What legislation applies to arbitration in your country? Are there any mandatory laws?
International Arbitration (4th edition)
Argentina is a federal republic, with both federal and provincial levels of organization. However, while substantial codes and provisions (civil and commercial law, criminal law, labor law, etc.) are applicable to the whole nation, procedural matters are regulated by each jurisdiction (i.e., the provinces).
For domestic arbitration, the “arbitration agreement” is regulated by Arts. 1649-1665 of the National Civil and Commercial Code (“NCCC”) as enacted by Law No. 26,994, in force as of 1 August 2015; except for disputes to which the State, local States or State entities are parties, which are expressly excluded from the NCCC’s regulation.
At the federal level, domestic arbitration proceedings are governed by Arts. 736-773 of the National Code of Civil and Commercial Procedure (“CP”) enacted through Law No. 17,454 of 19 September 1967 and amended, inter alia, by Law No. 22,434 of 16 March 1981 and Law No. 25,488 of 22 November 2001. At the local level, each province has its own procedural code, which includes arbitration-related provisions.
The NCCC and the CP provisions on domestic arbitration do not constitute a mandatory regime. Except for mandatory regulations on prorogatio fori, the non-waivable remedies against final award and general principles of law (such as equality of arms, due process, etc.), the parties’ agreement – whether by providing for an institutional arbitration under international or domestic institutions or an ad hoc arbitration governed by tailor-made rules, the UNCITRAL Arbitration Rules or others – prevails over the NCCC and CP provisions. For example, where the parties have agreed to settle their dispute through arbitration under the rules of the International Chamber of Commerce (“ICC”), the application of the NCCC and CP is displaced.
Similarly, the NCCC provisions on arbitration are mostly facultative in nature, regulating aspects of arbitration on which the parties may agree otherwise (e.g., in relation to the number and the appointment of arbitrators; see Arts. 1658-1660 NCCC, for example). The parties’ freedom to determine the contract’s content is specifically recognized in Arts. 958 and 2651(c) of the NCCC.
If the seat of the arbitration is in Austria, the arbitration proceedings will be governed by Austrian arbitration law, which is contained in the Fourth Chapter of the Austrian Code of Civil Procedure (sections 577–618).
Austrian arbitration law grants the parties extensive autonomy with only few mandatory legal provisions that cannot be waived by agreement of the parties. The parties are largely free to agree on the manner in which their arbitration proceedings shall be conducted. In the absence of such an agreement (which may also be a reference to a set of rules provided by an arbitral institution), Austrian arbitration law applies as default rule. If the agreement of the parties and the Austrian arbitration law are silent, the arbitrators are free to conduct the proceedings at their discretion limited by mandatory law and the fundamental principles of fairness and the right to be heard.
Arbitration in Bulgaria is governed by domestic and international instruments. With respect to domestic legislation, the applicable law is the International Commercial Arbitration Act (ICAA), enacted in 1988, as amended from time to time (lastly with SG. 8/24 Jan 2017), which is construed in accordance with UNCITRAL Model law and applies both to domestic and international arbitration proceedings seated in Bulgaria. The legal framework is supplemented by the provision of Bulgarian Civil Procedure Code (,b>CPC), which deals in Art.19 with non-arbitrable disputes. Arts.404–409 CPC determines the grounds and procedures for issuance of a writ of execution, including on the basis of an arbitral award and settlements where the seat of arbitration is in Bulgaria. ICCA refers to the CPC provisions in case of challenges to arbitrators and requests for collecting evidences. ICCA also refers to the provisions of the Bulgarian Private International Law Code 2005 (PILC) regarding recognition and enforcement of foreign arbitral awards.
The rules regarding the non-arbitrable disputes are mandatory, as well as the form of the validity of the arbitration agreement and the legal capacity of the parties to enter into an arbitration agreement, along with the principle of equal treatment of the parties. In addition, the conflicts of law rules part of the Bulgarian Private International Law contain mandatory provisions.
The U.S. Constitution establishes a federal system of government which gives specific powers to the federal (national) government, and all remaining power to the states. The statutory law governing arbitration therefore exists at both the federal and state levels. Additionally, under the U.S.’s common law system, the statutory law governing arbitration is developed through binding case law. Thus, practitioners should note both the state and federal legislation and case law in the jurisdiction in which an arbitration is seated.
