International Commercial Arbitration

Name: International Commercial Arbitration
Price: 41910 ISK
Availability: InStock
Author: Gary B. Born
ISBN: 9789403526447

Höfundur: Gary B. Born (Útgáfa: 3)

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International Commercial Arbitration is an authoritative 4,250 page treatise, in three volumes, providing the most comprehensive commentary and analysis, on all aspects of the international commercial arbitration process that is available. The Third Edition of International Commercial Arbitration has been comprehensively revised, expanded and updated, To include all legislative, judicial and arbitral authorities, and other materials in the field of international arbitration prior to June 2020.

It also includes expanded treatment of annulment, recognition of awards, counsel ethics, arbitrator independence and impartiality and applicable law. The revised 4,250 page text contains references to more than 20,000 cases, awards and other authorities and will enhance the treatise’s position as the world’s leading work on international arbitration. The first and second editions of International Commercial Arbitration have been routinely relied on by courts and arbitral tribunals around the world ((including the highest courts of the United States, United Kingdom, Singapore, India, Hong Kong, New Zealand, Australia, the Netherlands and Canada) and international arbitral tribunals (including ICC, SIAC, LCIA, AAA, ICSID, SCC and PCA), e.

g. : U. S. Supreme Court – GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 590 U. S. - (U. S. S. Ct. 2020); BG Group plc v. Republic of Argentina, 572 U. S. 25 (U. S. S. Ct. 2014); Canadian Supreme Court – Uber v. Heller, 2020 SCC 16 (Canadian S. Ct. ); Yugraneft Corp. v. Rexx Mgt Corp. , [2010] 1 R. C. S. 649, 661 (Canadian S. Ct. ); U. K. Supreme Court – Jivraj v.

Hashwani [2011] UKSC 40, ¶78 (U. K. S. Ct. ); Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Gov’t of Pakistan [2010] UKSC 46 (U. K. S. Ct. ); Swiss Federal Tribunal – Judgment of 25 September 2014, DFT 5A_165/2014 (Swiss Fed. Trib. ); Indian Supreme Court – Bharat Aluminium v. Kaiser Aluminium, C. A. No. 7019/2005, ¶¶138-39, 142, 148-49 (Indian S.

Ct. 2012); Singapore Court of Appeal – Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Servs. Ltd, [2019] 2 SLR 131 (Singapore Ct. App. ); PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation, [2015] SGCA 30 (Singapore Ct. App. ); Larsen Oil & Gas Pte Ltd v. Petroprod Ltd, [2011] SGCA 21, ¶19 (Singapore Ct. App. ); Australian Federal Court – Hancock Prospecting Pty Ltd v.

Rinehart, [2017] FCAFC 170 (Australian Fed. Ct. ); Hague Court of Appeal – Judgment of 18 February 2020, Case No. 200. 197. 079/01 (Hague Gerechtshof); Arbitral Tribunals – Lao Holdings NV v. Lao People's Democratic Republic I, Award in ICSID Case No. ARB(AF)/12/6, 6 August 2019; Gold Reserve Inc. v. Bolivarian Republic of Venezuela, Decision regarding the Claimant’s and the Respondent’s Requests for Corrections, ICSID Case No.

ARB(AF)/09/1, 15 December 2014; Total SA v. The Argentine Republic, Decision on Stay of Enforcement of the Award, ICSID Case No. ARB/04/01, 4 December 2014; Millicom Int'l Operations B. V. v. Republic of Senegal, Decision on Jurisdiction of the Arbitral Tribunal, ICSID Case No. ARB/08/20, 16 July 2010; Lemire v. Ukraine, Dissenting Opinion of Jürgen Voss, ICSID Case No. ARB/06/18, 1 March 2011.

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Útgefandi: Kluwer Law International B.V.

ISBN: 9789403526447

Print ISBN: 9789403526430

Format: ePub

Útgáfa: 3

Höfundar: Gary B. Born

Tungumál: English

Útgefið: 2020-11-23

Prent takmörkun á líftíma: 100

Prent takmörkun: 2

Afritunar takmörkun: 2

Flokkar: Lögfræði

Efnisflokkar: Lögfræði › Alþjóðaréttur Lögfræði › Gerðardómar, samningaviðræður, sáttamiðlun Lögfræði › Málskostnaður Lögfræði › Samanburðarréttur Lögfræði › Sáttamiðlun

