Permanent Arbitral Institutions - Chapter 13 - Arbitration Law of Czech Republic: Practice and Procedure
Alexander J. Bělohlávek, Univ. Professor, Dr.iur., Mgr., Dipl. Ing. oec/MB, Dr.h.c. Lawyer admitted and practising in Prague/CZE (Branch N.J./US), Senior Partner of the Law Offices Bělohlávek, Dept. of Law, Faculty of Economics, Ostrava, CZE, Dept. of Int. and European Law, Faculty of Law, Masaryk University, Brno, CZE (visiting), Chairman of the Commission on Arbitration ICC National Committee CZE, Arbitrator in Prague, Vienna, Kiev etc. Member of ASA, DIS, Austrian Arb. Association. The President of the WJA – the World Jurist Association, Washington D.C./USA.
13.I. SECTION 13(1) OF THE ARBACT
13.I.1. Legal basis for the establishment of a permanent arbitral institution
Arbitral tribunals may only be established by law (different from the ArbAct),1 or only if another law explicitly allows their establishment. However, permanent arbitral institutions do not thereby lose their nature as entities of private law, i.e. they do not become public authorities (see the interpretation regarding Section 1 of the ArbAct).
This provision (Section 19(1) of the ArbAct), which was amended by the Amendment to the ArbAct, is supposed to eliminate the speculations which especially accompanied the first years following the adoption of the ArbAct—the original version of the Act referred to the establishment of permanent arbitral institutions under the law. It was not quite clear whether perhaps the ArbAct itself did not allow any person (i.e. any subject with a legal personality) to establish permanent arbitral institutions at any moment, without the need to satisfy the requirement that the permanent arbitral institution be established by law (statute). Consequently, it used to be unclear whether the arbitral tribunal must be established by law (statute) or whether it suffices that the arbitral tribunal is established in compliance with the Act on Arbitration and Enforcement of Arbitral Awards, i.e. whether, for instance, its statute and rules are published in the Business Journal in compliance with Section 13 of the ArbAct.