Session 4 - Arbitration Agreements

June 18, 2013

Session 4

Dos and Donts in Drafting an Arbitration Agreement

Elodie Dulac

Solomon Ebere Bahakal Yimer

Addis Ababa, June 18, 2013

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Outline

I. Introduction II. Different Types of Submissions to International Arbitration III. Requirements for the Validity of an Arbitration Agreement IV. The Principles of Severability and Kompetenz-Kompetenz V. The Key Elements of an International Arbitration Agreement VI. Bells and Whistles

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I. Introduction

Importance of the drafting of an arbitration agreement Words matter: an arbitration agreement in a contract is usually to be found

towards the end. Oftentimes, either in the euphoria of the deal or in the exhaustion of negotiating the material clauses of the contract, parties fail to give adequate attention to the formulation and drafting of the arbitration clause.

The drafting of an arbitration clause constitutes the first and most important opportunity to take control of the arbitration

Danger of an incomplete or unclear dispute resolution clause: weakens settlement leverage; will raise jurisdictional issues; will raise challenge and enforcement issues after the award. At best, will add cost and time to the resolution of the dispute.

Example: Any dispute shall be submitted for binding resolution under the ICC Rules.

Acceptance of arbitration does not deprive the Court of Madrid to hear any actual dispute that may exist between the parties.

It would require litigating, in the first place, whether the dispute should be heard in the court or in arbitration.

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II. Different types of international dispute resolution clauses

Arbitration agreement: agreement to arbitrate a category of future disputes. Typically a clause in a contract.

Submission agreement: agreement to arbitrate an existing dispute.

Difficult to agree after a dispute arises. Preferable to incorporate dispute resolution clause in the contract.

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II. Submission Agreements in Ethiopia (BYI)

Arbitration Agreements v. Submissions Agreements Lesson: It is possible to have arbitration agreements and/or submission agreements under Ethiopian law.

We have seen that while an arbitration clause refers to disputes not existing when the agreement is executed (and these might never even arise), a submission agreement refers to conflicts that have already arisen. This distinction is not made very clear under Ethiopian law and this possibly due to drafting errors; and that is what I will kick start my initial discussion on. The Civil Code of the (then) Empire of Ethiopia talks/prefers the use of submission agreements terminology, instead of arbitration agreement and this has created debates amongst academicians in the field.

Art. 3325 Civ. C v. Article 3328 The arbitral submission is the contract whereby the parties to a dispute entrust its solution to a

third party, the arbitrator, who undertakes to settle the dispute in accordance with the principles of law.

Seems to presuppose the existence of a dispute and makes no mention of parties to a contract However, See Article 3328 of Civ. C The parties to a contract may also submit to arbitration

disputes which may arise out of the contract in the future.

Art. 1765 Civ. Code Article 315 of Civ. Procedure C. persons have entered into a written agreement to present or

future differences to arbitration

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III. Requirements for the Validity of the Arbitration Agreement

Requirements for an arbitration agreement to be valid 1. Be the result of mutual consent 2. Formal requirement: be in writing (further discussed) 3. The parties must have legal capacity (further discussed) 4. It must arise out of a defined legal relationship 5. The subject matter must be arbitrable (further discussed)

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2. Formal requirement: be in writing Almost all arbitration laws contain this requirement However, definition of in writing depends on applicable law: 4 poss. 1) Contained in a document signed by the parties (e.g., contract); or 2) in an exchange of letters, telex, telegrams or other means of

telecommunication which provide a record of the agreement; or 3) in an exchange of submissions or statements of claim and defence in

which the existence of an agreement is alleged by one party and not denied by another; or

4) in a separate arbitration agreement referred to in a contract, provided that the contract is in writing and the reference is such as to make that clause part of the contract

Oral arbitration agreements possible? Majority view: No, arbitration agreements shall be in writing Minority view: Yes. France, Sweden, Mauritius, New Zealand and Peru

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Validity Requirements under Ethiopian Law Form Lessons: Be very cautious of the kind of right the submission relates to and be clear on the formality required to dispose of such right by agreement as it can be very tricky. Ethiopian courts need to be light in interpreting this clause as it can at times be very restrictive. Follow up on Cassation Decisions as they relate to Donation/making of public wills as such decisions may impact how arbitration agreements formality requirements can be interpreted.

the form required by law for disposing without consideration of the right to which the submission relates is the form to be followed.

