Loseblattwerk, Englisch, 1340 Seiten
Loseblattwerk, Englisch, 1340 Seiten
ISBN: 978-1-933833-20-0
Verlag: Juris
Asia has witnessed an extraordinary growth in the use of international arbitration in the past two decades. Arbitration in Asia is an ideal reference to guide practitioners and business people in the proper selection of a suitable arbitral seat or jurisdiction in Asia. The book includes contributions by the area’s leading arbitration practitioners and experts. The materials in this looseleaf volume provide a practical reference guide and resource tool for the law and practice of international commercial arbitration in Asia.
About the Contributors:
Alastair Henderson is the Managing Partner in Bangkok for Herbert Smith and joint head of its dispute resolution practice in Southeast Asia.
Andrew Chan is a Partner in Litigation & Dispute Resolution and joint deputy head of the Corporate Reconstruction and Insolvency practice group for Allen & Gledhill LLP.
Angela Y. Lin has been a Partner and Senior Counselor for the legal firm of Counselor-Lee and Li Attorneys at Law since 1993.
Philip Yang is former Chair of the HKIAC and is President of APRAG.
Audray Souche is a Member of DFDL Mekong/Mekong Law Group.
Christopher To is the former Secretary-General of the HKIAC. He is the chairman of the Hong Kong Internet Forum and the Inter-Pacific Bar Association Dispute Resolution and Arbitration Committee.
Custodio L. Parlade is the former Managing Partner of the Benitez Parlade Africa Herrera Parlade & Panga law offices and is currently Chair of the Committee on Arbitration of the Philippine Chamber of Commerce and Industry.
Dato’ Cecil Abraham, is a Consultant with Zul Rafique & Partners. He is the Deputy President of the Malaysian Institute of Arbitrators and Vice President of the APRAG. He is also the chairman of the Arbitration Committee of ICC Malaysia.
Fali S. Nariman, is a Senior Advocate of the Supreme Court of India, and President of the Bar Association of India. He was Vice-Chair of the International Court of Arbitration of the ICC, Paris and was Chair of ICCA (International Council for Commercial Arbitration) for two successive terms from 1994. Since May 2002 he is an honorary Chair of ICCA.
James Finch is a Partner in the firm of Russin & Vecchi, where he opened the Hanoi office of the firm. In 1996 he became the managing partner of the its Yangon, Myanmar (Burma) office.
Kap-You (Kevin) Kim is the Founder and Head of Bae, Kim & Lee’s International Arbitration & Litigation Practice Group in Korea. He is a Court Member of the LCIA, Vice President of the Korean Council for International Arbitration, Vice Chair of the International Arbitration Committee of ICC Korea.
Karen Mills has practiced in Indonesia for almost 25 years and is one of the founders of the KarimSyah law firm in Jakarta. Ms. Mills is a Chartered Arbitrator, Fellow of the Chartered Institute of Arbitrators (CIArb) and founder and Co-chair of the Indonesian Chapter of CIArb.
L-Martin Desautels is Regional Managing Partner of DFDL Mekong.
Michael Hwang is currently a Vice chair of the ICC International Court of Arbitration, a Vice President of ICCA and a Court Member of the LCIA. He has served as a Vice Chair of the Arbitration Committee of the IBA.
Michael Pryles is the President of the Australian Centre for International Commercial Arbitration, a Member of ICCA, a Court Member of the LCIA and is Co-Chair of the ICC Asia Arbitration Commission. Mr. Pryles was the foundation President of APRAG.
Milton Lawson is the Managing Partner of the Ho Chi Minh City office of Freshfields.
Nigel N.T. Li is Chair of the Chinese Arbitration Association in Taiwan.
Rupert Haw is an Senior Advisor to the General Practice Group of DFDL Mekong.
Sambuu Demberel is the Chair and CEO of the Mongolian Chamber of Commerce and Industry.
Surapol Srangsomwong is a Partner in Herbert Smith's Bangkok office. Previously he worked with Baker & McKenzie in Bangkok before leaving to establish Siam Premier International Law Office, where he served as Managing Partner and Head of Litigation.
Viengsavanh Phanthaly is an adviser for DFDL Mekong.
Wang Wenying is currently the director of the Arbitration Research Institute. She served in the Department of Law of the China Council for the Promotion of International Trade (CCPIT) where she held the position of deputy representative and representative of CCPIT & CCOIC Hong Kong Representative Office from 1997 to 2000.
Yasuhei Taniguchi is Professor of law at Tokyo Keizai University, and attorney at law in Tokyo. Professor Taniguchi is former President of the Japanese Association of Civil Procedure and currently Vice-President of the International Association of Procedural Law.
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Autoren/Hrsg.
