中国人民大学法学院国际商事仲裁法课件 Arbitrability.pptVIP

Chapter 4 Arbitrability Definition Whether the dispute under the arbitration agreement could be settled by arbitration Why not arbitration Public interest consideration Different interpretation in different period of time even in the same state Sion Soleimany (father) v. Abner Soleimany (son) p.118 Engaged in the export of Persian carpets from Iran in contravention of Iranian Revenue Laws and export controls Award Court procedures Non-arbitrable Matters By statute By case Applicable law Proper law of the contract Proper law of the arbitration agreement Law of the place of arbitration Lex loci Authorities that decide the applicable law Arbitral tribunal National court the court with jurisdiction where the arbitration is taken place where the enforcement is sought SPA Italy v. MOD Iraq p.129 Ks to build ships for Iraq navy b/w the parties with arbitration clause Effect of UN embargo in 1990 on the Ks SPA’s claim for the frustration of Ks and damages before Ks were performed Ct. of first instance – no jurisdiction Ct. of Appeal: non-arbitrability of the case according to Italian law State’s capacity to arbitration and applicable law ELF Aquitaine Iran (France) v. National Iranian Oil Company (NIOC) p.135 K b/w NIOC and ERAP(French state agency) Sofiran ERAP entitled to buy certain discovered oil at a preferential price ERAP transferred rights to ELF Arbitrability of the dispute on nationalization issues The arbitrator ruled his own jurisdiction M.S.A. (Belgium) v. Co. M. (Switzerland) p.151 Exclusive distributorship agreement between the parties with Swiss Law applicable Arbitration agreement is invalid under the Belgian Law because the subject matter is non-arbitrable. Belgian District Ct. granted the claim Ct. of Appeal reversed on the ground that arbitrability is ascertained according to the law which applies to the arbitration agreement Securities Arbitration Wilko v. Swan (1953) Sherk v. Alberto-Culver Co. (1974) Rodriguez v. Shearson/American E