Competence of Arbitral Tribunals. Are there Limits to Decide on the Arbitrators' Fees?

Inhaltsverzeichnis (Table of Contents)

• INTRODUCTION
• I. THE FEE DETERMINATION AS A DECISION IN OWN AFFAIRS
  • A. Limits to Party Autonomy
  • B. Classification of the Problem - Basic Constellation of Nemo Iudex In Causa Sua
  • C. Conclusion
• II. COMPETENCE ARISING IN THE PHASE OF THE ARBITRAL PROCEEDING
  • A. Legal Basis for Right to Remuneration - Receptum Arbitri
    • 1. Ad-Valorem Method
    • 2. Time-Based Remuneration Method
    • 3. Conclusion
  • B. Institutional Arbitration Proceedings
    • 1. Agreement between Parties and Tribunal
    • 2. Fees Fixed with the Issuance of the Award
    • (a) Competence under the UNCITRAL Arbitration Rules
    • (i) Changes to the Determination of Costs in 2010
    • (ii) Evaluation
    • (b) Competence through Virtue of National Law
    • C. Ad-Hoc Arbitration Proceedings
    • D. Conclusion
  • III. LIMITS AT THE STAGE OF ENFORCEMENT AND RECOGNITION
    • A. German Case Law on the Tribunal's Competence
      • 1. Status Quo Prior to the BGH Order
      • (a) Importance of an Advance on Costs
      • (b) Determination of Value in Dispute
      • 2. BGH Decision, 2 March 2017
      • (a) Facts of the case
      • (b) Analysis of the Decision
      • (i) Prohibition of Authoritative Fee Determination
      • (ii) Conflict with previous BGH Jurisprudence
      • (iii) Evaluation of the Order's Consequences
      • 3. Conclusion
    • B. International Jurisdiction
      • 1. Parties' Implied Consent through Choice of Procedural Law
      • (a) Advantages
      • (b) Disadvantages
      • 2. Possibility of Review by State Courts
      • (a) Advantages
      • (b) Disadvantages
      • 3. Validity of Fee Determination, Though Without Res Judicata Effect
      • (a) Disadvantages
      • (b) Advantages
      • 4. Conclusion
    • C. International Reception of the BGH-Order
  • IV. SUMMARY
  • V. CONCLUDING REMARKS

  Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

  This seminar paper aims to examine the limits of arbitral tribunals' competence in determining their own fees, exploring the legal framework and case law within both national and international contexts.

  • The principle of party autonomy in the context of arbitration
  • The legal basis for the arbitrators' right to remuneration
  • The competence of arbitral tribunals to determine their fees in different stages of the arbitration process
  • The implications of the German Federal Court of Justice's decision on the competence of arbitral tribunals to determine their fees
  • The international reception of the BGH decision and its implications for the enforcement and recognition of arbitral awards

  Zusammenfassung der Kapitel (Chapter Summaries)

  The first chapter discusses the issue of fee determination as a decision in own affairs, analyzing the limitations to party autonomy in this context and the application of the principle of nemo iudex in causa sua. The second chapter explores the competence of arbitral tribunals to determine their fees during the arbitration proceedings, considering both institutional and ad hoc arbitration proceedings. The chapter examines different methods of fee calculation, including ad valorem and time-based approaches, and analyzes the competence of tribunals under the UNCITRAL Arbitration Rules and national law.

  Schlüsselwörter (Keywords)

  The central themes of this work revolve around arbitral tribunals' competence to set their own fees. Key concepts include party autonomy, legal basis for remuneration, institutional and ad hoc arbitration, fee determination methods, enforcement and recognition of awards, and the BGH decision on the competence of arbitral tribunals.

  Frequently Asked Questions

  What is the principle of "nemo iudex in causa sua"?

  This centuries-old doctrine states that no one should be a judge in their own affairs. It is a key rule of natural justice and essential for a fair trial.

  Can arbitral tribunals decide on their own fees?

  The paper examines this controversial issue, exploring whether there are legal limits to a tribunal's competence to determine its own remuneration, especially in light of impartiality requirements.

  What was the landmark decision by the German Federal Supreme Court (BGH)?

  The BGH decision of March 2, 2017, addressed the prohibition of authoritative fee determination by arbitrators and has significant implications for the enforcement of awards.

  What is the difference between ad valorem and time-based remuneration?

  Ad valorem fees are based on the value in dispute, while time-based remuneration is calculated according to the actual time spent on the case by the arbitrators.

  How do UNCITRAL Arbitration Rules handle costs?

  The paper analyzes the changes made to the UNCITRAL rules in 2010 regarding the determination of costs and how they affect the tribunal's competence.

  What are the risks during the enforcement stage of an award?

  National courts may set restrictions or refuse to recognize an award if they find that the tribunal exceeded its competence or violated principles of justice during fee determination.