International Commercial Arbitration Module (FS 2015, March 17, 2015) 1 7 Handout re Arbitration Agreements I. Standard Clauses 1. Swiss Rules "Any dispute, controversy or claim arising out of, or in relation to, this contract, including the validity, invalidity, breach, or termination thereof, shall be settled by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be... (one or three); The seat of the arbitration shall be in... (city in Switzerland, unless the parties agree on a city abroad); The arbitral proceedings shall be conducted in...(insert desired language)." 2. ICC Rules "All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules." "It may also be desirable for the parties to stipulate in the arbitration clause itself: the law governing the contract; the number of arbitrators; the place of arbitration;and the language of the arbitration." 3. Liechtenstein Rules Version for foundations: Any dispute, controversy or claim arising between the foundation, its executive bodies, the founder or beneficiaries in relation to the foundation, its formation, activity or liquidation, including the existence or scope of a beneficial interest, the designation of beneficiaries, the validity, invalidity, amendment or dissolution of the foundation, appeal of deci- Felix Dasser International Commercial Arbitration - Handout
2 7 sions, and supervisory measures, shall be resolved by arbitration in accordance with the Rules of Arbitration of the Liechtenstein Chamber of Commerce and Industry to the exclusion of the judicial authorities. In any event by accepting a beneficial interest, the beneficiary shall submit to this arbitration agreement. The foundation may call upon the beneficiary to confirm this by signature. Refusal of this confirmation shall be deemed a waiver of the beneficial interest. The number of arbitrators shall be (one or three). The seat of the arbitral tribunal shall be (insert desired place of arbitration). On request, the arbitral tribunal may transfer the seat of the arbitral tribunal to the domicile of the foundation if this is necessary for the award to be valid for the foundation under company law. The language of the arbitral tribunal shall be (insert desired language). If a party is indigent, the foundation may in its discretion for the duration of the proceedings provisionally assume the costs of the proceedings, including advances on costs and reasonable representation of that party, reserving the right to reclaim these costs after a decision of the arbitral tribunal on the final obligation to bear the costs. 4. LCIA Rules "Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be [one/three]. The seat, or legal place, of arbitration shall be [City and/or Country]. The language to be used in the arbitral proceedings shall be [ ]. The governing law of the contract shall be the substantive law of [ ]." 5. DIS Rules "All disputes arising in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) without recourse to the ordinary courts of law. The following points particularly in the case of a foreign element should be considered:
- The place of arbitration is... - The number of arbitrators is... - The language of the arbitral proceedings is... 3 7 - The applicable substantive law is 6. UNCITRAL Rules (as revised in 2010) "Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UN- CITRAL Arbitration Rules. Note. Parties should consider adding: (a) The appointing authority shall be... [name of Institution or person]; (b) The number of arbitrators shall be [one or three]; (c) The place of arbitration shall be... [town and country]; (d) The language to be used in the arbitral proceedings shall be...." II. Examples 1. BGE 130 III 66 "The parties agree that any dispute or difference which may arise out of this Agreement or the execution or interpretation of any of the Clauses hereof shall be settled amicably. If such dispute or difference cannot be settled in the aforementioned manner they shall be finally settled under the Rules of Conciliation and Arbitration of the Zurich Chamber of Commerce, Zurich/Switzerland, in accordance with the UNCITRAL Arbitration Rules. The number of arbitrators shall be three (3). ICC shall be the appointing authority acting in accordance with the rules adopted by ICC for that purpose." 2. BGE 129 III 675 "ARBITRAZA: Nesuglasice i sporove ugovorne strane rijesavaju suglasno. Ukoliko sporazum ne moze biti postignut ugovara se nadleznost Trgovackog suda Zürich, Kanton Zürich, Svicarska uz primjenu svicarskog materijalnog prava. Arbitrazna odluka je konacna i izvrsna." (kroatische Baufirma) Claimant translated this clause as follows: "SCHLICHTUNG: Alle Streitigkeiten, die aus diesem Vertrag herausgehen, werden die Vertragsparteien auf friedlichem Wege zu lösen versuchen. Soll eine Einigung nicht erreicht werden können, dann wird der Streitfall seitens dem Handelsgericht in Zürich, Kanton Zürich, geschlichtet unter Anwendung des schweizerischen Materialrechts. Die Entscheidung der Schlichtung wird als endgültig und vollziehend betrachtet."
