How Can I Sign New York Banking Arbitration Agreement

How can i industry sign banking new york arbitration agreement

is the founder and chair of adversary board of biamc at machia university professor panchana is also listed as a legal representative and expert witness in several international arbitrations and also listed as a mediator or consulate in international and international dispute settlement professor supanjana is also a member of working group 3 related to evaluation and impacts analysis of indonesian economic package national tax course on speeding up an effectiveness in the implementation of economic policy package in coordinating ministry for economic affairs also a member of special legal expert team for the ministry of defense professor supan in the past was also a consultant for improving indonesia business climate through streamlining the ministry of trades laws and regulations related to export import procedure in 2016 until 2017. professor panchana was also a senior regulatory training specialist delivery of toolkit for the designing and implementation of economic policy reforms in coordinating ministry for economic affairs jakarta and bandu 2017 professor supanchana for the session the time is yours perhaps you can unmute it first bro okay thank you yes we can hear you okay thank you for the introduction to the moderator and good morning to my dear members of the international law community uns i have some good friends good colleagues from the uns yeah dr hari purwadi bhu amy also my good friends first of all on behalf of the bali international arbitration and mediation center i would like to express my gratitude and it is also an honor for bmc to be invited at this uh legal visit 2020 yeah organized by the international law community of ums for your information the issue of arbitration and pandemic situation has already been actually by the bali international arbitration and mediation center for your information last year's bmc summit in bali we have already discussed on the online dispute resolution including online arbitration due to the emerge of new technology yeah even a very hard discussion was uh at that time sparked the issues on whether a human being can be replaced by the ai based robot acting as arbitrator it's very interesting topic also today i am assigned by the committee to talk about the step by step of international commercial administration its proceedings award and enforcement for your information in the last two years i'm handling an international case at the icc at the international chamber of commerce as the chief councils on behalf of the ministry of defense there is a case between a company in hungary and liechtenstein against the minister of defense regarding the indonesian satellite communication project let me start with the systematic place next slide please yes i'll use the uh simple systematic i will start with the international arbitration agreements because there is no arbitration without agreements so agreement is very important in the arbitration case and secondly related to the appointment of arbitrators in international arbitration because arbitration arbitrators is very important in the process of settling the international disputes through arbitration uh and then i will uh follow up with the proceedings award and enforcement in international agitation and some list of relevant international instruments for your reference yeah next please yeah this is the about the international arbitration agreement yeah as you may uh aware that uh arbitration agreement can be in the form of the what we call it the agreement pre or before the dispute arise and also in the form of an agreement after the dispute arise yeah next please yeah basically as i have already mentioned that there is no arbitration without agreement although we know that under for example immediate principles of international commercial contract at 2016 and based on for example uh united united nation convention and contract of international sales goods that an agreement can also be in the form of oral agreement but can also be in the form of or incorporated by conduct or common usage or by conduct based estoppel or incorporated by reference but as far as the arbitration is concerned when you would like to submit a case before the international court of arbitration for example you have to show a written agreement so there must be a proof that there is an agreement that referred to the settlement of dispute through arbitration next this yeah this is uh the types of instruments that contain arbitration classes can be in the form of contract trust corporate articles of agreement or even in the form of the testamentary wills next sometimes we are also facing some what we call it as a problematic arbitration agreement it can be in the form of no and void arbitration agreement we cannot make for example an arbitration clause at the settlement of dispute clause which refer to for example an agreement which is forbidden by law for arbitration on gambling issues for example it is it is a no android arbitration agreement and also we also find some inoperable and ineffective arbitration agreements for example in the agreement if only referred to arbitration but without further elaboration whether the arbitration forum is chosen by the parties for example whether it's subject to certain rules of arbitration the language of arbitration governing law and everything so we have to be careful when we try to write an arbitration agreement to make it effective and operable instead of inoperable and effective ineffective arbitration agreements now i would like to talk about the appointment of arbitrators in international arbitration next slide please yes we will talk about the parties autonomy to select arbitrators because basically it is uh upon the approval of party uh to uh select the arbitrators within within the rules and procedures of arbitration whether it is an institutional arbitration rules or whether it is based on rules of arbitration as agreed by the parties uh talking also about the exercise of party autonomy to select arbitrators restriction concerning arbitration etc next place i would like to elaborate in