At the federal level, the Federal Arbitration Act (“FAA”), codified at Title 9 of the U.S. Code, governs arbitration in both state and federal courts. Chapter 1 of the FAA concerns arbitration generally, while Chapters 2 and 3 incorporate the New York and Panama Conventions, respectively. Chapter 1 of the FAA primarily governs domestic arbitration, but it also applies to international arbitration insofar as it does not conflict with Chapters 2 and 3. For example, an international arbitration involving a country that is not a party to either the New York or Panama Conventions (or the ICSID Convention) would likely be governed by Chapter 1 of the FAA.
In addition to the FAA, each state has its own laws that govern arbitrations that are seated in that state. See, e.g., N.Y. C.P.L.R. 7501–7514 (2012); TEX. CIV. PRAC. & REM. CODE ANN. §§ 151.001–151.013 (West 2017); FLA. STAT. §§ 682.01–682.25 (2018). These state laws operate in conjunction with the FAA, however, if a state law conflicts with the FAA, the FAA controls. See, e.g., Kindred Nursing Centers Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1426 (2017).
Every province and territory of Canada, except Quebec, has two arbitration statutes. One statute applies to domestic arbitrations, while the other applies to international commercial arbitrations. For example, in Alberta, the Arbitration Act, RSA 2000, c A-43 (Alberta Arbitration Act) applies to domestic arbitrations, while the International Commercial Arbitration Act, RSA 2000, c 1-5 (Alberta International Commercial Arbitration Act) applies to international commercial arbitrations.
In Quebec, the Civil Code of Quebec (CCQ) and the Code of Civil Procedure (CCP) apply to both domestic and international commercial arbitrations.
At the federal level, the Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp) (Federal Commercial Arbitration Act) applies to both domestic and international commercial arbitrations when: (a) at least one of the parties is a federal department or Crown corporation; or (b) the arbitration involves an admiralty or maritime matter.
There are mandatory laws regarding arbitration. However, the mandatory laws depend on which statute applies. Common mandatory laws in domestic arbitration statutes provide that:
(a) the parties shall be treated equally and given an opportunity to present a case;
(b) the courts must stay court proceedings about matters that are subject to an arbitration agreement;
(c) if an arbitration agreement does not specify the number of arbitrators who are to form the arbitral tribunal, the arbitral tribunal shall be composed of one arbitrator;
(d) an arbitrator shall be independent of the parties and act impartially; and
(e) subject to the arbitration agreement, a party may only appeal on questions of law with leave of the court. See, for example, ss. 7(1), 9, 11(1), 19, 44(2), and 44(2.1) of the Alberta Arbitration Act and ss. 7(1), 9, 11(1), 19, and 45(1) of the Ontario Arbitration Act, 1991, SO 1991, c 17 (Ontario Arbitration Act).
Common mandatory laws in international commercial arbitration statutes, including the Federal Commercial Arbitration Act, provide that:
(a) arbitration agreements shall be in writing;
(b) if an arbitration agreement does not specify the number of arbitrators who are to form the arbitral tribunal, the arbitral tribunal shall be composed of three arbitrators; and
(c) the parties shall be treated equally and given a full opportunity to present a case. See, for example, ss. 7(2), 10, and 18 of Schedule 1 of the Federal Commercial Arbitration Act and ss. 7(2), 10, and 18 of Schedule 2 of the Alberta International Commercial Arbitration Act.
(a) The Arbitration Procedure is governed by; (a) the Arbitration Law (Cap. 4), (b) the 1979 Convention on the Recognition and Enforcement of Foreign Arbitration (Ratification) Law (Law 84/1979) which validates the New York Convention, (c) the International Commercial Arbitration Law of 1987 (N. 101/1987), (d) Law 121(I)/2000 which provides for the Civil procedure Rules when applying for recognition and enforcement of an arbitral award.
(b) All laws above are mandatory and are prescribed to issues relating to the Courts’ powers, immunity of arbitrators and the issue of the arbitral award, the challenge of its validity and its recognition and enforcement by the national Courts.
The Arbitration Act 1996 (the 1996 Act) will apply if the arbitration is seated in England and Wales or Northern Ireland. 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. Such provisions include those in relation to duties of the arbitral tribunal and parties, and challenges to arbitrators and arbitral awards. Additionally, the Arbitration (International Investment Disputes) Act 1966 sets out a special regime for ICSID awards.
The responses below focus on the 1996 Act.
