What legislation applies to arbitration? Are there any mandatory laws?
International Arbitration (2nd Edition)
Arbitrations in Malaysia are governed by the Arbitration Act 2005 (‘AA’), which was recently amended in 2018. With the latest amendments, the AA has been updated to mirror the UNCITRAL Model Law 2006 (with minor exceptions). These amendments also reflect the name change of the Asian International Arbitration Centre (Malaysia) –previously known as the Kuala Lumpur Regional Centre for Arbitration.
The AA regulates both international and domestic arbitrations, and divides the application of its constituent Parts depending on the nature of an arbitration. The AA comprises four Parts:
- Part I addresses preliminary arbitration issues, including arbitrability, and defines key terms of the statute;
- Part II concerns core matters in arbitrations, including the validity of arbitration agreements, arbitral jurisdiction, curial assistance in arbitration, the enforcement of arbitral awards, and recourse against arbitral awards;
- Part III governs various additional matters relating to the arbitral proceeding, including consolidation of proceedings and concurrent hearings, confidentiality, and additional powers conferred upon the Malaysian High Court in relation to arbitrations; and
- Part IV contains miscellaneous provisions, such as the liability of arbitrators and arbitral institutions and the bankruptcy of arbitral parties.
Parts I, II, and IV apply to both domestic and international arbitrations. In domestic arbitrations, Part III applies on an opt-out basis, i.e. parties may agree to exclude its application. By contrast, Part III only applies to an international arbitration where parties so agree.
It is worth noting that the AA replaces the Arbitration Act 1952. Any Malaysian court proceeding relating to an arbitration will be governed by the AA despite that court action accruing from an arbitral proceeding predating the AA (section 51, AA).
Chile has different legislations for domestic and international arbitration. Domestic arbitration regulation is contained in Articles 222 to 243 of the Code of Judicial Organization (CJO) and Articles 628 to 644 of the Code of Civil Procedure (CCP). For all the domestic arbitration matters that are not regulated in such statues, the general rules of civil procedure shall apply. Besides the said provisions of the CJO and the CCP, Chile does not have a law dedicated specifically to domestic arbitration.
On the other hand, since September 2004 Chile counts with a specific law dedicated to international arbitration called the International Commercial Arbitration Law No 19.971 (ICAL), which is almost completely based in the UNCITRAL Model Law. However, Chile has not adopted the 2006 amendments to the Model Law.
The CJO, the CCP and the ICAL are official laws of Chile, therefore they are mandatory statutes. Nevertheless, as the arbitration agreement is considered a contract under Article 1.545 of the Civil Code, the parties may adopt different rules to conduct the arbitration procedure, always in respect of public order.
Arbitration in Portugal is governed by the voluntary arbitration act – Decree-Law no. 63/2011, of 14 December 2011 – in force since 14 March 2012, also known as “LAV”.
There are other mandatory laws, however, that rule compulsory arbitration, regarding disputes on subject matters legally bound to be settled under arbitration. Such is the case of disputes related to minimum services during strikes; industrial property rights concerning generic medicines and medicinal reference products; acts of sports federations, professional leagues and other sports entities; consumer claims on essential public services; and compensation settlement in expropriation cases.
The Luxembourgish law on arbitration was included in the Luxembourgish new Code of Civil Procedure (‘NCPC’), in the specific section dedicated to arbitration (title I, Book III, Part II), and ranges from Article 1224 to 1251 NCPC.
They constitute mandatory laws.
In Switzerland, international arbitration is governed by chapter 12 of the Swiss Private International Law Act (PILA). An arbitration is deemed international, if at least one party to the arbitration agreement had its domicile or habitual residence outside Switzerland at the time of the conclusion of the arbitration agreement. Domestic arbitration is governed by the 3rd title of the Swiss Civil Procedure Code (CPC). However, parties to an international arbitration dispute may declare the provisions on domestic arbitration of the CPC to apply in lieu of the provisions of the PILA (art. 167 para 2 PILA). Equally, the parties to a domestic arbitration are granted the possibility to agree on the provisions of the PILA to apply instead of the CPC (art. 353 para 2 CPC).
