchanges, although it is

suggested by commentators that a formal law is in the pipeline to amend this state of

affairs.

292

According to the Areios Pagos, the Supreme Court of Greece, in addition to the arbitration

agreement, equally the instrument authorising the agent to act for the principal must be in

285

Art 1(3) LICA.

286

Areios Pagos judgment 2004/2007.

287

Athens Appeals Court 1213/2006, 5522/2002, Athens Multi-Member First Instance Court 2953/2010.

288

Art 867 CCP excludes arbitration in respect of labour disputes in domestic arbitration, whereas Art 1(4) LICA

does not if they have a commercial nature.

289

Vassardanis (2012), at 19-20.

290

Areios Pagos judgment 2004/2007.

291

Supreme Special Court judgment 24/1993

292

Vassardanis (2012), at 15.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

writing;

293

although this rule does not (exceptionally) apply to a company’s board of

directors acting on behalf of the company.

According to Art. 168 (1) of the Greek Code of Private Maritime Law, the bill of lading

(which may include an arbitration clause) is signed by the master of the vessel, and

according to Art. 3 (3) of the Hague-Visby rules, the bill is signed by either the carrier or

the master of the vessel or the agent of the carrier. So the arbitration clause binds the

holder of the bill of lading, even though the latter does not bear his or her signature. Thus,

an exemption from the rule of agreement in writing (Art. 869 of the CCP) is established,

which is justified by the character of the bill of lading as a negotiable instrument. The

Areios Pagos has issued a judgment (883/1994) declaring void a clause of a bill of lading

excluding the jurisdiction of Greek courts, because it did not bear the shipper’s signature.

However, following the EC Regulation No 44/2001 of 22 December 2000 on jurisdiction and

the recognition and enforcement of judgments in civil and commercial matters (Article 23

(1)), it is now argued

294

by modern doctrine that the bill of lading (and its clauses) does not

bind only the carrier, but also the shipper, the consignee and all the following holders of the

bill, as this solution corresponds to the international practice known by the parties.

In accordance with Article 7(6) of LICA, an arbitration agreement is assumed to exist where

a bill of lading refers to a carriage of goods contract that contains an arbitration clause.

It is not necessary for an arbitration clause included in the general conditions of a contract

to specifically refer to the general conditions as this is the ordinary assumption based on

the parties’ agreement.

295

Third parties: The general rule is of course that agreements are only binding upon

signatories. Some notable exceptions do exist however. In the case of partnership

agreements referring to arbitration, the agreement does not bind only the original parties

but also those who subsequently become partners.

296

As mentioned before, a bill of lading

with an arbitration clause binds all the parties as well.

Although neither LICA nor the courts have validated or specifically rejected the group of

companies’ doctrine, there has been at least one judgment which held that an arbitration

agreement entered into by a company binds the company’s shareholders.

297

But one should

not take this too far in the absence of any firm evidence, particularly new case law.

Public policy: Public policy under Greek law is much more fluid than in many other

European jurisdictions. Article 33 of the Greek Civil Code defines public policy as anything

that is contrary to good morals or, in general, to the public order. Hence, public order may

be viewed differently from one period in time to another and its assessment is based on the

judges’ common sense and other personal experience. It is thought by commentators that

Article 33 refers to international public order.

298

This is because the provision on the setting

aside of arbitral awards lists as a ground a violation of a rule of international public policy,

referring to Article 33. However, there have been other judgments which seem to exclude

the “good morals” dimension of public policy, limiting it only to all mandatory rules enacted

in the general interest.

299

293

Areios Pagos judgment 88/1977.

294

Kiantou-Pampouki (2007), at p. 595 et seq. (603).

295

Athens Court of Appeal 7195/2007.

296

Areios Pagos judgment 842/2008.

297

Athens Appeals Court 6815/1994.

298

Vassardanis (2012), at 48.

299

Athens Appeals Court judgment 8445/2005

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Policy Department C: Citizens' Rights and Constitutional Affairs

The requirements under Article 49 of the Introductory Law to the CCP regarding the

formalities for state entities to enter into arbitration agreements are of a domestic public

policy nature and do not limit the competence of the state in entering into international

agreements.

300

The Areios Pagos has determined that excessive (disproportionate) arbitral costs are an

affront to public policy.

301

State entities: Article 49 of the Introductory Law to the CCP provides that the state (and

its instrumentalities) may enter into written arbitration agreements following approval by

the pertinent ministers. These limitations are not relevant as concerns agreements with

non-Greek actors in accordance with investment-related legislation.

302

Ad hoc versus institutional arbitration: Institutional arbitration and ad hoc arbitration

are both acceptable under Greek law. Article 902 restricts the setting up of arbitral

institutions to chambers of commerce, stock exchanges and other professional unions of a

public law nature under the form of a ministerial decree.

Multi-party arbitration and joinders: This is not mentioned in LICA or the CCP but is

generally unproblematic as long as it is predicated on the parties’ consent and provided

that in each case the principle of equality is respected, which includes the right of each

party to appoint its chosen arbitrator.

Powers of tribunals: If the parties’ agreement may be so interpreted, arbitrators are free

to determine additional or incidental requests that are directly related to and which are

dependent on the subject-matter of the dispute.

303

Arbitrators are allowed to adapt contracts to fundamentally changed circumstances.

304

Tribunals acting ex aequo et bono: This is indeed possible and if the parties have asked

the tribunal (without any further stipulations) to decide whether there has been

consideration under the contract there is an assumption that it will assess this on the basis

of equity.

305

Disclosure: In domestic arbitration it is suggested by commentators that there is no duty

of disclosure.

306

In contrast, in accordance with Article 12 of LICA there is an express duty

of disclosure in the course of international arbitration.

Court assistance and intervention: The general idea is that arbitral tribunals do not

possess authority to take action requiring any kind of enforcement and hence all relevant

procedures are undertaken by the courts as a matter of assistance to the tribunal. Under

Article 8(1) the parties may apply to the court to determine the validity of the arbitration

agreement with a view to finding out if jurisdiction exists in the first place.

300

Areios Pagos judgment 565/1965.

301

Areios Pagos judgment 1829/2006.

302

E.g. Law 2687/1953 on the Investment and Protection of Foreign Capital.

303

Areios Pagos judgment 445/2002.

304

Art 288 and 388 of the Greek Civil Code.

305

Athens Appeals Court judgment 4966/1975.

306

Vassardanis (2012), at 28.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Under Article 887(2) of the CCP although the tribunal may rule on its own jurisdiction

(kompetenz-kompetenz) the parties may mutually decide that the best forum for assessing

this matter is the courts. Hence, it seems that arbitral tribunals seated in Greece do not

possess kompetenz-kompetenz power as a matter of inherent right.

Under Article 11(4) of LICA if the period for the appointment of arbitrators elapses the

parties may approach the courts and request the court to make the appointment.

If the parties decide to petition the courts to disqualify an arbitrator the judgment rendered

by the court is not subject to further appeal.

307

Under Article 27 of LICA, given that the tribunal does not possess the authority to compel

witnesses to testify or take evidence in any other manner, the parties and the tribunal may

request the court’s assistance in this regard.

Interim and conservatory measures: In accordance with Article 889 CCP the arbitral

tribunal in domestic arbitrations does not have the power to order or modify interim

measures. These have to be requested from the courts. In the context of international

arbitration, although the tribunal possesses the authority to order both interim

308

and

conservatory measures,

309

it does not have the power to enforce these itself and in order to

do so the parties or the tribunal must make a request to the courts.

310

Arbitrators’ qualifications: Article 11(1) of LICA confirms the position that there are no

restrictions to anyone assuming the function of arbitrator and no discrimination is made

between Greek and other nationals. Judges are allowed to serve as arbitrators.

311

Party autonomy and appointment of arbitrators: The parties are not only free to

appoint the arbitrators of their choice, but they can also choose to appoint any number,

even or odd.

312

An award rendered by a single arbitrator, although the parties had

originally agreed to two arbitrators but one of the parties failed to appoint its arbitrator is

considered a valid award under Greek law.

313

Liability of arbitrators: Just like all arbitration statutes predicated on the UNCITRAL

Model Law, the LICA is silent as to the liability of arbitrators. However, Article 881 of the

CCP is applicable mutatis mutandis. It provides that arbitrators are liable for fraud or gross

negligence as well as for abandoning their office without authorisation from the parties.

This liability is not contractual but of a tort nature because it requires evidence of harm to

the parties. Under Article 237 of the Greek Penal Code they are also criminally liable if

found to have accepted a bribe or in any other way implicated in a corrupt conduct related

to the proceedings.

Legal representation in arbitral proceedings: There are equally no restrictions under

Greek law as regards the representation of the parties. The parties may represent

themselves or appoint any other person of their choice, whether a lawyer or otherwise.

307

Art 13(3) LICA.

308

Art 17 LICA.

309

Art 9 LICA.

310

Art 17(2) LICA.

311

See 871A of the CCP in this regard.

312

Vassardanis (2012), at 28.

313

Areios Pagos judgment 329/1977.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Award types: It is suggested by commentators that tribunals can only render final awards

and that all other rulings related to interim issues (such as those dealing with jurisdiction)

will not be enforced as awards.

314

There is no provision in the LICA or the CCP on additional

awards.

Setting awards aside: The grounds set out in Article 34(2) of LICA are identical to those

in the UNCITRAL Model Law, save for the fact that in respect of public policy, it is not Greek

public policy that is at stake but “international public policy”. A violation of public policy

suffices to set an award aside.

A violation of the parties’ right to equal treatment by the tribunal is sufficient reason to set

the award aside.

315

The Areios Pagos has held that an award may be set aside if the arbitrator failed to hold

oral hearings.

316

Obviously, if the parties had agreed that no oral hearings should take

place then the tribunal would be exceeding its power if it were to conduct an oral hearing.

A mistaken assessment of the evidence by the arbitrators is not a valid ground for setting

an award aside.

317

Appeals against awards: Unless otherwise agreed by the parties, no appeals against

awards are possible

318

(save for setting aside proceedings).

Fees and costs: In both domestic and international arbitration, the losing party must in

principle pay the fees and costs of the arbitrators. However, the arbitral tribunal may

decide on a different allocation of the costs and fees between the parties, including the

parties' legal costs, having regard to the circumstances of the case and especially the

outcome of the arbitration.

319

2.14. Hungary

Arbitration in Hungary is governed by the 1994 Arbitration Act,

320

which has been modelled

on the UNCITRAL Model Law, with only slight variations and divergences. The 1979 Decree

on Private International Law

321

has very limited application to international arbitrations,

namely with respect to applicable law in situations where the parties have not made a

choice and are unable to agree on one once arbitral proceedings have begun. Specialised

laws apply in certain cases (these will be considered in other sections) as well as the

country’s Code of Civil Procedure (CCP) is used to supplement the Arbitration Act.

Traditionally, especially before Hungary’s communist transformation, there was a strong

culture of arbitration, which has once again been revived. Although the courts are receptive

to the use of arbitration and their role and function within this process, some of the older

generation judges, or those not fully exposed to international arbitral culture, remain

somewhat apprehensive.

314

Vassardanis (2012), at 37-38.

315

Areios Pagos judgment 511/2007

316

Areios Pagos judgment 112/1982.

317

Areios Pagos judgment 1273/2003

318

Art 35(1) LICA and Art 895 CCP.

319

Art 32(4) LICA.

320

Act No LXXI of 1994 on Arbitration.

321

Decree No 13 of 1979 on Private International Law.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Scope of application (international versus domestic): Although the Arbitration Act is

modelled on the Model Law, which by its terms only applies to international arbitrations,

Article 1 of the Act specifies that its application extends to all arbitral proceedings seated in

Hungary. Articles 1 to 45 apply to domestic arbitrations and Articles 46 onwards to

international arbitrations. The wording of Article 1 is, however, confusing because

international arbitrations may be seated in Hungary and it is only when one reaches Article

46 (chapter VI) that one realises that international arbitrations are subject to a different

regime. However, the law specifically applicable to international arbitrations is not detailed

and it is assumed that where this is silent on a particular issue the rules applicable to

domestic arbitrations will apply mutatis mutandis.

In accordance with Article 47(1) and (2) of the Arbitration Act an arbitration is considered

international if: a) the parties to an arbitration agreement have their seat, or failing a seat,

their places of business in different states, or: b) one of the following places is situated

outside the state in which the parties have their seat (place of business), namely the place

of arbitration as determined in the arbitration agreement or any place where a substantial

part of the obligations originating from the legal relationship of the parties is to be

performed, or with which the subject-matter of the dispute is most closely connected.

Moreover, if a party has more than one place of business, the place of business which has

the closest relationship to the arbitration agreement will be considered. Alternatively, if the

party has no place of business, its habitual residence will be considered as its place of

business.

Scope of application (commercial versus non-commercial): Article 3(1)(a) stipulates

that arbitration may take place “if at least one of the parties is a person dealing

professionally with an economic activity and the legal disputes is in connection with this

activity”. This clearly excludes non-commercial activities, but given that the relationship

between the disputing parties need not only be of a contractual character, the scope of

what constitutes a commercial activity is especially broad.

Consumer disputes: As a result of the above construction of Article 3(1)(a) of the

Arbitration Act it seems prima facie plausible to assume that B2B and B2C consumer

disputes may be submitted to arbitration. Hungarian law has set up arbitration boards but

these do not administer arbitral proceedings in the manner familiar to arbitration or that

regulated under the Arbitration Act. Rather, they are set up by chambers of commerce and

are meant to reconcile the parties. It is a prerequisite that the consumer has made an

effort to settle the dispute with the business amicably, even if through an exchange of

emails. Access to the arbitral panels does not require a contract or other agreement

containing an arbitration clause.

Institutional versus ad hoc arbitration: Both forms of arbitration are allowed in

Hungary and Article 2(1) of the Arbitration Act stipulates that arbitral institutions can only

be set up by chambers of commerce, whether jointly or individually. As a result, until

recently there were only two institutions, namely the Hungarian Chamber of Commerce and

Industry (HCCI) and the Hungarian Chamber of Agriculture. The latter, however, cannot

not undertake cases concerning international arbitration and in accordance with Article

46(3) of the Arbitration Act only the HCCI can host international arbitral proceedings.

Exceptionally, Hungarian law distinguishes between general cases and some specialised

cases of arbitration. Hence, it has set up the Court of Arbitration of the Stock Exchange and

the Commodity Exchange under Law No. XXXIX of 1994 on the Commodities Exchange and

Transactions of the Commodities Exchange and Law No. CXI of 1996 on the Offering of

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Policy Department C: Citizens' Rights and Constitutional Affairs

Securities and Investment Services and on the Stock Exchange. The purpose is to

administer specialised arbitration with respect to any transaction related to stocks and

commodities.

322

There are now other arbitral institutions, other than the HCCI, that can

administer specialised arbitrations in the fields of sports and energy disputes.

Arbitrability: The general rule is found in Article 3(1)(b), which provides that a dispute is

arbitrable if the parties can dispose of the subject matter of the proceedings. There are

certain areas that are not arbitrable and these will be discussed in this section. Given that

only commercial-related disputes are arbitrable, this naturally excludes all family, criminal

law and labour disputes. This exclusion is also codified in chapters XV to XXIII of the CCP.

In accordance with Article 202(3) of the 1996 Act on the Offering of Securities all relevant

disputes are arbitrable, namely securities and investment services; exchange transactions;

broker appointments; disputes over the charter or fundament rules of exchange and;

disputes over the statutes, rules and practices of a clearing house.

The civil law dimensions of disputes relating to intellectual property rights and anti-trust

may lawfully be submitted to arbitration by the parties.

323

This is not the case with

bankruptcy-related disputes, which may only be handled by the courts.

324

Public Policy: Public policy is not in practice applied in Hungary in order to frustrate

foreign awards. Although not strictly defined, it would seem that it is confined to conformity

with Hungarian law and does not encompass abstract constructions such as public morality.

However, if the award violates public policy (in the sense described above) the courts may

set the award aside

325

or otherwise refuse to enforce and execute a foreign award.

326

should be emphasised that the Supreme Court has held in one particular case that an

award is contrary to Hungarian public policy if it is found to endanger the fundamental

socio-economic and political institutions of the country.

327

Agreement in writing: This does not differ from the UNCITRAL Model Law and Article

5(3) of the Arbitration Act implicitly stipulates that oral agreements do not qualify as

agreements in writing because they are not capable of offering a permanent record of the

parties’ intention. However, reference to a document containing an arbitration clause in a

contract concluded in writing will qualify as arbitration agreement with the proviso that the

reference forms part of the contract.

328

Equally, it shall also be regarded as an arbitration

agreement concluded in writing, if one of the parties states in his statement of claim, and

the other party does not deny in his defence, that an arbitration agreement was in fact

concluded between them.

329

State entities: Nothing in Hungarian law or the Arbitration Act excludes state entities from

entering into arbitration clauses. However, problems could arise if a private party pursues

arbitration against a Hungarian state entity in Hungary as the latter may claim immunity. It

is therefore recommended that relevant arbitration clauses stipulate a seat other than

Hungary.

322

Art 62 of the Exchange Commodities Act.

323

Szasz & Horvath (2000).

324

Szasz & Horvath (2000).

325

Art 55(2)(b).

326

Art 59(b).

327

Published in Official Gazzette (BH) no 489 (1997). Cited in Szasz & Horvath (2000), at 27.

328

Art 5(5) Arbitration Act.

329

Art 5(4) Arbitration Act.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Multi-party arbitration: There are no pertinent rules for multi-party arbitrations or

joinders under the Arbitration Act, but unless a joinder affects the parties’ right to equality

or is against their will, it will be considered null and void.

Legal representation during arbitral proceedings: There are no requirements similar

to the qualifications for arbitrators in respect of the parties’ representation. This may be

undertaken by anyone, including non-Hungarian admitted lawyers. However, it is implicitly

assumed that a power of attorney is required in every case.

Tribunal Powers: Arbitrators are not allowed to fill gaps in the contract, unless the parties

otherwise consent. However, they do possess the power to adapt a contract to

fundamentally changed circumstances if the situation arises.

330

Tribunal acting ex aequo et bono: This is indeed possible if specifically requested by the

parties in accordance with Article 49(3) of the Arbitration Act.

Arbitrators’ qualifications: Although there are no general restrictions as to who may

become an arbitrator, Article 12 lays down several limitations which are not generally

encountered in other arbitration statutes in Europe. More specifically, the following persons

are not eligible for appointment as arbitrators:

(a) those who have been barred from public affairs by a non-appealable court judgment

(b) those who have been placed under curatorship by the court [and to which decision no

further appeal is possible];

appeal being possible], until they are dispensed from the disadvantages attached to a

criminal record.

Moreover, in accordance with Article 6(2)(d) of Act No LXVII of 1997 on the Status of

Judges provides that Hungarian state court judges may not act as arbitrators. Finally, the

rules of the HCCI (otherwise known as the Budapest rules) stipulate that arbitrators must

possess the requisite expertise related to each particular case and therefore this adds a

further layer of limitation.

331

Liability of arbitrators: There are no provisions regarding the liability of arbitrators in the

Arbitration Act or in other parts of Hungarian legislation. It is suggested by commentators

that the general rules of liability apply to arbitrators, namely Article 339 of the Hungarian

Civil Code which is predicated on the continental civil law tradition of tort liability, whereby

a person is liable to another where his unlawful conduct produces harm.

332

If this is the

only source of liability it follows that contractual liability is not recognised for arbitrators,

but of course this tells us nothing as to whether the same rule applies where one of the

parties claims that the award harms his interests. Logic dictates that this is not the case,

hence, liability arises where the conduct in question is wilful or the result of gross

negligence. Contractual liability, in addition to liability from tort, may arise in the opinion of

this author under the terms of Article 11 to the Arbitration Act which binds arbitrators to

full secrecy as to the proceedings.

Court assistance and intervention: The general rule under Article 7 of the Arbitration

Act is that the courts will not intervene in arbitral proceedings, unless this is warranted by

330

Szasz & Horvath (2000), at 9.

331

Szasz & Horvath (2000), at 10-11.

332

Szasz & Horvath (2000), at 13.

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Policy Department C: Citizens' Rights and Constitutional Affairs

the parties and the request or petition is allowed under the law. There is no equivalent

provision in Articles 45ff relating to international arbitrations.

Under Article 20 of the Arbitration Act, although challenges against arbitrators are to be

first determined by the tribunal, failing a satisfactory outcome, the aggrieved party may

petition the local courts which must render a final judgment on the issue at hand.

In accordance with Article 37(3) of the Arbitration Act, given that the tribunal has no

coercive powers to compel witness to appear or to order the production of evidence (or

indeed to compel experts), requests of this nature may be undertaken through the local

courts.

Under Article 54 of the Arbitration Act no appeal may be lodged to the courts in relation to

the award (i.e. as to the merits or the correct application of the law).

Interim and conservatory measures: Arbitral tribunals may order interim measures of

protection in order to safeguard assets or evidence in accordance with Article 37(1) and (2)

of the Arbitration Act. Given that tribunals do not possess coercive powers and where the

costs are likely to be disproportionately high, Article 37(3) provides that all action relevant

to interim measures may be undertaken by the courts following a request from the tribunal.

Tribunals do not possess the power to order conservatory attachments, although

commentators suggest that the power to grant interim measures under Article 37

encompasses the power to order pre-award attachments.

333

Setting awards aside: The grounds set out in Article 55 of the Arbitration Act with regard

to setting aside of awards rendered in Hungary are the same as those listed in the

UNCITRAL Model Law. However, it should be pointed out that the Hungarian Act does not

provide for the possibility that the court remit the award to the tribunal in order to

eliminate (or remedy), if at all possible the grounds for setting aside.

334

In accordance with

Articles 13(1)-(2) of the Arbitration Act the number must always be odd. If the parties go

ahead with proceedings where the number of arbitrators is even, such an award may

validly be set aside by the courts in accordance with Article 55 of the Arbitration Act.

Award types: There are no restrictions in the Arbitration Act as to the form of a ruling

made by tribunals. Hence, an award need not only concern the final award on the merits of

the dispute, but all interim rulings on interlocutory matters may also take the form of

awards and produce appropriate res judicata. This includes additional awards under Article

43 of the Arbitration Act.

Costs and fees: The Arbitration Act does not state how the fees and costs are to be

calculated with Article 41(1) simply stating that the final award must address costs and

fees. It is assumed that a particular practice exists in Hungarian legal culture and that in

any event the matter is to be resolved in accordance with the HCCI (Budapest) rules or any

other rules chosen by the parties. Commentators suggest that usually, the losing party has

to pay the total amount of the arbitrators’ fees and the costs of the arbitration, including

the reasonable expenses of legal representation. Article 6 of the Regulation on the

Arbitration Fees, Costs and Expenses of the Parties of the Budapest Rules allows, however,

for the tribunal to apportion the costs between the parties, if it deems it justified.

335

333

Szasz & Horvath (2000), at 16.

334

Art 34(4) UNCITRAL Model Law.

335

Szasz & Horvath (2000), at 22.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

2.15. Ireland

Ireland’s current arbitration legislation came into existence in 2010 through the country’s

Arbitration Act.

336

Not only is it based on the 2006 version of the UNCITRAL Model Law but

the Model Law itself becomes an integral part of Irish law. In accordance with section 6 of

the Act, the Model Law has the force of law in Ireland and under section 8(1) and (2) when

applying the Act and the Model Law, Irish courts should base their interpretation on the

travaux preparatoires of the Model Law. This is exceptional even by European standards

and certainly demonstrates Ireland’s conviction as to the universal nature of the principles

enshrined in the Model Law. Despite the fact that the Model Law has been adopted virtually

unchanged, several alterations and additions have been inserted in the Arbitration Act. It

should also be noted that the attitude of Irish courts to arbitration is equally liberal and

international in outlook. In Barnmore Demolition and Civil Engineering Ltd v Alandale

Logistics Ltd and Others,

337

the High Court, in determining the appropriate standard of

review as to the existence of an arbitration agreement made use of well-known

international academic literature.

338

Scope of application (international versus domestic): Articles 2(1) and 6 of the Act

make clear that the Act encompasses both international and domestic arbitrations. The Act

does not, however, define when an arbitration is domestic and when it is international.

339

Given that the Model Law has the force of law any definition therein will be authoritative,

albeit the distinction seems moot if the legislature has not distinguished between the two in

terms of legal effects. As a result, it seems fair to argue that all arbitrations seated in

Ireland, whether domestic or international, shall be treated in the same manner and under

the same rules in the Act.

Scope of application (commercial versus non-commercial): The Act does not mention

whether its application extends to both commercial and non-commercial activities. It must

be assumed that because the Act follows the Model Law and since the latter encompasses

only commercial relationships, this is also the case with the Irish Act.

Consumer disputes: Article 31(1) of the Arbitration Act follows the relevant ECJ rulings

and specifies that arbitration clauses in contracts are void and that a submission agreement

is valid only if entered into after a dispute arose and provided that it has been individually

negotiated. There is an additional requirement that the monetary value of the dispute must

exceed €5,000 in order to be considered for arbitration. In order to avoid any ambiguities,

Article 2(1) of the Arbitration Act clarifies that “consumer means a natural person, whether

in the state or not, who is acting for purposes outside the person's trade, business or

profession”. There is an additional clarification in Article 31(2) which stipulates that the

term “consumer” shall not include “an amateur sportsperson who, in his or her capacity as

such, is a party to an arbitration agreement that contains a term concerning the

requirement to submit to arbitration”.

With respect to fees and costs, Article 21(6) of the Arbitration Act further stipulates that:

336

Act No 1 (2010). Importantly, however, while the 2010 Act overwhelmingly governs arbitration in Ireland, it

does not have retroactive effect, and so there remain cases covered by the 1954-1998 Acts.

337

Barnmore Demolition and Civil Engineering Ltd v Alandale Logistics Ltd and Others, case no 2010/5910P,

judgment (11 November 2010).

338

However, the court ultimately made no decision on this point.

339

Although at Article 2(1)(b) the Act does define a domestic arbitration as any arbitration that is not an

international commercial arbitration;

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Policy Department C: Citizens' Rights and Constitutional Affairs

“Without prejudice to the generality of the European Communities (Unfair Terms in

Consumer Contracts) Regulations 1995 and 2000, an arbitration agreement–

(a) to which one of the parties to the agreement is a consumer, and

(b) a term of which provides that each party shall bear his or her own costs, shall be

deemed to be an unfair term for the purposes of those Regulations.”

Institutional versus ad hoc arbitration: Traditionally, where arbitration was used in

Ireland the parties preferred ad hoc arbitration. With the exception of construction

disputes, when an institution is used the preference continues to be for foreign arbitration

institutions, particularly the ICC.

Agreement in writing: Article 2 of the Arbitration Act provides that what constitutes an

agreement in writing shall be determined on the basis of option I of Article 7 of the

UNCITRAL Model Law. As a result, the existence of an agreement in writing under Irish law

is deemed to be considerably wide, encompassing agreements recorded in any form,

whether oral, by conduct, incorporation in standard conditions

340

or other (e.g. tacit

approval of other party’s submission). Naturally, it also encompasses electronic forms of

communication as long as there is a record of these.

Arbitrability: The Arbitration Act does not make reference to the usual disclaimer whereby

any dispute that is susceptible to settlement by the parties may be submitted to

arbitration. Rather, it offers no general rule whatsoever but simply states the available

exceptions to arbitrability. Article 30(1)(a) of the Arbitration Act specifically excludes labour

disputes relating to the terms or conditions of employment or the remuneration of

employees whether in the private or public sector. Subparagraph (b) equally excludes

disputes under Article 70 of the country’s 1946 Industrial Relations Act.

The wording of Article 20 of the Arbitration Act strongly suggests that although disputes

relating to the demand of specific performance by one of the parties are arbitrable, this is

no so in respect of requests for performance in respect of contracts for the sale of land.

However, it is not clear whether all other issues (if any) emanating from a contract for the

sale of land are arbitrable as Article 20 only refers to requests for performance.

We have already discussed the limited arbitrability of consumer disputes so we will avoid

referring to this in the present section.

Article 27(1) of the Arbitration Act provides significant latitude to the trustee or assignee of

a bankrupt estate in honouring pre-existing arbitration clauses. Paragraph 2 further

provides that where:

(a) a person who has been adjudicated bankrupt had, before the commencement of

the bankruptcy, become a party to an arbitration agreement, and

(b) any matter to which the agreement applies requires to be determined in

connection with or for the purposes of the bankruptcy proceedings, and

then, any other party to the agreement or the assignee or, with the consent of the

committee of inspection, the trustee in bankruptcy, may apply to the court having

jurisdiction in the bankruptcy proceedings for an order directing that the matter in question

shall be referred to arbitration in accordance with the agreement and that court may, if it is

340

In Kastrup Trae-Aluvinduet A/S (Denmark) v Aluwood Concepts Ltd (Ireland), case no 129 MCA, High Court

judgment (13 November 2009), it was held that an arbitration agreement had been validly incorporated into the

contract between the parties by reference to standard conditions and that it was irrelevant that the other party did

not have a copy of the conditions to which the contract referred (citing Credit Suisse Financial Products v Societe

General d’ Enterprises, [1997] ILPT 165 (CA).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

of the opinion that having regard to all the circumstances of the case, the matter ought to

be determined by arbitration, make an order accordingly.

Public policy: Public policy is relevant to the enforcement of foreign awards as well as in

respect of set aside proceedings for awards rendered in Ireland. The Arbitration Act makes

no reference to public policy and as a result it is suggested that this is to be very narrowly

construed. In Brostrom Tankers AB v Factorias Vulcano SA the High Court confirmed this

narrow construction of public policy, noting that its application would be justified if it

involved “some element of illegality, or that the enforcement of the award would be clearly

injurious to the public good, or possibly that enforcement would be wholly offensive to the

ordinary responsible and fully informed member of the public”.

341

This statement

demonstrates that Irish courts are willing to rely on rules of international public policy. In

the same judgment, however, the High Court also held that an award will be refused on

grounds of public policy if it is found to violate “the most basic notions of morality and

justice”. This is not a narrow construction of public policy as it is dependent on abstract

determinations by the courts and is reminiscent of the Greek definition.

Multi-party arbitration and joinders: Article 16 of the Arbitration Act allows a tribunal to

join one or more cases into consolidated proceedings, but only if the parties so agree.

Arbitrators’ qualifications: There are no requirements in the Arbitration Act and hence

there are no formal restrictions. Commentators suggest, however, that in Ireland

arbitrators are overwhelmingly professional people, often lawyers, whether or not they

have specific qualifications relating to arbitration.

Default number of arbitrators: Exceptionally, in accordance with Article 13 of the

Arbitration Act the default number of arbitrators in case the parties are in disagreement is

one.

Liability of Arbitrators: Unlike many European statutes (or applicable civil law legislation)

Article 22 of the Arbitration Act introduces absolute immunity for arbitrators and their

appointing arbitral institutions, codifying with respect to arbitrators preceding caselaw.

342

The same level of absolute immunity applies to all employees, advisors and agents of

arbitrators in accordance with paragraph 2 of Article 22. This may prove a significant

incentive for international arbitrations to be held in Ireland.

Legal representation in proceedings: There are no restrictions as to who can represent

a party during arbitral proceedings. As a result, this may be undertaken by non-lawyers,

although in practice it is unlikely that anyone other than a lawyer, whether barrister or

solicitor, will represent the parties.

Court assistance and intervention: In Barnmore Demolition and Civil Engineering Ltd v

Alandale Logistics Ltd and Others the High Court pondered about the standard of review

required in assessing the existence of an arbitration agreement, namely whether there

should be a prima facie review or a fuller judicial consideration. The High Court looked at

various authorities but ultimately did not state which was applicable because under the

facts of the case there was clearly no arbitration agreement. Commentators suggest that

341

Brostrom Tankers AB v Factorias Vulcano SA, High Court judgment (19 May 2004).

342

Patrick Redahan v Minister for Education and Science, High Court judgement (2005).

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Policy Department C: Citizens' Rights and Constitutional Affairs

the court’s reasoning suggests that in future cases it is more likely to apply a full judicial

review.

343

No appeals to the High Court are permitted when the latter, in the absence of any

agreement between the parties, appoints arbitrators.

Where a challenge against an arbitrator has taken place and the arbitrator does not remove

himself from office the parties may, in accordance with Article 14 of the UNCITRAL Model

Law, request the High Court to do so. The Arbitration Act is silent on this matter and so

reference may be had to the relevant provisions in the UNCITRAL Model Law.

Powers of tribunals: In accordance with Article 14 of the Arbitration Act, and contrary to

the laws of other European nations, tribunals seated in Ireland may administer oaths and

swear witnesses and experts in relation to the arbitral proceedings. This means, of course,

that where a witness is found to have intentionally provided false information he or she

may suffer some form of liability (tort, or criminal) as a result. There have, however, been

no reported cases of this being done in at least the past 50 years.

Interestingly, under Article 15 of the Act, a foreign tribunal can request assistance in the

taking of evidence situated in Ireland. This is not a reference to a floating arbitration but

rather concerns arbitrations seated abroad where crucial evidence and witnesses are in

Ireland. The unique nature of this provision is that a foreign tribunal may petition the High

Court directly without an intervention by the courts of the lex arbitri.

Tribunals acting as amiable compositeurs: There is no specific provision in the Act

dealing with whether tribunals may act as amiable compositeurs or ex aequo et bono. As a

result, Article 28(3) of the UNCITRAL Model Law is applicable.

Interim and conservatory measures: There is no reference to interim measures in the

Arbitration Act and as a result Article 17 of UNCITRAL Model Law is directly applicable. The

parties may request the tribunal as well as the local courts, in this case the High Court. As

regards conservatory measures, it is generally accepted that the tribunal does not possess

power to make orders of restraint to a party with respect to that party’s assets.

344

Confidentiality: There is no reference in the Arbitration Act to confidentiality and hence

any relevant provisions of the Model Law are directly applicable. In general terms, the

confidentiality of the proceedings will often have been agreed beforehand by contract and

hence the parties will be under an obligation to respect this. However, just like all other

legal systems, where the parties or the tribunal request assistance or intervention by the

courts such proceedings will be public unless under exceptional circumstances the court

orders some degree of confidentiality because of other overriding interests. It should also

be noted, however, that while English law and caselaw are not binding in Ireland they are

often followed by Irish courts. This tradition increases the likelihood that Irish courts will

ultimately imply a duty of confidentiality in arbitration, as has been done by English courts.

Types of awards: There is no reference in the Arbitration Act to what form orders of the

tribunal may take. Again, this issue may be resolved in accordance with the relevant

provision of the UNCITRAL Model Law and given that no restrictions are put forward it is

fair to say that the tribunal may present interim orders as awards. In fact, Article 23 of the

Arbitration Act makes it clear that tribunals may make partial orders in the guise of awards.

343

Reichert & Carey (2011), at 15-16.

344

Reichert & Carey (2011), at 25.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

This means that they are subject to enforcement (and res judicata) in the same manner as

final awards and that equally they may become the subject of set aside proceedings.

Setting awards aside: This is not stipulated in the Arbitration Act and hence the grounds

for setting awards aside are those listed in Article 34(2) of the UNCITRAL Model Law. As

has already been stated in respect of public policy, all the grounds listed in the Model Law

are to be construed narrowly. In a case concerning claims of excess authority by the

tribunal it was held by the High Court that this ground should not be used in order to

second-guess the decision of the arbitrator.

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Fees and costs: The general rule seems to be that enshrined in Article 21(2) of the

Arbitration Act, according to which, unless the parties have otherwise specified, “an

agreement of the parties to arbitrate subject to the rules of an arbitral institution shall be

deemed to be an agreement to abide by the rules of that institution as to the costs of the

arbitration.”

In the case of domestic arbitrations, “the arbitral tribunal shall, on the request of any of the

parties to the proceedings made not later than 21 working days after the determination by

the tribunal in relation to costs, make an order for the taxation of costs of the arbitration by

a Taxing Master of the High Court, or as the case may be, the County Registrar; and the

Taxing Master, or as the case may be, the County Registrar, shall in relation to any such

taxation, have (with any necessary modifications) all the functions for the time being

conferred on him or her under any enactment or in any rules of court in relation to the

taxation of costs to be paid by one party to another in proceedings before a court.” The

taxing master therefore has the duty of assessing the quantum of legal costs. This process

is not relevant in the context of international arbitrations as the assessment is made by the

parties or the tribunal.

2.16. Italy

The most recent arbitration legislation in Italy was adopted in 2006 by Legislative Decree

No 40 (Arbitration Law), which was preceded by Law no 80/2005 by which the Parliament

delegated to the government the responsibility for amending existing arbitration law. The

Arbitration Law does not exist as a discrete legislative instrument but was incorporated in

the Italian Code of Civil Procedure (CCP) and more specifically it amended, where relevant,

the CCP’s existing provisions in Book Four thereto, Articles 806ff. The Arbitration Law was

not based on the UNCITRAL Model Law, although naturally it is not too far removed from it

and the requirements regarding the enforcement of foreign awards are modelled, almost

verbatim, on the New York Convention. It should be added that in addition to the CCP, a

recent Italian statute, namely Legislative Decree 5/2003, introduced a lex specialis

arbitration regime in respect of unlisted companies that have designated arbitration their

preferred mode of intra-se dispute resolution. Given that the CCP leaves some issues open,

particularly arbitrability, it is likely that other statutory provisions may in fact be claimed by

the parties, and upheld by the courts, as being relevant to arbitral proceedings which at the

time of writing are not obvious.

Scope of application (international versus domestic): Prior to the current

amendments, the CCP distinguished between domestic and international arbitrations. The

existing version of the CCP, following the 2006 amendments, eliminates this distinction

altogether and instead distinguishes between rituale and irrituale proceedings. This is

345

Sam Snowdy, Tom Snowdy, Fergal Browne and Paul Browne v David Mavroudis, case no 54 MCA, High Court

judgment (19 June 2013).

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Policy Department C: Citizens' Rights and Constitutional Affairs

unique to Italian law and what it essentially boils down to is that rituale proceedings

constitute the classic form of arbitration whereby proceedings are subjected to the

procedural rules of the CCP, whereas in irrituale proceedings the parties choose their own

procedural rules (free arbitration) but the award made is not enforceable but has the force

of a binding contract. As a result, the largest part of the CCP does not apply to irrituale

proceedings in accordance with Article 808ter of the CCP. The Supreme Court of Cassation

has confirmed that irrituale awards have the effect of a binding contract.

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Hence if a party

subject to an irrituale award fails to comply the other party may commence an action for

breach of contract.

Scope of application (commercial versus non-commercial): The CCP does not

distinguish between commercial and other types of non-commercial disputes as such.

Rather, Article 808bis stipulates that arbitration may extend to disputes not encompassed

in a contractual relationship, thus leaving open the possibility of trusts, torts etc. This type

of extra-contractual arbitration is a novel development to Italian arbitration law.

Arbitrability: Article 806(1) of the CCP supports the classical rule whereby a dispute is

arbitrable if the parties are free to dispose of its subject matter. In accordance with

paragraph (2) of this provision, in conjunction with Article 409 of the CCP, individual labour

disputes may not be submitted to arbitration whereas collective labour disputes can be

submitted, provided this is stipulated in the parties’ collective labour contract or

agreement.

Although not specifically stipulated in the CCP, Italian courts have long permitted the

submission to arbitration of the private elements of anti-trust disputes.

347

Consumer arbitration: The situation is far from clear despite the introduction of a new

Consumer Code in 2005 through Legislative Decree 206/2005. Commentators suggest that

although the new Code allows arbitration rituale in respect of consumer disputes – without

the limitations usually imposed by other European nations as regards the conscionable

character of pre-dispute arbitration clauses or the requirement of individually negotiated

submission agreements – consumers are free to submit the dispute anew to the courts for

final resolution.

348

This solution, however, is not without problems because it is contrary to

the general rule in the CCP whereby arbitral awards produce res judicata in accordance

with Article 824bis of the CCP.

349

Corporate arbitration: Under the terms of the 2003 Corporate Arbitration Law arbitration

clauses incorporated in a non-listed company’s articles of incorporation or its by-laws

(which represents the rule in Italy) bind all members of the company. Similar clauses in the

by-laws of listed companies are regulated by the relevant provisions of the 2006 Arbitration

Law as incorporated in the CCP. Disputes arising out of non-listed companies’ by-laws must

be filed at the Registry of Enterprises and be available to all members. The law allows third-

party intervention in the arbitral proceedings, either voluntarily or following a party’s

request or an order by the tribunal, but only as regards the company’s members.

350

Agreement in writing: Article 807 of the CCP generally follows the UNCITRAL Model Law

in this regard and although it excludes emails they may in fact be encompassed by this

346

Case no 527/2000, Cassation Court judgment (13 August 2000).

347

Milan Court of Appeals, Freyssinet Terra Armata S.r.l. v Tensacciai S.p.A (1897/06).

348

Art 140(6) of the Consumer Code.

349

See Patania (2004), at 489-90.