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Cover
Half-Title
Title_Page
Copyright
Dedication
Acknowledgments
About the Author
Summary of Contents
Table of Contents
Introduction
Chapter 1 Overview of International Commercial Arbitration
§ 1.01 History of International Arbitration
[A] Historical Development of International Arbitration Between States
[1] Inter-State Arbitration in Antiquity
[2] Inter-State Arbitration in European Middle Ages
[3] Inter-State Arbitration in 18th and 19th Centuries
[4] Proposals For Institutional Inter-State Arbitration
[5] Arbitral Procedures in Inter-State Arbitration
[B] Historical Development of Commercial Arbitration
[1] Commercial Arbitration in Antiquity
[a] Arbitration in Ancient Greece
[b] Arbitration in Ancient Rome
[c] Arbitration in Post-Classical Roman Empire
[2] Commercial Arbitration in European Middle Ages
[3] Commercial Arbitration at English Common Law and English Legislative Reform
[4] Commercial Arbitration in France
[5] Commercial Arbitration in United States
[6] Commercial Arbitration in Germany
[7] Commercial Arbitration in Other European Jurisdictions in 18th and 19th Centuries
[8] Arbitration in Middle East, Asia, Africa and Americas
[a] Middle East
[b] Jewish Communities
[c] East and Southeast Asia
[d] India
[e] Africa
[f] Latin America
[9] Arbitral Procedures in Commercial Arbitration
[C] Development of Contemporary Legal Framework for International Arbitration During Early 20th Century
[1] Geneva Protocol of 1923
[2] Geneva Convention of 1927
§ 1.02 Objectives of International Commercial Arbitration
[A] Contractual Forum Selection in International Transactions
[1] International Forum Selection Agreements
[2] International Arbitration Agreements
[B] Objectives of International Arbitration Agreements
[1] Neutrality of Dispute Resolution Forum
[2] Centralized Dispute Resolution Forum
[3] Enforceability of Agreements and Awards
[4] Commercial Competence and Expertise of Tribunal
[5] Finality of Decisions
[6] Party Autonomy and Procedural Flexibility
[7] Efficiency and Economy
[8] Confidentiality and Privacy of Dispute Resolution Process
[9] Facilitation of Amicable Settlement
[10] Disputes Involving States and State Entities
§ 1.03 Increasing Use of International Commercial Arbitration
§ 1.04 Overview of Contemporary Legal Framework For International Commercial Arbitration
[A] International Arbitration Conventions
[1] New York Convention
[a] Historical Background of New York Convention
[b] Success of New York Convention
[c] Overview of New York Convention’s Provisions
[i] Article II: Presumptive Validity of Arbitration Agreements
[ii] Articles III, IV and V: Presumptive Validity of Arbitral Awards
[iii] Articles II and V(1)(d): Recognition of Parties’ Procedural Autonomy
[d] Application of New York Convention by National Courts
[e] Self-Executing Character of New York Convention
[i] Text of Convention
[ii] Object and Purposes of Convention
[iii] Positions of Contracting States
[f] Constitutional Character of New York Convention
[g] Proposals to Amend New York Convention
[2] European Convention On International Commercial Arbitration
[3] Inter-American Convention On International Commercial Arbitration
[4] Icsid Convention
[5] the North American Free Trade Agreement and the U.S.–Mexico–Canada Agreement
[6] Comprehensive Economic Trade Agreement
[7] Bilateral Investment Treaties
[8] Bilateral Friendship, Commerce and Navigation Treaties
[B] Overview of National Arbitration Legislation
[1] Supportive National Arbitration Legislation
[a] UNCITRAL Model Law
[b] France
[c] Switzerland
[d] England
[e] United States of America
[i] Unenforceability of Arbitration Agreements Under U.S. Law in 19th Century
[ii] Federal Arbitration Act: Chapter One
[iii] U.S. Ratification of New York Convention
[iv] Federal Arbitration Act: Chapter Two
[v] Federal Arbitration Act: Chapter Three
[vi] Federal Arbitration Act: Overlapping Provisions
[vii] Self-Executing Status of New York Convention
(1) Text of Convention
(2) Object and Purposes of Convention
(3) U.S. Government Position
(4) Chapter 2 of the Federal Arbitration Act
(5) U.S. Ratification History of the New York Convention
(6) Judicial Decisions
[viii] Proposals to Amend FAA
[ix] U.S. State Arbitration Laws
[2] Less Supportive National Arbitration Legislation
[C] Overview of Leading International Arbitration Institutions and Institutional Arbitration Rules
[1] Institutional Arbitration
[2] Ad Hoc Arbitration
[3] Relative Advantages and Disadvantages of Institutional and Ad Hoc Arbitration
[4] Uncitral Arbitration Rules
[5] Uncitral Transparency Rules
[6] Leading International Arbitral Institutions
[a] International Chamber of Commerce International Court of Arbitration
[b] London Court of International Arbitration
[c] American Arbitration Association and International Centre for Dispute Resolution
[d] Singapore International Arbitration Centre
[e] Permanent Court of Arbitration
[f] Swiss Chambers’ Arbitration Institution
[g] Vienna International Arbitral Centre
[h] Stockholm Chamber of Commerce Arbitration Institute
[i] Hong Kong International Arbitration Centre
[j] Chinese International Economic and Trade Arbitration Center
[k] Cairo Regional Centre for International Commercial Arbitration
[l] Saudi Center for Commercial Arbitration
[m] Arbitral Institutions in the United Arab Emirates
[n] World Intellectual Property Organization
[o] Court of Arbitration for Sport
[p] German Institution of Arbitration
[q] Korean Commercial Arbitration Board
[r] Japanese Commercial Arbitration Association
[s] Australian Centre for International Commercial Arbitration
[t] Asian International Arbitration Centre
[u] Indian Council of Arbitration
[v] JAMS International
[w] Center for Arbitration and Mediation of the Chamber of Commerce Brazil–Canada
[D] Overview of International Guidelines and Soft Law
[1] Iba Rules On the Taking of Evidence in International Arbitration
[2] ABA/AAA Code of Ethics, Iba Rules of Ethics For International Arbitrators and Iba Guidelines On Conflicts of Interest in International Arbitration
[3] Iba Guidelines On Party Representation in International Arbitration
[4] Prague Rules On the Efficient Conduct of Proceedings in International Arbitration
[5] Uncitral Notes On Organizing Arbitral Proceedings
[6] Chartered Institute of Arbitrators “Practice Guidelines”
[7] Cybersecurity Guidelines
[8] Hague Rules On Business and Human Rights Arbitration
[E] Overview of Elements of International Arbitration Agreements
[1] Agreement to Arbitrate
[2] Scope of Arbitration Agreement
[3] Institutional Arbitration
[4] Specifying Seat Or Place of Arbitration
[5] Number, Method of Selection and Qualifications of Arbitrators
[6] Language of Arbitration
[7] Choice-Of-Law Clauses
[8] Other Provisions of International Arbitration Agreements
[9] Drafting Arbitration Agreements: Recommended Approach
[F] Overview of Choice of Law in International Commercial Arbitration
[1] Law Applicable to Substance of Parties’ Dispute
[2] Law Applicable to Arbitration Agreement
[3] Procedural Law Applicable to Arbitral Proceedings
[4] Choice-Of-Law Rules Applicable in International Arbitration
§ 1.05 Theories of International Arbitration
[A] Leading Theories of Arbitration
[B] Future Directions: the Jurisprudential Character of International Arbitration
§ 1.06 Overview of Sources of Information About International Arbitration
[A] ICCA Yearbook of Commercial Arbitration and ICC Handbooks
[B] Mealey’s International Arbitration Report
[C] Journal du Droit International (Clunet)
[D] Revue de l’Arbitrage
[E] Arbitration International
[F] ASA Bulletin
[G] Collections of ICC Arbitral Awards
[H] International Legal Materials
[I] Fouchard Gaillard Goldman on International Commercial Arbitration
[J] Redfern and Hunter on International Arbitration
[K] Commentary on International Chamber of Commerce Arbitration
[L] Commentary on New York Convention
[M] Guide to the UNCITRAL Model Law on International Commercial Arbitration
[N] Domke on Commercial Arbitration
[O] Awards of Iran–United States Claims Tribunal
[P] International Arbitration Law Databases
[Q] Kluwer Arbitration and Kluwer Arbitration Blog
[R] Global Arbitration Review
[S] Transnational Dispute Management and OGEMID
[T] Swedish Arbitration Portal
[U] ALI Restatement of U.S. Law of International Commercial and Investor-State Arbitration Law
Part I International Arbitration Agreements
Chapter 2 Legal Framework for International Arbitration Agreements
§ 2.01 Introduction
[A] Presumptive Validity of International Arbitration Agreements
[1] Presumptive Validity of International Arbitration Agreements Under International Arbitration Conventions
[a] New York Convention
[b] European Convention and Inter-American Convention
[2] Presumptive Validity of International Arbitration Agreements Under National Arbitration Legislation
[B] Jurisdictional Requirements for Contemporary International Arbitration Conventions and Legislation
[1] Jurisdictional Requirements of New York Convention
[2] Jurisdictional Requirements of National Arbitration Legislation
§ 2.02 Definition of “Agreement to Arbitrate”
[A] Definitions of “Agreement to Arbitrate” in International Arbitration Conventions
[B] Definitions of “Agreement to Arbitrate” in National Arbitration Legislation
[C] Definitions of “Agreement to Arbitrate” in National Judicial Decisions and International Arbitral Awards
[1] What Is “Arbitration”?
[a] Definitions of “Arbitration”
[b] Elements of Definition of “Arbitration”
[i] Consensual Agreement
[ii] Resolution of “Disputes”
[iii] Non-Governmental Decision-Maker Selected by or for Parties
[iv] Final and Binding Decision
[v] Use of Adjudicatory Procedures
[2] What Isn’T Arbitration?
[a] Arbitration Versus Litigation
[b] Arbitration Versus Expert Determination or Valuation
[c] Arbitration Versus Mediation or Conciliation
[d] “Quality Arbitration”
[e] “Interest Arbitration”
[f] Arbitration Following Other Dispute Resolution Processes
[g] “Engineers” and “Dispute Adjudication Boards”
[h] “Baseball” Arbitration and “High/Low” Arbitration
[i] “Rent-A-Judge”
[j] Courts as Arbitrators
[3] Amiable Composition Or Arbitration Ex Aequo Et Bono
[4] Adjudicatory Character of Arbitration
[D] Future Directions: How Should “Arbitration” Be Defined?
[E] Arbitration Before A Natural Person
§ 2.03 Other Jurisdictional Requirements Affecting Legal Regime Applicable to International Arbitration Agreements
[A] “Defined Legal Relationship”
[B] “Commercial” Relationship
[1] International Arbitration Conventions
[a] Geneva Protocol
[b] New York Convention
[i] Meaning of “Commercial” Under New York Convention
[ii] International Limits on Definition of “Commercial” Under New York Convention
[c] European Convention
[d] Inter-American Convention
[e] Future Directions: “Commercial” Requirement in International Arbitration Conventions
[2] National Arbitration Legislation
[a] UNCITRAL Model Law
[b] U.S. Federal Arbitration Act
[c] National Arbitration Legislation Omitting Any “Commercial” Relationship Requirement
[d] National Arbitration Legislation Imposing Strict “Commercial” Relationship Requirements
[e] Future Directions: “Commercial” Requirement in National Arbitration Legislation
[C] “International” or “Foreign” Arbitration Agreements
[1] International Arbitration Agreements
[a] New York Convention
[i] “International” Arbitration Agreements Under New York Convention
[ii] “Foreign” and “Non-Domestic” Arbitration Agreements Under New York Convention
(1) “Foreign” or “Non-Domestic” Awards
(2) “Foreign” Arbitral Awards and Arbitration Agreements
(3) “Non-Domestic” Arbitral Awards and Arbitration Agreements
[iii] Future Directions: “International” Arbitration Agreements Under New York Convention
[b] European Convention
[c] Inter-American Convention
[2] National Arbitration Legislation
[a] UNCITRAL Model Law
[b] U.S. Federal Arbitration Act
[i] Section 202 of Federal Arbitration Act
[ii] Nationalities of Parties
[iii] Location of Contractual Performance or Property
[iv] Agreements to Arbitrate in United States
[v] Agreements to Arbitrate Outside United States
[vi] Consistency of §202 with New York Convention
[c] France
[d] English Arbitration Act
[e] Swiss Law on Private International Law
[f] Other National Arbitration Legislation
[g] Future Directions: “International” Arbitration Agreements Under National Arbitration Legislation
[D] “Disputes” or “Differences”
[E] Disputes “Whether Contractual or Not”
[F] Disputes “Which Have Arisen or Which May Arise”
[G] Reciprocity Requirement
[H] “Writing” and Other Form Requirements
§ 2.04 Relevance of Arbitral Seat to Legal Framework Governing International Arbitration Agreements
[A] International Arbitration Conventions
[B] National Arbitration Legislation
Chapter 3 International Arbitration Agreements and Separability Presumption
§ 3.01 Introduction
§ 3.02 Development of Separability Presumption
[A] International Arbitration Conventions
[1] Geneva Protocol and Geneva Convention
[2] New York Convention
[3] Inter-American Convention
[4] European Convention
[5] Icsid Convention
[B] National Arbitration Legislation
[1] Historic Origins
[2] “Procedural” Or “Judicial” Character of Arbitration Agreement
[3] Contemporary National Arbitration Legislation and Judicial Decisions
[a] Germany
[b] Switzerland
[c] U.S. Federal Arbitration Act
[d] France
[e] UNCITRAL Model Law
[f] England
[g] Japan
[h] China
[i] India
[j] Other Jurisdictions
[C] International Arbitral Awards
[D] Institutional Arbitration Rules
[E] Future Directions: Separability Presumption and Its Basis
§ 3.03 Applications of Separability Presumption
[A] Consequences of Separability Presumption: Non-Existence, Invalidity, Illegality, or Termination of Underlying Contract Does Not Necessarily Affect International Arbitration Agreement
[1] International Arbitration Conventions
[2] National Arbitration Legislation
[a] UNCITRAL Model Law
[b] U.S. Federal Arbitration Act
[i] Prima Paint, Buckeye Check Cashing and Rent-A-Center
(1) Prima Paint
(2) Buckeye Check Cashing
(3) Rent-A-Center
[ii] Applications of Separability Presumption by U.S. Courts
(1) Treatment of Claims Challenging Validity, Legality, or Continued Effectiveness of Underlying Contract Under Federal Arbitration Act
(2) Treatment of Claims Challenging Validity, Legality, or Continued Effectiveness of Arbitration Agreement “Specifically” Under Federal Arbitration Act
(3) Treatment of Claims Challenging Existence of Underlying Contract Under Federal Arbitration Act
[iii] “Arbitration Fairness Act”
[iv] Future Directions: Separability Under Federal Arbitration Act
(1) Future Directions: Substantive Validity of Arbitration Agreements Under Federal Arbitration Act
(2) Future Directions: Allocation of Jurisdictional Competence Under Federal Arbitration Act
[c] England
[d] France
[e] Switzerland
[f] Germany
[g] China
[h] Other Jurisdictions
[3] Institutional Arbitration Rules
[4] International Arbitral Awards
[5] Future Directions: Separability Presumption and Validity of International Arbitration Agreement
[B] Consequences of Separability Presumption: Potential Applicability of Different National Laws to International Arbitration Agreement and Underlying Contract
[C] Consequences of Separability Presumption: Potential Applicability of Different Legal Rules Within Same Legal System to International Arbitration Agreement and Underlying Contract
[D] Consequences of Separability Presumption: Existence, Validity and Legality of Underlying Contract Does Not Necessarily Affect International Arbitration Agreement
[E] Consequences of Separability Presumption: Invalidity, Illegality, or Repudiation of International Arbitration Agreement Does Not Necessarily Affect Underlying Contract
[F] Separability Presumption Does Not Provide Basis for Competence-Competence Doctrine
Chapter 4 Choice of Law Governing International Arbitration Agreements
§ 4.01 Introduction
§ 4.02 Consequences of Separability Presumption For Choice of Law Applicable to International Arbitration Agreements
[A] Applicability of Different Laws to International Arbitration Agreement and Underlying Contract
[1] International Arbitration Conventions
[a] Geneva Protocol and Geneva Convention
[b] New York Convention
[c] European Convention
[2] National Arbitration Legislation
[a] UNCITRAL Model Law
[b] Swiss Law on Private International Law
[c] French Code of Civil Procedure
[d] U.S. Federal Arbitration Act
[e] Other Common Law Jurisdictions
[f] Other Civil Law Jurisdictions
[3] International Arbitral Awards
[B] Multiplicity of Choice-of-Law Rules for Law Governing International Arbitration Agreements
§ 4.03 Issues Governed By Law Applicable to International Arbitration Agreements
§ 4.04 Choice-Of-Law Rules Selecting Law Applicable to Existence and Substantive Validity of International Arbitration Agreements
[A] Choice of Law Applicable to Existence and Substantive Validity of International Arbitration Agreements in Absence of Parties’ Agreement
[1] International Arbitration Conventions
[a] Geneva Protocol and Geneva Convention
[b] New York Convention
[i] Article II: Substantive International Rule of Presumptive Validity and Validation Principle
[ii] Article V(1)(a): Content of Article V(1)(a)’s Choice-of-Law Rules
[iii] Article V(1)(a): Applicability to Recognition and Enforcement of Arbitration Agreement
[iv] Article V(1)(a): Default Rule Selecting Law of the Arbitral Seat
[v] Article V(1)(a): Effects of Default Choice-of-Law Rule on International Substantive Rules and Validation Principle
[c] European Convention
[d] Inter-American Convention
[e] Rome Convention and Rome I Regulation
[f] U.N. Convention on Contracts for the International Sale of Goods
[2] National Arbitration Legislation
[a] Historic Application of Law of Judicial Enforcement Forum to Arbitration Agreement
[b] Criticism of Application of Law of Judicial Enforcement Forum to Arbitration Agreement
[c] Choice-of-Law Rules Providing for Application of Substantive Law of Arbitral Seat to Arbitration Agreement
[d] Choice-of-Law Rules Providing for Application of Law Selected by General Choice-of-Law Provision in Underlying Contract to Arbitration Agreement
[i] Authorities Applying Law Selected in General Choice-of-Law Provision in Underlying Contract to Arbitration Clause
[ii] Authorities Refusing to Apply Law Selected in General Choice-of-Law Provision in Underlying Contract to Arbitration Clause
[e] Choice-of-Law Rules Providing for Application of Substantive Law Applicable to Underlying Contract
[f] Choice-of-Law Rules Providing for Application of Substantive Law of State with “Closest Connection” or “Most Significant Relationship” to Arbitration Agreement
[g] “Cumulative” Choice-of-Law Analysis
[h] Miscellaneous Other Choice-of-Law Rules
[i] Mandatory Application of Law of Arbitral Seat to International Arbitration Agreements
[j] Choice-of-Law Rules for Law Applicable to International Arbitration Agreements Under National Arbitration Legislation
[i] Choice-of-Law Rules Applicable to International Arbitration Agreements Under UNCITRAL Model Law
[ii] Choice-of-Law Rules for International Arbitration Agreements Under English Arbitration Act
[iii] Choice-of-Law Rules for International Arbitration Agreements Under Swiss Law on Private International Law
[iv] Choice-of-Law Rules for Law Governing International Arbitration Agreements Under French Law
[v] Choice-of-Law Rules Governing International Arbitration Agreements Under U.S. Law
(1) Law Governing Substantive Validity of Domestic Arbitration Agreements Under Chapter 1 of Federal Arbitration Act
(2) Law Governing Substantive Validity of International Arbitration Agreements Under Chapter 2 of Federal Arbitration Act
(3) Law Governing Formation of Domestic Arbitration Agreements Under Federal Arbitration Act
(4) Law Governing Formation of International Arbitration Agreements Under Chapter 2 of Federal Arbitration Act
(5) Choice-of-Law Provision in Underlying Contract Under Federal Arbitration Act
(6) Application of International Law Principles to Formation and Substantive Validity of International Arbitration Agreement Under Chapter 2 of Federal Arbitration Act
(7) International Minimum Standards Versus Direct Application of International Law
(8) Anomalous U.S Lower Court Decision Considering Choice-of-Law Rules for International Arbitration Agreements
(9) Restatement of U.S. Law of International Commercial and Investor-State Arbitration
[3] Applicability of Choice-Of-Law Rules Where Party Challenges Existence of Arbitration Agreement
[4] Future Directions: Choice-Of-Law Rules For International Arbitration Agreements
[B] Choice-of-Law Agreements Selecting Law Applicable to Existence and Substantive Validity of International Arbitration Agreements
[1] Need For Conflict of Laws Analysis in Cases Involving Choice-Of-Law Agreement
[2] International Arbitration Conventions
[a] Geneva Protocol and Geneva Convention
[b] New York Convention
[i] Article II: Substantive International Rule of Presumptive Validity
[ii] Article II: Party Autonomy and Validation Principle
[iii] Article V(1)(a): Party Autonomy and Validation Principle
[iv] Applicability of Article V(1)(a)’s Recognition of Party Autonomy at Stage of Recognition of Arbitration Agreement
[v] Applicability of Choice-of-Law Agreement Where Party Challenges Existence or Validity of Agreement
[vi] Nonarbitrability and Mandatory Law Limitations on Party Autonomy Under New York Convention
[c] European Convention
[3] National Arbitration Legislation
[a] UNCITRAL Model Law
[b] U.S. Federal Arbitration Act
[c] English Arbitration Act
[d] Swiss Law on Private International Law
[e] French Code of Civil Procedure
[f] Other Jurisdictions
[g] Idiosyncratic Approaches to Law Governing International Arbitration Agreements
[4] Institutional Arbitration Rules
[5] International Arbitral Awards
[6] Application of Choice-Of-Law Clause to Disputes Over Existence of Arbitration Agreement
§ 4.05 Choice of Law Governing Nonarbitrability
[A] Choice of Law Governing Nonarbitrability Under New York Convention
[1] Article V(2)(A)’s Exception For Local Nonarbitrability Rules
[2] International Limits On Local Nonarbitrability Rules
[B] Choice of Law Governing Nonarbitrability Under National Law
[C] Future Directions: Choice of Law Governing Nonarbitrability
[1] Deficiencies in Current Choice-Of-Law Analyses
[2] Possible Applicability of Foreign Nonarbitrability Rules
[3] Limitations On Application of Foreign Nonarbitrability Rules
[4] Limitations On Interlocutory Decisions Regarding Nonarbitrability Claims
[5] International Limits On Nonarbitrability Doctrine
§ 4.06 Choice-Of-Law Rules Applicable to Formal Validity of International Arbitration Agreements
[A] Choice of Law Governing Formal Validity of International Arbitration Agreements Under International Arbitration Conventions
[1] “Maximum” Form Requirement Under New York Convention
[2] No “Minimum” Form Requirement Under New York Convention: Article VII(1) Preserves Less Demanding Form Requirements
[3] No “Minimum” Form Requirement Under New York Convention: Article II(2) Is Non-Exclusive
[B] Choice of Law Governing Formal Validity Under National Arbitration Legislation