uh one by one regarding the parties autonomy to select arbitrators it is reflective in some international instruments such as under new york conventions under the national arbitration legislation for example and also under some institutional arbitration rules like icc rules or considerable rules or other rules yeah and then there is some consequences of failure to comply with contractual appointment mechanism for arbitrators because they will face some difficulties in selecting arbitrators at the later next we are talking about the exercise of parties autonomy to select arbitrators next next slide this yes yeah this is uh uh exercise of parties autonomy to select arbitrators it is to up it is up to the consent of the disputing parties actually uh to select whether they would like to select one arbitrator or three arbitrators or even more yeah and also it is up to the consent of the disputing parties also to to define the method of selection of arbitrators whether it is based on institutional rules or it is based on their concerns for example next next slide please we are talking about the number of arbitrators as i have uh talked previously that it can be based on uh soul arbitrator it depends actually on the complexity of the case if the case is very simple then maybe the parties can agree on selecting only one sole arbitrator but if the case is for example more complicated than maybe the parties should have the preference to select what they call it an arbitration tribunal which consists of three arbitrators and can can be more yeah next please uh next yeah we are talking about the method of selection of arbitrators basically when there is a case of arbitration and one party submit for example a request for arbitration and in such a document of request for arbitration they also appoint or nominate a co-arbitrators yeah while for example in the answer to the request for arbitration it is based on for example icc rules the the other party yeah respondent may also select co arbitrators and and and of course uh uh they could also then appoint uh another arbitrator to be the president of the arbiter tribunal and there are some procedures yeah in general there are some procedures by interviewing interviewing the prospective arbitrators and also asking for their availability etc sometimes in selection in selection of arbitrators in in our case yeah in in the case that we handle on on behalf of the ministry of defense at the international chamber of commerce for example at one time we challenged we challenged the nomination of arbitrator as proposed by the claimant why because at that time we tried to provide the nominated arbitrator and we found out that she has a certain relations with the councils of the claimant for example so this is something against the basic principles of arbitration that an arbitrator should be freed from any conflict of interest yeah so sometimes uh sometimes the party may challenge the nomination of arbitrator based on the basic principles of arbitration next we are talking about the restriction concerning next slide this yes we are talking about the restriction concerning arbitrators impartiality nationality qualification and experience under national law basically basically one of the basic principles of an arbitrator is that of course he knows the way to manage the arbitration process especially those to be appointed as the president of the arbitration tribunal and actually the arbitrator can be those who have background legal background or without any legal background but in certain uh jurisdiction for example there are some restrictions yeah for example there is a requirement for arbitrators independence and impartiality but this is a must sometimes there is some requirements on nationality of soul and presiding arbitrators and then also some legal qualification and civil rights there are some requirements to be appointed as a arbitrator next we are talking about the requirements uh next slide yes next slide please yeah we are talking about the requirements of arbitrators independence and impartiality as i have mentioned previously it is the very basic principles in the arbitration proceedings that an arbitrator should be independent and impartial to the parties or to the disputing parties these requirements are reflected under for example national arbitration legislation you can find it in many national legislation concerning arbitration that this requirement is very important but you can't but you could also find under some institutional arbitration rules like constitutional rules for example or exit rules or icc rules or any other institutional arbitrations like hong kong international arbitration center rules or cia rules etc and it is also can be found out from the iba guidelines international bar association guidelines on conflict of interest on the provisions of disclosure obligation of arbitrators and uh and and and there are some of course some ground for funding lack of impartiality yeah as i mentioned that based on our uh profiling to one of the arbitrators dominated by one party we found out that there is a potential violation regarding the independency the impartiality the neutrality of an arbitrators that's why this requirement of arbitrators independence and impartiality is very important next a slide this is about contractual limitation on arbitrators qualification sometimes there are some contractual national requirements contractual language requirements expertise and accreditation requirements legal qualification and some prohibition against legal qualification and uh next next slide this is regarding the procedures for challenging arbitrators yeah in our case for example we challenge the nomination of co-arbitrators as nominated by the claimant based on the icc rules for example this is what we call it the institutional challenges okay next now we come to the the most important part actually of uh this presentation regarding the international arbitration proceedings award and its enforcement yeah we are talking about the beginning of arbitration the beginning of arbitration normally depends on for example uh depends on the provisions under the arbitration agreement among