Frankfurt Arbitration Circle: FAC-Arbitration Symposium

The Fourth Annual FAC Symposium on 28 March 2007
 
Arbitration in Germany: "Too German" or "Not German Enough"?
 
This symposium brings together leading, international arbitration practitioners to discuss their own experiences of “German“ arbitration and in particular to answer two questions:
1.  Is the legal framework keeping up with the state of the art?
2.  Is there a distinct German style of arbitration and, to the extent that there is, are the distinctive elements of this style virtues or vices in the domestic and global markets?
 
Programme
 
10:00 h    Welcome
 
10:30 h    Opening Remarks, Introduction
                Dr. Fabian von Schlabrendorff
                Diversity in International Arbitration:
                A Desirable Goal or an Anachronism?
 
11:00 h    Session I
                What Makes an Arbitration Law Modern?
                Moderation:
                Richard Kreindler and Günter Pickrahn
                Panel Members:
                Gerhard Wagner (Presenter), Hans van Houtte and Eric Schwartz
 
- Were the German changes to the UNCITRAL Model Law, in hindsight,   necessary or desirable?
- Have they been followed in other countries?
- Have new issues, ambiguities or problems arisen on the basis of the changes?
- Has the „State of the Art“ moved on?
 
12:30 h    Lunch Break (finger buffet)
 
13:30 h    Session II (in two parts with a short break)
 
                Moderation:
                Peter Heckel, Robert Hunter and Rolf Trittmann
                Panel Members:
                Marc Blessing (Presenter), Siegfried Elsing and Kaj Hobér
 
                Arbitration in Germany: „Too German“ or
                „Not German Enough“?
 
- Procedural framework
- Efforts to bring about settlement
- Witness preparation and examination
- Production of documents
- Dissenting opinions
- Control of costs
 
16:00 h    Concluding Remarks
                Arthur Mariott
 
 
 
 
FAC-Arbitration Symposium 2005

Das Symposium hat die in Deutschland, England, Frankreich, Schweiz und anderen europäischen Ländern aktuell diskutierten Fragen des Verhältnisses zwischen staatlichen Gerichten und Schiedsgerichten, wie Kompetenz-Kompetenz, anti-suit injunctions, res judicata, lis pendens, Vollstreckung eines im Ursprungsland aufgehobenen Schiedsspruchs u.a. beleuchtet.

ARBITRATION AND THE ROLE OF THE COURTS:
A BASIS FOR COOPERATION, SUPERVISION OR INTERFERENCE

Perspectives of Leading European Judges and Practitioners
Friday, 10 June 2005
What this symposium is about

An agreement to arbitrate is intended as a valid election by the parties to deprive the state courts of jurisdiction over their dispute. There are various reasons why the parties may wish to divest the state courts of jurisdiction. These include such considerations as cross-border enforceability, cost, efficiency, neutrality, confidentiality, flexibility or a perceived need for particular expertise in the person of the fact-finder.

At the same time as the parties seek contractually to oust the jurisdiction of the courts, there are numerous ways in which the courts may, nevertheless, become involved in the parties’ dispute. Thus the state courts may intervene in a dispute which is subject to arbitration even where the parties have a valid, or allegedly valid, arbitration agreement or where, on the basis of such agreement, an arbitration has already been commenced.

The involvement of the state courts in an otherwise “arbitrable” dispute may occur under a variety of circumstances and through the instigation of a number of different players. Most commonly, a party to an arbitration agreement or to an already pending arbitration may seek interim relief prior to or pending a decision on the merits in the arbitration. Alternatively, a party to an arbitration agreement may attempt to have the merits of the dispute placed before the state court, either as a response to the opposing party’s attempt to invoke the arbitration agreement or as a pre-emptive effort of its own to elect the state courts over the arbitration agreement.

From a constitutional and human rights point of view, the courts have a duty to safeguard the fundamental right of access to justice by ensuring that parties are not forced to arbitrate or subjected to enforcement of an arbitral award without first having consented to the arbitral process.

Thus, from one participant’s perspective, the relationship between the state court and the arbitral process is one of positive cooperation and urgently needed support or protection. From another participant’s perspective, it may rather be one of meddlesome interference by a judicial power which was meant to be excluded in the first place.

The interplay between the rights and duties of a state court versus those of an arbitral tribunal or arbitral institution is sensitive and complex. These sensitivities and complexities become all the greater when the respective participants in the process – the parties, the state court, the arbitral institution, the arbitral tribunal, and also others involved in or directly affected by the dispute – are located in different jurisdictions. These challenges magnify still further when the laws and legislation in these jurisdictions governing issues of arbitral and court competence are not easily reconcilable, or are even directly conflicting.

The 2005 Symposium of the Frankfurt Arbitration Circle has brought together renowned state court judges and arbitration practitioners from Germany and other European jurisdictions to discuss some of the key questions relating to the role of the courts in the arbitral process.

- Where are the foundations and the limits of the State's legitimate interest in control of arbitration?
- How may the arbitration agreement be enforced or opposed, including in a cross-border dispute?
- What are the possibilities and limitations respecting requests to the court and to the arbitral tribunal for interim measures, including ex parte, and their enforcement both domestically and abroad?
- What are the challenges for state courts respecting annulment and enforcement of awards, and how may or must the arbitral tribunal take cognizance of such challenges when crafting its award?
- Is the traditional relationship between court and tribunal changing and is the sovereignty of national courts under threat?

Programme
 
Panel Discussions: Arbitration and the Role of the Courts
Panelists:
Sir Anthony Colman, Commercial Court, London
Dominique Hascher, Cour d'appel, Paris
Judge Gustaf Möller, Supreme Court of Finland
Professor Dr. Paul Oberhammer, University of Zurich
 
Session I
Moderated by Dr. Fabian von Schlabrendorff, Frankfurt am Main

What policy and practical considerations underlie the scope and nature of the state courts' role in arbitration proceedings?
- Is consent to arbitration a purely contractual matter?
- Where ist the balance between party freedom and sovereign control?
- Do the same considerations apply to domestic and to international disputes?
- Does arbitration harm the development of the law?
 
Session II
Moderated by Robert Hunter and Dr. Günter Pickrahn, Frankfurt am Main

Court control at the outset of proceedings - a threat to or support of arbitration?
- What limits are there to competence-competence?
- Human rights and consent to arbitration
- How do the exceptions to a referral to arbitration, e.g. New York Convention § II.3, UNCITRAL Model Law § 8 and German ZPO § 1032(2), work in practice?
- Should a court defer to a foreign tribunal respecting jurisdiction, and vice versa?
 
Session III
Moderated by Dr. Peter Heckel and Dr. Rolf Trittmann, Frankfurt am Main

Challenge and Enforcement of arbitral award - where are the real problems?
- Is arbitration a suitable forum for interim measures, including ex parte?
- How should interim orders be enforced?
- Procedural versus substantive grounds for challenge?
- Defining public policy as grounds fro annulment or denial of enforcement
- Seeking annulment away from the seat of arbitration
 

Session IV
Moderated by Richard H. Kreindler, Frankfurt am Main, and Arthur Marriott Q.C., London

Is international arbitration outgrowing the control of state jurisdiction?
- Seeking enforcement of annulled awards
- Is a specialized appellate court for arbitration matters justified and could it be effective?
- Where are the limits of state court control in public international law arbitration?
 

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