Commercial Dispute Resolution - All the notions I am missing
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Krombach v. Bamberski
Krombach v. Bamberski regards the:
(domestic enforcement of a foreign judgment (within the then European Community) and right to a fair trial in relation to the domestic enforcement of a foreign judgment)
And whether the domestic enforcement of a foreign judgment within the EU can be denied on the basis of the public policy of the Member State in which enforcement is sought.
The fact that a foreign judgment was made in absentia for an international offence in the court of another Contracting State party to the Convention may be taken into account by the court of the State where enforcement is sought.
§37: Recourse to the public policy clause in Article 27, point 1, of the Convention can be envisaged only where recognition or enforcement of the judgment delivered in another Contracting State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it infringes a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order.”
[...]
§45: “The answer to the second question must therefore be that the court of the State in which enforcement is sought can, with respect to a defendant domiciled in that State and prosecuted for an intentional offence, take account, in relation to the public-policy clause in Article 27, point 1, of the Convention, of the fact that the court of the State of origin refused to allow that person to have his defence presented unless he appeared in person.”
Conclusion of the ECJ:
“Article 27, point 1 of the Convention […] must be interpreted as follows:
“(1) The court of the State in which enforcement is sought cannot, with respect to a defendant domiciled in that State, take account, for the purposes of the public-policy clause in Article 27, point 1, of that Convention, of the fact, without more, that the court of the State of origin based its jurisdiction on the nationality of the victim of an offence.”
“(2) The court of the State in which enforcement is sought can, with respect to a defendant domiciled in that State and prosecuted for an intentional offence, take account, in relation to the public-policy clause in Article 27, point 1, of that Convention, of the fact that the court of the State of origin refused to allow that person to have his defence presented unless he appeared in person.”
Steel and Morris v. UK
The case of Steel and Morris v. UK deals with the principle of Equality of Arms.
What did the ECtHR conclude?
The right to a fair trial is not absolute!!!
But there are three factors you need to consider in each case:
The importance of what is at stake for the applicant
The Court stated that there was quite a lot at stake for Steel and Morris
How complex is the law
The Court stated that in this specific case, where every case was to be looked at again, anew, the relevant UK law was quite complex
Why?
Well, the case was more than 700 pages long, with long witness statements, and the judgment of the court of appeal was over 300 pages
As this was the case, the law itself was quite complex
What is the capacity of the applicant? (are they rich and educated, or poor?)
Steel and Morris were able to speak up for themselves and were quite educated
Why is American pre-trial discovery widely criticised?
American pre-trial discovery is widely criticised, also due to its breadth
This broad scope is a major obstacle to global procedure harmonisation
Why is American pre-trial discovery so broad?
Notice pleading - American civil procedure does not require detailed factual assertions or specific evidence presentation in pleadings
Unrestricted access to evidence: Parties can obtain evidence under the control of opponents or third parties
What characterizes European pre-trial discovery?
European legal systems, in contrast, impose strict relevancy requirements early in the dispute, limiting fact-finding.
In fact, civil law systems follow fact pleading which requires detailed assertions and specified evidence in the pleading phase.
Different Standards of Proof between Civil and Common Law
Common law uses “preponderance of the evidence” (balance of probabilities) or “beyond reasonable doubt” (for criminal cases).
Civil law uses ‘l’intime conviction du juge’ (deep-seated conviction of the judge).
International arbitration typically follows the common law approach except in cases involving fraud, bribery or corruption.
Different Standards in Documentary Evidence between Civil and Common Law
Common law allows broad discovery,
Civil law requires specific document identification
International arbitration generally follows the civil law approach to control costs and time
Primary importance is placed on documentary evidence, with oral testimony playing a secondary role.
Difference in Standards of Examining Witnesses between Civil and Common Law
Common law follows an adversarial approach (direct and cross-examinations)
Civil law follows an inquisitorial approach (arbitrator-driven questioning)
International arbitration typically permits cross-examination but discourages aggressive tactics.
Menini Case Judgment Criteria
An ECJ case about the obligation to apply mitigation to a dispute as a preliminary statutory requirement for access to court litigation。
c.61:
“Accordingly, the requirement for a mediation procedure as a condition for the admissibility of proceedings before the courts may prove compatible with the principle of effective judicial protection, provided that
that procedure does not result in a decision which is binding on the parties,
that it does not cause a substantial delay for the purposes of bringing legal proceedings,
that it suspends the period for the time-barring of claims
that it does not give rise to costs — or gives rise to very low costs — for the parties,
and only if electronic means are not the only means by which the settlement procedure may be accessed
and interim measures are possible in exceptional cases where the urgency of the situation so requires
(see, to that effect, judgment of 18 March 2010, Alassini and Others, C317/08 to C320/08, EU:C:2010:146, paragraph 67).”
Harvard School (Interest-based theory)
Separate the people from the problem
Focus on interests, not on positions
Invent options for mutual gain
Use objective criteria
Grounds for not granting leave to enforcement of a mediation settlement agreement - Article 5 Singapore Convention
S.A. is null and void (Art. 5(1)(b)(i))
Breach of mediation standards by mediator (Art. 5(1)(e))
Doubts to mediator’s impartiality and independence (Art. 5(1)(f))
Contrary to public policy (Art. 5(2)(a))
Subject matter not capable of settlement by mediation (Art. 5(2)(b))
Feehily Criteria to deciding on which ADR methods is best
Transaction costs
Satisfaction with the outcome - including whether, the outcome was deemed fair by the parties
Effect on the relationship between the parties
Recurrence of the dispute
Transaction Costs (Feehily)
“Transaction costs include the time, money, emotional energy, resources consumed and destroyed and opportunities lost that disputing requires. For example, in commercial disputes the costs include legal fees, management time and the effect that litigating the dispute may have on the party’s ability to continue operating normally”
Satisfaction with the outcome (Feehily)
“A party’s satisfaction with the outcome of a particular process depends on two things:
whether the outcome satisfies the interests that led that party to make or reject the claim in the first place,
and the perceived fairness of the outcome and the process.
