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International commercial arbitration relies extensively on the possibility of enforcing arbitral decisions against recalcitrant parties. Because courts and arbitration laws across the world take contrasting approaches to the definition of awards, such enforcement can be problematic, especially in the context of awards by consent, and the recent development known as ‘emergency arbitration’. In this timely and ground-breaking book, a young arbitration scholar takes us through the difficulties of defining the notion of arbitral award with a rare combination of theoretical awareness and attention to the procedural requirements of arbitral practice. In a framework using a comparative analysis of common law and civil law jurisdictions (specifically, England and France) and how each has regulated in different ways the equilibria between state justice and arbitral justice – and comparing each with the UNCITRAL Model Law – the book addresses such issues as the following: - the ‘judicialization’ of arbitration; - different models of arbitral adjudication and their impact on the notion of award; - what an award needs to contain to be enforceable; - awards on competence; - awards by consent; and - awards ante causam. The author employs a methodology that views arbitration as providing an institution for administering justice rather than as a purely contractual creature. To this end, rules of arbitral institutions (particularly the International Chamber of Commerce) are examined closely for their implications on what an award means. As a fresh look at the arbitral award by placing it in a broader context than is usually found, this book allows for a greater understanding of the functioning of international commercial arbitration. It is sure to become an international reference, and as such will be welcomed by arbitrators, practitioners at global law firms, companies doing transnational business, interested academics, and international arbitration centres in emerging markets.
After neutrality and international enforcement, the next most valued feature of international commercial arbitration is confidentiality. For reasons easy to imagine, businessmen do not want their trade secrets, business plans, strategies, contracts, financial results or any other types of business information to be publicly accessible, as would commonly happen in court proceedings. Yet the case law of arbitration shows that in practical terms confidentiality is not to be taken for granted - in fact, it has become one of the most undetermined matters in international arbitration. Although 'the emperor of arbitration may have clothes, ' as one scholar has quipped, his raiments of secrecy can be 'torn with surprising ease'. This book deciphers the current degree of confidentiality in international commercial arbitration as reflected by the most important arbitration rules, national laws, other arbitration-related enactments, and practices of arbitral tribunals and domestic courts globally. Drawing on this data and analysis, the author then sets forth criteria to assess the breach of confidentiality in international arbitration and the proper rules for protecting or sanctioning such breaches. What do we understand by confidentiality in arbitration? What are its limitations? Who is bound to observe it? How can we quantify its breach? In addressing these questions, the book engages such issues as the following: reasons for disclosure - e.g., for the establishment of a defence, for the enforcement of rights, in the public interest or in the interests of justice disclosure by consent, express or implied; circumstances triggering statutory obligation of disclosure; recent trends towards greater transparency in investor-State arbitration; court measures in support of arbitral confidentiality such as award of damages for breach of confidentiality; and categories of persons bound by confidentiality, including third parties such as witnesses and experts. Structured along the main stages of the arbitral process, the analysis covers the duty of confidentiality from the initiation of arbitral proceedings through their unfolding to the issuance of the award and after. The scope of confidentiality is reviewed in the practice of arbitral tribunals and domestic courts, and from the perspective of international arbitration institutions, with detailed attention to various arbitration rules and numerous significant cases. In its elucidation of the amount of confidentiality that 'veils' each phase of the arbitral process, and its ground-breaking identification of 'patterns of disclosure', this book is sure to raise awareness about the various facets and problems posed by confidentiality in arbitration. Although its scholarly contribution to the law of international commercial arbitration cannot be gainsaid, corporate counsel worldwide will quickly prize its more practical value.
The rise of international investment arbitration has resulted in the emergence of a number of intriguing legal and political challenges. One of those is the question of whether or not arbitral awards may constitute investments pursuant to existing investment treaties. In approaching the problem, it is the interconnection between theory and practice that delivers solutions. This book presents the first detailed analysis of the existing tribunals’ approaches to date. In examining the principles of treaty interpretation, their application in arbitral practice, shortcomings and their ramifications and possible routes to improvement, the book addresses the following questions: - What is the foundation of interpretation in public international law and when is it adequately carried out? - Can arbitral awards constitute investments, offering relief from frustrated enforcement attempts? - Is there a trend of convergence of commercial and investment arbitration? - Do respective interpretative outcomes stem from adequate interpretation? - What are the ramifications, if interpretation is not fully adequate? - What are the feasible routes to greater interpretive discipline? The book is mindful of the underlying public international law principles, such as state sovereignty and the increasing legal and political dynamics of international investment law. This is the first in-depth treatise on arbitral awards’ qualification as investments within international investment law. Its detailed analysis of the interpretive approaches, their foundation and consequences will, from a theoretical and practical point of view, prove of great value to international tribunals, counsel and sovereign entities. Maximilian Clasmeier has gained international arbitration experience in the dispute resolution practices of international law firms in Frankfurt, Düsseldorf and Singapore and worked for the World Bank Group in Washington, D.C.