Weitere Infos & Material
Foreword Philip Liangyi Yang, President, Asia Pacific Regional Arbitration Group
Introduction Michael J Moser
List of Contributors
Part A
Japan
Yasuhei Taniguchi and Tatsuya Nakamura
[1] INTRODUCTION
[2] LEGISLATION
[2.1] Arbitration law
[2.2] Application
[2.3] Arbitrability
[3] ARBITRATION AGREEMENTS
[3.1] Contract clause and submission agreement
[3.2] Requirement of writing
[3.3] Parties to the arbitration agreement
[3.4] Separability/autonomy of the arbitration agreement
[3.5] Effect of arbitration agreement
[3.6] Consumer arbitration and individual employment arbitration
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualification
[4.2] Number and selection of arbitrators
[4.3] Challenging an arbitrator
[4.4] Removal of arbitrators
[4.5] Immunity of arbitrators
[4.6] Corruption of arbitrators
[4.7] Replacement of arbitrator
[4.8] Remuneration of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] General
[5.2] Commencement of arbitral proceedings
[5.3] Place of arbitration
[5.4] Hearings
[5.5] Evidence and experts
[5.6] Representation
[5.7] Applicable law
[5.8] Interim measures of protection
[5.9] Plea as to the jurisdiction of the arbitral tribunal
[5.9.1] Settlement
[5.9.2] Costs of arbitration
[5.9.3] Default
[6] AWARDS
[6.1] Types of award
[6.2] Making of the award
[6.3] Form of the award
[6.4] Correction and interpretation
[6.5] Additional award
[6.6] Delivery of the award
[6.7] Setting aside of awards
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Taking of evidence
[7.2] Service of written notice
[7.3] No court intervention
[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
[8.1] Enforcement pursuant to domestic law
[8.2] Enforcement pursuant to international agreements
[8.3] Enforcement of awards abroad
[9] PRACTICAL INFORMATION
[9.1] Arbitral institutions
[9.2] Visa requirements
[9.3] Taxation
[10] APPENDICES (on CD)
[10.1] Arbitration Law (Law No. 138 of 2003)
[10.2] The JCAA Commercial Arbitration Rules
As Amended and Effective on January 1, 2008
[10.3] The JCAA Arbitration Fee Regulations
As Amended and Effective on March 1, 2004
[10.4] The JCAA Regulations for Arbitrator’s Remuneration
As Amended and Effective on January 1, 2008
Part B
Korea
Kevin (Kap-You) Kim
[1] INTRODUCTION
[2] LEGISLATION
[3] THE ARBITRATION AGREEMENT
[4] APPOINTMENT OF ARBITRATORS
[5] ARBITRAL PROCEDURE
[6] AWARDS
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
[9] INSTITUTIONAL ARBITRATION IN KOREA
[9.1] Background
[9.2] Request for arbitration
[9.3] Appointment of arbitrators
[9.4] Proceedings
[9.5] Award
[10] PRACTICAL INFORMATION
[10.1] Restrictions on foreign nationals
[10.2] Visas
[10.3] Korea Council Arbitration Board (KCAB)
[11] APPENDICES (on CD)
[11.1] Arbitration Act
[11.2] International Arbitration Rules of KCAB
Part C
Mongolia
Sambuu Demberel
[1] INTRODUCTION
[2] LEGISLATION
[3] MONGOLIAN NATIONAL ARBITRATION CENTER (MNAC)
[3.1] Organization and Functions
[3.1.1] Arbitration
[3.1.2] Mediation
[3.1.3] Legal consultation
[3.1.4] International cooperation
[3.1.5] Research and conduction surveys
[3.1.6] Training
[3.1.7] Publication and Information Distribution
[4] WHY ARBITRATE IN MONGOLIA?
[5] RECOMMENDED ARBITRATION CLAUSE
[6] APPENDICES (on CD)
[6.1] Law on Arbitration
[6.2] The Arbitration Rule
Appendix to Decree No. 2 of the Council of
the MNCCI, June 16, 2003
Part D
People’s Republic of China
Michael J Moser and Wang Wenying
[1] INTRODUCTION
[2] LEGISLATION
[2.1] Arbitration law
[2.2] Application
[2.3] Arbitrability
[2.4] Arbitration organisations
[2.5] Requirements for arbitration commissions
[2.6] Foreign-related arbitration commissions
[2.6.1] CIETAC
[2.6.2] CMAC
[2.6.3] Others
[3] ARBITRATION AGREEMENTS
[3.1] Requirements
[3.2] Types of arbitration agreements
[3.2.1] Contract clause
[3.2.2] Submission agreement
[3.2.3] Incorporation by reference
[3.2.4] Parties to the arbitration agreement
[3.2.5] Defective arbitration agreements
[3.2.5.1] Arbitration agreement is incomplete or
unclear
[3.2.5.2] The arbitration agreement simultaneously
designates two arbitration bodies
[3.2.5.3] The arbitration agreement lacks finality
[3.2.5.4] The arbitration agreement designates a
non-existent arbitration body
[3.2.5.5] The agreement designates arbitration and
litigation at the same time
[3.2.5.6] Typewriting errors in an arbitration agreement
[3.2.5.7] Unequal treatment accorded to one party to the
arbitration agreement
[3.2.6] Separability/autonomy of the arbitration agreement
[3.2.7] Applicable law for determining the validity of the
arbitration agreement
[3.2.8] Effect of arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Selection
[4.3] Number of arbitrators
[4.4] Challenging an arbitrator