350

See Anglani & Liguori (2007), at 49.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

provision if emails are viewed as tantamount to “tele-transmission”. It is strongly

suggested by practitioners that there is little doubt that, in general, emails fall within the

scope of “tele-transmission”. The uncertainty, if any, arises from the fact that the law

speaks of “telematic messages in compliance with current regulations”. To oversimplify the

problem under Italian law is rather one of proving the sender’s identity (riferibilità). This is

why it is normally suggested that arbitration agreements sent through certified email

accounts (PEC) should be held valid while those sent through non-certified accounts may or

may not.

The absence of oral agreements to arbitrate is however presumed given the absence of

relevant references. It is suggested by practitioners thatt oral agreements are excluded

altogether by the fact that Article 807 does not employ permissive language in that respect.

It says that the arbitration agreement “must be in writing”, otherwise it is null and void.

Arbitration agreement: A unique feature of the CCP is the introduction of a presumption

whereby if there is doubt as to the boundaries of the arbitration agreement, the tribunal or

court interpreting it must do so in the broadest manner possible as “extending to all

disputes arising from the contract or from the relationship to which the agreement

refers”.

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This provision eliminates the need for carefully drafted model clauses the

objective of which is to make it absolutely certain that the agreement to arbitrate extends

to all disputes arising from the parties’ relationship.

Setting aside of irrituale awards: The CCP distinguishes between the applicable

recourse mechanisms available against rituale and irrituale awards. Irrituale awards are

subject to set aside proceedings (but with all the particularities associated with such

contractual awards), whereas rituale awards to challenges related to nullity, revocation and

third party opposition in accordance with Article 827. Irrituale awards may be set aside by

the competent court under Article 808(2)ter:

1. if the arbitration agreement is invalid or the arbitrators have decided questions

exceeding its limits and the relevant objection has been raised during the arbitral

proceedings;

2. if the arbitrators have not been appointed in the form and manner contemplated by

the arbitration agreement;

3. if the award has been rendered by a person who could not be appointed as

arbitrator according to Article 812;

4. if the arbitrators have not applied the rules prescribed by the parties as a condition

for the validity of the award;

5. if the principle of due process (principio del contraddittorio) has not been respected

in the arbitral proceedings.

Court intervention and assistance: In accordance with Article 810(2) of the CCP if the

parties are ultimately unable to appoint one or more arbitrators they can petition the

president of the tribunal in whose district the arbitration has its seat to make the

appointment.

Where the parties do not agree with the fee demanded by the arbitrator the amount of the

expenses and of the fee shall be determined, upon the arbitrators' petition and after

351

Art 808-quater CCP.

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Policy Department C: Citizens' Rights and Constitutional Affairs

hearing the parties, by an order of the president of the court in accordance with Article

814(2) of the CCP. This order, in accordance with paragraph 3 of Article 814 is enforceable

against the parties but is subject to recourse under Article 830(4) CCP on grounds of

nullity.

In accordance with Article 816ter(3) of the CCP should a witness refuse to appear before

the arbitrators the latter, if they deem it necessary in the light of the circumstances, may

petition the president of the tribunal of the seat of the arbitration to order his or her

appearance before them.

Under Article 819-ter of the CCP the courts must stay proceedings where the parties have

entered into a submission to arbitration. Paragraph 3 states that pending the arbitral

proceedings, no requests may be submitted to the judicial authorities regarding the

invalidity or lack of efficacy of the arbitration agreement.

Under Article 830(2) of the CCP if the award is annulled on the grounds indicated in Article

829 paragraphs 1, numbers (5), (6), (7) (8), (9), (11) or (12), 3, 4 or 5, the court of

appeal shall decide the merits of the dispute, unless the parties have otherwise provided in

the arbitration agreement or in a subsequent agreement.

Arbitrators’ qualifications: Although Italian law does not impose any qualitative

restrictions for the appointment of a person as arbitrator, Article 812 explicitly states that a

person may not be appointed to serve as arbitrator if he or she has no legal capacity to act,

whether fully or partially. This does not only include persons that are minors or who lack

the mental faculties to enter into contractual or other legal relationships, but may also

encompass persons that are prohibited by reason of a sanction imposed against them from

undertaking a particular office. There are no restrictions imposed upon judges as regards

their appointment as arbitrators in accordance with Law no 276/1997, provided that there

are no conflicts of interest in a broad sense.

Liability of Arbitrators: It should be noted from the outset that in accordance with Article

813(2) of the CCP, arbitrators are not considered public officials or persons entrusted with

a public service. The latter part of this characterisation is not without problems, given that

the CCP recognises that awards produce the same legal effects as judgments rendered by

the courts. Hence, it is not at all clear in what way arbitrators are not discharging an

otherwise public service. This issue aside, Article 813ter(1) of the CCP recognises that an

arbitrator can be liable for damages to the parties if he or she:

1. has fraudulently (dolo) or with gross negligence (colpa grave) omitted or delayed

acts that he or she was bound to carry out and has been removed for this reason, or

has renounced the office without a justified reason;

2. has fraudulently or with gross negligence omitted or prevented the rendering of the

award within the time limit fixed according to Articles 820 and 826.

In addition, arbitrators are also liable for (general) fraud and gross negligence in

accordance with Article 2(2) and (3) of Law no 117/1998. Clearly, liability is based on tort

(not contract) and is based on individual action or omission, thus relieving those co-

arbitrators that are not at fault.

352

In case an arbitrator is found liable he shall not be

entitled to remuneration or expenses and will be liable for damages to the parties.

352

Art 813(7)-ter CCP.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Challenges against arbitrators: Whereas the majority of European arbitration statutes

provide general grounds of challenge against arbitrators, Article 815(1) of the CCP lists a

number of very precise grounds. Hence, an arbitrator may be challenged:

1. if he or she does not have the qualifications expressly agreed by the parties;

2. if he or she or an entity, association or company of which he or she is a director

has an interest in the case;

3. if he or she or his or her spouse is a relative up to the fourth degree or a

cohabitant or a habitual table-companion of a party, one of its legal

representatives or counsel;

4. if he or she or his or her spouse has a pending suit against or a serious enmity to

one of the parties, one of its legal representatives or counsel;

5. if he or she is linked to one of the parties, to a company controlled by that party,

to its controlling entity or to a company subject to common control by a

subordinate labour relationship or by a continuous consulting relationship or by a

relationship for the performance of remunerated activity or by other relationships

of a patrimonial or associative nature which might affect his or her independence;

furthermore, if he or she is a guardian or a curator of one of the parties;

6. if he or she has given advice, assistance or acted as legal counsel to one of the

parties in a prior phase of the same case or has testified as a witness.

Legal representation during proceedings: Given that irrituale arbitration is subject to

the parties’ agreement, unless the chosen rules otherwise demand, the parties can appoint

anyone to represent them. The situation as regards rituale arbitrations is somewhat

ambiguous. Article 816bis(1) of the CCP provides that “the parties may take part in the

proceedings through counsel. Failing an express limitation, the power of attorney granted

to counsel shall extend to any procedural activities, including the waiver of the proceedings

and the determination and extension of the time limit for rendering the award”. It is not

clear whether the parties simply “may” or “must” appoint legal counsel in rituale

arbitration, although one is inclined towards a negative view as this would conflict the long-

standing prevalence of party autonomy in commercial arbitration and would be out of tune

with the spirit of the arbitration provisions in the CCP. However, several practitioners

argued that they are not entirely sure whether this would apply to international arbitration

proceedings in Italy.

Transfer of action from State courts to arbitration: Law Decree n. 132 of 12

September 2014 has introduced a new mechanism for actions pending before a State court.

The parties can agree to transfer the dispute to arbitration; in this case, the State court

forwards the file of the proceedings to the local bar association. Only members of the latter

with at least three years of membership can be appointed as arbitrators. If parties cannot

agree on the appointment, the arbitrators are selected by the president of the bar

association.

The statement of claim, originally filed before the State court, is converted into a request

for arbitration, and its substantive and procedural effects (e.g. the effects on limitation

periods) are preserved.

This reform aims at promoting arbitration as a mechanism of alternative dispute resolution,

thus reducing the backlog of Italian courts. However, the reform illogically limits the choice

of arbitrators. Since only the members of the local bar association can be arbitrators,

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Policy Department C: Citizens' Rights and Constitutional Affairs

parties cannot, in this particular type of arbitration, appoint different kinds of professionals,

even if their dispute requires technical expertise which lawyers may not possess. In

addition to that, this mechanism excludes foreign arbitrators, and lawyers from different

areas of the Country.

Tribunal powers: Article 816bis(3) of the CCP provides that “all issues arising in the

course of the proceedings shall be decided by the arbitrators with an order which is not

subject to deposit and may be revoked, unless they elect to decide by an interim award”.

Under Article 816ter(6) of the CCP the arbitrators may request the public administration

(pubblica amministrazione) to provide written information related to activities and

documents of the administration in question that they deem necessary to acquire to the

proceedings.

Arbitral tribunals’ kompetenz-kompetenz power is guaranteed under Article 817(1) of the

CCP.

Furthermore, pursuant to Article 817(3) the party that during the arbitration proceedings

fails to raise the objection that the other parties’ pleadings exceed the limits of the

arbitration agreement, may not, on this ground, challenge the award.

Interim and conservatory measures: The general rule is contained under Article 818 of

the CCP whereby tribunals do not possess either power.

Tribunals acting ex aequo et bono: This is possible if the parties so wish in accordance

with Article 822 of the CCP.

Multi-party arbitrations: Article 816-quater of the CCP is one of the few provisions in

arbitral statutes regulating multi-party arbitration. Paragraph 1 clearly states that, should

more than two parties be bound by the same arbitration agreement, each party may

request that all or some of them be summoned in the same arbitral proceedings and may

by common agreement appoint an equal amount of arbitrators. If the parties fail to reach a

common agreement as to the joinder of their cases there will be as many arbitration as

there are individual defendants (paragraph 2). Where, however, a joinder of the cases is

necessitated by law and the parties do not reach mutual agreement on a joinder the

arbitration cannot proceed (paragraph 3). The inherent complexity of multi-party

arbitration is best addressed through administered/institutional arbitration. The rules of

most institutions would overcome such difficulties with specific provisions that are perfectly

valid and enforceable in Italy.

Third party intervention: In accordance with Article 816-quinquies the voluntary

intervention or the joining of a third party in the arbitration is admissible only with the

agreement of the third party and the parties and with the arbitrators' consent.

Set-off claims: Another exceptional feature of the CCP is its regulation of set-off defences

that are outside the arbitration agreement. Article 817-bis provides that the arbitrators

shall be competent to decide on the objection of set-off, within the limits of the value of the

main claim, even if the counterclaimed amount does not fall within the scope of the

arbitration agreement.

Requirements for awards: In accordance with Article 823 of the CCP awards must

contain:

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

1. the name of the arbitrators;

2. the indication of the seat of the arbitration;

3. the indication of the parties;

4. the indication of the arbitration agreement and of the claims of the parties as set

out in the final pleadings (conclusioni);

5. a brief statement of the reasons;

6. the decision of the issues (dispositivo);

7. the signature of the arbitrators. The signature of a majority of the arbitrators shall

suffice, provided that mention is made that it was deliberated with the participation

of all the arbitrators and that the other arbitrators were either unwilling or unable to

sign.

8. the date of the signatures.

Res judicata: Rituale awards produce res judicata upon deposit with the registry of the

tribunal of the district in which the arbitration has its seat in accordance with Article 825(1)

of the CCP. The court, after ascertaining that the award meets all formal requirements,

shall declare the same enforceable by decree.

Recourse against rituale awards: These may be challenged on grounds of nullity,

revocation or third party opposition, in accordance with Article 827 CCP [this is the

equivalent of set aside proceedings]. Grounds for nullity under Article 828 are:

1. if the arbitration agreement is invalid, without prejudice to the provision of Article

817, paragraph 3 [to be read: paragraph 2];

2. if the arbitrators have not been appointed in the form and manner laid down in

Chapters II and VI of this Title, provided that this ground for nullity has been raised

in the arbitral proceedings;

3. if the award has been rendered by a person who could not be appointed as

arbitrator according to Article 812;

4. if the award exceeds the limits of the arbitration agreement, without prejudice to the

provision of Article 817, paragraph 4 [to be read: paragraph 3], or has decided the

merits of the dispute in all other cases in which the merits could not be decided;

5. if the award does not comply with the requirements of Article 823, numbers (5), (6)

and (7);

6. if the award has been rendered after the expiry of the prescribed time limit, subject

to the provision of Article 821;

7. if during the proceedings the formalities prescribed by the parties under express

sanction of nullity have not been observed and the nullity has not been cured;

8. if the award is contrary to a previous award which is no longer subject to recourse

or to a previous judgment having the force of res judicatabetween the parties,

provided such award or such judgment has been submitted in the proceedings;

9. if the principle of contradictory proceedings (principio del contraddittorio) has not

been respected in the arbitration proceedings;

10. if the award terminates the proceedings without deciding the merits of the dispute

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Policy Department C: Citizens' Rights and Constitutional Affairs

and the merits of the dispute had to be decided by the arbitrators;

11. if the award contains contradictory provisions;

12. if the award has not decided some of the issues and objections raised by the parties

in conformity with the arbitration agreement.

2.17. Latvia

Through the adoption of Part D of the 1999 Civil Procedure Law the Latvian Parliament

introduced, or better amended, arbitration (and its regulation) in the country’s legal

system. A subsequent amendment to these provisions in 2005 rendered the regulation of

arbitral proceedings as Part of the Civil Procedure Law (CPL). The initial rationale behind

the incorporation of relevant proceedings in the CPL was to adapt the UNCITRAL Model Law

into the Latvian legal system. However, its adaptation is unique to transitional legal

systems in the sense that Latvia had only recently emerged from a non-capitalist economy

without any experience of party autonomy, freedom of contract or arbitration. As a result,

although the idea of a liberal and modern arbitration law seemed attractive the Latvian

legal system was ill-prepared for the pitfalls that were associated with an under-developed

civil procedure. For whatever reasons – largely to do with the privatisation of civil justice

and in order to limit court interference in arbitral proceedings – the 1999 arbitration law

intentionally left out certain significant elements of the UNCITRAL Model Law, especially

(for the purposes of our analysis of Latvia) the absence of set aside proceedings against

arbitral awards rendered in Latvia as well as the degree of court assistance to arbitral

proceedings.

353

Although this may at first sight seem like a rather liberal rule that limits

court interference and protracting tactics it nonetheless does little to allay fears of

violations relating to due process, the fairness of proceedings and conformity to the law. As

will be demonstrated in the course of this country analysis there does exist a remedy

following an application of the winning party to the Latvian courts to issue a writ of

execution of the award; certain claims may be made at that stage, but this raises several

questions. Chief among these is that although the award is res judicata under Latvian law it

may still be subject to challenges and claims by the losing party and this state of affairs

creates a legally awkward position. Secondly, if enforcement of the award is sought abroad

the losing party may use that opportunity to challenge the Latvian awards on several

grounds that should have ordinarily been dealt under Latvian law and by Latvian courts.

The courts of the enforcement country will have to undertake this process anew and may

have to decide relevant matters not only on the basis of the lex fori but also Latvian law.

One of the most significant problems associated with the practice of arbitration in Latvia is

the large number (more than 200) of arbitral institutions operating in the country. This is

because of Article 486 of the CPL which essentially allows the establishment of arbitral

institutions by any legal entity, despite the fact that these be set up as non-profit

organisations. Although the underlying rationale was that trade organisations and chambers

of commerce would take up the mantle of establishing arbitral institutions, instead these

have been set up by law firms, private corporations and other business enterprises with a

view to resolving disputes with their contracting counterparts through their own

institutions. This gives rise to significant conflicts of interest issues where proceedings are

directed and controlled throughout by one of the parties to the dispute. This situation is

further compounded by the absence of set aside proceedings against awards and hence it is

possible to produce one’s “own” award under conditions that are conducive to bribery,

353

As a result, some commentators claim that the 1999 CPL is not based on the UNCITRAL Model Law at all. See

Leijins & Kalnina (2009), at 21. The cases cited in this analysis have been taken from this volume.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

money laundering and other illicit dealings and yet claim res judicata. The few

commentaries on this state of affairs are alarming and stipulate that the government has

appointed a group of experts to amend relevant parts of the law.

354

At the time of writing, a

new Latvian arbitration law is in the process of being adopted. However, as the legislative

process is not yet complete, this summary will focus on Latvia’s current arbitration law.

Several commentators have argued that despite the flourishing of arbitration (with all the

problems identified above), the Latvian Supreme Court has generally exhibited hostile

tendencies towards arbitration. A key example is a judgment by which it declared the

inapplicability of the separability doctrine

355

despite the fact that the relevant provisions in

the CPL are based on the UNCITRAL Model Law which is a pioneer of separability. As a

result of this stance in July 2009 at the General Meeting between the Civil Matters

Department and the Civil Matters Court Chamber of the Supreme Court, a common

interpretation of Article 493(2) of the CPL was eventually agreed upon, providing for the

survival of the arbitration clause in the event of the termination of the main agreement.

356

Other examples include its attention to formalities regarding the rendering of awards in

accordance with Article 530 of the CPL. In one case the Supreme Court refused to enforce

an award because it did not mention the tribunal’s composition even though it was signed

by all arbitrators.

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Scope of arbitration (international versus domestic): Article 1(2) of the draft

Arbitration Act applies only to arbitrations seated in Latvia.

Arbitrability: According to Article 487(1) of the CPL “all disputes relating to civil matters

may be referred to an arbitration court” save:

1. where at least one party is a State or local government institution or where the

arbitral award may affect the rights of State or local government institutions;

2. where the dispute relates to changes in the registration of civil status deeds;

3. where the dispute relates to the rights and duties of persons under guardianship or

trusteeship or to their interests protected by law;

4. where the dispute relates to the establishment, alteration or termination of

property rights in immoveable property, if the rights of one of the parties to the

dispute are limited by law with respect to the ownership, possession or use of

immoveable property;

5. where the dispute relates to the eviction of a person from living quarters;

6. for disputes between employees and employers if the dispute has arisen when

entering into, amending, terminating or implementing an employment contract, as

well as when applying or translating provisions of regulatory enactments, a

collective labour contract or working procedures (individual labour rights dispute);

7. where the dispute relates to the rights and duties of persons with respect to whom

insolvency or bankruptcy proceedings have been initiated before the arbitral award

has been rendered.

354

See Udris & Kačeska (2004).

355

Case SPC-4, judgment (9 January 2008).

356

Decision of the General Meeting between the Civil Case Department and Civil Case Court Chamber of the

Supreme Court as of 2 July 2009 “On validity of the arbitration agreement, when the creditor unilaterally

withdraws from an agreement which contains an arbitration agreement”.

357

Case No SPC-48, Latvian Supreme Court judgment (13 August 2008).

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Policy Department C: Citizens' Rights and Constitutional Affairs

The grounds for non-arbitrability in Article 5 of the draft Law remain identical. In addition

to these, the Latvian Supreme Court has ruled that consumer disputes are not arbitrable

unless the particular terms are individually negotiated between consumer and business.

This has resulted in a huge decrease of consumer disputes being submitted to arbitration.

Equally, in accordance with Article 487(2) of the CPL any dispute falling under so-called

special adjudication proceedings is not deemed arbitrable. The list of special adjudication

proceedings is set out in Article 251 of the CPL, among which one may note adoptions, the

capacity to act as trustee etc.

Agreement in writing: Article 492 of the CPL requires that an agreement for submission to

arbitration be in writing, without, however, specifying whether this includes oral

agreements or is otherwise implicit from the very purpose of the parties’ relationship. In

practice, the requirements in Article 492 encompass email and other electronic

correspondence and no challenge to form has arisen. Nonetheless, the current version of

Article 492 is not consistent with international practice or the more recent amendments to

the UNCITRAL Model Law.

Annulment of awards/setting aside: As has already been mentioned there is no provision in

the CPL by which arbitral awards may be set aside for any of the reasons set out in the

UNCITRAL Model Law. As a result, once awards are rendered they are considered res

judicata. This means that the parties may make use of such awards in their legal

relationships and it is assumed that the losing party will accept to abide by the award,

especially given the absence of any other procedure for officiating awards. The only

challenge against awards (in a way similar to annulment proceedings) is that arising from

the moment the losing party fails to accept the terms of the award and the winning party

must then apply to the courts in order to issue a writ for its execution. This procedure is set

out in Articles 533 of the CPL.

Unlike other legal systems which make no distinction between institutional and ad hoc

arbitration, Latvian law does not afford the guarantees of Article 533 CPL to ad hoc awards,

but only to institutional awards. As a result, the winning party risks having a useless (and

un-enforceable) award if he or she opts for ad hoc arbitration, whose survival and

operability pretty much rests on good faith.

According to Article 536 of the CPL, the judge shall refuse to issue a writ of execution, if:

1. the particular dispute may be resolved only by a court;

2. the arbitration agreement has been entered into by a person that lacks the capacity

to act;

3. the arbitration agreement has been set aside or declared null and void in accordance

with the applicable law;

4. a party has not been notified of the arbitral proceedings in the appropriate manner, or

due to other reasons has been unable to submit his or her explanations, and this

significantly has or could have affected the arbitral proceedings;

5. the party has not been notified of the appointment of an arbitrator in the appropriate

manner, and this significantly has or could have affected the arbitral proceedings;

6. the arbitral tribunal has not been established or the arbitral proceedings have not

taken place in accordance with the provisions of the arbitration agreement or of Part

D of this Law; or

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

7. the arbitral award has been made regarding a dispute that was not provided for in the

arbitration agreement or it does not comply with the provisions of the arbitration

agreement, or it decides matters that fall outside the scope of the arbitration

agreement. In such a case, the writ of execution may be issued for that part of the

arbitral award, which complies with the arbitration agreement provided that it can be

separated from the issues which fall outside the scope of the arbitration agreement.

Exceptionally, in accordance with Articles 483 and 484 of the CPL if serious material or

procedural errors are found in a case that has been reviewed only by a court of first

instance and has not been appealed under the procedure provided under the CPL for

reasons independent from the parties, or if the rights of state or municipal institutions that

have not been parties to the case are breached, these officials may file a protest to the

Supreme Court. Such a protest is done ex officio as per Article 483 and the relevant

grounds are set forth in Article 484.

Liability of arbitrators: The CPL does not contain any special provisions on arbitrator liability

and it is assumed that general civil liability rules apply (hence, arbitrators do not possess

the same status as judges in respect of immunity). Some guidance may be given by a

judgment of the Supreme Court where it held in passing that arbitrators are liable for

rendering un-enforceable awards.

Witnesses: Article 521(1) of the CPL provides that in arbitration proceedings the permitted

means of proof are party statements, written evidence, material evidence and expert

opinions. Because witnesses are not listed it has long been assumed by reason of judicial

practice that witnesses are excluded from this process. This is a rather unique anomaly

which in practice is remedied by presenting witnesses as party representatives who are

otherwise allowed to appear in proceedings and provide testimony.

Provisional and conservatory measures: The CPL does not contain a specific provision that

deals with interim or other measures. Given the non-interference of the courts in arbitral

proceedings it is natural that if any such measures exist at all they are to be granted by the

tribunal first and foremost and only in limited circumstances by the courts following an

application by one of the parties. The parties cannot apply to the courts but exceptionally

under Article 496 of the CPL the courts may issue an order securing the parties’ claims by

means of an emergency judgment which must be rendered before the tribunal has been set

up. This situation is unfortunate and the result of poor drafting because it means that not

only are the parties unable to petition the courts but that even if the tribunal orders such

measures and the party against which these were issued refuses to obey the claimant

cannot petition the Latvian courts to enforce them by writ or other means! Interim relief

orders issued by tribunals do not have the authority of awards and should not be rendered

as such.

Types of awards: Unlike other legal systems which recognise various types of awards other

than final ones, Latvian law recognises only final and supplementary awards, although in

accordance with Article 529 of the CPL if the parties were to reach a settlement in the midst

of ongoing arbitral proceedings this is to be recorded in a “decision” which although not an

award has the same legal effects as an award (Art 529(3) CPL). The latter are meant to

make corrections or additions to a final award which has omissions or other mistakes.

Institutional vs. ad hoc arbitration and which institutions are preferred: Counsel usually

prefer Latvian institutions and ad hoc arbitration is very rare in practice.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Background of arbitrators: As already discussed there are no particular qualifications

specified by law. Under Article 498 CPL any person may be appointed as arbitrator, as long

as that person is at least 18 years old, has a good reputation, possesses a solid legal

education, has at least three years professional experience and has no criminal record for

crimes requiring intent.

Costs and fees: These are borne by the parties as specified in the institutional rules.

Legal representation during arbitration: There is no requirement that representatives of the

parties be lawyers or Latvian nationals.

2.18. Lithuania

In 2012 the Lithuanian Parliament promulgated the Law on Commercial Arbitration, which

effectively replaced the country’s 1996 Law. The new Law is based on the UNCITRAL Model

Law and the courts are obliged to take this into consideration when interpreting the

Arbitration Law, albeit the Model Law does not supersede the Law as is otherwise the case

with Malta and Ireland. The new Law introduced an extensive section on interim measures

and the Lithuanian Supreme Court has shown an acute awareness of relevant issues by

adopting a number of important judgments on seminal issues of the arbitration process. By

way of illustration, it has held that the express intention of the parties to submit a dispute

to arbitration should be reflected in the arbitration agreement and is an integral aspect of

the latter.

358

The Arbitration Law (the Law) is complemented by relevant parts of the Code

of Civil Procedure but these deal exclusively with the formalities of enforcement of foreign

arbitral awards and need not concern us much here. Overall, experts suggest that although

arbitration is viewed favourably relatively few disputes are submitted to arbitration

annually

359

and hence there is much scope for improvement in terms of persuading the

business community to consider arbitration as an alternative dispute mechanism.

Scope of application (international versus domestic): The Law does not distinguish

between domestic and international arbitration and in fact applies without distinction to all

arbitrations taking place on the territory of Lithuania, in accordance with Article 2(1) of the

Law. Naturally, other provisions deal with the recognition and enforcement of foreign

arbitral awards.

Scope of application (commercial versus non-commercial): The Law – and given its

name – applies only with respect to commercial disputes, but these are to be broadly

interpreted. Article 3(11) provides a definition of commercial disputes as encompassing

“any controversy between the parties over issues of fact and/or law arising out of

contractual or non-contractual legal relationships, including, but not limited to, supply of

goods or provision of services, distribution, commercial agency, factoring, lease,

contracting, consulting, engineering services, licencing, investing, financing, banking

activity, insurance, concession, creation and carrying out of joint ventures and any other

industrial or business cooperation, compensation for damage caused through violation of

rules of the competition law, agreements concluded based on public procurement,

transportation of goods or passengers by air, sea and land.” This is modelled on footnote 2

to the 2006 UNCITRAL Model Law but is by no means identical.

358

Case no 3K-7-999 Lithuanian Supreme Court judgment (25 November 2003) and case no 3K-3-542 Lithuanian

Supreme Court judgment (29 October 2004).

359

Pavan & Cerniauske (2012), at 2-3.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Arbitrability: Article 12 sets out the general rule that all disputes are arbitrable, save for

several specific exceptions (hence there are no surprises in specialised laws or

regulations)

360

. As a result, the parties may not resort to arbitration in order to resolve

disputes which should be heard under administrative proceedings or hear cases, the

examination of which falls within the competence of the Constitutional Court. Disputes

arising from family legal relationships and disputes regarding registration of patents,

trademarks and design may not be referred to arbitration (although private inter-se

disputes on IP issues are arbitrable). Disputes arising from employment contracts shall not

be arbitrable except if the arbitration agreement was concluded after the dispute arose.

Significantly, the Lithuanian Supreme Court recently held that disputes arising from sports

contracts (in the case at hand, a claim for remuneration of a professional basketball player)

are arbitrable as an exception to the general rule.

361

Equally, disputes to which a state or municipal enterprise or an institution or organisation,

except for the Bank of Lithuania, is a party, may not be referred to arbitration, unless the

prior consent of the founder of such enterprise, institution or organisation regarding the

arbitration agreement has been obtained.

362

This seems to be in conflict with the rule set

out in Article 3(5) of the Law whereby there are no impediments to arbitration agreements

being entered into by state entities. Moreover, paragraph 4 of Article 12 states that the

Government or its authorised state institution may conclude an arbitration agreement in

respect of disputes relating to commercial contracts concluded by the Government or its

authorised state institution under the general procedure. This constitutes poor drafting

which may give rise to serious ambiguity in the future and needs to be addressed by the

country’s legislature.

Bankruptcy: In accordance with Article 49(7) of the Arbitration Law, the commencement

of bankruptcy proceedings against a party to arbitration does not have the effect of

invalidating the arbitration agreement or in any other way diminishing the jurisdiction of

the tribunal.

Institutional versus ad hoc arbitration: Both types of arbitration exist in Lithuania and

although there are no statistics it seems that of the relatively few arbitrations undertaken

each year the preference is for institutional arbitration. By far the most important arbitral

institution and the one that undertakes the bulk in Lithuania is the Vilnius Court of

Commercial Arbitration (VCCI),

Consumer arbitration: Article 12(2) of the Law makes it clear that arbitration clauses in

consumer contracts are void and that in order for consumer arbitration to take place the

relevant submission agreement must be entered into after the dispute arises. Although the

Law makes no further qualifications, it is assumed that an individual negotiation takes place

and that no other clauses are inserted in the parties’ agreement.

Public policy: Public policy is relevant in relation to the enforcement of foreign awards and

as a ground for setting aside awards rendered in Lithuania. The concept itself is not

elucidated in the Arbitration Law or elsewhere for that matter but it is largely agreed that

360

Even so, the Lithuanian Supreme Court in case no 3K-7-304/2011, judgment (17 October 2011) held that

disputes related to public procurement are regulated by the Public Procurement Law and are not susceptible to

arbitration. This judgment is clearly contrary to the dictates of Art 12 of the Arbitration Law and generates concern

as to the future role of the Supreme Court in sensitive areas of international commerce and arbitration.

361

Case No 3K-3-65/2011, Lithuanian Supreme Court judgment (21 February 2011).

362

Art 12(3) of the Arbitration Law.

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Policy Department C: Citizens' Rights and Constitutional Affairs

the applicable standard would take international public policy into consideration.

363

At a

very basic level, the violation of Lithuanian constitutional principles, such as due process

rights or party equality would suffice given that these are also recognised at international

level, whether as human rights norms or as general principles of judicial proceedings.

364

has been held, for example, that the imposition of excessive interest in an award amounts

to usury and therefore contravenes public policy.

365

It is worth mentioning that in the case Apatit Fertilizers S.A. v. AB Lifosa, the Supreme

Court of Lithuania emphasized that the principle of public policy has to be understood as

the fundamental interests of the State and individuals. Moreover, the court emphasized

that in such cases, public policy has to be given an international and not a domestic

dimension.

State entities: In accordance with Article 3(5) of the Arbitration Law there are no

impediments to arbitration clauses signed by state entities, subject to arbitrability

requirements laid out in Article 12(3) of the Arbitration Law which are discussed in this

chapter’s arbitrability section. This freedom is also stipulated in Article 12(4) of the Law.

Means of interpretation: Article 4 of the Arbitration Law introduces some novel means of

interpretation. For one thing, the UNCITRAL Model Law, with past and future updates, is a

subsidiary means of construction. Moreover, in accordance with paragraph 6 the Law shall

be interpreted by reference to the “principles of justice, reasonableness, good faith and

other general principles of law.” Although this raises some concerns as regards

indeterminacy and renders judicial determinations uncertain, the effects of this provision

are mitigated by the dictates of paragraph 7 which stipulates that the “Law shall be

interpreted to ensure the maximum compliance of the arbitration procedure taking place

according to this Law with the arbitration principles.”

Agreement in writing: Article 10(2) of the Arbitration Law generally follows the relevant

provision in the UNCITRAL Model Law and construes an arbitration agreement as being in

writing very broadly; however, it excludes oral agreements.

Multi-party arbitration and joinders: Article 37 of the Arbitration Law specifies that

arbitral cases may be joined following agreement by the parties.

Article 14(5) of the Arbitration Law refers to multi-party arbitration, the rationale being to

assist parties as much as possible to choose arbitrators and thus not to frustrate the

arbitration clause. It goes on to say that where two or more claimants are involved in

arbitration, when submitting their claim they shall present a written agreement regarding

joint appointment of an arbitrator. If they fail to present a written agreement regarding the

joint appointment of an arbitrator, the co-claimants shall present such agreement within 20

days following the day of submitting the claim. Should the co-claimants fail to appoint an

arbitrator within this term, the chairman of the permanent arbitral institution shall appoint

an arbitrator within 20 days following the expiration of the above term. Such decisions are

final and not subject to appeal.

366

363

Apatit Fertilizers SA v AB Lifosa, case No. 3K-3-145 , Lithuanian Supreme Court judgment (21 January 2002).

364

Case No 3K-3-161/2008, Lithuanian Supreme Court judgment (12 March 2008); Lithuanian Supreme Court,

case No. 3K-3-443/2008, judgment (30 September 2008).

365

Case No 3K-3-612/2004, Lithuanian Supreme Court judgment (17 November 2004).

366

Art 14(8) of the Arbitration Law.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Court assistance and intervention: The Court of Appeals is responsible for all actions

regarding the enforcement of foreign awards and the setting aside of awards rendered in

Lithuania. In respect of all other matters for which the assistance of the courts is sought,

the Vilnius District Court shall have jurisdiction.

367

Under Article 16(3) of the Arbitration Law, the decision of the Vilnius District Court as to

the challenge against an arbitration shall be final and not subject to further appeal.

In accordance with Article 25(5) of the Arbitration Law should a party apply to the Vilnius

District Court to issue and enforcement order in respect of an interim measure ordered by

the arbitral tribunal and the District court refuses to do so, its decision is subject to appeal

to the Court of Appeals.

Interim measures: Article 20(1) grants power to the tribunal to order interim measures

with a view to ensuring the fulfilment of the parties’ aims and preserving relevant evidence.

Such measures include (but are not limited) to the following:

- prohibiting a party from participating in certain transactions or performing certain

actions;

- obliging a party to protect property relating to the arbitral proceedings, providing a

deposit, bank or insurance guarantee;

- obliging the party to preserve evidence that may be relevant to the arbitral

proceedings.

The ruling of the arbitral tribunal on interim measures shall be subject to enforcement and

gives rise to res judicata. However, should the ruling of the arbitral tribunal on interim

measures not be complied with, the Vilnius District Court shall, upon the party’s request

and according to the procedure established in the Code of Civil Procedure issue an

enforcement order.

368

It is notable that any of the parties may apply to the Vilnius district

court for interim measures even before the commencement of arbitral proceedings in order

to secure crucial evidence.

369

The above-mentioned interim measures must first be notified to the parties, but in

accordance with Article 21(1) one of the parties may apply to the tribunal to impose interim

measures in the form of a preliminary order without notice to the other party so as to

prevent such party from taking any actions that are likely to impede the application of

interim measures. Such a preliminary order is binding upon the parties but is not capable of

enforcement by the courts.

370

Arbitrators’ qualifications: There are no limitations as to who may be appointed as

arbitrator, although serving judges may only be appointed if they undertake such role pro

bono.

371

Liability of arbitrators: There is no mention to such liability in the Arbitration Law or the

local case law. It is suggested by commentators, however, that arbitrators are liable for

gross negligence and intentional behaviour that gave rise to harm.

372

367

Art 9 of the Arbitration Law.

368

Art 25(1) and (2) of the Arbitration Law.

369

Art 27(1) of the Arbitration Law.

370

Art 21(7) of the Arbitration Law.

371

Pavan & Cerniauske (2012), at 7-8

372

Pavan & Cerniauske (2012), at 9.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Legal representation during arbitral proceedings: There are no restrictions in the

Arbitration Law as to who may represent the parties. Equally, there are no limitations as to

whether a lawyer needs to be admitted for practice in Lithuania. As a result, all foreign

lawyers are eligible to represent clients in arbitral proceedings taking place in Lithuania.

Powers of Tribunals: Tribunals possess exclusive power to rule on their own

jurisdiction.

373

Its ruling may be recorded in the form of a partial or final award in

accordance with Article 19(3) of the Arbitration Law.

In accordance with Article 33(7) of the Arbitration Law the arbitral tribunal shall have the

right to establish the admissibility, sufficiency and relevance of any evidence to the case.

Tribunal acting ex aequo et bono: Article 39(3) allows the parties to request the

tribunal to decide their case on the basis of equity or as amiable compositeur.

Types of awards: In accordance with Article 42(1) of the Arbitration Law arbitral tribunals

may render final awards on the merits, partial awards as well as additional awards. In all

other cases they may offer orders on procedural matters.

Recognition of foreign awards (procedure): Upon recognition by the Lithuanian Court

of Appeals, a foreign arbitral award has the same status as a national judgment and is

enforced in the manner prescribed by the Code of Civil Procedure, in accordance with

Article 51(4) of the Arbitration Law.

Lithuanian judicial practice suggests that courts may suspend proceedings on the

recognition and enforcement of foreign arbitral awards, applying general rules of the CCP.

This is typically the case where there is an ongoing criminal, civil or other administrative

case the resolution of which crucial to the outcome of arbitral proceedings.

374

Costs and fees: Article 48(3) simply sets out the basic rule whereby unless the parties

have agreed otherwise, in view of the circumstances of the case and the conduct of the

parties the arbitral tribunal shall allocate the arbitration costs between the parties in its

arbitral award.

Under Article 7(4) of the Rules of VCCA and unless the parties agree otherwise, the losing

party compensates the costs of the other party. If the claim is partially successful, the

parties share the arbitration fees in proportion to their successful and unsuccessful claims.

If the dispute is settled, parties shall share the arbitration fees in proportion to the

accepted and rejected claims, unless the amicable agreement between the parties provides

otherwise.

375

Setting awards aside: The grounds for setting awards aside under Article 50 of the

Arbitration Law are identical to those in the UNCITRAL Model Law. Arbitrability and public

policy are to be examined ex officio by the Court of Appeals.

373

Art 19(1) of the Arbitration Law.

374

Case No 3K-7-55216, AS “Parekss Banka” v UAB “Parex lizingas” judgment (16 December 2004).

375

Pavan & Cerniauske (2012), at 31-32.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

2.19. Luxembourg

The New Code of Civil Procedure of 1998 (NCCP) is the principal body of legislation that

regulates arbitration in Luxembourg, particularly Articles 1224-1251 thereto. Although this

replaces the Grand Ducal Decree of 1981 on arbitration, it does not change the landscape

of arbitration in the country given that the case law of the courts (some of which dates

back to the nineteenth century) remains pretty much effective. Moreover, the NCCP is not

modelled on the UNCITRAL Model Law given the desire for continuity. The NCCP is broader

in scope as it encompasses relationships other than commercial and significantly its

regulation of arbitration is based on regulation of judicial proceedings

376

and hence some of

its features may seem odd to arbitration lawyers. It is for this reason that where both the

parties and the arbitration-related provisions of the NCCP are silent on a particular matter,

the arbitrators and the courts mutatis mutandis should have recourse to the provisions

pertinent to judicial procedures.

Institutional versus ad hoc arbitration: Both ad hoc and institutional arbitration are

well known. Both foreign and local legal counsel are reportedly inclined towards the most

prominent international institutions. The most significant arbitral institution in the country

is the Arbitration Centre of the Luxembourg Chamber of Commerce.

Agreement in writing: Not only must the agreement be in writing but Article 1226 NCCP

provides three alternative (written) forms for the submission agreement, namely: as

minutes before the arbitrators; in the form of a notarised document, or; as a private

agreement, which may be in electronic form or by tele-transmission and which evidences

the common will of the parties to submit their dispute to arbitration. Moreover, the very

appearance of the parties before the tribunal without making any objections limine litis

constitutes a valid submission agreement.

377

Submission agreements further require, in

accordance with Article 1227 NCCP, the names of arbitrators as well as the particular

subject matter of the dispute. These requirements do not apply to arbitration clauses

included in general agreements.

Arbitration clause (particularly time limits set therein): From the case law of

Luxembourg one gets the sense that strict conformity with civil procedure rules is more

important than salvaging otherwise salvageable arbitral proceedings. By way of illustration,

if the parties have set a deadline for the delivery for particular proceedings to take place

but the arbitrators require further time without however one party agreeing to the

extension required, the arbitration clause is dissolved.

378

Equally, if the parties have set a

deadline for the delivery of an award and this is not delivered in time the obligation of the

parties to arbitrate expires.

379

Luxembourg courts insist that time limits are intrinsic to an

arbitration clause, and so can only be altered by an alteration of the clause itself. Hence, it

is within the contractual remit of each party to refuse any extension.

380

Once again, as in

the case of the doctrine of separability, this is a strict contractual construction of the

arbitration clause and not one which is consistent with the aims of objectives of effective

dispute resolution and current standards in international arbitration.

376

There is no requirement that tribunals seated in Luxembourg follow the relevant rules in the NCCP (if the

parties so wish), but the general principles of civil procedure must at all times be respected by the arbitrators. See

Court of Appeal judgment (22 July 1904), Pas Lux no 6, at 517.

