International Arbitration Law and Practice - Third Edition
This third edition of International Arbitration Law and Practice has been largely enriched by covering international commercial arbitrations, investment treaty arbitrations, arbitrations between public bodies, between states and individuals, the UNCITRAL model law and Iran-US Tribunal proceedings as well as commodity arbitration, online arbitration and sports arbitral proceedings.
International Arbitration Law and Practice, 3rd edition elaborates new concepts such as a definition of international arbitration based on procedural law (different from transnational law) and a doctrine (the tronc commun doctrine) to identify the applicable substantive law on disputes between parties belonging to different countries. It further suggests that a law of international arbitration has arisen from the various conventions and laws.
Besides dealing with all the aspects of arbitration on a topic by topic basis, the writer presents a third generation arbitration which builds on analysis of major obstacles to a smooth running arbitration.International Arbitration Law and Practice, 3rd edition is a work that anyone involved in arbitral proceedings will find to be absolutely indispensable.
PDF of Title Page and T.O.C.
CONTENTS
Part I
ARBITRATION AND OTHER ALTERNATIVE DISPUTE
RESOLUTION METHODS
ROLE AND NATURE OF ARBITRATION
CHAPTER 1: DIFFERENT TYPES OF ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION
Arbitration
1.1 Arbitration vis-à-vis Court Proceedings
1.2 From Hostility to Favour
1.3 Different Types of Arbitration
1.4 Baseball (Final Offers Arbitration)
1.5 Ad Hoc versus Administered Arbitration
1.6 Court-Annexed Arbitration
1.7 Compulsory (or Statutory) Arbitration
1.8 On-Line Arbitration
Other Alternative Dispute Resolutions
1.9 Alternative Dispute Resolution
1.10 Conciliation and Mediation
1.11 Mini Trials
1.12 Technical Expertise (Valuation, Schiedsgutachten, Bindend Advies, Quality Arbitration)
1.13 Technical Expertise versus Arbitration
1.14 Med/Arb
1.15 MEDALOA
1.16 Dispute Review Board (or DAB)
1.17 Partnering
1.18 Adjudication
1.19 Adaptation of Contracts
Multi-Tier Formulas
1.20 Multi Steps Sequence of ADR Mechanisms
CHAPTER 2 : CHARACTERIZATION OF ARBITRATION
Notion and Role of Arbitration
2.1 The Notion of Arbitration
2.2 The Architecture and Role of Arbitration and of National State Courts
2.3 Superiority of Arbitration or Equal Alternative
2.4 The Mandate of the Arbitral Tribunal
2.5 Distinction between Arbitration and a Joint Mandate to Settle
Battle of Theories
2.6 The Doctrine of Mere Contractual Contents
2.7 The Doctrine of Judicial Contents
2.8 The Doctrine of an Hybrid Nature
2.9 The Doctrine of an Autonomous Nature
2.10 The Sharp Position Taken in Cinisello Balsamo
2.11 Jurisdictional Effects of the Award?
Arbitration as a Separate Jurisdiction
2.12 The Nature of Arbitration
2.13 Does Arbitration Belong to the Ordinary Jurisdiction and Does Its Award Have the Same Nature as a Court Judgment?
CHAPTER 3 : THE SOURCES OF INTERNATIONAL ARBITRATION LAW
International Conventions
3.1 International Conventions
3.1.1 Multilateral Conventions
3.1.2 Bilateral Conventions
3.2 The Intention of the Parties
3.3 Rules of Arbitral Institutions
3.4 Arbitrators’ Alternative Ruling
3.5 National Legal Systems
3.6 Substantive Rules of International Arbitration – Mandatory Rules
Precedents
3.7 Precedents
(a) Arbitral Precedents
(b) Court Precedents
3.8 International Arbitration Moots
3.9 The Schools of Arbitration
3.10 Research
CHAPTER 4: NATIONALITY OF ARBITRATION
Domestic versus Foreign Arbitration
4.1 The Categories of National and Foreign Arbitration
4.2 Criteria to Identify Nationality
4.2.1 The Geographical Criterion
4.2.2 The Procedural Criterion
4.2.3 The Difference between Procedural Nationality and the Place Taken into Account for Recognition of the Award
The Category of International Arbitration
4.3 The Category of International Arbitration
5.3.1 Monism or Dualism
5.3.2 The Subjective Criterion
5.3.3 Reference to International Trade
5.3.4 A Combined or Alternative Criterion
5.3.5 The Procedural Criterion
Transnational Arbitration
4.4 Transnational Arbitration
4.5 A-national Awards
4.4 Conclusions
INTERNATIONAL
ARBITRATION LAW
CHAPTER 5: INTERNATIONAL ARBITRATION LAW
Analysis
5.1 Analysis as to the Existence of an International Arbitration Law
5.2 The Two Branches of International Arbitration Law
Public International Arbitration Law
5.3 Public International Arbitration Law
International Private Arbitration
5.4 International Private Arbitration Law
5.4.1 A Fragmentary Body
5.4.2 Multilateral Conventions
5.4.3 Bilateral Conventions Dealing with Arbitration
5.4.4 Other International Conventions which Affect Arbitration
5.4.5 National Provisions Dealing with Transnational Arbitration
5.4.6 International Arbitration Rules
5.4.7 Consolidated Principles of International Commercial Arbitration
5.4.8 Substantive Rules of Private International Law
5.5 Conclusions
COMMERCIAL (PRIVATE) ARBITRATION
CHAPTER 6: DISPUTES CAPABLE OF ARBITRATION AND ARBITRAL REMEDIES
Requirements for a Dispute
6.1 A Dispute: A Requirement
6.2 Dispute Capable of Settlement by Arbitration
6.3 The Law Applicable to Arbitrability
Classes of Disputes
6.4 Consumer Claims
6.5 Family Dispute
6.6 Competition Law Disputes
6.7 Employment Disputes
6.8 In Rem Actions
6.9 Commercial Disputes
6.10 Tort Claims
6.11 Unjust Enrichment
6.12 Intellectual Property Disputes
6.13 Insolvency Claims
Mass Claims and Class Actions
6.14 Mass Claims and Class Actions
6.15 The US Fairness Arbitration Bill
Illegal Contracts
6.16 Disputes Involving Mandatory Provisions and Illegal Contracts
6.17 Violation of Human Rights
6.18 General Trend
Connection amongst Disputes
6.19 Connection between Disputes Which Are Capable and Those Which Are Not Capable of Settlement by Arbitration
Arbitral Remedies
6.20 Arbitral Remedies
6.21 Pre – and Post – Award Interest
6.22 Authority to Amend or Terminate a Legal Relationship
Punitive Damages
6.23 Punitive and Treble Damages
CHAPTER 7: THE ARBITRATION AGREEMENT
Distinctions
7.1 The Arbitration Agreement, the Contract with the Arbitrators and the Contract to Administer the Proceedings
The Formation of the Agreement
7.2 Unilateral and Optional Clauses
The Parties
7.3 Capacity of the Parties
Form and Contents
7.4 Form Requirements
7.5 Non Signatories
7.6 Strings Contracts
7.7 Contents
7.8 Interpretation of the Arbitration Agreement
Duty to Cooperate
7.9 Duty to Cooperate
Separability
7.10 Autonomy – Separability
The Applicable Law
7.11 The Applicable Law
7.12 Validity of the Arbitration Agreement – The French Limit
Time Limit
7.13 Time Limit to Enter into an Arbitration Agreement – Inertia of the Parties – Forum Prorogatum
Effects
7.14 Positive and Negative Effects
Conditions
7.15 Conditions Precedent
Waiver
7.16 Waiver
Termination
7.17 Expiry, Impossibility and Termination
Remedies for Invalidity
7.18 Remedies for Invalidity
Consummation of the Right to Arbitrate
7.19 Consummation of the Right to Arbitrate
Loss of Effects
7.20 Loss of Effects if a Public Body Takes over the Position of a Contracting Party
CHAPTER 8: THE CHOICE OF LAW RULES TO GOVERN THE ARBITRATION AGREEMENT
8.1 Issue Placed between the Merits of the Dispute and the Arbitral Proceedings
Autonomy
8.2 Autonomy of the Arbitration Clause
The Main Choice
8.3 The Choice Made by the Parties
Supplementary Choice
8.4 Selection in the Absence of a Choice Made by the Parties
As to the Arbitration Agreement
8.5 Validity and Invalidity of the Arbitration Agreement
As to the Arbitrability
8.6 Law Applicable to Arbitrability
As to the Capacity of the Parties
8.7 Law Applicable to the Capacity of the Parties
8.8 Conclusions
CHAPTER 9 : THE PARTIES TO ARBITRATION – CAPACITY TO SUBMIT TO ARBITRATION – SOVEREIGN IMMUNITY
Classes of Parties
9.1 Private Parties, Public Administrations and Government Enterprises
9.2 Disputes as to Being a Party to an Arbitration Agreement – Piercing the Corporate Veil – Alter Ego
9.3 Non Signatories
Sovereign Immunity
9.4 Sovereign Immunity
Changes to the Original Contract
9.5 Subjective and Objective Changes to the Original Contract
Connections
9.6 Participation of Several Connected Parties in the Proceedings
9.7 Connected Agreements and Arbitration Clause in One of Them – Group of Companies
Succession
9.8 Succession in the Contract
Third Parties – Joinders
9.9 Third Parties and their Joinders
9.10 Effects of the Award vis-à-vis Third Parties
Consolidation
9.11 Consolidation of Proceedings
Multiparty Arbitration
9.12 Multiparty Arbitration
Capacity of the Parties
9.13 Law Applicable to the Capacity of the Parties
Changes of Status
9.14 Effects of Insolvency Proceedings on Capacity of the Insolvency
Litigation Funding
9.15 Litigation Funding
ADMINISTERED ARBITRATION
CHAPTER 10: THE ROLE OF THE ARBITRAL INSTITUTIONS
Distinctions amongst Arbitrations
10.1 Ad Hoc or Administered Arbitrations
Relationships between the Various Parties
10.2 Relationship between the Parties and the Arbitral Institution
10.3 Relationship between the Arbitral Institution and the Arbitrator
10.4 The Relationship between the Arbitrator and the Parties
10.5 The Arbitral Institution, the Arbitration Agreement and the Award