While great emphasis is placed on party autonomy in adapting the arbitral proceedings to their needs, Swiss arbitration law contains several mandatory requirements: the provisions on arbitrability (art. 177 PILA and art. 353 CPC), the provisions stipulating the lack of independence or impartiality as grounds to challenge an arbitrator (art. 180 para 1 (c) PILA and art. 367 para 1 (c) CPC), the provisions requiring the arbitral tribunal to ensure equal treatment of the parties and compliance with their right to be heard (art. 182 para 3 PILA and art. 373 para 4 CPC), as well as the provisions providing for assistance by the state courts at the seat of the arbitral tribunal (art. 185 PILA and art. 356 CPC) are among the mandatory rules.
In 1998, the German Code of Civil Procedure (Zivilprozessordnung, ZPO) was amended to follow the UNCITRAL Model Law to a large extent. The main provisions of German arbitration law are contained in the 10th book of the ZPO (sections 1025 – 1066). These provisions apply to all arbitrations that are seated in Germany (regardless of the parties of the dispute, the underlying set of facts and whether it is an ad hoc or institutional arbitration). Therefore, unlike in other national laws (e.g., in France), German arbitration law does not distinguish between domestic and international arbitration. Only with regard to enforcement, German and foreign awards are treated differently.
Party autonomy is explicitly promoted by section 1042 (2) ZPO, and the parties are free to choose the rules that apply to their arbitration and bind the tribunal. Such rules (be they institutional or individually-agreed) take precedence over the ZPO, provided that they do not conflict with provisions of mandatory German law. Aside from anti-trust laws etc., such mandatory provisions are e.g. the following:
- German arbitration law applies to arbitrations seated in Germany (section 1025 ZPO);
- State courts determine the validity of an arbitration agreement (section 1032 ZPO) and may enforce temporary relief were ordered by a tribunal (sections 1041 (2) and 1041 (3) ZPO);
- A party is entitled to take recourse to the national courts if (i) the arbitration agreement disadvantages one party regarding the constitution of the tribunal (section 1034 (2) ZPO), or (ii) the tribunal has previously rejected its challenge of an arbitrator (section 1037 (3) ZPO);
- The tribunal may decide on its own competence (so-called Kompetenz-Kompetenz, section 1040 (1) ZPO);
- The parties shall be treated equally and be given a full opportunity to present their respective cases (section 1042 (1) ZPO); and
- Counsels may not be prohibited from representing a party in the arbitration (section 1042 (2) ZPO).
An English translation of these provisions (provided by the German Federal Ministry of Justice) is available at: https://www.gesetze-im-internet.de/englisch_zpo/index.html
While no doctrine of precedent exists under German law, the decisions of the German Federal Court of Justice (Bundesgerichtshof) are also an important source of arbitration law in Germany. The higher regional courts (Oberlandesgerichte), which decide in arbitration matters, regularly follow the Bundesgerichtshof’s rulings.
The Law of Ukraine "On International Commercial Arbitration" adopted in 1994 (the "Arbitration Act") is the main legislation act governing the international arbitration in Ukraine. Furthermore, the Civil Procedure Code of Ukraine (the "CPC") governs the procedural issues as to the setting aside, recognition and enforcement of arbitral awards. Certain provisions as to the arbitrability of disputes may be found in other acts, including the Commercial Procedure Code of Ukraine (the "CoPC") and the Law of Ukraine “On Private International Law” (the "PILA").
Law No. 131 of December 31, 2013 (the “Panama Arbitration Law”), published in Official Gazette 27449–C of January 8, 2014, is the legislation that governs international and domestic arbitration in Panama and it contains mandatory provisions.