[1] Form Requirements of Judicial Enforcement Forum
[2] Form Requirements of Jurisdiction Whose Law Governs Substantive Validity of Arbitration Agreement
[3] Specialized Choice-Of-Law Rules For Formal Validity
[4] Future Directions: Formal Validity and Validation Principle
§ 4.07 Choice-Of-Law Rules Applicable to Capacity to Conclude International Arbitration Agreements
[A] Choice-of-Law Rules Governing Capacity Under International Arbitration Conventions
[B] Choice of Law Governing Capacity Under National Arbitration Legislation
[1] Application of Law of Party’s Domicile, Seat, Or Place of Incorporation to Issues of Capacity
[2] Application of Validation Principle to Issues of Capacity
[3] Application of International Non-Discrimination Principles to Issues of Capacity
§ 4.08 Choice-Of-Law Rules Applicable to Authority to Conclude International Arbitration Agreements
§ 4.09 Choice-Of-Law Rules Applicable to Interpretation of International Arbitration Agreements
Chapter 5 Formation, Validity and Legality of International Arbitration Agreements
§ 5.01 Introduction
[A] Invalidity or Unenforceability of International Arbitration Agreements Prior to 20th Century
[B] International Arbitration Conventions Prescribing Presumptive Validity and Enforceability of International Arbitration Agreements
[1] Geneva Protocol
[2] New York Convention
[3] European Convention
[4] Inter-American Convention
[C] National Arbitration Legislation Prescribing Presumptive Validity and Enforceability of International Arbitration Agreements
[1] Uncitral Model Law
[2] U.S. Federal Arbitration Act
[3] Swiss Law On Private International Law
[4] French Code of Civil Procedure
[5] Other Jurisdictions
[6] Continued Invalidity Or Unenforceability of International Arbitration Agreements in Some States
[D] Constitutional and Legislative Guarantees of Access to Public Judicial Forums and Remedies
§ 5.02 Formal Validity of International Arbitration Agreements
[A] Written Form Requirements
[1] Rationale For Written Form Requirement
[a] “Warning” Function of Form Requirements
[b] Evidentiary Function of Form Requirements
[c] Other Rationales for Form Requirements
[2] New York Convention’s Written Form Requirement
[a] Article II(2): Introduction
[b] Article II: in What Proceedings are Article II’s Form Requirement Applicable?
[c] Applicability of New York Convention’s Form Requirement in Arbitral Proceedings
[d] Article II: “Maximum” Form Requirement
[e] Article II: No “Minimum” Form Requirement
[i] Authorities Providing That Article II Imposes Minimum Form Requirement
[ii] Authorities Providing That Article II Imposes No Minimum Form Requirement
[f] Non-Exclusivity of Article II(2)’s List of “Written” Arbitration Agreements
[g] Article II(2): Representative Types of Writings
[i] Arbitration Agreement Signed by Parties
[ii] Arbitration Clause in Contract Signed by Parties
[iii] Arbitration Clause in Unsigned Contract
[iv] Arbitration Agreement in “Exchange” of “Letters or Telegrams”
[v] Oral and Tacit Acceptances of Arbitration Agreements
[vi] Express Versus Implied Arbitration Agreements
[vii] “Letters,” “Telegrams” and Electronic Communications
[viii] Incorporation of Arbitration Agreement
[h] Article II’s “Writing” Requirement
[i] Estoppel Under Article II’s Form Requirement
[j] Post-Dispute Conduct and Communications
[3] “Writing” Requirement Under European Convention
[4] “Writing” Requirement Under Inter-American Convention
[5] Written Form Requirements Under National Arbitration Legislation
[a] “Writing” Requirement Under 1985 UNCITRAL Model Law
[b] 2006 Revisions to UNCITRAL Model Law
[c] U.S. Federal Arbitration Act
[d] Swiss Law on Private International Law
[e] English Arbitration Act
[f] Germany
[g] Other National Arbitration Legislation
[h] National Arbitration Legislation Abolishing Written Form Requirement
[6] Waiver Or Estoppel As Basis For Satisfying Form Requirements
[7] Violation of Obligation of Good Faith As Basis For Satisfying Form Requirements
[8] Oral Arbitration Agreements
[9] Form Requirements and Convention On International Sale of Goods
[10] Form Requirements of Institutional Arbitration Rules
[11] Form Requirements For Forum Selection Agreements
[12] Non-Signatories and Form Requirements
[13] Future Directions: Is A “Writing” Requirement For International Arbitration Agreements Desirable?
[B] Scope of Form Requirements for International Arbitration Agreements
[C] Form Requirements for Authorizations to Enter into Arbitration Agreements
[D] Other Form Requirements for International Arbitration Agreements
[1] Form Requirements For Large Font Or Capital Letters
[2] Form Requirements For Separate Agreement
[3] Form Requirements For Signature of Attorney
[4] Form Requirements For Number Or Method of Selection of Arbitrators in International Arbitration Agreement
[5] Form Requirements For Institutional Arbitration
[E] Choice of Law Governing Form Requirements for International Arbitration Agreements
§ 5.03 Capacity to Conclude International Arbitration Agreements
[A] International Arbitration Conventions: Capacity to Conclude International Arbitration Agreements
[B] National Arbitration Legislation: Capacity to Conclude International Arbitration Agreements
[C] Choice of Law Applicable to Capacity
[D] Capacity to Conclude International Arbitration Agreement: Competence-Competence
[E] States’ Capacity to Conclude International Arbitration Agreements
[F] Authority of Parties’ Representatives or Agents to Conclude International Arbitration Agreement
[1] Corporate Officers and Employees
[2] Powers of Attorney
[3] Agency
[4] Separability and Competence-Competence Issues Arising From Disputes Over Agent’s Authority
§ 5.04 Formation of International Arbitration Agreements
[A] Introduction
[1] Relevance of Separability Presumption to Formation of Arbitration Agreement
[2] Distinction Between Form Requirement and Consent
[3] Generally-Applicable Rules of Contract Formation
[4] Standards of Proof of Formation of International Arbitration Agreement
[5] Proof of Consent to International Arbitration Agreement
[6] Choice of Law Applicable to Formation of International Arbitration Agreement
[7] Allocation of Competence to Decide Issues of Formation of International Arbitration Agreement
[B] Burden of Proof of Existence and Validity of International Arbitration Agreement
[1] Burden of Proof of International Arbitration Agreement Under New York Convention
[a] Text of New York Convention
[b] European and Inter-American Conventions
[c] Burden of Proof of Jurisdiction of International Tribunals
[d] Future Directions: Burden of Proof of International Arbitration Agreement Under New York Law
[2] Burden of Proof of International Arbitration Agreement Under National Arbitration Legislation
[a] UNCITRAL Model Law
[b] U.S. Federal Arbitration Act
[c] Other National Arbitration Legislation
[3] Burden of Proof of International Arbitration Agreement in National Courts
[4] Future Directions: Burden of Proof of International Arbitration Agreements
[a] Burden of Proof of Invalidity of International Arbitration Agreement
[b] Burden of Proof of Scope of International Arbitration Agreement
[c] Burden of Proof of Existence of International Arbitration Agreement
[C] Standards of Proof for Establishing Existence of International Arbitration Agreement
[1] Heightened Standard of Proof For Establishing Existence of International Arbitration Agreement
[2] Reduced Standard of Proof For Establishing Existence of International Arbitration Agreement
[3] Neutral Standard of Proof For Establishing Existence of International Arbitration Agreement
[4] Standards of Proof For Establishing Existence of International Arbitration Agreement Under Federal Arbitration Act
[a] Distinction Between Existence or Validity and Scope of Arbitration Agreement
[b] Existence of Arbitration Agreement
[c] Burden of Proof of Existence of Arbitration Agreement Under First Options
[5] Future Directions: Standard of Proof For Establishing Existence of International Arbitration Agreement
[D] “Pathological” International Arbitration Agreements
[1] Lack of Agreement On Essential Terms: Indefinite Or Uncertain Arbitration Agreements
[a] General Principles
[b] Essential Requirements for Agreement to Arbitrate
[c] Arbitration Clauses with Undefined Scope
[d] Arbitration Clauses with No Choice-of-Law Provision
[e] Arbitration Clauses with No Specification of Arbitrators
[f] “Blank Clauses”: Arbitration Clauses with No Specification of Arbitral Seat or Arbitrators
[g] Arbitration Agreements with No Incorporation of Institutional Arbitration Rules
[h] “Hybrid” Arbitration Agreements
[i] Competence-Competence to Decide Indefiniteness or Uncertainty Issues
[2] Arbitration Agreements Referring to Non-Existent Arbitral Institutions, Institutional Arbitration Rules, Or Arbitrators
[a] Severing References to Non-Existent Arbitral Institutions, Rules, or Arbitrators
[b] Interpreting or Correcting References to Non-Existent Arbitral Institutions, Rules, or Arbitrators
[3] Arbitration Agreements Referring to Arbitral Institutions Or Appointing Authorities That No Longer Exist Or Operate Or Arbitrators Who are Unavailable
[4] Internally-Contradictory Arbitration Agreements
[a] Internal Contradictions: General Principles
[b] Contradictory References to Multiple Arbitral Seats or Arbitral Institutions
[c] Contradictory References to Arbitration and Litigation
[5] “Optional” Or “Non-Mandatory” Arbitration Agreements
[6] Consent, Implied Consent and Lack of Consent
[a] Consent to Underlying Contract Typically Constitutes Consent to Arbitration Agreement
[b] Consent to Underlying Contract Not Necessarily Required for Consent to Arbitration Agreement
[c] Consent Does Not Require Signature
[d] A Signature May Not Necessarily Establish Consent: Forgery and Fraud
[e] Consent by Conduct and Implied Consent
[f] Consent Based on Exchanges of Contractual Documentation
[g] Consent by Steps in Arbitral Proceedings
[h] Consent to Adhesion Contracts
[7] Duress
[8] Lack of Notice
[E] Condition Precedent
§ 5.05 Incorporation of International Arbitration Agreements
[A] New York Convention
[B] National Arbitration Legislation
[1] Uncitral Model Law
[2] U.S. Federal Arbitration Act
[3] Other National Arbitration Legislation
[C] Incorporation of Institutional Arbitration Rules
§ 5.06 Substantive Validity of International Arbitration Agreements
[A] Introduction
[1] Separability Presumption and Substantive Validity of International Arbitration Agreement
[2] Choice of Law Governing Substantive Validity of International Arbitration Agreement
[3] Generally-Applicable Rules of Contract Law
[4] Burden and Standard of Proof of Substantive Validity of International Arbitration Agreement
[5] Allocation of Competence to Decide Substantive Validity of International Arbitration Agreement
[6] Distinction Between Substantive Invalidity of International Arbitration Agreement and Nonarbitrability of Dispute
[B] Substantive Validity of International Arbitration Agreements Under International Arbitration Conventions
[1] New York Convention
[a] Generally-Applicable Contract Law Defenses
[b] Burden of Proof
[c] “Null and Void”
[d] “Inoperative”
[e] “Incapable of Being Performed”
[2] European Convention
[3] Inter-American Convention
[C] Substantive Invalidity of International Arbitration Agreements Under National Arbitration Legislation
[D] Grounds of Substantive Invalidity of International Arbitration Agreements
[1] Fraudulent Inducement Or Fraud
[a] Fraud and Separability Presumption
[b] Fraud Directed Specifically at Arbitration Agreement
[c] Fraud in the Factum
[d] Fraud Affecting Arbitration Agreement
[e] Choice of Law
[2] Mistake
[a] Mistake and Separability Presumption
[b] Mistake and Non-Existent Arbitral Institution
[c] Choice of Law
[3] Lack of Consideration
[4] Unconscionability
[a] Unconscionability Under New York Convention
[b] Unconscionability and Separability Presumption
[c] Unconscionability of Arbitration Agreement
[d] “Effective Vindication” Doctrine
[e] Choice of Law and Unconscionability
[f] Unconscionability and Severability
[5] Asymmetrical Or Non-Mutual Arbitration Agreements
[a] Asymmetrical Arbitration Agreements and Mutuality
[b] Asymmetrical Arbitration Agreements and Unconscionability
[c] Reciprocal Asymmetrical Arbitration Agreements
[d] Choice of Law
[6] Termination Or Repudiation of Arbitration Agreement
[a] Termination of Arbitration Agreement and Separability Presumption
[b] Termination of Arbitration Agreement
[i] Unilateral Termination
[ii] Mutual Termination
[iii] Repudiation or Serious Breach of Arbitration Agreement
[c] Competence-Competence and Termination
[d] Choice-of-Law
[7] Impossibility and Frustration
[a] Impossibility and Separability Presumption
[b] Impossibility and Arbitration Agreement
[c] Impossibility and Allocation of Competence
[d] Choice of Law
[8] Standard Form Contracts
[9] Consumer and Employment Contracts
[10] Insolvency Or Bankruptcy
[11] Illegality
[a] Application of Separability Presumption to Claims of Illegality
[b] Claims of Illegality of Arbitration Agreement Itself
[i] “Illegality” and “Nonarbitrability”
[ii] “Illegality” and “Public Policy”
[c] “Illegality” Under Article II of New York Convention
[12] Public Policy
[a] Public Policy, Illegality and Nonarbitrability
[b] Decisions Holding Public Policy Not Available Under Article II of New York Convention
[c] Decisions Holding Public Policy Available Under Article II of New York Convention
[d] Future Directions: Public Policy Not Available Under Article II of New York Convention
[13] Inconvenient Arbitral Seat
[14] Statutes of Limitations and Laches
[15] Res Judicata and Other Preclusion Rules
§ 5.07 Severability of Invalid Provisions of International Arbitration Agreement
§ 5.08 Failure to Comply With Pre-Arbitration Procedural Requirements
[A] Validity, Characterization and Effects of Agreements to Negotiate or Mediate
[1] Validity and Enforceability of Pre-Arbitration Procedural Requirements
[a] Validity and Enforceability of Agreements to Negotiate Disputes
[b] Validity and Enforceability of Agreements to Mediate Disputes
[c] Validity and Enforceability of Local Litigation Requirements
[2] Characterization of Pre-Arbitration Procedural Requirements: Mandatory Versus Non-Mandatory
[3] Interpretation of Agreement to Negotiate Or Mediate Disputes: Obligations Imposed By Agreement to Negotiate Or Mediate
[4] Characterization of Pre-Arbitration Procedural Requirements: Jurisdiction, Admissibility and Procedure
[5] Timing of Compliance With Procedural Requirements
[B] Compliance with Procedural Requirements
[1] Duty to Negotiate Or Mediate
[2] Duration of Obligation to Negotiate Or Mediate
[3] Futility of Negotiation Or Mediation
[4] Subject-Matter of Notice, Negotiations, Or Mediation
[C] Allocation of Competence to Decide Disputes over Pre-Arbitration Procedures
[1] Characterization: “Admissibility,” “Jurisdiction” and “Procedure”
[2] Competence to Decide Objections Based On Noncompliance With Procedural Requirements of Arbitration Agreement
[a] U.S. Federal Arbitration Act
[b] Other National Arbitration Legislation
[D] Effect of Noncompliance with Procedural Requirements on Validity of International Arbitration Agreement
[E] Noncompliance with Contractual Time Period for Commencing Arbitration
§ 5.09 Existence of “Dispute”
§ 5.10 Waiver of Right to Arbitrate
[A] International Arbitration Conventions
[B] UNCITRAL Model Law
[C] U.S. Federal Arbitration Act
[D] Other National Arbitration Legislation
[E] Arbitral Awards
[F] “No Waiver” Provisions in Institutional Arbitration Rules
[G] Waiver of Right to Arbitrate Resulting from Requests for Provisional Measures
[H] Failure to Perform Arbitration Agreement or to Cooperate in Arbitral Process as Waiver of Right to Arbitrate
[I] Choice of Law Governing Waiver
[J] Allocation of Competence to Decide Waiver Claims
Chapter 6 Nonarbitrability and International Arbitration Agreements
§ 6.01 Introduction
§ 6.02 Nonarbitrability in International Arbitration Conventions
[A] Geneva Protocol and Geneva Convention
[B] New York Convention: Articles II(1) and V(2)(a)
[C] European and Inter-American Conventions
[D] “Subject Matter Is Not Capable of Settlement by Arbitration”
[E] Distinction Between Nonarbitrability and Substantive Invalidity of Arbitration Agreement
[F] Distinction Between Nonarbitrability and Illegality of Arbitration Agreement
[G] Distinction Between Nonarbitrability and Mandatory Law or Public Policy
[H] No Interlocutory Judicial Decision on Mandatory Law
[I] International Limits on Nonarbitrability Doctrine
[J] “Conditional Nonarbitrability”
§ 6.03 Nonarbitrability in National Arbitration Legislation
[A] Nonarbitrability: International Versus Domestic
[B] Nonarbitrability: Clear Statement of Legislative Intent
[C] National Arbitration Legislation
[1] Uncitral Model Law: No Definition of Arbitrability
[2] Swiss and German Arbitration Legislation: Broad Definitions of Arbitrability
[3] France: Evolution of Nonarbitrability Doctrine
[4] U.S. Federal Arbitration Act: Evolution of Nonarbitrability Doctrine
[5] English Arbitration Act
[6] Other Jurisdictions
§ 6.04 Applications of Nonarbitrability Doctrine
[A] Antitrust and Competition Claims
[1] U.S. Antitrust Law
[2] Eu Competition Law
[3] Other National Competition Laws
[4] Arbitral Awards
[5] “Second Look” Doctrine and Judicial Review of Arbitral Awards
[6] Advance Waivers of Antitrust And/Or Competition Law Claims
[a] No Interlocutory Judicial Decision on Application of Antitrust Laws by Arbitral Tribunal
[b] Effect of Waiver of U.S. Statutory Rights
[c] Effect of Waiver or Loss of Statutory Damage Claims
[B] Securities Claims
[1] U.S. Securities Law
[2] Advance Waivers of U.S. Securities Claims
[3] Other National Securities Laws
[C] Corruption and Bribery
[D] Intellectual Property Claims
[E] Trade Sanctions, Embargoes and Controls
[F] Bankruptcy and Insolvency
[1] National Legislation Imposing Absolute Prohibition Against Arbitration By Insolvent Entities
[2] National Legislation Imposing No Prohibitions Against Arbitration By Insolvent Entities
[3] National Legislation Providing Case-By-Case Rules Regarding Arbitration By Insolvent Entities
[4] Effect of Foreign Insolvency Legislation On Arbitrations Seated Abroad
[5] Arbitral Awards
[6] Future Directions: Insolvency and Nonarbitrability
[G] Employment and Labor Disputes
[1] Jurisdictions Treating Labor Disputes As Nonarbitrable
[2] Jurisdictions Treating Labor Disputes As Arbitrable
[H] Consumer Claims
[1] U.S. Federal Arbitration Act
[2] Eu Consumer Regulations
[3] Other Jurisdictions
[4] Future Directions: Arbitrability of Consumer Disputes
[I] Natural Resources
[J] Carriage of Goods by Sea
[K] Corporate Governance
[L] Trust Disputes
[M] Distributorship and Commercial Agent Claims
[N] Fraud Claims
[O] Miscellaneous Other Claims
[P] State Law Claims in United States
§ 6.05 Choice of Law Governing Nonarbitrability
§ 6.06 Sua Sponte Consideration of Nonarbitrability Issues By Arbitral Tribunal
§ 6.07 Judicial “Supervision” of Arbitral Consideration of Public Law Claims
§ 6.08 Future Directions: Nonarbitrability Doctrine
Chapter 7 International Arbitration Agreements and Competence-Competence
§ 7.01 Introduction
§ 7.02 Power of International Arbitral Tribunals to Consider and Decide Disputes Concerning Their Jurisdiction
[A] International Arbitration Conventions
[1] New York Convention
[2] European Convention
[3] Inter-American Convention
[4] Icsid Convention
[B] National Arbitration Legislation
[1] Uncitral Model Law
[2] U.S. Federal Arbitration Act
[3] French Code of Civil Procedure
[4] Swiss Law On Private International Law
[5] English Arbitration Act
[6] Other National Arbitration Legislation Recognizing Competence-Competence Doctrine
[7] National Arbitration Legislation Not Recognizing Competence-Competence Doctrine
[C] Institutional Arbitration Rules
[D] International Arbitral Awards
[E] “Positive” and “Negative” Effects of Competence-Competence
[F] Relation Between Competence-Competence Doctrine and Separability Presumption
§ 7.03 Allocations of Jurisdictional Competence in Different National Legal Regimes
[A] Allocation of Jurisdictional Competence Under UNCITRAL Model Law
[1] Arbitrator’s Competence-Competence Under Uncitral Model Law
[2] Interlocutory Judicial Consideration of Objections to Arbitrators’ Jurisdiction Under Uncitral Model Law
[a] Article 8 of UNCITRAL Model Law: Interlocutory Judicial Consideration of Jurisdictional Disputes
[b] Prima Facie Versus Full Judicial Consideration of Interlocutory Jurisdictional Challenges Under UNCITRAL Model Law
[i] Full Judicial Consideration of Interlocutory Jurisdictional Challenges Under UNCITRAL Model Law
[ii] Prima Facie Judicial Consideration of Interlocutory Jurisdictional Challenges Under UNCITRAL Model Law
[c] Potentially Different Treatment of Challenges to Existence, Validity, or Legality of Arbitration Agreement and to Scope of Arbitration Agreement Under UNCITRAL Model Law
[3] Agreements to Finally Resolve Jurisdictional Disputes By Arbitration Under Uncitral Model Law
[4] Availability of Judicial Consideration of Jurisdictional Decisions By Arbitral Tribunal Under Uncitral Model Law
[a] Characterization of Arbitral Tribunal’s Jurisdictional Ruling Under Article 16(3) of UNCITRAL Model Law
[b] Characterization of Judicial Decision Under Article 16(3) of UNCITRAL Model Law
[c] Availability of Judicial Consideration of Arbitrators’ Negative Jurisdictional Ruling Under Article 16(3) of UNCITRAL Model Law
[d] Exclusivity of Judicial Consideration of Preliminary Jurisdictional Ruling Under Article 16(3) of UNCITRAL Model Law
[5] Character and Standard of Judicial Consideration of Jurisdictional Rulings By Arbitral Tribunal Under Uncitral Model Law
[a] Character and Standard of Judicial Consideration of Positive Jurisdictional Rulings by Arbitral Tribunal Under UNCITRAL Model Law
[b] Character and Standard of Judicial Consideration of Negative Jurisdictional Rulings by Arbitral Tribunal Under UNCITRAL Model Law
[B] Allocation of Jurisdictional Competence Under French Law
[1] Arbitrators’ Competence-Competence Under French Law
[2] No Interlocutory Judicial Consideration of Jurisdictional Objection Unless Arbitration Agreement Is “Manifestly Null Or Inapplicable” Under French Law
[3] Judicial Review of Arbitrators’ Jurisdictional Decision Under French Law
[4] Agreements to Resolve Jurisdictional Disputes By Arbitration Under French Law
[C] Allocation of Jurisdictional Competence Under Swiss Law
[1] Arbitrators’ Competence-Competence Under Swiss Law
[2] Interlocutory Judicial Consideration of Jurisdictional Objections Under Swiss Law
[3] Agreements to Resolve Jurisdictional Disputes By Arbitration Under Swiss Law
[4] Judicial Review of Arbitrators’ Jurisdictional Decision Under Swiss Law
[D] Allocation of Jurisdictional Competence Under German Law
[1] Arbitrators’ Competence-Competence Under German Law
[2] Interlocutory Judicial Consideration of Jurisdictional Objections Under German Law
[3] Agreements to Resolve Jurisdictional Disputes By Arbitration Under German Law