Litigation and Immunity
10.6 Arguable Exclusion of Parties by Arbitral Institution
10.7 Litigation against Arbitral Institutions
10.8 Immunity
Anti-Suit Injunctions
10.9 Anti-Suit Injunctions
THE ARBITRAL TRIBUNAL
Contract to Arbitrate
11.1 Relationship between the Parties and the Arbitrator
Number of Arbitrators
11.2 A Sole Arbitrator or an Arbitral Tribunal – Even or Odd Number – The Umpire
Appointment of the Arbitrator
11.3 Criteria for Choosing the Arbitrator
11.4 Direct or Indirect Appointment – Intuitus Personae
11.5 Appointment – Acceptance – Lack of Designation
11.6 Capacity of the Arbitrator – Sex and Nationality
11.7 Physical Person or Legal Entity
11.8 Substitute Arbitrators
Choice of Law
11.9 Choice of Law Issues
Training
11.10 Training of Arbitrators
11.11 Impartiality – Independence – Bias – Misconduct – Challenge
Role of the Arbitrator
11.12 The Role of the Arbitrator
11.13 Parties’ Control on Arbitration
11.14 Arbitrator’s Duty to Encourage Settlement
11.15 Imposition of a Peace Treaty
Rights and Duties of the Arbitrator
11.16 The Duty of Disclosure
11.17 The Duties of the Arbitrator : The Rules of Conduct
11.18 Remuneration
11.19 Right to Cooperation from the Parties
Liability – Immunity
11.20 Liability – Immunity
Termination
11.21 Termination by Expiry of Term of Office and on Other Grounds – Replacement – Truncated Arbitration – Effects
Removal
11.22 Removal, Resignation and Challenge
Secretary to the Arbitral Tribunal
11.23 Possibility of Appointing a Secretary to the Arbitral Tribunal
Arbitrator’s Involvement before State Courts
11.24 Arbitrator’s Subsequent Involvement before State Courts
11.25 The Arbitrator as a Works
11.26 The Arbitrator as a Party
THE ROLE OF STATE COURTS
CHAPTER 12: THE ROLE OF STATE COURTS IN AIDING ARBITRATION
Primary and Secondary Jurisdiction
12.1 Primary and Secondary Jurisdiction
12.2 Subject Matter Jurisdiction and Personal Jurisdiction of State Courts
Forum Non Conveniens
12.3 Forum Non Conveniens
Forum Necessitatis
12.4 Forum Necessitatis
Comity of Nations
12.5 Comity of Nations
The “Judge d’Appui”
12.6 The “Juge d’Appui” (State Courts Statutory Intervention to Solve Problems During Arbitration)
Appointment and Challenges of Arbitrators
12.7 Appointment of Arbitrators
12.8 Challenge and Removal of Arbitrators
Motion to Compel Arbitration
12.9 Motion to Compel Submission of the Dispute to Arbitration
Anti-Suit Injunctions
12.10 Anti-Suit and Anti-Arbitration Injunction
As to Arbitration Agreements
12.11 Rulings by State Court or Arbitrators on the Arbitration Agreement
As to Evidence
12.12 Intervention During Evidence
Consolidation
12.13 Consolidation of Proceedings
As to Time Limits
12.14 Extension of Contractual Time Limits
Filing of the Award
12.15 Filing of the Award
Nature of the Award
12.16 Final or Binding Nature of the Award
Interlocutory Injunctions
12.17 Interlocutory Injunctions
Aid Not Interference
12.18 Aid Not Interference
The Various Motions
12.19 Contempt of Court
12.20 Motions
As to a Review of the Merits
12.21 Whether to Review the Merits of the Award
As to Security of Costs
12.22 Orders in Respect of Security for Costs
Coordination between Proceedings
12.23 Coordination between Court and Arbitral Proceedings
CONFIDENTIALITY
Source of Confidentiality
13.1 Express or Implied Confidentiality
Applicable Law
13.2 The Applicable Law
Ambit of Confidentiality
13.3 Transparency
13.4 Subjective and Objective Ambit
13.5 The Very Existence of Arbitral Proceedings
13.6 Documentary Evidence
13.7 Oral evidence
13.8 The Proceedings
13.9 Publication and Its Award
Breaches and Sanctions
13.10 Breaches of Confidentiality
13.11 Sanctions for Breach
CHOICE OF SUBSTANTIVE LAW
The Merits
14.1 The Merits
Choice Made by the Parties
14.2 Choice Made by the Parties
Choice Made by the Arbitrator
14.3 Deviation from the Choice of the Parties
14.4 Choice Made by the Arbitrators
Trade Usages
14.5 Trade Usages
International Principles
14.6 The UNIDROIT Principles
14.7 International Principles of Law
Lex Mercatoria
14.8 Lex Mercatoria
The Tronc Commun
14.9 The Tronc Commun
Jura Novit Curia
14.10 Jura Novit Curia
14.11 The Shari’ah
Proof of Foreign Law
14.12 Proof of the Foreign Substantive Law
Interpretation of the Law
14.13 Interpretation of the Law
Abuse of Rights
14.14 Abuse of a Right
EX AEQUO ET BONO
CHAPTER 15: EX AEQUO ET BONO DECISIONS AND AMIABLE COMPOSITEUR
Ex Aequo et Bono
15.1 Ex Aequo et Bono
15.1.1 Common Law Hostility
15.1.2 Aequitas in Roman Law
15.1.3 Equity in England under Norman Kings
15.1.4 Similarities between the Two Notions
15.1.5 Actual Application of Ex Aequo et Bono
15.1.6 Ex Aequo et Bono and the Modern Legal Systems
15.1.7 Aequitas in International Arbitration and Public Policy
15.1.8 Limits to Discretionary Authority under Aequitas
15.1.9 Equitable Assessment of Damages
15.1.10 Equitable Tolling
15.1.11 Equitable Estoppel
15.1.12 Conclusions
Amiables Compositeurs
15.2 Amiables Compositeurs
15.2.1 Original Notion
15.2.2 Authority as Amiable Compositeur
15.2.3 The French Notion
15.2.4 Distinction between Amiable Composition and Ex Aequo et Bono
15.2.5 Situations Where the Amiable Compositeur Is Instructed to Decide
PUBLIC POLICY
CHAPTER 16: ARBITRATION AND PUBLIC POLICY
Role
16.1 The Role of Public Policy
Distinctions within Public Policy
16.2 Public Policy and Normes d’Application Immediate
16.3 Public Policy, Fraude à la Loi and Procedural Fraud
16.4 Domestic Public Policy and International Public Policy – Transnational Public Policy
16.5 Foreign Public Law
16.6 Substantive Public Policy
16.7 Procedural Public Policy
16.8 Substantive Public Policy
16.9 Human Rights and Other International Conventions
16.10 Time to Establish Public Policy
16.11 Conclusions
THE RULES OF PROCEDURE
CHAPTER 17: APPLICABLE PROCEDURAL LAW
Internal and External Procedural Issues
17.1 Internal and External Procedural Issues
Choice by the Parties
17.2 The Parties’ Freedom of Choice
Applicable Law
17.3 Possibility to Apply a Procedural Law Different from that of the Place of Arbitration
17.4 Denationalization of Arbitral Proceedings
17.5 Nationless vis-à-vis International Arbitration
17.6 No Absolute Need for a National Procedural Law
17.7 Supranationality of Arbitration Rules
Selection of the Procedural Law – Effects
17.8 Different Possible Selections of the Procedural Law
17.9 Several Procedural Laws and a Procedural Tronc Commun
17.10 Rationale and Effects of the Choice of a Procedural Law Different from the Law of the Place of Arbitration
Procedural Public Policy
17.11 Procedural Public Policy
17.12 Conclusions
Various Arbitration Rules
18.1 A Large Number of Arbitration Rules
Administered versus Ad Hoc Arbitration
18.2 Advantages of Administered Arbitration versus Ad Hoc Arbitration
18.3 Disadvantages of Administered Arbitration versus Ad Hoc Arbitration
Effects of How the Rules Are Applied
18.4 The Way the Rules Are Applied
Differences amongst Rules
18.5 Differences amongst the Various Rules
THE VENUE
CHAPTER 19: THE VENUE OF THE PROCEEDINGS
Notion
19.1 Notion of Venue
Criteria to Select It
19.2 Criteria for the Choice of the Venue
19.3 Delegation by the Parties of the Choice of the Venue
Effects
19.4 Effects of the Choice of the Venue
19.5 Lack of Choice of Venue and Lack of Designation of Authority
19.6 Holding Part of the Proceedings Elsewhere
19.7 Effects of Non-Compliance with the Venue
19.8 The Venue and Forum on Conveniens
Change of Venue
19.9 Change of Venue
DOCUMENTS-ONLY ARBITRATION
CHAPTER 20: DOCUMENTS ONLY ARBITRATION
Middles Seize and Small Claims
20.1 Specific Problems of Middle Size and Small Claims
Consumer Arbitration
20.2 Consumer Arbitration
The Proceedings
20.3 Documents Only Arbitration
20.4 Documents Only Arbitration and Due Process
PRE-ARBITRAL REFEREE
Chapter 21: THE PRE-ARBITRAL REFEREE
Background
21.1 Its Background
The ICC Proceedings
21.2 The ICC Pre Arbitral Referee Proceedings
The Order of the Referee
21.3 Characterization of the Order of the Referee
THE INTIAL STAGE
CHAPTER 22: PRELIMINARY ISSUES AND INITIAL STAGE
The Premises
22.1 Basic Premise to Arbitral Proceedings
Conditions Precedents
22.2 Effects of Lack of Recourse to Earlier Mediation or of Lack of Referral of the Dispute to the Engineer
22.3 Legal Representation
22.4 Arbitral Advocacy
22.5 Privilege
22.6 Overlawyering –A Full Armour
Formation of the Arbitral Tribunal
22.7 Formation of the Arbitral Tribunal
Commencement of the Proceedings
22.8 Commencement of the Proceedings
Language of the Proceedings
22.9 Language of the Proceedings
Preliminary Issues
22.10 Preliminary Issues – Bifurcation
Kompetenz-Kompetenz
22.11 Decision on Arbitral Jurisdiction : Kompetenz-Kompetenz
22.12 Connection with Non-Arbitrable Disputes
22.13 Defenses Based on an Other Relationship – Set Offs
22.14 Duty of Good Faith and Loyalty
22.15 Counterclaims
22.16 Lis Pendens between Arbitral and Court Proceedings
22.17 Multi Fora Disputes
22.18 Dilatory Tactics
Terms of Reference
22.19 Nature and Limits of the Terms of Reference
Case Management
22.20 Pre-Trial Conference versus Order for Directions – Case Management
Timetable of the Proceedings
22.21 Timetable of the Proceedings
The Role of the Arbitrator
22.22 The Arbitrator’s Duty to Assist
22.23 The Role of the Chairman of the Arbitral Tribunal
