Arbitration

Hylton-Potts - London Based Law Firm Helping People Across the UK since 1999

Not only does Rodney Hylton-Potts handle arbitration disputes, but he also sits as an arbitrator.

He has particular experience and has handled cases before the Chambers of Commerce and international organisations such as the Internal Chamber of Commerce, the International Centre for Settlement of Investment Disputes and the London Court of International Arbitration.

Our team is tough, cost effective and quick. He specialises in cases involving different jurisdictions and laws.

Rodney Hylton-Potts will draft the Request or defence/counterclaim, handle all negotiations, advise on the appointment of the tribunal, and it’s terms of reference, deal with all issues of evidence, experts and memorials, as well as personally conducting the arbitration, examining witnesses and making closing submissions.

It is the perfect one-stop shop, with great attention to detail, highly cost-effective and a great success rate.

Arbitration Lawyer in London

Further, Rodney Hylton-Potts sits as an arbitrator, whether on paper or to receive oral hearings, and provides expert impartial rapid and cost effective arbitrations.

This has proved particularly popular from Eastern European countries and elsewhere who favour the speed, reliability and status of an English arbitration award.

For details contact Rodney Hylton-Potts on 020 3781 8111 or law@hylton-potts.com

ICC Arbitration Flow Chart

 

WHAT IS ARBTRATION?

Arbitration is a mechanism based on private agreements for the final resolution of disputes

  • There must be an agreement by the parties to refer disputes to arbitration
  • The Arbitral Tribunal reaches a decision (-and does not only make proposals or suggest amicable settlement)
  • The decision of the Arbitral Tribunal (“Award”), although arising as the result of a private agreement is legally binding and may be recognised and enforced by legal proceedings in national courts

Why Arbitration?

a)      International Enforceability of Arbitral Awards

b)      Hostility vis a vis (the) State Courts (of the other party) and confidence in International Arbitration

c)      Procedural Flexibility

d)     Appointment of Arbitrators and their professional qualification

e)      Confidentiality?

f)       Speed? Costs? (see the ICC document Techniques for Controlling Time and Costs in Arbitration; www.iccwbo.org)

 

  1. 1.      The different types of Arbitration

a)       Institutional Arbitration e.g.

–          ICC Arbitration (www.iccwbo.org/court/arbitration)

–          International Arbitral Centre of the Austrian Federal Economic Chamber = Vienna International Arbitral Centre, VIAC (www.viac.eu/en/)

–          Court of Arbitration for Sport (CAS) Lausanne (www.tas-cas.org)

b)       Ad-hoc Arbitration

c)      UNCITRAL Arbitration (www.uncitral.org)

d)     ICSID Arbitration (www.worldbank.org)

ICC Arbitration

The Structure of ICC- Arbitration and the role of

–                      The “Court” (International Court of Arbitration: ICA),

–                      Its Secretariat,

and

–                      The ICC National Committees:

ICC Arbitration

Art 6 Effect of the Arbitration Agreement

a)      Submission to the ICC Rules in effect on the date of commencement of the proceedings (para 1)

b)      Prima facie – control by the Court (if referred to it by the Secretary General) (paras. 3 to 7)

c)      Default by a party/Arbitral Award by Default? (para.8)

d)     Separability of the Arbitration Agreement (para.9)

Compare § 581 (1) Austrian CCP

“An arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship of a contractual or non-contractual nature.  The arbitration agreement may be concluded in the form of a separate agreement or as a clause in a contract”.

And § 1040 (1) German CCP

The Arbitral tribunal may rule on its own jurisdiction and in this connection on the existence or validity of the arbitration agreement.  For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract”.

Appointment/Confirmation

a)      One or three Arbitrators; the Court’s power in the absence of an agreement  by the parties

b)      Appointment of a Sole Arbitrator

c)      Appointment of a Three-Member-Tribunal (in bipolar and in multiparty situations)

d)     Relevant factors for the choice of a sole arbitrator/president

e)      The Role of the ICC National Committees (e.g. ICC Austria)

f)       Appointment of an Arbitrator on behalf of a defaulting party

ICC Arbitration

Challenges ‘for an alleged lack of independence or otherwise’ (Article 11 (1) of the ICC Rules of Arbitration) were introduced in 34 cases against a total of 46 arbitrators.  6 of the challenges were accepted by the Court.

Resignations were tendered by arbitrators on 40 occasions.  All but 2 of these resignations were accepted by the Court.

In addition to replacements made following a challenge or a resignation, 3 arbitrators were replaced at the request of all parties pursuant to Article 12 (1) of the Rules and a further 3 replacements were made at the Court’s initiative pursuant to Article 12(2) due to the arbitrators’ failure to fulfil their functions.

A)    ICC Arbitration

Art 16-29 The Arbitral Proceedings

            Art 16 Transmission of the File to the Arbitral Tribunal

            Excursus:

            Costs and Fees in ICC Arbitration (Art 36, 37 and Appendix III)

(a)   Administrative Expenses

(b)   Arbitrators’ Fees and Expenses

Art 18 Place of the Arbitration

–          Agreed upon by the parties

–          Fixed by the Court

The legal relevance of the place of arbitration, in particular for the challenge of the award

Art 19 Rules Governing the Proceedings

–          The ICC Rules

–          Agreement of the parties

–          Decision by the Arbitral Tribunal

Art 20 Language of the Arbitration

Art 25 Establishing the Facts of the case

–          Documentary evidence and disclosure of documents

–          Witnesses, witness statements and cross-examination

–          Experts: tribunal appointed/party appointed

Art 26 Hearings

Art 27 Closing of the Proceedings and

Date for the Submission of the Draft Award

Art 28 Conservatory and Interim Measures

–          The powers of tribunals and their limits

–          The parallel/subsidiary powers of state courts (cf. section 593 of the Austrian Arbitration Act)

Statistics on Awards

All awards drafted by ICC arbitral tribunal are submitted to the International Court of Arbitration for approval before being issues to the parties.  On such occasion, the Court may lay down modifications as to the form of the award and/or draw the attention of the arbitral tribunal to points of substance. The Court’s scrutiny of awards enables improvements to be made to enhance their enforceability.  The Court used its power to lay down modifications as to form and draw attention to points of substance when scrutinizing 444 (92.7%) of the awards approved in 2010.  On a further 43 occasions, the Court requested that the arbitral tribunal resubmits its award for approval.

ICC Arbitration

Awards drafted by arbitral tribunals composed of three members are decided unanimously in the overriding majority of cases.  In 2010, just 46 awards were made by a majority decision and none by the chair of the tribunal alone.  Majority awards are sometimes accompanied by dissenting opinions expressed by the member in the minority.  In just over 60% of cases, the minority decision was recorded in a separate document and in slightly more than 20% of cases it was included in the body of the award.  In the remaining cases, no dissenting opinion was explicitly expressed, but the award was referred to as a majority decision.

If it is necessary to correct or interpret an award after it has been rendered, the arbitral tribunal issues an addendum, which constitutes part of the award.  In 2010, 34 addenda correcting or interpreting an award were issued by ICC arbitral tribunals.  On 23 occasions, the arbitral tribunal dismissed a request for correction or interpretation of its award.