Decree of the Minister of Foreign Affairs No. 176 / 1964 Coll.
Decree of the Minister for Foreign Affairs on the European Convention on Trade Arbitration
Valid
Effective from 11.02.1964
176
DECLARATION
Minister for Foreign Affairs
of 3 August 1964
on the European Convention on Trade Arbitration
On 21 April 1961, the European Convention on International Trade Arbitration was signed on behalf of the Czechoslovak Socialist Republic in Geneva, subject to ratification.
On 21 September 1963, the Convention was ratified by the President of the Republic. The Czechoslovak instrument of ratification to the European Convention on International Trade Arbitration was deposited with the Secretary-General of the United Nations in New York on 13 October 1963. The Czechoslovak Chamber of Commerce or its President was designated to perform the functions referred to in Article IV of the Convention.
According to Article X (8), the Convention for the Czechoslovak Socialist Republic entered into force on 11 February 1964.
The Czech translation of the Convention is being announced simultaneously.
David v. r.
EUROPEAN CONVENTION ON INTERNATIONAL TRADE ARBITRATION
Signed below,
duly empowered,
who have gathered under the auspices of the United Nations Economic Commission for Europe,
and note that the Convention on the Recognition and Enforcement of Foreign Arbitration was signed at the United Nations Conference on International Trade Arbitration in New York on 10 June 1958,
in order to promote the development of European trade by removing, as far as possible, certain difficulties which could impede the organisation and operation of international trade arbitrage in the relationship between natural or legal persons of different European countries,
the following provisions have been agreed:
Scope of the Convention
1. This Convention shall apply:
(a) arbitration agreements concluded for the purpose of settling disputes arising from, or resulting from, international trade between natural or legal persons who, when concluding the contract, had their habitual residence or their registered office in different Contracting States;
(b) arbitration and findings issued under the contracts referred to in paragraph 1, (a) of this Article.
2.
(a) the term "arbitration contract" means either an arbitration clause contained in a contract or an arbitrator contract, the contract or agreement being signed by the parties or contained in an exchange of letters, telegrams or telex communications, and in relations between States whose laws do not require an arbitration agreement to be made in writing, any agreement entered into by such laws;
(b) the designation "arbitration" shall mean not only disputes between arbitrators established for an individually designated case (ad hoc arbitration) but also decisions by permanent arbitrators;
(c) the designation "seat" shall mean the place where the undertaking which concluded the arbitration agreement is located.
Eligibility of legal persons under public law to submit to arbitration
1. In the cases referred to in Article I, paragraph 1 of this Convention, legal persons who, under the law applicable to them, are considered to be "legal persons governed by public law 'may enter into arbitration agreements in force.
2. When signing, ratifying or acceding to this Convention, any Contracting State may declare that it limits the abovementioned possibility under the conditions specified in its declarations.
Eligibility of foreign nationals to act as arbitrators
Foreign nationals may also be appointed as arbitrators in arbitration to which this Convention applies.
Organisation of arbitration
1. The Parties to the Arbitration Treaty may negotiate
(a) submit its disputes to a permanent arbitration body; in that case, the arbitration procedure shall be governed by the rules of that institution; or
(b) submitting its disputes to the arbitration procedure on an ad hoc basis; in this case, they may in particular:
(i) appoint an arbitrator or establish the procedure under which the arbitrators shall be appointed in the event of a dispute;
(ii) determine the place of arbitration;
(iii) establish rules of procedure for the conduct of arbitrators.
2. If the Parties agree to present the decision of their disputes to an ad hoc arbitration procedure and if, within 30 days of the receipt of the arbitration request (application) to the defendant party, one of the Parties does not appoint an arbitrator, unless otherwise agreed between the Parties, shall be appointed at the request of the other Party as Chairman of the relevant Chamber of Commerce in the country in which the Party which is in delay at the time of the arbitration request has its habitual residence or registered office. This paragraph shall also be used to replace the arbitrators appointed by one of the Parties or the chairperson of the aforementioned Chamber of Commerce.
3. Where the Parties agree to submit a decision of their disputes to an ad hoc arbitration procedure, carried out by a single arbitrator or several arbitrators, without including such information as is necessary for the organisation of the arbitration procedure as referred to in paragraph 1 of this Article, such measures shall be taken by an arbitrator or arbitrators already appointed, unless the Parties agree on such measures themselves and subject to the case referred to in paragraph 2. If the Parties do not agree on the appointment of a single arbitrator or if the arbitrators do not agree on the measures to be taken, the applicant may, at his choice, request the implementation of such measures if the Parties have agreed on the place of arbitration, either the chairperson of the relevant Chamber of Commerce in the country of arbitration chosen by the Parties or the chairperson of the relevant Chamber of Commerce in the country in which the defendant has his habitual residence or seat at the time of the arbitration proceedings. If the parties have not agreed on the place of arbitration, the applicant may, at his choice, refer either to the President of the relevant Chamber of Commerce in the country where the defendant has his habitual residence, residence or registered office, or to the Special Committee whose composition and manner of action is laid down in the Annex to this Convention. If the applicant has not used the authorisation granted to him by this paragraph, the defendant or arbitrators may use those authorisations.
