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Introduction
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International Commercial This treatise aspires to provide a comprehensive description and analysis of the contemporary
Arbitration (Second Edition) constitutional structure, law, practice and policy of international commercial arbitration. It
also endeavors to identify prescriptive solutions for the conceptual and practical challenges
that confront the international arbitral process. In so doing, the treatise focuses on the law and
practice of international commercial arbitration in the world’s leading arbitral centers and on
Bibliographic reference the constitutional principles and legal frameworks established by the world’s leading
'Introduction', in Gary B. international arbitration conventions, legislation and institutional rules.
Born , International International arbitration warrants attention, if for nothing else, because of its historic,
Commercial Arbitration contemporary and future practical importance, particularly in business affairs. For centuries,
(Second Edition), 2nd edition arbitration has been a preferred means for resolving transnational commercial disputes, as
(© Kluwer Law International; well as other important categories of international disputes. (1) The preference which
Kluwer Law International businesses have demonstrated for arbitration, as a means for resolving their international
2014) pp. 1 - 5 disputes, has become even more pronounced in the past several decades, as international
trade and investment have burgeoned. As international commerce has expanded and become
more complex, so too has its primary dispute resolution mechanism – international
arbitration. (2) The practical importance of international commercial arbitration is one reason
that the subject warrants study by companies, lawyers, arbitrators, judges and legislators.
At a more fundamental level, international commercial arbitration merits study because it
illustrates the complexities and uncertainties of contemporary international society – legal,
commercial and cultural – while providing a highly sophisticated and effective means of
dealing with those complexities. Beyond its immediate practical importance, international
arbitration is worthy of attention because it operates within a framework of international legal
rules and institutions which – with remarkable and enduring success – provide a fair, neutral,
expert and efficient means of resolving difficult and contentious transnational problems. That
framework enables private and public actors from diverse jurisdictions to cooperatively
resolve deep-seated and complex international disputes in a neutral, durable and satisfactory
manner. At their best, the analyses and mechanisms which have been developed in the context
of international commercial arbitration offer models, insights and promise for other aspects of
international affairs.
The legal rules and institutions relevant to international commercial arbitration have evolved
over time, in multiple and diverse countries and settings. As a rule, where totalitarian regimes
or tyrants have held sway, arbitration – like other expressions of private autonomy and
association – has been repressed or prohibited; where societies are free, both politically and
economically, arbitration has flourished.
P1
P2 Despite periodic episodes of political hostility, the past half-century has witnessed the
progressive development and expansion of the legal framework for international commercial
arbitration, almost always through the collaborative efforts of public and private actors. While
the latter have supplied the driving and dominant force for the successful development and
use of international commercial arbitration, governments and courts from leading trading
nations have contributed materially, by ensuring the recognition and enforceability of private
arbitration agreements and arbitral awards, and by affirming principles of party autonomy and
judicial non-interference in the arbitral process.
In recent decades, the resulting legal framework for international commercial arbitration has
achieved progressively greater practical success and acceptance in all regions of the world
and most political quarters. The striking success of international arbitration is reflected in part
in the increasing numbers of international (and domestic) arbitrations conducted each year,
under both institutional auspices and otherwise, (3) the growing use of arbitration clauses in
almost all forms of international contracts, (4) the preferences of business users for arbitration
as a mode of dispute resolution, (5) the widespread adoption of pro-arbitration international
arbitration conventions and national arbitration statutes, (6) the refinement of institutional
arbitration rules to correct deficiencies in the arbitral process (7) and the use of arbitral
procedures to resolve new categories of disputes which were not previously subject to
arbitration (e.g., investor-state, competition, securities, intellectual property, corruption,
human rights and taxation disputes). (8)
The success of international arbitration is also reflected by a comparison between the
treatment of complex commercial disputes in international arbitration and in national courts –
where disputes over service of process, jurisdiction, forum selection and lis pendens, taking of
evidence, choice of law, state or sovereign immunity, recognition of judgments and neutrality
of litigation procedures and decision-makers are endemic, and result in significant uncertainty
and inefficiency. (9) Equally, the litigation procedures used in national courts are often ill-
suited for both the resolution of international commercial disputes and the tailoring of
procedures to particular parties and disputes, while decision-makers often lack the
1
© 2018 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
experience and expertise demanded by complex international business controversies. In all of
these respects, international arbitration typically offers a simpler, more effective and more
competent means of dispute resolution, tailored to the needs of business users and modern
commercial communities.
Drawing on these advantages, this treatise aspires to describe the law, practice and policy of
P 2 international commercial arbitration in a manner that enables it to be of use, and guidance, in
P 3 other areas of international affairs, including international litigation. The treatise begins
with an Overview, in Chapter 1, which introduces the subject of international commercial
arbitration. This introduction includes an historical summary, as well as an overview of the
legal framework governing international arbitration agreements and the principal elements of
such agreements. Chapter 1 also introduces the primary sources relevant to a study of
international commercial arbitration. The remainder of the treatise is divided into three Parts.
Part I of the treatise deals with international commercial arbitration agreements. It describes
the legal framework applicable to such agreements, the presumptive separability or autonomy
of international arbitration agreements, the law governing international arbitration
agreements, the substantive and formal rules of validity relating to such agreements, the
nonarbitrability doctrine, the competence-competence doctrine, the legal effects of
international arbitration agreements, the interpretation of international arbitration
agreements and the legal rules for identifying the parties to international arbitration
agreements.
Part II of the treatise deals with international arbitration proceedings and procedures. It
addresses the legal framework applicable to such proceedings, the selection and challenge of
international arbitrators, the rights and duties of arbitrators, the selection of the arbitral seat,
the conduct of arbitral procedures, disclosure or discovery, provisional measures,
consolidation and joinder, the selection of substantive law, confidentiality and legal
representation.
Part III of the treatise deals with international arbitral awards. It addresses the legal
framework for international arbitral awards, the form and contents of such awards, the
correction and interpretation of arbitral awards, actions to annul or vacate awards, the
recognition and enforcement of international arbitral awards and the application of principles
of res judicata, preclusion and stare decisis in international arbitration.
The focus of the treatise, in all three Parts, is on international standards and practices, rather
than a single national legal system. Particular attention is devoted to the leading international
arbitration conventions – the United Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (the “New York Convention”), the European Convention on
International Commercial Arbitration and the Inter-American Convention on International
Commercial Arbitration.
This treatise rests on the premise that these instruments, and particularly the New York
Convention, establish a constitutional framework for the conduct of international commercial
arbitrations around the world. That framework is given effect through national arbitration
legislation, with Contracting States enjoying substantial autonomy to give effect to the basic
principles of the Convention. At the same time, the Convention also imposes important
international limits on the ability of Contracting States to deny effect to international
arbitration agreements and arbitral awards. These limitations have not always been
appreciated by courts in Contracting States, and are not always fully addressed in
commentary, but they form a critical constitutional foundation for the contemporary
international arbitral process. Identifying and refining these limits is a central aspiration of
this treatise.
The treatise also devotes substantial attention to leading national arbitration legislation –
including the United Nations Commission on International Trade Law (“UNCITRAL”) Model Law
P 3 on International Commercial Arbitration and the arbitration statutes in leading arbitral
P 4 centers (including the United States, England, France, Switzerland, Germany, Austria,
Sweden, Singapore, Hong Kong, Japan and elsewhere). The treatise’s focus is expressly
international, focusing on how both developed and other jurisdictions around the world give
effect to the New York Convention and to international arbitration agreements and arbitral
awards. Every effort is made to avoid adopting purely national solutions, without consideration
of international and comparative perspectives.
The treatise’s international and comparative focus rests on the premise that the treatments of
international commercial arbitration in different national legal systems are not diverse,
unrelated phenomena, but rather form a common corpus of international arbitration law which
has global application and importance. From this perspective, the analysis and conclusions of
a court in one jurisdiction (e.g., France, the United States, Switzerland, India, or Hong Kong)
regarding international arbitration agreements, proceedings, or awards have direct and
material relevance to similar issues in other jurisdictions.
That conclusion is true both descriptively and prescriptively. In practice, on issues ranging
from the definition of arbitration, to the separability presumption, the competence-
competence doctrine, the interpretation of arbitration agreements, choice-of-law analysis,
nonarbitrability, the role of courts in supporting the arbitral process, the principle of judicial
non-interference in the arbitral process, the immunities of arbitrators and the recognition and
enforcement of arbitral awards, decisions in individual national courts have drawn upon and
2
developed a common body of international arbitration law. Guided by the constitutional
principles of the New York Convention, legislatures and courts in Contracting States around the
world have in practice looked to and relied upon one another’s decisions, (10) and commentary
on international arbitration, (11) formulating and progressively refining legal frameworks of
national law with the objective of ensuring the effective enforcement of international
arbitration agreements and awards.
More fundamentally, national courts not only have but should consider one another’s decisions
in resolving issues concerning international arbitration. By considering the treatment of
international arbitration in other jurisdictions, and the policies which inspire that treatment,
national legislatures and courts can draw inspiration for resolving comparable problems.
P 4 Indeed, it is only by taking into account how the various aspects of the international arbitral
P 5 process are analyzed and regulated in different jurisdictions that it is it possible for courts
in any particular state to play their optimal role in that process. This involves considerations of
uniformity – where the harmonization of national laws in different jurisdictions can produce
fairer and more efficient results – as well as the ongoing reform of the legal frameworks for
international arbitration – where national courts and legislatures progressively develop
superior solutions to the problems that arise in the arbitral process.
The treatise also focuses on leading institutional arbitration rules, particularly those adopted
by the International Chamber of Commerce, the London Court of International Arbitration and
the American Arbitration Association’s International Centre for Dispute Resolution, as well as
the UNCITRAL Rules. (12) Together with the contractual terms of parties’ individual arbitration
agreements, these rules reflect the efforts of private parties and states to devise the most
efficient, neutral, objective and enforceable means for resolving international disputes. These
various contractual mechanisms provide the essence of the international commercial arbitral
process, which is then given effect by international arbitration conventions and national
arbitration legislation.
Taken together, international arbitration conventions (particularly the New York Convention),
national arbitration legislation and institutional rules provide a complex legal framework for
the international arbitral process. That framework requires Contracting States to effectuate the
broad constitutional mandate of the New York Convention – to recognize and enforce
arbitration agreements and arbitral awards – while affording individual states considerable
latitude in implementing these obligations. In turn, most Contracting States have used that
latitude to adopt vigorously pro-arbitration legislative frameworks, which grant arbitral
institutions, arbitrators and parties broad autonomy to devise mechanisms for the arbitral
process and which give effect to international arbitration agreements and arbitral awards. The
resulting legal framework provides a highly effective means for resolving difficult international
commercial disputes in a fair, efficient and durable manner.
The treatise’s analysis is intended to be clear, direct and accessible. International arbitration
law is complex, sometimes unnecessarily so. That is unfortunate. Like most things, the arbitral
process works better, and its problems are more readily confronted and overcome, when it is
clearly described and when issues are transparently presented. Every effort has been made in
the drafting of this treatise to avoid obscurity, and instead to address matters clearly and
simply so they can be understood and debated.
Like international commercial arbitration itself, this treatise is a work in progress. The first
edition of International Commercial Arbitration, published in 2009, was the successor to two
earlier works by the same author; this second edition of the treatise builds upon and
extensively revises these earlier works. In doing so, this edition of the treatise draws on the
extensive body of judicial authority, legislative and institutional developments and
commentary that have become available since 2009.
This edition inevitably contains errors, omissions and confusions, which will require correction,
clarification and further development in future editions, to keep pace with the ongoing
P 5 developments in the field. Corrections, comments and questions are encouraged, by email to
gary.born@kluwerlaw.com.
References
1) The history of international arbitration is summarized below. See§1.01.
2) The popularity of international commercial arbitration as a means of dispute resolution is
discussed below. See§1.03.
3) See§1.03.
4) See§1.03.
5) See§1.04.
6) See§1.04[A]; §1.04[B].
7) See§1.04[C].
8) See§6.06.
9) The persistence and complexity of such disputes are beyond the scope of this work. They
are discussed in G. Born & P. Rutledge, International Civil Litigation in United States Courts
(5th ed. 2010); L. Collins et al. (eds.), Dicey Morris and Collins on The Conflict of Laws (15th ed.
2011); R. Geimer, Internationales Zivilprozessrecht (5th ed. 2005).
3
10) See§1.04[A][1][d], p. 114 n. 777.
11) See, e.g., BG Group plc v. Repub. of Argentina, 572 U.S. __ (U.S. S.Ct. 2014) (citing G. Born,
International Commercial Arbitration (2009)); Dallah Real Estate & Tourism Holding Co. v.
Ministry of Religious Affairs, Gov’t of Pakistan [2010] UKSC 46, ¶87 (U.K. S.Ct.) (citing G. Born,
International Commercial Arbitration (2009) and J.-F. Poudret & S. Besson, Comparative Law
of International Arbitration (2d ed. 2007)); Jivraj v. Hashwani [2011] UKSC 40, ¶77 (U.K. S.Ct.)
(citing G. Born, International Commercial Arbitration (2009)); Yugraneft Corp. v. Rexx Mgt
Corp., [2010] 1 R.C.S. 649, 661 (Canadian S.Ct.) (citing G. Born, International Commercial
Arbitration 101 (2009) and N. Blackaby et al. (eds.), Redfern and Hunter on International
Arbitration 70, 72-73 (5th ed. 2009)); Larsen Oil & Gas Pte Ltd v. Petroprod Ltd, [2011] SGCA 21,
¶18 (Singapore Ct. App.) (citing G. Born, International Commercial Arbitration 1083 (2009)
and J. Lew, L. Mistelis & S. Kröll, Comparative International Commercial Arbitration 152
(2003)); Bharat Aluminium v. Kaiser Aluminium, C.A. No. 7019/2005, ¶¶20, 149, 156 (Indian
S.Ct. 2012) (citing G. Born, International Commercial Arbitration (2009) and L. Collins et al.
(eds.), Dicey and Morris on The Conflict of Laws (11th ed. 1987)).
12) See§1.04[C].
4
Chapter 1: Overview of International Commercial
Publication Arbitration
International Commercial This Chapter provides an overview of the history and contemporary legal framework for
Arbitration (Second Edition) international commercial arbitration. First, the Chapter sets out a summary of the history of
international arbitration. Second, the Chapter considers the key objectives of contemporary
international commercial arbitration. Third, the Chapter outlines the contemporary legal
framework for international commercial arbitration, including international arbitration
Bibliographic reference conventions, national arbitration legislation, institutional arbitration rules, international
'Chapter 1: Overview of arbitration agreements and choice-of-law rules. Fourth, the Chapter briefly summarizes
International Commercial leading “theories of arbitration.” Finally, the Chapter reviews the main sources of information
Arbitration', in Gary B. Born , in the field of international commercial arbitration.
International Commercial
Arbitration (Second Edition), § 1.01 HISTORY OF INTERNATIONAL ARBITRATION (1)
2nd edition (© Kluwer Law
International; Kluwer Law P 6 A thorough treatment of the history of international commercial arbitration is beyond the
International 2014) pp. 6 - P 7 scope of this Treatise. Indeed, such a history remains to be written by legal historians, even
224 insofar as the comparatively limited subjects of arbitration in leading European or other
jurisdictions are concerned. (2)
Nevertheless, a brief review of the history of arbitration in international matters provides an
important introduction to analysis of contemporary international commercial arbitration. In
particular, this review identifies some of the principal themes and objectives of international
commercial arbitration and places modern developments in context. An historical review also
underscores the extent to which international state-to-state and commercial arbitration
developed in parallel, with similar objectives, institutions and procedures.
[A] Historical Development of International Arbitration Between States

The origins of international arbitration are sometimes traced, if uncertainly, to ancient
mythology. Early instances of dispute resolution among the Greek gods, in matters at least
arguably international by then-prevailing standards, involved disputes between Poseidon and
Helios over the ownership of Corinth (which was reportedly split between them after an
arbitration before Briareus, a giant), (3) Athena and Poseidon over possession of Aegina (which
was awarded to them in common by Zeus) (4) and Hera and Poseidon over ownership of Argolis
(which was awarded entirely to Hera by Inachus, a mythical king of Argos). (5) Egyptian
mythology offers similar accounts of divine arbitrations, including a dispute between Seth and
Osiris, resolved by Thot (“he who decides without being partial”). (6)
Apart from suggesting Poseidon’s persistent problems with his peers, these myths tempt
interpretation, perhaps more than they can fairly bear. Among other things, the diverse
outcomes of these various “cases” at once suggest and contradict images of arbitration as pure
compromise, (7) while the role of neutral humans (or giants) (8) in resolving disputes among
gods hints at the arbitrator’s impartial, adjudicatory function (9) and the central role of the
rule of law in arbitration. (10)
[1] Inter-State Arbitration in Antiquity
P7
P8 Deities aside, international arbitration was a favored means for peacefully settling disputes
between states and state-like entities in Antiquity: “arbitration is the oldest method for the
peaceful settlement of international disputes.” (11) In particular, there is substantial historical
evidence for the use of arbitration to resolve disputes between states, city-states and similar
entities in ancient Greece, Rome, Persia and Mesopotamia. (12)
Historical scholarship provides no clear conclusions regarding the first recorded instance of
international arbitration between states (or state-like entities). In the state-to-state context,
some cite what contemporary reporters would denominate as the case of Lagash v. Umma,
apparently settled in 2550 B.C. by King Mesilim of Kish, (13) or the 2100 B.C. case of Ur v. Lagash,
in which the King of Uruk ordered one city to return territory seized by force from another. (14)
Others look to two disputes decided in the eighth century B.C. by Eriphyle, a noblewoman, over
Argos’s plans to wage war on Thebes, (15) a 650 B.C. dispute between Andros and Chalcis over
possession of a deserted city, (16) a controversy between Athens and Megara in 600 B.C. over
the island of Salamis, (17) or a 480 B.C. disagreement between Corinth and Corcyra over control
of Leucas. (18)
Scholars of Antiquity are uniform in concluding that the ancient Greeks frequently resorted to
international arbitration to resolve disputes between city-states. In one authority’s words,
“arbitration was used throughout the Hellenic world for five hundred years.” (19) There are
records of 46 separate state-to-state arbitrations between 300 B.C. and 100 B.C., a reasonably
impressive figure of one inter-state arbitration every four years. (20) This was the result of
frequent inclusion of arbitration clauses in state-to-state treaties, providing for specified forms
P 8 of arbitration to resolve future disputes that might arise under such treaties, (21) as well as
P 9 submission agreements with regard to existing “inter-state” disputes. (22)
The procedures used in many ancient arbitrations between Greek city-states would not be
5
unfamiliar to contemporary litigants. (23) The parties were represented by agents, who acted
as counsel (in a dispute between Athens and Megara, Solon represented the former); (24) the
parties presented documentary evidence and witness testimony (or sworn witness statements);
(25) oral argument was presented through counsel, with time limits being imposed on counsel’s
arguments; (26) and the arbitrators rendered written, signed and reasoned awards. (27) As one
authority summarized the arbitral process, “[a]s a method of dispute settlement, arbitration
did not rely on divine authority for its sanction, or even on the institutional power of an oracle
or amphictyony. Awards were respected because they were the product of a rhetorical
exchange where the interested parties could marshal whatever arguments or forms of
persuasion they wished.” (28)
It is also clear, however, that the term “arbitration” encompassed a range of dispute resolution
mechanisms, some of which appear reasonably similar to contemporary international
arbitration, while others differed in substantial ways. One aspect of ancient state-to-state
arbitration that would strike contemporary observers as unusual was the number of arbitrators:
although most tribunals were apparently comprised of three members, there were instances
where tribunals consisted of large numbers (variously, 600 Milesians, 334 Larissaeans, and 204
Cnidians) which arguably reflect a quasi-legislative, rather than adjudicatory, function. (29)
Other “arbitrations” appear to have been more in the nature of non-binding mediation, or
political consultation, than true arbitration. (30)
P9
P 10 Nonetheless, the conception of the arbitrator as an independent and impartial adjudicator
was central to the state-to-state arbitral process. An oath, sworn by arbitrators in one
arbitration, illustrates these expectations of independence and impartiality:
“I swear by Jupiter, the Lycian Apollo, and by the earth that I will judge in the case between the
parties under oath as will appear to be most just. I will not judge according to one witness if
this witness does not appear to me to tell the truth. I have not received any present with
relation to this suit, neither myself nor any other for me, man or woman, nor by any detour
whatsoever. May I prosper as I adhere to my oath, but unhappiness to me if I perjure myself.”
(31)
Arbitration was also used to settle disputes between state-like entities during the Roman age.
Although commentators observe that the use of arbitration declined from Hellenic practice,
(32) it was by no means abandoned. Territorial subdivisions of the Roman Empire, as well as
vassal states and allies, appealed to the Roman Senate, to Roman proconsuls, or to other
Roman institutions for “arbitral” decisions or the appointment of arbitrators to resolve
territorial and other disputes. (33) In general, however, the historical record indicates that
Rome preferred political or military solutions, within the Empire, to inter-state arbitration or
adjudication. (34)
[2] Inter-State Arbitration in European Middle Ages
After an apparent decline in usage under late Roman practice, international arbitration
between state-like entities in Europe experienced a revival during the Middle Ages. Although
historical records are sketchy, scholars conclude that international arbitration “existed on a
widespread scale” during the Middle Ages, (35) that “the constant disputes that arose in those
warlike days were very frequently terminated by some kind of arbitration,” (36) and that “it is
surprising to learn of the great number of arbitral decisions, of their importance and of the
P 10 prevalence of the ‘clause compromissoire.’” (37) The states of the Swiss Confederation (38) and
P 11 the Hanseatic League, (39) as well as German and Italian principalities, (40) turned with
particular frequency to arbitration to settle their differences, often pursuant to agreements to
resolve all future disputes by arbitration. (41)
Determining the precise scope and extent of international arbitration between states or state-
like entities during the Medieval era is difficult, in part because a distinction was not always
drawn between judges, arbitrators, mediators and amiables compositeurs. (42) Indeed, one of
the most famous “arbitrations” of the age – Pope Alexander VI’s division of the discoveries of
the New World between Spain and Portugal – appears not to have been an arbitration at all,
but rather a negotiation or mediation. (43) On the other hand, numerous treaties throughout
this period drew clear distinctions between arbitration (in the sense of an adjudicative,
binding process) and conciliation or mediation (in the sense of a non-binding procedure). (44)
Again, the procedures used during arbitral proceedings in Medieval times bore important
resemblances to those used today. Both parties presented arguments through counsel,
evidence and testimony was received by the tribunal, the arbitrators deliberated and a
written award was made. (45) There is even evidence that written briefs were a standard
element of inter-state arbitral procedures. (46)
Parties appear to have placed importance on the prompt resolution of their disputes,
including by imposing time limits in their agreements on the arbitrators’ mandates. (47) And, if
P 11 a losing party flouted an arbitral tribunal’s decision, the arbitrator or another authority was
P 12 sometimes empowered to impose sanctions to enforce compliance. (48) Arbitrators were
frequently ecclesiastics or rulers of neighboring or neutral states; (49) in particular, the Papacy
was frequently involved in arbitrating various categories of dynastic, territorial and similar
disputes between feudal rules. (50)
During the 16th, 17th and 18th centuries, the popularity of international arbitration as a means
of resolving state-to-state disputes apparently declined significantly. Although by no means
6
entirely abandoned, the rising tide of nationalism apparently chilled historic reliance on
arbitration: “nor is arbitration the immediate jewel of Tudor souls.” (51) It was only at the end of
the 18th century, with Jay’s Treaty between the newly-founded United States and Great Britain
(discussed below), (52) that international arbitration in the state-to-state context saw a new
resurgence.
[3] Inter-State Arbitration in 18th and 19th Centuries
Great Britain’s North American colonies appear to have embraced inter-state arbitration from
at least the moment of their independence. The 1781 Articles of Confederation provided a
mechanism for resolving inter-state disputes between different American states, through what
can only be categorized as arbitral procedures. (53)
More significantly, “the modern era of arbitral or judicial settlement of international disputes,
by common accord among all writers upon the subject, dates from the signing on 19 November
1794 of Jay’s Treaty between Great Britain and the United States.” (54) Among other things, in a
determined effort to restore amicable relations between the newly-independent United States
and Great Britain, Jay’s Treaty provided for the establishment of three different arbitral
P 12 mechanisms, dealing with boundary disputes, claims by British merchants against U.S.
P 13 nationals and claims by U.S. citizens against Great Britain. (55) This was a remarkable step,
between recent combatants, which ushered in a new age of inter-state arbitration.
The United States continued its tradition of arbitrating international disputes throughout the
19th century. (56) It included an arbitration clause (albeit an optional one) in the 1848 Treaty of
Guadalupe Hidalgo, which provided for resolution of future disputes between the United
States and Mexico “by the arbitration of commissioners appointed on each side, or by that of a
friendly nation.” (57) The United States did the same in the 1871 Treaty of Washington with
Great Britain, providing the basis for resolving a series of disputes provoked by the Civil War,
(58) including the classic Alabama Arbitration concerning U.S. claims that Great Britain had
violated its obligations of neutrality during the U.S. Civil War. (59) Among other things, the
Washington Treaty provided for arbitration of the disputes before a five-person tribunal, with
one arbitrator nominated by each of the United States and Great Britain, and three arbitrators
nominated by neutral states. The United States and Great Britain also repeatedly resorted to
arbitration to settle various boundary and other disputes during the 19th and early 20th
centuries. (60)
Agreements to arbitrate in the Americas were not confined to matters involving the United
States. On the contrary, between 1800 and 1910, some 185 separate treaties among Latin
American states included arbitration clauses, dealing with everything from pecuniary claims,
to boundaries, to general relations. (61) For example, an 1822 agreement between Colombia
and Peru, which was intended to “draw more closely the bonds which should in future unite the
two states,” provides that “a general assembly of the American states shall be convened…as an
P 13 umpire and conciliator in their disputes and differences.” (62) At the end of the 19th century,
P 14 several Latin American states entered into bilateral arbitration treaties, providing that
specified categories of inter-state disputes would be submitted to arbitration. (63)
Moreover, many Latin American states engaged in inter-state arbitrations arising from
contentious boundary disputes inherited from colonial periods, which the disputing parties
submitted to a foreign sovereign or commission for resolution. (64) Arbitration of such matters
was not always successful, especially when the disputed territory was rich in natural resources
or minerals, (65) and boundary disputes at times required additional arbitrations to interpret
or implement an initial award. (66)
Arbitration of state-to-state disputes does not appear to have been used significantly in
Europe during the 18th century. (67) By the late 19th century, however, arbitration provisions
began to be included in various types of treaties between European states. Multilateral
treaties containing institutional arbitration agreements included matters ranging from the
General Postal Union, (68) the carriage of goods by rail and post, (69) and European
colonization and trade in Africa, (70) to the slave trade. (71) A number of bilateral treaties
between European states during the late 19th century dealing with extradition (72) and
commercial relations (73) also contained arbitration clauses.
In the final years of the 19th century, European states also concluded a number of arbitration
treaties providing generally for the arbitration of defined categories of future disputes. (74)
One representative bilateral arbitration treaty from this era provided that the parties would
P 14 submit to arbitration: “all the controversies, whatever their nature and cause, which may arise
P 15 between them in the period of existence of this Treaty.” (75) As discussed below, the
popularity of bilateral arbitration treaties – if not their actual usage – continued into the first
half of the 20th century. (76)
[4] Proposals for Institutional Inter-State Arbitration
Proposals for institutional forms of state-to-state arbitration existed from an early date.
Grotius’ exhortations at the end of the 17th century are illustrative:
“Christian kings and states are bound to pursue this method [arbitration] of avoiding wars.…
[F]or this and for other reasons it would be advantageous, indeed in a degree necessary, to
hold certain conferences of Christian powers, where those who have no interest at stake may
settle the disputes of others, and where, in fact, steps may be taken to compel parties to
accept peace on fair terms.” (77)
7
By the end of the 19th century, proposals for more universal and binding state-to-state
arbitration mechanisms emerged with greater frequency, often supported by religious and
pacifist groups. (78) Capturing the moral roots of such proposals, Andrew Carnegie famously
remarked that “[t]he nation is criminal which refuses arbitration.” (79)
Although seldom discussed in today’s literature, an 1875 project of the Institut de Droit
International produced a draft procedural code, based on existing inter-state arbitral practice
and designed to provide basic procedural guidelines and mechanisms for future ad hoc
arbitrations between states. (80) The project provides impressive testimony to both the
frequency of inter-state arbitrations at the time and the perceived desirability of more
consistent, transparent and internationally-neutral procedures for such arbitrations.
In 1899, the Hague Peace Conference produced the 1899 Convention for the Pacific Settlement
P 15 of International Disputes. (81) A central feature of the Conference’s program was the use of
P 16 adjudication to prevent conflicts between states, with proposals for an ambitious
multilateral convention requiring arbitration of most international legal disputes. (82) These
proposals were unacceptable to most states and the Conference instead adopted provisions
for voluntary arbitration of certain categories of state-to-state arbitration.
In particular, the 1899 Convention encouraged – but did not require – contracting states to
resolve their international disputes by arbitration. (83) The Convention included chapters on
international arbitration and established a so-called “Permanent Court of Arbitration” (PCA).
(84) Thus, Article XVI of the Convention declared that “[i]n questions of a legal nature, and
especially in the interpretation of International Conventions, arbitration is recognized by the
Signatory Powers as the most effective, and at the same time the most equitable, means of
settling disputes.” (85)
The 1899 Convention suggested that, where states chose to arbitrate a dispute, the award
would be binding. Article 18 of the Convention provided that an agreement to arbitrate
“implies the engagement to submit loyally to the Award.” (86) The Convention also
distinguished the binding character of arbitrations from the resolution of disputes through
“commissions of inquiry,” “good offices” and “mediation” – each of which were provided for by
the Convention, but none of which entailed a binding decision. (87) At the same time, however,
the Convention contained no means to enforce awards, and the Convention’s language
underscored the tenuous character of any obligation to comply with an award (providing only
that states impliedly “engage[d]” to “submit in good faith” to awards). (88)
In order to encourage states to resort to arbitration, the 1899 Convention established the PCA
(seated in the Hague), for administering inter-state arbitrations. (89) Articles XV to IXX of the
P 16 1899 Convention prescribed a set of rules regarding the constitution of inter-state arbitral
P 17 tribunals and the conduct of inter-state arbitrations, with the PCA serving as a form of
arbitral institution responsible for a variety of administrative and other functions, including
maintaining a list of arbitrators who might be appointed to tribunals in future cases (if states
chose to agree to such arbitrations). (90) The Convention also provided a skeletal set of
procedural rules that could be applied in proceedings (again, if states agreed to such
arbitrations). (91)
The 1899 Convention was revised in 1907, with the new version of the Convention for the Pacific
Settlement of International Disputes including the addition or amendment of a number of the
existing provisions regarding international arbitral proceedings. (92) However, the 1907
Conference made no fundamental changes to the treatment of international arbitration under
the 1899 Convention. (93)
PCA arbitral tribunals subsequently issued a handful of well-reasoned awards, occasionally in
disputes of some practical significance, which played a material role in the development of
customary international law. (94) In general, however, the PCA was used relatively infrequently
and addressed few cases of international importance during the first century or so of its
existence. (95) All told, during the first 70 years of the PCA’s existence, only 25 arbitrations were
submitted to PCA tribunals; (96) even fewer non-binding PCA conciliations or inquiries were
conducted. (97)
The 1899 and 1907 Hague Conventions provided the foundation for more formal inter-state
adjudication, in the Permanent Court of International Justice (PCIJ) and International Court of
Justice (ICJ). (98) Also during the early 20th century, states negotiated large numbers of
bilateral (99) and multilateral (100) arbitration treaties providing for compulsory arbitration of
defined, but generally broad, categories of future disputes (along the lines of the proposals
rejected in the Hague Conferences).
P 17
P 18 The United States was an avid proponent of bilateral arbitration treaties and concluded a
number of such treaties with various European states. The U.S. treaties with the United
Kingdom and France, referred to as the Taft or Knox Arbitration Treaties, provided for broad
mandatory arbitration of all justiciable disputes, but were never ratified; instead, the United
States concluded a series of more limited treaties (not providing for binding arbitration), often
referred to as the Bryan Treaties, principally with European and Latin American states. (101)
Other states also concluded such agreements, with some 120 bilateral arbitration treaties
being entered into between 1900 and 1914. (102)
Multilateral arbitration treaties included the 1924 Geneva Protocol for the Pacific Settlement
of International Disputes and the 1928 Geneva General Act for the Pacific Settlement of
International Disputes, (103) both of which provided for the compulsory arbitration of a broad
8
range of international disputes. In addition, several hundred bilateral arbitration treaties were
entered into between 1900 and 1939, generally providing for compulsory arbitration of a wide
range of disputes between the contracting states. (104) In the words of one commentator, “the
immense output of arbitration treaties has been such that today [i.e., 1928] they constitute a
very dense forest, in which it is difficult to find one’s way.” (105)
Nonetheless, most states remained sceptical of such treaties and declined to ratify them – or,
if ratified, declined to use them. (106) Following World War II, the popularity of compulsory
arbitration treaties declined precipitously; in the words of one author, they “were abandoned
almost entirely.” (107) Moreover, as with the PCA itself, usage of these treaties was modest, with
fewer than ten arbitrations being conducted pursuant to general compulsory arbitration
treaties between 1920 and 1990. (108)
P 18
P 19 Despite this, through other mechanisms, international arbitration remained a favored means
of resolving state-to-state disputes throughout the 20th century. In total, some 200 inter-state
arbitrations were conducted between 1900 and 1970, not involving the PCA or compulsory
arbitration treaties; instead, these arbitrations generally arose pursuant to ad hoc submission
agreements or compromissory clauses in particular bilateral treaties. (109) Particularly
compared to the PCIJ and ICJ, it is clear that arbitration was a preferred method of resolving
inter-state disputes during the 20th century. (110)
[5] Arbitral Procedures in Inter-State Arbitration
As outlined above, arbitral procedures have varied substantially, both over time and in
different geographic and political settings. At least in part, that reflects the inherent flexibility
of the arbitral process, which leaves the parties (and arbitrators) free to devise procedures
tailored to a particular dispute and legal or cultural setting. (111)
Despite this inherent flexibility, the procedures used in state-to-state arbitrations have also
displayed, with remarkable consistency, certain enduring, common characteristics. These have
included an essentially adversarial procedure, with states being free – and required – to
present their respective cases, often through counsel and/or agents; (112) an adjudicative
procedure, with decisions being based on the evidentiary and legal submissions of the parties
and generally resulting in a reasoned award; (113) and continuing efforts to devise procedures
that would provide a fair, efficient and expeditious arbitral process. (114) As already noted,
historic approaches to the inter-state arbitral process often produced procedures that were
not dissimilar to those used in contemporary state-to-state arbitrations. (115)
Arbitral procedures that evolved in state-to-state arbitrations during the 19th century bore
even closer resemblances to contemporary proceedings than was historically the case, with
international tribunals more systematically exercising their power to establish rules governing
P 19 pleadings and proceedings. (116) Governments were generally represented by an agent, who
P 20 represented the interests of the state, and a counsel, who provided advice, managed the
case and appeared before the tribunal. (117) Cases were initiated by a written memorial, which
asserted the basic legal claims and alleged sufficient facts to establish jurisdiction; the
opposing party’s response then could come in the form of an answer, a plea, a motion to
dismiss, or an exception. (118)
Although rules for evidence varied, tribunals generally preferred documentary evidence to live
witnesses and, rather than excluding certain types of evidence, would accept all evidence and
weigh it at their discretion. (119) With the increased frequency of state-to-state arbitration over
the course of the 19th century, practices of civil and common law countries converged,
eventually giving way to the partial codification of these procedures in international
instruments. (120) Again, the procedures outlined in these 19th century instruments bear
striking similarities to contemporary procedural regimes. (121)
One of the enduring features of international arbitration procedure in the state-to-state
context, regardless of time or cultural setting, has been the nomination of members of the
tribunal by the parties and, in particular, unilateral nomination of one or more members of the
tribunal by each party. Indeed, from almost the beginning of recorded modern history –
through every age until the present – party-nominated arbitrators were an enduring, essential
feature of the international arbitral process. (122) Thus:
(a) In a 1254 treaty of peace among various German states, future disputes were to be
settled by mixed tribunals composed of judges of equal number of the two parties and
presided over by a “gemeiner mann” (or umpire). (123) Northern Italian states and Swiss
cantons adopted the same approach, during the 12th, 13th and 14th centuries, with the
occasional variation that each party was required to select a national of the counter-
party as co-arbitrator. (124)
P 20 (b) In one of the earliest Medieval plans for institutional international arbitration, in 1306,
P 21 Pierre Dubois proposed a means of settling disputes among European principalities,
involving each party nominating three arbitrators, to be joined by three additional
ecclesiastics. (125)
(c) The 1343 Arbitral Convention between King Waldemar of Denmark and King Magnus of
Sweden provided for each state to select three bishops and three knights and, if the
resulting tribunal was unable to resolve matters, to select two (one each) of its number to
make a final decision. (126)
9
(d) The 1516 Treaty of Perpetual Peace between the Swiss Cantons and Francis I provided for
arbitration before “four men of substance, two named by each party,” and “if their
opinions are divided, the plaintiff may choose from the neighboring counties a
prud’homme beyond suspicion and who will meet with the arbitrators to decide the
difficulty.” (127)
(e) The 1655 Treaty of Westminster between France and England provided for resolution of
future disputes by six arbitrators, three named by each side, with unresolved matters
being referred to the Republic of Hamburg, which was charged with selecting a further
tribunal. (128)
(f) The 1781 Articles of Confederation, of the American colonies, provided for the resolution
of disputes between states by an arbitral process, with the concerned states being
involved in selection of the tribunal, either by agreement or through an innovative list
system. (129)
(g) Jay’s Treaty of 1794, between the United States and Great Britain, provided for three
arbitral mechanisms, with the tribunals consisting of either three arbitrators (one
appointed by the United States and one by Great Britain, with the two party-nominated
arbitrators selecting a third, either by agreement or a prescribed list system) or five
arbitrators (two appointed by the King of England, two by the President of the United
States and the fifth by agreement or through the use of a prescribed list system). (130)
P 21 (h) The Treaty of 11 April 1839, between the United States and Mexico, provided for a
P 22 tribunal of five, with two arbitrators appointed by each state and (absent agreement)
the fifth arbitrator being selected by the King of Prussia. (131) A large number of other
treaties between the United States and various Latin American states provided for party-
nominated arbitrators on either three or five-person tribunals. (132)
(i) The so-called Portendick claims, between Great Britain and France (concerning an
allegedly unlawful French blockade of the Moroccan coast), were referred to the King of
Prussia, who in turn referred implementation of his award to a tribunal consisting of one
arbitrator nominated by each state and a third whom he selected. (133)
(j) The 1871 Treaty of Washington provided (with regard to U.S. claims against Great Britain)
for two party-nominated arbitrators on a tribunal of five, with the remaining three
arbitrators being nominated by neutral states. (134) To resolve claims by private citizens
against either of the two contracting states, the treaty provided for three-person
tribunals, with each state nominating one arbitrator and an umpire being selected by
agreement or by a neutral third party. (135) Other arbitration provisions between the
United States and Great Britain very frequently involved party-nomination of members
of the tribunal. (136)
(k) An 1897 reference to arbitration between Austria and Hungary, relating to territorial
claims near Lake Meerauge, was referred to a tribunal consisting of two party-nominated
arbitrators and an umpire. (137)
(l) “Mixed” claims tribunals have been repeatedly used, in a wide variety of contexts, to
resolve claims arising out of war, unrest, or similar circumstances. The invariable
procedure for constituting a tribunal was for one arbitrator to be nominated by each
side, and a presiding arbitrator or umpire to be selected by agreement or by a neutral
power. (138)
(m) The 1899 Hague Convention for the Pacific Settlement of International Disputes and the
1907 Hague Convention for the Pacific Settlement of International Disputes established
P 22 Rules for the constitution of arbitral tribunals, including provisions for each party to
P 23 nominate two co-arbitrators and for the co-arbitrators to select an “umpire,” failing
which a neutral party would be chosen to make the selection. (139)
(n) Both the Permanent Court of International Justice, and its eventual successor, the
International Court of Justice, provided mechanisms for the constitution of the Court that
included ad hoc judges nominated by each party. (140)
(o) Each of the governments of Guatemala and Honduras appointed an arbitrator with a
third arbitrator, the Chief Justice of the United States, appointed as a presiding
arbitrator by agreement of the parties under a Treaty of Arbitration signed between the
two states on 16 July 1930. (141)
(p) Under a 1989 arbitration agreement, France and Canada mutually agreed to the
appointment of three arbitrators and then each side appointed an additional arbitrator.
(142)
(q) Under the 2000 Eritrea-Ethiopia Boundary Commission Arbitration Agreement, each
party appointed two commissioners and the president of the Commission was selected
by the party-appointed commissioners, failing which the Secretary-General of the United
Nations would have appointed the president in consultation with the parties. (143)
10
(r) The 2008 arbitration agreement between the Government of Sudan and the Sudan
People’s Liberation Movement/Army (the representatives of what would become the
Republic of South Sudan in 2011) provided that each party would appoint two arbitrators
and the party-appointed arbitrators would appoint a fifth arbitrator, or the Secretary-
General of the Permanent Court of Arbitration would do so. (144)
(s) In 2011, Croatia and Slovenia submitted an arbitration agreement for registration with
the United Nations that provided first for both parties to appoint by common agreement
the president of the tribunal and two members drawn from a list provided by the
President of the European Commission, and then for each party to appoint a further
member of the tribunal. (145)
Thus, one scholar of state-to-state arbitrations during the 19th century concluded his
discussion of the procedural aspects of the subject by referring to:
P 23
P 24 “the very common idea that the sovereign power of the contestants should find
representation on the court, an idea which finds illustration even in the Permanent Court of
International Justice. The theory is that the representatives of the parties can speak with
authority within the bosom of the court with regard to the law and contentions of their
governments, an idea which would not be tolerated because of manifest evils within the bosom
of a national court.” (146)
As discussed below, this was also an enduring characteristic of arbitrations between private
parties and states, (147) and in international commercial arbitrations between private parties.
(148) Indeed, the same reasoning that was invoked historically in state-to-state arbitrations
has been adopted, in almost identical terms, in the context of contemporary international
commercial arbitration, where party-nominated co-arbitrators have been a central feature of
the arbitral process since the historical record begins. (149)
[B] Historical Development of Commercial Arbitration

