Questions and Answers on International Q4: What is an arbitration agreement?
Commercial Arbitration (ICA) with Legal A: It is a contract where parties agree to resolve
Basis disputes through arbitration instead of litigation.
🔹 Legal Basis:
1. General Questions on ICA • UNCITRAL Model Law, Article 7 –
Defines an arbitration agreement.
Q1: What is International Commercial • New York Convention, Article II –
Arbitration (ICA)? Requires arbitration agreements to be
A: ICA is a method of resolving commercial recognized and enforced.
disputes between parties from different countries
through an independent tribunal instead of courts. Q5: Can an arbitration agreement be
challenged?
A: Yes, on grounds such as fraud, incapacity, or
🔹 Legal Basis:
illegality.
• UNCITRAL Model Law on International
Commercial Arbitration (1985, amended 🔹 Legal Basis:
in 2006)
• New York Convention on the Recognition • UNCITRAL Model Law, Article 8(1) –
and Enforcement of Foreign Arbitral Courts must refer parties to arbitration
Awards (1958) unless the agreement is invalid.
Q2: What is the main purpose of ICA? Q6: What happens if a party refuses to arbitrate
A: The main purpose is to provide a neutral, despite an agreement?
efficient, and enforceable method of resolving A: The other party can ask a court to compel
cross-border commercial disputes. arbitration and dismiss any related court case.
🔹 Legal Basis: 🔹 Legal Basis:
• Republic Act No. 9285 (Alternative • New York Convention, Article II(3) –
Dispute Resolution Act of 2004), Section Requires courts to enforce arbitration
19 – Encourages arbitration as an alternative agreements.
to litigation.
Q3: How does ICA differ from domestic
arbitration? 3. Selection of Arbitrators
A: ICA involves parties from different countries
and is governed by international rules, whereas Q7: How are arbitrators appointed?
domestic arbitration involves parties from the same A:
country.
• Single arbitrator: Chosen by agreement.
🔹 Legal Basis: • Three-member tribunal: Each party
appoints one, and the two arbitrators select
• UNCITRAL Model Law, Article 1 – the third.
Defines when arbitration is "international."
🔹 Legal Basis:
• UNCITRAL Model Law, Articles 10-11 –
2. Arbitration Agreement & Jurisdiction Governs arbitrator appointments.
Q8: Can an arbitrator be removed? • The law chosen by the parties in their
A: Yes, if they show bias, conflict of interest, or arbitration agreement.
misconduct. • If no law is specified, arbitrators decide
based on international principles or conflict
🔹 Legal Basis: of laws.
• UNCITRAL Model Law, Article 12 – Sets 🔹 Legal Basis:
grounds for arbitrator removal.
• UNCITRAL Model Law, Article 28 –
Arbitrators apply the law chosen by the
parties.
4. Arbitration Proceedings
Q12: Can arbitrators decide based on fairness
Q9: What are the main steps in ICA? instead of strict legal rules?
A: A: Yes, if the arbitration agreement allows
decision-making based on equity (ex aequo et
1. Notice of Arbitration – The claimant bono).
notifies the respondent.
2. Selection of Arbitrators – Arbitrators are 🔹 Legal Basis:
appointed.
3. Preliminary Hearings – Rules and • UNCITRAL Model Law, Article 28(3) –
procedures are set. Arbitrators can decide based on fairness if
4. Evidence Submission – Documents and authorized.
witness statements are exchanged.
5. Hearings – Oral arguments and cross-
examinations occur.
6. Final Award – The arbitrators issue a 6. Arbitration Award & Enforcement
binding decision.
Q13: What makes an arbitral award valid?
🔹 Legal Basis: A: It must be:
• UNCITRAL Model Law, Articles 18-26 – • Written and signed by the arbitrators.
Governs arbitration proceedings. • Clear and reasoned, explaining the
decision.
Q10: Are ICA proceedings confidential? • Final and binding, unless challenged under
A: Yes, unless the parties agree otherwise or law limited grounds.
requires disclosure.
🔹 Legal Basis:
🔹 Legal Basis:
• UNCITRAL Model Law, Article 31 –
• Republic Act No. 9285, Section 23 – Governs arbitral awards.
Ensures arbitration confidentiality.
Q14: How is an ICA award enforced
internationally?
