Arbitration Law and Practice in Central and Eastern Europe

Price: $195.00 1300 pages. 1 Looseleaf Volume. Updated annually or when needed. Index. Published June 2006.
ISBN-13: 978-1-929446-95-7 / ISBN-10: 1-929446-95-0

A subscription/standing order is entered for each title you purchase, unless we are otherwise notified.

* Online Access at ArbitrationLaw Online: When you purchase or subscribe to this publication you will receive access to it via our online collection of publications.

Book Overview

Questionnaire

1. General legal framework

1.1 National law
a) Current status
What is the current status? When was it enacted? Have there already been amendments?
b) Future development
Are amendments intended? If so, please outline the timing and the intended changes.
c) Special rules for international arbitration
Are there special rules for international arbitration; if yes, please describe the areas concerned as well as state the criteria for “international arbitration.”
d) UNCITRAL Model Law
Outline the main differences between the arbitration law of [country] and the UNCITRAL Model Law.

1.2 International Treaties

1.2.1 New York Convention
Provide a brief summary of each court decision on the New York Convention.

1.2.3 Other multilateral treaties
Indicate title and entry into force as well as any other information you deem useful.

1.2.4 Bilateral Agreements
Indicate title and entry into force as well as any other useful information, and provide a copy of the treaty. Of interest in particular are:

Treaties more favourable to arbitration than the New York Convention
Treaties with parties who are not members of the New York Convention
Treaties with provisions on areas not covered by the New York Convention
Bilateral Investment Treaties (BIT)

1.3 Arbitral institutions
Name any arbitral institutions in [country] with their contact details and any specialisation.

2. Arbitration agreement

2.1 Applicable law
Which law is applicable to the arbitration agreement?

2.2 Other dispute settlement agreements
How are arbitration agreements distinguished from other dispute settlement agreements (e.g. mediation, expert determination)?

2.3 Submission agreements and arbitration clauses
a) Is there a distinction between submission agreements and arbitration clauses or contracts?
b) If so, what are the criteria and the consequences?

2.4 Minimum content
What is the minimum content of the arbitration agreement?

2.5 Form requirements
a) What are the form requirements for the arbitration agreement?
b) Do they only apply to the minimum content or in general?
c) If the arbitration agreement was concluded in the proper form, but got lost, can its existence be proven by other means?
d) How can an initial lack of form be cured afterwards (e.g. by not raising a timely objection with respect to the jurisdiction of the arbitral tribunal)?

2.6 Proxy
What are the requirements for conclusion of arbitration agreements by proxy?

2.7 Special requirements as to form and content
What are any special requirements as to form and content for arbitration agreements contained in:
a) standard forms
b) general conditions of business
c) articles of association?

2.8 Personal capacity
Who has the personal capacity to conclude arbitration agreements?

2.9 State and state organisations
What are the special issues with respect to the conclusion of arbitration agreements by the state and/or state organizations?

2.10  Objective arbitrability
Which matters cannot be decided by arbitration (objective arbitrability)? If there is no exhaustive list, but a general rule, please provide examples.

2.11 Interpretation
Are there any rules governing the interpretation of arbitration agreements?

2.12 Scope
What scope does an arbitration agreement have (e.g. under which conditions are claims relating to the business relationship but based on statutory provisions such as unfair enrichment, tort, etc., subject to arbitration)?

2.13 Separability
What are the rules on the separability of arbitration agreements?

2.14 Termination
How can an arbitration agreement be terminated and with what effect?

2.15 Third parties
What effect does an arbitration agreement have with respect to third parties (e.g. legal successors, beneficiaries, group companies etc.)?

2.16 Multi-party arbitration agreements
Are there any special issues concerning multi-party arbitration agreements?

2.17 Competence in case of challenge
Is the arbitral tribunal competent to decide on the challenge of its jurisdiction?

2.18 Court proceedings
What effect does the arbitration agreement have on court proceedings in [country]?

3. Jurisdiction of state courts

3.1 Functions
Describe the functions of the state courts with respect to arbitration (types of assistance of the arbitral proceedings, interference, challenge of awards, enforcement of awards).

3.2 Competence
Which of the state courts is competent for the different functions?

3.3 Remedies
What remedies against a court decision are available with respect to the different functions?

3.4 International jurisdiction
What are the criteria to establish the international jurisdiction of the state courts for the different functions?

4. Constitution of the arbitral tribunal

4.1 Number and qualifications of arbitrators What are the rules with respect to the number and qualifications of arbitrators? To what extent may the parties provide for otherwise?

4.2 Beginning and end of tenure
What are the rules with respect to the:
a) appointment
b) revocation
c) replacement
d) resignation of arbitrators
To what extent may the parties provide for otherwise?

4.3 Challenge of arbitrators
What are the rules with respect to the challenge of arbitrators (grounds, procedure)? To what extent may the parties provide for otherwise?

4.4 Fees and expenses
Are there any statutory provisions on fees and expenses of arbitrators?

4.5 Civil liability
To what extent may arbitrators incur civil liability?

4.6 Exclusion of civil liability
Can any civil liability of the arbitrators be excluded and if so how and to what extent?

5. Arbitration procedure

5.1 General aspects

5.1.1 Which procedural law applies in the absence of an agreement by the parties?

5.1.2 Which provisions of national arbitration law governing the arbitration procedure must be respected to avoid challenge of award or refusal of enforcement in [country]?