Just as arbitration between states has an ancient and rich history, so arbitration of commercial
disputes can be traced to the beginning of recorded human society. It is occasionally
suggested that “as a technocratic mechanism of dispute settlement, with a particular set of
rules and doctrines, international commercial arbitration is a product of this century [i.e., the
20th century]” (150) or “at the beginning of this [the 20th] century,…international commercial
arbitration was becoming established.” (151) Insofar as these comments imply that
international commercial arbitration is a recent phenomenon, they are contradicted by a
detailed historical record, which leaves no serious doubt as to the long tradition – stretching
for many centuries – of arbitration as a means for resolving international and other cross-
border business disputes.
At the same time, it is again clear (as with state-to-state arbitration) (152) that the boundaries
between arbitration and other modes of dispute resolution were not always clearly drawn in
earlier times. Rather, “arbitration” sometimes resembled a form of state-sponsored (or -
P 24 compelled) alternative dispute resolution, which was more akin to judicial or administrative
P 25 proceedings, or to non-binding conciliation, than to contemporary international commercial
arbitration. (153) At the same time, ancient societies seldom possessed systems of judicial
administration and civil litigation comparable to those in contemporary legal systems. (154) As
one commentator concludes: “Until well into imperial times there were no professional judges
in Rome. In all civil matters, the state deputed respected citizens, sometimes from a panel to
act as adjudicators on its behalf.” (155)
Despite these ambiguities, there is substantial evidence of alternative dispute resolution
mechanisms for commercial disputes, distinct and different from judicial processes, and often
closely resembling contemporary arbitration, through almost all ages of recorded human
history. Indeed, in many eras, commercial and similar disputes were resolved consensually
through processes very closely resembling contemporary international commercial arbitration.
[1] Commercial Arbitration in Antiquity
As in the state-to-state context, some of the earliest reports of commercial arbitration are from
the Middle East. Archaeological research reports that clay tablets from contemporary Iraq
recite a dispute between one Tulpunnaya and her neighbor, Killi, over water rights in a village
near Kirkuk, which was resolved by arbitration (with Tulpunnaya being awarded 10 silver
shekels and an ox). (156) Arbitration was also apparently well known in ancient Egypt, with
convincing examples of agreements to arbitrate future disputes (used alongside what amount
to forum selection clauses) included in funerary trust arrangements in 2500 B.C. and 2300 B.C.
(157)
Arbitration was no less common in ancient Greece for the resolution of commercial and other
“private” disputes than for state-to-state disputes. (158) Homer describes an 8th-century B.C.
resolution of a blood debt through a public arbitral process, where the disputants appealed to
a man “versed in the law,” of their mutual choice, who presided over a tribunal of elders which
P 25 publicly heard the parties’ claims and rendered reasoned oral opinions. (159) The example
P 26 suggests the use of arbitration to resolve disputes between private parties in Antiquity, but
also confirms the lack of clear boundaries in some periods between governmental dispute
resolution mechanisms and “private,” consensual arbitration.
11
The reasons for resorting to arbitration in Antiquity appear to be remarkably modern.
Historical research indicates that ancient Greek courts – like today’s courts in many countries –
suffered from congestion and back-logs, which led to the use of arbitrators, retained from other
city states (rather like foreign engineers or mercenaries), to resolve pending cases. (160) As one
commentator put it, “[a]rbitration was the natural and regular process of choice for those who
could not afford litigation, were afraid of its outcome, preferred privacy, or were manipulating
the alternatives.” (161)
Similarly, a summary of the basic legal rules governing commercial arbitration in ancient
Greece is not far removed from contemporary legislation in the area:
“If any parties are in dispute concerning private contracts, and wish to choose any arbitrator, it
shall be lawful for them to choose whomsoever they wish. But when they have chosen by
mutual agreement, they shall abide by his decisions and shall not transfer the same charges
from him to another court, but the judgments of the arbitrator shall be final.” (162)
Arbitral procedures in ancient Greece appear to have been largely subject to the parties’
control, including with regard to the subject matter of the arbitration, the selection of
arbitrators, the choice of law and other matters. (163) Although sole arbitrators were not
uncommon, parties frequently agreed to arbitrate before three or five arbitrators, with each
party selecting one (or two) arbitrator(s) and the party-nominated arbitrators choosing a
presiding arbitrator (a koinos). (164) There were few restrictions on the subjects that could be
arbitrated, although commercial (and family) matters were apparently the most common. (165)
P 26
P 27 Arbitration of commercial matters in ancient Roman times was more common than Roman
state-to-state arbitrations, in part because there was no judicial system of litigation
comparable to those in contemporary legal structures. (166) A leading scholar on Roman law
summarizes the subject as follows:
“from the beginning of the empire, Roman law allowed citizens to opt out of the legal process
by what they called compromissum. This was an agreement to refer a matter to an arbiter, as he
was called, and at the same time the parties bound themselves to pay a penalty if the
arbitrator’s award was disobeyed. Payment of the penalty could be enforced by legal action.”
(167)
As in Greece, awards in Roman practice were reasoned, binding and apparently subject to very
limited subsequent judicial review: “The award of the arbiter which he makes with reference to
the matter in dispute should be complied with, whether it is just or unjust; because the party
who accepted the arbitration had only himself to blame.” (168) According to one authority,
“[n]o appeal was possible against the arbiter’s decision.” (169) Parties could seek enforcement
of awards in the courts (or other government forums), although the precise enforcement
mechanisms that were available varied over time. (170)
Arbitral procedures in Roman times were sophisticated; as one commentator summarizes the
evidence, “[r]ecords of very advanced procedures of arbitration survive from [Greco-Roman]
periods.” (171) In particular, it appears that arbitral procedures were not dissimilar to those in
more modern eras. (172) In a parallel to modern arbitral practice, the arbitrator’s jurisdiction
was strictly limited to “the terms of the agreement for arbitration (compromissum), and,
therefore, he cannot decide anything he pleases, nor with reference to any matter that he
pleases, but only what was set forth in the agreement for arbitration, and in compliance with
P 27 the terms of the same.” (173) Arbitrators in the classical age reportedly remained entirely free
P 28 in their decisions: “they were not bound by any rules of substantive law.” (174) Parties
enjoyed substantial autonomy with regard to establishing the arbitral procedures. (175)
Among other things, and again paralleling state-to-state practice, historical records reveal the
widespread use of party-nominated arbitrators: “a common practice…[was] to refer the matter
to two arbitrators and the praetor is bound to compel them, if they disagree, to choose a third
person themselves and his authority can be obeyed.” (176) If an arbitrator agreed to hear a
dispute (receptum arbitrum), but subsequently refused to do so, local judicial authorities could
apparently compel him to fulfil his duties. (177)
Although records of ordinary commercial disputes from this era have seldom survived,
historians nonetheless conclude that arbitration was widely used in ancient Rome. (178) There
were few limits on the subjects of arbitration, and in practice a wide range of commercial and
family matters were arbitrated: “With these few exceptions [for inheritance and status of
slaves/citizens]…arbitration ex compromisso was used comprehensively to deal with all types
of disputes, relating to land and goods and slaves, and breaches of contract of all kinds.” (179)
Roman law also dealt with questions of the enforceability of agreements to arbitrate future
commercial disputes (e.g., arising from a contract). It did so by treating arbitration clauses as
separate agreements (promissum), to which the parties could attach penalty mechanisms
P 28 (stipulationes poenae) to enforce compliance. (180) The parties’ promises to arbitrate could
P 29 apparently only be enforced through a mechanism of “double promises” (“com-promissum”),
(181) in which the promise to arbitrate was coupled with the promise to pay a penalty if the
arbitration agreement was breached. (182)
A representative compromissum from Roman times, including a penalty mechanism, provided:
“In the dispute between L Cominius Primus and L Appuleius Proculus about the boundaries of
the Numidian land of L Cominius Primus and the Stlasanician land of L Appuleius Proculus,…
they have by stipulation and pact agreed as follows: that Ti. Crassius Firmus should be arbiter
12
ex compromisso between L Cominius Primus and his heir and L Appuleius Proculus and his heir
and should render his award or order his award to be rendered, openly in his presence and in
the presence of each other, before the first day of February next, and may postpone that day
when he renders his award or orders it to be rendered or orders it to be postponed, and if
anything shall be done or fail to be done, against these agreements 1,000 sesterces of good
money shall be properly paid, fraud being absent from this matter and arbitration and to be so
in the future.”
These various enforcement issues under Roman law, and the mechanisms that were adopted to
address them, foreshadowed challenges to the enforceability of arbitration agreements, and
mechanisms for addressing these challenges, that would recur in later historical periods. (183)
They also laid the foundations for the separability doctrine, which would also recur and play a
leading role in the law of arbitration in later historical periods. (184)
In the post-Classical period, arbitration became increasingly popular in many parts of the
Roman Empire because of deficiencies in state court systems, which were characterized as
unreliable, cumbersome and costly, and which faced particular difficulties in international and
other cross-border matters. (185) During this era, the enforceability of arbitration agreements
was progressively recognized, even without a penalty mechanism. (186) This result was
generally based on the principle of pacta sunt servanda, which was developed and applied by
canonical jurists in the context of agreements to arbitrate. (187)
The Church began to play a leading role in arbitration in the later Roman Empire, with arbitral
jurisdiction frequently being exercised by Christian bishops (episcopalis audentia). Once parties
P 29 had agreed to “Episcopal” arbitration, a subsequent award was enforceable through the courts
P 30 without judicial review. (188) Simultaneously, arbitral tribunals established within Jewish
congregations within the Roman Empire were granted similar powers, enabling them to decide
not only religious, but also commercial, disputes. (189)
Arbitration continued to play – so far as the historical record reveals – an important role in
commercial matters in the Byzantine period, in Egypt and elsewhere. Although the records and
details of such arbitrations are uncertain, those materials that survive involve merchants,
family feuds, inheritance disputes and other private law matters being submitted to binding
arbitration, with the results being enforced through penalty mechanisms (as in Roman times).
(190)
One apparent motivation for arbitration during this era was avoiding the delays and expense
of litigation. Thus, an 8th century Coptic record quotes an heir of one Germanos explaining the
resolution of his disputes with other heirs:
“We fought each other before the most famous comes, dioketes [administrative tribunals] of the
castron [district] of Jeme, about the house on Kuelol Street.…After much altercation before the
diokete, he made a proposal with which we all agreed: we elected arbitrators from the castron
and the diokete sent them into the house and they made the division.” (191)
As described below, this motivation of avoiding protracted, uncertain litigation continues to
prevail today, often expressed in very similar language, as a reason for parties to agree to
international commercial arbitration. (192)
[2] Commercial Arbitration in European Middle Ages
A wide variety of regional and local forms of arbitration were used to resolve commercial and
other disputes throughout the Middle Ages in Europe. A recurrent theme of this development
was the use of arbitration by merchants in connection with merchant guilds, trade fairs, or
other forms of commercial or professional organizations. Indeed, it is “very common,” if
inaccurate, “to say that commercial arbitration had its beginning with the practices of the
market and fair courts and in the merchant gilds.” (193)
P 30 As in the state-to-state context, (194) arbitration was particularly common during Medieval
P 31 times in the Swiss Confederation, Northern Italy, Germany and neighboring regions (the
Hanseatic League in particular), France and England. Whatever the force of various claims to
historical priority, it is clear that commercial arbitration was very widespread in many
European localities in the Middle Ages. (195)
In Medieval England, (196) the charters of numerous guilds – such as the Company of
Clothworkers or the Gild of St. John of Beverley of the Hans House (197) – provided for
mandatory arbitration of disputes among members: the guilds “entertain actions of debt and
covenant and trespass, and hardly dare we call such assemblies mere courts of arbitration, for
they can enforce their own decrees.” (198) Where merchants did business with one another at
trade fairs, outside the context of a guild, arbitration also played a role. Indeed, because fairs
involved numerous itinerant or foreign merchants, this appears to have been a direct forbearer
of more modern forms of international commercial arbitration. Arbitration was also relied on
to resolve disputes in a wide range of substantive areas outside of commercial matters,
including real estate, medical negligence, employment, determinations of feudal status and
even quasi-criminal complaints of assault or arson. (199)
Arbitration of “international” disputes (including those arising from Medieval fairs) was
preferred for reasons of expedition and commercial expertise, as well as, increasingly, the
inadequacy of the local courts or other decision-makers to deal with the special jurisdictional
and enforcement obstacles presented by foreign or “international” litigation. In Blackstone’s
13
words, which again might be written almost equally well today:
“The reason of their original institution seems to have been, to do justice expeditiously among
the variety of persons that resort from distant places to a fair or market; since it is probable
that no inferior court might be able to serve its process, or execute its judgments, on both or
perhaps either of the parties.” (200)
It is unclear just how “consensual” arbitrations in the context of Medieval guilds and fairs really
P 31 were, since the relevant tribunals appear to have had a degree of mandatory jurisdiction. (201)
P 32 It nonetheless is clear that the guilds and fairs were central to developing their respective
arbitral mechanisms, which functioned with substantial independence from local court
systems. That is reflected in the explanation provided by Gerard Malynes, a 17th-century
English authority on the law merchant:
“The second meane or rather ordinarie course to end the questions and controversies arising
between Merchants, is by way of Arbitrement, when both parties do make choice of honest men
to end their causes, which is voluntarie and in their own power, and therefore called Arbitrium,
or free will, whence the name Arbitrator is derived: and these men (by some called Good men)
give their judgments by Awards, according to Equitie and Conscience, observing the Custome of
Merchants, and ought to be void of all partialitie or affection more nor lesse to the one, than to
the other, having onely care that right may take place according the truth, and that the
difference may be ended with brevitie and expedition.” (202)
It also appears that English courts were prepared during this early period to give effect to
arbitration agreements, by enforcing penalty clauses associated with them (in accordance with
the Roman law compromissum theory), (203) by barring litigation on claims within the scope of
arbitration agreements (204) and by a robust enforcement of awards. (205)
Arbitration appears to have been equally important in commercial affairs in Germany,
Switzerland, Northern Italy and France. The Edict of 1560, promulgated by Francis II, made
arbitration mandatory for the resolution of commercial disputes among merchants; at the
same time, it declared arbitration agreements valid, even without a penalty clause, thereby
moving beyond Roman law requirements for a compromissum. (206) Although successive French
Parliaments apparently fought to restrict the binding character of commercial arbitration, the
practice remained well-established until the French Revolution. (207)
P 32
P 33 Commercial arbitration was also prevalent in the Swiss cantons and German principalities.
(208) In these areas of Europe, arbitration developed from two principal sources, which began
to fuse in the 14th and 15th centuries. On the one hand, local traditions of arbitration were
integrated into the feudal system; on the other, the Catholic Church offered arbitral
mechanisms and practices which developed under canonical law. (209)
Whatever its sources, it is clear that commercial arbitration was very widely-used in these
regions of Europe during the Middle Ages. Consistent with this, early codifications of
procedural law dating from the 14th, 15th and 16th centuries provided for arbitration as a
supplement to local court proceedings. (210) Research in southern Germany, Switzerland and
Austria also reveals thousands of “arbitration deeds” (“Schiedsurkunde”) evidencing a rich and
varied arbitral practice in these regions during the Middle Ages. (211) A representative
example was Bavaria, where there is substantial evidence of commercial arbitration in the
13th and 14th centuries. (212) Another anecdotal example is drawn from the archives of the
principality of Fürstenberg, which contain more than 500 arbitral deeds for the period between
1275 and 1600 (compared to records for some 25 court proceedings). (213)
The traditional concept of arbitration in Germany was remarkably modern in many respects.
Arbitration agreements were treated as binding by state courts, and thus did not require
penalty clauses for enforcement, while arbitral awards were subject to immediate
enforcement, with minimal judicial review. (214)
During Medieval times, arbitration in German-speaking regions frequently did not involve a
strict application of rules of substantive law, instead leaving considerable scope for decisions
based on equity (and for settlements). (215) At the same time, however, arbitral mechanisms
developed in which arbitrators were expected to apply formal legal rules. It is said that a new
type of “arbiter” emerged in the Middle Ages, who was “taken to perform the function of a
judge”: “He was chosen by the parties not merely in order to restore the peace between the
parties or to determine, ex aequo et bono, points which the parties had left open in their
agreement, but to decide a dispute.” (216) As a consequence, a distinction was drawn between
arbitration “nach Guet” (or in equity) and arbitration “nach Recht” (or in law). (217) Where
arbitration “nach Recht” was used, arbitrators were generally obliged to apply the law (in the
P 33
P 34
same manner as a judge), although an arbitrator acting ex aequo et bono was not subject to
such constraints. (218)
The canonical approach to arbitration during this period was somewhat different. The
absorption of canonical law (through the Church) and Roman law (imported from Italian
universities (219) ) changed the nature of arbitration in German-speaking regions from an
informal, consensual mechanism to a more formal, legalistic procedure, where awards could
be challenged in state courts. (220) The canonical model also offered more sophisticated legal
mechanisms based on written legal sources and doctrine, which limited the arbitrators’
discretion. (221) Moreover, in the canonical tradition, an agreement to arbitrate still needed to
be combined with penalty clauses to be effective, (222) and canonical awards were not treated
as immediately enforceable, but remained subject to judicial challenge based on various
14
grounds, including laesio enormis or manifest injustice. (223)
The reasons that merchants resorted to arbitration during the Medieval era are – we will see in
subsequent sections of this Chapter – almost eerily familiar to contemporary users of
international commercial arbitration. Simply put, arbitration was used in substantial part as a
means of overcoming the peculiar difficulties and uncertainties of international litigation in
state courts. One of Europe’s leading historians of the feudal period put it as follows:
“The most serious cases could be heard in many different courts exercising parallel
jurisdiction. Undoubtedly there were certain rules which, in theory, determined the limits of
competence of the various courts; but in spite of them uncertainty persisted. The feudal
records that have come down to us abound in charters relating to disputes between rival
jurisdictions. Despairing of knowing before which authority to bring their suits, litigants often
agreed to set up arbitrators of their own or else, instead of seeking a court judgment, they
preferred to come to a private agreement.…Even if one had obtained a favourable decision there
was often no other way to get it executed than to come to terms with a recalcitrant opponent.”
(224)
P 34
P 35 More generally, in the words of another authority on the feudal period, “in order to escape
the consequences, the delays, or the uncertainties of strict law, arbitration was a more
attractive resort, in nine cases out of ten, than the ordinary judgment of a regular tribunal.”
(225)
Despite its deep historical roots, commercial arbitration also encountered recurrent
challenges, often in the form of political and judicial mistrust or jealousy. These challenges
have sometimes been overstated, and they have almost always (eventually) been overcome by
the perceived benefits of the arbitral process in commercial settings and the (eventual)
acceptance of these benefits by local governments. Moreover, the enforceability of arbitration
agreements appears frequently to have been achieved, in historical commercial settings,
largely through non-legal sanctions, such as commercial, religious and other sanctions
effectuated via guilds or similar bodies. (226) Nonetheless, the historical record is not
complete without addressing some of the more significant challenges that have sporadically
emerged to the legal enforcement of arbitration agreements and arbitral awards.
[3] Commercial Arbitration at English Common Law and English Legislative Reform
In the common law world, Lord Coke’s 1609 decision in Vynior’s Case enjoys the greatest
notoriety, if least precedential support, for its treatment of agreements to arbitrate. The case
involved a suit by Vynior against Wilde, seeking payment on a bond, which had secured the
parties’ promise to submit a dispute over a parish tax payment to arbitration. (227) Coke
granted judgment for Vynior on the bond, but added the following reasoning:
“although…the defendant was bound in a bond to…observe [the] arbitrament, yet he might
countermand it; for a man cannot by his act make such authority…not countermandable, which
is by the law and of its own nature countermandable; as if I make a letter of attorney…so if I
make my testament and last will irrevocable.…And therefore…in both cases [i.e., both where an
arbitration agreement is supported by a bond and where the agreement incorporates no bond]
the authority of the arbitrator may be revoked; but then in the one case he shall forfeit his
bond and in the other he shall lose nothing.” (228)
Scholarly analysis has challenged most aspects of Coke’s opinion – including its excursion into
unnecessary dicta, its inapposite analogies between an arbitration agreement and a power of
P 35 attorney or will and its ill-concealed distaste for the arbitral process. (229) Nonetheless, as
P 36 long as penalty bonds remained enforceable, Coke’s dictum was of limited practical import:
parties could, and, as the Romans and Medieval Germans had, (230) routinely did, include
penalty provisions in their agreements to arbitrate. (231) The common law’s treatment of such
provisions was changed, however, in 1687, when Parliament enacted the Statute of Fines and
Penalties, which disallowed recovery of penalties generally, limiting bond-holders to the
recovery of actual damages. (232) Apparently to correct the effect of this statute on commercial
arbitration, Parliament soon thereafter enacted one of the world’s first extant arbitration
statutes, adopting what is sometimes called the 1698 Arbitration Act. (233) Reflecting an
objective of promoting commerce that would recur in connection with arbitration legislation in
later eras, the Act’s purposes were:
“promoting trade, and rendering the awards of arbitrators more effectual in all cases, for the
final determination of controversies referred to them by merchants and traders, or others,
concerning matters of account or trade, or other matters.” (234)
These objectives were realized by statutory provisions allowing parties to make their
arbitration agreement “a rule of any of His Majesty’s Courts of Record,” which would permit
enforcement by way of a judicial order that “the parties shall submit to, and finally be
concluded by the arbitration and umpirage.” (235) This legislation sought to remedy, at least in
part, the damage effected by the combination of Coke’s dicta in Vynior’s Case and the Statute
against Fines, allowing Blackstone to conclude:
“it is now become the practice to enter into mutual bonds, with condition to stand to the award
or arbitration of the arbitrators or umpire therein named. And experience having shewn the
great use of these peaceable and domestic tribunals, especially in settling matters of account,
and other mercantile transactions, which are difficult and almost impossible to be adjusted on
a trial at law; the legislature has now established the use of them.” (236)
P 36
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P 36
P 37 It nonetheless remained the case that, at English common law, an arbitration agreement was
– on the authority of the dicta in Vynior’s Case, which later hardened into solid precedent –
“revocable” at will. Although damages were in theory recoverable when an arbitration
agreement was revoked, damages could not readily be proven or recovered for breach of an
arbitration agreement – rendering such agreements nearly unenforceable in those cases where
the 1698 Arbitration Act did not apply. (237)
Outside the statutory “safe haven” of the 1698 Arbitration Act, common law enforcement of
arbitration agreements was made even more problematic by the decision in Kill v. Hollister.
There, the court permitted an action on an insurance policy to proceed, notwithstanding an
arbitration clause, on the grounds that “the agreement of the parties cannot oust this court.”
(238) In subsequent centuries, that doctrine – which appeared to raise a broad-based public
policy objection to arbitration (and forum selection) agreements – provided ample support for
both English and U.S. proponents of judicial hostility to arbitration. (239)
Nonetheless, subsequent legislative reforms in England gradually introduced greater support
for commercial arbitration agreements and arbitral tribunals’ powers. The 1833 Civil Procedure
Act restated the rule that an arbitration agreement which was made a rule of court could not
be revoked, while providing arbitrators with a mechanism to summon witnesses and the power
to administer oaths. (240)
At the same time, in the middle of the 19th century, English courts revisited the analysis in Kill
v. Hollister, arriving at a very different view. The leading authority is Scott v. Avery, where Lord
Campbell said:
“Is there anything contrary to public policy in saying that the Company shall not be harassed
by actions, the costs of which might be ruinous, but that any dispute that arises shall be
referred to a domestic tribunal, which may speedily and economically determine the dispute?
…I can see not the slightest ill consequences that can flow from such an agreement, and I see
great advantage that may arise from it.…Public policy, therefore, seems to me to require that
effect should be given to the contract.” (241)
He also disposed of the “ousting the court of jurisdiction” adage – proffered in Kill v. Hollister –
by remarking dismissively that “it probably originated in the contests of the different courts in
ancient times for extent of jurisdiction, all of them being opposed to anything that would
altogether deprive every one of them of jurisdiction.” (242) In a subsequent case, decided the
same year, Lord Campbell declared:
“Somehow the Courts of law had, in former times, acquired a horror of arbitration; and it was
P 37 even doubted if a clause for a general reference of prospective disputes was legal. I never
P 38 could imagine for what reason parties should not be permitted to bind themselves to settle
their disputes in any manner on which they agreed.” (243)
Lord Campbell also provided a famously cynical explanation for the alleged historic hostility
of English common law judges to arbitration:
“This doctrine had its origin in the interests of the judges. There was no disguising the fact that,
as formerly, the emoluments of the Judges depended mainly, or almost entirely, on fees, and as
they had no fixed salaries there was great competition to get as much as possible of litigation
into Westminster Hall and there was a great scramble in Westminster Hall for the division of
the spoil.…And they had great jealousy of arbitration whereby Westminster Hall was robbed of
those cases.” (244)
While Lord Campbell’s derisory description of the English courts’ historical attitude towards
commercial arbitration appears to have been overstated, (245) the more enduring point is his
own resounding endorsement of the arbitral process in commercial matters – a point of view
that has been formulated with increasing vigor by English courts and legislatures in succeeding
decades. (246)
This was confirmed in the 1854 Common Law Procedure Act, one of the first modern efforts at a
comprehensive arbitration statute. (247) Among other things, the Act provided (albeit
circuitously) for the irrevocability of any arbitration agreement, by permitting it to be made a
rule of court, regardless whether the parties had so agreed. (248) At the same time, however,
the statute introduced new limits on the arbitral process by providing for fairly extensive
judicial review of the substance of arbitrators’ awards, through a “case stated” procedure that
permitted any party to obtain judicial resolution of points of law arising in the arbitral
proceedings. (249)
P 38 At the end of the 19th century, England enacted the 1889 Arbitration Act, which was in turn
P 39 widely adopted throughout the Commonwealth. (250) The Act confirmed the irrevocability of
agreements to arbitrate future disputes, (251) while granting English courts discretion whether
or not to stay litigations brought in breach of such agreements (effectively permitting specific
performance of arbitration agreements to be ordered, albeit on a discretionary basis). (252) At
the same time, the Act preserved previous features of English arbitration law, including the
“case stated” procedure for judicial review and the powers of the English courts to appoint
arbitrators and assist in taking evidence. (253) The 1889 Act remained in force for more than
half a century, (254) only eventually being replaced by England’s 1950 Arbitration Act. (255)
In terms of procedures, it appears that a variety of means of selecting arbitrators were used at
English common law. (256) In general, however, a consistent theme in English arbitration was
the use of party-nominated arbitrators, with a presiding arbitrator or umpire. (257) It is unclear
16
how often umpires, rather than three-arbitrator tribunals, were utilized, although the latter
remained a common fixture in English arbitration until well into the 20th century. (258) What
appears to have been an informal approach to rules of procedure in these early arbitrations
was later abandoned, at least in part and for a time, with local judicial procedures being
imposed on English arbitral tribunals (as discussed below). (259)
[4] Commercial Arbitration in France
A broadly similar set of historical developments occurred in France as in England. There, as
discussed above, the Edict of 1560 and merchant practice led to widespread use of arbitration
for resolving commercial disputes in the 16th, 17th and 18th centuries. (260)
P 39 The French Revolution changed this, like much else. Consistent with more general notions of
P 40 social contract and democratic choice, the arbitration agreement was initially afforded
enhanced dignity. Arbitration was described as producing “pure, simple and pacific justice,”
(261) which was legislatively declared to be “the most reasonable means for the termination of
disputes arising between citizens.” (262) In due course, arbitration was elevated to
constitutional status in the Constitution of 1793 (Year I) and the Constitution of 1795 (Year III).
Among other things, Article 86 of the French Constitution of Year I declared that “[t]he right of
the citizens to have their disputes settled by arbitrators of their choice shall not be violated in
any way whatsoever.” (263)
As with many other things, the French Revolution soon turned on its progeny, with arbitration
eventually being considered (ironically) a threat to the rule of law and the authority of the
revolutionary state. (264) With this hostility in the air, the 1806 Napoleonic Code of Civil
Procedure imposed numerous legislatively-mandated procedural and technical restrictions on
arbitration agreements and procedures. (265) In particular, Article 2059 of the Civil Code and
Article 1006 of the Code of Civil Procedure provided that agreements to arbitrate future
disputes were generally unenforceable. (266) The French Commercial Code permitted
agreements to arbitrate future disputes only in limited circumstances, consisting of maritime
insurance contracts and certain corporate and partnership contexts. (267) More generally, as
one commentator observes:
“all the provisions of the [Napoleonic Code] do appear to reflect, so to speak, a hatred of
arbitration agreements and provide evidence of a secret desire to eliminate their existence.”
(268)
This hostility towards the arbitral process was reflected in contemporaneous French legal
commentary, which held that “arbitration is a rough draft of the institutions and the judicial
guarantees” (269) and “[a] satire of judicial administration.” (270)
P 40
P 41 French courts did little during the 19th century to ameliorate this hostility. An 1843 decision
of the Cour de cassation, in Cie L’Alliance v. Prunier, held that agreements to arbitrate future
disputes were not binding unless they identified the particular dispute and specified the
individuals who were to serve as arbitrators. (271) The stated rationale, which would recur in
other historical and geographical settings, was that parties should be protected against the
advance and abstract waiver of access to judicial protections and guarantees. (272) That was
coupled with a parallel perception that “[o]ne does not find with an arbitrator the same
qualities that it is assured to find with a magistrate: the probity, the impartiality, the
skillfulness, [and] the sensitivity of feelings necessary to render a decision.” (273) The judicial
decisions that followed upon these observations significantly limited the practicality and
usefulness of arbitration agreements in 19th (and early 20th) century France.
As discussed below, it took some eight decades before this judicial hostility was moderated by
the French courts and legislature – first in international cases and later in domestic ones. (274)
Indeed, it was only with France’s ratification of the 1923 Geneva Protocol, discussed below, that
agreements to arbitrate future international commercial disputes became fully enforceable in
French courts. (275)
[5] Commercial Arbitration in United States
A broadly similar course was followed with regard to commercial arbitration in the United
States during the 18th and 19th centuries as in England and France. Consistent with the United
States’ vital role in the development of state-to-state arbitration in the 18th century, (276)
arbitration was widely used to resolve commercial (and other) disputes during Colonial times
and the early years of the Republic. Despite this, over the course of the 19th century, significant
judicial (and legislative) hostility to arbitration agreements developed, as some U.S. courts
developed a peculiarly radical interpretation of historic English common law authority. (277)
Importantly, the resulting judicial hostility to the arbitral process did not prevent the use of
P 41 extrajudicial and commercial mechanisms for enforcing arbitration agreements and awards,
P 42 (278) but it nonetheless undoubtedly hindered use of arbitration in the 19th century United
States. This hostility was only fully overcome in the early 20th century, when determined efforts
by the U.S. business community resulted in enactment of the Federal Arbitration Act (“FAA”)
and similar state arbitration legislation. (279)
Difficulties in resolving private disputes existed from the earliest days of European settlement
in North America – which was hardly surprising, in light of the lack of governmental
administrative structures and trained lawyers in the colonies, coupled with the fluid,
sometimes chaotic dynamism of colonial life. Equally unsurprising is the use of various forms of
arbitration to address these difficulties. Early Dutch settlers in New York, frustrated with efforts
17
to replicate European judicial institutions, turned to the election of a council of “arbitrators,”
which was in fact a form of judicial body whose jurisdiction appears in at least some cases to
have been mandatory. (280)
Nonetheless, from an early date, it was also common to refer disputes in New Amsterdam to
true consensual arbitration:
“the arbitrators were left to the choice of the litigants, or appointed by the court.…These
references were frequent upon every court day, and…though the amount involved was
frequently considerable, or the matter in dispute highly important,…appeals to the court from
the decision of the arbitrators were exceedingly rare.” (281)
Some commentators conclude that, after the 1664 hand-over of administration in New York to
Great Britain, the use of arbitration in commercial matters was one of the enduring features of
continuing Dutch influence. (282)
Arbitration of commercial and other matters was widespread in the American colonies during
the 17th and 18th centuries. Drawing on English, as well as Dutch, practice, the colonists found
the flexibility, practicality and speed of arbitral processes well-suited to their conditions:
“From whatever source they derived the practice, the colonists engaged in extensive
arbitration throughout the period of English rule.” (283) Relying on court files (relatively sparse
and terse), newspaper accounts (more fulsome), merchants’ books and chamber of commerce
records, historians have sketched a picture of widespread, routine use of arbitration in
P 42 Colonial commercial matters, including in transactions between businesses in different
P 43 colonies, typically by agreement between the parties after disputes had arisen. (284)
A primary motive then, as now, was avoidance of the delays and costs of litigation. One letter,
printed in a 1751 edition of the “New York Weekly Post-Boy,” recorded a litigant’s plea to a
counter-party:
“let me tell you that after you have expended large Sums of Money, and squander’d away a
deal of Time & Attendance on your lawyers, and Preparations for Hearings one Term after
another, you will probably be of another Mind, and be glad Seven Years hence to leave it to
that Arbitration which you now refuse.” (285)
Whatever the truth, Colonial businessmen of the day shared this view, turning with great
regularity and confidence to arbitration to settle their commercial disputes.
Following the American Revolution, the routine use of arbitration to resolve commercial
disputes did not diminish. On the contrary, as New York developed over the course of the 19th
century from a small, closely-knit colonial town into a cosmopolitan center of commerce, the
use of arbitration grew apace with the expansion of commercial affairs. (286) One commentator
concludes:
“it is clear that arbitration has been in constant use in New York from its beginnings to 1920. It
did not suddenly come into being at that time because of the passage of a statute making
agreements to arbitrate future disputes enforceable. Rather, it has existed with and without
the benefit of statutes, and both separate from, and in connection with, court adjudication.”
(287)
P 43 Or, in another commentator’s words, “[a]rbitration actually was in widespread use in the
P 44 United States almost three centuries before modern arbitration statutes were passed in the
1920s; its history traces back to the colonial period.” (288) The driving motivation for
arbitration in commercial matters during this period, as in many earlier eras, continued to be
the perception by Colonial American businesses “that government courts of the period did not
apply commercial law in what the merchant community considered to be a just and
expeditious fashion.” (289)
As its role as the dominant U.S. commercial and financial center would suggest, New York
practice was representative of the country as a whole at the time. (290) Research into specific
jurisdictions, including New Jersey, Pennsylvania, Connecticut, Massachusetts, Delaware,
Virginia and Ohio, reveals a history similar to that in New York. (291) As one early 19th century
commentator noted, the commercial arbitration system established by New York merchants
offered a lead that “has been taken by the merchants of [Philadelphia] and other cities.” (292)
Other areas of the country had a history of arbitration independent of New York’s lead.
Influenced by Quaker anti-legalism, (293) William Penn’s laws (1682) in Pennsylvania provided
that each precinct should appoint three individuals to serve as “common peacemakers.” (294)
In Dedham, Massachusetts, disputes were mediated from 1636 onwards by “three
understanding men,” or by “two judicious men,” chosen either by the parties or the community
itself – whose decisions were routinely obeyed. (295) Similarly, in Kent County, Delaware, a 1680
judicial decision appointed two arbitrators to decide the case, who would in case of a “non
agreement…chuse a third person as an Umpire [to] make a final End thereof.” (296)
Some early legislative efforts were made in different American states to support the arbitral
process in commercial matters. The first American arbitration legislation appears to have been
adopted in Connecticut, where a 1753 statute, modeled on the English Arbitration Act of 1698,
P 44 provided for the enforcement of agreements to arbitrate future disputes where they had been
P 45 made a rule of court. (297) In 1791, the New York legislature enacted a similar statute, also
virtually identical to the 1698 English Arbitration Act. (298) Similar mechanisms were adopted
in various colonies, including the use of conditioned bonds and promissory notes, designed to
18
make both arbitration agreements and arbitral awards more readily enforceable. (299)
A 1793 American insurance policy contained an arbitration clause, suggesting that legislation of
this character arose from the use of arbitration in routine commercial arrangements:
“And it is agreed, that if any Dispute should arise relating to the Loss on this Policy; it shall be
referred to two indifferent Persons, one to be chosen by the Assured, the other by the Assurer,
who shall have full Power to adjust the same; but in case they cannot agree, then such two
persons shall choose a third; and any two of them agreeing, shall be obligatory to both parties.”
(300)
Nonetheless, it appears that the principal means by which arbitration agreements and arbitral
awards were enforced during the Colonial era was through non-legal or extralegal commercial,
professional and other mechanisms. (301) That is in part because of the character of U.S.
commercial affairs at the time, and in part because of the general shortcomings of legal or
judicial enforcement mechanisms. (302)
Despite the prevalence of commercial arbitration as a means of dispute resolution, and the
P 45 existence of a measure of early legislative and judicial support, some 19th century American
P 46 courts developed a puritanical version of English common law hostility to agreements to
arbitrate future disputes. Indeed, for some decades, a number of U.S. courts held flatly that
agreements to arbitrate future disputes were contrary to public policy and revocable at will.
(303)
Joseph Story, a preeminent U.S. legal authority in a wide range of fields, reflected 19th century
American judicial hostility to arbitration agreements. In 1845, he stated the common law
position in the United States, inherited from England and elaborated with particular vigor:
“Now we all know that arbitrators, at the common law, possess no authority whatsoever, even to
administer an oath, or to compel the attendance of witnesses. They cannot compel the
production of documents and papers and books of account, or insist upon a discovery of facts
from the parties under oath. They are not ordinarily well enough acquainted with the principles
of law or equity, to administer either effectually, in complicated cases; and hence it has often
been said, that the judgment of arbitrators is but rusticum judicium. Ought then a court of
equity to compel a resort to such a tribunal, by which, however honest and intelligent, it can in
no case be clear that the real legal or equitable rights of the parties can be fully ascertained or
perfectly protected?…[An arbitration agreement is not specifically enforceable because it] is
essentially, in its very nature and character, an agreement which must rest in the good faith
and honor of the parties, and like an agreement to paint a picture, to carve a statue, or to write
a book…must be left to the conscience of the parties, or to such remedy in damages for the
breach thereof, as the law has provided.” (304)
While this left open the possibility of recovering money damages for breach of an arbitration
agreement, (305) this was virtually never an effective (or even very plausible) means of
enforcement, since adequate proof of injury resulting from a refusal to arbitrate was virtually
impossible. (306)
P 46 Relying on literal interpretations of the English common law in Vynior’s Case and Kill v.
P 47 Hollister, (307) and evidencing a disdain for the arbitral process reminiscent of early 19th
century French authors, (308) Story’s influential academic commentaries adopted similar
reasoning:
“where the stipulation, though not against the policy of the law, yet is an effort to divest the
ordinary jurisdiction of the common tribunals of justice, such as an agreement, in case of any
disputes, to refer the same to arbitrators, Courts of Equity will not, any more than Courts of Law,
interfere to enforce that agreement, but they will leave the parties to their own good pleasure
in regard to such agreements.…The regular administration of justice might be greatly impeded
or interfered with by such stipulations if they were specifically enforced. And at all events
courts of justice are presumed to be better capable of administering and enforcing the rights
of the parties than any mere private arbitrators, as well from their superior knowledge as from
their superior means of sifting the controversy to the very bottom.” (309)
Elsewhere, Story apparently went even further, seemingly declaring that agreements to
arbitrate future disputes violated public policy (which would presumably result in denial of
even a claim in damages for breach of an arbitration agreement). He rejected specific
performance of such agreements, “deeming it against public policy to exclude from the
appropriate judicial tribunals of the State any persons who, in the ordinary course of things,
have a right to sue there.” (310)
Although the precise basis for this judicial hostility was unclear, (311) some U.S. courts applied
an extreme interpretation of English common law precedents to withhold meaningful judicial
P 47 enforcement of arbitration agreements throughout much of the 19th century. (312) In the words
P 48 of then-Judge Cardozo: “It is true that some judges have expressed the belief that parties
ought to be free to contract about such matters as they please. In this state, the law has long
been settled to the contrary.…The jurisdiction of our courts is established by law, and is not to
be diminished, any more than it is to be increased, by the convention of the parties.” (313) Or,
as a leading treatise concluded: “It is an elementary proposition of the common law cases, and
is almost universally accepted by the American courts, that future disputes clauses and
provisions for arbitration are revocable.” (314)
Moreover, U.S. courts and legislatures did not quickly follow the path of Scott v. Avery or the
19
1889 English Arbitration Act, which had taken steps to facilitate the enforcement of arbitration
agreements in England. (315) As the Second Circuit once wrote, with only a measure of
exaggeration, “[one] of the dark chapters in legal history concerns the [treatment of questions
of the] validity, interpretation and enforceability of arbitration agreements” by U.S. courts in
the 19th century. (316)
Importantly, even while many U.S. courts refused to enforce commercial arbitration
agreements during the middle and late 19th century, arbitration remained both popular and
effective in American commercial settings: “The use of commercial arbitration developed
during the colonial and post revolutionary periods in spite of this [judicial] hostility.” (317) As
already noted, it did so on the basis of non-legal commercial sanctions and enforcement
mechanisms, including through membership in commercial guilds, societies, municipal
communities, or religious groups, all of which proved sufficiently resilient to sustain arbitration
as an effective means of dispute resolution notwithstanding judicial hostility. (318)
Moreover, even with regard to judicial enforcement of arbitration agreements and awards,
other movements were afoot in the United States by the mid- and late 19th century. Courts in a
P 48 number of American jurisdictions rejected the common law notion that arbitration agreements
P 49 were either unenforceable or revocable, and instead upheld them, (319) while also enforcing
arbitral awards with minimal judicial review. (320) Rejecting Story’s doctrinal authority, a
Virginia court declared in 1858, in terms that could have been written 150 years later, that:
“The only ground on which [the arbitration agreement] can be said to be unlawful is, that in
referring all disputes and difficulties arising under the contract to the engineer or inspector, it
tends to oust the courts of law of their jurisdiction; and is therefore against the policy of the
law and void.…I am certainly not disposed to extend the operation of a rule which appears to
me to have been founded on very narrow grounds, directly contrary to the spirit of later times,
which leaves parties at full liberty to refer their disputes at pleasure to public or private
tribunals.” (321)
At the same time, as noted above, legislation or judicial decisions in a number of U.S. states
permitted the use of rules of court, conditioned bonds, or promissory notes to provide
enforcement mechanisms for arbitration agreements and arbitral awards. (322)
Shortly after the U.S. Civil War, the U.S. Congress enacted legislation encouraging efforts to use
P 49 arbitration to resolve international commercial disputes – although it does not appear that the
P 50 statute had significant practical effects. (323) What did continue to have practical effects,
however, were commercial and professional associations, which ensured that arbitration
remained a central part of commercial life, even during the “dark chapters in legal history,”
when U.S. courts were most hostile to arbitration and agreements to arbitrate. (324)
U.S. judicial and legislative hostility to commercial arbitration substantially eroded in the late
19th and early 20th century. American judicial opinions began increasingly to question the
wisdom of Story’s views, (325) while commercial pressure for legislative reform built. (326) This
pressure eventually had its intended effect, and in 1920 New York enacted legislation providing
for the validity and specific enforcement of arbitration agreements. That was followed in 1925
by similar provisions in the FAA (which are discussed in detail below), which paralleled
negotiation and adoption of the 1923 Geneva Protocol (also discussed below). (327) The New
York arbitration law and FAA enacted a sea change from the American common law by
instituting a default rule that contracts to arbitrate were valid and would be specifically
enforced by the courts. (328)
[6] Commercial Arbitration in Other European Jurisdictions in 18th and 19th Centuries
The history of commercial arbitration in other nations did not always involve the same degree
of judicial or legislative hostility as occasionally demonstrated in 18th and 19th century
England, France and the United States. Historically, commercial arbitration was commonly
used by merchants in what is today Germany, perhaps particularly because of the lack of a
centralized government (until comparatively recently) and the demands of international
P 50 commerce. (329) Thus, a German commentator at the beginning of the 20th century could
P 51 observe, with regard to historic German experiences: “arbitral tribunals have at all times
been regarded as an urgent necessity by the community of merchants and legislation has
always granted them a place alongside the ordinary courts.” (330)
The role of arbitration in commercial matters was recognized, and given effect, in the civil
codes of Baden (in 1864), Prussia (in 1864) and Bavaria (in 1869). All of these statutory
codifications confirmed the role of arbitration in the resolution of commercial disputes, while
granting arbitrators varying degrees of freedom from local procedural and substantive
requirements and judicial control. (331) These developments led to statutory provisions
regulating arbitration in the first German Code of Civil Procedure of 1877 (which would remain
the fundamental basis for Germany’s legal regime for arbitration until 1998).
The 1877 Code of Civil Procedure incorporated provisions that freed arbitrators from the
obligation to apply strict legal rules (and, concurrently, from judicial review of the substance of
awards). The drafters of the Code explained:
“By submitting themselves to arbitration the parties want to escape from the difficulties and
complexities arising from the application of the law. They intend that the law as between them
should be what the arbitrators, according to their conscientious conviction – ex aequeo et bono
– determine. They will therefore as a rule consider the arbitrators to be friendly mediators –
20
amiables compositeurs, as the Belgian draft says – and it is obvious that they do so consider
them whenever they appoint as arbitrators persons who are not learned in the law. As a rule
therefore the goal of arbitration is attained only when the arbitrators are not bound to follow
the ordinary rules of law when giving their awards.” (332)
At the same time, at the end of the 19th and beginning of the 20th century, German courts gave
active support to the arbitral process, including by pioneering the development of what would
later be termed the separability doctrine, in order to facilitate the enforcement of arbitration
agreements. (333)
By the turn of the 20th century, permanent arbitral tribunals, organized under the auspices of
trade organizations, became a common feature of German business life. In 1909, 1030 cases
were pending before such tribunals in Berlin alone. (334) Contemporaneous German authors
generally praised the arbitral process, highlighting its efficiency, trustworthiness and the
commercial sense of arbitrators with industry experience. (335)
Like some common law courts, however, the German courts came in the next decades to
P 51 “guard[] their rights with extreme jealousy, and were only too inclined to set aside awards [on
P 52 the basis of] even a slight failure to comply with the provisions of the Code.” (336) The
provisions of the German Code of Civil Procedure left considerable leeway to local courts to
interfere with the arbitral process, curtailing the practical value of arbitration. (337)
The mistrust for arbitration in German courts (and commentary) developed with particular
vigor between the two World Wars, (338) becoming especially pronounced after the rise of the
National Socialists in 1933. (339) According to the “Guidelines of the Reich Regarding Arbitral
Tribunals,” published in December 1933, arbitration threatened governmental authority and
“the State itself,” demanding a rejection of arbitration agreements in state contracts:
“Directives for the Reichs-authorities on arbitration clauses have been enacted, which lay
down that all disputes arising out of contracts between the Reich and a private party must, in
principle, be brought before the ordinary courts. It is emphasized in the directives that due to
practical experience the alleged advantages of arbitration, namely rapidness of settlement
and lower cost-expenditure, are rather problematic and are altogether not capable to
outweigh the disadvantages of greater legal uncertainty mostly present in arbitration in
comparison to the ordinary jurisdiction. From the political perspective it must further be
noticed, that a greater extension of arbitration would constitute a loss of confidence in the
national jurisdiction and ultimately in the State itself.” (340)
One local adherent approved the declaration, adding “that the national-socialist state rejects
– contrary to liberalists’ views – arbitral tribunals” altogether. (341)
Consistent with this rationale, the Nazi regime systematically curtailed the use of arbitration in
all walks of German life, both domestic and international. (342) As one contemporaneous
commentator explained, “[t]o the totalitarian state, with its doctrine of the all-enslaving power
P 52 of the state (or more correctly, of the armed groups and their leaders) arbitration means an
P 53 attempt of private individuals to free an important part of their activities from the
dominating yoke of the governing group.” (343)
As already described, the Napoleonic Code (and Cour de cassation, in an 1843 decision) had
adopted a similarly antiarbitration course in France, which persisted until the 1920s. (344)
Despite that, Belgian courts refused, unusually, to follow the approach of the French Cour de
cassation on this subject and instead gave effect to agreements to arbitrate future disputes.
(345) The Netherlands took a similar approach, enacting an Arbitration Act as part of its Code of
Civil Procedure in 1838 to provide a comprehensive legal framework for commercial
arbitration. (346) The Dutch and Belgian approach reflected the Low Countries’ historical
reliance on arbitration, (347) which can be attributed in significant part to their mercantile
cultures and the influence of Roman law. (348) Swiss cantonal legislation and constitutions
were also generally supportive of arbitration during this era. (349)
[7] Arbitration in Middle East, Asia, Africa and Americas
While there is not the same corpus of evidence of arbitration outside Europe and the Americas,
it appears from available historical materials that arbitration of commercial disputes has
been Arbitration in its contemporary form was introduced into many regions through British,
Spanish, Dutch or other colonialism, but often co-existed with or supplanted earlier local
traditions. (350)
[a] Middle East
In Arab and Islamic areas, in particular, there was a long and rich history of commercial
P 53 arbitration. (351) The use of arbitration in the Middle East dates to pre-Islamic times when
P 54 there was no centralized, established system of justice, and arbitration was used to settle
disputes between both individuals and tribes. (352) Arbitration was voluntary and the
arbitrator’s decision was not legally binding: (353) In one commentator’s words, “[d]isputes in
pre-Islamic Arabia were resolved under a process of arbitration (of sorts).…This was voluntary
arbitration, an essentially private arrangement that depended on the goodwill of the parties.”
(354)
In terms of procedures, the arbitrator in pre-Islamic arbitrations in many parts of the Arab
Middle East was chosen by the parties and was not obliged to apply rules of law or follow
judicial procedures, but, at a minimum, typically conducted a hearing attended by all parties.
21
(355) Enforcement of awards generally depended on the moral authority of the arbitrator,
although in some instances parties were required to submit a bond to guarantee enforcement
of the awards (not dissimilar to Roman, canonical and English penalty mechanisms). (356)
Although political territories and religious groups in the region differed widely in their
practices, (357) arbitration continued to be a popular form of dispute resolution after the
advent of Islam. The Prophet Muhammad appointed arbitrators to resolve his own disputes
and counseled tribes to use arbitrators for peaceful settlement of their differences. (358)
The Prophet also served as arbitrator, with the most famous of these examples involving a
dispute between two clans over placement of the sacred black stone in the Ka’aba in Mecca.
The Prophet fulfilled his mandate by placing a cloak under the stone and asking a
representative from each clan to lift one side of the cloak, with the resulting joint effort
marking the resting place of the Black Stone. In later arbitrations, the Prophet was chosen to
settle disputes between other clans, including the Aws and Khazraj tribes of Medina, and a
dispute with the Bani Qurayzah, a Jewish tribe, in which both parties agreed to submit their
dispute to arbitration. (359)
The Koran also condones arbitration with respect to family matters, in Verse 35 of the Surah of
the Women: “If ye fear a breach Between them twain, Appoint (two) arbiters, One from his
P 54 family, And the other from hers; If they wish for peace, Allah will cause Their reconciliation: For
P 55 Allah has full knowledge, And is acquainted With all things.” (360) The verse has been
interpreted to extend approval to party-nominated arbitrators (361) and to arbitration in
matters of politics and the state. (362)
The most famous arbitration in Islamic history took place between Ali (the Fourth Caliph) and
Mu’awiyyah (Governor of Syria). The arbitration arose from a written agreement including
provisions for nomination of arbitrators, terms of reference, applicable law and a time limit for
making the award. (363)
During the 19th century, the Ottoman Empire adopted legislation (modeled on then recently-
adopted European arbitration legislation) regulating the arbitral process. In particular, the
Ottoman Civil Code of 1876 contained 11 articles (Articles 1841-1851) dealing with arbitration,
generally in a relatively restrictive manner. (364) Among other things, paralleling the
unavailability in some states of specific performance of arbitration agreement, the Ottoman
Civil Code permitted either party to “dismiss the arbitrator before he has given his decision,”
unless the arbitrator’s appointment had been judicially confirmed. (365) Moreover, Article 1849
provided for broad powers of judicial review, mandating that an award shall be confirmed “if
given in accordance with law. Otherwise it shall not be so confirmed.” (366)
[b] Jewish Communities
There is a long tradition of arbitration in Jewish communities, both in the Middle East and
elsewhere. A system of Jewish courts (battei dinin), including the Sanhedrin, were developed at
an early stage for resolution of civil, criminal and other disputes. (367) According to many
authorities, arbitration only flourished in Jewish communities during the Roman period, as an
P 55 alternative to Roman courts, after Roman law restricted Jewish judicial autonomy. (368) In the
P 56 words of one writer, arbitration in Jewish communities in Antiquity “was the outgrowth of a
period of persecution and oppression that followed the destruction of the Second Temple.”
(369) At the same time that Jewish communities relied on arbitration as a means of preserving
local autonomy, agreements by Jews to submit disputes to arbitration, and decisions by Jewish
arbitral tribunals, were recognized and given effect by Roman authorities. (370) In contrast,
Jewish communities in Babylon apparently enjoyed substantial judicial autonomy from Roman
authorities and did not make use of arbitration. (371)
A characteristic feature of arbitration in Jewish communities in the Classical era was the use of
party-appointed arbitrators (on three-person tribunals); indeed, the Hebrew term for
arbitration (Zabla) is derived from the phrase “zeh borer lo ehad,” meaning “he chooses one.”
(372) The Talmud subsequently addressed the issue, providing: “Civil cases by three; one party
may select one and so the other, and both of them select one more; so is the decree of R. Meir.
The Sages, however, maintain that the two judges may select the third one.” (373) Classical
Jewish arbitrations were also characterized by the final resolution of disputes (with arbitration
distinguished from mediation or conciliation, which did not produce binding decisions). (374)
Arbitration was also widely-used in Jewish communities outside the Middle East as a
P 56 consequence of the Jewish Diaspora. (375) Jewish communities adapted differently in different
P 57 locales throughout Europe during the Middle Ages. (376) In some jurisdictions, such as
Germany, Jewish communities generally enjoyed substantial autonomy, (377) establishing
relatively formalized dispute resolution mechanisms with tribunals composed of rabbis,
applying Jewish law and sometimes denominated as Beth Dins (Jewish courts or, literally,
“houses of judgment”). (378) In other jurisdictions, such as Italy, Jewish communities were not
afforded substantial autonomy and informal arbitral mechanisms were adopted (with rabbis
again playing a significant role in dispute resolution). (379)
The tradition of three-person tribunals continued in Jewish communities during the Diaspora.
In general, where the arbitrators (or parties) were unable to agree upon the identity of the
third arbitrator, the appointment would be made by the elders of the locality; it was
apparently common practice for the rabbi of the city or town to be appointed as the third
arbitrator. (380) The parties were free to agree upon fewer or more than three arbitrators,
22
which apparently occurred not infrequently in practice. (381) Arbitrators were apparently
required to be (relatively) independent of the parties. (382)
Parties reportedly enjoyed broad autonomy over the arbitral procedures. (383) Formal
requirements applicable in Jewish courts were inapplicable in arbitration and in some
localities special rules of arbitral procedure were adopted. (384) In Krakow, for example,
arbitrators were required to begin the arbitral hearing within 24 hours of their appointment
and render a decision within three days of the hearing. (385)
There were apparently debates, in different Jewish localities, about the degree of formality
that was required for a binding arbitration agreement. (386) There were also apparently
disputes about the subjects that could be submitted to arbitration, with some authorities
indicating that both civil and criminal matters could be arbitrated and others limiting
arbitrable subjects to civil disputes. (387) Arbitrators were reportedly not required to render
reasoned awards, although they sometimes did (as in the cases of a 17th century award in
Vienna, holding that leaders of the Jewish community had not committed financial
malfeasance). (388)
P 57
P 58 The use of arbitration for the settlement of disputes in the Jewish community expanded
during the 20th century in many jurisdictions. The Beth Din of America was founded in 1960, and
provides an umbrella organization for the resolution of disputes by rabbinical courts (Beth Din)
in a number of U.S. cities. (389) Beth Dins exist in other jurisdictions as well, including England,
South Africa and Switzerland (site of the European Beth Din which serves individuals and
communities in a number of European states, including Austria, Bulgaria, Denmark, Finland,
Germany, Hungary, Norway, Poland, Romania, Slovakia, Sweden and Turkey). (390)
[c] East and Southeast Asia
In East and South Asia, commentators conclude that arbitration has existed since antiquity.
The recorded history of arbitration in many parts of Asia largely follows developments of the
colonial powers. (391) That said, fragments of history provide insights into a deep-rooted
reliance on arbitration in at least some areas and time periods.
China has a long tradition of settling disputes through conciliation and arbitration, said to be
grounded in the Confucian ideal of harmony. (392) For example, reports from the Qing dynasty
describe the resolution of a property dispute by six relatives and friends who examined the
dispute and crafted a compromise which was approved by a local court. (393)
P 58
P 59 Most traditional forms of dispute resolution, particularly in China and Japan, more closely
resemble conciliation or mediation, rather than arbitration. (394) For example, the lineage
system in parts of China recognized the authority of elder members of village society to
mediate disputes and settle local conflicts. (395) Similar private adjudicatory processes have
existed for centuries in Indonesia, the Philippines and other parts of South Asia. (396) Some of
these dispute resolution systems were later codified in the early 19th century, notably in the
Code of the Three Great Seals in Thailand, which prescribed an early form of binding
arbitration. (397)
[d] India
Hindu mythology provides early descriptions of arbitration. In some accounts of the Ramayana,
Rama and his family attempt to settle their disputes through arbitration by the deities. (398) In
one story, Shiva’s twin sons capture their father’s horse, leading to a battle between the sons
and father (who is unaware of the identity of his sons). A range of Hindu deities (including
Brahman, Siva, Indra, and their wives) attempt to resolve the dispute through mediation,
including by attempting to persuade the twins to accept a divine arbitrator; in a development
reminiscent of some contemporary arbitral settings, none of these efforts succeed, because the
parties reject all proposals for arbitrators for various asserted reasons of partiality. (399)
In ancient India, local village councils (jirgas and panchayatts) conducted informal arbitral
proceedings and their decisions were considered binding. (400) These forms of dispute
resolution involved the nomination of local luminaries, often village elders or others of high
social stature, to settle disputes within communities. This traditional council of adjudicators
eventually evolved into a form of self-rule in India, the panchayatt raj, which incorporated
arbitral practices as part of a post–colonial ideal of local governance and grassroots
democracy. (401)
There is some evidence that early Indian practice preferred panchayat dispute resolution to
litigation before judges who had been appointed by political authorities; the informal nature
of the proceedings and the ability to avoid the technical requirements of India’s judicial
system was seen as a significant advantage. (402) Even today, many villages in Southern Asia
view state courts with suspicion and prefer to settle disputes before the panchayat, which
P 59 takes forms varying from informal mediation by family/village elders to enforceable decisions
P 60 of panchayat committees. Under British colonial administration, arbitration was accorded a
limited, but gradually expanding, place in the resolution of Indian commercial disputes. (403)
[e] Africa
Africa presents a similar situation. The recorded history of arbitration is not well-elaborated
until the colonial period, when Europeans imported their use of commercial arbitration into
the African setting. (404) Nonetheless, local commentators report that “[a]rbitration and ADR…
23
have always existed in Africa, harking back to ancient custom that, unlike in the northern
hemisphere, is still practised widely.” (405) In traditional African communities, “when a dispute
arose among individuals, even in non-commercial transactions, the complainant invariably
referred the matter to a third party for redress.” (406) The most serious disputes were resolved
by a council of elders that would take testimony and sometimes hear the arguments of agents
acting as advocates on behalf of the disputants. (407)
[f] Latin America
There is a long history of arbitration as a means of commercial dispute resolution in Latin
America. Spanish and Portuguese rule was particularly influential, and colonial arbitration
regulations and legislation remained in force even after independence, until the new American
states developed their own civil procedure codes. (408) This readiness to accept arbitration
changed somewhat with the new legislation, which did “not always provid[e] very efficient
regulation for the enforcement of arbitration agreements and awards.” (409)
While “Mexican legal culture has a long history of promoting conflict resolution through
mediation and negotiation rather than through litigation,” Mexico’s 1890 Commercial Code
P 60 disfavored arbitration, instead expressing a preference for conventional litigation procedures.
P 61 (410) In both Paraguay and Chile, rules on arbitration were enacted as part of domestic civil
procedure codes in 1883 and 1902, respectively, and remained essentially unchanged during
the next century. (411)
As for independent Brazil, while it initially exhibited enthusiasm for commercial arbitration –
enacting legislation in 1850 mandating arbitration for commercial cases – this was repealed
only seventeen years later. (412) Thereafter, Brazil soon became known as “one of the most
notorious examples of Latin American adversity against arbitration.” (413) Indeed, until
recently, Brazilian courts would not enforce predispute agreements to arbitrate (414) and
Brazilian courts did not recognize a foreign arbitral award until 1940, citing the exclusive
jurisdiction of local courts under Brazilian civil procedural rules. (415)
Notwithstanding inefficient procedures – and, in the case of Brazil, official hostility to
commercial arbitration – pressure from domestic commercial interests nonetheless helped
foster “a surge in and growing popularity of arbitration for the resolution of commercial
disputes, particularly after the end of the First World War.” (416) In 1916, for example, the
Buenos Aires Stock Exchange entered into a bilateral agreement with the United States
Chamber of Commerce to establish a system of international commercial arbitration. (417) For
the most part, however, these efforts did not bear fruit until the 1990s, when Brazil began
increasingly to accept and support international commercial arbitration.
*****
Despite generally supportive historic traditions, international commercial arbitration
eventually came to be regarded with mistrust in parts of Asia, Africa, the Middle East and Latin
America during the course of the 20th century. Reflecting deep-seated political attitudes,
countries in these regions frequently limited the efficacy of agreements to arbitrate future
P 61 disputes and refused to recognize the finality of arbitral awards. (418) As discussed below, it
P 62 was only in the 1980s and 1990s that many countries in these regions ratified the New York
Convention and adopted even arguably workable international arbitration legislation. (419)
[8] Arbitral Procedures in Commercial Arbitration
The procedures that were historically adopted for commercial arbitration bore important
similarities to those in state-to-state arbitral proceedings. (420) Procedural flexibility,
informality and efficiency were key attributes of the arbitral process, and central to the
business community’s preference for arbitration. (421) Equally, contemporary users and
observers regarded commercial arbitration procedures as more likely to produce sensible
results and to facilitate settlement than litigation. (422)
Although evidence is less clear with regard to early periods, it appears that the institution of
party-nominated co-arbitrators was an enduring feature of commercial arbitration (just as in
inter-state arbitrations (423) ). As noted above, this procedure was prevalent in Rome, England,
Continental Europe, the United States, the Middle East and elsewhere. (424) A striking
example, drawn from George Washington’s last testament, records the use of party-nominated
arbitrators in U.S. colonial times:
“My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be
decided by three impartial and intelligent men, known for their probity and good
understanding; two to be chosen by the disputants, each having the choice of one, and the
third by those two. Which three men thus chosen, shall, unfettered by Law, or legal
constructions, declare their Sense of the Testator[‘]s intention; and such decision is, to all
intents and purposes, to be as binding on the Parties as if it had been given in the Supreme
Court of the United States.” (425)
In a very different context, traditional Beth Din arbitration in Jewish communities provided for
party-appointed arbitrators (which were regarded as a distinguishing characteristic of the
arbitral process). (426) And, from yet another quarter, an 1875 Institut de Droit International
Resolution for International Arbitral Procedure provided for a default appointment mechanism
whereby each party selected one arbitrator and the two co-arbitrators then selected a
chairman. (427)
24
The use of party-nominated co-arbitrators continued into the 20th century. The predominant
means of selecting arbitral tribunals in 19th century New York practice appears, from standard
P 62 forms used in different types of contracts, to have been three-person tribunals, with each party
P 63 nominating an arbitrator and the co-arbitrators jointly choosing a chairman or umpire. (428)
The same procedures prevailed in other Colonial settings in the United States. (429) In some
instances, the two co-arbitrators were joined by an “umpire,” and in others by an arbitrator,
(430) but the basic structure of two party-nominated arbitrators, with a third member of the
tribunal presiding, was an enduring, universal feature of commercial arbitration in widely
different historical settings.
Arbitral procedures varied across geographic location, time period and commercial settings. In
some instances, arbitral procedures were highly informal, differing materially from national
court proceedings at the time. (431) In other settings, arbitral procedures were formalized,
including testimony under oath and representation of parties by counsel. (432) In some cases,
it appears that arbitrations were public events, attracting considerable local attention and
audiences. (433)
[C] Development of Contemporary Legal Framework for International Arbitration

During Early 20th Century
The mistrust of the arbitral process which had arisen in some jurisdictions during the 19th
century (434) was eroded, and then firmly repudiated, during the 20th century. This was
accomplished by means of a panoply of related developments, including the adoption of
international arbitration conventions, national arbitration legislation and institutional
arbitration rules, and the supportive roles of national courts in many jurisdictions. The driving
force behind these various developments was the international business community, also the
principal user of the arbitral process, which found ready audiences in national legislatures and
judiciaries eager to promote international trade, investment and peace by providing workable,
P 63 effective international dispute resolution mechanisms. It was the combination and active
P 64 collaboration of these two communities – public and private – that produced the
contemporary legal framework for international commercial arbitration.
The first international commercial arbitration treaty in the modern era was the Montevideo
Convention, signed in 1889 by various Latin American states. (435) Like other early efforts in the
field, the Montevideo Convention attracted few signatories and had little practical impact.
Nevertheless, it initiated a tradition of multilateral conventions that progressively elaborated
and improved the international legal framework for the arbitral process.
Almost immediately after adoption of the Montevideo Convention, the 1899 Hague Convention
for the Pacific Settlement of Disputes and the 1907 Hague Convention for the Pacific Settlement
of International Disputes provided (as discussed above, with limited success) for the
settlement of inter-state disputes by arbitration. (436) It remained, however, for later
developments, in the 1920’s, to lay the foundations of the contemporary legal framework for
international commercial arbitration.
[1] Geneva Protocol of 1923
During the first decades of the 20th century, businesses in developed states made increasingly
urgent calls for legislation to facilitate the use of arbitration in resolving domestic and,
particularly, international commercial disputes. (437) These appeals emphasized the
importance of reliable, effective and fair mechanisms for resolving international disputes to
the expansion of international trade and investment. (438) In the international context, the
newly-founded International Chamber of Commerce (established in 1919) played a central role
in efforts by the business community to strengthen the legal framework for international
arbitration. (439)
P 64 In 1923, initially under the auspices of the International Chamber of Commerce, major trading
P 65 nations negotiated the Geneva Protocol on Arbitration Clauses in Commercial Matters
(“Geneva Protocol”). (440) The Protocol was ultimately ratified by the United Kingdom,
Germany, France, Japan, India, Brazil and about two dozen other nations. (441) Although the
United States did not ratify the Protocol, the nations that did so represented a very significant
portion of the international trading community at the time.
The Geneva Protocol played a critical – if often underappreciated – role in the development of
the legal framework for international commercial arbitration. (442) Among other things, the
Protocol laid the basis for the modern international arbitral process, requiring Contracting
States to recognize, if only imperfectly, the enforceability of specified international arbitration
agreements and arbitral awards; (443) in particular, the Protocol was limited to arbitration
agreements “between parties subject respectively to the jurisdiction of different contracting
states.” (444) The Protocol also permitted Contracting States to limit its scope to “contracts
which are considered as commercial under its national law.” (445)
Among other things, the Geneva Protocol declared:
“Each of the Contracting States recognizes the validity of an agreement whether relating to
existing or future differences between parties subject respectively to the jurisdiction of
different contracting states by which the parties to a contract agree to submit to arbitration all
or any differences that may arise in connection with such contract relating to commercial
matters or to any other matter capable of settlement by arbitration, whether or not the
25
arbitration is to take place in a country to whose jurisdiction one of the parties is subject.”
(446)
This provision was complemented by a further declaration, in Article IV, that:
“The tribunals of the Contracting Parties, on being seized of a dispute regarding a contract
made between persons to whom Article I applies and including an arbitration agreement
P 65 whether referring to present or future differences which is valid by virtue of the said article and
P 66 capable of being carried into effect, shall refer the parties on the application of either of
them to the decision of the arbitrators.” (447)
Within the space of these two sentences, the Geneva Protocol planted the seeds for a number
of principles of profound future importance to the international arbitral process – including
the presumptive validity of agreements to arbitrate future (as well as existing) disputes, (448)
the obligation of national courts to refer parties to arbitration, (449) the concept of arbitrating
“commercial” disputes and disputes “capable of settlement by arbitration,” (450) and the
obligation to recognize international arbitration agreements on an equal footing with domestic
arbitration agreements. (451) As discussed elsewhere, all of these basic themes reappeared
repeatedly in international conventions and national legislation over the next 80 years and
remain the foundation of the contemporary legal framework for international commercial
arbitration. (452) Importantly, the Protocol also established standards which made
international arbitration agreements more enforceable than domestic arbitration agreements
had historically been in many nations, (453) reflecting a deliberate policy of promoting the use
of arbitration to resolve international commercial disputes. (454)
Additionally, Article III of the Geneva Protocol attempted to provide for the recognition of
international arbitral awards. It declared:
“Each Contracting State undertakes to ensure the execution by its authorities and in
accordance with the provisions of its national laws of arbitral awards made in its own
territory.” (455)
This provision was extremely limited, providing only for Contracting States to enforce awards
made on their own territory (i.e., not “foreign” awards, made in other countries). Even then,
enforcement was required only in accordance with local law – effectively making the
commitment dependent on each individual state’s arbitration legislation. In contrast to the
simple, but dramatic, provisions of the Geneva Protocol regarding arbitration agreements,
Article III’s treatment of arbitral awards was at best tentative and incomplete. (456)
Finally, the Protocol also recognized, again imperfectly, the leading role of party autonomy in
establishing the arbitral procedures. (457) In particular, it provided for the application of both
the procedures specified in the parties’ agreement to arbitrate and the law of the arbitral seat,
without any priority between the two sources. (458)
[2] Geneva Convention of 1927
P 66
P 67 The Geneva Protocol was augmented by the Geneva Convention for the Execution of Foreign
Arbitral Awards of 1927. (459) Recognizing the Protocol’s deficiencies in dealing with this issue,
the Geneva Convention expanded the enforceability of awards rendered pursuant to
arbitration agreements subject to the Geneva Protocol. It did so by requiring the recognition
and enforcement of such “foreign” awards within any Contracting State (rather than only within
the state where they were made, as under the Protocol), and forbidding substantive judicial
review of the merits of such awards in recognition proceedings. (460)
Regrettably, the Convention placed the burden of proof in recognition proceedings on the
award-creditor, requiring it to demonstrate both the existence of a valid arbitration
agreement, (461) concerning an arbitrable subject matter, (462) and that the arbitral
proceedings had been conducted in accordance with the parties’ agreement. (463) The
Convention also required the award-creditor to show that the award had become “final” in the
place of arbitration (464) and was not contrary to the public policy of the recognizing state.
(465) This approach to the awards’ finality led to the so-called “double exequatur” requirement
– whereby an award could effectively only be recognized abroad under the Geneva Convention
if it had been confirmed by the courts of the place of the arbitration. (466) This proved a major
source of difficulty and uncertainty in establishing the finality of international arbitral awards
under the Geneva Convention. (467)
Despite their shortcomings, the Geneva Protocol and Geneva Convention were major steps
towards today’s legal framework for international commercial arbitration. Most fundamentally,
both instruments established, if only imperfectly, the basic principles of the presumptive
validity of international arbitration agreements (468) and arbitral awards, (469) and the
enforceability of arbitration agreements by specific performance, (470) as well as recognition
of the parties’ autonomy to select the substantive law governing their relations (471) and to
determine the arbitration procedures. (472)
P 67
P 68 Further, the Geneva Protocol and Convention both inspired and paralleled national
legislation and business initiatives to augment the legal regime governing international
commercial arbitration agreements. As already discussed, in 1920, New York enacted
arbitration legislation, largely paralleling the Geneva Protocol, to ensure the validity and
enforceability of commercial arbitration agreements. (473) Likewise, with an eye towards
ratification of the Geneva Protocol, France adopted legislation in 1925 that made arbitration
26
agreements valid in commercial transactions, (474) while similar legislation was enacted in
England. (475)
Also in 1925, the United States enacted the Federal Arbitration Act – providing the first federal
legislation in the United States governing domestic (and international) arbitration agreements.
(476) The centerpiece of the FAA was §2, which provided that arbitration agreements “shall be
valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract,” (477) while §§9 and 10 of the Act provided for the presumptive
validity and enforceability of arbitral awards. (478) Much like the 1923 Geneva Protocol, the
stated purpose of the FAA was to reverse decades of judicial mistrust in the United States of
arbitration and render arbitration agreements enforceable on the same terms as other
contracts. (479) From the outset, U.S. judicial decisions embraced the Act’s avowedly pro-
arbitration objectives. (480)
After a hiatus provoked by the Second World War, development of “pro-arbitration” legal
regimes for international commercial arbitration continued. As discussed in greater detail
below, the signing of the New York Convention (in 1958), (481) the promulgation of the UNCITRAL
Arbitration Rules (in 1976, with revisions in 2010), (482) the adoption of the UNCITRAL Model
Law on International Commercial Arbitration (in 1985, with revisions in 2006) (483) and the
enactment of “modern” arbitration statutes in many developed jurisdictions (between 1980
and 2012), (484) marked decisive advances in international acceptance of the arbitral process.
P 68 The international community’s growing embrace of arbitration was further demonstrated by
P 69 the progressive refinement of national arbitration statutes in leading jurisdictions and of
institutional arbitration rules by leading arbitral institutions (485) and by the widespread
adoption of multilateral and bilateral investment treaties in all major regions of the world.
(486) All of these various steps evidence an abiding and decisive commitment to international
arbitration as a means of resolving transnational commercial disputes – and thereby
promoting international trade – and to continually improving the arbitral process in response
to changing conditions and emerging (or reemerging) critiques.
*****
In sum, arbitration has been an enduring feature of dispute resolution – both state-to-state
and commercial – since the beginning of recorded history. In societies of profoundly different
characters, ranging from Sumerian and Egyptian, to ancient Greek and Roman, to medieval
English, French, Swiss, German and Italian, to Colonial American, Asian and Latin American, to
Islamic and Arab, to Jewish, to more modern common law and civil law jurisdictions,
arbitration has been used equally by both states and state-like entities, and by businessmen
and women, to resolve their disputes, and particularly, their international disputes.
So far as can be ascertained, parties have turned to international arbitration for remarkably
similar reasons, using broadly similar procedures, throughout history: they have sought to
avoid the expense, delays, rigidities and other defects of litigation in national courts, as well
as the peculiar uncertainties of international litigation (including jurisdictional, choice-of-law
and enforcement disputes). (487) Particularly in international matters, parties have instead
sought dispute resolution by expert – commercially, technically, or diplomatically – tribunals,
which they have a hand in selecting applying practical, neutral procedural rules, (488) which,
again, they have a hand in fashioning.
There have been periods of lesser, and periods of greater, judicial and legislative support for
the arbitral process. Different legal systems, in different eras, have taken a variety of
approaches to the extent of judicial support (or hostility). Judicial skepticism or hostility has
typically been cyclical, not infrequently coinciding with outbreaks of extreme nationalism or
totalitarianism, while in most instances the enduring needs of the business community, the
respect of enlightened governments for the parties’ freedom to order their commercial affairs
and the relative advantages of the arbitral process have eventually overcome limitations or
prohibitions on the arbitral process. For the most part, therefore, arbitration agreements and
awards have been capable, at least in commercial matters, of effective enforcement – either
by non-legal, commercial measures or by formal judicial enforcement steps.
P 69 Against this historic background, the contemporary needs and objectives of commercial (and
P 70 other) users of arbitration – which are the foundation and driving force for the international
arbitral process – are discussed in greater detail below. (489) These historical origins and
current objectives play a central role in explaining and evaluating specific aspects of the
contemporary legal regime for international commercial arbitration, discussed in subsequent
Chapters.
§ 1.02 OBJECTIVES OF INTERNATIONAL COMMERCIAL ARBITRATION

In contemporary legal systems, international commercial arbitration is a means by which
international business disputes can be definitively resolved, pursuant to the parties’
agreement, by independent, non-governmental decision-makers, selected by or for the parties,
applying neutral judicial procedures that provide the parties an opportunity to be heard. (490)
As discussed below, there are almost as many other definitions of international arbitration as
there are commentators on the subject. (491)
Before considering these definitions in greater detail, it is useful to examine the objectives
that commercial parties generally have in entering into international arbitration agreements.
These objectives are essential to interpreting, and giving appropriate effect to, such
27
agreements and the arbitral awards they produce, as well as to interpreting the legislative
frameworks in which international arbitrations occur.
[A] Contractual Forum Selection in International Transactions

Preliminarily, it is important to appreciate the business and legal context in which
contemporary international arbitration agreements are made. In today’s global economy,
business enterprises of every description can find themselves parties to contracts with foreign
companies (and states) from around the world, as well as parties to litigation before courts in
equally distant locales. The consequences of these proceedings – and of losing them – are often
enormous. (492) A contract means no more than what it is interpreted to say, and how it is
enforced; corrupt, incompetent, or arbitrary decisions can rewrite a party’s agreements or
impose staggering liabilities and responsibilities.
Almost every international commercial controversy poses a critical preliminary question –
“Where, and by whom, will this dispute be decided?” The answer to this question often
decisively affects a dispute’s eventual outcome.
There are many reasons why the same dispute can have materially different outcomes in
P 70 different forums. Procedural, choice-of-law and substantive legal rules differ dramatically from
P 71 one country to another. (493) Other considerations, such as inconvenience, local bias and
language, may make a particular forum much more favorable for one party than another. (494)
More pointedly, the competence and integrity of judicial officers also vary substantially among
different forums; annual corruption indices and other studies leave little doubt as to the
uneven levels of integrity in some national judiciaries. (495) Those indices are, regrettably,
confirmed by contemporary anecdotal experience as to the corruption endemic in civil
litigation in some jurisdictions.
Precisely because national legal systems differ profoundly, parties inevitably seek to ensure
that, if international disputes arise, those disputes are resolved in the forum that is most
favorable to their interests. In turn, that can mean protracted litigation over jurisdiction, forum
selection and recognition of foreign judgments. (496) These disputes can result in lengthy and
complex litigation – often in parallel or multiple proceedings – which produce more in legal
costs and uncertainty than anything else. (497) In this regard, contemporary international
litigation bears unfortunate, but close, resemblances to the difficulties reported by Medieval
commentators regarding transnational litigation in earlier eras. (498)
Because of the importance of forum selection in the international context, parties to cross-
border commercial transactions very often include dispute resolution provisions in their
agreements, selecting a contractual forum in which to resolve their differences. (499) By
selecting a forum in advance, parties are able to mitigate these costs and uncertainties of
international dispute resolution, through the centralization of their disputes in a single,
reliable forum. (500)
P 71
P 72 As discussed below, contractual dispute resolution provisions typically take one of two basic
forms: (a) forum selection clauses, or (b) arbitration agreements. (501) In some cases, other
forms of dispute resolution mechanisms, such as negotiation, conciliation, or mediation, are
combined with a forum selection or arbitration agreement. (502)
[1] International Forum Selection Agreements
A forum selection clause is an agreement which either permits or requires its parties to pursue
their claims against one another in a designated national court. (503) Forum selection
agreements can be either “exclusive” (i.e., requiring that all litigation between the parties be
resolved solely in their contractual forum, and nowhere else) or “non-exclusive” (i.e., permitting
litigation between the parties in their contractual forum, but not prohibiting substantive
claims from being brought in other national courts which possess jurisdiction). (504) Once
enforced, a forum selection clause will result in litigation in the selected national court, and
will produce (unless settled) a national court judgment.
[2] International Arbitration Agreements
An international arbitration agreement is similar in some respects to a forum selection clause,
in that it provides a contractual choice of a dispute resolution forum. In the words of the U.S.
Supreme Court, “an agreement to arbitrate before a specialized tribunal [is], in effect, a
specialized kind of forum-selection clause that posits not only the situs of suit but also the
procedure to be used in resolving the dispute.” (505)
Nonetheless, there are fundamental differences between such provisions, in both practical and
P 72 legal terms. (506) As already noted, international arbitration is a means for definitively
P 73 resolving a dispute, pursuant to the parties’ voluntary agreement, through the decision of a
non-governmental decision-maker selected by or for the parties (an “arbitrator”), who applies
neutral, adjudicative procedures. The various elements of this definition of international
commercial arbitration, and its differences from a forum selection clause, are discussed in
detail below. (507)
Arbitration (and forum selection) agreements can be entered into either before or after a
dispute arises. (508) In practice, almost all international commercial arbitrations occur
pursuant to arbitration clauses contained within underlying business contracts. (509) These
clauses typically provide for the arbitration of future disputes relating to the contract in
28
accordance with a specified set of procedural rules (often promulgated by an arbitral
institution). (510)
[B] Objectives of International Arbitration Agreements