The legislation which applies to an arbitration is dependent on whether the arbitral process (i.e. the lex arbitri ) is subject to the Federal Civil Law system of the United Arab Emirates (“UAE”), or by the laws of two distinct jurisdictions i.e. the Dubai International Financial Centre (“DIFC”) or the Abu Dhabi Global Market (“ADGM”), generally understood as “Common Law Jurisdictions”), both of which have their own arbitration laws/regulations.
UAE- Federal Jurisdiction
Federal Law No. 6 / 2018 on arbitration (the “UAE Arbitration Law”) replaced Articles 203 to 218 of Federal Law No. 11/1992 (the “UAE CPC”).
Articles 203 to 218 of the UAE CPC were those provisions which were relevant to arbitration.
This UAE Arbitration Law applies to all arbitral proceedings carried out in the UAE, unless the parties agree to apply a different arbitration law.
Should the parties agree to apply a different arbitration law, that arbitration law must comply with the requirements of public order and morality in the UAE.
UAE – Common Law Jurisdictions
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 has established an arbitration hearing centre (the “ADGM Arbitration Centre”) on Al Maryah Island. The ADGM Arbitration Centre became fully operational on 17 October 2018 as a venue for arbitration.
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 main law regulating arbitration in the Czech Republic is Act No. 216/1994 Coll., on Arbitral Proceedings and the Enforcement of Arbitral Awards (the Arbitration Act), whereas complementary to this law is Act No. 99/1963 Coll., the Civil Procedure Code. Furthermore, the Czech Republic is a signatory to the New York Convention and a party to several bilateral treaties.
As these are procedural law provisions, the vast majority of them are mandatory. However, some of the provisions enable the parties or the arbitrator to decide several crucial facets of proceedings, such as the composition of the arbitrators, the substantive law and pre-arbitration proceedings. By contrast, mandatory regulated aspects typically include arbitrability, arbitrator requirements and reasons for repealing arbitration awards.
The German arbitration law is enacted as the 10th Book of the German Code of Civil Procedure (Zivilprozessordnung, ZPO), sections 1025 through 1066. The enactment dates back to 1998 and is mostly based on the UNCITRAL Model Law. Germany is a "Model Law Country".
The German arbitration law is based on the principle of territoriality. The regime applies to both domestic and international arbitrations. With few exceptions only, its scope of application is limited to arbitration proceedings seated in Germany, irrespective of the nationality of the parties. The law contains, e.g., also rules on the enforcement of foreign arbitral awards, and they differ slightly from the provisions governing the enforcement of domestic awards.
The basic principle underlying the German arbitration law is party autonomy (section 1042 (2) ZPO). The parties are to a large extent free to determine the arbitral procedure themselves, and they may do so by way of reference to a set of arbitration rules (section 1042 (3) ZPO).
However, the parties are limited by the following mandatory rules:
- Application of the German arbitration law to arbitral proceedings where the seat of arbitration is Germany (section 1025 ZPO);
- The rules on objective arbitrability (section 1030 ZPO);
- Recourse to the state courts for the decision on the validity of the arbitration agreement (section 1032 ZPO);
- The state courts' role in enforcing temporary relief (sections 1033; 1041 (2) and 1041 (3) ZPO) is usually considered mandatory;
- Equal participation and weight of all parties regarding the constitution of the arbitral tribunal (section 1034 ZPO);
- Recourse to the state courts to verify the decision on the challenge of an arbitrator, provided that the arbitral tribunal has rejected the challenge (section 1037 (3) ZPO);
- The tribunal may decide on its own jurisdiction (so-called Kompetenz-Kompetenz, section 1040 (1) ZPO), but the parties cannot rule out the review of that decision by the state courts;
- Respect of the principle of equal treatment of all parties and the parties' right to be heard (section 1042 (1) ZPO);
- Representation by attorneys cannot be excluded per se (1042 (2) ZPO);
- A party's general right to initiate set-aside proceedings (section 1059 ZPO) cannot be waived in advance.
There are more mandatory rules in other sources of German substantive and procedural law, and the arbitration proceedings must at all times respect the German public order in order to ensure the enforceability of the award.