[4.5] Replacement of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] Preliminary meetings
[5.2] Interim relief
[5.3] Fact-finding
[5.3.1] Written submissions
[5.3.2] Site visits and experts
[5.4] The hearing
[5.4.1] Necessity of a hearing
[5.4.2] Hearing date
[5.4.3] Location of the hearing
[5.4.4] Records of the hearing
[5.4.5] Fast track
[5.4.6] Concluding the arbitration process
[6] AWARDS
[6.1] Settlement agreements
[6.2] Types of awards
[6.2.1] Consent awards
[6.2.2] Interim or interlocutory awards
[6.2.3] Partial awards
[6.2.4] Final awards
[6.3] Form of the award
[6.3.1] Content of the award
[6.4] Issuance and revision of awards
[6.4.1] Scrutiny of awards
[6.4.2] Correction of awards
[6.4.3] Additional awards
[6.5] Setting aside of awards
[6.5.1] Domestic awards
[6.5.2] Foreign-related awards
[6.5.3] Time limits
[6.5.4] Effect of setting aside
[6.5.5] Re-arbitration
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
[8.1] Enforcement pursuant to domestic law
[8.2] Enforcement pursuant to international agreements
[8.3] Enforcement of CIETAC and CMAC awards abroad
[9] PRACTICAL INFORMATION
[9.1] Publications
[9.2] Contact details
[9.2.1] CIETAC
[9.2.2] CMAC
[9.3] Visa requirements
[9.4] Tax
[9.5] Foreign counsel
[10] APPENDICES (on CD)
[10.1] Arbitration Law of the People’s Republic of China
[10.2] China International Economic and Trade Arbitration
Commission (CIETAC) Arbitration Rules
[10.3] China Maritime Arbitration Commission Arbitration Rules
Part E
Hong Kong
Michael J Moser and Christopher To
[1] INTRODUCTION
[2] LEGISLATION
[2.1] General
[2.2] International and domestic arbitration
[3] ARBITRATION AGREEMENTS
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Number of arbitrators
[4.2] Appointment of arbitrators
[4.3] Qualifications
[4.4] Challenge of arbitrators
[4.5] Liabilities of arbitrators and arbitral institutions
[4.6] Conciliation
[5] ARBITRATION PROCEDURE
[5.1] Commencement of the arbitration
[5.2] Language
[5.3] Pleadings and submissions
[5.4] Evidence
[5.5] Hearings and written proceedings
[6] AWARDS
[6.1] Interest
[6.2] Costs
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Powers of court to grant interim measures of protection in
relation to foreign arbitral proceedings
[7.2] Stay of High Court proceedings and referral to arbitration
[7.3] Domestic arbitrations
[8] RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARDS
[8.1] Setting aside awards made in Hong Kong
[8.1.1] International Awards
[8.1.2] Domestic awards
[8.2] Enforcement of arbitral awards made in Hong Kong
[8.3] New York Convention
[8.4] Enforcement of China awards in Hong Kong
[8.5] Enforcement of non New York Convention Awards
[8.6] Enforcement of a foreign arbitral award by bringing fresh
proceedings in the Hong Kong courts
[9] PRACTICAL INFORMATION
[9.1] Facilities in Hong Kong
[9.2] The Hong Kong International Arbitration Centre
[9.3] Chartered Institute of Arbitrators
[9.4] The Hong Kong Institute of Arbitrators
[9.5] Foreign counsel
[9.6] Visa requirements
[9.7] Tax
[10] APPENDICES (on CD)
[10.1] Chapter 341 Arbitration Ordinance
[10.2] Arrangement concerning Mutual Enforcement of Arbitral
Awards between the Mainland and the Hong Kong Special
Administrative Region
Part F
Taiwan
Nigel N.T. Li, David W. Su, and Angela Y. Lin
[1] INTRODUCTION
[2] LEGISLATION
[2.1] Arbitration Act
[2.1.1] Taiwan's legal and dispute resolution traditions
[2.1.2] The 1998 Arbitration Act
[2.2] Arbitrability
[2.2.1] Validity of intellectual property rights
[2.2.2] Antitrust and unfair competition
[2.2.3] Consumer protection
[2.2.4] Securities regulation
[2.2.5] Employment claims
[2.3] Arbitration organisations
[2.3.1] Introduction
[2.3.2] Costs
[2.3.3] Logistics
[2.3.4] Neutrality
[3] THE ARBITRATION AGREEMENTS
[3.1] Requirements
[3.2] Types of arbitration agreements
[3.3] Separability/autonomy of the arbitration agreement
[3.4] Effect of arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Selection
[4.3] Number of arbitrators
[4.4] Challenging an arbitrator
[4.5] Formation of tribunal
[5] ARBITRATION PROCEDURE
[5.1] Choice of law in arbitration proceedings
[5.2] Amiable composition
[5.3] Interim relief
[5.4] Fact-finding
[5.5] Hearing
[5.5.1] Necessity of a hearing
[5.5.2] Hearing date
[5.5.3] Location of the hearing
[5.5.4] Records of the hearing
[5.5.5] Fast track
[5.5.6] Concluding the arbitration process
[6] AWARDS
[6.1] Settlement agreements
[6.2] Types of awards
[6.2.1] Interim or interlocutory awards
[6.2.2] Default award
[6.2.3] Final awards
[6.3] Form of the award
[6.4] Revision of awards
[6.5] Setting aside of awards
[6.5.1] Domestic awards
[6.5.2] Foreign-related awards
[6.5.3] Time limits
[6.5.4] Effect of setting aside
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS
[8.1] Definition of a ‘foreign arbitral award’
[8.2] Recognition and enforcement of a foreign arbitral award
[8.3] Enforcement of awards abroad
[9] PRACTICAL INFORMATION
[9.1] Foreign counsel -- rights of appearance
[9.2] Future trends
[10] APPENDICES (on CD)
[10.1] The Arbitration Act of ROC
Part G
Philippines
Custodio O Parlade
[1] INTRODUCTION
[1.1] History of arbitration in the Philippines
[2] LEGISLATION
[2.1] Arbitration laws
[2.2] Application
[2.3] Arbitrability
[2.4] Arbitration organizations
[2.4.1] The CIAC and the Philippine Institute of Construction
Arbitrators and Mediators, Inc. (‘PICAM’)
[2.4.2] The Philippine Dispute Resolution Center, Inc. (‘PDRCI’)
[2.4.3] The International Chamber of Commerce (Philippines),
Inc. (‘ICCP’)
[2.4.4] Requirements for arbitration commissions
[2.4.5] Foreign-related arbitration commissions
[3] ARBITRATION AGREEMENTS
[3.1] Requirements
[3.2] Types of arbitration agreements
[3.3] Who may be parties
[3.4] Pathological clauses
[3.4.1] Separability/ autonomy of the arbitration agreement
[3.4.2] Effect of arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Selection
[4.3] Number of arbitrators
[4.4] Challenging an arbitrator
[4.5] Replacement of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] Preliminary meetings
[5.2] Interim relief
[5.3] Fact-finding
[5.3.1] Written submissions
[5.3.2] Site visits and experts
[5.4] Hearing
[5.4.1] Notice of hearing
[5.4.2] Hearing date
[5.4.3] Location of the hearing
[5.4.4] Required forms
[5.4.5] Records of the hearing
[5.5] Fast track
[5.6] Concluding the arbitration process
[6] AWARDS
[6.1] Settlement agreement
[6.2] Types of awards
[6.2.1] Consent awards
[6.2.2] Interim or interlocutory awards
[6.2.3] Partial awards
[7] FINAL AWARDS
[7.1] Form of the award
[7.2] Contents of the award
[7.3] Issuance and revision of awards
[7.3.1] Scrutiny of awards
[7.3.2] Correction of awards
[7.3.3] Additional awards
[7.4] Setting aside of awards
[7.4.1] Domestic awards
[7.4.2] Foreign-related awards
[7.5] Time limits
[7.6] Effect of setting aside
[8] JUDICIAL ASSISTANCE AND INTERVENTION
[8.1] Recognition and enforcement of foreign arbitral awards
[9] PRACTICAL INFORMATION
[9.1] Visa requirement
[9.2] Foreign counsel
[9.3] Taxation
[10] APPENDICES (on CD)
[10.1] Republic Act No. 9285
(known as “The Alternative Dispute Resolution Act of 2004”)
[10.2] Republic Act No. 876 [SB 318]
(known as “The Arbitration Law”)
[10.3] The UNCITRAL Model Law on International Commercial
Arbitration
[10.4] Executive Order No. 1008 (1985) Creating an Arbitration
Machinery for the Philippine Construction Industry
[10.5] Revised Rules of Procedure Governing Construction
Arbitration
[10.6] New Arbitration Rules of the PDRCI (Philippine Dispute
Resolution Center, Inc.)
Part H
Vietnam
Milton Lawson and Hoang Thi Thanh Thuy
[1] INTRODUCTION
[2] LEGISLATION
[2.1] Arbitration Law
[2.2] Application
[2.3] Arbitration fees
[3] ARBITRATION AGREEMENTS
[3.1] Requirements
[3.2] Types of arbitration agreement
[3.2.1] Contract clause or separate agreement
[3.2.2] Parties to the arbitration agreement
[3.2.3] Separability/autonomy of the arbitration agreement
[3.2.4] Effect of arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Number of arbitrators
[4.3] Selection
[4.4] Challenging and replacement of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] Points of claim
[5.2] Establishment of an arbitration tribunal
[5.3] Defence
[5.4] Counter-claim
[5.5] Interim relief
[5.5.1] Measures for interim relief
[5.5.2] Application for interim relief
[5.5.3] Alteration or rescission of interim relief
[5.6] Fact-finding
[5.7] Hearing
[5.7.1] Hearing date
[5.7.2] Location of the hearing
[5.7.3] Required forms
[5.7.4] Records of the hearing
[6] AWARDS
[6.1] Settlement agreements
[6.2] Form of the award
[6.3] Announcement and revisions of awards
[6.3.1] Announcement of awards
[6.3.2] Correction of awards
[6.4] Setting aside of awards
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS
[8.1] Scope of application of the Civil Procedure Code
[8.2] The enforcement process
[8.2.1] Application to the Ministry of Justice
[8.2.2] Consideration of the application
[8.2.3] Hearing of the application
[8.2.4] Grounds for refusal of recognition and enforcement
[8.2.5] Enforcement
[9] PRACTICAL INFORMATION
[9.1] Visa requirements
[9.2] Foreign counsel
[9.3] Taxation
[10] APPENDICES (on CD)
[10.1] Decree on Commercial Arbitration
No. 25-2004-ND-CP
[10.2] Ordinance on Commercial Arbitration
No. 08-2003-PL-UBTVQH1 1
[10.3] Civil Procedure Code
No. 24/2004/QH11 of June 15, 2004
[10.4] Ordinance on Execution of Civil Judgments
No. 13/2004/PL-UBTVQH11 of January 14, 2004
[10.5] Resolution No. 05/2003/NQ-HDTP of July 31, 2003 of the