There are a number of reasons why arbitration is the preferred means of resolving international
commercial disputes. Put simply, and as explained in greater detail below, businesses
perceive international arbitration as providing a neutral, speedy and expert dispute resolution
process, largely subject to the parties’ control, in a single, centralized forum, with
internationally-enforceable dispute resolution agreements and decisions. (511) As one national
court summarized the attractions of international arbitration for commercial parties:
“There are myriad reasons why parties may choose to resolve disputes by arbitration rather
than litigation…[A]n arbitral award, once made, is immediately enforceable both nationally
and internationally in all treaty states. One would imagine that parties might be equally
motivated to choose arbitration by other crucial considerations such as confidentiality,
procedural flexibility and the choice of arbitrators with particular technical or legal expertise
better suited to grasp the intricacies of the particular dispute or the choice of law. Another
crucial factor that cannot be overlooked is the finality of the arbitral process. Arbitration is not
viewed by commercial persons as simply the first step on a tiresome ladder of appeals. It is
meant to be the first and only step.” (512)
While far from perfect, international arbitration is, rightly, regarded as generally suffering
fewer ills than litigation of international disputes in national courts and as offering more
workable and effective opportunities for remedying or avoiding those ills which do exist.
[1] Neutrality of Dispute Resolution Forum
P 73 One of the central objectives of international arbitration agreements is to provide a neutral
P 74 forum for dispute resolution, detached from either the parties or their respective home
state governments. This objective of neutrality is cited by contemporary users of international
arbitration (513) and by commentators, (514) and is reflected in the history of state-to-state,
investor-state and commercial arbitration. (515)
Not surprisingly, parties often begin to negotiate dispute resolution mechanisms with the
objective of ensuring that disputes are resolved in the most favorable forum – from their own
individual perspective – rather than a neutral one. (516) In many cases, choosing the most
favorable forum for a party means choosing the local courts in that party’s principal place of
business. These courts will be convenient and familiar to the home-town party, and to its
regular outside counsel; they will also probably be somewhat inconvenient and unfamiliar to
the counter-party. Where local courts are subject to political, media, popular, or other
pressures, the attractions of a home court judicial forum may be sharpened. (517)
The characteristics that make one party’s local courts attractive to it will often make them
unacceptable to counter-parties. (518) If nothing else, an instinctive mistrust of the potential
P 74 for home-court bias usually prompts parties to refuse to agree to litigate in their counter-
P 75 party’s local courts. As a consequence, outside of lending and similar transactions, (519) it is
very often impossible for either party to obtain agreement to dispute resolution in its local
courts.
In these circumstances, the almost universal reaction for business men and women is to seek
agreement on a suitable neutral forum – a forum for dispute resolution that does not favor
either party, but that will afford each party the opportunity to fairly present its case to an
objective tribunal. The result, in most instances, will be an agreement to arbitrate (or, less
frequently, litigate) in a neutral forum, pursuant to neutral procedures. (520) That means, for
example, that a French and a Mexican company will agree to arbitrate their disputes in Miami,
Spain, or England, while a U.S. and a Japanese or German company will agree to dispute
resolution in Switzerland, England, or Singapore. Put simply, a party typically does not agree to
arbitrate because arbitration is the most favorable possible forum, but because it is the least
unfavorable forum that the party can obtain in arms’ length negotiations.
An essential aspect of the neutrality of international arbitration is the composition of the
arbitral tribunal. (521) International arbitration permits the parties to play a substantial role in
selecting the members of the tribunal, including the right to choose a sole or presiding
arbitrator whose nationality is almost always different from that of the parties involved (thus
reducing the risks of partiality or parochial prejudice). (522) The consequence, ordinarily, is the
constitution of a genuinely-international tribunal – in line with the parties’ basic objectives in
entering into international arbitration agreements.
Another essential feature of the neutrality of international arbitration is the use of
internationally-neutral procedures and rules. (523) National courts apply local procedural
rules, which are often designed for particular judicial frameworks (e.g., a U.S. jury trial or a civil
P 75 law system that does not provide for witness testimony, discovery, or cross-examination) and
P 76 which therefore are usually unfamiliar to, and often ill-suited for, parties from different legal
traditions. (524) In contrast, international arbitration seeks to avoid the application of
domestic litigation rules and instead to apply internationally-neutral procedures tailored to
the parties’ expectations and dispute. (525)
[2] Centralized Dispute Resolution Forum
29
Another one of the basic objectives, and enduring attractions, of international arbitration is its
ability to avoid the endemic jurisdictional and choice-of-law difficulties attending
international civil litigation. This has long been a perceived advantage of the arbitral process,
and was identified as such even in Medieval times. (526) As already discussed above, “[t]he
reason [for arbitration] seems to have been, to do justice expeditiously among the variety of
persons that resort from distant places to a fair or market; since it is probable that no inferior
court might be able to serve its process, or execute its judgments, on both or perhaps either of
the parties.” (527)
This attraction is, if anything, even more important today. International transactions inevitably
involve parties from, and conduct in, two or more states. Under contemporary jurisdictional
principles, (528) this means that disputes arising from such transactions can potentially be
resolved in different national courts. Inevitably, parties will seek to litigate in the forum (or
forums) which each considers most favorable to its respective individual interests. In turn, that
results in recurrent, protracted disputes in and between national courts over jurisdiction,
forum selection, choice of law, evidence and recognition of foreign judgments. (529)
One of the central objectives of international arbitration agreements is avoiding multiplicitous
P 76 litigation in different national courts, as well as protracted jurisdictional disputes, inconsistent
P 77 decisions and enforcement uncertainties. Instead, international arbitration offers the
promise of a single, centralized dispute resolution mechanism in one contractual forum. (530)
As the U.S. Supreme Court has put it:
“Much uncertainty and possibly great inconvenience to both parties could arise if a suit could
be maintained in any jurisdiction [where personal jurisdiction could be established]. The
elimination of all such uncertainties by agreeing in advance on a forum acceptable to both
parties is an indispensable element in international trade, commerce and contracting.” (531)
Other authorities, (532) as well as empirical findings, (533) are to the same effect.
It bears emphasis that neutral, centralized dispute resolution is not merely desirable for its
own sake, but is a vital precondition to international trade and investment. That is, the
additional uncertainties, risks and costs of resolving international commercial disputes are
such that, unless they can be managed, legitimate businesses will not engage in transnational
enterprises. Indeed, it was precisely to promote international commerce that developed
states established and have sought to perfect today’s legal regime for international
commercial arbitration. (534)
[3] Enforceability of Agreements and Awards
Another vital objective, and attraction, of international arbitration is to provide relatively
enforceable agreements and awards. Unless the parties’ dispute resolution agreement –
selecting a neutral, competent and central forum – can be enforced, it is of little value. The
same is true with regard to the decisions eventually rendered in the contractual forum: unless
they can be given effect, in places where the parties do business, they are of limited value.
One of the most basic objectives of contemporary legal regimes for international arbitration is
to provide for the enforceability of arbitration agreements and arbitral awards. (535) In
particular, international arbitration aspires to produce more enforceable, final results than
P 77 may be achieved by forum selection agreements. As one national court put it, modern legal
P 78 regimes for international arbitration aim, “as a matter of policy, to adopt a standard which
seeks to preserve the autonomy of the forum selected by the parties and to minimize judicial
intervention when reviewing international commercial arbitral awards.” (536) This aspiration
has been largely realized by contemporary international arbitration conventions and national
arbitration legislation.
As discussed below, international arbitration agreements are more readily and more
expeditiously enforced, with fewer exceptions, and more broadly interpreted, in most national
courts, than forum selection clauses. (537) This is consistently cited by users as one of the most
significant benefits of the arbitral process, (538) and is confirmed by anecdotal evidence from
a wide range of sources. (539) The comparative enforceability of arbitration agreements is in
large part because of the New York Convention, to which some 149 states are party, and
because of the existence of national arbitration legislation (increasingly based on the
UNCITRAL Model Law), both of which facilitate the enforceability of international arbitration
agreements. (540)
In contrast, there are only a few regional arrangements which seek to establish effective
international enforcement regimes for forum selection clauses. The most notable is Council
Regulation No. 44/2001 in the European Union (“EU”), which replaced the Brussels Convention.
(541) Among other things, Regulation 44/2001 provides for the enforceability of forum selection
agreements designating an EU Member State’s courts, subject to only limited exceptions. (542)
There are also a few industry-specific arrangements providing enforcement mechanisms for
international forum selection clauses (such as treaties governing carriage of goods by sea).
(543) In general, however, international forum selection agreements do not benefit from
anything comparable to the New York Convention.
P 78
P 79 Additionally, many states impose limitations on the enforceability of forum selection
clauses, such as requiring a “reasonable relationship” between the parties’ contract and the
forum or considering forum non conveniens objections to the parties’ contractual forum. (544)
Similarly, “public policy” or “mandatory law” limitations on forum selection mechanisms are
30
usually less significant obstacles to enforcing arbitration agreements than forum selection
clauses. (545) For these reasons, international arbitration agreements are often substantially
more enforceable than forum selection clauses.
The Hague Conference on Private International Law’s draft Convention on Choice of Court
Agreements would provide more uniform international standards governing the enforcement of
forum selection agreements – if it were ratified by significant numbers of states. (546) Even if
such ratifications occur, the draft Convention’s limitations and exceptions would leave the
enforceability of forum selection clauses subject to significant uncertainties. At least for the
foreseeable future, international arbitration agreements will therefore continue to offer a
substantial “enforceability premium” as compared to forum selection clauses. (547)
Like agreements to arbitrate, international arbitral awards enjoy the protection of the New
York Convention, as well as favorable arbitration legislation in many countries. (548) As
discussed below, these instruments provide a “pro-enforcement” regime, with expedited
recognition procedures and only limited grounds for denying recognition to an arbitral award.
(549) Particularly in developed trading states, there is substantial, successful experience with
the enforcement of international arbitral awards. (550)
In contrast, there are only a few regional arrangements for the enforcement of foreign
judgments (in particular, Council Regulation 44/2001 in Europe (551) ), and there is no global
P 79 counterpart to the New York Convention for foreign judgments. (552) Some major trading states,
P 80 including the United States, are party to no bilateral or multilateral agreement on the
enforceability of foreign judgments. (553) In the absence of international treaties, the
recognition of foreign judgments in many nations is subject to local law, which often makes it
difficult or impossible to obtain effective enforcement.
As a consequence, there is generally a significantly greater likelihood that an international
arbitral award will be enforced abroad, and actually put the parties’ dispute to rest, than will a
national court judgment. (554) Together with the comparatively greater enforceability of
arbitration agreements, the more reliable enforceability of arbitral awards is another one of
the basic objectives, and attractions, of international arbitration.
[4] Commercial Competence and Expertise of Tribunal
Another essential objective of international arbitration is providing a maximally competent,
expert dispute resolution process. (555) It is a harsh, but undeniable, fact that some national
courts are distressingly inappropriate choices for resolving international commercial disputes.
In some states, local courts have little experience or training in resolving international
transactions or disputes and can face serious difficulties in fully apprehending the business
context and terms of the parties’ dispute. (556)
Even more troubling, in some states, basic standards of judicial integrity and independence
are lacking. The simple reality is that corruption, nepotism and personal favoritism are rife in
at least some national legal systems. (557) Particularly in cases against local litigants or state
entities, the notion of a fair, objective proceeding, much less an expert and sophisticated
proceeding, can be chimerical. The grim reality is that you get what you pay for in some
national courts – which is a wholly unacceptable and untenable position for legitimate
businesses. (558)
P 80
P 81 Of course, some national judiciaries include very talented judges with considerable
experience in resolving international disputes. The courts of New York, England, Switzerland,
Japan, Singapore and a few other jurisdictions are able to resolve complex transnational
disputes with a fairly high degree of reliability. Additionally, with English increasingly serving
as the language of international commerce, translations may not be necessary in English, U.S.,
Singaporean and some other courts. (559) Nevertheless, even in these jurisdictions, local
idiosyncrasies can interfere with the objectives of competence and objectivity in resolving
commercial disputes. (560)
Moreover, it is fundamental in most national legal traditions that judges are generally selected
randomly for assignment to particular cases, regardless of their experience or aptitude in the
underlying matter. (561) Judges are ordinarily generalists, often without any specialization in
complex commercial matters, much less a particular type of transaction (M&A, joint venture) or
industry (oil and gas, insurance). These considerations inevitably affect the efficiency, and
sometimes the quality, of the dispute resolution process. As one commentator puts it:
“while the civil justice system often selects its triers of fact on the basis that they know little or
nothing about the subject of the dispute, a hallmark of arbitration is the presence of one or
more decisionmakers with pertinent knowledge or experience. The theory is that an individual
familiar with the commercial context of the dispute, including industry customs and
vocabulary, is better suited to dispense justice than laypersons who might be hampered by
their relative lack of business experience and understanding of trade practices.” (562)
As discussed above, arbitration was historically favored by commercial (and other) users
because it offered a more expert, experienced means of resolving commercial disputes. (563)
P 81 This continues to be the case today. Both empirical studies (564) and anecdotal commentary
P 82 (565) emphasize the importance of the tribunal’s commercial expertise and experience in
parties’ decisions to make use of international arbitration. In the brutal assessment of one
anonymous respondent to a survey of international arbitration users:
31
“for a French party, the big advantage is that international commercial arbitration offers ‘de
luxe justice’…instead of having a $600 million dispute before the Commercial Court in Paris,
where each party has only one hour for pleadings and where you can’t present witnesses and
have no discovery; for a dispute of that importance it may well be worth the costs to get a type
of justice that is more international and more ‘luxurious’; what you get is more extensive and
thorough examination of witness testimony – without the excesses of American court
procedure.” (566)
This is not only a perception of businesses, but also of some national courts. In the words of the
former President of the French Cour de cassation, explaining why he regarded arbitration as
desirable: “first, what you do we don’t have to do;…second, in many fields you are more
professional than we are.” (567) Or, as one U.S. trial judge nicely put it, arbitrators “know more
about the value of peach orchards, their productivity and earning power than I do.” (568)
The parties’ desire for commercially-experienced decision-makers is achieved in substantial
part through the parties’ right to participate in the selection of the arbitral tribunal. As
discussed below, this aspect of the arbitral process is intended to enable the parties – who
have the most intimate knowledge of their disagreements and the greatest incentive to wisely
choose a capable tribunal – to select arbitrators with the best experience, abilities and
availability for their particular dispute. (569) This is confirmed by users of international
P 82 arbitration who frequently cite “the possibility for the parties to select the members of the
P 83 tribunal themselves,” as compared to being provided a randomly-picked judge of uncertain
experience, age and competence, as one of the process’s most substantial benefits. (570)
[5] Finality of Decisions
Another salient feature of international commercial arbitration is the absence, in most cases,
of extensive appellate review of arbitral awards. Judicial review of awards in most developed
countries is narrowly confined to issues of procedural fairness, jurisdiction and public policy:
as discussed below, any judicial scrutiny of the arbitrators’ substantive decisions is ordinarily
highly deferential. (571) This contrasts markedly with the availability of appellate review of first
instance judgments under national court systems, which may allow either de novo relitigation
or fairly searching reconsideration of both factual and legal matters.
There are both advantages and disadvantages to the general lack of appellate review
mechanisms for arbitral awards. (572) Dispensing with appellate review significantly reduces
both litigation costs and delays (particularly when a successful appeal means that the case
must be retried in the first instance court, with the possibility of yet further appeals). On the
other hand, it also means that a wildly eccentric, or simply wrong, arbitral decision cannot
readily (if ever) be corrected.
On balance, anecdotal evidence and empirical research indicate that business users generally
consider the efficiency and finality of arbitral procedures favorably, even at the expense of
foregoing appellate rights. (573) There are also some developed legal systems in which the
parties have the possibility, by contracting into or out of judicial review, to obtain a measure of
appellate review of the arbitrators’ substantive decisions, (574) or to select an arbitral
procedure that includes arbitral appeals. (575) As discussed below, however, international
businesses generally choose speed and finality over the opportunity for appellate review.
P 83
P 84 [6] Party Autonomy and Procedural Flexibility
A further objective, and advantage, of international commercial arbitration is the
maximization of party autonomy and procedural flexibility. (576) As discussed below, leading
international arbitration conventions and national arbitration laws accord parties broad
autonomy to agree upon the substantive laws and procedures applicable to “their”
arbitrations. (577) This emphasis on the importance of party autonomy parallels applications of
the doctrine throughout the field of contemporary private international law, (578) and
commercial law more generally, (579) but has particular significance in the field of
international commercial arbitration. (580)
In the words of one arbitral award: “In general, parties to a commercial agreement are free to
choose the law which is to govern their contractual relationship.…This doctrine of party
P 84 autonomy makes particular sense in the context of an international commercial arbitration.”
P 85 (581) The same autonomy is recognized in other international contexts (including state-to-
state arbitration). (582)
One of the principal reasons that this procedural autonomy is granted is to enable the parties
and arbitrators to dispense with the technical formalities and procedures of national court
proceedings and instead fashion procedures tailored to particular disputes. (583) Thus,
technically-complex disputes can include specialized procedures for testing and presenting
expert evidence, (584) or “fast track” procedures can be adopted where time is of the essence,
(585) or tailor-made dispute resolution mechanisms can be adopted in particular commercial
markets (e.g., sports, commodities or construction arbitrations). (586) More generally, parties
are typically free to agree upon the existence and scope of discovery or disclosure, the modes
for presentation of fact and expert evidence, the length of the hearing, the timetable of the
arbitration and other matters. (587) The parties’ ability to adopt (or, failing agreement, the
tribunal’s power to prescribe) flexible procedures is a central attraction of international
arbitration – again, as evidenced by empirical research (588) and commentary. (589)
An essential aspect of the international arbitral process, reflecting both commercial parties’
32
desire for expertise and the exercise of their autonomy, involves the use of specialized arbitral
rules in particular markets. Thus, specially-tailored arbitral institutions exist in the fields of
P 85 maritime and salvage, (590) commodities, (591) insurance and reinsurance, (592)
P 86 transportation, (593) and labor and employment (594) disputes. In each case, specialized
procedural rules, required or optional lists of arbitrators and other contractual provisions
structure the arbitral process in order to provide users with the maximum degree of
specialized expertise and procedural predictability, efficiency and security.
[7] Cost and Speed
It has long been said that arbitration offers a cheaper, quicker means of dispute resolution
than national court proceedings. (595) Thus, proponents of arbitration often claim that “the
underlying reason many parties choose arbitration is the relative speed, lower cost, and
greater efficiency of the process” (596) and “[t]he purpose of arbitration is to permit relatively
quick and inexpensive resolution of contractual disputes by avoiding the expense and delay of
extended court proceedings.” (597)
P 86 More recently, however, it has become fashionable, at least in some circles, to describe
P 87 arbitration as a slower, costlier option. (598) As one U.S. appellate court remarked about a
less-than-efficient arbitration, “[t]his appeal…makes one wonder about the alleged speed and
economy of arbitration in resolving commercial disputes.” (599) Surveys of users also report
pressure for more efficient and expeditious arbitral proceedings. (600)
In reality, both international arbitration and international litigation can involve significant
expense and delay, and it is unwise to make sweeping generalizations about which mechanism
is necessarily quicker or cheaper. Although sometimes advertised on grounds of economy, even
its proponents rightly acknowledge that “[i]nternational arbitration is an expensive process”
(601) – or, more accurately, that international arbitration can be an expensive process. This is
particularly true in major international disputes, which can involve claims for billions of
dollars or Euro (or more), and complex factual and legal issues. (602) Disputes of this character
often require very substantial written submissions, factual and expert evidence, and lengthy
hearings, with the attendant costs; parties not only expect and tolerate these expenses, but
are concerned if disputes of this magnitude do not attract commensurate litigation efforts.
(603)
Moreover, in international arbitration, the parties are required (subject to later allocation of
arbitration costs by the tribunal) to pay the fees of the arbitrator(s) and, usually, an arbitral
institution. The parties will also have to pay the logistical expenses of renting hearing rooms,
travel to the arbitral situs, lodging and the like. (604) This entails expenses that may not exist
in national court litigation.
Nonetheless, the additional expenses of arbitration will often pale in comparison with the
costs of legal representation if there are parallel or multiplicitous proceedings in national
courts. This can be the case where the parties have, for whatever reason, not agreed upon an
exclusive forum selection clause, or where such a clause is held unenforceable or inapplicable.
P 87 (605) Likewise, the expenses of arbitration will typically not approach those that are incurred if
P 88 there is relitigation of factual issues in national trial and appellate courts. Arbitration also
usually does not have the potential for costly, scorched-earth discovery, or disputes over
service, evidentiary matters, immunity and other litigation formalities, which may exist in
some jurisdictions.
International commercial arbitration is also not always speedy. Outside of some specialized
contexts, meaningful commercial disputes often require between 18 and 36 months to reach a
final award, (606) with only limited possibilities for earlier summary dispositions. Procedural
mishaps, challenges to arbitrators and litigation over jurisdictional issues in national courts
can delay even these fairly stately timetables, as can crowded diaries of busy arbitrators and
counsel. It is possible to achieve greater expedition, through either drafting a “fast-track”
arbitration clause (607) or adroit arbitrator selection and procedural planning, but there are
limits to how quickly a major commercial arbitration can realistically and reliably be resolved.
Nonetheless, in many jurisdictions, national court proceedings are subject to at least equally
significant delays. Judicial dockets in many countries are overburdened and obtaining a trial
date and final decision may take years or longer; that is true even in states with reasonably
well-funded judicial systems, (608) while delays are substantially longer in states with
budgetary or other endemic organizational deficiencies. (609) Further, as already noted,
arbitration typically does not involve appellate review, (610) thereby avoiding the delay
inherent in appellate proceedings and reducing the risk that new trial proceedings will be
required (in the event of appellate reversal of an initial trial court decision).
On balance, international arbitration does not necessarily have either dramatic speed and
cost advantages or disadvantages as compared to national court proceedings. Broadly
P 88 speaking, the absence of appellate review means that arbitration is usually less slow than
P 89 litigation, but there will be exceptions to this generalization. (611) This conclusion is
supported by empirical evidence (612) and anecdotal accounts (613) of users’ evaluations of
the international arbitral process and its advantages.
[8] Confidentiality and Privacy of Dispute Resolution Process
Another objective of international arbitration is to provide a confidential, or at least private,
(614) dispute resolution mechanism. As discussed below, international arbitration is
33
substantially more likely than national court litigation to produce a nonpublic dispute
resolution process. (615) This often serves to prevent aggravation of the parties’ dispute, to
limit the collateral damage of a dispute and to focus the parties’ energies on an amicable,
business-like resolution of their disagreements.
Most national court proceedings offer little by way of confidentiality to the parties. Hearings
and court dockets are open to the public, competitors, press representatives and regulators in
many countries (sometimes by constitutional requirement), (616) and parties are often free to
disclose the contents of submissions and evidence to the public. Public disclosure can
encourage efforts at “trial by press release” and may impede negotiated compromises, by
hardening positions, fueling emotions, or provoking collateral disputes and damage.
In contrast, international arbitration is usually substantially more private, and often more
P 89 confidential, than national court proceedings. Arbitral hearings are virtually always closed to
P 90 the press and public, and in practice both submissions and awards often remain
confidential, or at least private. (617) In a number of jurisdictions, confidentiality obligations
are implied into international arbitration agreements as a matter of law, while some
institutional arbitration rules impose such duties expressly. (618) Nonetheless, there is no clear
duty of confidentiality in arbitral proceedings in many jurisdictions (619) and, even where such
obligations exist, they are subject to exceptions which have the effect that awards are
sometimes made public, either in enforcement actions or otherwise. (620)
Most international businesses prefer, and affirmatively seek out, the privacy and
confidentiality of the arbitral process. (621) Nonetheless, commercial parties sometimes
affirmatively desire that certain disputes and their outcomes be made public. Where a
company has a standard form contract, used with numerous counter-parties, it may want
interpretations of the contract to become publicly-known, and binding through precedent, as
widely as possible. Where that is the case, parties are of course free to agree that their arbitral
proceedings (or the awards) will be public; in practice, this occurs in some commercial
settings. (622)
[9] Facilitation of Amicable Settlement
Another objective and historic attraction of international arbitration is to facilitate the parties’
P 90 efforts to settle their differences amicably. (623) Arbitral proceedings generally require some
P 91 measure of procedural cooperation between the parties (for example, in choosing
arbitrators and devising appropriate procedures). (624) Equally, the prospect of a competent,
expert decision by a commercially-sensible tribunal often facilitates the settlement process.
(625)
In reality, it is not clear that international arbitration is systemically more likely than litigation
to produce negotiated settlements. There is little empirical data on the subject, (626) and
anecdotal experiences vary. Nonetheless, the arbitral process does present parties with
opportunities for both procedural cooperation and more general settlement discussions.
Approached constructively, these opportunities can be used to pursue a negotiated resolution,
at least where parties are so inclined, and remain a material (if uncertain) objective of the
international arbitral process. (627)
[10] Disputes Involving States and State Entities
International commercial arbitration plays a particularly significant role in the resolution of
commercial disputes involving foreign states and state entities. Disputes involving states
present particular difficulties in national courts, because of traditional doctrines of sovereign
or state immunity, the act of state doctrine and similar obstacles to obtaining and enforcing
judgments, (628) and because of concerns about the impartiality of national courts in disputes
involving local state entities or corporations. International arbitration provides a means of
overcoming or mitigating these difficulties. (629) In particular, by agreeing to international
P 91 arbitration, a state or state entity ordinarily waives its sovereign immunity from enforcement
P 92 of the arbitration agreement and recognition of any resulting award; (630) execution of the
award against state assets often requires a separate (and specific) waiver of immunity, but
awards are generally more readily enforceable against state assets than national court
judgments. (631) Similarly, arbitration, particularly in a neutral seat, can provide a more
independent and impartial basis for resolution of disputes involving states and state entities
or corporations than proceedings in the courts of that state.
Arbitrations involving foreign states and state-related entities are a significant subset of
contemporary international commercial arbitrations. Although precise statistics do not exist,
at least 300 international commercial arbitrations involving foreign states or state-related
entities are filed each year; (632) this figure appears to have been growing solidly over the past
decade. In practice, many states and state-related entities must accept international
arbitration as a necessary condition to concluding significant international commercial and
financial transactions: unless the state accepts international arbitration, it will not be able to
conclude commercial arrangements, at least not with serious counter-parties.
*****
The aspirations of the arbitral process to accomplish the various objectives described above
lead the more enthusiastic proponents of international arbitration to proclaim:
“In th[e] realm of international commercial transactions, arbitration has become the preferred
34
method of dispute resolution. Arbitration is preferred over judicial methods of dispute
resolution because the parties have considerable freedom and flexibility with regard to choice
of arbitrators, location of the arbitration, procedural rules for the arbitration, and the
substantive law that will govern the relationship and rights of the parties.” (633)
P 92
P 93 Equally vigorous are some critics, including those who regard arbitration as “the slower,
more expensive alternative,” (634) or conclude that “arbitration sometimes involves perils that
even surpass the ‘perils of the seas.’” (635)
In fact, the truth about contemporary international commercial arbitration is less clear-cut,
and lies somewhere between these extremes:
“The more enthusiastic of [its] sponsors have thought of arbitration as a universal panacea. We
doubt whether it will cure corns or bring general beatitude. Few panaceas work as well as
advertised.” (636)
At bottom, if generalizations must be made, international arbitration is much like democracy;
it is nowhere close to ideal, and often fails fully to realize its objectives, but it is generally a
good deal better than the available alternatives. To those who have experienced it, litigation
of complex international disputes in national courts is often distinctly unappealing –
particularly litigation in national courts that have not been carefully selected in advance for
their neutrality, integrity, competence and convenience. Indeed, the risks of corruption,
incompetence, or procedural arbitrariness make litigation of complex commercial disputes in
some national courts an unacceptable option. Despite daunting procedural and choice-of-law
complexities and other uncertainties, international arbitration generally offers the least
ineffective and damaging means to finally settle the contentious disputes that arise when
international transactions go awry.
§ 1.03 INCREASING USE OF INTERNATIONAL COMMERCIAL ARBITRATION

Dispute resolution mechanisms must fulfill difficult, often thankless, tasks, particularly in
international disputes: parties who are often bent upon (mis)using every available procedural
and other opportunity to disadvantage one another simultaneously demand rapid, expert and
objective results at minimal cost. Despite these generally unrealistic expectations, arbitration
has for centuries been perceived as the most effective – if by no means flawless – means for
resolving international commercial disputes. (637)
That perception has not diminished, but rather has been strengthened, during the past several
decades. (638) In the words of one distinguished academic: arbitration is “‘the’ ordinary and
normal method of settling disputes of international trade.” (639)
P 93
P 94 The enduring popularity of international arbitration as a means of dispute resolution is
reflected by a number of developments. These include steadily increasing caseloads at
leading arbitral institutions, with the number of reported cases increasing between three and
five-fold in the past 30 years.
Among other things, the International Chamber of Commerce’s International Court of
Arbitration received requests for 32 new arbitrations in 1956, 210 arbitrations in 1976, 337
arbitrations in 1992, 452 arbitrations in 1997, 529 arbitrations in 1999, 599 arbitrations in 2007
and 759 in 2012 – a roughly 25-fold increase over the past 50 years. (640) Similarly, in 1980, the
American Arbitration Association administered approximately 100 international arbitrations;
in 1993, 207 international arbitrations; in 2000, 510 international arbitrations; in 2007, 621
international arbitrations and in 2012, 996 international arbitrations. (641) Other institutions
show similar growth in case loads, (642) as illustrated in the following statistics, which show the
number of cases filed with each of the listed arbitral institutions between 1993-2011. (643)
P 94
P 95 The same increasing preference for, and use of, international commercial arbitration is
reflected in surveys of users, (644) in empirical studies of the use of arbitration clauses in
international commercial agreements (645) and studies of dispute resolution in international
sale of goods settings. (646) These conclusions have been confirmed in recent surveys of
corporate users. For example, in its 2010 International Arbitration Survey, the School of
International Arbitration at Queen Mary, University of London (surveying 136 corporate counsel)
35
found that 81% of the respondents had a policy of adopting arbitration rather than forum
selection clauses in their commercial contracts. (647) Subsequent studies have confirmed
these results. (648)
Anecdotal observations are even more robust in their assessments of the growing popularity of
international arbitration (in some cases, unrealistically enthusiastic). (649) Likewise, a
P 95 sizeable, specialized international arbitration bar has developed, consisting of international
P 96 practitioners in the world’s leading commercial centers, whose professional activities are
directed almost exclusively towards international commercial arbitration (or other forms of
international arbitration, including investor-state and state-to-state arbitrations). (650)
Finally, the use of arbitration as a means of resolving new (previously “un-arbitrated”)
categories of disputes, (651) including bilateral investment treaty claims, (652) online disputes,
(653) tax disputes, (654) class actions, (655) regulatory disputes (e.g., tobacco-related issues),
(656) outer space activities, (657) human rights claims (658) and other “public” issues, (659)
attests to its enduring and increasing popularity. Similarly, procedures developed in
international commercial arbitration have influenced other forms of dispute resolution, often
in significant respects. (660)
These various sources leave no doubt as to the robust growth in the use of international
commercial arbitration in the past several decades. At the same time, it is an
oversimplification to say that international arbitration is the “dominant” form of dispute
resolution in international matters. The number of disputes that are settled by negotiation
dwarfs those that are litigated or arbitrated. Moreover, litigation in national courts continues
to be a plausible means of dispute resolution in many cases. Parties frequently consider the
relative advantages and disadvantages of international arbitration and forum selection
agreements, not infrequently opting for the latter if their negotiating power permits. (661)
P 96
P 97 Arbitration enthusiasts sometimes make exaggerated claims concerning the prevalence of
international arbitration clauses – suggesting that some 90% of all international commercial
contracts contain such provisions. (662) This figure lacks empirical support and is almost
certainly inflated: in reality, significant numbers of international commercial transactions –
certainly much more than 10% of all contracts – contain either forum selection clauses or no
dispute resolution provision at all. It is probably true that, in negotiated commercial (not
financial) transactions, where parties devote attention to the issue of dispute resolution, and
where the parties possess comparable bargaining power, arbitration clauses are more likely
than not to be encountered. This remains a highly impressive endorsement of arbitration, and
permits one to fairly say that international arbitration is the preferred means for contractual
dispute resolution, but more ambitious statistical claims are unproven.
§ 1.04 OVERVIEW OF CONTEMPORARY LEGAL FRAMEWORK FOR

INTERNATIONAL COMMERCIAL ARBITRATION
International commercial arbitration is a fundamentally consensual means of dispute
resolution: unless the parties have agreed to arbitrate, there can be no valid arbitral
determination of their rights. (663) In turn, an agreement to arbitrate has binding effect only by
virtue of a complex framework of national and international law, ultimately enforced via
national courts. (664) Equally, an arbitral award has binding effect, and can be recognized and
enforced, only by virtue of this same legal framework. (665)
As discussed above, both national law and commercial practice have, for centuries, given legal
effect to parties’ agreements to arbitrate and the resulting awards. (666) There have been
periods in which arbitration agreements and/or awards were afforded only limited efficacy by
national laws, (667) or were given effect only pursuant to particular legal forms. (668)
Nonetheless, the general treatment of arbitration agreements and awards in developed
jurisdictions has usually been at least satisfactory. (669)
The current international legal regime for commercial arbitration has improved materially on
historic enforcement mechanisms. As detailed below, contemporary international conventions,
P 97 national arbitration legislation and institutional arbitration rules provide a specialized and
P 98 highly-supportive legal regime for most contemporary international commercial
arbitrations. This regime has been established, and progressively refined, with the express goal
of facilitating international trade and investment by providing a stable, predictable and
effective legal framework in which these commercial activities may be conducted:
“international arbitration is the oil which lubricates the machinery of world trade.” (670) More
specifically:
“Enforcement of international arbitral agreements promotes the smooth flow of international
transactions by removing the threats and uncertainty of time-consuming and expensive
litigation.” (671)
As discussed above, the foundations for this legal regime were laid in the first decades of the
20th century, with the 1923 Geneva Protocol and 1927 Geneva Convention, national arbitration
legislation that paralleled these instruments and effective institutional arbitration rules. (672)
Building on these foundations, the current legal regime for international arbitration was
developed in significant part during the second half of the 20th century, with countries from all
parts of the globe entering into international arbitration conventions and enacting national
arbitration statutes designed specifically to facilitate the arbitral process; at the same time,
national courts in most states have given effect to these legislative instruments, often
36
extending or elaborating on their terms. Most importantly, and as discussed below, this
avowedly “pro-arbitration” regime ensures the enforceability of both arbitration agreements
and arbitral awards, gives effect to the parties’ procedural autonomy and the arbitral
tribunal’s procedural discretion and seeks to insulate the arbitral process from interference by
national courts or other governmental authorities. (673)
[A] International Arbitration Conventions

Over the past century, major trading nations have entered into a number of international
treaties and conventions designed to facilitate the transnational enforcement of arbitration
agreements and awards and to promote the use of arbitration in international matters. (674)
They have done so for the specific purpose of providing an effective mechanism for resolving
international commercial disputes, and thereby promoting international trade and
investment. (675) These instruments have, for the most part, contributed to a stable and
effective legal framework for arbitration between international businesses.
P 98 International treaties dealing with arbitration sometimes took the form of bilateral treaties,
P 99 although the significance of such agreements was limited. (676) Much more importantly,
multilateral conventions have sought to facilitate and promote international arbitration by
encouraging the recognition of arbitration agreements and awards. These included the 1923
Geneva Protocol and the 1927 Geneva Convention. (677)
As discussed above these two instruments established basic requirements that Contracting
States recognize and enforce international arbitration agreements and awards (subject to a
number of important limitations), marking the beginning of contemporary international efforts
comprehensively to facilitate and support the international commercial arbitration process.
(678) The Geneva Protocol and Convention did not merely make international arbitration
agreements and awards as enforceable as their domestic counterparts. Rather, these
instruments made international arbitration agreements and awards more enforceable than
domestic ones, establishing pro-arbitration standards that did not then exist in many
domestic legal systems, for the specific purpose of promoting international trade and
investment.
[1] New York Convention (679)
The Geneva Protocol and the Geneva Convention were succeeded by the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral Awards. (680) Generally
referred to as the “New York Convention,” the treaty is by far the most significant contemporary
legislative instrument relating to international commercial arbitration. It provides what
amounts to a universal constitutional charter for the international arbitral process, whose
sweeping terms have enabled both national courts and arbitral tribunals to develop durable,
effective means for enforcing international arbitration agreements and arbitral awards. The
Convention also provided the basis for most contemporary national legislation governing the
international arbitral process, and in particular the UNCITRAL Model Law, which has
implemented and elaborated upon the Convention’s basic principles and legal framework.
P 99
P 100 [a] Historical Background of New York Convention
The Convention was adopted – like many national arbitration statutes – specifically to address
the needs of the international business community and international trade and commerce.
(681) In particular, the Convention was intended to improve the legal regime provided by the
Geneva Protocol and Geneva Convention for the international arbitral process. (682)
The first draft of what became the Convention was prepared by the International Chamber of
Commerce in 1953, focused exclusively on the enforcement of international arbitral awards.
(683) The ICC introduced the draft with the observation that “the 1927 Geneva Convention was a
considerable step forward, but it no longer entirely meets modern economic requirements,”
and with the objective of “obtaining the adoption of a new international system of enforcement
of arbitral awards.” (684)
The ICC’s proposed Draft Convention would have provided for a “denationalized” form of
international arbitration, with both the international arbitral process and arbitral awards
contemplated to be largely detached from national laws. (685) In particular, the ICC declared
that the “[Geneva] Convention’s main defect” was its “enforcement of only those awards that
are strictly in accordance with the rules of procedure laid down in the law of the country where
the arbitration took place,” and concluded “that there could be no progress without full
recognition of the conception of international awards.” (686)
The ICC draft was transmitted to the United Nations’ Economic and Social Council (“ECOSOC”),
which established a committee to study the proposal. (687) After some delays, the ECOSOC
produced a revised draft of a successor convention to the Geneva Convention, (688) which
adopted a somewhat less revolutionary approach to the recognition and enforcement of
foreign arbitral awards than that proposed by the ICC. (689)
P 100
P 101 After further governmental consideration, the ICC and ECOSOC drafts provided the basis for a
three week conference in New York – the United Nations Conference on Commercial Arbitration
– attended by 45 states in the Spring of 1958. (690) The New York Conference resulted in a
compromise draft convention that reconciled the ICC and ECOSOC drafts, (691) while also
introducing significant new elements not contemplated by either proposal. The resulting
document – now termed the New York Convention – was in many respects a radically
37
innovative instrument which created for the first time a comprehensive legal regime for the
international arbitral process.
Both the ICC’s original text and the ECOSOC’s subsequent draft were focused entirely on the
recognition and enforcement of arbitral awards, with no serious attention to the enforcement
of international arbitration agreements. As Professor van den Berg summarizes the drafting
history:
“Originally, it was the intention to leave the provisions concerning the formal validity of the
arbitration agreement and the obligatory referral to arbitration to a separate protocol. At the
end of the New York Conference of 1958, it was realized that this was not desirable. Article II
was drafted in a race against time, with, as a consequence, the omission of an indication as to
which arbitration agreements the Convention would apply.” (692)
This drafting approach paralleled that of the Geneva treaties (where the Geneva Protocol dealt
with arbitration agreements and the Geneva Convention addressed arbitral awards). (693) It
was only late in the Conference that the delegates recognized the limitations of this approach
and considered a proposal from the Dutch delegation to extend the proposed treaty from only
the recognition of arbitral awards to also include international arbitration agreements. (694)
That approach, which was eventually adopted, and the resulting provisions regarding the
recognition and enforcement of international arbitration agreements form one of the central
elements of the Convention. (695) At the same time, the extension of the Convention to
encompass both arbitration agreements and awards was a significant step beyond the Geneva
treaties and made the Convention the first international instrument to comprehensively deal
with the major elements of the international arbitral process.
The text of the Convention was approved on 10 June 1958 by a unanimous vote of the
Conference (with only the United States and three other countries abstaining). (696) The
Convention is set forth in English, French, Spanish, Russian and Chinese texts, all of which are
equally authentic. (697) The text of the Convention is only a few pages long, with the
instrument’s essential substance being contained in seven concisely-drafted provisions
(Articles I through VII).
P 101
P 102 The New York Convention made a number of significant improvements in the regime of the
Geneva Protocol and Geneva Convention for the enforcement of international arbitration
agreements and awards. Particularly important were the Convention’s broader scope with
regard to arbitration agreements, (698) its shifting of the burden of proving the validity or
invalidity of awards away from the party seeking enforcement to the party resisting
enforcement, (699) its recognition of substantial party autonomy with respect to choice of
arbitral procedures, (700) its adoption of choice-of-law rules for the law applicable to the
arbitration agreement (701) and its abolition of the previous “double exequatur” requirement
(which had required that awards be confirmed in the arbitral seat before being recognized
abroad). (702)
The Convention’s various improvements were summarized by the President of the U.N.
Conference on the Convention as follows:
“it was already apparent that the document represented an improvement on the Geneva
Convention of 1927. It gave a wider definition of the awards to which the Convention applied; it
reduced and simplified the requirements with which the party seeking recognition or
enforcement of an award would have to comply; it placed the burden of proof on the party
against whom recognition or enforcement was invoked; it gave the parties greater freedom in
the choice of the arbitral authority and of the arbitration procedures; it gave the authority
before which the award was sought to be relied upon the right to order the party opposing the
enforcement to give suitable security.” (703)
More generally, the Convention was intended to promote the use of arbitration as a means of
resolving international commercial disputes, in order to facilitate international trade and
investment. In the words of one national court decision, “it is common ground that the evident
purpose of Alberta’s acceptance of the [New York] Convention is to promote international trade
and commerce by the certainty that comes from a scheme of international arbitration.” (704)
[b] Success of New York Convention
P 102
P 103 Despite the Convention’s brevity and focus on arbitration agreements and arbitral awards,
the significance of its terms can scarcely be exaggerated. The Convention’s provisions effected
a fundamental restructuring of the international legal regime for international commercial
arbitration, combining the separate subject matters of the Geneva Protocol and Geneva
Convention into a single instrument, which provided a legal regime that covered international
arbitrations from their inception (the arbitration agreement) until their conclusion (recognition
of the award). In so doing, the Convention established for the first time a comprehensive
international legal framework for international arbitration agreements, arbitral proceedings
and arbitral awards.
Moreover, the terms of this legal framework were important and remarkably innovative.
Considering only the Convention’s provisions mandating recognition of arbitral awards, subject
to a limited, exclusive list of exceptions, one delegate to the New York Conference termed the
Convention a “very bold innovation.” (705) Equally, the Convention’s introduction of uniform
international legal standards mandatorily requiring the recognition and enforcement of
international arbitration agreements, subject to only specified exceptions, was also a bold
38
advance, (706) as was the Convention’s emphatic recognition of the predominant role of party
autonomy in the arbitral process. (707) Taken together, the Convention’s provisions regarding
the recognition of arbitral awards and agreements provided an international legal framework
within which the arbitral proceedings could be conducted largely in accordance with the
parties’ desires and the arbitrators’ directions, and whose results could be effectively enforced
in national courts around the world. (708)
The Convention was ultimately successful in accomplishing its drafters’ objectives: it is now
widely regarded as “the cornerstone of current international commercial arbitration,” (709) the
“most effective instance of international legislation in the entire history of commercial law”
(710) and the “single most important pillar on which the edifice of international arbitration
rests.” (711) In the apt words of Judge Stephen Schwebel, former President of the International
Court of Justice, “It works.” (712)
P 103
P 104 Notwithstanding its present significance, the New York Convention initially attracted
relatively few signatories or ratifications, particularly from major trading states. Only 26 of the
45 countries participating in the Conference signed the Convention prior to its entry into force
on 7 June 1959. (713)
Moreover, many trading states that signed the Convention prior to June 1959, such as Belgium,
the Netherlands, Sweden and Switzerland, did not ratify it for several years thereafter. The first
states to ratify or accede to the Convention were Israel, Morocco, Egypt and Syria, none of
whom were major trading states; by 1970, only 32 states had ratified or acceded to the
Convention, including only a limited number of states with substantial economies. (714) Other
major trading states, including the United States and the United Kingdom, as well as much of
Asia (including China) and Latin America did not accede to the Convention until many years
later. (715) The United States did not accede to the Convention until 1970 (because of concerns
about domestic federalism issues and hostility from some within the U.S. State Department).
(716)
Over time, however, states from all regions of the globe reconsidered their position, (717) and
by the end of 2013 some 149 nations have ratified or acceded to the Convention. (718) The
Convention’s parties include virtually all major trading states and most Latin American,
P 104 African, Asian, Middle Eastern and former socialist states. (719) During the past decade,
P 105 numerous states (including a number in the Middle East and Latin America) have departed
from their former distrust of international arbitration and have acceded to the Convention.
(720)
One reason for the Convention’s success was its timeliness. It became available in the 1960s
and 1970s, as world trade and investment began significantly to expand (facilitated in part by
the Convention). With this expansion came substantially greater numbers of international
commercial disputes – and arbitrations – which gave both national courts and arbitral
tribunals opportunities to interpret and apply the Convention. (721)
[c] Overview of New York Convention’s Provisions
It is often said that the Convention did not provide a detailed legislative regime for all aspects
of international arbitrations (as, for example, the UNCITRAL Model Law would later do (722) ).
Rather, the Convention’s provisions focused on the recognition and enforcement of arbitration
agreements and arbitral awards, without specifically regulating the conduct of the arbitral
proceedings or other aspects of the arbitral process. (723) As one national court has observed,
the Convention was designed to
“encourage the recognition and enforcement of commercial arbitration agreements in
international contracts and to unify the standards by which agreements to arbitrate are
observed and arbitral awards are enforced in the signatory nations.” (724)
Although these observations are broadly accurate, the Convention also indirectly governs the
arbitral process, through its requirement that courts of Contracting States recognize
agreements to arbitrate – including the procedural terms of those agreements (725) – and its
provisions for non-recognition of arbitral awards if the parties’ agreed arbitral procedures
P 105 have not been complied with. (726) Taken together, the Convention’s provisions set forth
P 106 binding international legal principles governing the entire arbitral process – including the
recognition of arbitration agreements, the arbitral process and the recognition of arbitral
awards.
An essential objective of the Convention was uniformity: like the drafters of other international
treaties, the Convention’s drafters sought to establish a single uniform set of international legal
standards for the enforcement of arbitration agreements and arbitral awards. As a leading
commentator on the Convention concludes, “the significance of the New York Convention for
international commercial arbitration makes it even more important that the Convention is
interpreted uniformly by the courts.” (727) Or, in the words of a well-reasoned Canadian
decision, “[t]he purpose of the Convention is to facilitate the cross-border recognition and
enforcement of arbitral awards by establishing a single, uniform set of rules that apply world-
wide.” (728)
In particular, the Convention’s provisions prescribe uniform international rules that: (a) require
national courts to recognize the validity of arbitration agreements, subject to specified
exceptions (Article II(1)); (729) (b) require national courts to refer parties to arbitration when
they have entered into a valid agreement to arbitrate that is subject to the Convention (Article
39
II(3)); (730) and (c) require national courts to recognize and enforce foreign arbitral awards
P 106 (Articles III and IV), subject to a limited number of specified exceptions (Article V). (731)
P 107 Additionally, Articles II and V(1)(d) also indirectly govern the arbitral process itself, generally
according decisive weight to the parties’ agreements regarding arbitral procedures (rather
than the law of the arbitral seat). (732)
National courts have consistently held that these provisions of the Convention establish a “pro-
enforcement” or “pro-arbitration” regime for international arbitration agreements and arbitral
awards. According to one court:
“The purpose of the New York Convention…is to ‘encourage the recognition and enforcement of
commercial arbitration agreements in international contracts and to unify the standards by
which agreements to arbitrate are observed and arbitral awards are enforced in the signatory
countries.’” (733)
Other courts, and commentators, adopt similar interpretations of the Convention’s basic “pro-
enforcement” objectives with respect to both arbitration agreements (734) and arbitral awards.
(735)
P 107
P 108 [i] Article II: Presumptive Validity of Arbitration Agreements
Central to the Convention is Article II(1), which establishes a basic rule of formal and
substantive validity for international arbitration agreements falling within the Convention’s
scope:
“Each Contracting State shall recognize an agreement in writing under which the parties
undertake to submit to arbitration all or any differences which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual or not,
concerning a subject matter capable of settlement by arbitration.” (736)
This basic rule is elaborated, and also provided an enforcement mechanism, in Article II(3) of
the Convention, which requires the courts of Contracting States to refer parties to international
arbitration agreements to arbitration unless “the said [arbitration] agreement is null and void,
inoperative or incapable of being performed.” (737) Importantly, as discussed below, Article II’s
obligations are applicable in Contracting States to all international arbitration agreements,
including agreements to arbitrate locally (in the Contracting State whose courts are asked to
apply Article II) and agreements to arbitrate abroad (in a foreign state). (738)
By virtue of Article II, international arbitration agreements are presumptively valid and
enforceable, subject only to specifically-defined exceptions (identified in Article II(3)), whose
applicability must be proven by the party opposing recognition of the arbitration agreement.
(739) Under the Convention, Contracting States are not free to fashion additional grounds for
denying recognition of agreements to arbitrate, and are instead subject to the mandatory
provisions of Articles II(1) and II(3). (740) As one U.S. court put it, “[d]omestic defenses to
arbitration are transferable to [the challenge to an arbitration agreement under the New York
Convention] only if they fit within the limited scope of defenses” permitted by Article II. (741)
The Convention is best interpreted as imposing international choice-of-law rules that govern
P 108 the selection of the law applicable to international arbitration agreements. As discussed
P 109 below, these choice-of-law rules (set forth in Article V(1)(a) and, impliedly, Article II (742) )
require Contracting States to give effect to the parties’ choice of law governing their agreement
to arbitrate, (743) and, in the absence of any (express or implied) choice by the parties, to
apply the law of the arbitral seat. (744) Moreover, the better view is that the Convention also
requires application of a validation principle, reflecting the parties’ implied intentions, which
mandates application of the national law of the jurisdiction, related to the parties’ transaction,
which will give effect to the parties’ arbitration agreement. (745)
The Convention is also best interpreted as imposing implied limits on the grounds of
substantive invalidity that can be asserted against international arbitration agreements. (746)
In particular, Article II(3) requires – as a uniform and mandatory international rule – the
recognition of the validity of international arbitration agreements except where such
agreements are invalid under generally-applicable, internationally-neutral contract law
defenses that do not impose discriminatory burdens or requirements on the formation or
validity of agreements to arbitrate. (747) These limits are required by Article II’s reference to
ordinary, generally-accepted principles of contract law (“null and void, inoperative or
incapable of being performed”), and by the Convention’s objective of ensuring that Contracting
States recognize the validity of international arbitration agreements in accordance with
uniform international standards.
Under this standard, a Contracting State may not avoid its obligations to recognize
international arbitration agreements by adopting special rules of national law that make such
agreements invalid (or “null and void, inoperative or incapable of being performed”). Thus,
national law provisions that impose unusual notice requirements (e.g., particular font), consent
requirements (e.g., that arbitration agreements be specifically approved or established by
heightened proof requirements), procedural requirements (e.g., only institutional arbitration
agreements are permitted), or invalidity rules (e.g., arbitration agreements applicable to
future disputes, fraud claims, or tort claims are invalid) are all impermissible under Article
II(3). (748)
Consistent with this analysis, Contracting States have almost always applied generally-
40
applicable contract law rules to determine the validity of international arbitration agreements
in both their international arbitration legislation and judicial decisions. (749) Moreover, a
number of national courts have adopted this analysis, holding that only “internationally
neutral” grounds for challenging the validity of international arbitration agreements may be
asserted under Article II of the Convention. In the words of one U.S. decision:
P 109 “The limited scope of the Convention’s null and void clause ‘must be interpreted to encompass
P 110 only those situations—such as fraud, mistake, duress, and waiver—that can be applied
neutrally on an international scale.’” (750)
Finally, Article II applies to, and requires recognition of, all material terms of international
arbitration agreements. This includes provisions regarding the arbitral seat, the selection of
institutional rules, the choice of arbitrators, the procedures required by the arbitration
agreement and the like. (751) As a consequence, courts in Contracting States are mandatorily
required to enforce not just the parties’ exchange of commitments to arbitrate, but also the
material terms of that agreement to arbitrate, pursuant to Article II’s internationally-neutral
standards: Contracting States cannot uphold parties’ agreements to arbitrate, while ignoring
their choice of arbitral seat, arbitral institution, arbitrators, language, or other procedures.
Again, the overwhelming weight of national court authority is consistent with this analysis. (752)
[ii] Articles III, IV and V: Presumptive Validity of Arbitral Awards
Equally central to the Convention are Articles III, IV and V, which establish a basic rule of
validity and enforceability of foreign and nondomestic arbitral awards falling within the scope
of the Convention. Thus, Article III provides that “Each Contracting State shall recognize arbitral
awards as binding” (753) and enforce awards in accordance with the Convention and its national
procedural rules. Article IV prescribes streamlined procedures for the proof of foreign and
nondomestic arbitral awards by the award-creditor, essentially requiring only presentation of
certified and translated copies of the award and underlying arbitration agreement. (754) As
discussed below, these obligations apply only to “foreign” awards, made outside the
Contracting State in which recognition of the award is sought, and “nondomestic” awards, a
category of awards with limited relevance in contemporary practice. (755)
In turn, Article V provides that “[r]ecognition and enforcement of the award may be refused…
only if” (756) one of seven specified exceptions applies, set forth in Articles V(1) and V(2). The
Convention’s exceptions to the obligation to recognize foreign awards are limited to issues of
jurisdiction (Articles V(1)(a), V(1)(c)), procedural regularity and fundamental fairness (Article V(1)
(b)), compliance with the procedural terms of the parties’ arbitration agreement or, absent
such agreement, the procedural requirements of the arbitral seat (Article V(1)(d)) and public
policy or nonarbitrability (Articles V(2)(a), V(2)(b)); an award may also be denied recognition if
it has been annulled by a competent court in the arbitral seat (Article V(1)(e)). Notably, these
exceptions do not include review by a recognition court of the merits of the arbitrators’
substantive decision. (757)
As with Article II, the provisions of Articles III, IV and V are self-evidently mandatory, not
P 110 permissive – a conclusion that national courts and other authorities have uniformly confirmed.
P 111 (758) It is also clear that the exceptions set forth in Article V of the Convention, to the general
obligation on Contracting States to recognize awards, are exclusive and exhaustive; courts in
Contracting States may not deny recognition of foreign or nondomestic awards except on the
grounds specifically set out in Article V. (759) Moreover, the burden of proof under Article V is
on the award-debtor, not the award-creditor, and national courts have emphasized that Article
V’s exceptions are strictly construed. (760)
P 111
P 112 Finally, it is also clear that neither Article V nor anything else in the Convention requires a
Contracting State ever to deny recognition to a foreign or nondomestic award. The Convention
requires only that Contracting States recognize awards (and arbitration agreements) in
specified circumstances. Nothing in Article V, nor the basic structure and purpose of the
Convention, imposes the opposite obligation, not to recognize an award (or arbitration
agreement). That is made explicit in Article VII, which preserves rights that award-creditors
enjoy under national law or other international treaties to recognize and enforce arbitral
awards (and, by analogy, arbitration agreements). (761)
[iii] Articles II and V(1)(d): Recognition of Parties’ Procedural Autonomy
The Convention also addresses the procedures used in international arbitrations, albeit
indirectly. In particular, Articles II and V(1)(d) of the Convention both provide for recognition of
the parties’ agreed arbitral procedures.
As noted above, Article II(1) and II(3) of the Convention require Contracting States to recognize
the material terms of agreements to arbitrate, including their procedural terms, and to refer
the parties to arbitration in accordance with those terms. (762) Those provisions obligate
courts in Contracting States to give effect to the arbitral procedures that the parties have
provided for in their arbitration agreements (or otherwise). As discussed below, the Convention
impliedly permits Contracting States to deny effect to such agreements in limited, exceptional
circumstances, in order to protect the integrity of the arbitral process, but does not otherwise
limit the parties’ procedural autonomy. (763)
Article V(1)(d) similarly provides for non-recognition of arbitral awards where the “composition
of the arbitral authority or the arbitral procedure was not in accordance with the agreement of
the parties, or, failing such agreement, was not in accordance with the law of the country where
41
the arbitration took place.” (764) Even more explicitly than Article II, Article V(1)(d) gives
priority to the parties’ agreement regarding arbitral procedures, providing for application of
the law of the arbitral seat only as a default mechanism, when the parties have not made any
agreement regarding procedural matters. (765) At the same time, Article V(1)(b) of the
Convention also permits non-recognition of awards in cases where a party was denied an
opportunity to present its case, imposing a general requirement of procedural fairness and
regularity on the arbitral process (including in (exceptional) cases where the parties’ agreed
arbitral procedures are fundamentally unfair). (766)
Taken together, Articles II and V(1)(d) prescribe a basic rule of party autonomy for regulation of
P 112 the arbitral procedures. Under the Convention, Contracting States (and arbitral tribunals) are
P 113 mandatorily required to give the parties’ procedural agreements effect, subject to only
limited exceptions to protect the fundamental fairness of the arbitral process.
[d] Application of New York Convention by National Courts
In virtually all Contracting States, the New York Convention has been implemented through
national legislation. The practical effect of the Convention is therefore dependent on both the
content of such national legislation and the interpretations given by national courts to the
Convention and national implementing legislation. (767)
As discussed below, the extent to which Contracting States have been faithful to the
Convention and its underlying objectives varies. (768) Most states have adopted legislation
(such as the UNCITRAL Model Law) that gives almost complete effect to the Convention,
clarifying ambiguities or adding detail regarding the role of national courts. (769) Nonetheless,
a few states have failed (sometimes for prolonged periods) to enact any implementing
legislation, (770) or have promulgated national laws that do not comport with the Convention.
(771) Even in developed states, legislation is occasionally enacted or judicial decisions issued
that do not comport with the Convention’s requirements. (772)
As noted above, an important aim of the Convention’s drafters was uniformity. (773) The
fulfillment of that aim is dependent upon the willingness of national legislatures and courts, in
different Contracting States, to adopt uniform interpretations of the Convention. In general,
P 113 national courts have risen to the challenge of adopting uniform interpretations of the
P 114 Convention’s provisions. (774) That process has accelerated in recent decades, as national
court decisions have become increasingly available in foreign jurisdictions (775) and national
courts have increasingly cited authorities from foreign and international sources in
interpreting the Convention. As one experienced (former) judge observed, the New York
Convention is “one of the few international treaties in respect of which the courts look at what
the courts have done in other Contracting States.” (776)
Thus, national courts have fairly consistently sought to interpret the Convention uniformly,
particularly in the past two decades, with judicial decisions drawing on interpretations of the
Convention and resolutions of particular issues in different legal systems; they have often done
P 114 so for the express purpose of achieving uniformity and developing a predictable and coherent
P 115 body of international arbitration law. (777) In the words of one recent Indian decision, which
reversed decades of Indian precedent that contradicted the Convention:
“The underlying motivation of the New York Convention was to reduce the hurdles and produce
a uniform, simple and speedy system for enforcement of foreign arbitral award. Therefore
[Article V(1)(e) of the Convention should be interpreted in the manner that] seems to be
accepted by the commentators and the courts in different jurisdictions.” (778)
Or, as another national court put it:
“Insofar as the Act implements an international treaty, Australian courts will, as far as they
able, construe the Act consistently with the international understanding of that treaty.
Uniformity also accords with the Act’s stated purpose to facilitate the use of arbitration as an
effective dispute resolution process.” (779)
This process has been materially assisted by the adoption, in a significant number of
Contracting States, of the UNCITRAL Model Law. As discussed below, the Model Law is based
substantially on the New York Convention, mirroring its basic terms and specific language (in
Articles II, III, IV and V of the Convention) and providing elaboration of those terms. (780) The
interpretation of the Model Law in Contracting States that have adopted it has provided
further impetus towards uniformity in interpretation of the Convention and regulation of the
arbitral process.
National courts have not devoted substantial attention to the question whether the New York
Convention has “direct” application in the courts of Contracting States (or, formulated
differently, is “self-executing”). As discussed below, the weight of U.S. authority supports the
view that the Convention is self-executing. (781) There are a few decisions from other
jurisdictions which suggest the same conclusion. (782)
P 115 This analysis is clearly correct. The text of Articles II, III, IV, V and VI leave little question but
P 116 that the Convention’s principal provisions are meant to have immediate, direct application
in national courts, regardless of the existence of national implementing legislation. Each of
these provisions prescribes mandatory rules directed towards national courts (e.g., “refer
parties to arbitration”; “shall recognize arbitral awards as binding”). These provisions are text-
book examples of treaty obligations that are meant to have direct effects, without the need for
42
implementing legislation.
[e] Constitutional Character of New York Convention
Finally, it also bears emphasis that the Convention is a “constitutional” instrument. (783) The
Convention’s text is drafted in broad terms, designed for application in a multitude of states
and legal systems, over a period of decades. By necessity, as well as design, the interpretation
of the Convention must evolve and develop over time, as national courts and arbitral tribunals
confront new issues, develop more refined analyses and implement the treaty’s underlying
objectives. As one national court explained, accepting the characterization of “the Convention
as a ‘constitutional instrument,’” the Convention imposes uniform international standards
while “leav[ing] a substantial role for national law and national courts to play in the arbitral
process.” (784)
The process of interpretation and application of the Convention can be uneven and slow, but it
is very well-adapted to the evolving needs of the international arbitral process, which by its
nature is characterized by changing commercial demands and conditions. It is also well-
adapted to the nature of the Convention’s constitutional structure, which leaves a substantial
role for national law and national courts to play in the international arbitral process, but
within the international framework and limitations imposed by the Convention’s provisions.
Much of the discussion in the following Chapters is addressed to the manner in which national
courts and arbitral tribunals have jointly given effect to the Convention’s terms and developed
their respective fields of competence within the Convention’s framework.
P 116 There have been occasional proposals to amend the New York Convention. (785) Those
P 117 proposals have attracted substantial criticism, (786) and have gained little political or
other
momentum. As a practical matter, it is highly unlikely that amendments to the Convention are
foreseeable in the coming decade.
A more significant step in this direction was the adoption by UNCITRAL of the UNCITRAL Model
Law and of two “Recommendations” regarding interpretation of Articles II and VII of the
Convention. (787) The Model Law was based in significant part on the Convention (with Articles
7, 8, 34, 35 and 36 largely tracking the text of the Convention in verbatim language). (788) As
discussed elsewhere, interpretations of the Model Law often look to the Convention and
decisions interpreting the Convention, while conversely influencing analysis and interpretation
of the Convention. (789)
At the same time, UNCITRAL’s Recommendations will (properly) influence interpretation of the
Convention (as well as the Model Law). These actions reflect the ongoing cooperation of
Contracting States in their judicial and quasi-legislation interpretations of the Convention,
progressively developing and elaborating the Convention’s meaning over time. These actions
have been of particular importance given the constitutional character of the Convention,
whose broad and general text necessarily requires substantial interpretation and elaboration.
Finally, the New York Convention must also be interpreted in accordance with principles of
good faith, including as reflected in Article 31 of the Vienna Convention on the Law of Treaties.
As one well-reasoned national court decision held, “as a treaty, the Convention must be
interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose.’” (790) Other authorities
are to the same effect. (791) The Contracting States’ obligations of good faith under the
Convention complement the Convention’s constitutional character, contemplating a
progressive and cooperative development of the Convention’s basic objectives of facilitating
the recognition and enforcement of international arbitration agreements and awards.
[2] European Convention on International Commercial Arbitration
The 1961 European Convention on International Commercial Arbitration (792) is one of the
world’s most important regional commercial arbitration treaties. Drafting of the European
Convention began in 1954, aimed at producing a treaty that would improve upon the then-
P 117 existing legal framework for international arbitration involving parties from European states
P 118 (793) and particularly East-West trade. (794) The drafting process was protracted (and
delayed by the intervening New York Convention), but ultimately concluded with signing of the
Convention in Geneva on 21 April 1961. (795)
The European Convention entered into force in 1964, and 31 states are currently party to it.
(796) Most European states (but not the United Kingdom, the Netherlands or Finland) are party
to the Convention, while some ten non-European states are parties, including Russia, Cuba and
Burkina Faso. (797) The Convention consists of 19 articles and a detailed annex (dealing with
certain procedural matters).
The Convention addresses the three principal phases of the international arbitral process –
arbitration agreements, arbitral procedure and arbitral awards. With regard to the arbitration
agreement, the Convention (impliedly) recognizes the validity of international arbitration
agreements, (798) while expressly providing for a specified, limited number of bases for the
invalidity of such agreements in proceedings concerning recognition of awards. (799) With
regard to the arbitral procedure, the Convention limits the role of national courts and confirms
the autonomy of the parties and the arbitrators (or arbitral institution) to conduct the
arbitration proceedings; the Convention also addresses the allocation of competence between
arbitral tribunals and national courts over jurisdictional challenges, to the existence, validity,
or scope of the arbitration agreement. (800) With regard to awards, the European Convention is
43
designed to supplement the New York Convention, essentially dealing only with the effects of a
judicial decision annulling an award in the arbitral seat in other jurisdictions (and not with
other recognition obligations). (801)
The Convention’s impact in actual litigation has not been substantial (owing to the limited
number of Contracting States, all of whom are also party to the New York Convention). (802)
Nonetheless, the Convention’s effects on international arbitration doctrine have been
significant. This is particularly true with regard to the arbitrators’ jurisdiction to consider
P 118 challenges to their own jurisdiction (so-called “competence-competence”) (803) and the
P 119 parties’ (and arbitrators’) autonomy to determine the arbitral procedures. (804) The
Convention is currently somewhat dated – reflecting its origins during the Cold War – and
efforts are underway to revise its provisions. (805)
[3] Inter-American Convention on International Commercial Arbitration (806)
After the pioneering Montevideo Convention in 1889, and the Bustamante Code in 1920, (807)
much of South America effectively turned its back on international commercial arbitration.
Only Brazil ratified the Geneva Protocol, and even it did not adopt the Geneva Convention.
South American states were very reluctant to ratify the New York Convention, for the most part
only beginning to do so in the 1980s.
Nevertheless, in 1975, the United States and most South American nations negotiated the Inter-
American Convention on International Commercial Arbitration (“Inter-American Convention”),
also known as the “Panama Convention.” (808) The United States ratified the Convention in
1990; other parties include Mexico, Brazil, Argentina, Venezuela, Columbia, Chile, Ecuador,
Peru, Costa Rica, El Salvador, Guatemala, Honduras, Panama, Paraguay and Uruguay. (809)
The Inter-American Convention is similar to the New York Convention in many respects: indeed,
the Convention’s drafting history makes clear that it was intended to provide the same results
as the New York Convention. (810) Among other things, the Inter-American Convention provides
for the presumptive enforceability of arbitration agreements (811) and arbitral awards, (812)
subject to specified exceptions similar to those in the New York Convention. (813)
P 119
P 120 The Inter-American Convention nonetheless introduces significant innovations, not present
in the New York Convention. It does so by providing that, where the parties have not expressly
agreed to any institutional or other arbitration rules, the rules of the “Inter-American
Commercial Arbitration Commission” (“IACAC”) will govern. (814) In turn, the Commission has
adopted rules that are similar to the UNCITRAL Rules. (815) The Convention also introduces
provisions regarding the constitution of the arbitral tribunal and the parties’ freedom to
appoint arbitrators of their choosing (regardless of nationality). (816) Less desirably, the Inter-
American Convention departs from the New York Convention by omitting provisions dealing
expressly with judicial proceedings brought in national courts in breach of an arbitration
agreement. (817)
[4] ICSID Convention
A central pillar of the international investment regime is the so-called ICSID Convention or
“Washington Convention” of 1965. (818) The Convention establishes the International Centre for
Settlement of Investment Disputes (“ICSID”), a specialized arbitral institution, which
administers arbitrations and conciliations, both pursuant to the Convention and otherwise.
(819)
The ICSID Convention was negotiated and opened for signature in 1965 and now has 150
Contracting States, including states in every geographic region of the world. (820) The
Convention is designed to facilitate the settlement of “investment disputes” (i.e., “legal
dispute[s] arising directly out of…investment[s]”) that the parties have agreed to submit to
ICSID. (821) Investment disputes are defined as controversies that arise out of an “investment”
P 120 and are between a Contracting State (or “host State”) or a designated state-related entity from
P 121 that state and a national of another Contracting State (or “investor”). (822) The Convention
does not apply to disputes not involving a Contracting State and an investor from another
Contracting State or to disputes between private parties; it also does not apply to purely
commercial disputes that do not involve an investment.
As to investment disputes that fall within its terms, the Convention provides both conciliation
(823) and arbitration procedures. The Convention does not provide an independent, stand-
alone basis for arbitrating particular disputes under the Convention. Instead, an ICSID
arbitration cannot be pursued without a separate consent to ICSID arbitration by the foreign
investor and host state, which usually takes the form of either an arbitration clause contained
within an investment contract or a consent provided in a foreign investment law, a BIT
(discussed below), or another treaty. (824)
If parties agree to submit a dispute to ICSID arbitration, the ICSID Convention (and related
ICSID Arbitration Rules) provide a comprehensive, stand-alone regime, almost entirely
detached from national law and national courts, for the conduct of ICSID arbitral proceedings.
This regime differs materially from that applicable in international commercial arbitrations
(under the New York Convention) and most other investment arbitration contexts.
Under the ICSID Convention regime, arbitral tribunals are granted exclusive competence-
competence to resolve jurisdictional challenges (subject to limited subsequent review by
ICSID-appointed annulment committees (and not by national courts)). (825) This differs from
44
international commercial arbitrations, where national courts play a significant role in
considering and resolving jurisdictional disputes. (826)
Likewise, ICSID awards are subject to immediate recognition and enforcement in the courts of
Contracting States without set aside proceedings or any other form of other review in national
courts, either in the arbitral seat or elsewhere (but subject to local rules of state immunity of
state assets). (827) Instead, ICSID awards are subject to a specialized internal annulment
procedure, in which ad hoc committees selected by ICSID are mandated, in limited
P 121 circumstances, to annul awards for jurisdictional or grave procedural violations; (828) if an
P 122 award is annulled it may be resubmitted to a new ICSID arbitral tribunal. (829) This is a
substantial difference from the New York Convention model, where awards are subject to
annulment (in the national courts of the arbitral seat) and non-recognition (in national courts
elsewhere). (830)
Moreover, ICSID (and not a national court) serves as the appointing authority in ICSID
arbitrations, when necessary, selecting and replacing arbitrators from a list of individuals
selected by individual Contracting States. (831) Again, this differs materially from appointment
mechanisms in at least some non-ICSID settings (particularly ad hoc arbitrations, where
national courts can be involved in the appointment and challenge process (832) ).
Finally, the ICSID Convention provides that, absent agreement by the parties, ICSID arbitrations
are governed by the law of the state that is party to the dispute (including its conflict of laws
rules) “and such rules of international law as may be applicable.” (833) In contrast, neither the
New York nor Inter-American Conventions contains comparable substantive choice-of-law
provisions.
Major international infrastructure and natural resource projects frequently include ICSID
arbitration clauses, usually as a consequence of demands from host governments. ICSID has
also frequently been included as an arbitral institution to administer arbitrations pursuant to
BITs, which proliferated during the 1990s. (834) As a consequence, ICSID has gained
substantially greater experience in administering international arbitrations, and enhanced
credibility as an arbitral institution during the past decade or so. (835) That trend has
continued in recent years, as ICSID has modernized the ICSID Rules, which led to some
improvement in the institution’s arbitral procedures. (836)
ICSID’s caseload has very significantly increased in the past 25 years, particularly as a
consequence of arbitrations brought pursuant to bilateral investment treaties (“BITs”) or
investment protection legislation. (837) As of 31 December 2013, the Centre had registered 424
P 122 ICSID arbitrations since its establishment, with 40 new ICSID arbitrations registered in 2013.
P 123 (838) While only 4 ICSID awards were rendered between 1971 and 1980, 107 awards were
rendered between 2001 and 2010 (with a total of over 180 ICSID awards by March). (839)
[5] North American Free Trade Agreement
A number of other multilateral treaties also play important roles in the international
investment regime, establishing legal regimes that resemble, but also differ from, the ICSID
Convention. The North American Free Trade Agreement (“NAFTA”) is a multilateral treaty
between Canada, Mexico and the United States which addresses a wide range of trade,
investment and other issues. Chapter 11 of NAFTA sets forth standards for treatment by each
NAFTA state of investors from other NAFTA states, as well as a mechanism for arbitrating
investment disputes under those standards. The substantive rights provided by NAFTA include
protections against discriminatory treatment of a NAFTA investor by the host state, unfair or
inequitable treatment and expropriation without adequate compensation. (840)
Unlike the basic models for both international commercial arbitration and the ICSID
Convention, no separate consent to arbitration is required to permit an investor from one
NAFTA state to arbitrate claims under NAFTA’s substantive provisions against another NAFTA
state. Rather, the necessary consent by the NAFTA state parties is provided in Chapter 11 of
NAFTA itself, which provides investors from NAFTA states with immediate access to an arbitral
forum. (841)
While NAFTA includes ICSID arbitration as an option for resolving disputes, neither Canada
(prior to October 2013) nor Mexico is currently a party to the ICSID Convention, and NAFTA
arbitrations therefore cannot be conducted under the Convention. (842) As a result, NAFTA
awards are not subject to the ICSID Convention (including its internal institutional annulment
procedure), and are instead subject to being set aside in national courts of the arbitral seat in
the same general manner as international commercial arbitration awards. (843) ICSID’s
“Additional Facility” Rules are commonly used in NAFTA arbitrations, permitting use of ICSID as
an appointing authority and administering institution, notwithstanding the ICSID Convention’s
inapplicability. (844)
[6] Bilateral Investment Treaties (845)
P 123
P 124 BITs play a central role in the international investment regime. Unlike the ICSID Convention
(and other multilateral investment treaties), BITs are bilateral treaties, tailored to the
circumstances of individual bilateral relationships and only binding two Contracting States.
Nonetheless, as discussed below, most BITs follow a common structure and include common
provisions (often contained in “model” BITs published by some states). (846)
Capital-exporting states (including Germany, the United Kingdom, most other Western
45
European states, the United States and Japan) were the earliest proponents of BITs, which were
originally entered into principally between developed and developing countries. More
recently, states in all stages of development have concluded BITs with one another. More than
2,800 BITs are currently in force, with a substantial proportion of all BITs being between
developing states (so-called “South-South” BITs). (847)
Most BITs provide significant substantive protections for investments made by investors from
one of the two Contracting States in the territory of the other Contracting State. These
protections typically include guarantees against uncompensated expropriation, unfair or
inequitable treatment and discriminatory treatment. (848)
BITs also very frequently (but not always) contain dispute resolution provisions which permit
investors from one Contracting State to submit “investment disputes” with the other
Contracting State to arbitration, subject occasionally to specified exclusions (e.g., for tax
disputes). Importantly, like NAFTA and the Energy Charter Treaty, these provisions provide each
state’s binding consent to arbitration of investment disputes; this permits investors to demand
arbitration of covered disputes against the host state without a traditional contractual
arbitration agreement with the host state or other separate consent to arbitration by the host
state (so-called “arbitration without privity”). (849) A few BITs do not include the Contracting
P 124 States’ consent to arbitration, requiring foreign investors to conclude a separate arbitration
P 125 agreement with the host state in order to arbitrate an investment dispute under the treaty, but
this is unusual.
BITs contain a variety of different arbitration mechanisms. Some BITs provide for ICSID
arbitration of investment disputes under the BIT; other BITs provide for UNCITRAL or some form
of institutional arbitration (e.g., ICC or SCC) or ad hoc arbitration; and some BITs permit
investors to select among any of the foregoing (or other) options. (850) The appointing authority
in a particular BIT arbitration will vary, depending on the terms of the individual BIT and the
option(s) selected by the investor. Unless a BIT arbitration proceeds under the ICSID
Arbitration Rules and ICSID Convention, BIT awards will be subject to the New York Convention
and general national arbitration legislation. (851)
As with ICSID arbitrations, the past two decades have witnessed a steadily increasing number
of BIT arbitrations and awards. Recent reports indicate that more than 50 BIT arbitrations are
filed each year, with a substantial number of these proceeding to final awards. (852)
There is a substantial, and growing, body of specialized commentary addressing the subjects of
BITs and investor-state arbitration. (853) These topics are beyond the scope of this Treatise,
save where relevant as useful parallels, contrasts, or illustrations of issues arising in
[7] Bilateral Friendship, Commerce and Navigation Treaties
A number of nations have entered into bilateral treaties dealing principally with commercial
relations and incidentally with international arbitration. These treaties generally provide for
the reciprocal recognition of arbitral awards made in the territory of the Contracting States.
For example, the United States includes an article relating to arbitration between private
parties in many of its bilateral Friendship, Commerce and Navigation treaties. (854) A
representative example of such an article provides:
P 125 “Contracts entered into between nationals or companies of either party and nationals or
P 126 companies of the other party that provide for settlement by arbitration of controversies
shall not be deemed unenforceable within the territories of such other party merely on the
grounds that the place designated for arbitration proceedings is outside such territories or
that the nationality of one or more of the arbitrators is not that of such other party. Awards
duly rendered pursuant to any such contracts which are final and enforceable under the laws of
the place where rendered shall be deemed conclusive in enforcement proceedings brought
before the courts of competent jurisdiction of either party, and shall be entitled to be
declared enforceable by such courts, except where found contrary to public policy.” (855)
For the most part, these treaty provisions have been effectively superseded by the terms of the
New York Convention and other multilateral treaties, which generally provide substantially
more expansive protections. (856)
[B] Overview of National Arbitration Legislation