22.24 Decision on Ex-Officio Issues
22.25 Minutes of Meetings
Progress of the Proceedings
22.26 Exchange of Pleadings
22.27 Deadlines
22.28 Amended Claims and New Claims
22.29 Issue Estoppel
22.30 Promissory Estoppel
INTERLOCUTORY INJUNCTIONS
Chapter 23: Interlocutory Injunctions
Domestic Arbitration
23.1 In Domestic Arbitration
23.2 Authority under the Applicable Procedural Law
International Arbitration
23.3 In International Arbitration
Distinctions
23.4 Distinctions between Holding Measures and Interlocutory Injunctions
23.5 Interlocutory Injunctions in the Form of Awards
23.6 Judicial and Arbitral Precedents
Standards
23.7 Standards for the Issue of Interlocutory Injunctions
Enforcement
23.8 Court Enforcement of Arbitral Injunctions
Anti-Suit Injunctions
23.9 Anti-Suit Injunctions
Interferences
23.10 Interferences between Court Proceedings and Arbitral Interim Injunctions
23.11 Arbitrator’s Authority to Vacate Injunction Granted by State Court
Pre-Arbitral Referee
23.12 Pre-Arbitral Referee
Wrongful Injunction
23.13 Damages for Wrongful Injunction
Payment Orders
23.14 Payment Orders During the Proceedings
23.15 Conclusions
THE EVIDENTIARY STAGE
CHAPTER 24: THE EVIDENTIARY STAGE
The Burden of Proof
24.1 The Burden and Standard of Proof
Admissibility of Evidence
24.2 Admissibility of Evidence – Substantive or Procedural Issue
Need for a Leave
24.3 Leave to Call Oral Evidence
The Taking of Evidence
24.4 The Taking of Evidence
24.5 Pre-trial Evidence (Depositions and Interrogatories)
24.6 Publicity of Hearings
24.7 Recording of Hearings
Documentary Evidence
24.8 Discovery of Documentary Evidence
24.9 E-Evidence
24.10 Assistance by Foreign and International Tribunals in Obtaining Evidence
Oral Evidence
24.11 Evidence by Witnesses
24.12 Witness Statements/Affidavits
24.13 Consequences of False Testimony
24.14 Tandem Witness Examination
24.15 Evidence by the Parties
24.16 Applications to the Courts for Assistance in the Taking of Evidence
24.17 Rules of Conduct
24.18 Sanctions
24.19 Witness Coaching
Experts
24.20 Experts
24.21 The Arbitrator’s Duty to Assist the Process
Presumptions
24.22 Presumptions
24.23 Personal Knowledge of the Arbitrator and Judicial Notice
Site Visits
24.24 Site Visits
Time Bars and Non-Mandatory Terms
24.25 Time Bars and Non-Mandatory Terms
Demonstrative Evidence
24.26 Demonstrative Evidence
Sanctions
24.27 Adverse Inferences
24.28 Other Sanctions
Fresh Evidence
24.29 Fresh Evidence
Closing of the Evidentiary Stage
24.30 Closing of the Evidentiary Stage
No Strict Rules of Evidence
24.31 Arbitrators Dispensed with Compliance with Strict Rules of Evidence
Need for Standard Rules of Evidence
24.32 Need for International Standard Rules of Evidence
CHAPTER 25: THE LAST PLEADINGS AND ORAL ARGUMENT
Appreciation of the Evidence
25.1 Appreciation of the Evidence and Amendments to Claims and Defences
Final Addresses
25.2 The Final Addresses
25.3 The Post Evidentiary Brief and the Rebuttal
25.4 The Last Word
Review by the Tribunal – Possible Reopening of the Case
25.5 Review by the Tribunal of the Status of the Proceedings – Reopening of the Case
CHAPTER 26: SPEED AND EFFICIENCY IN ARBITRATION
Delays
26.1 Delays During the Proceedings
Speed v. Quality
26.2 Speed and Quality
26.3 Due Speed
26.4 Accelerated Arbitration
26.5 Fast Track Arbitration
26.6 The Miracle: Two Weeks
26.7 A Really Fast Track Arbitration
26.8 Emergency Arbitration
Arbitration On-Line
26.9 Arbitration On-Line
Adjudication
26.10 Adjudication
PROCEDURAL DUE PROCESS
CHAPTER 27: BREACH OF DUE PROCESS
Notion
27.1 Notion of Due Process
27.2 Due Process and Contempt of Court
Various Breaches
27.3 Equal Treatment in Regard to the Appointment of Arbitrators
27.4 Bias of Lack of Independence
27.5 Term to Appear
27.6 Time Limits to File Pleadings
27.7 Disclosure of Documents
27.8 Right to Call and to Examine Witnesses
27.9 A Reasonable Opportunity to Present One’s Case and to Oppose the Case of the Opposite Party: “L’Egalité des Armes”
27.10 Right to Comment on the Arbitrator’s Possible New Approach to the Dispute
27.11 Parties’ Right to Representation by Counsel
27.12 Other Breaches of Due Process
27.13 Due Process in Default Proceedings
Public Policy
27.14 Breach of Public Policy
27.15 Public Policy, Human Rights and Due Process
The Concealed Enemies
27.16 Concealed Enemies of Due Process
Denial of Justice
27.17 Denial of Justice
THE AWARD
Final, Partial and Interim Awards
28.1 Possibility of Interim Awards – Provisional Remedies
28.2 Interim Awards and Orders
28.3 Final Award
28.4 Finality of Interim Awards
28.5 Award by Consent of the Parties
Duty to Decide
28.6 Duty to Decide
28.7 Delegation by the Arbitrators of Their Authority to Decide
28.8 To Do Substantial Justice and Not to Split the Baby
28.9 Questions and Propositions on Which the Award Does Not Have to Decide
28.10 Lack of Signature by All the Arbitrators
28.11 Discussion and Decision
28.12 Truncated Tribunal
28.13 Decision by a Majority or Casting Vote
28.14 Judicial Discretion
28.15 Decision on Issue Not Argued by the Parties
28.16 Remit to the Arbitrator
28.17 Dissenting Opinions
28.18 Inertia of the Parties
Content of the Award
28.19 Content of the Award
28.20 Reasons of the Award
28.21 Obiter Dicta
Available Remedies
28.22 Available Reliefs (Monetary, Declaratory, Injunctive, Specific Performance, Penalties)
28.23 Other Sanctions
Sanctity of Deliberation Chambers
28.24 Sanctity of Deliberation Chambers or Power of State Courts to Invade Them
Place Where the Award is made
28.25 Place Where the Award Is Made
28.26 Confidentiality in Arbitration
28.27 Scrutiny of the Draft Award by the Arbitral Institution
Effects of the Award
28.28 Effects of the Award – Res Judicata
Time Limit to Decide
28.29 Time Limit for the Award
28.30 Binding Effect of Precedents – Stare Decisis
Publication of the Award
28.31 Publication of the Award
Post Award Arbitral Proceedings
28.32 Arbitral Post Award Proceedings: Correction Interpretation and Additional Award versus Court Post Award Proceedings
28.33 The Five Basic Post Award Avenues
Chapter 29: Costs Interest and Higher Damages
Costs of the Proceedings
29.1 Costs of the Proceedings
29.1.1 Arbitrators’ Fees
29.1.2 The Arbitrator’s Expenses
29.1.3 Joint Liability of the Parties
29.1.4 Advances
29.1.5 Other Expenses of the Arbitral Proceedings
29.1.6 Administrative Dues of the Arbitral Institution
29.1.7 Witnesses Expenses and Per Diem
29.1.8 Security for Costs
29.1.9 Costs Follow the Event
Interest
29.2 Interest
29.2.1 Pre Award and Post Award Interest
Further Damages
29.3 Further Damages
29.4 Punitive Damages – Treble Damages
29.4.1 Punitive Damages
29.4.2 Treble Damages
Extra Costs
29.5 Extra Costs for Inappropriate Conduct
CHAPTER 30: FILING AND NOTIFICATION OF THE AWARD
Filing
30.1 Filing with the Arbitral Institution and Delivery of the Award
30.2 Filing of the Award with a State Court or Governmental Agency
30.3 Notification of the Award to the Parties
30.4 Prohibition to the Arbitrators to Deliver Directly to the Parties
Non Filing
30.5 Effects of a Refusal to File
CHALLENGES OF AWARDS
CHAPTER 31: CHALLENGES OF AWARDS
General Framework
31.1 General Framework
Classes of Challenges
31.2 Classes of Challenges
31.3 Challenge of an Award Made Ex Aequo et Bono or as an Amiable Compositeur
31.4 The Challenges in the International Conventions
Grounds for Challenges
31.5 Grounds for Challenges
31.6 Frivolous Claims or Defences
Extension by Contract of Judicial Review
31.7 Extension by Contract of Judicial Review
Waiver to Challenges
31.8 Prior Waiver to Challenges – Effects
31.9 Waiver by Conduct During Arbitral Proceedings
Jurisdiction on Challenges
31.10 Jurisdiction on Challenges
31.11 Challenges outside the State of Origin
31.12 Challenges against the First Instance Award (While the Appellate Arbitral Proceeding Are Pending)
31.13 Anti-Suit Injunctions against Actions to Vacate
31.14 Review of Decision Made by the State Court on the Challenge of an Award
Law Applicable to Challenges
31.15 Law Applicable to Challenges
Remedies
31.16 Remedies Available before National Courts
31.17 Challenges before Another Arbitration
31.18 Correction and Interpretation of Awards
31.19 Court Precedents
31.20 Not Setting Aside if Arbitrator Has Chosen amongst Available Remedies
31.21 Setting Aside for Dénaturation (Manifest Disregard) of Contractual Documents
CHAPTER 32: FULL DE NOVO REVIEW BEFORE NEW ARBITRAL TRIBUNAL
The Various Views
32.1 Hostility to Any Review of the Merits
32.2 Weakness of This Position
32.3 Challenges before State Courts or before a Second degree Arbitrator?
The Washington Convention
32.4 The Washington Convention – Ad Hoc Committee
Commodities Arbitration
32.5 Commodities Arbitration
32.6 Full De Novo Reconsideration
The European Court of Arbitration
32.7 The European Court of Arbitration Solution
32.8 Condition for Leave to Appeal
The CPR Rules
32.9 The CPR Rules
Sports Arbitration
32.10 Sports Arbitration
The Arbitration Chambers of Paris
32.11 The Arbitration Chambers of Paris
Coordination between the Various Challenges
32.12 Coordination between the Various Challenges to State Courts against the First Instance Award, Appellate Arbitral Proceedings and Challenges against the Latter
Other Supervising Bodies?