Moreover, the Panamanian Code on International Private Law, which is Law No. 61 of October 7, 2015, published in Official Gazette 27449–C of January 8, 2014, also includes a chapter on the recognition and enforcement of international arbitral awards.
The legislation which applies to an arbitration is dependent on whether the arbitration is governed by the laws of the United Arab Emirates (“UAE”), or by the laws of distinct jurisdictions such as the Dubai International Financial Centre (“DIFC”) or the Abu Dhabi Global Market (“ADGM”), generally understood as “Off-Shore Jurisdictions”), all of which have their own arbitration laws.
Articles 203 to 218 of Federal Law No. 11/192 (the “UAE CPC”) are relevant to arbitration.
DIFC Law (No. 1 of 2008, as amended by DIFC Law no. 6 of 2013) (the “DIFC Arbitration Law”), governs arbitral disputes which are subject to the jurisdiction of the DIFC.
The amendment to the DIFC Law No. 1 of 2008 clarified the DIFC Court’s authority to dismiss or stay an action brought before the court (which is also subject to an arbitration agreement) unless it finds ‘that the arbitration agreement is null and void, inoperative or incapable of being performed’’ even where the seat of the arbitration is one other than the DIFC and where no seat has been designated or determined.
The ADGM announced the establishment of an arbitration hearing centre (the “ADGM Arbitration Centre”) on Al Maryah Island by early 2018.
The ADGM Arbitration Regulations 2015 (“ADGM Regulations”), based on the UNCITRAL Model Law will govern arbitrations where the:
seat of the arbitration is the ADGM; or
arbitration agreement applies the ADGM Regulations.
The Judicial Tribunal for the Dubai Courts and the DIFC Courts
Decree no. 19 of 2016 established the Judicial Tribunal for the Dubai Courts and the DIFC Courts (the “Judicial Tribunal”). The Judicial Tribunal was established to deal with issues including conflicts of jurisdiction between the DIFC and Dubai Courts.
A limited number of decisions have been issued by the Judicial Tribunal to date. These decisions generally indicate that for arbitration proceedings that are seated in mainland Dubai, the Dubai (Federal) Courts would have curial jurisdiction, whereas the curial jurisdiction of the DIFC Courts would be limited to those arbitration proceedings seated in the DIFC.
The Swedish Arbitration Act of 1999 governs both domestic and international arbitration, as well as the enforcement of arbitral awards. However, there is a new draft of the Arbitration Act underway which most likely will enter into force during 2019.
Arbitration proceedings in Spain are governed by the Spanish Arbitration Act 60/2003, of 23rd December 2003 (hereinafter referred to as “SAA”). The SAA applies without prejudice to: (i) the provisions of the treaties expressly ratified by Spain; or (ii) specific Spanish regulations containing provisions related to arbitration (such as intellectual property and consumer protection laws).
No exhaustive list of mandatory rules is contained in the SAA. Nevertheless, Section 21.1 of the SAA should be mentioned due to the fact that it imposes a mandatory obligation for arbitrators to obtain a professional liability insurance.
Other rules are also considered mandatory, such as the provisions ensuring the right to be heard and the equal treatment of the parties (partially referred to under Section 24 of the SAA).
In Serbia, the main law governing arbitration is the Law on Arbitration, which has been enacted in 2006. This law governs all arbitrations seated in Serbia, and contains a number of mandatory provisions which the parties cannot derogate from, if the seat of arbitration is in Serbia. It also contains rules on recognition of foreign arbitral awards.
In addition to the Law on Arbitration, several of other laws contain provisions which are of relevance for arbitration proceedings. These include, among other, the Law on Private International Law (which contains rules on exclusive competence of courts which are of importance for determining arbitrability of disputes). In addition, provisions which govern court proceedings are also of relevance for arbitration proceedings, since they govern the conduct of courts in proceedings which are closely related to arbitration (such as setting aside of arbitral awards, recognition of arbitral awards, interim measures, enforcement of arbitral awards, etc).
