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   Course Title    Arbitration Law
Lecturer    Biljana Djuricin
Institution    University of Montenegro
Country    Yugoslavia


" Seen in a modern perspective, and in a cultural setting where courts represent the established tradition, arbitration can be regarded as an unorthodox and innovate method of settling disputes. In this context, arbitration is a response to questions that have been left unanswered within the judicial system, an innovative institution that meets specific needs that court do not deal with satisfactorily."

Varady, Barcelo, von Mehren

 

INTRODUCTION

At the present, one of the acceptable methods of settling disputes is arbitration. There are indications that it will remain so for some time in the future. There are always reasons to prefer the arbitrage since it has certain advantages in comparison with a court proceeding. One of the most important is its voluntary character. The length of proceeding is significantly shorter than the ordinary courts. The arbitration procedure is confidential. Arbitration may profit from expert specialist knowledge, etc. Arbitration with its possibilities to achieve a clear and speedy settlement of disputes may contribute to the establishment of just relations that are in the mutual interest of both sides.

Increase of arbitrage in the modern world is one of the reasons why arbitration law becomes a part of law school curricula and syllabi. It introduces students to the subject matter and helps them in their professional life in the future.

 

COURSE OBJECTIVES

The course is designed to introduce students with knowledge of the topics to be discussed to a wide range of problem involving arbitration law and dispute resolution. The aim of the course is to provide students understanding of the fundamental issues related to the arbitration law and dispute resolution and lead them to sources to learn more. The course provides a more in depth study with regard to the selected areas in arbitration and practice.

The courseís education program aimed :

- promoting further development of arbitration law by : a) increasing knowledge a general concept and problems of arbitration law; b) importance and role arbitration in dispute resolution; mayor dilemmas in the area of applicable law and arbitrage jurisdiction; understanding of basic notions of arbitration ( agreement, tribunal, arbitrators, award ); general understanding and role of international commercial arbitration and its role in future; general understanding of judicial control over the award ( setting aside and recognition and enforcement ).

The long-term development objectives of the course are oriented towards:

  • continuous providing practice and its understanding in dispute resolution

  • assistance to the reform in this area

  • increasing studentsí ability for further professional work, such as business manager, company lawyers involved in international business, etc.

  • innovating curriculum and syllabus of this subject

 

COURSE DESCRIPTION

Arbitration law is a new, optional subject in the curriculum of Podgorica Law School. During an academic year, students have classes every two weeks in the winter semester.

The course will focus on the regulation and comparative law analyses of the most significant topics of arbitration law. Among the available dispute resolution alternatives to the court, arbitration is by far the most commonly used internationally. Arbitration is faster and less expensive than litigation.

The course also address the following issues: notion of arbitration, legal nature, classification, source of arbitration law and its role de lege ferenda in European and other legal systems.

The course mainly covers selected topics on arbitration. The course will focus on arbitration agreement, arbitrage tribunal, appointment of arbitrators. The course will treat dilemmas in the area of arbitrage jurisdiction and applicable law. The course provides a more in depth study of arbitral proceeding. One of the main topics addressed will be awards and specially on setting aside an arbitrage award. One of topics addressed will be on recognition and enforcing foreign arbitral awards. The course will examine the modern and harmonized regime for international arbitration.

 

TARGET AUDIENCE

The course is specifically designed to teach undergraduate students of fourth year of Law school.

 

THE STRUCTURE AND CONTENT OF THE COURSE

The activities of the course will be covered in a period of one semester (winter) of an academic year. They will concentrate on presenting theoretical and practical issues of arbitrate law and procedure. The topics of the course are as follows:

Chapter I

A The notion and the structure of arbitration law

B Legal nature and theories of arbitration law

C Historical background of arbitration law, especially in Federal Republic Yugoslavia

D Decision making according to the principle of equity, specially in international commercial arbitration

E Legal sources of arbitration law ( in FRJ and international )

F Bases and conditions of arbitration

G Classifications of arbitration ( domestic and international, institutional and ad hoc arbitration )

H Arbitration and litigation

Chapter II

A An Arbitration agreement (kompetenz-kompetenz, separatibility, form of the arbitration agreement, scope of the arbitration clause, split arbitration clause)

B Arbitrability

C The parties in the arbitration agreement

D Arbitrators ( qualifications, rights, responsibilities, challenge, appointment and appointing authorities : appointment by courts; appointing authorities chose by the parties )