3. FT 4A_74/2014 of August 28, 2014 4 7 "Art. 16 Applicable Law and resolution of disputes For all disputes arising out of this contract, the Arbitration Committee, to be established in Basel (Switzerland), is authorized and the law to be applied is Swiss Law. The Arbitration language is German. The decision of the Arbitration Committee is a judgment in absolute, eliminating the right to appeal of the parties." 4. BGE 138 III 29 The competent instance in case of a dispute concerning this Agreement is the FIFA Commission, or the UEFA Commission, which will have to decide the dispute that could arise between the club and the agent. 5. BGer 4A_388/2012 "The disputes concerning the interpretation of the meaning and the performance of the contract will be resolved amicably by agreement of the parties. In case an agreement is impossible to reach, the dispute shall be referred for resolving by the competent court. The parties to the contract recognize the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland as in this case the Statute and the regulations of BFU and the provisions of Bulgarian legislation will apply." 6. BGE 136 III 107 The articles of incorporation of the Y Ltd. contain the following arbitration clause: "Rechtsstreitigkeiten in Gesellschaftsangelegenheiten zwischen der Gesellschaft und ihren Organen oder Aktionären sowie deren Rechtsnachfolgern entscheidet endgültig (einschliesslich aller Vor- und Zwischenfragen) unter Ausschluss des ordentlichen Rechtsweges ein dreiköpfiges Schiedsgericht mit Sitz in Biel. (...) Gerichtsstand ist Biel. Das Schiedsgericht entscheidet nach schweizerischem Recht. Es ordnet sein Verfahren selbst und regelt auch die Kostenfrage. Das Verfahren soll möglichst einfach sein. Die Parteien haben Anspruch auf ein schriftlich begründetes Urteil. Subsidiär gilt die bernische Zivilprozessordnung." 7. BGer 4A_160/2009 Arbitration clause in a contract between a Swedish national and a B.V.I. company allegedly owed by a Swedish national who is living in Switzerland:
5 7 "18.1 Streitigkeiten anlässlich dieses Vertrages werden nicht durch ein Gericht, sondern endgültig durch Schiedsspruch gemäss dem Schiedsverfahrensgesetz entschieden. 18.2 Es gilt Schwedisches Recht und das Schiedsgericht setzt sich aus schwedischen Juristen zusammen. 18.3 Das Schiedsgericht tritt in Zürich zusammen." 8. Engineering contract Found in the same contract (but in different parts thereof): "Applicable Law: This Contract shall be construed and enforceable according to the law of the State of Utopia and the parties submit to the jurisdiction of the Utopian Chamber of Commerce and the courts of the State of Utopia." (Special Conditions of Purchase) "Laws and Regulations: This Purchase Order shall be subject to the Utopian Law and the Utopian Chamber of Commerce. Both seller and Buyer hereby submit to the jurisdiction of the Courts of the State of Utopia and agree that the Courts of the State of Utopia / Arbitrator shall be the exclusive forum for the resolution of any disputes related to or arising out of this Purchase Order." (General Terms and Conditions) 9. Multi-Party Financing Agreement "(a) Subject to Clauses X (Litigation Option) and Y (Jurisdiction of the Courts), the Parties agree that any claim, dispute or difference of whatever nature arising under, out of or in connection with this Completion Guarantee and the other Senior Debt Finance Documents (including a claim, dispute or difference regarding their existence, termination or validity [or any non-contractual obligations arising out of or in connection with the Senior Debt Finance Documents)] (a "Dispute") shall be referred to and finally settled by arbitration in accordance with the Arbitration Rules of the London Court of International Arbitration (the "LCIA Rules") as modified by this Clause Z (Arbitration), which LCIA Rules shall be deemed incorporated into this Clause Z (Arbitration). [ ] (g) The Arbitral Tribunal shall consist of three (3) arbitrators. The Claimant(s) shall jointly nominate one (1) arbitrator and the Respondent(s) shall jointly nominate one (1) arbitrator, and the two (2) arbitrators thus nominated shall, once appointed by the LCIA Court, nominate the third arbitrator, provided that: (i) if a party to the Dispute fails to nominate an arbitrator within thirty (30) days of receipt of a request to do so from the other party, such nomination (and subsequent appointment) shall be made, at the request of such other party, by the LCIA Court; or