377

Luxembourg District Court judgment (3 January 1996), Bull Laurent 1996, IV at 282, 285, 289. Some

commentators suggest that in the case at hand the respondent did not realise until late in the proceedings that

the agreement was invalid, The case law cited in this chapter has been reproduced from Harles (2011).

378

District Court judgment (15 January 2009), (2009) Journal des Tribunaux Luxembourg 134.

379

District Court judgment, no 11376 (15 January 2009).

380

Court of Appeal judgment (5 July 2006), Pas Lux no 33, at 263.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Waiver of arbitration: An implicit waiver is assumed where the parties fail to object to

the arbitration proceedings limine litis.

381

Separability: There is no specific provision in the NCCP regarding the separable character

of the arbitration clause, albeit case law does indeed recognise its relative autonomy and

the fact that it may be subjected to a governing law that is different from the main

contract.

382

However, Luxembourg case law tends to take the view that as an integral part

of the contract, where the main contract is void, so too will be the arbitration clause.

383

Although this is a logical deduction premised on a contract law construction of the

arbitration clause, it is sharply inconsistent with the dominant international approach.

Arbitrability: The general rule is offered by Article 1224 NCCP which provides that all

rights at the free disposal of parties may be submitted to arbitration. Moreover, although

very much settled under most arbitration laws, where arbitral tribunals seated in

Luxembourg are forced to deal with issues of public policy it does not mean that the

underlying dispute is not arbitrable.

384

Article 1225 sets out certain exceptions, namely

rights arising from conjugal or marital relationships (including divorce), as well as from

personal capacity. Other laws provide several other situations of non-arbitrability, among

which one should note labour disputes.

The Benelux Convention dictates that IP-related matters are to be exclusively decided by

the courts but it is unlikely that this has any practical significance as parties routinely

submit such matters to arbitration.

Consumer arbitration: Article 2(13) of the Law of 25 August 1983 on the legal protection

of consumers prohibits arbitration clauses in consumer contracts that limit the consumer’s

access to judicial remedies. Hence, only submission agreements concluded in the manner

prescribed by Article 1226 NCCP are permissible in respect of consumer disputes. A

particular category of consumer disputes that are regulated as lex specialis in Luxembourg

concerns disputes arising from insurance contracts. Article 46 of the Law of 27 July 1997 on

insurance contracts prohibits arbitration clauses thereto and just like consumer contracts it

only allows for submission agreements under Article 1226 NCCP.

Public policy: Luxembourg courts have demonstrated a consistent inclination towards

accepting international public policy as a ground for refusing to enforce and recognise

foreign awards in accordance with Article 1251(2) NCCP. This is applied under strict

grounds and is severely curtailed where the award gives rise to rights that already existed

abroad.

385

The incompatibility between being both arbitrator and party is a principle of natural law and

public policy.

386

Group of companies doctrine: This is not recognised in Luxembourg law and no case in

which it has been claimed has ever come before the courts.

Multi-party arbitration and joinders: There is no reference to multi-party arbitration in

the NCCP and it is difficult to conclude that because it forms part of judicial practice it

381

District Court judgment no 1115/2007 (24 April 2007).

382

Court of Appeal judgment (26 July 2005), Pas Lux no 33, at 117.

383

Court of Appeal judgment (12 March 2003), Pas Lux no 32, at 399.

384

Court of Appeal judgment (9 February 2000), Pas Lux no 31, at 301.

385

Court of Appeal judgment (28 January 1999), Pas Lux no 31, at 95.

386

District Court judgment (10 February 1960), Pas Lux no 18, at 101.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

should also apply mutatis mutandis to arbitral proceedings for the very simple reason that

in judicial proceedings joinders do not constitute an element of party autonomy; rather, the

decision rests with the courts.

Tribunals acting ex aeuqo et bono: This is indeed possible if the parties have so

consented, in accordance with Article 1240 NCCP.

Tribunal powers: In general terms and subject to other observations in this chapter, the

tribunal’s coercive powers under Luxembourg arbitration law are limited and relevant

requests must be addressed to the courts if the parties wish a binding and enforceable

ruling in relation to their interlocutory requests.

Tribunals possess kompetenz-kompetenz powers but their ruling on such issues is subject

to a challenge of ultra vires in accordance with Article 1244(4) NCCP.

According to Article 1236 NCCP the tribunal cannot conclusively examine whether a

document is forged or false, but it can check handwriting.

Interim measures: Unlike the UNCITRAL Model Law the power of tribunal to issue interim

measures is extremely limited. Although under Article 1242 NCCP such a power is implicitly

recognised, in practice it is unlikely to foster any confidence in the parties to seek pertinent

interim remedies from the tribunal for the simple fact that they still have to resort to the

district court (or the judge of summary proceedings) if the tribunal’s order is not complied

with. Astonishingly, the Court of Appeals has held that if the arbitration clause stipulated

that all disputes arising from the contract are to be resolved by arbitration, then the parties

may not order interim measures from the courts as this is beyond what the parties

agreed.

387

Again, one must be extremely cautious when drafting arbitration clauses with

Luxembourg as the seat of the arbitration because arbitral proceedings may be frustrated

by simple technicalities of this nature which are not available in other jurisdictions,

particularly those that have adopted the UNCITRAL Model Law.

Arbitrators’ qualifications: There are no specific requirements for appointment as

arbitrator and judges may also be appointed.

Legal representation in arbitral proceedings: There are no restrictions as regards who

is eligible to represent the parties during arbitral proceedings. Foreign lawyers may also

represent clients in arbitral proceedings seated in Luxembourg, although they will require a

power of attorney.

Number of arbitrators: The parties are free to choose their preferred number of

arbitrators and there is no restriction as to whether the number is even or odd.

388

The

default number is three, in accordance with Article 1227 NCCP.

Challenge of arbitrators: According to Article 521 NCCP the procedure for challenging

arbitrators is that relating to judges. The courts have held the obvious, namely that a

company director cannot be appointed as arbitrator in a case where his company is one of

the parties.

389

In accordance with Article 521 NCCP only the challenging party has the right

to take part in challenge proceedings before the courts. This is rather odd, given that it is

387

Court of Appeals judgment (21 October 2009), [2010] Journal des Tribunaux Luxembourg 72.

388

Harles (2011), at 8

389

District court judgment (31 July 1959), Pas Lux no 19, at 97.

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Policy Department C: Citizens' Rights and Constitutional Affairs

clearly in the interests of the non-challenging party to take part in proceedings where an

arbitrator of his choice is being challenged.

Liability of arbitrators: No reference to liability is made in the NCCP. However, and while

no relevant case law exists, given that the relationship between the parties and arbitrators

is considered contractual in nature, it is presumed that Articles 1134 of the Luxembourg

Civil Code will come into operation, whereby the liability of an arbitrator would arise where

there is a breach of contract, a prejudice (or harm) and a causal link between the two.

Articles 250 and 252 of the Criminal Code provides for the arbitrator’s criminal liability

where the latter is found to have been engaged in corrupt practices in relation to the

arbitral proceedings under consideration. Equally, arbitrators may face criminal liability

where they fail to observe their duty of confidentiality, in accordance with Article 458 of the

Luxembourg Criminal Code.

Court assistance and intervention: Where the parties are unable to appoint an

arbitrator, upon request by a party, the president of the district court shall make this

appointment, against which there is no possibility of appeal.

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If the party against whom an award is rendered refuses to comply with it, the winning

party may seek enforcement through a request to the president of the district court, in

accordance with Article 1241 NCCP.

The parties are not permitted to opt for appeal to the courts concerning a review of the

merits (or the law) of the award rendered.

391

Types of awards: Although arbitral tribunals may issue also interim awards, in addition to

final awards, the latter require an order of enforcement by the district court. This comes as

no surprise given the limited powers conferred upon tribunals. It is assumed, however, that

partial awards have the same attributes as final awards that resolve all matters submitted

to the tribunal.

Form of awards: Awards must be signed by all arbitrators in accordance with Article 1237

NCCP. If one of them refuses to sign the others must mention said refusal so as to avoid

having the awards annulled in later proceedings. In accordance with Article 1244(8) awards

must be in writing and reasoned.

Registration of award: There is no general obligation to register awards rendered in

Luxembourg, save if the parties wish to proceed with enforcement under the terms of

Article 1241 NCCP. In this case the award must be filed at the district court (clerk’s office)

by one of the parties or the tribunal. Such filing is only for the purpose of declaring an

award enforceable in Luxembourg.

Costs and fees: This issue is not regulated in the NCCP and no general practice exists in

Luxembourg law. It is equally impractical to transplant judicial practice to arbitral

proceedings because in the latter the parties are only rarely compensated for their costs.

Arbitrators possess authority to apportion costs among the parties according to their

discretion based on all relevant circumstances and this is usually the case unless the

parties have otherwise specified in their agreement. It is suggested by local practitioners

that reference to the UNCITRAL Rules for determination of the costs of arbitrators is very

common.

390

Court of Appeal judgment no 32153 (13 June 2007).

391

Court of Appeal judgment (12 November 2003), Pas Lux no 32, at 605.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Setting awards aside: The grounds for setting awards aside under Article 1244 NCCP are

more than those listed in the UNCITRAL Model Law, namely:

1. The award is contrary to public policy. The notion of public policy is defined on an

ad hoc basis by the courts.

2. The dispute could not be referred to arbitration. This provision only refers to the

subject matter of the dispute and not to the capacity of the parties.

3. The arbitration agreement was not valid.

4. The arbitral tribunal exceeded its jurisdiction or powers. This provision applies

when an award contains decisions on matters beyond the scope of arbitration

(i.e. ultra petita) or when the arbitral tribunal decided the dispute ex aequo et

bono in the absence of authorization by the parties.

5. The arbitral tribunal omitted to decide on one of the issues submitted to

arbitration (i.e. infra petita), if the omitted issue cannot be separated from the

topics addressed in the award.

6. The arbitral tribunal was irregularly constituted.

7. There has been a violation of the defendant's rights. However, if Art. 1230 NCCP

applies (see Chapter IV.2.a above), ignorance of the procedure laid down for the

ordinary courts is not a violation of the defendant's rights.

8. The award lacks reasons, unless the parties have expressly exempted the

arbitrators from providing reasons.

9. The award is self-contradictory.

10. The award has been obtained by fraud.

11. The award is based on evidence that has been declared forged by an irrevocable

court decision, or that has been recognized to be forged.

12. If after the rendition of the award a document or a piece of evidence has been

discovered that would have had a decisive influence on the award. The document

or the evidence must have been deliberately concealed by a party.

Enforcement of foreign awards: Luxembourg has ratified the New York Convention and

hence its practice on recognition and enforcement is informed by this instrument. Although

in a 1999 judgment the Court of Appeal was willing to recognise and enforce foreign

awards that were annulled or set aside in the country rendered,

392

the same court in a

2003 judgment rejected its previous judgment. There is currently litigation on this very

matter before the Court of Appeal, which it is hoped will clarify the situation.

393

2.20. Malta

In 1996 the Maltese President signed Act II of 1996, (the Maltese Arbitration Act) which

has since been subjected to several amendments. The Law is modelled around the

UNCITRAL Model Law and in fact, Part V which deals with international arbitration seated in

Malta, stipulates that the Model Law is an integral part of the Maltese Act and the country’s

legal system. Accordingly, for interpretation purposes, one of the main sources are the

392

Court of Appeal judgment (28 January 1999), Pas Lux no 31, at 95.

393

Court of Appeal judgment (28 January 1999), Pas Lux no 31, at 95.

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Policy Department C: Citizens' Rights and Constitutional Affairs

travaux preparatoires of the Model Law itself. Such an incorporation is only similar to that

undertaken by Ireland in respect of its 2010 Arbitration Act. There were three reasons in

the mind of Maltese legislator in drafting the Act, namely: a) consolidation and

rationalisation of existing arbitration regulation, much of which was outdated;

394

rendering Malta a key player in the international arbitration system, particularly with a view

to becoming a seat of international arbitrations and c) the setting up of the Malta

Arbitration Centre, which is meant to serve as an official arbitral institution, advise the

government on arbitration developments and suggest improvements as well as undertake

some of the functions of the court registries in the facilitation and assistance of arbitrations

seated in Malta. The Arbitration Act repeals the provisions regulating arbitration under the

Code of Organisation and Civil Procedure. It should be noted that Maltese legislation,

particularly that related to arbitration is significantly influenced by both common law and

civil law and many seminal judgments have made extensive reference to English

precedent.

395

It should also be noted that Schedule Four of the Arbitration Act introduces a

range of mandatory arbitrations.

Scope of application (international versus domestic): The distinction made in the

Maltese Act is rather unique, in that part V of the Act is dedicated to international

arbitration, which contains some provisions but largely relies on the UNCITRAL Model Law

and in fact incorporates the latter into the Act and the Maltese legal system in accordance

with Article 55 of the Arbitration Act. Part IV of the Act (Articles 14-54) encompass

domestic arbitration, but this is also to a large degree predicated on the Model Law, but it

does not have the force of law as regards domestic arbitrations. A domestic arbitration, in

accordance with Article 14 of the Arbitration Act must not fall under the definition of

international arbitration as determined by Article 1(3) of the UNCITRAL Model Law.

Scope of application (commercial versus non-commercial): There is no restriction to

commercial disputes in respect of domestic arbitrations. In addition, it is specifically

stipulated in an article introduced in 2004, that disputes arising from wills and trusts,

among others, may be submitted to arbitration, in accordance with Article 15A of the Act.

This is natural given that Malta is one of the leading jurisdictions in the field of trusts.

396

Article 15A specifically provides that:

1. It shall be lawful for a testator to insert an arbitration clause in a will. In such event

such clause shall be binding on all persons claiming under such will in relation to all

disputes relating to the interpretation of such will, including any claim that such will

is not valid.

2. It shall be lawful for a settlor of a trust to insert an arbitration clause in a deed of

trust and such clause shall be binding on all trustees, protectors and any

beneficiaries under the trust in relation to matters arising under or in relation to the

trust.

Similarly, there are no express limitations in part V as regards international arbitration.

However, given that the Act embraces the Model Law, it is assumed that the latter’s Article

1(1) must be applied, the 2006 version of which provides a broad definition of what

394

In Fenech v Firman, the Maltese Court of Appeals judgment (23 June 1992) held that arbitration clauses

incorporated by general reference were invalid. This situation has now been amended in the 1996 Act.

395

See, for example, Cassar Pullicino v Micallef Stafrace, Maltese Commercial Court judgment (13 March 1991)

where the local court relied on the English rationale for staying of judicial proceedings in favour of arbitration.

396

See Art 6B(c)(ii) of the 1989 Maltese Trusts and Trustees Act (cap 331, as lastly amended in 2011) (This Act

was last amended in 2014, by Act XI of 2014), which expressly grants to the trustee the power to enter into

arbitration agreements in order to resolve issues relating to the trust’s assets.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

constitutes a commercial dispute. It is suggested that this broad definition is supported by

the spirit of the Act which aims to foster arbitration in the country.

Arbitrability: Traditionally, domestic arbitrations were rather extensive, dealing with

issues of personal law and personal injury that would otherwise fall outside the ambit of

arbitration in other jurisdictions. The general rule is that stated in Article 15(5) of the Act

which allows parties to submit any dispute to arbitration, subject to a specific list of

exceptions enumerated in paragraph 6 of Article 15, namely: disputes, concerning

questions of personal civil status including those relating to personal separation and

annulment of marriage, although questions relating to the division of property between

spouses may be referred to arbitration subject to the approval by the competent court of

the arbitration agreement and of the arbitrator to be appointed.

Article 10(3) of the Act further states that domestic arbitration panels may be appointed on

matters related to commerce, insurance, traffic collisions, building construction, the

maritime sector and such other fields as the Centre may deem expedient from time to time.

Clearly, therefore, these matters are equally arbitrable.

Public policy: Foreign awards will not be enforced and international awards rendered in

Malta will be set aside if they are in conflict with public policy. This encompasses fraud or

corruption, or “a breach of the rules of natural justice occurred in connection with the

making of the award”, in accordance with Article 58 of the Arbitration Act. This reference to

natural justice as a ground for public policy is similar to the Greek conception of the same

issue and contains some degree of indeterminacy.

Agreement in writing: The Act generally follows Article 7 of the UNCITRAL Model Law but

goes even further by stipulating in Article 2 that the requirement of a written agreement is

complied with where the arbitration agreement is contained in a document transmitted

from one party to the other party or by a third party to both parties, and if no objection

was raised thereto within thirty days of the receipt of the document. Equally, a reference in

a written contract to a document containing an arbitration clause constitutes an arbitration

agreement provided that the reference is such as to make that clause part of the contract.

Moreover, an arbitration agreement is also concluded by the issuance of a bill of lading, if

the latter contains an express reference to an arbitration clause in a charter party. It is

assumed that oral agreements are excluded. The same requirements apply with respect to

international arbitrations given that they too are based on the Model Law.

Construction of arbitration agreement: Article 15(2) attaches a broad dimension to the

construction of arbitration agreements, thus eliminating relevant controversies as to scope.

It posits that “a dispute shall include any controversy or claim arising out of or relating to

the agreement, or the breach, termination or invalidity thereof or failure to comply

therewith.”

Institutional versus ad hoc arbitration: Both are well known in Malta and although the

Malta Arbitration Centre (MAC) enjoys the privilege of being established in the same

instrument as the country’s Arbitration Act and designated as the official arbitration

institution, the parties are free to choose other forms of institutional arbitration. However,

the MAC is the only arbitral institution operating with its seat in Malta.

Key powers of the MAC: Given the unique role of MAC some of its key powers deserve

mention. The functions of the MAC are set out in Article 10 of the Arbitration Act. In

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Policy Department C: Citizens' Rights and Constitutional Affairs

accordance with Article 9(1) of the Arbitration Act, MAC’s registrar has the power to

administer oaths.

In accordance with Article 26(1) of the Arbitration Act if one party challenges the arbitrator

and he does not withdraw the decision on the challenge will be made by the chairman of

the board of governors of MAC and this decision will be final and binding.

Under Article 36(3) of the Arbitration Act, where the evidence of any person is required, the

registrar may issue writs of subpoena to compel the attendance of a witness to give

evidence or produce documents before a domestic arbitral tribunal.

The chairman of the board of MAC is the authority responsible under Article 6 of the Model

Law in respect of the functions listed in Articles 11(3), 11(4), 13(3) and 14 of the Model

Law.

In accordance with Article 82 of the Act, in the event of a final award which determines

rights to immovable property, the registrar shall, upon registration, transmit a certified

copy of the award to the Director of the Public Registry and to the Land Registrar and the

provisions of articles 239 and 270 of the Code of Organization and Civil Procedure [Cap.

12] shall, mutatis mutandis, apply to such awards.

Arbitrators’ qualifications: Although no general prerequisites are imposed as to the

selection of arbitrators, Article 10(3) of the Arbitration Act suggests that in the

establishment of arbitral panels by the MAC “the panels shall be composed of persons who

in the opinion of the Centre are qualified to carry out the duties and functions of arbitrators

in a particular field of expertise.”

Liability of arbitrators: Article 20(5) of the Arbitration Act makes it clear that an

arbitrator shall be liable in respect of anything wilfully done or omitted to be done by him

as arbitrator where his action or omission is attributable to malice or fraud on his part. It is

equally expressly stated that no liability arises in respect of acts or omissions done by way

of negligence (the relevant provision does not specify whether this extends to both gross

and simple negligence, but this is indeed presumed). This type of liability applies equally to

international arbitrations seated in Malta in accordance with Article 66 of the Act.

Legal Representation in arbitral proceedings: In accordance with Article 18(1) of the

Arbitration Act the parties may be represented or assisted with a person of their choice.

Paragraph 2 makes it clear that foreign lawyers do not require special permission in order

to represent clients in arbitral proceedings in Malta, whether in respect of domestic or

international arbitration.

Multi-party arbitration: Unlike many arbitration statutes whereby if all the parties to

multi-party proceedings are unable to agree on the person of the arbitrators the dispute is

either broken down into multiple arbitrations or submitted to the courts, the Maltese

Arbitration Act takes a slightly different approach. Article 21A(1) states that:

Where there are multiple parties, whether as claimant or as respondent, the multiple

claimants, jointly, and the multiple respondents, jointly, shall make a proposal to the other

party for an arbitrator to be appointed or shall appoint an arbitrator, as the case may be.

Paragraph 3 then goes on to add that:

In the absence of such joint nomination, where the dispute is to be referred to three

arbitrators and where all parties are unable to agree to a method for the constitution of the

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

arbitral tribunal, the chairman may on the request of either of the parties appoint each

member of the arbitral tribunal and shall designate one of them to act as presiding

arbitrator.

Mandatory arbitration: Part A of the Fourth Schedule to the Arbitration Act stipulates

that the following disputes are subject to mandatory arbitration: condominium, traffic-

related, as well as electricity and water-related disputes and paying agency disputes.

Although the Arbitration Act has not yet been amended to reflect this change, mandatory

arbitration has also been introduced for any dispute in connection with building construction

(to the exclusion of claims for personal injuries).

397

In accordance with Article 15(11A) all parties to a mandatory arbitration shall, unless they

have expressly agreed otherwise in writing, have a right of appeal from the arbiter award

both on points of law and on points of fact to the Court of Appeal as constituted in terms of

Article 41(6) of the Code of Organization and Civil Procedure.

The MAC has been the delegated the power to issue rules of procedure relevant to

mandatory arbitrations under Article 15(12) of the Arbitration Act.

Contrary to the general confidentiality and private nature of ordinary arbitrations (both

domestic and international), the proceedings and award in mandatory arbitrations shall be

public in accordance with Article 15(15) of the Arbitration Act.

Set-off claims: Perhaps inspired by a similar provision in the Italian Arbitration Act of

2006, Article 30(3) and (4) of the Arbitration Act permits the lodging of claims and

counterclaims which have the aim of setting-off other claims of the respondent against the

plaintiff. Again, this is a novel, yet important provision, because set-off claims would not

(strictly speaking in narrowly-construed arbitration clauses) ordinarily fall within the scope

of the parties’ submission to arbitration.

Tribunal powers: In accordance with Article 32(1) of the Arbitration Act, tribunals have

full kompetenz-kompetenz powers not only in relation to their jurisdiction but also in

respect of objections to the validity or existence of the arbitration clause and its

separability from the agreement in which it is contained.

In accordance with Article 45(4) of the Act, unless otherwise agreed to by the parties or

otherwise provided for in or under this Act, the arbitral tribunal may conduct the arbitration

in such manner it considers appropriate. The power conferred upon the arbitral tribunal

includes the power to determine the admissibility, relevance, materiality and weight of any

evidence.

Court assistance and intervention: With respect to the subpoena of evidence witnesses

and the issuance of letters rogatory, Article 36(5) and (6) stipulates that:

(5) Upon the filing of an application the court which, had there not been an arbitration

agreement, would otherwise have had jurisdiction shall notify the writ or otherwise act on

the application in the same manner as if such application or such writ had been issued or

approved by the Civil Court, First Hall.

(6) Where any person who has been regularly subpoenaed to appear before an arbitral

tribunal in accordance with this article fails to appear before the said tribunal without

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Legal Notice 72 of 2013

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Policy Department C: Citizens' Rights and Constitutional Affairs

reasonable excuse, the tribunal may make a report thereon to the registrar who shall by

application bring the report to the attention of the Civil Court.

The Maltese Court of Appeal is the authority responsible under Article 6 of the Model Law in

respect of the functions listed in Articles 16(3), 34(2) and 35(1) of the Model Law.

In accordance with Article 70C(1) of the Arbitration Act, a party to mandatory arbitration

proceeding shall have a right of appeal to the Court of Appeal both on points of fact and on

points of law arising out of a final award made in the proceedings.

Interim and conservatory measures: Article 38(1) makes room for interim measures,

noting that unless otherwise agreed by the parties, any party may request the court to

issue any of the precautionary acts listed in Article 830(1) of the Code of Organization and

Civil Procedure. Unless otherwise agreed by the parties, the arbitral tribunal may, at the

request of a party, order any party to take such interim measures of protection as the

tribunal may consider necessary in respect of the subject matter in dispute. The arbitral

tribunal may require any party to provide adequate security in connection with such

measures.

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The court may on the application of any party order the enforcement of any

measure referred to in subarticle (6) and shall have all ancillary powers to amend or revoke

such orders after hearing the parties and the arbitral tribunal as it deems necessary.

399

Types of awards: Article 44(1) of the Arbitration Act allows the tribunal to issue several

awards during the lifetime of the arbitral proceedings, whether regarding the claim in whole

or partially or in respect of interim or interlocutory matters. The Act further envisages other

awards, such additional (Article 49). According to Article 44(10) interlocutory awards are

not subject to registration, no recourse may be taken against them and they are binding on

the parties to the proceedings immediately on their notification to the parties who shall

carry them on without delay.

Tribunal acting ex aequo et bono: Tribunals may act as amiable compositeurs and ex

aequo et bono in accordance with Article 45(2) of the Arbitration Act.

Costs and fees: The tribunal may determine costs and fees in accordance with applicable

rules under Article 51(1). In accordance with Article 52(1) the costs of arbitration shall in

principle be borne by the unsuccessful party. However, the arbitral tribunal may apportion

such costs between the parties if it determines that apportionment is reasonable, taking

into account the particular circumstances of the case. The tribunal shall determine all costs

related to legal representation on the basis of relevant circumstances and may apportion

such costs between the parties if it determines that apportionment is reasonable.

400

Set aside and other recourse against international awards rendered in Malta: The

parties to international arbitral proceedings in Malta do not only have access to set aside

proceedings but several other options as provided in Article 69A(2) and (3) of the

Arbitration Act, as follows:

(b) appealing on a point of law, except in the case of mandatory arbitrations, or;

(3) Recourse against an arbitral award delivered under Part V may be made to the Court of

Appeal by an appeal on a point of law only if the parties to the arbitration agreement have

398

Art 38(6) Arbitration Act.

399

Art 38(7), id.

400

Art 52(2) Arbitration Act.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

expressly agreed that such right of appeal is available to the parties in addition to the

rights of recourse as contemplated in article 34 of the Model Law.

Appeal on point of law: Under Article 70A(1) of the Arbitration Act, a party to arbitral

proceedings may appeal to the Court of Appeal on a point of law arising out of a final award

made in the proceedings, unless the parties have expressly excluded such a right to appeal

in the arbitration agreement or otherwise in writing; or notwithstanding anything stated in

the arbitration agreement, the parties have expressly agreed that no reasons are to be

given in the award.

2.21. Netherlands

On 1 December 1986, Dutch arbitration law, as contained in the Code of Civil Procedure

(CCP) of 1838, was replaced by an entirely new arbitration act, the Netherlands Arbitration

Act (NAA).

401

The Act is set forth in the new Book 4 of the CCP, consisting of Articles 1020

to 1076 CCP. The drafters took into consideration relevant international developments,

including the UNCITRAL Model Law and a large part of pertinent case law. Although the

reader will see a significant amount of similarities with the Model Law, there is clearly a

very Dutch perspective.

Scope of application (international versus domestic): In accordance with Article

1073(1) NAA the Act encompasses all arbitrations seated in the Netherlands, irrespective of

whether or not they have international elements. In case the parties have not designated

the place of arbitration, this is presumed to be the Netherlands if at least one of the parties

is domiciled there.

402

Scope of application (commercial versus other): Article 1020 NAA does not limit the

scope of the parties’ agreement. Paragraph 4 of this provision even goes on to say that the

parties may also agree to submit the following matters to arbitration: (a) the determination

only of the quality or condition of goods; (b) the determination only of the quantum of

damages or a monetary debt; (c) the filling of gaps in, or modification of, the legal

relationship between the parties.

Ad hoc versus institutional arbitration: Both types of arbitration are recognised under

Dutch law, although in practice it seems that institutional arbitration is the more popular of

the two.

Arbitrability: The basic rule is found in Article 1020(3) NAA, according to which the

parties may only submit to arbitration disputes they can freely dispose of. Anti-competition

cases are arbitrable if there are assurances that the foreign tribunal will apply EC

competition law.

403

Public policy: Where an award or the manner it was made is manifestly contrary to public

policy and good morals the court may refuse to enforce domestic awards under Article

1063(1) NAA. The same is true in respect of awards on agreed terms

404

and is also a

401

In 2015 a new arbitration law will come into effect in the Netherlands. This law is addressed at the end of the

discussion of the current Arbitration Act.

402

Art 1073(2) NAA.

403

A v Vertex Standard Co Ltd, Hague Court of Appeals judgment (24 July 2013).

404

Art 1069(2)(a) NAA.

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Policy Department C: Citizens' Rights and Constitutional Affairs

ground for setting aside.

405

Although public policy is to be interpreted strictly, the Supreme

Court held that there is no room for restrictive application of Article 1065(1)(e) if there is a

request for setting aside based on the alleged failure to apply due process.

406

Agreement in writing: The arbitration agreement must be in writing as per Article 1021

NAA. Given that the NAA was adopted prior to the advent of email and other more recent

electronic forms of communication it does not mention these, albeit with the passing of

relevant legislation these are deemed to be part of the NAA. In general, any form suffices

as long as there is a record of it, including agreements by incorporation. According to

Article 1020(5) NAA the articles of association of a company or other legal person

constitutes an agreement in writing.

Interim measures: Despite the existence of an arbitration clause the parties may seek

interim measures from the courts, in accordance with Article 1022(2) NAA. The Dutch

Supreme Court ruled that when parties have validly agreed upon arbitration the only

jurisdictional basis for obtaining provisional or protective measures from a court is Article

24 of the Brussels Convention.

407

Dual dispute resolution clauses: Where an Arbitration/jurisdiction agreement provides

for choice of either arbitration or court jurisdiction the court first reviews the validity of the

choice of forum provision, which, based on a rule of Dutch private international law, is

invalid. Thereafter, the court reviews if the alternative reference to arbitration (China in the

case at hand) is valid. The Hague Appeals Court rejected the view that also arbitration

clauses in cargo cases are to be reviewed on the basis of the rules applying to court

selection clauses, which prescribe the place that can be selected (country of the domicile of

the carrier).

408

Arbitrators’ qualifications: Under Article 1023 NAA there are no restrictions as to who

may be appointed by the parties as arbitrator.

Legal representation during arbitral proceedings: In accordance with Article 1038

NAA there are no limitations as to who may represent the parties during arbitral

proceedings.

Court assistance and intervention: In case the parties fail to agree on the appointment

of arbitrators they can seek relief from the district court, in accordance with Article 1026

NAA. Equally, if the appointment of arbitrators is not made within the timeframe set out by

the parties, the district court may ultimately undertake the appointment under Article 1027

NAA.

The district court may modify an arbitration agreement envisaging undue privileges

afforded to one party over the other in the appointment of arbitrators, under Article 1028

NAA.

409

405

Art 1065(1)(e) NAA.

406

International Military Services Limited v Ministry of Defence and Support for Armed Forces of the Islamic

Republic of Iran & others, Supreme Court [Hoge Raad] case no C07/202HR, judgment (24 April 2009). ”

407

Frans Maas Rotterdam B.V. Expeditiebedrijf Frans Maas Rotterdam B.V. Frans Maas Expeditie B.V. v Hans Ulrich

Petermann Beratungs- und Vertriebs GmbH, case no C02/202HR, Hoge Raad judgment (6 February 2004).

408

Nedspice Sourcing B.V., Tybex Warehousing B.V. and C. Steinweg-Handelsveem B.V. v Guangzhou Ocean

Shipping Company (Cosco Guangzhou) and China Ocean Shipping Company (‘Xin An Jiang’), Hague Appeals Court

judgment (22 May 2012).

409

Under the draft law currently contemplated by the Dutch parliament, there is a three-month period to file a

complaint about the privileged arbitrator to the courts, failing which the right is forfeited.

_______________________________________________________________________

Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Under Article 1031(2) NAA, the President of the District Court, may, having regard to all

circumstances (and after hearing the parties and arbitrators), terminate the mandate of the

arbitral tribunal if, despite repeated reminders, the arbitral tribunal carries out its mandate

in an unacceptably slow manner.

In accordance with Article 1035(2) NAA, if the challenged arbitrator does not withdraw

within two weeks after the day of receipt of the notification, the President of the District

Court shall, at the request of either party, decide on the merits of the challenge.

In accordance with Article 1041(2) NAA, if a witness does not appear voluntarily or, having

appeared, refuses to give evidence, the arbitral tribunal may allow a party who so requests,

within a period of time determined by the arbitral tribunal, to petition the President of the

District Court to appoint a judge-commissary before whom the examination of the witness

shall take place. The examination shall take place in the same manner as in ordinary court

proceedings. The Clerk of the District Court shall give the arbitrators an opportunity of

attending the examination of witnesses.

In accordance with Article 1063(1) NAA, enforcement of an arbitral award may be refused

by the President of the District Court only if the award or the manner in which it was made

is manifestly contrary to public policy or good morals, or if enforcement is ordered

notwithstanding the lodging of an appeal in violation of Article 1055, or if a penalty for non-

compliance is imposed in violation of Article 1056.

Tribunal deciding ex aequo et bono: In accordance with Article 1054(3) NAA the parties

may agree that the tribunal can decide the case as amiable compositeur.

Tribunal powers: In accordance with Article 1039 NAA, the arbitral tribunal may, at the

request of either party, allow a party to produce witnesses or experts. The arbitral tribunal

shall have the power to designate one of its members to examine witnesses or experts. 4.

The arbitral tribunal shall have the power to order the production of documents.

In accordance with Article 1039(5) NAA, unless the parties have agreed otherwise, the

arbitral tribunal shall have discretion in the rules of evidence to be applied.

In respect of witness examination, if the arbitral tribunal deems it necessary, it shall

examine the witnesses on oath or affirmation, in accordance with Article 1041(1) NAA.

In accordance with Article 1041(4) NAA, the arbitral tribunal may suspend the proceedings

until the day on which it has received the record of the examination of the witnesses

examined by the district court.

In accordance with Article 1043 NAA, at any stage of the proceedings the arbitral tribunal

may order the parties to appear in person for the purpose of providing information or

attempting to arrive at a settlement.

In accordance with Article 1052(1) NAA the tribunal enjoys full kompetenz-kompetenz

authority.

In accordance with Article 1056 NAA The arbitral tribunal has the power to impose a

penalty for non-compliance in cases where the court has such power.

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

Human rights issues: In situations where the arbitration agreement confers undue

privileges on one party in relation to the appointment of arbitrators, the other party may

request the district court to rectify this, in accordance with Article 1028 NAA.

Multi-party arbitration and joinders: Despite the fact that the NAA is a relatively old

piece of legislation, it is unique in that it has an exhaustive provision on multi-party

arbitration. Article 1045 NAA stipulates that at the written request of a third party who has

an interest in the outcome of the arbitral proceedings, the arbitral tribunal may permit such

party to join the proceedings, or to intervene therein. The arbitral tribunal shall send

without delay a copy of the request to the parties. In equal manner, a party who claims to

be indemnified by a third party may serve a notice of joinder on such a party. A copy of the

notice shall be sent without delay to the arbitral tribunal and the other party. The joinder,

intervention or joinder for the claim of indemnity may only be permitted by the arbitral

tribunal, having heard the parties, if the third party accedes by agreement in writing

between him and the parties to the arbitration agreement. On the grant of a request for

joinder, intervention, or joinder for the claim of indemnity, the third party becomes a party

to the arbitral proceedings.

Under the terms of the draft law Article 1045 is replaced by a new provision, which is

explained at the close of this chapter.

Consolidation of arbitral proceedings: Article 1046 NAA stipulates that if arbitral

proceedings have been commenced before an arbitral tribunal in the Netherlands

concerning a subject matter which is connected with the subject matter of arbitral

proceedings commenced before another arbitral tribunal in the Netherlands, any of the

parties may, unless the parties have agreed otherwise, request the President of the District

Court in Amsterdam to order a consolidation of the proceedings. The President may wholly

or partially grant or refuse the request, after he has given all parties and the arbitrators an

opportunity to be heard. His decision shall be communicated in writing to all parties and the

arbitral tribunals involved. If the President orders consolidation in full, the parties shall in

consultation with each other appoint one arbitrator or an uneven number of arbitrators and

determine the procedural rules which shall apply to the consolidated proceedings. If, within

the period of time prescribed by the President, the parties have not reached agreement on

the above, the President shall, at the request of any of the parties, appoint the arbitrator or

arbitrators and, if necessary, determine the procedural rules which shall apply to the

consolidated proceedings. The President shall determine the remuneration for the work

already carried out by the arbitrators whose mandate is terminated by reason of the full

consolidation. If the President orders partial consolidation, he shall decide which disputes

shall be consolidated. The President shall, if the parties fail to agree within the period of

time prescribed by him, at the request of any of the parties, appoint the arbitrator or

arbitrators and determine which rules shall apply to the consolidated proceedings. In this

event the arbitral tribunals before which arbitrations have already been commenced shall

suspend those arbitrations. The award of the arbitral tribunal appointed for the

consolidated arbitration shall be communicated in writing to the other arbitral tribunals

involved. Upon receipt of this award, these arbitral tribunals shall continue the arbitrations

commenced before them and decide in accordance with the award rendered in the

consolidated proceedings.

Appeals to second arbitral tribunal: The parties may validly agree to submit appeals

against the award to a second arbitral tribunal, in accordance with Article 1050 NAA.

_______________________________________________________________________

Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Summary arbitral proceedings: In accordance with Article 1051 NAA the parties may

agree to request that the tribunal decide the dispute by means of summary proceedings,

provided that they are compatible with the parties’ due process rights. The award has the

same effect as other awards rendered in ordinary proceedings.

Types of awards: In accordance with Article 1049 NAA the tribunal may issue final, partial

and interim awards, unlike other jurisdictions whereby interim awards are not available.

Only final and partial awards have the effect of res judicata, in accordance with Article

1059(1) NAA. An additional award under Article 1061 NAA is equally a final award.

Deposit of award: In accordance with Article 1058(1)(b) NAA, the arbitral tribunal must

without delay, once it renders the award, deposit the original of the final or partial final

award with the Registry of the District Court within whose district the place of arbitration is

located. The deposit of awards is a compulsory requirement. The mandate of the tribunal

ends with its deposit of the award at the registry.

Enforcement of (domestic) awards: In accordance with Article 1062(1) NAA,

enforcement in the Netherlands of a final or partial final arbitral award which is not open to

appeal to a second arbitral tribunal, or which is declared provisionally enforceable, or a final

or partial award rendered on arbitral appeal, can take place only after the President of the

District Court with whose Registry the original of the award shall be deposited has, in

pursuance of a request of one of the parties, granted leave for enforcement. Leave for

enforcement shall be recorded on the original of the arbitral award or, if no deposit of the

arbitral award has taken place, shall be laid down in a decision. It should be noted that

Article 1062 CCP is replaced by a new provision under the same number (see below).

In accordance with Article 1063(1) NAA, enforcement of an arbitral award may be refused

by the President of the District Court only if the award or the manner in which it was made

is manifestly contrary to public policy or good morals, or if enforcement is ordered

notwithstanding the lodging of an appeal in violation of Article 1055, or if a penalty for non-

compliance is imposed in violation of Article 1056.

Setting awards aside: In accordance with Article 1065 NAA, setting aside of the award

can take place only on one or more of the following grounds:

(a) absence of a valid arbitration agreement;

(b) the arbitral tribunal was constituted in violation of the rules applicable thereto;

(d) the award is not signed or does not contain reasons in accordance with the

provisions of article 1057;

(e) the award, or the manner in which it was made, violates public policy or good

morals.

The ground mentioned in paragraph ( a ) above shall not constitute a ground for setting

aside in the case mentioned in Article 1052(2).

The ground mentioned in paragraph (b ) above shall not constitute a ground for setting

aside in the cases mentioned in Article 1052(3).

The ground mentioned in paragraph (c ) above shall not constitute a ground for setting

aside if the party who invokes this ground has participated in the arbitral proceedings

without invoking such ground, although it was known to him that the arbitral tribunal did

not comply with its mandate.

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Policy Department C: Citizens' Rights and Constitutional Affairs

If the arbitral tribunal has awarded in excess of, or differently from, what was claimed,

the arbitral award shall be partially set aside to the extent that the part of the award

which is in excess of or different from the claim can be separated from the remaining

part of the award.

If and to the extent that the arbitral tribunal has failed to decide one or more matters

submitted to it, the application for setting aside on the ground mentioned in paragraph

(1)(c ) above shall be admissible only if an additional award mentioned in Article

1061(1) is made, or the request for an additional award mentioned in Article 1061(1)

has wholly or partially been rejected.

Revocation of awards: Besides setting aside, Dutch law recognises an additional

challenge against arbitral awards, namely that of revocation, in accordance with Article

1068 NAA. Revocation of the award can take place only on one or more of the following

grounds:

(a) the award is wholly or partially based on fraud which is discovered after the award

is made and which is committed during the arbitral proceedings by or with the

knowledge of the other party;

(b) the award is wholly or partially based on documents which, after the award is

made, are discovered to have been forged;

influence on the decision of the arbitral tribunal and which were withheld as a

result of the acts of the other party.