Many nations have enacted arbitration legislation, which provides a basic legal framework for
international arbitration agreements, arbitral proceedings and arbitral awards. National
arbitration statutes are of fundamental importance in giving effect to – or, less frequently,
creating obstacles to – the functioning of the international arbitral process. Despite occasional
rhetoric as to the “autonomy” of the international arbitral process, (857) it is essential to the
efficient functioning of the arbitral process, and the realization of the parties’ objectives in
agreeing to arbitrate, that national courts give effect to such agreements and provide support
for the arbitral process. The enactment of legislation accomplishing these ends has been a
major objective – and achievement – of developed trading states and many other jurisdictions
over the past 50 years. (858)
Over the past several decades, large numbers of developed and less-developed states have
enacted, revised or improved legislation dealing with international commercial arbitration.
46
(859) The extent of these legislative revisions is striking, both in number and diversity.
P 126 Important new enactments, or thorough revisions, have occurred in Algeria (2008), Australia
P 127 (1989 and 2011), Austria (2006), Bangladesh (2001), Bahrain (1994), Belgium (2013), Brazil
(1996), Bulgaria (1993 and 2007), Cambodia (2006), Chile (2004), China (1991 and 1994), Colombia
(2012), Costa Rica (1997 and 2011), Croatia (2001), Czech Republic (1994 and 2012), Denmark
(2005), Dominican Republic (2008), England (1996), Egypt (1994), Finland (1992), France (2011),
Germany (1998), Greece (1999), Hong Kong (1997 and 2010), India (1996), Indonesia (1999), Ireland
(1998 and 2010), Italy (2006), Japan (2004), Mexico (1993 and 2011), New Zealand (1996 and 2007),
Nicaragua (2005), Norway (2004), Peru (2008), Poland (2005), Portugal (2012), Russia (1993), Saudi
Arabia (2012), Scotland (2010), Singapore (1995 and 2012), South Korea (2009), Spain (2003 and
2011), Sweden (1999), Tunisia (1993), Turkey (2001), the United Arab Emirates (1992) and Vietnam
(2011).
Given these (and other enactments), and the even more widespread acceptance of the New
York Convention and ICSID Convention, international arbitration has become a global
mechanism of dispute resolution. As a leading Singaporean jurist has correctly observed
“arbitration is no longer the preserve of the developed jurisdictions of Europe and North
America.” (860) Rather, international arbitration is a universally accepted means of dispute
resolution, supported by national and international legal regimes and preferred by public and
private users from all jurisdictions.
Particularly in civil law jurisdictions, early arbitration legislation was often a part or chapter
within the national Code of Civil Procedure. (861) This continues to be the case in a number of
jurisdictions even today. (862) In common law jurisdictions, the tendency was (and remains) to
enact separate legislation dealing specifically with arbitration. (863) The growing popularity of
the UNCITRAL Model Law on International Commercial Arbitration (864) has made the latter
approach of stand-alone arbitration legislation increasingly common.
As discussed below, in many, (865) but not all, (866) cases, national arbitration statutes are
applicable only to international (not domestic) arbitrations, or contain separate parts dealing
differently with domestic and international arbitration. This approach has generally been
P 127 adopted in order to permit the application of particularly “pro-arbitration” rules and
P 128 procedures in the international context, which may not (for historical or other reasons) be
appropriate for purely domestic matters. (867) Nevertheless, a number of countries have
adopted the same legislation for both domestic and international arbitrations (even then,
however, with specific provisions that treat the two fields differently with regard to particular
subjects). (868)
Some commentators have suggested that there is no reason to distinguish between
international and domestic arbitrations. (869) That view may be appropriate in jurisdictions
where domestic arbitration agreements and awards are accorded strong guarantees of validity
and enforceability, and where the parties’ autonomy with regard to arbitral procedures,
arbitrator selection, choice of law and other matters are fully respected in domestic matters.
In many countries, however, such guarantees do not exist, or are subject to important
qualifications, in domestic contexts. Moreover, there are particular issues as to which local
traditions or policies may argue for greater restrictions on domestic, rather than on
international arbitration. (870) In these instances, the special characteristics of international
arbitration – aimed at overcoming the unique jurisdictional, choice-of-law and enforcement
uncertainties which exist in international matters, and providing an internationally-neutral
dispute resolution process – fully justify treating it differently from purely domestic
arbitration. (871)
Broadly speaking, there are two categories of national arbitration legislation: statutes which
are supportive of the international arbitral process (increasingly, but not always, based on the
UNCITRAL Model Law) and statutes which are not supportive of the arbitral process. Both of
these types of legislation are discussed below.
[1] Supportive National Arbitration Legislation
Most states in Europe, North America and parts of Asia have adopted legislation that addresses
P 128 all of the foregoing issues and provides effective and stable support for the arbitral process.
P 129 (872) In many cases, jurisdictions have progressively refined their national arbitration
statutes, adopting either amendments or new legislation to make their arbitration regimes
maximally supportive for the international arbitral process and attractive to users. (873) Thus,
over the past 50 years, virtually every major developed country has substantially revised or
entirely replaced its international arbitration legislation, in every case, to facilitate the
arbitral process and promote the use of international arbitration. (874)
Paralleling the main features of the New York Convention, the pillars of modern arbitration
statutes are provisions that affirm the capacity and freedom of parties to enter into valid and
binding agreements to arbitrate future commercial disputes, (875) provide mechanisms for the
enforcement of such agreements by national courts (through orders to stay litigation or to
compel arbitration), (876) prescribe procedures for confirming or annulling arbitral awards
(877) and require the recognition and enforcement of foreign awards. (878) In many cases,
national arbitration statutes also authorize limited judicial assistance to the arbitral process;
this assistance can include removing and selecting arbitrators, enforcing a tribunal’s orders
with respect to evidence-taking or discovery and granting provisional relief in aid of
arbitration. (879)
47
In addition, most modern arbitration legislation affirms the parties’ autonomy to agree upon
arbitral procedures and, sometimes, the applicable substantive law governing the parties’
dispute, while narrowly limiting the power of national courts to interfere in the arbitral
process, either when arbitral proceedings are pending or in reviewing awards. (880) Although
generally off the beaten trail, the arbitration legislation of Djibouti is representative, in its
statement of legislative purpose of “giv[ing] the widest effect to the contractual provisions
agreed upon by the parties in regard to the framework of the arbitration proceedings.” (881)
As one distinguished authority put it:
“[One focus of national legislative developments over the past four decades] is found in the
widening of the parties’ autonomy in regulating qualifying aspects of the arbitration (number
and manner of appointment of arbitrators; seat and language of the arbitration; rules
applicable to the proceedings; rules applicable to the merits of the dispute; and waiver of
means of recourse against the award).” (882)
P 129
P 130 The central objective of these legislative enactments has been to facilitate international
trade and investment by providing more secure means of dispute resolution. Recognizing that
international transactions are subject to unique legal uncertainties and risks, (883) developed
and other states have sought to promote the use of arbitration expressly as a way of mitigating
such risks. (884) Among other things, they have done so through enactment of modern
arbitration statutes, giving effect to the constitutional principles of the New York Convention,
ensuring the validity and enforceability of international arbitration agreements and awards,
and facilitating the autonomy and efficiency of the arbitral process. A judicial opinion in a
recent Canadian decision captured this attitude, in a representative contemporary business
setting, in well-reasoned terms:
“Access to justice in Canada no longer means access just to the public court system.
Historically, judges were reluctant to relinquish their grasp on dispute resolution, and they
even viewed alternative dispute resolution as antithetical to the parties’ interests. This era is
gone. It is the role of the legislature, not the courts, to limit access to alternative dispute
resolution mechanisms. Unlike several other provinces, British Columbia has not limited the
resolution of consumer disputes to a single procedural regime. On the contrary, it has left room
for arbitration and allowed arbitrators to exercise broad remedial powers, subject to the
agreement of parties to a dispute. Given the current structure of consumer protection
legislation in British Columbia, submitting a consumer’s dispute with their mobile phone
service provider to arbitration is entirely consistent with the important public purposes of
protecting consumers, vindicating their rights and promoting access to justice.” (885)
P 130
P 131 Additionally, one of the stated objectives of new arbitration legislation during the past
several decades has been to attract international arbitration business. In the words of one Irish
legislator: “The economies of other countries have benefited considerably from arbitration
business and there is no reason why Ireland should not share in those benefits.” (886) Or, as
was asserted in debates on England’s arbitration legislation, a revised arbitration act would
supposedly bring the country $1 billion annually in lawyers’ and arbitrators’ fees. (887)
Some have considered these motivations unseemly or illegitimate. One commentator has
complained that “countries have, without shame, exhibited their desire to attract the business
of arbitration,” (888) while another has observed, with a measure of reproach, that:
“There has been a scramble among Western European nations to accommodate their
arbitration laws to what they perceive to be the consumers’ tastes, thereby attracting a greater
share of the fees that go to lawyers and arbitrators at the place of the proceeding.” (889)
The reality appears to be that these legislative reforms have done relatively little to attract
international arbitrations to particular countries. (890) Whatever the case, however, there is no
reason to regard contemporary arbitration legislation with cynicism or reproach because of
such motivations. (891)
Modern international arbitration statutes do good (in addition to hopefully doing well) by
addressing the needs of international business and international trade (“the consumers’
tastes”) and by further enhancing the ability of international arbitration to resolve commercial
disputes efficiently and definitively, without burdening the parties, national courts, or
international commerce with the peculiar uncertainties and difficulties of transnational
disputes. The fact that legislatures evince a natural and commonplace interest in fostering the
local economy, and that local residents and businesses in a particular jurisdiction will derive
P 131 professional opportunities and financial gain from increased use of that jurisdiction as an
P 132 arbitral seat, in no way alters the benefits that such legislation produces for international
businesses and, more broadly, for the global economy.
A recent Singaporean decision expressed this attitude, embraced by a number of courts in
developed states around the world, as follows:
“There was a time when arbitration was viewed disdainfully as an inferior process of justice.
Those days are now well behind us. An unequivocal judicial policy of facilitating and promoting
arbitration has firmly taken root in Singapore. It is now openly acknowledged that arbitration,
and other forms of alternative dispute resolution such as mediation, help to effectively unclog
the arteries of judicial administration as well as offer parties realistic choices on how they
want to resolve their disputes at a pace they are comfortable with. More fundamentally, the
need to respect party autonomy (manifested by their contractual bargain) in deciding both the
48
method of dispute resolution (and the procedural rules to be applied) as well as the
substantive law to govern the contract, has been accepted as the cornerstone underlying
judicial non-intervention in arbitration. In essence, a court ought to give effect to the parties’
contractual choice as to the manner of dispute resolution unless it offends the law.” (892)
Finally, there is an additional, but deeply-rooted, foundation for contemporary support for the
arbitral process. The right of private parties to resolve their disputes consensually, by
arbitration, instead of by recourse to state courts or administrative agencies, is related to
constitutionally-protected rights of autonomy and association. (893) The parties’ freedom to
elect the manner in which they resolve their disputes is a basic aspect of individual autonomy
and liberty, no different from the freedom to enter into contracts and other forms of
association, which is properly accorded protection in almost all developed legal systems. (894)
Consistent with this analysis, national courts have characterized the right to arbitrate as a
“fundamental right,” with “constitutional” underpinnings.” (895) One U.S. court declared: “The
recognized autonomy of parties to enter into an arbitration agreement…is directly correlated
to and stems from the constitutionally protected right of freedom to contract.” (896) Similarly,
a Québec court reasoned:
P 132
P 133 “Arbitration is a fundamental right of the citizens and is an expression of the parties’
contractual freedom. It should not be considered as an attack on the monopoly of state justice.
Rather, arbitration should be perceived as an alternative means of dispute resolution that,
depending on the circumstances, fulfils certain goals pursued by the parties – e.g., rapidity,
peer review, cost efficiency etc.” (897)
Courts in other jurisdictions, from widely different legal systems and geographic locations,
have similarly recognized the constitutional foundations of the right to arbitrate. (898)
Investor-state tribunals have recognized similar conceptions of a right to arbitrate, guaranteed
by both national laws and Article II of the New York Convention. (899)
These considerations have particular application in international matters, where commercial
parties choose to arbitrate in significant part to obtain neutral, effective adjudication of their
disputes, rather than dispute resolution that is frequently non-neutral, arbitrary and
unreliable. (900) It is particularly appropriate for states not just to protect, but to affirmatively
encourage and support, parties’ efforts to resolve their disputes in this manner.
There are by now a large number of supportive national arbitration statutes, in both developed
and less developed jurisdictions. Most, but not all, of these statutes are modern, in the sense of
P 133 having been adopted during the last three decades. The following sections briefly outline the
P 134 UNCITRAL Model Law and the English, French, Swiss and U.S. international arbitration
frameworks, which provide a selection of differing contemporary models for supportive arbitral
regimes. At the same time, there are substantial similarities, in many respects, between
contemporary international arbitration statutes in most developed jurisdictions, (901) all of
which represent further steps, beyond the New York Convention, in establishing today’s “pro-
arbitration” legal regime for international commercial arbitration.
[a] UNCITRAL Model Law (902)
The United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on
International Commercial Arbitration (“UNCITRAL Model Law”) is the single most important
legislative instrument in the field of international commercial arbitration. It has been adopted
in a substantial (and growing) number of jurisdictions and served as a model for legislation and
judicial decisions in many others. (903) Recent revisions to the Model Law (in 2006) sought to
improve its legislative framework, (904) introducing new features and providing a
representative example of ongoing legislative efforts aimed at improving the international
arbitral process.
P 134 The Model Law was initiated by a proposal from the Asian African Legal Consultative
P 135 Committee to supplement the New York Convention with a protocol regarding party- adopted
arbitration rules. (905) The origins of the UNCITRAL Model Law are detailed in a Report by the
UN Secretary-General, titled “Possible Features of a Model Law of International Commercial
Arbitration.” (906) Among other things, the Report declared that the “ultimate goal of a Model
Law would be to facilitate international commercial arbitration and to ensure its proper
functioning and recognition.” (907)
The Secretary-General’s Report also identified a number of “defects” in national laws, which
the New York Convention had sought to remedy, but which persisted in national legal systems:
“To give only a few examples, such provisions may relate to, and be deemed to unduly restrict,
the freedom of parties to submit future disputes to arbitration, or the selection and
appointment of arbitrators, or the competence of the arbitral tribunal to decide on its own
competence or to conduct the proceedings as deemed appropriate taking into account the
parties’ wishes. Other such restrictions may relate to the choice of the applicable law, both the
law governing the arbitral procedure and the one applicable to the substance of the dispute.
Supervision and control by courts is another important feature not always welcomed by parties
especially if exerted on the merits of the case.” (908)
The Report was the basis for extensive consultations and debates involving states, the
international business and arbitration communities (e.g., International Council for Commercial
Arbitration; ICC International Court of Arbitration), and regional organizations (e.g., Asian-
49
African Legal Consultative Committee). (909) These discussions ultimately produced the current
draft of the Model Law, which UNCITRAL approved in a resolution adopted in 1985. (910) The
Model Law was approved by a U.N. General Assembly resolution later the same year. (911)
The Model Law was designed to be implemented by national legislatures, with the objective of
further harmonizing the treatment of international commercial arbitration in different
countries. The Law consists of 36 articles, which deal relatively comprehensively with the issues
that arise in national courts in connection with international arbitration. Among other things,
the law contains provisions concerning the enforcement of arbitration agreements (Articles 7-
9), appointment and removal of arbitrators (Articles 10-15), jurisdiction of arbitrators (Article
P 135 16), provisional measures (Article 17), conduct of the arbitral proceedings, including language,
P 136 seat and procedures (Articles 18-26), evidence-taking and discovery (Article 27), applicable
substantive law (Article 28), arbitral awards (Articles 29-33), setting aside or vacating awards
(Article 34), and recognition and enforcement of foreign awards, including bases for non-
recognition (Articles 35-36).
Under the Model Law, written international arbitration agreements are presumptively valid
and enforceable, subject to limited, specified exceptions. (912) Article 8 of the Law provides for
the enforcement of valid arbitration agreements, regardless of the arbitral seat, by way of a
dismissal or stay of national court litigation. (913) The Model Law also adopts the separability
presumption, (914) and expressly grants arbitrators the authority (competence-competence) to
consider their own jurisdiction. (915) (As discussed below, however, it is not entirely clear what
approach the Model Law takes to the allocation of competence to resolve jurisdictional
disputes, and in particular whether interlocutory judicial review of jurisdictional objections is
on a prima facie or a final basis. (916) )
The Model Law expressly prescribes a principle of judicial nonintervention in the arbitral
proceeding. (917) It also affirms the parties’ autonomy (subject to specified due process limits)
with regard to the arbitral procedures (918) and, absent agreement between the parties, the
tribunal’s authority to prescribe such procedures. (919) The basic approach of the UNCITRAL
Model Law to the arbitral proceedings is to define a basic set of procedural rules which –
subject to a very limited number of fundamental, non-derogable principles of fairness, due
process and equality of treatment (920) – the parties are free to alter by agreement. (921) The
Model Law also provides for judicial assistance to the arbitral process in prescribed respects,
including provisional measures, constitution of a tribunal and evidence-taking. (922)
The Model Law mandates the presumptive validity of arbitral awards, subject to a limited,
exclusive list of grounds for annulment of awards; these grounds precisely parallel those
available under the New York Convention for non-recognition of a foreign award (i.e., lack or
excess of jurisdiction, noncompliance with arbitration agreement, due process violations,
P 136 public policy, nonarbitrability). (923) The Model Law also requires the recognition and
P 137 enforcement of foreign awards (made both within and outside the recognizing state), again
on terms identical to those prescribed in the New York Convention. (924)
During the twenty-eight years since the Model Law’s adoption (in 1985), significant
developments have occurred in the field of international commercial arbitration. In 1999, the
UNCITRAL Secretariat identified thirteen areas for study and potential modification of the
Model Law. (925) This list was culled and eventually produced proposals for amendments to
the Model Law concerning interim measures and the written form requirements for arbitration
agreements. (926)
In 2006, UNCITRAL adopted a limited number of amendments to the Model Law. (927) The
principal revisions were made to Article 2 (the addition of general interpretative principles),
(928) Article 7 (the definition and written form of an arbitration agreement), (929) Article 17 (the
availability of and standards for provisional measures from international arbitral tribunals and
national courts) (930) and Article 35 (procedures for recognition of awards). (931)
The 2006 revisions of the Model Law make useful improvements (for the most part) to the
original text, (932) but utilizing a drafting style that sits uneasily in the original Model Law’s
relatively concise, elegant text. (933) The most important accomplishment of the revisions is
P 137 their tangible evidence of the ongoing process by which states and business representatives
P 138 seek to improve the international legal regime for the arbitral process. A few states have
revised their local adaptations of the Model Law to reflect its 2006 amendments. (934)
The Model Law and its revisions represent a significant further step, beyond the New York
Convention, towards the development of a predictable “pro-arbitration” legal framework for
commercial arbitration. Like the New York Convention, the Model Law’s efficacy is ultimately
dependent upon its interpretation and application by national courts. But the Model Law goes
beyond the Convention by prescribing in significantly greater detail the legal framework for
international arbitration, by clarifying points of ambiguity or disagreement under the
Convention, (935) and by establishing directly applicable national legislation. At least as
important, the Model Law has set the agenda for reform of arbitration statutes, even in states
(like England and Switzerland) where it has not been adopted.
One of the central objectives of the UNCITRAL Model Law was to further encourage the uniform
treatment of international commercial arbitration in national courts, beyond that provided by
the New York Convention. In the words of the UNCITRAL Secretariat, “[o]ne of UNCITRAL’s aims
through the Model Law was to reduce the divergences which might result from each State’s
interpretation of its obligations under the New York Convention.” (936) At the same time, the
50
Model Law’s uniform international terms and format were calculated to be accessible to
parties from diverse jurisdictions. Additionally, the Model Law drew on the experience of a
wide range of jurisdictions and authorities, in the UNCITRAL working groups and otherwise,
permitting an instrument that reflected a substantial body of international experience and
expertise.
Nearly 100 jurisdictions have adopted legislation based on the Model Law as of 2012, including
Australia, Bermuda, Brunei, Bulgaria, Canada, Costa Rica, Cyprus, Dominican Republic,
Germany, Georgia, Hong Kong, India, Ireland, Malaysia, Mauritius, Mexico, New Zealand,
Nigeria, Norway, Peru, the Russian Federation, Scotland, Singapore, Spain, Sweden, Tunisia,
Turkey and various U.S., Australian and Canadian jurisdictions. (937) Other nations are
considering its adoption.
The German Ministry of Justice explained some of the reasons for adopting the UNCITRAL Model
Law, during Germany’s enactment of legislation derived predominantly from the Model Law:
“If we want to reach the goal that Germany will be selected more frequently as the seat of
international arbitrations in the future, we have to provide foreign parties with a law that, by
its outer appearance and by its contents, is in line with the framework of the Model Law that is
P 138 so familiar all over the world. This is necessary, in particular, in view of the fact that in
P 139 negotiating international contracts, usually not much time is spent on the drafting of the
arbitration agreement. The purpose of the Model Law, to make a significant contribution to the
unification of the law of international arbitration, can only be met if one is willing to prefer the
goal of unification instead of a purely domestic approach when it comes to the question of the
necessity and the scope as well as to the determination of the contents of individual rules.”
(938)
These objectives – accessibility, international uniformity and a tested structure – have been
cited in other jurisdictions. For example, the Hong Kong Law Reform Commission concluded
that “the Model Law…has the advantage of making [Hong Kong] law internationally
recognizable and accessible” and
“[the] primary reason for recommending the adoption of the Model Law…is the need to make
knowledge of our legal rules for international commercial arbitration more accessible to the
international community…We are convinced that it is much better [to avoid changes than]
trying to improve what is already the result of many years work by an international group of
experts.” (939)
That said, it is noteworthy that the world’s leading international arbitration centers have
generally not adopted the UNCITRAL Model Law. That is true, in particular, of France,
Switzerland, England, the United States, the Netherlands, Belgium and Sweden. (940) In each of
these jurisdictions, legislatures (and arbitration practitioners) have extensively debated the
advisability of adopting the Model Law, but decided in favor of alternative solutions. Equally,
at least some distinguished practitioners consider the Model Law to be a conservative, overly-
detailed basis for national arbitration legislation. (941) Nonetheless, the Model Law’s
contributions to the international arbitral process are enormous and it remains, appropriately,
P 139 the dominant “model” for national legislation dealing with international commercial
P 140 arbitration.
Importantly, decisions by courts in jurisdictions that have adopted the Model Law are
beginning to produce a reasonably uniform international body of precedent concerning its
meaning and application. (942) There are a variety of collections of these decisions, including
UNCITRAL’s 2012 Digest of Cases, (943) UNCITRAL’s “CLOUT” database (944) and the McGill Model
Arbitration Law Database. (945) It is safe to say that the importance of the Model Law to
international commercial arbitration will only increase in the future, as national court
decisions in Model Law jurisdictions contribute to a more comprehensive and detailed body of
precedent in the field.
Also importantly, decisions in jurisdictions that have adopted the UNCITRAL Model Law have
emphasized the close relationship between the Model Law and the New York Convention, with
authorities under one instrument informing decisions under the other. As one court reasoned:
“The origin of some of [the Model Law’s] key provisions, including Arts 35 and 36, may be traced
to provisions of the [New York Convention]…Those considerations of international origin and
international application make imperative that the Model Law be construed without any
assumptions that it embodies common law concepts or that it will apply only to arbitral
awards or arbitration agreements that are governed by common law principles. The first of
those considerations makes equally imperative that so much of the text of the Model Law as
has its origin in the New York Convention be construed in the context, and in the light of the
object and purpose, of the New York Convention.” (946)
These developments are of particular importance given the constitutional character of the
Convention (discussed above (947) ), which foresees and requires decisions by national courts
to give effect to the broad terms of the Contracting States’ under Articles II, III and V.
P 140
P 141 In many jurisdictions, it is in principle possible for parties to “opt-out” of the coverage of the
Model Law. Although national court authority is divided, the weight of better-reasoned
authority concludes that only express agreements excluding application of the Model Law will
have the effect of opting-out of the legislation’s coverage. (948)
51
[b] France (949)
P 141 France is one of the leading centers for international commercial arbitration in Europe and,
P 142 indeed, the world. More international arbitrations are reportedly seated in France than any
other European jurisdiction, (950) and French arbitration legislation and judicial decisions
have exceptional international importance. (951)
International arbitration in France is governed by the French Code of Civil Procedure,
principally as adopted in decrees promulgated on 14 May 1980, 12 May 1981 and 13 January
2011. These three decrees added (or revised) Articles 1442-1527 to the French Code of Civil
Procedure. (952) Articles 1442 to 1503 of the Code of Civil Procedure apply to domestic
arbitrations, while Articles 1504 to 1527 apply to “international” arbitrations. (953) Certain
provisions applicable to domestic arbitration apply by analogy to international arbitrations,
unless specifically provided otherwise by the parties (and subject to the specific rules
applicable to international arbitrations set forth in Articles 1504 to 1527 of the French Code of
Civil Procedure). (954)
The provisions of the Code of Civil Procedure have produced a strongly pro-arbitration legal
framework for international commercial arbitration. (955) That regime has been materially
assisted by the French judiciary and academic community (particularly Professors Berthold
Goldman, Philippe Fouchard, Pierre Mayer and Emmanuel Gaillard). For the past three
P 142 decades, both French courts and academics have interpreted French legislation, and
P 143 developed non-statutory doctrine, in a manner which has been highly supportive of the
international arbitral process. (956) This pro-arbitration approach was further enhanced by the
recent revision of the French arbitration regime by the decree dated 13 January 2011. (957)
French law emphatically recognizes the autonomy (or separability) doctrine, (958) and
provides for the presumptive validity and enforceability of arbitration agreements. (959) As
one classic French decision held:
“by virtue of a substantive rule of international arbitration, the arbitration agreement is legally
independent of the main contract containing or referring to it, and the existence and
effectiveness of the arbitration agreement are to be assessed, subject to the mandatory rules
of French law and international public policy, on the basis of the parties’ common intention,
there being no need to refer to any national law.” (960)
French law also expressly grants arbitrators the power (competence-competence) to decide
P 143 challenges to their jurisdiction. (961) Further, if claims which are allegedly subject to an
P 144 arbitration agreement are brought before the French courts, the Code of Civil Procedure
provides for dismissal of the judicial proceedings, except if the arbitral tribunal has not yet
been constituted and if the arbitration agreement is “manifestly null or manifestly
inapplicable.” (962)
With regard to the law applicable to the arbitration agreement, French courts have developed
a relatively unusual doctrine that arbitration agreements are autonomous, subject to specific
principles of international law, rather than to national law. (963) The nonarbitrability doctrine
has not been invoked to any significant extent by French courts, except in labor and consumer
matters. (964) In contrast to a number of developed jurisdictions, French courts do not appear
to have developed “pro-arbitration” rules of interpretation of arbitration agreements. (965)
French courts generally afford the parties to an arbitration agreement substantial autonomy
with respect to choice of law, procedural rules, selection of arbitrators and the like. (966) In
particular, French law expressly provides that arbitrators sitting in France are generally not
bound by local rules of civil procedure applicable in French courts, and have very wide
discretion in adopting arbitral procedures. (967) French law also confers the power to the
arbitral tribunal – once it is constituted – to order any provisional or conservatory measures
that it deems appropriate. (968)
P 144 The Code of Civil Procedure also grants French courts the power to assist in constituting an
P 145 arbitral tribunal, acting in the capacity of juge d’appui (“supporting judge”), (969) and to
issue certain court-ordered provisional measures in aid of arbitration. (970) The efficacy of
France’s arbitration legislation is materially advanced through its centralization of most
international arbitration-related judicial proceedings in the Tribunal de Grande Instance in
Paris, which has developed a very substantial expertise in the field. (971) This is a significant
institutional advance, which could usefully be adopted in other jurisdictions.
The 2011 decree also reformed French law relating to recognition and enforcement of
international arbitral awards. Among other things, the Code of Civil Procedure permits actions
in French courts to annul international arbitral awards made in France, on limited grounds
(substantially similar to, and sometimes more liberal than, those provided for non-recognition
in the New York Convention). (972) The Code of Civil Procedure also provides for the recognition
and enforcement of international arbitral awards on the same grounds. (973)
[c] Switzerland (974)
P 145
P 146 Like France, Switzerland is one of Europe’s, and the world’s, leading centers for international
commercial arbitration. (975) Its arbitration legislation, and academic community, have also
been at the forefront of developments in the field of international arbitration over the past
century. (976) International arbitration in Switzerland is governed primarily by a chapter of the
federal Swiss Law on Private International Law. These statutory provisions were significantly
52
influenced by proposals and reviews of a committee of leading Swiss arbitration practitioners
and academics, (977) and entered into effect in 1989. Legislative proposals for revision of the
Swiss arbitration legislation have been advanced, recently prompting a review of the
legislation. (978)
The current version of the Swiss Law on Private International Law replaced, insofar as
international arbitration is concerned, the Swiss Inter-Cantonal Concordat. (979) The Swiss Law
on Private International Law’s arbitration chapter is noteworthy for its brevity, comprising only
19 articles, drafted in brief, declarative terms. (980)
Under the Swiss Law on Private International Law, international arbitration agreements are
P 146 readily and effectively enforced. The Law expressly recognizes the separability doctrine (981)
P 147 and prescribes a specialized “pro-arbitration” choice-of-law regime, pursuant to which
international arbitration agreements, providing for arbitration in Switzerland, are
substantively valid provided they conform to either (a) the law chosen by the parties (where
the parties have made a specific choice of law governing the arbitration agreement); (b) the
law applicable to the dispute (in particular, that applicable to the principal contract); or (c)
Swiss law. (982)
The Swiss Law on Private International Law also expressly confirms the arbitrators’
competence-competence, while generally permitting arbitral tribunals in Swiss-seated
arbitrations to resolve jurisdictional challenges in the first instance. (983) Swiss law also
provides for the arbitrability of a wide range of disputes (984) and the Swiss Federal Tribunal
has adopted a relatively expansive “pro-arbitration” rule of interpretation of the scope of
international arbitration agreements. (985) Where claims subject to an arbitration agreement
are asserted in Swiss courts, the parties’ arbitration agreement will be given effect by
dismissing judicial proceedings. (986)
Under the Swiss Law on Private International Law, the parties’ freedom to agree upon the
applicable procedural and substantive law is expressly recognized. (987) Judicial interference
by Swiss courts in the arbitral process (other than regarding the availability of provisional
measures and evidence-taking in aid of a tribunal) is narrowly limited. (988)
As to awards made in Switzerland, actions to annul are limited to grounds generally paralleling
those in the New York Convention. (989) Parties can agree to exclude even this review of
international awards, provided that none of the parties are domiciled in Switzerland. (990)
Swiss courts will recognize and enforce foreign awards without substantial judicial review,
subject only to the provisions of the New York Convention. (991) As in France, many judicial
functions relating to international arbitration are centralized, with the Swiss Federal Tribunal
generally having original jurisdiction in annulment actions. (992)
P 147
P 148 [d] England (993)
England is a significant center for international commercial arbitration, whose popularity has
increased over the past two decades. (994) The continuing spread of English as the language of
international business, and the development of London as an international financial and
business center, augur for continued growth in England’s importance as an arbitral center.
Both international and domestic arbitrations seated in England, Wales, or Northern Ireland are
governed by the English Arbitration Act, 1996, which provides a detailed (110 separate sections)
statement of English arbitration law. (995) The Act is based roughly on the UNCITRAL Model Law,
while introducing a number of formal and substantive innovations. (996) The Act departed from
the historic common law approach towards arbitration legislation (e.g., addressing isolated
issues, often in response to judicial decisions (997) ), in favor of greater codification (derived in
part from the Model Law). (998) Indeed, the Act has produced the somewhat anomalous result
that the cradle of common law jurisprudence now boasts a substantially longer, more detailed
statutory treatment of international arbitration law than any civil law jurisdiction (and,
specifically, France and Switzerland, whose arbitration statutes are exceptional for their
brevity (999) ).
P 148
P 149 The English Arbitration Act, 1996, was preceded in the 20th century by three other major
pieces of arbitration legislation, enacted in 1950, 1975 and 1979. (1000) The 1950 and 1975 Acts
established a highly-regulated legal regime for arbitration in England, with substantial scope
for judicial involvement in the arbitral process and review of arbitral awards. (1001) In
particular, English legislation prior to 1979 provided for a widely-criticized “case stated”
procedure, which had granted parties to arbitrations seated in England a mandatory right of
access to the English courts to review de novo issues of English law that arose in the course of
arbitral proceedings (without the possibility of exclusion agreements to contract out of such
review). (1002) The Arbitration Act, 1979, revised this historic approach and established a more
acceptable, if by no means ideal, regime for international arbitrations in England. (1003)
Under the Arbitration Act, 1979, agreements to arbitrate were presumptively enforceable in
England, including by means of a stay of national court litigation, and English courts imposed
few “nonarbitrability” constraints. Moreover, although not formally accepting the “separability”
doctrine, English courts did not in fact permit challenges to the parties’ underlying contract to
interfere unduly with the arbitral process. (1004) The 1979 Act amended, but did not eliminate,
the historic “case stated” procedure: the Act permitted parties to enter into exclusion
agreements, which waived the right to judicial review of the merits of the arbitrators’ award
(save for cases involving shipping, commodities and insurance). (1005) Where no such exclusion
53
agreement existed, more demanding judicial review persisted, (1006) which was the cause for
continuing criticism in many quarters. (1007)
P 149 In response to these (and other) criticisms, the English Arbitration Act, 1996, was adopted,
P 150 following an extensive consultation process with both English and foreign sources. (1008) The
Act was intended to – and did – significantly improve the legislative framework for
international arbitration in England. The Act compiled all prior English legislative provisions
relating to arbitration into a single statute, based in large part on the UNCITRAL Model Law,
and introduced a modern “pro-arbitration” legislative regime for international arbitration in
England. (1009)
The 1996 Act provides expressly for the validity of written (and some other) arbitration
agreements (as to both existing and future disputes) and for the stay of English court
proceedings concerning claims subject to valid arbitration agreements. (1010) The Act also
provides for the separability of arbitration agreements, (1011) and for recognition of the
arbitral tribunal’s competence-competence to rule on its own jurisdiction. (1012) Recent
English judicial decisions have interpreted the competence-competence doctrine broadly, and
adopted a robust “pro-arbitration” approach to the interpretation of international arbitration
clauses. (1013) The Act does not address the subject of nonarbitrable disputes or claims, but
English courts have adopted a narrow view of the doctrine. (1014)
The 1996 Act contains a number of provisions granting arbitrators broad freedom in conducting
arbitral proceedings, with a minimum of judicial interference. (1015) This freedom includes
wide authorization with respect to procedural and evidentiary matters, (1016) appointment of
experts, (1017) ordering the payment of security for the costs of the arbitration (1018) and
P 150 granting conservatory or provisional measures. (1019) Among other things, it is now clear that
P 151 arbitrators conducting arbitral proceedings seated in England are not obliged to apply local
rules of English civil procedure or evidence. (1020) The Act also provides for English judicial
assistance to arbitrations seated in England, including in taking evidence, (1021) appointing or
removing arbitrators (1022) and granting provisional measures in aid of arbitration. (1023)
The changes introduced by the 1996 Act with regard to the arbitral procedures were described
in Lesotho Highlands Development Authority v. Impregilo SpA, where the House of Lords quoted
with approval the remarks of Lord Wilberforce during the legislative process:
“I have never taken the view that arbitration is a kind of annex, appendix or poor relation to
court proceedings. I have always wished to see arbitration, as far as possible, and subject to
statutory guidelines no doubt, regarded as a freestanding system, free to settle its own
procedure and free to develop its own substantive law – yes, its substantive law. I have always
hoped to see arbitration law moving in that direction. That is not the position generally which
has been taken by English law, which adopts a broadly supervisory attitude, giving substantial
powers to the court of correction and otherwise.…Other countries adopt a different attitude
and so does the UNCITRAL Model Law. The difference between our system and that of others
has been and is, I believe, quite a substantial deterrent to people to sending arbitrations here.
…How then does this Bill stand in that respect?…I find that on the whole, although not going
quite as far as I should personally like, it has moved very substantially in this direction. It has
given to the court only those essential powers which I believe the court should have; that is,
rendering assistance when the arbitrators cannot act in the way of enforcement or procedural
steps, or, alternatively, in the direction of correcting very fundamental errors.” (1024)
With respect to awards made in England, the Act departs entirely from the historic “case
stated” procedure and provides only limited grounds for annulling international arbitral
awards made in England. The Act’s grounds for annulling awards are now limited to lack of
substantive jurisdiction of the tribunal, limited categories of “serious irregularity” in
procedural matters and limited appeals on points of law. (1025) Appeals on legal issues may
only be brought with leave of the court and may be excluded by agreement between the
parties; (1026) English courts have held that appeal for error of law is impliedly excluded
where the parties have chosen a substantive applicable law other than English law or where
P 151 the parties have chosen a set of institutional rules, such as the ICC Rules, which excludes the
P 152 right of appeal to the extent possible. (1027) The Act also provides for the recognition and
enforcement of foreign arbitral awards, primarily by incorporating the provisions of the New
York Convention. (1028)
[e] United States of America (1029)
The United States is an important center for international arbitrations (1030) and U.S.
companies are even more important participants in the international arbitral process. (1031)
Despite general concerns about the U.S. legal system (focused on jury trials, discovery, punitive
damages and delays), the United States has remained reasonably popular as an international
arbitral seat over the past three decades. (1032)
International arbitration in the United States is governed by an outwardly complex, but
generally adequate, legal framework. Most important issues relating to international
arbitration agreements and arbitral awards are governed primarily by U.S. federal (rather than
state) law. In particular, the “Federal Arbitration Act” (or “FAA”) sets forth a basic statutory
regime for arbitration, with separate chapters for both domestic arbitration (Chapter 1) and
international arbitrations subject to the New York and Inter-American Conventions (Chapters 2
and 3). (1033) The FAA has the distinction – and burden – of being the oldest surviving
arbitration statute in any major jurisdiction. (1034) Additionally, although limited, the role of
54
state law in the enforcement of international arbitration agreements is occasionally important.
(1035)
[i] Unenforceability of Arbitration Agreements Under U.S. Law in 19th Century
P 152
P 153 As discussed above, for the better part of the 19th century, many U.S. courts were hostile
towards agreements to arbitrate future disputes. Even more so than English courts (where
legislative reforms had intervened), some U.S. judges refused to grant specific enforcement of
arbitration agreements, and permitted their revocation at any time. (1036) This grudging
approach towards arbitration agreements reflected a variety of factors, including concern
about private agreements “ousting” the courts of jurisdiction, skepticism about the adequacy
and fairness of the arbitral process and suspicions that arbitration agreements were often the
product of unequal bargaining power. (1037)
As discussed above, these attitudes began to shift during the late 19th century, particularly in
some U.S. state court decisions. (1038) Following sustained lobbying from the business
community, New York enacted an arbitration statute in 1920 designed to reverse common law
hostility to arbitration and to render arbitration agreements enforceable in New York courts.
(1039) The New York statute provided a model for what became federal legislation dealing with
arbitration – the Federal Arbitration Act, originally titled the “United States Arbitration Act.”
(1040)
The FAA was strongly supported by the U.S. business community, which saw litigation as
increasingly expensive, slow and unreliable: (1041) “The clogging of our courts is such that the
delays amount to a virtual denial of justice,” (1042) and the proposed FAA was intended to
“enable business men to settle their disputes expeditiously and economically.” (1043) With
virtually no opposition or amendment, the bill that became the FAA was unanimously adopted
in 1925 by both the House of Representatives and the Senate. (1044)
P 153 The Act’s stated purpose was to reverse the hostility which U.S. courts had developed towards
P 154 arbitration agreements in commercial matters, and in particular the common law rules that
arbitration agreements were revocable or unenforceable as contrary to public policy. (1045)
According to the FAA’s legislative history:
“The need for the law arises from an anachronism of our American law. Some centuries ago,
because of the jealousy of the English courts for their own jurisdiction, they refused to enforce
specific agreements to arbitrate upon the ground that the courts were thereby ousted from
their jurisdiction. This jealousy survived for so long a period that the principle became firmly
embedded in the English common law and was adopted with it by the American courts. The
courts have felt that the precedent was too strongly fixed to be overturned without a
legislative enactment.” (1046)
This historical description was not entirely accurate, omitting to note that English law had in
fact developed reasonably effective mechanisms for enforcing arbitration agreements, while
many American courts (and legislatures) had failed to do so. (1047) Nevertheless, this
explanation captured one of the key statutory objectives of the FAA: “the fundamental
conception underlying the law is to make arbitration agreements valid, irrevocable, and
enforceable.” (1048)
[ii] Federal Arbitration Act: Chapter One
As noted above, the FAA currently consists of three chapters: (a) the “domestic” FAA, 9 U.S.C.
§§1-16, enacted in 1925 and applicable to agreements and awards affecting either inter-state
or foreign commerce; (1049) (b) the New York Convention’s implementing legislation, 9 U.S.C.
§§201-208, enacted in 1970 and applicable only to awards and agreements falling within the
Convention; (1050) and (c) the Inter-American Convention’s implementing legislation, 9 U.S.C.
§§301-307, enacted in 1990 and applicable only to awards and agreements falling under the
Inter-American Convention. (1051)
The FAA is remarkably brief and, by contemporary standards, relatively skeletal; among other
things, it omits provisions on numerous topics addressed in most contemporary arbitration
legislation in other developed jurisdictions. (1052)
In true common law fashion, however, U.S. courts have developed an extensive body of judicial
P 154 authority which, while sometimes inconsistent and often not readily accessible to non-U.S.
P 155 parties or practitioners, provides an adequate legal regime for international arbitrations.
Most observers would agree, however, that the regime for international arbitration in the
United States would be materially improved by enactment of the UNCITRAL Model Law or
comparable contemporary international arbitration legislation. (1053)
The centerpiece of the domestic FAA is §2, which provides that arbitration agreements
involving inter-state and foreign commerce (1054) “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” (1055) In turn, §§3 and 4 of the Act provide the principal mechanisms for enforcing
§2’s general rule that arbitration agreements are presumptively valid. Section 3 requires “any
court of the United States” to stay proceedings before it, if they involve issues that are
“referable to arbitration,” while §4 requires “United States district court[s]” to issue orders
compelling arbitration of such issues. (1056)
Other sections of the FAA address limited aspects of the arbitral process. Section 5 grants
district courts the power to appoint arbitrators if the parties either have not done so or have
55
agreed upon an appointment procedure which proves unworkable. (1057) Section 7 of the Act
authorizes the issuance of “subpoenas” (orders to provide evidence) by arbitral tribunals, and
permits U.S. district courts to issue compulsory process to assist tribunals in taking evidence.
(1058) In turn, §§9, 10 and 11 of the FAA provide that arbitral awards may be confirmed as U.S.
judgments, subject to only a limited number of enumerated exceptions. (1059) These sections
also set forth procedures for confirming, vacating, or correcting awards subject to the Act.
(1060)
It is notable how many subjects are not directly addressed by the FAA. The statute does not
expressly deal with such matters as the separability presumption, the allocation of
competence between U.S. courts and arbitrators to resolve disputes over arbitration
agreements (competence-competence), challenging and removing arbitrators, provisional
relief, the conduct of arbitral proceedings, interlocutory judicial review, choice of law, form of
the award and costs. Notable also is the relative brevity of the FAA on most of the issues which
it does address, such as the grounds and procedures for challenging either arbitration
agreements or awards. (1061)
P 155
P 156 As discussed below, most international arbitration agreements and arbitral awards are
subject to either the New York Convention or Inter-American Convention, and, as a
consequence, either Chapter Two or Three of the U.S. FAA. (1062) In the relatively unusual cases
where non-Convention agreements or awards are at issue in U.S. courts, the better view is that
Chapter One of the FAA (which applies to foreign, as well as interstate, commerce) is
applicable. (1063)
[iii] Federal Arbitration Act: Chapters Two and Three
As discussed above, the United States did not ratify the New York Convention for more than a
decade after its signing (from which the United States abstained). (1064) After U.S. ratification
of the Convention in 1970, Congress enacted amendments to the FAA, in a second chapter to the
Act, implementing the Convention. (1065) In ratifying the New York Convention, Congress was
motivated (as with the domestic FAA in 1925) by a desire for more efficient dispute resolution:
“It is important to note that arbitration is generally a less costly method of resolving disputes
than is full-scale litigation in the courts. To the extent that arbitration agreements avoid
litigation in the courts, they produce savings not only with the parties to the agreement but
also for the taxpayers – who must bear the burden for maintaining our court system.” (1066)
In addition, Congress sought to facilitate the development of a stable and effective system of
international commercial dispute resolution, on which U.S. companies expanding into global
markets could rely, in order to promote international trade and investment. (1067)
Like the original domestic Act, the FAA’s second chapter is remarkably brief. It provides that
arbitration agreements shall be enforceable, and contains provisions authorizing U.S. courts to
compel arbitration pursuant to such agreements (including in foreign arbitral seats). (1068) The
Act’s second chapter also provides for the recognition and enforcement of awards that are
subject to the Convention, simply by incorporating the Convention’s terms by reference. (1069)
P 156 U.S. federal courts are granted broad jurisdiction, including by “removal” from state courts,
P 157 over actions arising under the Convention (for the purpose of ensuring uniform and effective
enforcement of the Convention in U.S. courts). (1070)
In 1990, the United States enacted implementing legislation for the Inter-American Convention,
codified as a third chapter to the FAA. (1071) The chapter incorporates much of the New York
Convention’s implementing legislation by reference, (1072) adding additional provisions to
deal with the Inter-American Commercial Arbitration Commission’s rules (1073) and the
relationship between the New York and Inter-American Conventions. (1074) Like the domestic
FAA, at the heart of the third chapter are provisions requiring the enforcement of specified
arbitration agreements and awards, together with very briefly-described procedures for doing
so. (1075)
There is considerable “overlap” among the various sources of U.S. federal law affecting
international arbitration agreements and awards. Most obviously, arbitral awards and
agreements falling under the New York Convention are governed by both the Convention and
the second chapter of the FAA (which implements the Convention).
In addition, however, these awards and agreements are potentially governed by the first,
“domestic” chapter of the FAA, which is expressly incorporated by §208 of the FAA to the extent
it is not “in conflict” with the Convention. (1076) This potentially-confusing structure has the
effect that domestic U.S. arbitration law (and judicial authority) serves as a “gap filler” of sorts,
although the precise terms of this mechanism are not statutorily-defined and have not been
definitively articulated by U.S. courts. (1077)
P 157 Beyond its express terms, the FAA has provided the basis for a fairly expansive “federal
P 158 common law” of arbitration; (1078) this body of judicial authority also applies, more broadly
than in domestic matters, in the context of international arbitrations subject to the New York
and Inter-American Conventions. (1079) That body of law is of uncertain scope, but it clearly
extends to such subjects, discussed below, as the separability presumption, the competence-
competence doctrine, the interpretation and presumptive validity of international arbitration
agreements, the parties’ autonomy with regard to arbitral procedures, the tribunal’s
procedural powers and the availability of provisional relief in connection with arbitrations.
(1080) Importantly, as also discussed below, the FAA and the federal common law rules derived
56
from the FAA override (or “preempt”) inconsistent state (and foreign) law rules governing the
same subjects, particularly rules which seek to deny effect to agreements to arbitrate and
arbitral awards. (1081)
Despite the relatively spartan, and archaic, drafting and ad hoc origins of the FAA’s three
chapters, U.S. courts have generally interpreted the Act in a fashion which is supportive of the
international arbitral process. For the most part, U.S. courts have been even more supportive
of the international arbitral process than of domestic U.S. arbitrations. (1082)
With respect to arbitration agreements, U.S. courts have repeatedly embraced the separability
doctrine, (1083) have defined in considerable and influential detail the allocation of
competence between courts and arbitrators to decide disputes over the formation, validity
and interpretation of arbitration agreements, (1084) have strongly affirmed the presumptive
validity of arbitration agreements (subject only to limited, neutral exceptions) (1085) and have
fashioned a decidedly “pro-arbitration” approach to the interpretation of arbitration
agreements. (1086)
P 158 With respect to the arbitral process, U.S. courts have emphasized the parties’ freedom to agree
P 159 upon arbitration rules and procedures, (1087) the arbitrator’s discretion in presiding over
the arbitral process and adopting arbitral procedures (1088) and the very limited scope for
interlocutory judicial review of the arbitrator’s decisions. (1089) U.S. judicial decisions have
also provided (with some exceptions) for court-ordered provisional measures (1090) and
disclosure, (1091) as well as judicial support for constitution of the arbitral tribunal. (1092)
Finally, with respect to arbitral awards, U.S. courts have permitted vacatur (annulment) of
awards made in the United States on limited grounds, generally paralleling those in the New
York Convention, but with some courts also permitting a very limited degree of substantive
judicial review of the merits of the arbitrators’ award (under the so-called “manifest disregard”
doctrine). (1093) With regard to foreign awards, U.S. courts have held that such awards are
presumptively valid and enforceable, subject only to the New York Convention’s specified
exceptions. (1094)
There have been repeated suggestions in the past decades for revision or replacement of the
FAA, particularly as regards international arbitration. (1095) Critics have argued that the Act
fails to provide the statutory framework which exists in most developed arbitral centers,
placing the United States in an unattractive position vis-à-vis such jurisdictions (1096) and
failing to provide (particularly foreign) parties with clear guidance regarding the content of
U.S. law. (1097)
Others have responded that U.S. law regarding arbitration, and particularly international
arbitration, is highly developed, through judicial decisions, (1098) and that legislation would
likely produce a worse (not better) result. (1099) Business leaders in particular fear that
congressional legislation on arbitration could “open a Pandora’s box of special interests” and
P 159 result in damage to the pro-arbitration legal framework currently existing in U.S. courts. (1100)
P 160 Although these fears are real, the inadequacies of the FAA as a statutory framework for
international arbitration are strikingly apparent and detract from both the efficacy of the
arbitral process and the attractiveness of the United States as an arbitral seat.
Legislation has been introduced in recent Congresses which would amend the domestic FAA (in
particular to render domestic consumer and employee disputes nonarbitrable). (1101) Although
predictions about legislative processes are notoriously risky, it continues to appear unlikely
that this legislation will be adopted, even in domestic matters. (1102) At least for the present,
legislative reform meaningfully affecting international commercial arbitration in the United
States appears unlikely.
One avenue for reform of U.S. international arbitration law would be through judicial
interpretation of the New York Convention (and Inter-American Convention), and the FAA.
Although there is contrary authority, (1103) most considered analyses have held that Article II of
the Convention is “self-executing” in U.S. courts (i.e., that these provisions of the Convention
have direct application). (1104) Relying on the Convention, U.S. courts have addressed, and can
be expected to continue to address, at least some of the lacunae and deficiencies in the FAA
(e.g., with regard to the allocation of jurisdictional competence, the selection of the arbitral
seat, the annulment of awards and the removal of arbitrators). Indeed, U.S. courts have already
P 160 done so, including in the development of choice-of-law rules for the law governing the
P 161 arbitration agreement (1105) and the application of the nonarbitrability doctrine in
international disputes. (1106)
[iv] U.S. State Arbitration Laws
The role of the FAA within the U.S. legal system, and in particular in relation to the laws of the
50 states, can appear complex. (1107) The basic principles can nonetheless be readily
summarized.
In principle, a U.S. federal statute will override, or “preempt,” inconsistent U.S. state law
substantive rules addressing the same subjects. (1108) Accordingly, insofar as the FAA was
intended to address particular substantive topics or general fields, it will preempt state law
addressing those topics or fields. (1109)
The U.S. Supreme Court has held that the domestic FAA “contains no express preemptive
P 161 provision, nor does it reflect a congressional intent to occupy the entire field of arbitration.”
P 162
57
P 162
(1110) At the same time, the Court has also repeatedly declared that the FAA creates a body
of substantive federal rules relating to arbitration: in enacting the FAA, “Congress declared a
national policy favoring arbitration and withdrew the power of the states to require a judicial
forum for the resolution of claims which the contracting parties agreed to resolve by
arbitration.” (1111) As a consequence, it is well-settled that U.S. state law rules which single out
and purport to render inter-state and international arbitration agreements invalid, illegal, or
revocable are preempted by the FAA. (1112) As noted above, it is also settled, in both domestic
and international contexts, that the FAA and federal law establish the presumptive
separability of the arbitration agreement, (1113) provide the exclusive standards for
interpreting arbitration agreements (1114) and for confirming and vacating arbitral awards.
(1115)
Nonetheless, in a purely domestic context, issues concerning the formation of arbitration
agreements, as well as at least some issues of substantive and formal validity, are governed
primarily by generally-applicable state contract law. (1116) In contrast, there is substantial
lower court and other authority holding that federal common law, derived from the New York
Convention, governs the formation and validity of international (as distinguished from
domestic) arbitration agreements. (1117) These issues of preemption under U.S. law are
complex and are addressed in greater detail below. (1118)
Apart from these complexities, U.S. state law is applicable to arbitration agreements and
awards when – but only when – the Convention and the FAA (and the federal common law
P 162 derived from both sources) are inapplicable. That may be the case, for example, because the
P 163 agreement or award does not affect inter-state or foreign commerce (which is by definition
virtually impossible in international commercial matters).
State law may also be applicable to issues bearing on arbitration that federal statutory and
common law do not directly or indirectly address. Although the issue is unsettled, that may
include the availability of court-assisted discovery, provisional relief, or consolidation. (1119)
Similarly, state law may apply to the (relatively infrequent) enforcement of foreign arbitral
awards, not falling within either the New York or Inter-American Conventions, in the United
States. (1120)
Every state of the Union has adopted legislation dealing with commercial arbitration. Many
states have enacted some version of the “Uniform Arbitration Act.” First proposed in 1924 by
the Conference of Commissioners on Uniform State Laws, (1121) the current, revised text of the
Act was adopted by the Conference in 2000, making substantial changes to earlier versions.
(1122)
The Uniform Arbitration Act has been enacted in some 39 states and the District of Columbia,
(1123) and has influenced arbitration legislation in other U.S. states. (1124) The original Uniform
Arbitration Act was substantially similar to the FAA. Among other things, it required specific
enforcement of arbitration agreements (as to both existing and future disputes) (1125) and
provided for the recognition and enforcement of awards with only limited judicial review.
(1126) The Revised Uniform Arbitration Act usefully adds a number of additional provisions,
P 163 roughly paralleling the UNCITRAL Model Law, concerning the constitution of the arbitral
P 164 tribunal, (1127) provisional measures, (1128) the arbitral procedure, (1129) the form of awards
(1130) and immunity of arbitrators. (1131)
Nevertheless, a number of U.S. states have not adopted the Uniform Arbitration Act, and a few
have rejected its generally “pro-arbitration” lead (although most or all state laws disfavoring
the arbitral process are preempted by the FAA). Thus, several state statutes do not permit
arbitration of various categories of claims, such as tort, real property and insurance claims
(although, again, federal law preempts these statutory provisions). (1132) Other U.S. states have
enacted legislation requiring that arbitration clauses be conspicuously identified (e.g., printed
in capital letters, placed on the front of any contract, etc.). (1133) And some state statutes do
not provide for the same general rule of enforceability and limited judicial review of arbitral
awards that the FAA and Uniform Arbitration Act require. (1134)
In addition, especially in recent years, some U.S. states have enacted legislation designed to
fill perceived gaps left in the U.S. federal framework for international arbitration. (1135) In
particular, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Maryland, North
P 164 Carolina, Ohio, Oregon and Texas have adopted statutes purporting to deal comprehensively
P 165 with the subject of international arbitration. (1136) The extent to which these statutes are
preempted by the FAA and federal common law principles remains unclear. To date, however,
both these statutes and state law more generally have played a distinctly secondary role in the
international arbitral process. (1137)
One potential exception to this general rule was the Supreme Court’s decision in Volt
Information Sciences, Inc. v. Board of Trustees. (1138) There, a California choice-of-law clause in
the parties’ purely domestic contract was interpreted, in vaguely-defined circumstances, to
incorporate state procedural rules relating to arbitration, and the FAA was held not to preempt
this result. Subsequent U.S. Supreme Court decisions, (1139) and most lower court decisions,
(1140) have interpreted Volt narrowly, holding that general choice-of-law clauses ordinarily do
not encompass state arbitration laws and that the FAA preempts state law rules that impede
the enforcement of arbitration agreements.
[2] Less Supportive National Arbitration Legislation
58
Some nations regarded international commercial arbitration with a mixture of suspicion and
hostility during much of the 20th century. (1141) This hostility arose from a reluctance to
compromise perceived principles of national sovereignty, a disdain for principles of party
autonomy and doubts concerning the fairness, neutrality and efficacy of contemporary
P 165 international commercial arbitration. (1142) Although historic distrust for international
P 166 arbitration has waned substantially in recent decades, it has not entirely disappeared and
continues to influence legislation, judicial decisions and other actions in some countries. (1143)
Developing countries in many parts of the world refused for much of the 20th century to enforce
agreements to arbitrate future disputes. This was particularly true in Latin America and much
of the Middle East. (1144) In the words of one leading commentator, “there is a definite
ambivalence in the attitudes of developing countries towards international commercial
arbitration.” (1145)
Some developing states took the position that international arbitration agreements were an
unjustifiable infringement upon national sovereignty, which was to be vigorously resisted.
(1146) In many cases, arbitration agreements were valid only if they concerned an existing (not
a future) dispute, which was the subject of a submission agreement committing the parties to
resolve the dispute by arbitration. (1147)
In Latin America, the Calvo doctrine (first formulated in 1896) declared among other things that
foreign nationals were mandatorily subject to the jurisdiction of local courts, which could not
be “ousted” by international arbitration agreements. (1148) The doctrine was incorporated into
national legislation and constitutional instruments, which not infrequently rendered
international arbitration agreements invalid. (1149) Political declarations from developing
P 166 states also reflected the continuing hostility of many developing states towards international
P 167 arbitration, even well into the 20th century. A 1971 declaration of the Andean Commission
reflected this perspective, declaring that:
“[No agreement concerning foreign investment shall] withdraw possible…controversies from
the national jurisdiction of the recipient country.” (1150)
The same principles were later reflected in various declarations during the 1970s associated
with the “New International Economic Order.” (1151)
Against this background, contemporary arbitration legislation in some developing states still
does not provide effective enforcement of agreements to arbitrate future disputes; such
provisions are sometimes either revocable at will, unenforceable in broad categories of
disputes, or subject to idiosyncratic form or substantive requirements. (1152) Similarly, in a
number of states, international arbitral awards are subject to either de novo judicial review or
to similarly rigorous scrutiny on other grounds. (1153) Finally, some national courts have been
prepared to interfere in the international arbitral process – for example, by purporting to
remove arbitrators, to resolve “preliminary” issues, to bar foreign lawyers from appearing, or to
enjoin arbitrations. (1154)
Nonetheless, during the last several decades, a number of states which historically distrusted
international arbitration have ratified the New York Convention and/or enacted legislation
supportive of the arbitral process. (1155) These include India, China, Saudi Arabia, Argentina,
Algeria, Bahrain, Brazil, Tunisia, Turkey, Nigeria, Peru and (at least for a time) Russia, Ecuador
P 167 and Venezuela. Although there is often little practical experience with the application of
P 168 arbitration legislation in such states, these statutes have the potential for providing a more
stable, predictable framework for international arbitration.
Unfortunately, even where national law is superficially supportive of the international arbitral
process, some national courts have been quick to hold arbitration agreements or awards
invalid or to interfere with the arbitral process. That is particularly true when national courts
are requested to do so by local companies, state entities, or individuals. (1156) Moreover, the
early years of the 21st century have witnessed a potential resurgence of historic ideological
opposition to some aspects or applications of the international arbitral process, with a few
states (1157) and some commentators (1158) condemning the legitimacy and fairness of the
process. It remains to be seen how substantial and long-lived this trend is, although it has thus
far gained little currency outside a limited number of states.
*****
Despite resistance in a few quarters, most national arbitration statutes enacted during the past
several decades have adopted robustly pro-arbitration legal regimes that give effect to the
terms of the New York Convention and support the international arbitral process. These
legislative regimes are of essential importance to the contemporary international arbitral
process, enabling parties reliably to resolve their disputes efficiently in a neutral, centralized
forum. Equally, the continuing development and refinement of these legislative regimes is vital
to the ongoing improvement and adaptation of the arbitral process to changing conditions.
[C] Overview of Leading International Arbitration Institutions and Rules