In assessing fairness, many factors are relevant to a disputing party including:
the opportunities afforded to express themselves,
their control over whether to accept or reject the outcome,
their level of participation in shaping the outcome
and the perceived fairness of the third party’s involvement.”
Effect on the relationship between the parties (Feehily)
“The effect of the process on the relationship between the disputing parties is particularly important where the parties have ongoing business dealings, where the process adopted may even enhance the relationship. This is frequently cited as one of the advantages of mediating commercial disputes, as commercial parties are more likely to engage in business together in the future if the process has facilitated a better understanding of each other’s needs and interests. An amicable resolution through a private process is also more likely to enhance the relationship than a determinative outcome from a public court.”
Recurrence (Feehily)
Effectiveness of Dispute Resolution: A resolution must endure to be effective; recurrence of the dispute suggests ineffectiveness.
Interrelated Criteria for Effectiveness:
Dissatisfaction with outcomes can strain relationships.
Strained relationships can lead to recurring disputes.
Recurring disputes increase transaction costs.
Focus on Interests Over Rights or Power:
Resolving disputes based on parties' interests reduces costs, improves satisfaction, and minimizes recurrence.
Understanding Dispute Resolution Options:
Selection and design should align with the dispute's nature and parties' needs.
Parties must understand and accept the chosen process.
Different Methods for Different Needs:
Mediation: Requires full cooperation and understanding from parties.
Med-Arb: Suitable when parties want a negotiated settlement with finality.
Arb-Med: Helps parties assess strengths and weaknesses before settlement.
Mini-Trial: A hybrid of adjudicative and interest-based processes, useful in corporate disputes.
No One-Size-Fits-All Approach:
An effective justice system must offer multiple resolution processes, including litigation and mediation.
Proper assessment is needed to select the appropriate alternative dispute resolution (ADR) method.
Critical Consideration: Each dispute should be resolved using the most suitable process or court adjudication.
(Summary made with ChatGPT)
Two Types of Validity for Arbitral Agreement
Formal Validity
Substantive Validity
Formal Validity of an Arbitration Agreement
Formal validity is ruled over by the lex arbitri
It deals with whether the agreement is:
In writing
Signed
Substantive Validity of an Arbitration Agreement
Substantive validity asks whether the agreement was:
Drawn up with Freely given consent
And whether the parties brought an issue which can be subject to a dispute in arbitration
Key Elements of an Arbitration Agreement
1. Choice of Arbitrators (1 or 3, how are they appointed?)
2. Choice of procedural law (lex arbitri)
3. Choice of Language of the arbitration procedure (I.e. preferably a neutral language which both parties will understand)
Considerations in Choosing Arbitrators
In determining whether to have one or three arbitrators, for example, a party should consider:
How complicated the transaction is,
The likelihood that a dispute will arise
And the estimated value of the potential dispute
Advantage of One Arbitrator
Simpler for less financially valuable disputes (e.g. below $1 Million)
More cost effective
Easier to plan
Advantages of Three Arbitrators
Preferred for complex, high-value disputes
Ensure diverse perspectives -> particularly in cross-border cases
Considerations in Choosing Arbitration procedural law
Pro-arbitration national legal framework (e.g. cities like London, Paris, Geneva and Singapore)
New York Convention signatory states (makes it easier to enforce arbitral award)
Neutrality -> choosing a country which is not linked to either party is often preferred
Infrastructure and stability -> Ensuring accessibility and security (I.e. don’t go arbitrate where you wouldn’t go on holiday)
Choice of Language - preferably a neutral language which all parties understand!
What does the lex arbitri rule over?
The formal validity of the arbitration agreement (i.e. whether it is in writing and signed, whereas substantive validity deals with: whether it was freely consented to and agreed upon by the parties, whether the dispute subject is arbitrable)
The extent of court intervention in arbitration
Procedural matters such as arbitrator appointments and interim measures.
When can a party raise the question of what law applies to the validity of the arbitration agreement? (i.e. law which applies to the arbitration agreement)
The question of what law applies to determine the validity of the arbitration agreement can be raised at any time.
There is a precedent to giving preference to the law of the seat of arbitration (the lex arbitri) where the parties have a dispute on the validity of an arbitration agreement, if the law of the seat of arbitration considers the agreement to be valid under its law.
Which UNCITRAL Model Law provision rules over the validity of an arbitration agreement?
For questions on the validity of an arbitration agreement we can refer to Article 34(2) UNCITRAL Model Law
What law decides whether a certain dispute is arbitrable?
Deciding whether the subject of a dispute is arbitrable is a matter decided by the law of the seat of arbitration
What does ‘dépeçage’ mean?
where parties choose a different law to apply to a different part of their contract. Different aspects of a contract may be governed by different laws.
What does ‘renvoi’ mean?