32.13 ICSID and European Court of Human Rights as Supervising Bodies
ENFORCEMENT OF AWARDS
CHAPTER 33: ENFORCEMENT IN THE STATE OF ORIGIN
An Enforceable Instrument
33.1 Obtaining the Effects of an Enforceable Instrument
Enforcement Proceedings
33.2 Enforcement Proceedings
33.3 Does Rejection of Claims to Set Aside Equal Leave to Enforce?
33.4 Partial Enforcement
33.5 Stay of Enforcement
Time Bar
33.6 Time Bar for Starting Enforcement Proceedings
Oppositions to Enforcement
33.7 Oppositions to Enforcement
33.8 State Immunity from Enforcement
33.9 Refusal of Leave to Enforce Local Award for Non-Compliance with Municipal Procedural Law
CHAPTER 34: ENFORCEMENT AND RECOGNITION IN OTHER STATES
Pro-Enforcement Tendency
34.1 Pro-Enforcement Tendency
Forum Shopping
34.2 No Uniform Procedural Rules for the Enforcement of Awards in the Various Jurisdictions
34.3 Nature of the Enforcement Order: A Step of the Enforcement Proceedings?
Forum Shopping
34.4 Forum Shopping
34.5 Forum Selection
34.6 Enforcement in the Absence of International Conventions
34.7 Enforcement under International Conventions
34.8 Enforcement Not Sought under International Conventions
34.9 Enforcement in Various States
Distinction between Recognition and Enforcement
34.10 Distinction between Recognition and Enforcement
Enforcement
34.11 Enforcement of the Interim Award
34.12 Enforcement of Part of the Award
34.13 Enforcement of Conflicting Decisions
34.14 Enforcement of Judgment Entered on an Award
34.15 Counterclaims and Set Offs in Recognition Proceedings
34.16 Time Bar for Enforcement
34.17 Time Limit to Enforce the Award
Opposition to Enforcement
34.18 Opposition to Enforcement
34.19 Stay of Enforcement
Recognition Proceedings
34.20 Recognition as a Counterclaim or as a Defence
Preventive Proceedings
34.21 Preventive Independent Proceedings to Establish That a Foreign Award May Not Be Recognised
Enforcement of a Set-Aside Award
34.22 Autonomy of Enforcement Proceedings from Setting Aside Proceedings
34.23 Enforcement of a Set-Aside Award
State Immunity
34.24 State Immunity from Enforcement
CHAPTER 35: RECOGNITION AND ENFORCEMENT UNDER THE NEW YORK CONVENTION
Field of Application
35.1 Field of Application
35.2 Deference to Arbitration Agreement
35.2.1 Special Meaning of Recognition
Form Requirements
35.2.2 Agreement in Writing
Contents of the Arbitration Agreement
35.2.3 Contents of the Arbitration Agreement
State Court Referral
35.2.4 State Court Referral of Dispute to Arbitration
35.3 Interim Awards
Recognition and Enforcement of Awards
35.4 Recognition and Enforcement of Awards
35.4.1 Documents to Be Filed When Applying for Leave to Enforce
35.4.2 Enforcement Only in Part
Grounds for Refusal to Enforce
35.5 Grounds for Refusal
35.5.1 Grounds to Be Raised by the Opposite Party
35.5.2 Grounds for Refusal on the Court’s Motion
Stay of Enforcement
35.6 Stay of Enforcement
Enforcement Procedure
35.7 Enforcement Procedure
Part II
SPECIAL ARBITRAL PROCEEDINGS
CHAPTER 36: INTERNATIONAL PUBLIC LAW ARBITRATION
Main Features
36.1 Arbitration and International Public Law Disputes
36.2 Historical Development of International Public Law Arbitration
Permanent Court of Arbitration
36.3 Permanent Court of Arbitration
36.4 A New Role for the Permanent Court of Arbitration
International Court of Justice
36.5 The International Court of Justice
Tribunal for the Law of the Sea
36.6 The International Tribunal for the Law of the Sea
The GATT
36.7 Settlement of International Trade Disputes (GATT and World Trade Organisation)
36.8 Main Features of International Public Law Arbitration
Arbitration between States and Individuals
36.9 Arbitration between States and Individuals
Other Public International Disputes
36.10 Settlement of Other Public International Disputes
The Brussels Convention
37.1 The Brussels Convention
37.1.1 The Exclusion of Arbitration from the Brussels Rules
The Ambit of the Arbitration Exception
37.1.2 Referral by Arbitrators of Preliminary Issues to the European Court of Justice
37.1.3 The European Court of Justice as Arbitrator
EC Competition Law and Arbitration
37.2 EC Competition Law and Arbitration
37.2.1 Disputes Capable of Arbitration
37.2.2 Foreign Applicable Substantive Law and EU Competition Law
37.2.3 The Strict Approach
37.2.4 A More Recent Approach
37.2.5 Public Policy Nature of Articles 85-86 Rome Treaty
37.2.6 Applicability of EC Law by the Arbitral Tribunal of Its Own Initiative
37.2.7 Arbitral Precedents
37.2.8 Court Precedents
Consumers Protection
37.3 Directive 93/13 EC, Consumers’ Protection and Arbitration
The Convention on Human Rights
37.4 The Influence of the European Convention on Human Rights
CHAPTER 38: UNCITRAL ARBITRATION
UNCITRAL’s Achievements
38.1 UNCITRAL’s Achievements in the Field of Arbitration
The New York Convention
38.2 The New York Convention
The UNCITRAL Arbitration Rules
38.3 The UNCITRAL Arbitration Rules
The UNCITRAL Model Law
38.4 The UNCITRAL Model Law
The UNCITRAL Guidelines
38.5 The UNCITRAL Guidelines
CHAPTER 39: INVESTOR STATE ARBITRATION
(THE WASHINGTON CONVENTION)
I. INTRODUCTION
Investment Arbitration Distinguished from Commercial Arbitration
39.1 Difference between Investment and Commercial Arbitration
39.2 Mutual Advantages and Justified Concerns
39.3 A Variety of Barriers
39.4 Previous Formulae
39.5 Earlier Investment Conventions
39.6 Modern Foreign Investment Law
39.7 The Role of Investment Arbitration
ICSID Arbitration
II. ICSID ARBITRATION
Procedural Law
II.1 PROCEDURAL LAW
Applicable Law
39.8 Disputes Governed Only by the Domestic Investment Law of the Host State
39.9 Disputes under a BIT
39.10 ICSID Arbitration
The ICSID Additional Facility Rules
39.11 The ICSID Additional Facility Rules
Consent
39.12 Consent to Arbitration
Notion of Investment
39.13 The Notion of Investment
Nationality of the Investor
39.14 Nationality of the Investor
39.15 Shareholders behind the Investment Vehicle
39.16 Previous Exhaustion of Local Remedies
39.17 Alternative or Exclusive Fora
The Fork in the Road
39.18 The Fork in the Road
39.19 The Waiver
Treaty Claims and Contract Claims
39.20 Treaty Claims and Contract Claims
39.21 Consolidation of Proceedings
39.22 Interim Measures
Procedural Rules
39.23 Procedural Rules and Evidence
Substantive Law
II.2 SUBSTANTIVE LAW
39.24 Disputes under a BIT
39.25 Contract Terms and Rules of Law
39.26 The Investment Treaty
39.27 The Law of the Host State
39.28 Public International Law
39.29 The Relationships between Host State Law and Public International Law
Foreign Investor’s Substantive Rights
II.3 FOREIGN INVESTOR’S SUBSTANTIVE RIGHTS
No Discrimination
39.30 No Discrimination
39.31 National Treatment
No Less Favourable Treatment
39.32 No Less Favourable Treatment
39.33 Discriminatory Intent
Most Favoured Nation
39.34 Most Favoured Nation
39.35 Substantive and Procedural Rights
39.36 Arbitrary or Discriminatory Measures
Protection against Expropriation
39.37 Protection against Expropriation
39.38 Indirect Expropriations
39.39 Breach by the Host State of Its Representations
39.40 Effects of the Duration of the Measure
39.41 Transfer of the Property
Fair and Equitable Treatment
39.42 Fair and Equitable Treatment
39.43 Protection and Security
Umbrella Clauses
39.44 Umbrella Clauses
Available Remedies
II.4 AVAILABLE REMEDIES
Setting Aside Proceedings
II.5 SETTING ASIDE PROCEEDINGS
39.45 Setting Aside of Investment Awards
39.46 ICSID Awards
39.47 Other Investment Awards
39.48 Substantial Non Compliance with Rules of Procedure – Excess of Authority
39.49 Public Policy
Errors of Law and Errors of Fact
39.50 Errors of Law and Errors of Fact
39.51 Exclusions and Extensions of the Grounds for Challenge
Enforcement
II.6 ENFORCEMENT OF INVESTMENT AWARDS
39.52 The Exequatur
39.53 Immunity from Execution
39.54 Stay of Enforcement of the First Instance Award
Investment under Other Multilateral Treaties
III. INVESTMENT UNDER OTHER MULTILATERAL TREATIES
NAFTA
39.55 The North American Free Trade Agreement (NAFTA)
The Lomé Conventions
39.56 The Lomé Conventions
Mercosur
39.57 Mercosur
ASEAN Investment Agreement
39.58 The ASEAN Investment Agreement
Energy Charter Treaty
39.59 Energy Charter Treaty
DR-CAFTA Free Trade Agreement
39.60 The DR-CAFTA Free Trade Agreement
World Trade Organisation
39.61 World Trade Organisation
European Development Fund Rules
39.62 European Development Fund Rules
Prospects on the Future of Investment Arbitration
IV. PROSPECTS ON THE FUTURE OF INVESTMENT ARBITRATION
39.63 To Rationalize the Need for Consent
39.64 No More Than Two Degrees
39.65 A Full De Novo Review
39.66 Treaty Claims and Contract Claims
39.67 How to Reduce the Risk of Opposite Construction of Treaties
39.68 A Shorted Duration
CHAPTER 40: ARBITRATION OF COMMERCIAL DISPUTES BETWEEN A STATE AND A PRIVATE PARTY
Different Classes of Disputes
40.1 Different Classes of Disputes
Different National Regimes
40.2 Different National Regimes
40.3 Arbitration Involving States and State Entities
Criticism of the Role of International Arbitral Tribunals
40.4 International Arbitral Tribunals Alleged to Be Instruments of a Western Policy Detrimental to Developing Countries
40.5 A Response
40.6 Temptations to Be Resisted
CHAPTER 41: ARBITRATION UNDER THE ALGIERS DECLARATIONS (THE IRAN-U.S. CLAIMS TRIBUNAL)
Origin
41.1 Origin of the Declarations – Contents
41.2 Form of the Declarations
Nature of the Tribunal
41.3 Arbitral or Non-Arbitral Nature of the Tribunal
The Two Roles of the Tribunal
41.4 The Two Roles of the Tribunal
Jurisdiction
41.5 Jurisdiction of the Tribunal
Substantive and Procedural Laws
41.6 Applicable Substantive and Procedural Laws
CHAPTER 42: COMMODITY ARBITRATION
The Origin
42.1 The Origin of Commodity Arbitration
The Rules
42.2 The Commodity Arbitration Rules
CHAPTER 43: THE SPORTS ARBITRAL TRIBUNAL
43.1 The Practice of Sport
43.2 Sport Organisations
43.3 The Olympic Games
43.4 The Relationship between the Athlete and a Sport Organisation
43.5 The Freedom to Join an Association
43.6 The Licence
43.7 Is There a Sports Legal Order?
43.8 The Settlement of Sport Disputes
43.9 National Alternatives : Arbitration Bodies
43.10 Consent as the Basis of Arbitration
43.11 Law Applicable to Form and Consent
43.12 Form Requirements
43.13 Consent to Arbitration
43.14 Implications of the Athlete’s Claim to an Arbitral Tribunal
43.15 Arbitrability
43.16 Disputes Related to Sport
43.17 Public Policy
43.18 The Court of Arbitration for Sport
43.19 The Basketball Arbitral Tribunal (BAT)
CHAPTER 44: ONLINE DISPUTE RESOLUTION
Internet – The Dramatic Change
44.1 Dramatic Change Due to Information Technology
44.2 Old World and New (Virtual) World Arbitration
44.3 The Use of Internet
Very Largely Technology Assisted Dispute Resolution
44.4 Very Largely Technology Assisted Dispute Resolution
Fully Technology –Based Dispute Resolution
44.5 Fully Technology – Based Dispute Resolution
Automated Negotiations
Multivariable Resolution Optimization Programs
Solution Sets Databases
Electronic Virtual Judge
Online Dispute Prevention
44.6 Online Dispute Prevention
Trust Mark Seals
I-Escrow Guarantees
Credit Card Change Back
Online Arbitration Providers
44.7 Online Arbitration Providers
44.8 Internet Websites
44.9 Various Online Dispute Resolution Mechanisms
Retail E-Commerce Online Arbitration
44.10 Retail E-Commerce Online Arbitration
The Legal Obstacles
44.11 The Legal Obstacles to Online Arbitration
Obstacles Related to the Arbitration Agreement
Obstacles Related to the Proceedings
Obstacles Related to the Award
Applicable Substantive and Procedural Law
Place Where Contracts Online –Made
44.12 Where Contracts on Internet Are Made?
Still a Distinction and International Online Arbitration ?
44.13 Still a Distinction and International Online Arbitration?
The Proceedings
44.14 The Proceedings in Technology-Assisted Online Arbitration
E-discovery
44.15 E-discovery
Differences from Paper Production
E-Discovery Rules
U.S. E-Discovery
Early Discovery Plans and Actions
Sanctions for Destruction or Spoliation
E-Discovery in Arbitration
The Uniform Domain Name Dispute Resolution Process
44.16 The Uniform Domain Name Dispute Resolution Process
Balance between the Human Factor and Electronic Documents
44.17 A Balance between the Human Factor and Electronic Documents
CHAPTER 45: OBSTACLES TO OVERCOME
A Panel or a Sole Arbitrator
45.1 A Panel Instead of a Sole Arbitrator
The Tronc Commun versus Conflicts Rules
45.2 Artificial Conflicts Rules to Be Replaced by the Tronc Commun
Lack of Rules of Evidence before Submittal to Arbitration
45.3 Lack of Rules of Evidence before Submittal to Arbitration
Court Interference
45.4 Court Interference
Lack of Constructive Dialogue
45.5 Lack of Constructive Dialogue
Too Many Special Arbitration Laws
45.6 Too Many Special Arbitration Laws
Favor and Sfavor Arbitratus
45.7 Favor and Sfavor Arbitratus
Insufficient Use of Documents-Only and of Online Arbitration
45.8 Insufficient Use of Documents-Only and of Online Arbitration
More Care in Awarding Costs in Arbitration
45.9 More Care in Awarding Costs in Arbitration
Prejudging
45.10 Prejudging
Formal versus Absolute Truth
45.11 Formal versus Absolute Truth
CHAPTER 46: THE CONTINUAL SEARCH FOR IMPROVEMENTS
Lessons from the Past and the Present
46.1 Lessons from the Past and the Present
No Luxury Clinic
46.2 No Luxury Clinic
Excessive Formalism
46.3 Excessive Formalism
Which Justice Does an Honest Man Expect?
46.4 Which Justice Does an Honest Man Expect from the Arbitrator?
The Mission of the Arbitrator
46.5 The Mission of the Arbitrator
Reduction of Challenges
46.6 Reduction of Challenges
A Sole Arbitrator and Not a Panel
46.7 A Sole Arbitrator and Not a Panel
A Much Shorter Duration
46.8 A Much Shorter Duration of the Proceedings
Full De Novo Review by an Appellate Arbitration Panel
46.9 Full De Novo Review by an Appellate Arbitration Panel
One Supra-National Court of Arbitration
46.10 One Supra-National Court of Arbitration and an Immediately Enforceable Appellate Transnational Award
Basic Choices in the Arbitration Agreement
46.11 Basic Choices in the Arbitration Agreement
Third Generation Arbitration
46.12 Third Generation Arbitration
Arbitration to be Different and Better than Court Proceedings
46.13 Arbitration to Be Different and Better than Court Proceedings
Continuous Search for Improvements
46.14 Continuous Search for Improvements
Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.
Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.
PDF of Title Page and T.O.C.
CONTENTS
Part I
ARBITRATION AND OTHER ALTERNATIVE DISPUTE
RESOLUTION METHODS
ROLE AND NATURE OF ARBITRATION
CHAPTER 1: DIFFERENT TYPES OF ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION
Arbitration
1.1 Arbitration vis-à-vis Court Proceedings
1.2 From Hostility to Favour
1.3 Different Types of Arbitration
1.4 Baseball (Final Offers Arbitration)
1.5 Ad Hoc versus Administered Arbitration
1.6 Court-Annexed Arbitration
1.7 Compulsory (or Statutory) Arbitration
1.8 On-Line Arbitration
Other Alternative Dispute Resolutions
1.9 Alternative Dispute Resolution
1.10 Conciliation and Mediation
1.11 Mini Trials
1.12 Technical Expertise (Valuation, Schiedsgutachten, Bindend Advies, Quality Arbitration)
1.13 Technical Expertise versus Arbitration
1.14 Med/Arb
1.15 MEDALOA
1.16 Dispute Review Board (or DAB)
1.17 Partnering
1.18 Adjudication
1.19 Adaptation of Contracts
Multi-Tier Formulas
1.20 Multi Steps Sequence of ADR Mechanisms
CHAPTER 2 : CHARACTERIZATION OF ARBITRATION
Notion and Role of Arbitration
2.1 The Notion of Arbitration
2.2 The Architecture and Role of Arbitration and of National State Courts
2.3 Superiority of Arbitration or Equal Alternative
2.4 The Mandate of the Arbitral Tribunal
2.5 Distinction between Arbitration and a Joint Mandate to Settle
Battle of Theories
2.6 The Doctrine of Mere Contractual Contents
2.7 The Doctrine of Judicial Contents
2.8 The Doctrine of an Hybrid Nature
2.9 The Doctrine of an Autonomous Nature
2.10 The Sharp Position Taken in Cinisello Balsamo
2.11 Jurisdictional Effects of the Award?
Arbitration as a Separate Jurisdiction
2.12 The Nature of Arbitration
2.13 Does Arbitration Belong to the Ordinary Jurisdiction and Does Its Award Have the Same Nature as a Court Judgment?
CHAPTER 3 : THE SOURCES OF INTERNATIONAL ARBITRATION LAW
International Conventions
3.1 International Conventions
3.1.1 Multilateral Conventions
3.1.2 Bilateral Conventions
3.2 The Intention of the Parties
3.3 Rules of Arbitral Institutions
3.4 Arbitrators’ Alternative Ruling
3.5 National Legal Systems
3.6 Substantive Rules of International Arbitration – Mandatory Rules
Precedents
3.7 Precedents
(a) Arbitral Precedents
(b) Court Precedents
3.8 International Arbitration Moots
3.9 The Schools of Arbitration
3.10 Research
CHAPTER 4: NATIONALITY OF ARBITRATION
Domestic versus Foreign Arbitration
4.1 The Categories of National and Foreign Arbitration
4.2 Criteria to Identify Nationality
4.2.1 The Geographical Criterion
4.2.2 The Procedural Criterion
4.2.3 The Difference between Procedural Nationality and the Place Taken into Account for Recognition of the Award
The Category of International Arbitration
4.3 The Category of International Arbitration
5.3.1 Monism or Dualism
5.3.2 The Subjective Criterion
5.3.3 Reference to International Trade
5.3.4 A Combined or Alternative Criterion
5.3.5 The Procedural Criterion
Transnational Arbitration
4.4 Transnational Arbitration
4.5 A-national Awards
4.4 Conclusions
INTERNATIONAL
ARBITRATION LAW
CHAPTER 5: INTERNATIONAL ARBITRATION LAW
Analysis
5.1 Analysis as to the Existence of an International Arbitration Law
5.2 The Two Branches of International Arbitration Law
Public International Arbitration Law
5.3 Public International Arbitration Law
International Private Arbitration
5.4 International Private Arbitration Law
5.4.1 A Fragmentary Body
5.4.2 Multilateral Conventions
5.4.3 Bilateral Conventions Dealing with Arbitration
5.4.4 Other International Conventions which Affect Arbitration
5.4.5 National Provisions Dealing with Transnational Arbitration
5.4.6 International Arbitration Rules
5.4.7 Consolidated Principles of International Commercial Arbitration
5.4.8 Substantive Rules of Private International Law
5.5 Conclusions
COMMERCIAL (PRIVATE) ARBITRATION
CHAPTER 6: DISPUTES CAPABLE OF ARBITRATION AND ARBITRAL REMEDIES
Requirements for a Dispute
6.1 A Dispute: A Requirement
6.2 Dispute Capable of Settlement by Arbitration
6.3 The Law Applicable to Arbitrability
Classes of Disputes
6.4 Consumer Claims
6.5 Family Dispute
6.6 Competition Law Disputes
6.7 Employment Disputes
6.8 In Rem Actions
6.9 Commercial Disputes
6.10 Tort Claims
6.11 Unjust Enrichment
6.12 Intellectual Property Disputes
6.13 Insolvency Claims
Mass Claims and Class Actions
6.14 Mass Claims and Class Actions
6.15 The US Fairness Arbitration Bill
Illegal Contracts
6.16 Disputes Involving Mandatory Provisions and Illegal Contracts
6.17 Violation of Human Rights
6.18 General Trend
Connection amongst Disputes
6.19 Connection between Disputes Which Are Capable and Those Which Are Not Capable of Settlement by Arbitration
Arbitral Remedies
6.20 Arbitral Remedies
6.21 Pre – and Post – Award Interest
6.22 Authority to Amend or Terminate a Legal Relationship
Punitive Damages
6.23 Punitive and Treble Damages
CHAPTER 7: THE ARBITRATION AGREEMENT
Distinctions
7.1 The Arbitration Agreement, the Contract with the Arbitrators and the Contract to Administer the Proceedings
The Formation of the Agreement
7.2 Unilateral and Optional Clauses
The Parties
7.3 Capacity of the Parties
Form and Contents
7.4 Form Requirements
7.5 Non Signatories
7.6 Strings Contracts
7.7 Contents
7.8 Interpretation of the Arbitration Agreement
Duty to Cooperate
7.9 Duty to Cooperate
Separability
7.10 Autonomy – Separability
The Applicable Law
7.11 The Applicable Law
7.12 Validity of the Arbitration Agreement – The French Limit
Time Limit
7.13 Time Limit to Enter into an Arbitration Agreement – Inertia of the Parties – Forum Prorogatum
Effects
7.14 Positive and Negative Effects
Conditions
7.15 Conditions Precedent
Waiver
7.16 Waiver
Termination
7.17 Expiry, Impossibility and Termination
Remedies for Invalidity
7.18 Remedies for Invalidity
Consummation of the Right to Arbitrate
7.19 Consummation of the Right to Arbitrate
Loss of Effects
7.20 Loss of Effects if a Public Body Takes over the Position of a Contracting Party
CHAPTER 8: THE CHOICE OF LAW RULES TO GOVERN THE ARBITRATION AGREEMENT
8.1 Issue Placed between the Merits of the Dispute and the Arbitral Proceedings
Autonomy
8.2 Autonomy of the Arbitration Clause
The Main Choice
8.3 The Choice Made by the Parties
Supplementary Choice
8.4 Selection in the Absence of a Choice Made by the Parties
As to the Arbitration Agreement
8.5 Validity and Invalidity of the Arbitration Agreement
As to the Arbitrability
8.6 Law Applicable to Arbitrability
As to the Capacity of the Parties
8.7 Law Applicable to the Capacity of the Parties
8.8 Conclusions
CHAPTER 9 : THE PARTIES TO ARBITRATION – CAPACITY TO SUBMIT TO ARBITRATION – SOVEREIGN IMMUNITY
Classes of Parties
9.1 Private Parties, Public Administrations and Government Enterprises
9.2 Disputes as to Being a Party to an Arbitration Agreement – Piercing the Corporate Veil – Alter Ego
9.3 Non Signatories
Sovereign Immunity
9.4 Sovereign Immunity
Changes to the Original Contract
9.5 Subjective and Objective Changes to the Original Contract
Connections
9.6 Participation of Several Connected Parties in the Proceedings
9.7 Connected Agreements and Arbitration Clause in One of Them – Group of Companies
Succession
9.8 Succession in the Contract
Third Parties – Joinders
9.9 Third Parties and their Joinders
9.10 Effects of the Award vis-à-vis Third Parties
Consolidation
9.11 Consolidation of Proceedings
Multiparty Arbitration
9.12 Multiparty Arbitration
Capacity of the Parties
9.13 Law Applicable to the Capacity of the Parties
Changes of Status
9.14 Effects of Insolvency Proceedings on Capacity of the Insolvency
Litigation Funding
9.15 Litigation Funding
ADMINISTERED ARBITRATION
CHAPTER 10: THE ROLE OF THE ARBITRAL INSTITUTIONS
Distinctions amongst Arbitrations
10.1 Ad Hoc or Administered Arbitrations
Relationships between the Various Parties
10.2 Relationship between the Parties and the Arbitral Institution
10.3 Relationship between the Arbitral Institution and the Arbitrator
10.4 The Relationship between the Arbitrator and the Parties
10.5 The Arbitral Institution, the Arbitration Agreement and the Award
Litigation and Immunity
10.6 Arguable Exclusion of Parties by Arbitral Institution
10.7 Litigation against Arbitral Institutions
10.8 Immunity
Anti-Suit Injunctions
10.9 Anti-Suit Injunctions
THE ARBITRAL TRIBUNAL
Contract to Arbitrate
11.1 Relationship between the Parties and the Arbitrator
Number of Arbitrators
11.2 A Sole Arbitrator or an Arbitral Tribunal – Even or Odd Number – The Umpire
Appointment of the Arbitrator
11.3 Criteria for Choosing the Arbitrator
11.4 Direct or Indirect Appointment – Intuitus Personae
11.5 Appointment – Acceptance – Lack of Designation
11.6 Capacity of the Arbitrator – Sex and Nationality
11.7 Physical Person or Legal Entity
11.8 Substitute Arbitrators
Choice of Law
11.9 Choice of Law Issues
Training
11.10 Training of Arbitrators