Judge’s Council of the Supreme People’s Court Guiding the
Implementation of a Number of Provisions of the Ordinance on
Commercial Arbitration
Part I
Lao
Martin Desautels, Audray Souche and Viengsavanh Phanthaly
[1] INTRODUCTION
[1.1] Domestic arbitration
[1.2] International arbitration
[2] LEGISLATION
[2.1] Arbitration law
[2.2] Application
[2.3] Scope of arbitration
[2.4] Arbitration organization
[2.5] Requirements for arbitration commissions
[2.6] Foreign-related arbitration commissions
[3] ARBITRATION AGREEMENT
[3.1] Requirements
[3.2] Types of arbitration agreements
[3.2.1] Contract clause
[3.2.2] Submission agreement
[3.2.3] Incorporation by reference
[3.2.4] Parties to the arbitration agreement
[3.2.5] Defective arbitration agreements
[3.2.6] Separability/autonomy of the arbitration agreement
[3.2.7] Effect of arbitration agreement
[4] ARBITRATION AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Selection
[4.3] Number of arbitrators
[4.4] Replacement of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] Preliminary meetings
[5.2] Interim relief
[5.3] Fact-finding
[5.3.1] Written submissions
[5.3.2] Site visits and experts
[5.4] Hearing
[5.4.1] Necessity of a hearing
[5.4.2] Hearing date
[5.4.3] Location of the hearing
[5.4.4] Required forms
[5.4.5] Records of the hearing
[5.4.6] Fast track
[5.4.7] Concluding the arbitration process
[6] AWARDS
[6.1] Settlement agreement
[6.2] Types of awards
[6.2.1] Consent awards
[6.2.2] Interim or interlocutory awards
[6.2.3] Partial awards
[6.2.4] Final awards
[6.3] Form of the award
[6.3.1] Content of the awards
[6.4] Issuance and revision of awards
[6.4.1] Scrutiny of awards
[6.4.2] Correction of awards
[6.4.3] Additional awards
[6.5] Setting aside of awards
[6.5.1] Domestic awards
[6.5.2] Foreign-related awards
[6.5.3] Time limits
[6.5.4] Effect of setting aside
[6.5.5] Re-arbitration
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS
[8.1] Enforcement pursuant to domestic law
[8.2] Enforcement pursuant to international agreements
[8.3] Enforcement of awards abroad
[9] PRACTICAL INFORMATION
[9.1] Visa requirements
[9.2] Foreign counsel
[10] APPENDICES (on CD)
[10.1] Law on Resolution of Economic
Disputes
Part J
Cambodia
Rupert Haw
[1] INTRODUCTION
[2] LEGISLATION
[3] ARBITRATION AGREEMENTS
[4] ARBITRATORS AND THE ARBITRATION TRIBUNAL
[5] ARBITRAL PROCEDURES
[6] AWARDS
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS
[9] PRACTICAL INFORMATION
[10] APPENDICES (on CD)
[10.1] The Commercial Arbitration Law of the Kingdom of
Cambodia, 2006
Part K
Thailand
Alastair Henderson, Surapol Srangsomwong and Sui-Lin Teoh
[1] INTRODUCTION
[2] LEGAL AND INSTITUTIONAL FRAMEWORK
[2.1] Arbitration law
[2.1.1] Civil Procedure Code
[2.1.2] Arbitration Act 2002
[2.2] Arbitrability
[2.3] Arbitration organisations
[2.3.1] Thai Arbitration Institute, Alternative Dispute Resolution
Office, Office of the Judiciary
[2.3.2] The Board of Trade of Thailand
[2.3.3] The Arbitration Committee, Department of Insurance
[2.3.4] Other arbitration organisations
[2.4] Requirements for arbitration commissions
[2.5] Foreign and international arbitration commissions/
institutions
[3] ARBITRATION AGREEMENTS
[3.1] Requirements
[3.2] Types of arbitration agreements
[3.2.1] Contract clause
[3.2.2] Submission agreement
[3.2.3] Incorporation by reference
[3.3] Parties to the arbitration agreement
[3.4] Defective arbitration agreements
[3.5] Separability/autonomy of the arbitration agreement
[3.6] Effect and enforcement of the arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Number and selection of arbitrators
[4.3] Challenging an arbitrator
[4.4] Removal and replacement of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] Commencement of arbitration proceedings
[5.1.1] General
[5.1.2] Preliminary mediation meetings
[5.1.3] Time limitation/prescription
[5.2] Preliminary meeting with tribunal
[5.2.1] Further statements of claim and defence
[5.3] Challenges to tribunal’s jurisdiction
[5.4] Interim relief
[5.5] Fact-finding
[5.5.1] Documentary evidence
[5.5.2] Witnesses
[5.5.3] Experts
[5.5.4] Site Visits
[5.6] Trial Hearing
[5.6.1] Necessity for a hearing
[5.6.2] Location and seat
[5.6.3] Hearing date
[5.6.4] Opening statements
[5.6.5] Records of the hearing
[5.7] Default of a party
[5.8] Concluding the arbitration process
[5.8.1] Time limits
[5.8.2] Closing procedures
[6] AWARDS
[6.1] Types of Awards
[6.1.1] Consent awards
[6.1.2] Interim, interlocutory and partial awards
[6.1.3] Final awards
[6.2] Form of the award
[6.3] Content of the award
[6.4] Interest and costs
[6.5] Issuance and revision of awards
[6.6] Additional awards
[6.7] Challenge and setting aside of awards
[6.7.1] Grounds for setting aside
[6.7.2] Time limits