Arbitration in the Philippines is regulated by the:
- Civil Code of the Philippines;
- Republic Act No. 876 (“Arbitration Law”);
- Republic Act No. 9285 or the “Alternative Dispute Resolution Act of 2004” (“ADR Act”) and its Implementing Rules and Regulations;
- Philippine Supreme Court's A.M. No. 07-11-08-SC dated 01 September 2009 or the “Special Rules of Court on Alternative Dispute Resolution” (“Special ADR Rules”);
- Executive Order No. 1008 for the construction industry; and
- Philippine Supreme Court Decisions.
Philippine law, under the ADR Act, has adopted in its entirety the UNCITRAL Model Law on International Commercial Arbitration, as adopted by the United Nations Convention on International Trade Law on 21 June 1985 (“1985 UNCITRAL Model Law”). Accordingly, some provisions of the 1985 UNCITRAL Model Law, such as the definition of international arbitration, appointment of arbitrators, and jurisdiction of the arbitral tribunal, have been made applicable to domestic arbitration.
The Arbitration & Conciliation Act, 1996 (as amended in 2015) applies to arbitration and conciliation in India. The only mandatory law governing arbitration in India is the Arbitration & Conciliation Act, 1996. In this regard, it is also not out of place to mention that the State Government of Madhya Pradesh has enacted legislation, the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 for conducting arbitration relating to the works contracts and claims of ascertained value, where the State Government of Madhya Pradesh or any of its Authority is involved.
Arbitration in Ecuador is governed by the following legislation: a) The Constitution of Ecuador; b) International treaties and conventions to which Ecuador is a signatory party; c) The Law of Arbitration and Mediation, ( the “LAM” or the “Law”) in effect as of its publication in Official Gazette No. 145 dated September 4, 1997; and, c) Pursuant to Art. 37 of the LAM, for any matters not provided in the Law, the rules of the Civil Code, the Organic General Code of Procedures (which replaced the Civil Procedures Code), the Commerce Code, and other related laws shall apply on a supplemental basis, when arbitration is in law. However, when arbitration is in equity, the arbitration tribunal may decide to apply the above-mentioned supplemental rules.
Bilateral Investment Protection Treaties. Art. 422 of the Constitution, in effect since 2008, prohibits the entering into treaties or international conventions by which the State yields sovereign jurisdiction to international arbitration entities in contractual and commercial disputes between the State and private individuals or entities. Treaties and international instruments providing for the settlement of disputes between States and citizens in Latin-America by regional arbitration entities or by jurisdictional organizations designated by the signatory countries are exempt from this prohibition.
Based on the above mentioned constitutional provision, on July 6, 2009, Ecuador sent a written notice of denunciation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) to the World Bank. However, Article 72 of the ICSID Convention states that denunciation does not affect the rights or obligations under the Convention of that State or of any of its constituent subdivisions or agencies or of any national of that State arising out of consent to the jurisdiction of the Centre given by one of them before such notice was received by the depositary.
In addition, in 2010, the Constitutional Court of Ecuador declared that some articles of certain bilateral investments protection treaties were unconstitutional because they contravened art. 422 of the Constitution. In May 2017, said treaties were denounced by the President of the Republic. The denunciation was aimed at promoting the renegotiation of those treaties and encouraging the choice arbitration regulations different from ICSID, as UNCITRAL’s rules, as well as other arbitration entities, in particular, Latin American ones.
Besides, Article 42 of the LAM permits international arbitration provisions in contracts entered with the State, with the prior approval of the Attorney General of the State, and the authorization of the maximum authority of the relevant State entity.
The final paragraph of Article 422 of the Constitution expressly sets out that, in the case of controversies concerning (public) foreign debt, the Ecuadorian State shall promote solutions by means of arbitration, considering the origin of the debt and subject to the principles of transparency, equity and international justice. The Constitutional principle clearly allows the State to agree on international arbitration in matters and agreements relating to public debt. It is possible to stipulate international arbitration under rules and courts other than ICSID.