It occurs when a chosen law refers to another legal system’s conflicts rules (‘It occurs when the forum applies the conflicts of laws rules of the law chosen by the parties to select a law different from that designated by the parties - i.e. when the law chosen by the parties sends them to refer the case to another aw which may be more appropriate to govern the transaction)
Most modern rules exclude this, which is why when parties draft an arbitration agreement they will usually add “without regard to the laws and rules governing conflicts of laws [of the chosen law of the seat]”
In which instances can a party to arbitration challenge an award?
1. Set-aside action in the seat of arbitration
2. Resistance to enforcement in the State where the enforcement is sought (normally this is where the assets sought after by the award are)
In most cases, these actions happen in different jurisdictions, but sometimes, if both the arbitration procedure and the assets are located in the same country, parties may hear both actions
Grounds for setting aside an arbitration award
There are jurisdictional and procedural grounds for setting aside an award
Other grounds, which State Courts may independently assess include:
the arbitrability of the dispute at hand
violations of public policy of the law of the seat of arbitration
For this exam, refer to Article 34 UNCITRAL Model Law
What happens if a challenge to an arbitral award is successful?
If an award is set aside, it is null and void
In that case:
If the arbitration agreement is invalid, parties may litigate
If the award is set aside for procedural reasons, arbitration may be restarted
There are disagreements among jurisdictions as to what to do if an arbitration award is set aside
Dutch Law: If an award is set aside for lack of a valid arbitration agreement, court jurisdiction revives automatically.
English Arbitration Act, Section 68(3)(c): A court should remit a case to the tribunal for reconsideration instead of setting aside unless inappropriate.
German Law: A court may remit the case to the tribunal, and the arbitration agreement remains valid unless parties agree otherwise.
U.S. Revised Uniform Arbitration Act (RUAA): If an award is set aside due to corruption, fraud, or arbitrator bias, rehearing must be before a new arbitrator. If the issue is procedural, the rehearing may be before the same tribunal.
Relevant UNIDROIT / ALI Principles
(1) - Independence, Impartiality, and Qualifications of the Court and Its Judges
(3) - Procedural Equality of the Parties
(5) - Due Notice and Right to Be Heard
(9) - Structure of the Proceedings
(16) - Access to Information and Evidence
(19) - Oral and Written Presentations
(21) - Burden and Standard of Proof
(22) - Responsibility for Determinations of Fact and Law
Principle 1 UNIDROIT
1. Independence, Impartiality, and Qualifications of the Court and Its Judges
1.1 The court and the judges should have judicial independence to decide the dispute according to the facts and the law, including freedom from improper internal and external influence.
1.2 Judges should have reasonable tenure in office. Nonprofessional members of the court should be designated by a procedure assuring their independence from the parties, the dispute, and other persons interested in the resolution.
1.3 The court should be impartial. A judge or other person having decisional authority must not participate if there is reasonable ground to doubt such person’s impartiality. There should be a fair and effective procedure for addressing contentions of judicial bias.
1.4 Neither the court nor the judge should accept communications about the case from a party in the absence of other parties, except for communications concerning proceedings without notice and for routine procedural administration. When communication between the court and a party occurs in the absence of another party, that party should be promptly advised of the content of the communication.
1.5 The court should have substantial legal knowledge and experience.
Principle 3 UNIDROIT
3. Procedural Equality of the Parties
3.1 The court should ensure equal treatment and reasonable opportunity for litigants to assert or defend their rights.
3.2 The right to equal treatment includes avoidance of any kind of illegitimate discrimination, particularly on the basis of nationality or residence. The court should take into account difficulties that might be encountered by a foreign party in participating in litigation.
3.3 A person should not be required to provide security for costs, or security for liability for pursuing provisional measures, solely because the person is not a national or resident of the forum state.
3.4 Whenever possible, venue rules should not impose an unreasonable burden of access to court on a person who is not a habitual resident of the forum.
Principle 5 UNIDROIT
5. Due Notice and Right to Be Heard
5.1 At the commencement of a proceeding, notice, provided by means that are reasonably likely to be effective, should be directed to parties other than the plaintiff. The notice should be accompanied by a copy of the complaint or otherwise include the allegations of the complaint and specification of the relief sought by plaintiff. A party against whom relief is sought should be informed of the procedure for response and the possibility of default judgment for failure to make timely response.
5.2 The documents referred to in Principle 5.1 must be in a language of the forum, and also a language of the state of an individual’s habitual residence or a jural entity’s principal place of business, or the language of the principal documents in the transaction. Defendant and other parties should give notice of their defenses and other contentions and requests for relief in a language of the proceeding, as provided in Principle 6.
5.3 After commencement of the proceeding, all parties should be provided prompt notice of motions and applications of other parties and determinations by the court.
5.4 The parties have the right to submit relevant contentions of fact and law and to offer supporting evidence.
5.5 A party should have a fair opportunity and reasonably adequate time to respond to contentions of fact and law and to evidence presented by another party, and to orders and suggestions made by the court.
5.6 The court should consider all contentions of the parties and address those concerning substantial issues.
5.7 The parties may, by agreement and with approval of the court, employ expedited means of communications, such as telecommunication.
5.8 An order affecting a party’s interests may be made and enforced without giving previous notice to that party only upon proof of urgent necessity and preponderance of considerations of fairness. An ex parte order should be proportionate to the interests that the applicant seeks to protect. As soon as practicable, the affected party should be given notice of the order and of the matters relied upon to support it, and should have the right to apply for a prompt and full reconsideration by the court.
Principle 9 UNIDROIT
9. Structure of the Proceedings
9.1 A proceeding ordinarily should consist of three phases: the pleading phase, the interim phase, and the final phase.
9.2 In the pleading phase the parties must present their claims, defenses, and other contentions in writing, and identify their principal evidence.