The legal framework that, as closely as possible, governs the act of disposing without consideration of ones right is the law of Donation.

A donation relating to:

an immovable or a right on an immovable shall be of no effect unless it is made in the form governing the making of a public will (Art. 881 883). Written Form + Notarization

corporeal chattels and bearer titles may be donated by mere delivery. They may also be donated in the form governing the donation of immovables. Written Form or No Form - If no special form is required by law to dispose of a right without consideration, then no other special form shall be required

Article 315 (1) Civ. Procedure makes a reference to written agreement as formality?

Further, where the Civ. C expressly provides for arbitration, the arbitration submission shall be subject to no special form.

Examples : Water Use Disputes (where a dispute arises between the Supervisory Authority and water use permit holder, matter can be referred to arbitration (Article 36, Council of Ministers Regulation No. 115/2005); Cooperative Societies member disputes


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3. The parties must have legal capacity Consequence of the lack of capacity: Invalidity of the arbitration

agreement Law applicable to the legal capacity No uniform understanding concerning the law applicable to the legal

capacity of individuals Will depend on the system of conflicts of law of the forum called to

consider the arbitration agreement Prevailing criterion: personal law of each party The legal capacity to enter into an arbitration agreement: Laws usually contain specific provisions on the capacity of the parties to

enter an arbitration agreement Most common problems are those regarding the ability to act on behalf of

legal entities by the persons who execute the arbitration agreement

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Validity Requirements under Ethiopian Law Capacity to arbitrate

The formation of a valid arbitration agreement requires that a contracting party needs to have the capacity to dispose of a right without consideration (3326 (2) cum 2437)

Refers to a person(s) having full and unfettered right over a thing or a right (referencing to the implicit full right to dispose of a thing without consideration) Eg) Married Couple _ mutual and joint consent necessary.

If its a property encumbered or if it is a right held for others in custody, it definitely is not disposable without consideration. Person submitting to arbitration is interdicted or insane at the time of signing.

No person shall submit unless he is capable under the law of disposing of such right (Article 315 (3) Civil Pro. C)

Case of Managers of a Company Special authority is required for an agent to possess the capacity to enter into an arbitration

agreement (Article 2205)

the agent may not without special authority consent to arbitration (Art. 2205 (2) cum Art. 35 (Commercial Code)

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The subject matter must be arbitrable Under NYC what matters is arbitrability under the law of the place of

arbitration Subject matters are, in general, arbitrable when they refer to economic

or disposable private rights Questions arise most often with regard to matters such as antitrust,

securities exchange, IP/IT or disputes involving other statutes expressing a strong public policy Current trend in favour of arbitrability of these matters Examples re Antitrust: Labinal (France, 1993) & Mitsubishi Motors

(US, 1985)

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Validity Requirements under Ethiopian Law Arbitrability Lessons Learned: It is important to know what matters are arbitrable and which are not. When agreeing for finality of awards in International Arbitration, set expectations _ the decision may always be reviewed by FSC Cassation bench. Even where its an international arbitration, as long as it has its seat in Ethiopia, it is open for review by Cassation bench on ground of fundamental error of law.

Article 3328 Arbitration agreements are valid only in relation to disputes that flow from a contract or other specific legal obligation. This is insignificant in terms of limiting the resort to arbitration in many instances as much of disputes anyway arise either out of contracts or other specific legal obligations.

Matters such as Criminal Cases; Declaration of Divorce; Unfair Competition; tax law violations; petty offences are examples of non-arbitrable matters in Ethiopia.