Chapter III

A Arbitration in civil disputes

B Arbitration in maritime disputes

C Arbitration in disputes of working relations

D Arbitration in investment disputes

E Arbitration in commercial disputes, specially international commercial disputes

F Foreign Trade Arbitration Court at the Yugoslav Chamber of Economy

G ICC International Court of Arbitration

Chapter IV

A Selected elements of procedure before arbitration tribunal (the issue of speed, party discretion, discretion of the arbitrators, due process, terms of reference, records and minutes of the hearing, presentation of the case, experts, language issue, privacy and confidentiality, time limits for accomplishing the mission of the arbitrators)

B The award (form and content of the award, intervention after the award is written, deposit, authentication, certification, award by consent)

C Choice of law issues before the arbitration (applicable substantive law, interpreting choice of law clauses and the role of the lex Abritri, the role of lex Mercatoria, applicable law in the absence of party choice, mandatory norms)

D Arbitration and provisional measures

E Costs of arbitration

Chapter V

A Res iudicata and litispendence

B Judicial control over the award ( setting aside of awards considered to be domestic )

C Judicial control over the award ( recognition and enforcement of foreign award under : Yugoslav Act on the conflict of law with the provision of other countries in certain matters, and New York Convention on Recognition and Enforcement of Foreign Arbitral Award )

Chapter VI

A Arbitration law de lege ferenda in European and other legal system

B International commercial arbitration in future- a single transnational institution

 

READING LIST

The main attention is to be paid to the literature of studies. According to the possibilities of students, they can read in English, German, French and other languages. Relevant parts will be copied and handed out to the students together with the text of relevant international conventions and legislative. Literature for separate chapters is quoted at the end of lectures. Literature for all chapters:

  • Cizmovic- Djuricin, Gradjansko procesno pravo ( Civil Procedure Law ), 1997

  • Domke, The settlement of disputes in international trade ( Legal problems of international trade ), 1959

  • Fouchard, Lí arbitrage commercial international, 1965

  • Goldstajn-Triva, Medjunarodna trgovacka arbitraza ( International commercial arbitration ), 1987

  • Holtzmann- Neuhaus, Guide to the UNCITRAL Model law, 1989

  • Poznic-Vodinelic, Gradjansko procesno pravo ( Civil procedure law ), 1999

  • Redefern- Hunter, Law and practice in international commercial arbitration, 1991

  • Redfern, Hunter, International commercial arbitration, 1986

  • Rubellin-Devischi, Lí arbitrage, 1965

  • Schlosser, Das Recht der internationalen priveten Schiedsgerichtsbarkeit, I, 1975

  • Triva, Bjelajac, Dika, Gradjansko parnicno procesno pravo ( Civil procedure law ), 1986

  • Triva i ostali, Arbitrazno rjesavanje sporova ( Arbitration dispute resolution ), 1973

  • Varadi, Medjunarodno privatno pravo ( International private law ), 1993

  • Varady, Barcelo, von Mehren, International commercial arbitration, 1999

  • Varady, Barcelo, von Mehren, Documents supplement to International Commercial Arbitration, 1999

 

TEACHING METHOD

Topics will be introduced generally with lectures, seminar papers and discussion of actual cases and hypothetical problems. The students will receive reading material for discussion in advance and they are required to come prepared for each class. After discussion class time will be spent talking through major issues and highlighting parts of the required readings. In order to have a meaningful class discussion, and in order for students to learn as much as possible, all of them will be encouraged to participate in the class discussion, especially when discussing actual or hypothetical cases involving the legal issues discussed. The students will talk and analyze seminar papers. Students will also be required to defend their suggestion for seminar papers.

Individual form of co-operation with other faculties is performed by lecturing. This way students will have the opportunity to discuss more fully certain professional, theoretical and practical matters and problems.

During the course, students have to write an essay about one of the course topics.

 

ASSESSMENT

Assessment of studentsí performance in the course will be based on class participation, discussions, consultations and seminar papers, as follows:

General Class participation : 50%

Final report: 50%

 

FINAL EXAM

The final exam will include two questions from content of course. The answers will determine mark from 5 to 10.

 

EVALUATION

During the winter semester, the professor and the students will discuss and analyze lectures, consult about seminar papers and important and actual cases, aims of the course and the reading list. At the end of an academic year, the course will be evaluated by means of studentsí reactions and notices of professor on the teaching method, the reading list and aims of the course. Students will be required to come up with suggestions to improve the subject matter for the next course.



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