11.11 Impartiality – Independence – Bias – Misconduct – Challenge
Role of the Arbitrator
11.12 The Role of the Arbitrator
11.13 Parties’ Control on Arbitration
11.14 Arbitrator’s Duty to Encourage Settlement
11.15 Imposition of a Peace Treaty
Rights and Duties of the Arbitrator
11.16 The Duty of Disclosure
11.17 The Duties of the Arbitrator : The Rules of Conduct
11.18 Remuneration
11.19 Right to Cooperation from the Parties
Liability – Immunity
11.20 Liability – Immunity
Termination
11.21 Termination by Expiry of Term of Office and on Other Grounds – Replacement – Truncated Arbitration – Effects
Removal
11.22 Removal, Resignation and Challenge
Secretary to the Arbitral Tribunal
11.23 Possibility of Appointing a Secretary to the Arbitral Tribunal
Arbitrator’s Involvement before State Courts
11.24 Arbitrator’s Subsequent Involvement before State Courts
11.25 The Arbitrator as a Works
11.26 The Arbitrator as a Party
THE ROLE OF STATE COURTS
CHAPTER 12: THE ROLE OF STATE COURTS IN AIDING ARBITRATION
Primary and Secondary Jurisdiction
12.1 Primary and Secondary Jurisdiction
12.2 Subject Matter Jurisdiction and Personal Jurisdiction of State Courts
Forum Non Conveniens
12.3 Forum Non Conveniens
Forum Necessitatis
12.4 Forum Necessitatis
Comity of Nations
12.5 Comity of Nations
The “Judge d’Appui”
12.6 The “Juge d’Appui” (State Courts Statutory Intervention to Solve Problems During Arbitration)
Appointment and Challenges of Arbitrators
12.7 Appointment of Arbitrators
12.8 Challenge and Removal of Arbitrators
Motion to Compel Arbitration
12.9 Motion to Compel Submission of the Dispute to Arbitration
Anti-Suit Injunctions
12.10 Anti-Suit and Anti-Arbitration Injunction
As to Arbitration Agreements
12.11 Rulings by State Court or Arbitrators on the Arbitration Agreement
As to Evidence
12.12 Intervention During Evidence
Consolidation
12.13 Consolidation of Proceedings
As to Time Limits
12.14 Extension of Contractual Time Limits
Filing of the Award
12.15 Filing of the Award
Nature of the Award
12.16 Final or Binding Nature of the Award
Interlocutory Injunctions
12.17 Interlocutory Injunctions
Aid Not Interference
12.18 Aid Not Interference
The Various Motions
12.19 Contempt of Court
12.20 Motions
As to a Review of the Merits
12.21 Whether to Review the Merits of the Award
As to Security of Costs
12.22 Orders in Respect of Security for Costs
Coordination between Proceedings
12.23 Coordination between Court and Arbitral Proceedings
CONFIDENTIALITY
Source of Confidentiality
13.1 Express or Implied Confidentiality
Applicable Law
13.2 The Applicable Law
Ambit of Confidentiality
13.3 Transparency
13.4 Subjective and Objective Ambit
13.5 The Very Existence of Arbitral Proceedings
13.6 Documentary Evidence
13.7 Oral evidence
13.8 The Proceedings
13.9 Publication and Its Award
Breaches and Sanctions
13.10 Breaches of Confidentiality
13.11 Sanctions for Breach
CHOICE OF SUBSTANTIVE LAW
The Merits
14.1 The Merits
Choice Made by the Parties
14.2 Choice Made by the Parties
Choice Made by the Arbitrator
14.3 Deviation from the Choice of the Parties
14.4 Choice Made by the Arbitrators
Trade Usages
14.5 Trade Usages
International Principles
14.6 The UNIDROIT Principles
14.7 International Principles of Law
Lex Mercatoria
14.8 Lex Mercatoria
The Tronc Commun
14.9 The Tronc Commun
Jura Novit Curia
14.10 Jura Novit Curia
14.11 The Shari’ah
Proof of Foreign Law
14.12 Proof of the Foreign Substantive Law
Interpretation of the Law
14.13 Interpretation of the Law
Abuse of Rights
14.14 Abuse of a Right
EX AEQUO ET BONO
CHAPTER 15: EX AEQUO ET BONO DECISIONS AND AMIABLE COMPOSITEUR
Ex Aequo et Bono
15.1 Ex Aequo et Bono
15.1.1 Common Law Hostility
15.1.2 Aequitas in Roman Law
15.1.3 Equity in England under Norman Kings
15.1.4 Similarities between the Two Notions
15.1.5 Actual Application of Ex Aequo et Bono
15.1.6 Ex Aequo et Bono and the Modern Legal Systems
15.1.7 Aequitas in International Arbitration and Public Policy
15.1.8 Limits to Discretionary Authority under Aequitas
15.1.9 Equitable Assessment of Damages
15.1.10 Equitable Tolling
15.1.11 Equitable Estoppel
15.1.12 Conclusions
Amiables Compositeurs
15.2 Amiables Compositeurs
15.2.1 Original Notion
15.2.2 Authority as Amiable Compositeur
15.2.3 The French Notion
15.2.4 Distinction between Amiable Composition and Ex Aequo et Bono
15.2.5 Situations Where the Amiable Compositeur Is Instructed to Decide
PUBLIC POLICY
CHAPTER 16: ARBITRATION AND PUBLIC POLICY
Role
16.1 The Role of Public Policy
Distinctions within Public Policy
16.2 Public Policy and Normes d’Application Immediate
16.3 Public Policy, Fraude à la Loi and Procedural Fraud
16.4 Domestic Public Policy and International Public Policy – Transnational Public Policy
16.5 Foreign Public Law
16.6 Substantive Public Policy
16.7 Procedural Public Policy
16.8 Substantive Public Policy
16.9 Human Rights and Other International Conventions
16.10 Time to Establish Public Policy
16.11 Conclusions
THE RULES OF PROCEDURE
CHAPTER 17: APPLICABLE PROCEDURAL LAW
Internal and External Procedural Issues
17.1 Internal and External Procedural Issues
Choice by the Parties
17.2 The Parties’ Freedom of Choice
Applicable Law
17.3 Possibility to Apply a Procedural Law Different from that of the Place of Arbitration
17.4 Denationalization of Arbitral Proceedings
17.5 Nationless vis-à-vis International Arbitration
17.6 No Absolute Need for a National Procedural Law
17.7 Supranationality of Arbitration Rules
Selection of the Procedural Law – Effects
17.8 Different Possible Selections of the Procedural Law
17.9 Several Procedural Laws and a Procedural Tronc Commun
17.10 Rationale and Effects of the Choice of a Procedural Law Different from the Law of the Place of Arbitration
Procedural Public Policy
17.11 Procedural Public Policy
17.12 Conclusions
Various Arbitration Rules
18.1 A Large Number of Arbitration Rules
Administered versus Ad Hoc Arbitration
18.2 Advantages of Administered Arbitration versus Ad Hoc Arbitration
18.3 Disadvantages of Administered Arbitration versus Ad Hoc Arbitration
Effects of How the Rules Are Applied
18.4 The Way the Rules Are Applied
Differences amongst Rules
18.5 Differences amongst the Various Rules
THE VENUE
CHAPTER 19: THE VENUE OF THE PROCEEDINGS
Notion
19.1 Notion of Venue
Criteria to Select It
19.2 Criteria for the Choice of the Venue
19.3 Delegation by the Parties of the Choice of the Venue
Effects
19.4 Effects of the Choice of the Venue
19.5 Lack of Choice of Venue and Lack of Designation of Authority
19.6 Holding Part of the Proceedings Elsewhere
19.7 Effects of Non-Compliance with the Venue
19.8 The Venue and Forum on Conveniens
Change of Venue
19.9 Change of Venue
DOCUMENTS-ONLY ARBITRATION
CHAPTER 20: DOCUMENTS ONLY ARBITRATION
Middles Seize and Small Claims
20.1 Specific Problems of Middle Size and Small Claims
Consumer Arbitration
20.2 Consumer Arbitration
The Proceedings
20.3 Documents Only Arbitration
20.4 Documents Only Arbitration and Due Process
PRE-ARBITRAL REFEREE
Chapter 21: THE PRE-ARBITRAL REFEREE
Background
21.1 Its Background
The ICC Proceedings
21.2 The ICC Pre Arbitral Referee Proceedings
The Order of the Referee
21.3 Characterization of the Order of the Referee
THE INTIAL STAGE
CHAPTER 22: PRELIMINARY ISSUES AND INITIAL STAGE
The Premises
22.1 Basic Premise to Arbitral Proceedings
Conditions Precedents
22.2 Effects of Lack of Recourse to Earlier Mediation or of Lack of Referral of the Dispute to the Engineer
22.3 Legal Representation
22.4 Arbitral Advocacy
22.5 Privilege
22.6 Overlawyering –A Full Armour
Formation of the Arbitral Tribunal
22.7 Formation of the Arbitral Tribunal
Commencement of the Proceedings
22.8 Commencement of the Proceedings
Language of the Proceedings
22.9 Language of the Proceedings
Preliminary Issues
22.10 Preliminary Issues – Bifurcation
Kompetenz-Kompetenz
22.11 Decision on Arbitral Jurisdiction : Kompetenz-Kompetenz
22.12 Connection with Non-Arbitrable Disputes
22.13 Defenses Based on an Other Relationship – Set Offs
22.14 Duty of Good Faith and Loyalty
22.15 Counterclaims
22.16 Lis Pendens between Arbitral and Court Proceedings
22.17 Multi Fora Disputes
22.18 Dilatory Tactics
Terms of Reference
22.19 Nature and Limits of the Terms of Reference
Case Management
22.20 Pre-Trial Conference versus Order for Directions – Case Management
Timetable of the Proceedings
22.21 Timetable of the Proceedings
The Role of the Arbitrator
22.22 The Arbitrator’s Duty to Assist
22.23 The Role of the Chairman of the Arbitral Tribunal
22.24 Decision on Ex-Officio Issues
22.25 Minutes of Meetings
Progress of the Proceedings
22.26 Exchange of Pleadings
22.27 Deadlines
22.28 Amended Claims and New Claims
22.29 Issue Estoppel
22.30 Promissory Estoppel
INTERLOCUTORY INJUNCTIONS
Chapter 23: Interlocutory Injunctions
Domestic Arbitration
23.1 In Domestic Arbitration
23.2 Authority under the Applicable Procedural Law