No clear and detailed provision, except Article 315 (2) Civ. Proc. C, that lays out matters not arbitrable. No arbitration may take place in relations to administrative contracts _ does not refer to all contracts with

government bodies (Art 3132 _ administrative contracts expressly qualified as such; or is an activity connected with public service or contains one or more provisions which could only have been inspired by urgent consideration of general interest (those whose financial source is allocated from State budget)

Establishment Proclamations of some administrative bodies allow their directors to agree to settle disputes out of court

Privatization of Public Enterprises Proclamation no. 146/1998 Ethiopian Roads Authority re-establishment council of Ministers Regulation 247/2011 (Art. 10 (2) H) Ethiopian Civil Aviation Authority Establishment Proclamation Public Procurement and Property Administration Proclamation no. 649/09 Finality of Arbitral Awards in Ethiopia (Case of National Mining Corporation PLC v. Dani Trading PLC)


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IV. The Principles of Severability & Kompetenz Kompetenz

Severability = Autonomy of the arbitration agreement Even if the main contract ceases to exist or is invalid, this does not affect

the arbitration agreement, which retains all of its effects. It ensures the continued exercise of jurisdiction where one party objects

to a tribunals jurisdiction on the ground that the main contract was terminated or is invalid.

Kompetenz Kompetenz Kompetenz Kompetenz gives arbitrators the possibility to examine and

decide in first instance on any objection to their jurisdiction. Otherwise, mere contention of lack of jurisdiction could stop the arbitral

process. However, the arbitrators decision is subject to subsequent judicial review.

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IV. The Principles of Separability & Comptence Competence

Separability under Ethiopian Law No clear provision indicating its existence However, considering the restrictive interpretation when it comes to jurisdictional issues and taking into consideration the

fact that Article 3328 Arbitration agreements are valid only in relation to disputes that flow from a contract or other specific legal obligation. A contrario, without a valid contract or other valid legal obligation, it seems to suggest that the arbitration agreement may not be valid itself.

Though not operational now, the Ethiopian Arbitration and Conciliation Center arbitration rules had incorporated the doctrine of separablity. The 2008 rules of the AACCSA AI did not have such provision.

Kompetenz-Kompetenz under Ethiopian Law Article 3330 (1) & (2) of Civil C. Whether and the extent to which the Arbitral Tribunal could decide on its jurisdiction is doubtful

Arbitral submission may authorize the arbitrator to decide that difficulties arising out of the interpretation of the submission

In particular authorize the arbitrator to decide disputes relating to its own jurisdiction This seems to suggest Ethiopia has received and incorporated doctrine of Competence-Competence

Article 3330 (3): may in no case be required to decide whether the arbitral submission is or is not valid [This makes the suggestion of existence of Competence Competence blurry. Tilahun Teshome: This provision is not clear enough to convey the intention of the legislature through, especially when it is considered in conjuction with the other stipulations mad ein that saem article under sub articles 1 and 2.

What would happen if arbitrators ignore Article 3330 (3) of the Civ. C if Ethiopian law is applicable law and they assert jurisdiction or they rule on the validity of an the arbitration agreement? Seat in Ethiopia? Seat abroad?

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V. The Key Elements of an International Arbitration Agreement

Basic guidelines to negotiate an arbitration agreement Dont assume one arbitration clause fits all transactions As a general rule, arbitration clauses should be kept as simple as possible. Long and

complex arbitration clauses should be avoided (even in complex transactions). Additional provisions provide further scope for dispute, increasing delays and cost.

Dont be adventurous with seats and rules/institutions Select a strong but cheap(er) place of arbitration Consider the seat and arbitral institutions/rules carefully, but once selected, stick to

them, dont innovate.

Provide for rules with an expedited procedure (e.g., SIAC Rules) Agree to a sole arbitrator (where suitable) Dont give up or restrict your right to choose an arbitrator

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Beware of superficially attractive time-saving and cost-saving measures, e.g.:

fixing time limits for rendering an award (which exclude tribunal discretion)

opting for ad hoc arbitration choosing the institution with the lowest arbitrator fee scale

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What are the main elements of an arbitration clause?

