# 3 - composition & jurisdiction of the tribunal - mr. ian dalley

8/6/2019 # 3 - Composition & Jurisdiction of the Tribunal - Mr. Ian Dalley

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Composition & Jurisdiction of theArbitral Tribunal

Chartered Institute of Arbitrators

Entrance Course in International Arbitration

Dubai, 5 February 2011


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Date of presentat ion #2

Welcome

Ian Dalley

MEng CEng MIET FCIArb

CEDR accredited mediator

Solicitor (England & Wales)

DLA Piper Middle East LLP, Abu Dhabi


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Date of presentationInsert filename here #Date of presentation 3

Appointment

Nominated in the arbitration agreement

Agreement after the dispute has arisen

under agreement to refer future disputes

ad hoc agreement

Agreed appointing authority or other agreed procedure

By appointed arbitrators

two appointed arbitrators appoint 3rd arbitrator (Model Law Art. 11)

By Court or other authority

default of a party or other appointment mechanism or failure of the

two appointed arbitrators to agree on the 3rd arbitrator (Model Law

Art. 11(3))


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Number of arbitrators

Stated in the arbitration agreement

Agreement after dispute has arisen

If no agreement:

there will be three (Art. 10(2))

each party appoints one, and the two party appointed arbitrators

appoint a third (Art. 11(3)(a))

Preferences and considerations

Cost, time, expertise


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Qualifications of the Tribunal

Expressly stated by the Model Law:

Impartiality

Independence

Prospective arbitrator must disclose justifiable doubts as to

impartiality or independence (Art. 12(1))

Diligence (Art. 14(1))

unable to perform his duties

fails to act without undue delay

Qualifications specified by the arbitration agreement (Art. 11) e.g.: nationality, professional qualifications,


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Personal qualities and other

considerations

Judicial temperament / capacity

Management skills

Competence

Diplomacy

Discretion

Flexibility

Availability


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Jurisdiction

Definition:

the overall mantle of authority vested in the

arbitral tribunal to determine the dispute

Sources:

Arbitration agreement

Submission to arbitration

referral

appointment document

Arbitration rules

Procedural law


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Objections to substantive jurisdiction

Separability (Art. 16)

an arbitration agreement (clause) is a separate contract from the

underlying contract of which it forms part

important where there is a question whether the underlyingcontract is illegal, invalid etc

Kompetenz-Kompetenz (Art. 16 and 34)

the arbitral tribunal has jurisdiction to determine its own jurisdiction


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Challenges to jurisdiction

When are they made? (Art. 16)

must be raised not later than the submission of the statement ofdefence or as soon as the matter is raised

Tribunal can consider a later objection if it considers the delay isjustifiable

How are they dealt with? (Art. 16)

As a preliminary question, referable to Court within 30 days

In a substantive award on the merits


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Duties

Definition:

mandatory requirements which regulate the

exercise of powers

i.e.: what the tribunal mustdo

Sources:

Arbitration Agreement

Arbitration rules

Procedural law


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Principal Duties (Model Law)

To treat the parties with equality (Art. 18)

To give each party a full opportunity to present its case (Art.

18)

To conduct the arbitration in such a manner as the arbitration

tribunal considers appropriate, subject to the agreement of theparties (Art. 19)

To conduct the procedure in accordance with any agreement

by the parties (Art. 34(2)(a)(iv))

To decide neither more nor less than the disputes submitted(Art. 34(2)(a)(iii))

To proceed without undue delay (Art. 14)


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Powers

Definition:

the tools conferred on the arbitral tribunal by the

arbitration agreement and procedural law to

reinforce the exercise of the arbitral

tribunals authority

i.e.: what the arbitrators maydo

Sources:

Arbitration agreement

Arbitration rules

Procedural law


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Powers under the Model Law: I

To rule on its own jurisdiction (Art. 16)

To order interim measures of protection (Art. 17)

e.g.: preserve assets or evidence

To inspect goods, other property or documents (Art. 24(2))

To make interim or partial awards (Art. 31)

To correct awards (Art. 33(1)(a))

To give interpretation of a specific point or part of an award

(Art. 33(1)(b))

To make additional awards (Art. 33(3))


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Powers under the Model law: II

Subject to the contrary agreement of the parties:

To determine the procedural law (Art. 19)

includes determination of the admissibility, relevance, materiality

and weight of any evidence

To determine the place of the arbitration (Art. 20)

To determine the language of the arbitration (Art. 22)

To determine whether to hold oral hearings or oral submissions

(Art. 24)

To appoint one or more experts to report on specific issues (Art

26(1))


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Powers under Model Law for party

default

Subject to the contrary agreement of the parties (Art. 25):

Where the claimant fails to communicate its statement of

claim, the tribunal shall terminate the proceedings

Where the respondent fails to communicate its statement of

defence, the tribunal shall proceed with the reference without

treating the failure, as itself, as an admission of the claimants

allegations

Where a party fails to appear at a hearing or producedocumentary evidence, the tribunal may proceed with the

reference and render an award on the basis of the material

before it


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Questions

Any questions?

# 3 - composition & jurisdiction of the tribunal - mr. ian dalley

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