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&; * *
* EUROPEAN *
* ARBITRATION *
* issue 12. *
February 11th, 1997.
2. Diary of Arbitral Events.
4. News items.
4. E-mail (?)Conference.
The snow has been, rested
several days and thawed. Spring though not
yet upon us, definitely feels to be in the air.
Very best wishes to all our readers in the first edition of 1997,
for this year and all that it may bring.
: A warm welcome to new
subscribers. Not least one who kindly shared
the following thought:
&sp; "The Past does not dictate the Future ... ..."
A suitable note for the first edition of a new year. Thank you,
2. DIARY OF EVENTS:
All contributions to
this DIARY are welcome. It is intended both for
individual arbitrator in Europe and for those who plan or schedule meetings.
Generally, listed meetings will be of at least half-a-day's and more
likely a full day's duration. Evening meetings, Evening meetings, etc., are only likely to be
of local interest.
The emphasis is European: However as the Diary is intended to help
in scheduling meetings, it includes major world events.
PLEASE see important note below,
: before using any of this info.
'March' Arbitration in London Following
the 1996 Arbitration Act.
two-day conference. London. SGICC.
Mar. 6-7 ICC/ICSID/LCIA and Assoc.of Arb's(Southern
Resolution of Int'l Trade and Investment Disputes in Africa.
March 8 LCIA Pan-African Council Meeting, Johannesburg.
March 21 Arbitration of Intellectual Property
Disputes. Columbia Law
School, New York. Contact WIPO.
April 10 'Resolving Commercial Disputes.'
a session of the 32nd
ICC World Congress (Shanghai).
April 11 'Day Surgery' CIArb East Anglia
Contact: Richard Morris: 00+44-1953-6158 (fax: 6185).
April 22-24 European Telecommunications Law. Brussels.
: contact: IBC at: email@example.com
April 27-29 International Commercial Arbitration and
its Impact on
Commerce and investment. Ministry of Justice, Kuwait.
May 2-4 LCIA European Council Symposium, at Tylney Hall, England.
May 16-18 European Branch of the CIArb. Biannual
Strasbourg, France. Fax: 00+41-1-910.43.40.
May 30-31 &nbsy 30-31 Arbitration in Maritime and Transport
Presented by the IBA with Hamburg CofC, DIS, LMAA & GMAA.
May 31- Mediation in der Arbeitswelt.
Frankfurt-a-M. Mediation e.V
June 1 Tilman Metzger, 0049-4131-682002.
July 13-18 International Commercial Arbitration.
five-day residential seminar. Reading, England. SGICC.
July 20-25 International Commercial Arbitration. Part 2. SGICC.
Aug. 25-29 World Mediation Forum. Amsterdam.
:Sept.26-28 CIArb, Annual Conference. Garden House Hotel, Cambridge.
October European Branch CIArb. Conference. Athens, Greece.
Oct. 30- Asia-Pacific Council Symposium,
New Delhi. LCIA
Nov.1 (Nov.1- IBA conference in New Delhi.)
June 3-6 CIArb, Annual Conference.
'February' CIArb, Conference. Cancun, Mexico.
Nov. 18-19 CIArb, Millenium Conference. QEII Conference
Please CONFIRM all details directly with organisers, the above material
:drawn from various sources and should not be relied on by itself(!).
NO apologies are made for meetings omitted. If this Diary is to
efficacious it needs your contributions, please. (In the same format as
above to: firstname.lastname@example.org)
contact details for frequently cited organisations:
CIArb Chartered Inst. Arbitrators, London. email@example.com
BUT NOTE CIArb Branch meetings: make direct contact with
-------- local organiser, as above.
IIBLP Institute of International Business Law and Practice,
address to Louise Barrington via firstname.lastname@example.org
LCIA (London) t: 00441-719.363.530, f: 00441-719.363.533
SGICC Study Group for Int'l Commercial Contracts.
(London) t: 00441-817-857-050 f: 00441-817-857-649
WIPO (Geneva) t: 0041-22-730.9111, f: 0041-22-733.5428
CIArb: E-mail: email@example.com
backissues on: http://idun.unl.ac.uk/~elm8baylyg/ea.html
ICC: E-mail: firstname.lastname@example.org
Institute of Arbitrators of Australia:
Other entries for this column welcome!