As discussed above, a central objective of contemporary international arbitration conventions
and national arbitration legislation has been to give effect to commercial parties’
P 168 international arbitration agreements, including agreements on arbitral procedures. (1159) A
P 169 vital means by which parties exercise their autonomy in this context is through the inclusion,
in their commercial contracts, of arbitration agreements incorporating institutional or ad hoc
59
arbitration rules.
International arbitration can be either “institutional” or “ad hoc.” There are vitally important
differences between these two alternatives. Institutional arbitrations are conducted pursuant
to institutional arbitration rules, almost always overseen by an administrative authority with
responsibility for various aspects relating to constituting the arbitral tribunal, fixing the
arbitrators’ compensation and similar matters. (1160) In contrast, ad hoc arbitrations are
conducted without the benefit of an appointing and administrative authority or (generally)
preexisting arbitration rules, subject only to the parties’ arbitration agreement and applicable
national arbitration legislation.
[1] Institutional Arbitration
A number of organizations, located in different countries, provide institutional arbitration
services, often tailored to particular commercial or other needs. As indicated above, the best-
known international commercial arbitration institutions are the International Chamber of
Commerce (“ICC”), the American Arbitration Association (“AAA”) and its International Centre for
Dispute Resolution (“ICDR”), the London Court of International Arbitration (“LCIA”), Stockholm
Chamber of Commerce Arbitration Institute (“SCC”), the Singapore International Arbitration
Center (“SIAC”), the Hong Kong International Arbitration Centre (“HKIAC”) and the Vienna
International Arbitral Centre (“VIAC”). Each of these organizations is described below. (1161)
Also active in the field are the Japan Commercial Arbitration Association (“JCAA”), the World
Intellectual Property Organization (“WIPO”), the Swiss Chambers’ Arbitration Institution, the
German Institution of Arbitration (“DIS”), the Chinese International Economic and Trade Arbitral
Center (“CIETAC”), the Cairo Regional Centre for International Commercial Arbitration
(“CRCICA”), the Australian Centre for International Commercial Arbitration (“ACICA”), the Kuala
Lumpur Regional Centre for Arbitration (“KLRCA”), the Indian Council of Arbitration (“ICA”) and
JAMS International. There are also a number of less widely-known regional or national arbitral
institutions, as well as the International Centre for the Settlement of Investment Disputes
(“ICSID”), dealing with investment disputes, (1162) and industry-specific institutions. (1163)
P 169
P 170 These (and other) arbitral institutions have promulgated sets of procedural rules that apply
where parties have agreed to arbitration pursuant to such rules. (1164) Among other things,
institutional rules set out the basic procedural framework and timetable for the arbitral
proceedings. Institutional rules also typically authorize the arbitral institution to select
arbitrators in particular disputes and resolve challenges to arbitrators (that is, to serve as
“appointing authority”), to designate the place of arbitration, to fix or influence the fees
payable to the arbitrators and (sometimes) to review the arbitrators’ awards to reduce the risk
of unenforceability on formal grounds. Each arbitral institution has a staff (with the size varying
significantly from one institution to another) and a decision-making body.
It is fundamental that arbitral institutions do not themselves arbitrate the merits of the
parties’ dispute. This is the responsibility of the particular individuals selected as arbitrators.
(1165) Arbitrators are virtually never employees of the arbitral institution, but instead are
private persons selected by the parties. (1166) If parties cannot agree upon an arbitrator, most
institutional rules provide that the host institution will act as an “appointing authority,” which
chooses the arbitrators in the absence of the parties’ agreement. (1167)
[2] Ad Hoc Arbitration
Ad hoc arbitrations are not conducted under the auspices or supervision of an arbitral
institution. Instead, parties simply agree to arbitrate, without designating any institution to
administer their arbitration. Ad hoc arbitration agreements will sometimes choose an
arbitrator (or arbitrators), who is (or are) to resolve the dispute without institutional
supervision or assistance. (1168) The parties will sometimes also select a preexisting set of
procedural rules designed to govern ad hoc arbitrations. For international commercial
disputes, the United Nations Commission on International Trade Law (“UNCITRAL”) has
published a commonly-used set of such rules, the UNCITRAL Arbitration Rules. (1169)
Where ad hoc arbitration is chosen, parties will sometimes designate an appointing authority,
(1170) that will select the arbitrator(s) if the parties cannot agree (or if their chosen arbitrator is
unable to serve) and that will consider any subsequent challenges to members of the tribunal.
P 170 If the parties fail to select an appointing authority, then the national arbitration statutes of
P 171 many states permit national courts to appoint arbitrators (although many practitioners
regard this as less desirable than selection by an experienced appointing authority). (1171)
[3] Relative Advantages and Disadvantages of Institutional and Ad Hoc Arbitration
Both institutional and ad hoc arbitration have strengths. Institutional arbitration is conducted
according to a standing set of procedural rules and supervised, to a greater or lesser extent, by
a professional staff. (1172) This reduces the risks of procedural breakdowns, particularly at the
beginning of the arbitral process, and of technical defects in the arbitration proceedings and
arbitral award. The institution’s involvement can be particularly valuable on issues relating to
the appointment of arbitrators, the resolution of challenges to arbitrators, the selection of an
arbitral seat and fixing the arbitrators’ fees, where professional, specialized staff provide
better service than ad hoc decisions by national courts with little, if any, experience or
institutional resources for such matters. (1173)
Equally important, many institutional rules contain provisions that make the arbitral process
60
more reliable and expeditious. This includes provisions in institutional rules concerning
competence-competence, separability, provisional measures, consolidation and joinder,
disclosure, arbitrator impartiality, corrections and challenges to awards, replacement of
arbitrators and truncated tribunals, costs and the like. (1174) Less directly, an arbitral
institution lends its standing to any award that is rendered, which may enhance the likelihood
of voluntary compliance and judicial enforcement. (1175)
On the other hand, ad hoc arbitration is not infrequently said to be arguably more flexible, less
expensive (since it avoids sometimes substantial institutional fees) and more confidential than
institutional arbitration; despite this, the provisions of institutional rules sometimes make
institutional arbitrations more flexible (by minimizing the involvement of national courts),
more confidential (by including express confidentiality obligations) and less expensive (by
providing institutional oversight of arbitrator fees). Although there is room for debate, most
experienced international practitioners fairly decisively prefer the more structured,
predictable character of institutional arbitration, and the benefits of institutional rules and
appointment mechanisms, at least in the absence of unusual circumstances arguing for an ad
hoc approach. (1176)
[4] UNCITRAL Arbitration Rules (1177)
P 171
P 172 The UNCITRAL Arbitration Rules occupy an important position, both historically and in
contemporary arbitration practice. In 1973, UNCITRAL proposed the preparation of model
arbitration rules. (1178) The objective of the UNCITRAL Rules was to create a unified,
predictable and stable procedural framework for international arbitrations without stifling the
informal and flexible character of the arbitral process. (1179) The Rules aimed ambitiously to
be acceptable to common law, civil law and other legal systems, as well to capital-importing
and capital-exporting interests. (1180) The Rules were promulgated by Resolution 31/98,
adopted by the General Assembly of the United Nations on 15 December 1976. (1181)
UNCITRAL reviewed the usage of the Rules during the first decade of the 21st century and, after
extensive consultations and study, undertook a revision of the Rules in 2006. (1182) On 25 June
2010, UNCITRAL published extensive revisions of the original UNCITRAL Rules (the first revision
since their adoption). (1183)
P 172
P 173 The UNCITRAL Rules are designed for use in ad hoc international commercial arbitrations.
When the Rules were adopted in 1976, they were the only set of rules available specifically for
that purpose. Although alternatives now exist, (1184) most states, which generally will have
supported the Rules in the United Nations debates, and their state-owned entities, often find
it difficult to object to their use in an arbitration agreement or arbitral proceeding. (1185)
Like most institutional rules, the UNCITRAL Rules prescribe a basic procedural framework for
the arbitration. This includes provisions for initiating an arbitration, (1186) selection and
challenge of arbitrators, (1187) conduct of the arbitral proceedings (1188) (including, in the 2010
Rules, the joinder of third persons (1189) and issuance of interim relief (1190) ), choice of
applicable law or rules of law, (1191) awards (1192) and costs of the arbitration. (1193) The Rules
also contain provisions confirming the presumptive separability of the arbitration clause from
the underlying contract, and the tribunal’s power (competence-competence) to consider
jurisdictional objections. (1194) Under the Rules, where the parties have not agreed on an
appointing authority, (1195) the Secretary General of the Permanent Court of Arbitration serves
a sui generis function, of designating a suitable appointing authority. (1196)
P 173 The UNCITRAL Rules have contributed significantly to the harmonization of international
P 174 arbitration procedures. A number of arbitral institutions have either adopted the UNCITRAL
Rules entirely, or have substantially adopted the Rules in prescribing a set of local
institutional rules. (1197) Although designed principally for international trade disputes, the
Rules are not limited to commercial matters and have been used successfully in both state-to-
state and investor-state arbitrations. (1198)
[5] Leading International Arbitral Institutions
If institutional arbitration is desired, the parties must choose a particular arbitral institution
and refer to it in their arbitration clause. (1199) Parties ordinarily rely on one of a few
established international arbitral institutions. This avoids the confusion and uncertainty that
comes from inexperienced arbitrator appointments and administrative efforts by
inappropriately–selected institutions.
All leading international arbitral institutions are prepared to, and routinely do, administer
arbitrations sited almost anywhere in the world, and not merely in the place where the
institution itself is located. (1200) There is therefore no need to select an arbitral institution
headquartered in the parties’ desired arbitral seat (e.g., the LCIA or VIAC can readily
administer an arbitration seated in Paris or New York, while the AAA can administer
arbitrations seated in Vienna or London).
A number of organizations provide institutional arbitration services. Some of the best known of
these organizations are described briefly below. (1201)
The services rendered by professional arbitral institutions come at a price, which is in addition
to the fees and expenses of the arbitrators. Every institution has a fee schedule that specifies
what that price is. The amounts charged by institutions for particular matters vary significantly,
as does the basis for calculating such fees. For example, some institutions use hourly charges
61
while others charge based upon a percentage of the amount in dispute.
P 174 All leading arbitral institutions periodically revise their institutional arbitration rules. Like the
P 175 rules themselves, these revisions are the product of extensive consultations among leading
practitioners, academics, business users and arbitrators. (1202) These consultative processes
are aimed at refining the institutional rules for the purpose of making arbitration agreements
and awards more enforceable and arbitral proceedings more efficient. As with the refinement
of national arbitration legislation, (1203) this is an example of the ongoing adaptation and
improvement of the international arbitral process in response to criticisms, consumers’ needs
and changing conditions.
[a] International Chamber of Commerce International Court of Arbitration (1204)
The ICC’s International Court of Arbitration was established in Paris in 1923 (in parallel with
P 175 efforts by the international business community to secure adoption of the Geneva Protocol, the
P 176 FAA and other legislative reforms). (1205) The ICC is generally described as the world’s
leading international commercial arbitration institution, with less of a national character than
any other leading arbitral institution. (1206)
The ICC’s annual case load was well above 300 cases filed per year during much of the 1990s,
and, by 2011 had reached nearly 800 cases filed per year. (1207) Most of these cases are
international disputes, many involving very substantial sums. The ICC’s caseload includes
disputes between parties from around the world, with parties outside Western Europe being
involved in more than 50% of all ICC cases in many recent years. (1208) In 2012, as in other
years, nearly 10% of the ICC’s caseload involved states or state-related entities. (1209)
The ICC has promulgated a set of ICC Rules of Arbitration (which are periodically revised, most
recently in 1998 and 2012 (1210) ) as well as the ICC Rules of Optional Conciliation, the ICC Rules
for Expertise, the ICC Dispute Board Rules and the ICC Rules for a Pre-Arbitral Referee
Procedure. (1211) The ICC Rules are published in English, French, Spanish, German, Russian,
Arabic, Chinese, Japanese, Italian, Polish, Portuguese and Ukrainian.
Under the ICC Rules, the ICC (through the International Court of Arbitration (“ICC Court”)) is
extensively involved in the administration of individual arbitrations. Among other things, the
ICC Court and its Secretariat are responsible for service of the initial Request for Arbitration;
(1212) fixing and receiving payment of advances on costs of the arbitration by the parties; (1213)
confirming the parties’ nominations of arbitrators; (1214) appointing arbitrators if a party
defaults or if the parties are unable to agree upon a presiding arbitrator or sole arbitrator;
(1215) considering challenges to the arbitrators including on the basis of lack of independence;
(1216) reviewing and approving so-called “Terms of Reference” (a unique procedure under the
P 176 ICC Rules), which define the issues and procedures for the arbitration; (1217) reviewing a
P 177 tribunal’s draft award for formal and other defects; (1218) and fixing the arbitrators’
compensation. (1219)
The ICC’s International Court of Arbitration is not, in fact, a “court,” and does not itself decide
disputes or act as an arbitrator. Rather, the ICC Court is an administrative body that acts in a
supervisory and appointing capacity under the ICC Rules. (1220) It maintains a sizeable legal
and administrative staff of some 35 persons, from more than a dozen nationalities, organized
as a Secretariat. Specialized teams of counsel and administrative staff are assigned to cases
originating from particular geographic, linguistic and/or cultural regions. As detailed above,
the Secretariat is substantially involved in the day-to-day supervision of arbitrations.
ICC arbitrations can be (and are) seated almost anywhere in the world. In 2012, for example, ICC
arbitrations were conducted in 59 different countries. (1221) Over the last decade, an increasing
number of ICC arbitrations have been seated outside of Europe, particularly in Asia and the
Pacific, Brazil and the Middle East. Nonetheless, by far the most common seats for ICC
arbitrations remain France, Switzerland, England, other Western European states, Singapore
and the United States. (1222)
One of the ICC’s principal functions is the appointment of arbitrators and the resolution of
challenges to arbitrators. (1223) As discussed below, the ICC Rules prescribe procedures and
substantive standards for the exercise of these responsibilities (which are supplemented by a
P 177 substantial body of administrative practice and experience). (1224) The ICC does not maintain
P 178 a list of potential arbitrators and instead relies heavily on the experience of its Secretariat
and also on the ICC’s “National Committees” in making arbitrator appointments. (1225)
The ICC Rules are broadly similar to the UNCITRAL Rules (1226) (and many other leading
institutional rules) in providing a broad procedural framework for the arbitral proceedings.
This includes provisions for filing a request for arbitration and other initial written pleadings,
(1227) constituting an arbitral tribunal, (1228) conducting the arbitration (1229) and making an
award. (1230) As with most other institutional rules, only a skeletal procedural framework is
provided, with the parties and arbitrators being accorded substantial freedom to adopt
procedures tailored to particular disputes. Unlike other institutional rules, the ICC Rules
require both a “Terms of Reference” (1231) and procedural timetable to be adopted by the
Tribunal at the outset of proceedings (1232) and that an award be rendered within six months
(absent extensions). (1233) Also, the ICC Rules provide for the ICC Court to scrutinize draft
awards before they are finalized and executed by the arbitrators. (1234)
The ICC’s administrative fees are based on the amount in dispute between the parties. With
respect to arbitrators’ fees, the ICC Rules fix both a minimum and a maximum amount which
62
can be charged, based on the amount in dispute. (1235) With respect to administrative fees and
charges, the ICC Rules provide for a sliding scale of charges that is again based upon the
amount in dispute between the parties. The ICC Rules require that the parties pay an advance
on the costs of the arbitration calculated by the ICC Court. (1236) The advance on costs is
equally divided between the claimant and the respondent, although one party may pay the full
amount in order to enable the arbitration to proceed if the other party defaults. (1237)
The ICC’s Rules have been criticized as expensive and cumbersome. (1238) The 1998 and 2012
amendments to the Rules reflected a concerted effort to increase the efficiency, speed and
P 178 effectiveness of ICC proceedings. (1239) In particular, provisions were added to the ICC Rules in
P 179 the 2012 amendments addressing multiple contracts and parties, (1240) case management
conferences (1241) and emergency arbitrator procedures. (1242) It remains to be seen how
responsive to users’ needs these amendments, and the administration of ICC cases, will be.
Despite continuing criticisms about cost and efficiency, there are reasonable grounds for
believing that the ICC will continue to be the institution of preference for many sophisticated
commercial users.
Related to the ICC Rules of Arbitration are the ICC’s ADR Rules. (1243) These Rules provide
(where agreed by the parties) a skeletal procedure for non-binding conciliation.
The ICC also operates the International Centre for Expertise (founded in 1976). (1244) The Centre
operates under rules last revised in 2003 (the ICC Rules for Expertise), (1245) which provide for
non-binding expert opinions or reports to be made, upon the request of parties (and following
opportunities for submissions to the designated expert). (1246) Parties are free to provide for
greater binding effect for such recommendations, but doing so requires a specific contractual
provision. (1247)
[b] London Court of International Arbitration (1248)
P 179
P 180 Founded in 1892, the LCIA is, by many accounts, the second most popular European
institution in the field of international commercial arbitration. (1249) The LCIA’s annual
caseload, which is generally increasing, exceeded 220 cases filed in recent years. (1250)
The LCIA has made a determined, and increasingly successful, effort in recent years to
overcome perceptions that it is a predominantly English organization. It has appointed five
successive non-English presidents, and its vice-presidents include a number of non-English
practitioners. In recent years, fewer than 20% of the LCIA’s cases have involved any U.K. parties.
(1251) More generally, in 2009, the LCIA launched the LCIA India (1252) and has recently entered
into an agreement to establish a new arbitration centre in Mauritius, LCIA-Mauritius
International Arbitration Centre (“MIAC”). It also has a partnership with the Dubai International
Financial Centre (“DIFC”).
The LCIA administers a set of arbitration rules, the LCIA Arbitration Rules, which were
extensively revised in 1998. Although identifiably English in drafting style, and to a lesser
extent in procedural approach, the LCIA Rules generally provide a sound basis for international
dispute resolution, particularly for parties desiring common law procedures (e.g., disclosure,
security for costs). Broadly speaking, LCIA arbitrations are administered in a less
comprehensive fashion than ICC cases. Among other things, the LCIA Rules contain no Terms of
P 180 Reference procedure and do not provide for institutional review of draft awards. (1253) The
P 181 LCIA’s administrative fees are calculated based upon the time spent by LCIA personnel (as of
2014, £250/hour for the Registrar and £150 or £175/hour for the Secretariat, depending on the
activity). (1254)
In contrast to most other institutional rules, the LCIA Rules set out the powers of an LCIA
arbitral tribunal in some detail. (1255) The powers to order discovery (1256) and security for
legal costs (i.e., a deposit or bank guarantee securing the estimated amounts which an
unsuccessful claimant would be liable to reimburse to a successful respondent for its costs of
legal representation) (1257) are included among the arbitrators’ powers.
A particular procedural advantage of the LCIA Rules is their provision for expedited formation
of the arbitral tribunal. (1258) Consistent with many other institutional rules, the LCIA Rules
also permit intervention of third parties in LCIA arbitrations (subject to prescribed conditions).
(1259)
Unlike the ICC, the LCIA maintains a database of arbitrators from which it selects arbitrators,
taking into consideration the nature and circumstances of the dispute, the nationality, location
and languages of the parties and the number of parties. (1260) Historically, the LCIA’s
appointments of arbitrators consisted predominantly of members of the English bar and
retired judiciary, in large part because many LCIA cases have involved contracts governed by
English law. In cases not involving English law, the LCIA’s selections of arbitrators are more
international.
The LCIA fixes the arbitrators’ fees according to the time expended by the arbitrators at the
hourly rates published by the LCIA and fixed by agreement between the arbitrators and the
LCIA. (1261) Unusually, the LCIA publishes (in a redacted form) decisions of the LCIA Court on
challenges to arbitrators. (1262)
Most LCIA arbitrations are seated in London. In the absence of agreement by the parties to the
contrary, London will be selected by the LCIA as the arbitral seat under Article 16(1) of the LCIA
Rules. (1263)
63
[c] American Arbitration Association and International Centre for Dispute Resolution (1264)
P 181
P 182 The AAA was founded in 1926, following the merger of two New York arbitration institutions
(themselves founded in the early 1920s). (1265) The AAA remains based in New York (with
approximately 35 regional offices throughout the United States). (1266) The AAA is the leading
U.S. arbitral institution, and reportedly handles one of the largest numbers of arbitral disputes
in the world. (1267)
The primary arbitration rules administered by the AAA are the AAA Commercial Arbitration
Rules. (1268) These rules are used in a large majority of domestic U.S. commercial arbitrations.
(1269) Numerous other sets of AAA arbitration rules also exist, in particular for specialized
types of disputes, and can be selected in the parties’ arbitration agreement. (1270)
Non-U.S. parties have sometimes been reluctant to agree to arbitration against U.S. parties
under any of the available versions of the AAA rules, fearing parochial predisposition and
unfamiliarity with international practice. Over the past two decades, the AAA has taken a
number of steps aimed at overcoming this image and enhancing its position as an
international institution.
In 1991, the AAA promulgated the AAA International Arbitration Rules, designed specifically for
P 182 international arbitrations (which have since evolved into the current ICDR Rules). (1271) In 1996,
P 183 the AAA established an “International Centre for Dispute Resolution” (“ICDR”), with exclusive
responsibility for administering the AAA’s international arbitrations. (1272)
The ICDR has an administrative facility in New York (having recently closed its administrative
facility in Dublin, Ireland) and administers ICDR cases seated outside the United States with
the support of a Senior Vice President located in Europe. The ICDR recently entered into
cooperative arrangements with the Chambers of Commerce of Colombia and Peru and
Bahrain’s Ministry of Justice and Islamic Affairs (to establish the Bahrain Chamber for Dispute
Resolution-AAA (“BCDR-AAA”). The ICDR also entered into a joint venture with SIAC, opening an
Asia Center in Singapore.
The ICDR International Dispute Resolution Procedures (“ICDR Rules”) provide the applicable set
of AAA arbitration rules for use in “international” disputes (except where the parties have
otherwise agreed). (1273) This alters the previous position under AAA Rules, in which the
primarily domestic AAA Commercial Arbitration Rules provided the default institutional rules
when parties to international agreements had agreed to AAA arbitration without designating a
particular set of AAA rules; absent contrary agreement, the current fallback rules in
international disputes where the parties have agreed to AAA arbitration (without specifying a
particular set of AAA arbitration rules) are the ICDR Rules. (1274)
The AAA/ICDR’s international rules are based principally on the UNCITRAL Rules, and were
intended to permit a maximum of flexibility and a minimum of administrative supervision.
They are periodically revised, most recently in 2013. (1275) In addition to the official English
version, the ICDR Rules are available in Spanish, French, Portuguese, Chinese and German.
P 183
P 184 Under all versions of AAA rules, the AAA/ICDR administrative staff plays a less significant
supervisory role than does the ICC Secretariat. Among other things, the AAA/ICDR does not
receive or serve initial notices or requests for arbitration; does not require or review a Terms of
Reference; and plays a less significant role in setting the arbitrators’ fees. (1276) The AAA’s
administrative charges are based on the amount in dispute. With respect to the arbitrators’
fees, arbitrators fix their own rates, which are published on their resumes for parties to
consider when receiving a list of potential arbitrators. Compensation under the AAA/ICDR
international rules is ultimately based on the arbitrators’ “amount of service,” taking into
account their stated rates and the “size and complexity of the case.” (1277)
The ICDR/AAA’s international rules allow the parties to agree on any procedure for appointing
arbitrators. (1278) In practice, most AAA appointments are based on a list procedure, whereby
names drawn from the AAA’s rosters are presented to the parties for expressions of preference.
(1279) The ICDR maintains a list of some 650 arbitrators and mediators, including many non-U.S.
practitioners. Although the AAA’s arbitrator selections have historically been dominated by
U.S. practitioners, the ICDR increasingly seeks to appoint arbitrators with international
experience in appropriate international cases. (1280) Nonetheless, some users have found the
AAA/ICDR appointment procedures and selections patchy, with less involvement of
experienced international practitioners than other leading institutions.
The AAA’s case load has increased significantly over recent decades. In 1997, it reported a total
case load of 11,130 cases (under its Commercial Rules), rising to 20,711 cases (under its
Commercial Rules) in 2007. Similar growth is reported in international cases. The AAA reports
increases in its international case load from 453 cases filed in 1999 to 996 new international
filings in 2012. (1281) On any measure, these statistics place the AAA among the world’s most
active international arbitral institutions.
[d] Permanent Court of Arbitration (1282)
P 184
P 185 The Permanent Court of Arbitration (“PCA”), established by the 1899 and 1907 Hague
Conventions for the Pacific Settlement of International Disputes, is focused particularly on
international arbitrations involving states and state-like entities. (1283) As discussed above,
the PCA was not established as a “court,” with a standing panel of judges. (1284) Rather, as
originally established, the PCA was a registry for inter-state arbitrations conducted pursuant to
64
the Hague Conventions, which provided a number of institutional administering services. In an
often quoted phrase, the PCA has been described in its original form as “a permanent
framework for temporary tribunals.” (1285)
The PCA’s original functions did not involve serving as an appointing authority. Instead, the PCA
was only responsible for maintaining a list of arbitrators who might be appointed to tribunals
in future arbitrations under the Hague Conventions (if states chose to agree to such
arbitrations), with the appointment of arbitrators reserved to states (either as parties to the
dispute or as a neutral appointing authority). (1286) At the same time, even as originally
conceived, the PCA provided a wider range of administrative services than many modern
arbitral institutions; these services included assistance in negotiation and drafting submission
agreements (1287) and serving as intermediary between the parties and tribunal. (1288)
Since the 1970s, the PCA has been called upon to act as a traditional appointing authority with
increasing frequency and now routinely serves as an institutional administering body for
arbitrations conducted under the PCA Arbitration Rules and ad hoc arbitration agreements.
P 185 Additionally, and at least as important, the PCA serves as the default institution to select
P 186 appointing authorities under the UNCITRAL Rules – a function that has assumed increasing
importance in recent decades in both international commercial arbitrations and investment
arbitrations. (1289)
The PCA consists of three organs: (1) an Administrative Council, which is comprised of the
representatives of Member States that are party to the Hague Conventions and which serves as
the governing body of the PCA; (1290) (2) the Members of the PCA, which is a list of potential
arbitrators chosen by the Member States (each Member State being entitled to appoint up to
four individuals); and (3) an International Bureau, which functions as a registry or secretariat
and provides administrative support to arbitral tribunals administering arbitrations under the
PCA Rules or where the PCA is registry. (1291)
The Hague Conventions were negotiated with disputes between states in mind and the PCA’s
early activity was confined to this area. As discussed above, the PCA enjoyed very modest
usage during its first 70 years of existence (when only 25 arbitrations and three conciliations
were submitted to PCA tribunals). (1292) By comparison, some 200 non-PCA inter-state
arbitrations were conducted during the same time period (1900 to 1970), often pursuant to ad
hoc submission agreements or compromissory clauses in bilateral treaties. (1293)
In a striking turn-around, the PCA’s caseload has increased materially since 1995, in part
because of the PCA’s interpretation of Article 26 of the 1899 Convention (and Article 47 of the
1907 Convention), which permits the PCA to “place its premises and its staff at the disposal of
the Signatory Powers for the operations of any special Board of Arbitration,” as allowing the
PCA to administer disputes between states and non-state actors. (1294) The PCA’s
Administrative Council also expanded the PCA’s remit to cover disputes involving international
organizations, and disputes relating to natural resources and/or the environment. (1295)
As a consequence, the PCA’s caseload has significantly changed, both in size and composition.
From 2000-2012 more than 150 arbitrations were brought to the PCA, in comparison to only 34
P 186 cases administered in the organization’s first 100 years (1899 – 1999). (1296) The substantial
P 187 majority of these new filings were either international commercial or investment
arbitrations, although there has also been growth in classic inter-state proceedings. (1297) Out
of 87 arbitrations administered in the course of 2012, six were state-to-state disputes (the
highest level in the PCA’s history), while 54 were investor-state disputes under bilateral or
multilateral investment treaties; 27 disputes arose under contracts or other agreements to
which at least one party was a state, state-controlled entity, or intergovernmental
organization. (1298)
The PCA’s International Bureau provides skilled support services for arbitrations conducted
under PCA auspices. In particular, PCA legal counsel provide administrative, research and
logistical support for tribunals hearing disputes administered by the PCA. Additionally, the PCA
frequently provides hearing facilities at the Peace Palace in The Hague, which is particularly
appropriate in arbitration involving one or more states. (1299)
During the 1990s, the PCA promulgated four sets of procedural rules for various categories of
arbitrations, all of which were based on the 1976 UNCITRAL Rules: Optional Rules for Arbitrating
Disputes between Two States (1992); Optional Rules for Arbitrating Disputes between Two
Parties of Which Only One Is a State (1993); Optional Rules for Arbitration Involving
International Organizations and States (1996); and Optional Rules for Arbitration between
International Organizations and Private Parties (1996). The PCA has also devised ad hoc
procedural regimes, such as rules of procedure for arbitration pursuant to Annex VII of the
United Nations Convention on the Law of the Sea (“UNCLOS”). All of these various rules have
been used relatively infrequently (with most parties to PCA-administered arbitration instead
electing to use the UNCITRAL Rules). (1300)
In 2012, the PCA published a new set of Rules, which effectively consolidate and replace the
PCA’s existing four sets of rules (although the older rules were not withdrawn and technically
remain in existence). (1301) By combining the PCA’s existing sets of rules into a single new
P 187 instrument, the drafting committee sought to streamline the process of PCA arbitrations and to
P 188 ensure that multi-party disputes can be submitted more easily to PCA arbitration. (1302) The
2012 PCA Rules are similar to the 2010 UNCITRAL Rules, providing greater flexibility to the
parties than the PCA’s earlier rules, but are also specifically tailored to suit cases involving
65
states, state-controlled entities and intergovernmental organizations. Among other things, the
2012 PCA Rules provide that a state’s or state-entity’s adoption of the Rules in a dispute with a
non-state party constitutes a waiver of immunity from jurisdiction (although immunity from
enforcement requires an express waiver); (1303) provide for three-person tribunals by default,
but also allow the parties to agree upon one or five arbitrators (the latter being common in
inter-state arbitrations); (1304) permit the parties to select arbitrators that are not Members of
the PCA’s Court; (1305) allow for the joinder of third parties and multi-party appointment of
arbitrators; (1306) contain provisions on the conduct of site visits; (1307) offer a model
arbitration clause for inclusion in treaties; (1308) and provide for application of international
law in state-to-state disputes, the rules of intergovernmental organizations where relevant and
the 2010 UNCITRAL Rules in investor-state disputes. (1309)
The 2012 PCA Rules depart from the 2010 UNCITRAL Rules by providing that the PCA Secretary
General will review the tribunal’s determination of its own fees and expenses and of those of
any tribunal-appointed experts in all cases, rather than only upon the request of a party; (1310)
and that the International Bureau, rather than the arbitral tribunal, will determine the amount
payable for arbitrators’ fees and expenses and hold the parties’ deposits. (1311)
One of the PCA’s most significant functions is under the UNCITRAL Rules. As discussed below,
the Secretary General of the PCA serves a sui generis function under the UNCITRAL Rules, of
designating a suitable appointing authority for the appointment of arbitrators when the
parties to an agreement to arbitrate under the UNCITRAL Rules have not agreed upon the
arbitrators or an appointing authority. (1312) The 2010 Rules also provide that the parties may
designate the Secretary-General of the PCA directly as appointing authority. (1313)
Under these provisions of the UNCITRAL Rules, the PCA has frequently designated appointing
authorities in international commercial and investment disputes and, in a number of cases,
acted directly as appointing authority itself. Among other things, the PCA has considered and
P 188 resolved a substantial number of challenges to arbitrators, with its decisions frequently being
P 189 made public. (1314) In so doing, the PCA has played a significant and increasingly important
role in the formulation of standards of independence and impartiality under the UNCITRAL
Rules. (1315)
[e] Swiss Chambers’ Arbitration Institution (1316)
Switzerland’s major cities have historically maintained local Chambers of Commerce and
Industry which have administered institutional arbitrations, including international
arbitrations. (1317) On 1 January 2004, the leading Swiss Chambers of Commerce adopted a
unified set of arbitration rules, the Swiss Rules of International Arbitration (“Swiss Rules” or
“Swiss International Arbitration Rules”), and designated an Arbitration Committee to oversee
arbitrations conducted under the Swiss Rules. (1318) A 1 June 2012 revision of the Swiss Rules
consolidated the administrative structure by replacing the Arbitration Committee oversight
with the Swiss Chambers’ Arbitration Institution, an independent association that, similar to
the ICC, consists of a Court of Arbitration and Secretariat. (1319)
P 189
P 190 Arbitrations under the Swiss Rules benefit from the pro-arbitration Swiss Law on Private
International Law (1320) and from the availability in Switzerland of substantial numbers of
potential arbitrators with impressive arbitration experience. The Swiss Rules are particularly
detailed, containing provisions regarding competence-competence, (1321) confidentiality,
(1322) expedited procedures, (1323) emergency and interim relief (including ex parte
measures), (1324) arbitrator immunity (1325) and consolidation and joinder. (1326) Between
2004 and 2012, 659 cases were submitted to the Swiss Chambers, with 89 new cases submitted
in 2012. The vast majority of cases submitted to the Swiss involved parties from Western Europe
(74% during the period 2004-2012). (1327)
[f] Vienna International Arbitral Centre (1328)
The Vienna International Arbitral Centre (“VIAC”) was established in 1975. (1329) VIAC is based in
Vienna, Austria and the overwhelming majority of the arbitrations that it administers are sited
in Vienna (although VIAC can also administer arbitrations sited elsewhere). (1330) VIAC
conducts only international arbitrations, as mandated by the VIAC Rules’ requirement that at
least one of the parties be of non-Austrian origin or that the dispute be of an international
character. (1331) VIAC reported the filing of 70 new cases in 2012, compared with 75 cases in 2011
and 68 cases in 2010. (1332)
VIAC arbitrations are administered in accordance with the Vienna Rules of Arbitration and
P 190 Conciliation (“VIAC Rules”). The VIAC Rules were revised in 2006 (1333) in order to take into
P 191 account changes to Austrian arbitration legislation. (1334) More recent revisions in 2013
preserved the essential features of the 2006 VIAC Rules while introducing amendments to
modernize and streamline the rules’ procedures. (1335)
VIAC was originally conceived primarily as a venue for East/West economic disputes during the
Cold War. These origins are reflected in the fact that a significant proportion of VIAC’s caseload
still includes parties from Central and Eastern Europe or Russia.
[g] Stockholm Chamber of Commerce Arbitration Institute
Founded in Stockholm in 1917, the Stockholm Chamber of Commerce Arbitration Institute
(“SCC”) developed into a substantial forum for disputes involving parties from the USSR and
(subsequently) China during the 1970s and 1980s. (1336) The SCC remains a preferred foreign
66
arbitral institution for Chinese state-owned entities, with China-related disputes comprising a
sizeable portion of the SCC’s current caseload. (1337) The SCC registered 177 new arbitrations in
2012, which included 63 expedited arbitrations, 2 emergency arbitrations, 5 ad hoc arbitrations
and 3 arbitrations under the UNCITRAL Rules. (1338)
The SCC Rules were extensively revised in 2007 and again in 2010, with the addition of the
Emergency Arbitrators Rules. (1339) The SCC’s Rules leave most aspects of arbitral procedure to
the tribunal. (1340) The SCC typically appoints members of the Swedish bar, with international
experience, or former Swedish judges, as arbitrators. SCC arbitrations are usually seated in
Sweden, although other places of arbitration can be chosen.
[h] Singapore International Arbitration Centre
P 191
P 192 The Singapore International Arbitration Centre (“SIAC”) was established in 1991, initially for
disputes arising out of construction, shipping, banking and insurance contracts. More recently,
consistent with Singapore’s increasing importance as an international commercial and
financial center, SIAC has seen a wider range of disputes, including energy, financial, joint
venture, sales and other matters. (1341) In 2013, 259 new arbitrations were filed with SIAC,
compared with 239 new filings in 2012 and 188 new cases in 2011. (1342) Arbitrations filed in
2013 involved parties from 50 jurisdictions, with the largest number of non-Singaporean parties
coming from India and China. (1343)
The SIAC Rules are based largely on the UNCITRAL Rules, and were revised in 2007, 2010 and
2013. (1344) The SIAC has made a determined, and successful, effort in recent years to
internationalize its procedures, (1345) including by appointing a Board of Directors,
Secretariat, Court and President (Dr. Michael Pryles) with broad international experience.
[i] Hong Kong International Arbitration Centre (1346)
The HKIAC was established in 1985 and had developed into Asia’s leading international
arbitration institution prior to hand-over of the British administration. On 1 September 2008,
HKIAC adopted the HKIAC Administered Arbitration Rules, which are based on the UNCITRAL
Rules (although parties are free to agree upon alternative procedural regimes). (1347) The
HKIAC Rules were revised in 2013, in response to users’ comments and developments in other
P 192 institutional rules. (1348) The HKIAC enjoys a substantial caseload (293 cases filed in 2012, 275
P 193 in 2011 and 291 in 2010). (1349)
The Hong Kong Arbitration Ordinance (which is based on the UNCITRAL Model Law) provides a
broadly favorable arbitration regime. Potential users have sometimes voiced concerns about
future stability and judicial independence in Hong Kong, and some parties remain reluctant to
designate the HKIAC, particularly in disputes involving Chinese parties. Nonetheless, the HKIAC
receives favorable reviews from a number of informed observers, and concerns about Hong
Kong’s future have moderated somewhat, at least in cases not involving Chinese state-owned
(or similar) entities.
[j] Chinese International Economic and Trade Arbitration Center (1350)
The China International Economic and Trade Arbitration Center (“CIETAC”) was established by
the Chinese government in 1956. Also known as the Court of Arbitration of China Chamber of
International Commerce, CIETAC is based in Beijing, with offices in a number of other Chinese
cities. CIETAC enjoys a privileged position in Chinese arbitration and is focused overwhelmingly
on Chinese-related disputes. In particular, the 1995 Chinese Arbitration Law gave CIETAC (and
the China Maritime Arbitration Commission) a de facto monopoly on international arbitrations
seated in China. (1351)
P 193 During the 1980s, CIETAC played only a relatively minor role, even in Chinese arbitrations,
P 194 handling only some 40 cases a year. (1352) During recent years, however, CIETAC’s caseload
has reportedly increased substantially, with 1,060 arbitrations filed in 2012 (of which, 331 were
foreign-related and 729 were domestic arbitrations). (1353)
CIETAC frequently revises its Rules, most recently in 1998, 2000 and 2012. (1354) The revisions
have sought to bring CIETAC’s practices into line with other major international arbitration
institutions, by affording greater party autonomy, transparency and efficiency. Unlike early
versions of the CIETAC Rules, which required the parties to appoint arbitrators from CIETAC’s
Panel of Arbitrators, recent versions of the Rules permit the parties, by agreement, to choose
non-CIETAC arbitrators. (1355) Nevertheless, CIETAC reportedly continues to promote a Sino-
centric Panel of Arbitrators. (1356)
Under the 2012 CIETAC Rules, parties are able to choose either adversarial or inquisitorial
proceedings. (1357) The Rules impose a six month time limit from the date of composition of
the tribunal to issuance of an award (1358) and stricter requirements have been introduced for
disclosure of conflicts, as well as challenges to, and replacement of, arbitrators. (1359)
Other important changes to the CIETAC Rules include the parties’ ability to agree to CIETAC
arbitration outside China and to modify the CIETAC Rules and/or incorporate the rules of other
arbitral institutions. (1360) Arbitral tribunals have also been granted enhanced powers under
the CIETAC Rules, including the power in some cases to decide on its own jurisdiction (a power
previously reserved exclusively for CIETAC itself). (1361) The 2012 Rules have retained CIETAC’s
supervision over cases, including the practice of reviewing draft awards. (1362) In terms of fees,
both the administrative fees charged by CIETAC and the arbitrators’ fees are based upon the
67
amount in dispute between the parties. (1363)
Despite recent changes, experienced foreign users remain very skeptical about CIETAC
arbitration, particularly in matters involving disputes between Chinese and non-Chinese
P 194 parties. Uncertainty regarding CIETAC’s management and independence has, in the eyes of
P 195 many observers, deepened in recent years. (1364) Except in the most routine types of
commercial dealings, with limited amounts in dispute, foreign investors and other foreign
parties doing business related to China will continue to insist for the foreseeable future on
third-country arbitral institutions. Chinese state entities often suggest that they are unable to
accept any arbitral institution other than CIETAC, but experience indicates that this is not
correct.
[k] Cairo Regional Centre for International Commercial Arbitration
The Cairo Regional Centre for International Commercial Arbitration (“Cairo Centre” or “CRCICA”)
is a non-profit, international organization established in Egypt in 1979 under the auspices of
the Egyptian Government and the Asian-African Legal Consultative Organization. The Cairo
Centre administers both domestic and international arbitrations; the Centre received 66 new
arbitration filings in 2011 (19 of which were international arbitrations). Between 1979 and May
2012, the Cairo Centre handled some 834 arbitrations. (1365)
The Cairo Centre directs its services primarily towards Asian-African trade and investment
disputes, particularly in the Arab world. The CRCICA Rules were revised in 1998, 2000, 2002,
2007 and, most recently, in 2011, when the Cairo Centre adopted the UNCITRAL Rules, as revised
in 2010, with only minor changes addressing the Cairo Centre’s role as an arbitral institution
and appointing authority. (1366) The Cairo Centre reportedly maintains a list of more than
1,000 international arbitrators (drawn primarily from the Asian-African region).
[l] World Intellectual Property Organization (1367)
The Arbitral Centre of the World Intellectual Property Organization (“WIPO”) was established in
Geneva, Switzerland in 1994. WIPO and its Arbitration Rules are designed particularly for
intellectual property disputes, although other types of controversies are not excluded from use
of the WIPO Rules and facilities. WIPO’s Arbitration Rules contain detailed provisions dealing
with issues that are of particular importance in intellectual property disputes. These include
provisions relating to discovery, disclosure and protection of trade secrets, and confidentiality
of arbitral proceedings. (1368)
As of 2014, the WIPO Arbitration and Mediation Centre had administered over 370 arbitrations,
mediations and expert determinations, covering a broad range of intellectual property
P 195 disputes (including patent, copyright, software licenses and research and development
P 196 matters). (1369) WIPO also administers a very large number of domain names disputes. (1370)
[m] Court of Arbitration for Sport
The Court of Arbitration for Sport (“CAS”) was established in Lausanne, Switzerland, in 1984, and
is sometimes termed the “Supreme Court of world sport.” (1371) Most major sports governing
bodies use the CAS’s arbitration facilities, including the International Olympic Committee,
(1372) International Association of Athletics Federations, (1373) Fédération Internationale de
Football Association (FIFA), (1374) and the Union of European Football Associations (UEFA).
(1375) North American sports leagues are notable exceptions. (1376)
Arbitration procedure at CAS is governed by the Code of Sports-Related Arbitration and
Mediation Rules (“CAS Rules”). (1377) The Code provides for three different forms of arbitration
proceedings – an “ordinary” (first instance) arbitration procedure, (1378) an appeals procedure,
(1379) and special ad hoc procedures. (1380) Ad hoc Divisions are established on site at sporting
competitions and, in principle, are able to render decisions within 24 hours of an application
being filed. (1381) Parties to CAS arbitrations must select from a list of arbitrators published by
CAS. (1382)
CAS’s case load has grown considerably over the last decade from 42 new cases in 2001 to 374
in 2012. (1383) The majority of cases relate to appeals of FIFA decisions or disputes over doping
violations. (1384) Other cases cover a mixture of appeals relating to selection and eligibility
decisions, governance issues, match-fixing and challenges to the granting of hosting rights for
championships. (1385) Approximately 10% of cases can be characterized as international
commercial cases. (1386) The efficiency and integrity of CAS arbitrations, including in highly-
scrutinized settings such as the Olympics, is a striking illustration of adaptation of the arbitral
process to new forms of dispute resolution, using procedures tailored to particular settings and
needs.
[n] German Institution of Arbitration
P 196
P 197 The German Arbitration Committee was originally founded in 1920 to offer arbitration
services in Germany. (1387) In 1992, the Committee merged with the German Arbitration
Institute to form the German Institution of Arbitration (“Deutsche Institution für
Schiedsgerichtsbarkeit” or “DIS”) to provide nationwide arbitration services in Germany for all
sectors of the economy. (1388)
The DIS Arbitration Rules (published in English translation as well as an authoritative German
text) are intended for both national and international arbitrations. Much of the DIS’s caseload
68
consists of domestic disputes, although Germany’s enactment of the UNCITRAL Model Law in
1998 (1389) may have helped somewhat to attract greater international usage. In 2012,
approximately 29% of the DIS annual caseload of 125 arbitrations involved non-German
parties. (1390)
[o] Japanese Commercial Arbitration Association
The Japan Commercial Arbitration Association (“JCAA”) and the Japan Shipping Exchange (“JSE”)
are Japan’s only permanent arbitral institutions. (1391) The JCAA was founded by the Japan
Chamber of Commerce and Industry in 1950, with a particular focus on international
commercial disputes.
The JCAA has adopted the JCAA Commercial Arbitration Rules, most recently revised in February
2014, (1392) which have been used principally for Japan-related international transactions. In
2011 19 new cases were registered with the JCAA. (1393) In general, the majority of the JCAA’s
cases have involved at least one non-Japanese party. (1394)
[p] Australian Centre for International Commercial Arbitration
The Australian Centre for International Commercial Arbitration (“ACICA”) was established in
1985 on the initiative of the Institute of Arbitrators in Australia. The ACICA promulgated new
rules, based on the UNCITRAL Rules, in 2005, which were revised in 2011 (among other things
incorporating emergency arbitrator provisions). (1395)
P 197 The ACICA enjoys a growing reputation, particularly in arbitrations involving parties from the
P 198 Asia/Pacific region, providing a credible alternative to either HKIAC or SIAC. The ACICA can
also act as appointing authority under the UNCITRAL Rules. (1396) More than 30 new cases were
filed with ACICA in 2011. (1397)
[q] Kuala Lumpur Regional Centre for Arbitration
The Kuala Lumpur Regional Centre for Arbitration (“KLRCA”) was established in 1978 to promote
international commercial arbitration in the Asia/Pacific region. (1398) The KLRCA administers
arbitrations under its rules, adopted in 2010 and based on the 2010 UNCITRAL Rules. Although
it still has a relatively limited caseload at this stage (three international arbitrations in 2011),
KLRCA provides an alternative to HKIAC, ACICA and SIAC in commercial arbitrations involving
parties from the Asia/Pacific region. (1399)
[r] Indian Council of Arbitration
The Indian Council of Arbitration (“ICA”) was established in 1965 and is regarded as India’s
preeminent arbitral institution. The ICA Rules are based on the provisions of the Indian
Arbitration and Conciliation Act (1996) and were most recently revised in 2012. (1400) Many
users remain cautious about seating arbitrations in India, noting interventionist attitudes of
Indian courts and other concerns. (1401) The ICA handled eight international arbitrations in
2010 and 5 in 2011. (1402)
[s] JAMS International
In 2011, JAMS, a leading domestic mediation and arbitral institution in the United States,
combined with the ADR Center in Italy to form JAMS International, headquartered in London.
(1403) JAMS handles more than 10,000 arbitrations or mediations a year in North America,
where its panel of “neutrals” is comprised largely of former U.S. judges and litigators. JAMS
International is still in the process of compiling a list of arbitrators and mediators.
P 198 The JAMS International Arbitration Rules, adopted in 2011, have provisions similar to other
P 199 leading institutional arbitration rules. (1404) They include features that reflect recent
developments in arbitration practice, (1405) such as a liberal consolidation provision and
options for online filing and email communications. The Rules do not require terms of
reference, but include a process for scrutinizing awards before they are issued.
JAMS and JAMS International have sought to address concerns of parties about the costs of the
arbitral process. To that end, JAMS has adopted “Efficiency Guidelines for the Pre-Hearing
Phase of International Arbitrations,” which contain guidelines similar to those set in the IBA
Guidelines for the Taking of Evidence in International Arbitration. (1406)
[D] Overview of International Guidelines and Harmonization