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Obtaining evidence
[7.2] Provisional measures/interim relief
[8] ENFORCEMENT OF AWARDS
[8.1] Procedures for enforcement
[8.2] Requirements for enforceable foreign awards
[8.3] Appeal
[8.4] Enforcement against state entities
[9] PRACTICAL INFORMATION
[9.1] Foreign arbitrators
[9.2] Foreign counsel
[10] APPENDICES (on CD)
[10.1] Arbitration Act B.E. 2545
[10.2] Arbitration Rules, Thai Arbitration Institute, Office of the
Judiciary
[10.3] Civil Procedure Code of Thailand (Sections 210 – 222)
[10.4] The Thai Arbitration Institute, The Code of Ethics for
Arbitrators, 1 March 2003
Part L
Myanmar
Thida Aye and James Finch
[1] INTRODUCTION
[2] LEGISLATION
[2.1] Arbitration Law and Application
[2.2] Arbitrability
[3] ARBITRATION AGREEMENTS
[3.1] Requirements
[3.2] Parties to the arbitration agreement
[3.3] Effect of arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Selection
[4.3] Number of arbitrators
[4.4] Challenging an arbitrator
[4.5] Replacement of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] Arbitration without intervention of a court
[5.2] Arbitration with intervention of a court where there is no
suit pending
[5.3] Arbitration in suits
[6] AWARDS
[6.1] Seeking an opinion of the court
[6.2] Making of the award
[6.3] Effect of an award
[6.4] Types of awards
[6.5] Correction of awards
[6.6] Filing of awards at court
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Interim orders
[7.2] Modifying or remitting of the award
[7.3] Setting aside of awards
[7.4] Judgment and Decree of the court
[7.5] Appeal
[7.6] Enforcement of domestic awards
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS
[9] PRACTICAL INFORMATION
[9.1] Visa requirements
[9.2] Foreign counsel
[9.3] Arbitrators fees and taxation
[10] APPENDICES (on CD)
[10.1] The Arbitration Act, 1944
[10.2] Part XXV-Arbitration–
The Arbitration (Protocol and Convention) Act,
(19th January, 1939)
Part M
Singapore
Michael Hwang SC, Andrew Chan and Renita Sophia Crasta
[1] INTRODUCTION
[1.1] A brief history of arbitration in Singapore
[1.2] Overview of the Singapore legal system and laws
[2] LEGISLATION
[2.1] Principal legislation underlying the dual track system for
arbitrations held in Singapore
[2.2] Territorial scope of the Model Law part of the International
Arbitration Act
[2.3] Domestic legislation giving effect to the international conventions
[3] ARBITRATION AGREEMENTS
[3.1] Basic requirement of writing
[3.2] Incorporation by reference of an arbitration clause
[3.3] Option to arbitrate
[3.4] Arbitrability
[3.5] Rights of third parties
[3.6] Independent existence of an arbitration clause
[3.7] Confidentiality
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Overview
[4.2] Appointment of arbitrator
[4.2.1] Position under the International Arbitration Act
[4.2.2] Position under the Arbitration Act
[4.3] Qualifications of arbitrators
[4.4] Impartiality and independence of the arbitrator
[5] ARBITRAL PROCEDURE
[5.1] Freedom to choose procedure – ad hoc and institutional rules
[5.2] Evidence
[5.3] Procedures for the conduct of arbitration
[5.4] Kompetenz-kompetenz
[5.5] Representation by foreign counsel
[6] AWARDS
[6.1] Types of awards
[6.2] Partial awards
[6.3] Form of award
[6.4] Contents of award
[6.5] Award by consent
[6.6] Correction and interpretation of award
[6.7] Recourse against awards made in Singapore
[6.7.1] Awards made in Singapore under the International
Arbitration Act
[6.7.2] Awards made in Singapore under the Arbitration Act
[6.8] Enforcement of awards made in Singapore
[6.8.1] Awards made in Singapore under the International
Arbitration Act
[6.8.2] Awards made in Singapore under the Arbitration Act
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] A pro-arbitration approach
[7.2] Enforcement of arbitration agreements
[7.2.1] Arbitration under the International Arbitration Act
[7.2.2] Arbitration under the Arbitration Act
[7.3] Curial support in the conduct of arbitration
[7.3.1] Position under the International Arbitration Act
[7.3.2] Position under the Arbitration Act
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS
[9] PRACTICAL INFORMATION
[9.1] Visa requirements
[9.2] Foreign counsel
[9.3] Taxation
[9.4] Singapore International Arbitration Centre (SIAC)
[10] APPENDICES (on CD)
[10.1] Arbitration Act
[10.2] International Arbitration Act
[10.3] Arbitration Rules of the Singapore International Arbitration
Centre
Part N
Malaysia
Dato’ Cecil Abraham
[1] INTRODUCTION
[1.1] Brief legislative history of arbitration in Malaysia
[1.2] Overview of the Malaysian legal system and laws
[2] LEGISLATION
[2.1] Principal legislation
[3] TERRITORIAL SCOPE OF THE 1952 AND 2005 ACT
[3.1] Section 34 of the 1952 Act