Recognition of foreign awards: The grounds are almost identical to those set out in the

NY Convention. In a recent case, the Amsterdam Appeals Court recognised and enforced a

Russian arbitral award that had been set aside in Russia.

410

Notes on the new Arbitration Law

Article I adds a new paragraph to Article 167 of the CC wherby a legal entity established

under public law cannot rely on the law to escape submission of a dispute to arbitration if it

has agreed to arbitration.

According to the proposed additions to Article 1022 CCP an arbitration agreement does not

prevent either party from seeking interim and other measures from the courts, namely

measures of protection, preliminary examination of witnesses and expert reports,

preliminary site visits, viewing and inspection of certain important documents. The courts

shall decline jurisdiction if one of the parties asserts that there is no agreement to

arbitrate.

See footnote 8 for improvement to Article 1028 CCP regarding the removal of privileged

arbitrators.

In accordance with an improved Article 1036 CCP the tribunal shall guard (even on its own

initiative) against unreasonable delay in the proceedings, but certainly when a motion is

brought by one of the parties.

410

Appellant v OJSC Novolipetsky Metallurgichesky Kombinat, Amsterdam Appeals Court judgment (18 September

2012).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Under a new Article 1041a CCP if a witness refuses to appear the tribunal may, upon

request by any of the parties, seek an order of appearance through the courts and the

arbitrators may be present at the court hearing and ask questions to the witness.

Under a new Article 1043a CCP if the respondent defaults from the proceedings without

relying on a well-founded reason, the tribunal may render an award forthwith. This is a

somewhat significant departure from international practice whereby the tribunal typically

hears the claimant and then renders an award.

Under a new Article 1043b CCP the parties may request interim measures of protection

from the court. There is no mention that this provision replaces in any way Article 1022(2)

CCP. The new provision is closer to the UNCITRAL Model Law paradigm of interim

measures.

The existing Article 1045 CCP on multi-party arbitration and third parties is replaced by a

new provision. This author does not see a significant difference between the two provisions,

save perhaps for the stipulation in a new Article 1045a CCP whereby a third party may join

existing arbitral proceedings at the request of one of the parties if there is an agreement in

writing between the two parties, the rationale of which is to ultimately seek

indemnification.

Under a new Article 1061 the parties may by common agreement bring an appeal against

the tribunal’s award to another arbitral tribunal. However, under a new Article 1061(i),

unless the law or the nature of the case dictates otherwise, the tribunal of first instance

may enforce an award notwithstanding an arbitral appeal.

In terms of domestic enforcement Article 1062 is replaced by a new provision. More

specifically, the enforcement in the Netherlands of an arbitral award may take place only

after the judge of the court of the district in which the place of arbitration is situated, and

at the request of either party, has been granted leave. The leave shall be recorded on the

original of the judgment or, if no deposit has occurred, in a decision.

The term “public order or morals” is replaced throughout by “public policy”.

Under Article 1072b CCP an agreement in writing is satisfied through any means of

electronic communication.

Under Article 1074a CCP an agreement stipulating that arbitration should take place outside

the Netherlands, does not prevent a party from seeking protection through Dutch courts.

2.22. Poland

The Polish arbitration law is contained in part 5 of the country’s code of civil procedure

(CCP). Chapter 5 entered into force on 17 October 2005 and has since been amended twice

(but only slightly) in 2008 and 2010. The relevant articles are 1154-1216 of the CCP. Part 5

is based on the UNCITRAL Model Law, principally the 1985 version, but several aspects of

the 2006 version are also present. The underlying rationale of the Polish law-maker is to

render arbitration a popular mean of dispute resolution in the country and thus many

issues, even those traditionally left to the courts, are now arbitrable. There is equally an

emphasis on limiting the intrusion of the courts in arbitral proceedings. However,

commentators suggest that despite these developments there has not been a significant

increase in the number of cases submitted to arbitration. Besides the CCP, the 2011 Private

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Policy Department C: Citizens' Rights and Constitutional Affairs

International Law Act contains two articles (39 and 40) that pertain to arbitration, namely

the law relevant to the arbitration clause or agreement.

Scope of application (international versus domestic): Article 1154 CCP does not

distinguish between international and domestic arbitration. Instead, it stipulates that the

CCP applies to arbitral proceedings taking place on the territory of Poland. This, therefore,

encompasses all relevant arbitrations irrespective of the subject matter of the dispute or

the nationality of the parties. Part 5 of the CCP may also apply to arbitrations seated

outside Poland but there is no obligation to this effect and there exists no available case

law to provide further guidance. Given the importance of the seat of arbitration, Article

1155(2) provides a presumption where this is in doubt, namely that the place of the

proceedings was situated on the territory of the Republic of Poland if the decision closing

the proceedings in the case has been made in Poland.

Arbitrability: The general rule on arbitrability stems not from the arbitration law (part 5)

of the CCP but Article 1 CCP, whereby the scope of regulation is limited to civil cases,

namely those involving relationships in the field of civil law.

411

Therefore, unlike the vast

majority of nations, all civil law relationships, including those arising from family or

inheritance relationships are encompassed within the ambit of arbitrability. Article 1157

CCP confirms this but specifically excludes disputes arising from alimony. Social security

disputes are also excluded from arbitration under the terms of Article 477 CCP.

412

The Supreme Court has held that disputes wherein the parties seek a declaratory award as

the absence of a legal relationship arising from the invalidity of a contract is arbitrable.

413

Corporate disputes arising from the statute of the corporation are arbitrable, as is implicit

from Article 1163 of the CCP. However, the Supreme Court has held that corporate

disputes arising from a challenge to resolutions of the corporation are not arbitrable.

414

general, however, the Supreme Court held that corporate disputes are arbitrable if they are

capable of serving as the subject of a judicial settlement.

Anti-trust disputes are equally arbitrable, not least because under Polish law unfair

competition disputes are viewed as disputes in tort and Article 1157 CCP does not exclude

tort disputes. The Polish Supreme Court held that the clause providing for arbitration of “all

disputes concerning the interpretation and implementation of the terms of the agreement”

to cover tort claims resulting from unfair competition.

415

Articles 142 and 147 of the Bankruptcy and Reorganisation Law provides that once a

person or entity is declared bankrupt all the arbitration clauses to which it was a party

expire by force of law on the day of the declaration.

Finally, labour disputes are arbitrable under Article 1164 CCP if the arbitration agreement

was entered into following the dispute.

Consumer arbitration: Part 5 of the CCP does not mention whether consumer disputes

may be submitted to arbitration. However, given our aforementioned observation as

regards the scope of Article 1 CCP it is evident that consumer disputes, as civil disputes,

are subject to arbitration. However, some restrictions do apply, but in other parts of Polish

law, namely Articles 3851(1) and 3853, item 23 of the Civil Code, which require that

411

Wisniewski (2012), at 16.

412

Wisniewski (2012), at 17.

413

Case no III CZ/10, Supreme Court ruling (23 September 2010).

414

Wisniewski (2012), at 18. See case no III CZ/09, Supreme Court ruling (7 May 2009)

415

Case No I CSK 311/08, Supreme Court ruling (5 February 2009).

100

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

consumer arbitration clauses be individually negotiated, otherwise they are presumed

unfair.

Institutional versus ad hoc arbitration: Both types are allowed and well-known in

Poland, but in recent years the trend is towards institutional arbitration.

Public policy: Under Article 1206(1)(6) CCP an award may be set aside where it is in

conflict with Polish public policy (as opposed to international public policy in other nations).

In one case, the Supreme Court held that the failure of an arbitrator to disclose his social

relationship with one of the parties to the proceedings was an affront to Polish public policy

and hence set the award aside.

416

Agreement in writing: Article 1162(1) CCP requires that agreements be in writing. Article

1162 is based on the UNCITRAL Model Law and thus includes agreements by incorporation

and any exchange between the parties that provides a clear record of their intention to

submit a dispute to arbitration. Under Article 1163 CCP reference to arbitration in a

corporation’s statute suffices as an agreement in writing, save for the arbitrability

restrictions identified above. A reference to arbitration in the statutes of cooperatives or

associations is equally a valid arbitration agreement under paragraph 2 of Article 1163 CCP.

In this case an arbitration agreement incorporated in a company’s articles of association or

statute are binding on all shareholders and thus also on those who did not sign the articles

of association or statute but merely took up shares in the company. These regulations also

apply accordingly to the statute of a co-operative or association.

It should be noted that the CCP does not contain a provision in line with Article 7.5 of

UNCITRAL Model law that an arbitration agreement is in writing if it is contained in an

exchange of statements of claim and defence in which the existence of an agreement is

alleged by one party and not denied by the other.

Agents and principals: Under Article 1167, unless otherwise stated by the principal, the

agent is presumed to possess authority to bind the principal through the adoption of

arbitration agreements.

417

Arbitration agreement: Article 1168(1) CCP stipulates that: “If a person appointed in an

arbitration agreement as an arbitrator or as a chairman of an arbitral tribunal refuses to

perform this function, or if the performance of this function by that person turns out to be

impossible for other reasons, the arbitration agreement loses its force unless the parties

have agreed otherwise.” Moreover, failing a different agreement of the parties, an

arbitration agreement loses its force if the arbitral tribunal indicated in that agreement has

not accepted the case for resolution, or if the resolution of the case within that tribunal

turned out to be impossible for other reasons.

418

This is a harsh outcome because the

impossibility of performance by the arbitrators should not eliminate the parties’ expressed

desire to settle their dispute through arbitration, unless their intention was to settle their

disputes only with the specific arbitrators and no others.

Multi-party arbitration and joinder: There is no reference to multi-party arbitration in

part 5 of the CCP. Commentators suggest that this is indeed possible on the basis of

general Polish law applicable to third parties, namely where the third party acquires the

416

Case No I CSK 535/09, Supreme Court ruling (9 September 2010).

417

Even so, the Polish Supreme Court, case no III CZ/02 ruling (8 March 2002) held that in respect of arbitration

clauses the agent’s power of attorney must specifically mention his authority to enter into an arbitration

agreement. This decision has been severely criticised and perhaps may no longer apply under Polish law.

418

Art 1168(2) CCP.

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Policy Department C: Citizens' Rights and Constitutional Affairs

status of a party to the contract, whether by means of succession, assignment, cession of

rights or obligations or if he or she derives any direct benefit from the contract and has not

repudiated such benefit.

419

It is not clear, however, whether the consent of the other

parties and/or the arbitrator would also be required. It is clearly suggested by

commentators that the group of companies doctrine, although not tested by case law,

would be inapplicable in the Polish legal system.

420

Overall, parties to a multi-party relationship may agree to bring disputes arising from their

relationship before an arbitral tribunal. General rules of enforcement of such arbitration

agreements apply. Particular attention should be paid to Article 1169 § 3 CCP, according to

which provisions granting one of the parties more rights in the procedure of appointment of

the tribunal are ineffective. Arbitrators can decide upon joiner or consolidation pursuant to

Article 1184, which allows them to determine the conduct of the procedure.

Choice of law: Party autonomy dictates that there are no restrictions upon the parties as

to their choice of law. This is true of the governing law of the contract as well as the

arbitration clause and/or arbitration agreement. Article 39(1) of the 2011 Private

International Law stipulates that the arbitration clause shall be governed by the law chosen

by the parties. Where this is not stated, paragraph 2 of Article 39 states that:

the arbitration agreement shall be governed by the law of the country in which the place of

arbitration determined by the parties’ agreement is situated. In the absence of such

agreement, the arbitration agreement shall be governed by the law applicable to the legal

relationship to which the dispute relates; it shall be sufficient, however, for the arbitration

agreement to be effective pursuant to the law of the country in which the arbitration takes

place or in which the arbitral tribunal issued the award.

Arbitrators’ qualifications: There are generally no restrictions as to who may be

appointed as arbitrator. Under Article 1170(2) CCP, active judges may not accept

appointment as arbitrators. This limitation does not apply to retired or ex judges.

Liability of arbitrators: There are no specific provisions in the CCP on the liability of

arbitrators. Article 1175 CCP simply states one situation that may provide some guidance,

namely where the arbitrator resigns without serious reason, in which case he is liable for

any damages caused. Commentators suggest that the relationship between the parties and

the arbitrators is contractual, albeit the standard rules of contractual liability are unable to

fully explain the judicial function of arbitrators which must enjoy some protection or

immunity from liability. They suggest that arbitrators may be liable contractually for their

actions and omissions during the proceedings but can only be liable for the contents of the

award rendered if they have succumbed to a very grave fault or wilful action.

421

Tribunal powers: In accordance with Article 1155(1) CCP where the parties have failed to

determine the seat of the arbitration this may be done by the tribunal.

Tribunals possess full kompetenz-kompetenz powers to assess their jurisdiction under

Article 1180(1) CCP.

419

Wisniewski (2012), at 16.

420

Wisniewski (2012), at 16.

421

Wisniewski (2012), at 28-29.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

The tribunal may take evidence as it sees fit, but it does not have authority to apply any

compulsory measures in this respect under Article 1191(1) CCP.

Tribunals are allowed to adapt contracts to changed circumstances. Article 3571 of the Civil

Code allows the courts and tribunals to adapt contracts to an extraordinary change of

circumstances which causes excessive hardship for the performance by one of the parties

or results in the terms of the contract being grossly damaging to it.

Court assistance and intervention: In accordance with Article 1171 CCP where the

parties fail to reach agreement on the appointment of arbitrators and umpire they can

request the courts to undertake this task.

In accordance with Article 1176 CCP the court may ultimately decide, upon request by the

parties, challenges against arbitrators. Under 1177(2) CCP upon a request of any of the

parties, the court may remove an arbitrator if it is obvious that the arbitrator will not

perform his activities in due time or if he delays the performance thereof without a justified

reason.

The arbitrators may approach the court for assistance in determining and recovering their

fees. In accordance with Article 1179(1) the remuneration due should be determined in

proportion to the arbitrators’ workload and the value of the subject of the dispute. The

decision of the courts in this regard is appealable under paragraph 2 of Article 1179 CCP.

Where a tribunal has asserted that it does not have jurisdiction in respect of a particular

dispute (having exhausted its kompetenz-kompetenz powers), the parties may challenge

this decision before the courts in accordance with Article 1180(3) CCP.

Under Article 1192(1) the tribunal may request local courts to take evidence in respect of

arbitral proceedings.

Appeals against awards: These are prohibited, save where the parties have decided

otherwise under Article 1205(2) CCP.

Tribunal deciding ex aequo et bono: This is indeed possible in accordance with Article

1194(1) CCP. The same provision also states that tribunals may be authorised to decide

cases on the basis of “general principles”.

Interim measures: The tribunal possesses the power to order interim measures. Article

1181(1) CCP does not use the term “interim measures”, adopting instead “measures of

protection”, but it is assumed that this term encompasses the same actions as generally

included under the term “interim measures. Although these measures are binding between

the parties they are not automatically enforceable. In order for this to happen leave of

enforcement must first be granted by the court under Article 1181(3) CCP.

Setting awards aside: The grounds for setting awards aside under Article 1206 CCP are

similar to those listed in the UNCITRAL Model Law.

Enforceability of (domestic) awards: In accordance with Article 1212 CCP, in order for

an award to become binding and constitute res judicata it is necessary that it be declared

enforceable by the local courts. This is not an ex officio examination or a necessary

condition before any award can be declared binding. Rather, as Article 1213 CCP stipulates

the recognition or declaration of enforceability must be requested by one of the parties.

One understands that such an exceptional recourse (in addition to set aside proceedings)

may unnecessarily protract proceedings. The grounds for refusal of enforcement are listed

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Policy Department C: Citizens' Rights and Constitutional Affairs

in Article 1214(3) CCP and include lack of arbitrability and violation of public policy (these

are examined ex officio).

Types of awards: It is not clear in the CCP what types of awards tribunals can render in

all parts of the proceedings. Commentators suggest that tribunals can make final and

partial awards, as well as additional awards, including awards on interlocutory matters,

such as that relating to their jurisdiction.

422

Deposit of awards: Unlike other UNCITRAL jurisdictions the CCP requires that awards be

deposited with the courts or remain on file with the institution under the auspices of which

the arbitration took place. In the latter case the courts may have unlimited access to

awards filed with arbitral institutions, in accordance with Article 1204 CCP.

Fees and cost: There does not exist a general rule in the CCP but under the rules of most

arbitral institutions the parties’ costs are not reimbursable.

Enforcement of foreign awards: The CCP generally follows almost verbatim the New

York Convention. The Supreme Court has held that the judgment of a foreign court by

which it held that an award should not be set aside is not subject to enforcement or

recognition in Poland.

423

2.23. Portugal

Arbitration in Portugal is regulated by the 2011 Portuguese Voluntary Arbitration Law No

63/2011. This replaces a law that was in place close to thirty years but which was very

much outdated and out of touch with contemporary arbitration trends. It is quite telling

that unlike the usual procedure followed in Portugal whereby laws are drafted by academics

(even without practical experience of the subject matter), in the case at hand the

government called upon eminent arbitration specialists, namely the board of directors of

the Portuguese Arbitration Association (APA). It is noted by commentators that the chief

reason why the APA draft was accepted by the Portuguese government was the existence

of a MOU between the country and its creditors, namely the IMF, the EU and the ECB on

the basis of which Portugal was under an obligation to modernise its arbitration legislation

by 2011.

424

The 2011 Portuguese Arbitration Law (PAL) is exceptionally detailed and is

based on the UNCITRAL Model Law, unlike its predecessor. One of the stated aims of the

government was to render Portugal a global arbitration seat, particularly in respect of

disputes in the Portuguese-speaking world. As a follow-up, the government recently opened

up tax arbitration and commentators have noted an increase in tax arbitration in the

country.

425

This exceptionally pro-arbitration stance of the PAL and of Portugal in general

(save perhaps for some cautions judgments by Portuguese courts which shall be examined

in the course of this chapter) has culminated in the autonomy of the PAL from the

Portuguese Civil Procedure Code (CPC) which was a cause for concern and legal uncertainty

for parties to arbitral proceedings.

Scope of application (international versus domestic): The distinguishing feature

between a domestic and international arbitration is the existence of “international trade

interests”, in accordance with Article 49 of the PAL. This may ultimately turn on the

422

Wisniewski (2012), at 40.

423

ET Sp Z.o.o v TMD GmbH et al, Supreme Court ruling (6 November 2009).

424

Júdice (2012).

425

For a brief analysis of the 20 January 2011 decree, see <http://www.iota-tax.org/iota-news/new-tax-arbitrate-

regime-in-portugal-39.html>

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

nationality of the parties. Even so, Article 49 – and indeed the rationale of the PAL – makes

it clear that there are no real differences between domestic and international arbitration

taking place on the territory of Portugal and hence the same rules – with very minor

exceptions – apply to both.

Scope of application (commercial versus other): Subject to any arbitrability

requirements, Article 1(1) of the PAL stipulates that “any dispute involving economic

interests” may be submitted by the parties to arbitration. The relevant agreement need not

be contractual but be contained in any legal relationship, such as a trust deed, in

accordance with Article 1(3).

Institutional versus ad hoc arbitration: Both are well known and used in equal

measure in Portugal. However, two recent judgments whereby the claimants challenged

arbitrator fees in ad hoc arbitrations as excessive (to which the courts concurred) may turn

the tide towards institutional arbitration.

426

Arbitrability: Article 1(2) of the PAL stipulates that an arbitration agreement concerning

disputes that do not involve economic interests is also valid provided that the parties are

entitled to conclude a settlement on the right in dispute.

Article 50 of the PAL states that in arbitrations involving a state instrumentality, the latter

is not allowed to offer as a defence that the subject matter of the dispute is not arbitrable.

Arbitration agreement: Unlike other arbitration laws, the PAL not only specifically states

that the arbitration agreement may submit contentious disputes to arbitration, but also

gives the tribunal the power to “complete and adapt contracts with long-lasting obligations

to new circumstances”.

The Lisbon Court of Appeal has held that a party (a limited liability company) was not

bound by an arbitration agreement it entered into but which it did not sign and the fact that

the company was created on the same day as the arbitration agreement was entered into

did not imply that the company was bound by the arbitration clause which it had not

signed. Furthermore, the court noted that the company’s deed of incorporation did not

even refer to the agreement.

427

Moreover, in accordance with Article 5(4) of the PAL the “invalidity, inoperativeness or

unenforceability of an arbitration agreement cannot be discussed autonomously in an action

brought before a state court to that effect or in an interim measure procedure brought

before the same court, aiming at preventing the constitution or the operation of an arbitral

tribunal”. This provision is meant to deter and prevent anti-arbitration injunctions through

the back door.

Human rights considerations: The Portuguese Supreme Court has held that an

arbitration agreement is manifestly null and void where it is clear that the appointment of

one or more arbitrators does not guarantee independence and impartiality and that such an

agreement would impinge on the parties’ right to a fair trial.

428

426

Lisbon Court of Appeals judgment on arbitrators’ fees (11 July 2013); Lisbon Court of Appeals judgment on

arbitrators’ fees (2 May 2013).

427

A v B Sociedade, case no 960/80.4TBPDL.L1-2, Lisbon Court of Appeal judgment (26 May 2011).

428

X v Z, case no 170751/08.7YIPRT.L1.S1, Portuguese Supreme Court judgment (12 July 2011). The Court cited

the IBA Guidelines on Conflicts of Interest in International Arbitration in approval.

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Policy Department C: Citizens' Rights and Constitutional Affairs

As regards the right to fair trial, the Supreme Court held that the right of access to justice

should prevail over the obligation to comply with an arbitration agreement. The court took

into account the plaintiff's inability to bear legal costs for lack of economic resources and

decided that the plaintiff qualifies for legal aid that was conceded in the form of full support

in the lawsuit before the judicial court. The Court held that the interest sacrificed by the

rejection of the arbitration clause was purely procedural as opposed to the substantive

interest in the case of the right to a fair trial.

429

Agreement in writing: Arbitration agreements must be in writing, but the form is not

important, provided that it is recorded in a written document, including electronic means of

communication.

430

The written requirement is also met where the agreement “is recorded

on an electronic, magnetic, optical or any other type of support that offers the same

guarantees of reliability, comprehensiveness and preservation”, accordance with paragraph

3 of Article 2. Finally, agreements by incorporation are valid as well as the absence of

challenge in the parties statement of claim and defence, in accordance with paragraphs 4

and 5 of Article 2 respectively. However, The Coimbra Court of Appeal ordered a dispute

over three related contracts to be heard by state courts when only one of the contracts

included an arbitration agreement.

431

In the case at hand, the Court of Appeals could not

be certain that the parties intended to submit disputes arising from all three agreements to

arbitration (a matter of poor contract drafting). Oral agreements are excluded.

In accordance with Article 29(1) of the PAL, Portuguese courts may issue interim orders for

the assistance of arbitral proceedings, irrespective of the tribunals’ location.

International public policy: In respect of international arbitration the courts must

observe international public policy in accordance with Article 54 of PAL. Neither this nor

domestic public policy are defined in any way.

Arbitrators’ qualifications: There are no restrictions or qualifications required for

appointment as arbitrator.

Liability of arbitrators: Article 9(4) of the PAL is not entirely clear on this matter and no

commentary takes up the issue beyond this. This provision simply states that “arbitrators

may not be held liable for damages resulting from their decisions, save for those situations

in which judges may be so”. A first reading seems to suggest that the liability of arbitrators

is not contractual nor necessarily in tort, given that this necessarily applies to judges. But,

if they are to bear some liability (hence the rationale for any reference to liability) this must

be in tort and specifically spelt out in the PAL. This observation is consistent with Article

12(5) of the PAL whereby if an arbitrator unjustifiably withdraws from the proceedings he is

liable for any damage caused to the parties. Equally, under Article 43(4) of the PAL,

arbitrators are liable for any damage caused by unjustifiably failing to observe the 12

month time limit for rendering their award. Paragraph 5 of Article 9 of the PAL makes it

clear that the liability of arbitrators is only towards the parties.

Court intervention and assistance: One of the underlying rationales of the PAL is to

limit court intervention as much as possible and to assist the tribunal and the parties. The

429

Wall Street Institute de Portugal - Centro des Ingles SA WSI – Consultadoria e Marketing and others v Centro

des Ingles Santa Barbard LDA, Supreme Court judgment no 311/2008 (30 May 2008).

430

Arts 2(1) and (2) PAL.

431

S, LDA and MJ v A, SA and R SA, case no 477/11.8TBACN.C1, Coimbra Court of Appeal judgment (19

December 2012).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

PAL does not, however, go beyond what is typical of other arbitration statutes

implementing the UNCITRAL Model Law.

Article 10 of the PAL specifies that where the parties are unable to agree on the

appointment of party-appointed arbitrators or chairman the courts will undertake the task

of appointment. In accordance with Article 10(7) of the PAL such decisions are not subject

to any appeal.

In accordance with Article 14(5) of the PAL stipulates that challenges against arbitrators

may be submitted to the courts, whose judgments are not subject to appeals.

The courts have authority to determine arbitrators’ fees. In accordance with Article 17(3)

and (4) of the PAL:

1. (...) any of the parties may request the competent State court to reduce the

amounts of the fees or the expenses and respective advance payments fixed by

the arbitrators, whereby that State court may define the amounts it deems

adequate, after having heard the members of the arbitral tribunal on the issue.

2. In the case of a failure to make advance payments for fees and expenses

previously agreed or fixed by the arbitral tribunal or the State court, the

arbitrators may suspend or end the arbitral proceedings after a reasonable

additional time limit granted to that effect to the party or parties in default has

elapsed, without prejudice to the provisions of the following paragraph of this

article.

Under Article 38(1) of the PAL the courts may assist the tribunal with the taking of

evidence.

Tribunal deciding ex aequo et bono and as amiable compositeur: This is indeed

possible in accordance with Article 39 of the PAL. However, in accordance with paragraph 5

of Article 39 of the PAL, awards decided ex aequo et bono or under amiable compositeur

conditions may not be appealed to the courts (assuming the parties had agreed that

appeals are possible).

Interim measures: In accordance with Article 7 of the PAL the parties may turn to the

tribunal and the court for interim measures without in any way violating the terms of the

arbitration agreement.

Multi-party arbitration: Article 11 of the PAL states where there are multiple defendants

or multiple plaintiffs each group must appoint a joint arbitrator, failing which this matter

may be decided by the courts, upon request by one of the parties. Exceptionally, under

paragraph 3 of Article 10 of the PAL the “court may appoint all arbitrators and indicate

which one of them shall be the chairman, if it becomes clear that the parties that failed to

jointly appoint an arbitrator have conflicting interests regarding the substance of the

dispute, and in such event the appointment of the arbitrator meanwhile made by one of the

parties shall become void”.

Third party (joinders): The general rule in Article 36(1) is that “only third parties bound

by the arbitration agreement, whether from the date of such agreement or by having

subsequently adhered to it, are allowed to join ongoing arbitral proceedings. Such adhesion

requires the consent of all parties to the arbitration agreement and may only take place in

respect of the arbitration in question”. The second condition is that the joinder must be

agreed to by the tribunal, provided that it does not disrupt the proceedings and if there are

good reasons justifying the joinder. These good reasons are:

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Policy Department C: Citizens' Rights and Constitutional Affairs

a) the third party has an interest in relation to the subject matter of the dispute

equal to that of the claimant or respondent, such that it would have originally

permitted voluntary joinder or imposed compulsory joinder between one of the

parties to the arbitration and the third party; or

b) the third party wishes to present a claim against the respondent with the same

object as that of the claimant, but which is incompatible with the latter's claim;

c) the respondent against whom a credit is invoked that may, prima facie, be

characterized as a joint and several credit, wants the other possible joint and

several creditors to be bound by the final award; or

d) the respondent wants that third parties to be joined, against whom it may

have a claim in case the claimant's request is completely or partially granted.

In another case, however, the Court of Appeal of Lisbon held that an arbitration clause

included in a contract setting up a pensions fund (hereinafter the Contract) binds a worker

that, although not a party to that contract, accepted in a work contract termination

agreement to be a beneficiary of said fund, with the inherent rights and prerogatives.

432

However, In Autor v Companhia de Seguros BB, S.A. & Companhia de Seguros CC, S.A.,

the Supreme Court held that an arbitration clause included in an insurance contract

between two insurance companies and a third company does not bind an employee of the

latter.

433

Group of companies doctrine: Article 36(1) spells out the general position and the

Lisbon Court of Appeals has specifically stated that the group of companies doctrine does

not apply in Portuguese law. The Court held that the fact that that the defendants are in a

group relationship is not enough to extend the arbitration agreement to the companies that

were not parties to it.

434

Tribunal powers: In accordance with Article 18(1) of the PAL tribunals possess

kompetenz-kompetenz powers. Under paragraph 8 of Article 18 the tribunal possesses the

discretion as to whether to issue its decision on jurisdiction in the form of an order or an

award. This is a significant power, the effect of which is that if the decision is issued as an

award it constitutes res judicata, whereas if it is issued as a mere order it is subject to a

challenge before the local courts.

435

Under Article 20(2) of the PAL the tribunal may equally issue an interim measure in the

form of an award or an order. The same provision sets out what these interim measures

may in fact be.

Under Article 22(1) of the PAL the tribunal may attach a preliminary order to interim

orders. The party against whom a preliminary order is issued shall have the right to present

its case.

436

Preliminary orders are binding on the parties but are not automatically

432

X v Y, case no 373/09.0TTLSB.L1-4, Lisbon Court of Appeal judgment (13 January 2010).

433

Autor v Companhia de Seguros BB, S.A. & Companhia de Seguros CC, S.A, Supreme Court judgment (27

November 2008).

434

C SA v V, AS and Others, case no 3539/08.6TVLSB.L1-7, Lisbon Court of Appeals judgment (11 January 2011).

435

Art 18(9) PAL.

436

Art 22(2) PAL.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

enforceable

437

and hence the parties will have to turn to the courts in case the party

against whom they were issued fails to comply.

Types of awards: We have already seen that the tribunal can issue an award as regards

the determination of its jurisdiction. Moreover, tribunals may issue as many partial awards

as they see fit, in addition to a final award.

438

Equally, tribunals may, following a request by

the parties, issue additional awards.

439

Fees and costs: There is no general rule on this (save for Article 42(5) of the PAL below)

and the parties are free to pre-determine costs and in institutional arbitration the

institutional rules usually set the arbitrators’ fees and allocation of costs among the parties.

We have already seen (in the introduction to the chapter) in what manner the Lisbon Court

of Appeals reduced arbitrators’ fees in ad hoc arbitration by deeming them excessive. In

these cases, the fees had been agreed in advance but the parties settled half way through.

Even so, the arbitrators still charged full fees although the cases were not complex and had

spent very little time working on them.

In addition, Article 42(5) of PAL states that “unless otherwise agreed by the parties, the

award shall determine the proportions in which the parties shall bear the costs directly

resulting from the arbitration. The arbitrators may furthermore decide in the award, if they

so deem fair and appropriate, that one or some of the parties shall compensate the other

party or parties for the whole or part of the reasonable costs and expenses that they can

prove to have incurred due to their participation in the arbitration”.

Time limit to render award: This is set at 12 months (previously six months in the old

law), although this may be extended in exceptional circumstances.

440

Setting aside: The grounds for setting awards aside under Article 46(3) of the PAL are

almost identical to those found in the UNCITRAL Model Law, although, exceptionally, the

PAL’s public policy requirement is expressly inclined towards the international rather than

the domestic variant.

It is clear that the emphasis of the PAL is to save an award against which a valid ground for

setting aside has been lodged, if the tribunal can remedy the defect. Hence paragraph 8 of

Article 46, following the UNCITRAL trend, stipulates that: “the competent State court, when

asked to set aside an arbitral award, may, where appropriate, and if it is so requested by

ones of the parties, suspend the setting aside proceedings for a period of time determined

by it, in order to give the arbitral tribunal the opportunity to resume the arbitral

proceedings or to take such other action as the arbitral tribunal deems likely to eliminate

the grounds for setting aside”.

Appeals against awards: This is only possible in respect of international awards and only

if the parties so mutually consent, in accordance with Article 53.

2.24. Romania

Arbitration in Romania is regulated by the recently enacted (2013) code of civil procedure

(CCP). The CCP largely follows the UNCITRAL Model Law and is generally not controversial,

437

Art 22(5) PAL.

438

Art 42(2) PAL.

439

Art 45 PAL.

440

Art 43(1) PAL.

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Policy Department C: Citizens' Rights and Constitutional Affairs

but its structure is odd at times and although it contains numerous provisions it is not

especially elaborate. As a result, some issues remain somewhat vague, particularly as to

the meaning of public policy and the boundaries of arbitrability under Romanian law, given

that the CCP provides no definition of the former and suggests that besides the matters

specifically designated as non-arbitrable in the CCP there could be others as prescribed in

other national legislation. Commentators do not refer to case law emanating from the

country’s lower or superior courts, suggesting that little useful guidance has yet been

provided by the courts. The rules of the CCP apply insofar as the parties or the arbitral

tribunal have not themselves established rules regarding the procedure to be used in the

arbitration.

441

Scope of application (international versus domestic): Book IV (Articles 541-621) and

V (Arts 635 and 705) apply exclusively to domestic arbitrations, namely disputes where the

parties and the subject matter of the dispute relate solely to Romania. Book VII, on the

other hand, regulates international arbitral proceedings. According to Article 1110(1) and

(2) of the CCP, an arbitration that takes place in Romania is considered international if it

“arises from a private law relation with a foreign element”. This is the case even where the

place of the arbitration is in Romania and at least one of the parties, at the time when the

arbitration agreement was concluded, did not have its domicile or habitual residence or its

headquarters in Romania. Only a few provisions cover international arbitrations, as opposed

to the elaborate scheme of Book IV. However, a number of articles in Book VII clearly state

that where there is ambiguity or a gap in the regulation of international arbitrations and the

parties have not otherwise agreed how to resolve such gap or ambiguity (e.g. by reference

to institutional rules), the provisions relating to domestic arbitration apply by analogy.

442

a general rule, the vast majority of the rules relating to domestic arbitration apply mutatis

mutandis to international arbitration.

Scope of application (commercial versus non commercial): There is no reference in

the CCP as to the scope of its application so it is assumed that it applies to all types of

disputes, whether they are commercial or not, subject to any arbitrability limitations.

Institutional versus ad hoc arbitration: Both are permitted and well-known in

Romania; however, there are very few ad hoc arbitrations. Unusually, Article 619(2) CCP

gives preference to the rules of any arbitral institution selected by the parties to administer

their arbitration over any particular rules the parties may have agreed. Any deviation from

the rules of the arbitral institution is deemed null and void, unless the leadership of the

institution in question agrees to the deviation.

Arbitrability: The general rule is that the parties may submit to arbitration any disputes

regarding rights which they are free to dispose of, subject to some notable exceptions

found in the CCP (while not excluding others, but such an eventuality would be especially

rare). Article 542(1) especially excludes from arbitration disputes concerning personal

status, personal capacity, inheritance, family relations, “as well as those rights which the

parties cannot freely dispose”. With the exception of consumer disputes which will be

examined in the next section the only other non-arbitrable dispute that is not included in

the CCP relates to individual employment disputes, given that collective labour disputes

may be submitted to arbitration in accordance with Article 179 of Law no 62/2011 on Social

441

Art 544(4) CCP

442

For example, Art 1113(1) relating to the arbitral tribunal; Art 1120(3) concerning the award and; Art 1122

concerning auxiliary procedural rules.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Dialogue.

443

Equally, the High Court of Cassation has held that disputes related to public

procurement are not arbitrable, in accordance with Article 286 of Government Emergency

Ordinance 34/2006.

444

Consumer Disputes: The CCP does not make any reference to consumer disputes and

hence the conclusion is that such disputes are indeed generally arbitrable. However,

Romanian contract law may serve to render an arbitration agreement (whether pre-dispute

or post-dispute) void as a result of its possible abusive character.

445

Public policy: This concept is not elaborated in the CCP. Article 544(2) of the CCP dictates

that the procedure chosen by the parties must be consistent with public order, good morals

and the mandatory provisions of the law. This is also the case with Article 608(1)(h)

regarding set aside proceedings. This suggests that conformity with the law is distinguished

from public policy and certainly the introduction of “good morals” brings a very vague and

indeterminate factor into arbitral proceedings, which may be capitalised by protracting

parties. Article 1124 of the CCP which relates to the enforcement of foreign arbitral awards

stipulates that said awards must be consistent with the public order provisions of Romanian

private international law. This is an odd dimension of international public policy.

Agreement in writing: Article 548(1) expressly states that the arbitration agreement

must be in writing. The writing requirement is fulfilled when the parties agree to resort to

arbitration through an exchange of correspondence, irrespective of form, or through

exchanges of procedural submissions. Although this clearly excludes oral agreements, it

implicitly encompasses all those exchanges that are in written form, including emails,

irrespective if the parties have appended electronic signatures. Article 1112(1) of the CCP

which relates specifically to international arbitrations explicitly encompasses electronic mail.

Arbitration agreement: We have already determined that the arbitration agreement must

be in writing. Article 544(2) introduces the possibility of a last minute arbitration

agreement concerning the details of the procedure. This provision is oddly phrased. It

states that the parties may determine the arbitrators or their chosen rules of procedure not

only in the arbitration agreement but they can also do so at a later stage, namely not later

than the constitution of the arbitral tribunal. This may be achieved through a deed, either

expressly or by reference to a particular instrument. This deed is in all likelihood a new

agreement (not necessarily a contract) which need not necessarily (as per this author’s

personal opinion) be notarised.

In accordance with Article 548(2) of the CCP if the arbitration agreement concerns a

dispute connected with the transfer of a property right and/or the creation of another

right in rem related to immovable assets, the arbitration agreement must be authenticated

by a notary public under the sanction of absolute nullity.

In accordance with Article 550(3) of the CCP, in case of doubt, the arbitration clause shall

be interpreted to apply to all disputes that derive from the contract or from the legal

relation to which it refers. This is an important provision which legitimises tribunals to

encompass within the arbitration agreement all relevant relationships, whether contractual,

tort or other.

Article 557 states that any clause in an arbitration agreement shall be null and void to the

extent that it confers a privilege on one of the parties in designating the arbitrators, or

443

Sidere (2011), at 646-47.

444

Romanian High Court of Cassation judgment no 3483 (29 June 2010).

445

Sidere (2011), at 646.

111

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Policy Department C: Citizens' Rights and Constitutional Affairs

provides one party with the right to appoint an arbitrator on behalf of the other party or to

have more arbitrators than the other party.

Separability: Articles 550(2) and 1112(3) give formal recognition to the doctrine of

separability.

State instrumentalities: In accordance with Article 542(2) state and public authorities

may enter into arbitration agreements as long as they are allowed to do so by law or are

otherwise permitted to do so by reason of an international agreement binding upon

Romania. It is therefore strongly suggested that foreign parties consult local counsel with

respect to such domestic laws so as to ensure the legality of the agreement.

Arbitrators’ qualifications: There are no restrictions as to who may be appointed as

arbitration under Article 555 of the CCP.

Arbitrators’ conflicts of interest: Unlike other UNCITRAL-inspired statutes that simply

state that an arbitrator shall be independent and impartial, Article 562(1) of the CCP lists

several grounds that cast doubt as to the arbitrator’s impartiality and independence,

namely:

a) The failure to satisfy the qualifications or other conditions concerning the arbitrators

contained in the arbitration agreement;

b) When the arbitrator is a shareholder of, or serves in the management of, a legal

person having an interest in the dispute;

c) If the arbitrator is employed in, works for, or has direct commercial relations with

one of the parties, or with a company that is controlled by one of the parties or

placed under the common control of the parties;

d) If the arbitrator worked as consultant for, assisted or represented one of the parties,

or testified in one of the preceding phases of the dispute.

Liability of arbitrators: Arbitrators are specifically liable under Article 565 of the CPC

where they have caused damage if they:

a) resign, without cause, after accepting the appointment;

b) fail, without cause, to participate in the resolution of the dispute or do not render

the award within the term required by the arbitration agreement or the law;

c) do not observe the confidential character of the arbitration, by either publishing or

disclosing information acquired in their capacity as arbitrators without the parties'

approval; or

d) breach other duties in bad faith or gross negligence.

Representation of parties in arbitral proceedings: Article 546 of the CCP does not set

out particular requirements in respect of those requested to represent the parties in arbitral

proceedings. A power of attorney will be crucial however.

Tribunal powers: Under the terms of Article 579 of the CCP the tribunal possesses

kompetenz-kompetenz powers. Significantly, the tribunal’s positive ruling as to its

jurisdiction, although not an award (at least nothing of this nature is stipulated in Article

579) can only be challenged by set aside (annulment) proceedings in accordance with

paragraph 2 of Article 579.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

The tribunal may question willing witnesses and experts but without administering an

oath.

446

The arbitral tribunal can neither compel nor sanction witnesses or experts. To

obtain such measures, the parties may address the court.

447

The arbitral tribunal may request written information from the public authorities about their

acts and actions that are necessary for the resolution of the dispute.