4. The President or the Special Committee may, on receipt of a request, on the basis of the nature of the case:
(a) appoint a single arbitrator, chairperson of the arbitrator, senior arbitrator or third arbitrator;
(b) replace one or more arbitrators appointed in a manner other than that prescribed in paragraph 2 of this Article;
(c) determine the place of arbitration, whereby arbitrators may choose another place of arbitration;
(d) determine the rules of procedure to be followed by the arbitrators, either by their direct establishment or by reference to the rules of a permanent arbitral institution, if the arbitrators, in the absence of an agreement between the Parties, have not established such rules of procedure themselves.
5. Where the parties have agreed to present the decision of their disputes to a permanent arbitral institution without appointing that institution, and if they cannot agree on its appointment, the applicant may submit a request for such appointment in a manner consistent with the provisions of paragraph 3 of this Article.
6. Where the arbitration agreement does not contain any information on the method of arbitration (arbitration with a permanent arbitration body or ad hoc arbitration) to which the parties have decided to submit their dispute and if the parties do not agree on this matter, the applicant shall be able to apply the procedure foreseen in paragraph 3 of this Article in this regard. The Chair of the relevant Chamber of Commerce or the Special Committee may either refer the parties to a permanent arbitration body or invite the parties to appoint their arbitrators within the time limit specified by them and agree within the same time limit on the measures necessary for the conduct of the arbitration procedure. In this last case, paragraphs 2, 3 and 4 of this Article shall then apply.
7. If, within 60 days of the date of submission of one of the requests referred to in paragraphs 2, 3, 4, 5 and 6 of this Article, the President of the Chamber of Commerce designated under one of these paragraphs does not comply with the request, the applicant may apply to the Special Committee to take over the duties which have not been fulfilled.
Objection of the arbitrator's incompetence
1. A Party wishing to raise an objection to the incompetence of an arbitrator based on the absence, invalidity or termination of an arbitral agreement may do so at the latest at the time of the submission of objections in the matter itself. An objection of non-competence based on the fact that the question at issue goes beyond the competence of the arbitrator may be raised by the arbitrator at the latest when the question at issue is raised during the arbitration procedure, the hearing of which would go beyond the competence of the arbitrator. An arbitrator may accept the application of an objection of non-competence if the delay in the application of the objection is due to a cause which the arbitrator considers sufficient.
2. Any objection of non-jurisdiction referred to in paragraph 1 of this Article which would not have been raised within the time limits referred to in this paragraph may no longer be invoked in the subsequent period of arbitration if the opposition which only the parties themselves may exercise under the law applicable by the arbitrator, or if it is no longer applicable in subsequent legal proceedings on the substance of the case or in respect of the enforcement of the arbitration finding, is left to the parties under the law laid down by the law of the Court of First Instance or the enforcement of the arbitration. However, the Judge may review the decision by which the arbitrator has established the late application of the objection.
3. Subject to a later judicial review permitted under the law of the Court of Justice, an arbitrator whose jurisdiction is in doubt shall not cease in the conduct of the arbitration procedure; be entitled to decide on its own jurisdiction as well as on the existence or validity of an arbitral agreement or contract forming part of an arbitral contract.
Jurisdiction
(1) The plea of incompetence of the court, which is to be relied upon by the court in proceedings initiated by one of the parties to the arbitration agreement and which is based on the fact that an arbitration agreement exists, must, under the threat of the loss of the right to object, be raised by the defendant either prior to the application of the objections in the substance of the case or, at the latest, at the same time as those objections, according to whether the law of the State in whose court the case is pending, considers the plea of incompetence to be a matter of procedure or a question relating to the substance.
2. When deciding on the existence or validity of an arbitration agreement, the courts of the Contracting States shall assess the eligibility of the parties under the law applicable to those parties and, as regards other issues, shall:
(a) under the law to which the parties have submitted their arbitration agreement;
(b) if no mention has been made of this right, under the law of the country in which the arbitration finding is to be issued;
(c) where no reference has been made to the law to which the parties have submitted their contract and where, at the time the question was brought before the court, it cannot be foreseen in which country an arbitration finding is to be issued under the law applicable under the rules of conflict of law of the Court of Justice.
The Court of First Instance may refuse to recognise an arbitration agreement if, under the law of its State, the dispute cannot be brought to the arbitration procedure.