9.3 In the interim phase the court should if necessary:
9.3.1 Hold conferences to organize the proceeding;
9.3.2 Establish the schedule outlining the progress of the proceeding;
9.3.3 Address the matters appropriate for early attention, such as questions of jurisdiction, provisional measures, and statute of limitations (prescription);
9.3.4 Address availability, admission, disclosure, and exchange of evidence;
9.3.5 Identify potentially dispositive issues for early determination of all or part of the dispute; and
9.3.6 Order the taking of evidence.
9.4 In the final phase evidence not already received by the court according to Principle 9.3.6 ordinarily should be presented in a concentrated final hearing at which the parties should also make their concluding arguments.
Principle 16 UNIDROIT
16. Access to Information and Evidence
16.1 Generally, the court and each party should have access to relevant and nonprivileged evidence, including testimony of parties and witnesses, expert testimony, documents, and evidence derived from inspection of things, entry upon land, or, under appropriate circumstances, from physical or mental examination of a person. The parties should have the right to submit statements that are accorded evidentiary effect.
16.2 Upon timely request of a party, the court should order disclosure of relevant, nonprivileged, and reasonably identified evidence in the possession or control of another party or, if necessary and on just terms, of a nonparty. It is not a basis of objection to such disclosure that the evidence may be adverse to the party or person making the disclosure.
16.3 To facilitate access to information, a lawyer for a party may conduct a voluntary interview with a potential nonparty witness.
16.4 Eliciting testimony of parties, witnesses, and experts should proceed as customary in the forum. A party should have the right to conduct supplemental questioning directly to another party, witness, or expert who has first been questioned by the judge or by another party.
16.5 A person who produces evidence, whether or not a party, has the right to a court order protecting against improper exposure of confidential information.
16.6 The court should make free evaluation of the evidence and attach no unjustified significance to evidence according to its type or source.
Principle 19 UNIDROIT
19. Oral and Written Presentations
19.1 Pleadings, formal requests (motions), and legal argument ordinarily should be presented initially in writing, but the parties should have the right to present oral argument on important substantive and procedural issues.
19.2 The final hearing must be held before the judges who are to give judgment.
19.3 The court should specify the procedure for presentation of testimony. Ordinarily, testimony of parties and witnesses should be received orally, and reports of experts in writing; but the court may, upon consultation with the parties, require that initial testimony of witnesses be in writing, which should be supplied to the parties in advance of the hearing.
19.4 Oral testimony may be limited to supplemental questioning following written presentation of a witness’s principal testimony or of an expert’s report.
Principle 21 UNIDROIT
21. Burden and Standard of Proof
21.1 Ordinarily, each party has the burden to prove all the material facts that are the basis of that party’s case.
21.2 Facts are considered proven when the court is reasonably convinced of their truth.
21.3 When it appears that a party has possession or control of relevant evidence that it declines without justification to produce, the court may draw adverse inferences with respect to the issue for which the evidence is probative.
Principle 22 UNIDROIT
22. Responsibility for Determinations of Fact and Law
22.1 The court is responsible for considering all relevant facts and evidence and for determining the correct legal basis for its decisions, including matters determined on the basis of foreign law. 22.2 The court may, while affording the parties opportunity to respond:
22.2.1 Permit or invite a party to amend its contentions of law or fact and to offer additional legal argument and evidence accordingly;
22.2.2 Order the taking of evidence not previously suggested by a party; or
22.2.3 Rely upon a legal theory or an interpretation of the facts or of the evidence that has not been advanced by a party.
22.3 The court ordinarily should hear all evidence directly, but when necessary may assign to a suitable delegate the taking and preserving of evidence for consideration by the court at the final hearing.
22.4 The court may appoint an expert to give evidence on any relevant issue for which expert testimony is appropriate, including foreign law.
22.4.1 If the parties agree upon an expert the court ordinarily should appoint that expert.
22.4.2 A party has a right to present expert testimony through an expert selected by that party on any relevant issue for which expert testimony is appropriate.
22.4.3 An expert, whether appointed by the court or by a party, owes a duty to the court to present a full and objective assessment of the issue addressed.
Relevant Articles UNCITRAL Model Law for International Commercial Arbitration
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 16
Article 17 (not 17 A etc.)
Article 18
Article 19
Article 20
Article 22
Article 23
Article 27
Article 28
Article 29
Article 30
Article 31
Article 33
Article 34
Article 35
Article 36
UNCITRAL Model Law Article 7
Option I
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.
(4) The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained therein is accessible so as to be useable for subsequent reference; “electronic communication” means any communication that the parties make by means of data messages; “data message” means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.
(5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.
(6) The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.
Option II - Article 7 UNCITRAL Model Law
“Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
UNCITRAL Model Law Article 8
“(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.”
“(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.”
UNCITRAL Model Law Article 9
Article 9. Arbitration agreement and interim measures by court
“It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.”
UNCITRAL Model Law Article 10
“(1) The parties are free to determine the number of arbitrators.”
“(2) Failing such determination, the number of arbitrators shall be three.
UNCITRAL Model Law Article 11
Article 11 Model Law Appointment of Arbitrators:
(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.
(3) Failing such agreement
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6;
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specifi ed in article 6.
(4) Where, under an appointment procedure agreed upon by the parties,
(a) a party fails to act as required under such procedure, or
(b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or
(c) a third party, including an institution, fails to perform any function entrusted to it under such procedure,
any party may request the court or other authority specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the court or other authority specified in article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.
