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International Commercial Arbitration

International Commercial Arbitration. The procedure University of Oslo Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University. Legal framework. Arbitration agreement Arbitration rules Arbitration law Conventions Soft law Arbitral tribunal ’ s discretion. Mandatory principles.

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International Commercial Arbitration

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  1. International Commercial Arbitration The procedure University of Oslo Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

  2. Legal framework • Arbitration agreement • Arbitration rules • Arbitration law • Conventions • Soft law • Arbitral tribunal’s discretion

  3. Mandatory principles • Parties’ consent • Scope of dispute • Parties • Arbitral Tribunal’s powers • Due process • Impartiality • Each party to be able to present its case • Arbitrability • Ordre public

  4. Formal and actual hierarchy • Arbitration agreement • Arbitration rules • Arbitration law • Conventions • Soft law • Arbitral tribunal’s discretion • Arbitration law • Conventions • Soft law • Arbitral tribunal’s discretion • Arbitration rules • Agreement bewteen the parties

  5. Main structure • Request for arbitration • Response • Statement of Claim • Statement of Defence • [Terms of reference] • New exchange of submissions • Oral Hearing • Award

  6. Provisional measures: Court’s powers • Courts have jurisidiction on provisional measures • UNCITRAL Model Law art 17J • Vogl § 8 • Courts may assist in taking of evidence • UNCITRAL Model Law art 27 • Vogl §30

  7. Provisional measures: Arbitral tribunal’s power • Interim measures • UNCITRAL Model Law (post 2006) art 17 A • Preliminary orders • UNCITRAL Model Law (post 2006) art 17 B • Emergency arbitrator

  8. Law applicable to the substance • Parties’ agreement • Not completely unlimited • Law determined by the arbitral tribunal

  9. How is the applicable law determined? • The PIL of the place of arbitration • Norway vogl § 31 • The PIL that the arbitrator deems the most appropriate • UNCITRAL Model Law art. 28 • Specific choice-of-law for the arbitration • Switzerland PILA art. 187 • Direct application of the rules of law considered appropriate • ICC Rules art. 21 • Not specified • Sweden, Italy

  10. Law or rules of law? • If determined by the arbitral tribunal: law • UNCITRAL Model Law art 28(2) • If requested by the parties: rules of law • UNCITRAL Model Law art 28(1) • If requested by the parties: ex bono et aequo • UNCITRAL Model Law art 28(3)

  11. Law or rules of law? • ICC art. 21, LCIA Art 22.3: rules of law even at tribunal’s initiative • They are considered as parties’ agreement and are therefore acceptable under Model Law art 28(1)

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