International Arbitration
23.3 In International Arbitration
Distinctions
23.4 Distinctions between Holding Measures and Interlocutory Injunctions
23.5 Interlocutory Injunctions in the Form of Awards
23.6 Judicial and Arbitral Precedents
Standards
23.7 Standards for the Issue of Interlocutory Injunctions
Enforcement
23.8 Court Enforcement of Arbitral Injunctions
Anti-Suit Injunctions
23.9 Anti-Suit Injunctions
Interferences
23.10 Interferences between Court Proceedings and Arbitral Interim Injunctions
23.11 Arbitrator’s Authority to Vacate Injunction Granted by State Court
Pre-Arbitral Referee
23.12 Pre-Arbitral Referee
Wrongful Injunction
23.13 Damages for Wrongful Injunction
Payment Orders
23.14 Payment Orders During the Proceedings
23.15 Conclusions
THE EVIDENTIARY STAGE
CHAPTER 24: THE EVIDENTIARY STAGE
The Burden of Proof
24.1 The Burden and Standard of Proof
Admissibility of Evidence
24.2 Admissibility of Evidence – Substantive or Procedural Issue
Need for a Leave
24.3 Leave to Call Oral Evidence
The Taking of Evidence
24.4 The Taking of Evidence
24.5 Pre-trial Evidence (Depositions and Interrogatories)
24.6 Publicity of Hearings
24.7 Recording of Hearings
Documentary Evidence
24.8 Discovery of Documentary Evidence
24.9 E-Evidence
24.10 Assistance by Foreign and International Tribunals in Obtaining Evidence
Oral Evidence
24.11 Evidence by Witnesses
24.12 Witness Statements/Affidavits
24.13 Consequences of False Testimony
24.14 Tandem Witness Examination
24.15 Evidence by the Parties
24.16 Applications to the Courts for Assistance in the Taking of Evidence
24.17 Rules of Conduct
24.18 Sanctions
24.19 Witness Coaching
Experts
24.20 Experts
24.21 The Arbitrator’s Duty to Assist the Process
Presumptions
24.22 Presumptions
24.23 Personal Knowledge of the Arbitrator and Judicial Notice
Site Visits
24.24 Site Visits
Time Bars and Non-Mandatory Terms
24.25 Time Bars and Non-Mandatory Terms
Demonstrative Evidence
24.26 Demonstrative Evidence
Sanctions
24.27 Adverse Inferences
24.28 Other Sanctions
Fresh Evidence
24.29 Fresh Evidence
Closing of the Evidentiary Stage
24.30 Closing of the Evidentiary Stage
No Strict Rules of Evidence
24.31 Arbitrators Dispensed with Compliance with Strict Rules of Evidence
Need for Standard Rules of Evidence
24.32 Need for International Standard Rules of Evidence
CHAPTER 25: THE LAST PLEADINGS AND ORAL ARGUMENT
Appreciation of the Evidence
25.1 Appreciation of the Evidence and Amendments to Claims and Defences
Final Addresses
25.2 The Final Addresses
25.3 The Post Evidentiary Brief and the Rebuttal
25.4 The Last Word
Review by the Tribunal – Possible Reopening of the Case
25.5 Review by the Tribunal of the Status of the Proceedings – Reopening of the Case
CHAPTER 26: SPEED AND EFFICIENCY IN ARBITRATION
Delays
26.1 Delays During the Proceedings
Speed v. Quality
26.2 Speed and Quality
26.3 Due Speed
26.4 Accelerated Arbitration
26.5 Fast Track Arbitration
26.6 The Miracle: Two Weeks
26.7 A Really Fast Track Arbitration
26.8 Emergency Arbitration
Arbitration On-Line
26.9 Arbitration On-Line
Adjudication
26.10 Adjudication
PROCEDURAL DUE PROCESS
CHAPTER 27: BREACH OF DUE PROCESS
Notion
27.1 Notion of Due Process
27.2 Due Process and Contempt of Court
Various Breaches
27.3 Equal Treatment in Regard to the Appointment of Arbitrators
27.4 Bias of Lack of Independence
27.5 Term to Appear
27.6 Time Limits to File Pleadings
27.7 Disclosure of Documents
27.8 Right to Call and to Examine Witnesses
27.9 A Reasonable Opportunity to Present One’s Case and to Oppose the Case of the Opposite Party: “L’Egalité des Armes”
27.10 Right to Comment on the Arbitrator’s Possible New Approach to the Dispute
27.11 Parties’ Right to Representation by Counsel
27.12 Other Breaches of Due Process
27.13 Due Process in Default Proceedings
Public Policy
27.14 Breach of Public Policy
27.15 Public Policy, Human Rights and Due Process
The Concealed Enemies
27.16 Concealed Enemies of Due Process
Denial of Justice
27.17 Denial of Justice
THE AWARD
Final, Partial and Interim Awards
28.1 Possibility of Interim Awards – Provisional Remedies
28.2 Interim Awards and Orders
28.3 Final Award
28.4 Finality of Interim Awards
28.5 Award by Consent of the Parties
Duty to Decide
28.6 Duty to Decide
28.7 Delegation by the Arbitrators of Their Authority to Decide
28.8 To Do Substantial Justice and Not to Split the Baby
28.9 Questions and Propositions on Which the Award Does Not Have to Decide
28.10 Lack of Signature by All the Arbitrators
28.11 Discussion and Decision
28.12 Truncated Tribunal
28.13 Decision by a Majority or Casting Vote
28.14 Judicial Discretion
28.15 Decision on Issue Not Argued by the Parties
28.16 Remit to the Arbitrator
28.17 Dissenting Opinions
28.18 Inertia of the Parties
Content of the Award
28.19 Content of the Award
28.20 Reasons of the Award
28.21 Obiter Dicta
Available Remedies
28.22 Available Reliefs (Monetary, Declaratory, Injunctive, Specific Performance, Penalties)
28.23 Other Sanctions
Sanctity of Deliberation Chambers
28.24 Sanctity of Deliberation Chambers or Power of State Courts to Invade Them
Place Where the Award is made
28.25 Place Where the Award Is Made
28.26 Confidentiality in Arbitration
28.27 Scrutiny of the Draft Award by the Arbitral Institution
Effects of the Award
28.28 Effects of the Award – Res Judicata
Time Limit to Decide
28.29 Time Limit for the Award
28.30 Binding Effect of Precedents – Stare Decisis
Publication of the Award
28.31 Publication of the Award
Post Award Arbitral Proceedings
28.32 Arbitral Post Award Proceedings: Correction Interpretation and Additional Award versus Court Post Award Proceedings
28.33 The Five Basic Post Award Avenues
Chapter 29: Costs Interest and Higher Damages
Costs of the Proceedings
29.1 Costs of the Proceedings
29.1.1 Arbitrators’ Fees
29.1.2 The Arbitrator’s Expenses
29.1.3 Joint Liability of the Parties
29.1.4 Advances
29.1.5 Other Expenses of the Arbitral Proceedings
29.1.6 Administrative Dues of the Arbitral Institution
29.1.7 Witnesses Expenses and Per Diem
29.1.8 Security for Costs
29.1.9 Costs Follow the Event
Interest
29.2 Interest
29.2.1 Pre Award and Post Award Interest
Further Damages
29.3 Further Damages
29.4 Punitive Damages – Treble Damages
29.4.1 Punitive Damages
29.4.2 Treble Damages
Extra Costs
29.5 Extra Costs for Inappropriate Conduct
CHAPTER 30: FILING AND NOTIFICATION OF THE AWARD
Filing
30.1 Filing with the Arbitral Institution and Delivery of the Award
30.2 Filing of the Award with a State Court or Governmental Agency
30.3 Notification of the Award to the Parties
30.4 Prohibition to the Arbitrators to Deliver Directly to the Parties
Non Filing
30.5 Effects of a Refusal to File
CHALLENGES OF AWARDS
CHAPTER 31: CHALLENGES OF AWARDS
General Framework
31.1 General Framework
Classes of Challenges
31.2 Classes of Challenges
31.3 Challenge of an Award Made Ex Aequo et Bono or as an Amiable Compositeur
31.4 The Challenges in the International Conventions
Grounds for Challenges
31.5 Grounds for Challenges
31.6 Frivolous Claims or Defences
Extension by Contract of Judicial Review
31.7 Extension by Contract of Judicial Review
Waiver to Challenges
31.8 Prior Waiver to Challenges – Effects
31.9 Waiver by Conduct During Arbitral Proceedings
Jurisdiction on Challenges
31.10 Jurisdiction on Challenges
31.11 Challenges outside the State of Origin
31.12 Challenges against the First Instance Award (While the Appellate Arbitral Proceeding Are Pending)
31.13 Anti-Suit Injunctions against Actions to Vacate
31.14 Review of Decision Made by the State Court on the Challenge of an Award
Law Applicable to Challenges
31.15 Law Applicable to Challenges
Remedies
31.16 Remedies Available before National Courts
31.17 Challenges before Another Arbitration
31.18 Correction and Interpretation of Awards
31.19 Court Precedents
31.20 Not Setting Aside if Arbitrator Has Chosen amongst Available Remedies
31.21 Setting Aside for Dénaturation (Manifest Disregard) of Contractual Documents
CHAPTER 32: FULL DE NOVO REVIEW BEFORE NEW ARBITRAL TRIBUNAL
The Various Views
32.1 Hostility to Any Review of the Merits
32.2 Weakness of This Position
32.3 Challenges before State Courts or before a Second degree Arbitrator?
The Washington Convention
32.4 The Washington Convention – Ad Hoc Committee
Commodities Arbitration
32.5 Commodities Arbitration
32.6 Full De Novo Reconsideration
The European Court of Arbitration
32.7 The European Court of Arbitration Solution
32.8 Condition for Leave to Appeal
The CPR Rules
32.9 The CPR Rules
Sports Arbitration
32.10 Sports Arbitration
The Arbitration Chambers of Paris
32.11 The Arbitration Chambers of Paris
Coordination between the Various Challenges
32.12 Coordination between the Various Challenges to State Courts against the First Instance Award, Appellate Arbitral Proceedings and Challenges against the Latter
Other Supervising Bodies?
