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31 ASA Bull. 262 (2013)
Importance of the Seat of Arbitration in International Arbitration: Delocalization an Denationalization of Arbitration as an Outdated Myth

handle is hein.kluwer/asab0031 and id is 282 raw text is: Importance of the Seat of Arbitration in International Arbitration: Delocalization and Denationalization of Arbitration as an Outdated Myth ALEXANDER J. BtLOHLAVEK* I. Definition of the seat of arbitration The seat of arbitration used to be unduly dismissed by the parties when negotiating their arbitration agreements.1 In recent years, however, an agreement on the seat of arbitration has become a regular component of arbitration agreements, at least in international disputes. In any case, the seat of arbitration has a major practical importance in arbitration2, and it directly influences a number of issues: arbitrability, determination of the governing law, whether substantive or procedural, and determination of the place for the annulment proceedings of the arbitral award (and for the exercise of powers of the juge d'appui and supervisory functions of courts with respect to arbitration). The parties should therefore pay careful consideration to the choice of the seat of arbitration and remember that the seat of arbitration need not necessarily be the place in which the individual procedural acts are implemented or the place where hearings are held; conversely, it is principally possible for the case to be fully resolved without the arbitrators and/or the parties actually visiting the seat of arbitration chosen by the parties or determined otherwise.3 The seat of arbitration must be distinguished from the place of hearings (usually referred to as venue or place of hearings), i.e. the place where Professor dr.iur. Alexander J. B61ohlvek, Prague, Czech Republic. Unless stipulated otherwise, the words arbitration clause and arbitration agreement in this article are used interchangeably. 2 For a very detailed analysis of the issue of the seat of arbitration, see also S. Jarvin, The Place of Arbitration. Swedish and International Arbitration, Stockholm: Arbitration Institute of the Stockholm Chamber of Commerce (1990); S. Jarvin, The place of arbitration, 7(2) ICC Bulletin, 54-58 (1996); T. Nakamura, The Place of Arbitration in International Arbitration: Its Fictitious Nature and Lex Arbitri, 15(10) International Arbitration Report, 23-29 (2000); T. Nakamura, The Fictitious Nature of the Place ofArbitration May Not Be Denied, 16(5) International Arbitration Report, 22-23 (2001); A. Philip, The Seat of Arbitration as Place of Arbitration, and Limits to Court Intervention in Procedural Decision, in Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention. ICCA Congress Series No 9, Kluwer Law International (A. J. Van Den Berg, (ed.), (1999)); A. Philip, The Significance of the Place of Arbitration in International Arbitration. Swedish and International Arbitration, Stockholm: Arbitration Institute of the Stockholm Chamber of Commerce (1985); A. Samuel, The Effect of the Place of Arbitration on the Enforcement of the Agreement to Arbitrate, 8(3) Arbitration International, 257-280 (1992). 3 G. B. Born, International CommercialArbitration 1249 (2009). 31 ASA BULLETIN 2/2013 (JUNE)

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