K některým otázkám rozhodčího řízení

The author furnishes herewith the answers concerning selected package of questions to be important for the arbitration proceedings which could practically pose some problems either to the arbitrators or to the parties in settling commercial disputes and relations under carrying out the arbitration. Since the year 1995 there has been devoted a greater attention to the arbitration proceedings in the Czech Republic because the new Act No. 216/1994, Coll., relating to the Arbitration Proceedings and Enforcement of Arbitral Awards, was enacted which inter alia enables to carry out the arbitration proceedings even between the Czech subjects. In the chapter 2nd the author enumerates the advantages of the arbitration proceedings as against the proceedings before the state courts (e.g. more rapid, less formal, lower cost, easier enforcement of the arbitral awards). He but surveys even the disadvantages which could be tied with the arbitration proceedings (e.g. height of arbitrator s fee in ad hoc arbitration). The legal regulation of the arbitration proceedings is put under the comparation from viewpoint of Czech and Slovak models. The Czech legal regulation acknowledges larger applications in the arbitration proceedings contrary to the Slovak one which admits to carry out disputes in the arbitration proceedings only between subjects of the enterprise and other participants of the commercial relations. Next chapter deals with certain categorization of the arbitration, first of all the ad hoc arbitration and institutional arbitration. As the decisive supposition of every arbitration proceedings will be a valid arbitration agreement. The author concluded by saying that the institutional arbitration due to many reasons is deemed to be more advantageous than the ad hoc one. The author fosters a sake to be important from view of the qualification of the arbitrator whose authority is to take up the subject case decided. The ad hoc arbitration does not require a special qualification for an arbitrator, so that he in principle must not be a graduate of the law school. This is why the parties could bear considerable risk in choosing an arbitrator while they should know that the arbitration proceedings is the final instance, so that if the arbitrator delivers a faulty sentence, then the served arbitral award is unappealable. The Slovaks have but special regulation upon the arbitrator s qualification. The disputes between Slovakian subjects can be settled only by an arbitrator who has the Slovak citizenship and moreover he should “enjoy a good reputation”. The counteracting requirements are but laid upon the arbitrators in the institutional arbitration (e.g. experiences in commercial matters, in applying the law and in the economy) or they should be registered in the list of arbitrators being kept by some permanent arbitration courts. In the arbitration proceedings there are applied the material and the procedural law. The parties are predominantly authorized to prescribe the arbitrators a mode under which they should proceed in carrying out the arbitration proceedings. If the parties fail to do so, then the arbitrators do proceed under their own mode. The proceedings before the arbitration institution is carried out ever under its procedural rules. The last chapter deals with the question of the applicable law. The arbitrators apply the material law to be choosed by the parties. If the parties would not choose a law, then the arbitrators apply a law, determined on the base the rules of conflict of laws. In the arbitration proceedings it is possible that the arbitrators could settle a dispute under principles “ex aequo et bono” provided they would be explicitly authorized by the parties to do that. The arbitration proceedings could not be supposed as an automatically salvable mean in case that the debtor would possess no liquid assets either in inland or abroad. Nevertheless it is mostly advantageous, but here should ever be valid the cogent advice for the creditors to verify the debtor s situation before starting the arbitration proceedings, i.e. if the debtor possesses some assets at all in order to apply the enforcement of the arbitral award upon the successfully completed arbitration proceedings.