Seminar on Private International Law： Introduction to International Commercial Arbitration

Lecturer	Giorgio Fabio COLOMBO, Associate Professor
Department	School of Law / Graduate School of Law, 2017 Spring
Recommended for:	G30 (2)

Course Overview

International commercial arbitration is becoming more and more important in the field of cross-border disputed resolution. While most advanced nations already are already familiar with arbitration, there is a growing demand of expertise in this field from recent developing countries. The regulatory framework in the world is moving towards a "globalized" arbitration: there is widespread acceptance of international models as base for legislation (e.g. the UNCITRAL Model Law on International Commercial Arbitration) and the circulation of awards is made smoother by effective international instruments (e.g. the 1958 New York Convention of the recognition and enforcement of foreign arbitral awards), However, many countries are lagging back in term of effective appliance of those international tools: national resistances (both legislative, judicial and political) and the lack of arbitration theoretical and practical expertise among legislators, judges and professional operators is jeopardizing an effective and homogeneous success of arbitration all over the world. One tool to subvert this situation is trying to provide law students with a strong basis of notions in this field. This seminar focuses on both theoretical and practical issues in arbitration, covering a wide spectrum of subjects in order to provide a comprehensive picture of what international arbitration is.

Teaching Tips

English is the primary language of International Commercial Arbitration. Most students (and instructors!) at Nagoya University are not native English speakers, so do not worry: irrespective of your proficiency you are strongly encouraged to take part in the discussion and to express your opinions.
This seminar is aimed to provide students with a general and broad knowledge of international commercial arbitration. We will start on the assumption that students do not possess a structured understanding of what international commercial arbitration is. For students with knowledge of international commercial arbitration this seminar will be useful for brushing up and filling gaps: you are, however, very welcome to ask for further readings if you are interested in a specific subject.
We will be using several categories of readings:
a. Scholarly writings, articles
b. Laws, treaties, documents from arbitral institutions
c. Materials prepared specifically for this seminar
d. Documents (awards, etc.) taken from real cases
You may be required to read the relevant materials in advance and to be prepared to discuss it during lessons

Aim

The aim of the seminar is to provide students with effective knowledge of international commercial arbitration. First, a general overview of the subject will be presented, in order to allow everybody to have a common frame of reference. Then, each single phase of the procedure will be analyzed in detail, from the arbitration agreement to the recognition and enforcement of the award. To better understand the interaction between theoretical and normative framework and practical problems, students will have to read and comment also on materials taken from actual cases. After the end of the seminar, students should have acquired a good knowledge of, inter alia, the UNICTRAL Model Law, the New York Convention and the main problems and issues which are currently debated among arbitration scholars and practitioners.

Textbooks

due to the peculiar nature of the seminar, there is no need of a general textbook for students. Lessons will be based on specifically created Power Point presentations. Also, copies of some relevant readings will be distributed to students on a regular basis, via the online syllabus system. However, as a support textbook, students may want to use N. Blackaby, C. Partasides (with Alan Redfern and Martin Hunter), Redfern and Hunter on International Arbitration - Student version, Oxford, Oxford University Press, 6th edition, 2016.

Reference Materials

In addition to the materials mentioned under "Textbooks" above, other handouts and reading materials will be will be distributed to students via the online syllabus system. A preliminary list will be distributed during the first class.

Requirement for taking the seminar

Good command of English language (reading, speaking, and writing) is required. A basic knowledge of private international law and civil procedure is recommended.

Course plan and record

1. Introduction to the seminar

a. Layout of the seminar
b. Short explanation of the lecture plan
c. Introduction to the readings
d. Explanation about evaluation procedure
e. Self-introduction
f. Learning expectations

2. What is International Commercial Arbitration?

a. General definition
b. "International"
c. "Commercial"
d. Key elements of arbitration
e. Main features
f. Advantages and disadvantages
g. Arbitration and litigation
h. Arbitration and conciliation
i. Arbitration = ADR?
j. Sources of international commercial arbitration
(Reading: Gary B. Born, "Planning for International Dispute Resolution", in Journal of International Arbitration, 17, 3, 2000, pp. 61 - 72 )

3. Types of Arbitration

a. Institutional (administered) arbitration
b. Ad hoc arbitration
c. Arbitration according to the law/ex aequo et bono
d. Arbitration involving States
e. Arbitral institutions
(Reading: Margaret Moses, "Introduction to International Commercial Arbitration", in Loyola University Chicago School of Law, Public Law & Theory Research Paper no. 2011-27)

4. Arbitration Agreements

a. Arbitration agreements and submission agreements
b. Requirements for validity...
c. ...in writing
d. ...existing or future disputes, in respect of a defined legal relationship
e. ...subject matter is capable of settlement by arbitration
f. Arbitrability
g. Separability of the clause
h. Multi-party arbitration
i. Multi-tiered and finger-point agreements
j. Defective clauses
(Readings: Mitsubishi v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985); examples of defective clauses)

5. Applicable laws

a. Law applicable to the Arbitration agreement
b. Law applicable to the Arbitration procedure
c. Law applicable to the merits
d. State law/Soft law
e. Different approaches to applicable law
(Reading: [2004] EWCA Civ 19 Beximco vs. Shamil)

6. The Arbitration Tribunal and the Arbitrator

a. Appointment of Arbitrators
b. Qualities of the Arbitrators
c. Validity of Special Requirements
d. Powers of the Tribunal (incl. Kompetenz kompetenz)
(Reading: [2010] EWCA Civ 712 Jivraj v Hashwani)

7. Mid-term Test

8. Independence, Neutrality and Impartiality

a. Independence
b. Neutrality
c. Impartiality
d. Challenge and Replacement of Arbitrators
e. IBA Guidelines
(Reading: selected cases of Independence and Impartiality declarations)

9. The procedure

a. How to start and arbitration
b. Written submissions
c. Evidentiary matters
d. Hearings
e. Professional Ethics in International Arbitration;
(Readings: IBA International Principles on Conduct for the Legal Profession; Rules of Ethics for International Arbitrators)

10. Arbitration and the Courts

a. Enforcing the clause, jurisdiction
b. Interim measures
c. Witnesses, evidence
(Reading: C v D [2007] EWHC 1541 (Comm))

11. The Award

a. Formal requirements
b. Structure of the Award
c. Orders, Interim Awards, Final Awards
(Readings: Luca G. Radicati di Brozolo, "Res Judicata and International Arbitral Awards", in Pierre Tercier (ed.) Post Award Issues. ASA Special Series n. 38, 2011. Arbitral Award, parties omitted)

12. Enforcing and Challenging an Arbitral Award

a. New York Convention
b. Refusal to recognize and enforces: reasons
c. Ground for Challenge
(Readings: William W. Park, "Duty and Discretion in International Arbitration", in American Journal of International Law, 93, 805, 1999. Renusagar Power Co. Ltd vs General Electric Co on 7 October, 1993 - pp. 1-25)