[4] Judicial Consideration of Arbitrators’ Jurisdictional Decisions Under German Law
[E] Allocation of Jurisdictional Competence Under U.S. Law
[1] Federal Arbitration Act: Statutory Provisions
[a] No Express Statutory Recognition of Arbitrators’ Competence-Competence in Federation Arbitration Act
[b] Sections 3 and 4 of Federal Arbitration Act: Interlocutory Judicial Resolution of Jurisdictional Issues
[c] Section 10 of Federal Arbitration Act: Judicial Review of Arbitrators’ Jurisdictional Determination
[d] U.S. Revised Uniform Arbitration Act
[2] U.S. Supreme Court Decisions Under Federal Arbitration Act: First Options and Its Progeny
[a] First Options of Chicago, Inc. v. Kaplan
[b] Howsam v. Dean Witter Reynolds, Inc.
[c] Green Tree Financial Corp. v. Bazzle
[d] Stolt-Nielsen SA v. AnimalFeeds International Corp.
[e] Rent-A-Center, West, Inc. v. Jackson
[f] Granite Rock Co. v. International Brotherhood of Teamsters
[g] BG Group plc v. Argentina
[h] Henry Schein, Inc. v. Archer & White Sales, Inc.
[3] Applicability of First Options and Its Progeny to International Arbitration Agreements Subject to New York Convention
[4] Arbitrators’ Competence-Competence Under Federal Arbitration Act
[5] Allocation of Jurisdictional Competence Between Arbitral Tribunals and Courts Under Federal Arbitration Act
[a] Presumptive Availability of Interlocutory Judicial Resolution of Jurisdictional Disputes Under Federal Arbitration Act
[b] Allocation of Jurisdictional Competence to Resolve Disputes Concerning Validity or Enforceability of Arbitration Agreement Under Federal Arbitration Act
[i] Disputes Concerning Validity or Enforceability of Arbitration Agreement Under Federal Arbitration Act: Default Rule
[ii] Disputes Concerning Validity or Enforceability of Underlying Contract Under Federal Arbitration Act: Default Rule
[iii] Agreements to Resolve Disputes over Validity or Enforceability of Arbitration Agreement by Arbitration Under Federal Arbitration Act
[iv] Agreements to Resolve Disputes over Validity or Enforceability of Arbitration Agreement by Arbitration Under Federal Arbitration Act: General Principles
[v] Agreements to Resolve Disputes over Validity or Enforceability of Arbitration Agreement by Arbitration Under Federal Arbitration Act: Effects of Institutional Arbitration Rules
[vi] Agreements to Resolve Disputes over Validity or Enforceability of Arbitration Agreement by Arbitration Under Federal Arbitration Act: Effects of “Broad” Arbitration Clause
[vii] Agreements to Resolve Disputes over Validity or Enforceability of Arbitration Agreement by Arbitration Under Federal Arbitration Act: Effects of Submission of Jurisdictional Dispute to Arbitrators
[viii] Agreements to Resolve Disputes over Validity or Enforceability of Arbitration Agreement by Arbitration Under Federal Arbitration Act: Other Agreements to Arbitrate Jurisdictional Disputes Under First Options
[c] Allocation of Jurisdictional Competence to Resolve Disputes Concerning Formation and Existence of Arbitration Agreement Under Federal Arbitration Act
[i] Disputes Concerning Formation or Existence of Arbitration Agreement Under Federal Arbitration Act: Default Rule
[ii] Disputes Concerning Formation or Existence of Underlying Contract Under Federal Arbitration Act: Default Rule
[iii] Agreements to Submit Disputes over Formation or Existence of Arbitration Agreements to Resolution by Arbitration Under Federal Arbitration Act
[d] Allocation of Jurisdictional Competence to Resolve Disputes Concerning Scope of Arbitration Agreement Under Federal Arbitration Act
[i] Disputes Concerning Scope of Arbitration Agreement Under Federal Arbitration Act: Default Rule
[ii] Disputes Concerning Scope of Arbitration Agreement Under Federal Arbitration Act: Agreements to Resolve Disputes over Scope of Arbitration Agreement by Arbitration
[iii] Disputes Concerning Scope of Arbitration Agreement Under Federal Arbitration Act: Institutional Rules and Scope of Arbitration Agreement
[iv] Disputes Concerning Scope of Arbitration Agreement Under Federal Arbitration Act: “Broad” Arbitration Clauses
[e] Allocation of Jurisdictional Competence to Decide “Procedural” Disputes Under Federal Arbitration Act
[6] Discretionary Stay of Litigation Concerning Jurisdictional Challenges By U.S. Courts
[7] Judicial Consideration of Jurisdictional Determinations By Arbitral Tribunal Under Federal Arbitration Act
[a] Judicial Consideration of Jurisdictional Awards Under Federal Arbitration Act: Positive and Negative Awards Subject to Review
[b] Judicial Consideration of Jurisdictional Determinations Under Federal Arbitration Act: Default Rule
[c] Judicial Consideration of Jurisdictional Determinations Under Federal Arbitration Act: Agreement to Resolve Jurisdictional Disputes by Arbitration
[8] Future Directions: Allocation of Jurisdictional Competence Under Federal Arbitration Act
[a] Interlocutory Judicial Consideration of Jurisdictional Disputes Under Federal Arbitration Act: Default Rule
[b] Agreements to Resolve Jurisdictional Disputes by Arbitration Under Federal Arbitration Act: First Options
[F] Allocation of Jurisdictional Competence Under English Law
[1] Arbitrators’ Competence-Competence Under English Law
[2] Allocation of Jurisdictional Competence Between Arbitral Tribunals and Courts Under English Law
[3] Agreements to Finally Resolve Jurisdictional Disputes By Arbitration Under English Law
[4] Judicial Consideration of Arbitrators’ Jurisdictional Determinations Under English Law
[G] Allocation of Jurisdictional Competence Under Swedish Arbitration Act
[H] Allocations of Jurisdictional Competence Under Other National Arbitration Legislation
[I] Future Directions: Allocation of Jurisdictional Competence Between National Courts and Arbitral Tribunals
[1] Circumstances in Which Competence-Competence Exists: Arbitrators’ Presumptive Competence-Competence
[2] Agreements to Finally Resolve Jurisdictional Issues By Arbitration
[3] Interlocutory Judicial Consideration of Jurisdictional Issues
[4] Judicial Consideration of Positive Jurisdictional Rulings
[5] Judicial Consideration of Negative Jurisdictional Rulings
§ 7.04 Choice of Law Governing Competence-Competence Issues
§ 7.05 Timing and Procedural Disposition of Jurisdictional Disputes By Arbitral Tribunal
[A] Requirements to Raise Jurisdictional Objection at Outset of Arbitration and Waiver of Jurisdictional Objections
[B] Provisions of National Law Regarding Procedural Disposition of Jurisdictional Objections
[C] Provisions of Institutional Arbitration Rules Regarding Procedural Disposition of Jurisdictional Objections
[D] Arbitral Tribunal’s Authority to Consider Jurisdictional Objections Notwithstanding Interlocutory Judicial Consideration of Same Issues
[E] Arbitral Tribunal’s Procedural Disposition of Jurisdictional Objections
[F] Waiver of Jurisdictional Objections: No Ex Officio Jurisdictional Determinations by Arbitral Tribunal
[G] Jurisdictional Consequences of Contesting Arbitrators’ Jurisdiction in Arbitral Proceedings
Chapter 8 Effects and Enforcement of International Arbitration Agreements
§ 8.01 Introduction
§ 8.02 Positive Legal Effects of International Arbitration Agreements: Obligation to Arbitrate in Good Faith
[A] Sources of Positive Obligation to Arbitrate
[1] Positive Obligation to Arbitrate Under International Arbitration Conventions
[2] Positive Obligation to Arbitrate Under National Arbitration Legislation
[B] Content of Positive Obligation to Arbitrate
[C] Remedies for Breach of Positive Obligation to Arbitrate
[D] Choice of Law Governing Positive Obligation to Arbitrate
§ 8.03 Negative Legal Effects of International Arbitration Agreements: Obligation Not to Litigate Arbitrable Disputes
[A] Sources of Negative Obligation Not to Litigate Arbitrable Disputes
[1] Negative Obligation Not to Litigate Arbitrable Disputes Under International Arbitration Conventions
[2] Negative Obligation Not to Litigate Arbitrable Disputes Under National Arbitration Legislation
[B] Content of Negative Obligation Not to Litigate Arbitrable Disputes
[1] Obligation Not to Litigate Arbitrable Disputes
[2] Exclusivity of Arbitration
[3] Scope of Negative Obligations Under Arbitration Agreements
[C] Remedies for Breach of Negative Obligation Not to Litigate Arbitrable Disputes
[1] Mandatory Stay of Litigation
[2] Dismissal of Litigation
[3] Arguable Exceptions to Mandatory Stays Or Dismissals of National Court Litigation
[4] Discretionary Stays of Related Litigation
[5] Non-Recognition of Judgments
[6] Antisuit Injunctions
[a] Antisuit Injunctions Under English Law
[b] Antisuit Injunctions in Other Common Law Jurisdictions
[c] Antisuit Injunctions Under U.S. Law
[d] Antisuit Injunctions in Civil Law Jurisdictions
[e] Antisuit Injunctions and EU Law
[f] Future Directions: Antisuit Injunctions in International Arbitration
[7] Monetary Damages For Breach of Obligation Not to Litigate Arbitrable Disputes
§ 8.04 Court Orders Enjoining Arbitration: Anti-Arbitration Injunctions
[A] Anti-Arbitration Injunctions Issued by National Courts
[B] Future Directions: Anti-Arbitration Injunctions Under New York Convention
[C] Effect of Anti-Arbitration Injunctions on Arbitral Tribunals
Chapter 9 Interpretation of International Arbitration Agreements
§ 9.01 Introduction
§ 9.02 Scope of Arbitration Agreement
[A] International Arbitration Conventions
[B] National Arbitration Legislation
[C] Applicability of General Rules of Contract Interpretation to International Arbitration Agreements
[D] Presumptions Regarding Scope of International Arbitration Agreement
[1] “Pro-Arbitration” Presumptions Regarding Scope of International Arbitration Agreement
[a] U.S. Federal Arbitration Act
[b] Swiss Law on Private International Law
[c] German Code of Civil Procedure
[d] English Arbitration Act
[e] Other Jurisdictions
[2] “Restrictive” Presumptions Regarding Scope of International Arbitration Agreement
[3] No “Pro-Arbitration” Or “Restrictive” Presumption
[4] Interpretation of Arbitration Agreements in Specialized Institutional Settings
[5] Interpretation of Arbitration Clauses With Exceptions Or Limited Scope
[6] Future Directions: Presumptions Regarding Scope of International Arbitration Agreement
[E] Formulae Customarily Used to Define Scope of International Arbitration Agreement
[1] “All” Or “Any” Disputes
[2] “Disputes,” “Differences,” “Claims” and “Controversies”
[3] “Relating To”
[4] “In Connection With”
[5] “Arising Under”
[6] “Arising Out Of”
[7] “Arising From”
[8] “Broad” Versus “Narrow” Arbitration Clauses
[9] Exceptions Or Exclusions From Arbitration Agreements
[F] Applicability of International Arbitration Agreements in Commonly-Recurring Factual Circumstances
[1] Applicability of Arbitration Agreements to Non-Contractual Claims
[2] Applicability of Arbitration Agreements to Claims Based On Statutory Protections
[3] Applicability of Arbitration Agreements to Disputes Concerning Performance Or Interpretation of Contract
[4] Applicability of Arbitration Agreements to Disputes Concerning Existence, Validity, Or Legality of Contract
[5] Applicability of Arbitration Agreements in Multi-Contract Contexts
[6] Applicability of Arbitration Agreements in Context of Successive Contracts
[7] Applicability of Arbitration Agreement Following Termination of Underlying Contract
[8] Applicability of Arbitration Agreements to Pre-Existing Disputes
[9] Applicability of Arbitration Agreements to Statute of Limitations Issues
[G] Scope of International Arbitration Agreement and Scope of Choice-of-Law Clause
[H] Exceptions to Scope of International Arbitration Agreements
[1] Validity of Intellectual Property Rights
[2] Injunctive Relief For Intellectual Property Rights
[3] Payment Obligations
[I] Arbitrators’ Remedial Authority
§ 9.03 International Arbitration Agreements Incorporating Institutional Arbitration Rules
[A] Incorporation of Institutional Arbitration Rules
[B] Arbitral Institution’s Authority to Interpret Institutional Arbitration Rules
[C] Applicable Version of Institutional Arbitration Rules
[D] Amendments to Institutional Arbitration Rules
[E] Inaccurate References to Arbitral Institutions
§ 9.04 Exclusivity of Arbitration Agreement
§ 9.05 Choice of Law Applicable to Interpretation of International Arbitration Agreement
[A] Law of Judicial Enforcement Forum
[B] Law Governing Substantive Validity of Arbitration Agreement
[C] Future Directions: Choice of Law Governing Interpretation of International Arbitration Agreement
§ 9.06 Allocation of Competence to Decide Disputes Over Scope of International Arbitration Agreement
[A] Allocation of Jurisdictional Competence to Decide Scope Disputes
[B] Relationship Between Allocation of Jurisdictional Competence and Rules of Interpretation
Chapter 10 Parties to International Arbitration Agreements
§ 10.01 Introduction
[A] International Arbitration Agreements are Binding on “Parties” and Not Others
[B] Signatories and Non-Signatories to Arbitration Agreement
[C] Absence of Legislative Provisions Regarding Non-Signatory Issues
[D] Generally-Applicable Rules of Contract Law
[E] Application of Legal Bases for Subjecting Non-Signatories to Arbitration Agreement
[F] Distinction Between Jurisdiction and Substantive Liability
§ 10.02 Legal Bases For Binding Non-Signatories to International Arbitration Agreements
[A] Agency Relationship
[B] Apparent or Ostensible Authority
[C] Implied Consent
[D] Alter Ego and Veil-Piercing
[E] “Group of Companies” Doctrine
[F] Third Party Beneficiaries
[G] Guarantors
[H] Succession
[I] Assignment and Other Transfers of Contractual Rights
[J] Subrogation
[K] Estoppel and Related Doctrines
[L] Ratification
[M] Corporate Officers and Directors
[N] Shareholder Derivative Rights
[O] Joint Venture Relations
[P] State Non-Signatories
[Q] Third Party Funders
§ 10.03 Future Directions: Legal Bases For Binding Non-Signatories to International Arbitration Agreements
§ 10.04 Formal Validity and Non-Signatories
§ 10.05 Choice of Law Governing Parties to International Arbitration Agreement
[A] Application of International Principles to Non-Signatory Issues
[B] Application of National Law to Non-Signatory Issues
[C] Future Directions: Choice of Law Applicable to Non-Signatory Issues
[1] Future Directions: Application of National Law to Non-Signatory Issues
[2] Future Directions: Application of International Principles to Non-Signatory Issues
[3] Future Directions: International Limitations On National Law Applicable to Non-Signatory Issues
§ 10.06 Allocation of Competence to Determine Parties to Arbitration Agreement
§ 10.07 Arbitration in Corporate and Partnership Contexts
§ 10.08 Class Arbitrations
[A] United States
[1] Historical Background
[2] Green Tree Financial Corp. V. Bazzle and Its Progeny
[3] Class Action Waivers and Unconscionability: Discover Bank Rule
[4] Post-Bazzle U.S. Supreme Court Decisions
[a] Stolt-Nielsen SA v. AnimalFeeds International Corp.
[b] AT&T Mobility LLC v. Concepcion
[c] American Express Co. v. Italian Colors Restaurant and DIRECTV, Inc. v. Imburgia
[d] Oxford Health Plans LLC v. Sutter and Lamps Plus Inc. v. Varela
[B] Other Jurisdictions
Part II International Arbitral Procedures
Chapter 11 Legal Framework for International Arbitral Proceedings
§ 11.01 Introduction
[A] Jurisdictional Requirements of International Arbitration Conventions and National Arbitration Legislation
[B] Arbitral Seat and Procedural Law of Arbitration
[1] “Internal” Procedural Issues in International Arbitral Proceedings
[2] “External” Relationship Between International Arbitration Proceedings and National Courts
[C] Selection of Foreign Procedural Law Governing Arbitration
§ 11.02 Jurisdictional Requirements of International Arbitration Conventions and National Arbitration Legislation
[A] Jurisdictional Requirements of International Arbitration Conventions
[B] Jurisdictional Requirements of National Arbitration Legislation
§ 11.03 Definition and Selection of Arbitral Seat
[A] Definition of Arbitral Seat
[B] Requirement of Arbitral Seat
[C] Parties’ Autonomy to Select Arbitral Seat
[D] Parties’ Exercise of Autonomy to Select Arbitral Seat
[E] Location of Arbitral Seat Not Ordinarily Affected by Holding Hearings Elsewhere for Convenience
§ 11.04 Legal Significance of Arbitral Seat
[A] Arbitral Seat in International Arbitration Conventions
[1] Geneva Protocol
[2] Geneva Convention
[3] New York Convention
[a] Drafting History of New York Convention
[b] Article V(1)(d): Recognition of Parties’ Procedural Autonomy
[c] Article V(1)(e): Arbitral Seat as Exclusive Annulment Forum with Plenary Annulment Authority
[d] Article V(1)(b): International Due Process Limits on Arbitral Procedure
[e] Article II(3): Principle of Judicial Non-Interference in Pending Arbitral Proceedings
[f] Future Directions: International Limits on Mandatory Procedural Requirements of Arbitral Seat
[g] Future Directions: International Limits on Recognition of Mandatory Procedural Requirements of Arbitral Seat in Other Contracting States
[4] European Convention
[5] Inter-American Convention
[B] Arbitral Seat in National Arbitration Legislation
[1] Uncitral Model Law
[2] English Arbitration Act
[3] Swiss Law On Private International Law
[4] French Code of Civil Procedure
[5] U.S. Federal Arbitration Act
[6] Future Directions: Arbitral Seat in National Arbitration Law
[C] Internal and External Procedural Issues Typically Governed by Law of Arbitral Seat
[1] “External” Relationships Between Arbitration and National Courts
[a] Actions to Annul Arbitral Awards
[b] Qualifications, Appointment and Removal of Arbitrators by National Courts
[c] Competence-Competence and Interlocutory Judicial Consideration of Jurisdictional Disputes
[d] Court-Ordered Provisional Measures in Aid of Arbitration
[e] Court-Ordered Disclosure in Aid of Arbitration
[2] “Internal” Arbitral Procedures
[a] Standards of Procedural Fairness
[b] Timetable of Arbitral Proceedings
[c] Disclosure and Discovery
[d] Confidentiality
[e] Consolidation, Joinder and Intervention
[f] Choice of Substantive Law Applicable to Parties’ Underlying Dispute
[g] Witness Testimony and Oaths
[h] Tribunal’s Remedial Powers
[i] Provisional Measures
[j] Form, Publication and Correction of Award
[k] Rights and Obligations of Arbitrators
[l] Rights and Obligations of Counsel
[D] Mandatory Application of Law of Arbitral Seat
[1] Mandatory Application of Arbitration Legislation of Arbitral Seat
[a] Theoretical Basis for Mandatory Application of Arbitration Legislation of Arbitral Seat
[b] Mandatory Provisions of National Arbitration Legislation
[2] Delocalized Or “A-National” Arbitrations
[3] Future Directions: Mandatory Application of Arbitration Legislation of Arbitral Seat, Subject to International Limitations
[E] Diminished Contemporary Practical Importance of Choice of Arbitral Seat on Internal Arbitral Procedures
§ 11.05 Choice of Procedural Law of Arbitration
[A] Definition of “Procedural Law of Arbitration”
[1] Procedural Law of Arbitration
[2] Procedural Law of Arbitration Distinguished From Substantive Law Governing Parties’ Arbitration Agreement Or Underlying Contract
[3] Procedural Law of Arbitration Distinguished From Arbitration Law of Arbitral Seat
[4] Procedural Law of Arbitration Distinguished From Arbitral Procedures
[B] Choice-of-Law Rules for Selecting Procedural Law of Arbitration
[1] Historic Application of Law of Arbitral Seat As Procedural Law of Arbitration
[2] Contemporary Recognition of Parties’ Autonomy to Choose Procedural Law of Arbitration
[a] Authorities Recognizing Party Autonomy to Select Procedural Law of Arbitration
[b] Limitations on Party Autonomy to Select Procedural Law of Arbitration
[i] Mandatory “Internal” Procedural Protections
[ii] Mandatory “External” Legal Framework
[3] New York Convention Limits On Mandatory Procedural Law of Arbitral Seat
[4] Choice of Procedural Law of Arbitration in Absence of Agreement By Parties
[C] Arbitral Tribunal’s Approach to Selection of Procedural Law of Arbitration
[D] Determining Whether Parties Have Agreed upon Procedural Law of Arbitration
[E] Interpreting Parties’ Choice of Procedural Law of Arbitration
[1] Historic Applicability of Local Civil Procedure Rules of Arbitral Seat
[2] Contemporary Rejection of Applicability of Local Civil Procedure Rules of Arbitral Seat
[3] Institutional Arbitration Rules
[F] Relevance of Procedural Law of Arbitration to Action to Annul Award
[G] National Court Decisions Holding That Foreign Arbitrations are Governed by Local Procedural Law
[H] Future Directions: Selection of Procedural Law of Arbitration
Chapter 12 Selection, Challenge and Replacement of Arbitrators in International Arbitration
§ 12.01 Selection of Arbitrators
[A] Introduction
[B] Party Autonomy to Select Arbitrators Under International Arbitration Conventions
[1] Geneva Protocol and Geneva Convention
[2] New York Convention
[a] Articles II(3) and V(1)(d): Party Autonomy and Mandatory Law
[b] Article II(3) and V(I)(d): Conflicts Between Parties’ Arbitration Agreement and Law of Arbitral Seat
[c] Articles II(3) and V(1)(d): National Court Decisions
[d] Future Directions: Selection of Arbitrators Under Articles II(3) and V(1)(d)
[3] European Convention
[4] Inter-American Convention
[C] Party Autonomy to Select Arbitrators Under National Arbitration Legislation
[1] Party Autonomy to Select Arbitrators
[2] Mandatory Limitations On Party Autonomy to Select Arbitrators
[3] Consequences of Failure to Respect Parties’ Autonomy in Constituting Arbitral Tribunal
[a] Removal of Arbitrators
[b] Annulment of Awards
[c] Non-Recognition of Awards
[4] Waiver of Right to Arbitrate
[D] Party Autonomy to Select Arbitrators Under Institutional Arbitration Rules
§ 12.02 Number of Arbitrators
[A] Role of Party Autonomy in Selecting Number of Arbitrators
[B] Prohibitions Against Even Numbers of Arbitrators
[C] Sole Arbitrator
[D] Three-Person Arbitral Tribunals
[E] Umpire and Two Arbitrators
[F] Five-Person (or Larger) Arbitral Tribunals
[G] Consequences of Failure to Comply with Parties’ Agreement Regarding Number of Arbitrators
[H] Expedited Procedures and Sole Arbitrators
[I] Optimum Number of Arbitrators
[J] Approaches of National Arbitration Statutes to Number of Arbitrators Where Parties Have Not Agreed
[K] Approaches of Institutional Arbitration Rules to Number of Arbitrators Where Parties Have Not Agreed
§ 12.03 Procedures For Selecting Arbitrators
[A] Introduction
[B] Selection of Co-Arbitrators by Parties
[1] Procedures For Selecting Co-Arbitrators
[2] Criteria For Selecting Co-Arbitrators
[3] Parties’ Contacts With Co-Arbitrators Prior to and During Constitution of Tribunal
[4] Consequences of Party Participating in Constitution of Tribunal On Subsequent Jurisdictional Objection
[C] Party’s Failure to Select Co-Arbitrator
[1] Failure to Nominate Arbitrator Under Institutional Arbitration Rules
[2] Failure to Nominate Arbitrator Under Arbitration Agreement
[3] Failure to Nominate Arbitrator Under National Arbitration Legislation
[a] Non-Defaulting Party’s Co-Arbitrator Treated as Sole Arbitrator
[b] Judicial Appointment of Defaulting Party’s Co-Arbitrator
[D] Selection of Sole or Presiding Arbitrator
