Scope of the Act; Independence and Impartiality - Chapter 1 - 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.
1.I. ARBITRATION AND LEX ARBITRI
The most frequent general definition stipulates that arbitration is a mechanism whereby the decision making regarding the interests of one or more persons is entrusted to one or more other persons—arbitrators—who derive their jurisdiction from the agreement of the parties (within the framework of objective and subjective arbitrability), not from any state authorities. The author needs to emphasize, though, that their jurisdiction is also determined by the statutory framework existing for the respective agreement of the parties, which delimits the permissibility, scope, and minimum contents of the arbitration agreement, as well as other requirements for the conclusion of the arbitration agreement. Arbitration is therefore principally determined by the law of a particular state. Such law not only reserves certain authority for the arbitrators, but it also primarily guarantees the enforceability of arbitral awards, with support provided by public authorities, and further assists arbitration by employing its own authoritative mechanisms. Consequently, the arbitration agreement must be perceived as a mechanism triggering the application of a normative system which allows the resolution of a particular dispute by an entity other than the court. The definition of arbitration itself depends on the determination of the nature and basis of arbitration. This issue is further analyzed below, both in this commentary to Section 1 of the ArbAct and, and, to some extent, also in the commentary on other issues discussed in this book.