the parties whether for example they refer to a certain form refer to a certain rules and in our case for example it is based on the icc rules when it is based on the icc rules the beginning of the arbitration [Music] mostly will be started with the submission of requests for arbitration so there was a request beginning of arbitration it started with the request for arbitration to the to the for example icc secretariat and then the icc secretariat pass this request for arbitration to us as respondent or as counsel of the respondent to response and then to prepare what we call it the answer to the request for articulations based on other rules for examples they prefer to use the terminology of notice of arbitration instead of request for arbitration so it is more depends on the rules that have been selected by the parties in their arbitration agreement after uh the parties submitted requests for arbitration and the other parties submitted the answer to the request for arbitration they were they will be dealing with some preliminary issues yeah and in some rules for example there is a requirement to prepare also a statement of claim and statement of uh defendant yeah i would like to directly go through the hearing process to the hearing process of course with the assumption that the parties have agreed on the tor what we call it the term of reference they have discussed everything about the arbitration process they have agreed on for example they have agreed on appointment of all the arbitrators and then all the bundles all the bundles of the case have been transferred from the secretariat of the for example of the international chamber of commerce a court of arbitration to the arbitration tribunal and then the two parties have to agree on what is called as the tor term of reference yeah to prepare uh everything for the hearing the hearing process and of course during that period the president of the tribunal issued some procedural orders and sometimes they also uh order to hold what we call it as a case management conference call yeah case manage management conference call can be uh in the form of telephone calls conference calls but can also be in the form of a video conference call yeah to discuss everything on the procedural matters before start the healing process next now we come to the video next uh next slide please next slide yes this is the hearing process in the hearing process in principle the chair can decide procedural issues regarding the place of the hearings local bar requirement whether uh uh is decided for the close hearings on the record proceedings for example record of proceedings by the tribunal for example uh uh can uh appoint a third party to record the proceedings and to prepare uh the minutes yes the minutes of the hearing process and and then to select the technology to be used yeah and then time limits per site default appearance expedited proceedings etc yeah next uh next slide then we are talking about the presenting evidence yeah before uh i'm talking about the presenting of evidence i would like to inform you that due to the pandemic situation also and under certain articles of the icc rules that uh if a party if a party insists for example if a party insists that there must be a physical hearing instead of virtual hearing then the tribunal should hold what we call it as a physical hearing but due to the pandemic situation finally we agreed that instead of physical healing we agreed to conduct what we call it as a virtual hearing so in our case yeah in the pandemic situation we hold a hearing uh last month in september yeah for three days for three days we hold the virtual hearings and this is about the presenting of evidence there are some rules on presenting evidence including iba rules of evidence and then there are some documentary evidence can be in the form of hearsay evidence authentication legal documents legal documents is very important yeah in the international commercial arbitration and of course a ove all it will be arbitrator discretion to uh for example to desire whether to use this evidence as a consideration uh to issue uh award to the parties next the next slide please we are talking about the uh fact witness yeah as as you may aware that in the international arbitration cases parties are allowed to propose witness yes whether it is an expert witness as well as also a fact witnesses effectiveness in principle may provide its testimony prior to the hearing he could also provide in some cases for example provide some written witness statement yeah and if a party for example choose to have effect witness this the one who could be appointed as fact witness is the one who actually knows exactly uh the case yeah knows exactly the project that knows exactly the the the contract among the parties yeah in our case for example we did what we call it as a cross examination so we have received we have received the written fake witness from a key witness a key fact witness in the case and based on this written witness statement provided or proposed by the claimant then we do cross-examination to know exactly the consistency the truth and everything regarding the written statement that he made in the fact witness and after the hearing process including the process of cross-examination to the witness then for example the the arbitration tribunal gives some opportunity for the parties for example to prepare what we call it as the close closing submission yeah close before before the tribunal uh prepare and consider to issue the award and normally they give opportunities to the parties and based on the consent of the parties to prepare what we call it as the closest uh submission in our case at the moment we are still preparing a closing submission and including submission regarding to the cost quiet yeah now we are talking about uh the next the next slide we are talking about the types of award yeah about the award the award uh uh can be in the form of the orders we have to know to make a distinction between orders and awards orders normally referred to the procedural orders during the process while the award is very important as the final product of the arbitration tribunal we are talking