A: Through the New York Convention (1958),
5. Governing Law and Decision-Making which over 160 countries recognize.
Q11: What law applies in ICA? 🔹 Legal Basis:
A:
• New York Convention, Article III – • Doctrine of Estoppel (Common Law
Requires states to enforce foreign arbitral Principle)
awards.
9. ICA in Practice
7. Judicial Review & Exceptions
Q19: What are major institutions handling ICA?
Q15: Can courts overturn an arbitral award? A:
A: Generally no, but courts may set aside an award
for: • ICC (International Chamber of
Commerce)
• Lack of jurisdiction • SIAC (Singapore International
• Fraud or corruption Arbitration Centre)
• Serious procedural irregularities • LCIA (London Court of International
• Violation of public policy Arbitration)
🔹 Legal Basis: 🔹 Legal Basis:
• UNCITRAL Model Law, Article 34 – • Institutional rules, e.g., ICC Arbitration
Lists grounds for setting aside an award. Rules, SIAC Rules
Q16: Can a court refuse to enforce an ICA Q20: What is an emergency arbitrator?
award? A: An arbitrator appointed quickly to issue urgent
A: Yes, under the New York Convention, Article orders before the full arbitration starts.
V, for reasons like:
🔹 Legal Basis:
• Invalid arbitration agreement.
• Party was not given proper notice. • ICC Arbitration Rules, Article 29
• Award conflicts with public policy.
10. Future of ICA
8. Waiver & Estoppel in ICA
Q21: What trends are shaping the future of
Q17: Can a party waive its right to object to ICA?
arbitration? A:
A: Yes, if a party actively participates without
objecting, they waive their right to challenge • Online arbitration & virtual hearings
arbitration later. • AI-assisted dispute resolution
• Stronger enforcement mechanisms
🔹 Legal Basis:
🔹 Legal Basis:
• UNCITRAL Model Law, Article 4 –
Failure to object promptly results in waiver. • UNCITRAL Model Law, 2021
Amendments
Q18: What is estoppel in ICA?
A: It prevents a party from denying arbitration if
they previously acted as if they accepted it.
🔹 Legal Basis:
Lack of Jurisdiction in International • One party was forced to sign the arbitration
Commercial Arbitration (ICA) Proceedings agreement under duress. The tribunal lacks
jurisdiction because the agreement is void.
In ICA, jurisdiction refers to the arbitral tribunal’s
authority to hear and decide a dispute. A tribunal 3. Dispute is Outside the Scope of the
lacks jurisdiction when it does not have the legal Arbitration Clause
power to resolve the case. Below are the key
grounds for lack of jurisdiction in ICA 🔹 Explanation: Arbitration agreements specify
proceedings: which disputes can be arbitrated. If a dispute is not
covered, the tribunal lacks jurisdiction.
1. No Valid Arbitration Agreement
🔹 Legal Basis:
🔹 Explanation: Arbitration is consensual,
meaning parties must have a valid agreement to • UNCITRAL Model Law, Article 16(1) –
arbitrate. If there is no written agreement or the Arbitrators decide their own jurisdiction but
agreement is unclear, the tribunal lacks jurisdiction. must respect contract limits.
• New York Convention, Article V(1)(c) –
🔹 Legal Basis: Enforcement can be refused if an award
decides issues outside the arbitration clause.
• UNCITRAL Model Law, Article 7 – An
arbitration agreement must be in writing. Example:
• New York Convention, Article II(1) –
Requires a written arbitration agreement for • A contract allows arbitration for
enforcement. "commercial disputes" only. A party tries to
arbitrate a criminal fraud claim, which is
Example: outside the agreed scope.
• A contract refers to arbitration but does not 4. Non-Arbitrable Subject Matter
specify the rules or seat of arbitration. A
party disputes the validity, arguing there was 🔹 Explanation: Some disputes cannot be
no clear agreement. arbitrated because they involve public policy,
criminal law, or government regulations.
2. Arbitration Agreement is Invalid or
Unenforceable 🔹 Legal Basis:
🔹 Explanation: Even if there is an agreement, it • UNCITRAL Model Law, Article
may be invalid due to fraud, coercion, incapacity, or 34(2)(b)(i) – Awards can be set aside if the
illegality. dispute is non-arbitrable.
