Prof. Dr. Stefan Kröll on Arbitration, November-December 2021
Over a period of three weeks, we had the pleasure of attending a series of lectures by Prof. Dr. Stefan Kröll, a celebrated academic and practitioner in the field of International Commercial Arbitration. The three lectures that were given during that time dealt with the issues of arbitrability, the commencement of the arbitral proceedings and the constitution of the arbitral tribunal, as well as the qualifications and standards to be satisfied by the arbitrators in particular.
More specifically, arbitrability is arguably one of the most intricate and disputed issues within the arbitration community, often creating pitfalls as regards the possible opposition of the parties’ choice to arbitrate a certain dispute to the public order of a given state, or even an interstate legal order, such as the European Union. The cases Mitsubishi v. Soler Chrysler and Eco Swiss v. Benetton are typical examples where the significance of specific disputes for a given legal order may create obstacles concerning the freedom of parties to submit them to arbitration. Nevertheless, the states currently tend to put any disbelief with regard to the arbitrators’ capability to resolve such disputes aside, leaving a larger ambit to the parties’ private will.
In addition to arbitrability, an important issue touched upon was the constitution of the arbitral tribunal and the challenge of arbitrators. In particular, one of the focal points was the qualifications of the arbitrators in order to satisfy the standards of impartiality, neutrality and independence, which are of paramount importance for the guarantee of due process in arbitration. Also, another important part of the lectures was the tricky issue of pathological clauses, which create a host of problems in international arbitration practice and often manage to keep the judiciary busy quite. Prof. Kröll provided us with several examples of faulty clauses which had made the subsequent arbitral proceedings complicated and had the parties arguing for issues that would never have been argued in the first place, had the clauses been drafted correctly. He also gave us many examples from practice which, in his experience, constituted the most suitable and appropriate method to draft an arbitration clause, in order to avoid unnecessary trouble!
The lectures given by Prof. Kröll were one of the most important parts of the Arbitration Module, as the issues that were addressed are critical for every aspiring international commercial arbitration professional, and because they provided us with both solid academic knowledge and professional insights at the same time.
Ierotheos Koufis, IDR LL.M. Candidate