1. Submission of disputes to arbitration

2. Place of arbitration

3. Arbitral institution/arbitration rules

4. Number and qualifications of arbitrators

5. Language of the arbitration

These should be assessed in light of different considerations arising in each case, such as bargaining power, identity of counterparty, extent and location of counterpartys assets, and need for enforcement.

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1. Submission of disputes to arbitration

Arbitration agreement identifies a group of disputes that may arise in the future (or an existing dispute in rare case of submission agreement) and stipulates that the disputes identified will be resolved by arbitration.

Usual practice is to identify as broad a group as could possibly be connected with the contract. Typical wording:

all disputes arising out or in connection with this contract.

Catch-all phrase which covers contractual claims and tort claims. Will also cover defence that the contract never came into exist, and

disputes regarding the termination of the contract.

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1. Submission of disputes to arbitration (contd)

Trying to be more specific can be risky: all disputes concerning the interpretation and performance of this contract.

Arguable that this language does not cover disputes concerning the termination of the contract.

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1. Submission of disputes to arbitration (contd) Unambiguous referral to arbitration of disputes identified Once parties have identified the group of disputes they wish to have

resolved by arbitration, the next stage is to refer those disputes to arbitration.

Select an unambiguous language, that leaves no room for argument that arbitration is merely optional. Wording like shall be referred is better than may be referred.

May could give rise to argument that arbitration is optional and that a party may chose to submit dispute to courts instead.

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2. Place of arbitration

Why does the place or seat of arbitration matter? Choice of seat is the most important variable of the arbitration agreement. Choice of the seat of arbitration brings with it at least three major legal

consequences: a. it determines, at least in traditional thinking, which municipal law should

govern the arbitration (i.e. the law governing the procedure to be followed); b. of most relevance in practice, the place of arbitration determines which

courts supervise and support or in some cases, interfere with and obstruct the arbitration, and this includes which courts hear an action to set aside the award; and

c. the place of arbitration determines the nationality of the award, which is important for enforcement purposes.

It is for these reasons that the choice of the place of arbitration is so significant.

If unfriendly place of arbitration, delinquent party could derail any arbitration held there, leading arbitration agreement to be effectively worthless.

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2. Place of arbitration (contd)

Distinction between legal and physical venue Legal venue = where arbitration is legally held (e.g., the place of arbitration

shall be Geneva)

Physical venue = where hearings actually held (e.g., the hearings shall be conducted in Dubai)

Common misconception: location of arbitration institution = place of arbitration = hearing venue. Example of misconception: choice of ICC = choice of Paris as place of arbitration and hearing venue.

In fact, parties are free to mix and match, e.g., ICC arbitration, place of arbitration Geneva, hearing in Addis Ababa

Reasons for hearing somewhere other than place of arbitration: more convenient; impracticality, e.g., if participants are effectively prevented from travelling to

place of arbitration or difficult (visas); anti-suit injunction at seat.

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Recommended seats of arbitration Select a neutral seat, generally chosen by parties or by institution

because it is a place with which the parties have no connection.

Test for a good neutral or objective places of arbitration is whether an IA can be fairly and effectively held in that place, with support from local courts, leading to an enforceable award.

have a modern arbitration law (eg UNCITRAL Model Law); membership to NYC; seat in which courts consistently apply the relevant laws and the NYC

in an arbitration-friendly manner.

Other considerations: geographical considerations, visa requirements.

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2. Place of arbitration (contd) Recommended seats of arbitration (contd)

Most popular places of arbitration: Dubai, Paris, Geneva or Zurich, Hong Kong, London, New York, Singapore, Stockholm, The Hague.

An Africa seat: Mauritius? Specify the city, not the country

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Places of Arbitration: EDU ICC International Court of Arbitration Bulletin*

City Number of Cases

Paris 124

London 70

Geneva 48

Zurich 30

Singapore 24

New York 23

Hong Kong 14

Vienna 13

Mexico 12

Miami 11

2010 Top 10 Cities Selected

2011 Top 10 Cities Selected

City Number of Cases

Paris 111

London 62

Geneva 53

Zurich 40

Singapore 24

New York 20

Frankfurt/M 14

Brussels 13

Madrid 13

So Paulo 12

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What to do if a party insists on arbitration in a country unfriendly to arbitration?