Mandatory rules enacted by – or to establish – the European Union may also limit the general freedom to arbitrate in Germany. For instance, in the famous Achmea case, the German Federal Supreme Court (Bundesgerichtshof) expressly confirmed in its decision of 31 October 2018 (I ZB 2/15) that the related judgment of the European Court of Justice (ECJ) in Case C-284/16 is consistent with German arbitral law. The ECJ had decided that Art. 344 TFEU and Art. 267 TFEU establish a system of judicial review in the European Union in which elementary aspects of EU law must be open for a review that guarantees the coherence and consistence of its interpretation, and that the Member States' practice to conclude bilateral investment treaties (BITs) which contain the respective States' offer to certain investors to resort to arbitration infringes this system. The ECJ had ruled that arbitration clauses in such "intra-EU BITs" are "inapplicable". However, for the avoidance of doubt, arbitration clauses providing for commercial arbitration between "intra-EU arbitrants" have not been declared void or inapplicable in Germany – even though EU law may play a significant role in the dispute – as the possibility of judicial review by the Member States' courts and their right to present certain issues to the ECJ are generally considered sufficient to enforce mandatory EU law.
The Arbitration and Conciliation Act, 1996 (as amended in 2019) governs arbitration in India. The Arbitration and Conciliation Act, 1996 contains provisions dealing with both ‘domestic arbitration’and ‘international arbitration’.
Various States have also enacted legislations for the arbitration of specific disputes. For example, the State Government of Madhya Pradesh has enacted the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 for conducting arbitration relating to the Work Contract(s) and claims of over a specific value, where the State Government of Madhya Pradesh or any of its Authorities/Departments are involved. Similar Acts also exist in Chhattisgarh, Gujarat and Bihar pertaining to Work Contract(s) dealt by the State Governments and their departments. These acts have their own dispute resolution setup and exclude the jurisdiction of the Arbitration and Conciliation Act, 1996.
In Arbitration, the parties has given ample power including agrreing for referring to arbitration. When the parties agree to resolve their disputes through arbitration, then the parties are mandatorily bound by the enactment.
Arbitration is governed under Indonesian Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (the “Arbitration Law”) and Decree of the President of the Republic of Indonesia No. 34 of 1981 on Ratification of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
The provisions on arbitral proceedings are contained in the Eighth Section of the Liechtenstein CCP (§§ 594-635 Liechtenstein CCP) which is itself divided into 10 Titles. The basic mandatory principles of Liechtenstein arbitral proceedings are the equal treatment of the parties, the parties’ right to be heard and the parties’ right to be represented in arbitral proceedings by a person of their own choosing.
Apart from that, the following rules qualify (among several others) as mandatory: (a) the limitations imposed on the arbitrability of disputes, (b) the rules on the form of the arbitration agreement, (c) the rules on application to the ordinary court for the granting of preliminary or interim relief, (d) the rules on the impartiality and independence of arbitrators, (e) the principles of the gathering of evidence and the consideration of evidence, (f) the right of the defendant to reply to the statement of claim, (g) the rules on judicial assistance, (h) the rules on the arbitral award and its effects, (i) the rules governing the closing of the arbitral proceedings and the right to challenge the arbitral award, and (j) the rules on consumer and employee protection.
The Malaysian Arbitration Act 2005 as amended by the Arbitration (Amendment) (No.2) Act 2018 (Arbitration Act) governs domestic and international arbitration in Malaysia.
The Mexican Commerce Code, which is mandatory.
The Arbitration and Conciliation Act (Cap. A18, Laws of the Federation of Nigeria, 2004) (the “ACA”) remains 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 also enacted the Arbitration Law of Lagos State (2009) (the “Lagos Law”). Unless the parties have expressly otherwise agreed to another law, the Lagos Law applies to all arbitrations where Lagos State is the seat of arbitration. The Lagos Law is a replica 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”. (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 (c) in an exchange of points of claim and points 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 (Article 31 of the Arbitration Rules set out in the First Schedule to the ACA (“the ACA Arbitration Rules”). The absence of the signature of one out of three arbitrators on an arbitral award does not render such an arbitral award invalid. See Gaslink Nigeria Ltd v. Reliance Textile Industries Ltd. (2017) 12 CLRN 1.
Domestic arbitrations conducted under the ACA must be conducted in accordance with the ACA Arbitration Rules (section 15, ACA). The ACA 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 ACA Arbitration Rules). Where the ACA Arbitration Rules contain no provision in respect of any matter, the arbitral tribunal may conduct the arbitral proceedings in such a manner as it considers appropriate so as to ensure a fair hearing.