The Norwegian Arbitration Act 2004 provides the legal framework for arbitration in Norway. The Act applies equally to national and international arbitrations. As only a few of the rules are mandatory, the parties retain autonomy over the dispute resolution process. The Arbitration Act is to a large extent based on the UNCITRAL Model Law.
Arbitration in Egypt is governed by the Egyptian Arbitration Law (Law 27 of 1994), as amended, which is based on the UNCITRAL Model Law. The Arbitration Law provides provisions and rules for both domestic arbitrations and international commercial arbitrations whose seat of arbitration is in Egypt. No distinction is made between the two in terms of substantive rules and public policies governing the arbitration. The distinction between the two arises in procedural issues such as the location of the court circuit that will enforce the award or determine the award’s validity or lack thereof.
Arbitration in Croatia is governed by the Arbitration Act, published in the Official Gazette no. 88/2001 on 11 October 2001 and in force as of 19 October 2001.
Although the parties to the arbitration proceedings are free to choose the rules of conduct, there are some mandatory rules which the parties cannot deviate from. These rules are the rules on arbitrability and public order, as well as some mandatory rules of the Arbitration Act, such as the provisions on fair trial and equal treatment, provisions on grounds for challenge of arbitrators, provision on the appointment of the judges of regular courts in Croatia as arbitrators, provisions on written award, content, annulment and origin state of the award, and the competence provisions.
Domestic arbitration proceedings in Cyprus are governed by the Arbitration Law of 1944, Cap. 4 (hereafter “Cap.4”) and international arbitration proceedings are governed by the International Commercial Arbitration Law 101/1987 (hereafter “ICA Law”) which is a translation into Greek of the UNCITRAL Model Law. Mandatory rules are limited to issues relating to the issue of the arbitral award, the challenge of its validity and its recognition and enforcement by the national courts.
Since Decree No. 2011-48 of 13 January 2011, the main provisions applicable to arbitration in France are set out in Book IV of the Code of Civil Procedure (CCP) (Articles 1442 to 1527). A few provisions on issues of arbitrability can also be found in the French Civil Code (Articles 2059 to 2061). The decisions of the Court of Cassation and of the Paris Court of Appeal are also very important in interpreting the codes and specifying their content because, although there is no doctrine of precedent as such under French law, lower courts generally rely on decisions of higher courts.
French law makes a clear distinction between domestic and international arbitration, although some provisions of the CCP apply to both. Arbitration is deemed “international” when international trade interests are at stake (Article 1504, CCP). This criterion is economic rather than legal and therefore means that the following are irrelevant in determining whether the arbitration is international:
- The nationality of the parties.
- The law applicable to the merits or the procedure.
- The location of the seat.
What matters is that the underlying economic transaction operates a transfer of goods, services or funds across national borders (Paris Court of Appeal, 5 Apr 1990, 1992 Rev Arb 110).
Some of the provisions applicable to domestic arbitration are also applicable to international arbitration (Article 1506, CCP). However, the French legislature has developed two separate regimes, with a number of more liberal principles applicable only to international arbitration.
Only a few mandatory legislative provisions are applicable to international arbitration in France, which is very favourable to party autonomy.
Certain provisions guaranteeing the fairness of the arbitration proceedings cannot be derogated from by the parties or disregarded by the arbitral tribunal. More specifically, the tribunal must always ensure that the principles of equal treatment of the parties and due process are respected (Article 1510, CCP). In addition, arbitrators cannot base their decision on facts or legal rules that were not debated by the parties (Court of Cassation, First Civil Chamber, 29 June 2011, No. 10-23.321).