Fallback position: trading place of arbitration for governing law or other concessions in the method of dispute resolution such as the arbitral institution

Agree to hearing in other partys country but place of arbitration in a third country.

There will be times when a dispute clause is so disadvantageous or imperfect that it will not be in the interest of a business to accept the risk of the contract = deal breaker.

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3. Arbitral institution/arbitration rules

What does an arbitration institution do? receives request for arbitration appoints one or more arbitrators decide challenges of arbitrators organises payment by parties of arbitrators supports arbitrators scrutinises awards (ICC, SIAC)

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3. Arbitral institution/arbitration rules (contd)

We generally advise against ad hoc arbitration (i.e. with no institution): Un-administered (ad hoc) arbitration is rarely advisable. The institution plays a critical role in the initial stages of an IA before

the tribunal is constituted and will manage the administrative aspects of the arbitration

To leave these functions to the parties and/or tribunal often results in additional cost and delay, especially in less arbitration-friendly jurisdictions.

If ad hoc, best to refer to UNCITRAL Arbitration Rules, not pure ad hoc.

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Various recommended institutions? International Chamber of Commerce (ICC) London Court of International Arbitration (LCIA) International Centre for Dispute Resolution (ICDR) Stockholm Chamber of Commerce (SCC) Singapore International Arbitration Centre (SIAC) Hong Kong International Arbitration Centre (HKIAC) Dubai International Arbitration Centre (DIAC) Swiss Chambers Arbitration Institution (Swiss Chambers) Note: leading institutions arbitration rules are largely similar Do not refer to an arbitration institution that does not exist!

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What to look for in an arbitration institution? modern arbitration rules do the institutions rules provide for international proceedings? how many international arbitrations has the institution conducted

each year and in total?

qualified staff: legal knowledge and experience to advise tribunals and parties

reasonable charges does not go off beaten path

Arose out of a road construction sub contract agreement.

AACCSA AI was designated as an arbitration body. Parties also indicated to abide by Chambers arbitration rules.

Cassation bench ruled that the finality of awards provision under the Chamber rules to which parties have signed to cannot be said to have been given with full knowledge of the circumstances within the meaning of Art. 350 (2) Civ. Procedure Code.

Despite parties agreement to refer their disputes to the Chambers institute, the Cassation bench decided that in accordance with Article 1(1) of the Institutes arbitration rules, fi parties agreed in writing for the resolution of their disputes to be decided under the arbitration rule, the award shall be given under that rule. And for this to happen, when both parties come to the institute, the later would have to procure a written agreement before proceeding to the case that the parties would abide by its procedural rules.

WHEN PARTIES REFER THEIR DISPUTES TO THE INSTITUTE AND EXPRESSLY PROVIDE FOR THE INSTITUTES ARBITRATION RULES OF PROCEDURE TO BE APPLIED, THE CASSATION BENCH HAS DECIDED RATHER IN A BIZARRE FASHION THAT A SECOND LEVEL AGREEMENT OR SEPARATE CONSENT POST THE DISPUTE IS REQUIRED FOR THE RULES OF THE ARBITRATION INSTITUTE TO APPLY. THIS HIGHLY DIMINISHES THE STATUS OF INSTITUTIONAL ARBITRATION AGREEMENTS (in the context of AACCSA AI to say the least) INTO ARBITRAL SUBMISSIONS THAT OCCUR AFTER DISPUTE ARISES.

V. Dragdos v. Saba Construction

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Basic model arbitration clause All disputes, controversies or differences arising out of or in connection

with this contract, including any question regarding its breach, existence, validity or termination, shall be referred to and finally resolved by arbitration in [insert place of arbitration] under the auspices and in accordance with the arbitration rules of the [insert arbitration institution].

