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Columbia University Columbia Law |
Arbitrators are like private judges hired to avoid the expense and time of court litigation. Arbitrators, usually lawyers or professors, are selected for specific disputes, often with experience in the relevant industry. Typically, disputes are decided by panels of 3 arbitrators where each party appoints one arbitrator and then the appointed arbitrators agree on a 3rd. The Vis oral rounds always have a tribunal of 3 arbitrators.
Arbitrations are often run as institutional arbitrations by private, specialized organizations such as the International Chamber of Commerce (ICC) and the American Arbitration Association. Generally, these organizations have their own set of rules (the "procedural" rules) to govern their arbitrations though sometimes parties are allowed to select different rules. The potential advantages of institutional arbitrations include access to a pool of experienced arbitrators, expertise in particular industries, greater administrative resources, and posh offices (the ICC's Paris office has a great view of the Seine river and the Effiel Tower). Almost all arbitrations for which there are public records are institutional arbitrations.
Instead of institutional arbitration, parties may choose ad-hoc arbitration, where they are entirely free to customize their proceedings. Ad-hoc arbitrations potentially offer greater flexibility and confidentiality than institutional arbitration but may involve greater time and expense. Parties are free to choose any set of arbitration rules. The UNCITRAL Arbitration Rules, written in 1976 by the same body that created the CISG, are a popular choice for ad-hoc arbitrations. Few public records exist of ad-hoc arbitrations.
Regardless of the form, arbitrations depend on judicial courts and national laws in the recognition and enforcement stage. After an arbitration award is rendered, if the losing party fails to pay, the winning party will have to turn to a court to enforce the judgment. This comprises two related steps. First, an award is recognized when a court in the country where the award was given (the situs) "recognizes" the award as valid under the laws of that country governing arbitration. The Problem always states that the UNCITRAL Model Law on International Commercial Arbitration governs this step. Second, an award is enforced when a court orders the losing party to pay up. The enforcing court could but need not be in the country where the award was given. Arbitrations are often held in neutral countries unrelated to either party (or at least a nice vacation spot). Whereas enforcing courts are generally in a country where the loser has assets. The Problem always states that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, aka the New York Convention, applies to this step. The standards of the Model Law and the New York Convention on the recognition and enforcement of arbitration awards are essentially identical.
While the CISG is always the governing law for the VIS moot, the arbitration rules vary from year to year. One year it could be the rules of the Chicago International Dispute Resolution Association. The next, it could be the Arbitration Rules of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania. The Problem always includes at least one procedural issue, such as whether the statute of limitations has expired or whether the present tribunal has jurisdiction. While the particular facts of the Problem are also relevant to procedure, the procedural issue is more abstract than the issues of substantive law.
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