3. Where an arbitration procedure has been initiated before any judicial proceedings have been brought, the courts of the Contracting States to which an action has later been brought concerning the same case between the same parties or concerning the finding of the absence, invalidity or termination of the arbitration agreement shall, unless serious reasons so prevent, postpone the decision on the matter of the jurisdiction of the arbitrator until the arbitration finding has been issued.
4. An application for authorisation of provisional or protective measures submitted to a court may not be considered incompatible with the arbitration agreement or as a reference to a judgment of the Court on the substance of the case.
Applicable law
1. The Parties shall have the power to determine the right which arbitrators are to use to decide on the substance of the matter. If the Parties do not designate the law applicable, the arbitrators shall apply the rights determined under the conflict rule which they shall consider appropriate in the present case. In both cases, the arbitrators will take into account the provisions of the contract and commercial practices.
2. The arbitrators shall act as mediators of the Agreement between the Parties if this is in accordance with the will of the Parties and if the law under which arbitration is governed so permits.
Reasons for the finding
It is assumed that the Parties agree that the arbitration finding must be justified, unless:
(a) the parties expressly declare that the finding will not be justified or that:
(b) they have undergone an arbitration procedure within which it is not customary to state the reasons for the arbitration findings, unless, in such a case, the parties or one of them have expressly requested before the end of the oral proceedings, or the oral proceedings have been held, i.e. before the date on which the finding is drawn up, that the reasons be stated.
Cancellation of arbitration
1. The revocation of an arbitral finding governed by this Convention in a Contracting State shall not give rise to a ground for refusal of recognition or enforceability in another Contracting State, unless it is pronounced in the State in which the finding was issued or under whose law it was issued for any of the following reasons:
(a) the parties to the arbitration agreement have been ineligible for action under the law applicable to them, or that contract is not valid under the law to which the parties have submitted to it, or, if they have not indicated such a right, under the law of the State where the finding was issued; or
(b) the party requesting cancellation has not been duly informed of the provisions of the arbitrator or of the arbitration procedure or has not been able to comment on the proceedings for other reasons;
(c) the finding concerns a dispute which is not covered by an arbitrator contract or which is not within the limits of an arbitration clause or contains a decision exceeding the scope of the arbitrator contract or arbitration clause; However, if the provisions of the arbitration finding on matters subject to arbitration may be separated from those relating to matters not subject to arbitration, the first of them may remain intact; or
(d) the composition of the arbitration panel or arbitration procedure was not in accordance with the arrangement of the parties or, failing that, was not in accordance with Article IV of this Convention.
2. In relations between the Contracting States which are also parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitration Findings of 10 June 1958, paragraph 1 of this Article limits the application of Article V (1) (e) of: The New York Convention shall apply only to the grounds of cancellation which this paragraph expressly states.
Final provisions
1. This Convention shall be open for signature or accession to States which are members of the Economic Commission for Europe and States which are admitted to the Commission in an advisory capacity under paragraph 8 of the Commission's mandate.
2. Countries which may participate in certain activities of the Economic Commission for Europe in accordance with paragraph 11 of the Commission's mandate may become Parties to this Convention by accessing it when it enters into force.
3. The Convention shall be open for signature by 31 December 1961 inclusive. Then it will be open to access.
4. This Convention shall be ratified.
5. Ratification or access shall be carried out by deposit with the Secretary-General of the United Nations.
6. When signing, ratifying or acceding to this Convention, the Contracting Parties shall send to the Secretary-General of the United Nations a list of the chambers of commerce or other institutions in their country whose chairmen shall be entrusted with the functions conferred on them by Article IV of this Convention to the chairmen of the relevant chambers of commerce.
7. The provisions of this Convention shall not affect the validity of multilateral or bilateral agreements relating to arbitrage already concluded or concluded by the Contracting States.
8. This Convention shall enter into force on the 90th day after the five countries to which paragraph 1 of this Article applies have deposited their instruments of ratification or accession. For each country subsequently ratifying or acceding to this Convention, this Convention shall enter into force on the 90th day following the deposit by that country of its instrument of ratification or accession.
9. Any Contracting Party may terminate this Convention by notifying the Secretary-General of the United Nations. The denunciation shall take effect 12 months after the date on which the Secretary-General receives the notice of denunciation.
10. If, after the entry into force of this Convention, the number of Contracting Parties is reduced to less than five as a result of the denunciation, the Convention shall cease to be effective on the date of the last denunciation.