The Tribunal shall consist of [insert one or three] arbitrator(s). The language of the arbitration shall be [insert language].

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4. Number and qualifications of arbitrators: 1 or 3 arbitrators?

Guideline: Match the size of the tribunal to the size of likely disputes by: agreeing before entering into the contract; or specifying the number of arbitrators in the arbitration clause; or leaving the question to be resolved by the arbitral institution; or if ad hoc, by providing for an appointing authority

Pros Cons

Sole Arbitrator Cost efficient Fast

No benefit of appointing co-arbitrator

Not suited to large/complex cases

3-member tribunal

Benefit of appointing co-arbitrator Safeguard against mistakes or

misconduct by tribunal Better suited to large/complex cases

Costly Lengthier Risk that decision = fruit of

compromise

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5. Language of the arbitration Factors to consider when choosing the language of the arbitration

Language of the contract Language of the related documentation Likely effect of the choice on the pool of qualified arbitrators and

counsel More than 1 language of arbitration?

Cons: may add difficulties (e.g., finding arbitrators able to conduct arbitration proceedings in 2 languages), which would result in additional costs and delays of the proceedings

Remedy: specify 1 language of arbitration, but provide that documents may be submitted in another language = will avoid translation costs

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VI. Bells & Whistles

1. Multi-tier clauses 2. Joinder and consolidation 3. Arbitrator qualifications 4. Procedure and evidence 5. Allocation of costs 6. Time limits for award 7. Waiver of sovereign immunity

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1. Multi-tier clauses Definition:

Clauses that set out a number of escalating steps in the dispute resolution process (negotiation > mediation > arbitration).

Guidelines: Specify how the process is initiated. Set short time-limits for each stage of the process. Specify how a dispute is moved from one stage of the process to the

next. This should be triggered by a defined and indisputable event (e.g., expiry of a time-period)

Specify whether the pre-arbitration steps are mandatory Specify that arbitration is mandatory (not permissive) Avoid using terms which may cause a dispute in themselves (e.g., that

requirement negotiations be conduced in good faith). Define the disputes to be submitted to steps in identical terms.

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2. Joinder and consolidation Joinder Definition:

Joining third parties to the arbitration, involved in the underlying project or transaction and their presence is needed for effective or at least efficient resolution of the dispute. If a third party were joined, the traditional two-sided arbitration would become what is referred to as multi-party or multi-sided proceedings

Guidelines: Check whether joinder is covered by applicable arbitration rules Where appropriate, insert clause by which the parties agree to be

joined to an arbitration proceeding involving similar facts or issues Address in the clause the consequences of the multiplicity of parties

for the appointment of (i) sole arbitrator or (ii) 3-member tribunal Risk: more parties = more complex = more expansive process

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2. Joinder and consolidation (contd) Consolidation Definition:

Where 2 or more arbitrations are pending between the same parties under the same or similar contracts, joinder. In this case, there are 2 or more arbitrations, not just one, and, generally, the parties are the same in each proceeding, so there is no issue of having to include a new party to the arbitration.

Guidelines: It may, or may not, be in the parties interest to have these arbitrations dealt

with in a single consolidated arbitration. In some situations, one single arbitration may be more efficient and cost-effective, while in other circumstances, parties may have reasons to keep the arbitrations separate.

If the parties wish to permit consolidation of related arbitrations, first look at whether the applicable arbitration rules provide for consolidation.

Where appropriate, parties should say so in the arbitration clause. Tailor the wording to your needs.

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3. Arbitrator qualifications Parties = free to choose arbitrators based on specialisation, nationality,

language fluency Appointment of arbitrators = one of the most frequently cited advantages

of arbitration. Provides the parties with a great deal of control over the quality of the tribunal = to appoint arbitrator with expertise in subject-matter and arbitration process

Important: appointed arbitrator biased advocate Guidelines:

Most arbitration rules provide that all arbitrators shall be impartial and independent. If not, insert a clause to that effect.