[1] Selection of Sole Or Presiding Arbitrator in Arbitration Agreement
[2] Selection of Sole Or Presiding Arbitrator in Post-Dispute Discussions Between Parties Or Co-Arbitrators
[3] Role of Co-Arbitrators in Selection of Presiding Arbitrator
[4] Contacts Between Parties and Prospective Sole Or Presiding Arbitrator
[5] Criteria For Selection of Sole Or Presiding Arbitrator
[E] Selection of Sole or Presiding Arbitrator by Appointing Authority
[1] Introduction
[2] Parties’ Autonomy to Agree Upon Appointing Authority
[3] Uncitral Rules
[4] Icc Rules
[5] Lcia Rules
[6] Siac Rules
[7] Aaa Commercial Arbitration Rules
[8] Future Directions: Advantages and Disadvantages of Different Institutional Approaches
[F] Selection of International Arbitrators by National Courts
[1] Advantages and Disadvantages of Appointment of International Arbitrators By National Courts
[2] Judicial Appointment of International Arbitrators As Default Mechanism
[a] UNCITRAL Model Law
[b] U.S. Federal Arbitration Act
[c] French Code of Civil Procedure
[d] Swiss Law on Private International Law
[e] Singapore International Arbitration Act
[f] Other National Arbitration Legislation
[3] Circumstances Where Judicial Appointment of International Arbitrator Is Available
[a] No Agreement on Appointment Mechanism for Sole or Presiding Arbitrator
[b] Party’s Failure to Appoint Co-Arbitrator
[c] Arbitrator Specified in Parties’ Agreement Will Not or Cannot Serve
[d] Appointing Authority Selected by Parties Will Not or Cannot Act
[e] Appointing Authority Selected by Parties Does Not Act in Timely Manner
[f] Parties’ Agreement Regarding Appointing Authority Is Indefinite or Internally Inconsistent
[g] Parties’ Agreement to Appointment of Arbitrator by National Court
[4] Procedures For Judicial Appointment of Arbitrators
[5] Criteria For Judicial Selection of Arbitrators
[6] Consideration of Jurisdictional Challenges By Court Requested to Appoint Arbitrator
[7] Forum Selection Issues Affecting Appointment of International Arbitrators By National Courts
[a] Judicial Appointment of International Arbitrator Only by National Court in Arbitral Seat
[b] Judicial Appointment of International Arbitrator Where Arbitral Seat Has Not Been Specified
[G] Form Requirements for Agreement on Arbitrators or Means of Selecting Arbitrators
[H] Judicial Appointment of Arbitrators in Multi-Party Disputes
[I] Selection of Arbitrators Under International Arbitration Conventions
[1] New York Convention
[2] European Convention
[3] Inter-American Convention
§ 12.04 Restrictions on Arbitrators’ Identities
[A] Nationality of Arbitrators
[1] Institutional Arbitration Rules
[2] National Arbitration Legislation Guaranteeing Freedom to Appoint Foreign Arbitrators
[3] National Arbitration Legislation Prohibiting Appointment of Foreign Arbitrators
[4] International Limitations On National Arbitration Legislation Prohibiting Appointment of Foreign Arbitrators
[5] National Arbitration Legislation Encouraging Or Requiring Judicial Appointment of Arbitrators With Neutral Nationality
[B] Other Limitations Imposed by National Law on Arbitrators’ Identities
[1] Arbitrator Must Be Natural Person
[2] Arbitrator Must Have Legal Capacity
[3] Arbitrator Must Be Legally-Qualified
[4] Arbitrator Must Be Capable of Exercising Civil Rights
[5] Arbitrator Must Not Be National Court Judge
[6] Possible Inapplicability of National Law Limitations On Arbitrators to International Arbitrations
[7] International Restrictions On National Arbitration Legislation Imposing Capacity Limitations On Arbitrators
[C] Procedural Fairness Limitations Imposed by National Law on Procedure for Selecting Arbitrators
[D] Contractual Requirements for Arbitrators’ Qualifications
[1] Nationality Limitations
[2] List Systems
[3] Language Requirements
[4] Expertise and Accreditation Requirements
[5] Legal Qualification Requirements
[6] Prohibitions Against Legal Qualification
[7] “Commercial Men” Requirements
[8] Religion Requirements
[9] Independence and Impartiality Requirements
[10] Consequences of Noncompliance With Parties’ Agreement Regarding Arbitrators’ Qualifications
[E] Choice-of-Law Considerations Concerning Arbitrators’ Capacity and Qualifications
§ 12.05 Independence and Impartiality of Arbitrators
[A] Independence and Impartiality Obligations Under National Arbitration Legislation
[1] Standards of “Independence” and “Impartiality” Under National Arbitration Legislation
[a] No Lawyer-Client Relationship Between Arbitrator and Party
[b] UNCITRAL Model Law
[c] U.S. Federal Arbitration Act
[i] Introduction
[ii] Commonwealth Coatings
[iii] U.S. Lower Courts: “Appearance of Bias”
[iv] U.S. Lower Courts: Actual Bias
[v] Future Directions: Evident Partiality Under the FAA
[d] English Arbitration Act
[e] French Code of Civil Procedure
[f] Other Jurisdictions
[2] “Impartiality” Versus “Independence”
[3] “Justifiable Doubts”
[a] Standard of Proof
[b] Objective Standard of Independence and Impartiality
[c] Character of Inquiry into Partiality or Dependence
[4] “Appearance” Or “Impression” of Partiality Or Dependence
[5] Standards of Independence Applicable to Arbitrators and Judges
[6] Future Directions: National Law Standards of Impartiality and Independence
[B] Possible Applicability of Different Standards of Impartiality and Independence to Co-Arbitrators and Presiding Arbitrator
[1] Historic Standards of Impartiality For Co-Arbitrators
[2] Contemporary International Standards of Impartiality For Co-Arbitrators
[3] Contemporary U.S. Standards of Impartiality For Co-Arbitrators
[4] Continued Possibility For Parties to Agree On Non-Neutral Co-Arbitrators Under Contemporary U.S. Practice
[5] Criticism of Practice of Party-Nominated Co-Arbitrators
[6] Future Directions: Standards of Impartiality and Independence For Co-Arbitrators in International Arbitration
[C] Role of Parties’ Agreement in Defining Standards of Independence and Impartiality
[1] Parties’ Autonomy to Require Heightened Standards of Independence and Impartiality
[2] Parties’ Autonomy to Provide For Reduced Standards of Independence and Impartiality
[3] Mandatory Limitations On Parties’ Autonomy to Provide For Reduced Standards of Independence and Impartiality
[4] Future Directions: Parties’ Autonomy to Provide For Reduced Standards of Independence and Impartiality
[a] Parties’ Autonomy to Provide for Reduced Standards of Independence and Impartiality
[b] Limitations on Parties’ Autonomy to Define Standards of Impartiality and Independence
[D] Applicability of Different Standards of Impartiality and Independence to Disclosure and to Removal or Disqualification
[E] Applicability of Different Standards of Impartiality and Independence at Different Procedural Stages of Arbitration
[F] Applicability of Different Standards of Impartiality and Independence in Actions to Remove Arbitrator and Actions to Annul or Recognize Award
[G] Choice-of-Law Issues Relating to Independence and Impartiality Obligations Imposed by National Law
[1] Applicability of Law of Arbitral Seat in Actions to Remove Arbitrator For Lack of Impartiality Or Independence
[2] Applicability of Law of Arbitral Seat in Action to Annul Award Based On Arbitrator’s Lack of Independence Or Impartiality
[3] Applicable Law in Action to Recognize Arbitral Award
[H] Independence and Impartiality Obligations Imposed by Institutional Arbitration Rules
[1] Impartiality and Independence of Arbitrators Under Institutional Arbitration Rules
[2] Statements of Independence Under Institutional Arbitration Rules
[I] Effect of Institutional Impartiality Standards and Challenge Mechanisms Under National Arbitration Law and New York Convention
[J] Independence and Impartiality Obligations Prescribed by Codes of Conduct and Ethical Guidelines
[1] 1977 Aaa/Aba Code of Ethics
[2] 2004 Aaa/Aba Code of Ethics
[3] Codes of Conduct Prescribed By International Arbitral Institutions
[4] Other Codes of Conduct Applicable to Arbitrators
[5] Iba Rules of Ethics For International Arbitrators and Iba Guidelines On Conflicts of Interest
[a] IBA Rules of Ethics
[b] IBA Guidelines on Conflicts of Interest in International Arbitration
[i] General Standards: Impartiality and Independence
[ii] General Standards: Disclosures by Arbitrators
[iii] General Standards: Waiver
[iv] Third Party Funding
[v] Practical Applications: Red, Orange and Green Lists
[vi] Application of Guidelines by Arbitral Institutions and National Courts
[c] Future Directions: IBA Guidelines Assessed
[i] Increased Frequency of Challenges
[ii] Decreased Clarity of Standards of Independence and Impartiality
[iii] Other Adverse Consequences
[K] Recurrent Factual Circumstances and Issues Relating to Impartiality and Independence of Arbitrators
[L] Relevance of “Affiliates” of Parties
[M] Abuse of Arbitrator Challenges
[N] Disclosure Obligations of Arbitrators
[1] Disclosure Obligations Under National Law
[a] UNCITRAL Model Law
[b] Swiss Law on Private International Law
[c] Swedish Arbitration Act
[d] French Code of Civil Procedure
[e] English Arbitration Act
[f] Future Directions: Arbitrator’s Duty to Disclose
[2] Disclosure Obligations Under Institutional Arbitration Rules
[3] Disclosure Obligations Under Iba Guidelines
[4] Disclosure Obligations Under Other Codes of Conduct Or Ethical Guidelines
[5] Future Directions: Scope of Disclosure Obligations
[6] Continuing Disclosure Obligations
[7] Arbitrator’s Obligation to Investigate
§ 12.06 Procedures For Challenging and Replacing Arbitrators
[A] Procedural Aspects of Challenging Arbitrators Under Institutional Arbitration Rules
[1] Procedures For Institutional Challenges to Arbitrators
[2] Grounds For Challenging Arbitrators Under Institutional Arbitration Rules
[3] Time Limits For Challenges to Arbitrators Under Institutional Arbitration Rules
[4] Constructive Knowledge of Basis For Challenge
[5] Timing of Challenge
[6] No Reasoned Decision By Appointing Authority On Challenge
[7] No Right of Party Under Institutional Arbitration Rules to Remove Co-Arbitrator It Has Nominated
[8] Replacement of Arbitrator Following Removal Or Resignation
[B] Procedures for Challenging and Replacing Arbitrators Under National Law
[1] Legislation Providing For Interlocutory Judicial Removal of Arbitrators in Both Ad Hoc and Institutional Arbitrations
[2] Legislation Providing For Interlocutory Judicial Removal of Arbitrators, But Only in Ad Hoc Arbitrations
[3] National Arbitration Legislation Not Permitting Interlocutory Judicial Challenges to Arbitrators
[4] Future Directions: Interlocutory Judicial Review of Arbitrators’ Qualifications Or Independence/Impartiality
[5] Power of Arbitral Tribunal to Continue Proceedings Despite Pending Judicial Challenge to Arbitrator
[6] No Right of Party Under National Law to Remove Co-Arbitrator It Has Nominated
[7] No Judicial Authority to Reinstate Arbitrator Who Resigns
[C] Grounds for Challenging and Removing Arbitrators Under National Arbitration Legislation
[1] Limited Grounds For Interlocutory Judicial Removal of Arbitrator
[2] Expansive Grounds For Interlocutory Judicial Removal of Arbitrator
[D] Jurisdictional Limits on National Courts That May Entertain Judicial Challenges to Arbitrators
[E] Waiver of Objections to Arbitrator’s Lack of Independence or Impartiality Under National Law
[1] Waiver of Objections to Arbitrator’s Lack of Independence Or Impartiality
[2] Constructive Knowledge
[3] Non-Waivable Grounds For Challenge
[F] Agreements Excluding or Limiting Interlocutory Judicial Challenges to Arbitrator’s Independence or Impartiality
[1] Interpretation of Agreements Excluding Or Limiting Interlocutory Judicial Challenges to Arbitrator’s Independence Or Impartiality
[2] Validity of Agreements Excluding Or Limiting Interlocutory Judicial Challenges to Arbitrator’s Independence Or Impartiality
[3] Future Directions: Validity of Agreements Excluding Or Limiting Interlocutory Judicial Challenges to Arbitrators’ Independence Or Impartiality
[G] Judicial Termination of Arbitrator’s Mandate
[H] Replacement of Arbitrator Following Removal or Resignation
[I] Consequences of Removal and Replacement of Arbitrator
[1] National Arbitration Legislation
[2] Institutional Arbitration Rules
[3] Arbitral Tribunals’ Exercise of Discretion
§ 12.07 Truncated Tribunal
[A] Truncated Tribunals Under Institutional Arbitration Rules
[B] Truncated Tribunals Under National Arbitration Legislation
Chapter 13 Rights and Duties of International Arbitrators
§ 13.01 Introduction
§ 13.02 Status of International Arbitrators
[A] Status of International Arbitrators in International Arbitration Conventions
[B] Status of International Arbitrators in National Arbitration Legislation
[1] Uncitral Model Law
[2] Other National Arbitration Legislation
[C] Status of International Arbitrators in Institutional Arbitration Rules
[D] Contractual Status of International Arbitrators: Arbitrator’s Contract
[E] Legislatively-Conferred Status of International Arbitrators
[F] No Lawyer-Client Relationship
[G] Ethical Codes and Guidelines for International Arbitrators
[H] Future Directions: Status of International Arbitrators
§ 13.03 International Arbitrator’s Contract
[A] Nature of International Arbitrator’s Contract
[B] Formation of International Arbitrator’s Contract
[C] Termination of International Arbitrator’s Contract and Resignation of Arbitrator
[D] Contract with Arbitral Institution
§ 13.04 Obligations of International Arbitrators
[A] International Arbitrator’s Obligation to Resolve Parties’ Dispute in Adjudicatory Manner
[1] International Arbitrator’s Obligations to Act in Adjudicatory Manner
[2] International Arbitrator’s Obligations of Impartiality and Independence
[3] International Arbitrator’s Obligation of Disclosure of Potential Conflicts
[4] International Arbitrator’s Obligations of Care, Skill and Integrity
[5] International Arbitrator’s Obligation of Diligence
[6] International Arbitrator’s Obligation to Apply Law
[7] International Arbitrator’s Obligations With Respect to Arbitrator Misconduct
[8] International Arbitrator’s Obligation Not to Delegate Duties
[B] International Arbitrator’s Obligation to Conduct Arbitration in Accordance with Parties’ Arbitration Agreement
[C] International Arbitrator’s Obligation of Confidentiality
[D] International Arbitrator’s Obligation to Propose Settlement
[E] International Arbitrator’s Obligation to Complete His or Her Mandate
[F] International Arbitrator’s Data Protection Obligations
§ 13.05 Remedies For International Arbitrator’s Failure to Comply With Obligations
[A] Claims by Parties Against International Arbitrator
[B] Loss of International Arbitrator’s Right to Remuneration
[C] Termination of International Arbitrator’s Contract by Parties
[D] Removal of International Arbitrator
[E] Prohibition on Further Appointments
[F] Annulment or Non-Recognition of Arbitral Award
[G] Criminal Liability
§ 13.06 Rights of International Arbitrators
[A] International Arbitrator’s Rights to Remuneration
[B] International Arbitrator’s Rights to Cooperation
[C] International Arbitrator’s Rights to Immunity
[1] International Arbitrator Immunity Under International Arbitration Conventions
[2] International Arbitrator Immunity Under National Arbitration Legislation
[a] International Arbitrator Immunity from Civil Liability Under National Arbitration Legislation and Judicial Decisions
[b] Scope of International Arbitrator Immunity from Civil Liability Under National Arbitration Legislation or Judicial Decisions
[c] International Arbitrator’s Immunity from Compelled Testimony
[d] International Arbitrator’s Right to Legal Costs
[e] International Arbitral Institutions’ Immunity
[3] International Arbitrator Immunity Under Institutional Arbitration Rules
[4] Future Directions: International Arbitrator Immunity
[D] International Arbitrator’s Rights of Confidentiality
§ 13.07 Role of Presiding Arbitrator
[A] Presiding Arbitrator
[1] Procedural Decisions
[2] Powers of “Presiding” Arbitrator
[3] Casting Vote of Presiding Arbitrator
[B] Secretary to Tribunal
§ 13.08 Choice of Law Governing International Arbitrators’ Obligations, Rights and Protections
§ 13.09 Proposals For Licensing and Regulation of International Arbitrators
Chapter 14 Selection of Arbitral Seat in International Arbitration
§ 14.01 Introduction
[A] Importance of Location of Arbitral Seat
[B] Means of Selecting Arbitral Seat
§ 14.02 Importance of Selection of Arbitral Seat
[A] Considerations in Selecting Arbitral Seat
[1] Contracting State Under New York Convention
[2] Supportive National Arbitration Regime
[3] Annulment of Arbitral Awards
[4] Selection of Arbitrators
[5] Choice of Procedural and Substantive Laws
[6] Availability of Judicial Assistance
[7] Neutrality of Arbitral Seat
[8] Convenience and Cost
[9] Language of Arbitration
[B] Arbitral Seats Commonly Selected by Parties
§ 14.03 Parties’ Autonomy to Select Arbitral Seat
[A] International Arbitration Conventions: Parties’ Autonomy to Select Arbitral Seat
[B] National Arbitration Legislation: Parties’ Autonomy to Select Arbitral Seat
[1] Parties’ Autonomy to Select Arbitral Seat
[2] Limitations On Parties’ Autonomy to Select Arbitral Seat
[C] Institutional Arbitration Rules
[D] Agreements Selecting Arbitral Seat
[1] Terms of Agreement Selecting Arbitral Seat
[2] “Venue,” “Situs” Or “Forum”
[3] Specification of Country and City
[4] Location of Hearings
[E] Agreement to Change Arbitral Seat
§ 14.04 Interpretation and Validity of Agreement on Arbitral Seat
[A] Interpretation of Parties’ Agreement on Arbitral Seat
[B] Validity of Parties’ Agreement on Arbitral Seat
[1] Inconvenient Arbitral Seat
[2] Changed Circumstances Affecting Arbitral Seat
[3] Unconscionability of Agreement On Arbitral Seat
[4] Internally-Contradictory Specifications of Arbitral Seat
[5] Other Grounds For Challenging Agreement On Arbitral Seat
[6] Statutory Restrictions On “Foreign” Seats
[7] Form Requirements For Agreement On Arbitral Seat
[C] Remedies in Cases Involving Nonexistent, Invalid, or Defective Selection of Arbitral Seat
§ 14.05 Choice of Law Governing Interpretation and Validity of Agreement on Arbitral Seat
§ 14.06 Allocation of Competence Over Disputes Concerning Validity Or Interpretation of Agreement on Arbitral Seat
[A] Allocation of Competence over Disputes Concerning Validity of Agreement on Arbitral Seat
[B] Allocation of Competence over Disputes Concerning Interpretation of Agreement on Arbitral Seat
[C] Judicial Review of Decision by Arbitral Tribunal or Arbitral Institution on Interpretation or Validity of Agreement on Arbitral Seat
§ 14.07 Default Selection of Arbitral Seat By Arbitral Institution Or Arbitral Tribunal in Absence of Agreement By Parties
[A] Institutional Arbitration Rules Providing for Default Selection of Arbitral Seat by Arbitral Institution
[B] Institutional Arbitration Rules Providing for Default Selection of Arbitral Seat by Arbitral Tribunal
[C] Institutional Arbitration Rules with Presumption for Particular Default Arbitral Seat
[D] National Arbitration Legislation Providing for Default Selection of Arbitral Seat by Arbitral Tribunal
[E] Factors Relevant to Arbitral Tribunal’s or Arbitral Institution’s Default Selection of Arbitral Seat
[F] Judicial Review of Decisions by Arbitral Institution or Arbitral Tribunal Selecting Default Arbitral Seat
[1] Deferential Judicial Review of Decisions By Arbitral Institutions Or Arbitral Tribunals Selecting Default Arbitral Seat
[2] Less Deferential Judicial Review of Decisions By Arbitral Institutions Or Arbitral Tribunals Selecting Default Arbitral Seat
§ 14.08 Competence of National Courts to Select Arbitral Seat in Absence of Agreement By Parties
[A] No General Authority Under Most National Arbitration Statutes for National Court to Select Arbitral Seat in Absence of Agreement by Parties
[B] Authority of U.S. Courts Under Federal Arbitration Act to Select Arbitral Seat in Absence of Agreement by Parties
[1] Power of U.S. District Courts to Compel Arbitration in United States Under §4 of Federal Arbitration Act
[2] Power of District Courts to Compel Arbitration in United States Or Abroad Under §206 of Federal Arbitration Act
[a] Section 206 of Federal Arbitration Act Authorizes U.S. Courts to Compel Arbitration in Foreign Arbitral Seat Specified in Parties’ Agreement
[b] Section 206 of Federal Arbitration Act Does Not Apply if No Arbitral Seat Has Been Specified in Parties’ Agreement
[c] Uncertainty Under §206 of Federal Arbitration Act as to Authority of U.S. Courts to Compel Arbitration in Foreign Arbitral Seat Selected by Arbitral Institution or Arbitral Tribunal
[i] Lower U.S. Courts Holding That §206 of Federal Arbitration Act Does Not Permit Order Compelling Arbitration in Foreign Arbitral Seat Selected by Arbitral Institution or Arbitral Tribunal
[ii] Lower U.S. Courts Holding That §206 of Federal Arbitration Act Permits Order Compelling Arbitration in Foreign Arbitral Seat Selected by Arbitral Institution or Arbitral Tribunal
[3] Power of U.S. District Courts to Compel Arbitration in Particular Arbitral Seat Under §303 of Federal Arbitration Act
[4] U.S. Decisions Invalidating Choice of Foreign Arbitral Seat On Public Policy Grounds
[5] Future Directions: Orders Compelling Arbitration in Specified Location Under Federal Arbitration Act
Chapter 15 Procedures in International Arbitration
§ 15.01 Introduction
[A] Objectives of International Arbitral Procedures
[B] Differences Between Arbitral and Judicial Procedures
§ 15.02 Parties’ Autonomy to Determine Procedures in International Arbitration
[A] Parties’ Procedural Autonomy Under International Arbitration Conventions
[B] Parties’ Procedural Autonomy Under National Arbitration Legislation
[C] Parties’ Procedural Autonomy to Select Institutional Arbitration Rules
[D] Parties’ Procedural Autonomy Under Institutional Arbitration Rules
[E] Arbitral Tribunal’s Objections to Parties’ Procedural Agreements
[1] Parties’ General Procedural Autonomy, Notwithstanding Arbitral Tribunal’s Objections
[2] Arbitrators’ Procedural Authority to Require Compliance With Mandatory Rules of Procedural Fairness and Equality
[3] Arbitrators’ Procedural Authority Under Institutional Arbitration Rules
[F] National Arbitration Legislation Not Recognizing Parties’ Procedural Autonomy
§ 15.03 Arbitral Tribunal’s Discretion to Determine Procedures in International Arbitration
[A] Arbitral Tribunal’s Procedural Discretion Under International Arbitration Conventions
[B] Arbitral Tribunal’s Procedural Discretion Under National Arbitration Legislation
[C] Arbitral Tribunal’s Procedural Discretion Under Institutional Arbitration Rules
§ 15.04 Mandatory Procedural Requirements in International Arbitration
[A] Mandatory Procedural Protections Under International Arbitration Conventions
[1] New York Convention
[a] Article II
[b] Article V(1)(b)
[c] Article V(1)(d)
[d] Article V(2)(b)
[2] European and Inter-American Conventions
[B] Mandatory Procedural Protections Under National Arbitration Legislation
[1] Mandatory Procedural Protections: Basic Principles
[2] Equality of Treatment
[3] Opportunity to Be Heard
[4] Deference to Parties’ Procedural Autonomy and Arbitrators’ Procedural Discretion