UNCITRAL Model Law Article 12
Article 12. Grounds for challenge
“(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.”
“(2) An arbitrator may be challenged only if circumstances exist that give rise to justifi able doubts as to his impartiality or independence, or if he does not possess qualifi cations agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.”
UNCITRAL Model Law Article 13
“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3) of this article.”
“(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.”
“(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”
UNCITRAL Model Law Article 16
Article 16 UNCITRAL Model Law - Competence of arbitral tribunal to rule on its jurisdiction:
(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract [Severability of the arbitration agreement]. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within thirty days after having received notice of that ruling, the court specified in article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.
UNCITRAL Model Law Article 17 (not 17A, etc.)
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.
(2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is fi nally decided, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending determination of the
dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral
process itself;
(c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the dispute.
UNCITRAL Model Law Article 18
Article 18. Equal treatment of parties
The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.
UNCITRAL Model Law Article 19
Article 19 UNCITRAL Model Law:
(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
UNCITRAL Model Law Article 20
Article 20. Place of arbitration
“(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.”
“(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.”
UNCITRAL Model Law Article 22
“(1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings. This agreement or determination, unless otherwise specified therein, shall apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal.”
“(2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.”
UNCITRAL Model Law Article 23
Article 23. Statements of claim and defence
“(1) Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.”
“(2) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it.”
UNCITRAL Model Law Article 27
The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.
UNCITRAL Model Law Article 28
(1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State
shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.
UNCITRAL Model Law Article 29
Article 29. Decision-making by panel of arbitrators
In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorized by the parties or all members of the arbitral tribunal.
UNCITRAL Model Law Article 30
Article 30. Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the provisions of article 31 and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case.
UNCITRAL Model Law Article 31
Article 31. Form and contents of award
(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated.
(2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 30.
(3) The award shall state its date and the place of arbitration as determined in accordance with article 20(1). The award shall be deemed to have been made at that place.
(4) After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) of this article shall be delivered to each party.
UNCITRAL Model Law Article 33
Article 33. Correction and interpretation of award; additional award
(1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties:
(a) a party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature;
(b) if so agreed by the parties, a party, with notice to the other party,
may request the arbitral tribunal to give an interpretation of a specific point or part of the award.
If the arbitral tribunal considers the request to be justifi ed, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of this article on its own initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within thirty days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justifi ed, it shall make the additional award within sixty days.
(4) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, interpretation or an additional award under paragraph (1) or (3) of this article.
(5) The provisions of article 31 shall apply to a correction or interpretation of the award or to an additional award.
UNCITRAL Model Law Article 34
(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.
(2) An arbitral award may be set aside by the court specified in article 6 only if:
(a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or
(ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in confl ict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or
(ii) the award is in confl ict with the public policy of this State.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the arbitral tribunal.
(4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.
UNCITRAL Model Law Article 35
(1) An arbitral award, irrespective of the country in which it was made, shall be recognized as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36.
(2) The party relying on an award or applying for its enforcement shall supply the original award or a copy thereof. If the award is not made in an official language of this State, the court may request the party to supply a translation thereof into such language.
UNCITRAL Model Law Article 36
Article 36. Grounds for refusing recognition or enforcement
(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only:
(a) at the request of the party against whom it is invoked, if that party furnishes to the competent court where recognition or enforcement is sought proof that:
(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or
(b) if the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or
(ii) the recognition or enforcement of the award would be contrary to the public policy of this State.
(2) If an application for setting aside or suspension of an award has been made to a court referred to in paragraph (1)(a)(v) of this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.
Micallef v. Malta
c.93
“Impartiality normally denotes the absence of prejudice or bias and its existence or otherwise can be tested in various ways. According to the Court’s constant case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case; and also according to an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality […]”
c.94
“As to the subjective test, the principle that a tribunal shall be presumed to be free of personal prejudice or partiality is long-established in the case-law of the Court (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005-XIII). The Court has held that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Wettstein, cited above, § 43). As regards the type of proof required, the Court has, for example, sought to ascertain whether a judge has displayed hostility or ill will for personal reasons (see De Cubber v. Belgium, 26 October 1984, § 25, Series A no. 86).”
c.98
“In this respect even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” (see De Cubber, cited above, § 26). What is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw (see Castillo Algar v. Spain, 28 October 1998, § 45, Reports 1998-VIII).”
c.100
“The Court notes that specific provisions regarding the challenging of judges were set out in Article 734 of the Code of Organisation and Civil Procedure (see paragraph 28 above). The Grand Chamber, like the Chamber, cannot but observe that Maltese law as it stood at the time of the present case was deficient on two levels. Firstly, there was no automatic obligation for a judge to withdraw in cases where impartiality could be an issue, a matter which remains unchanged in the law in force at present. Secondly, at the time of the present case the law did not recognise as problematic – and therefore as a ground for challenge – a sibling relationship between judge and advocate, let alone that arising from relationships of a lesser degree such as those of uncles or aunts in respect of nephews or nieces. Thus, the Grand Chamber, like the Chamber, considers that the law in itself did not give adequate guarantees of subjective and objective impartiality.”