In addition to institutional arbitration rules, there are a number of international guidelines or
codes of best practice regarding the conduct of international arbitrations. (1407) These sources
play an important role in providing tested procedural solutions and predictability in
international arbitrations. These guidelines are buttressed by extensive commentary from a
wide range of arbitrators, practitioners, users and academics addressing various procedural
aspects of the international arbitral process. (1408) These materials can provide important
sources of guidance for both tribunals and parties, making the arbitral process more
predictable and transparent, while not curtailing the parties’ and arbitrators’ ability to tailor
arbitral procedures in particular cases to the individual needs of those cases. (1409)
[1] IBA Rules on the Taking of Evidence in International Arbitration (1410)
P 199
P 200 Although not a set of institutional arbitration rules, the International Bar Association’s “Rules
69
on the Taking of Evidence in International Arbitration” fulfill related functions. In 1983, the IBA
adopted the “Supplementary Rules Governing the Presentation and Reception of Evidence in
International Commercial Arbitration.” (1411) The Rules attempted to provide a blend of civil
law and common law approaches to the subjects of discovery and evidentiary presentations in
arbitration. (1412) The Rules were not independently binding, but could either be adopted by
parties in their arbitration agreement (or otherwise) or relied upon by arbitral tribunals for
guidance in making procedural orders. (1413)
The IBA Rules were extensively revised in 1999, and retitled the “Rules on the Taking of
Evidence in International Commercial Arbitration” (“IBA Rules” or “IBA Rules on the Taking of
Evidence”). The 1999 IBA Rules established a reasonably-detailed and workable set of
procedures for witness evidence and disclosure requests in international arbitrations. (1414)
Like their predecessors, the 1999 IBA Rules were not independently binding, but were intended
for incorporation into parties’ arbitration agreements or as a basis for tribunals’ procedural
rulings. (1415) In practice, the 1999 IBA Rules came to be used frequently as guidelines for
arbitral procedures in international commercial arbitrations. (1416)
The 1999 IBA Rules were revised in 2010 and (again) retitled the “Rules on the Taking of
Evidence in International Arbitration.” (1417) The 2010 IBA Rules were amended in three
principal respects.
P 200 First, the 2010 IBA Rules attempt to provide for a more efficient evidence-gathering process
P 201 which calls for early involvement of the tribunal (1418) and specific guidelines regarding
electronic documents, (1419) witness statements (1420) and expert reports. (1421) Second, in
order to maintain “fairness and equality,” the 2010 IBA Rules provide considerations for the
tribunal to take into account when determining whether a legal privilege should exclude a
certain item of evidence. (1422) Third, the 2010 IBA Rules provide an express requirement of
good faith in the taking of evidence, (1423) and authorize arbitral tribunals to consider
violations of this obligation in awarding costs. (1424)
The 2010 IBA Rules have achieved even greater currency than earlier versions of the rules.
According to a recent survey, the IBA Rules are used in 60% of international arbitrations. (1425)
[2] ABA/AAA Code of Ethics, IBA Rules of Ethics and IBA Guidelines on Conflicts of Interest in
International Arbitration (1426)
In a related set of developments, non-binding international guidelines have been adopted by
the IBA and other bar associations with regard to the ethics of international arbitrators. In 1977,
a joint committee of the American Bar Association (“ABA”) and American Arbitration Association
adopted the ABA/AAA Code of Ethics. (1427) As discussed in greater detail below, the Code
sought to provide ethical guidelines for arbitrators, focusing particularly on issues of bias and
partiality. (1428) After lengthy debate, in 2004, the ABA/AAA Code of Ethics was amended,
including to impose presumptive duties of independence and impartiality on co-arbitrators.
(1429)
P 201 In 1987, the IBA adopted “Rules of Ethics for International Arbitrators.” (1430) Derived in part
P 202 from the ABA/AAA Code, the IBA effort sought to establish ethical standards for application
to international arbitrators. (1431) The IBA Rules of Ethics were (and remain) influential
guidelines in international arbitration practice.
In 2004, the IBA published a detailed set of guidelines and accompanying commentary
concerning the impartiality and independence of arbitrators (the “IBA Guidelines on Conflicts
of Interest in International Arbitration”). (1432) As discussed in greater detail below, (1433) the
IBA Guidelines detail circumstances which are customarily considered to raise doubts
regarding an arbitrator’s independence or impartiality, and supersede the IBA Rules of Ethics
in this regard; they also provide for disclosure of such circumstances by arbitrators and
prospective arbitrators. (1434)
The IBA Guidelines have been the subject of considerable criticism, on the grounds that they
are needlessly detailed and encourage challenges to both arbitrators and awards. (1435) The
IBA Guidelines are not automatically binding on either national courts or arbitral institutions.
They nonetheless provide an influential perspective on customary attitudes towards an
arbitrator’s obligations of independence and impartiality.
[3] IBA Guidelines on Party Representation in International Arbitration
In 2013, the IBA adopted “Guidelines on Party Representation in International Arbitration,”
which seek to provide guidance regarding the conduct of counsel and other party
representatives in international commercial, investment and other arbitrations. The
Guidelines are not intended to “displace otherwise applicable mandatory laws, professional or
disciplinary rules, or agreed arbitration rules that may be relevant or applicable to matters of
party representation,” and instead purport to be purely “contractual” in nature and applicable
only when adopted by the parties. (1436)
The Guidelines are “inspired by the principle that party representatives should act with
integrity and honesty and should not engage in activities designed to produce unnecessary
delay or expense, including tactics aimed at obstructing the arbitration proceedings.” (1437) As
discussed below, the Guidelines set forth 27 principles, with accompanying commentary,
P 202 regarding the professional conduct of party representatives in international arbitrations,
P 203 focusing in particular on conduct during the arbitral proceedings (including disclosure,
70
witness preparation, submissions to the tribunal and similar subjects). (1438)
[4] UNCITRAL Notes on Organizing Arbitral Proceedings
In 1996, UNCITRAL published the “UNCITRAL Notes on Organizing Arbitral Proceedings.” (1439)
The UNCITRAL Notes are non-binding guidelines for arbitrators and parties which are designed
to identify issues that frequently arise in the course of international arbitrations. Among other
things, the UNCITRAL Notes briefly discuss procedural rules, communications, written
submissions, evidence, witnesses and hearings.
[5] Chartered Institute of Arbitrators “Practice Guidelines”
The Chartered Institute of Arbitrators (based in London) has issued a number of “Practice
Guidelines” providing recommendations regarding various practical aspects of the
international arbitral process. Among other things, the Guidelines address the interviewing of
arbitrators, documents-only arbitrations, costs orders and jurisdictional challenges: the
Guidelines are significantly influenced by domestic English practice and are infrequently
relied upon in international cases. The Guidelines are considered a work in progress by the
Institute with their most recent updates in December 2011. (1440)
[E] Overview of Elements of International Arbitration Agreements

As already discussed, international commercial arbitration is almost always consensual: (1441)
arbitration generally occurs only pursuant to an arbitration agreement between the parties.
(1442) It is, of course, possible for parties to agree to submit an existing dispute to arbitration,
pursuant to a “submission agreement” or “compromise.” (1443) Typically, however, disputes are
arbitrated as a consequence of preexisting arbitration clauses, applicable to future disputes,
in the parties’ underlying commercial contract. (1444)
P 203
P 204 Parties are largely free to draft their arbitration agreements in whatever terms they wish and
in practice this freedom is liberally exercised. (1445) Like other contractual clauses, the terms
of arbitration agreements are largely a product of the parties’ interests, negotiations and
drafting skills.
International arbitration agreements often – and advisedly – address a number of critical
issues. These are: (a) the agreement to arbitrate; (b) the scope of the disputes submitted to
arbitration; (c) the use of an arbitration institution and its rules; (d) the seat of the arbitration;
(e) the method of appointment, number and qualifications of the arbitrators; (f) the language of
the arbitration; and (g) a choice-of-law clause. In particular cases, other provisions may be
either vital to an effective international arbitration agreement or advantageous to one or both
parties. (1446)
[1] Agreement to Arbitrate
It is tautological – but not always the case in practice – that any arbitration clause must set
forth the parties’ agreement to arbitrate. (1447) As a drafting matter, this means that
arbitration agreements should (and usually do) expressly refer to “arbitration” – and not to
expert determination, accounting, conciliation, mediation, negotiation, settlement, “ADR,” or
some other form of non-judicial resolution. (1448) As discussed in greater detail below, these
other forms of alternative dispute resolution are not categorized as “arbitration” under many
international treaties and national arbitration statutes, and will often not qualify for the “pro-
enforcement” safeguards provided by these instruments. (1449) Accordingly, a fundamental
element of any international arbitration agreement is the parties’ undertaking that “all
disputes shall be finally resolved by arbitration.”
Similarly, most international arbitration agreements provide (and should provide) that
disputes should be referred to arbitration for a “binding” or “final” disposition (and not for an
P 204 advisory recommendation). (1450) An arbitration clause also should not treat arbitration as a
P 205 possible future option, applicable only if the parties so agree after a dispute arises. (1451)
Thus, arbitration clauses should (and usually do) provide that “all disputes shall be finally
resolved by arbitration.” (1452)
[2] Scope of Arbitration Agreement
Critical to any arbitration clause is its “scope” – that is, the categories of disputes or claims
that will be subject to arbitration. (1453) For example, an agreement to arbitrate may provide
that all disputes between the parties, bearing any conceivable connection to their dealings
with one another, are subject to arbitration. Alternatively, the parties may agree that only
contract claims that clearly arise under the express terms of the parties’ contract or,
alternatively, under only specified provisions of that contract, are to be arbitrated; similarly,
the parties may agree that particular types of claims are to be excluded from an otherwise
broad arbitration agreement. (1454)
There are a handful of formulae that are frequently used to define the scope of arbitration
clauses. (1455) These formulae include “any” or “all” disputes: (i) “arising under this Agreement”;
(ii) “arising out of this Agreement”; (iii) “in connection with this Agreement”; and (iv) “relating to
this Agreement.” Alternative formulations are also used, including: (v) “all disputes relating to
this Agreement, including any question regarding its existence, validity, breach, or
termination”; or (vi) “all disputes relating to this Agreement or the subject matter hereof.”
(1456)
71
As a general rule, international arbitration clauses are usually drafted broadly, to cover all
disputes having any connection with the parties’ dealings. (1457) Doing so avoids the expense
arising from parallel proceedings (when certain contractual disputes are arbitrated and other,
related contractual, or non-contractual, disputes are litigated). (1458) It also avoids the
uncertainties resulting from potentially inconsistent decisions in different forums and from
jurisdictional disputes over the scope of disputes to be heard in different forums.
Even where the parties have agreed in principle to a broad arbitration clause, there may be
claims or disputes that one party does not want submitted to arbitration. This can include
matters such as intellectual property rights or payment obligations, which are sometimes
excluded or carved out of the scope of the arbitration clause. (1459) Although these types of
provisions can serve legitimate objectives, it is usually better to avoid efforts to exclude
P 205 particular types of disputes from arbitration, except in unusual circumstances. Such exclusions
P 206 often lead (undesirably) to parallel proceedings in both the arbitral forum and national
courts, and to jurisdictional disputes over the application of a clause to particular claims.
(1460)
[3] Institutional Arbitration
As discussed above, institutional arbitration is conducted pursuant to procedural rules
promulgated by a particular arbitral institution, which generally also “administers” the
arbitration. (1461) If institutional arbitration is desired, the parties’ arbitration agreement
must select and refer to an arbitral institution and its rules. (1462) In general, every arbitral
institution provides its own model arbitration clause; parties wishing to invoke the institution’s
rules should ordinarily use this clause as the basis for their arbitration agreement, departing
from it only with care and for considered reasons. (1463)
In cases where the parties do not wish to agree to institutional arbitration, they will sometimes
select a preexisting set of procedural rules designed for ad hoc arbitrations (such as the
UNCITRAL Rules). (1464) Arbitration clauses frequently accomplish this result by references
such as “all disputes shall be settled by arbitration in accordance with the UNCITRAL
Arbitration Rules.”
[4] Specifying Seat or Place of Arbitration
Another vital element of any international arbitration agreement is designation of the “seat”
(or “place”) of the arbitration. (1465) As discussed below, the arbitral seat is a legal concept: it
is the state where the arbitration has its formal legal or juridical home, whose arbitration law
governs the arbitral proceedings, and under whose law the arbitral award is made. (1466) The
seat of an arbitration is also the geographic location where many or all of the hearings in the
arbitration will be conducted, although this is not a requirement and the tribunal may hold
hearings elsewhere for reasons of convenience. (1467) The text of contractual provisions
selecting the arbitral seat is not complex, usually providing only “The seat of the arbitration
shall be…” or “The place of arbitration shall be….”
As discussed below, there are a number of legal and practical consequences that follow from
selection of an arbitral seat, making this one of the most important aspects of any
international arbitration agreement. (1468) These consequences include influencing the choice
P 206 of law governing the arbitration agreement, the selection of the procedural law of the
P 207 arbitration and the national courts responsible for applying that law, the selection of the
national courts responsible for issues relating to constitution of the tribunal and assistance in
other aspects of arbitral procedure, and the selection of the national courts responsible for
(and arbitration law applicable to) annulment of arbitral awards. (1469) All of these issues are
of substantial importance to the arbitral process (which contrasts with domestic arbitration in
many countries, where the selection of an arbitral situs has much less practical importance).
[5] Number, Method of Selection and Qualifications of Arbitrators
It is also common for international arbitration agreements to address the number, means of
appointment and qualifications of the arbitrators. (1470) As discussed below, selection of the
arbitrators is one of the most critical issues in any arbitration. (1471) Addressing this issue in
the arbitration agreement is vitally important.
Arbitration clauses often specify the number of persons who will comprise an arbitral tribunal
in the event of future disputes. If the parties do not agree upon the number of arbitrators,
leading institutional rules generally grant the institution power to do so; (1472) otherwise,
national courts will have the power to decide, pursuant to default rules in national arbitration
legislation. (1473) Nonetheless, relying on a judicial or institutional decision regarding the
number of arbitrators can result in delays or jurisdictional disputes. As a consequence, parties
often specify the number of arbitrators in their arbitration clause. (1474)
The text of provisions designating the number of arbitrators is not complex. For example, a
typical clause would provide: “Any dispute shall be finally resolved under the [Rules] by [three
arbitrators] [one arbitrator] appointed in accordance with the said Rules.” An alternative
provides “the number of arbitrators shall be [three] [one].” (1475)
It is also essential for an arbitration agreement to include some method for selecting the
arbitrator(s). The most common approach is for the parties to attempt to reach agreement on a
sole arbitrator or to each appoint one member of a three member tribunal, with the third
arbitrator chosen by the two party-appointed arbitrators or selected by an appointing
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authority. (1476)
It is also essential for the parties to include a method of appointing the tribunal in the event
that they cannot, or do not, constitute the tribunal as agreed. (1477) The most common such
mechanism is designation of an “appointing authority,” which will select a sole arbitrator or
P 207 presiding arbitrator in the event that the parties (or party-nominated arbitrators) cannot do
P 208 so, or if a party fails to select a party-nominated arbitrator. (1478) All leading institutional
rules provide for such a role by the sponsoring institution when the parties agree to arbitrate
under an institution’s rules, (1479) and no special wording (aside from adopting the institution’s
rules) is necessary to select the institution as appointing authority. (1480)
Finally, international arbitration agreements can either directly specify or indirectly influence
the qualifications and characteristics of the arbitrators. (1481) For example, most leading
institutional rules provide that a presiding or sole arbitrator shall not have the same
nationality as that of any of the parties (unless otherwise agreed). (1482) An arbitration
agreement can also require (or prohibit) the appointment of persons with particular
credentials or expertise (such as legal qualifications, accounting degrees or engineering
experience). (1483) Arbitration clauses may also require that the arbitrators have particular
language abilities, such as “each arbitrator shall be fluent in Spanish.” (1484)
[6] Language of Arbitration
Arbitration clauses in international agreements frequently specify the language (or languages)
of the arbitral proceedings and award. (1485) Although sometimes overlooked, this is a point of
vital importance, which can have a profound practical effect on the selection of the arbitrators
(and counsel) and the character of the arbitral proceedings.
Absent the parties’ agreement, institutional rules usually expressly authorize the arbitral
P 208 tribunal to select a language (or languages) of the arbitration. (1486) This will often be the
P 209 language of the underlying contract or arbitration agreement. (1487) Even if institutional
rules do not address the issue, national law will ordinarily give the tribunal authority to select
a language for the arbitration. (1488) Nonetheless, there is seldom any reason to leave this
issue to chance, particularly given the simplicity of a provision to the effect that “the language
of the arbitration shall be [English].”
[7] Choice-of-Law Clauses
Any international dispute can give rise to tortuous choice-of-law questions. (1489) As a
consequence, and as discussed below, many international commercial agreements contain a
choice-of-law clause, specifying the substantive law applicable to the parties’ underlying
contract and related disputes. (1490)
In addition to the substantive law governing the parties’ underlying contract, other questions of
applicable law frequently arise in connection with international arbitrations. Thus, as
discussed in detail below, a different law may apply to the arbitration agreement (as
distinguished from the parties’ underlying contract); (1491) that is because an arbitration
clause is deemed a “separable” or “autonomous” contract in most legal systems, which is not
necessarily subject to the same substantive law as the underlying contract. (1492) It is possible,
and occasionally advisable, to adopt a choice-of-law clause that specifically addresses the law
applicable to the arbitration agreement, as distinct from the parties’ underlying contract.
It is also possible for a different law to apply to the procedural conduct of the arbitration
itself, separate from that governing the arbitration agreement or underlying contract. (1493) In
almost all cases, the procedural law of the arbitration will be that of the arbitral seat, although
there are rare exceptions. (1494) Parties sometimes include choice-of-law provisions that
designate the procedural law applicable to arbitral proceedings. Significant complexities can
arise from such provisions, and great care must be taken in utilizing them. (1495)
[8] Other Provisions of International Arbitration Agreements
Many international arbitration agreements also contain other provisions, in addition to the
elements discussed above. The existence and nature of these provisions varies from case to
case, depending on the parties’ negotiations, drafting and interests. The most common
P 209 additional elements include: (a) allocation of the costs of legal representation; (1496) (b)
P 210 interest and currency of an award; (1497) (c) disclosure or discovery; (1498) (d) fast-track or
other procedural rules; (1499) (e) so-called escalation clauses or multi-tier dispute resolution
clauses; (1500) (f) state/sovereign immunity waivers; (1501) and (g) confidentiality. (1502)
[9] Drafting Arbitration Agreements: Recommended Approach
Like other contractual provisions, an international arbitration clause is ultimately the product
of what the parties choose to agree upon. It is a creature of negotiations and drafting skill (or
fallibility). In some cases, the parties’ products are sui generis; they may be inspired or,
regrettably, pathologically deformed.
In the overwhelming majority of cases, however, international arbitration agreements are
straightforward exercises, adopting either entirely or principally the model, time-tested
clauses of a leading arbitral institution. (1503) Although pedestrian, this course is almost
always the wisest one. A representative example of such an arbitration agreement, which
should contain each of the elements identified above, is as follows:
73
“All disputes, claims, controversies, and disagreements relating to or arising out of this
Agreement (including the formation, existence, validity, enforceability, performance, or
termination of this Agreement), or the subject matter of this Agreement, shall be finally
resolved by arbitration [under the – Rules] by [three arbitrators] [one arbitrator]. The seat of
the arbitration shall be [Paris] [London, England] [New York/Washington]. The language of the
arbitration shall be English.” (1504)
Provisions of this sort are frequently supplemented by a choice-of-law clause, selecting the law
applicable to the parties’ underlying contract and other disputes, as well as by one or more of
the optional provisions referred to above. Where such a clause is used, rather than more
complex or creative provisions, the risks of pathological defects or jurisdictional and
procedural disputes are minimized.
[F] Overview of Choice of Law in International Commercial Arbitration

P 210 Parties frequently agree to arbitration to avoid the jurisdictional and choice-of-law
P 211 uncertainties that arise when international disputes are litigated in national courts. (1505)
Unfortunately, international arbitration can produce its own set of complex, sometimes
unpredictable choice-of-law issues. (1506)
Choice-of-law issues play an important role in international commercial arbitration. It is
necessary to distinguish between four separate choice-of-law issues that can arise in
connection with an international arbitration: (a) the substantive law governing the merits of the
parties’ underlying contract and other substantive claims; (b) the substantive law governing
the parties’ arbitration agreement; (c) the law applicable to the arbitral proceedings; and (d)
the conflict of laws rules applicable to select each of the foregoing laws. (1507) Although not
common, it is possible for each of these four issues to be governed by a different national (or
other) law.
Each of the foregoing choice-of-law issues can have a vital influence on international arbitral
proceedings. Different national laws provide different – sometimes dramatically different –
rules applicable at different stages of the arbitral process. Understanding which national rules
will potentially be applicable can therefore be critical.
[1] Law Applicable to Substance of Parties’ Dispute
The parties’ underlying dispute will ordinarily be resolved under the rules of substantive law of
a particular national legal system. (1508) In the first instance, it will usually be the arbitrators
who determine the substantive law applicable to the parties’ dispute. (1509) As discussed in
detail below, international arbitral awards typically give effect to the parties’ agreements
concerning applicable substantive law (“choice-of-law clauses”). (1510) The principal exception
is where mandatory national laws or public policies purport to override private contractual
arrangements. (1511)
Where the parties have not agreed upon the substantive law governing their dispute, the
arbitral tribunal must select such a law. In so doing, the tribunal will sometimes (but not
always) refer to some set of national or international conflict of laws rules. These varying
approaches to the choice of substantive law in international arbitration are summarized here
and examined in detail below. (1512)
Although the historical practice was to apply the national conflict of laws rules (or substantive
P 211 law) of the arbitral seat, more recent practice is diverse. Some tribunals and commentators
P 212 adhere to the traditional approach, while others look to the conflicts rules of all states
having a connection with the dispute. (1513) Additionally, some authorities adopt either
international conflict of laws rules or validation principles. (1514) The development of bodies
of international substantive rules dealing with commercial matters has facilitated this
development. (1515)
[2] Law Applicable to Arbitration Agreement
As discussed elsewhere, arbitration agreements are universally regarded as presumptively
“separable” from the underlying contract in which they appear. (1516) One consequence of this
is that the parties’ arbitration agreement may be governed by a different national law than
that applicable to the underlying contract. This can occur either by the parties’ express choice
of law or by the application of conflict of laws rules (which may select different substantive
laws for the parties’ arbitration agreement and their underlying contract).
As described below, four alternatives for the law governing an arbitration agreement are of
particular importance: (a) the law chosen by the parties to govern the arbitration agreement
itself; (b) the law of the arbitral seat; (c) the law governing the parties’ underlying contract; and
(d) international principles, either applied as a substantive body of contract law (as in France)
or as rules of non-discrimination (as in most U.S. authority). (1517) As also discussed below, the
better view is that Articles II(1) and V(1)(a) mandate application of a validation principle to
international commercial arbitration agreements governed by the Convention, which upholds
the validity of those agreements if they are valid under any potentially-applicable national
law. (1518)
[3] Procedural Law Applicable to Arbitral Proceedings
The arbitral proceedings themselves are also subject to legal rules, governing both “internal”
74
procedural matters and “external” relations between the arbitration and national courts. In
most instances, the law governing the arbitral proceeding is the arbitration statute of the
arbitral seat (i.e., the location selected by the parties as the juridical place of arbitration).
(1519)
Among other things, the law of the seat typically deals with such issues as the appointment and
qualifications of arbitrators, the extent of judicial intervention in the arbitral process, the
P 212 availability of provisional relief, the procedural conduct of the arbitration, the form of any
P 213 award and the standards for annulment of any award. Different national laws take
significantly different approaches to these various issues. In some countries, national law
imposes significant limits or requirements on the conduct of the arbitration and local courts
have broad powers to supervise arbitral proceedings. (1520) Elsewhere, and in most developed
jurisdictions, local law affords international arbitrators virtually unfettered freedom to
conduct the arbitral process – subject only to basic requirements of procedural regularity
(“due process” or “natural justice”). (1521)
In some jurisdictions, parties are free to select the law governing the arbitral proceedings
(variously referred to as the procedural law of the arbitration, the curial law, the lex arbitri, or
the loi de l’arbitrage). (1522) This theoretically includes the freedom to agree to the application
of a different procedural law than that of the arbitral seat; in practice, however, this seldom
occurs and the effects of such an agreement are uncertain. (1523)
[4] Choice-of-Law Rules Applicable in International Arbitration
Selecting each of the bodies of law identified in the foregoing three sections – the laws
applicable to the merits of the underlying contract or dispute, to the arbitration agreement
and to the arbitral proceedings – ordinarily requires application of conflict of laws rules. In
order to select the substantive law governing the parties’ dispute, for example, an arbitral
tribunal must generally apply a conflict of laws system. (1524) And, just as different states have
different rules of substantive law, they also have different conflict of laws rules. An
international arbitral tribunal must therefore decide at the outset what set of conflicts rules to
apply.
The actual practice of arbitral tribunals in selecting the law applicable to each of the foregoing
issues varies significantly. Approaches include application of (a) the arbitral seat’s conflict of
laws rules; (b) “international” conflict of laws rules; (c) successive application of the conflict of
laws rules of all interested states; and (d) “direct” application of substantive law (without any
express conflicts analysis). (1525)
The current state of conflict of laws analysis in international arbitration has not kept pace with
the parties’ aim of avoiding the peculiar jurisdictional, choice-of-law and enforcement
difficulties that attend the litigation of international disputes in national courts. There is often
uncertainty, and wasted time and expense, as a consequence of contemporary conflict of laws
analysis. Nonetheless, recent national court decisions and arbitral awards suggest the way
towards development of international principles of validation and non-discrimination which
hold promise of realizing more fully the aspirations of the international arbitral process. (1526)
P 213
P 214 § 1.05 THEORIES OF INTERNATIONAL ARBITRATION
There have been numerous theoretical efforts to categorize arbitration within domestic legal
systems. (1527) Among other things, these theories have included characterizations of
arbitration as “contractual,” “jurisdictional,” “hybrid” and “autonomous.” Although the practical
implications of this debate are often unclear, (1528) there is little academic agreement on
these various theories.
[A] Leading Theories of Arbitration

The “contractual” school of thought regarded arbitration as a form of contractual relations.
(1529) According to one early proponent of this analysis:
“It is the arbitration agreement that gives [the arbitral award] its existence; it is from the
arbitration agreement that it derives all its substance; it has, then, like the arbitration
agreement, the character of a contract; and the precise truth is that it is only the performance
of the mandate that the parties have entrusted to the arbitrators; it is even, to put it precisely,
only an agreement to which the parties have bound themselves by the hands of the latter (the
arbitrators).” (1530)
The contractualist school emphasized that arbitrators were not judges (since they performed
no “public” function and exercised no powers on behalf of the state). In general terms, the
contractualist school placed primary emphasis on the role of party autonomy in the arbitral
process. (1531)
P 214 Other authors reject the notion that arbitration – including the arbitral proceedings and award
P 215 – is predominantly contractual, and instead adopt a “jurisdictional” analysis. They reason
that arbitration is essentially adjudicative, involving the exercise of independent, impartial
decision-making by the arbitrators:
“while an arbitration agreement has the formal aspects of a contract, by its very nature it
assumes the absence of any agreement between the parties with respect to a dispute other
than on the mode of settlement. Arbitration is a means, a method, a procedure, rather than an
75
agreement.” (1532)
Or, as another authority put it, “[a]n arbitrator is a private judge.” (1533) Proponents of this
school emphasize the arbitrator’s performance of functions that are public, or “judicial,” in
character, (1534) and the role of national law in conferring such powers on the arbitrator. (1535)
In general terms, the “jurisdictional” theory of arbitration gives primary importance to the role
of national law, and particularly the law of the arbitral seat, in the arbitral process, while
contemplating greater limits on the parties’ autonomy than other authors. (1536)
More recently, commentators have advanced the theory that arbitration is “hybrid” or “mixed,”
involving elements of both contract and jurisdiction. (1537) “Although deriving its effectiveness
from the agreement of the parties, as set out in the arbitral agreement, [arbitration] has a
jurisdictional nature involving the application of the rules of procedure.” (1538) This school
offered comparatively little analysis as to what characteristics arbitration “should”
demonstrate, focusing instead on the parties’ autonomy. (1539)
P 215
P 216 More recently, some commentators urged that arbitration be treated as “autonomous,” and
not as either contractual or jurisdictional (or hybrid). (1540) Even less so than other
characterizations, it is unclear what doctrinal or practical consequences result from this
analysis.
Within each of the various foregoing categorizations of arbitration, different approaches
existed. In some legal systems, arbitration was characterized as a form of procedure, with
arbitration agreements being treated as procedural contracts. (1541) Other commentators and
courts classified arbitration as “remedial” in nature, and applied the law of remedies to
arbitration agreements. (1542) More recently, many developed national legal systems have
emphasized the contractual aspects of arbitration (1543) and the parties’ autonomy with
regard to choice-of-law, procedural and other issues. (1544)
[B] Future Directions: the Jurisprudential Character of International Arbitration

All of these theoretical characterizations contain elements which are accurate and, in an
abstract manner, useful. Arbitration manifestly exhibits attributes of contractual relations,
albeit of an unusual type. The arbitration agreement is the essential and necessary foundation
of the arbitral process, (1545) whose existence, validity and interpretation can only be
assessed pursuant to principles of contract law. (1546) Moreover, the parties’ agreement to
arbitrate retains a central role throughout the subsequent arbitral proceedings (1547) and is
critically important to the terms, validity and recognition of the arbitral award. (1548) In these
regards, it is essential that arbitration be considered as reflecting elements of contract and
the law of contracts.
At the same time, arbitration also manifestly involves attributes of jurisdictional authority and
P 216 adjudicative decision-making, different from other forms of contractual relations. The
P 217 arbitration agreement does not produce a typical “commercial” bargain, but instead results
in a particular kind of dispute resolution process, (1549) where the decision-maker must be
impartial and independent and must apply adjudicatory procedures in reaching a decision.
(1550) Moreover, the arbitral process is granted independence from and support by national
judicial systems, (1551) while the award is granted the binding force and res judicata effect of a
national court judgment. (1552) In these regards, it is necessary that arbitration be regarded as
an adjudicative or jurisdictional process.
More fundamentally, both the hybrid and autonomous theories capture remaining and
important analytical aspects of arbitration. For the reasons already outlined, it is impossible
not to consider arbitration as a hybrid, combining elements of both contractual relations and
jurisdictional authority. Indeed, arbitration cannot be conceptualized without adopting this
starting point: it makes no sense to seek to analyze the arbitration agreement, and its effects
at every stage of the arbitral process, without reference to contract law and principles, just as
it makes no sense to seek to analyze the arbitrator’s function, the arbitral proceedings and the
arbitral award without reference to the law and principles of adjudicative decision-making and
res judicata.
At the same time, arbitration is also sui generis and autonomous, exhibiting characteristics that
are not shared by either contract or judicial decision-making. That should hardly be surprising,
because arbitration has been treated for centuries as a separate field of law: as discussed
elsewhere, arbitration agreements and awards have been subject to specialized legal rules
since Antiquity, (1553) with this categorization becoming more explicit during the 20th century.
(1554) Indeed, having regard to the specialized international legal regimes (i.e., the Geneva
Protocol and Convention; New York Convention; European Convention) (1555) and national
legislative regimes (i.e., the UNCITRAL Model Law; modern arbitration legislation) (1556) makes
it difficult to conceive of treating arbitration as something other than an autonomous field of
law.
Thus, it is true that the field of international arbitration draws essential doctrine and rules
from contract law and from the law of civil procedure and judgments. But in many cases,
particularly in international matters, these disciplines are at most analogies, providing the
starting point, not the end result, of analysis. In all cases, it remains essential to categorize and
treat arbitration as a distinctive and autonomous discipline, specially designed to achieve a
particular set of objectives, (1557) which other branches of private international law fail
satisfactorily to resolve. (1558)
P 217
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P 217
P 218 § 1.06 OVERVIEW OF SOURCES OF INFORMATION ABOUT INTERNATIONAL
ARBITRATION
One of the perceived benefits of international arbitration is its confidentiality or, at least,
privacy. (1559) Many international arbitral awards, as well as the submissions, hearings and
deliberations in almost all international commercial arbitrations, remain confidential. (1560)
Although it has benefits, the confidentiality or privacy of the arbitral process is at the same
time an obstacle to practitioners, decision-makers and academics, all of whom frequently
desire precedent, authority, or information about the arbitral process.
There are a wide variety of sources of information about international commercial arbitration
which are useful for both practitioners and academics. (1561) The number and detail of these
sources has increased materially in recent years, and new projects are underway which would
further expand the corpus of available information concerning the international arbitral
process. These are welcome, important developments that contribute to the efficacy of the
international arbitral process.
[A] ICCA Yearbook of Commercial Arbitration and ICC Handbooks

The Yearbook of Commercial Arbitration is published annually by the International Council for
Commercial Arbitration. The Yearbooks contain excerpts of international arbitral awards
(usually redacted to remove parties’ names), national arbitration legislation, judicial
decisions, and other materials relevant to international arbitration. The Yearbook is
supplemented by handbooks on national arbitration legislation, containing international
arbitration statutes from jurisdictions around the world. (1562)
[B] Mealey’s International Arbitration Report

Since 1986, Mealey Publications has published a monthly summary of recent judicial decisions
concerning international arbitration and arbitral awards. The International Arbitration Report
is a source of timely information (with a recently-introduced email service) and provides full-
text copies of significant awards and decisions. The Report’s primary focus is U.S., but it
increasingly includes authorities from other jurisdictions.
P 218
P 219 [C] Journal du Droit International (Clunet)
Published in French, the Journal du Droit International reprints excerpts and summaries of
arbitral awards and French judicial decisions concerning international arbitration and other
private international law subjects. The Journal is a significant source of extracts of otherwise
unavailable arbitral awards, often with comments by leading French practitioners or
academics.
[D] Revue Arbitrage

Published four times a year, in French, the Revue Arbitrage contains articles relating to
international and domestic arbitration as well as commentary on French judicial decisions and
arbitral awards. The Revue was founded in 1955 and was for many years directed by the late
Professor Phillip Fouchard and Mr. Charles Jarrosson.
[E] Arbitration International

Arbitration International is a quarterly journal, published since 1985 by the LCIA. It provides
commentary on international commercial arbitration, with a particular focus on Europe and
England.
[F] ASA Bulletin

The Bulletin of the Swiss Arbitration Association (“ASA”) is published quarterly. Available from
Kluwer Law International, it contains excerpts of Swiss (and other) judicial decisions dealing
with international arbitration, arbitral awards and commentary on recent developments.
[G] Collections of ICC Arbitral Awards

Five collections of ICC arbitral awards rendered between 1974 and 2007 have recently been
published. The collections cover awards made between 1974-1985, 1986-1990, 1991-1995, 1996-
2000 and 2001-2007. (1563) In addition, the ICC has published a collection of procedural
decisions in ICC arbitrations between 1993 and 1996. (1564) Each collection includes excerpts or
summaries of approximately 150 ICC arbitral awards, in both French and English. The excerpts
are edited to avoid identifying the parties to the dispute. Many of the awards were previously
published in the Yearbook of Commercial Arbitration or Journal du Droit International (Clunet),
but the collections are a convenient reference source. The ICC promises comparable
collections in the future.
[H] International Legal Materials

P 219
P 220 Sponsored by the American Society of International Law, the International Legal Materials
are published six times each year. They contain a wide range of international legal documents,
and do not focus specifically on arbitration. They are, however, a useful source of significant
77
developments – legislative, judicial and otherwise – in the arbitration field.
[I] Fouchard Gaillard Goldman on International Commercial Arbitration

The leading French commentary on international commercial arbitration, published in 1999 in
English, is authored by a distinguished French professor and practitioner, together with a very
able colleague. (1565) In addition to providing encyclopedic discussions of French
international arbitration law and practice, the work also offers insightful comment on more
general developments.
[J] Redfern and Hunter On International Arbitration

The leading English commentary on international commercial arbitration, originally titled Law
and Practice of International Commercial Arbitration, is in its fifth edition, now titled “Redfern
and Hunter on International Arbitration.” (1566) Authored by two respected English
practitioners, now assisted by able co-authors, the book is required reading for any lawyer
involved in international arbitration.
[K] Commentary On International Chamber of Commerce Arbitration

International Chamber of Commerce Arbitration is authored by three experienced practitioners
and commentators. (1567) The book is a comprehensive work on ICC arbitration, which was first
published in 1984, and most recently revised and updated in 2000 to address the 1998 ICC
Rules. The work is useful to any practitioner in an ICC arbitration, and contains commentary on
the ICC rules, with shrewd practical observations.
Yves Derains and Eric Schwartz (both of whom held the office of Secretary General of the ICC
International Court of Arbitration) have published A Guide to the ICC Rules of Arbitration, now in
its second edition. (1568) The work is thoroughly researched and provides valuable practical
guidance regarding the 1998 ICC Rules.
Most recently, three former members of the Secretariat of the ICC International Court of
P 220 Arbitration, published “The Secretariat’s Guide to ICC Arbitration”. (1569) The Guide provides a
P 221 practical commentary on the 2012 ICC Rules and contains detailed and helpful guidance on
the ICC Secretariat’s and Court’s application of the Rules. Other useful works on ICC arbitration
have also recently been published. (1570)
[L] Commentary On New York Convention

Albert Jan van den Berg’s The New York Arbitration Convention of 1958 is the leading work on the
New York Convention. (1571) The author is a distinguished Dutch academic and practitioner,
and his work assembles in a single source detailed commentary and materials relating to the
New York Convention. Although the book’s effort to annotate the Convention’s various articles
with judicial decisions is now dated, it remains required reading on the subject. Several recent
commentaries have also been published on the New York Convention, updating and expanding
on Professor van den Berg’s work. (1572)
Giorgio Gaja’s work on The New York Convention is an exhaustive compilation of the materials
relevant to the negotiation and drafting of the Convention. Ideal for detailed research on
particular aspects of the Convention, the book provides the successive drafts of the
Convention, the comments and questions of participating states, and various interim reports.
[M] Guide to the UNCITRAL Model Law On International Commercial Arbitration

Howard Holtzmann and Joseph Neuhaus have contributed a painstaking study of the UNCITRAL
Model Law and its history. (1573) Particularly as the Model Law gains in adherents, the Guide
will become a standard reference source for practitioners and courts.
[N] Domke On Commercial Arbitration

The leading U.S. work on domestic arbitration has been Domke on Commercial Arbitration.
(1574) First published in 1968, with a predominantly domestic focus, the work has been
updated, with efforts to look beyond U.S. shores, in recent years. For U.S. practitioners, it can
be a useful initial reference source.
[O] Smit’s Guides to International Arbitration

P 221
P 222 National arbitration statutes from around the world are collected in this multi-volume work
overseen by the late Professor Hans Smit. (1575)
[P] Awards of Iran-United States Claims Tribunal (1576)

The Iran-United States Claims Tribunal is one of the most ambitious international claims
commissions. (1577) The Tribunal was established pursuant to the so-called Algiers Accords,
which resolved some of the legal disputes arising from the Iranian seizure of U.S. hostages
during President Carter’s administration. (1578) Pursuant to the Accords, litigation in national
courts concerning defined claims between U.S. and Iranian entities was suspended. A nine-
person tribunal was established in The Hague, with defined jurisdiction over claims arising
from U.S.-Iran hostilities; three tribunal members were appointed by the United States, three
78
by Iran, and three from other states.
The Iran-U.S. Claims tribunal adopted the UNCITRAL Arbitration Rules (with some
modifications). It issued a substantial number of decisions, many of which are published and
which make useful contributions to the interpretation of the UNCITRAL Arbitration Rules and to
a number of issues commonly arising in international commercial (and investment)
arbitrations. (1579)
[Q] International Arbitration Law Databases

There are several useful databases providing online access to both source materials and
recent decisions under the New York Convention and/or UNCITRAL Model Law. UNCITRAL
maintains a searchable, online database of publicly-available court decisions regarding the
various instruments that have been produced by the Commission, including the New York
Convention and the UNCITRAL Model Law on International Commercial Arbitration. (1580)
UNCITRAL also hosts an online “Guide” to the New York Convention that contains recent
decisions by courts of Contracting States under the Convention, together with various basic
P 222 documents relating to the Convention and its travaux préparatoires. (1581) Other institutions
P 223 have also recently launched online databases providing access to international arbitration
materials and decisions. (1582)
[R] Kluwer Arbitration and Kluwer Arbitration Blog

Released by Kluwer Law International, the Kluwer Arbitration online service contains an
extensive, computer-searchable library of arbitral awards, judicial decisions and commentary.
The Kluwer Arbitration Blog provides brief, topical articles and essays on international
arbitration with online comments.
[S] Global Arbitration Review

Billing itself as the “world’s leading international arbitration journal,” the Global Arbitration
Review publishes (by email) five editions a week about topical developments in international
commercial and investment arbitration. It also publishes periodic articles and commentary by
arbitration practitioners and hosts live events at which international arbitration issues are
debated.
[T] Transnational Dispute Management and OGEMID

Transnational Dispute Management is an online service providing materials and commentary
concerning international commercial arbitration. An Internet-based discussion forum founded
by the late Professor Thomas Wälde, the “Oil-Gas-Energy-Mining-Infrastructure Dispute
Management” is a source of recent developments, with online comments, regarding
international arbitration. (1583)
[U] Swedish Arbitration Portal (1584)

The Swedish Arbitration Portal provides access to English translations of Swedish court
decisions on international arbitration issues. The Portal contains decisions from all instances
of the Swedish courts on issues related to both international and domestic arbitrations. The
Portal is facilitated by the Arbitration Institute of the Stockholm Chamber of Commerce. The
unofficial English case translations are provided by the Stockholm Chamber of Commerce, with
the assistance of Swedish arbitration practitioners.
[V] Draft Ali Restatement of International Commercial Arbitration Law