[C] Representative Applications of Mandatory Procedural Protections
[D] International Limits on Mandatory National Procedural Requirements
§ 15.05 Waiver of Procedural Rights in International Arbitration
§ 15.06 Judicial Non-Interference in International Arbitral Proceedings
[A] Principle of Judicial Non-Interference Under International Arbitration Conventions
[1] New York Convention
[2] Inter-American Convention
[3] European Convention
[B] Principle of Judicial Non-Interference Under National Arbitration Legislation
§ 15.07 Procedural Conduct of International Arbitral Proceedings
[A] No General Procedural Code for International Arbitrations
[B] No Mandatory Application of Domestic Rules of Civil Procedure
[C] Arbitral Procedures Under Institutional Arbitration Rules
[D] Arbitral Tribunal’s Exercise of Discretion over Arbitral Procedures
[1] Tailoring Procedures to Particular Parties and Disputes
[2] “Civil Law,” “Common Law” and Other Procedures
[3] “Internationalized” Or “Harmonized” Procedures
[E] Arbitral Procedures Under IBA Rules on Taking of Evidence
[F] Arbitral Procedures Under Prague Rules
§ 15.08 Major Procedural Steps in International Arbitral Proceedings
[A] Notice of Arbitration or Request for Arbitration
[B] Delivery of Request for Arbitration
[C] Receipt of Request for Arbitration
[D] Answer and Counterclaims
[E] Constitution of Arbitral Tribunal and Challenges to Arbitrator
[F] Presiding Arbitrator’s Procedural Authority
[G] Written Communications with Arbitral Tribunal During Arbitral Proceedings
[1] Written Communications With Arbitral Tribunal
[2] No Ex Parte Substantive Communications With Tribunal
[H] Procedural Orders and Directions
[I] Jurisdictional Objections
[J] Language of Arbitration
[K] Advance on Costs or Deposits
[L] Initial Procedural Conference
[M] Case Management
[N] Time Limits for Arbitration
[O] Procedural Timetable for Arbitration and Initial Procedural Order
[P] Issue Definition
[Q] Bifurcation and Other Sequencing or Segmentation of Proceedings
[R] Summary Dispositions
[S] ICC Terms of Reference
[T] “Disclosure” or “Discovery”
[U] Written Submissions
[V] Documentary Evidence
[W] Written Witness Statements
[X] Introduction of New Claims and Defenses
[Y] Cut-Off Date
[Z] Evidentiary Hearings
[1] Oral Hearing Generally Mandatory
[2] “Remote” Hearings
[3] Scheduling Hearings
[4] Pre-Hearing Planning and Case Management
[5] Hearing Logistics
[6] Structure and Scheduling of Hearing Time
[7] Permissible Fact Witnesses
[8] Expert Witnesses
[9] Independence of Expert Witnesses
[10] Witness Testimony
[11] Conduct of Witness Examination
[a] Witnesses Subject to Examination
[b] Conduct of Witness Examination
[c] Direct Examination
[d] Cross-Examination
[e] Re-Direct Examination
[f] Tribunal Questions
[g] Video Testimony
[12] Witness Testimony Under Oath Or Affirmation
[13] Sequestration of Witnesses
[14] Tribunal’s Role at Evidentiary Hearing
[15] Hearing Transcripts Or Minutes
[16] “Witness-Conferencing”
[17] Legal Submissions
[18] Oral Legal Submissions
[AA] Demonstrative Evidence
[BB] Post-Hearing Written Submissions
[CC] Closing of Arbitral Proceedings
[DD] Ex Parte Proceedings and Default Awards
[EE] Termination of Arbitral Proceedings
[FF] Deliberations of Arbitrators
[1] Collegiality of Arbitrators’ Deliberations
[2] Structure and Timing of Deliberations
[3] Conduct of Deliberations
[4] Drafting of Award
[5] Secrecy of Deliberations
[GG] Making and Notification of Award
[HH] Costs of Arbitration
[II] Fast-Track Arbitration
[JJ] Emergency Arbitration
§ 15.09 Evidentiary Rules and Burden of Proof
[A] Evidentiary Rules
[B] Burden of Proof
§ 15.10 Arbitrators’ Authority to Impose Sanctions
Chapter 16 Disclosure in International Arbitration
§ 16.01 Introduction
§ 16.02 Disclosure Powers of International Arbitral Tribunals
[A] Disclosure Powers of International Arbitral Tribunals Defined by Procedural Law of Arbitration
[B] Disclosure Powers of International Arbitral Tribunals Under National Arbitration Legislation
[1] Uncitral Model Law
[2] U.S. Federal Arbitration Act
[3] English Arbitration Act
[4] Other Arbitration Legislation
[5] Arbitral Tribunal’s Implied Disclosure Powers Under National Arbitration Legislation
[6] International Arbitral Tribunal Not Limited to Disclosure Powers of Local Courts
[7] Arbitral Tribunal’s Disclosure Orders Subject to Minimal Review
[C] Arbitral Tribunal’s Disclosure Powers Under Institutional Arbitration Rules
[1] Disclosure Under Lcia Rules
[2] Disclosure Under Uncitral Rules
[3] Disclosure Under AAA/ICDR Rules
[4] Disclosure Under Icc Rules
[5] Disclosure Under Other Institutional Arbitration Rules
[6] Future Directions: Disclosure Under Institutional Arbitration Rules
[D] Arbitral Tribunal’s Disclosure Powers Generally Limited to Parties to Arbitration
[E] Arbitral Tribunal’s Exercise of Discretion to Order Disclosure
[1] Availability and Scope of Disclosure: Civil Law Versus Common Law
[2] No Automatic Right of Parties to Request Disclosure
[3] Evidence-Taking Mechanisms in International Arbitration
[a] Document Disclosure
[i] No Automatic Right to Disclosure
[ii] Commonly-Used Procedural Frameworks for Document Disclosure
(1) IBA Rules on Taking of Evidence
(2) Prague Rules
[b] Attendance of Witnesses at Evidentiary Hearing
[c] Interrogatories or Requests for Further Information
[d] Inspections
[e] Depositions
[f] Preservation or Sampling of Evidence
[4] Scope of Disclosure: Specificity, Relevance, Materiality and Proportionality
[a] IBA Rules on Taking of Evidence
[b] Specific Documents or Narrow and Specific Categories of Documents
[c] Relevance and Materiality
[d] Proportionality
[e] Document Not in Possession, Custody, or Control of Requesting Party
[f] Relevance of Burden of Proof
[g] “Possession, Custody, or Control” of Requested Party
[5] Timing of Disclosure Requests and Production
[6] Preservation of Documents (“Litigation Holds” Or “Arbitration Holds”)
[7] E-Disclosure
[8] Privilege in International Arbitration
[a] General Principles
[b] Availability of Privileges
[c] Legal Advice
[d] Settlement Communications
[e] Choice of Law Governing Privilege
[f] “Most Protective Privilege” Rule
[g] International Principles Relating to Privilege
[9] Confidentiality and Protective Orders in International Arbitration
[F] Consequences of Party’s Failure to Comply with Arbitral Tribunal’s Disclosure Order
[1] Sanctions
[2] Judicial Enforcement of Arbitrators’ Disclosure Orders
[3] Adverse Inferences
[4] Counsel’s Professional Obligations
[G] Disclosure Provisions in Arbitration Agreements
§ 16.03 Role of National Courts in Obtaining Evidence For Use in International Arbitrations
[A] National Arbitration Legislation Providing for Judicial Assistance in Taking Evidence in Connection with International Arbitrations
[1] Uncitral Model Law
[2] English Arbitration Act
[3] Other National Arbitration Legislation
[4] U.S. Arbitration Legislation
[a] Judicial Assistance to Arbitral Tribunals Under §7 of Federal Arbitration Act
[i] Availability of Judicial Assistance in Obtaining Evidence from Non-Parties Under §7 of Federal Arbitration Act
[ii] Availability of Pre-Hearing Judicial Assistance Under §7 of Federal Arbitration Act
[iii] Parties’ Agreements on Scope of Disclosure Under §7 of Federal Arbitration Act
[iv] Request by Party for Judicial Assistance in Evidence-Taking Under §7 of Federal Arbitration Act
(1) U.S. Judicial Decisions Granting Disclosure Applications Under §7 by Party to Arbitration in “Exceptional Circumstances”
(2) U.S. Judicial Decisions Denying Disclosure Applications Under §7 by Party to Arbitral Proceedings
[v] Territorial Limitations Under §7 of Federal Arbitration Act
[b] Judicial Assistance by U.S. Courts in Evidence-Taking in International Arbitrations Under §1782
[i] “Foreign or International Tribunals” Under §1782
[ii] “Interested Persons” Under §1782
[iii] Application of §1782 in U.S.-Seated Arbitrations
[iv] Discretion to Order Disclosure Under §1782
[v] Procedures for Party’s Request for Judicial Assistance in Evidence-Taking
[B] Judicial Assistance in Evidence-Taking in “Foreign” Arbitrations
[C] Agreements Excluding Judicial Assistance in Evidence-Taking
[D] Applicability of Hague Evidence Convention to Evidence-Taking in International Arbitration
Chapter 17 Provisional Relief in International Arbitration
§ 17.01 Introduction
§ 17.02 Provisional Measures Ordered By International Arbitral Tribunals
[A] Arbitrators’ Authority to Order Provisional Relief
[1] Authority of Arbitrators to Order Provisional Relief Under International Arbitration Conventions
[2] Effect of New York Convention On Authority of Arbitrators to Order Provisional Measures
[3] Authority of Arbitrators to Order Provisional Relief Under National Arbitration Legislation
[a] Historic Prohibitions Against Tribunal-Ordered Provisional Relief
[b] National Legislation Recognizing Power of Arbitral Tribunal to Order Provisional Relief
[i] UNCITRAL Model Law: Original Text and 2006 Revisions
[ii] Swiss Law on Private International Law
[iii] U.S. Federal Arbitration Act
[iv] English Arbitration Act
[v] Other Jurisdictions
[c] Contemporary Legislation Prohibiting Arbitral Tribunal from Ordering Provisional Relief
[4] Institutional Arbitration Rules
[a] UNCITRAL Rules
[b] ICC Rules
[c] SIAC Rules
[d] LCIA Rules
[e] Other Institutional Arbitration Rules
[5] Limitations On Arbitral Tribunal’s Power to Order Provisional Relief
[a] Arbitral Tribunal Lacks Power to Order Provisional Relief Against Third Parties
[b] Arbitral Tribunal Lacks Power to Directly Enforce Provisional Relief
[c] Limitation of Provisional Relief to “Subject Matter of Dispute”
[d] Arbitral Tribunal Lacks Power to Order Provisional Relief Until It Is Constituted
[6] Specialized Institutional Rules For Expedited Provisional Relief: Pre-Arbitral Referees and Emergency Arbitrators
[B] Arbitral Tribunal’s Implied Authority to Order Provisional Relief
[C] Parties’ Agreement Excluding Arbitral Tribunal’s Power to Order Provisional Relief
[D] Agreements Requiring Pre-Arbitration Negotiations or Other Procedural Steps
[E] Arbitral Tribunal’s Authority to Order Provisional Relief Is Not Exclusive: Concurrent Jurisdiction of National Courts to Grant Provisional Relief
[F] Choice of Law Applicable to Arbitral Tribunal’s Power to Grant Provisional Relief
[G] Arbitral Tribunal’s Exercise of Authority to Order Provisional Relief
[1] Increased Willingness of Arbitral Tribunals to Grant Provisional Relief
[2] Choice of Law Governing Arbitral Tribunal’s Exercise of Authority to Grant Provisional Relief
[3] Standards For Provisional Relief in International Arbitration
[a] Party Autonomy: Contractual Standards and Institutional Rules
[b] Standards for Provisional Relief
[i] Risk of “Irreparable” or “Serious” Injury
[ii] Urgency
[iii] No Prejudgment of Merits
[iv] Prima Facie Case or Probability of Success on Merits
[v] Prima Facie Jurisdiction
[c] Emergency Arbitration: Standards for Relief
[4] Categories of Provisional Measures
[a] Orders Preserving Status Quo
[b] Orders Prohibiting Aggravation of Parties’ Dispute
[c] Orders Requiring Specific Performance of Contractual or Other Obligations
[d] Orders Requiring Security for Underlying Claims
[e] Orders Requiring Security for Legal Costs
[f] Orders Requiring Payment of Advance on Costs or Deposit
[g] Orders for Preservation or Inspection of Property
[h] Enforcement of Confidentiality Obligations
[i] Orders for Interim Payment
[j] Antisuit Orders
[5] Tribunal’s Discretion Regarding Provisional Measures
[6] Relevance of Prior Consideration of Provisional Measures By National Courts
[7] Form of Provisional Measures: Order Or Award
[8] Security As Condition For Provisional Relief
[9] Sua Sponte Provisional Measures
[10] Ex Parte Provisional Measures
§ 17.03 Judicial Recognition and Enforcement of Provisional Relief Ordered By Arbitrators
[A] are Provisional Measures “Awards”?
[1] Historical Authority Holding That Orders of Provisional Measures are Not “Awards”
[2] Orders of Provisional Measures are “Awards”
[3] Orders of Provisional Measures are Not “Awards”
[4] Future Directions: Orders of Provisional Measures are “Awards”
[B] Specialized National Arbitration Legislation Permitting Recognition and Enforcement of Provisional Relief
[C] Recognition and Enforcement of Provisional Measures of A Nature Not Available in Recognition Forum
[D] Scope of Judicial Review in Action to Recognize and Enforce Tribunal-Ordered Provisional Relief
[E] Availability and Scope of Judicial Review in Action to Recognize and Enforce Provisional Relief Ordered by Emergency Arbitrator
[F] Annulment of Tribunal-Ordered Provisional Measures
[G] Forum Selection Issues in Judicial Recognition and Enforcement of Provisional Relief
§ 17.04 Provisional Relief Ordered By National Courts in Aid of International Arbitration
[A] Introduction
[B] Authority of National Courts to Grant Provisional Relief in Aid of International Arbitrations Under International Arbitration Conventions
[1] Court-Ordered Provisional Relief Under European Convention
[2] Court-Ordered Provisional Relief Under New York Convention
[a] McCreary and Cooper: Judicial Decisions Holding That Article II(3) Forbids Court-Ordered Provisional Relief
[b] Uranex and Progeny: Judicial Decisions Holding That Article II(3) Does Not Forbid Court-Ordered Provisional Relief in Aid of Arbitration
[c] Amendment of §7502 of New York Civil Practice Law and Rules
[d] Non-U.S. Judicial Decisions Holding That Article II(3) Does Not Forbid Court-Ordered Provisional Relief in Aid of Arbitration
[3] Future Directions: Proper Application of Article II(3) to Court-Ordered Provisional Relief
[4] Court-Ordered Provisional Measures Under Inter-American Convention
[5] Court-Ordered Provisional Relief Under Icsid Convention
[C] Authority of National Courts to Grant Provisional Relief in Aid of International Arbitrations Under National Arbitration Legislation
[1] National Arbitration Legislation Generally Authorizing Court-Ordered Provisional Relief
[a] UNCITRAL Model Law
[b] Other National Arbitration Legislation
[c] U.S. Federal Arbitration Act
[2] Rationale For Concurrent Judicial Jurisdiction to Grant Provisional Relief in Aid of Arbitration
[3] Parties’ Presumptive Right to Seek Provisional Relief From Both Arbitral Tribunal and National Courts
[4] Limitations On Availability of Court-Ordered Provisional Relief and Preferences For Tribunal-Ordered Provisional Relief
[a] Statutory Limitations on Court-Ordered Provisional Measures
[b] Judicial Limitations on Court-Ordered Provisional Measures
[c] Institutional Arbitration Rules with Preference for Tribunal-Ordered Provisional Measures
[d] Future Directions: Preference for Tribunal-Ordered Provisional Measures
[5] Application For Court-Ordered Provisional Relief Does Not Ordinarily Waive Rights to Arbitrate
[6] Parties’ Autonomy to Exclude Court-Ordered Provisional Relief
[7] Choice of Law Applicable to Court-Ordered Provisional Relief
[8] Choice of Forum For Court-Ordered Provisional Relief
[a] New York Convention Is Silent as to National Court Possessing Jurisdiction to Order Provisional Relief
[b] Forum Selection Agreements
[c] National Law Permitting Courts in Arbitral Seat to Order Provisional Relief
[d] National Law Permitting Courts to Order Provisional Relief in Aid of Foreign Arbitration
[e] Judicial Restraint in Ordering Provisional Relief in Aid of Foreign Arbitration
[9] Recognition of Court-Ordered Provisional Relief in Aid of International Arbitration
[D] Authority of National Courts to Grant Provisional Relief in Aid of International Arbitrations Under Institutional Arbitration Rules
[E] Judicial Assistance in Taking Evidence in International Arbitration
Chapter 18 Consolidation, Joinder and Intervention in International Arbitration
§ 18.01 Introduction
§ 18.02 Multi-Party Issues in International Arbitral Proceedings
[A] Consolidation, Joinder and Intervention Under International Arbitration Conventions
[B] Consolidation, Joinder and Intervention Under National Arbitration Legislation
[1] Choice of Law Governing Consolidation, Joinder and Intervention
[2] Consolidation and Joinder/Intervention Pursuant to Parties’ Arbitration Agreement
[a] Consolidation and Joinder/Intervention Under UNCITRAL Model Law
[b] Consolidation and Joinder/Intervention Under U.S. Federal Arbitration Act
[c] Consolidation and Joinder/Intervention Under French Law
[d] Consolidation and Joinder/Intervention Under English Law
[e] Consolidation and Joinder/Intervention Under Swiss Law
[3] Nature of Agreement Required For Consolidation and Joinder/Intervention
[4] Form Requirements For Agreement On Consolidation, Joinder, Or Intervention
[5] Consolidation of Arbitrations in Different Arbitral Seats
[6] Consolidation of Arbitrations With Different Arbitral Tribunals and Related Issues
[7] Consolidation and Joinder/Intervention Under National Law in Absence of Parties’ Agreement
[a] National Arbitration Legislation Providing for Consolidation as Default Mechanism
[b] National Arbitration Legislation Providing for Consolidation as Mandatory Rule
[8] Competence to Order Consolidation and Joinder/Intervention
[9] Exercise of Power to Order Consolidation Or Joinder/Intervention
[10] Judicial Review of Decisions Regarding Consolidation and Joinder/Intervention
[11] National Arbitration Legislation Providing For Joinder/Intervention By Means of Consolidation
[C] Consolidation, Joinder and Intervention Under Institutional Rules
[1] Joinder/Intervention Under Uncitral Rules
[2] Consolidation and Joinder Under Icc Rules
[a] Consolidation Under ICC Rules
[b] Joinder Under ICC Rules
[3] Consolidation and Joinder/Intervention Under Swiss Rules
[a] Consolidation Under Swiss Rules
[b] Joinder Under Swiss Rules
[4] Consolidation and Joinder/Intervention Under Lcia Rules
[a] Consolidation Under LCIA Rules
[b] Joinder Under LCIA Rules
[5] Consolidation, Joinder and Intervention Under Hkiac Rules
[a] Consolidation Under HKIAC Rules
[b] Joinder/Intervention Under HKIAC Rules
[c] Multi-Contract Arbitration Under HKIAC Rules
[6] Consolidation, Joinder and Intervention Under Siac Rules
[a] Joinder Under PT Media
[b] Joinder/Intervention Under SIAC Rules
[c] Consolidation Under SIAC Rules
[7] Consolidation Under Icdr Rules
[8] Consolidation, Joinder and Intervention Under Other Institutional Rules
[9] Cross-Institutional Consolidation
[D] Consolidation and Joinder/Intervention: Selection of Arbitral Tribunal(s) in Multi-Party Cases
[1] Dutco: Public Policy Issues in Arbitrator Selection in Multi-Party Cases
[2] Selection of Arbitrators in Multi-Party Cases Under Institutional Rules
§ 18.03 Multi-Contract Issues in International Arbitral Proceedings
Chapter 19 Choice of Substantive Law in International Arbitration
§ 19.01 Introduction
§ 19.02 Arbitrators’ Authority to Select Applicable Substantive Law
[A] International Arbitration Conventions
[B] National Arbitration Statutes
[C] Institutional Arbitration Rules
[1] “Applicable” Choice-Of-Law Rules
[2] “Direct” Choice of Applicable Substantive Law
[3] “Closest Connection” Standards
[4] Law Chosen By Parties
§ 19.03 Choice of Substantive Law Governing Merits of Parties’ Dispute in Absence of Agreement on Applicable Law
[A] International Conventions
[1] International Arbitration Conventions
[2] Choice-Of-Law Conventions
[3] Rome I and Rome II Regulations and Rome Convention
[4] U.N. Convention On Contracts For the International Sale of Goods
[B] National Arbitration Legislation
[1] Generally-Applicable Conflict of Laws Rules of Arbitral Seat
[2] Substantive Law of Arbitral Seat
[3] Specialized Conflict of Laws Rules For International Arbitration
[4] “Applicable” Or “Appropriate” Conflict of Laws Rules
[5] “Direct” Application of Substantive Law
[6] Mandatory Laws
[C] Institutional Arbitration Rules
[D] Choice-of-Law Rules Applied by International Arbitrators
[1] Traditional Rule That Arbitrators Must Apply Choice-Of-Law Rules Or Substantive Law of Arbitral Seat
[2] Erosion of Traditional Rules Applying Arbitral Seat’s Choice-Of-Law Rules Or Substantive Law
[3] Contemporary Choice-Of-Law Rules Applied By International Arbitrators
[a] Choice-of-Law Rules That Arbitral Tribunal Considers “Applicable” or “Appropriate”
[b] “Direct” Application of Substantive Law Without Conflicts Analysis
[c] Choice-of-Law Rules of Arbitral Seat
[d] “Cumulative” Application of Choice-of-Law Rules of All States with Meaningful Connection to Parties’ Dispute
[e] “International” Choice-of-Law Rules
[f] Choice-of-Law Rules of State Most Closely Connected to Parties’ Dispute
[g] Application of Substantive Law of State with Closest Connection to Dispute
[h] Other Choice of Law Alternatives
[E] Future Directions: Choice-of-Law Rules for Selecting Substantive Law in International Arbitration
[F] Application of Non-National Legal System in Absence of Choice-of-Law Agreement
[1] Authority of Arbitral Tribunal to Apply Non-National Legal System in Absence of Choice-Of-Law Agreement
[2] Application of Non-National Legal System
[G] Distinction Between Matters of “Substance” and “Procedure” or “Remedies”
[1] Burden of Proof
[2] Statutes of Limitations
[3] Damages and Remedies
[H] Dépeçage
§ 19.04 Choice of Law Governing Merits of Parties’ Dispute Pursuant to Choice-Of-Law Agreements
[A] Presumptive Validity of Choice-of-Law Agreements Selecting Substantive Law in International Arbitration
[1] Presumptive Validity of Choice-Of-Law Agreements Selecting Substantive Law Under International Arbitration Conventions
[a] International Conventions Providing for Validity of Choice-of-Law Agreements Selecting Applicable Substantive Law
[b] International Instruments Denying Validity of Choice-of-Law Agreements Selecting Applicable Substantive Laws
[2] Presumptive Validity of Choice-Of-Law Agreements Selecting Substantive Law in International Arbitration Under National Laws
[a] National Arbitration Legislation Recognizing Presumptive Validity of Choice-of-Law Agreements
[b] Generally-Applicable Conflict of Laws Rules Recognizing Presumptive Validity of Choice-of-Law Agreements
[c] National Laws Not Recognizing Validity of Choice-of-Law Agreements
[3] Presumptive Validity of Choice-Of-Law Agreements Selecting Substantive Law Under Institutional Arbitration Rules
[4] Presumptive Validity of Choice-Of-Law Agreements Selecting Substantive Law Under International Arbitral Awards
[5] Separability of Choice-Of-Law Agreements
[6] Choice-Of-Law Rules Applicable to Law Governing Validity of Choice-Of-Law Agreements Selecting Applicable Substantive Law
[a] Choice-of-Law Rules of Arbitral Seat
[b] Choice-of-Law Rules of State Whose Law Is Selected by Choice-of-Law Agreements
[c] International Choice-of-Law Rule
[d] Validation Principle
[e] Other Choice-of-Law Rules
[7] International Limits On National Laws Which Deny Validity of Choice-Of-Law Agreements
[8] Effect of Challenge to Validity Or Existence of Choice-Of Law Clause
[B] Public Policy Limitations on Choice-of-Law Agreements in International Arbitration
[1] Mandatory Laws and Public Policy
[2] “Foreign” Mandatory Laws and Public Policies
