The topic of this seminar is Arbitration agreement - Practical Aspects.

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The most important practical issue regarding arbitration agreements is their drafting. This is due to the fact that parties often agree on pathological clause. These defective clauses have undesirable consequences. First they may lead to different legal effects than the parties expected in the time of conclusion of arbitration agreement. Second, the defective clause might not have any legal effects, so that it is inoperable.

In order to prevent mentioned problems the arbitration agreement must fulfil minimum essential requirements as follows:

• Concrete dispute(s) or its(their) aspects should be decided in arbitration
• Unambigous will of the parties to submit dispute to arbitration
• Correct indication of arbitration institution. 

 

Moreover, there are  elements of arbitration agreement which are strongly recommended:

• Number of arbitrators
• Language of arbitration proceedings
• The venue of arbitration.
  

Bad drafting may also lead to invalidity of arbitration clause. In this case, it should be born in mind that the invalidity of arbitration agreement generally does not influence validity of main contract. This is so owing to the fact that arbitation agreement and main contract are two separated contract (so called theory of separability).

Arbitration agreement per se is not sufficient condition for initiating arbitration proceedings. Nor it may oblige arbitrator ro decide the dispute. Therefore, in order to be able to decide the dispute, arbitrator must accept his or her competence to decide the dispute.  Thus, arbitrator is fully entitled to decide whether he or she is competent to hear the case(so called compétence-compétence principle).

The minimum requirements regarding person of arbitrator are:

• Independence
• Impartiality.

There are also some additional requirements in some countries and under certain arbitration acts, such as:

The university degree in law or economics.

The main duties of arbitrator are:

• Duty to Decide the case impartialy
• Duty of confidentiality
• Duty to hear and decide the dispute in conformity with applicable arbitration act and other related laws.

Study materials:

Here you can find interesting material.

ROZEHNALOVÁ, Naděžda. Rozhodčí řízení v mezinárodním a vnitrostátním obchodním styku. 2. aktualiz. a rozš. vyd. Praha : ASPI, 2008. 386 s. ISBN 9788073573249

Your task for this seminar is following:

Please go through the articles and study materials and try to learn something about Arbitration agreement, especially about the theory of separability of arbitration clause and about the competence - competence principle. We will discuss it after presentation.

The task for the GROUP 2 (Kateřina Studecká (325744))

- please prepare a power point presentation about the topic of seminar

     In your presentation should be :

• description and analysis of the theory of separability
  
• description and analysis of the competence - competence principle
• description of the term pathological arbitration agreement

 

At the end of this seminar you should be able to answer these question:

1. Consider following statement: If a sale contract is invalid, then arbitration clause contained in the sale contract is automatically invalid as well.

2. May the arbitrator deciding the case between company A and company B be lawyer of company A?

3. Consider following statement: Arbitrator must always ask the court whether he or she is competent to hear the dispute.

4.  Is arbitrator bound by his or her nomination in arbitration agreement?

5.  Consider whether there is any problem with following arbitration clause:"All disputes arising from non-performance of joint-venture contract shall be decided by arbitration court in Milan."

6.  Consider whether there is any problem with following arbitration clause: "If negotiations between parties fails, the dispute shall be settled in arbitration."

7. Is it usual that some arbitration laws require parties to choose odd number of arbitrators?

8. Consider following statement: If an arbitration clause is contained in  joint- venture contract, which turns out to be invalid, then an arbitrator cannot resolve the dispute regarding the invalidity of the joint-venture contract.