The American Law Institute is preparing a Restatement of International Commercial Arbitration
P 223 Law. The Reporters of the project are Professor George Bermann, Professor Jack Coe, Professor
P 224 Chris Drahozal and Professor Catherine Rogers. The Restatement can be expected to have
significant impact on U.S. international arbitration law.
References
79
1) For commentary, see S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. (1996);
D. Bederman, International Law in Antiquity (2001); Cohn, Commercial Arbitration and the
Rules of Law: A Comparative Study, 4 U. Toronto L.J. 1 (1941); Crawford, Continuity and
Discontinuity in International Dispute Settlement, 1 J. Int’l Disp. Sett. 3 (2010); R. David,
Arbitration in International Trade 83-130 (1985); Ellenbogen, English Arbitration Practice, 17
Law & Contemp. Probs. 656 (1952); Fraser, A Sketch of the History of International
Arbitration, 11 Cornell L.Q. 179 (1925-1926); K. Harter-Uibopuu, Das zwischenstaatliche
Schiedsverfahren im achaeischen Koinon (1998); Jones, Three Centuries of Commercial
Arbitration in New York: A Brief Survey, 1956 Wash. U. L.Q. 193 (1956); Jones, Historical
Development of Commercial Arbitration in the United States, 12 Minn. L. Rev. 240 (1927);
King & Graham, The Origins of Modern International Arbitration, 51 Disp. Res. J. 42 (1996);
Mann, The Formalization of Informal Law: Arbitration Before the American Revolution, 59
N.Y.U. L. Rev. 443 (1984); W. Manning, Arbitration Treaties Among the American Nations
(1978); J.B. Moore (ed.), International Adjudications (1936); Mustill, Arbitration: History and
Background, 6(2) J. Int’l Arb. 43 (1989); Paulsson, International Arbitration Is Not
Arbitration, 2008:2 Stockholm Int’l Arb. Rev. 1; J. Ralston, International Arbitration From
Athens to Locarno (1929); Roebuck, A Short History of Arbitration, in N. Kaplan, J. Spruce &
M. Moser (eds.), Hong Kong and China Arbitration: Cases and Materials xxxv (1994); D.
Roebuck, Early English Arbitration (2008); D. Roebuck, Ancient Greek Arbitration (2001);
Roebuck, L’arbitrage en droit anglais avant 1558, 2002 Rev. arb. 535; D. Roebuck,
Mediation and Arbitration in the Middle Ages: England 1154-1558 (2012); D. Roebuck & B. de
Fumichon, Roman Arbitration (2004); Roebuck, Sources for the History of Arbitration: A
Bibliographical Introduction, 14 Arb. Int’l 237 (1998) (comprehensive bibliography); Sayre,
Development of Commercial Arbitration Law, 37 Yale L.J. 595 (1927-1928); J. Scott, The
Hague Peace Conferences of 1899 and 1907 (1909); Sohn, The Function of International
Arbitration Today, 1963 Recueil des Cours 1; A. Stuyt, Survey of International Arbitrations
1794-1989 (3d ed. 1990); M. Tod, International Arbitration Amongst the Greeks (1913);
Westermann, Interstate Arbitration in Antiquity, II The Classical J. 197 (1906-1907); Wolaver,
The Historical Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132 (1934-1935); K.-
H. Ziegler, Das private Schiedsgericht in antiken römischen Recht (1971).
2) Mustill, Foreword: Sources for the History of Arbitration, 14 Arb. Int’l 235, 235 (1998)
(“Arbitration has a long Past, but scarcely any History.…There are none of the grand
perspectives in which modern arbitration could be viewed as the inheritor of a
continuous process of change.”).
3) J. Ralston, International Arbitration From Athens to Locarno 153 (1929). See also C.
Phillipson, II The International Law and Custom of Ancient Greece and Rome 129-30 (1911)
(examples of Greek gods using arbitration).
4) C. Phillipson, II The International Law and Custom of Ancient Greece and Rome 129 (1911).
5) J. Ralston, International Arbitration From Athens to Locarno 153 (1929).
6) Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 155 (1957).
7) See§2.02[C][4].
8) The theme of mortal arbitrator, presiding over divine (and unscrupulous) parties, is
repeated in Paris’ ill-fated role in deciding between the conflicting claims of Hera,
Athena and Aphrodite. D. Roebuck, Ancient Greek Arbitration 67-68 (2001).
9) See§2.02[C][4]; §12.05.
10) One of the enduring challenges confronting the arbitral process is foreshadowed by
Poseidon’s refusal to honor the award against him by Inachus.
11) A. Stuyt, Survey of International Arbitrations 1794-1989 vii (3d ed. 1990).
12) See S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. (1996); D. Bederman,
International Law in Antiquity 93-94 (2001) (Persians were “willing to submit certain kinds
of local disputes to third-party arbitration”); Lafont, L’arbitrage en Mésopotamie, 2000
Rev. arb. 557; J. Ralston, International Arbitration From Athens to Locarno (1929); D.
Roebuck, Ancient Greek Arbitration (2001) (arbitration in Greek Antiquity).
13) L. Edmonson (ed.), Domke on Commercial Arbitration §2.1 (3d ed. 2010 & Update 2013).
14) Lafont, L’arbitrage en Mésopotamie, 2000 Rev. arb. 557, 568-78 (arbitrations between
principalities in ancient Mesopotamia).
15) D. Roebuck, Ancient Greek Arbitration 71 (2001). Eriphyle, the sister of the King of Argos,
also appears to have been one of the first recorded instances of a corrupt arbitrator,
accepting bribes (of a magic necklace and a magic robe), to decide, inter alia, against
her husband. Eriphyle’s misconduct was foreshadowed by that of Paris, whose decision
in favor of Aphrodite (and against Hera and Athena) was procured by the promise of
Aphrodite’s divine attentions.
16) Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179 (1925-1926)
(citing Raeder, L’Arbitrage international chez les Hellènes 16-17 (1912)).
17) Smith, “Judicial Nationalism” in International Law: National Identity and Judicial Autonomy
at the ICJ, 40 Tex. Int’l L.J. 197, 203 n.30 (2005). Compare J. Verzijl, III International Law in
Historical Perspective 72 (1976) (first state-to-state arbitration in 600 B.C. between Athens
and Mytilene).
18) Plutarch, Themosticles 24, cited in G. de Sainte Croix, The Origins of the Peloponnesian
War, Classical Philology 377-81 (1976).
19) Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179, 188 (1925-
1926). See also S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. 3 (1996).
20) Westermann, Interstate Arbitration in Antiquity, II The Classical J. 197, 197-98 (1906-1907).
80
21) J. Ralston, International Arbitration From Athens to Locarno 156-58 (1929); M. Tod,
International Arbitration Amongst the Greeks 65-69 (1913); Westermann, Interstate
Arbitration in Antiquity, II The Classical J. 197, 202 (1906-1907).
22) S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. 8-9 (1996); Westermann,
Interstate Arbitration in Antiquity, II The Classical J. 197, 199-200 (1906-1907).
23) Greek city-states also used “religious” arbitration, where priestly authorities rendered
decisions, but with mixed results. D. Bederman, International Law in Antiquity 83 (2001)
(Oracle of Delphi was “an abominable arbitrator. Difficult questions were often evaded.…
When awards were rendered they typically lacked the clarity and precision needed to
settle the matter authoritatively.”).
24) M. Bohacek, Arbitration and State-Organized Tribunals in the Ancient Procedure of the
Greeks and Romans 197-204 (1952); J. Ralston, International Arbitration From Athens to
Locarno 161-62 (1929); D. Roebuck, Ancient Greek Arbitration 46-47 (2001).
25) S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. 15 (1996); D. Bederman,
International Law in Antiquity 83 (2001) (parties “offered records of previous treaties or
decisions, maps and charts, the writings of historians, interpretations of myths and
legends, archeological evidence, and even eye-witness testimony”); J. Ralston,
International Arbitration From Athens to Locarno 162-64 (1929).
26) J. Ralston, International Arbitration From Athens to Locarno 162-64 (1929).
27) D. Bederman, International Law in Antiquity 84 (2001) (in ancient Greece, “the reasoned
character of the awards…was essential for their legitimacy and enforcement”); J. Ralston,
International Arbitration From Athens to Locarno 162-64 (1929).
28) D. Bederman, International Law in Antiquity 84 (2001). See id. at 83 (“So, as we might
expect, arbitrations became a largely secular, and reasoned, process.”).
30) See, e.g., S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. 264-66 (1996)
(describing Rome’s increasingly frequent role as “mediator and arbitrator” in disputes
between Sparta and the Achaian league), 281 (describing “interven[tion]” and
“mediation” by Megara in a dispute between Achaia and Boeotia).
1926) (“The republic lost what Greece had gained, and the empire lost the little the
republic had won.”).
1926).
35) Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179, 190-91 (1925-
1926); J. Scott, The Hague Peace Conferences of 1899 and 1907 200-10 (1909).
1926).
1926); J. Ralston, International Arbitration From Athens to Locarno 177-78 (1929) (citing a
1235 treaty of alliance between Genoa and Venice providing for arbitration of future
disputes, a 1343 “arbitral convention” between Denmark and Sweden promising to
arbitrate any serious future disputes, and a 1516 treaty of “perpetual peace” between
France and England).
38) J. Verzijl, VIII International Law in Historical Perspective 189-90 (1974) (citing historical
authorities).
40) J. Verzijl, VIII International Law in Historical Perspective 189-90 (1974).
41) J. Ralston, International Arbitration From Athens to Locarno 176-77 (1929); Fraser, A Sketch
of the History of International Arbitration, 11 Cornell L.Q. 179, 192 (1925-1926). On the other
hand, there is scant evidence that these clauses were ever enforced, in the sense of
requiring arbitration by a state that had changed its mind about complying with an
arbitration agreement. Ibid.
1926); J. Ralston, International Arbitration From Athens to Locarno 179 (1929) (“By a quite
universal practice it would appear that before proceeding to adjudge, the arbitrator
acted in the capacity of what subsequently became know as amiable compositeur – in
other words he sought to find a basis for the composition of difficulties before
considering them from the standpoint of law.”). For discussions of the differences
between arbitration, mediation or conciliation, and amiable composition, see§2.02[C][2]
[c], pp. 272-77; §2.02[C][3], pp. 284-85.
43) Bourne, The Demarcation Line of Pope Alexander VI, in Essays in Historical Criticism, Chp.
VII (1901); Jarrett, XI Papal Arbitration, in The Catholic Encyclopedia (1911).
44) See the examples cited in J. Ralston, International Arbitration From Athens to Locarno 180
(1929).
1926) (quoting M. Novacovitch, Les compromis et les arbitrages internationaux du XIIe au
XVe siècle 85 (1905)); J. Ralston, International Arbitration From Athens to Locarno 185-86
(1929) (describing four-member legal teams of Kings of Castile and Navarre in 1176).
1926) (case study of arbitration by Henry II of England between Castile and Navarre);
Roebuck, L’arbitrage en droit anglais avant 1558, 2002 Rev. arb. 535, 538.
81
47) J. Ralston, International Arbitration From Athens to Locarno 186 (1929) (citing 1405 treaty
requiring award to be rendered within six weeks and three days).
48) J. Ralston, International Arbitration From Athens to Locarno 187-88 (1929) (discussing
penalty bonds, undertakings and possibility that violators of arbitral awards might be
excommunicated by Pope).
49) J. Ralston, International Arbitration From Athens to Locarno 181 (1929) (“It was, perhaps,
usual and natural that among the sovereigns of the Middle Ages there was little
inclination to bow in any cases of arbitration to the determination of anyone occupying
the rank of less than that of their peer.”); Sohn, The Function of International Arbitration
Today, 1963 Recueil des Cours 1, 60 (“In many cases, arbitration has been entrusted to a
single person whose position and experience were such as command the confidence of
the parties,” such as Pope, other ecclesiastics, or heads of state.).
50) Jarrett, XI Papal Arbitration, in The Catholic Encyclopedia 1 (1911) (Papal arbitration is
“[a]n institution almost coeval with the papacy itself”); J. Ralston, International
Arbitration From Athens to Locarno 174-76 (1929) (“earliest and most important influence
tending towards arbitration was that of the Papacy”).
1926).
52) See§1.01[A][3], pp. 12-13; §1.01[A][5], p. 21.
53) J. Ralston, International Arbitration From Athens to Locarno 190 (1929). The Articles of
Confederation provided for States with inter-state disagreements to jointly appoint five
“commissioners or judges” to resolve their disputes; failing agreement, a complex list
system was prescribed, in which each party was entitled to strike names of unsuitable
candidates. U.S. Articles of Confederation, Art. IX (1781); §1.01[A][5], p. 21.
54) J. Ralston, International Arbitration From Athens to Locarno 191 (1929). See also Raymond,
Demosthenes and Democracies: Regime-Types and Arbitration Outcomes, 22 Int’l
Interactions 1, 3 (1996) (“interstate arbitration prior to the Jay Treaty of 1794 remained
more of an episodic occurrence in world affairs than a patterned regularity”).
55) Jay’s Treaty, Arts. V, VI, VII (1794), reprinted in H. Miller, II Treaties and Other International
Acts of the United States of America 1776-1863 245 (1931).
56) See Editorial Comment, The American Theory of International Arbitration, 2 Am. J. Int’l L.
387 (1908).
57) Treaty of Guadalupe Hidalgo, Art. XXI (1848). The United States and Mexico entered into
a number of other treaty arrangements during the 19th century, to resolve various
categories of disputes. J. Ralston, International Arbitration From Athens to Locarno 203-07
(1929). A much greater number of arbitrations were conducted between the United
States and other countries during the 19th and early 20th centuries. Id. at 208-26.
58) Treaty of Washington, Art. I (1871), reprinted in C. Bevans, XII Treaties and Other
International Agreements of the United States of America 1776-1949 170 (1968).
59) The Alabama arbitration concerned claims by the United States that Great Britain had
wrongfully permitted the construction and outfitting of Confederate privateers, in
English shipyards, which subsequently caused substantial damage to Union shipping.
Following lengthy written proceedings and oral hearings in Geneva, a five-person arbitral
tribunal rendered the historic Alabama award, where Great Britain was ordered to pay
the equivalent of $15.5 million in gold. Despite the magnitude of that amount at the time
(equivalent to the annul budget for the British government), Great Britain subsequently
did so. The Alabama arbitration was a remarkable proceeding, eventually overcoming a
host of procedural challenges and mishaps. See T. Balch, The Alabama Arbitration (1900);
Bingham, The Alabama Claims Arbitration, 54 Int’l & Comp. L.Q. 1 (2005); F. Hackett,
Reminiscences of the Geneva Tribunal of Arbitration (1911).
61) See W. Manning, Arbitration Treaties Among the American Nations (1978).
62) Additional Treaty Between the Republic of Colombia and the Peruvian State to Form the
Assembly of Plenipotentiaries (“Tratado Adicional Entre la República de Colombia Y el
Estado de Perú Para Formar La Asamblea de Plenipotenciarios”), Arts. 1 & 3 (1822).
63) See J. Verzijl, VIII International Law in Historical Perspective 223-24 (1976) (citing
arbitration treaties between Brazil and Chile (1899), Argentina and Uruguay (1899),
Argentina and Paraguay (1899), and Guatemala and Honduras (1890, 1895)).
64) Woolsey, Boundary Disputes in Latin-America, 25 Am. J. Int’l L. 324, 325 nn.1-2 (1931)
(Argentine and Paraguayan territorially dispute settled by 1878 award issued by U.S.
President Hayes; Costa Rican and Nicaraguan territorially dispute settled by 1888 award
issued by U.S. President Cleveland; Argentine and Chilean territorial dispute settled by
1902 award issued by King Edward VII of United Kingdom).
65) See Donovan, Challenges to the Territorial Integrity of Guyana: A Legal Analysis, 32 Ga. J.
Int’l & Comp. L. 661, 675-78 (2004) (describing demise of arbitral ruling over Venezuela-
British Guyana territory with gold deposits); Woolsey, Boundary Disputes in Latin-America,
25 Am. J. Int’l L. 324, 330 (1931) (describing inconclusive nature of arbitration over
Ecuador-Peru territory rich in resources).
66) See Convention Between Costa Rica and Panama for the Settlement of the Boundary
Controversy, reprinted in 6 Am. J. Int’l L. 1, 1-4 (Supp. 1912); K. Carlston, The Process of
International Arbitration 66-70 (1946).
67) There were exceptions in limited areas. See Usteri, Bienne-Beppet Arbitration: Relating to
Disputes Between the Town of Bienne (Biel) and the Town Clerk, John Serriant, and Benedict
Beppet, in J.B. Moore (ed.), II International Adjudications 3 (1936) (arbitration between
cities in Switzerland).
82
68) Treaty of Bern, Art. 16 (1874).
69) Convention of Bern, Art. 57(3) (1890).
70) General Act of the Berlin Conference on West Africa, Art. 12 (1885).
71) General Act of the Anti-Slavery Convention of Brussels, Art. 55 (1890), in Statutory
Instruments 1892/5017.
72) J. Verzijl, VIII International Law in Historical Perspective 223 (1976) (citing Italy-Uruguay
Treaty, Art. 16(1) (1879)).
73) J. Verzijl, VIII International Law in Historical Perspective 223 (1976) (citing Netherlands-
Portuguese Declaration, Art. 7 (1894)).
74) J. Verzijl, VIII International Law in Historical Perspective 223 (1976). See also H. Cory,
Compulsory Arbitration of International Disputes (1932).
75) Argentina-Italy Arbitration Treaty (1898), cited in J. Verzijl, VIII International Law in
Historical Perspective 223 (1976).
76) See§1.04[A][7].
77) Grotius, De jure belli ac pacis, II, Chp. XXIII, ¶8 (1625), in F. Kelsey, Classics of International
Law 1925 563 (1964).
78) See, e.g., Best, Peace Conferences and the Century of Total War: The 1899 Hague Conference
and What Came After, 75 Int’l Affairs 619, 619-21, 623-31 (1999); Caron, War and
International Adjudication: Reflections on the 1899 Peace Conference, 94 Am. J. Int’l L. 4
(2000); Janis, Protestants, Progress and Peace in the Influence of Religion: Enthusiasm for
an International Court in Early Nineteenth Century America, in M. Janis (ed.), The Influence
of Religion on the Development of International Law 191 (1991).
79) Raymond, Demosthenes and Democracies: Regime-Types and Arbitration Outcomes, 22
Int’l Interactions 1, 3-4 (1996).
80) Institute of International Law, Projet de règlement pour la procédure arbitrale
internationale (Session de La Haye 1875), available at www.idi-iil.org.
81) 1899 Convention for the Pacific Settlement of International Disputes (“1899 Hague
Convention”). See Bederman, The Hague Peace Conferences of 1899 and 1907, in M. Janis
(ed.), International Courts for the Twenty-First Century 9 (1992); Best, Peace Conferences
and the Century of Total War: The 1899 Hague Conference and What Came After, 75 Int’l
Affairs 619, 619-21, 623-31 (1999); Janis, Protestants, Progress and Peace in the Influence of
Religion: Enthusiasm for An International Court in Early Nineteenth Century America, in M.
Janis (ed.), in The Influence of Religion on the Development of International Law 191 (1991);
S. Rosenne (ed.), The Hague Peace Conference of 1899 and 1907 and International
Arbitration: Reports and Documents (2001).
82) J. Scott, The Hague Peace Conferences of 1899 and 1907 276-77, 319-85 (1909). Under these
proposals, contracting states would have been obligated to arbitrate virtually all
disputes with other contracting states under a wide range of treaties (concerning, for
example, communications, transport, navigation, intellectual property, inheritance,
health and judicial cooperation), as well as all claims for monetary damages for wrongful
state actions.
83) 1899 Hague Convention, Arts. 15-29. See Best, Peace Conferences and the Century of Total
War: The 1899 Hague Conference and What Came After, 75 Int’l Affairs 619, 619-21, 630
(1999) (“Arbitration enthusiasts had hoped that the use of it would be obligatory. The
Great Powers were not having that!”).
84) See Bederman, The Hague Peace Conferences of 1899 and 1907, in M. Janis (ed.),
International Courts for the Twenty-First Century 9 (1992); Best, Peace Conferences and the
Century of Total War: The 1899 Hague Conference and What Came After, 75 Int’l Affairs 619,
619-21 (1999); Born, A New Generation of International Adjudication, 61 Duke L.J. 775, 796
(2012); Caron, War and International Adjudication: Reflections on the 1899 Peace
Conference, 94 Am. J. Int’l L. 4 (2000); J. Scott, The Hague Peace Conferences of 1899 and
1907 (1909). Compare F. Holls, The Peace Conference at the Hague 354 (1900) (describing
Hague Convention as the “Magna Charta of International Law”) with Posner & Yoo, Judicial
Independence in International Tribunals, 93 Cal. L. Rev. 1, 9-10 (2005) (describing Hague
Convention as a “tentative first step[]” that “fell into desuetude”).
85) 1899 Hague Convention, Art. 16. Nothing in the Convention imposed any obligation that
arbitration (or any other form of adjudication) be pursued in particular cases.
86) 1899 Hague Convention, Art. 18.
87) 1899 Hague Convention, Arts. 6, 14.
89) The PCA is described below. See§1.04[C][5][d], pp. 185-89.
90) 1899 Hague Convention, Arts. 22-25.
91) The Convention contained (in articles 30 to 57) procedural rules addressing limited
aspects of the arbitral process. The PCA was also responsible for providing limited
services as a registry (the “International Bureau”). 1899 Hague Convention, Arts. 22, 28.
These services did not include many of the functions of more developed arbitral
institutions, such as appointing arbitrators and hearing challenges to and removing
arbitrators.
92) 1907 Convention for the Pacific Settlement of International Disputes (“1907 Hague
Convention”).
94) Leading examples include the Island of Palmas Case (The Netherlands v. U.S.), 2 R.I.A.A.
829 (1928), Pious Funds of the California Case, 9 R.I.A.A. 1 (1902) and N. Atl. Coast Fisheries
Case, 11 R.I.A.A. 167 (1910).
83
95) Best, Peace Conferences and the Century of Total War: The 1899 Hague Conference and
What Came After, 75 Int’l Affairs 619, 630 (1999) (“The great days of the Hague’s Court of
Arbitration were over by 1914.”).
96) M. Hudson, International Tribunals: Past and Future 7 (1944). See Born, A New Generation of
International Adjudication, 61 Duke L.J. 775, 796 (2012).
97) There have been only three reported PCA conciliations. See PCA, 109th Annual Report,
Annex 4 (2009).
98) See generally S. Rosenne, I The Law and Practice of the International Court, 1920-2005 9-
42, 97-116 (4th ed. 2006).
99) See H. Cory, Compulsory Arbitration of International Disputes 63-65, 136-44 (1932) (same)
(citing compulsory bilateral arbitration treaties in 1920s and 1930s); Sohn, The Function
of International Arbitration Today, 1963 Recueil des Cours 1, 26-27, 33-34, 38-40.
100) See H. Cory, Compulsory Arbitration of International Disputes 63-65, 145-52 (1932); Sohn,
The Function of International Arbitration Today, 1963 Recueil des Cours 1, 29-33.
101) See, e.g., Treaty for the Advancement of Peace, U.S.-Ecuador, Oct. 13, 1914, 39 Stat. 1650;
Treaty for the Advancement of Peace, U.S.-Sweden, Oct. 13, 1914, 38 Stat. 1872; Treaty for
the Advancement of Peace, U.S.-Russia, Sept. 18-Oct. 1, 1914, 39 Stat. 1622; Treaty for the
Advancement of Peace, U.S.-China, Sept. 15, 1914, 39 Stat. 1642; Treaty for the
Advancement of Peace, U.S.-France, Sept. 15, 1914, 38 Stat. 1887; Treaty for the
Advancement of Peace, U.S.-U.K., Sept. 15, 1914, 38 Stat. 1853. See also Noyes, William
Howard Taft and the Taft Arbitration Treaties, 56 Villanova L. Rev. 535 (2011).
102) S. Rosenne, The World Court: What It Is and How It Works 10 (5th ed. 1995).
103) Geneva Protocol for the Pacific Settlement of International Disputes, Official Journal,
Spec. Supp. No. 21, at 21; Geneva General Act for the Pacific Settlement of International
Disputes (1928), 93 U.N.T.S. 343 (1929).
104) Between 1900 and 1914, an estimated 120 bilateral general arbitration treaties,
providing for arbitration of a broad range of disputes between the two contracting
states, were concluded. Sohn, The Function of International Arbitration Today, 1963
Recueil des Cours 1, 26-27, 33-34, 38-40. Between 1914 and 1939, “hundreds” of additional
bilateral arbitration treaties were also concluded. H. Mangoldt, Arbitration and
Conciliation Treaties, in 1 Encyclopedia of Public International Law 28, 30 (1981).
105) Minutes of the First Session of the Committee on Arbitration and Security, 16 January
1928, L.N. Doc. C.667.M.225.1927.IX (1928), quoted in Sohn, The Function of International
Arbitration Today, 1963 Recueil des Cours 1, 35.
106) H. Mangoldt, Arbitration and Conciliation Treaties, in 1 Encyclopedia of Public International
Law 28, 31 (1981) (“In contrast to the astoundingly high number of general arbitration and
conciliation treaties concluded since the beginning of this century, the frequency of their
application to actual disputes is just as astoundingly low.”).
107) Sohn, The Function of International Arbitration Today, 1963 Recueil des Cours 1, 40.
108) PCA, 109th Annual Report, Annex 2 (2009). See also A. Stuyt, Survey of International
Arbitrations 1794-1989 (3d ed. 1990).
109) A. Stuyt, Survey of International Arbitrations 1794-1989231-467 (3d ed. 1990). See also Gray
& Kingsbury, Interstate Arbitration Since 1945: Overview and Evaluation, in M. Janis (ed.),
International Courts for the Twenty-First Century 60 (1992).
110) See Born, A New Generation of International Adjudication, 61 Duke L.J. 775 (2012); Charney,
Third Party Dispute Settlement and International Law, 36 Colum. J. Transnat’l L. 65, 68
(1997) (“While the establishment of the World Court was particularly significant, ad hoc
arbitrations…continue to be important [in the 20th century]”); Gray & Kingsbury, Inter-
State Arbitration Since 1945: Overview and Evaluation, in M. Janis (ed.), International
Courts for the Twenty-First Century 55 (1992); Merrills, The Mosaic of International Dispute
Settlement Procedures: Complementary or Contradictory, 54 Neth. Int’l L. Rev. 361 (2007);
A. Stuyt, Survey of International Arbitrations 1794-1989 (3d ed. 1990).
111) See alsoChapter 15.
112) See§§1.01[A][1]-[2], p. 9.
113) See§§1.01[A][1]-[2], p. 11.
114) See§1.01[A][4].
115) See§1.01[A][1], p. 9.
116) See C. Bishop, International Arbitral Procedure (1930); K. Carlston, The Process of
International Arbitration 3-33 (1946); Institute of International Law, Projet de règlement
pour la procédure arbitrale internationale (1875), available at www.idi-iil.org; J. Scott, The
Hague Peace Conferences of 1899 and 1907 286-303 (1909).
118) J. Ralston, International Arbitration From Athens to Locarno 77-78 (1929). See also K.
Carlston, The Process of International Arbitration 7 (1946) (noting that, in 19th century
arbitral practice, opening pleading was often designated “case” and was followed by
counter-case, or answer and reply); Institute of International Law, Projet de règlement
pour la procédure arbitrale internationale (1875), available at www.idi-iil.org. See§15.08.
119) J. Ralston, International Arbitration From Athens to Locarno 79-80 (1929). See also K.
Carlston, The Process of International Arbitration 26-27 (1946); Pietrowski, Evidence in
International Arbitration, 22 Arb. Int’l 373, 374-75 (2006); §§15.08[W] & [X]; §15.09[A].
120) See Institute of International Law, Projet de règlement pour la procédure arbitrale
internationale (1875), available at www.idi-iil.org. See also K. Carlston, The Process of
International Arbitration 260-64 (1946).
84
121) Pietrowski, Evidence in International Arbitration, 22 Arb. Int’l 373, 376-77 (2006) (noting
influence of 19th century arbitral procedure on draft arbitral code adopted by Institut
de Droit International in 1875, Hague Conventions of 1899 and 1907, Rules of the
Permanent Court of International Justice and International Court of Justice, and
International Law Commission’s 1958 Model Rules on Arbitral Procedure).
122) Similarly, as discussed below, regardless of the market, cultural context, or geographic
location, parties opted for means of international commercial arbitration that included
party nomination of co-arbitrators. See§1.01[B][3], p. 39; §1.01[B][8], pp. 62-63; §12.01[D],
pp. 1663-64.
124) J. Verzijl, VIII International Law in Historical Perspective 192-93 (1974).
125) Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179, 179 n.3 (1925-
1926) (citing authorities).
127) J. Ralston, International Arbitration From Athens to Locarno 178 (1929) (quoting A.
Mergnhac, Traité théorique et pratique de l’arbitrage international 40 (1895)).
129) U.S. Articles of Confederation, Art. IX (1781) (“[The two disputing States] shall then be
directed to appoint by joint consent, commissioners or judges to constitute a court for
hearing and determining the matter in question: but if they cannot agree, Congress shall
name three persons out of each of the United States, and from the list of such persons
each party shall alternately strike out one, the petitioners beginning, until the number
shall be reduced to thirteen; and from that number not less than seven, nor more than
nine names as Congress shall direct, shall in the presence of Congress be drawn out by
lot, and the persons whose names shall be so drawn or any five of them, shall be
commissioners or judges, to hear and finally determine the controversy, so always as a
major part of the judges who shall hear the cause shall agree in the determination….”).
130) Jay’s Treaty, Arts. V, VI, VII (1794), reprinted in H. Miller, II Treaties and Other International
Acts of the United States of America 1776-1863 245 (1931).
131) Convention for the Adjustment of Claims of Citizens of the United States of America Upon
the Government of The Mexican Republic, Arts. I, VII (1839), reprinted in H. Miller, IV
Treaties and Other International Acts of the United States of America 1776-1863 189 (1931).
132) J. Ralston, International Arbitration From Athens to Locarno 205-26 (1929) (including
Mexican pecuniary and boundary disputes; Chilean, Colombian, Ecuadorean, German,
Peruvian, Spanish and other pecuniary disputes; Norwegian shipping claims and a host
of other matters).
134) Treaty of Washington, Art. I (1871), reprinted in C. Bevans, XII Treaties and Other
135) Treaty of Washington, Art. XII (1871), reprinted in C. Bevans, XII Treaties and Other
136) J. Ralston, International Arbitration From Athens to Locarno 194-96 (1929). A leading
example of this involved disputes over the harvesting of fur seals on U.S. islands. Ibid.
139) 1899 Hague Convention, Art. 24; 1907 Hague Convention, Arts. 45, 54. See R. Caldwell, A
Study of the Code of Arbitral Procedure Adopted by the Hague Peace Conference of 1899
and 1907 (1921).
140) Statute of the PCIJ, Arts. 5, 6 (1920); Statute of the International Court of Justice, Arts. 5, 6
(1945). See generally S. Rosenne, III The Law and Practice of the International Court 1920-
2005 1079-89 (4th ed. 2006). See also§12.05[B][6].
141) Treaty of Arbitration Between Guatemala and Honduras (1930).
142) Agreement Establishing A Court of Arbitration for the Purpose of Carrying out the
Delimitation of Maritime Areas Between France and Canada, Art. 1 (1989), reprinted in
I.L.M. Background/Content Summary, 29 Int’l Legal Mat. 1 (1990).
143) Agreement Between the Government of the State of Eritrea and the Government of the
Federal Democratic Republic of Ethiopia (the “Algiers Agreement”) (2000), available at
www.pca-cpa.org.
144) Arbitration Agreement Between the Government of Sudan and the Sudan People’s
Liberation Movement/Army on Delimiting Abyei Area (2008), available at www.pca-
cpa.org.
145) Arbitration Agreement Between the Government of the Republic of Slovenia and the
Government of the Republic of Croatia (2009), available at www.vlada.si.
147) Agreement Between Lena Goldfields Company and Union of Soviet Socialist Republics,
U.N. Doc. A/CN.4/35, ¶28, reprinted in ILC, Memorandum on Arbitral Procedure, Prepared
by the Secretariat, II Y.B. I.L.C. 157, 162 (1950) (tribunal composed of two party-nominated
co-arbitrators and “the super-arbitrator…chosen by the two parties together by mutual
agreement” or appointment mechanism).
148) See§§1.01[B][3] & [8].
149) See§12.01[D]; §§12.03[A]-[B].
150) Shalakany, Arbitration and the Third World: A Plea for Reassessing Bias Under the Specter
of Neoliberalism, 41 Harv. Int’l L.J. 419, 430 (2000).
85
151) A. van den Berg, The New York Arbitration Convention of 1958 6 (1981). See alsoSornarajah,
The Climate of International Arbitration, 8(2) J. Int’l Arb. 47, 50-51 (1991) (“International
commercial arbitration, particularly in the field of foreign investment contracts,
developed principally in the latter part of the twentieth century.”); UNCTAD, Dispute
Settlement: International Commercial Arbitration 20 (2005) (“International commercial
arbitration as we know it today began in Continental Europe in the 1920s.”).
152) See§§1.01[A][2] & [5].
153) M. Bohacek, Arbitration and State-Organized Tribunals in the Ancient Procedure of the
Greeks and Romans 197-204 (1952); D. Roebuck, Ancient Greek Arbitration 46-47 (2001).
Indeed, “litigation” in many historical settings bore little resemblance to contemporary
processes, making the categorization of arbitration as “alternative” dispute resolution
misleading.
154) SeeLafont, L’arbitrage en Mésopotamie, 2000 Rev. arb. 557; D. Roebuck, Ancient Greek
Arbitration 23-25, 36-45 (2001); D. Roebuck & B. de Fumichon, Roman Arbitration 193
(2004).
155) D. Roebuck & B. de Fumichon, Roman Arbitration 193 (2004).
156) Pfeiffer & Speiser, One Hundred New Selected Nuzi Texts, in M. Burrows & E. Speiser
(eds.), XVI The Annual of The American Schools of Oriental Research 79, 95 (1936), cited in
L. Edmonson (ed.), Domke on Commercial Arbitration §2.1 (3d ed. 2010 & Update 2013).
See alsoLafont, L’arbitrage en Mésopotamie, 2000 Rev. arb. 557, 579-81 (describing
evidence of Assyrian merchants resolving commercial disputes through arbitration).
157) Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 158-60 (1957).
158) D. Roebuck, Ancient Greek Arbitration 45-46, 348-49, 358 (2001) (“Everywhere in the
Ancient Greek world, including Ptolemaic Egypt, and at all times within our period,
disputing parties considered arbitration to be a natural, perhaps the most natural,
method of resolving the differences they could not settle themselves, even though they
sometimes resorted to litigation (or in earlier times self-help) when they could not get
their own way.”).
159) Hammond, Arbitration in Ancient Greece, 1 Arb. Int’l 188 (1985) (citing Homer, The Iliad
XVIII 497-508). See also Aeschylus, Eumenides 433-753 (similar description of public
arbitration before distinguished arbitrators, from 460 B.C.); Herodotus, I Histories 96-98
(1858) (fictionalized exploits of Deioces as professional arbitrator); D. Roebuck, Ancient
Greek Arbitration 70-71 (2001) (citing description in Homer’s Odyssey 11.326 of Eriphyle as
arbitrator).
160) Bonner, The Institution of Athenian Arbitrators, 11 Classical Philology 191, 192 (1916);
Hammond, Arbitration in Ancient Greece, 1 Arb. Int’l 188, 189 (1985); D. Roebuck, Ancient
Greek Arbitration 348-49 (2001).
161) D. Roebuck, Ancient Greek Arbitration 348-49 (2001).
162) Demosthenes, Against Meidias, in Demosthenes Against Meidias, Androtion, Aristocrates,
Timocrates, Aristogeiton 69, 94 (1935). See also Velissaropoulos-Karakostas, L’arbitrage
dans la Grèce antique – Epoques archaïque et classique, 2000 Rev. arb. 9, 18-26 (outlining
arbitral procedure in Greece during fourth and fifth century B.C.).
163) D. Roebuck, Ancient Greek Arbitration 347-48 (2001) (“If the parties chose to submit their
disputes to private arbitration, then throughout the arbitration process they had almost
unlimited freedom of choice. By their agreement they controlled the subject-matter in
dispute, the selection of arbitrators, the limits of their jurisdiction, the rules of
procedure and even whether they should decide the issue according to the law or should
determine according to their sense of fairness.”).
164) D. Roebuck, Ancient Greek Arbitration 349 (2001) (where tribunal consisted of more than
one arbitrator, “each party would then appoint one, sometimes two, who would be
identified with that party’s interests either as a friend or member of the family. The
parties’ arbitrators would then appoint a koinos, someone common to both sides, who
took his place as an equal with the others.”).
165) D. Roebuck, Ancient Greek Arbitration 349 (2001) (“[C]ivil litigation in Athens, probably
throughout Greece, was the preserve of the rich.…The most common subjects [of
arbitration were] commercial in the widest sense and about property.”).
166) See D. Roebuck & B. de Fumichon, Roman Arbitration 94 (2004) (“The Romans probably
began to make use of arbitration ex compromisso, a private arbitration created and
controlled by the written agreement of the parties but supported by the praetor, at
some time in the second century BC, at a time of great imperial and colonial
expansion.”); §1.01[A][1], p. 10.
167) Stein, Arbitration Under Roman Law, 41 Arb. 203, 203-04 (1974). See also D. Roebuck & B.
de Fumichon, Roman Arbitration 194 (2004) (“Across a wide range of subject matter the
Romans had a selection of [dispute resolution] techniques.…[A]t their heart was a simple
idea which remained essentially the same. That idea was the appropriateness of private
arbitration, which included a whole toolbag of imaginable techniques, from which the
parties could choose whatever was appropriate for their dispute.”).
168) Digest, 2, 4, 8, 27 (Ulpian), in S. Scott (ed.), III The Civil Law (1932).
169) R. Zimmermann, The Law of Obligations 529 (1996). See also Coing, Zur Entwicklung des
Schiedsvertrages im Ius Commune in G. Baumgärtel et al. (eds.), Festschrift für Heinz
Hübner 35 (1984).
170) M. Kaser & K. Hackl, Das römische Zivilprozessrecht 640 (2d ed. 1996); Matthias, Die
Entwicklung des römischen Schiedsgerichts, in Festschrift zum fünfzigjährigen
Doctorjubiläum von Bernhard Windscheid 102 (1888).
86
171) Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 158-60 (1957).
172) D. Roebuck & B. de Fumichon, Roman Arbitration 199 (2004) (“[T]he Roman practice [in
arbitration] was much like ours today, particularly in those jurisdictions whose
arbitration law has followed the Roman law on compromissum. The documents that
survive are quite familiar to the modern practitioner, the arbitrator’s crisp summons to
the parties in Puteoli, and the awards from Dioscorus’s files, whose otiose drafting makes
the purist’s spirits sink.”).
173) Digest, 4, 8, 15, 32 (Paulus), in S. Scott (ed.), III The Civil Law (1932); Stein, Labeo’s
Reasoning on Arbitration, 91 S. African L.J. 135 (1974); R. Zimmermann, The Law of
Obligations 513-14 (1996) (“the arbitrator can act only on the basis of a contractual
relationship (sui generis) existing between himself and the parties to the dispute”).
174) R. Zimmermann, The Law of Obligations 529 (1996). See also Coing, Zur Entwicklung des
Schiedsvertrages im Ius Commune, in G. Baumgärtel et al. (eds.), Festschrift für Heinz
Hübner 35-36 (1984).
175) D. Roebuck & B. de Fumichon, Roman Arbitration 160 (2004) (“The parties controlled the
scope of the arbiter’s powers to dictate the form of the proceedings.”).
176) Stein, Arbitration Under Roman Law, 41 Arb. 203, 205 (1974). Professor Stein describes the
use of three-person tribunals, where disputes were resolved by majority vote. Ibid. See
also§12.02[E].
177) M. Kaser & K. Hackl, Das römische Zivilprozessrecht 639 (2d ed. 1996); Litewski,
Schiedsgerichtsbarkeit nach den ältesten ordines iudiciarii, in N. Brieskorn et al. (eds.),
Vom mittelalterlichen Recht zur neuzeitlichen Rechtswissenschaft 198 (1994) (Roman-
canonic law of 11th through 13th century); Matthias, Die Entwicklung des römischen
Schiedsgerichts, in Festschrift zum fünfzigjährigen Doctorjubiläum von Bernhard
Windscheid 102 (1888). The parties, however, apparently had no direct claim against the
arbitrator to perform his undertaking. Bornhak, Schiedsvertrag und Schiedsgericht nach
geschichtlicher Entwicklung und geltendem Recht, 30 Zeitschrift für deutschen Zivilprozeβ
1, 13 (1902); R. Zimmermann, The Law of Obligations 514 (1996).
178) D. Roebuck & B. de Fumichon, Roman Arbitration (2004); F. Sanborn, Origins of the Early
English Maritime and Commercial Law 8-9 (1930); Stein, Arbitration Under Roman Law, 41
Arb. 203, 203-04 (1974).
179) D. Roebuck & B. de Fumichon, Roman Arbitration 105 (2004).
180) D. Roebuck & B. de Fumichon, Roman Arbitration 98 (2004) (“A compromissum contained
a number of promises: to choose and appoint an arbitrator; to commit the matter to
him; to participate in the process; to perform whatever the award required; and to pay a
penalty in default of performance of any of those promises.”); Stein, Arbitration Under
Roman Law, 41 Arb. 203, 203-05 (1974); R. Zimmermann, The Law of Obligations 526 (1996)
(“The mere agreement to submit to arbitration was not binding under classical law”;
“[T]he parties could make their arrangement indirectly enforceable by means of two
(non-genuine) stipulationes poenae. Each of the parties had to promise a penalty; a
unilateral stipulationes poenae did not give rise to a valid compromissum.”).
181) Compare D. Roebuck & B. de Fumichon, Roman Arbitration 126-27 (2004) (exclusivity of
arbitration).
182) R. David, Arbitration in International Trade 84-85 (1985); D. Roebuck & B. de Fumichon,
Roman Arbitration 121-24 (2004).
183) See§§1.01[B][3]-[6].
184) SeeChapter 3.
185) K.-H. Ziegler, Das private Schiedsgericht im antiken römischen Recht 199-201 (1971).
186) K.-H. Ziegler, Das private Schiedsgericht im antiken römischen Recht 182 (1971); R.
Zimmermann (ed.), The Law of Obligations 527 (1996).
187) Ziegler, Geschichtliche und dogmatische Aspekte des Schiedsvertrages, in R. Zimmermann
(ed.), Rechtsgeschichte und Privatrechtsdogmatik 671 et seq. (1999).
188) M. Kaser & K. Hackl, Das römische Zivilprozessrecht 643 (2d ed. 1996). By 330 A.D., there
seems to have been episcopal jurisdiction (as opposed to contract-based arbitration).
By the end of the 4th century, however, Roman legislation limited episcopal jurisdiction
to religious disputes, while commercial disputes could be referred to a bishop based
only on the parties’ agreement. B. Matthias, Die Entwicklung des römischen
Schiedsgerichts in Festschrift zum fünfzigjährigen Doctorjubiläum von Bernhard
Windscheid 132, 144 (1888).
189) K.-H. Ziegler, Das private Schiedsgericht im antiken römischen Recht 175 (1971).
190) Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 161-62 (1957); Modrzejewski, Private
Arbitration in the Law of Greco-Roman Egypt, 6 J. Juristic Papyrology 239 (1952); R.
Taubenschlag, The Law of Greco-Roman Egypt in the Light of Papyri 372-75, 377 (1944).
Compare T. Gagos & P. van Minnen, Settling A Dispute: Toward A Legal Anthropology of
Late Antique Egypt 32-35, 121-27 (1994) (suggesting that arbitration was used, but less
frequently than mediation, in 3rd- to 7th-century Egypt).
191) W. Crum & G. Steindorff, Koptische Rechtsurkunden aus Djeme 835-37 (1912), quoted in
Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 162 (1957).
192) See§§1.02[B][5] & [7].
193) Wolaver, The Historical Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132, 133
(1934-1935).
194) See§1.01[A][2].
195) See R. David, Arbitration in International Trade 85-86 (1985); D. Roebuck, Mediation and
Arbitration in the Middle Ages: England 1154-1558 (2012).
87
196) Before the development of the common law, arbitration appears to have been popular
among the Anglo-Saxons. See, e.g., Baker, From Lovedays to ADR: Arbitration and Dispute
Resolution in England 1066-1800, 3(5) Transnat’l Disp. Mgt 1 (2006); Murray, Arbitration in
the Anglo-Saxon and Early Norman Periods, 16 Arb. J. 193 (1961); Roebuck, L’arbitrage en
droit anglais avant 1558, 2002 Rev. arb. 535; D. Roebuck, Mediation and Arbitration in the
Middle Ages: England 1154-1558 (2012).
197) J. Cohen, Commercial Arbitration and the Law 4 (1918).
198) F. Pollock & F. Maitland, The History of English Law 668 (2d ed. 1898). For a less expansive
view, see A. Carter, A History of English Legal Institutions 258-59 (1902) (“Members of the
same gild were bound to bring their disputes before the gilds before litigating the
matter elsewhere.”).
199) SeeRoebuck, L’arbitrage en droit anglais avant 1558, 2002 Rev. arb. 535, 567-76.
200) W. Blackstone, III Commentaries on the Laws of England 33 (1768), quoted in Wolaver, The
Historical Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132, 136 (1934-1935). See
also Baker, From Lovedays to ADR: Arbitration and Dispute Resolution in England 1066-
1800, 3(5) Transnat’l Disp. Mgt 1 (2006) (describing Medieval arbitrations in England
involving Italian merchants).
201) Baker, From Lovedays to ADR: Arbitration and Dispute Resolution in England 1066-1800,
3(5) Transnat’l Disp. Mgt 1 (2006) (distinction between arbitration, conciliation and
miscellaneous public courts was unclear in Medieval England); Wolaver, The Historical
Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132, 137 (1934-1935).
202) G. Malynes, Consuetudo, vel, Lex Mercatoria, or The Ancient Law Merchant: Divided Into
Three Parts: According to the Essentials Parts of Trafficke: Necessarie for All Statesmen,
Judges, Magistrates, Temporal and Civil Lawyers, Mint-men, Merchants, Mariners, and All
Others Negotiating in all Places of the World Chp. XV (1622). See also id. at Chp. XV (3d. ed.
1685) (“when Merchants by their Letters or Commissions use these or the like words, Let
All things be done as shall be thought most expedient or convenient, that the said
Commissions or Directions are to be left to the interpretation of Arbitrators when any
question ariseth, which is also in many more questions concerning Merchants”).
203) Simpson, The Penal Bond With Conditional Defeasance, 82 L.Q. Rev. 392 (1966).
204) Roebuck, L’arbitrage en droit anglais avant 1558, 2002 Rev. arb. 535, 563-65 (“The judges
increasingly accepted that not only an award but also an arbitration agreement or even
a mere agreement that would arrange to compromise could prevent a claim in a
tribunal.”); D. Roebuck, Mediation and Arbitration in the Middle Ages: England 1154-1558
371-80 (2012).
205) Roebuck, L’arbitrage en droit anglais avant 1558, 2002 Rev. arb. 535, 556; D. Roebuck,
Mediation and Arbitration in the Middle Ages: England 1154-1558 384-87 (2012).
206) R. David, Arbitration in International Trade 88-89 (1985).
207) D. Bell, Lawyers and Citizens: The Making of A Political Elite in Old Regime France 31 (1994);
Castan, The Arbitration of Disputes Under the “Ancien Regime”, in J. Bossy (ed.), Disputes
and Settlements: Law and Human Relations in the West 234-35, 253-54 (1983) (arbitration
of various types of social disputes); R. David, Arbitration in International Trade 88-89
(1985); Kessler, Enforcing Virtue: Social Norms and Self-Interest in An Eighteenth-Century
Merchant Court, 22 Law & Hist. Rev. 71, 82-86 (2004).
208) Bader, Arbiter arbitrator seu amicabilis compositor, 77 Zeitschrift für Rechtsgeschichte
Kan. Abt. 239, 240 et seq. (1960); H. Krause, Die geschichtliche Entwicklung des
Schiedsgerichtswesens in Deutschland 36 et seq., 52 (1930).
209) H. Krause, Die geschichtliche Entwicklung des Schiedsgerichtswesens in Deutschland 2 et
seq., 40 et seq. (1930).
seq. (1930).
211) See Bader, Arbiter arbitrator seu amicabilis compositor, 77 Zeitschrift für Rechtsgeschichte
Kan. Abt. 239, 240 et seq. (1960).
212) M. Kobler, Das Schiedsgerichtswesen nach bayerischen Quellen des Mittelalters 107-08
(1966).
213) See Bader, Arbiter arbitrator seu amicabilis compositor, 77 Zeitschrift für Rechtsgeschichte
Kan. Abt. 239, 240 et seq. (1960).
214) H. Krause, Die geschichtliche Entwicklung des Schiedsgerichtswesens in Deutschland 4, 31,
35-36, 52 (1930).
215) H. Krause, Die geschichtliche Entwicklung des Schiedsgerichtswesens in Deutschland 33
(1930).
216) R. Zimmermann, The Law of Obligations 529 (1996).
217) R. Zimmermann, The Law of Obligations 528 (1996).
218) Coing, Zur Entwicklung des Schiedsvertrages im Ius Commune 35 et seq., in G. Baumgärtel
et al. (eds.), Festschrift für Heinz Hübner (1984); R. Zimmermann, The Law of Obligations
529 (1996).
219) There are records of arbitral tribunals composed of German academics trained in Italy
as early as the 14th century. M. Kobler, Das Schiedsgerichtswesen nach bayerischen
Quellen des Mittelalters 113-14 (1966); A. Lindheim, Das Schiedsgericht im modernen
Civilprocesse 14 (1891).
88
220) H. Krause, Die geschichtliche Entwicklung des Schiedsgerichtswesens in Deutschland 48, 54
(1930); K. Kroeschell, Deutsche Rechtsgeschichte 2 (1250-1650) 34 (8th ed. 1992); R.
Zimmermann, The Law of Obligations 529 (1996) (in European Middle Ages, arbitrator
responsible for deciding dispute was “bound to follow the rules of civil procedure (‘Nam
arbiter est, quem partes eliguant ad cognoscendum de quaestione, vel lite’) and had to
apply law (‘Arbiter debet sequi iuris rigorem, et aequitatem scriptam’)”).
221) It is sometimes suggested that parties turned to canonical arbitration for sophisticated
answers that customary German law could not offer. M. Kobler, Das Schiedsgerichtswesen
nach bayerischen Quellen des Mittelalters 49 (1966); A. Lindheim, Das Schiedsgericht im
modernen Civilprocesse 14 (1891).
seq. (1930).
223) H. Krause, Die geschichtliche Entwicklung des Schiedsgerichtswesens in Deutschland 48, 54
(1930).
224) M. Bloch, Feudal Society 359 (1961) (emphasis added).
225) Adams, The Anglo-Saxon Courts of Law, in H. Adams et al. (eds.), Essays in Anglo-Saxon
Law 1, 26-27, 53 (1876).
226) See§1.01[B][5], pp. 45-50; Benson, An Exploration of the Impact of Modern Arbitration
Statutes on the Development of Arbitration in the United States, 11 J. L. Econ. & Org. 479,
480 n.2, passim (1995).
227) Vynior v. Wilde [1609] 77 ER 595 (English K.B.). Earlier English decisions had commented
favorably on the use of arbitration to reduce litigation and resolve disputes. Cook v.
Songate [1588] 4 Leon 31 (English K.B.).
228) Vynior v. Wilde [1609] 77 ER 595, 598-600 (English K.B.) (emphasis added).
229) See, e.g., J. Cohen, Commercial Arbitration and the Law 84 et seq. (1918); Roebuck, The
Myth of Judicial Jealousy, 10 Arb. Int’l 395, 400-01 (1994); Wolaver, The Historical
Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132, 138-41 (1934-1935).
230) See§§1.01[B][1]-[2].
231) R. David, Arbitration in International Trade 109 (1985) (noting willingness of English courts
to enforce penalty provisions); W. Holdsworth, 12 A History of English Law 519-20 (2d ed.
1966) (discussing legal distinction between penalty clauses and liquidated damages);
Roebuck, The Myth of Judicial Jealousy, 10 Arb. Int’l 395 (1994).
232) An Act for the Better Preventing Frivolous and Vexatious Suits, 1697, 8 & 9 Will. III, Chp. 11.
See also Mann, The Formalization of Informal Law: Arbitration Before the American
Revolution, 59 N.Y.U. L. Rev. 443, 459 n.66 (1984) (noting that Act responded in part to
equity courts’ increasing refusal to enforce penalty clauses beyond amount of actual
damages).
233) Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 4 (1999).
234) English Civil Procedure Act, 1698, 9 & 10 Will. III, Chp. 15 (emphasis added). See also S.
Kyd, A Treatise on the Law of Awards (2d ed. 1799).
235) English Civil Procedure Act, 1698, 9 & 10 Will. III, Chp. 15.
236) W. Blackstone, III Commentaries on the Laws of England 16-17 (1768). It appears that use
of the 1698 Arbitration Act was limited, because of reluctance to invoke the contempt
authority of English courts. Samuel, Arbitration Statutes in England and the USA, 8 Arb. &
Disp. Res. L.J. 2, 4 (1999). As noted elsewhere, the use of commercial, professional and
other forms of non-legal influence appears to have played a more significant role in
enforcing arbitration agreements and awards during this era. See§1.01[B][5], pp. 45-50;
N.Y.U. L. Rev. 443, 459 n.66 (1984).
237) See Doleman & Sons v. Ossett Corp. [1912] 3 KB 257, 267-68 (English Ct. App.).
238) Kill v. Hollister [1746] 95 ER 532, 532 (English K.B.).
239) See§1.01[B][5].
240) English Civil Procedure Act, 1833, 3 & 4 Will. IV, Chp. 42, §§39-41.
241) Scott v. Avery [1856] 5 H.L. Cas. 811, 853 (House of Lords).
242) Scott v. Avery [1856] 5 H.L. Cas. 811, 853 (House of Lords).
243) Russell v. Pellegrini [1856] 6 E. & B. 1020, 1025 (English Q.B.).
244) Scott v. Avery [1856] 5 H. L. Cas. 811, 853 (House of Lords). Compare Roebuck, The Myth of
Judicial Jealousy, 10 Arb. Int’l 395 (1994).
245) Horowitz & Oldham, John Locke, Lord Mansfield and Arbitration During the Eighteenth
Century, 36 (I) The Historical Journal 137 (1993) (concluding that common law hostility to
arbitration was not significant); Roebuck, The Myth of Judicial Jealousy, 10 Arb. Int’l 395,
403-04 (1994) (concluding that early English courts were not hostile to arbitration).
246) See§1.04[B][1][d].
247) English Common Law Procedure Act, 1854, 17 & 18 Vict., Chp. 125. See Samuel, Arbitration
Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 6 (1999).
248) English Common Law Procedure Act, 1854, 17 & 18 Vict., Chp. 125, §17 (“Every agreement
for submission to arbitration by consent, whether by deed or instrument in writing not
under seal may be made a rule of any one of the superior courts of law or equity at
Westminster, on the application of any party thereto, unless such agreement or
submission contain words purporting that the parties intend that it should not be made
a rule of court.”).
249) English Common Law Procedure Act, 1854, 17 & 18 Vict., Chp. 125, §4. The Act also required
arbitrators to issue their awards within three months of their appointment, unless the
parties or a superior court judge agreed to extend the time limit. Id. at §15.
89
250) See Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 6 (1999)
(“The 1889 Arbitration Act can be regarded as the first modern arbitration statute in the
common law world.”).
251) English Arbitration Act, 1889, 52 & 53 Vict., Chp. 49 (arbitration agreement is irrevocable,
unless otherwise indicated).
252) English Arbitration Act, 1889, 52 & 53 Vict., Chp. 49, §4.
253) English Arbitration Act, 1889, 52 & 53 Vict., Chp. 49, §§5, 8, 10, 19.
254) Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2 (1999). The
1889 Act was amended in 1934, in light of the Geneva Protocol and Geneva Convention.
See id. at 13; §§1.01[C][1]-[2].
255) See§1.04[B][1][d].
256) Cf. Re Shaw and Sims [1851] 17 LTOS 160 (English Bail Ct.) (arbitrators may be chosen by
lot). But see Harris v. Mitchell [1704] 2 Vern. 485 (English Ct. Ch.) (selection of umpire by
lot rendered his appointment and award invalid).
There is also some evidence that women served as arbitrators at the time. S. Kyd, A
Treatise on the Law of Awards 70-71 (2d ed. 1799) (“an unmarried woman may be an
arbitratrix”).
257) Baker, From Lovedays to ADR: Arbitration and Dispute Resolution in England 1066-1800,
3(5) Transnat’l Disp. Mgt 1, 5 (2006) (advantage of 13th century arbitration: “the parties
could nominate their own arbitrators with an umpire in case of disagreement”); R.
Merkin, Arbitration Law ¶12.2 n.2 (1991 & Update August 2013). See also Doley v. Pitstow
[1755] 96 ER 859 (English K.B.); Elliott v. Chevall [1699] 125 ER 284 (English Common Pleas).
258) An “umpire” typically presided over deliberations between two party-nominated
arbitrators who were expected to function as quasi-advocates for their nominating
parties. See§12.02[E].
259) See§1.04[B][1][d]; §11.03[E][1][b]. There is historical evidence suggesting that legal
formalities had made occasional in-roads even in early English arbitration, provoking
complaints from arbitration users. R. Henryson, The Tale of the Sheep and the Dog,
reprinted in 7 Arb. Int’l 66 (1991).
260) See§1.01[B][2].
261) M. de Boisséson, Le droit français de l’arbitrage interne et international ¶8 (2d ed. 1990)
(quoting Thouret, Member of Constituent Assembly).
262) Law of 16-24 August 1790, Art. 1 (“As arbitration is the most reasonable means of
terminating disputes between citizens, the legislators shall not make any provision that
would diminish either the favor or the efficiency of an arbitration agreement.”).
263) French Constitution of Year I, 1793, Art. 86; French Constitution of Year III, 1795, Art. 210
(“The right to chose arbitrators in any dispute shall not be violated in any way
whatsoever.”). See Clère, L’arbitrage révolutionnaire: apogée et déclin d’une institution
(1790-1806), 1981 Rev. arb. 3, 5-6; Hilaire, L’arbitrage dans la période moderne (XVIe-XVIIIe
siècle), 2000 Rev. arb. 187.
264) Clére, L’arbitrage révolutionnaire: apogée et déclin d’une institution (1790-1806), 1981 Rev.
arb. 3, 21-23; R. David, Arbitration in International Trade 90 (1985). This perception
apparently arose from the use of compulsory arbitration in a wide range of civil disputes
(including domestic relations, inheritance and similar areas).
265) Articles 1003 to 1028 of the 1806 Code of Civil Procedure introduced an extremely
unfavorable legal regime for arbitration. See Clére, L’arbitrage révolutionnaire: apogée et
déclin d’une institution (1790-1806), 1981 Rev. arb. 3; M. de Boisséson, Le droit français de
l’arbitrage interne et international ¶¶8-11 (2d ed. 1990).
266) French Code of Civil Procedure, 1806, Art. 1006; R. David, Arbitration in International Trade
90 (1985); M. de Boisséson, Le droit français de l’arbitrage interne et international ¶¶8-11
(2d ed. 1990).
267) French Commercial Code, 1804, Arts. 51-63, 332; M. de Boisséson, Le droit français de
l’arbitrage interne et international ¶10 (2d ed. 1990).
268) R. David, Arbitration in International Trade 90 (1985) (quoting Bellot).
269) M. Bourbeau, Procedure civile, Tome VI 422 (1837-1863), quoted in Rubbelin-Devichi &
Loquin, JurisClasseur Proc. civ., Fasc. 1010 ¶19.
270) Mounier, Rapport Rigaud, sur le projet de loi relative à l’arbitrage forcé, 1856 Dalloz 113.
271) Judgment of 10 July 1843, Cie L’Alliance v. Prunier, 1843 Dalloz 561 (French Cour de
cassation civ.), reprinted in 1992 Rev. arb. 399.
272) J.-L. Delvolvé, J. Rouche & G. Pointon, French Arbitration Law and Practice ¶8 (2d ed.
2009); Remarks by Avocat Général Hello regarding Judgment of 10 July 1843, Cie L’Alliance
v. Prunier (French Cour de cassation civ.), 1992 Rev. arb. 399, 400 (“The obligation to
nominate arbitrators in the arbitration agreement aims at avoiding incidents and
proceedings regarding the composition of an arbitral tribunal, and mainly at warning the
citizens against their own silliness, which would lead them to subscribe too easily and
without anticipation to future arbitrations, without being assured of having capable and
trustworthy persons as voluntary judges.”). See also§5.01[D].
273) Judgment of 10 July 1843, Cie L’Alliance v. Prunier, 1843 Dalloz 561 (French Cour de
cassation civ.), reprinted in 1992 Rev. arb. 399.
274) See§1.04[B][1][b].
275) See§1.04[B][1][b]; French Commercial Code, 1925, Art. 631.
276) See§1.01[A][3].
90
277) Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 7 (1999)
(“baleful influence of the common law”).
278) See Benson, An Exploration of the Impact of Modern Arbitration Statutes on the
Development of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 481-82 (1995);
N.Y.U. L. Rev. 443 (1984) [this is the current subsection].
279) See§§1.04[B][1][e][i]-[iv].
280) J. Auerbach, Justice Without Law? 32 (1983); Jones, Three Centuries of Commercial
Arbitration in New York: A Brief Survey, 1956 Wash. U. L.Q. 193, 195 (1956). While the label
“arbitrator” was used, the early Dutch colonial arrangements appear not to have been
arbitration as generally referred to today. As in some other historical settings,
arbitration was sometimes used to refer to a type of specialized court procedure with
mandatory jurisdiction.
281) Jones, Three Centuries of Commercial Arbitration in New York: A Brief Survey, 1956 Wash. U.
L.Q. 193, 196 (1956) (quoting Daly, History of the Court of Common Pleas, in 1 Smith xxix
(N.Y.C.P. 1855)).
282) Aiken, New Netherlands Arbitration in the 17th Century, 29 Arb. J. 145 (1974); A. Flick (ed.), 3
History of the State of New York 14-16 (1933) (noting influence of Dutch practice on
colonial New York under English rule); Jones, Three Centuries of Commercial Arbitration in
New York: A Brief Survey, 1956 Wash. U. L.Q. 193, 197-98 (1956).
L.Q. 193, 198 (1956). See also Mann, The Formalization of Informal Law: Arbitration Before
the American Revolution, 59 N.Y.U. L. Rev. 443, 472 (1984) (arbitration widely used to
resolve commercial disputes in 17th and 18th century).
284) Aiken, New Netherlands Arbitration in the 17th Century, 29 Arb. J. 145 (1974); Benson, An
Exploration of the Impact of Modern Arbitration Statutes on the Development of
Arbitration in the United States, 11 J. L. Econ. & Org. 479, 481-82 (1995); Conklin, Lost
Options for Mutual Gain? The Lawyer, The Layperson, and Dispute Resolution in Early
America, 28 Ohio St. J. Disp. Res. 581 (2013); Konig, Law and Society in Puritan
Massachusetts: Essex County 1629-1692 108-16 (1979) (arbitration used “often and
effectively in the early years of settlement”); Mann, The Formalization of Informal Law:
Arbitration Before the American Revolution, 59 N.Y.U. L. Rev. 443, 447, 452 (1984) (“Along
with other legal traditions, arbitration was part of the cultural baggage of the trans-
Atlantic migration”; “there is no reason to doubt that arbitration was an accepted form
of adjudicating disputes in Connecticut before 1680”); Odiorne, Arbitration Under Early
New Jersey Law, 8 Arb. J. 117 (1953).
L.Q. 193, 202 (1956) (quoting N.Y. Weekly Post-Boy, 20 May 1751). See also J. Higgins,
Sampson Against the Philistines, or the Reformation of Lawsuits 37 (2d ed. 1805) (early
19th-century pamphlet reporting on popularity of arbitration: “so strong is the
predilection of men in favor of adjustment by reference, and so convenient is that mode
of terminating disputes, which have stood years in courts, been found to courts and
suitors, that in some states more judgments of courts are given on reports of referees
than on verdicts of juries”); Mann, The Formalization of Informal Law: Arbitration Before
the American Revolution, 59 N.Y.U. L. Rev. 443, 454 (1984) (“[Arbitration] was expeditious
and inexpensive. It was also less public and less adversarial than litigation.”).
L.Q. 193, 213-14 (1956).
L.Q. 193, 211-18 (1956).
288) Benson, An Exploration of the Impact of Modern Arbitration Statutes on the Development
of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 481-85 (1995).
of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 482 (1995).
L.Q. 193, 218 (1956).
291) L. Edmonson (ed.), Domke on Commercial Arbitration §§2.6 to 2.9 (3d ed. 2010 & Update
2013); Gwynne, The Oldest American Tribunal, 1 Arb. J. 117, 120 (1937); Mann, The
Formalization of Informal Law: Arbitration Before the American Revolution, 59 N.Y.U. L.
Rev. 443 (1984); Odiorne, Arbitration Under Early New Jersey Law, 8 Arb. J. 117 (1953).
292) J. Higgins, Sampson Against the Philistines, or the Reformation of Lawsuits 32 (2d ed. 1805).
293) M. Horwitz, The Transformation of American Law, 1780-1860 151 (1977) (noting that Quaker
doctrine urged that business disputes “should be settled in a Christian manner.
Therefore…no member should appeal to law; but…he should refer his difference to
arbitration by persons of exemplary character in the Society.”) (quoting T. Clarkson, 2 A
Portraiture of Quakerism 56 (1808)).
294) L. Friedman, A History of American Law 13 (3d ed. 2005). These “arbitrations” were
deemed as “valid as the judgments of the Courts of Justice.” Ibid. (quoting E. Bronner,
William Penn’s “Holy Experiment” 36 (1962)).
295) J. Auerbach, Justice Without Law? 25 (1983).
296) Groendyk v. Winsmore, reprinted in L. de Valinger (ed.), Court Records of Kent County,
Delaware, 1680-1705 4-5 (1959).
91
297) An Act for the More Easy and Effectually Finishing of Controversies by Arbitration, 1753, in
C. Hoadley (ed.), 10 The Public Records of the Colony of Connecticut 201-02 (1877)
(modeled on English Arbitration Act, 1698; permitting arbitration agreements to be
made a rule of court, with awards enforceable through contempt power of court). See
N.Y.U. L. Rev. 443 (1984).
Earlier Connecticut legislative enactments had encouraged resort to arbitration,
including a statement of approval in the first meeting of the Connecticut legislation (in
1645). J. Trumbull (ed.), 1 The Public Records of the Colony of Connecticut 117
(“unnecessary tryalls by Jury…might be prevented if arbitrations were attended in a
more private way”).
298) I Laws of the State of New York, 1802, Chp. XX, 1-23 (14th Sess.). Similar legislation was
proposed by some commentators at the time. See B. Austin, Observations on the
Pernicious Practice of the Law as Published Occasionally in the Independent Chronicle
(1796) (criticism of litigation and proposals for arbitration); J. Higgins, Sampson Against
the Philistines, or the Reformation of Lawsuits 41, 95 (2d ed. 1805) (proposing legislation
entitling either party to require resolution of disputes by arbitration).
299) Mann, The Formalization of Informal Law: Arbitration Before the American Revolution, 59
N.Y.U. L. Rev. 443, 458-60 (1984) (colonists used arbitration deeds, conditioned bonds
and promissory notes in late 17th century and 18th century Connecticut to make
arbitration agreements and awards enforceable).
300) 1793 Insurance Company of North American Insurance Policy, quoted in Wimm & Davis,
Arbitration of Reinsurance Disputes: Is There A Better Way?, 59 Disp. Res. J. 22, 22 (2004).
See also Arbitration Award, May 14, 1733, Gillette v. Hosford, 12 Connecticut Archives,
Private Controversies 39 (2d Ser. 1735) (arbitration agreed “for the freindly [sic] ending
and appeasing of differences and controvercies”), quoted in Mann, The Formalization of
Informal Law: Arbitration Before the American Revolution, 59 N.Y.U. L. Rev. 443, 463 (1984).
301) J. Auerbach, Justice Without Law? 19-46 (1983); Benson, An Exploration of the Impact of
Modern Arbitration Statutes on the Development of Arbitration in the United States, 11 J. L.
Econ. & Org. 479, 488 (1995) (“arbitration was being developed and expanded under the
auspices of trade associations, mercantile exchanges, and other commercial
organizations where nonlegal sanctions apparently were relatively strong”); Bernstein,
Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry,
21 J. Legal Studies 115 (1992). See also Conklin, Transformed, Not Transcended: The Role of
Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey, 48 Am. J. Legal
Hist. 39 (2006).
302) See§1.01[B][5], pp. 45-50.
303) Home Ins. Co. v. Morse, 87 U.S. 445, 451 (U.S. S.Ct. 1874); Robert Lawrence Co. v. Devonshire
Fabrics, Inc., 271 F.2d 402, 406 (2d Cir. 1959) (discussing U.S. courts’ hostility to
arbitration); J. Cohen, Commercial Arbitration and the Law 226-52 (1918); Sayre,
Development of Commercial Arbitration Law, 37 Yale L.J. 595, 595-97 (1927-1928).
304) Tobey v. County of Bristol, 23 F.Cas. 1313, 1321-22 (C.C.D. Mass. 1845). See also§5.01[A].
305) Thomas W. Finucane Co. v. Bd of Educ. of Rochester, 82 N.E. 737 (N.Y. 1907).
306) See, e.g., Restatement (First) Contracts §550 (1932) (“only nominal damages are
recoverable for its breach”); Aktieselskabet Korn-Og Foderstof Kompagniet v.
Rederiaktiebolaget Atlanten, 250 F. 935, 937 (2d Cir. 1918) (breach of arbitration