• New York Convention, Article V(2)(a) –
🔹 Legal Basis: States can refuse arbitration if a dispute is
non-arbitrable under national law.
• UNCITRAL Model Law, Article 8(1) –
Courts can refuse arbitration if the Example:
agreement is invalid.
• New York Convention, Article V(1)(a) – • A dispute over criminal fraud or family
Awards can be denied enforcement if the law (e.g., divorce, child custody) is brought
agreement is void. to ICA. Since these are non-arbitrable, the
tribunal lacks jurisdiction.
Example:
5. Wrong Seat of Arbitration 7. State Immunity (Sovereign States as
(Jurisdictional Issues) Parties)
🔹 Explanation: The seat (legal place) of 🔹 Explanation: If a dispute involves a sovereign
arbitration determines the applicable arbitration state, the state may invoke immunity from
law. If the arbitration is conducted in the wrong arbitration, unless it has expressly waived this
jurisdiction, the tribunal may lack authority. right.
🔹 Legal Basis: 🔹 Legal Basis:
• UNCITRAL Model Law, Article 20 – The • United Nations Convention on
arbitration seat determines governing Jurisdictional Immunities of States and
procedural laws. Their Property (2004)
• New York Convention, Article V(1)(d) – • Philippine Law: Republic Act No. 9285
An award can be denied enforcement if (ADR Act) recognizes arbitration but states
arbitration was not conducted under the may still invoke immunity.
correct procedural rules.
Example:
Example:
• A foreign investor sues a government
• The contract specifies Singapore as the agency in arbitration, but the state refuses to
arbitration seat, but proceedings are held in participate, claiming immunity. If there was
another country. A party challenges no express waiver, the tribunal lacks
jurisdiction based on this error. jurisdiction.
6. A Party Did Not Properly Consent or 8. Parallel Court Proceedings (Lis Pendens)
Was Not Notified
🔹 Explanation: If a case is already pending in a
🔹 Explanation: If one party was not given proper national court, the court may rule that arbitration is
notice of arbitration, the tribunal lacks jurisdiction. unnecessary, affecting jurisdiction.
🔹 Legal Basis: 🔹 Legal Basis:
• UNCITRAL Model Law, Article • UNCITRAL Model Law, Article 8(2) –
34(2)(a)(ii) – Awards can be set aside if a Courts can refuse arbitration if the matter is
party was not given proper notice. already under court jurisdiction.
• New York Convention, Article V(1)(b) – • New York Convention, Article V(1)(e) – If
Courts can refuse enforcement if a party was a court sets aside an award, it cannot be
not properly informed. enforced elsewhere.
Example: Example:
• A company is sued in arbitration but was • A company files a lawsuit in a national court
never notified of the proceedings. The despite an arbitration clause. The court
tribunal’s decision is invalid due to lack of refuses to allow arbitration to proceed.
jurisdiction.
How Can Jurisdictional Issues Be
Resolved?
1. Competence-Competence Doctrine –
Arbitrators can decide their own jurisdiction.
o Legal Basis: UNCITRAL Model
Law, Article 16(1).
2. Court Intervention – National courts can
review jurisdiction challenges.
3. Party Agreements – If parties agree, they
can submit disputes even if jurisdiction is
uncertain.
Conclusion
Jurisdiction is the foundation of arbitration. If an
arbitral tribunal lacks jurisdiction due to invalid
agreements, non-arbitrable matters, wrong seat,
state immunity, or lack of consent, the
proceedings become void. Courts and arbitral
tribunals must carefully assess jurisdiction before
proceeding.
Interim Measures in International 1. Right to Choose Counsel – Parties have the
Commercial Arbitration (ICA) right to select their own legal
representatives, including lawyers from
📌 Definition: different jurisdictions.
Interim measures in ICA are temporary reliefs 2. No Strict Requirement for Lawyers –
ordered by an arbitral tribunal before the final Unlike court litigation, ICA does not always
award to protect the rights of the parties and ensure require lawyers. Some parties may represent
the enforceability of the final decision. themselves or appoint non-lawyer
representatives.