The Arbitration Act 2004 governs arbitrations when the place of arbitration is Norway. The place of arbitration is determined by interpreting the arbitration agreement.
The Arbitration Act is mandatory and can be departed from only by agreement and provided that this is explicitly stated in the relevant provision of the act.
Initially, Republic Act No. 876 (Arbitration Law) governed domestic arbitration in the Philippines. Republic Act No. 9285, or the Alternative Dispute Resolution Act (ADR Act), was thereafter enacted, covering international commercial arbitration and amending certain provisions of the Arbitration Law. On the other hand, Executive Order No. 1008 (EO 1008) was enacted to cover the arbitration of construction disputes. The Supreme Court has likewise issued A.M. No. 07-11-08-SC or the Special Rules of Court on Alternative Dispute Resolution (Special ADR Rules) covering judicial reliefs in aid of, or in relation to, arbitration.
The New Arbitration Law, issued on 24/5/1433H (corresponding to 16 April 2012G) (the “Arbitration Law”) governs domestic and international arbitration in KSA. The Law is broadly based on the UNCITRAL Model Law. The New Arbitration Law and its Implementing Regulations are mandatory laws.
In the Republic of Singapore [Singapore], the International Arbitration Act (Cap. 143A) [IAA] applies to international commercial arbitrations seated in Singapore, commonly referred to as international arbitrations. The IAA incorporates the United Nations Commission on International Trade Law [UNCITRAL] Model Law on International Commercial Arbitration (adopted by UNCITRAL in 1985) [the UNCITRAL Model Law]. By contrast, the Arbitration Act (Cap. 10) applies to any arbitration in Singapore that is not international as defined in Part II of the IAA, commonly referred to as domestic arbitrations. However, parties may nonetheless agree in writing to the application of Part II of the IAA or of the UNCITRAL Model Law.
While parties are free to agree on the law applicable to the arbitration, certain mandatory laws do impact international arbitration in Singapore, such as portions of the IAA related to appeals of jurisdiction and the enforcement or setting aside of arbitral awards.
Korea’s Arbitration Act (the “Act”) applies to all domestic and international arbitral proceedings seated in Korea. For arbitral proceedings seated outside of Korea, the following provisions of the Act apply: Article 9 (Arbitration Agreement and Substantive Claim before Court); Article 10 (Arbitration Agreement and Interim Measures by Court); Article 37 (Recognition or Enforcement of Arbitral Awards); and Article 39 (Foreign Arbitral Awards) (Article 2(1) of the Act).
The Act was first enacted in 1966, and was remodeled after the UNCITRAL Model Law (the “Model Law”) in 1999. The Act was last amended on 29 May 2016 to incorporate the key features of the Model Law as amended in 2006.
The Act does not state which provisions are mandatory, but stipulates that parties to an arbitration agreement may agree on arbitral proceedings to the extent their agreement is not “contrary to the mandatory provisions of this Act” (Article 20 of the Act). Provisions that are considered to be mandatory include arbitrator’s obligation to disclose circumstances likely to give rise to justifiable doubts as to impartiality or independence (Article 13(1) of the Act) and equal treatment of parties (Article 19 of the Act).
Book IV of the French Code of Civil Procedure (“FCCP”) (Articles 1442-1527) governs arbitration. In addition, Book III, Title XVI of the French Civil Code (Articles 2059-2061) governs the arbitration agreement. The decisions of the Court of Cassation and of the Paris Court of Appeal are important in interpreting the codes and specifying their content because, although there is no doctrine of binding precedent under French law, lower courts generally rely on decisions of higher courts.
French law distinguishes between domestic arbitration (FCCP Articles 1442-1503) and international arbitration (FCCP Articles 1504-1527). However, pursuant to FCCP Article 1506, several provisions of domestic arbitration apply also to international arbitration. The criterion to distinguish between domestic and international arbitration is whether interests of international trade are affected (FCCP Article 1504). This criterion is economic, rather than legal. As established by the Paris Court of Appeal in its judgment dated 5 April 1990, what matters is that the underlying economic transaction operates a transfer of goods, services, or funds, across national borders (see Société Courrèges Design v. Société André Courrèges et autres, Paris Court of Appeal, 5 April 1990 in 1992 REV. ARB. 110).