448

If the public

authority refuses then the tribunal may seek assistance from the courts.

Article 591 stipulates that the arbitrators shall evaluate the evidence pursuant to their

personal conviction. Although the rationale behind this provision is to avoid any

interference by the parties it is poorly phrased and may be used by arbitrators to input

personal prejudices into the deliberations, whether of a religious or other nature.

Tribunal deciding ex aequo et bono: In accordance with Articles 601(2) and 1119(2)

the tribunal may decide cases ex aequo et bono if the parties so wish.

Court assistance and intervention: The general rule is posited in Article 547 of the CCP

which states that the parties may request the courts for assistance and the latter shall

entertain such request “without delay with priority through expedited procedures ... that

are not subject to appeal”.

Under Article 561(1) of the CCP the court may appoint the presiding arbitrator in case the

parties are unable to reach agreement among themselves. Such determination shall not be

subject to appeal in accordance with paragraph 2.

Article 612 stipulates that the court of appeal can suspend the execution of the arbitral

award against which an action for annulment (set aside) was filed. Judgments upholding an

annulment are subject to appeal in accordance with Article 613(4) of the CCP.

Provisional and conservatory measures: These may not be ordered by the tribunal but

by the court, in accordance with Article 585(1) of the CPC. The provision does not list such

measures, but since they are to be issued by the court it is evident that they are identical

to those available in judicial proceedings.

Multi-party arbitration: Article 557(3) of the CCP makes provision for multi-party

arbitration but is rather optimistic that in all cases the parties with common interests shall

be able to appoint a mutually acceptable arbitrator. Hence, the law is silent in situations

where the parties are unable to appoint common arbitrators and whether the courts have

the power (or discretion) to break up the various claimants and defendants into multiple

proceedings.

Third parties: In accordance with Article 581(1) of the CCP third parties may participate in

the arbitral proceedings but only with their consent and the consent of all parties. This

general rule notwithstanding, the third party intervention in support of a party to the

dispute is admissible even without satisfying this requirement of consent.

Time limits for arbitration: In accordance with Article 567(1) of the CCP the arbitral

tribunal must render the award not later than 6 months from its constitution, under the

sanction of lapse of the arbitration. The tribunal may decide to extend this time limit up to

446

Art 589(1) CCP.

447

Art 589(3) CCP.

448

Art 590(1) CCP.

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Policy Department C: Citizens' Rights and Constitutional Affairs

a further three months for a justifiable reason.

449

If the parties fail to declare in writing the

expiry of the time limit during the first time when they are legally notified to appear they

are presumed to have waived their right.

450

In accordance with Article 1114(4) these time

limits are doubled in international arbitrations.

Communication of procedural documents: Article 577(1) of the CCP makes a grand

departure from unnecessary formalities as regards the communication of documents during

proceedings. It states that the communication of documents related to the dispute, notices,

arbitral awards and interlocutory orders between or to the parties shall be made by

registered mail with declared contents and confirmation of receipt. Notification of the

parties of other measures ordered by the arbitral tribunal may be made via telefax,

electronic mail or other means that ensure the transmission of the text of the document

and confirmation of its receipt.

Form of arbitral award: The relevant formalities are identical to those required under the

UNCITRAL Model Law, with the addition of the signature of the secretary of the tribunal,

where applicable, in accordance with Article 603(1)(g) of the CCP.

When the award is communicated to the parties it is final and binding.

451

The tribunal must

deposit the case file with the competent court as well as proof of communication to the

parties.

452

The arbitral award constitutes a writ of execution and shall be enforced in the

same manner as a court judgment.

453

Awards issued in disputes relating to the transfer of ownership or other in rem rights over

immoveable assets must be presented to the court or to a public notary in order to obtain a

court decision or notarial deed, which will serve as basis for the registration in the land

book.

454

It is not clear which procedure the court or the notary must follow once either of

them is presented with an arbitral award.

Types of awards: Tribunals may issue final and partial awards, as well as additional

awards.

Set aside (annulment) proceedings: Only documents, not witnesses, may be used in

set aside proceedings.

455

The grounds set out in Article 608(1) of the CCP are more or less

the same as those set out in the UNCITRAL Model Law, although public policy is rather

broader than usual (explained in more detail in the relevant section). The unique ground is

point (i), which provides that:

If, after the award is made, the Constitutional Court decides on an objection raised in that

case, declaring unconstitutional a law, a government ordinance or a provision of a law or an

ordinance that was the subject of that objection, or other provisions from the challenged

legislation which, necessarily and clearly, cannot be dissociated from the provisions

mentioned in the action for annulment.

449

Art 567(4) CCP.

450

Art 568(1) CCP.

451

Art 606 CCP.

452

Art 607 CCP.

453

Art 614 CCP.

454

Art 603(3) CCP.

455

Art 608(3) CCP.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Costs and fees: According to Article 595 of the CCP, in the absence of an agreement, the

arbitration costs shall be borne entirely by the losing party if the request for arbitration is

accepted entirely, or proportionally to what has been granted if the request is partially

accepted.

In accordance with Article 598, at the request of either party in a domestic arbitration, the

court shall examine the quality of the measures ordered by the arbitral tribunal and shall

establish, through an enforceable and non-appealable decision, the amount of the

arbitrators' fees and the other costs of the arbitration, as well as the manner in which the

deposit, advance or payment shall be made.

2.25. Scotland

Arbitration in Scotland is governed by the Arbitration (Scotland) Act 2010 which received

Royal Assent on 5

January 2010 and substantially passed into force on 7

June 2010.

Scotland has a long history of arbitration, with the first treatise covering the subject dating

from 1215 and the earliest known legislation dating from 1598.

Prior to 7

June 2010, Scottish arbitration law was rather confusing, given that Scotland

effectively had two arbitration systems, one dealing with international arbitration under the

UNCITRAL Model Law, but handicapped by flawed implementing legislation, and another for

domestic arbitration based on old case law and no significant statutory law. The 2010 Act is

modelled after the Arbitration Act 1996 (applicable in England, Wales and Northern

Ireland), albeit with several alterations and although it is not expressly modelled on the

UNCITRAL Model Law the latter is certainly incorporated in the Scottish Act and in any

event both are very much compatible.

The Scottish Government conducted a lengthy consultation process before deciding on its

arbitration legislation and as has been noted Scotland is the only country to have ever

repealed the UNCITRAL Model Law.

456

With the adoption of the 2010 Act Scotland now has

only a single piece of legislation regulating all types of arbitration except consumer

arbitration, a matter reserved to the government of the United Kingdom. However, the

Model Law remains an important cornerstone of the Scottish legislation. As a result, Section

28(1) of the Act states that ministers may by order modify the Act and its rules “in such

manner as they consider appropriate in consequence of any amendment made to the

UNCITRAL Model Law, the UNCITRAL Arbitration Rules or the New York Convention”.

There is a particularity of form as regards the drafting of the Act. It is divided in two parts.

The first part consists of 37 Sections setting out what is encompassed and the key features

of arbitration. The second part consists of a large number of rules, known as the Scottish

Arbitration Rules (SAR) which are in effect the rules that apply to arbitral proceedings as

such from start to finish (and should not be confused with institutional arbitration rules).

Some of the rules are mandatory whereas others are not (default) and in order to make

reading easy the legislator has added an M (mandatory) or a D (default) next to each rule.

We should note from the outset the three founding principles of the Act (Section 1), namely

fairness, party autonomy and limited court intervention.

457

456

Dundas (2013), 595-96 and 598.

457

There are two levels of court in Scotland, namely Sheriff courts (equivalent to county courts) and the Court of

Session, equivalent to a supreme civil court, which is further divided in an Inner (appellate) House and an Outer

(first instance) House.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Scope of application (international versus domestic): Section 2(1) of the Act makes

no distinction (in terms of applicable law or rules) between domestic and international

arbitration and hence any arbitration seated in seated in Scotland is governed by the Act,

irrespective of the nationality of the parties. Section 3(1) defines an arbitration as being

seated in Scotland if:

a) Scotland is designated as the juridical seat of the arbitration—

(i) by the parties,

(ii) by any third party to whom the parties give power to so designate, or

(iii) where the parties fail to designate or so authorise a third party, by the

tribunal.

However, two or more Scottish parties may arbitrate a dispute in Scotland but if they

designate as their juridical seat a foreign jurisdiction, the provisions of the 2010 Act will not

apply, unless the court decides to sist proceedings (equivalent of a stay) where a valid

arbitration agreement exists

458

or later refuses to enforce the award.

459

Finally, in accordance with rule 52, an award is to be treated as having been made in

Scotland even if it is signed at, or delivered to or from, a place outwith Scotland.

Scope of application (commercial versus other): Subject to any arbitrability

requirements the Act does not confine arbitration to commercial disputes. In fact, Section

2(1) defines a dispute as including any refusal to accept a claim and any other difference,

whether contractual or not. In this sense, the range of disputes that may be submitted to

arbitration is virtually limitless.

Arbitrability: Section 1(b) of the Act, which is also one of the three founding principles of

the Act, makes the point that the parties’ freedom to resolve their disputes shall only be

subject “to such safeguards as are necessary in the public interest”. Section 30 of the Act

is, however, rather cryptic and the available commentaries do not offer much guidance in

this respect.

460

It states that “nothing in this Act makes any dispute capable of being

arbitrated if, because of its subject-matter, it would not otherwise be capable of being

arbitrated”. It is suggested by commentators that this absence of any real guidance on

arbitrability largely stems from the nature of Scots contract law which is entirely common-

law based and hence if the Act codified arbitrability in any detail it would have codified a

significant part of contract law. Despite the absence of any further guidance in the Act,

commentators argue that if a matter can be litigated in the courts it can be arbitrated,

subject to a limited number of exceptions, namely: a) disputes arising from criminal law; b)

winding up of companies; c) creation of property rights (save for infringements against

such rights); d) matters pertaining to public interest and status and; e) matters subject to

specific regulatory regimes.

461

Separability: This doctrine is recognised in Section 5 of the Act. Paragraph 3 of Section 5

states further that a dispute about the validity of an agreement containing an arbitration

agreement may be arbitrated in accordance with that arbitration agreement.

458

s.10 2010 Act

459

s.12 2010 Act

460

But see the 2

edition of Bartos & Dundas (2014).

461

Wilson & Allan (2012), at 694.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Institutional versus ad hoc arbitration: Both are well known in Scotland although in

practice it is fair to say that institutional arbitration is currently far more popular. At this

juncture we should stress one of the major innovations of the Act which reflects on the

appointment of arbitrators and the institutions that administer arbitration. Section 24

introduces the concept of an arbitral appointments referee (AAR), which consists essentially

of third party institutions experienced in appointing arbitrators being responsible for the

appointment of arbitrators or umpires in situations where the parties are unable to agree

among themselves. AARs, moreover, are responsible for the training and discipline of

appointed arbitrators. This task is typically undertaken by the courts under the Model Law

and it is clear that this is not a function with which the judges are familiar and it makes

absolute sense to have experts deciding on such matters. Eight professional bodies are

currently registered as AARs in Scotland, including CIArb, RICS and the Law Society of

Scotland.

462

Agreement in writing: The Act does not follow the Model Law in this respect and

commentators suggest that agreements may be made orally (although this is rare), albeit it

is implicit that any record of the parties’ agreement in whatever form this is recorded

(electronic or other) will suffice as an arbitration agreement.

463

Choice of law: We have already noted that the Act applies to all arbitrations seated in

Scotland and the Scottish Arbitration Rules contained in the Act equally apply, but the

parties may choose not to apply those that are designated as non-mandatory.

Section 13(4) of the Act allows the parties to substitute non-mandatory provisions with any

rules of their choice, including relevant provisions of the UNCITRAL Model Law.

Consumer arbitration: Consumer arbitration in Scotland is, and has since 31

January

1997 been, governed by ss.89-91 of the 1996 Act; consumer protection is a matter

reserved to Westminster and the Scottish Government has no competence in this regard.

Legal representation in arbitral proceedings: Any person may represent the parties,

regardless if he or she is a lawyer, provided that the person possesses full capacity under

the law.

464

Arbitrators’ qualifications: Any person with full capacity may serve as arbitrator.

465

The

only exception concerns judges, who may act as arbitrators or umpires where the dispute

being arbitrated appears to the judge to be of commercial character and the Lord President,

having considered the state of Court of Session business, has authorised the judge to so

act.

466

This is regarded as very unlikely to happen, in contrast to the situation in England

where TCC judges do sit as arbitrators from time to time.

Liability of arbitrators: The general rule is found in the mandatory provision of rule 73 of

the SAR, which states that neither the tribunal nor any arbitrator is liable for anything done

or omitted in the performance, or purported performance of the tribunal’s functions, unless

the act or omission is shown to have been in bad faith, or to any liability arising from the

arbitrator’s unjustified resignation under rule 16(1)(c) of the SAR.

462

Dundas (2013), at 603.

463

Dervaird (2010) at 2.

464

Rule 33, SAR.

465

Rule 4, SAR.

466

Arbitration Act, Art 25(1).

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Policy Department C: Citizens' Rights and Constitutional Affairs

Confidentiality: An unjustified disclosure by the tribunal (or a party for that matter) of

confidential information relating to the arbitration is to be “actionable as a breach of an

obligation of confidence” in accordance with rule 26(1) of the SAR. This represents a novel

provision for arbitration statutes, but disclosure is where it is consistent with the law or

broadly in the interests of justice. In one case, a party against whom arbitral proceedings

had been initiated requested documentation relating to the legal and factual bases of the

plaintiff’s claims. The respondent argued that although these did not contain any business

secrets they were not useful to the respondent. The Court decided that there was a balance

required to be struck between the right to privacy in an arbitration and the public interest

in the fair administration of justice. It decided that in order for the respondent to be in a

position to fully defend the action, the documentation should be made available to them

(only for use in this Court action) in the interests of public interest.

467

That confidentiality is

important to the courts is reflected in the first case to arise in respect of the AA10. There,

Glennie L made it clear that confidentiality was not to be lost simply because the matter

had come before the Court. He stated that: “In giving my decision I have tried to avoid

setting out any details which might betray the identity of the parties. Explanation of the

points at issue is necessarily lacking in particulars.”

468

Court assistance and intervention: One of the three founding principles of the Act as

expounded in Section 1(c) thereto is that “the court should not intervene in an arbitration

except as provided by this Act”. The courts, moreover, are mandated not to frustrate

arbitral proceedings or awards and to try to assist arbitral proceedings as much as possible,

without jeopardising the interests of justice or the parties’ own interests. A good example is

Section 20(5) of the Act whereby a convention award containing decisions on matters not

submitted to arbitration may be recognised or enforced to the extent that it contains

decisions on matters which were so submitted that are separable from decisions on matters

not so submitted.

In accordance with Section 15 a party may approach the court for an order prohibiting the

disclosure of the identity of a party to the arbitration in any report of civil proceedings. The

court’s order in this respect is final and may be based, among others, on public interest or

the interests of justice.

If the parties continue to disagree on the person of the arbitrators or the umpire following a

decision by the AAR, the matter will be referred to the courts, whose decision on the matter

is final.

469

The courts may remove an arbitrator following a request by one of the parties, subject to

several conditions laid down in rule 12 of the SAR. Equally, the courts may dismiss the

tribunal if satisfied on the application by a party that substantial injustice has been or will

be caused to that party because the tribunal has failed to conduct the arbitration in

accordance with the parties’ agreement or the rules.

470

In accordance with rule 21(1) a party may appeal to the courts against a ruling of the

tribunal on its jurisdiction.

In accordance with rule 41 of the SAR, upon an application by any party, the Outer House

may determine any point of Scots law arising in arbitral proceedings. This is

understandably a default rule. However, such an application is valid only if agreed by the

467

Gray Construction Ltd v Harley Haddow LLP, Court of Session (Outer House), case no CA86/1, judgment (18

May 2012), [2012] CSOH 92.

468

S v M, Court of Session, judgment (5 October 2011), [2011] CSOH 164.

469

Rule 77, SAR.

470

Rule 13, SAR.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

parties, determination of the legal issue at hand is likely to produce substantial savings in

expenses and there is good reason why the issue should be determined by the court.

471

It should be emphasised that the role of the courts in dealing with appeals against awards

is severely more restricted than in England. Moreover, in any instance where a matter is

capable of decision by a Sheriff, there is no right of appeal whatsoever even if that decision

is in fact made in the Outer House. By way of contrast, in England any decision by any

court can be appealed all the way to the UK Supreme Court. Appeals against awards (Outer

House only) not only have to meet a very high entry threshold but are going to be

appealable to the Inner House only in exceptional cases such as Northern Pioneer or Golden

Victory.

There is no appeal to the UK Supreme Court under any circumstances.

Tribunal deciding ex aequo et bono: This is indeed possible should the parties so wish,

in accordance with rule 47(2) of the SAR.

Types of awards: Besides final awards on the merits, tribunals may render part awards

dealing with one or more issues raised in the parties’ submission.

472

Exceptionally, the

parties may agree that the tribunal can issue them with a draft of its proposed award to

which the parties may make representations.

473

In accordance with rule 49 of the SAR, the

tribunal’s awards may:

(a) be of a declaratory nature,

(b) order a party to do or refrain from doing something (including ordering the performance

of a contractual obligation), or

of court) to the extent permitted by the law governing the deed or document.

Interim orders: This power befalls the courts in accordance with rule 46(1)(g) unless the

parties agree otherwise. The parties may also seek these from the tribunal, in accordance

with rule 53 of the SAR.

Multi-party arbitration and joinders: Rule 40 of the SAR, which is of a non-mandatory

nature, stipulates that the parties are free to consolidate several arbitration cases if they so

wish and they agree on the persons of the arbitrators. The tribunal does not possess

authority to order such consolidation on its own initiative without the parties’ consent.

Tribunal powers: We will only make reference to some exceptional powers enjoyed by

arbitral tribunals. Under rule 56 of the SAR, a mandatory rule, tribunals possess power to

withhold an award on non-payment of fees or expenses. This is effectively identical to s.56

of the Arbitration Act 1996 (AA96).

The structure of the 2010 Act and the relevant rule of court support the view that the pre-

Act practice of obtaining the arbiter's approval of a specification of documents prior to

seeking the authority of the court should remain the default position.

474

Enforcement of arbitral awards: Although awards are binding on the parties they are

not fully enforceable. The parties must apply to the court for enforcement as an “extract

471

Rule 42, SAR.

472

Rule 54, SAR.

473

Rule 55, SAR.

474

SGL Carbon Fibres Ltd, Petition for an order to disclose documents and other materials under rule 45(1) of the

Scottish Arbitration Rules, Court of Session (Outer House) case no P39/13, judgment (31 January 2013).

119

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Policy Department C: Citizens' Rights and Constitutional Affairs

registered decree bearing a warrant for execution”. This order can only be granted by the

courts, except if the award is subject to an appeal, review or correction in accordance with

Section 12(1) – (3) of the Act. This is effectively identical to s.66 AA96

Registration of awards: Section 12(5) of the Act stipulates that unless the parties

otherwise agree, a tribunal’s award may be registered for execution in the Books of Council

and Session or in the sheriff court books (provided that the arbitration agreement is itself

so registered).

Costs and fees: In accordance with rule 60(3) - (5): This is effectively identical to s.64

AA96

3. The amount of fees and expenses payable under this rule and the payment terms

are:

(a) to be agreed by the parties and the arbitrators or, as the case may be, the

arbitral appointments referee or other third party, or

(b) failing such agreement, to be determined by the Auditor of the Court of

4. Unless the Auditor of the Court of Session decides otherwise—

(a) the amount of any fee is to be determined by the Auditor on the basis of a

reasonable commercial rate of charge, and

(b) the amount of any expenses is to be determined by the Auditor on the basis

that a reasonable amount is to be allowed in respect of all reasonably incurred

expenses.

5. The Auditor of the Court of Session may, when determining the amount of fees and

expenses, order the repayment of any fees or expenses already paid which the

Auditor considers excessive (and such an order has effect as if it was made by the

court).

Rule 63 of the SAR places a mandatory ban on pre-dispute agreements concerning liability

for arbitration expenses. This is identical to s.60 AA96.

Challenges against awards: The envisaged challenges are equivalent to the set aside

proceedings laid down in the UNCITRAL Model Law with the addition of a non-mandatory

right of challenge on a point of Scots law

475

; the latter is, however, excluded by the ICC,

LCIA and some other institutional rules. The two mandatory rights of challenges are: a)

against the tribunal’s jurisdictional competence;

476

b) in respect of a serious irregularity,

the grounds for which are set out in rule 68 of SAR. In an interesting appeal against an

award for failure to apply the law correctly, it was held that an arbitrator had erred in law

with his approach to determining the minimum and maximum rents due by a tenant by

taking into account the terms of the market rather than the terms of the lease, which

stated that the basis ought to be seven per cent of the tenant's gross turnover. The award

was thus found to be inconsistent with the parties' intention and did less than justice to the

full terms of the rental provisions in the lease.

477

475

Rule 69, SAR; see also X v Y, Court of Session, judgment (27 January 2011), [2011] CSOH 164, per Glennie L,

who held that an appeal against an award as regards the onus of proof “must be on the party seeking to persuade

the arbitrator to depart from the assessment [as designated by the terms of the contract]”.

476

Rule 67, SAR.

477

Manchester Associated Mills Ltd v Mitchells and Butler Retail Ltd, Court of Session (Outer House), case

P1013/12, judgment (10 January 2013).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

In a recent case where a party challenged a preliminary award refusing arbitral jurisdiction,

the arbitrator held that notice given to one party was improper. When set aside

proceedings were heard against the preliminary award the Outer House of the Court of

session ultimately remitted the case to the arbitrator to consider the merits of the dispute,

arguing that the arbitrator had focused on technicalities and not on the original intention of

the parties and the factual background of the case.

478

It is thus clear that the courts will not

accept preliminary awards whereby tribunals refuse to hear a case if the fault is not

significant or is otherwise remediable, particularly if it is clear that the parties had intended

to submit their disputes to arbitration.

2.26. Slovakia

Arbitration in Slovakia is principally regulated by the 2002 Arbitration Act,

479

which replaced

the Arbitration Act of 1996.

480

The 2002 Act has subsequently been amended twice

481

but

its skeleton and basic principles remain unchanged. The 2002 Act is inspired by the

UNCITRAL Model Law but is not fully harmonised with it. The aim of both the 1996 and the

2002 Acts was to modernise the country’s arbitration legislation as well as render Slovakia

an attractive destination for international arbitration. One of the worrying trends is that the

new Arbitration Act (AA) has resulted in the proliferation of arbitral institutions, most of

which aim to make a profit from arbitration, in some cases regardless of whether principles

of due process and equality of parties are adhered to. There are currently more than 130

such institutions operating in the country and the situation is comparable to that of Latvia

and there is a real risk to the rule of law as a result. The AA provides for subsidiary

application of the provisions of the Code of Civil Procedure which regulates proceedings

before national courts.

In recent years Slovak courts have shown a general suspicion of arbitration. This can, to a

large extent, be tied to two factors: that institutional arbitration is uncontrolled, and that

courts do not differentiate between commercial and consumer arbitration. For example,

while it is generally accepted that tribunals may issue declaratory relief as to whether the

underlying contract is valid, two judgments by regional courts have held that the invalidity

of a contract applies ab initio, placing it beyond the reach of a settlement by the parties.

Given that only disputes for which the parties have a right to settle are arbitrable, disputes

where the validity of the underlying contract is challenged, the courts held, are not

arbitrable.

482

Such an approach is entirely inconsistent with contemporary approach to the

regulation of arbitration, and seriously undermines the functioning of arbitration in

Slovakia.

As a result of these problems, the Ministry of Justice set up a commission in August 2012 to

examine improvements to the existing regime. Proposals have now been adapted, but it is

unclear in what form they may ultimately be implemented. The original proposals envisage

a distinct law for the settlement of consumer disputes which will bring it in line with the

consumer protection directive and relevant ECJ judgments. There is also specific provision

in the amendments to the 2002 AA for expansion of arbitrability in commercial cases, in

order to remove the effect of the aforementioned judgments of the regional courts. Equally,

it is envisaged that the regime for arbitral interim measures will be expanded to reflect

478

G1 Venues Ltd v Glenerrol Ltd, Opinion of Lord Malcolm, [2013] CSOH 202, decision of 21 December 2013.

479

Act no 244/2002.

480

Act no 218/1996.

481

Act no 521 / 2005 Coll. and Act no 71/2009.

482

Ruling of the Regional Court in Nitra, file No. 26, 161/2009 (21 December 2009) and Ruling of the Regional

Court in Bratislava, file No. 2, 178/2008 (18 December 2008).

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Policy Department C: Citizens' Rights and Constitutional Affairs

Article 17 of the 2006 UNCITRAL Model Law. In general, the amendments are meant to

fully align the AA with the Model Law and make it impossible for arbitration institutions to

be operated with a sole focus on the generation of profit.

Scope of application (international versus domestic): On the basis of Article 1(1) of

the AA both domestic and international disputes are governed under the terms of the Act as

long as the seat of the tribunal is in Slovakia.

Scope of application (commercial versus non-commercial): Article 1(1) of the AA

stipulates that it governs proprietary disputes arising from commercial and civil disputes.

Proprietary disputes are those whose subject matter encompasses a monetary value or

dimension.

Institutional versus ad hoc arbitration: Both types of arbitration are allowed in

Slovakia but commentators suggest that ad hoc arbitrations are exceptionally rare and

parties generally prefer to submit disputes to institutional arbitration.

Consumer disputes: At present, the AA does not distinguish between commercial and

other disputes and no exclusion is made in respect of consumer disputes. However, with

the latest amendment to the AA in force since 2009, tribunals must take into consideration

applicable consumer protection law in their determination, irrespective if this has been

excluded in the parties’ contract, lest the award be set aside. In practice, because of the

proliferation of arbitral institutions, many of which have applied unethical standards in their

work, some tribunals have failed to observe the mandatory provisions of consumer

protection and hence the courts have taken a strict approach to the arbitrability of

consumer disputes. A new separate legislation for consumer arbitration has been proposed,

but it is unclear whether and in what form it will eventually be adopted.

Arbitrability: The general rule is that all matters susceptible to settlement and which

encompass a dispositive entitlement may be submitted to arbitration. There are some

notable exceptions, however, namely: all disputes concerned with real property, personal

status, enforcement of decisions and disputes arising out of bankruptcy or restructuring.

483

As a result, not all proprietary disputes may be submitted to arbitration. Moreover, labour

disputes are not arbitrable.

484

However, this result should be viewed from a qualified lens.

Although there is no rule prohibiting arbitrability of labour disputes, in practice parties do

not include arbitration clauses in labour contracts given the fear that they may be treated

in the same manner as consumer contracts.

Public policy: Like most jurisdictions, Slovakia does not have a definition of public policy

legislated by statute, but instead relies on the courts’ jurisprudence. While in consumer

cases the courts have traditionally given an expansive and strict interpretation of the term,

in commercial cases and in particular in cases dealing with enforcement of foreign arbitral

awards, they have broadly followed the exceptional and narrow understanding of public

policy. The Regional Court in Bratislava, for example, recently held that “The public policy

exception is to be interpreted restrictively and the refusal of enforcement on this ground is

applicable in exceptional circumstances only.”

485

Different from the Model Law, the Slovak AA does not allow domestic arbitral awards to be

set aside for breach of public policy. Hence court decisions debating public policy tend to

483

Art 1(3) AA.

484

Zilizi (2012), at 796.

485

Ruling of the Regional Court Bratislava [SVK], file No 20 CoE/77/2011 – 2199, dated 12 July 2012

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

occur only in cases of enforcement of foreign arbitral awards, where the Slovak AA copies

the grounds for non-enforcement under Article V(2) of the New York Convention.

Agreement in writing: Article 2(2) of the AA generally follows the standard set in the

Model Law and thus any written agreement, whether in the form of formal or other written

exchanges (including of an electronic) nature, suffices for the recognition of a valid

arbitration agreement and in the absence of an agreement the situation may be remedied

by the recording of the parties’ agreement in the minutes of the tribunal at its first hearing.

However, unlike other arbitration statutes, if there is no agreement and a party fails to

challenge the tribunal’s jurisdiction this does not give rise to a tacit waiver or estoppel.

Either party may later challenge the award and have it set aside for lack of jurisdiction

(absence of agreement).

486

Oral agreements are excluded by the law. Although the Model

Law and practice premised on the Law generally accepts incorporation by reference, the

Slovak Supreme Court held that an arbitration clause incorporated by reference in a bank’s

general terms and conditions through a main agreement without the parties having signed

the said terms and conditions did not qualify as a valid arbitration clause.

487

This ruling of

the Supreme Court has been severely criticised but it should be pointed out that its rulings

are not binding precedent and arbitral institutions have refused to follow it in this instance.

Arbitration agreement: Unless otherwise stipulated by the parties, an arbitration

agreement is binding upon their legal successors in accordance with Article 3(2) of the AA.

The parties may subject the arbitration clause to a law that is different to that of the

governing law of their contract.

488

Choice of law: Whereas the parties can choose any law to govern their contract, in

domestic arbitrations the applicable law will always be Slovak law.

489

Number of arbitrators: In accordance with Article 7(2) of the AA the number of

arbitrators must be uneven, otherwise the arbitral tribunal shall be composed of three

arbitrators.

Liability of arbitrators: The AA does not expressly deal with arbitrators’ liability, so the

issue is to be resolved by reference to the general principles of Slovak law. There is no

specific immunity granted by law or court jurisprudence to arbitrators or arbitral

institutions. Debates have taken place as to whether the basis for liability of arbitrators

under Slovak law should be understood as tortuous or contractual. The issue is unresolved.

The predominant view is that where arbitral awards are issued by arbitrators in the name of

the relevant arbitration institution (which is a common phenomenon in Slovakia), it is the

institution rather than the arbitrators that should bear any liability for damages caused by

an award.

490

Arbitrators’ qualifications: Under Sec. 6 of the AA, arbitrators are required to have a

clean criminal record and to have “adequate experience to perform the function of an

arbitrator” . The satisfaction of the first condition is satisfied by Slovak arbitrators with an

extract from the national criminal registry and by foreign arbitrators by an equivalent

document issued by their country of residence. The vague nature of the second condition

486

Zilizi (2012), at 780.

487

Ruling of the Supreme Court of Slovakia, file No. 2, 245/2010 (30 November 2011).

488

Art 5(1) AA.

489

Art 31(2) AA.

490

Zilizi (2012), at 782

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Policy Department C: Citizens' Rights and Constitutional Affairs

has lead to it being largely ignored in Slovak arbitration. It is proposed to be deleted in the

next amendment to the AA.

Legal representation during arbitral proceedings: There are no restrictions as to who

may represent the parties in arbitral proceedings seated in Slovakia. If this is done by

lawyers there is no requirement that they be registered in Slovakia.

Confidentiality: The arbitrators are obliged to observe confidentiality, but the parties are

not so bound unless they conclude a separate agreement to the contrary.

491

Multiparty arbitration and joinders: Multi-party arbitration is not regulated in the AA so

the relevant provisions of the CCP come into operation mutatis mutandis.

492

Third parties

may be joined in the proceedings only if they are successors to parties in the proceedings

or where in any other way the court and the party they wish to join as plaintiff or

respondent so consents.

493

The tribunal has the power to join proceedings as long as the

parties are treated equally and due process rights are fully respected.

494

Court assistance and intervention: One of the general principles arising from the CCP is

that of non-intervention by the courts in arbitral proceedings.

495

That is why all relevant

measures related to arbitration proceedings, such as interim measures and evidence-

taking, are vested in the tribunal. The courts intervene only when requested by the parties

or the tribunal, especially where the measures sought are not enforceable when made by

the tribunal.

In accordance with Article 27(3) of the AA the tribunal may request the courts to take

evidence on its behalf as any rulings in this respect are not binding on the parties.

However, court interventions in support of arbitral proceedings are very rare in practice.

Interim measures: The parties may seek interim measures and the tribunal is competent

to order these in accordance with Article 22 AA. In fact, the tribunal is competent to order

any measures it deems appropriate in order to safeguard the parties’ rights and evidence

necessary for the proceedings. However, such an order is not automatically enforceable

although the tribunal may draw appropriate inferences from a party’s failure to comply. As

a result, if a party refuses to comply the other party may seek enforcement of the order

through the courts although there are no reported cases of a successfully enforced interim

measure granted by a tribunal. The AA’s provisions on interim measures are to be

expanded by the next amendment to be in line with the provisions or Article 17 to 17J of

the Model Law’s 2006 version.

The Supreme Court has affirmed that following the commencement of arbitral proceedings

the courts have no authority to issue interim measures (as opposed to enforcing an interim

measure ordered by a tribunal).

496

The rationale here is to avoid court intervention in

arbitral proceedings and although the parties may seek relief from the tribunal, it might

frustrate their purpose if they must later enforce the tribunal’s ruling.

491

Art 8(4) AA.

492

Art 51 AA.

493

Arts 92 and 93 CCP.

494

Art 112 CCP.

495

Zilizi (2012), at 785.

496

Ruling of the Slovak Supreme Court, file no 5, 24/2013 (12 June 2013).

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Tribunal powers: Given the limitation to the courts’ powers over arbitral proceedings as

discussed above, it is natural that tribunals in Slovakia enjoy more powers as compared to

other jurisdictions

Tribunal deciding ex aequo et bono: This is indeed possible if the parties so agree.

Setting awards aside: An award rendered in Slovakia may be set aside according to

Article 40(1) of the AA if:

a) the subject matter of the dispute was not arbitrable;

b) the award deals with a dispute not contemplated by or not falling within the terms of

the arbitration agreement and the party challenging the award objected to this fact

before the arbitral tribunal;

c) the award addressed issues that had already been determined by a previous court or

arbitral tribunal;

d) the arbitration agreement is invalid;

e) a party to the arbitration was unable to present its case (e.g. was not duly

represented);

f) the award was rendered by an arbitrator who had been removed for bias;

g) the principle of equality of the parties was violated;

h) there are compelling reasons for re-opening the case (e.g. new evidence has

emerged which casts serious doubt upon the correctness of the arbitral tribunal’s

decision);

i) the award was obtained by fraud or other criminal conduct.

Clearly, some of these grounds are novel as compared to set aside grounds offered under

the UNCITRAL Model Law, particularly ground (h). Note the conspicuous absence of a public

policy ground to set aside domestic arbitral awards as per Art. 34 of the Model Law.

Costs and fees: Although an award must also specify the costs of arbitration and their

allocation between the parties

497

, the AA does not specify the principles regulating the

allocation of fees and costs. In domestic cases the rules under the CCP and the regulation

on attorney’s fees

498

would have to be applied mutatis mutandis. These can sometimes lead

to extremely high costs being awarded in cases with low complexity, but high value.

2.27. Slovenia

On 9 August 2008 Slovenia enacted into law its new Arbitration Law, which repealed its

previous arbitration legislation. Upon the adoption of the 2008 Law a number of arbitration-

pertinent instruments or provisions thereto were repealed, most notably chapter 31 of the

Slovenian Code of Civil Procedure (CCP), as well as several provisions in employment-

497

Sec. 34(4) AA

498

Regulation of the Slovak Ministry of Justice No. 655/2004, Arts 18(1) and 19(3).

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Policy Department C: Citizens' Rights and Constitutional Affairs

related legislation,

499

given that the 2008 Law has an extensive coverage of arbitration-

related employment disputes. The 2008 Arbitration Law is modelled after the 2006 version

of the UNCITRAL Model Law and lays down detailed provisions on consumer and

employment arbitration and limits the situations under which the local courts may intervene

in proceedings. Clearly, the emphasis is pro-arbitration and there are no controversial or

other ambiguities in the Law, other perhaps than the fact that public policy is not defined at

all. Article 2(1) of the Law goes on to say that “in the interpretation of the provisions of this

Law, regard is to be had to the need to promote uniformity in the application of the

UNCITRAL Model Law on International Commercial Arbitration and to the principle of good

faith.”

Scope of application (international versus domestic): In accordance with Article 1(1)

of the Arbitration Law an arbitration is considered as being domestic if the seat is in

Slovenia, irrespective of the national (or country of incorporation in respect of legal

persons) of the parties to the proceedings. In accordance with paragraph 2 of Article 1, an

arbitration is considered foreign (or international) if its seat is abroad.

Paragraph 3 of Article 1 goes on to say that until the seat of arbitration has been

determined, Slovenian courts have jurisdiction to decide matters referred to in Article 9 of

the Law, provided that one of the parties has its permanent or temporary residence in the

Republic of Slovenia.

Scope of application (commercial versus other): Subject to arbitrability limitations

there are no restrictions as to the application of the Arbitration Law. Article 4(1) of the

Arbitration Law states that the subject of an arbitration agreement may be: “any claim

involving an economic interest.” In fact, as will be discussed in another section, it applies to

both consumer and employment disputes.

Arbitrability: The general rule is laid down in Article 4(1) whereby any claim involving an

economic interest may be submitted to arbitration. Other claims may be submitted to

arbitration to the extent that parties are legally permitted to settle them. Consumer

disputes are arbitrable (Articles 44ff), as are also employment disputes (Articles 48-49). In

respect of both, however, the agreement to arbitrate must have been signed after the

dispute arose and must be individually negotiated.

500

On 30 July 2011 the Slovenian Parliament adopted an “authentic interpretation” of Article

40 of Law 32/93 on Commercial Public Services, which appears to make disputes arising

from concession contracts non-arbitrable, although caselaw interpreting the provision is not

yet available. Specifically, it states that: “where there is a dispute concerning the

performance of a concession contract between the concession grantor and the

concessionaire, the decision will be made by the court of general jurisdiction.” It goes on to

state that Article 40 “is to be understood to the effect that the resolution of disputes

between the grantor of the concession and the concessionaire that may arise in connection

with the performance of the concession contract is subject to the exclusive jurisdiction of

the courts.”

499

Art 11 of the Law on Employment and Social Courts (Official Gazette of the Republic of Slovenia no. 2/04 and

10/04 – corrigendum); Art 205(3) of the Law on Employment Relations (Official Gazette of the Republic of

Slovenia, nos. 42/02, 79/06, 46/07 and 103/07); Art 19(3) of the Law on Electronic Commerce (Official Gazette of

the Republic of Slovenia no. 61/06); Art 20(5) of the Law on Collective Bargaining (Official Gazette of the Republic

of Slovenia no. 43/06); and Article 105 of the Law on the Participation of Employees in Management (Official

Gazette of the Republic of Slovenia no. 42/07).

500

Arts 45-48 and 49 Arbitration Law.

126

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Moreover, in accordance with Article 5 of the Arbitration Law Slovenian nationals and legal

persons seated in Slovenia are allowed to submit disputes to arbitration outside Slovenia,

except where the dispute is subject to the exclusive jurisdiction of Slovenian courts.

Presumably this provision was aimed at restricting the parties’ attempt to bypass

arbitrability restrictions by submitting their dispute to foreign arbitration. This is perhaps

superfluous given that a foreign award of this nature would have been refused enforcement

either on arbitrability or public policy grounds.

Consumer arbitration: Chapter X of the Arbitration Law renders consumer disputes lex

specialis in the sense that although they are susceptible to arbitration they are also

governed by the terms of consumer protection legislation. For one thing, an arbitration

agreement can only be concluded by means of a compromis, not an arbitration clause.

501

The compromis must be individually signed and negotiated.

502

Several other safeguards

have been put in place to protect consumers. The submission agreement must state the

seat of the arbitration.

503

However, a B2C arbitration agreement where the consumer has a

permanent or temporary residence in Slovenia or who habitually works in Slovenia, but

who, neither at the time of the conclusion of the arbitration agreement nor at the time of

the submission of the statement of claim, has a permanent or temporary residence or

habitually works in the state where the arbitration has its seat, is binding only if it is

invoked by the consumer.

Unlike other arbitration statutes, Article 47 establishes a special set aside procedure solely

for consumer disputes. The same set aside grounds applicable to ordinary awards apply

(i.e. Article 40 of the Arbitration Law) and in addition the following grounds may be utilised

by the courts in order to set aside a consumer award, namely:

1. There was a violation of mandatory provisions from which the parties cannot

derogate even in a relationship involving an international element; or

2. There is a ground on the basis of which, pursuant to the rules of civil procedure, it

would be possible to set aside a judgment and order a retrial; in such a case, the

time period for raising a claim for the setting aside of the arbitral award is the period

within which, pursuant to the rules of civil procedure, it is possible to request the

setting aside of a judgment and a retrial.

Institutional versus ad hoc arbitration: Both forms are permitted and known in

Slovenia but ad hoc arbitrations are rare.

Agreement in writing: Article 10 provides a rather broad definition of an agreement in

writing on the basis of the UNCITRAL Model Law. In general, paragraph 2 provides that any

exchange between the parties, electronic or on paper suffices, as long as there is “a record

of the arbitration agreement that is accessible and suitable for subsequent reference.” The

arbitration agreement is equally valid if it is contained in another instrument (general

contract conditions or by incorporation) where this is in accordance “with common usage”

or “is such as to make the arbitration clause part of the contract”.