also about the types of award validity of award remedies and costs rest judicata effect confidentiality of the award and post post award proceedings next please uh yeah there are some types of awards actually there is some interim awards uh there's also partial award uh final award consent award even we are now after the arbitration process after the hearing process the two parties at the moment is considered considered to get uh an amicable settlement within the arbitration process so this is actually uh what we call it as a hybrid process the combination between arbitration mediation and arbitration or we call it this art map art because when we found out based on all the documentation based on the documents from the two sides based on the information based on the fact at this time we consider to settle the dispute through mediation process within the arbitration so when for example in 10 days we are trying to agree on everything for example including settlement of payment and everything then we would like we would like to encounter to incorporate the consent in the mediation process within the arbitration process into what we call it as the consent award so the consent award is actually award issued by the tribunal but the content of the award is actually based on the consent of the disputing parties while this default award is the award issued by the tribunal in the case that one party absence from the arbitration process next uh we are talking about the validity of the award yeah the validity of the award can be seen from its formalities communication time limits and it also consists of for example concluding or dissenting opinion reviews among the arbitrators and then scrutiny of the draft award and then finally see clarity and scope as a principle of the validity of the award and in some award it also it could also contain some uh issues regarding the remedies and costs next slide this is about remedies and costs for example there was a breach of certain contracts which caused damages to one party and then they the claim for compensation for example then all this will be calculated yeah the monetary damages and then they have to also calculate the interest other remedies because for example they invite third party funding to fund the arbitration process for example and other costs it is all calculated yeah and then it will be a part of the award of the tribunal next if the award has been delivered is there any possibility for a party to set aside or to cheat or to challenge the award there are some methods of challenge and there must be some grounds of challenge and there are some provisions on time limitation and there are also some effect if the challenge is successful for example next we are talking about the grounds of challenges challenges uh can be in the form of the jurisdictional challenges for example yeah i would like to give you an example of one article under the agreement between the parties if the parties agree in their agreement that there must be some steps to be taken by the parties prior to submitting the case to the arbitration and if one party can prove that all this process has not been done by another party so he can challenge he can challenge or this party can challenge the arbitration process based on this jurisdictional challenge so if this judicional challenge successful then the case the the arbiter tribunal will decide that the arbitral tribunal has no jurisdiction over the case and the case closed under this arbitration tribunal um my apology to interrupt yes the time remaining is five minutes five minutes okay i hope i can finalize in five minutes and there are some procedural challenges of course and challenges based on the merit and next slide we are talking about the enforcement of the awards yeah we are talking about the application of international convention on recognition and enforcement of foreign awards indonesia is a party to the convention on the recognition and enforcement of a foreign administration award for example and there are some principles governing recognition and enforcement there are some requirements for enforcement but also there are some grounds for enforcement under the convention yeah now we are talking about the requirement for enforcement next place yeah it consists of some scope jurisdiction and foreign non-convenient for example and procedures for the enforcement and there are also some grounds for the non-enforcement under the convention next yeah this is the ground for non-enforcement under the convention it is related to the incapacity and invalidity of the award in capacity of the tribunal lack of notice or fairness to the parties arbitrator acting in excess of authority for example the tribunal or the procedures is not in accord with the party's agreement and if also the award is not yet binding or has been set aside and then there are some subject matter not arbitrable or based on public policy in indonesia most of the objection to enforce administration uh mostly based on the public policy and there is a good dissertation on that uh written by professor cynical london she was the assistant of professor sudargo gaultama final uh final uh uh next next final slide is the list of relevant instruments for your preference i think uh this is to end my presentation thank you very much for the moderator thank you very much for professors for such an interesting and fresh materials for us students to learn more about arbitrations especially the procedures there are many interesting questions but there are if i could conclude two questions in one um relating to the conflict of interest in terms of the testify procedures um how if a witness is unwilling to present and how is the iba guidelines addressing this since article 12 of the uncentral model law on international commercial arbitration has provided that the justifiable job is enough to challenge the appointment of an arbitrator so party doesn't necessarily have to prove the conflict of interest how is uh the iba guidelines addressing this group i think the conflict of interest majorly occurred in several proceedings in arbitration especially yeah i will not uh specifically refer to the iba guidelines