Seat of Arbitration and Supporting and Supervising Function of Courts
pages 21 - 48
ABSTRACT:

The seat of arbitration has essential practical importance in arbitration, and it directly determines a number of issues: arbitrability, determination of governing law, whether substantive, or (mainly) procedural, and annulment of the arbitral award or its recognition and enforcement etc. Pursuant to author´s opinion the seat of arbitration is the main factor determining arbitration, while denationalization of arbitration seems to be a myth widely remote from international reality. The seat of arbitration need not be the place in which the individual procedural acts are conducted. From the seat of arbitration has to be distinguished also the place, where the arbitral award has been rendered and/or signed. Consequently, the place where the arbitral award is made usually determines whether the award is a domestic or a foreign award. The seat of arbitration can exceptionally be changed in course of arbitration, but not after an arbitral award has been rendered. International arbitration is usually subject to a two-tier control exercised by courts. The first control is exercised by the state of the seat of arbitration, and the second control is exercised by the state in which the parties seek recognition and enforcement. Consequently, if the parties internationalize their dispute (both parties from the same country agree on a seat of arbitration in a different country) and the arbitral award is rendered abroad (foreign arbitral award vis-à-vis the country of parties’ origin/domicile), the award has no effects in the country of parties´ origin/domicile until its recognition.

keywords
seat of arbitration
place of arbitration
supporting and supervising function of courts
place of hearing
choice of seat of arbitration
recognition of arbitral award
enforcement of arbitral award
internationalization of a domestic dispute
arbitrability
autonomy of the parties
place when the arbitral award has been signed
lex fori
lex arbitri
lex loci arbitri
about the authors

Univ. Professor, Dr.iur., Mgr., Dipl. Ing. oec/MB, Dr.h.c. Lawyer admitted and practising in Prague/CZE (Branch N.J./US), Senior Partner of the Law Offices Bělohlávek, Dept. of Law, Faculty of Economics, Ostrava, CZE, Dept. of Int. and European Law, Faculty of Law, Masaryk University, Brno, CZE (visiting), Chairman of the Commission on Arbitration ICC National Committee CZE, Arbitrator in Prague, Vienna, Kiev etc. Member of ASA, DIS, Austrian Arb. Association. The President of the WJA – the World Jurist Association, Washington D.C./USA.

e-mail: office@ablegal.cz