Kleyn and Others v. The Netherlands
Legal notion to remember: Judicial Impartiality (Impartial and independent tribunal)
c.163
“The applicants complained that the Administrative Jurisdiction Division of the Council of State was not independent and impartial, in that the Council of State exercises both advisory and judicial functions. They alleged a violation of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...””
c.190
“As is well established in the Court’s case-law, in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence.”
c.191
“As to the question of “impartiality” for the purposes of Article 6 § 1, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I).”
c.193
“Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position of the Netherlands Council of State. The Court is faced solely with the question whether, in the circumstances of the case, the Administrative Jurisdiction Division had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell, cited above, § 51).”
c.194
“In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48).”
c.195
“Having regard to the manner and conditions of appointment of the Netherlands Council of State’s members and their terms of office, and in the absence of any indication of a lack of sufficient and adequate safeguards against possible extraneous pressure, the Court has found nothing in the applicant’s submissions that could substantiate their concerns as to the independence of the Council of State and its members, the more so as this particular issue was not addressed in the challenge proceedings brought by Mr and Mrs Raymakers. Neither is there any indication in the present case that any member of the bench of the Administrative Jurisdiction Division was subjectively prejudiced or biased when hearing the applicants’ appeals against the routing decision. In particular, it has not been alleged by the applicants that the participation of the President of the bench in the advisory opinion on the Transport Infrastructure Planning Bill gave rise to actual bias on his part.”
c.197
“The Government have brought to the Court’s attention the internal measures taken by the Council of State with a view to giving effect to Procola in the Netherlands (see paragraphs 142-45 above). According to the description of these measures which is to be found in the Annual Report 2000 of the Council of State, the composition of the bench will only be scrutinised if doubts are expressed by a party; the criterion then applied is that if the appeal goes to a matter explicitly addressed in a previous advisory opinion, the composition will be changed so as to exclude any judges who participated in that opinion.”
c.201
“Although the planning of the Betuweroute railway was referred to in the advice given by the Council of State to the government on the Transport Infrastructure Planning Bill, these references cannot reasonably be interpreted as expressing any views on, or amounting to a preliminary determination of, any issues subsequently decided by the responsible ministers in the routing decision at issue. The passages containing the references to the Betuweroute railway in the Council of State’s advice were concerned with removing perceived ambiguities in sections 24b and 24g of the Transport Infrastructure Planning Bill. These provisions were intended to apply to two major construction projects already under consideration at the relevant time, of which the Betuweroute railway was one. The Court cannot agree with the applicants that, by suggesting to the government to indicate in the bill the names of the places where the Betuweroute railway was to start and end, the Council of State determined, expressed any views on or in any way prejudged the exact routing of that railway.”
ECJ DEB v. Germany
Context: DEB, a German energy company with no staff nor assets, seeks to acquire legal aid from the German courts to bring a case of State Liability against them (the German Courts) under EU law for failing to transpose in time a Directive which would have granted it access to the German network operators’ gas networks.
Legal notion to remember: State Liability + Principle of effectiveness of EU Law (Principle of Effective Judicial Protection)
More specifically: Legal aid and the Right to a fair trial
c.23
“Moreover, the rule laid down in Paragraph 116(2) of the ZPO is in conformity with the Grundgesetz (German Basic Law). In particular, the fact that the conditions governing the granting of legal aid to legal persons are more stringent than those required of natural persons is constitutionally unobjectionable.”
c. 24
“The Bundesverfassungsgericht (Federal Constitutional Court) has repeatedly ruled to that effect. In the final analysis, the granting of legal aid is a measure of social assistance which is derived from the principle of the social State and is necessary for the safeguarding of human dignity, something which is not applicable in the case of legal persons. The latter are artificial creations vested with a legal form which is permitted by the legal system of a State for reasons of practicality. That legal form offers shareholders economic advantages, in particular the limitation of their liability to the amount represented by the company’s assets. Accordingly, the legal person must have sufficient assets. That is a pre-condition both for the creation and for the continued existence of the company. It is the reason why, as a general rule, the legal system rec- ognises a legal person as having a right to exist only if it is in a position to accomplish its objects and to fulfil its duties using its own resources. The rule in Paragraph 116(2) of the ZPO accordingly takes the special circumstances of legal persons into account (see decision of the Bundesverfassungsgericht of 3 July 1973, 1 BvR 153/69).”
c. 25
“The Kammergericht is uncertain, however, whether the refusal of legal aid to DEB for the pursuit of an action seeking to establish State liability under EU law might be in- consistent with the principles of that law, in particular with the principle of effective- ness. If DEB is refused legal aid, it will simply be unable to pursue the action seeking to establish State liability under that law. In practice, therefore, it would be impossible or, at the very least, excessively difficult, for DEB to obtain reparation. That interpre- tation is also supported by the fact that the Court of Justice has derived the concept of State liability under EU law from the requirement that that law, in particular with regard to the protection of individual rights, must be fully effective (see Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357).”
c. 27
“By its question, the referring court asks whether EU law and, more specifically, the principle of effectiveness, must be interpreted as meaning that, in the context of a procedure for pursuing a claim seeking to establish State liability under EU law, that principle precludes a national rule under which the pursuit of a claim before the courts is subject to the making of an advance payment in respect of costs and under which a legal person does not qualify for legal aid even though it is unable to make that advance payment.”
c. 28
“As is apparent from well-established case-law on the principle of effectiveness, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (see, inter alia, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph 5; Case C-432/05 Unibet [2007] ECR I-2271, paragraph 43; and Case C-268/06 Impact [2008] ECR I-2483, paragraph 46). The referring court essentially asks whether the fact that a legal person is unable to qualify for legal aid renders the exercise of its rights impossible in practice in the sense that that legal person would not be able to gain access to a court because it would be impossible for it to make the advance payment in respect of the costs of proceedings and to obtain the assistance of a lawyer.”