5.1.3 Who may represent parties in an arbitration in [country]?

5.1.4 In ad hoc arbitration, who determines the place of arbitration in the absence of an agreement of the parties?

5.1.5 Under the law of [country] is the statute of limitation part of procedural law or law on the merits?

5.1.6 What is the effect if a request for arbitration is withdrawn? Is this considered a waiver of the claim?

5.1.7 What effect does the insolvency of a party domiciled in [country] have on the arbitral procedure?

5.1.8 How may the arbitral tribunal proceed in the absence of the Claimant?

5.1.9 How may the arbitral tribunal proceed in the absence of the Respondent?

5.1.10 Are there any national rules governing the service of documents by the arbitral tribunal on the parties or vice versa?

5.2 Evidence

5.2.1 What rules govern any pre-hearing contacts of parties or parties’ representatives with experts and witnesses?

5.2.2 Are there any rules on oral or written witness statements?

5.2.3 Are there any rules on the appointment of experts (party experts vs. tribunal appointed experts)?

5.2.4 Is there a difference between a party and a witness? If so what is the distinction and what are the consequences?

5.2.5 What methods of examining witnesses or experts are common in arbitration proceedings in [country]?

5.2.6 May a party be forced to submit documents to the arbitral tribunal and the other party either by the arbitral tribunal or with the assistance of state courts?

5.2.7 Is the cross-examination of witnesses and experts permitted?

5.2.8 Are there any rules governing the protection of confidential documents?

5.3 Interim measures

5.3.1 What interim measures may an arbitral tribunal grant?

5.3.2 How are interim measures granted by an arbitral tribunal enforced?

5.3.3 Does a state court enforce interim measures granted by a arbitral tribunal which has its seat outside [country]?
a) always
b) never
c) only if the interim measures are rendered in the form of an award

6. Award

6.1 Types of awards
Are different types of awards distinguished?

6.2 Decision taking
How are the decisions of the arbitral tribunal taken?

6.3 Special circumstances
What happens if one arbitrator does not or cannot participate in the proceedings or the decision taking?

6.4 Method of determining the applicable law
In the absence of a choice of the parties, how is the law applicable on the merits of the dispute determined?

6.5 Who determines the applicable law?
May the arbitral tribunal determine any rules of law (e.g. UNIDROIT Principles) or only rules which were enacted by a sovereign body?

6.6 The principle of iura novit curia
Does the principle iura novit curia apply?

6.7 Ex aequo et bono
When may an arbitral tribunal decide ex aequo et bono?

6.8 Form requirements for an award
What are the form requirements for an award and what are the consequences if they are not met?

6.9 Minimum content of an award
What is the minimum content of an award (in particular as opposed to other decisions of the arbitral tribunal)?

6.10 Rules governing interest in arbitration
Are there any rules governing interest in arbitration?

6.11 Compound interest
May compound interest be granted?

6.12 Rules governing the service of the award
Are there any rules governing the service of the award and what are the consequences if they are not met?

6.13 Rules governing the registration of the award
Are there any rules governing the registration of the award and what are the consequences if they are not met?

6.14 Rules governing award on consent or settlement before the arbitral tribunal
Are there any rules governing an award on consent or a settlement concluded before the arbitral tribunal? What is its legal force?

6.15 Rules governing the correction, interpretation, and amendment of an award
Are there any rules governing the correction, interpretation and amendment of an award?

7. Cost

7.1 Rules governing a security for costs
Are there any rules governing a security for costs in arbitral proceedings?

7.2 Rules governing an advance on costs
Are there any rules governing an advance on costs?

7.3 Consequence of not meeting obligation of advance on costs
What are the consequences if a party who is obliged to make an advance on costs (e.g. under the applicable rules of arbitration) does not do so?

7.4 Rules governing the determination of costs borne by one party
Are there any rules governing the determination of the costs to be borne by one party?

7.5 Determination and enforcement of fees
May the arbitrators determine their own fees? If so, is this determination enforceable against the parties?

7.6 Rules governing appropriation of costs
Are there any rules governing which parties bears which part of the costs?

8. Challenge of awards

8.1 Types of decisions
What types of decisions of an arbitral tribunal can be subject to a challenge?

8.2 Time limit
What is the time limit for filing a challenge?

8.3 Grounds for challenge
What are the grounds for challenge? (Please describe in detail) Is the list exhaustive?

8.4 Loss of objections
May a party lose its right to challenge if it did not raise objections during the arbitral proceedings?

8.5 Suspended
May enforcement of an award be suspended while a challenge of an award is pending? If so, under what conditions?

8.6 Remedies
If the challenge of an award is justified what decision may the state court take (e.g. set aside, correct the award, remit it to the arbitral tribunal)?

8.7 Waiver
Can the parties waive any grounds for challenge?
9. Enforcement of awards

9. Enforcement of Awards

9.1 Types of awards
Is there a difference between the enforcement of domestic and foreign awards? If so, what are the criteria for a “foreign award” and what are the differences?

9.2 More favorable national law
With respect to the enforcement of New York awards, is the national law more favorable for the enforcement than the New York Convention? If so, in what respect?

9.3 Recognition and enforcement procedure
What is the procedure to obtain the recognition and enforcement of
a) a New York Convention award?
b) a domestic award?
Indicate also a (likely) time frame for the different procedural steps.

9.4 Opposition to recognition and enforcement
How may the recognition and enforcement be opposed in case of
a) a New York Convention award?
b) a domestic award?

9.5 Suspension
May enforcement of an award be suspended while such an “opposition” is pending? If so under what conditions?

10. Bibliography
Provide a bibliography of all relevant books and articles.

11. Court decisions
Provide a reference for all relevant court decisions.

Book Overview