[3] Power of Arbitrators to Consider Issues of Public Policy Or Mandatory Laws
[4] Power of Arbitrators to Consider Issues of Public Policy Or Mandatory Laws Notwithstanding Parties’ Contrary Agreement
[5] Choice of Law Governing Public Policy and Mandatory Law Issues
[a] Application of Mandatory Law Rules and Public Policies of State Chosen by Choice-of-Law Clause
[b] Application of Mandatory Law Rules and Public Policies of Arbitral Seat
[c] Application of Mandatory Law Rules and Public Policies of States Other Than Arbitral Seat
[6] International Public Policy
[7] Ex Officio Application of Mandatory Law
[C] Limitations on Scope of Choice-of-Law Agreements: Capacity, Status and Related Issues
[D] Other Grounds for Challenging Validity of Choice-of-Law Agreements
[1] Defects in Formation of Choice-Of-Law Agreements
[2] Insufficiently-Clear Choice-Of-Law Agreements
[3] Ambiguous Designations of National Law
[4] “Reasonable Relationship” Requirement For Validity of Parties’ Choice of Substantive Law
[5] Choice-Of-Law Agreements Selecting “Incomplete” Laws
[6] Choice-Of-Law Agreements That Produce Results Contrary to Parties’ Expectations
[E] Implied Choice-of-Law Agreements
[1] Implied Choice-Of-Law Agreements Recognized
[2] Selection of Arbitral Seat As Implied Choice of Substantive Law
[F] Form Requirements for Choice-of-Law Agreements
[G] Presumption That “Foreign” Substantive Law Is Same as That of Arbitral Seat
§ 19.05 Interpretation of Choice-Of-Law Agreements
[A] “Stand-Alone” Character of Choice-of-Law Clause
[B] Legal Rules Selected by Choice-of-Law Agreements
[1] Renvoi Versus “Whole Law”: Does Choice-Of-Law Agreement Select Substantive Rules Or Conflict of Laws Rules?
[2] Procedural Law of Arbitration
[3] “Procedural” and “Remedial” Issues
[4] Non-Contractual Issues
[5] Exclusion of “Foreign” Mandatory Laws
[C] Interaction of Choice-of-Law Agreement with Dispute Resolution Provisions
§ 19.06 Choices of Substantive Law in Choice-Of-Law Agreements
[A] Considerations Affecting Choice of Substantive Law
[1] National Law
[2] Developed, Stable and Commercially-Sophisticated Law
[3] Enforceability
[4] “Favorable” Laws
[5] State Contracts
[B] Choice of National Substantive Law
[1] Choice of National Law
[2] Choice of Multiple Or Overlapping National Laws
[3] “Split” Choice-Of-Law Clauses
[4] Choice of “Floating” National Law
[5] Stabilization Clauses
[C] Choices of Non-National Substantive Law
[1] Validity of Non-National Choice-Of-Law Agreements
[2] Interpretation of Non-National Choice-Of-Law Agreements
[3] General Principles of Law
[4] Lex Mercatoria
[5] Unidroit Principles of International Commercial Contracts
[6] “Internationalized” Contracts
[7] “Concurrent” Application of International Law and National Law
[8] Clauses Excluding Any Applicable Law
[9] “Negative” Choice-Of-Law Agreement
[10] New International Economic Order
[D] Time of Parties’ Choice of Law
§ 19.07 Trade Usages
§ 19.08 Amiable Composition and Ex Aequo Et Bono
§ 19.09 Minimal Judicial Review of Arbitrators’ Choice-Of-Law Decisions
§ 19.10 Procedural Issues in Arbitrators’ Choice of Applicable Law
§ 19.11 Application of Statutes of Limitations in International Arbitration
Chapter 20 Confidentiality in International Arbitration
§ 20.01 Introduction
§ 20.02 Confidentiality of International Arbitrations Under International Arbitration Conventions
§ 20.03 Confidentiality of International Arbitrations Under National Law
[A] National Arbitration Legislation Generally Silent on Issues of Confidentiality
[B] Parties’ Autonomy with Regard to Confidentiality Obligations
[C] Limitations on Parties’ Autonomy with Regard to Confidentiality Obligations
[D] Implied Obligations of Confidentiality Under National Law
[1] Recognition of Implied Confidentiality Obligations
[a] Recognition of Implied Confidentiality Obligations Under English Law
[b] Implied Confidentiality Obligations Under Singaporean Law
[c] Implied Confidentiality Obligations Under Swiss Law
[2] Non-Recognition of Implied Confidentiality Obligations
[a] Confidentiality Obligations Under Australian Law
[b] Non-Recognition of Implied Confidentiality Obligations Under Swedish Law
[3] Other Approaches to Implied Confidentiality Obligations
[a] Confidentiality Obligations Under French Law
[b] Confidentiality Obligations Under U.S. Law
[E] No Prohibition Against Disclosure of Award in Enforcement Proceedings
[F] Parties Subject to Confidentiality Obligations in International Arbitration
§ 20.04 Confidentiality of International Arbitrations Under Institutional Arbitration Rules
[A] Institutional Arbitration Rules Imposing General Confidentiality Obligations
[B] Institutional Arbitration Rules Imposing Limited Confidentiality Obligations
[C] IBA Rules on Taking of Evidence
[D] Institutional Arbitration Rules Providing for Publication of Awards
§ 20.05 Confidentiality Orders By Arbitral Tribunal
§ 20.06 Confidentiality of Arbitrators’ Deliberations
§ 20.07 Privacy and Confidentiality of Arbitral Hearings
§ 20.08 Choice of Law Governing Confidentiality in International Arbitration
§ 20.09 Arbitral Tribunal’s Competence With Regard to Confidentiality of the Arbitral Proceedings
§ 20.10 Future Directions: Confidentiality in International Commercial Arbitration
§ 20.11 Confidentiality in Investor-State Arbitration
[A] Confidentiality Provisions in Investment Arbitration Regimes
[1] North American Free Trade Agreement and Canada–United States–Mexico Agreement
[2] Icsid
[3] Uncitral Transparency Rules
[4] Mauritius Transparency Convention
[5] Other Investment Arbitration Instruments
[B] Future Directions: Confidentiality in Investment Arbitration
Chapter 21 Legal Representation and Professional Conduct in International Arbitration
§ 21.01 Parties’ Right to Representation in International Arbitration
[A] Rights to Representation Under International Arbitration Conventions
[B] Rights to Representation Under National Arbitration Legislation
[C] Rights to Representation Under Institutional Arbitration Rules
[D] National Law Prohibitions Against Representation by Foreign Counsel
[E] Legal Representation in International Arbitration Under U.S. Law
[F] Future Directions: Legal Representation in International Arbitration
§ 21.02 Parties’ Exercise of Rights to Representation in International Arbitration
[A] Representation by Non-Lawyers
[B] Representation by Lawyers
[C] Formalities of Representation
§ 21.03 Professional Conduct of Legal Representatives in International Arbitration
[A] Substantive Rules of Professional Conduct for Legal Representatives in International Arbitration
[1] General Principles
[a] National Codes of Professional Conduct
[b] IBA Guidelines on Party Representation in International Arbitration
[2] Recurrent Issues of Professional Conduct
[a] Candor and Honesty
[b] Witness Interviews and Preparation
[c] Communications with Adverse Parties
[d] Contingent Fees and Other Fee Arrangements
[e] Conflicts of Interest
[f] Third Party Funding
[g] Lawyer-Client Privilege
[h] Settlement Communications
[i] Communications with Opposing Counsel
[j] Communications with Arbitral Tribunal
[k] Competence
[l] Document Disclosure
[m] “Guerilla Tactics”
[B] Choice of Law Governing Professional Conduct Issues in International Arbitration
[1] Rules of Professional Conduct: Law of Lawyer’s Home Jurisdiction
[2] Rules of Professional Conduct: Law of Arbitral Seat
[3] Rules of Professional Conduct: International Standards
[4] Rules of Professional Conduct: Institutional Arbitration Rules
[5] Future Directions: Rules of Professional Conduct
[C] Choice of Forum in Enforcing Professional Conduct Standards for Legal Representatives in International Arbitration
[1] Arbitral Tribunals
[a] General Principles
[b] Arbitral Tribunals’ Historic Reluctance to Disqualify Counsel Based on Violations of Rules of Professional Conduct
[c] Arbitral Tribunals’ Authority to Disqualify Counsel for Violations of Rules of Professional Conduct
[d] Future Directions: Arbitral Tribunals’ Authority to Disqualify or Sanction Counsel for Violations of Rules of Professional Conduct
[2] Courts and Regulatory Authorities in Arbitral Seat
[3] Courts and Regulatory Authorities of Lawyer’s Home Jurisdiction
[4] Arbitral Institutions
[5] Future Directions: Choice of Forum
[D] Proposed International Code of Conduct for Counsel in International Arbitration
§ 21.04 Immunity of Counsel in International Arbitration
§ 21.05 Standards of Professional Conduct For International Arbitrators
Part III International Arbitral Awards
Chapter 22 Legal Framework for International Arbitral Awards
§ 22.01 Introduction
[A] Parties’ Obligations to Comply with International Arbitral Award
[B] Post-Award Proceedings
[1] “Making” of “Award”
[2] “Correction,” “Interpretation” and “Supplementation” of Awards
[3] “Recognition” Or “Confirmation” of Award in Arbitral Seat
[4] “Annulment” of Award in Arbitral Seat
[5] “Recognition” of Award Outside Arbitral Seat
[6] “Enforcement” of Award
[7] Preclusive Effects of Award
[C] Forum Selection and Preclusion Issues
[1] Annulment and Defenses to Recognition and Enforcement
[2] Recognition of Award Or Recognition of Judgment: “Parallel Entitlement” Rule
[D] Choice-of-Law Issues
§ 22.02 Applicability of International Arbitration Conventions and National Arbitration Legislation to International Arbitral Awards
[A] Pro-Enforcement Legal Framework for International Arbitral Awards
[B] Definition of “Arbitral Award”
[1] No Legislative Definition of “Arbitral Award”
[2] New York Convention: Law Applicable to Definition of “Arbitral Award”
[3] Definition of “Arbitral Award”
[a] Decision Resulting from Agreement to Arbitrate
[b] Minimum Formal Characteristics
[c] Finally Resolve A Substantive Issue
[d] “Awards” Distinguished from “Procedural Orders”
[e] Arbitral Decisions Concerning Stays, Disclosure and Provisional Measures
[f] Jurisdictional Awards
[g] Arbitral Decisions Concerning Preliminary Substantive Issues
[h] “Sham” Awards
[C] “Commercial” Relationship
[1] International Arbitration Conventions: “Commercial Relationship” Reservations
[2] National Arbitration Legislation: “Commercial” Scope
[3] Meaning of “Commercial” Relationship Requirements
[D] “Defined Legal Relationship”
[E] “Foreign,” “Non-Domestic” and “International” Awards
[1] International Arbitration Conventions
[a] New York Convention
[i] When Is An Award “Foreign” Under New York Convention?
(1) A “Foreign” Award Is An Award Made Outside Country Where Recognition Is Sought
(2) Authorities Holding That An Award Is “Made” in Arbitral Seat
(3) Idiosyncratic Authorities Holding That An Award Is Not Made in Arbitral Seat
(4) Uniform International Standard Under New York Convention Defining Where An Award Is Made
(5) May An Award Made Abroad Ever Be Considered “Domestic” and Not “Foreign”?
[ii] When Is An Award “Non-Domestic” Under New York Convention?
(1) Drafting History of Article I(1)’s Reference to “Non-Domestic” Awards
(2) Possible Meaning of Article I(1)’s Reference to “Non-Domestic” Awards
(3) “Non-Domestic” Awards Under U.S. Federal Arbitration Act
[iii] Consequences of An Award’s Status as “Foreign” or “Non-Domestic” Under New York Convention
(1) Consequences of Award’s Status as “Foreign” Award
(2) Consequences of Award’s Status as “Non-Domestic” Award
[b] European Convention
[c] Inter-American Convention
[2] National Arbitration Legislation
[a] Treatment of “Foreign” and “Non-Domestic” Awards Under National Arbitration Legislation
[i] UNCITRAL Model Law
[ii] Swiss Law on Private International Law
[iii] French Code of Civil Procedure
[iv] U.S. Federal Arbitration Act
[b] Idiosyncratic Treatment of “Foreign” and “Non-Domestic” Arbitral Awards Under Some National Legal Systems
[F] Reciprocity Requirement
[1] New York Convention: Reciprocity
[a] New York Convention: Article I(3)’s Reciprocity Provision
[b] New York Convention: Meaning of Article I(3)’s Reciprocity Reservation
[c] New York Convention: Article XIV’s Reciprocity Provision
[d] Application of New York Convention’s Reciprocity Provisions
[2] No Reciprocity Provisions in Other International Conventions
[3] National Arbitration Legislation
§ 22.03 Limits on Forums For Seeking Recognition Or Enforcement of Arbitral Awards
[A] No Limits in International Arbitration Conventions on Forums for Seeking Recognition or Enforcement of Arbitral Awards
[B] National Law Limits on Forums for Seeking Recognition or Enforcement of International Arbitral Awards
[1] Jurisdictional Objections to Recognition Or Enforcement of Foreign Arbitral Award
[2] Forum Non Conveniens Objections to Recognition Or Enforcement of Foreign Arbitral Award
[3] Lis Pendens Objections to Recognition Or Enforcement of Foreign Arbitral Award
[C] Agreements Regarding Forums for Recognition and Enforcement of International Arbitral Award
§ 22.04 Limits on Forums For Seeking Annulment of International Arbitral Awards
[A] Limits in International Arbitration Conventions on Forums for Seeking Annulment of International Arbitral Awards
[1] New York Convention: Article V(1)(E) and Vi’s Limits On Forums For Annulling International Arbitral Awards
[2] New York Convention: Contents of Limits On Forums For Annulling International Arbitral Awards
[a] Place “Under the Law of Which” Award Is Made
[i] Article V(1)(e) Refers to Procedural Law of Arbitration
[ii] Idiosyncratic Judicial Decisions Holding That Article V(1)(e) Refers to Law Governing Arbitration Agreement or Underlying Contract: National Thermal Power Corp.
[iii] Criticism of National Thermal Power Corp.
[iv] Idiosyncratic Judicial Decisions Holding That Article V(1)(e) Refers to Law Governing Arbitration Agreement or Underlying Contract: National Thermal Power Corp.’s Progeny
[v] BALCO and Its Progeny
[vi] Future Directions: Place “Under the Law of Which” Award Is Made
[vii] Uniform International Rule Prescribing Law Under Which Award Is Made
[b] Only One State Has Competence to Consider Annulment Application
[3] Inter-American Convention
[4] European Convention
[B] National Law Limits on Forums for Seeking to Annul International Arbitral Awards
[1] National Arbitration Statutes Limiting Actions to Annul Awards Made On National Territory
[a] UNCITRAL Model Law
[b] English Arbitration Act
[c] U.S. Federal Arbitration Act
[d] French Code of Civil Procedure
[e] Other National Arbitration Legislation
[2] National Arbitration Legislation Not Limiting Actions to Annul Awards Made On National Territory
[C] Procedural Mechanisms for Enforcing Limitations on Forums for Annulling Arbitral Award
Chapter 23 Form and Contents of International Arbitral Awards
§ 23.01 Categories of International Arbitral Awards
[A] Final Awards
[B] Partial Awards
[C] Jurisdictional “Awards”
[D] Interim Awards
[E] Consent Awards
[1] Reasons For Consent Awards
[2] Arbitral Tribunal’s Power to Make Consent Award
[3] Arbitral Tribunal’s Power to Refuse to Make Consent Award
[4] Legal Status of Consent Awards
[F] Default Awards
[G] Additional Award
[H] Corrections and Interpretations
[I] Termination of Arbitral Proceedings Without Award
[1] National Arbitration Legislation
[2] Institutional Arbitration Rules
§ 23.02 Formal Requirements For International Arbitral Awards
[A] No Form Requirements in International Arbitration Conventions
[B] Form Requirements in National Arbitration Legislation
[1] Parties’ Autonomy to Alter Form Requirements
[2] Writing and Signature, Place and Date Requirements
[a] Writing and Signature
[b] Place
[c] Date
[3] Reasons For Award
[4] Consequences of Noncompliance With Statutory Form Requirements
[C] Form Requirements Under Arbitration Agreement and Institutional Arbitration Rules
[D] Language of Award
§ 23.03 Requirement That International Arbitral Awards Be Reasoned
[A] Requirement for Reasoned Award in International Arbitration Conventions
[B] Requirement for Reasoned Award in National Arbitration Legislation
[C] Content of Requirement for Reasoned Award Under National Arbitration Legislation
[D] No General Requirement for Reasoned Award Under U.S. Domestic Federal Arbitration Act
[E] Recognition of Unreasoned Arbitral Awards
§ 23.04 Majority Awards and Awards By Presiding Arbitrator
[A] Majority Awards
[B] Awards by Presiding Arbitrator
[C] Alleged Nonexistence of Majority Award
§ 23.05 Separate, Concurring and Dissenting Opinions
[A] Treatment of Separate, Concurring, or Dissenting Opinions Under National Law and Institutional Arbitration Rules
[B] Criticisms of Separate, Concurring and Dissenting Opinions
§ 23.06 Time Limits, Service and Publication of International Arbitral Awards
[A] Time Limits for Making Awards
[B] Delivery, Service and Notification of Awards
[1] International Arbitration Conventions
[2] National Arbitration Legislation
[3] Institutional Arbitration Rules
[4] “Service” of Award Abroad
[C] Registration of Awards
§ 23.07 Relief Granted in Arbitral Awards
[A] Arbitrators’ Powers with Regard to Relief
[B] Awards of Monetary Damages
[C] Awards of Injunctive and Declaratory Relief
[D] Awards of Punitive, Exemplary, or Statutory Damages
[E] Awards Imposing Penalties or Sanctions
[F] Choice of Law Governing Relief
§ 23.08 Awards of Costs of Arbitration and Legal Representation
[A] Awards of Costs of Arbitration Under National Arbitration Legislation
[1] Costs of Arbitration Under Uncitral Model Law
[2] Costs of Arbitration Under English Arbitration Act
[3] Costs of Arbitration Under Other National Arbitration Legislation
[4] Costs of Arbitration Under U.S. Federal Arbitration Act
[B] Awards of Costs of Arbitration Under Institutional Arbitration Rules
[1] Uncitral Rules
[2] Icc Rules
[3] Lcia Rules
[4] Implied Authority
[C] Awards of Costs of Arbitration in International Arbitral Practice
[D] Choice of Law Governing Costs of Legal Representation
[E] “Award” of Costs of Arbitration
[F] Costs of Arbitration in Proceedings Resulting in Negative Jurisdictional Rulings
§ 23.09 Awards of Interest
[A] Awards of Interest Under National Arbitration Legislation
[B] Choice of Law Governing Awards of Interest
[C] Awards of Interest by International Arbitral Tribunals
[D] Enforcement of Awards of Interest in National Courts
[E] Awards of Interest in Connection with International Arbitrations by National Courts
Chapter 24 Correction, Interpretation and Supplementation of International Arbitral Awards
§ 24.01 Introduction
§ 24.02 Functus Officio Doctrine
[A] International Arbitration Conventions
[B] National Arbitration Legislation
[1] Uncitral Model Law
[2] U.S. Federal Arbitration Act
[3] Swiss Law On Private International Law
[4] English Arbitration Act
[5] Future Directions: Functus Officio Doctrine
§ 24.03 Correction of International Arbitral Awards
[A] Correction of Awards Under International Arbitration Conventions
[B] Correction of Awards Under National Arbitration Legislation
[1] Uncitral Model Law
[2] English Arbitration Act
[3] Swiss Law On Private International Law
[4] Other National Arbitration Legislation
[5] U.S. Federal Arbitration Act
[6] Future Directions: Corrections of International Arbitral Awards Under National Law
[C] Correction of Awards Under Institutional Arbitration Rules
[D] Arbitral Tribunal’s Corrections
§ 24.04 Interpretation of International Arbitral Awards
[A] Interpretation of Awards Under International Arbitration Conventions
[B] Interpretation of Awards Under National Arbitration Legislation
[C] Interpretation of Awards Under Institutional Arbitration Rules
§ 24.05 Supplementation of International Arbitral Awards
[A] Supplementation of Arbitral Awards Under National Arbitration Legislation
[B] Supplementation of Arbitral Awards Under Institutional Arbitration Rules
§ 24.06 Remission of International Arbitral Award to Arbitral Tribunal
§ 24.07 Revocation Or Revision of Fraudulently Obtained Arbitral Awards
§ 24.08 Institutional Appeals From International Arbitral Awards
Chapter 25 Annulment of International Arbitral Awards
§ 25.01 Introduction
§ 25.02 International Limits on Grounds For Annulling International Arbitral Awards
[A] Authorities Holding That New York Convention Imposes No Limits on Grounds for Annulling Awards
[B] Implied Limits Imposed by New York Convention on Grounds to Annul Awards
[C] Inter-American Convention
[D] European Convention
[E] ICSID Convention
§ 25.03 Presumptive Obligation to Recognize International Arbitral Awards Under National Arbitration Legislation
[A] Presumptive Validity of Arbitral Awards Under UNCITRAL Model Law
[1] Recognition in Summary Proceedings Under Article 35
[2] Article 34 Provides Exclusive Grounds of Annulment
[3] Article 34’s Grounds For Annulment are Discretionary
[4] Party Seeking Annulment Under Article 34 Generally Bears Burden of Proof
[5] Article 34’s Grounds For Annulment Narrowly-Construed
[6] Relevance of New York Convention Authority to Application of Article 34
[7] Partial Annulment of Award Under Article 34
[B] Presumptive Validity of Arbitral Awards Under U.S. Federal Arbitration Act
[1] Limited Grounds For Vacatur Under Faa
[2] Exclusive Grounds For Vacatur Under §10 of Faa
[3] Preemptive Effect of §10 of Faa
[4] Summary Character of Procedures Under §10 of Faa
[C] Presumptive Validity of Arbitral Awards Under Other National Arbitration Legislation
§ 25.04 Grounds For Annulling Arbitral Awards Under National Arbitration Legislation
[A] Nonexistent or Invalid Arbitration Agreement
[1] General Principles
[2] Burden of Proof
[3] Standard of Proof
[4] Separability Presumption
[5] Formal Validity
[6] Failure to Comply With Pre-Arbitration Procedures
[7] Choice of Law Governing Arbitration Agreement
[a] Law Governing Substantive Validity of Arbitration Agreement
[b] Law Governing Capacity
[c] Substantive Rules of International Law Under New York Convention
[d] Law Governing Formal Validity
[8] Preclusive Effect of Prior Jurisdictional Ruling By Arbitral Tribunal
[a] Positive Jurisdictional Ruling
[b] Negative Jurisdictional Ruling
[i] Availability of Judicial Review of Negative Jurisdictional Ruling
[ii] Standard of Judicial Review of Negative Jurisdictional Ruling
[c] Agreements to Resolve Jurisdictional Disputes Finally by Arbitration
[i] First Options: Validity of Agreement to Resolve Jurisdictional Disputes by Arbitration
[ii] First Options: “Clear and Unmistakable” Evidence of Agreement to Arbitrate Jurisdictional Disputes
[iii] First Options: Challenges to Existence of Arbitration Agreement
[iv] First Options: Challenges to Existence of Underlying Contract
[v] UNCITRAL Model Law: Validity of Agreement to Resolve Jurisdictional Disputes by Arbitration
[d] Procedural Rulings
[e] Prior Judicial Rulings on Jurisdiction
[9] Lack of Capacity
[10] Waiver of Jurisdictional Objections
[B] Denial of Opportunity to Present Case
[1] General Principles
[2] Choice of Law Governing Procedural Fairness
[3] Burden and Standard of Proof
[a] Burden of Proof
[b] Standard of Proof
[4] Judicial Deference to Parties’ Agreed Arbitral Procedures
[5] Judicial Deference to Arbitrators’ Procedural Decisions
[6] Recurrent Issues Regarding Procedural Fairness
[7] Material Violation of Procedural Rights Ordinarily Required For Annulment
[8] Material Prejudice Ordinarily Required For Annulment
[9] Waiver of Procedural Objections