3. Applicable Laws and Rules –
📌 Legal Basis: Representation is governed by:
o Arbitration agreements between
• UNCITRAL Model Law on International parties
Commercial Arbitration (Article 17) – o Arbitration rules of institutions (e.g.,
Grants tribunals the power to issue interim ICC, SIAC, LCIA, UNCITRAL)
measures. o National laws on legal practice and
• New York Convention (1958) – Allows arbitration
recognition and enforcement of arbitral 4. Role of Legal Representatives:
decisions, including interim measures. o Draft and submit legal pleadings
o Present arguments and evidence
📌 Examples of Interim Measures in ICA: o Negotiate settlements
o Ensure compliance with arbitration
1. Preservation of Evidence – Ordering a rules
party to keep important documents or data. 5. Ethical Considerations:
2. Asset Freezing – Preventing a party from o Must follow professional conduct
transferring or hiding assets. rules (e.g., confidentiality, conflict of
3. Security for Costs – Requiring a party to interest)
deposit money to cover legal expenses. o Some arbitration rules impose
4. Injunctions – Stopping a party from taking sanctions for misconduct by legal
certain actions (e.g., stopping the sale of representatives.
disputed property).
📌 Legal Basis:
📌 Enforceability:
• UNCITRAL Model Law on ICA (Article
• Some countries allow courts to enforce 18) – Ensures parties have a fair opportunity
interim measures granted by arbitral to present their case, including legal
tribunals. representation.
• In some cases, parties may request judicial • New York Convention (1958) –
assistance for enforcement. Recognizes and enforces arbitration
agreements and awards, including those
Legal Representation in International involving legal representatives
Commercial Arbitration (ICA)
📌 Definition:
Legal representation in ICA refers to the role of
lawyers or legal counsel in advising, advocating,
and representing parties during arbitration
proceedings.
📌 Key Points:
Rules of Procedure in International 📌 Legal Basis: UNCITRAL Model Law (Article
Commercial Arbitration (ICA) 16)
📌 Definition:
4. Conduct of Arbitration Proceedings
The Rules of procedure in ICA govern how
arbitration proceedings are conducted, ensuring • Proceedings may be oral or written,
fairness, efficiency, and enforceability of arbitral depending on the agreement.
awards. These rules are typically set by arbitration • Arbitrators control the presentation of
institutions or agreed upon by the parties. evidence, witness testimony, and
arguments.
• Parties have the right to legal
representation but may also represent
Key Procedural Rules in ICA themselves.
1. Initiation of Arbitration 📌 Legal Basis: UNCITRAL Model Law (Article
19 & 24)
• The claimant files a Notice of Arbitration
stating the dispute and relief sought.
• The respondent submits a Response to
Arbitration within a specified period. 5. Interim Measures
• Arbitration fees and administrative costs are
paid. • Arbitrators can issue temporary reliefs
(e.g., freezing assets, preserving evidence).
📌 Legal Basis: UNCITRAL Model Law (Article 3 • Some measures may require court
& 4) enforcement.
📌 Legal Basis: UNCITRAL Model Law (Article
17)
2. Appointment of Arbitrators
• Parties may agree on a sole arbitrator or a
tribunal (panel of three arbitrators). 6. Issuance of Arbitral Award
• If parties cannot agree, an arbitration
institution or court appoints the arbitrators. • The award must be in writing, signed, and
state reasons for the decision.
📌 Legal Basis: UNCITRAL Model Law (Article • The award is final and binding unless
10 & 11) parties agree on an appeal mechanism.
📌 Legal Basis: UNCITRAL Model Law (Article
31 & 32)
3. Jurisdiction of the Tribunal
• The tribunal determines its own jurisdiction
(Kompetenz-Kompetenz principle). 7. Recognition and Enforcement of Awards
• Challenges to jurisdiction must be raised at
the start of proceedings. • ICA awards are enforceable
internationally under the New York
Convention (1958).
• A party may oppose enforcement on limited
grounds (e.g., lack of due process, public
policy violation).
📌 Legal Basis: New York Convention (Article V)
8. Challenge or Annulment of the Award
• ICA awards can only be set aside in
exceptional cases (e.g., fraud, lack of
jurisdiction).
• Courts have limited power to review
arbitral decisions.
📌 Legal Basis: UNCITRAL Model Law (Article
34)
Common Arbitration Institutions & Their
Rules
1. International Chamber of Commerce
(ICC) Rules
2. Singapore International Arbitration
Centre (SIAC) Rules
3. London Court of International
Arbitration (LCIA) Rules
4. UNCITRAL Arbitration Rules