Dont be too specific because it may reduce the pool of available arbitrators to a dangerously low level.

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4. Procedure and evidence Parties = free to determine the procedures of each individual case Institutional rules = light on details, even less in ad hoc arbitration Freedom to include specific provisions about the procedure, including

regarding overall duration of the arbitration or timing of specific procedural steps

Freedom to agree on issues of evidence, e.g., imposing the IBA Rules of Evidence to be applicable

Only limit = basic procedural guarantees and equal treatment Freedom to choose counsel Guideline:

In the absence of a very specific contractual or project need, do not include a detailed agreement on procedure and evidence. Arbitration rules usually provide a framework. If not, refer to the IBA Rules as guidelines.

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5. Allocation of costs Widespread practice: loser pays

Guidelines:

Do not insert a clause saying this as this is the default practice Do not include an each side shall bear its own costs provision: the

probability that the claiming party will be required to pay the costs of the defence is one factor that may discourage the pursuit of frivolous claims. Therefore, it is inadvisable for parties to agree otherwise in their contract.

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6. Time limits for award Parties = free to set a time limit by which the arbitrators must issue a final

award Example: 6 or 9 months from the confirmation of the chair of the

arbitral tribunal Pros:

encourages the arbitral tribunal to swiftly conclude the proceedings before its term expires

Cons: may make it more difficult for the parties to find arbitrators willing to

complete an arbitration within the specified time period. risk that may not be possible in practice to comply with the time limit

and that one party will not agree to extend it, compromising the validity and enforceability of the award.

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VI. Waiver of sovereign immunity

7. Waiver of sovereign immunity 2 types of immunities:

from jurisdiction: party cannot be forced to defend itself in a lawsuit before the tribunal

from execution: assets cannot be used to satisfy a judgment. Issue is with immunity from execution immunity from jurisdiction being

accepted as automatically waived by the act of agreeing to arbitrate. Important: where one party is a state or a state entity, the other party

should seek a waiver by the state party in the parties contract of any immunity (particularly from execution) that the state party may enjoy.

Guideline: waiver should be as comprehensive and specific as possible (e.g.,

cover assets used for diplomatic purposes) because domestic courts may interpret waivers of sovereign immunity restrictively.

Contact Information Elodie Dulac King & Spalding LLP 9 Raffles Place, Level 31 Republic Plaza Singapore 048619 Tel.: +65.6303.6004 Email: [email protected] Solomon Ebere Schellenberg Wittmer 15 bis, rue des Alpes P.O. Box 2088 1211 Geneva 1, Switzerland Tel: +41227078000 [email protected] Bahakal Yimer Email: [email protected]

Slide Number 1OutlineI. IntroductionII. Different types of international dispute resolution clausesII. Submission Agreements in Ethiopia (BYI)III. Requirements for the Validity of the Arbitration AgreementIII. Requirements for the Validity of the Arbitration AgreementSlide Number 8III. Requirements for the Validity of the Arbitration Agreement III. Requirements for the Validity of the Arbitration AgreementIII. Requirements for the Validity of the Arbitration Agreement Slide Number 12IV. The Principles of Severability & Kompetenz KompetenzIV. The Principles of Separability & Comptence CompetenceV.The Key Elements of an International Arbitration AgreementV. The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementPlaces of Arbitration: EDU ICC International Court of Arbitration Bulletin*V.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV. The Key Elements of an International Arbitration AgreementV.The Key Elements of an International Arbitration AgreementV.Dragdos v. Saba ConstructionV.The Key Elements of an International Arbitration AgreementV. The Key Elements of an International Arbitration AgreementV. The Key Elements of an International Arbitration AgreementVI. Bells & WhistlesVI. Bells & WhistlesVI. Bells & WhistlesVI. Bells & WhistlesVI. Bells & WhistlesVI. Bells & WhistlesVI. Bells & WhistlesVI. Bells & WhistlesVI. Waiver of sovereign immunityContact Information

Documents

Session 4 - Arbitration Agreements