The analysis thoroughly covers the major issues that have arisen in the application of the Convention, including the following: - the use of reservations made by Contracting States; - the distinctions between recognition and enforcement and between recognition sought at the seat of the arbitration and outside the seat; - the role of the courts in reviewing arbitral awards and, in particular, the Convention's focus on safeguarding due process standards; - the more favourable rightsA" principle embodied in Article VII(1); - the relevance of forum shopping and asset spotting to the application of the Convention; and - the role of formalities and formalism. The end result is an invaluable work that will prove enormously useful to all international commercial arbitration practitioners and scholars, regardless of location.
"For the past twenty years, international commercial arbitration scholarship has mainly focusedon the private dimension of international arbitration. Part of a greater movement toward theprivatization of justice and law, this understanding of the discipline has obscured arbitrators'adjudicative role. By reflecting on different adjudicative models and by analyzing the form andcontent of arbitral decisions, new light can be shed on our understanding of internationalcommercial arbitration." --
This indispensable book offers a concise comparative introduction to international commercial arbitration (ICA). With reference to recent case law from leading jurisdictions and up-to-date rules revisions, International Commercial Arbitration offers a thorough overview of the issues raised in arbitration, from the time of drafting of the arbitration clause to the rendering of the arbitral award and the post-award stage.
This treatise describes the practice of international commercial arbitration with reference to the major international treaties and instruments, arbitration rules and national laws. It provides an analysis of the interaction between party autonomy and arbitration practice.
In intemational arbitration, as in any other system of adjudication, finality of the decision must be balanced against the need to ensure that justice has been administered fairly. Because finality is one of its essential features, international arbitration has reached an equilibrium which guarantees to the parties a decision that cannot be appealed, while allowing a review of arbitral awards on limited grounds. The review of international arbitral awards was the topic of the inaugural IAI forum, on the occasion of which 50 prominent academics, judges, arbitrators and practitioners active in the field of international arbitration convened in the legendary Clos de Vougeot, in the heart of Burgundy for a two-day retreat. The presentations were followed by extensive discussion, the transcript of which is included in the present volume. The International Arbitration Institute (IAI) was established in Paris with the purpose of promoting communication and exchanges on current international arbitration issues. It now includes over 600 members residing in 44 countries. For further detail, see www.iaiparis.com.
International Commercial Arbitration in New York focuses on the distinctive aspects of international arbitration in New York. Serving as an essential strategic guide, this book allows practitioners to represent clients more effectively in cases where New York is implicated as either the place of arbitration or evidence or assets are located in New York. Each chapter elucidates a vital topic, including the existing New York legal landscape, drafting considerations for clauses designating New York as the place of arbitration, and material and advice on selecting arbitrators. The book also covers a series of topics at the intersection of arbitral process and the New York courts, including jurisdiction, enforcing arbitration agreements, and obtaining preliminary relief and discovery. Class action arbitration, challenging and enforcing arbitral awards, and biographical materials on New York-based international arbitrators is also included, making this a comprehensive, valuable resource for practitioners.
The specialization and financial demand of global business render international transactions inherently multilateral and thus best effected through arbitration agreements. However, it often happens that – for various reasons, such as a debtor’s failure to pay damages ordered by an arbitral tribunal – third parties who did not consent to the original arbitration enter the scene. This is the first book to examine the binding effects of international commercial arbitral awards in follow-up disputes against third parties. It comprehensively analyses arbitral awards’ third-party effects under national arbitration laws, the New York Convention and private international law. Moreover, it proposes solutions under transnational law before both courts and arbitral tribunals. Applying a continuously comparative methodology that refers to specific statutory, jurisprudential and scholarly sources, this book explores the nature and implications of such aspects of third-party involvement as the following: the foundations of the doctrine of res judicata and its intrinsic connection to other tools of forum coordination; the distinction between res judicata before courts on the one hand and arbitral tribunals on the other; the application of non-mutual preclusion in favour of third parties; the potential for arbitral awards to constitute a fact in follow-up disputes; a comparison of rules and uncertainties on awards’ third-party effects under various national arbitration acts; preclusion agreements; the arbitration agreement’s scope; and judgments’ third-party effects as a shift of the participatory burden. For civil law, the author focuses on France and Switzerland (as predominant arbitral seats) and on Germany (as a Model Law example). Among common-law countries, he concentrates on England and Wales and on the United States. Statutory sources (with specific wording), leading cases and summaries of the most important scholarly discussions are all invoked. With its clear guidelines for matters currently not addressed in previous publications and likely to be raised in specific cases, this book will prove to be of immeasurable value for arbitration practitioners and academics in any jurisdiction. Business parties that seek to prevent contradicting decisions in multilateral transactions will appreciate the practically feasible alternatives it presents in the event of follow-up disputes involving third parties.