504

Moreover, an

arbitration agreement is valid also if the bill of lading contains an express reference to an

arbitration clause in a charter party (paragraph 5). Equally, an arbitration agreement is

validly entered into if the claimant brings an action before an arbitration and the

501

Art 45(1) Arbitration Law.

502

Id, para 2.

503

Id, para 3.

504

Art 10(3) and (4) Arbitration Law.

127

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Policy Department C: Citizens' Rights and Constitutional Affairs

respondent does not raise a plea that the arbitral tribunal does not have jurisdiction at the

latest in the statement of defence (paragraph 6). It is implicit that oral agreements are not

recognised as valid for arbitration purposes in Slovenian law. However, an arbitration

agreement will count as “in writing” if it is included in a document transmitted by one party

to the other, or by a third party to both parties, and no objection to the arbitration

agreement was raised “in good time” (paragraph 3).

State entities: State entities may validly enter into arbitration agreements. Article 4(2) of

the Arbitration Law sets no restrictions.

Court assistance and intervention: One of the underlying rationales of the Arbitration

Law is to restrict the intervention of the courts in arbitral proceedings while at the same

time providing ample assistance to the tribunal and the parties. The designated court is the

Ljubljana District Court. In accordance with Article 9(1) of the Arbitration Law it has

jurisdiction to decide:

 The admissibility or inadmissibility of arbitral proceedings (Article 11(3));

 The appointment of an arbitrator (Article 14(3) and (4));

 Challenge of an arbitrator (Article 16(3));

 Termination of the mandate of an arbitrator (Article 17(1));

 Jurisdiction of the arbitral tribunal (Article 19(3));

 Setting aside of the arbitral award (Article 40(2));

 Declaration of enforceability of domestic awards (Article 41) and the recognition of

foreign awards (Article 42).

However, in the opinion of this author the Arbitration Law fails to address delay tactics,

given that paragraph 3 of Article 9 allows appeals against the judgment of the district court

to the Supreme Court, with all the delays such action entails. Notably, however, appeals

are allowed in every instance, and under Article 14(5) no appeal is available to a district

court’s appointment of an arbitrator when the parties have been unable to agree.

According to Article 31(1) the court may assist the tribunal in the taking of evidence,

particularly where the latter is not empowered as such. It is particularly significant that the

arbitrators are entitled to participate in any judicial taking of evidence and to ask questions.

Interim measures: The parties can request the courts to order interim measures whether

before or during the arbitral proceedings, without this being considered a breach of their

arbitration clause, in accordance with Article 12 of the Arbitration Law.

In accordance with Article 20(2) of the Arbitration Law the tribunal may order interim

measures and while these are binding on the parties they may only be enforced by the

courts, not by the arbitrators. Ex parte interim measures, however, are non-enforceable.

The Arbitration Law is silent as to what interim measures may be ordered by the tribunal,

but given the interpretative principle of Article 2(2) of the Arbitration Law, the tribunal may

seek guidance from the Model Law or even general practice or similar measures under the

Slovenian CCP.

Enforcement of foreign interim measures: Enforcement of interim measures ordered

by tribunals seated outside Slovenia are permitted in accordance with Article 43 of the

Arbitration Law.

128

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Tribunal powers: In accordance with Article 19(1) of the Arbitration Law the tribunal

possesses kompetenz-kompetenz powers.

Tribunal deciding as amiable compositeur or ex aequo et bono: Both of these forms

of decision-making are available to the parties under Article 32(3) of the Arbitration Law

Arbitrators’ qualifications: The Arbitration Law does not demand any qualifications for

appointment to the office of arbitrator.

Representation of parties in arbitral proceedings: There are no restrictions in the

Arbitration Law as to who may or may not represent the parties. Equally, there are no

limitations upon lawyers that are not registered to practice in Slovenia.

Liability of arbitrators: There is no mention in the Arbitration Law as to the liability of

arbitrators, whether contractually or as a result of tort. Equally, there is no relevant

reference in available commentaries, albeit in all likelihood, following general practice,

arbitrators would most likely be liable for any harm caused intentionally or by gross

negligence, provided a causal link can be established. Under Article 52 of the Rules of the

Ljubljana Arbitration Centre immunity extends to any act permissible under the applicable

law.

Types of awards: On the basis of language and structure of the Arbitration Law, it seems

evident that all interlocutory matters settled by the tribunal are not to be clad in the form

of awards, given that all relevant measures are not considered enforceable. As a result,

only the final decision on the merits is considered a final award giving rise to res judicata.

The same also applies to additional awards

505

and award recording a settlement

506

between

the parties.

Costs and fees: In accordance with Article 39(1), “unless otherwise agreed by the parties,

the arbitral tribunal, at the request of a party, shall decide, in the award or in the order for

the termination of the proceedings, which party and in what amount shall compensate the

other party for the costs of the proceedings, including the costs for legal representation and

the arbitrators’ fees, and bear its own costs. The arbitral tribunal does so at its discretion,

taking into consideration the circumstances of the case and the outcome of the

proceedings”.

Setting aside awards: The grounds for setting aside awards under Article 40(1) of the

Arbitration Law are more or less the same as those under the UNCITRAL Model Law.

Significantly, under the terms of paragraph 4 of Article 40, an arbitral award shall not be

set aside because of lack of jurisdiction of the arbitral tribunal, if the district court has

already decided this issue.

2.28. Spain

Arbitration is regulated in Spain by means of the Spanish Arbitration Law (Law 60/2003 of

23 December, on Arbitration), which was amended in 2009 (Law 13/2009 of 3 November

for the reform of procedural legislation for the introduction of the new judicial office), as

well as the significant amendments of the Arbitration Reform Law 2011 (Law 11/2011 of 20

May, on the reform of Law 60/2003 of 23 December, on Arbitration and on the regulation of

institutional arbitration in the General Administration of the State).The Arbitration Law

505

Art 37 Arbitration Law.

506

Art 34 Arbitration Law.

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Policy Department C: Citizens' Rights and Constitutional Affairs

2003 begins with a lengthy Statement of Purposes (Exposición de Motivos), which is not,

however, binding upon the end users of the arbitral process. It should be stressed that the

Spanish Arbitration Law (SAA) is based on the UNCITRAL Model Law, although as

commentators suggest some Spanish terms do not correspond to legal terms in the Model

Law or equivalent terms in other jurisdictions.

Scope of application (international versus domestic): Just like its developed

counterparts, Article 1(1) of the SAA does not distinguish between domestic and

international arbitrations, but is instead on the seat of the arbitration. If this is in Spain,

regardless of the international or domestic nature of the arbitration, it is encompassed

under the SAA. Even so, if an arbitration is international it may be subject to different

conflicts of law rules, as is the case with the form of the arbitration agreement in Article

9(6) SAA. This is also the case with respect to substantive law, whereby if the arbitration is

international the parties may choose any foreign law of their choice.

507

Also when an

arbitration is international, States and State enterprises cannot invoke arbitrability as a

defence in any dispute in which they have contracted with a private party, in order to

evade their obligations therefrom.

508

In accordance with Article 3(1) SAA, an arbitration is international whenever any of the

following circumstances exist:

a) that, at the time of the conclusion of the arbitration agreement, the parties have their

domiciles in different States.

b) that the place of arbitration, determined in accordance with the arbitration agreement,

the place of performance of a substantial part of the obligations of the legal relationship

from which the dispute arises, or the place with which the dispute is most closely

connected, is situated outside the State in which the parties have their domiciles.

c) that the dispute arises from a legal relationship which concerns interests of international

commerce.

Scope of application (commercial versus other): The SAA does not limit its application

to commercial disputes; hence, all disputes, unless specifically excluded by the SAA are

encompassed under the terms of the SAA. Article 1(4) SAA explicitly excludes employment

arbitration from its purview.

Institutional versus ad hoc arbitration: Both types of arbitration are recognised under

Spanish law, but it seems that the most popular among the two is institutional arbitration.

Arbitrability: Article 2(1) SAA takes up the position espoused in the Model Law,

suggesting that a dispute is generally deemed arbitrable where it may be freely disposed of

by the parties.

In accordance with Article 10, arbitration may be validly provided for in a testamentary

disposition to resolve disputes between beneficiaries or legatees in matters relating to the

distribution or administration of the estate.

Corporate arbitration: Recent amendments to the SAA introduced express arbitrability in

respect of corporate disputes, with Article 11(bis)(1) stating the general rule that internal

corporate disputes are arbitrable. The insertion of an arbitration agreement in a corporate

statute requires the vote in favour of, at least, two thirds of the votes attached to the

507

Art 34(2) SAA.

508

Art 2(2) SAA.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

shares into which the capital is divided. Moreover, the corporate statutes shall be able to

provide that the challenge to corporate resolutions by shareholders or directors is

submitted to the decision of one or more arbitrators, entrusting the administration of the

arbitration and the designation of the arbitrators to an arbitral institution.

509

Given the importance of arbitral awards on the internal functioning of corporations as well

as their external relations vis-a-vis their wider stakeholder audience, Article 11ter SAA goes

on to provide that an award declaring null and void a registrable resolution shall be

registered in the Commercial Registry, which shall publish a summary. If the impugned

resolution were registered in the Commercial Registry, the award shall provide for, in

addition, the cancellation of the registration, as well as the cancellation of subsequent

contradictory entries.

510

Consumer arbitration: This is regulated chiefly by Law 26/1984 [General Law for the

Defence of Consumers and Users], extensively amended and consolidated by Royal

Legislative Decree 1/2007. Royal Legislative Decree 1/2007 has been further amended in

several occasions, most recently by Law 3/2014. In accordance with Royal Legislative

Decree 1/2007 (articles 57 and 58) a special consumer arbitration system has been

created. Royal decree 231/2008 further develops the regulation of this system. This is a lex

specialis regime – no consumer is obliged to subscribe to this – whereby a number of

arbitration boards around the country are responsible for administering consumer

arbitration and designate appropriate arbitration bodies in respect of disputes submitted to

them. Arbitration under this system is conducted in equity, unless the parties expressly

agree to a decision on legal grounds.

Further, arbitration agreements submitting disputes with consumers to a system different

from the consumer arbitration system is considered as an abusive clause,

511

and therefore,

null and void.

512

In addition, the amendment introduced by Law 3/2014 provides that, even

when a consumer has submitted to the consume arbitration system before the dispute has

arisen, this arbitration agreement is not binding for the consumer, but only for the party

that is not a consumer.

513

As a result of the aforementioned Royal Decree 231/2008 the Spanish legislator has

created a unique consumer tool in the form of collective consumer arbitration.

514

Public policy: This is a ground for setting aside awards but is not defined in the SAA. The

Audencia Provincial of Madrid has confirmed that public policy should be construed very

narrowly and should under no circumstances be used as a pretext for re-examining the

substance of the dispute.

515

Agreement in writing: Article 9 of the SAA adopts the Model Law approach and admits all

types of agreement where there is a clear record of the parties’ intention to arbitrate,

whether in paper, optical or electronic format. Certain commentators suggest that it is

509

Art 11(bi)(3) SAA.

510

On this topic generally, see the report issued by the Spanish Arbitration Club on corporate arbitration in Spain:

https://www.clubarbitraje.com/sites/default/files/cea_Arbitraje_Societario_1.pdf.

511

Art. 90(1) of Royal Legislative Decree 1/2007, as lastly amended by Law 3/2014.

512

Art. 83 of Royal Legislative Decree 1/2007, as lastly amended by Law 3/2014.

513

Art. 57(4) of Royal Legislative Decree 1/2007, as lastly amended by Law 3/2014.

514

See Strong (2013).

515

Case no 239/2009, Audencia Provincial de Madrid judgment (13 July 2009).

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Policy Department C: Citizens' Rights and Constitutional Affairs

implicit that oral agreements are permitted as long as there is some form of record.

516

equally encompasses all agreements by incorporation (although there is no reference to

bills of lading) as well as the failure of the parties to declare the lack of agreement

following an exchange of statements and claims before the tribunal. Paragraph 6 of Article

9 makes a slight departure in respect of international arbitrations, stipulating that the form

of the agreement must be in conformity with the law chosen by the parties, or the law

applicable to the merits of the dispute or Spanish law.

Choice of substantive law: Article 34(1) SAA provides that the parties may allow the

arbitrators to decide the dispute ex aequo et bono. In addition, Article 34(2) SAA stipulates

that where the arbitration is international the parties may choose any legal rules, thereby

implying that in domestic arbitration the choice of law is not dependent on party autonomy;

i.e. it is always Spanish law where it is not ex aequo et bono. The Statement of Purposes of

the SAA clarifies that it has chosen the words "legal rules", as opposed to "law", to refer

not only to foreign legal systems, but also other rules, such as lex mercatoria or the

UNIDROIT principles.

517

Court assistance and intervention: In line with the Model Law the SAA applies a very

limited court intervention regime. More specifically, Article 8(1) SAA provides for assistance

and supervision as follows:

1. The Civil and Criminal Chamber of the Superior Court of Justice of the Autonomous

Community at the seat of the arbitration shall have jurisdiction in respect of the

judicial appointment and removal of arbitrators; if the seat has not yet been

determined, then jurisdiction shall reside with this Chamber at the domicile or

habitual place of residence of any of the respondents; if none of the respondents

have their domicile or habitual place of residence in Spain, then at the domicile or

habitual place of residence of the claimant, and if the claimant has no domicile or

habitual place of residence in Spain, then the Civil and Criminal Chamber of the

Superior Court of Justice at the place of the claimant's choice.

2. The First Instance Court at the seat of the arbitration or that of the place where the

assistance is required shall have jurisdiction in respect of judicial assistance in the

taking of evidence.

3. The Court at the place where the award has to be enforced shall have jurisdiction in

respect of interim measures and, in default of such court, that at the place where

the measures have to be implemented, in accordance with Article 724 of the Civil

Procedure Law.

4. The Court of First Instance of the place where awards or arbitral decisions are made

shall have jurisdiction over enforcement in accordance with Article 545(2) of the

Civil Procedure Law 1/2000.

5. The Civil and Criminal Chamber of the Superior Court of Justice of the Autonomous

Community of the place where the award was made shall have jurisdiction over an

application to set aside the award.

6. For the recognition of awards and foreign arbitral decisions jurisdiction shall reside

with the Civil and Criminal Chamber of the Superior Court of Justice of the

Autonomous Community of the domicile or place of residence of the party against

whom recognition is sought or of the domicile or place of residence of the person to

516

Mullerat (2004), at 141.

517

Statement of Purposes, Section VII, SAA.

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

whom they apply, with the territorial jurisdiction alternatively determined by the

place of enforcement or where those awards or arbitral decisions ought to take

effect.

Interim measures: In accordance with Article 11(3) SAA the parties may seek interim

measures from the courts either before or during arbitral proceedings, without in this

manner violating their obligations under the arbitration agreement. Under Article 23 SAA

the tribunal may order interim measures, which shall be subject to set aside and

enforcement proceedings regardless of the form of those measures.

Tribunals deciding ex aequo et bono: In accordance with Article 34(1) SAA the parties

may entrust the tribunal with deciding their case on the basis of equity.

Arbitrators’ qualifications: All persons enjoying full capacity may be appointed as

arbitrators. However, Article 13 SAA envisages situations where a person may be

disqualified by reason of his or her profession by the operation of law. As far as this author

is aware such restriction is not available as regards judges. Article 15(1) SAA introduces an

unusual criterion, providing that where a sole arbitrator is to be appointed – and assuming

his mandate is not to decide on equity – unless the parties have otherwise indicated the

arbitrator shall be a jurist. Where the number of arbitrators is three, at least one of the

arbitrators must be a jurist.

Liability of arbitrators and arbitral institutions: In accordance with Article 21(1) SAA,

the mere fact of accepting in writing one’s appointment as arbitrator – including the arbitral

institution’s handling of the case – entails an obligation to comply faithfully with one’s

pertinent responsibilities. If either the arbitrator or the institution do not faithfully discharge

their obligations they are liable for the damage and losses they cause by reason of bad

faith, recklessness or wilful misconduct. In accordance with Article 37(2) SAA the

arbitrators may incur liability for their failure to deliver an award within the specified time

limits set out by the parties.

Where the arbitration is entrusted to an arbitral institution, the injured party shall have a

direct action against the institution, regardless of any actions for compensation available

against the arbitrators in accordance with Article 21(1) SAA.

The arbitrators or the arbitral institutions on their behalf shall take out civil liability

insurance or an equivalent guarantee, to the amount established by regulation. State

entities and arbitral systems forming part of or dependent on the public administrations are

exempt from taking out this insurance or equivalent guarantee.

Challenge of arbitrators: The grounds for challenging arbitrators and the requirements

for impartiality and independence are the same as those found in the UNCITRAL Model Law.

However, certain unique features in the SAA are worthy of mention, namely that at any

time during the arbitration, any of the parties may request from the arbitrators clarification

of their relationships with any of the other parties.

518

Moreover, unless otherwise agreed by

the parties, the arbitrator shall not have acted as mediator in the same dispute between

the parties.

519

518

Art 17(2) SAA.

519

Art 17(4) SAA.

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Policy Department C: Citizens' Rights and Constitutional Affairs

Suspending proceedings for non-payment of fees: Article 21(2) SAA stipulates that

unless otherwise agreed, both the arbitrators and the arbitral institution may require from

the parties the provision of funds that they consider necessary to meet the fees and

expenses of the arbitrators and those that may be incurred in the administration of the

arbitration. Should the parties fail to provide the funds, the arbitrators may suspend or

terminate the arbitral proceedings. If one of the parties has not made its provision within

the time fixed, the arbitrators, before deciding to terminate or suspend the proceedings,

shall inform the remaining parties, so that they may provide the funds within a new period

fixed by the arbitrators, should they wish to do so.

Tribunal powers: Tribunals possess kompetenz-kompetenz powers in accordance with

Article 22(1) SAA. Their determination on such matter will be in the form of a preliminary

order or it may be included in the final award.

Ultra petita application: Article 39(1) SAA provides for the possibility of applying to the

tribunal once it has issued the award for correction, supplement and clarification, as well

as, after the amendment of 2011, removing those parts of the award that constitute excess

of powers by the tribunal. This is unusual and not envisaged under the UNCITRAL Model

Law, and it is unclear whether the failure of a party to request correction of an excess

would prevent a later action to set aside the award on the grounds of the excess.

Types of awards: The SAA prescribes the form of award for final and partial awards,

520

well as for awards recording the parties’ settlement. All other interlocutory matters are to

be settled on the basis of (non-enforceable) preliminary orders. It is not clear from the

wording of Article 23 SAA whether decisions on interim measures may be issued in the

form of awards, but standard practice is that this is done, and that such awards may then

be enforced or subject to setting aside proceedings.

Notarisation of award: In accordance with Article 37(8) SAA, the award may be

formalised before a notary public. Any of the parties, at their own expense, may require the

arbitrators, before notification, to formalise the award before a notary public. Quite clearly,

this is not a requirement that renders awards enforceable.

Setting awards aside: In accordance with Article 41(1) SAA, setting aside follows almost

verbatim the UNCITRAL Model Law. The following grounds are permissible:

a) that the arbitration agreement does not exist or is not valid.

b) that he was not given proper notice of the appointment of an arbitrator or of the

arbitral proceedings or was otherwise unable to present his case.

c) that the arbitrators have decided questions not submitted to their decision.

d) that the appointment of the arbitrators or the arbitral procedure was not in

accordance with the agreement of the parties, unless such agreement was in conflict

with a provision of this Law from which the parties cannot derogate, or, failing such

agreement, was not in accordance with this Law.

e) that the arbitrators have decided questions not capable of settlement by arbitration.

f) that the award is in conflict with public policy.

520

Art 37(1) SAA.

134

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Revision of awards: Awards are only ordinarily subject to set aside proceedings under

Article 41 SAA, albeit under exceptional circumstances they can be challenged by means of

revision, in accordance with Article 510 of the Civil Procedure Law 1/2000, before the

Spanish Supreme Court. Grounds for revision relate to the appearance of new documents in

defined circumstances, criminal proceedings finding evidence or testimony to be false, or

corruption affecting the judgment. The application of revision proceedings to arbitral

awards is envisaged in Article 43 SAA.

Enforcement of awards: Awards are enforceable and have res judicata effect.

521

award is enforceable even though an application to set aside has been made. Nevertheless,

in that event the party against whom enforcement is sought may apply to the competent

court for the suspension of enforcement, provided that it offers security for the amount

awarded, plus the damages and losses that might arise from the delay in the enforcement

of the award.

522

The judicial secretary shall lift the suspension and order that the enforcement continue

when the court is satisfied that the application to set aside has been disallowed, without

prejudice to the right of the party seeking enforcement to demand, if applicable,

indemnification for the damages and losses caused by the delay in the enforcement.

523

2.29. Sweden

Arbitration in Sweden is regulated by the 1999 Arbitration Act which applies equally to both

domestic and international arbitration. There is a long tradition of arbitration in the county

and Sweden is a major forum for international arbitration and therefore it has a long

established arbitral tradition. It is not surprising therefore that the Arbitration Act (AA) was

not modelled after the UNCITRAL Model Law, but great care was taken during the drafting

to make the two largely compatible.

524

Scope of application (international versus domestic): The AA does not distinguish

between international and domestic arbitration. Rather, it covers in equal manner all

arbitral proceedings whose seat is in Sweden.

525

It is important therefore, in case of doubt,

to determine when arbitration is seated in Sweden. In accordance with section 47(1) AA

this is the case where the arbitration agreement or the arbitrator determines that the place

of arbitration is Sweden. The same result occurs where arbitral proceedings are

commenced against a party which is domiciled in Sweden or is otherwise subject to the

jurisdiction of the Swedish courts with regard to the matter in dispute, unless the

arbitration agreement provides that the proceedings shall take place abroad.

526

Although the seat of the arbitration is the determining factor under the AA, section 47 AA

does make a distinction between domestic and international agreements, but only in terms

of the governing law of the contract. This is explained further below. It should be noted

that where none of the parties is domiciled or has its place of business in Sweden, such

parties may in a commercial relationship through an express written agreement exclude or

limit the application of the grounds for setting aside an award as are set forth in section 34.

521

Art 43 SAA.

522

Art 45(1) SAA.

523

Art 45(2) SAA.

524

See generally, Hobér (2011).

525

Section 46 AA.

526

Section 47(2) AA.

135

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Policy Department C: Citizens' Rights and Constitutional Affairs

In this case, the recognition and enforcement of such award, even if the tribunal was

seated in Sweden, shall be subject to the regime of foreign awards.

527

Scope of application (commercial versus other): In accordance with section 1(1) the

parties may instruct the tribunal to ascertain a particular fact; hence the AA is not

specifically limited to disputes as such.

Institutional versus ad hoc arbitration: Both forms are valid and recognised under

Swedish law and practice. Sweden is a place where a large number of international

arbitrations take place and is an attractive forum for disputes concerning Russian

companies and state instrumentalities.

Arbitrability: The general rule is that stipulated in section 1(1) AA, according to which

arbitration is permissible in respect of matters which the parties are legally permitted to

settle. Section 1(3) is unique, in that it is the only arbitration statute in Europe which

stipulates that the private dimension of anti-competitive disputes is susceptible to arbitral

resolution. Moreover, most disputes concerning rights in rem are not susceptible to

arbitration.

528

It is, however, accepted that although the bankrupt estate may not settle

disputes with creditors through arbitration, arbitration clauses in existence prior to the

declaration of insolvency are binding on the trustee.

529

Moreover, injunctions under the

1990 Trade Secrets Act are not arbitrable.

530

Consumer arbitration: Section 6(1) of the AA stipulates that where a dispute between a

business enterprise and a consumer concerns goods, services, or any other products

supplied principally for private use, an arbitration agreement may not be invoked where

such was entered into prior to the dispute. However, such arbitration agreements shall

apply with respect to rental or lease relationships where, through the agreement, a regional

rent tribunal or a regional tenancies tribunal is appointed as an arbitral tribunal and the

provisions of Chapter 8, section 28 or Chapter 12, section 66 of the Real Estate Code do

not prescribe otherwise. In accordance with paragraph 2 of section 6 AA pre-dispute

arbitration agreements are valid where they concern disputes between an insurer and a

policy-holder concerning insurance based on a collective agreement or group agreement

and handled by representatives of the group.

Choice of law: Section 48(1) AA makes a significant departure from international practice.

It states that where an arbitration agreement has an international connection it shall be

governed by the law agreed upon by the parties, or by the law of the country where the

proceedings are intended to take place. This implicitly suggests that where the arbitration

agreement does not have an international connection the governing law of the agreement

is always Swedish law. This is a limitation that is not found in the arbitration statutes of

leading jurisdictions and constitutes a curtailment on party autonomy.

Agreement in writing: No requirement of form (in fact no provision is available in the AA)

exists. As a result, an arbitration agreement may be both written and oral.

531

Although oral

agreements are rare they may be significant in situations where one of the parties claims

other related conditions (such as time limits etc) that were concluded orally.

527

Section 51 AA.

528

Five Seasons Fritidsaktiebolags konkursbo (bankruptcy estate) v Five Seasons Försäljningsaktiebolag, (1993)

NJA 3 (NJA 1993 p. 641).

529

Hobér (2011), at 116-17.

530

Hobér (2011), at 117.

531

Hobér (2011), at 95.

136

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Public policy: In accordance with section 55(2) AA which deals with enforcement of

foreign awards, one of the grounds for refusal relates to public policy. This is defined as

encompassing any incompatibility with the basic principles of the Swedish legal system. The

travaux to the AA include several examples of public policy, such as threats of physical

violence or bribes based upon criminal acts such as debts from unlawful gambling.

532

In the

only case dealing with public policy, the Supreme Court refused to recognise and enforce

an award where the object of dispute involved proceeds from theft and other criminal

activities on the basis that it was “manifestly incompatible with the fundamental principles

of the Swedish legal system”.

533

Multi-party arbitration: There are no provisions in the AA regulating multi-party

arbitration. However, there are no limitations on parties if they are able to agree on joint

arbitration and provided that due process rights are not infringed. In practice, this is rather

common and regulated under Article 13(4) of the SCC rules (as concerns the appointment

of arbitrators).

Tribunal powers: Section 4(1) makes the important point that the courts may not

intervene or rule on matters for which the parties have given express authority to the

tribunal in their agreement. Notable exceptions to this rule include the parallel kompetenz-

kompetenz power of tribunal with the courts and the authority of the courts to issue

judgments on interim measures prior to the constitution of the tribunal as well as during

arbitral proceedings, in accordance with section 4(3) AA.

Challenges against arbitrators on grounds of impartiality and lack of independence are

decided by the tribunal, unless the parties have decided otherwise.

534

If the challenge is

successful it is not subject an appeal.

535

In accordance with section 25(2) and (3) AA the arbitrators may refuse to admit evidence

which is offered where such evidence is manifestly irrelevant to the case or where such

refusal is justified having regard to the time at which the evidence is offered.

The arbitrators may not administer oaths or truth affirmations. Nor may they impose

conditional fines or otherwise use compulsory measures in order to obtain requested

evidence.

Tribunal deciding ex aequo et bono: There is no reference in the AA as to whether the

parties may instruct the tribunal to decide cases on the basis of equity. It is suggested,

however, that the law places no such impediment on party autonomy.

Unlike other arbitration statutes, section 40 AA provides that the arbitrators may not

withhold the award pending the payment of compensation.

In accordance with section 42 AA, unless otherwise agreed by the parties, the arbitrators

may, upon request by a party, order the opposing party to pay compensation for the

party's costs and determine the manner in which the compensation to the arbitrators shall

be finally allocated between the parties. The arbitrators' order may also include interest, if

a party has so requested.

532

Hobér (2011), at 370-71.

533

Robert G v Johnny L (2002) NJA C 45 (NJA 2002 note C 45).

534

Section 10(1) AA.

535

Section 10(2) AA.

137

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Policy Department C: Citizens' Rights and Constitutional Affairs

Kompetenz-kompetenz: The tribunal possesses the authority to determine its own

jurisdiction, but it shares this authority with the courts and there is no restriction as to

which of the two must be approached first, in accordance with section 2(1) AA. The

decision of the tribunal in this respect is not binding, under section 2(2) AA.

Arbitrators’ qualifications: There are no restrictions as to who may be appointed as

arbitrators under section 7 AA. (To act as an arbitrator a person must possess full legal

capacity in regard to his actions and his property. For example, in order to be appointed as

arbitrator one must be of age (18 years old in Sweden) and not in bankruptcy).

Liability of arbitrators: There is no reference to such liability in the AA. However, it is

generally agreed that the liability of arbitrators is contractual, save for their award-making

dimension which should reasonably be subject to some degree of immunity. The SCC rules

suggest that the liability of arbitrators arises only where they exhibit gross negligence.

Representation during legal proceedings: There are no restrictions as to who may

represent the parties during proceedings. Equally, foreign lawyers do not require

authorisation from Swedish bars.

Grounds impairing impartiality and independence: Section 8 lists several grounds

which always suggest that an arbitrator lacks impartiality. These are:

1. where the arbitrator or a person closely associated to him is a party, or otherwise

may expect benefit or detriment worth attention, as a result of the outcome of the

dispute;

2. where the arbitrator or a person closely associated to him is the director of a

company or any other association which is a party, or otherwise represents a party

or any other person who may expect benefit or detriment worth attention as a result

of the outcome of the dispute;

3. where the arbitrator has taken a position in the dispute, as an expert or otherwise,

or has assisted a party in the preparation or conduct of his case in the dispute; or

4. where the arbitrator has received or demanded compensation.

The Supreme Court has held that an appearance of bias existed in the person of the

chairman because he was working part-time in a law firm which was instructed on a regular

basis by one of the parties to the dispute.

536

However, the Supreme Court has held that an

where an arbitrator has had a ten-year career in which he sat on 112 arbitrations, in 12 of

which he had been appointed by the same party, this did not raise doubts about his

partiality.

537

Court assistance and intervention: The district court has authority to appoint arbitrators

and chairmen in cases where the parties are unable to agree on said appointment.

538

This is

also the case where an arbitrator resigns or is otherwise discharged.

539

However, in cases

where an arbitrator has delayed proceedings the parties may request that a challenge

against the arbitrator for his or her removal may be decided by the arbitral institution.

540

536

AJ v Ericsson (NJA 2007) p 841

537

Korsnäs Aktiebolag v AB Fortnum Värme, JNA judgment (9 June 2010).

538

Sections 14 and 15 AA.

539

Section 16 AA.

540

Section 17 AA.

138

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Taking of evidence from witnesses and experts under oath and truth affirmation shall be

requested from the district court as the tribunal has no authority to administer these

itself.

541

However, the arbitrators may be present during the hearing before the district

court and shall be afforded the opportunity to ask questions.

542

In accordance with section 41(1) a party or an arbitrator may bring an action in the District

Court against the award regarding the payment of compensation to the arbitrators.

Interim measures: In accordance with section 25(4) AA interim measures are ordered by

the arbitral tribunal, unless the parties have expressly excluded the application of such

measures. However, an order for interim measures issued by the tribunal is not enforceable

and the parties must seek relief for enforcement from the courts.

Types of awards: Section 27 AA suggests that only final and partial awards

543

(as well as

settlement awards) shall be in the form of an award, whereas all other preliminary issues

can only be clad in the form of decisions. The Svea Court of Appeal has held that an interim

award on the advance of costs is not only enforceable but may also form the basis for an

application for bankruptcy.

544

Set-off claims: Section 29 AA implicitly suggests that set-off claims are admissible.

Specifically, it provides that a claim invoked as a defence by way of set off shall be

adjudicated in the same award as the main claim.

Challenging awards (invalidity and setting aside): Awards may be challenged on two

grounds, namely invalidity (section 33) and through setting aside proceedings (section 34).

An award (or part thereof) is invalid if:

1. if it includes determination of an issue which, in accordance with Swedish law, may

not be decided by arbitrators;

2. if the award, or the manner in which the award arose, is clearly incompatible with the

basic principles of the Swedish legal system; or

3. if the award does not fulfil the requirements with regard to the written form and

signature in accordance with section 31(1).

An award may be set aside:

1. if it is not covered by a valid arbitration agreement between the parties;

2. if the arbitrators have made the award after the expiration of the period decided on

by the parties, or where the arbitrators have otherwise exceeded their mandate;

3. if arbitral proceedings, according to section 47, should not have taken place in

Sweden;

4. if an arbitrator has been appointed contrary to the agreement between the parties

or this Act;

5. if an arbitrator was unauthorized due to any circumstance set forth in sections 7 or

8; or

541

Section 26(1) AA.

542

Section 26(2) AA.

543

Section 29 AA.

544

Consafe IT AB v Auto Connect Sweden AB, judgment (11 March 2009).

139

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Policy Department C: Citizens' Rights and Constitutional Affairs

6. if, without fault of the party, there otherwise occurred an irregularity in the course

of the proceedings which probably influenced the outcome of the case.

In respect of both challenges, the petition shall be brought before the court of appeals. The

determination of the Court of Appeal may not be appealed. However, the Court of Appeal

may grant leave to appeal the determination where it is of importance as a matter of

precedent that the appeal be considered by the Supreme Court.

545

This exceptional appeal,

although interesting for the purpose of legal doctrine, may no doubt delay proceedings and

create problems to the parties.

It should be noted that where none of the parties is domiciled or has its place of business in

Sweden, such parties may in a commercial relationship through an express written

agreement exclude or limit the application of the grounds for setting aside an award as are

set forth in section 34. In this case, the recognition and enforcement of such award, even if

the tribunal was seated in Sweden, shall be subject to the regime of foreign awards.

546

The three-month time limit for setting awards aside begins when the party in question

received the award in its entirety.

547

In addition, the challenging party must satisfy the

pertinent legal grounds.

548

Although no extension of time is permitted the courts have

shown themselves sympathetic to requests for extra time in order to complete their

documentation.

549

It should also be noted that the Supreme Court has held that although awards must be

reasoned, an award will only be set aside if it lacks reasoning in toto (completely).

550

Challenges against infra petita awards: Section 36 provides that the parties may

challenge an award that has not dealt with the issues submitted to the tribunal. This

challenge does not result in the invalidity or setting aside of the award, but instead seeks to

force the tribunal to decide those non-determined issues.

Fees and cost: Unlike other arbitration statutes, section 40 AA provides that the

arbitrators may not withhold the award pending the payment of compensation.

In accordance with section 42 AA, unless otherwise agreed by the parties, the arbitrators

may, upon request by a party, order the opposing party to pay compensation for the

party's costs and determine the manner in which the compensation to the arbitrators shall

be finally allocated between the parties. The arbitrators' order may also include interest, if

a party has so requested.

2.30. Switzerland

Switzerland is a confederation of twenty-six cantons, each of which is responsible in

principle for its judicial organisation and the administration of justice. In the past,

arbitration in Switzerland was regulated separately in each canton. However, in 1969 an

inter-cantonal arbitration convention was entered into. This convention initially governed

both international and domestic arbitration. In 1987 the Swiss Private International Law Act

(PILA) entered into force. Chapter 12 PILA introduced specific rules on international

545

Section 43(2) AA.

546

Section 51 AA.

547

AB Akron-Maskiner v N-GG (NJA 2002) p 377.

548

Bostadsrättsforeningen Korpen v Byggnads AB Ake Sundvall, Svea Court of Appeal, judgment (16 February

2007).

549

Eg, see Fastigheten Preppen v Carlsberg (RH 2009:91).

550

Soyak International Construction and Investment Inc v Hochtief AG (JNA 2009) p 128.

140

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

arbitration. The inter-cantonal convention remained but its scope was limited to domestic

arbitration.

In 2011, the Swiss Federal Code of Civil Procedure (CPC) entered into force. Part 3 of the

CPC introduced specific rules on domestic arbitration, which replaced the rules of the inter-

cantonal convention. Today, Part 3 of the CPC governs domestic arbitration in Switzerland.

International arbitration continues to be regulated by chapter 12 PILA. Neither part 3 of the

CCP, nor the PILA, are modelled on the UNCITRAL Model Law, yet as will become evident

the PILA is very much compatible with the Model Law, as is the relevant part of the CCP.

The analysis in this chapter will concentrate on the PILA but where relevant we will discuss

the CCP, particularly where it is deemed to address issues not covered by the PILA and

which are applicable mutatis mutandis.

Scope of application (international versus domestic): The PILA applies to

international arbitrations seated in Switzerland, in accordance with Article 176(1), provided

that at the time when the arbitration agreement was concluded “at least one of the parties

had neither its domicile nor its habitual residence in Switzerland”. According to Article 21

PILA the domicile/seat of a legal person is that which is designated in its articles of

incorporation. If no such seat is designated, this coincides with its place of effective

management. The parties may exclude the application of chapter 12 of the PILA in writing if

they have agreed to be bound by part 3 of the CCP. Article 353 of the CCP stipulates that

part three thereof applies to domestic arbitrations (namely any arbitration seated in

Switzerland that does not fall under chapter 12 of PILA).

Scope of application (commercial versus other): Article 177(1) of PILA states that any

dispute involving a financial interest, thus the PILA is not restricted to commercial disputes.

It has, for example, been held to encompass sports sanctions where they produce

economic effects on the sanctioned party,

551

and this is true of all competitive sport

disputes.

552

Arbitrability: As already noted, Article 177(1) allows any dispute involving a financial

interest to be submitted to arbitration. Hence, disputes arising from private law claims in

bankruptcy proceedings are arbitrable, unless those claims are interrelated with

enforcement proceedings, as are issues concerning the nullity of partnerships and

companies and any challenges against shareholder resolutions.

553

It is further suggested

that private law matters arising out of anti-trust disputes are arbitrable under 1996 Federal

Law on Cartels and even inheritance matters may be arbitrable, assuming that the heirs

accept the arbitration clause inserted in the will of the testator; otherwise, they are only

entitled to the compulsory portion of assets provided under inheritance law.

554

The Swiss Federal Supreme Court has held that foreign arbitrability rules are not

necessarily applicable in Switzerland if the particular subject matter is arbitrable in

Switzerland, irrespective of whether the ultimate award may not as a result be enforceable

in the country in which the dispute is not arbitrable.

555

In respect of domestic arbitration, the general rule on arbitrability is found in Article 354 of

the CCP which encompasses “any claim over which the parties may freely dispose”.

551

BGE 119 II 271ff.

552

Re Mendy et Federation Francaise de boxe v AIBA, CAS judgment (31 July 1996).

553

Briner (1998), at 11.

554

Id, at 11-12.

555

A v Bulgarian Football Union, judgment (18 March 2013).

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Policy Department C: Citizens' Rights and Constitutional Affairs

Moreover, Article 361(4) of the CCP, in matters relating to the tenancy and lease of

residential property, only the conciliation authority may be appointed as arbitral tribunal.

Public policy: Public policy in the PILA is to be understood as the referring to fundamental

principles that Swiss courts believe should be the basis of any legal order, or to

fundamental and generally recognised procedural principles required by the rule of law.

556

This includes violations related to prohibitions on the misuse of the law, good faith,

discrimination, uncompensated prohibition, pacta sunt servanta and others.

557

Ad hoc versus institutional arbitration: Both are well known and extensively used by

foreign and domestic parties in Switzerland. The main institutions, besides international

arbitral institutions operating in the country, are the Swiss Chambers Arbitration

Institution, along with trade and professional associations such as the Court of Arbitration

for Sport.

State entities: Article 177(2) of PILA makes it clear that state entities that have entered

into an arbitration agreement cannot invoke domestic law regarding that entity’s capacity

to enter into arbitration agreements, or regarding the arbitrability of the subject matter of

the dispute, in order to avoid arbitration.

Agreement in writing: Article 178(1) of PILA makes it clear that an arbitration agreement

must be in writing, although this requirement is satisfied by any form of electronic or

hardcopy “which permits it to be evidenced by a text”. As a result, although oral

agreements are excluded (i.e. they cannot be evidenced by witnesses) an oral agreement

that is confirmed by reference to the parties’ subsequent emails, the evidence stemming

from the email exchanges, satisfies the writing element. Bills of lading satisfy the existence

of an agreement in writing.

558

It has been held that the signatures of all parties are not

required for the agreement to be valid.

559

Court assistance and intervention: The general rule is towards very limited court

intervention and this is well reflected in both the PILA and part 3 of the CCP. In accordance

with Article 179 of the PILA the courts have the power to appoint the umpire or arbitrators

should the parties find themselves unable to agree on such matters. Equally, under Article

180(3) of the PILA the courts determine through a non-appealable decision any challenges

against arbitrators. Although the tribunal may conduct the evidence-taking itself, it may

request the assistance of the court, in which case the court is not obliged to apply the law

chosen by the parties, but the law applicable to the court.

560

Under Article 185 PILA the

judge at the seat of the arbitral tribunal has a general power to provide further judicial

assistance.

Set off defence: Under Article 377 CCP, an arbitral tribunal has the power to decide any

set off defence, even if the subject matter of the defence does not fall within the scope of

the arbitration agreement, or is subject to another arbitration agreement or forum selection

agreement. No similar provision is included in the PILA, but it is expected a similar rule

would be applicable if agreed upon by the parties.