Moreover, an arbitral award must not violate French international public policy (i.e., the values that are considered to be fundamental to the French legal system). Such violations can lead to the award being set aside. In this regard, the French courts have ruled that the enforcement of an arbitral award can be denied only if giving effect to the award would result in a "flagrant, effective and concrete" violation of international public policy (Paris Court of Appeal, 18 Nov 2004, No. 2002/19606, Thalès; Court of Cassation, First Civil Chamber, 4 June 2008, No. 06-15.320, Cytec). However, certain commentators have criticised this somewhat minimalist approach, advocating a less deferential review. Recent decisions by the Paris Court of Appeal have referred only to an “effective and concrete” violation, suggesting that the French courts may become more willing to carry out a deeper review of the underlying award (Paris Court of Appeal, 4 March 2014, No. 12/17681, Gulf Leaders; 14 October 2014, No. 13/03410, Commisimpex). It remains to be seen whether this standard will be limited to cases where allegations of corruption are made and whether the Court of Cassation will approve it.
The Italian rules governing arbitration proceedings are mainly provided for by Articles 806 to 840 of the Italian Code of Civil Procedure (“CCP”). These provisions apply to arbitral proceedings having their seat in Italy (Article 816 CCP), without prejudice to international conventions in force. For the most part, they operate insofar as the disputing parties have not adopted other specific rules.
The Arbitration and Conciliation Act (Cap. A18, Laws of the Federation of Nigeria, 2004) (the “ACA”) is the federal law on arbitration in Nigeria. The ACA mandatorily applies to all domestic arbitrations where parties have not chosen another law to govern the arbitration.
Lagos State has also enacted the Lagos State Arbitration Law (2009) (the “Lagos Law”). Unless the parties have expressly otherwise agreed, the Lagos Law applies to all arbitrations where Lagos State is the seat of arbitration. The Lagos Law is an enactment of the UNCITRAL Model Law (the “Model Law”), and incorporates the 2006 amendments made to the Model Law.
There is some other legislation that applies to arbitration in Nigeria. Such legislation includes the Judgments Ordinance (Cap. 175) Laws of Federation of Nigeria, 1958 and the Foreign Judgments (Reciprocal Enforcement) Act (Cap. F. 35) Laws of Federation Nigeria, 2004 in which judgment has been defined to include awards. Also, rules of procedure for the recognition and enforcement of awards and other arbitration-related proceedings exist in the various rules of courts.
The legislation on arbitration has some mandatory provisions denoted by the use of the word “shall”. See C. N. Onuselogu Ent. Ltd. v. Afribank (Nig.) Ltd. (2005) 1 NWLR (Pt. 940) 577. The failure to comply with such mandatory provisions may result in the successful challenge of an arbitral proceeding or award. For instance, an arbitration agreement must be in writing. Such writing must be contained in (a) a document signed by the parties; or (b) any means of communication which provide a record of the arbitration agreement (such as exchange of letters, telex, telegrams or; or (c) in an exchange of points of claim and of defence in which the existence of an arbitration agreement is alleged by one party and not denied by another. See section 1 of the ACA.
Also, the arbitrators/arbitral tribunal must ensure that there is fair and equal treatment of the parties. See sections 14 of the ACA and 34 of the Lagos Law. An arbitral award must be in writing and signed by the arbitrators, with reasons stated for the absence of any signature by the non-signing arbitrator. It must also state the place and date of the award (sections 26, ACA and 47, Lagos Law). The award or any decision made by a tribunal consisting of three members must be made by the majority (see Article 31 of the First Schedule to the ACA (“the Arbitration Rules”).
Domestic arbitrations must be conducted in accordance with the Arbitration Rules (section 15, ACA). The Arbitration Rules are a re-enactment of the UNCITRAL Model Arbitration Rules. The arbitral tribunal must give adequate advance notice of the date, time and place of the hearings (Article 25 of the Arbitration Rules).
The Austrian Code of Civil Procedure (Zivilprozessordnung) dedicates an entire chapter to arbitration (chapter four of the Code, sections 577 to 618).