6 7 (ii) if the two (2) arbitrators nominated by the Claimant(s) and the Respondent(s), once appointed, fail to agree on the third arbitrator within thirty (30) days of the later of their respective appointments, such third arbitrator shall be nominated (and subsequently appointed) by the LCIA Court at the request of either party. (h) Such third arbitrator shall be a qualified lawyer and shall be the chairman of the Arbitral Tribunal. (i) The seat of arbitration shall be London, England and the language of arbitration shall be English. (k) Nothing in this Clause Z (Arbitration) shall be construed as preventing any party to a Dispute from seeking conservatory or similar interim relief in any court of competent jurisdiction. (l) For the purposes of arbitration pursuant to this Clause Z (Arbitration), the Parties waive any right of application to determine a preliminary point of law or appeal on a point of law under Sections 45 and 69 of the Arbitration Act 1996. (m) The decision of the Arbitral Tribunal shall be final and legally binding upon the parties to the Dispute and nothing shall prevent any party from enforcing such award in any court." 10. Carve out "Any claim arising out of or relating to this AGREEMENT or its subject matter or any right or obligation created by this Agreement, irrespective of the legal theory or claims underlying such dispute (including tort or statutory claims) ("DISPUTE") will be resolved in accordance with this Section 31. The PARTY asserting the DISPUTE will give prompt notice to the other PARTY describing the DISPUTE in reasonable detail ("DISPUTE NOTICE"). Each PARTY agrees not to commence court proceedings against the other PARTY relating to a DISPUTE, except that the provisions of this Section will not prevent a PARTY from commencing court proceedings seeking injunctive relief for DISPUTES related to Intellectual Property Rights. Promptly after receipt of the DISPUTE NOTICE, the PAR- TIES will negotiate in good faith to resolve the DISPUTE. Either PARTY may escalate the DISPUTE negotiations to higher level personnel, by notice to the other PARTY [...]. If the DISPUTE has not been resolved within forty (40) days after receipt of the DISPUTE NOTICE, then either PARTY, by notice to the other PARTY, will refer the DISPUTE for exclusive, binding and final resolution by an arbitration. Any arbitration shall be conducted in English under the rules of the International Chamber of Commerce by a single, mutually-agreed-to arbitrator and shall be held in Geneva, Switzerland. No demand for arbitration shall be made or valid if submitted after expiration of the limitation period applicable to a legal or equitable proceeding based upon the DISPUTE in question. Notwithstanding the foregoing, either PARTY may elect to seek injunctive relief or other equitable remedies
7 7 against the other PARTY from any court of competent jurisdiction, without waiving the PARTY's right to arbitrate disputes for money or damages." 11. Specific requirements regarding the presiding arbitrator Request by the Swiss National Committee of the ICC: "The National Committee is asked to propose candidates as presiding arbitrator in an ICC Arbitration with the requirement that the candidate(s) must be Swiss national, but not Greek (or German) national, and she/he must be capable to conduct the proceedings in Greek".