556

Club Atlético de Madrid SAD v. Sport Lisboa E Benfica – Futebol SAD, Bundesgericht [BGer] [Federal Court]

Apr. 13, 2010 (Switz.).

557

BGE 116 II 634.

558

Swiss Federal Court judgment (16 January 1995).

559

BGE 121 II 38.

560

Art 184 PILA.

142

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Legal aid: In the context of domestic arbitration, Article 380 of the CCP states that legal

aid is not available to participants in an arbitration.

Legal representation during arbitral proceedings: Anyone can represent the parties in

arbitral proceedings and there is no requirement that the person be a lawyer, whether

registered in Switzerland or otherwise.

Arbitrators’ qualifications: No specific qualifications are required to be appointed as

arbitrator.

Liability of arbitrators: There is no mention of liability in the PILA, but commentators

suggest that the legal relationship between the parties and arbitrators is one of mandate or

quasi-mandate. As a mandatee an arbitrator is liable in cases of negligence, although due

consideration must be had to the independence and freedom of arbitrators in respect of

their judicial function.

561

Tribunal powers: Unless otherwise provided in the law or the parties’ agreement, the

tribunal retains all powers related to arbitral proceedings. The tribunal possesses

kompetenz-kompetenz powers in accordance with Article 186(1) of the PILA and any

objection thereto must be submitted prior to any defence on the merits.

562

Tribunal deciding ex aequo et bono: This is indeed possible in accordance with Article

187(2) of the PILA. The Federal Supreme Court has ruled that when deciding a case ex

aequo et bono, the arbitrators are only limited by public policy rules.

563

Interim measures: The tribunal may order interim and protective measures, unless the

parties have otherwise agreed. If the party so ordered does not comply with the tribunal’s

order, the tribunal may request the assistance of the court.

564

Multi-party arbitration: Although no mention of multi-party arbitration is made in the

PILA it is suggested that such arbitrations and joinders are permitted because they are

allowed in domestic arbitrations in accordance with Article 362 of the CCP, provided the

parties agree on common arbitrators or in case of disagreement the competent court.

565

Types of awards: A reading of the PILA suggests that the tribunal may issue awards other

than only final awards on merits. In accordance with Article 186(3) the tribunal’s decision

on jurisdiction this may be rendered in the form of an award. The tribunal may also, unless

the parties decide otherwise, issue partial awards on the various issues raised by the

parties in their submission agreement.

566

Form of awards: In accordance with Article 189 of the PILA, in the absence of agreement

by the parties on the form of the award and the procedures applicable to it, an award must

be in writing, supported by reasons, dated and signed. It is not necessary that all

arbitrators append their signature to the award; rather, the signature of the chairman

suffices for the purposes of the PILA.

561

Briner (1998), 18.

562

Art 186(1) PILA.

563

BGE 107 Ib 63.

564

Art 183(1) and (2) PILA.

565

See also Art 376 CCP.

566

Art 188 PILA.

143

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Policy Department C: Citizens' Rights and Constitutional Affairs

Setting awards aside in international arbitration (and exclusions thereof):

Although the PILA is not based on the UNCITRAL Model Law, the grounds for setting aside

under Article 190 therefore are very similar to the Model Law. Specifically, an award (on

the merits or awards on preliminary issues) may be set aside:

a) where the sole arbitrator has been incorrectly appointed or where the arbitral

tribunal has been incorrectly constituted

b) where the arbitral tribunal has wrongly declared itself to have or not to have

jurisdiction

c) where the award has gone beyond the claims submitted to the arbitral tribunal, or

failed to decide one of the claims

d) where the principle of equal treatment of the parties or their right to be heard in

adversarial procedure has not been observed.

e) where the award is incompatible with public policy.

Article 192 of the PILA sets out the possibility of waiver or exclusion of the above

mentioned set aside proceedings in respect of arbitrations where “none of the parties has

its domicile, its habitual residence or a business establishment in Switzerland”. Said parties

may by “an express statement in the arbitration agreement or by a subsequent agreement

in writing, exclude all setting aside proceedings, or they may limit such proceedings to one

or several of the grounds listed in Article 190(2) of the PILA”. Where the parties have

excluded set aside proceedings the provisions of the New York Convention apply by analogy

in accordance with paragraph 2 of Article 192.

Challenge of awards in domestic arbitration: It is worth nothing the two possible

challenges against awards rendered in domestic arbitration in Switzerland, namely

objection (setting aside) and review (revision). The grounds for an objection under Article

393 CCP are:

a) the single arbitrator was appointed or the arbitral tribunal composed in an irregular

manner;

b) the arbitral tribunal wrongly declared itself to have or not to have jurisdiction;

c) the arbitral tribunal decided issues that were not submitted to it or failed to decide

on a prayer for relief;

d) the principles of equal treatment of the parties or the right to be heard were

violated;

e) the award is arbitrary in its result because it is based on findings that are obviously

contrary to the facts as stated in the case files or because it constitutes an obvious

violation of law or equity;

f) the costs and compensation fixed by the arbitral tribunal are obviously excessive.

The grounds for review of an award are set out in Article 396 CCP as follows:

a) the party subsequently discovers significant facts or decisive evidence that could not

have been submitted in the earlier proceedings, excluding facts and evidence that

arose after the arbitral award was made;

b) criminal proceedings have established that the arbitral award was influenced to the

detriment of the party concerned by a felony or misdemeanour, even if no one is

144

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

convicted by a criminal court; if criminal proceedings are not possible, proof may be

provided in some other manner;

c) it is claimed that the acceptance, withdrawal or settlement of the claim is invalid.

In addition, under Article 396(2) CCP, an additional ground for review exists if:

a) the European Court of Human Rights has determined in a final judgment that the

ECHR or its protocols have been violated;

b) compensation is not an appropriate remedy for the effects of the violation; and

c) the review is necessary to remedy the violation.

Whether the ECHR is directly applicable to consensual arbitration is a matter of dispute

amongst commentators, and Swiss commentators generally regard this provision as

unimportant in practice for this reason. However, the inclusion of such a provision in Swiss

law is certainly notable, and until the European Court of Human Rights has further clarified

its view on the relationship between the ECHR and arbitration it remains potentially

applicable.

In the case of a challenge of objection, if successful, the court will remit the award to the

tribunal setting a deadline for rectification or amendment, if at all possible.

567

Conversely, a

successful application for review has the effect of setting the award aside but the court may

remit the case to the arbitral tribunal once again for a new decision.

568

Finality of awards and res judicata: In accordance with Article 190(1) an award is final

from the moment it is communicated to the parties (assuming the relevant deadlines for

setting aside have gone by or set aside challenges have been finally dismissed by the

courts). What this means is that there is no requirement that the award be further enforced

or officiated in any other way. The parties may, however, request the court, in accordance

with Article 193(2) of the PILA, to certify the enforceability of the award,

569

albeit this is

meant to facilitate the parties to enforce their Swiss award abroad; hence, it is not an

additional requirement.

Deposit of awards: There is no requirement that the parties must register their awards.

They may do so at their own expense in accordance with Article 193(1) of the PILA.

Costs and fees: In accordance with Swiss practice, the losing party pays the legal fees of

its adversary as well as the costs of the arbitration, unless the rules and the parties decide

otherwise (or the arbitrators have been given discretion to rule otherwise).

570

567

Arts 394-395 CCP.

568

Art 399 CCP.

569

According to the Federal Supreme Court, BGE 117 II 57 there are three (strict circumstances) under which the

court may deny enforcement certificate, namely: grant of a stay, extinction of the claim and application of a

statute of limitations.

570

Briner (1998), at 29.

145

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

REFERENCES

Alexiev, A., ‘National Report for Bulgaria’, in Paulsson J. (ed), International Handbook on

Commercial Arbitration, Kluwer, 2010

Anglani, A. & Liguori, F., Italy’s New Arbitration Laws (2007), available at:

http://www.unlaw.it/docs_articoli/italy-s-new-arbitration-laws.pdf

Athanasiou, M., Berryman, N. & Born, G. ‘Cyprus’, in The European and Middle Eastern

Arbitration Review (2011), available at:

http://www.wilmerhale.com/uploadedFiles/WilmerHale_Shared_Content/Files/Editorial/Publ

ication/Cyprus.pdf

Babic, D. ‘Limits on Arbitration Outside Croatia: According to the Croatian Arbitration Act’

(2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1974413

(accessed 5/9/14)

Bartos, D. and Dundas, H. Bartos and Dundas on the Arbitration (Scotland) Act 2010, W

Green, 2nd edition, 2014

Briner, R., ‘National Report for Switzerland’, in Paulsson, J. (ed), International Handbook on

International Arbitration, Kluwer, 1998

Dervaird, J., ‘National Report for Scotland’, in Paulsson, J. (ed.), International Handbook of

Commercial Arbitration, Kluwer, 2010

Dundas, H., ‘Arbitration in Scotland’, in Lew, J. & Bor, H. et al. (eds.), Arbitration in

England with chapters on Scotland and Ireland, Kluwer, 2013

Ganev, A. ‘Bulgaria’, in World Arbitration Reporter, Juris, 2nd edition, 2010

Harles, G., ‘National Report for Luxembourg’, in Paulsson, J. (ed), International Handbook

of Commercial Arbitration, Kluwer, 2011

Hobér, K., International Commercial Arbitration in Sweden, Oxford University Press, 2011

Júdice, J. ‘The New Portuguese Arbitration Law’, 30 ASA Bulletin 7 (2012)

Karollus-Bruner, D., CMS Guide to Arbitration in Austria (2013), available at:

https://eguides.cmslegal.com/pdf/arbitration_volume_I/CMS%20GtA_Vol%20I_AUSTRIA.p

Kiantou-Pampouki, A., Kiantou-Pampouki Maritime Law II (6

ed. 2007) (in Greek)

Leijins, G., & Kalnina, I., ‘National Report for Latvia’, in Paulsson, J. (ed), International

Handbook on Commercial Arbitration, Kluwer, 2009

Lörcher, T. Arbitration in Germany (2008), available at:

http://eguides.cmslegal.com/pdf/arbitration_volume_I/CMS%20GtA_Vol%20I_GERMANY.p

Maisner, M. & Olik, M. ‘National Report for the Czech Republic’, in Paulsson, J. (ed),

International Handbook on Commercial Arbitration, Kluwer, 2010

Möller, G., ‘The Finnish Supreme Court and the Liability of Arbitrators’, 23 Journal of

International Arbitration 95 (2006)

Möller, G., ‘National Report for Finland’, in Paulsson, J. (ed), International Handbook on

Commercial Arbitration, Kluwer, 2009

Mullerat, R. ‘Spain Joins the Model Law’, 20 Arbitration International 139 (2004)

Patania, M. Arbitration in Italy (2004), available at:

https://eguides.cmslegal.com/pdf/arbitration_volume_I/CMS%20GtA_Vol%20I_ITALY.pdf

Pavan, V. & Cerniauske, G., ‘Lithuania National Report’, in Paulsson, J. (ed.), International

Handbook on Commercial Arbitration, Kluwer, 2012

Reichert, K. & Carey, G., ‘National Report for Ireland’, in Paulsson, J. (ed.), International

Handbook on Commercial Arbitration, Kluwer, 2011

Schwartz, F. & Conrad, C., ‘The Revised Vienna Rules: An Overview of Some Significant

Changes (and a Preview of the New Austrian Arbitration Law 2014)’, 31 ASA Bulletin 797

(2013)

146

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Annex B - Key Features of National Arbitration Law in the Member States and Switzerland

Sidere, G., Arbitration in Romania (2011), available at:

https://eguides.cmslegal.com/pdf/arbitration_volume_I/CMS%20GtA_Vol%20I_ROMANIA.p

Spiermann, I. ‘National Report for Denmark’, in Paulsson, J. (ed.), International Handbook

on Commercial Arbitration, Kluwer, 2009

Strong, S., ‘Collective Consumer Arbitration in Spain: A Civil Law Response to US-Style

Class Arbitration’, 30 Journal of International Arbitration 495 (2013)

Szasz, S. & Horvath, E., ‘National Report for Hungary’, in Paulsson, J. (ed.), International

Handbook on Commercial Arbitration, Kluwer, 2000

Udris, Z. & Kačeska, I., ‘Arbitration in Latvia: Urgent Need for Statutory Reform’, 21

Journal of International Arbitration 211 (2004)

Uzelac, A. ‘National Report for Croatia’, in Paulsson, J. (ed), International Handbook on

Commercial Arbitration, Kluwer, 2009

Vassardanis, I., ‘National Report for Greece’, in J Paulsson (ed.), International Commercial

Arbitration Handbook, Kluwer, 2012

Verbist, H., ‘New Belgian Arbitration Law of 24 June 2013 and New CEPANI Arbitration

Rules of 1 January 2013’, 30 Journal of International Arbitration 597 (2013)

Wilson, R. & Allan, V. Arbitration in Scotland (2012), available at:

http://eguides.cmslegal.com/pdf/arbitration_volume_I/CMS%20GtA_Vol%20I_SCOTLAND.

pdf

Wisniewski, A., ‘National Report for Poland’, in Paulsson, J. (ed), International Handbook of

Commercial Arbitration, Kluwer, 2012

Zilizi, P., Arbitration in Slovakia (2012), available at:

https://eguides.cmslegal.com/pdf/arbitration_volume_I/CMS%20GtA_Vol%20I_SLOVAKIA.

pdf

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Annex C - Arbitral Institutions Questionnaires

3. ANNEX C – Arbitral Institutions Questionnaires

3.1. Arbitration and Mediation Centre of Paris (CMAP)

Instructions:

1. Please answer the questions in the space provided below each question.

Answers will be provided to the Parliament as they are written below (i.e. unedited).

2. Many questions simply request a number, rather than a narrative answer (i.e.

sentence form). However, if you believe just providing a number would give an

inaccurate picture of your institution, or if you are unwilling or unable to provide a

specific number, you are welcome to write a narrative answer instead.

3. Each answer must be less than 100 words. Due to space limitations, answers over

100 words may be deleted.

General Information

1. When was your institution founded?

The Centre for Mediation and Arbitration of Paris (CMAP) was founded in 1995.

2. Is your institution formally affiliated with any superior/sponsoring

organisation/entity (e.g. chamber of commerce, bar association, government)?

Please identify.

The CMAP was founded by the Paris Chamber of Commerce and Industry as a not-for-profit

organization. The CMAP is still affiliated to the Paris Chamber of Commerce and Industry

but is financially independent. For example, the President of the CMAP is formally the

President of the Paris Chamber of Commerce.

Administration of Cases

3. How many new arbitrations have been commenced at your institution over the

past 5 years?

The number of the arbitration cases, handled by the CMAP, increased annually from 2009

to 2014. Over the past 5 years, around 90 new arbitrations have been commenced.

4. What percentage of arbitrations commenced at your institution over the past 5

years have involved an amount in dispute in the following categories:

(i) Less than 25,000 Euros (or equivalent in other currencies): 0%

(ii) 25,000-100,000 Euros (or equivalent in other currencies): 5%

(iii) 100,000-1,000,000 Euros (or equivalent in other currencies): 40%

(iv) 1,000,000-10,000,000 Euros (or equivalent in other currencies): 52%

(v) 10,000,000-100,000,000 Euros (or equivalent in other currencies): 3%

(vi) over 100,000,000 Euros (or equivalent in other currencies): 0%

5. What percentage of arbitrations commenced at your institution over the past 5

years arose from the following sectors:

(i) Corporate: 15%

(ii) Construction: 17%

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

(iii) Telecommunications: 3%

(iv) Finance and Banking: 5%

(v) Distribution/Agency/Franchise: 3,8%

(vi) Energy: 2%

(vii) Consumer: 0,2%

(viii) Investor-State: 0%

(ix) State-State (i.e. Public International Law): 0%

(x) Maritime: 0%

(xi) Other. Please specify any significant categories.

Industry

25%

Insurance

29%

6. What percentage of arbitrations commenced at your institution over the past 5

years constituted international arbitrations under the definition provided in the

UNCITRAL Model Law on International Commercial Arbitration?

20%

7. What percentage of arbitrations commenced at your institution over the past 5

years have involved a State, Parastatal or Public entity as a party?

None

8. Please list all States in which arbitrations commenced at your institution over

the past 5 years have been seated.

None

9. What percentage of arbitrations commenced at your institution over the past 5

years have not been seated in the State in which your institution is located?

None

10. Does your institution undertake any scrutiny of awards before they are

delivered to the parties? Please describe any scrutiny undertaken, whether solely

concerned with formal aspects of the award, or also concerned with the

substantive aspects of the award.

Yes, our Arbitration Committee, according to article 23.2 of the CMAP’s arbitration rules,

read the draft award and may make any comments it deems useful. The scrutiny concerns

only formal aspects.

Appointment of Arbitrators

11. In what percentage of arbitrations commenced at your institution over the

past 5 years has your institution directly appointed one or more of the arbitrators

(please include both appointment of the chair of the tribunal and appointment of

arbitrators who would normally be appointed by a party)?

According to the CMAP’s Arbitration Rules, when an arbitrator must be appointed by a

party, the CMAP has to set a time limit for so doing. If the party fails to choose an

arbitrator, the appointment shall be made by a special Committee which is called the

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

Arbitration Committee. It is a common practice for the Committee to appoint one

arbitrator, especially when the arbitral tribunal is composed by a sole arbitrator (10%).

12. Does your institution maintain a list of arbitrators? If so, please describe how

names are added to the list, and the role played by the list when your institution

is required to directly appoint an arbitrator.

The CMAP does not maintain a list of arbitrators as we understand the current practice of

arbitrators ‘list today. However, The CMAP could suggest to the parties some names of

arbitrators. The names are generally chosen according to the special nature of the

litigation, the sectors, the arbitrator ‘s experience etc..

13. Please describe the mechanism by which your institution selects arbitrators

when required to appoint one (e.g. who researches potential arbitrators, how

names are identified, who makes the final decision).

The criteria for the choice of arbitrators when the choice falls on the arbitral institution are

for instance (1) Independence and Impartiality of the arbitrator (2) Availability of the

arbitrator (3) Professional qualifications.

14. Please describe the mechanism by which you decide challenges to arbitrators

(e.g. how information is collected to decide the challenge, who makes the final

decision).

According to the CMAP’s Arbitration Rules, any party wishing to challenge an arbitrator, for

circumstances occurring or coming to light after the arbitrator’s appointment, shall

immediately and within no more than 15 days of the occurrence or revelation of the

particular circumstances on which the challenge is based, submit a reasoned application to

the Accreditation and Appointments Committee. After affording each party the opportunity

to be heard, the Accreditation and Appointments Committee shall rule on the application by

rendering a decision which is not motivated and which shall not be subject to appeal. The

arbitral proceedings shall be suspended during such inquiries. Once the award has been

notified to the General Secretariat, in accordance with Article 24, paragraph 3, no challenge

of arbitrators is admissible.

Transparency

15. Please describe your institution’s rules on confidentiality of arbitral

proceedings and arbitral awards.

Art 18 CMAP’s Arbitration Rules: “Unless otherwise agreed by the parties and the arbitral

tribunal, the arbitral proceeding shall be confidential and the hearings shall not be public”

Art 27.2: “The award shall be confidential. However, it may be published with the written

agreement and based on the arrangements determined by the parties to the proceeding”

16. Does your institution make arbitral awards publicly available (e.g. in redacted

form; in the form of periodic summaries/overviews of decisions)?

17. Does your institution make decisions on challenges to arbitrators publicly

available (e.g. in redacted form; in the form of periodic summaries/overviews of

decisions)

Collaboration and Education

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

18. Over the past 5 years has your institution engaged directly with legislators or

other governmental entities, either to promote legislative change or to promote

the understanding of arbitration within government? Please describe.

CMAP is member of “Paris, Home of arbitration”, a not-for-profit association which aim to

spread the word about the French understanding of and approach to international

arbitration and to inform people of the advantages Paris has to offer as a seat for

arbitrations. In this prospective, this association intervene with the French policy makers.

19. Please describe the primary educational/promotional activities in which your

institution has engaged in the past 5 years (e.g. educational programmes for

junior practitioners, arbitrators or judges; activities designed to increase

understanding of arbitration within the business community; programmes

intended to promote awareness of your institution in other States). Please

summarise in general terms if this is necessary to keep your answer within 100

words.

We organize, in a regular basis, symposiums, workshops and meetings on topics liked to

arbitration practices. We have different kind of target: practitioners, lawyers, barristers,

businesses, arbitrators, etc.

We also organize conferences dedicated to young arbitrators (recently accredited by the

Arbitration Committee). Main topics deal with their access to the arbitration market. These

events are a good occasion for them to meet with experienced arbitrators.

20. Are there other arbitral institutions with which your institution has formal

cooperation agreements, or with whom your institution regularly cooperates, with

respect to either the administration of cases or educational/promotional

activities? Please identify.

CMAP signed formal agreements with several arbitration institutions, such as the Chamber

of Arbitration of Milan (Italy), the CPR Institute (New York city), the Mauritius Chamber of

Commerce and Industry (Mauritius), etc.

CMAP is also a member of the “Fédération des centres d’arbitrage” (Arbitration centers

federation). For instance all members have common ethical rules for their arbitrators but

also for the institution itself, the parties and their counsels.

3.2. Arbitration Institute of the Finland Chamber of Commerce

Instructions:

1. Please answer the questions in the space provided below each question.

2. Answers will be provided to the Parliament as they are written below (i.e. unedited).

3. Many questions simply request a number, rather than a narrative answer (i.e.

sentence form). However, if you believe just providing a number would give an

inaccurate picture of your institution, or if you are unwilling or unable to provide a

specific number, you are welcome to write a narrative answer instead.

4. Each answer must be less than 100 words. Due to space limitations, answers over

100 words may be deleted.

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

General Information

1. When was your institution founded?

The Arbitration Institute of the Finland Chamber of Commerce (hereinafter referred to as

“FAI”) was founded in 1911.

2. Is your institution formally affiliated with any superior/sponsoring

organisation/entity (e.g. chamber of commerce, bar association, government)?

Please identify.

FAI is an autonomous arbitration body of the Finland Chamber of Commerce. Although part

of the organisation of the Finland Chamber of Commerce, the Institute carries out its

functions in complete independence from the Finland Chamber of Commerce and its

organs.

Administration of Cases

3. How many new arbitrations have been commenced at your institution over the

past 5 years?

336

4. What percentage of arbitrations commenced at your institution over the past 5

years have involved an amount in dispute in the following categories:

(Information not available in accordance with the below classification) Over the past five

years, the largest amount in dispute has been EUR 58,500,000 and the smallest EUR 149.

(In 2014, the largest amount in dispute so far has been EUR 160,800,000.)

(i) Less than 25,000 Euros (or equivalent in other currencies)

(ii) 25,000-100,000 Euros (or equivalent in other currencies)

(iii) 100,000-1,000,000 Euros (or equivalent in other currencies)

(iv) 1,000,000-10,000,000 Euros (or equivalent in other currencies)

(v) 10,000,000-100,000,000 Euros (or equivalent in other currencies)

(vi) over 100,000,000 Euros (or equivalent in other currencies)

5. What percentage of arbitrations commenced at your institution over the past 5

years arose from the following sectors:

(i) Corporate

(ii) Construction

(iii) Telecommunications

(iv) Finance and Banking

(v) Distribution/Agency/Franchise

(vi) Energy

(vii) Consumer

(viii) Investor-State

(ix) State-State (i.e. Public International Law)

(x) Maritime

(xi) Other. Please specify any significant categories.

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

(Information not available for the past five years in accordance with the above

classification)

According to FAI’s 2013 statistics, the subject matter of the cases commenced in 2013 was

as follows:

Agency/Distribution/Franchising/Cooperation Agreements (18%); Shareholders’

Agreements (11%); Company Acquisition/Sale of Business (10%); Delivery/Supply

Agreements (9%); Director’s Agreements (9%); Service Agreements (8%); Construction

Agreements (6%); IT Agreements (6%); Employment Contracts (4%); IPR/Licence

Agreements (3%); Others (17%).

No investor-State and State-State cases have been filed with the Institute. Two maritime

cases have been filed in the past five years (i.e. less than 1% of the total amount of cases

filed over the past five years).

6. What percentage of arbitrations commenced at your institution over the past 5

years constituted international arbitrations under the definition provided in the

UNCITRAL Model Law on International Commercial Arbitration?

28%

7. What percentage of arbitrations commenced at your institution over the past 5

years have involved a State, Parastatal or Public entity as a party?

(Information not available)

8. Please list all States in which arbitrations commenced at your institution over

the past 5 years have been seated.

(Information not available)

9. What percentage of arbitrations commenced at your institution over the past 5

years have not been seated in the State in which your institution is located?

(Information not available)

10. Does your institution undertake any scrutiny of awards before they are

delivered to the parties? Please describe any scrutiny undertaken, whether solely

concerned with formal aspects of the award, or also concerned with the

substantive aspects of the award.

No.

Appointment of Arbitrators

11. In what percentage of arbitrations commenced at your institution over the

past 5 years has your institution directly appointed one or more of the arbitrators

(please include both appointment of the chair of the tribunal and appointment of

arbitrators who would normally be appointed by a party)?

Information available only for 2012 and 2013: 87%

12. Does your institution maintain a list of arbitrators? If so, please describe how

names are added to the list, and the role played by the list when your institution

is required to directly appoint an arbitrator.

The Arbitration Institute of the Finland Chamber of Commerce does not maintain a pre-

established list of arbitrators.

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

13. Please describe the mechanism by which your institution selects arbitrators

when required to appoint one (e.g. who researches potential arbitrators, how

names are identified, who makes the final decision).

Arbitrators are being selected by FAI’s Board members, who will draw on their knowledge

and experience to find the best experts for each case. They will consider the qualifications

required of the arbitrator by the agreement of the parties, the dispute’s nature and

circumstances, the parties’ and the prospective arbitrators’ nationality, the language of the

arbitration, the seat of arbitration, the law or rules of law applicable to the substance of the

dispute and any other relevant circumstances. FAI will only confirm the appointment of

candidates fulfilling the requirements of impartiality and independence and qualifications to

serve as arbitrator.

14. Please describe the mechanism by which you decide challenges to arbitrators

(e.g. how information is collected to decide the challenge, who makes the final

decision).

FAI will transmit a copy of the notice of challenge to the challenged arbitrator, the other

arbitrators (if any) and the other parties setting a time limit for their comments on the

notice of challenge. Any comments received are circulated to all parties and the

arbitrator(s).

If the other parties do not agree to the challenge or the challenged arbitrator does not

voluntarily withdraw within the time limit set by FAI, FAI’s Board shall decide on the

challenge. FAI’s Board has no obligation to give reasons for its decision.

Transparency

15. Please describe your institution’s rules on confidentiality of arbitral

proceedings and arbitral awards.

Parties may deviate from FAI’s confidentiality provisions if they so wish. Nevertheless, the

arbitral tribunal’s deliberations shall remain confidential in all events.

Unless parties agree otherwise, FAI and the arbitral tribunal shall maintain the arbitration’s

and award’s confidentiality. This obligation also applies to any expert or secretary

appointed by the arbitral tribunal, FAI’s Board members and Secretariat.

Unless agreed otherwise, parties undertake to keep confidential all awards, orders and

arbitral tribunal’s decisions, correspondence between the arbitral tribunal and the parties,

and documents and materials submitted by another party in connection with the

arbitration, except in the events of Article 49.2(a)-(c).

16. Does your institution make arbitral awards publicly available (e.g. in redacted

form; in the form of periodic summaries/overviews of decisions)?

Unless otherwise agreed by the parties, FAI may publish excerpts or summaries of selected

awards, orders and other decisions, provided that all references to the parties’ names and

other identifying details are deleted.

17. Does your institution make decisions on challenges to arbitrators publicly

available (e.g. in redacted form; in the form of periodic summaries/overviews of

decisions)

Please see answer to 16. above.

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

Collaboration and Education

18. Over the past 5 years has your institution engaged directly with legislators or

other governmental entities, either to promote legislative change or to promote

the understanding of arbitration within government? Please describe.

FAI has in June 2014 delivered a statement to the Ministry of Justice with regard to the

proposed amendments to the Courts of Justice Act pursuing more transparency in the work

of state judges serving as arbitrators. FAI has said in its statement that any amendments

should be in line with current international best practices used in countries where state

judges are allowed to serve as arbitrators.

19. Please describe the primary educational/promotional activities in which your

institution has engaged in the past 5 years (e.g. educational programmes for

junior practitioners, arbitrators or judges; activities designed to increase

understanding of arbitration within the business community; programmes

intended to promote awareness of your institution in other States). Please

summarise in general terms if this is necessary to keep your answer within 100

words.

Since 2012, FAI organises on a yearly basis “Helsinki International Arbitration Day”, a high-

profile international seminar aimed at arbitration practitioners from Finland and abroad.

Further, FAI has organised arbitration seminars targeted at female arbitration practitioners

(“Ladies & Arbitration”), younger Finnish arbitration practitioners (“Juniorivälimiespäivä”),

seasoned and not so seasoned Finnish arbitration practitioners (“Välimiespäivä”) and, more

recently, the “Finnish Arbitration Academy” aiming to provide legal practitioners with

experience or interest in arbitration with the necessary tools to effectively participate in

arbitrations as counsel or arbitrators in accordance with current best practices and

standards.

20. Are there other arbitral institutions with which your institution has formal

cooperation agreements, or with whom your institution regularly cooperates, with

respect to either the administration of cases or educational/promotional

activities? Please identify.

FAI has cooperation agreements in the field of arbitration with the following institutions:

 Court of International Commercial Arbitration attached to the Chamber of Commerce

and Industry of Romania

 Japan Commercial Arbitration Association

 The Chamber of Commerce and Industry of the Russian Federation

 The Association of Arbitration Courts of Uzbekistan (AACU)

 Indian Council of Arbitration and FICCI Arbitration and Conciliation Tribunal (FACT)

3.3. Arbitration Institute of the Stockholm Chamber of Commerce (SCC)

Instructions:

1. Please answer the questions in the space provided below each question.

Answers will be provided to the Parliament as they are written below (i.e. unedited).

2. Many questions simply request a number, rather than a narrative answer (i.e.

sentence form). However, if you believe just providing a number would give an

inaccurate picture of your institution, or if you are unwilling or unable to provide a

specific number, you are welcome to write a narrative answer instead.

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

3. Each answer must be less than 100 words. Due to space limitations, answers over

100 words may be deleted.

General Information

1. When was your institution founded?

The SCC was established in 1917.

2. Is your institution formally affiliated with any superior/sponsoring

organisation/entity (e.g. chamber of commerce, bar association, government)?

Please identify.

The SCC is a part of the Stockholm Chamber of Commerce, but it’s independent from the

Stockholm Chamber of Commerce, with a separate Board. The SCC Board is appointed by

the Board of Directors of the Stockholm Chamber of Commerce (Art. 4, Appendix I, SCC

Arbitration Rules).

Administration of Cases

3. How many new arbitrations have been commenced at your institution over the

past 5 years?

A total of 992 arbitrations have been commenced at the SCC in the past 5 years.

Year – Number of cases

2009 – 216

2010 – 197

2011 – 199

2012 – 177

2013 - 203

4. What percentage of arbitrations commenced at your institution over the past 5

years have involved an amount in dispute in the following categories: N/A

(i) Less than 25,000 Euros (or equivalent in other currencies)

(ii) 25,000-100,000 Euros (or equivalent in other currencies)

(iii) 100,000-1,000,000 Euros (or equivalent in other currencies)

(iv) 1,000,000-10,000,000 Euros (or equivalent in other currencies)

(v) 10,000,000-100,000,000 Euros (or equivalent in other currencies)

(vi) over 100,000,000 Euros (or equivalent in other currencies)

5. What percentage of arbitrations commenced at your institution over the past 5

years arose from the following sectors:

(i) Corporate: N/A

(ii) Construction

2009: 2%

2010: 4%

2011: 4%

2012: 8,5%

2013: 3%

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

(iii) Telecommunications: N/A

(iv) Finance and Banking

N/A

(v) Distribution/Agency/Franchise: N/A

(vi) Energy

N/A

(vii) Consumer: N/A

(viii) Investor-State

2009: 1%

2010: 1%

2011: 2%

2012: 5,6%

2013: 2%

(ix) State-State (i.e. Public International Law): N/A

(x) Maritime: N/A

(xi) Other. Please specify any significant categories.

See table below:

2009

Joint Venture Joint Venture

Other

Agency/distribution

18%

Agency/distribution

Shareholders' agmt

Share purchase agmt

Employment agmt

13%

Employment agmt

Services

Construction/Real estate

16%

Construction/Real estate

Guarantee Guarantee

License/IP

Investment treaty

Credit/Loan agmt

Supply agmt

Cooperation

Settlement agmt

Company law

23%

2010

Joint Venture

0,0%

Other

6,8%

Agency/distribution

2,9%

Shareholders' agmt

6,8%

Share purchase agmt

13,6%

Employment agmt

7,8%

Services

18,4%

Construction/Real estate

3,9%

Guarantee

0,0%

License/IP

5,8%

Investment treaty

1,0%

Credit/Loan agmt

1,5%

Supply agmt

15,0%

10,2%

Settlement agmt

1,5%

Ow nership

5,0%

2011 2012 2013

Joint Venture

4,0%

Joint Venture

13,0%

Other

6,8%

Other

0,0%

Agency/distribution

0,0%

Agency/distribution

0,0%

Shareholders' agmt

0,0%

Shareholders' agreement

0,0%

13%

Share purchase agmt

14,7%

Share purchase agreement

16,0%

Employment agmt

2,8%

Employment contracts

5,0%

23%

Services

22,6%

Services

24,0%

Construction/Real estate

8,5%

Construction/Real estate

3,0%

Guarantee

0,0%

Guarantee

0,0%

License/IP

4,5%

License/IP

1,0%

Investment treaty

5,6%

Investment treaty protection

2,0%

Credit/Loan agmt

4,0%

Credit/Loan agreement

4,0%

21%

Supply agmt

18,6%

Supply

18,0%

2,8%

2,0%

Settlement agmt

0,6%

Settlement agmt

0,5%

12%

Partnership

4,5%

Partnership

12,0%

These categories have been taken from the statistics available in http://www.sccinstitute.com/hem-

3/statistik-2.aspx

6. What percentage of arbitrations commenced at your institution over the past 5

years constituted international arbitrations under the definition provided in the

UNCITRAL Model Law on International Commercial Arbitration?

46%. See the table below with detailed information.

2009 2010 2011 2012 2013 Total Percentage

International

96 91 96 92 86 461 46%

National

120 106 103 85 117 531 54%

TOTAL

992

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Annex C - Arbitral Institutions Questionnaires

7. What percentage of arbitrations commenced at your institution over the past 5

years have involved a State, Parastatal or Public entity as a party?

N/A

8. Please list all States in which arbitrations commenced at your institution over

the past 5 years have been seated.

N/A

9. What percentage of arbitrations commenced at your institution over the past 5

years have not been seated in the State in which your institution is located?

N/A

10. Does your institution undertake any scrutiny of awards before they are

delivered to the parties? Please describe any scrutiny undertaken, whether solely

concerned with formal aspects of the award, or also concerned with the

substantive aspects of the award.

The legal counsel in charge of a specific case will review the award rendered by the tribunal

to ensure that the award complies with all formal requirements (individualization of parties,

seat, date, costs, signatures, etc.) for it to be valid under the SCC Rules, and under the

Swedish Arbitration Act where applicable.

Appointment of Arbitrators

11. In what percentage of arbitrations commenced at your institution over the

past 5 years has your institution directly appointed one or more of the arbitrators

(please include both appointment of the chair of the tribunal and appointment of

arbitrators who would normally be appointed by a party)?

N/A

12. Does your institution maintain a list of arbitrators? If so, please describe how

names are added to the list, and the role played by the list when your institution

is required to directly appoint an arbitrator.

No.

13. Please describe the mechanism by which your institution selects arbitrators

when required to appoint one (e.g. who researches potential arbitrators, how

names are identified, who makes the final decision).

The counsel in charge of a case makes an initial research of candidates which are suitable

for each specific dispute in consideration of criteria such as the parties’ and co-arbitrators’

nationalities, applicable law, subject matter of the dispute, language, etc.

Potential candidates are discussed at the Secretariat level before at least three candidates

per dispute, are proposed to the SCC Board. The Board meets once a month. The Board

may propose other candidates. The final decision is made by the Board.

14. Please describe the mechanism by which you decide challenges to arbitrators

(e.g. how information is collected to decide the challenge, who makes the final

decision).

The counsel administering a case requests the parties to exchange submissions to develop

their arguments. The challenged arbitrator (if applicable, also co-arbitrators) is invited to

comment. The counsel prepares a memorandum summarizing the parties’ and arbitrators’

positions, and a legal analysis of the circumstances giving rise to the challenge. The

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

analysis includes reference to e.g. previous SCC practice in similar cases, similar cases

available in the public domain and relevant literature and the Secretariat’s conclusion. The

Board is provided with the memo including all relevant submissions on the challenge. The

Board decides whether to sustain or to reject the challenge. The decision of the Board is

communicated to the parties and arbitrator(s) without reasons. The memorandum is

archived at the SCC for future reference and internal use only.

Transparency

15. Please describe your institution’s rules on confidentiality of arbitral

proceedings and arbitral awards.

Article 46 of the SCC Arbitration Rules states that “unless otherwise agreed by the parties,

the SCC and the Arbitral Tribunal shall maintain the confidentiality of the arbitration and

the award.” Regarding the organization of the SCC, Article 9 of Appendix I provides that

“the SCC shall maintain the confidentiality of the arbitration and the award and shall deal

with the arbitration in an impartial, practical and expeditious manner.” This constitutes a

contractual obligation to keep all information about the dispute confidential. The SCC

Arbitration Rules do not bind the parties to confidentiality. Each party is allowed to make

information on the dispute known to the public unless, the parties are bound by a

confidentiality agreement.

In investor-state arbitrations, parties can agree to apply the UNCITRAL Rules on

Transparency in Treaty-based Investor-State Arbitration to arbitrations conducted under

the SCC Rules. To learn about the interplay between the SCC Rules and the UNCITRAL

Transparency Rules see:

http://www.sccinstitute.com/filearchive/4/46873/Interplay%20between%20the%20draft%20rules%2

0on%20transparency%20and%20institutional%20rules.pdf

16. Does your institution make arbitral awards publicly available (e.g. in redacted

form; in the form of periodic summaries/overviews of decisions)?

The awards are kept confidential. However, the SCC supports transparency in different

ways. For instance, the SCC regularly publicise general observations and reports on specific

topics (e.g. on separate awards on costs, emergency arbitrator decisions) based on

information gathered from awards rendered under the SCC Rules. For this purpose, the

case (parties, arbitrators, and any other type information which may lead to the

identification of the case) is kept anonymous.

17. Does your institution make decisions on challenges to arbitrators publicly

available (e.g. in redacted form; in the form of periodic summaries/overviews of

decisions)

Every two years the SCC publicises a report with a summary of the decisions made by the

SCC Board on challenges to arbitrators. The report keeps the cases anonymous and is

limited to a description of the circumstances that gave rise to the challenge, the parties’

arguments and the Board’s decision on the challenge.

Collaboration and Education

18. Over the past 5 years has your institution engaged directly with legislators or

other governmental entities, either to promote legislative change or to promote

the understanding of arbitration within government? Please describe.

The SCC Secretary General is currently a member of a state commission in charge of

reviewing the Swedish Arbitration Act to assess potential improvements. The purpose of

_______________________________________________________________________





Annex C - Arbitral Institutions Questionnaires

this initiative is to ensure that dispute resolution in Sweden continues to be modern,

efficient and attractive internationally.

Also the SCC organizes seminars in conjunction with the Ministry of Justice to promote

discussion and exchange of ideas between practitioners in the arbitration community and

the judiciary. A patent outcome from these initiatives was the adoption by the Svea Court

of Appeal of guidelines for the management of set aside proceedings. The guidelines aim at

making the management of set aside proceedings more efficient, so that decisions by the

Court can be made as soon as possible. The Svea Court of Appeal drafted the guidelines in

consultation with experienced practitioners. The guidelines have been translated into

English

571

, to give an insight to international parties of the internal guidelines of the Svea

Court of Appeal.

19. Please describe the primary educational/promotional activities in which your

institution has engaged in the past 5 years (e.g. educational programmes for

junior practitioners, arbitrators or judges; activities designed to increase

understanding of arbitration within the business community; programmes

intended to promote awareness of your institution in other States). Please

summarise in general terms if this is necessary to keep your answer within 100

words.

The SCC cooperates with the Swedish Arbitration Association in organizing an arbitrator

training (Sv: Skiljemannautbildningen). The training aims at educating new generations of

Swedish arbitration practitioners to widen the pool of arbitrators so that more international

disputes seat in Sweden. There have been four versions of the arbitrator training (2006,

2008, 2010, 2013).