[4] DOMESTIC LEGISLATION GIVING EFFECT TO
INTERNATIONAL CONVENTIONS
[5] ARBITRATION AGREEMENTS
[5.1] Basic Requirement of Writing
[5.2] The 2005 Act
[6] INDEPENDENT EXISTENCE OF AN ARBITRATION CLAUSE
[7] ARBITRATORS AND ARBITRAL TRIBUNALS
[7.1] Introduction
[8] APPOINTMENT OF ARBITRATOR
[8.1] The 1952 Act
[8.2] The 2005 Act
[9] QUALIFICATIONS OF ARBITRATORS
[10] IMPARTIALITY AND INDEPENDENCE OF THE ARBITRATOR
[10.1] The 1952 Act
[10.2] The 2005 Act
[11] CHALLENGES
[12] ARBITRAL PROCEDURE
[13] KLRCA AND OTHER ARBITRAL INSTITUTIONS
[14] EVIDENCE
[15] PROCEDURE FOR CONDUCT OF ARBITRATION
[15.1] The 1952 Act
[15.2] The 2005 Act
[16] JURISDICTION
[17] REPRESENTATION BY FOREIGN COUNSEL
[18] AWARDS
[18.1] The 1952 Act
[18.2] The 2005 Act
[19] FORM OF THE AWARD
[19.1] The 1952 Act
[19.2] The 2005 Act
[20] CONTENTS OF THE AWARD
[21] AWARD BY CONSENT
[22] CORRECTION AND INTERPRETATION OF AWARD
[23] RECOURSE AGAINST AWARDS MADE IN MALAYSIA
[23.1] The 1952 Act
[23.2] The 2005 Act
[24] AWARDS MADE IN MALAYSIA UNDER THE 1952 ACT
[25] ENFORCEMENT OF AWARDS MADE IN MALAYSIA
[25.1] The 1952 Act
[25.2] The 2005 Act
[26] ENFORCEMENT OF ARBITRATION AGREEMENTS
[26.1] The 1952 Act
[26.2] The 2005 Act
[27] CURIAL SUPPORT IN THE CONDUCT OF ARBITRATION
[27.1] The 1952 Act
[27.2] The 2005 Act
[28] AMENDMENTS TO THE 2005 ACT
[29] PRACTICAL INFORMATION
[30] TAX
[31] APPENDICES (on CD)
[31.1] Laws of Malaysia Act 646 Arbitration Act 2005
[31.2] Rules for Arbitration of the Kuala Lumpur Regional Centre
for Arbitration
Part O
Indonesia
Karen Mills
[1] INTRODUCTION
[2] LEGISLATION
[2.1] Arbitration law
[2.2] Application
[2.3] Arbitrability
[2.4] Arbitration organisations
[2.5] Requirements for arbitration commissions
[2.6] Foreign-related arbitration commissions
[3] ARBITRATION AGREEMENT
[3.1] Requirements
[3.2] The contract
[3.3] Type of arbitration agreements
[3.3.1] Contract clause
[3.3.2] Submission agreement
[3.3.3] Incorporation by reference
[3.3.4] Parties to the arbitration agreement
[3.3.5] Defective arbitration agreements
[3.3.6] Separability/autonomy of the arbitration agreement
[3.3.7] Effect of the arbitration agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Selection
[4.3] Number of arbitrators
[4.4] Challenging an arbitrator
[4.5] Replacement of arbitrators
[5] ARBITRATION PROCEDURE
[5.1] Preliminary meetings
[5.2] Interim relief
[5.3] Fact-finding
[5.3.1] Written submissions
[5.3.2] Site visits and experts
[5.4] Hearings
[5.4.1] Necessity of a hearing
[5.4.2] Hearing date
[5.4.3] Location of the hearing
[5.4.4] Required forms
[5.4.5] Records of the hearing
[5.4.6] Fast track
[5.4.7] Concluding the arbitration process
[6] AWARDS
[6.1] Settlement agreement
[6.2] Types of award
[6.2.1] Consent award
[6.2.2] Interim or interlocutory awards
[6.2.3] Partial awards
[6.2.4] Final awards
[6.3] Form of the award
[6.3.1] Content of the award
[6.4] Issuance and revision of awards
[6.4.1] Scrutiny of the award
[6.4.2] Correction of awards
[6.4.3] Additional awards
[6.5] Setting aside of awards
[6.5.1] Domestic awards
[6.5.2] Foreign-related awards
[6.5.3] Time limits
[6.5.4] Effect of setting aside
[6.5.5] Re-arbitration
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS
[8.1] Enforcement pursuant to domestic law
[8.2] Enforcement pursuant to international agreements
[8.3] Enforcement of awards abroad
[9] PRACTICAL INFORMATION
[9.1] Visa requirements
[9.2] Foreign counsel
[9.3] Taxation
[10] APPENDICES (on CD)
[10.1] Law No. 30 of 1999 concerning Arbitration and Alternative
Dispute Resolution
[10.2] Elucidation on Law No. 30/1999 concerning Arbitration and
Dispute Settlement Alternative
Part P
India
Fali S Nariman
[1] INTRODUCTION
[2] LEGISLATION
[2.1] General
[2.2] Underlying objective of the 1996 Act
[3] ARBITRATION AGREEMENTS
[3.1] Form and contents of the agreement
[3.2] Parties to the agreement
[3.3] Effect of the agreement
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Qualifications
[4.2] Number of arbitrators
[4.3] Appointment of arbitrators
[4.4] Challenge of arbitrators
[4.5] Termination of the mandate of the arbitral tribunal
[4.6] Pleas as to the arbitral tribunal’s jurisdiction
[4.7] Court assistance to the arbitral tribunal in taking evidence
[5] ARBITRATION PROCEDURE
[5.1] Place of arbitration
[5.2] Time limit for arbitration proceedings
[5.3] Arbitral proceedings in general
[5.4] Evidence
[5.5] Requiring deposits in connection with costs of the arbitration
[6] AWARDS
[6.1] Types of awards
[6.2] Making of the award
[6.3] Form of the award
[6.4] Correction and interpretation of the award and making of
additional award
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Assistance of courts–before or during arbitral proceedings
[7.2] Power of courts to refer parties to arbitration where there is an