because this iba guideline is is not always not on always bound parties yeah but uh the principles of uh no conflict of interest is very important in nominating as well as appointing an arbitrator yeah i would like to tell this is the real story about our case for example we found out that based on our profiling yeah this this uh nominated arbitrator has a special relationship for example he or she was a professor of one council from one party we found out that and then secondly he he or she when he or she was uh the help of a law firm in one area for example this law firm the love his or her law firm with the law firm of the councils have for example have an agreement to cooperate and the third that we found out for example is that her act toward the government of indonesia toward the government of indonesia is always against the government of indonesia as reflected in his or her articles for example so when we have such an arbitrator to settle the disputes in our case it will be for the disadvantaged of us yeah well it will be for the advantage of the other the other party so this non-conflict of interest principle is is very important and we need some clarification from him or her on our accusation that that she has some she or he has some conflict of interest i don't want to mention the name yeah because the basic principles of uh uh arbitration is very uh secret to other parties yeah and and that was the case yeah the conflict of interest independency impartiality of arbitrator is the key issues that is very important because even though she is nominated by one party but she must be she must be dependent uh she must be independent yeah she must be impartial she must be neutral she must have no conflict of interest to the other party that is very important if we would like to have a neutral award uh as a final award for example yeah that's my answer to the questions thank you prof subscriber for answering the questions i think due to the limited limit of time i will choose two more questions um which haven't been addressed before i think um the topic of um artificial intelligence pro this is this one is from tini kartika um i would like to ask how is the procedure of the arbitral proceeding by using artificial intelligence such as robot could you explain more the challenge and the benefit using artificial intelligence yeah yeah yes maybe some of you have read the book of claus swapp yeah the president of the world economic forum in his book industrial revolution 4.0 yeah industrial revolution 4.0 in his book industrial revolution 4.0 professor claus swapp have mentioned that the uh the the integration yeah or convergence of three basic technology information and communication technology physical technology and biological technology may change the way we do everything including the way we do business this include this include the technology what is called as the artificial intelligence technology and in the future yeah much more of the works will be done by robot based on artificial intelligence for example when we are talking about virtual banking for example if we are talking about virtual banking in the future there will be some banks without any human intervention there yeah everything will be served by this ai based robot yeah in our discussion in bali international arbitration and mediation summit last year in october or november last year professor chaoyun at that time also attended the the conference there was a very hard discussion between delegates from america and delegates from australia the delegates from america for example insist that in the future the position of arbitrator can be can be replaced by the ai-based robot why because this ai robot robot is a learning machine so if you put all the data's there all the information there they can easily make a decision and they they can make a decision faster more accurate and there is no distraction from for example there is no doubt about its independency impartiality and there will be no conflict of interest that was that was the position at that time by the the u.s delegates but on the other hand the australian delegates at that time insist that even through even though in some ways some profession can be replaced by the ai based robot this this what we call it is a learning machine yeah but at the end robot cannot be made responsible cannot be made liable at the end control over ai robot is still in the hand of the human being so this two approach emerged during the discussion yeah but at least at least these are some ideas that in the future in the future some legal profession including arbitrator can be replaced by this ai robot or this is what we call it as a learning machine yeah that is my answer to the questions thank you thank you thank you professor and professor i mean for the answer i think one more question um okay from um from agata prof i would like to ask if in arbitral proceeding the party want to bring the joiner but the party but the third party who was elected to be a gender refused in this case whether the arbitration tribunal can break for the gender presence or not thank you in advance yes uh in our case there was the case yeah one party as a claimant yeah proposed to have a second claimant this second claimant because there is an agreement between the two parties between the the first claimant and the second claimant but from our side we have no agreement with the second claimant so based on what we what we call it is a privacy of contract this second claimant is the third party and the arbitration agreement is only between claimant and respondent and not involve this third party so at that time at that time we challenged yeah we challenged the proposal for uh for joiner from the claimant yeah because there is no relation between between us and and the second claimant that that was the case yeah thank you thank you thank you from china for the answer i think that's all for the questions and for those of you who haven't mentioned in this session you can perhaps uh directly address the question from perhaps if you send it to my email email okay what thank you for today's session i think um that's all for today's session for people