International Arbitration
LexInter | April 17, 2010 | 0 Comments

International Arbitration

Arbitration is an optional dispute resolution method that is particularly suited to international trade. The parties are often suspicious of national courts and also linguistic and often cultural problems arise before state courts.

Arbitral justice derives its power from the will of the parties, unlike state justice. It is this which defines the procedure for appointing arbitrators (directly or by reference to an arbitration rule), the scope of the mission and the operating rules of the arbitral tribunal.

The development of international arbitration is founded in particular by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), ratified by more than one hundred and five states ( http://un.or.at/ uncitral ).

Arbitration can either be institutional or ad hoc. In institutional arbitration, the parties referred to an arbitration institution, which administers the arbitration. The most important are ICC arbitration , arbitration LCIA , Arbitration of the Chamber of Commerce in Stockholm.    UNCITRAL has developed a set of arbitration rules (28 April 1976), to be adopted by the parties in their arbitration agreement, which was adopted by various regional centers aarbitrages (Kuala Lumpur, Cairo , www. crcica.org/   Hong Kong).

UNCITRAL has also drawn up (June 21, 1985) and proposed to states a model law ( http://un.or.at/uncitral ) which has been very successful.

The rules of the institution establish the main rules of arbitration, the powers and duties of the arbitrators. It can also play a role in the appointment of arbitrators.

Arbitration is permitted for matters that are not necessarily submitted to the state judge. Case law, ruling in competition matters, has held that the arbitrator, in international matters, has the power to apply the principles and rules of public order (Ganz judgment, Ca Paris, 1st Ch. Suppl. 29 March 1991. Rev. arb. 1991.478) and specified that “the arbitrability of a dispute is not excluded from the sole fact that a public order regulation is applicable to the legal relationship in dispute” (Labinal judgment, Ca Paris, 1st Ch. Suppl. 19 May 1993. Rev. arb. 1993.645). The opening of collective proceedings by means of the individual suspension of proceedings limits the arbitrability of the dispute (Thinet judgment, Cass. 1st Civ. March 8, 1988, Rev. arb. 1989.473)

International arbitration

International arbitration is that which ” calls into question the interests of international trade ” ( article 1492 of the NCPC).

The rules in French law concerning international arbitration are set by Title V of the NCPC

Jurisdiction of the arbitral tribunal

The arbitrator has the right to rule on his own jurisdiction (kompetenz kompetenz). This solution is generally accepted, it is enshrined in France by article 1466 NCPC. It is provided for by Article V.3 of the 1961 Geneva Convention.

Arbitration and state judge

The stipulation of an arbitration clause prohibits the state judge from ruling on the dispute (article 1458 of the NCPC).

The state judge will only intervene in the context of an appeal against the sentence, unless this appeal has been excluded.

The arbitration agreement 

The arbitration agreement results from an arbitration clause defined as “the agreement by which the parties to a contract undertake to submit to arbitration any disputes which may arise in relation to this contract”.

When the dispute arises, the arbitration agreement takes the form of a compromise

The status of the arbitrator

The statute of the arbitrator, Bulletin of the International Court of Arbitration of the Chamber of C, n ° 564

The effects of the arbitration award

The arbitration award has, under the terms of article 1476, res judicata in relation to the dispute which it decides.

It constitutes a title allowing the practice of a precautionary measure. The authority of res judicata can only be called into question by the refusal of the exequatur or the annulment of the decision pronounced by a French court.

The enforcement of the sentence is obtained by a request made before the courts to confer enforceability on the sentence. The request for exequatur must be brought before the tribunal de grande instance ruling on a single judge (COJ, art. L311). The competent judge is that “in whose jurisdiction the decision was rendered. If the award was rendered abroad, the plaintiff may choose the court according to a link of attachment to the French court or failing that according to the requirements of ‘good administration of justice.

The judge is seized by way of motion. He can collect the observations of the other party but the procedure is not really adversarial.

In order for the award to be enforceable, the arbitration award must be provided in the form of an original or an authentic copy, the same evidentiary requirement being extended to the arbitration agreement (article 1499).

Moreover, the arbitration award must not be contrary to international public order.

The decision refusing recognition or enforcement is subject to appeal (art. 1501 NCPC). On the other hand, the decision granting the execution of a decision rendered in France is not subject to any appeal (article 1504 paragraph 2) because it may be the subject of a direct appeal for annulment.

On the other hand, an action for annulment is not possible against foreign decisions. The appeal is an appeal against the order of exequatur, or having admitted recognition. If the appeal is accepted, the award becomes unenforceable in France. An action for unenforceability is not possible (TGI Paris, Nov. 22, 1989. Rev. arb. 1990.693 n. B. Moreau)

The five NCPC section 1502 control cases are

  • the arbitrator ruled without an arbitration agreement or on a void or expired agreement
  • the tribunal was improperly composed or the sole arbitrator improperly appointed
  • the arbitrator ruled without complying with the mission conferred on him
  • the principle of contradiction has not been respected
  • recognition or enforcement is contrary to international public order

APPEAL FOR REVIEW

Court of Cassation, First Civil Chamber, judgment of 25 May 1992 and judgment of 19 December 1995 on the appeal for review

 

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