IV EdiciÃ³n Revista Derecho en Sociedad - Ulacit

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DERECHO EN SOCIEDAD, N. º 4 . Enero del 2013 Revista electrónica de la Facultad de Derecho, ULACIT – Costa Rica No talk about the selection of a Tribunal can be made without an agreement to arbitrate. That is, there can only be an arbitration proceeding where there is an arbitration agreement. The agreement reflects the parties will, it shows that parties have voluntarily agreed in going away from the ordinary jurisdiction of the national courts (maybe, in consideration of one of the multiples advantages of Arbitration) and have decided to resolve their conflicts with the use of private justice. Hence, the very first step, is the verification of the existence of a valid arbitration agreement 18 , the scope of the disputes that the parties have agreed upon, and the rest factors that the parties could have agreed for an arbitration proceeding: Place of Arbitration 19 , number of arbitrators, qualities required in arbitrators, method for the constitution of the Arbitral Tribunal, application of a specific set procedural rules(such as UNCITRAL 20 ),or the submission to an Arbitral Institution(Such as the Stockholm Arbitration Institute, or The Arbitration Court of The International Chamber of Commerce), among many other things. The identification of the factors agreed by the parties will make it possible to determine: the number of arbitrators that the parties are going to submit their dispute to; the qualities that those arbitrators will be required to have; and the selection method for the 18 The legal requirements of a valid arbitration agreement can be found in art 7 of the UNCITRAL Model Law on International Commercial Arbitration (hereinafter ‘Model Law’) and art. II of the New York Convention. Even, in the cases of a non valid or even an inexistent Arbitration Agreement, it will be the arbitrators composed and selected for the particular dispute the ones that will have to declare the lack of jurisdiction, in accordance with the worldwide recognized principle of Kompetenz-‐Kompetenz. For a discussion of the different currents that surrounds this complex, and yet marvelous juridical concept, please refer to Gonzalez de Cossio, Francisco, “El Principio Competence Competence Revisitado” 19 The Lex Arbitri, or the law of the place of arbitration is a relevant factor to be determined, since it is this Arbitration Law that will give a complement of the parties agreement in those cases where there is no agreement made. A tacit agreement is to be interpreted that has happened. On determining the place of arbitration when no agreement exists between the parties, see: Born, Gary, (2001) ‘International Commercial Arbitration: Commentary and Materials 2nd edition, Kluwer Law International. At pp. 573 -‐ 614. 20 UNCITRAL Arbitration Rules (2010). When parties refer to an specific set of rules, such as UNCITRAL, it helps that the parties can rest on the predictability already established under the rules, which means that most of factors that parties could agree on, will be already cover by the set of rules. The same is to happen, when parties give the administration of the proceedings to an specific institution, since it is usual that each institution have an specific set of rules. 78
DERECHO EN SOCIEDAD, N. º 4 . Enero del 2013 Revista electrónica de la Facultad de Derecho, ULACIT – Costa Rica constitution of the Arbitral Tribunal. The previous work, in order to consider the important and relevant factors for the proper constitution of the Arbitral Tribunal that will have the mission of rendering a valid and enforceable award. It is important to keep in mind that the constitution of an Arbitral Tribunal that is not in accordance with the parties agreement, will result in the challenge of the award, or the rejection of recognition and enforcement, according to Article V of the New York Convention, And Articles 34 and 36 of the Model Law. Institutional or AD-‐HOC? When parties select an arbitral institution to administer the arbitration proceedings, it is to be understood that it is an institutional arbitration, and where parties have not selected one, is to be understood that it deals with an ad hoc arbitration. Arbitration Institutes have their own body of rules, with the procedures already determined, liberating parties from the hard work of creating the set of rules that will rule the arbitral procedures of their eventual or actual disputes. Multiple advantages of selecting an Institution in running the administration of the proceedings are to be noted: the main reference will be that it gives the extra confidence that a specialized group of individuals, in arbitration, will take care that the proceedings run smoothly. Another perceived beneficial factor is the help that Institutions can give to practitioners in complicated proceedings such as the challenge of an arbitrator 21 . And a final, non-exhaustive, advantage could be the quality seal (depending of the institution) that is given to the process of selecting arbitrators, since it is usual that the candidates for becoming 21 Challenge proceedings in Institutional Arbitrations are to be resolved by the organ that is the head of the arbitral institution, giving a transparent and already determined proceeding to follow for the parties. In contrast with the method followed. E.g. Art. 11 of the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce (1998), hereinafter ‘ICC’; Art. 15 of the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, hereinafter, ‘ SCC rules’. 79
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IV EdiciÃ³n Revista Derecho en Sociedad - Ulacit

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