Certain provisions of the FCCP are mandatory in arbitration and applicable to the parties and the arbitral tribunal. Several of these provisions guarantee the fairness of the arbitration proceeding. This includes the principles of due process and of equal treatment of the parties’ implemented by article 1510 of the FCCP. Additionally, French courts can deny the enforcement of an arbitral award if the award would result in a “flagrant, effective and concrete” violation of international public policy (SA Thalès Air Défense v GIE Euromissile, Paris Court of Appeal, 18 November 2004, No 2002/19606).
The Egyptian Arbitration Law No. 27 of 1994 (‘EAL’) was adopted in 1994 and is based on the UNCITRAL Model Law (1985), with some variations. Most of the procedural rules governing the conduct of the proceedings are not mandatory and the parties may derogate from by agreement. However, few rules appear to be mandatory, such as non-arbitrability of disputes that cannot be subject to a compromise and rights in rem, witnesses and experts may not be heard under oath, awards may not be rendered by truncated tribunals, tribunals may not be constituted from an even number of arbitrators and parties may not agree to exclude the right to apply for setting aside of an award prior to the rendering of the said award.
In Ecuador, arbitration is regulated by the Arbitration and Mediation Law (“LAM”), in force since 1997, which was partially modified in 2005, and afterwards modified by the General Organic Process Code (“COGEP”), and the Productive Development Law in 2015 and 2017, respectively, regarding the execution of foreign awards. The LAM regulates local and international arbitration. Moreover, we have to mention that arbitration has constitutional recognition since its inclusion in the Political Constitution of Ecuador from 1998, and later, in the Constitution of the Republic of Ecuador of 2008 (“Constitution”).
The only law that regulates arbitration, and therefore is mandatory, is the LAM. However, the COGEP regulates the award execution process, which it can also be applied to the arbitration process in a supplementary manner to the LAM.
Chile has a dual system of arbitration legal sources; this is to say that domestic and international arbitration are subject to different legal regimes.
International Commercial Arbitration is governed by the International Commercial Arbitration Act (“ICA Act”), which adopts the 1985 UNCITRAL Model Law On International Commercial Arbitration.
Recognition and enforcement of foreign arbitral awards is governed by the New York Convention (“The NY Convention”), and by the ICA Act –which in turn adopts the NY Convention regime.
Investment Arbitration is governed by the ICSID Convention and the applicable BITs. In addition, Decree Law No. 2349 regulates international contracts for the governmental sector, establishing a specific legal framework for the state and its entities for the submission of their disputes to international arbitration.
Domestic arbitration is governed by the Judiciary Code and the Civil Procedure Code, which also regulates the enforcement of domestic arbitral awards.
Any arbitration proceeding is legally foreign when fulfilling any of the requisites provided by Article 1 of the ICA Act.
For international arbitration, the ICA Act does not contain any provision on procedure from which parties may not deviate.
For domestic arbitration, some provisions on procedure are considered public policy provision like those related to the way the first notification must be made, and those providing the parties with some recourses for setting aside the award.
In Switzerland, international arbitration is governed by chapter 12 of the Swiss Private International Law Act (PILA) which entered into force on 1 January 1989. 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. Since 1 January 2011, 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, namely 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.
The Arbitration Law of ROC (“AL”) as last amended on December 2, 2015 is the key statute governing arbitration. Generally speaking, the AL allows arbitration to proceed pursuant to the parties’ agreement as long as certain mandatory rules are complied with as mentioned below:
- Arbitrator eligibility requirements: Please see Question 13 for details.
- Arbitrators shall be independent, impartial and maintain confidentiality in conducting the arbitration. (Article 15, Paragraph 1 of the AL)
- An arbitrator shall actively inform the parties in the event he or she must withdraw from the matter due to any circumstances that the law requires recusal. (Article 15, Paragraph 2 of the AL)
- A tribunal is to give the parties sufficient opportunity to present their case and conduct the necessary investigations regarding their arguments. (Article 23 of the AL)
- The deliberation of the award shall not be publicized. (Article 32, Paragraph 1 of the AL)
- The grounds and timing for setting aside an arbitral award; a court that is setting aside an award shall also cancel any enforcement orders associated with the award. (Articles 40, 41 and 42 of the AL)
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 2735/1999 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 2735/1999 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.
There are two pieces of main legislation which apply to arbitration in Turkey: The International Arbitration Law No. 4686 (the “IAL”) for the arbitrations that includes foreign element and the Code of Civil Procedure No. 6100 (the “CCP”) for the domestic arbitral proceedings.