[10] Annulment Not Mandatory For Procedural Irregularities
[C] Failure to Comply with Arbitral Procedures Agreed by Parties
[1] General Principles
[2] Burden and Standard of Proof
[3] Composition of Arbitral Tribunal
[4] Failure to Comply With Agreed Arbitral Procedures
[5] Failure to Comply With Contractual Time Limits
[6] Failure to Conduct Arbitration in Arbitral Seat
[7] Failure to Provide Reasoned Award
[8] Materiality and Effect of Procedural Violation
[9] Waiver of Procedural Objections
[D] Failure to Comply with Procedures Prescribed by Law of Arbitral Seat
[1] General Principles
[2] Burden and Standard of Proof
[3] Statutory Time Limits
[4] Composition of Arbitral Tribunal
[5] Lack of Reasoned Award
[6] Materiality and Effect of Procedural Violation
[7] Waiver of Procedural Objections
[E] Arbitrator’s Lack of Independence or Impartiality
[1] General Principles
[2] Burden and Standard of Proof
[3] Standards of Arbitrators’ Impartiality and Independence
[4] Waiver of Objection to Arbitrator’s Independence Or Impartiality
[5] Preclusive Effect of Unsuccessful Challenge
[6] Discovery in Aid of Annulment Based On Arbitrator Bias
[F] Excess of Authority: Extra Petita and Infra Petita
[1] General Principles
[2] Burden of Proof
[3] Standard of Proof
[4] Recurrent Grounds For Excess of Authority Claims
[a] Awards Ruling on Matters Outside Scope of Parties’ Submissions
[b] Awards Failing to Address Matters Within Parties’ Submissions
[c] Awards Addressing Matters Outside Scope of Arbitration Agreement
[d] Standard of Review of Interpretation of Scope of Arbitration Agreement
[e] Incorrect Substantive Decision on Merits of Dispute
[f] Awards Ex Aequo et Bono
[g] Application of Incorrect System of Law
[h] Arbitrators’ Remedial Authority
[i] Arbitrators’ Procedural Rulings
[j] Class Arbitrations
[5] Material Excess of Authority and Prejudice
[6] Partial Annulment of Award
[7] Waiver of Excess of Authority
[G] Nonarbitrability of Dispute
[1] Choice of Law Governing Nonarbitrability
[2] Burden and Standard of Proof
[3] Issues of Waiver and Preclusion
[H] Public Policy
[1] General Principles
[2] Choice of Law Governing Public Policy in Annulment Proceedings
[a] International Public Policy
[b] Foreign Public Policy
[c] Relevance of Public Policy for Recognition Purposes
[3] Focus of Public Policy Exception: Relief Awarded Or Underlying Dispute?
[4] Burden and Standard of Proof
[5] Exceptional Nature of Public Policy Exception in Annulment Actions
[6] Deference to Arbitrators’ Application of Public Policy and Mandatory Laws
[7] Procedural Public Policies
[I] Waiver of Public Policy Objection
[J] Fraud
[1] General Principles
[2] Exceptional Character of Fraud As Basis For Annulment
[3] Burden and Standard of Proof
[4] Intrinsic Versus Extrinsic Fraud
§ 25.05 National Arbitration Legislation With Annulment Grounds Which are More Expansive Than Uncitral Model Law
[A] Judicial Review of Arbitral Tribunal’s Decision on Merits
[1] Judicial Review of Merits of Arbitral Award
[a] Manifest Disregard of Law Under U.S. Federal Arbitration Act
[b] Judicial Review of Merits of Arbitral Award Under English Arbitration Act
[c] Judicial Review of Merits of Arbitral Award in Other Jurisdictions
[2] No Judicial Review of Merits of Arbitral Award
[3] Future Directions: Judicial Review of Merits of Arbitral Award
[B] Internally-Contradictory and Uncertain Awards
[C] Formal Defects in Award
[D] Expansive and Idiosyncratic Grounds for Annulment
§ 25.06 National Arbitration Legislation With Annulment Grounds Which are Less Expansive Than Uncitral Model Law
§ 25.07 Agreements Limiting Or Expanding Grounds For Annulling International Arbitral Awards
[A] Agreements Excluding or Limiting Applications to Annul International Arbitral Awards
[1] Validity of Agreements Excluding Or Limiting Right to Annul Arbitral Awards
[2] Interpretation of Agreements Excluding Or Limiting Right to Annul Arbitral Awards
[B] Agreements for Heightened Judicial Review of International Arbitral Awards
[C] Effect of Choice-of-Law Agreements on Standard of Judicial Review
§ 25.08 Time Limits Under National Law For Applications to Annul and to Confirm International Arbitral Awards
[A] Time Limits for Annulment Applications
[B] Time Limits for Recognition and Confirmation Applications
[C] Consequences of Failure to Seek Timely Annulment of Award
§ 25.09 Requirements Under National Law That International Arbitral Awards Be “Final” Or “Binding” Before Annulment May Be Sought
§ 25.10 “Entry of Judgment” Clause
§ 25.11 Consequences of Annulling International Arbitral Awards
[A] Differing Consequences of Annulment and Non-Recognition of Arbitral Award
[B] Non-Recognition of Award Annulled in Arbitral Seat
[C] Other Consequences of Annulment
§ 25.12 Standing to Seek Annulment
Chapter 26 Recognition and Enforcement of International Arbitral Awards
§ 26.01 Proof of International Arbitral Awards
[A] Proof of Arbitral Award Under New York Convention
[1] Article IV: General Principles
[2] Article IV: Exclusivity of Proof Requirements and Burden of Proof
[3] Article IV(1): “Duly Authenticated Original” Or “Duly Certified Copy”
[4] Article IV(2): Certified Translation
[5] Article IV: Pro-Enforcement Objectives
[6] Article IV: Maximum, Not Minimum, Requirement of Proof
[7] Article IV: Misapplications By National Courts
[8] Article IV: No Requirement For Proof of Substantively Or Formally Valid Arbitration Agreement
[9] Article IV: Burden of Proof
[10] Article IV: Res Judicata Effect of Decision Dismissing Recognition Application
[B] Proof of Arbitral Award Under National Arbitration Legislation
§ 26.02 Procedures For Obtaining Recognition and Enforcement of International Arbitral Awards
§ 26.03 Presumptive Obligation to Recognize and Enforce International Arbitral Awards
[A] Presumptive Obligation to Recognize International Arbitral Awards Under Geneva Convention
[B] Presumptive Obligation to Recognize International Arbitral Awards Under New York Convention
[1] “Pro-Enforcement” Objectives of New York Convention
[2] Mandatory Obligation to Recognize Arbitral Awards Under New York Convention
[3] Burden and Standard of Proof For Recognition of International Arbitral Awards Under New York Convention
[a] De Novo Application of Article V
[b] Burden of Raising Grounds for Non-Recognition Under Article V
[c] Burden of Proof for Non-Recognition Under Article V
[d] Standard of Proof for Recognition Under Article IV
[e] Summary Character of Recognition Proceedings
[4] No Double Exequatur Requirement Under New York Convention
[5] Exclusivity of New York Convention’s Exceptions to Obligation to Recognize Foreign Arbitral Awards
[6] No Obligation Under New York Convention to Deny Recognition of Awards
[7] Obligation to Recognize Award Applicable to Non-Monetary Awards
[8] Partial Recognition of Awards Under New York Convention
[C] Obligation to Recognize International Arbitral Awards Under Other International Arbitration Conventions
[1] Inter-American Convention
[2] European Convention
[D] Presumptive Obligation to Recognize International Arbitral Awards Under National Arbitration Legislation
[1] Uncitral Model Law
[2] Other National Arbitration Legislation
[E] Idiosyncratic National Court Decisions
[F] Effects of Awards That are Not Subject to Recognition
§ 26.04 Agreements Waiving Rights to Oppose Recognition of Foreign and Non-Domestic Arbitral Awards
[A] Enforceability of Agreements Waiving Rights to Oppose Recognition of Awards
[B] Interpretation of Agreements Waiving Rights to Oppose Recognition of Awards
§ 26.05 Grounds For Refusing to Recognize International Arbitral Awards
[A] Overview of Grounds for Refusing to Recognize Foreign and Non-Domestic Arbitral Awards Under International Arbitration Conventions
[B] Overview of Grounds for Refusing to Recognize Foreign Arbitral Awards Under National Arbitration Legislation
[C] Grounds for Non-Recognition of Foreign and Non-Domestic Arbitral Awards Under New York Convention
[1] No Valid Arbitration Agreement: Article V(1)(A)
[a] General Principles Under Article V(1)(a)
[b] Burden of Proof Under Article V(1)(a)
[c] Standard of Proof Under Article V(1)(a)
[d] Separability Presumption Under Article V(1)(a)
[i] Claims of Invalidity of Underlying Contract
[ii] Claims of Nonexistence of Underlying Contract
[e] Formal Validity and Article II’s Form Requirement
[i] Applicability of Article II’s Form Requirement Under Article V
[ii] Content of Form Requirement Under Article V(1)(a)
[f] Choice of Law Governing Arbitration Agreement Under Article V(1)(a)
[i] Law Governing Substantive Validity of Arbitration Agreement Under Article V(1)(a)
(1) Law Chosen by Parties Under Article V(1)(a)’s First Prong
(2) Law of Arbitral Seat Under Article V(1)(a)’s Second Prong
(3) Law Applied by Arbitral Tribunal Under Article V(1)(a)
(4) Generally-Applicable Contract Law Principles Under Article V(1)(a)
(5) Substantive Rules of International Law Under Article V(1)(a)
[ii] Law Governing Lack of Capacity Under Article V(1)(a)
[iii] Law Governing Formal Validity of Arbitration Agreement Under Article V(1)(a)
[g] Preclusive Effect of Prior Jurisdictional Award
[i] De Novo Consideration of Jurisdictional Issues by Recognition Court
[ii] Consideration of Pre-Arbitration Procedural Requirements by Recognition Court
[iii] Relevance of Arbitral Tribunal’s Factual and Legal Determinations
[iv] Agreements to Resolve Jurisdictional Disputes Finally by Arbitration
[h] Preclusive Effect of Prior Annulment Decision
[i] Waiver of Jurisdictional Objections Under Article V(1)(a)
[j] Consequences of Award-Debtor’s Failure to Seek Annulment
[2] Lack of Capacity: Article V(1)(A)
[a] Choice of Law Governing Capacity Under Article V(1)(a)
[b] Burden and Standard of Proof
[c] “Under Some Incapacity”
[d] Capacity of States and State Entities
[e] Preclusion and Waiver
[3] Denial of Opportunity to Present Party’s Case: Article V(1)(B)
[a] General Principles Under Article V(1)(b)
[b] Burden and Standard of Proof Under Article V(1)(b)
[i] Burden of Proof
[ii] Standard of Proof
[c] Judicial Deference to Parties’ Agreed Arbitral Procedures
[d] Judicial Deference to Arbitrators’ Procedural Decisions
[e] Source of Standards of Procedural Fairness Under Article V(1)(b)
[i] Procedural Standards of Recognition Forum
[ii] Uniform International Procedural Standards
[f] Serious Procedural Unfairness Required Under Article V(1)(b)
[g] Recurrent Procedural Issues Under Article V(1)(b)
[h] Material Prejudice Ordinarily Required for Non-Recognition Under Article V(1)(b)
[i] Waiver of Procedural Objections Under Article V(1)(b)
[j] Effect of Party’s Failure to Seek Annulment and Unsuccessful Annulment Proceedings
[4] Excess of Authority: Article V(1)(C)
[a] Article V(1)(c) Distinguished from Article V(1)(a)
[b] Burden and Standard of Proof Under Article V(1)(c)
[c] Awards in Excess of Jurisdiction (or Extra Petita) Under Article V(1)(c)
[i] Awards Addressing Claims Not Presented by Parties or Granting Relief Not Requested by Parties
[ii] Awards Addressing Claims Outside Scope of Arbitration Agreement
[d] Law Applicable Under Article V(1)(c)
[e] Challenges to Arbitrators’ Substantive Decisions Under Article V(1)(c)
[f] Challenges to Arbitrators’ Choice-of-Law Decisions Under Article V(1)(c)
[g] Challenges to Arbitrators’ Procedural Rulings Under Article V(1)(c)
[h] Time Limits for Award Under Article V(1)(c)
[i] Awards Failing to Address Issues Presented to Arbitrators (Infra Petita) Under Article V(1)(c)
[j] Material Excess of Authority Required for Non-Recognition Under Article V(1)(c)
[k] Partial Recognition of Award Under Article V(1)(c)
[l] Waiver of Procedural Objections Under Article V(1)(c)
[5] Violations of Parties’ Agreed Arbitral Procedures Or Law of Arbitral Seat: Article V(1)(D)
[a] Relationship Between Article V(1)(d) and Article V(1)(b)
[b] Article V(1)(d): Failure to Comply with Procedures Specified in Arbitration Agreement
[i] Article V(1)(d)’s First Prong: General Principles
[ii] Burden and Standard of Proof Under Article V(1)(d)’s First Prong
[iii] Arbitral Tribunal’s or Institution’s Procedural Discretion
[iv] Serious Violation of Parties’ Agreed Procedures Required for Non-Recognition Under Article V(1)(d)
[v] Material Prejudice Ordinarily Required for Non-Recognition Under Article V(1)(d)
[vi] Recurrent Examples of Non-Compliance with Parties’ Agreed Procedures
[vii] Failure to Comply with Procedures Specified in Arbitration Agreement: Composition of Arbitral Tribunal
[viii] Conflicts Between Parties’ Agreed Arbitral Procedures and Mandatory Law of Arbitral Seat
[c] Article V(1)(d): Failure to Comply with Procedural Law of Arbitration
[i] Article V(1)(d)’s Second Prong: General Principles
[ii] Absence of Agreement Between Parties Under Article V(1)(d)’s Second Prong
[iii] Burden and Standard of Proof Under Article V(1)(d)’s Second Prong
[iv] Serious Violation of Law of Arbitral Seat Required Under Article V(1)(d)
[v] Material Prejudice Ordinarily Required to Warrant Non-Recognition Under Article V(1)(d)
[vi] Issues of Waiver and Preclusion Under Article V(1)(d)’s Second Prong
[d] Waiver of Procedural Violations Under Article V(1)(d)
[6] Arbitrators’ Lack of Independence Or Impartiality: Articles V(1)(B), V(1)(D) and V(2)(B)
[a] General Principles: Arbitrator Impartiality Under Articles V(1)(b), V(1)(d) and V(2)(b)
[b] Different Standards for Non-Recognition of Award and Removal of Arbitrator
[c] Burden of Proof of Arbitrator Partiality
[d] Standard of Proof of Arbitrator Partiality
[e] Choice of Law Governing Arbitrator Independence and Impartiality
[i] Choice of Law Dependent on Basis of Non-Recognition
[ii] Choice of Law Applicable Under Article V(2)(b)
[iii] Choice of Law Applicable Under Article V(1)(d)
[iv] Choice of Law Applicable Under Article V(1)(b)
[f] Arbitrator Impartiality and Independence Under U.S. Federal Arbitration Act
[g] Factual Circumstances Giving Rise to Challenges to Arbitrators’ Impartiality and Independence
[h] Importance of Parties’ Agreement and Expectations to Standards of Arbitrator Impartiality and Independence
[i] Significance of Institutional Arbitration Rules and Challenge Procedures
[j] Issues of Waiver and Preclusion
[k] Waiver of Objections to Arbitrator’s Independence or Impartiality
[7] Awards That are Not “Binding”: Article V(1)(E)
[a] “Final” or “Binding” Awards
[b] “Binding” (Not “Final”) Awards
[c] Burden of Proof Under Article V(1)(e)
[d] Choice of Law Under Article V(1)(e)
[e] Meaning of “Binding” Award
[i] Text of Article V(1)(e)
[ii] Drafting History of Article V(1)(e)
[iii] No Requirement for Confirmation in Arbitral Seat for Award to Be “Binding”
[iv] Pending Annulment Action in Arbitral Seat Does Not Prevent Award from Being “Binding”
[v] Effect of “Appeal” in Arbitral Seat
[vi] Effect of Institutional Review of Arbitral Award
[vii] Effect of Statutory Provisions in Arbitral Seat Suspending Effects of Arbitral Award
[viii] Future Directions: Effect of Parties’ Agreement That Award Is “Final” or “Binding”
[f] Other International Arbitration Conventions
[g] National Arbitration Legislation: “Final” and “Binding” Awards
[h] Interim Awards
[i] Partial Awards
[8] Annulment Or Suspension of Award in Arbitral Seat: Article V(1)(E)
[a] Consequences of Annulment of Arbitral Award
[i] Recognition of Annulled Awards Under International Arbitration Conventions
[ii] Recognition of Annulled Awards Under National Law
(1) Hilmarton and Other French Decisions
(2) Other European Decisions
(3) Chromalloy and Other U.S. Decisions
[iii] Judicial Decisions Refusing to Recognize Annulled Awards
[iv] Commentary on Recognition of Annulled Awards
[b] Future Directions: Recognition of Awards Annulled in Arbitral Seat
[i] Annulled Awards Do Not “Cease to Exist”
[ii] New York Convention Does Not Prevent Recognition of Annulled Awards
[iii] Annulled Awards May Be Denied Recognition Under Article V(1)
[iv] Proper Treatment of Annulled Awards
[9] Awards Contrary to Public Policy: Article V(2)(B)
[a] Public Policy Exception in International Arbitration Conventions
[b] Public Policy Exception Under National Arbitration Legislation
[c] Burden of Proof Under Article V(2)(b)
[d] Standard of Proof Under Article V(2)(b)
[e] Source of Public Policies Under Article V(2)(b)
[i] Public Policy of Recognition Forum
[ii] International Public Policy Under Article V(2)(b)
[iii] Public Policy Intended to Have International Application Under Article V(2)(b)
[iv] Restraint and Caution in Applying Public Policy Exception Under Article V(2)(b)
[f] International Limits on National Public Policies
[g] Foreign Public Policies Under Article V(2)(b)
[h] Public Policy Exception Not Applicable Under Article V(2)(b) Because of Incorrect Substantive Decision or Result
[i] Non-Recognition on Grounds of Substantive Public Policy
[i] Mandatory Criminal Law
[ii] Corruption and Bribery
[iii] Trade Sanctions, Export Controls, Currency Controls and Similar Regulations
[iv] Illegal Contracts
[v] Bankruptcy
[vi] Penalties and Liquidated Damages
[vii] Interest
[viii] Punitive Damages
[ix] Duress and Wrongful Force
[x] Res Judicata
[xi] Statutes of Limitations
[xii] Pacta Sunt Servanda, Good Faith and Related Doctrines
[xiii] Application of Incorrect Substantive Law
[xiv] Principle of Proportionality
[xv] National and Political Interests
[xvi] State Sovereignty
[xvii] U.S. State Policies
[xviii] International Comity or Forum Non Conveniens
[j] Non-Recognition on Grounds of Procedural Public Policy
[k] Arbitral Awards Addressing Mandatory Law and Public Policy Claims
[l] Focus of Public Policy Exception Under Article V(2)(b): Relief Awarded or Underlying Dispute?
[m] Waiver of Public Policy Objections Under Article V(2)(b)
[n] Issues of Preclusion Under Article V(2)(b)
[o] Discretionary Recognition Under Article V(2)(b)
[10] Nonarbitrability: Article V(2)(A)
[a] Article V(2)(a) and Article II(1): Identical Standard
[b] Burden of Proof Under Article V(2)(a)
[c] Standard of Proof Under Article V(2)(a)
[d] International Versus Domestic Nonarbitrability Under Article V(2)(a)
[e] Clear Statement of Legislative Intent Required
[f] Choice of Law Under Article V(2)(a)
[g] International Limits on Nonarbitrability Under Article V(2)(a)
[h] Issues of Preclusion Under Article V(2)(a)
[i] Waiver Under Article V(2)(a)
[j] “Subject Matter of the Difference”
[k] Discretionary Recognition Under Article V(2)(a)
[11] Fraud
[12] No Judicial Review of Merits of Foreign Or Non-Domestic Awards in Recognition Actions
[a] No Judicial Review of Awards Under New York and Inter-American Conventions
[b] Limited Judicial Review of Awards Not Subject to New York or Inter-American Conventions
[13] No Non-Recognition For Formal Defects in Award
[14] No Non-Recognition For Internally-Contradictory Awards
[15] No Correction, Interpretation, Or Supplementation of Foreign Or Non-Domestic Awards in Recognition Proceedings
[16] No Non-Recognition Based On Counterclaims
[17] Non-Recognition Decisions in Violation of New York Convention
§ 26.06 Suspension of Recognition Proceedings Pending Resolution of Application to Annul Award
[A] Article VI of New York Convention
[B] Judicial Discretion to Suspend Recognition Proceedings Pending Annulment Decision
[C] Factors Relevant to Suspension of Recognition Proceedings
[D] Requirement of Security
§ 26.07 Time Limitations For Seeking Recognition of Awards
Chapter 27 Preclusion, Lis Pendens and Stare Decisis in International Arbitration
§ 27.01 Preclusive Effects of International Arbitral Awards in National Court Litigation
[A] Principles of Preclusion
[1] Common Law Jurisdictions
[2] Civil Law Jurisdictions
[B] Preclusive Effects of International Arbitral Awards
[1] Preclusive Effects of International Arbitral Awards Under International Arbitration Conventions: Article III of New York Convention
[2] Preclusive Effects of International Arbitral Awards Under Uncitral Model Law
[3] Preclusive Effects of International Arbitral Awards in United States
[a] General Principles of Preclusion Applicable to Arbitral Awards Under U.S. Federal Arbitration Act
[b] Claim Preclusion (or Res Judicata)
[c] Issue Preclusion (or Collateral Estoppel)
[d] Law Applicable to Preclusive Effects of Arbitral Awards: Federal or State
[e] Law Applicable to Preclusive Effects of Arbitral Award: Issuing or Recognizing Forum
[f] Allocation of Competence to Determine Preclusive Effects of Arbitral Award
[4] Preclusive Effects of International Arbitral Awards in England and Other Common Law Jurisdictions
[5] Preclusive Effects of International Arbitral Awards in Civil Law Jurisdictions
[6] Choice of Law Governing Preclusive Effects of Arbitral Awards
[7] Preclusive Effects of International Arbitral Awards
[8] Partial Awards
[9] Jurisdictional Awards
[10] Default Awards
§ 27.02 Preclusive Effects of National Court Judgments and Arbitral Awards in International Arbitration
[A] General Applicability of Preclusion Rules in International Arbitration
[1] Obligation of International Arbitral Tribunals to Apply Preclusion Principles
[2] Choice of Law Concerning Preclusion Principles in International Arbitral Proceedings
[3] Preclusion Principles Applied By International Arbitral Tribunals
[B] Preclusive Effects of Jurisdictional Decisions by National Courts
[1] Allocation of Competence Between Arbitral Tribunals and National Courts to Decide Jurisdictional Issues
[2] Arguable Preclusive Effects of Jurisdictional Decisions By National Courts
[3] Lack of Preclusive Effects of Jurisdictional Decisions By National Courts
[a] Jurisdictional Decisions Concerning Scope, Termination, or Waiver of Arbitration Agreement
[b] Jurisdictional Decisions Concerning Existence or Validity of Arbitration Agreement
[C] Preclusive Effects of Judicial Decisions Regarding Provisional Measures
[D] Preclusive Effects of Recognition Decisions
§ 27.03 Lis Pendens and International Arbitration
[A] General Inapplicability of Lis Pendens in International Arbitration
[B] Lis Pendens in Relation to Jurisdictional Issues in International Arbitration
[1] International Arbitration Conventions
[2] National Arbitration Legislation
[a] Priority for Arbitrators’ Jurisdictional Decisions
[b] Priority for National Courts’ Jurisdictional Determinations
[c] Case-by-Case Lis Pendens Decisions
[d] Swiss Law on Private International Law
[3] Future Directions: Lis Pendens in Relation to Jurisdictional Issues
[C] Lis Pendens in Relation to Provisional Measures in International Arbitration
[D] Lis Pendens in Relation to Parallel Arbitral Proceedings
[E] Choice of Law Applicable to Lis Pendens Issues in International Arbitration
§ 27.04 Role of Precedent in International Arbitration
[A] Role of Judicial Precedent in National Legal Systems
[1] Role of Precedent in Common Law Systems
[2] Role of Precedent in Civil Law Systems
[B] Role of Precedent in International Law
[C] Role of Precedent in International Arbitration
[D] Role of Arbitral Precedent in International Arbitration
Commentaries
Articles
International Agreements
Documents of the United Nations
Statutes
Legislative Materials
Rules, Codes and Guidelines
Miscellaneous
Index of Arbitral Awards
Index of Cases
Subject Index