While most provisions are not mandatory, some are. These concern mainly fundamental procedural safeguards. In the order as they are set forth in the Code of Civil Procedure, the provisions generally seen as mandatory are:
- Availability of interim protection (section 585);
- uneven number of arbitrators (most commonly one or three) (section 586);
- impartiality and independence of arbitrators (section 588);
- recourse to the Austrian Supreme Court in the case of an unsuccessful challenge of an arbitrator (section 589);
- possible early termination of an arbitrator’s mandate (section 590);
- fair and equal treatment, the right to be heard and represented (section 594);
- arbitrators’ freedom to consider evidence and obligation to duly inform of pieces of evidence, hearings and other parties’ briefs (section 599);
- awards in violation of public order (ordre public) or on non-arbitrable matters are not binding (section 613);
- competency and procedure of the Austrian Sumpreme Court in arbitration (sections 615 et seq);
- special rules on arbitration clauses with consumers (section 617);
- special rules on arbitration in labour law matters (section 618).
Domestic arbitral proceedings are governed by the provisions of the Seventh Book of the Greek Code of Civil Procedure (GrCCP), articles 867 – 903.
The 1985 UNCITRAL Model Law has been incorporated into the Greek legal system by virtue of Law 2735/1995 which controls international commercial arbitral proceedings having their seat in Greece with the exception of articles 8, 9 and 36 which are generally applicable regardless of the place of arbitration. It is noted that the 2006 revision of UNCITRAL Model Law has not yet been incorporated into the Greek legal system.
Certain provisions of the Seventh Book of GrCCP are made applicable by reference under provisions of the Law 2735/1995 also to international commercial arbitral proceedings. This is the case as regards article 867 GrCCP which controls the arbitrability question (applicable by indirect reference under article 1 para. 4 L. 2735/1999). This is the case also as regards article 896 GrCCP, which controls the scope of the res judicata effect of the arbitral award (applicable by direct reference under article 35 para. 2 L. 2735/1999). In general, the application of the provisions of the Seventh Book of GrCCP to international commercial arbitral proceedings on an ancillary basis is not precluded as a matter of principle.
At the same time, the scope of application of other provisions of the Seventh Book of GrCCP controlling in general international arbitral proceedings, has been drastically limited, if not extinguished, by the application of the Model Law together with the New York Convention. This is true for example with regard to article 903 of the GrCCP which sets the conditions for the recognition and enforcement of foreign arbitral awards in general.
Because the United States is a federal system, arbitration legislation exists at both the federal and state level. The primary federal statute governing arbitration is the Federal Arbitration Act (the “FAA”). The U.S. Supreme Court has held that section 2 of the FAA (9 U.S.C. § 2), which provides for the validity, irrevocability, and enforceability of arbitration agreements, is substantive federal law that applies in state courts and supplants inconsistent state laws with respect to all transactions affecting interstate commerce. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995). In addition to the FAA, other federal statutes contain arbitration provisions, including for example the Patent Act and the Foreign Sovereign Immunities Act.
At the state level, each state has enacted arbitration legislation (e.g., the California Arbitration Act in California), which applies to arbitrations seated in that state (to the extent not preempted by section 2 of the FAA). Practitioners should be mindful of mandatory rules imposed by these state statutes. The majority of state arbitration acts are based on a version of the Uniform Arbitration Act and thus are broadly similar to each other.
Because the United States is a common-law system, arbitration law derives not only from these various statutes but also from court decisions interpreting them.
The Arbitration Law, 5728-1968 ('the Arbitration Law') is the law that regulates arbitration issues in Israel. The Arbitration Law includes mandatory conditions as well as optional ones. Under its addendum, the law provides for a set of rules applicable to the arbitral proceeding insofar that the parties have not agreed otherwise (the rules concern the manner of conducting the proceeding, the number of arbitrators, the required majority for rendering decisions, legal procedures, and a further set of rules on various issues concerning the manner of conducting the proceeding).