4. NEWS ITEMS.
Modifications to the LCIA Rules (of 1985) have been issued in draft
form (in the LCIA's Newsletter) and comments invited.
New rules seem likely to be published during 1997.
ICC Commission on International Arbitration.
The Commission has a new chairman, Paul-A. Gelinas (a member of the
Paris and Montreal bars).
The Commission is considering, amongst other matters:
-arbitration rules for a proposed scheme for airline passenger liability
-revisions to the ICC Rules (of 1988).
English, Arbitration Act 1996
-ion Act 1996
The following have been published, and I hope by their titles are
1996 SI 3146 ARBITRATION ACT ... (COMMENCEMENT No.1) ORDER
ISBN 0 11 063536 1 price 1-10GBP
1996 SI 3211 THE UNFAIR ARBITRATION ... ORDER
ISBN 0 11 063540 X price 0-65GBP
: 1996 SI 3215 THE ... COURTS (ALLOCATION OF ARB. PROCEEDINGS) ORDER
ISBN 0 11 063507 8 price 0-65GBP
They are essential to use of the Act (not _all_ sections of the Act
for example are implemented by the commencement order!).
Readers may not be aware that these are not only not that expensive not that expensive,
but also available within Europe at least, post free, and payment may be
made by credit card.
Please fax: 00+44171-873-8200 with your Visa/Mastercard details and
your address. Quote a brief title and the ISBN.
(The Act for anyone who missed it is ISBN 0-10-542396-3 at 8-40GBP,
but there are some excellent books, your editor believes, containing copies
of the Act, available at very modest prices.)
Northern Ireland has, of course, its own unfair agreements
'statutory rule'. And, this, of course, is available from a different
location. Price 65 pence (0.65GBP), ISBN 0 33 792511 0, 1996 SR 598. Try
faxing: 00+441-232-235-401. But afraid whether they take credit cards,
charge postage or have a minimum order value I have not yet discovered.
4. E-MAIL (?)CONFERENCE.
Michael Reynolds asked
me to propose "E-mail conferencing" on what
:foreign observers think of the new (1996) think of the new (1996) English _Arbitration Act_.
Michael will be known
to many readers. He is a London solicitor,
member of the former editorial board of JCIArb, and now Editor of
'Construction and Engineering Law'.
Michael commented that
the "Bill does have an awful lot of
prefixes: 'Unless the parties otherwise agree ...' and 'The
parties are free to ....'. Would this not encourage foreign
parties to arbitrate [in England]? ... ... why is it that
foreign observers still regard the English Courts as having
too much say in arbitration? c.f. the French Court's respect
for ordre public. What powers do the English Courts possess
under the new Act that the French Courts do not? Has not the
new Act opened the door for equity clauses, aequae et bono
arbitration and more civil law type technique civil law type techniques of inquisitorial
So wearing a neutral
editorial hat I thought I would try and avoid
interpretation. I would throw the door open for debate and the reception of
interpretations and opinion.
Instead I would do some word counting.
: The fate of the English Act rests solely -in my opinion- on
perception. It matters not whether it is good or bad, but whether people
think it is. Thus far -if I am allowed one perception- the 'talkers-up'
outnumber the 'talkers-down', but which way (if any) a causal relationship
flows, I know not.
Back to the numbers:
The Act is long. With the recent flurry of secondary legislation it
is already over two-thirds of the way to 100 A4 sides. The Scottish Bill is
34 clauses (12 pages) plus the MAL (Uncitral Model Law, 36 articles).
The first sentence of s.45 is 52 words.
The one sentence of s.53 ise one sentence of s.53 is 45 ww.
s.71(4), of again one sentence, 74 ww.
It reproduces -could it do anything else- English as used not by the
English but as used by English lawyers ("signed, despatched or delivered").
(Such usages are common and traditional, the Warsaw Convention has in French
'NULLITE' and in English 'null and void'. It is all a question of 'law and
order' as they say!)
