Question 1: The Source of Arbitral Rules
Arbitration is a kind of alternative dispute resolution (ADR) where disputes are settled outside the court. The arbitrator or arbitral tribunal resolves the differences and gives the arbitration award, which is enforceable in court since it is legally binding. International arbitration is specially created under the international law to settle international disputes arising from contractual or other relationships with a global aspect. Independent arbitrators adjudicate in the process through application of arbitral rules.
Various sources of arbitral rules apply which provide legally binding structures and procedures when solving disputes. The primary sources of arbitration rules are international treaties and national laws. Nationally, arbitral rules are instituted under the law that govern arbitration as an alternative dispute resolution process. At the international level, the rules are the instruments relating to arbitration law as agreed upon under the international treaty. The main international agreement governing arbitration is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards.[1] The “New York Convention” contains the rules and procedures through which the arbitration process should be conducted, especially for disputes that occur at the global scale. Almost all commercial countries have ratified the convention, which means that they are subject to the arbitration rules. International agreements that contain arbitral regulations and can be used in dispute resolution include The Geneva Protocol of 1923, The Geneva Convention of 1927, The Washington Convention of 1965, The European Convention of 1961, and The UNCITRAL Arbitration Rules, among others.[2] The conventions are critical in addressing commercial disputes.
Although the national sources of the arbitral rules can apply to major disputes, those provided under the international treaties are more effective in solving such conflicts. They are the best source of fair and equitable protection of the interest of all parties where one party has a superior bargaining advantage. When one of the parties has such influence, the national law becomes highly accessible and subject to manipulation to protect the interests of the more powerful party. Conversely, when the source of the arbitral rules is international, it is less likely that the person with higher power can have access and manipulate the law.[3] Application of arbitral regulations that are international provides a more objective process of resolving disputes and protecting the interests of all parties involved. The neutrality of the arbitrator(s) is guaranteed because of the minimal chances of either party having possible influence on them.
Question 2: Shell Egypt West Manzala v Dana Gas Egypt Limited [2009]
In the case of Shell Egypt West Manzala v Dana Gas Egypt Limited [2009], Mrs. Justice Gloster ruled in the favor of Shell and the right of the company to appeal the previous arbitration award.[4] According to Justice Gloster, the court had the jurisdiction to listen to the appeal filed by Shell following the UNCITRAL arbitral award. The case relates with the section 69 of the Arbitration Act 1996, which is one of the sources of law governing the arbitration process.[5] The clause is a non-mandatory provision that allows English arbitral awards to be appealed on a point of law. However, a controversy surrounded the application of this rule in the case considering that the parties had already received an arbitration award under the English arbitral law.
In agreeing with the judgment allowing Shell to file an appeal to the UNCITRAL arbitral award, the wordings, “final, conclusive, and binding.” are insufficient to bar a party from filing for an appeal to an arbitration award. Regardless of the way the statement has been interpreted in the past, the words should not be used to deny the party the right to get justice and fairness in the case by appealing a previous ruling. In the judgment, it is essential to understand the source of the arbitral rule, including the actual words and what they mean to the disputing parties. While the LCIA Rules (Rule 206) and the ICC Rules (Article 28.6) might have words that are meant to exclude parties from appealing an arbitration award, section 69 does not contain clear wordings or waiving of the right to appeal.[6] Therefore, without clear wording to prevent such an appeal, Shell had the right to appeal the decision and possibly have a chance to get a more satisfactory judgment.
Conclusion
As it is palpable from the analysis, arbitration is a critical process under the national and international law as a form of alternative dispute resolution process. Various arbitral rules are evident in the process, including under the national and international treaties. Evidence from the case of Shell Egypt West Manzala v Dana Gas Egypt Limited [2009] shows the importance of understanding the source of the arbitral rules that applies to particular cases to prevent causing more disputes from the arbitration award. Furthermore, it is imperative to understand the actual words of the specific clause used in making the judgment. Such information is necessary to understand the rights of the parties involved in the dispute during and after the arbitration award.
[1] G Cordero-Moss, International commercial arbitration: different forms and their features. Cambridge University Press, 2013], 86.
[2] G Born, International commercial arbitration. [Vol. 1. Kluwer Law International, 2009], 151.
[3] AJ Van den Berg, International commercial arbitration: important contemporary questions. No. 11. [Kluwer Law International, 2003],183.
[4] Shell Egypt West Manzala v Dana Gas Egypt Limited [2009]
[5] Dedezade, Taner. “Are You In? Or Are You Out? An Analysis of Section 69 of the English Arbitration Act 1996: Appeals on a Question of Law.” INT’L ARB. L. REV. 9 [2006], 56.
[6] AJ Van den Berg, International commercial arbitration: important contemporary questions. No. 11. [Kluwer Law International, 2003],183.
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