Mongolia - Part C - Arbitration in Asia - 2nd Edition
David C. Buxbaum is the Senior Counsel at Anderson & Anderson LLP. He has been active in China since 1972 and Mongolia since 1992. He was the first American lawyer invited to China to represent American business interests in 1972, after President Nixon’s historic visit. Mr. Buxbaum is a specialist in intellectual property, securities, and commodities law and has been active in international litigation and arbitration. He has served as counsel in numerous arbitration proceedings in Hong Kong, Sweden, Singapore, China, the United States of America, and Mongolia. He represented the successful respondents before the United States Supreme Court in the landmark case of Butz v Economou 438 US 478 (1978) and successfully tried a leading IP case in China, namely Microsoft vs. Juren. Mr. Buxbaum has been very active in mining and energy projects and is Honorary Counsel to the Independent Power Producers Forum (IPPF) since 2000 to 2019. He is a well-regarded expert on private international and Asian law, including Mongolian law, who, in addition to being an experienced and highly respected practitioner, has also published extensively in the field.
Yancy Cottrill is currently working as an attorney in Williston, North Dakota. He previously worked as an attorney in the Ulaanbaatar office of Anderson & Anderson LLP. He is admitted to the New York Bar and the State Bar Association of North Dakota. He graduated from Central European University in Budapest with an LL.M in International Business Law, and earned his Juris Doctorate from the David A Clarke School of Law at the University of the District of Columbia. He has published articles on the applicability of UCC Article 6 in the emerging markets of post-communist countries, mining capital markets in Mongolia, current events in Mongolian arbitration, and investment arbitration in Bosnia & Herzegovina. Mr. Cottrill has legal experience in the post-communist emerging markets working and studying in Russia, Ukraine, Hungary, and Bosnia & Herzegovina. He also served four years as a staff attorney for the Congress of the Federated States of Micronesia.
Originally from Arbitration in Asia - 2nd Edition
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Arbitration has a rich history in Mongolia with the first legislation being adopted over 90 years ago. Initially, arbitration was the means in which disputes were resolved between the state Ministries and private enterprises. The Mongolian National Arbitration Center (MNAC), originally referred to as the Arbitration Court of the Mongolian Chamber of Commerce and Industry, was formed in the early 1960s as the country’s center for dispute resolution with foreign states. The first arbitration case settled in Mongolia by the MNAC was in 1967. The MNAC is currently known as the Mongolian International Arbitration Center (MIAC).
As a member country of the Council for Mutual Economic Assistance (COMECON), Mongolia ratified the Convention on the Settlement by Arbitration of Civil Law Disputes Arising out of Relations between Countries Engaging in Economic Scientific and Technological Cooperation on May 26, 1972. In accordance with this treaty, the Mongolian government over the next few years amended its arbitration laws to be in compliance with the treaty provisions.
In the 1990s, Mongolia’s communist government was replaced and the special arbitration courts which were set up to deal specifically with domestic disputes were abolished. All disputes were then resolved by the MIAC as it was the only government sanctioned center. In 1995, the Law on Foreign Trade Arbitration Court was adopted by the Parliament. This was the first arbitration law passed under the newly democratic government and it allowed for domestic and foreign disputes to be heard by the MIAC.
Also in 1995, Mongolia became a member to the 1958 New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards). This allowed Mongolia to recognize and enforce awards made in the territory of another contracting state. Mongolia elected to only apply the convention to commercial disputes. In 2003, the Mongolian Parliament replaced the Law on Foreign Trade Arbitration Court by adopting the Law on Arbitration, which was structured with the UNCITRAL Model Law in mind. Mongolia updated and revised its arbitration laws in 2017 with the passage of a new Law on Arbitration.
[1] INTRODUCTION
[2] LEGISLATION
[3] ARBITRATION AGREEMENTS
[3.1] Basic requirement of a writing
[3.2] Incorporation by reference of an arbitration clause
[3.3] Option to arbitrate
[3.4] Arbitrability
[3.5] Independent existence of an arbitration clause
[3.6] Confidentiality
[3.7] Law of arbitration
[3.8] Seat of arbitration
[3.9] Language of the arbitration
[3.10] Division of costs
[4] ARBITRATOR AND THE ARBITRATION PANEL
[4.1] Number of arbitrators
[4.2] Appointment of arbitrators
[4.3] Qualifications
[4.4] Challenge of arbitrators
[4.5] Arbitrators’ refusal, failure or inability to arbitrate
[4.6] Liabilities of arbitrators and arbitral institutions
[4.7] Replacement of arbitrators
[4.8] Nationality of arbitrators
[4.9] Limits on arbitrator fees
[5] ARBITRATION PROCEDURE
[5.1] Freedom to Choose Procedure − Ad hoc and institutional rules
[5.2] Choice of substantive law
[5.3] Evidence
[5.4] Kompetenz-kompetenz
[5.5] Representation by foreign counsel
[6] AWARDS
[6.1] Types of awards
[6.2] Form and content of the award
[6.3] Award by consent
[6.4] Correction and interpretation of award
[6.5] Authentication of awards
[6.6] Amount of awards made in Mongolia
[6.7] Setting aside awards made in Mongolia
[6.8] Enforcement of arbitral awards made in Mongolia
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Type of Law − Civil or Common
[7.2] Powers of the court to grant ancillary relief
[7.3] Basis for intervening
[7.4] Stay of proceedings and referral to arbitration
[7.5] Enforcement of arbitration agreements
[8] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS
[8.1] New York Convention
[8.2] Enforcement of non-New York Convention Awards
[8.3] Reciprocity
[8.4] Setting aside foreign awards
[9] PRACTICAL INFORMATION
[9.1] Mongolian National Arbitration Center (MNAC)
[9.2] Nationality of claimants and respondents in MNAC Arbitration
[9.3] Taxation
[9.4] Visa requirements
[10] APPENDICES
[10.1] Mongolian Law on Arbitration, 2017 (unofficial translation)