11. The Secretary-General of the United Nations shall notify the countries referred to in paragraph 1 and the countries which have become Contracting Parties pursuant to paragraph 2 of this Article,
(a) declarations made pursuant to Article II (2);
(b) ratification and accession pursuant to paragraphs 1 and 2 of this Article;
(c) communications sent pursuant to paragraph 6 of this Article;
(d) the date of entry into force of this Convention pursuant to paragraph 8 of this Article;
(e) denunciation pursuant to paragraph 9 of this Article;
(f) the termination of this Convention pursuant to paragraph 10 of this Article.
12. After 31 December 1961, the original of this Convention shall be deposited with the Secretary-General of the United Nations, who shall send certified copies to each country to which paragraphs 1 and 2 of this Article apply.
They have signed this Convention in order to prove the undersigned, being duly empowered to do so.
Done at Geneva, 21 April 1961, in one copy in Russian, English and French, the three texts being equally valid.
Annex to the Convention
Composition and manner of action of the Special Committee referred to in Article IV of the Convention
1. The Special Committee referred to in Article IV of the Convention shall be composed of two permanent members and a Chair. One of the permanent members shall be elected by the Chambers of Commerce or by other institutions designated under Article X (6) of the Convention with the States at which, at the time the Convention is open for signature, the national committees of the International Chamber of Commerce are established and which, at the time of their choice, are parties to the Convention. The second member shall be elected by the Chambers of Commerce or by other institutions designated under Article X (6) of the Convention by States at which, at the time the Convention is open for signature, the national committees of the International Chamber of Commerce are not established and which, at the time of their choice, are parties to the Convention.
2. Persons called upon to serve as Chairman of the Special Committee under the conditions set out in paragraph 7 shall also be elected by the Chambers of Commerce or by other institutions in the manner set out in paragraph 1 of this Annex.
3. The chambers of commerce or other institutions referred to in paragraph 1 of this Annex shall elect, at the same time and under the same conditions as the chairmen and permanent members, alternates of the chairmen and permanent members of the Special Committee in the event that the chairmen or permanent members are temporarily unable to carry out their duties. If the President or a permanent member is unable to perform his duties or resign permanently, the alternate elected shall become chairman, where appropriate, of the permanent member and a group of chambers of commerce or other institutions which have chosen an alternate who has become chairman or permanent member shall elect a new alternate.
4. The first elections of the Committee shall take place within 90 days of the deposit of the fifth instrument of ratification or accession. These elections may also be attended by the Chamber of Commerce or other institutions of States that have signed the Convention but have not yet become parties to it. Should the elections not be possible within that period, the application of paragraphs 3 to 7 of Article IV of the Constitution shall be suspended until the abovementioned elections are implemented.
5. Subject to paragraph 7, the members of the Special Committee shall be elected for a period of four years. The new elections will be held in the first six months of the fourth year counted from the previous elections. If the new election of the members of the Committee does not lead to results, the elected members shall remain in office until the new members are elected.
6. The results of the elections of the members of the Special Committee shall be communicated to the Secretary-General of the United Nations, who shall notify them to the States referred to in paragraph 1 of Article X of this Convention, as well as to the States which shall become Contracting Parties pursuant to paragraph 2 of Article X. The Secretary-General shall also notify those countries of any cessation of effectiveness and re-application of paragraphs 3 to 7 of Article IV of this Annex.
7. The persons elected by the President shall exercise their duties alternately over two years. The delegation of office of President to one of the two persons elected under the terms of paragraph 2 shall become a draw for the first period of two years after the entry into force of the Convention. The Presidency shall then, for a further period of two years, belong to the person elected by the President, with the parties of a group of States different from the group which elected the President who served his duties during the immediately preceding period of two years.
8. Requests to the Special Committee under Article IV (3) to (7) of the Convention shall be submitted to the Executive Secretary of the Economic Commission for Europe. The Executive Secretary shall forward them first to a member of the Special Committee elected by a group of countries other than the group which elected the President of his post at the time of the request. The solution proposed by the member to whom the Executive Secretary first contacted will be submitted through the Executive Secretary to the other member of the Committee and, if the latter agrees, will then be considered as a decision of the Committee and will be communicated by the Executive Secretary to the applicant.
9. If both members of the Special Committee, to which the Executive Secretary has referred, cannot agree on a solution in writing, the Executive Secretary of the Economic Commission for Europe shall convene a meeting of the Special Committee in Geneva to try to reach a unanimous decision on the application. If unanimity is not reached, the decision of the Committee shall be taken by a majority vote and communicated by the Executive Secretary to the applicant.
10. The costs associated with the deliberations of the Special Committee in the dispute which will be governed by this Convention shall be paid by advance payment by the appellant who shall be entitled to use them as expenses of the proceedings.
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Regulation Information
| Citation | Decree No. 176 / 1964 Coll., on the European Convention on Commercial Arbitration |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 19.09.1964 |
|---|---|
| Effective from | 11.02.1964 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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