The last amendment to the Arbitration Law was made in 2008 and it deals with the addition of two routes of agreement under which an appeal on the arbitral award is possible (an appeal before an arbitrator and a request for appeal before the court). An additional material innovation provided for under this amendment concerns the duty of providing reasons for the arbitral award. It was determined that if the parties agreed that the arbitral award would be appealable before an arbitrator, the arbitrator is required to provide reasons for the arbitral award, and that one of the conditions to a request for appeal before a court is that the arbitral award should be reasoned.
By virtue of the Arbitration Law, the Regulations of Legal Procedures of Arbitration Issues, 5728-1968 ('the Arbitration Regulations') have been enacted and they deal with the legal procedures of arbitration which relate to proceedings at court (e.g., legal procedures in a motion to stay of proceedings due to an arbitration clause).
The Arbitration Act 1996 ("the 1996 Act") will apply if the arbitration is seated in England and Wales or Northern Ireland and the Arbitration (Scotland) Act 2010 ("the 2010 Act") will apply if the arbitration is seated in Scotland. The mandatory provisions are set out in Schedule 1 of the 1996 Act and s.8 of the 2010 Act. Mandatory provisions include those in relation to duties of the arbitral tribunal and parties, challenges to arbitrators and arbitral awards.
Given London's position as a centre of international arbitration, the responses below are to the 1996 Act and not the 2010 Act.
The main body of law governing arbitration is included in the new Code of Civil Procedure which came into force on February 15 2013. Book IV of the Code of Civil Procedure (“On Arbitration”) regulates national arbitration and also represents the general set of provisions applicable to international arbitration whenever the parties have not agreed on certain aspects in the arbitration agreement and have not vested the arbitral tribunal with settling those aspects either, while Title IV of Book VII sets out specific legal provisions regarding international arbitration and the effects of foreign arbitral awards.
The arbitration law includes mostly non-mandatory provisions, as a reflection of the principle provided for in the Code of Civil Procedure that parties are free to organise arbitral proceedings as they deem fit. However, parties’ freedom is subject to observing public policy, a couple of mandatory provisions and ethics. For instance, in ad hoc arbitration organised by the parties themselves, they are free to agree rules regarding the constitution of the arbitral tribunal, removal of arbitrators, the timing and seat of the arbitration, the procedural rules to be applied by the arbitral tribunal (including potential preliminary proceedings), the allocation of costs and any other rules that may govern the arbitration, subject to public policy, mandatory provisions of law and ethics. There are a few mandatory rules, for instance certain validity requirements of the arbitration agreement, regarding the written form of the arbitration agreement or the authenticated form of the arbitration agreement in arbitrations regarding the transfer of the ownership right over an immovable asset. The law also imposes certain fundamental principles related to a fair trial from which no derogation is permitted (e.g., the parties shall be ensured equal treatment, the right to defence and a reasonable opportunity to present their case).
Domestic arbitration in Turkey is governed by the Code of Civil Procedure. The current version of the Code of Civil Procedure, No. 6100, has entered into force in 2011. Code of Civil Procedure is applied to the disputes which have no foreign element; and the place of arbitration is agreed as Turkey.
Besides, the International Arbitration Law no. 4686, which entered into force in 2001 is applied to the international arbitrations in Turkey which includes foreign elements and the place of arbitration is Turkey. In fact, relevant parts of the Code of Civil Procedure of 2011 was prepared with the intention to harmonise the provisions of the previous Civil Procedure Law with the terms of the International Arbitration Law dated 2001.
Furthermore, the Law no. 4686 is applied to the disputes which the parties or arbitrator/arbitral tribunal agree on the application of this law to their dispute.
Finally, the International Private Law and Procedural Law no. 5718, having entered into force in 2007, regulates the principals and procedures with which foreign court and arbitration decisions are enforced in Turkey.