For the fifth year, the SCC organizes in conjunction with VQ, the “VQ Knowledge and

Strategy Forum,” a two-day event devoted to discuss innovation in the legal practice and

arbitration. VQ is a knowledge management and strategic innovation consulting firm that

focuses on knowledge leverage and business development.

The SCC cooperates with Young Arbitrators Sweden (YAS) and Swedish Women in

Arbitration (SWAN) providing administrative support.

The SCC organizes every year a conference for the international students participating in

the Vis Moot who come to the Stockholm Pre-Moot.

20. Are there other arbitral institutions with which your institution has formal

cooperation agreements, or with whom your institution regularly cooperates, with

respect to either the administration of cases or educational/promotional

activities? Please identify.

The SCC cooperates with several institutions around the world on an ad-hoc basis. On a

continuous basis, the SCC has cooperated with the DIS, CAM and VIAC. The four

institutions annually arrange a mutual seminar held at the institutions respective seat

(Stockholm, Cologne, Milan, and Vienna). Also, the four institutions invite members of the

others’ staff to study visits for the purpose of exchanging ideas and learning more about

the different set of arbitration rules and the case administration.

Due to our experience with investment disputes, the SCC and ICSID cooperate with each

other. In May this year we organized a joint seminar to discuss ISDS.

http://www.sccinstitute.com/filearchive/4/47004/Arbitration%20cases%20before%20the%20Svea%20Court%20o

f%20Appeal,%20version%201.pdf

571

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

The SCC also cooperates with the Danish Institute of Arbitration (DIA). The DIA arranges in

conjunction with Danske Advokater an arbitrator training for Danish lawyers. Participants of

the training programme are invited to Stockholm to spend a 1,5 day course on arbitration n

Sweden.

SCC also cooperates with CIETAC, whose Secretary General, Yu Jianlong, is member of the

SCC Board. Delegations from CIETAC, the CCPIT (China Council for the Promotion of

International Trade) and private Chinese delegations often come to Stockholm. The SCC

organizes seminars and other activities in connection with these visits. Also SCC and

Swedish representatives travel every year to China, keeping a continued cooperation with

the Chinese arbitration community and promoting arbitration among younger generations,

by visiting universities.

3.4. Barcelona Arbitration Court (TAB)

Instructions:

1. Please answer the questions in the space provided below each question.

2. Answers will be provided to the Parliament as they are written below (i.e. unedited).

3. Many questions simply request a number, rather than a narrative answer (i.e.

sentence form). However, if you believe just providing a number would give an

inaccurate picture of your institution, or if you are unwilling or unable to provide a

specific number, you are welcome to write a narrative answer instead.

4. Each answer must be less than 100 words. Due to space limitations, answers over

100 words may be deleted.

General Information

1. When was your institution founded?

The TAB is an organ of the Catalan Arbitration Association which was founded on February

1989.

2. Is your institution formally affiliated with any superior/sponsoring

organisation/entity (e.g. chamber of commerce, bar association, government)?

Please identify.

The TAB is the organ with delegated functions from the Catalan Arbitration Association who

carries out the administration of arbitrations and other functions set forth in the Articles of

Association of the latter. The sole members of the Association are:

 Barcelona Law Society,

 Barcelona Chamber of Commerce,

 Catalan Association of Notaries Public,

 Autonomous Deanery of Land and Mercantile Registrars of Catalonia,

 Council of Law Societies of Catalonia,

 Association of Professional Associations of Catalonia.

Therefore, it’s not that the TAB is affiliated with those bodies but constituted by them.

Administration of Cases

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

3. How many new arbitrations have been commenced at your institution over the

past 5 years?

From 2009 to July 2014: 390 arbitrations.

4. What percentage of arbitrations commenced at your institution over the past 5

years have involved an amount in dispute in the following categories:

(i) less than 25,000 Euros (or equivalent in other currencies): 16,34%

(ii) 25,000-100,000 Euros (or equivalent in other currencies): 30,56%

(iii) 100,000-1,000,000 Euros (or equivalent in other currencies): 44,80%

(iv) 1,000,000-10,000,000 Euros (or equivalent in other currencies): 10,28%

(v) 10,000,000-100,000,000 Euros (or equivalent in other currencies): 1,02%

(vi) over 100,000,000 Euros (or equivalent in other currencies):

5. What percentage of arbitrations commenced at your institution over the past 5

years arose from the following sectors:

(i) Corporate

(ii) Construction

(i) Corporate: 20,51%

(ii) Construction: 15,64%

(iii) Telecommunications: ---

(iv) Finance and Banking: 19,48%

(v) Distribution/Agency/Franchise: 13,58%

(vi) Energy: ---

(vii) Consumer: ---

(viii) Investor-State: ---

(ix) State-State (i.e. Public International Law): ---

(x) Maritime: ---

(xi) Other. Please specify any significant categories.

The other 30,79% corresponds to issues such as sales of goods, Intelectual Property,

business sales, leasing of industry and others.

6. What percentage of arbitrations commenced at your institution over the past 5

years constituted international arbitrations under the definition provided in the

UNCITRAL Model Law on International Commercial Arbitration?

10% approximately.

7. What percentage of arbitrations commenced at your institution over the past 5

years have involved a State, Parastatal or Public entity as a party?

Less than 5%.

8. Please list all States in which arbitrations commenced at your institution over

the past 5 years have been seated.

Spain.

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

9. What percentage of arbitrations commenced at your institution over the past 5

years have not been seated in the State in which your institution is located?

None.

10. Does your institution undertake any scrutiny of awards before they are

delivered to the parties? Please describe any scrutiny undertaken, whether solely

concerned with formal aspects of the award, or also concerned with the

substantive aspects of the award.

Yes, it does; the TAB scrutinises the awards before its delivery to the parties. This is

precisely one of the tasks of the members of the Board of Directors. The scope of the

scrutiny is limited to the formal aspects of the awards rendered by the arbitrators.

Appointment of Arbitrators

11. In what percentage of arbitrations commenced at your institution over the

past 5 years has your institution directly appointed one or more of the arbitrators

(please include both appointment of the chair of the tribunal and appointment of

arbitrators who would normally be appointed by a party)?

95%. Just a few times the parties themselves have appointed the sole arbitrator or the

party arbitrator or the chairperson. It is the institution who usually appoints them giving

the parties the possibility to participate in the appointment in advance providing them with

a short list of candidates between which the appointment will be made as the TAB may

deem appropriate according to its rules.

12. Does your institution maintain a list of arbitrators? If so, please describe how

names are added to the list, and the role played by the list when your institution

is required to directly appoint an arbitrator.

The TAB has not a public list of arbitrators but a data base of candidates who can be

appointed according to the circumstances of the case submitted and the preferences put

forth by the parties in their request for arbitration. The parties intervene in the

appointment giving their opinion about the names proposed by the Board of Directors in

the short list made up on the basis of the parties preferences and the roster of candidates

by specialities in different fields of law.

13. Please describe the mechanism by which your institution selects arbitrators

when required to appoint one (e.g. who researches potential arbitrators, how

names are identified, who makes the final decision).

When submitting a request for arbitration both parties express the profile of the arbitrator

they deem appropriate for the case. Taking their preferences into consideration, the TAB

selects from its roster (of voluntary registration through the TAB’s website) three

arbitrators for each one who has to be appointed and provides the parties with a short list

of candidates to submit their preference for a time limit of five days. These preferences are

only binding on the TAB when there is coincidence among the parties. Otherwise, the TAB

may appoint the arbitrator as it may deem appropriate.

14. Please describe the mechanism by which you decide challenges to arbitrators

(e.g. how information is collected to decide the challenge, who makes the final

decision).

When one of the parties submit a challenge of an arbitrator, the TAB summons the other

party and the arbitrator to answer the challenge and allege what they consider appropriate

in law and express any matter which could affect his or her freedom of independence

and/or impartiality. The final decision shall be made by the TAB.

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

Transparency

15. Please describe your institution’s rules on confidentiality of arbitral

proceedings and arbitral awards.

The principle of confidentiality is laid down by law (art. 24 of Spanish Act). All the members

of the Board of Directors of the TAB, its staff and other people involved in the

administration of arbitrations subscribe a binding commitment of confidentiality. Also the

arbitrators and the parties are obliged to keep confidential any information they become

aware of through arbitration proceedings and both of them sign a clause in that sense in

the formal statement for the commencement of the proceedings.

16. Does your institution make arbitral awards publicly available (e.g. in redacted

form; in the form of periodic summaries/overviews of decisions)?

No, due to confidentiality. Even though article 28 of TAB’s rules lays down that awards

having doctrinal interest are not subject to the rule of not making awards public the TAB

has never published any award. Those awards which are deemed of doctrinal interest are

sometime selected to be commentated on the journal published by the TAB (Anuario de

Justicia Alternativa. Derecho Arbitral) removing any information that can identify the

subject or the parties of the arbitration in question.

17. Does your institution make decisions on challenges to arbitrators publicly

available (e.g. in redacted form; in the form of periodic summaries/overviews of

decisions)

Never due to the principle of confidentiality which is fulfilled strictly by the TAB. It’s

applicable what is mentioned in the answer to question 16.

Collaboration and Education

18. Over the past 5 years has your institution engaged directly with legislators or

other governmental entities, either to promote legislative change or to promote

the understanding of arbitration within government? Please describe.

Yes. The TAB played a great role on the improvement of the 11/2011 new Arbitration Act

suggesting amendments and proposals to the Spanish Parliament for which contributions

was publicly congratulated. The TAB took publicly a strong position against the intended

elimination of the arbitration ex aequo et bono which finally prevailed. Recently, the TAB

filed amendments to the draft of the Spanish Criminal Procedure Code on the offence of

false witness in arbitration and currently is working on the amendment of other bills and

drafts such as the Non-contentious Jurisdiction and the Corporate Enterprise Act.

19. Please describe the primary educational/promotional activities in which your

institution has engaged in the past 5 years (e.g. educational programmes for

junior practitioners, arbitrators or judges; activities designed to increase

understanding of arbitration within the business community; programmes

intended to promote awareness of your institution in other States). Please

summarise in general terms if this is necessary to keep your answer within 100

words.

The TAB is engaged in educational activities and promotion of arbitration culture in Spanish

and French Universities and Business Schools and signs with them cooperation agreements

for further education inicitives. The TAB also delivers lectures whenever and wherever it is

possible in conferences and congresses on arbitration.

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

20. Are there other arbitral institutions with which your institution has formal

cooperation agreements, or with whom your institution regularly cooperates, with

respect to either the administration of cases or educational/promotional

activities? Please identify.

Even though there are no agreements subscribed, the TAB regularly cooperates in the

administration of cases (usually hearings) with any institutions that manifests their interest.

On the other hand, the TAB was the promoter of the First Congress of Corporative Spanish

Arbitral Institutions which is going to be held in its sixth edition, again in Barcelona, this

year. The aim of it is the exchange of information and the discussion of issues of common

interest.

3.5. Belgian Centre for Mediation and Arbitration (CEPANI)

Instructions:

1. Please answer the questions in the space provided below each question.

2. Answers will be provided to the Parliament as they are written below (i.e. unedited).

3. Many questions simply request a number, rather than a narrative answer (i.e.

sentence form). However, if you believe just providing a number would give an

inaccurate picture of your institution, or if you are unwilling or unable to provide a

specific number, you are welcome to write a narrative answer instead.

4. Each answer must be less than 100 words. Due to space limitations, answers over

100 words may be deleted.

General Information

1. When was your institution founded?

1969

2. Is your institution formally affiliated with any superior/sponsoring

organisation/entity (e.g. chamber of commerce, bar association, government)?

Please identify.

CEPANI was founded in 1969, under the auspices of the Belgian National Committee of the

International Chamber of Commerce (ICC) and the Federation of Belgian Enterprises

(VBO/FEB).

Administration of Cases

3. How many new arbitrations have been commenced at your institution over the

past 5 years?

Over 400

4. What percentage of arbitrations commenced at your institution over the past 5

years have involved an amount in dispute in the following categories:

(i) less than 25,000 Euros (or equivalent in other currencies): 10%

(ii) 25,000-100,000 Euros (or equivalent in other currencies): 30%

(iii) 100,000-1,000,000 Euros (or equivalent in other currencies): 40%

(iv) 1,000,000-10,000,000 Euros (or equivalent in other currencies): 20%

(v) 10,000,000-100,000,000 Euros (or equivalent in other currencies)

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

(vi) over 100,000,000 Euros (or equivalent in other currencies)

5. What percentage of arbitrations commenced at your institution over the past 5

years arose from the following sectors:

6. What percentage of arbitrations commenced at your institution over the past 5

years constituted international arbitrations under the definition provided in the

UNCITRAL Model Law on International Commercial Arbitration?

7. What percentage of arbitrations commenced at your institution over the past 5

years have involved a State, Parastatal or Public entity as a party?

8. Please list all States in which arbitrations commenced at your institution over

the past 5 years have been seated.

9. What percentage of arbitrations commenced at your institution over the past 5

years have not been seated in the State in which your institution is located?

<5%

10. Does your institution undertake any scrutiny of awards before they are

delivered to the parties? Please describe any scrutiny undertaken, whether solely

concerned with formal aspects of the award, or also concerned with the

substantive aspects of the award.

Appointment of Arbitrators

11. In what percentage of arbitrations commenced at your institution over the

past 5 years has your institution directly appointed one or more of the arbitrators

(please include both appointment of the chair of the tribunal and appointment of

arbitrators who would normally be appointed by a party)?

12. Does your institution maintain a list of arbitrators? If so, please describe how

names are added to the list, and the role played by the list when your institution

is required to directly appoint an arbitrator.

13. Please describe the mechanism by which your institution selects arbitrators

when required to appoint one (e.g. who researches potential arbitrators, how

names are identified, who makes the final decision).

CEPANI does not work with a list of registered or acknowledged arbitrators. One cannot

submit an application to become an arbitrator appointed by CEPANI. When a party submits

a request for arbitration to CEPANI, the Appointments Committee considers on a case by

case basis who is the most qualified person to settle the dispute at hand. In making this

decision, the factors that are taken into account are the nature of the dispute, the

language, the identity of the co-arbitrators, the arbitrator’s qualifications and availability,

the urgency of the situation, what is at stake… CEPANI has a number of renowned Belgian

or foreign arbitrators at its disposal whose assistance it can request.

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

14. Please describe the mechanism by which you decide challenges to arbitrators

(e.g. how information is collected to decide the challenge, who makes the final

decision).

A challenge for reasons of any alleged lack of independence or for any other reason, shall

be communicated to the secretariat in writing and shall contain the facts and circumstances

on which it is based.

In order to be admissible the challenge must be communicated by a party either within one

month of the receipt by that party of the notification of the arbitrator’s appointment, or

within one month of the date on which that party was informed of the facts and

circumstances which it invokes in support of its challenge, whichever date is the later.

The secretariat shall invite the arbitrator concerned, the other parties and the members of

the Arbitral Tribunal, as the case may be, to present their written observations within a

time period fixed by the secretariat. These observations shall be communicated to the

parties and to the arbitrators. The parties and arbitrators may respond to these

observations within the time period fixed by the secretariat.

The latter then transmits the challenge and the comments received to the Challenge

Committee. The Committee decides on the admissibility and on the merits of the challenge.

Transparency

15. Please describe your institution’s rules on confidentiality of arbitral

proceedings and arbitral awards.

Unless it has been agreed otherwise by the parties or there is a legal obligation to disclose,

the arbitration proceedings shall be confidential.

The arbitrator shall observe the rules of strict confidentiality in each case attributed to him

by the Secretariat.

16. Does your institution make arbitral awards publicly available (e.g. in redacted

form; in the form of periodic summaries/overviews of decisions)?

Collection of arbitral awards: series published by CEPANI and is in line with CEPANI’s wish

to promote arbitration by a better knowledge of the awards rendered on the basis of its

Rules. The periods covered vary. Each decision is anonymous and published with express

consent of all parties concerned. Each decision is accompanied by a commentary in the

language in which it was rendered. A summary is included in the two other languages. A

list of keywords makes for user-friendly access.

17. Does your institution make decisions on challenges to arbitrators publicly

available (e.g. in redacted form; in the form of periodic summaries/overviews of

decisions)

Collaboration and Education

18. Over the past 5 years has your institution engaged directly with legislators or

other governmental entities, either to promote legislative change or to promote

the understanding of arbitration within government? Please describe.

Yes to promote legislative change. New law of June 24, 2013

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

19. Please describe the primary educational/promotional activities in which your

institution has engaged in the past 5 years (e.g. educational programmes for

junior practitioners, arbitrators or judges; activities designed to increase

understanding of arbitration within the business community; programmes

intended to promote awareness of your institution in other States). Please

summarise in general terms if this is necessary to keep your answer within 100

words.

Numerous Educational programmes/ lunch debates for under 40 practitioners, lunch

debates with company layers and CEO’s, annual colloquia, meetings abroad with other

sister organizations on burning issues in arbitration, colloquia intended for judges,

arbitration classes, training based on practical cases: witness examination/ arbitral hearing

etc.

20. Are there other arbitral institutions with which your institution has formal

cooperation agreements, or with whom your institution regularly cooperates, with

respect to either the administration of cases or educational/promotional

activities? Please identify.

China International Economic and Trade Arbitration Commission (CIETAC)

Deutsche Institution für Schiedsgerichtsbarkeit (DIS)

The Court of Arbitration at the Polish Chamber of Commerce in Warsaw (Sad Arbitrazowy)

The Cairo Regional Center for International Commercial Arbitration (CRCICA)

Cour d'Arbitrage de Côte d'Ivoire (CACI)

Nederlands Arbitrage Instituut (NAI)

The International Commercial Arbitration Court at the Chamber of Commerce and Industry

of Ukraine (ICAC at the UCCI)

Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft (VIAC)

Russian Chamber of Commerce and Industry

3.6. Centre for Effective Dispute Resolution (CEDR)

Instructions:

1. Please answer the questions in the space provided below each question.

2. Answers will be provided to the Parliament as they are written below (i.e. unedited).

3. Many questions simply request a number, rather than a narrative answer (i.e.

sentence form). However, if you believe just providing a number would give an

inaccurate picture of your institution, or if you are unwilling or unable to provide a

specific number, you are welcome to write a narrative answer instead.

4. Each answer must be less than 100 words. Due to space limitations, answers over

100 words may be deleted.

General Information

1. When was your institution founded?

IDRS was founded in 2007 by the Chartered Institute or Arbitrators and became a

subsidiary of CEDR (Centre for Effective Dispute Resolution) in 2012. Please note that this

response does not include the commercial work of CEDR as its arbitration work is more ad

hoc in nature.

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

2. Is your institution formally affiliated with any superior/sponsoring

organisation/entity (e.g. chamber of commerce, bar association, government)?

Please identify.

CEDR is a London-based non-profit organisation and a registered charity supported by

multinational businesses, leading professional bodies and public sector organisations. CEDR

raises the main part of its revenue through the operation of commercial services in the

fields of dispute resolution and conflict management.

Administration of Cases

3. How many new arbitrations have been commenced at your institution over the

past 5 years?

1,829 (1,407 of which were with ABTA, the remainder with other smaller arbitration

schemes)

4. What percentage of arbitrations commenced at your institution over the past 5

years have involved an amount in dispute in the following categories:

We do not keep statistics on this.

(i) Less than 25,000 Euros (or equivalent in other currencies): N/A

(ii) 25,000-100,000 Euros (or equivalent in other currencies): N/A

(iii) 100,000-1,000,000 Euros (or equivalent in other currencies): N/A

(iv) 1,000,000-10,000,000 Euros (or equivalent in other currencies): N/A

(v) 10,000,000-100,000,000 Euros (or equivalent in other currencies): N/A

(vi) over 100,000,000 Euros (or equivalent in other currencies): N/A

5. What percentage of arbitrations commenced at your institution over the past 5

years arose from the following sectors:

(i) Corporate: N/A

(ii) Construction: N/A

(iii) Telecommunications: N/A

(iv) Finance and Banking: N/A

(v) Distribution/Agency/Franchise: N/A

(vi) Energy: N/A

(vii) Consumer: 100%

(viii) Investor-State: N/A

(ix) State-State (i.e. Public International Law): N/A

(x) Maritime: N/A

(xi) Other. Please specify any significant categories: N/A

6. What percentage of arbitrations commenced at your institution over the past 5

years constituted international arbitrations under the definition provided in the

UNCITRAL Model Law on International Commercial Arbitration?

Nil

7. What percentage of arbitrations commenced at your institution over the past 5

years have involved a State, Parastatal or Public entity as a party?

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

Nil

8. Please list all States in which arbitrations commenced at your institution over

the past 5 years have been seated.

UK (England and Wales)

9. What percentage of arbitrations commenced at your institution over the past 5

years have not been seated in the State in which your institution is located?

Nil

10. Does your institution undertake any scrutiny of awards before they are

delivered to the parties? Please describe any scrutiny undertaken, whether solely

concerned with formal aspects of the award, or also concerned with the

substantive aspects of the award.

All arbitration awards are checked by professional proof-readers prior to being released.

Appointment of Arbitrators

11. In what percentage of arbitrations commenced at your institution over the

past 5 years has your institution directly appointed one or more of the arbitrators

(please include both appointment of the chair of the tribunal and appointment of

arbitrators who would normally be appointed by a party)?

100%

12. Does your institution maintain a list of arbitrators? If so, please describe how

names are added to the list, and the role played by the list when your institution

is required to directly appoint an arbitrator.

Yes. Arbitrators are added to the list by administrators. Appointment is carried out on a

rota basis from the list of arbitrators. We also have an arbitration panel for larger cases.

13. Please describe the mechanism by which your institution selects arbitrators

when required to appoint one (e.g. who researches potential arbitrators, how

names are identified, who makes the final decision).

Appointments are carried out on a rota basis for the list of arbitrators.

14. Please describe the mechanism by which you decide challenges to arbitrators

(e.g. how information is collected to decide the challenge, who makes the final

decision).

The arbitration schemes we run have an appeal stage built into them, allowing an appeal

within a fixed time period after the initial award has been made. An appeal arbitrator will

consider the appeal on the basis of the evidence provided by the parties.

Transparency

15. Please describe your institution’s rules on confidentiality of arbitral

proceedings and arbitral awards.

Our arbitration schemes have a section in their rules which provide that both the claimant

and respondent undertake not, at any time, to disclose to any person any details of the

arbitration, except where necessary to uphold an arbitral award.

16. Does your institution make arbitral awards publicly available (e.g. in redacted

form; in the form of periodic summaries/overviews of decisions)?

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

No.

17. Does your institution make decisions on challenges to arbitrators publicly

available (e.g. in redacted form; in the form of periodic summaries/overviews of

decisions)

No.

Collaboration and Education

18. Over the past 5 years has your institution engaged directly with legislators or

other governmental entities, either to promote legislative change or to promote

the understanding of arbitration within government? Please describe.

CEDR formed a CEDR Arbitration Commission in 2007, tasked with reviewing current

practice regarding the facilitation of settlement by international arbitral tribunals and to

come up with recommendations to improve this aspect of the process for end-users. The

Commission was comprised of 70 members with 45 observer organisations and was co-

chaired by Lord Woolf of Barnes and Gabrielle Kaufmann-Kohler, with Dr Karl Mackie,

CEDR’s Chief Executive as Commission Director. The commission resulted in the production

of the CEDR Rules for the Facilitation of Settlement in International Arbitration (the

Settlement Rules). These outline steps Arbitral Tribunals can take with a view to facilitating

settlement by the parties in an international arbitration.

For more information: http://www.cedr.com/about us/arbitration commission/

19. Please describe the primary educational/promotional activities in which your

institution has engaged in the past 5 years (e.g. educational programmes for

junior practitioners, arbitrators or judges; activities designed to increase

understanding of arbitration within the business community; programmes

intended to promote awareness of your institution in other States). Please

summarise in general terms if this is necessary to keep your answer within 100

words.

See above.

20. Are there other arbitral institutions with which your institution has formal

cooperation agreements, or with whom your institution regularly cooperates, with

respect to either the administration of cases or educational/promotional

activities? Please identify.

No.

3.7. Chamber of Arbitration of Milan

Instructions:

1. Please answer the questions in the space provided below each question.

2. Answers will be provided to the Parliament as they are written below (i.e.

unedited).

3. Many questions simply request a number, rather than a narrative answer (i.e.

sentence form). However, if you believe just providing a number would give an

inaccurate picture of your institution, or if you are unwilling or unable to provide a

specific number, you are welcome to write a narrative answer instead.

4. Each answer must be less than 100 words. Due to space limitations, answers over

100 words may be deleted.

_______________________________________________________________________

1987

Annex C - Arbitral Institutions Questionnaires

General Information

1. When was your institution founded?

2. Is your institution formally affiliated with any superior/sponsoring

organisation/entity (e.g. chamber of commerce, bar association, government)?

Please identify.

Yes: the Milan Chamber of Commerce.

Administration of Cases

3. How many new arbitrations have been commenced at your institution over the

past 5 years?

Along the last 5 years (2009-2013), 717 new arbitrations have been commenced.

4. What percentage of arbitrations commenced at your institution over the past 5

years have involved an amount in dispute in the following categories:

This data is not available for the requested period.

The economic value in dispute (average amount) over the past 5 years has been of

5.672.770,00 €.

In particular, on a yearly basis: the average amount for 2009 has been 6.534.293,42 €; for

2010 it has been 4.246.451,14 €; for 2011 it has been 7.151.109,00 €; for 2012 it has

been 6.708.231,00 €; for 2013 it has been 3.723.764,00 €.

In 2013 only, these are the requested percentages:

(i) less than 25,000 Euros (or equivalent in other currencies): 7,8%

(ii) 25,000-100,000 Euros (or equivalent in other currencies): 16,8%

(iii) 100,000-1,000,000 Euros (or equivalent in other currencies): 46,7%

(iv) 1,000,000-10,000,000 Euros (or equivalent in other currencies): 24%

(v) 10,000,000-100,000,000 Euros (or equivalent in other currencies): 4,1%

(vi) over 100,000,000 Euros (or equivalent in other currencies): 0,6%

5. What percentage of arbitrations commenced at your institution over the past 5

years arose from the following sectors:

(i) Corporate: 27,6%

(ii) Construction: 20%

(iii) Telecommunications

Information not collected

(iv) Finance and Banking: 2,7%

(v) Distribution/Agency/Franchise: 2,7%

(vi) Energy

Information not collected (statistics regarding the triennium 2011 - 2013:

14,71%)

(vii) Consumer: Information not collected

(viii) Investor-State: 0%

(ix) State-State (i.e. Public International Law): 0%

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

(x) Maritime: Information not collected

(xi) Other. Please specify any significant categories.

47% (this percentage may include those previous sectors filled with the voice

“information not collected”).

6. What percentage of arbitrations commenced at your institution over the past 5

years constituted international arbitrations under the definition provided in the

UNCITRAL Model Law on International Commercial Arbitration?

10,6%

7. What percentage of arbitrations commenced at your institution over the past 5

years have involved a State, Parastatal or Public entity as a party?

Until now, our institution has administered commercial arbitrations only; we have had

neither State-State cases nor Investment arbitration cases. Sometimes we did administer

arbitrations involving a State-controlled party or a Public Entity such as a Region or a

Municipality; the percentage of these cases has not been collected.

8. Please list all States in which arbitrations commenced at your institution over

the past 5 years have been seated.

Italy, Switzerland.

9. What percentage of arbitrations commenced at your institution over the past 5

years have not been seated in the State in which your institution is located?

0,26%

10. Does your institution undertake any scrutiny of awards before they are

delivered to the parties? Please describe any scrutiny undertaken, whether solely

concerned with formal aspects of the award, or also concerned with the

substantive aspects of the award.

Art.30 Para 4 of the Arbitration Rules of our institution provides that “The Secretariat shall

indicate any non-compliance with the formal requirements under this Article to the

arbitrators asking for an examination of the draft award before signing it.” It means that

our institution provides an optional formal scrutiny of awards on arbitrator’s demand

(statistically, requested by the arbitrators more than 90% of our cases).

Appointment of Arbitrators

11. In what percentage of arbitrations commenced at your institution over the

past 5 years has your institution directly appointed one or more of the arbitrators

(please include both appointment of the chair of the tribunal and appointment of

arbitrators who would normally be appointed by a party)?

Along the last 5 years (2009-2013), 1.345 arbitrators were appointed, 514 of whom were

appointed by the Chamber of Arbitration of Milan directly, that is to say 38% (486 by the

Arbitral Council and 28 by the President of the Chamber). Under the Milan Rules, when the

appointment of arbitrator is referred to the Chamber, it is carried out by the Arbitral

Council, that has general competence – together with the Secretariat - over all matters

relating to the administration of arbitral cases.

12. Does your institution maintain a list of arbitrators? If so, please describe how

names are added to the list, and the role played by the list when your institution

is required to directly appoint an arbitrator.

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

No, it does not.

13. Please describe the mechanism by which your institution selects arbitrators

when required to appoint one (e.g. who researches potential arbitrators, how

names are identified, who makes the final decision).

Arbitrators are selected on a case by case basis, considering the expertise on the matter in

dispute, the knowledge of substantial and procedural rules, the seat, the language of the

case and its value. The Secretariat is requested to collect names of candidates, to be

submitted to our Council (together with a description of the major features of the

proceedings), in order to help the Council to take the final decision and appoint the most

“appropriate” arbitrators.

Nationality: unless the parties agreed otherwise, the sole arbitrator/chair shall be of a

nationality other than the parties when they have different nationalities or registered offices

in different countries.

14. Please describe the mechanism by which you decide challenges to arbitrators

(e.g. how information is collected to decide the challenge, who makes the final

decision).

The prospective arbitrator shall sign a statement of independence where disclosing any

relationship with the parties, their counsel or any person or entity involved in the

arbitration, any personal or economic interest (direct or indirect) in the dispute, any bias or

reservation. The Secretariat forwards the statement to the parties, who can submit

comments or challenge the arbitrator within 10 days. If an unqualified statement is

submitted and no comment is filed, the Secretariat confirms the arbitrator. In any other

case, the final decision on the confirmation or on the challenge of the arbitrator is up to the

Arbitral Council.

Transparency

15. Please describe your institution’s rules on confidentiality of arbitral

proceedings and arbitral awards.

The Milan Chamber of Arbitration, the parties, the Arbitral Tribunal and the experts shall

keep the proceedings and the arbitral awards confidential except in the case it has to be

used to protect one’s rights (see Rules, art. 8.1). Confidentiality does affect all persons

taking part in the proceedings. The set of Rules offers the certainty that throughout the

proceedings their need for privacy will be given the highest degree of protection, that the

pleadings they file will be kept in a strong box within the institution itself and distributed

only to those taking part in the arbitration and, lastly, that hearings will be held in the

strictest privacy and not open to anyone not involved in the arbitration.

16. Does your institution make arbitral awards publicly available (e.g. in redacted

form; in the form of periodic summaries/overviews of decisions)?

Yes, it does.

For purposes of research, the Milan Chamber of Arbitration may publish the arbitral award

in anonymous format, unless, during the proceedings, any of the parties objects to

publication (see Rules, art. 8.2). Thus, once the award is rendered and unless the parties

have expressed specific objections to publication, we publish, in anonymous form and in a

manner that does not allow the parties to be recognised, the awards that are most

important for the building up of case law and of the growth of a culture of arbitration.

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

We see no contradiction between these two aspects: the guarantee of privacy while the

proceedings are ongoing can go hand in hand with the needs for publicity and publication

once those proceedings are over.

17. Does your institution make decisions on challenges to arbitrators publicly

available (e.g. in redacted form; in the form of periodic summaries/overviews of

decisions)

No, or rather, not yet.

We plan to start the publication of decisions on challenges of the arbitrators by January

2015 in the form of a digest of reasoned and sanitized (i.e. anonymous) challenge cases

decisions. The Milan Chamber website seems to us the best place for a timely and

continuous publication.

Collaboration and Education

18. Over the past 5 years has your institution engaged directly with legislators or

other governmental entities, either to promote legislative change or to promote

the understanding of arbitration within government? Please describe.

Yes, it did.

In the last 5 years, CAM has been involved in the latest legislative changes concerning ADR

(mediation law, decree n.180/2010 and decree 145/2011) and it is now involved in the

ongoing so-called “Reform of Italian Civil Justice” (mediation and arbitration).

CAM played an active role in the promotion of arbitration and mediation within the judicial

system, either at a local level (in partnership with the Milan Court of Appeal) and a national

level (in partnership with the Consiglio Superiore della Magistratura-CSM, the Italian High

Council of Magistrates.

19. Please describe the primary educational/promotional activities in which your

institution has engaged in the past 5 years (e.g. educational programmes for

junior practitioners, arbitrators or judges; activities designed to increase

understanding of arbitration within the business community; programmes

intended to promote awareness of your institution in other States). Please

summarise in general terms if this is necessary to keep your answer within 100

words.

During the past 5 years, CAM has engaged the following activities:

1. annual basic training activities (approximately 40 hours per edition) addressed to

various professionals (lawyers, engineers, accountant, etc.) interested in deepening

their knowledge of arbitration;

2. advanced seminars on specific topics addressed to various categories of

professionals (judges, lawyers, etc.);

3. international events, also in cooperation with other primary foreign Institutions,

focused on the most relevant topics of the arbitration panorama;

4. seminars also in cooperation with other national and internationals Organizations

aimed at promoting awareness of CAM practice;

5. simulation training activities addressed to students.

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

20. Are there other arbitral institutions with which your institution has formal

cooperation agreements, or with whom your institution regularly cooperates, with

respect to either the administration of cases or educational/promotional

activities? Please identify.

The Milan Chamber of Arbitration

 regularly cooperates with SCC, VIAC, DIS organizing periodical training events;

 has cooperated with several organizations for the organization of international

events; among the others: IBA, AIA (Italian Arbitration Association), Francarbi,

ARBIt, ASA, ICCA, ASLA, CMAP, CPR;

 is part of the network of ISPRAMED (Institute for the Promotion of Arbitration in the

Mediterranean) aimed at elaborating common principles in the management of

arbitral procedures of its members (CRCICA, CACI; CCAT, ITO, ICC Morocco, CCIB);

 is a board member of IFCAI and cooperates in organizing its biennial conferences;

 organizes the annual debate of the Club of Arbitrators of the CAM, an association of

highly regarded experts and practitioners of international repute;

 has signed several cooperation agreements with the world leading arbitral

institutions.

3.8. Civil and Mercantile Court of Arbitration (CIMA)

Instructions:

1. Please answer the questions in the space provided below each question.

2. Answers will be provided to the Parliament as they are written below (i.e.

unedited).

3. Many questions simply request a number, rather than a narrative answer (i.e.

sentence form). However, if you believe just providing a number would give an

inaccurate picture of your institution, or if you are unwilling or unable to provide a

specific number, you are welcome to write a narrative answer instead.

4. Each answer must be less than 100 words. Due to space limitations, answers

over 100 words may be deleted.

General Information

1. When was your institution founded?

En el año 1989.

2. Is your institution formally affiliated with any superior/sponsoring

organisation/entity (e.g. chamber of commerce, bar association, government)?

Please identify.

No existe intermediación alguna de carácter público o privado al ser una Corte privada que

se autofinancia por sus propios asociados.

Administration of Cases

3. How many new arbitrations have been commenced at your institution over the

past 5 years?

______________________________________________________________

Policy Department C: Citizens' Rights and Constitutional Affairs

En total entre los años 2009-2013, se han administrado 276 arbitrajes.

4. What percentage of arbitrations commenced at your institution over the past 5

years have involved an amount in dispute in the following categories:

(i) less than 25,000 Euros (or equivalent in other currencies)

(ii) 25,000-100,000 Euros (or equivalent in other currencies)

(iii) 100,000-1,000,000 Euros (or equivalent in other currencies)

(iv) 1,000,000-10,000,000 Euros (or equivalent in other currencies)

(v) 10,000,000-100,000,000 Euros (or equivalent in other currencies)

(vi) over 100,000,000 Euros (or equivalent in other currencies)

5. What percentage of arbitrations commenced at your institution over the past 5

years arose from the following sectors:

(i) Corporate

(ii) Construction

(iii) Telecommunications

(iv) Finance and Banking

(v) Distribution/Agency/Franchise

(vi) Energy

(vii) Consumer

(viii) Investor-State

(ix) State-State (i.e. Public International Law)

(x) Maritime

(xi) Other. Please specify any significant categories.

6. What percentage of arbitrations commenced at your institution over the past 5

years constituted international arbitrations under the definition provided in the

UNCITRAL Model Law on International Commercial Arbitration?

7. What percentage of arbitrations commenced at your institution over the past 5

years have involved a State, Parastatal or Public entity as a party?

8. Please list all States in which arbitrations commenced at your institution over

the past 5 years have been seated.

9. What percentage of arbitrations commenced at your institution over the past 5

years have not been seated in the State in which your institution is located?

10. Does your institution undertake any scrutiny of awards before they are

delivered to the parties? Please describe any scrutiny undertaken, whether solely

concerned with formal aspects of the award, or also concerned with the

substantive aspects of the award.

Appointment of Arbitrators

_______________________________________________________________________

Annex C - Arbitral Institutions Questionnaires

11. In what percentage of arbitrations commenced at your institution over the

past 5 years has your institution directly appointed one or more of the arbitrators

(please include both appointment of the chair of the tribunal and appointment of

arbitrators who would normally be appointed by a party)?

12. Does your institution maintain a list of arbitrators? If so, please describe how

names are added to the list, and the role played by the list when your institution

is required to directly appoint an arbitrator.

CIMA dispone en la actualidad de una completa relación de Árbitros de ámbito nacional e

internacional. Para adquirir la condición de asociado (árbitro) de CIMA, éstos deberán

reunir necesariamente las tres condiciones siguientes:

a) Estar dado de alta en un Colegio de Abogados como ejerciente con una antigüedad

no menor de diez años.

b) No haber sido sancionado disciplinariamente como colegiado, ni expulsado de la

asociación, ni condenado por delito doloso.

c) Pertenecer o haber pertenecido al Cuerpo de Letrados del Consejo de Estado o al de

Abogados del Estado, o tratarse de jurista de reconocida competencia y probada

experiencia, a juicio de la Comisión de Gobierno.

d) La decisión sobre la admisión como árbitro de CIMA, la adoptará la Comisión de

Gobierno, teniendo en cuenta el número de árbitros de la Corte y su relación con el

número de asuntos a laudar en el tiempo.

13. Please describe the mechanism by which your institution selects arbitrators

when required to appoint one (e.g. who researches potential arbitrators, how

names are identified, who makes the final decision).

La designación de Árbitros, una vez realizados los trámites preparatorios del arbitraje,

tendrá lugar por sistema automático y rotativo, por riguroso orden número y correlativo.

Dicho automatismo sólo se alterará:

a) Cuando las partes se pongan de acuerdo en la designación de un árbitro o tribunal

arbitral, de entre los árbitros incluidos en la lista de la Corte.

b) Cuando cada una de las partes designe un árbitro de entre los de la lista de la Corte

y encomienden a los designados la elección del tercero que actuará de Presidente

del Tribunal y que, asimismo, deberá pertenecer a la lista de la Corte.

c) Cuando cada una de las partes designe a un árbitro de entre los de la lista de la

Corte, dejando la designación del tercero al Presidente de la misma, que designará,

al que por turno corresponda quien asumirá la Presidencia del tribunal arbitral.

14. Please describe the mechanism by which you decide challenges to arbitrators

(e.g. how information is collected to decide the challenge, who makes the final

decision).

Una vez designados los árbitros en un procedimiento, éstos comunicaran a la Corte su

aceptación o los motivos para no aceptar el encargo. En el escrito aceptando su

designación, el árbitro deberá revelar todas las circunstancias que puedan dar lugar a

dudas justificadas sobre su imparcialidad o independencia. La aceptación del árbitro o

árbitros será comunicada por la Corte a las partes, quienes, en el plazo de 15 días podrán

manifestar, por escrito, la aceptación de aquéllos o, en su caso, su recusación. No

obstante, las partes podrán recusar al árbitro o árbitros, en cualquier momento de

procedimiento anterior al laudo, dentro de los 15 días siguientes a la fecha en que tengan

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Policy Department C: Citizens' Rights and Constitutional Affairs

conocimiento de cualquier circunstancia que dé lugar a dudas sobre su imparcialidad o

independencia.

La recusación de los árbitros se ajustará a lo dispuesto sobre la materia en la vigente Ley

de Arbitraje, si bien contra el acuerdo no aceptando la recusación, parte recusante podrá

recurrir ante la Comisión de Gobierno de la Corte, por escrito y aportando los medios de

prueba de que disponga. La Comisión adoptará las decisiones procesales que estime

pertinentes y decidirá sobre la recusación en el plazo de un mes a partir de la recepción del

recurso, previa audiencia del árbitro y de las partes.

Transparency

15. Please describe your institution’s rules on confidentiality of arbitral

proceedings and arbitral awards.

16. Does your institution make arbitral awards publicly available (e.g. in redacted

form; in the form of periodic summaries/overviews of decisions)?

El laudo solo podrá hacerse público con el consentimiento de todas las partes.