c. 29
“The question referred thus concerns the right of a legal person to effective access to justice and, accordingly, in the context of EU law, it concerns the principle of effective judicial protection. That principle is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) (Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19; Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 14; Case C-424/99 Commission v Austria [2001] ECR I-9285, paragraph 45; Case C-50/00 P Unión de Pequeños Agricultores v Coun- cil [2002] ECR I-6677, paragraph 39; Case C-467/01 Eribrand [2003] ECR I-6471, paragraph 61; and Unibet, paragraph 37).”
c. 59
“In the light of all of the foregoing, the answer to the question referred must be that the principle of effective judicial protection, as enshrined in Article 47 of the Charter, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer.”
c. 60
“In that connection, it is for the national court to ascertain
whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right;
whether they pursue a legitimate aim;
and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim which it is sought to achieve.”
c. 61
“In making that assessment, the national court must take into consideration
the subject-matter of the litigation;
whether the applicant has a reasonable prospect of success;
the importance of what is at stake for the applicant in the proceedings;
the complexity of the applicable law and procedure;
and the applicant’s capacity to represent himself effectively
[Note: Similar to the conditions referred to by the ECtHR in the Morris & Steel v. UK case].
In order to assess the proportionality, the national court may also take account of
the amount of the costs of the proceedings in respect of which advance payment must be made
and whether or not those costs might represent an insurmountable obstacle to access to the courts.”
c. 62
“With regard more specifically to legal persons, the national court may take account of their situation. The court may therefore take into consideration, inter alia,
the form of the legal person in question and whether it is profit-making or non-profit-making;
the financial capacity of the partners or shareholders;
and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings.”
Mantovanelli v. France
Context:
“Expert medical report ordered by an administrative court not prepared in accordance with adversarial principle: violation”
HUDOC Legal Summary
Civil Right Concerned: Article 6
Legal Notion to Remember: Access to court, Fair hearing, Equality of Arms
Relevant Parts of the Judgment:
Facts:
c.8
“On 27 January 1981 the applicants’ daughter, Jocelyne Mantovanelli, who was then 20, was admitted to the Nancy Orthopaedic and Accident and Emergency Clinic for an operation on a whitlow on her left thumb. On the same day, she was transferred to the surgical ward of the Jeanne d’Arc Hospital (Nancy Regional Hospital Centre - "CHRN") at Dommartin-lès-Toul, where she had a second operation the next day. For a year she received periodical treatment there and underwent surgery seven times in the form of repeat operations and skin grafts, and an arterio-vascular examination. Owing to an infection discovered in February 1982, Miss Mantovanelli was operated on again and a week later the second phalanx of her thumb was removed.”
c.9
“On 13 March 1982, having contracted jaundice, Miss Mantovanelli was transferred to the gastroenterology department of Brabois Hospital (CHRN) at Vand÷uvre-lès-Nancy. Her condition deteriorated and she fell into a hepatic coma. On 27 March she was transferred to the department for infectious diseases and neuro-respiratory intensive care, where she died two days later.”
c.10
“The surgical operations referred to above and the arterio-vascular examination Miss Mantovanelli underwent were carried out under a general anaesthetic. On each occasion a varying combination of seven different drugs was used which always included halothane.”
The Judgment of the Court:
c.30
“Mr and Mrs Mantovanelli maintained that the procedure followed in preparing the expert medical opinion ordered by the Nancy Administrative Court had not been in conformity with the adversarial principle and had given rise to a violation of their right to a fair hearing as secured by Article 6 para. 1 of the Convention (art. 6-1), which provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..." Contrary to the former Article R. 123 of the Administrative Courts and Administrative Courts of Appeal Code, neither they nor their counsel had been informed of the dates of the interviews conducted by the expert. The expert had also referred in his report to documents which they had not seen and which it had been pointless to ask the hospital management to produce. They had thus been deprived of the opportunity to examine the persons who gave evidence to the expert, to submit comments to him on the documents examined and on the witness evidence taken and to ask him to carry out additional investigations. Admittedly, the expert report had later been communicated to the applicants, who could thus have challenged it in the administrative court. They had nevertheless been prevented from participating on an equal footing in the production of the report.”
c.31
“The Commission submitted that compliance with the principle of adversarial procedure meant that where a court ordered the production of an expert report, the parties should be able to challenge before the expert the evidence he had taken into account in carrying out his instructions.
There were three reasons for this:
an expert report of this kind, produced under a court’s authority for its own enlightenment, was an integral part of the proceedings;
as the court was unable to assess for itself all the technical issues considered, the expert’s investigation tended to replace the taking of evidence by the court itself;
and merely being able to challenge the expert report in court did not permit an effective application of the adversarial principle as the report had become final by then.”
“In the present case Mr and Mrs Mantovanelli had been unable to attend the expert’s interviews with the witnesses (all members of the CHRN’s medical staff) and the report referred to documents which they had not seen. The Nancy Administrative Court had refused their application for a second expert report and had reproduced the findings of the report in order to dismiss their claims. There had therefore been a breach of Article 6 para. 1 (art. 6-1).”
c.33
“The Court notes that one of the elements of a fair hearing within the meaning of Article 6 para. 1 (art. 6-1) is the right to adversarial proceedings; each party must in principle have the opportunity not only to make known any evidence needed for his claims to succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision (see, mutatis mutandis, the Lobo Machado v. Portugal and Vermeulen v. Belgium judgments of 20 February 1996, Reports of Judgments and Decisions 1996-I pp. 206-07, para. 31, and p. 234, para. 33, respectively, and the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 108, para. 24).”