32.13 ICSID and European Court of Human Rights as Supervising Bodies
ENFORCEMENT OF AWARDS
CHAPTER 33: ENFORCEMENT IN THE STATE OF ORIGIN
An Enforceable Instrument
33.1 Obtaining the Effects of an Enforceable Instrument
Enforcement Proceedings
33.2 Enforcement Proceedings
33.3 Does Rejection of Claims to Set Aside Equal Leave to Enforce?
33.4 Partial Enforcement
33.5 Stay of Enforcement
Time Bar
33.6 Time Bar for Starting Enforcement Proceedings
Oppositions to Enforcement
33.7 Oppositions to Enforcement
33.8 State Immunity from Enforcement
33.9 Refusal of Leave to Enforce Local Award for Non-Compliance with Municipal Procedural Law
CHAPTER 34: ENFORCEMENT AND RECOGNITION IN OTHER STATES
Pro-Enforcement Tendency
34.1 Pro-Enforcement Tendency
Forum Shopping
34.2 No Uniform Procedural Rules for the Enforcement of Awards in the Various Jurisdictions
34.3 Nature of the Enforcement Order: A Step of the Enforcement Proceedings?
Forum Shopping
34.4 Forum Shopping
34.5 Forum Selection
34.6 Enforcement in the Absence of International Conventions
34.7 Enforcement under International Conventions
34.8 Enforcement Not Sought under International Conventions
34.9 Enforcement in Various States
Distinction between Recognition and Enforcement
34.10 Distinction between Recognition and Enforcement
Enforcement
34.11 Enforcement of the Interim Award
34.12 Enforcement of Part of the Award
34.13 Enforcement of Conflicting Decisions
34.14 Enforcement of Judgment Entered on an Award
34.15 Counterclaims and Set Offs in Recognition Proceedings
34.16 Time Bar for Enforcement
34.17 Time Limit to Enforce the Award
Opposition to Enforcement
34.18 Opposition to Enforcement
34.19 Stay of Enforcement
Recognition Proceedings
34.20 Recognition as a Counterclaim or as a Defence
Preventive Proceedings
34.21 Preventive Independent Proceedings to Establish That a Foreign Award May Not Be Recognised
Enforcement of a Set-Aside Award
34.22 Autonomy of Enforcement Proceedings from Setting Aside Proceedings
34.23 Enforcement of a Set-Aside Award
State Immunity
34.24 State Immunity from Enforcement
CHAPTER 35: RECOGNITION AND ENFORCEMENT UNDER THE NEW YORK CONVENTION
Field of Application
35.1 Field of Application
35.2 Deference to Arbitration Agreement
35.2.1 Special Meaning of Recognition
Form Requirements
35.2.2 Agreement in Writing
Contents of the Arbitration Agreement
35.2.3 Contents of the Arbitration Agreement
State Court Referral
35.2.4 State Court Referral of Dispute to Arbitration
35.3 Interim Awards
Recognition and Enforcement of Awards
35.4 Recognition and Enforcement of Awards
35.4.1 Documents to Be Filed When Applying for Leave to Enforce
35.4.2 Enforcement Only in Part
Grounds for Refusal to Enforce
35.5 Grounds for Refusal
35.5.1 Grounds to Be Raised by the Opposite Party
35.5.2 Grounds for Refusal on the Court’s Motion
Stay of Enforcement
35.6 Stay of Enforcement
Enforcement Procedure
35.7 Enforcement Procedure
Part II
SPECIAL ARBITRAL PROCEEDINGS
CHAPTER 36: INTERNATIONAL PUBLIC LAW ARBITRATION
Main Features
36.1 Arbitration and International Public Law Disputes
36.2 Historical Development of International Public Law Arbitration
Permanent Court of Arbitration
36.3 Permanent Court of Arbitration
36.4 A New Role for the Permanent Court of Arbitration
International Court of Justice
36.5 The International Court of Justice
Tribunal for the Law of the Sea
36.6 The International Tribunal for the Law of the Sea
The GATT
36.7 Settlement of International Trade Disputes (GATT and World Trade Organisation)
36.8 Main Features of International Public Law Arbitration
Arbitration between States and Individuals
36.9 Arbitration between States and Individuals
Other Public International Disputes
36.10 Settlement of Other Public International Disputes
The Brussels Convention
37.1 The Brussels Convention
37.1.1 The Exclusion of Arbitration from the Brussels Rules
The Ambit of the Arbitration Exception
37.1.2 Referral by Arbitrators of Preliminary Issues to the European Court of Justice
37.1.3 The European Court of Justice as Arbitrator
EC Competition Law and Arbitration
37.2 EC Competition Law and Arbitration
37.2.1 Disputes Capable of Arbitration
37.2.2 Foreign Applicable Substantive Law and EU Competition Law
37.2.3 The Strict Approach
37.2.4 A More Recent Approach
37.2.5 Public Policy Nature of Articles 85-86 Rome Treaty
37.2.6 Applicability of EC Law by the Arbitral Tribunal of Its Own Initiative
37.2.7 Arbitral Precedents
37.2.8 Court Precedents
Consumers Protection
37.3 Directive 93/13 EC, Consumers’ Protection and Arbitration
The Convention on Human Rights
37.4 The Influence of the European Convention on Human Rights
CHAPTER 38: UNCITRAL ARBITRATION
UNCITRAL’s Achievements
38.1 UNCITRAL’s Achievements in the Field of Arbitration
The New York Convention
38.2 The New York Convention
The UNCITRAL Arbitration Rules
38.3 The UNCITRAL Arbitration Rules
The UNCITRAL Model Law
38.4 The UNCITRAL Model Law
The UNCITRAL Guidelines
38.5 The UNCITRAL Guidelines
CHAPTER 39: INVESTOR STATE ARBITRATION
(THE WASHINGTON CONVENTION)
I. INTRODUCTION
Investment Arbitration Distinguished from Commercial Arbitration
39.1 Difference between Investment and Commercial Arbitration
39.2 Mutual Advantages and Justified Concerns
39.3 A Variety of Barriers
39.4 Previous Formulae
39.5 Earlier Investment Conventions
39.6 Modern Foreign Investment Law
39.7 The Role of Investment Arbitration
ICSID Arbitration
II. ICSID ARBITRATION
Procedural Law
II.1 PROCEDURAL LAW
Applicable Law
39.8 Disputes Governed Only by the Domestic Investment Law of the Host State
39.9 Disputes under a BIT
39.10 ICSID Arbitration
The ICSID Additional Facility Rules
39.11 The ICSID Additional Facility Rules
Consent
39.12 Consent to Arbitration
Notion of Investment
39.13 The Notion of Investment
Nationality of the Investor
39.14 Nationality of the Investor
39.15 Shareholders behind the Investment Vehicle
39.16 Previous Exhaustion of Local Remedies
39.17 Alternative or Exclusive Fora
The Fork in the Road
39.18 The Fork in the Road
39.19 The Waiver
Treaty Claims and Contract Claims
39.20 Treaty Claims and Contract Claims
39.21 Consolidation of Proceedings
39.22 Interim Measures
Procedural Rules
39.23 Procedural Rules and Evidence
Substantive Law
II.2 SUBSTANTIVE LAW
39.24 Disputes under a BIT
39.25 Contract Terms and Rules of Law
39.26 The Investment Treaty
39.27 The Law of the Host State
39.28 Public International Law
39.29 The Relationships between Host State Law and Public International Law
Foreign Investor’s Substantive Rights
II.3 FOREIGN INVESTOR’S SUBSTANTIVE RIGHTS
No Discrimination
39.30 No Discrimination
39.31 National Treatment
No Less Favourable Treatment
39.32 No Less Favourable Treatment
39.33 Discriminatory Intent
Most Favoured Nation
39.34 Most Favoured Nation
39.35 Substantive and Procedural Rights
39.36 Arbitrary or Discriminatory Measures
Protection against Expropriation
39.37 Protection against Expropriation
39.38 Indirect Expropriations
39.39 Breach by the Host State of Its Representations
39.40 Effects of the Duration of the Measure
39.41 Transfer of the Property
Fair and Equitable Treatment
39.42 Fair and Equitable Treatment
39.43 Protection and Security
Umbrella Clauses
39.44 Umbrella Clauses
Available Remedies
II.4 AVAILABLE REMEDIES
Setting Aside Proceedings
II.5 SETTING ASIDE PROCEEDINGS
39.45 Setting Aside of Investment Awards
39.46 ICSID Awards
39.47 Other Investment Awards
39.48 Substantial Non Compliance with Rules of Procedure – Excess of Authority
39.49 Public Policy
Errors of Law and Errors of Fact
39.50 Errors of Law and Errors of Fact
39.51 Exclusions and Extensions of the Grounds for Challenge
Enforcement
II.6 ENFORCEMENT OF INVESTMENT AWARDS
39.52 The Exequatur
39.53 Immunity from Execution
39.54 Stay of Enforcement of the First Instance Award
Investment under Other Multilateral Treaties
III. INVESTMENT UNDER OTHER MULTILATERAL TREATIES
NAFTA
39.55 The North American Free Trade Agreement (NAFTA)
The Lomé Conventions
39.56 The Lomé Conventions
Mercosur
39.57 Mercosur
ASEAN Investment Agreement
39.58 The ASEAN Investment Agreement
Energy Charter Treaty
39.59 Energy Charter Treaty
DR-CAFTA Free Trade Agreement
39.60 The DR-CAFTA Free Trade Agreement
World Trade Organisation
39.61 World Trade Organisation
European Development Fund Rules
39.62 European Development Fund Rules
Prospects on the Future of Investment Arbitration
IV. PROSPECTS ON THE FUTURE OF INVESTMENT ARBITRATION
39.63 To Rationalize the Need for Consent
39.64 No More Than Two Degrees
39.65 A Full De Novo Review
39.66 Treaty Claims and Contract Claims
39.67 How to Reduce the Risk of Opposite Construction of Treaties
39.68 A Shorted Duration
CHAPTER 40: ARBITRATION OF COMMERCIAL DISPUTES BETWEEN A STATE AND A PRIVATE PARTY
Different Classes of Disputes
40.1 Different Classes of Disputes
Different National Regimes
40.2 Different National Regimes
40.3 Arbitration Involving States and State Entities
Criticism of the Role of International Arbitral Tribunals
40.4 International Arbitral Tribunals Alleged to Be Instruments of a Western Policy Detrimental to Developing Countries
40.5 A Response
40.6 Temptations to Be Resisted
CHAPTER 41: ARBITRATION UNDER THE ALGIERS DECLARATIONS (THE IRAN-U.S. CLAIMS TRIBUNAL)
Origin
41.1 Origin of the Declarations – Contents
41.2 Form of the Declarations
Nature of the Tribunal
41.3 Arbitral or Non-Arbitral Nature of the Tribunal
The Two Roles of the Tribunal
41.4 The Two Roles of the Tribunal
Jurisdiction
41.5 Jurisdiction of the Tribunal
Substantive and Procedural Laws
41.6 Applicable Substantive and Procedural Laws
CHAPTER 42: COMMODITY ARBITRATION
The Origin
42.1 The Origin of Commodity Arbitration
The Rules
42.2 The Commodity Arbitration Rules
CHAPTER 43: THE SPORTS ARBITRAL TRIBUNAL
43.1 The Practice of Sport
43.2 Sport Organisations
43.3 The Olympic Games
43.4 The Relationship between the Athlete and a Sport Organisation
43.5 The Freedom to Join an Association
43.6 The Licence
43.7 Is There a Sports Legal Order?
43.8 The Settlement of Sport Disputes
43.9 National Alternatives : Arbitration Bodies
43.10 Consent as the Basis of Arbitration
43.11 Law Applicable to Form and Consent
43.12 Form Requirements
43.13 Consent to Arbitration
43.14 Implications of the Athlete’s Claim to an Arbitral Tribunal
43.15 Arbitrability
43.16 Disputes Related to Sport
43.17 Public Policy
43.18 The Court of Arbitration for Sport
43.19 The Basketball Arbitral Tribunal (BAT)
CHAPTER 44: ONLINE DISPUTE RESOLUTION
Internet – The Dramatic Change
44.1 Dramatic Change Due to Information Technology
44.2 Old World and New (Virtual) World Arbitration
44.3 The Use of Internet
Very Largely Technology Assisted Dispute Resolution
44.4 Very Largely Technology Assisted Dispute Resolution
Fully Technology –Based Dispute Resolution
44.5 Fully Technology – Based Dispute Resolution
Automated Negotiations
Multivariable Resolution Optimization Programs
Solution Sets Databases
Electronic Virtual Judge
Online Dispute Prevention
44.6 Online Dispute Prevention
Trust Mark Seals
I-Escrow Guarantees
Credit Card Change Back
Online Arbitration Providers
44.7 Online Arbitration Providers
44.8 Internet Websites
44.9 Various Online Dispute Resolution Mechanisms
Retail E-Commerce Online Arbitration
44.10 Retail E-Commerce Online Arbitration
The Legal Obstacles
44.11 The Legal Obstacles to Online Arbitration
Obstacles Related to the Arbitration Agreement
Obstacles Related to the Proceedings
Obstacles Related to the Award
Applicable Substantive and Procedural Law
Place Where Contracts Online –Made
44.12 Where Contracts on Internet Are Made?
Still a Distinction and International Online Arbitration ?
44.13 Still a Distinction and International Online Arbitration?
The Proceedings
44.14 The Proceedings in Technology-Assisted Online Arbitration
E-discovery
44.15 E-discovery
Differences from Paper Production
E-Discovery Rules
U.S. E-Discovery
Early Discovery Plans and Actions
Sanctions for Destruction or Spoliation
E-Discovery in Arbitration
The Uniform Domain Name Dispute Resolution Process
44.16 The Uniform Domain Name Dispute Resolution Process
Balance between the Human Factor and Electronic Documents
44.17 A Balance between the Human Factor and Electronic Documents
CHAPTER 45: OBSTACLES TO OVERCOME
A Panel or a Sole Arbitrator
45.1 A Panel Instead of a Sole Arbitrator
The Tronc Commun versus Conflicts Rules
45.2 Artificial Conflicts Rules to Be Replaced by the Tronc Commun
Lack of Rules of Evidence before Submittal to Arbitration
45.3 Lack of Rules of Evidence before Submittal to Arbitration
Court Interference
45.4 Court Interference
Lack of Constructive Dialogue
45.5 Lack of Constructive Dialogue
Too Many Special Arbitration Laws
45.6 Too Many Special Arbitration Laws
Favor and Sfavor Arbitratus
45.7 Favor and Sfavor Arbitratus
Insufficient Use of Documents-Only and of Online Arbitration
45.8 Insufficient Use of Documents-Only and of Online Arbitration
More Care in Awarding Costs in Arbitration
45.9 More Care in Awarding Costs in Arbitration
Prejudging
45.10 Prejudging
Formal versus Absolute Truth
45.11 Formal versus Absolute Truth
CHAPTER 46: THE CONTINUAL SEARCH FOR IMPROVEMENTS
Lessons from the Past and the Present
46.1 Lessons from the Past and the Present
No Luxury Clinic
46.2 No Luxury Clinic
Excessive Formalism
46.3 Excessive Formalism
Which Justice Does an Honest Man Expect?
46.4 Which Justice Does an Honest Man Expect from the Arbitrator?
The Mission of the Arbitrator
46.5 The Mission of the Arbitrator
Reduction of Challenges
46.6 Reduction of Challenges
A Sole Arbitrator and Not a Panel
46.7 A Sole Arbitrator and Not a Panel
A Much Shorter Duration
46.8 A Much Shorter Duration of the Proceedings
Full De Novo Review by an Appellate Arbitration Panel
46.9 Full De Novo Review by an Appellate Arbitration Panel
One Supra-National Court of Arbitration
46.10 One Supra-National Court of Arbitration and an Immediately Enforceable Appellate Transnational Award
Basic Choices in the Arbitration Agreement
46.11 Basic Choices in the Arbitration Agreement
Third Generation Arbitration
46.12 Third Generation Arbitration
Arbitration to be Different and Better than Court Proceedings
46.13 Arbitration to Be Different and Better than Court Proceedings
Continuous Search for Improvements
46.14 Continuous Search for Improvements