INTERNATIONAL COMMERCIAL ARBITRATION.docx - CLASS 2...

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CLASS 2 : 20/11/19 Assignment Chapter 1-2 of Emilia Onyema ‘international commercial arbitration’ Kariuki Muigai ‘settling disputes ….’ Chapter 1 English Arbitration Act 1995 – print it New York convention for the recognition and Enforcement of Foreign Arbitral Awards– print ICC Rules INTRODUCTION TO ARBITRATION AND OTHER FORMS OF ADR Learning outcomes: Understand arbitration as a form of ADR Appreciate the procedural nature of this course Know the difference between arbitration and other forms of ADR Understand the role of harmonization in international arbitration Gaillard and Goldman - ‘ it is a device whereby the settlement of a question which is in the interest of two or more persons is entrusted to one or more other persons, an arbitrator who derive their powers from a private agreement and not the state and who are to decide on the case on the basis of such an agreement .’ Redford and Hunter Raise 4 significant features: Agreement to arbitrate Choice of arbitrators Decision of a tribunal Enforcement of award
Lew Misbelists and Kroll Raise 4 fundamental features of arbitration: as an alternative to national courts as a private mechanism selected and controlled by the parties- parties can select the seat, law and rules of the arbitration decision is final and binding on the parties KEY POINTS arbitration is a dispute resolution mechanism involves the choice of a third-party neutral decision maker there must be at least two disputing parties there must be consent of the parties to arbitrate results in a binding decision must be enforceable by law/ cannot enforce an illegal contract TYPES OF ARBITRATION 1. National arbitration 2. International arbitration -involving parties from different jurisdictions and a multitude of laws and rules 3. Trade arbitration e.g 4. Specialist arbitrations e.g maritime, investment 5. Court annexed arbitration as opposed to consensual ones- in Kenya this does not exist however we do have court annexed mediation. There has been a lot of regulation when it comes to international arbitration over time so as to streamline it and generate expectations and understanding of the process.
This started in 1698 with the Arbitration Act in England. Next was the code of civil procedure in France 1925 Federal Arbitration Act in the USA There emerged international conventions New York convention The United Nations Commission on International Trade Law Arbitration laws (UNCITRAL)- Harmonized arbitration as it globally and essentially became the template Read Nyuto v Airtel Advantages of arbitration over litigation 1. Private mechanism 2. Binding and enforceable outcome -the outcome is enforceable in all countries not just the one where the arbitration took place as opposed to litigation which needs to be approved in each country by their courts.

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