arbitration agreement
[7.3] Power of courts before or during arbitral proceedings to grant
interim measures of protection
[8] RECOGNITION AND ENFORCEMENT OF AWARDS
[8.1] General
[8.2] Appeals (on the merits) from an arbitral award
[8.3] Setting aside of arbitral award
[8.3.1] Grounds for setting aside
[8.3.2] Procedure
[8.3.3] Waivers
[8.3.4] Appeals and limitation
[8.3.4.1] From order of court setting aside or refusing to
set aside arbitral awards
[8.3.4.2] Appeals from other orders
[8.3.4.3] Power of the court to extend time with respect
to future disputes provided in the arbitration
agreement which might become time-barred
[9] RECOGNITION AND ENFORCEMENT OF AWARDS: CURRENT
DECISIONS AND PRACTICE
[9.1] Procedure for enforcement of foreign awards
[9.2] Extent of court control of foreign awards
[9.3] Rules of public policy
[10] PRACTICAL INFORMATION
[10.1] Arbitration agreements
[10.1.1] Capacity, mode and manner of entering into arbitration
agreements: this is not provided for in the 1996 Act, but
in the general law
[10.1.2] Recommended arbitration clauses
[10.1.3] Governments and state agencies: practice
[10.1.4] Multi party arbitrations
[10.2] Arbitrators and arbitral tribunals
[10.2.1] Powers of arbitrators – where place of arbitration is in
India or where the applicable law is Indian law
[10.2.2] Appointment of arbitrators in institutional arbitration
[10.2.3] Costs in arbitration proceedings
[10.2.4] Fees of arbitrators
[10.3] Awards
[10.3.1] Internal appeals from arbitral awards
[10.3.2] Awards in foreign currency
[10.3.3] Foreign arbitral awards – conventions and treaties
[10.4] Judicial assistance and intervention
[10.5] Conciliation
[10.5.1] The statutory provisions
[10.5.2] Corresponding amendments in other laws
[11] APPENDICES (on CD)
[11.1] The Arbitration and Conciliation Act, 1996
[11.2] Rules of Arbitration of the Indian Council of Arbitration (as
amended on March 1, 1998)
[11.3] The ICADR (The International Centre for Alternative Dispute
Resolution) Arbitration Rules, 1996
Part Q
Australia/New Zealand
Michael Pryles
[1] INTRODUCTION
[1.1] Background
Australia
New Zealand
[2] LEGISLATION
Australia
New Zealand
[3] ARBITRATION AGREEMENTS
Australia
New Zealand
[3.1] Domain of arbitration
Australia
New Zealand
[3.2] Severability of the arbitral clause
Australia
New Zealand
[3.3] Enforcement of the arbitration agreement
Australia
New Zealand
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
Australia
New Zealand
[5] ARBITRATION PROCEDURE
[5.1] Place of arbitration
Australia
New Zealand
[5.2] Law governing the arbitral proceedings
Australia
New Zealand
[5.3] Procedure
Australia
New Zealand
[5.3.1] Evidence
Australia
New Zealand
[5.3.2] Representation in proceedings
Australia
[5.3.3] Experts
Australia
New Zealand
[5.3.4] Confidentiality
Australia
New Zealand
[5.3.5] Consolidation of arbitral proceedings
Australia and New Zealand
[5.3.6] Law applicable to the substance of the dispute
Australia
[5.3.6.1] Common law
[5.3.6.2] Under the Model Law
[5.3.6.3] Transnational rules (lex mercatoria)
New Zealand
[5.3.7] Amiable composition
Australia
New Zealand
[6] AWARDS
[6.1] Form and content of award
Australia
New Zealand
[6.2] Making of the award
Australia
New Zealand
[6.3] Decision by a majority of arbitral members
Australia
New Zealand
[6.4] Default awards
Australia
New Zealand
[6.5] Settlement
Australia
New Zealand
[6.6] Correction and interpretation of the award
Australia
New Zealand
[6.7] Additional awards
Australia
New Zealand
[6.8] Fees and costs
Australia
New Zealand
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Interim measures of protection
Australia
New Zealand
[7.2] Courts
Australia
New Zealand
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS
[8.1] Recognition and enforcement
Australia
New Zealand
[8.2] Defences to the enforcement of an award
Australia
[8.2.1] Incapacity
[8.2.2] Invalidity of the arbitration agreement
[8.2.3] Lack of notice or inability to present a case
[8.2.4] Award outside submission
[8.2.5] Improper composition of the arbitral authority or
improper arbitral procedure
[8.2.6] Award set aside or not yet binding
[8.2.7] Subject matter not arbitrable under the lex fori
[8.2.8] Enforcement contrary to public policy
[8.2.9] Adjournment where there is an application to set aside the
award at the seat
New Zealand
[8.3] Interim awards
Australia
[9] PRACTICAL INFORMATION
[9.1] Arbitral institutions
Australia
New Zealand
[9.2] Tax Issues for foreign arbitrators
[9.3] Visa requirements for arbitrators working in Australia
[10] APPENDICES (on CD)
[10.1] (Australia) International Arbitration Act 1974
[10.2] (New Zealand) Arbitration Act 1996
(includes Geneva and New York Conventions)