“In this connection, the Court makes it clear at the outset that, just like observance of the other procedural safeguards enshrined in Article 6 para. 1 (art. 6-1), compliance with the adversarial principle relates to proceedings in a "tribunal"; no general, abstract principle may therefore be inferred from this provision (art. 6-1) that, where an expert has been appointed by a court, the parties must in all instances be able to attend the interviews held by him or to be shown the documents he has taken into account. What is essential is that the parties should be able to participate properly in the proceedings before the "tribunal" (see, mutatis mutandis, the Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, p. 16, para. 42 in fine).”$
c.34
“Moreover, the Convention does not lay down rules on evidence as such. The Court therefore cannot exclude as a matter of principle and in the abstract that evidence obtained in breach of provisions of domestic law may be admitted. It is for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to have produced. The Court has nevertheless to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair as required by Article 6 para. 1 (art. 6-1) (see, mutatis mutandis, the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para. 46).”
c. 36
“However, while Mr and Mrs Mantovanelli could have made submissions to the administrative court on the content and findings of the report after receiving it, the Court is not convinced that this afforded them a real opportunity to comment effectively on it. The question the expert was instructed to answer was identical with the one that the court had to determine, namely whether the circumstances in which halothane had been administered to the applicants’ daughter disclosed negligence on the part of the CHRN. It pertained to a technical field that was not within the judges’ knowledge. Thus although the administrative court was not in law bound by the expert’s findings, his report was likely to have a preponderant influence on the assessment of the facts by that court.”
“Under such circumstances, and in the light also of the administrative courts’ refusal of their application for a fresh expert report at first instance and on appeal (see paragraphs 19-22 above), Mr and Mrs Mantovanelli could only have expressed their views effectively before the expert report was lodged. No practical difficulty stood in the way of their being associated in the process of producing the report, as it consisted in interviewing witnesses and examining documents. Yet they were prevented from participating in the interviews, although the five people interviewed by the expert were employed by the CHRN and included the surgeon who had performed the last operation on Miss Mantovanelli, and the anaesthetist. The applicants were therefore not able to cross-examine these five people who could reasonably have been expected to give evidence along the same lines as the CHRN, the opposing side in the proceedings. As to the documents taken into consideration by the expert, the applicants only became aware of them once the report had been completed and transmitted. Mr and Mrs Mantovanelli were thus not able to comment effectively on the main piece of evidence. The proceedings were therefore not fair as required by Article 6 para. 1 of the Convention (art. 6-1). There has accordingly been a breach of that provision (art. 6-1).”
Equality of Arms Principle according to the ECtHR in Steel and Morris v. UK
Equality of Arms principle
ECtHR in Steel & Morris v. UK
According to Steel & Morris, McDonald’s was responsible for a ton of problems in the third world.
Steel and Morris were acting on behalf of Greenpeace by printing allegedly ‘libelous’ pamphlets against McDonald’s.
McDonald’s sued them both because they could not sue Greenpeace, due to the fact that London Greenpeace was not affiliated with Greenpeace International
At the time, English law did not provide legal aid for libel cases → Steel and Morris had to pay all legal fees out of pocket, aside from getting donations’ help and getting pro-bono help
Moral of the story, Steel and Morris complained they were denied right to a fair trial because they were forced to pay sums they couldn’t afford as poor citizens against a big wealthy corporation
The principle of Equality of Arms looks at the three following questions:
What is the importance of what is at stake in the case?
the Strasbourg Court stated that this does not regard family law, which would have easily granted the applicants access to aid
The applicants were defendants who had to invoke their right to a fair trial
There was a lot at stake → the sum of money Steel & Morris had to pay was significant.
How complex is the relevant law in the case at hand?
In this case, English libel law was extremely complex back then, exemplified by the length of the proceedings in Steel v. Morris.
Were the applicants able to represent themselves in Court?
While there was sporadic help from lawyers and crowd funding, the applicants had to otherwise do everything themselves.
It was also difficult for them to represent themselves due to the fact that they had to buy court transcripts every day
Conclusion - Article 6 violation due to “inequality of arms of the litigants”
What should we consider when choosing an arbitrator?
Any sensible argument - other than the two stated in the question - could be used, for example:
choose someone you know personally or by reputation;
do your homework (arbitrator’s background and previous experience);
is the arbitrator a match for the applicable (Dutch) procedural law and language (probably English);
interview the arbitrator beforehand;
consult experienced counsel
(Moses, 6.A.3 & 4)*
What is Med-Arb as defined by Feehily and what are some advantages and disadvantages?
Feehily 2022 (§ 1.8.3)*
Med-arb: parties start mediation, when no full settlement is reached, the outstanding issues will be decided by the mediator who becomes an arbitrator
there will be a result
→ Mediation does not always end up in a settlement agreement ; with Med-Arb there’s always a result, because if necessary the mediator will become an arbitrator to issue a binding award
arbitrator independent/impartial? (confidential information during mediation phase)
What is Arb-Med as defined by Feehily and what are some advantages and disadvantages?
Feehily 2022 (§ 1.8.3)*
Arb-med: parties start arbitration and the arbitrator prepares an arbitral award (BUT DOESN’T ISSUE IT) - before issuing that parties try to reach a settlement with the arbitrator acting as mediator
focus on reaching settlement (parties don’t know the contents of the award)
no serious attempt in mediation (because there is already an award)