Arbitral tribunal

An arbitration is a legal means of dispute resolution in the context of arbitration. This is a private court, which meets only by agreement of the respective parties to the dispute and a judgment ( arbitration ) pronounce. The agreement is generally carried out in contractual form. The arbitration award is legally binding on the parties usually and can be explained in state courts to be enforceable. The number of arbitrators may be determined by the parties themselves (usually a single or three). In addition to the number of arbitrators, the appointment is usually the same part of the contract between the parties. In a so-called three-member arbitral tribunal, each party shall appoint one arbitrator normally, which then in turn agree on a chairman; this is called the umpire or simply umpire. Failing an agreement, the third arbitrator shall be appointed by an appointing authority often. The party appointed arbitrator must be independent.

History

Arbitration courts, which are independent of a court proceeding that are not a new phenomenon. The modern arbitration can be traced back to accounts established between the Kingdom of Great Britain and the United States under the Jay Treaty arbitration tribunal which should fix issues for border demarcation to the British Canada. As a milestone of international arbitration between states solving the Alabama question applies by arbitration in 1872.

Another example of arbitral tribunals are the " social courts " (Arbitration commissions commissions and conflict ) of the GDR, which were built on the Soviet model and 1990 replaced by municipal tribunals.

International often contain investment protection agreements between a foreign investor with a State, an agreement on a common arbitration.

Pros and Cons

Frequently referred to advantages of private arbitration are:

• One against the state jurisdiction recoverable significant acceleration method
• Potential cost advantages with particular reference to large amount in dispute
• The method can be adapted flexibly to the wishes of the parties, for example in terms of the venue and the language used
• Arbitration is in contrast to court proceedings generally non-public, moreover, the confidentiality of the process are agreed that the arbitration procedure is to treat even from his very nature confidential, is judged internationally, however, very different. The prevailing opinion in Germany probably speaks to the arbitration proceedings without a corresponding provision in the arbitration rules of a confidential character. In the Latin legal systems this question is, however, also not uniform.
• The parties may determine referee, bring in, for example, specific legal or technical expertise.
• Procedural law can be adapted to the peculiarities of the underlying " main contract " and reacts according to the principle of party autonomy flexibly to changing needs of the parties.

In disputes between parties from different countries further advantages added:

• The arbitral tribunal may serve as a neutral forum that a " home advantage " are any of the parties.
• Through the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards is an award usually is easier abroad enforced as a state judgment.

From the informality and the target faster dispute resolution but also disadvantages follow:

• With an arbitration agreement, the parties waive mostly on her right to be heard in state courts.
• The short chain of command increases the risk of uncorrected mistakes.
• Depending on the case the costs may be higher than in state courts.
• The independence of the arbitrator is not always guaranteed.

Applicable procedural and substantive law

The parties agree by an arbitration clause as to resolve future disputes not in state courts, but before an arbitral tribunal. This arbitration clause is usually written in the " main contract" and shall, in accordance with the principle of party autonomy is often the applicable procedural law and arbitration. If the parties fail to agree on the applicable procedural law is regularly the right place of arbitration ( lex loci arbitri ) applicable ( in Germany in the 10th Book of the Code of Civil Procedure ).

The arbitration clause is also already determined whether the parties use an ad hoc arbitration tribunal, or want to use an arbitration institution. If the parties a choice in favor of an arbitration institution shall make this its own rules of procedure usually prepared. In the context of ad hoc arbitration tribunals can be selected in addition to national or self-created rules of procedure and the application of a ( modified ) institutional procedural law. In addition, the UNCITRAL UNCITRAL Arbitration Rules provides with the self-regulatory mechanisms for ad hoc procedures.

As the applicable substantive law is to be determined, it follows from the applicable procedural law. The German Code of Civil Procedure provides in § 1051 ZPO primarily at a party agreement. Subsidiary refers it as a conflict rule on the law with the closest connection to the particular dispute. The Rome I Regulation does not apply in arbitration proceedings (Art. 1 para 2 lit. E Rome I Regulation).

Institutional and Ad- hoc Arbitration

Ad- hoc Arbitration

Arbitration courts can be set up without the help of an external body. The organization of the referee designation and the process is then the responsibility of the parties ( ad hoc arbitration ). The ad hoc arbitration is therefore characterized in that the parties agree on all matters of arbitration, as applicable procedural rules, selection and payment of the referee and the location of each procedure independently.

Institutional Arbitration

There also exist arbitral institutions. These provide for a their own rules of procedure prepared the other hand they support the parties for a fee in the selection of arbitrators ( eg via the maintenance of relevant lists of experienced practitioners ) and in the organization of the proceedings. The biggest difference institution in Germany is the German Institution of Arbitration, based in Cologne (DIS ).

There also exist a " permanent " arbitration. These are configured, for example, by industry and commerce, such as the Chamber of Commerce, by the law societies, companies or even within political parties.

The most important international organizations in the field of commercial arbitration, the International Chamber of Commerce ( ICC) in Paris, the American Arbitration Association (AAA ) in New York City, the London Court of International Arbitration ( LCIA ), and the International Centre for the Settlement of investment Disputes (ICSID ) of the World Bank in New York City.

Also in Sport arbitration courts such as the International Sports Court or the German sports arbitration are often called. The stage arbitration is an institution of the ( German ) Cooperative German national stage.

Advantage of institutional arbitration, for example, that the procedural rules and model clauses are available in different languages. Often you can determine the cost based method of process offered online cost calculator.

Interstate Arbitration

Just as on the above- outlined private sector level, there are courts of arbitration and at intergovernmental level and thus offer an alternative to the institutionalized courts such as the ICJ. The parties to the dispute, so here regularly States can refer to the arbitration proceedings both by the selection of judges as well as by the determination of the applicable law direct influence. The built with the Hague Convention for the Pacific Settlement of International Disputes of 1899 Permanent Court of Arbitration, the most prominent means of providing necessary for the conduct of arbitration proceedings infrastructure (judges pool, premises, secretarial staff, and so on ) dar. However, there was in ancient times, for example, in ancient Greece, arbitration.