If one is in the mood
one compares this with art.1469 of the
French NCPC: Six words.
I referred to the Scottish
Bill above. The Dervaird Committee, in
:asking for comments on the proposed Scottish Bill, last month stated:
"The approach adopted [for Scotland] is based on the well-
established principle that, in recognition of the private
consensual characteristics of the arbitral process, the
courts should be able to intervene only to the extent
necessary to ensure the fairness of the process. The Report
does not, accordingly recommend, the development of a
comprehensive statutory code for Scotland of the kind which
is available for the rest of the United Kingdom in its most
recent statutory form - the Arbitration Act 1996"
Consultation Paper, para 1.2 (in part).
Having though started
the number crunching. Having highlighted that
perception is a fickle mistress, also note the following, sentenollowing, sentences:
NCPC art.1493, 60 words
Scottish Bill cl.9(1), 67 ww
MAL art.13(3) and art. 16(3) ... sorry I stopped counting.
So I hope I have highlighted that some -if not all- of the (?)propaganda
circulating is 'black'.
In response to Michael's other points I would also quote two recent
(and very briefly from one of them):
: 'The Declining Relevance of Public Policy' in: "ARBITRABILITY:
CURRENT TRENDS IN EUROPE" by Antoine Kirry (1996) 12 Arb.Int.(4),
"When bringing a claim before GAFTA, the claimant risks to
forced to go through five instances before a final judgement has
been rendered: GAFTA first instance, GAFTA second instance,
Queen's Bench Division, Court of Appeal, House of Lords. (footnote
26, in part, of:) 'The Cost of Alternative Dispute Resolution in
Property (I.P.): is it really so Cheap?' Jos it really so Cheap?' Johannes Trappe (1996) 62
JCIArb (4), 283-290.
So is it perception that
fuels the discussions rather than reality?
Does it matter if afterall it is perception that rules the World?
Is the new Act consolidating? (It seems not?)
Will it generate as much case law as some authors suggest? If so,
will a new act be required to consolidate it before the Century's end?
Or, more bluntly, a thought prompted in my mind after discussion
with one member of the DAC (the Committee which advised on the drafting of
the Act): Do humans just hate change?
Enough material I hope to start a discussion. Some I know
:deliberately provocative, but it would be nice to see some of the 'bar room'
discussion on a more public footing. Please send comments in!
Comment before the end of February would be especially welcome for
the next edition.
As a footnote not directly connected with the above, I cannot resist
highlighting two further aspects of the Scottish draft Bill. The wording of
these sections I thought were worthy of wider circulation:
For the first it is necessary to know that what in Scotland is termed
'oversman' is in England an 'umpire'. An oversman/umpire determines the
dispute by himself if the original arbitrators cannot agree.
"Unless the parties otherwise agree, in any arbitration
by an arbitral tribunal with two or more members
the tribunal may, if it fails to reach a decision,
nominate and oversman to decide the reference or
matters on which it has failed to reach a decision."
&n Clause 5(1).
Other statues and rules have their own approach to a divided tribunal. The
more subtle ones appreciating that even with a tribunal of three it is not
of necessity the case that there will be a majority(!). Three
:'contradictory' opinions are possible ... those rules that state the
chairman will decide alone in such circumstances approach the
oversman/umpire technique. The Zurich Rules (article 46) go one step further
and use the other members of the tribunal to set upper and lower bounds
which the chairman must decide within.
Interestingly the Scottish wording does not restrict itself to an
even-numbered tribunals. Again the realisation that a tribunal need not have
an even number of members to not be able to reach a decision!
A requirement for parties to copy documents to each other if these
submitted to the tribunal is set out in clause 18(1):
"Each party shall, when submitting any document to thtting any document to the
arbitral tribunal, send a copy of it to every other
There is though no requirement on the tribunal, if the party appears to have
'forgotten'. The wording does allow sufficient freedom for a tribunal to
cope with some of the 'odd' circumstances that could arise when one party
sends a note 'in confidence' to the tribunal (see 62 JCIArb 3, 216-219, of
1996, at pp.217-218).
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END OF THIS ISSUE.