agreement yields only “nominal damages” unless arbitral expenses have actually been
incurred); Munson v. Straits of Dover S.S. Co., 99 F. 787, 789 (S.D.N.Y. 1900) (“no case is to
be found in which…any other than nominal damages have ever been indicated to be
recoverable, because too loose, indefinite and incapable of verification”), aff’d, 100 F.
1005 (2d Cir. 1900); Sayre, Development of Commercial Arbitration Law, 37 Yale L.J. 595,
604-05 (1927-1928). See also Doleman & Sons v. Ossett Corp. [1912] 3 KB 257, 267-68
(English Ct. App.) (“It will be evident, however, that the remedy in damages must be an
ineffective remedy in cases where the arbitration had not been actually entered into, for
it would seem difficult to prove any damages other than nominal.”); Tan, Damages for
Breach of Forum Selection Clauses, Principled Remedies, and Control of International Civil
Litigation, 40 Tex. Int’l L.J. 623 (2004-2005) (discussing conflicting authority on
availability of damages for breach of forum selection clause). See also§8.03[C][7].
307) See§1.01[B][3].
308) See§1.01[B][4].
309) J. Story, 1 Commentaries on Equity Jurisprudence as Administered in England and America
§670 (13th ed. 1886).
92
310) J. Story, 2 Commentaries on Equity Jurisprudence as Administered in England and America
§1457 (13th ed. 1886) (citing Kill v. Hollister and its English progeny). See also The Hope, 35
U.S. 138 (U.S. S.Ct. 1836) (relying on doctrine of “ousting courts of jurisdiction” to hold
that agreement to arbitrate did not bar civil litigation); Parsons v. Ambos, 48 S.E. 696,
697 (Ga. 1904) (“The mere executory agreement to submit is generally revocable.
Otherwise, nothing would be easier than for the more astute party to oust the courts of
jurisdiction. By first making the contract and then declaring who should construe it, the
strong could oppress the weak, and in effect so nullify the law as to secure the
enforcement of contracts usurious, immoral or contrary to public policy.”).
The broad declaration that arbitration agreements were unenforceable as contrary to
public policy was also reflected in contemporaneous U.S. decisions regarding forum
selection agreements. See G. Born & P. Rutledge, International Civil Litigation in United
States Courts 462-63 (5th ed. 2011).
311) Blodgett Co. v. Bebe Co., 214 P. 38, 39 (Cal. S.Ct. 1923) (“Judges and commentators have
ascribed the origin of the rule to the jealousy of courts in the matter of their power and
jurisdiction and have been somewhat inclined to criticize it on that ground. Another and
better ground assigned for it is that citizens ought not to be permitted or encouraged to
deprive themselves of the protection of the courts by referring to the arbitrament of
private persons or tribunals, in no way qualified by training or experience to pass upon
them, questions affecting their legal rights.”); Cocalis v. Nazlides, 139 N.E. 95, 96 (Ill. 1923).
See also§5.01[A].
312) See Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 982-86 (2d Cir. 1942), for
a detailed (and influential) historical review of the enforceability of arbitration
agreements at common law. See also S. Rep. No. 536, 68th Cong., 1st Sess. 2-3 (1924)
(“[judges’] jealousy of their rights as courts, coupled with the fear that if arbitration
agreements were to prevail and be enforced, the courts would be ousted of much of
their jurisdiction”); Arbitration of Interstate Commercial Disputes: Joint Hearings on S. 1005
and H.R. 646 Before the Subcommissions of the Commissions on the Judiciary, 68th Cong. 21
(1924).
313) Meacham v. Jamestown, Franklin and Clearfield. R.R., 211 N.Y. 346, 354 (N.Y. 1914) (Cardozo,
J., concurring). See also Prince Steam-Shipping Co. v. Lehman, 39 F. 704, 704 (S.D.N.Y. 1889)
(“Such agreements have repeatedly been held to be against public policy and void.”);
Wood v. Humphrey, 114 Mass. 185, 186 (Mass. 1873) (“It has been long settled that
agreements to arbitrate which entirely oust the courts of jurisdiction will not be
supported either at law or in equity.”); Hurst v. Litchfield, 39 N.Y. 377, 379 (N.Y. 1868)
(“Such stipulations [for arbitration] are regarded as against the policy of the common
law as having a tendency to exclude the jurisdiction of the courts.”).
314) W. Sturges, A Treatise on Commercial Arbitrations and Awards 45 (1930).
315) See§1.01[B][3], pp. 37-39.
316) Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 406 (2d Cir. 1959).
of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 483 (1995). See also Lévy, The
Transformation of Arbitration Law 1835-1870: The Lessening of Judicial Hostility Towards
Private Dispute Resolution (unpublished paper 1993); W. Wooldridge, Uncle Sam: The
Monopoly Man (1970); Paulsson, International Arbitration Is Not Arbitration, 2008:2
Stockholm Int’l Arb. Rev. 1, 5 (U.S. Chamber of Commerce representations that
enforcement of arbitral awards depends in substantial part on “a moral sanction, such
as can be exercised by the International Chamber of Commerce”).
of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 484-85 (1995) (New York Stock
Exchange; Quakers; New York Chamber of Commerce). See also§1.01[B][5].
319) See, e.g., Burchell v. Marsh, 58 U.S. 344, 351-52 (U.S. S.Ct. 1854); Condon v. Southside R.R.
Co., 14 Gratt. 320 (Va. 1858); Snodgrass v. Gavit, 28 Pa. 221 (Pa. 1857) (dicta); Doolittle v.
Malcom, 8 Leigh 608 (Va. 1837). See generally Benson, An Exploration of the Impact of
Modern Arbitration Statutes on the Development of Arbitration in the United States, 11 J. L.
Econ. & Org. 479, 485-87 (1995) (discussing cases); Conklin, Transformed, Not Transcended:
The Role of Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey, 48
Am. J. Legal Hist. 39 (2006).
From an early date, Pennsylvania decisions held that an agreement to arbitrate future
disputes before a specifically-named arbitrator was not revocable (in contrast to an
agreement to arbitrate before an as-yet-unidentified arbitrator). W. Sturges, A Treatise
on Commercial Arbitrations and Awards 48-49 (1930). Similar rules applied in some other
states. Conklin, Transformed, Not Transcended: The Role of Extrajudicial Dispute
Resolution in Antebellum Kentucky and New Jersey, 48 Am. J. Legal Hist. 39 (2006).
93
320) See, e.g., Ebert v. Ebert, 5 Md. 353, 354 (Md. 1854) (“every reasonable intendment is now
made in favor of [arbitral] awards…and that all matters have been decided by them,
unless the contrary shall appear on the face of the award”); Doolittle v. Malcom, 8 Leigh
608 (Va. 1837). See also President etc. of Delaware & H. Canal Co. v. Pennsylvania Coal Co.,
50 N.Y. 250, 258 (N.Y. 1872) (“It appears to be well settled by authority that an agreement
to refer all matters of difference or dispute that may arise to arbitration, will not oust a
court of law or equity of jurisdiction. The reason of the rule is by some traced to the
jealousy of the courts, and a desire to repress all attempts to encroach on the
exclusiveness of their jurisdiction; and by others an aversion of the courts, from reasons
of public policy, to sanction contracts by which the protection which the law affords the
individual citizens is renounced. An agreement of this character induced by fraud, or
overreaching, or entered into unadvisedly through ignorance, folly or undue pressure,
might well be refused a specific performance, or disregarded.…But when the parties
stand upon an equal footing, and intelligently and deliberately, in making their
executory contracts, provide for an amicable adjustment of any difference that may
arise, either by arbitration, or otherwise, it is not easy to assign at this day any good
reason why the contract should not stand, and the parties made to abide by it, and the
judgment of the tribunal of their choice.”).
321) Condon v. Southside R.R. Co., 1858 WL 3945, at *6-7 (Va.). One may surmise that George
Washington’s attitude towards arbitration, expressed in his last will and testament,
favorably influenced Virginian courts. See§1.01[B][8].
322) See§1.01[B][5], p. 45; Mann, The Formalization of Informal Law: Arbitration Before the
American Revolution, 59 N.Y.U. L. Rev. 443, 458-60 (1984).
323) 22 U.S.C.A. §161 (1927) (duty of foreign service officers to encourage use of arbitration and
to facilitate arbitral processes).
of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 488 (1995) (“arbitration was
being developed and expanded under the auspices of trade associations, mercantile
exchanges, and other commercial organizations where nonlegal sanctions apparently
were relatively strong”). See also Bernstein, Opting Out of the Legal System: Extralegal
Contractual Relations in the Diamond Industry, 21 J. Legal Studies 115 (1992); Bernstein,
Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules,
Norms and Institutions, 99 Mich. L. Rev. 1724, 1725 (2001) (“The institutions that create and
administer the [cotton] industry’s private legal system work extraordinarily well.…The
arbitration tribunals that resolve disputes do so expeditiously and inexpensively. Their
decisions, which are recorded in written opinions, reveal a distinctive and coherent
jurisprudential approach. Within the industry, arbitration awards are widely respected
and complied with promptly.”).
325) Hamilton v. Liverpool & London & Globe Ins. Co., 136 U.S. 242, 242-55 (U.S. S.Ct. 1890)
(recognizing arbitral award determining damages, where court decided general question
of liability); United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 222 F. 1006,
1008-09, 1010-11 (S.D.N.Y. 1915). See§1.01[B][5]. Compare A. Corbin, 6A Corbin on Contracts
§1432-44B (1962) (addressing arbitration agreements under heading of “illegal
bargains”).
326) To Validate Certain Agreements for Arbitration, H.R. Rep. No. 68-96, 1 (1924); Chamber of
the State of New York, Report of the Committee on Arbitration (1917); Sayre, Development
of Commercial Arbitration Law, 37 Yale L.J. 595, 595 n.2 (1927-1928).
327) See§1.01[C][1]; U.S. FAA, 9 U.S.C. §§1et seq.; N.Y. Arbitration Law, Chp. 275, Laws 803-807
(1920); Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 7-13
(1999).
328) Berkovitz v. Arbib & Houlberg, 130 N.E. 288, 290-92 (N.Y. 1921) (upholding New York
arbitration legislation); Stone, Rustic Justice: Community and Coercion Under the Federal
Arbitration Act, 77 N.C. L. Rev. 931, 982-87 (1999).
329) See§1.01[B][2].
330) W. Haeger, Schiedsgerichte für Rechtsstreitigkeiten der Handelswelt 2 (1910), quoted in
Berger, The New German Arbitration Law in International Perspective, 26 Forum Int’l 1, 1
(2000).
331) A. Lindheim, Das Schiedsgericht im modernen Civilprocesse 17 (1891).
332) Begründung des Entwurfs einer Zivilprozessordnung, Deutscher Reichstag, II, Legislatur-
Periode, I, session 1876, ad no. 6, 476, quoted in Cohn, Commercial Arbitration and the
Rules of Law: A Comparative Study, 4 U. Toronto L.J. 1, 16 (1942).
333) See§3.02[B][3][a].
334) W. Haeger, Schiedsgerichte für Rechtsstreitigkeiten der Handelswelt 21 (1910).
335) See W. Haeger, Schiedsgerichte für Rechtsstreitigkeiten der Handelswelt 24 (1910).
336) Weiss, Arbitration in Germany, 43 L.Q. Rev. 205, 206 (1927). But see Kahn, Arbitration in
England and Germany, 12 J. Comp. Legis. & Int’l L. 58, 76-77 (1930) (suggesting that Weiss’s
view of German courts was too bleak); Nussbaum, Schiedsgerichtsschriftstellerei zwecks
Störung internationaler Beziehungen, in 2 Internationales Jahrbuch für
Schiedsgerichtswesen 384 (1928) (arguing that Weiss misinterpreted German law).
337) Nussbaum, Schiedsgerichtswesen, 42 Zeitschrift für Zivilprozeßrecht 254, 259-60 (1912),
referring to Judgment of 28 January 1908, 69 RGZ 52, 55 (German Reichsgericht).
94
338) Legal Opinion Dated 17 October 1925, 31 DJZ 500, 501 (Chairman of Reichskartellgericht)
(1926) (emphasizing state’s duty to ensure that requirements of due process and
impartiality of arbitrators are observed during arbitral process); Nussbaum,
Schiedsgerichte und Rechtsordnung, 1926 JW 55.
339) Blomeyer, Betrachtungen über die Schiedsgerichtsbarkeit, in Festgabe zum siebzigsten
Geburtstag von Leo Rosenberg 59 (1949); Kuntze, Schiedsgericht oder Rechtsprechung
durch die Gerichte des Staates, 1934 JW 649, 651; Raeke, Dienst am Recht, 65 Juristische
Wochenschrift 3 (1935).
340) See Richtlinien des Reiches über Schiedsgerichte, 95 Deutsche Justiz 52, 821 (1933).
341) Kuntze, Schiedsgericht oder Rechtsprechung durch die Gerichte des Staates, 63 JW 649, 651
(1934).
342) Cohn, Commercial Arbitration and the Rules of Law: A Comparative Study, 4 U. Toronto L.J.
1, 27-28 (1941); Cohn, Foreign Awards and Exchange Restrictions Under German Law, 21 J.
Comp. Legis. & Int’l L. 75-76, 81-82 (1939).
343) Cohn, Commercial Arbitration and the Rules of Law: A Comparative Study, 4 U. Toronto L.J.
1, 27 (1941).
344) See§1.01[B][4].
345) Judgment of 17 December 1936, Pas. 1936 I 457, 458 (Belgian Cour de cassation); G. Keutgen
& G. Dal, L’arbitrage en droit belge et international Tome I: Le droit belge ¶42 (2d ed.
2006); Keutgen & Huys, Chronique de Jurisprudence: L’arbitrage (1950-1975), 1976 Journal
des Tribunaux 53, 54.
346) Sanders, The Netherlands, VI Y.B. Comm. Arb. 60 (1981) (describing Dutch arbitral
procedure under 1838 law); A. van den Berg, R. van Delden & H. Snijders, Netherlands
Arbitration Law §1.1 (1993).
347) van Bladel, Arbitration in the Building Industry in the Netherlands, 54 Disp. Res. J. 42, 43
(1999). See also Moglen, Commercial Arbitration in the Eighteenth Century: Searching for
the Transformation of American Law, 93 Yale L.J. 135, 136-37 (1983-1984) (noting historical
“Dutch fondness for extrajudicial settlement” as reflected in American colonies).
348) Aiken, New Netherlands Arbitration in the 17th Century, 29 Arb. J. 145, 146-49 (1974)
(describing influence of Roman arbitration law on Dutch legal tradition).
349) R. David, Arbitration in International Trade 101-02 (1985).
350) See, e.g., M. Moser & J. Choong (eds.), Asia Arbitration Handbook 431, 845 (2011).
351) M. Abu-Nimer, Non-Violence and Peacebuilding in Islam: Theory & Practice (2003); El-
Kosheri, Is There A Growing International Arbitration Culture in the Arab-Islamic Juridical
Culture?, in A. van den Berg (ed.), International Dispute Resolution: Towards An
International Arbitration Culture 47 (1998); Majeed, Good Faith and Due Process: Lessons
From the Shari’ah, 20 Arb. Int’l 97, 104 (2004); S. Saleh, Commercial Arbitration in the Arab
Middle East 15 et seq. (2d ed. 2006).
352) S. Amin, Commercial Arbitration in Islamic Law and Iranian Law (1984); A. El-Ahdab & J. El-
Ahdab, Arbitration With the Arab Countries 5-6 (3d ed. 2011).; S. Saleh, Commercial
Arbitration in the Arab Middle East 18 (2d ed. 2006).
353) S. Saleh, Commercial Arbitration in the Arab Middle East 12 (2d ed. 2006).
354) Majeed, Good Faith and Due Process: Lessons From the Shari’ah, 20 Arb. Int’l 97, 104
(2004).
355) El-Kosheri, Is There A Growing International Arbitration Culture in the Arab-Islamic
Juridical Culture?, in A. van den Berg (ed.), International Dispute Resolution: Towards An
International Arbitration Culture 47 (1998).
356) A. El-Ahdab & J. El-Ahdab, Arbitration With the Arab Countries 5 (3d ed. 2011).
357) SeeA. El-Ahdab & J. El-Ahdab, Arbitration With the Arab Countries 5 (3d ed. 2011)
(describing contemporary arbitration practices in countries across Arabic Middle East);
S. Saleh, Arbitration in the Arab Middle East 18-19 (1984).
358) Fry, Islamic Law and the Iran-United States Claims Tribunal: The Primacy of the
International Law Over Municipal Law, 18 Arb. Int’l 105 (2002).
359) See M. Abu-Nimer, Non-Violence and Peacebuilding in Islam, Theory & Practice 63 (2003).
360) A. El-Ahdab & J. El-Ahdab, Arbitration With the Arab Countries 8-9 (3d ed. 2011).
361) Al Qurashi, Arbitration Under the Islamic Sharia, 1 Oil, Gas & Energy L. Int’l (2003); Fathy,
Arbitration According to Islamic Law (Sharia), 1 Arab Arb. J. 31 (2000). As discussed above,
the institution of party-nominated arbitrators was an enduring feature of both state-to-
state and commercial arbitration in Europe from Antiquity until the present. See§1.01[A]
[5]; §§1.01[B][1], [3] & [8]; §12.01[D]; §§12.03[A]-[B].
362) A. El-Ahdab & J. El-Ahdab, Arbitration With the Arab Countries 9-11 (3d ed. 2011).
363) A. El-Ahdab & J. El-Ahdab, Arbitration With the Arab Countries 9 (3d ed. 2011).
364) Article 1841 of the Civil Code provided broadly that “Actions relating to rights concerning
property may be settled by arbitration.” Ottoman Civil Code, 1876, Art. 1841.
365) Ottoman Civil Code, 1876, Art. 1847. The arbitrator’s authority was limited to “the persons
who have appointed him, and the matters he has been appointed to decide.” Ottoman
Civil Code, 1876, Art. 1842.
366) Ottoman Civil Code, 1876, Art. 1849.
367) II Encyclopaedia Judaica 364 (2d ed. 2007). Jewish courts are referred to in the
Pentateuch. Exodus 18:25-26; Deuteronomy 16:38, 17:8-13.
95
368) II Encyclopaedia Judaica 365 (2d ed. 2007); H. Lapin, Rabbis as Romans: The Rabbinic
Movement in Palestine, 100-400 C.E. 99 (2012) (describing increasing scope of rabbinic
arbitration in 3d and 4th century); Z. Warhaftig, Studies in Jewish Law 25-26 (1985)
(arbitration “gradually established its prominence in Jewish adjudication, until finally it
became the sole adjudicative institution that was recognized by the Romans, pursuant
to the Emperor’s order in the year 398 of the Common era”).
Some authorities conclude that arbitration predated Roman times, merely receiving
impetus from Roman domination of the judicial system. B. Cohen, Jewish and Roman Law
657, 796 (1966); A. Gulak, Foundations of Jewish Law IV.30 (1922) (“most plausible view is
that the [Roman] assumption of jurisdiction over civil law and the dispersal of the
permanent courts prompted Rabbi Meir to amend his rulings regarding the
establishment of arbitrator’s courts”).
369) S. Assaf, Jewish Courts and Procedure in the Post-Talmudic Period 54-57 (1924). See also
Sinai, Arbitration as An Ideal Judicial Procedure, in J. Fleishman (ed.), Jewish Law
Association Studies XVIII: The Bar-Ilan Conference Volume 279, 284-85 (2008).
370) II Encyclopaedia Judaica 365 (2d ed. 2007) (Codex Theodosianus 2:2, 10; Codex Justinianus
1:9, 8). “[T]he background to the creation of arbitration as an institution of Jewish judicial
authority [finds] expression in an order of Honorius in 398 C.E., according to which Jews
were rendered subject to Roman law and the regular courts, but permitted, in civil law
matters and by mutual consent of the parties, to resort to their own arbitration
proceedings, enforceable at the hands of the provincial judges.” II Encyclopaedia Judaica
365 (2d ed. 2007). See also H. Lapin, Rabbis as Romans: The Rabbinic Movement in
Palestine, 100-400 C.E. 121 (2012) (Roman law gave effect to agreements to resolve
disputes “before the Jews or the Patriarchs after the manner of arbitration”).
371) II Encyclopaedia Judaica 365 (2d ed. 2007).
372) Sinai, Arbitration as An Ideal Judicial Procedure, in J. Fleishman (ed.), Jewish Law
Association Studies XVIII: The Bar-Ilan Conference Volume 279, 279 (2008).
373) M. Rodkinson, The Babylonian Talmud: Tract Sanhedrin, Chp. 3 (2010). See also Sinai,
Arbitration as An Ideal Judicial Procedure, in J. Fleishman (ed.), Jewish Law Association
Studies XVIII: The Bar-Ilan Conference Volume 279, 279 (2008) (“In the zabla form of
arbitration in the Jewish tradition, each party chooses one judge and the third judge is
chosen jointly by both parties or by the judges of their choice.”).
Association Studies XVIII: The Bar-Ilan Conference Volume 279, 285 (2008) (distinguishing
Roman and Greek arbitrations, which supposedly were characterized by compromise,
from Jewish arbitration, which “is not just reaching compromise and conciliation”).
Association Studies XVIII: The Bar-Han Conference Volume 279, 287-89 (2008) (citing Rabbi
Yaakov Reisher: arbitration was an “ancient tradition always practised” and “in many
communities, even though they had permanent judges, there were many cases in which
the parties compromised and agreed to litigate in zabla proceedings”).
376) Gordis, Judaism: Freedom of Expression and the Right to Knowledge in the Jewish Tradition,
54 Colum. L. Rev. 676, 689 (1954).
377) S. Passamaneck & N.S. Hecht et al. (eds.), An Introduction to the History and Sources of
Jewish Law 326 (1996).
378) Kirshner, Introduction, 16 Jewish History 1, 10 (2002).
379) Siegmund, Division of the Dowry on the Death of the Daughter: An Instance in the
Negotiation of Laws and Jewish Customs in Early Modern Tuscany, 16 Jewish History 73, 81
(2002).
381) II Encyclopaedia Judaica 365 (2d ed. 2007) (citing authorities).
382) II Encyclopaedia Judaica 365-66 (2d ed. 2007) (Talmudic authorities rejected suggestion
that Jewish sources “justify[] the arbitrator’s blind support of the party by whom he was
chosen when they should rather be read as meaning that the arbitrators appointed by
both parties would thoroughly investigate the facts objectively and negotiate on the
respective merits of the litigants’ claim – the third arbitrator listening to them and then
deciding between them”).
383) See B. Cohen, Jewish and Roman Law: A Comparative Study 13-17 (1985) (arbitral
procedures chosen by parties in traditional Jewish arbitrations); Z. Warhaftig, Studies in
Jewish Law 23-24 (1985) (arbitral procedures chosen by parties in traditional Jewish
arbitrations).
388) II Encyclopaedia Judaica 367 (2d ed. 2007) (citing M. Krochmal, Zemah Zedek 37 (1675)).
389) Grossman, Is This Arbitration? Religious Tribunals, Judicial Review, and Due Process, 107
Colum. L. Rev. 169 (2007); Royde, Jewish Law Courts in America: Lessons Offered to Sharia
Courts by the Beth Din of America Precedent, 57 N.Y.L.S. L. Rev. 287, 298 (2012); Wolfe,
Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and
Their Interaction With Secular Courts, 75 Fordham L. Rev. 427 (2006).
96
390) Legall, Beth Din Meets Secular Law: Orthodox Jews Often Rely on Their Own Religious Court,
the Beth Din, to Resolve Civil Disputes in Matters as Diverse as Business and Divorce, 62(2)
Int’l B. News 25, 25 (2008); European Beth Din, available at europeanbethdin.com.
391) See, e.g., Raghavan, New Horizons for Alternative Dispute Resolution in India – The New
Arbitration Law of 1996, 13(4) J. Int’l Arb. 5, 7 (1996) (describing influence of English law);
Schaefer, Leaving the Colonial Arbitration Laws Behind: Southeast Asia’s Move into the
International Arbitration Arena, 16 Arb. Int’l 297, 298 (2000) (describing history of
arbitration in Southeast Asia); Xu & Wilson, One Country, Two International Commercial
Arbitration-Systems, 17(6) J. Int’l Arb. 47 (2000) (describing British influence on arbitration
in Hong Kong).
392) Cohen, Chinese Mediation on the Eve of Modernization, in D. Buxbaum (ed.), Traditional
and Modern Legal Institutions in Asia and Africa (1967); Liu & Lourie, International
Commercial Arbitration in China: History, New Developments and Current Practice, 28 J.
Marshall L. Rev. 539, 540 (1995); D. Roebuck, A Miscellany of Disputes 21-26 (2000); Wang,
The Unification of the Dispute Resolution System in China: Cultural, Economic, and Legal
Contributions, 13(2) J. Int’l Arb. 5, 7-10 (1996).
Arbitration was also reportedly preferred due to the interdependent nature of Chinese
society in which families resided in the same villages for generations. It is said that
villagers would not risk alienating a neighbor by bringing a lawsuit, so amicable
settlement of disputes was preferred. Liu & Lourie, International Commercial Arbitration
in China: History, New Developments and Current Practice, 28 J. Marshall L. Rev. 539, 540
(1995).
393) Wang, The Unification of the Dispute Resolution System in China: Cultural, Economic, and
Legal Contributions, 13(2) J. Int’l Arb. 5, 8-9 (1996).
394) For a discussion of the influence of Confucianism on the resolution of social conflict in
China, see E. Black & G. Bell (eds.), Law and Legal Institutions of Asia: Traditions,
Adaptations, and Innovations 28 (2011).
395) See P. Huang, Chinese Civil Justice, Past and Present 4, 29 (2010).
396) See, e.g., M. Moser & J. Choong (eds.), Asia Arbitration Handbook 431, 819 (2011).
397) See M. Moser & J. Choong (eds.), Asia Arbitration Handbook 583 (2011).
398) See P. Richman (ed.), Many Ramayanas: Diversity of A Narrative Tradition in South Asia 123
(1991).
399) See P. Richman (ed.), Many Ramayanas: Diversity of A Narrative Tradition in South Asia 123
(1991).
400) M. Moser & J. Choong (eds.), Asia Arbitration Handbook 845, 903 (2011); Raghavan, New
Horizons for Alternative Dispute Resolution in India – The New Arbitration Law of 1996, 13(4)
J. Int’l Arb. 5, 6 (1996).
401) See R. Josh & G. Narvani, Panchayat Raj in India: Emerging Trends Across the States 13
(2002).
402) R. Josh & G. Narvani, Panchayat Raj in India: Emerging Trends Across the States 13 (2002).
403) D. Rautray, Master Guide to Arbitration in India ¶¶1-010 et seq. (2008).
404) Butler & Finsen, Southern Africa, in E. Cotran & A. Amissah (eds.), Arbitration in Africa 193-
95 (1996) (discussing impact of Roman-Dutch law and English arbitration practice in
Southern Africa). But see Amoussou-Guenou, Former French Territories, in E. Cotran & A.
Amissah (eds.), Arbitration in Africa 270 (1996) (France did not extend arbitration
provisions of French Code of Civil Procedure to its African colonies).
405) Goodman-Everard, Book Review – Arbitration in Africa, 14 Arb. Int’l 457, 458 (1998).
406) Liundi, Introduction: Status of Tanzania and Zanzibar and Applicable Laws, in E. Cotran &
A. Amissah (eds.), Arbitration in Africa 78-79 (1996).
407) Liundi, Introduction: Status of Tanzania and Zanzibar and Applicable Laws, in E. Cotran &
A. Amissah (eds.), Arbitration in Africa 78-79 (1996).
408) N. Blackaby, D. Lindsey & A. Spinillo (eds.), International Arbitration in Latin America,
Overview of Regional Developments 3-10 (2003); J. Kleinheisterkamp, International
Commercial Arbitration in Latin America 5 (2005); C. Leathley, International Dispute
Resolution in Latin America: An Institutional Overview (2006).
409) J. Kleinheisterkamp, International Commercial Arbitration in Latin America 5 (2005).
410) Balli & Coale, Recent Reforms to Mexican Arbitration Law: Is Constitutionality Achievable?,
30 Tex. Int’l L.J. 535, 539-40 (1995); von Wobeser, Mexico, in N. Blackaby, D. Lindsey & A.
Spinillo (eds.), International Arbitration in Latin America 155, 159, 162 (2002).
411) Jorquiera & Helmlinger, Chile, in N. Blackaby, D. Lindsey & A. Spinillo (eds.), International
Arbitration in Latin America 89, 90-91 (2002); J. Kleinheisterkamp, International
Commercial Arbitration in Latin America 9 (2005).
412) Falcão, Recognition and Enforcement of Foreign Arbitral Awards: A New Chapter in
Brazilian Arbitration History, 8 Am. Rev. Int’l Arb. 367, 369 (1997).
413) Jorquiera & Helmlinger, Brazil, in N. Blackaby, D. Lindsey & A. Spinillo (eds.),
International Arbitration in Latin America, 61, 62-66 (2002); J. Kleinheisterkamp,
International Commercial Arbitration in Latin America 8 (2005).
414) J. Kleinheisterkamp, International Commercial Arbitration in Latin America 114-15 (2005);
Lee, Brazil, in N. Blackaby, D. Lindsey & A. Spinillo (eds.), International Arbitration in Latin
America 61, 62-63, 69 (2002).
97
415) Falcão, Recognition and Enforcement of Foreign Arbitral Awards: A New Chapter in
Brazilian Arbitration History, 8 Am. Rev. Int’l Arb. 367, 369 (1997); Volz & Haydock, Foreign
Arbitral Awards: Enforcing the Award Against the Recalcitrant Loser, 21 Wm. Mitchell L.
Rev. 867, 874-77 nn.29, 47 (1996).
416) H.-W. Greminger, Die Genfer Abkommen von 1923 und 1927 über die internationale private
Schiedsgerichtsbarkeit 1-3 (1957).
417) Grigera Naón, Arbitration and Latin America: Progress and Setbacks, 21 Arb. Int’l 127, 141
(2005).
418) See, e.g., Lew, The Recognition and Enforcement of Arbitration Agreements and Awards in
the Middle East, 1 Arb. Int’l 161, 161 (1985) (“the law in many Middle Eastern countries has
given rise to uncertainty and insecurity with respect to the effectiveness of the
arbitration agreement and award”).
419) See§1.04[A][1][b]; §1.04[B].
420) See§1.01[A][5].
421) See§§1.01[B][2], [5]-[6].
422) See§§1.01[B][2], [5] & [9].
423) See§1.01[A][5].
424) See§§1.01[B][1], [3], [5]-[7].
425) J. Fitzpatrick (ed.), 37 The Writings of George Washington 275, 294 (1940).
426) See§1.01[B][7][b], pp. 56-57; M. Rodkinson, The Babylonian Talmud: Tract Sanhedrin, Chp. 3
(2010) (“Civil cases by three; one party may select one and so the other, and both of them
select one more; so is the decree of R. Meir. The Sages, however, maintain that the two
judges may select the third one.”).
427) Institute of International Law, Projet de règlement pour la procédure arbitrale
internationale Art. 2 (1875).
428) Michel v. Am. Century Ins. Co., 44 N.Y.S. 832, 832-33 (N.Y. App. Div. 1897); Terry v. Moore, 22
N.Y.S. 785, 786-87 (N.Y. Ct. Common Pleas 1893). But see Smith v. Alker, 5 N.E. 791, 791-92
(N.Y. 1886) (disputes to be submitted to two arbitrators). See§1.01[B][5].
429) See authorities cited at §1.01[B][5].
430) See, e.g., Union Ins. Co. of Philadelphia v. Cent. Trust Co. of New York, 157 N.Y. 633, 634-35
(N.Y. 1899) (arbitrator); Day v. Hammond, 57 N.Y. 479, 484 (N.Y. 1874) (discussing
distinctions between umpires and “third arbitrators,” although observing that “[t]he
cases sometimes refer indiscriminately to these two classes of persons”); Michel v. Am.
Century Ins. Co., 44 N.Y.S. 832, 832 (N.Y. App. Div. 1897) (umpire).
In some cases, the parties agreed to the appointment of a third arbitrator or umpire
only where the first two arbitrators disagreed or where certain conditions were not met.
But even in these cases, a rehearing with the full participation of the third arbitrator or
umpire was often required. See Hammond, 57 N.Y. 57 N.Y. 479, 484-88 (N.Y. 1874); In re
Grening, 26 N.Y.S. 117, 118 (N.Y. Gen. Term 1893).
431) Z. Swift, 2 A System of the Laws of the State of Connecticut 7 (1796) (Arbitrators “are not
tied down to the same strictness, formality and precision as courts of law. While they
have greater latitude in the mode of proceeding than courts of law, they have ampler
powers to do compleat and perfect justice between the parties in the decision of the
matters in dispute.”).
N.Y.U. L. Rev. 443, 475 (1984) (arbitrations in 18th-century Connecticut conducted with
counsel for parties and testimony under oath).
N.Y.U. L. Rev. 443, 468 (1984) (arbitration in 18th century Connecticut was “public event”
with numerous spectators).
434) See§§1.01[B][4]-[5].
435) Treaty Concerning the Union of South American States in Respect of Procedural Law,
Signed at Montevideo, 11 January 1889 (1889). Only six states ratified the Montevideo
Convention. The subsequent Bustamante Code of 1928, approved in 1928 by the Inter-
American conference, also attracted few ratifications.
436) See§1.01[A][4].
of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 491-94 (1995) (emphasizing role
of lobbying from legal profession in passage of FAA); Drahozal, In Defense of Southland:
Reexamining the Legislative History of the Federal Arbitration Act, 78 Notre Dame L. Rev.
101, 125-26 (2002); I. Macneil, American Arbitration Law: Reformation, Nationalization,
Internationalization 25-26 (1992); Stempel, A Better Approach to Arbitrability, 65 Tul. L.
Rev. 1377, 1380 (1990-1991). See also Arbitration of Interstate Commercial Disputes: Joint
Hearings on S. 1005 and H.R. 646 Before the Subcommissions of the Commissions on the
Judiciary, 68th Cong. 21-24 (1924) (listing 67 business organizations supporting proposed
Act and letters of endorsement from various groups); id. at 10 (statement of American Bar
Association representative W.H.H. Piatt).
438) See authorities cited at §1.04[A][1][a], pp. 100-02.
439) H.-W. Greminger, Die Genfer Abkommen von 1923 und 1927 über die internationale private
Schiedsgerichtsbarkeit 1-3 (1957); Lorenzen, Commercial Arbitration – International and
Interstate Aspects, 43 Yale L.J. 716, 750 (1933-1934); Nussbaum, Treaties on Commercial
Arbitration – A Test of International Private-Law Legislation, 56 Harv. L. Rev. 219, 220-22
(1942-1943); A. van den Berg, The New York Arbitration Convention of 1958 6-7, 113-18
(1981).
98
440) The ICC’s role in negotiating the Geneva Protocol was later taken over by the League of
Nations. For a review and interpretation of the Protocol and the Conventions see Mezger,
Zur Auslegung und Bewertung der Genfer Schiedsabkommen von 1923 und 1927, in 24
Zeitschrift für ausländisches und internationales Privatrecht 222 (1959).
441) Geneva Protocol on Arbitration Clauses in Commercial Matters (“Geneva Protocol”), 27
L.N.T.S. 158 (1924). The Geneva Protocol was signed on 24 September 1923 at a meeting of
the Assembly of the League of Nations.
442) Contrary suggestions are inaccurate. See, e.g., H. Gharavi, The International Effectiveness
of the Annulment of An Arbitral Award 46 (2002) (“The Protocol was not a major
contribution to the development of the law of arbitration…”). In fact, the Protocol’s
internationally-binding requirement of recognition of the validity of arbitration
agreements, and the formulae used in implementing that requirement, had a profound
effect on the language of the New York Convention, the UNCITRAL Model Law and other
leading instruments in the field and on the future of international arbitration law.
See§2.01[A][1]; §5.01[B].
443) Geneva Protocol, Arts. III, IV (1924). See§2.03[C][1][a]; §2.03[G]; §15.02[A].
444) Geneva Protocol, Art. I. See§8.02[A][1].
445) Geneva Protocol, Art. I. See§2.03[B][1][a], pp. 297-98.
446) Geneva Protocol, Art. I.
447) Geneva Protocol, Art. IV.
448) See§2.01[A].
449) See§5.01[B][1].
450) See§2.03[B] (especially §2.03[B][1][a]).
451) See§1.04[A][1][a].
452) See§1.04[A][1] (New York Convention); §1.04[A][2] (European Convention); §1.04[B][1][a]
(UNCITRAL Model Law).
453) See§1.01[C][2]; §2.01[A].
454) See§2.01[A].
455) Geneva Protocol, Art. III. See§3.02[A][1].
456) See§11.03[C][1][a]; §26.03[A].
457) Geneva Protocol, Art. II. See§11.03[C][1][a].
458) See§4.04[A][1][a].
459) Geneva Convention on the Execution of Foreign Arbitral Awards (“Geneva Convention”), 92
L.N.T.S. 302 (1929). See H.-W. Greminger, Die Genfer Abkommen von 1923 und 1927 über die
internationale private Schiedsgerichtsbarkeit 3-5 (1957); Mezger, Zur Auslegung und
Bewertung der Genfer Schiedsabkommen von 1923 und 1927, 24 Zeitschrift für
ausländisches und internationales Privatrecht 222 (1959); A. van den Berg, The New York
Arbitration Convention of 1958 6-7, 113-18 (1981).
460) Geneva Convention, Arts. 1-4.
461) Geneva Convention, Art. 1(a).
462) Geneva Convention, Art. 1(b).
463) Geneva Convention, Art. 1(c).
464) Geneva Convention, Art. 1(d).
465) Geneva Convention, Art. 1(e).
466) See§23.01[A]; §§26.03[B][1] & [4]; A. van den Berg, The New York Arbitration Convention of
1958 7 (1981).
467) See§11.03[C][1][b]; §26.03[B][4].
468) See§1.04[A]; §2.01[A][1]; §5.01[B][1].
469) See§§26.03[A]-[B].
470) See§8.02[A][1]; §8.03[C].
471) See§§19.04[A][1]-[4].
472) See§15.02[A].
473) See§1.04[B][1][e][i], p. 153; N.Y. Arbitration Law, 1920, Ch. 275, Laws 803-807 (providing for
validity of arbitration agreements).
474) French Commercial Code, 1925, Art. 631. See also von Mehren, International Commercial
Arbitration: The Contribution of the French Jurisprudence, 46 La. L. Rev. 1045, 1049-51
(1985-1986) (discussing impact of 1925 amendment).
475) See Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 13
(1999). See also§1.01[B][3].
476) See§1.01[B][5]; §1.04[B][1][e][i].
477) U.S. FAA, 9 U.S.C. §2. Section 2 was implemented by §§3 and 4 of the FAA, providing for
the stay of litigation of matters subject to arbitration and for orders compelling
arbitration. See§8.02[C]; §8.03[C][1].
478) U.S. FAA, 9 U.S.C. §§9, 10. For discussion of §§9 and 10, see§25.03[B], pp. 3181-83.
479) See§1.01[B][5]; §§1.04[B][1][e][i]-[ii].
480) Marine Transit Corp. v. Dreyfus, 284 U.S. 263 (U.S. S.Ct. 1932) (upholding FAA against
constitutional attack). See§1.04[B][1][e][iii].
481) See§1.04[A][1][a].
482) See§1.04[C][4].
483) See§1.04[B][1][a].
484) See§1.04[B].
485) This includes periodic amendments of the arbitration rules of the ICC, AAA/ICDR, LCIA,
ICSID and other institutions. See§1.04[C][5].
99
486) See R. Dolzer & M. Stevens, Bilateral Investment Treaties 267-326 (1995); C. McLachlan, L.
Shore & M. Weiniger, International Investment Arbitration ¶¶1.01 to 1.16 (2007); UNCTAD,
Bilateral Investment Treaties in the Mid-1990s, U.N. Doc. UNCTAD/ITE/IIT/7, U.N. Sales No.
E.98.II.D.8 122 (1998); UNCTAD, The Entry Into Force of Bilateral Investment Treaties, U.N.
Doc. No. UNCTAD/WEB/ITE/IIA/2006/9 (2006).
487) See§§1.01[B][1]-[2].
488) See§1.01[A][5]; §§1.01[B][1]-[2] & [5].
489) See§1.02.
490) See§1.01[A][5]; §1.01[B][8]; §2.02.
491) See§2.02.
492) United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd, 210 F.3d 1207 (10th Cir. 2000) ($153
million damages, including $58.5 million punitive damages); Shell Oil Co. v. Franco-
Franco, CV 03-88446 NM (C.D. Cal. 2005) ($489.4 million Nicaraguan default judgments);
CBS Corp. v. WAK Orient Power & Light Ltd, 168 F.Supp.2d 403 (E.D. Pa. 2001) ($1.4 billion
Pakistani default judgment, plus Pakistani judicial order to provide $11.5 billion letter of
credit).
493) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 2-4, 462-63
(5th ed. 2011).
494) Smith Kline & French Labs. v. Bloch [1983] 2 All ER 72, 74 (English Ct. App.) (“As a moth is
drawn to the light, so is a litigant drawn to the United States. If only he can get his case
into their courts, he stands to win a fortune.”). See generally M. Reimann & R.
Zimmermann (eds.), The Oxford Handbook of Comparative Law (2010); T. Weir, An
Introduction to Comparative Law (3d ed. 1998).
495) See Transparency International, Global Corruption Report 2007: Corruption in Judicial
Systems xxi (2007) (“Corruption is undermining justice in many parts of the world,
denying victims and the accused the basic human right to a fair and impartial trial.”);
Transparency International, Corruption Perceptions Index 2011, available at
www.transparency.org. See also§§1.02[B][1] & [4].
496) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 1-4, 344-45
(5th ed. 2011).
497) See§1.02[B][2].
498) See§1.01[B][2].
499) See§1.02[A][2]; K.-P. Berger, International Economic Arbitration 8 n.62 (1993); C. Drahozal &
R. Naimark, Towards A Science of International Arbitration: Collected Empirical Research
59 (2005); Lalive, Transnational (or Truly International) Public Policy and International
Arbitration, in P. Sanders (ed.), Comparative Arbitration Practice and Public Policy in
Arbitration 257, 293 (ICCA Congress Series No. 3 1987); D. Lipsky & R. Seeber, The
Appropriate Resolution of Corporate Disputes: A Report on the Growing Use of ADR by U.S.
Corporations (1998); Queen Mary, University of London, 2008 International Arbitration
Survey: International Arbitration: Corporate Attitudes and Practices 2, 5 (2008) (88% of
corporations surveyed had used international arbitration, and 86% of corporate counsel
were satisfied with experience); Queen Mary, University of London, 2010 International
Arbitration Survey: Choices in International Arbitration, 2, 5 (2010) (68% of corporations
have some contractual dispute resolution policy).
500) SeeG. Born, International Arbitration and Forum Selection Agreements: Drafting and
Enforcing 1-15 (4th ed. 2013); Kerr, International Arbitration v. Litigation, 1980 J. Bus. L. 164,
164 (“in international cases, where jurisdictional problems are bound to arise in the
event of dispute, the practice of incorporating arbitration clauses into contracts is
becoming almost universal”); Park, Illusion and Reality in International Forum Selection,
30 Tex. Int’l L.J. 135 (1995).
501) See§§1.02[A][1]-[2].
502) Either form of agreement can, and frequently is, combined with a choice-of-law clause,
selecting the substantive law applicable to the parties’ contract. See§1.04[E][7], p. 209.
503) Commentary on forum selection clauses includes: G. Born, International Arbitration and
Forum Selection Agreements: Drafting and Enforcing (4th ed. 2013); G. Born & P. Rutledge,
International Civil Litigation in United States Courts 461-546 (5th ed. 2011); P. Friedland,
Arbitration Clauses for International Contracts (2d ed. 2007); Gilbert, Choice of Forum
Clauses in International and Interstate Contracts, 65 Ky. L.J. 1 (1976); Gruson, Forum-
Selection Clauses in International and Interstate Commercial Agreements, 1982 Ill. L. Rev.
133; D. Joseph, Jurisdiction and Arbitration Agreements and Their Enforcement (2d ed.
2010); Nadelmann, Choice-of-Court Clauses in the United States: The Road to Zapata, 21
Am. J. Comp. L. 124 (1973); Hague Conference on Private International Law, Choice of Court
Agreements in International Litigation: Their Use and Legal Problems to Which They Give
Rise in the Context of the Interim Text, Preliminary Doc. No. 18 (2002), available at
www.hcch.net; Park, Bridging the Gap in Forum Selection: Harmonizing Arbitration and
Court Selection, 8 Transnat’l L. & Contemp. Probs. 19 (1998); W. Park, International Forum
Selection (1995); J. Paulsson, N. Rawding & L. Reed, The Freshfields Guide to Arbitration and
ADR: Clauses in International Contracts (3d ed. 2010); Solomine, Forum Selection Clauses
and the Privatization of Procedure, 25 Cornell Int’l L.J. 51 (1992).
504) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 462-63 (5th
ed. 2011); W. Park, International Forum Selection (1995). Forum selection agreements are
also sometimes referred to as “jurisdiction clauses” or “choice-of-forum agreements.”
505) Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (U.S. S.Ct. 1974).
506) See§2.02[C][2][a].
100
507) See§2.02[C][2][a].
508) See§2.03[F].
509) As discussed below, the principal exception to this generalization involves investor-
state arbitrations pursuant to bilateral or multilateral investment treaties. See§1.04[A]
[6].
510) See§1.04[E]; §1.04[F][3].
511) Drahozal, Why Arbitrate? Substantive Versus Procedural Theories of Private Judging, 22 Am.
Rev. Int’l Arb. 163 (2011) (reviewing various rationales for arbitration).
512) Sumito v. Antig Invs. Pte Ltd, [2009] 4 SLR(R) 732, ¶29 (Singapore Ct. App.).
513) Empirical research reports that users of international arbitration identify neutrality as
one of the most important benefits of the process. Bühring-Uhle, A Survey on Arbitration
and Settlement in International Business Disputes, in C. Drahozal & R. Naimark (eds.),
Towards A Science of International Arbitration: Collected Empirical Research 25, 33 (2005);
Mason, The Corporate Counsel’s View: International Commercial Arbitration, 49 Disp. Res. J.
22 (1994); Queen Mary, University of London, 2010 International Arbitration Survey:
Choices in International Arbitration 2 (2010); Queen Mary, University of London, 2013
International Arbitration Survey: Corporate Choices in International Arbitration: Industry
Perspectives 8 (2013) (neutrality ranked second in order of importance among seven
perceived benefits of arbitration).
514) See Drahozal & Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St.
J. Disp. Res. 433, 452 (2010); Fortier, International Arbitration on the Eve of the New
Millennium, 1997 Int’l Arb. L. Rev. 1; Naimark & Keer, International Private Commercial
Arbitration: Expectations and Perceptions of Attorneys and Business People, 30 Int’l Bus.
Law. 203 (2002); Paulsson, International Arbitration Is Not Arbitration, 2008:2 Stockholm
Int’l Arb. Rev. 1, 2 (“[I]nternational arbitration finishes first even though it was perhaps
never better than second best in anyone’s mind. The problem was that the most
preferred alternative of each side was the least acceptable to the other”: “unique
criterion” of international arbitration is “neutrality.”); Reisman, International Arbitration
and Sovereignty, 18 Arb. Int’l 231, 235 (2002); Rogers, Fit and Function in Legal Ethics:
Developing A Code of Conduct for International Arbitration, 23 Mich. J. Int’l L. 341, 422
(2002) (“International arbitration…functions to promote the ‘rule of law’ at an
international level when national legal systems are inadequate to the task.”).
515) See§1.01[A][5]; §1.01[B][8].
516) SeeG. Born, International Arbitration and Forum Selection Agreements: Drafting and
Enforcing 5 (4th ed. 2013).
517) There have been suggestions that, in some jurisdictions, foreign litigants may be
preferred over domestic ones. Clermont & Eisenberg, Xenophilia in American Courts, 109
Harv. L. Rev. 1120 (1995).
518) Despite the foregoing advantages, a company is not always favored by litigation in its
home courts. In some cases, various procedural aspects of litigation can make a counter-
party’s home courts a more favorable venue than its own courts. These include the
availability (or unavailability) of discovery, the applicable rules of law, the rules for
allocation of the parties’ costs for legal representation, the length of time required for a
decision, or trial by a lay jury or judge. More generally, a party that obtains a favorable
judgment in its own domicile may be required to enforce the judgment in its counter-
party’s home forum, with the attendant uncertainties, costs and delays. There is no
“universal” convention on the recognition and enforcement of foreign judgments,
parallel to the New York Convention for arbitral awards. See§22.02[A]; §26.03[B]; G. Born
& P. Rutledge, International Civil Litigation in United States Courts 2-3, 1077-86 (5th ed.
2011).
519) There is a long tradition in international financial transactions for the lender to be
granted exclusive forum selection provisions choosing its own home courts (typically,
New York, London, or Singapore). See Horn, The Development of Arbitration in
International Financial Transactions, 16 Arb. Int’l 279, 280 (2000).
520) Of course, sometimes parties will simply not agree upon any dispute resolution
provisions, leaving it to post-dispute litigation to determine the place (or places) where
their dispute will be resolved. This happens with some frequency, but entails the costs
and uncertainties of conflicting jurisdictional claims, multiplicitous legal proceedings
and possibly inconsistent judgments.
521) See§12.05.
522) See§12.04[A]; Lalive, On the Neutrality of the Arbitrator and of the Place of Arbitration, in
Swiss Essays on International Arbitration 23, 24 (1984) (presiding or sole arbitrator’s
neutrality includes national neutrality: “the fundamental idea of equality of the parties…
appears necessarily to imply and lead to the ‘neutral nationality’ of the arbitrator”).
Indeed, the presumption under virtually all institutional rules, and common practice in
other circumstances, is that the sole arbitrator or presiding arbitrator may not be of the
same nationality as any of the parties. See§12.04[A][1].
101
523) As discussed above, this was also one of the historic attractions of international
arbitration. See§§1.01[A][5], [B][8]. See also D. Caron & L. Caplan, The UNCITRAL
Arbitration Rules: A Commentary 521 (2d ed. 2013) (in drafting UNCITRAL Rules “it was
determined that different legal systems have different standards of proof and therefore
a neutral formulation was preferred”); G. Petrochilos, Procedural Law in International
Arbitration 44 (2004) (“It is believed that [the international business] community would
wish arbitration to be a truly universal practice, where the rules would not fluctuate
from one state to another and where parties would not be taken by surprise by the law of
the arbitration and its application by the courts.”).
524) For this reason, there have been efforts to propose uniform international rules of
procedure for transnational disputes in national courts. ALI/UNIDROIT, ALI/UNIDROIT
Principles of Transnational Civil Procedure (2004); Hazard et al., Introduction to the
Principles and Rules of Transnational Civil Procedure, 33 N.Y.U. J. Int’l L. & Pol. 769 (2001).
These efforts have gained limited business attention or political traction, nor is there a
realistic likelihood that they will do so; if nothing else, the absence of uniform
procedural rules in the various Member States of the European Union and states of the
United States leaves little doubt on this score.
525) See D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 30-31 (2d ed.
2013) (“In international cases there is a special need for freedom from unfamiliar local
standards and requirements…”). See also§15.01[A].
526) See M. Bloch, Feudal Society 359 (1961). See also§1.01[B][2].
527) W. Blackstone, III Commentaries on the Laws of England 33 (1768), quoted in Wolaver, The
Historical Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132, 136 (1934-1935).
See§1.01[B][2], p. 31.
528) G. Born & P. Rutledge, International Civil Litigation in United States Courts 1-4 (5th ed.
2011); L. Collins (ed.), Dicey, Morris and Collins on The Conflict of Laws ¶¶1-003 to 1-004,
11-002 to 11-071, 13-002 to 13-003 (15th ed. 2012); J. Pontier & E. Burg, EU Principles on
Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial
Matters: According to the Case Law of the European Court of Justice 1 (2004).
529) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 1-4, passim
(5th ed. 2011); L. Collins (ed.), Dicey, Morris and Collins on The Conflict of Laws, passim
(15th ed. 2012).
530) As discussed below, international arbitration agreements are typically drafted
expansively and given broad effect, including to preclude the parallel litigation of the
same or similar claims in national courts. See§1.04[E][2]. This facilitates the parties’
objective of centralizing their disputes in a single forum for prompt, efficient resolution.
The complexity of international commercial disputes provides a challenge for the
arbitral process, as disputes involving multiple parties, contracts, claims and
proceedings becomes more common. See Brower, Brower & Sharpe, The Coming Crisis in
the Global Adjudication System, 19 Arb. Int’l 415 (2003).
531) M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13-14 (U.S. S.Ct. 1972) (in context of forum
selection clause). See also Scherk v. Alberto-Culver Co., 417 U.S. 506, 522 (U.S. S.Ct. 1974).
532) Judgment of 15 March 1990, Sonatrach v. K.C.A. Drilling Ltd, 1990 Rev. arb. 921, 923 (Swiss
Federal Tribunal); Judgment of 27 February 1970, 6 Arb. Int’l 79, 85 (1990) (German
Bundesgerichtshof); Judgment of 8 February 1991, 1991 NJW-RR 602, 603
(Oberlandesgericht München); Berger, Aufgaben und Grenzen der Parteiautonomie in der
internationalen Wirtschaftsschiedsgerichtsbarkeit, 1994 RIW 12.
533) See Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Disputes, in C. Drahozal & R. Naimark (eds.), Towards A Science of International
Arbitration: Collected Empirical Research 25, 31, 35 (2005); Queen Mary, University of
London, 2008 International Arbitration Survey: International Arbitration: Corporate
Attitudes and Practices 6-7 (2008).
534) See§§1.01[B][2]-[3] & [5]; §1.04[A][1][a]; §1.04[B][1].
535) See§1.04[A][1]; §1.04[B][1]; Chapter 5.
536) Quintette Coal Ltd v. Nippon Steel Corp., XVIII Y.B. Comm. Arb. 159, ¶32 (B.C. Ct. App. 1990)
(1993).
537) SeeChapter 8; §9.02[D].
538) Bühring-Uhle, A Survey on Arbitration and Settlement in International Business Disputes, in
C. Drahozal & R. Naimark (eds.), Towards A Science of International Arbitration: Collected
Empirical Research 25, 31, 35 (2005) (one of “two most significant advantages and
presumably the two most important reasons for choosing arbitration as a means of
international commercial dispute resolution [is]…the superiority of its legal framework
with treaties like the New York Convention guaranteeing the international enforcement
of awards”); Mistelis & Baltag, Trends and Challenges in International Arbitration: Two
Surveys of In-House Counsel of Major Corporations, 2(5) World Arb. & Med. Rev. 94 (2008);
Queen Mary, University of London, 2008 International Arbitration Survey: International
Arbitration: Corporate Attitudes and Practices 2, 5 (2008); Queen Mary, University of
London, 2010 International Arbitration Survey: Choices in International Arbitration 11, 21
(2010).
102
539) Empresa Constructora Contex Limitada v. Iseki, Inc., 106 F.Supp.2d 1020, 1023 (S.D. Cal.
2000) (“Arbitration agreements are intended to make arbitration decisions binding and
enforceable and to limit how parties may challenge them.”); Drahozal & Ware, Why Do
Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St. J. Disp. Res. 433, 452 (2010);
McLaren, Effective Use of International Commercial Arbitration: A Primer for In-house
Counsel, 5 J. Int’l Arb. 475, 477-78 (2002).
540) See§1.04[A][1]; §1.04[B][1][a].
541) EC Regulation 44/2001; J. Pontier & E. Burg, EU Principles on Jurisdiction and Recognition
and Enforcement of Judgments in Civil and Commercial Matters: According to the Case Law
of the European Court of Justice 1 (2004).
542) EC Regulation 44/2001, Art. 23.
543) See, e.g., Warsaw Convention for the Unification of Certain Rules Relating to International
Carriage by Air (1929) (as Amended at the Hague, 1955, and by Protocol No. 4 of Montreal,
1975, ICAO Doc. 9148).
544) G. Born & P. Rutledge, International Civil Litigation in United States Courts 468-528 (5th
ed. 2011); Chang, The Superiority of the Arbitration Clause Over A Forum Selection Clause
Under French Law, 22 ASA Bull. 800 (2004). See§5.06[C][14]. CompareBrekoulakis, The
Notion of the Superiority of Arbitration Agreements Over Jurisdiction Agreements: Time to
Abandon It?, 24 J. Int’l Arb. 341, 346-47 (2007).
545) See§5.06[C][14]; §6.02[F].
546) G. Born & P. Rutledge, International Civil Litigation in United States Courts 468, 485, 1085
(5th ed. 2011).
547) For discussions of the draft Hague Choice of Court Agreements Convention, see G. Born &
P. Rutledge, International Civil Litigation in United States Courts 468, 485 (5th ed. 2011);
Brand, Arbitration or Litigation? Choice of Forum After the 2005 Hague Convention on
Choice of Court Agreements, 7(1) Transnat’l Disp. Mgt 2 (2010); Brand, Introductory Note to
the 2005 Hague Convention on Choice of Court Agreements, 44 Int’l Legal Mat. 1291 (2005);
Garnett, The Hague Choice of Court Convention: Magnum Opus or Much Ado About
Nothing?, 8(2) Transnat’l Disp. Mgt 7 (2011); Kessedjian, La Convention de La Haye du 30
juin 2005 sur l’élection de for, 133 J.D.I. (Clunet) 813 (2006); Note, Recent International
Agreement, 119 Harv. L. Rev. 931 (2006).
548) See§1.04[A][1][c]; §1.04[B][1].
549) See§1.04[A][1][c]; §26.01; §26.02; §26.03[B][3]; §26.03[D].
550) SeePart III; §26.03[D].
551) See EC Regulation 44/2001.
552) G. Born & P. Rutledge, International Civil Litigation in United States Courts 1077-86 (5th ed.
2011).
553) G. Born & P. Rutledge, International Civil Litigation in United States Courts 1085-86 (5th
ed. 2011).
554) Of course, where a regional or other treaty for the mutual recognition of foreign court
judgments is applicable, the advantages of arbitral awards may be smaller.
555) See, e.g., Drahozal & Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25
Ohio St. J. Disp. Res. 433, 451 (2010); Shavell, Alternative Dispute Resolution: An Economic
Analysis, 24 J. Legal Studies 1, 6 (1995); Park, Arbitration’s Protean Nature: The Value of
Rules and the Risks of Discretion, 19 Arb. Int’l 279, 280 (2003) (parties choose to arbitrate
in part with “hope of avoiding a grossly mismanaged judicial system”); Stipanowich,
Rethinking American Arbitration, 63 Ind. L.J. 425, 427 (1987) (“The success of arbitration is a
reflection of the shortcomings of the American civil justice system…”); Walt, Decision by
Division: The Contractarian Structure of Commercial Arbitration, 51 Rutgers L. Rev. 369,
430-31 (1999).
556) See§1.01[B][8]. Even where such experience exists, the need to translate evidentiary
materials or legal authorities into the language of the forum will often create practical
problems and jeopardize a tribunal’s comprehension of the case.
557) Oko, Seeking Justice in Transitional Societies: An Analysis of the Problems and Failures of
the Judiciary in Nigeria, 31 Brooklyn J. Int’l L. 9 (2005); Orts, The Rule of Law in China, 34
Vand. J. Transnat’l L. 43 (2001). See also Transparency International, Global Corruption
Report 2007: Corruption in Judicial Systems (2007); U.S. State Department, Country Reports
on Human Rights Practices (2013).
558) In order to combat corruption internationally, including judicial corruption, the United
States adopted the Foreign Corrupt Practices Act of 1977. 15 U.S.C. §78dd-1. Subsequently,
in 1997, numerous states voted to adopt a similar convention, the Convention on
Combating Bribery of Foreign Public Officials in International Business Transactions of 17
December 1997 (“OECD Convention”), which entered into force on 15 February 1999.
559) Courts in some non-English-speaking jurisdictions (e.g., Germany) have begun to conduct
proceedings in certain international commercial matters in English, in part in an effort
to make local courts more attractive. Phillips, Open for Business: The German Commercial
Court, in English, The Lawyer (21 June 2010), available at www.thelawyer.com. The
practical efficacy of such arrangements remains uncertain.
560) The jury trial system, along with local discovery and evidentiary rules, methods of
judicial selection, the absence of fee-shifting and damages theories are often cited as
shortcomings in the United States. The divided legal profession, cost and length of
proceedings (particularly hearings) are often cited as shortcomings in England.
103
561) Ashenfelter, Eisenberg & Schwab, Politics and the Judiciary: The Influence of Judicial
Background on Case Outcomes, 24 J. Legal Studies 257, 266-70 (1995); Drahozal, Why
Arbitrate? Substantive Versus Procedural Theories of Private Judging, 22 Am. Rev. Int’l Arb.
163, 174 (2011).
562) Stipanowich, Rethinking American Arbitration, 63 Ind. L.J. 425, 435-38 (1987).
563) See§1.01[B][2], pp. 31-35.
Empirical Research 25, 32, 35 (2005); Naimark & Keer, International Private Commercial
Arbitration – Expectations and Perceptions of Attorneys and Business People, in C. Drahozal
& R. Naimark (eds.), Towards A Science of International Arbitration: Collected Empirical
Research 45, 49 (2005) (expertise as one of several significant objectives); Queen Mary,
University of London, 2006 International Arbitration Survey: International Arbitration:
Corporate Attitudes and Practices 6 (2006) (“The ability of parties to select arbitrators
with the necessary skills and expertise and who are well suited to the appropriate
cultural and legal context was also ranked highly.”; 4th in reasons cited by corporations
surveyed); Queen Mary, University of London, 2013 International Arbitration Survey:
Corporate Choices in International Arbitration: Industry Perspectives 8 (2013) (“In Financial
Services, the number one benefit is the expertise of decision-maker. This appears to be
in line with the perception that many disputes in the Financial Services sector are highly
technical…”; expertise of decision-maker ranked 1st overall across industries in
importance of perceived benefits of arbitration).
565) Positive Software Solutions, Inc. v. New Century Mortg. Corp., 476 F.3d 278, 285 (5th Cir.
2007) (describing expertise as one of arbitration’s “most attractive features apart from
speed and finality”); Judgment of 28 April 1999, Attorney Gen. of the Repub. of Kenya v.
Bank für Arbeit und Wirtschaft AG, XXV Y.B. Comm. Arb. 692, 694 (Cyprus S.Ct.) (2000)
(“familiarity of arbitrators with their subject matter”); Trebilock & Leng, The Role of
Formal Contract Law and Enforcement in Economic Development, 92 Va. L. Rev. 1517, 1541
(2006) (“As compared to public courts, the advantages of international commercial
arbitration in enforcing contracts include increased flexibility, technical expertise,
privacy, and confidentiality, all of which are important in satisfying the needs of private
parties for low-cost, expeditious, and effective resolution of contract disputes.”).
Empirical Research 25, 34 n.28 (2005).
567) Lazareff, International Arbitration: Towards A Common Procedural Approach, in S.
Frommel & B. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration: Old Issues
and New Trends 31, 33 (1999).
568) Gramling v. Food Mach. & Chem. Corp., 151 F.Supp. 853, 858 (W.D.S.C. 1957).
569) See§12.01[A].
Empirical Research 25, 33 (2005); Landau, Composition and Establishment of the Tribunal, 9
Am. Rev. Int’l Arb. 45 (1998); Queen Mary, University of London, 2010 International
Arbitration Survey: Choices in International Arbitration 2-3 (2010).
571) See§§25.03[A]-[C]; §26.03[B][1] for a discussion of the extent of judicial review in
annulment and recognition actions.
572) Some empirical research suggests that users are ambivalent about the absence of
appellate review. See, e.g., Queen Mary, University of London, 2006 International
Arbitration Survey: International Arbitration: Corporate Attitudes and Practices 7 (2006).
For a discussion of when companies might prefer appellate review, see Drahozal & Ware,
Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St. J. Disp. Res. 451, 455
(2010).
Empirical Research 25, 32, 35 (2005); Landes & Posner, Adjudication as A Private Good, 8 J.
Legal Studies 235, 238 (1979); Queen Mary, University of London, 2010 International
Arbitration Survey: Choices in International Arbitration 18 (2010) (“Efficiency and
promptness of court proceedings is the most important aspect of the convenience of a
seat.”); Shavell, Alternative Dispute Resolution: An Economic Analysis, 24 J. Legal Studies 1,
6 (1995).
574) See§25.07[B].
575) See§15.02[B]; §15.03[B]; AAA Optional Appellate Arbitration Rules; National Grain and
Feed Association Rules, §9 (appeals procedure).
104
576) See§15.02; Arbitration Application No. 3 of 2011, [2011] CSOH 164 (Scottish Ct. Sess.)
(Scottish Arbitration Act, 2010, “marks a new beginning for arbitration in Scotland,
recognising the desire in this field for party autonomy, privacy and finality”); D. Caron &
L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 30 (2d ed. 2013) (“procedural
flexibility…is generally regarded as one of the main advantages of arbitration”);
Drahozal, Business Courts and the Future of Arbitration, 10 Cardozo J. Conflict Res. 497
(2008-2009) (citing control of parties over decision maker and procedural flexibility);
Rau, The Culture of American Arbitration and the Lessons of ADR, 40 Tex. Int’l L.J. 449, 534
(2005) (“parties can experiment with dispute resolution – cutting and tailoring, shaping
and adapting different processes to meet their own particular needs”); Stipanowich, The
Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute
Resolution, 8 Nev. L.J. 427, 432 (2007) (“The principle of freedom to choose among
procedural options suffuses nearly all aspects of arbitration, and the wide arbitration
spectrum includes a considerably rich and diverse array of procedures…”).
577) See§25.04[B][3][c]; §26.05[C][3][b][iii].
578) Restatement (Second) Conflict of Laws §187 (1971); Berger, Party Autonomy in International
Commercial Arbitration, 4 Am. Rev. Int’l Arb. 1 (1993); Böckstiegel, The Role of Party
Autonomy in International Arbitration, 54 Disp. Res. J. 24 (1997); L. Collins (ed.), Dicey,
Morris and Collins on The Conflict of Law ¶¶16-006 et seq. (15th ed. 2012); P. Nygh,
Autonomy in International Contracts (1999); Zhang, Party Autonomy and Beyond: An
International Perspective of Contractual Choice of Law, 20 Emory Int’l L. Rev. 511 (2006).
See also International Law Institute, Resolution on the Autonomy of the Parties in
International Contracts Between Private Persons or Entities, 64 Ann. Inst. Droit Inter. 383
(1992).
579) See, e.g., Harbour Ass. Co. (U.K.) Ltd v. Kansa Gen. Int’l Ins. Co. [1993] 3 All ER 897, 903
(English Ct. App.) (“there is the imperative of giving effect to the wishes of the parties
unless there are compelling reasons of principle why it is not possible to do so”);
Fassberg, Lex Mercatoria – Hoist With Its Own Petard?, 5 Chicago J. Int’l L. 67, 77 (2004)
(“The principle of party autonomy so essential to international trade is a central
principle of all aspects of private international law. It is expressed in the willingness of
national law to acknowledge the autonomy of parties to resolve disputes outside the
system, and to provide tools for enforcing that autonomy – enforcing agreements and
awards irrespective of their content. It is expressed further in the willingness of almost
all systems to allow parties to choose almost any national law to govern their
relationship.”); Mills, The Private History of International Law, 55 Int’l & Comp. L.Q. 1, 7
n.302 (2006); Reich, A European Contract Law: Ghost or Host for Integration, 24 Wisc. Int’l
L.J. 425 (2006).
580) Bernardini, The Role of the International Arbitrator, 20 Arb. Int’l 113, 115 (2004); M. Bühler
& T. Webster, Handbook of ICC Arbitration: Commentary, Precedents, Materials 1vii (2d ed.
2008) (“One of the fundamental principles that forms the basis and runs through most
aspects of modern international arbitration is party autonomy.”).
Where parties do not agree upon arbitral procedures, the arbitrators are granted
expansive authority to prescribe procedural rules (which may differ substantially from
those used for litigation in national courts). See§15.03.
581) Interim Award in ICC Case No. 7929, XXV Y.B. Comm. Arb. 312, 317 (2000).
582) See, e.g., ILC, Memorandum on Arbitral Procedure, Prepared by the Secretariat, U.N. Doc.
A/CN.4/35, II Y.B. I.L.C. 157, 161 (1950) (“The parties are of course free to refer their
questions to any person or body available, or to create a tribunal in whatever shape they
may wish…”).
583) See§15.02 for a discussion of the parties’ autonomy with regard to procedural matters.
584) See§§15.01[A]-[B]; §15.08[AA][7]; §15.08[BB].
585) See§15.08[MM].
586) See§2.02[C][2][g].
587) See§15.02; §15.07[D]; Chapter 16. See also Lufuno Mphaphuli & Assocs. Pty Ltd v. Andrews,
[2009] ZACC 6, ¶219 (South African Const. Ct.) (“The decision to refer a dispute to private
arbitration is a choice which, as long as it is voluntarily made, should be respected by
the courts. Parties are entitled to determine what matters are to be arbitrated, the
identity of the arbitrator, the process to be followed in the arbitration, whether there
will be an appeal to an arbitral appeal body and other similar matters.”).
588) Queen Mary, University of London, 2013 International Arbitration Survey: Corporate
Choices in International Arbitration: Industry Perspectives 8 (2013) (“Flexibility of
procedure” cited as second most important benefit of arbitration to the energy
industry); Queen Mary, University of London, 2008 International Arbitration Survey:
International Arbitration: Corporate Attitudes and Practices 2, 5 (2008) (“Flexibility of
procedure” cited as prime advantage of international arbitration); T. Stipanowich & P.
Kaskell, Commercial Arbitration At Its Best: Successful Strategies for Business Users: A
Report of The CPR Commission on The Future of Arbitration xxiii (2001) (“Ultimately,
control over the process – the flexibility to make arbitration what you want it to be – [is]
the single most important advantage of binding arbitration.”).
105
589) Carlston, Theory of the Arbitration Process, 17 Law & Contemp. Probs. 631, 650 (1952)
(“source of strength” of commercial arbitration “lies in the fact that it is a mode of trial,
to which the laws of evidence are largely inapplicable because they are a product of the
problem of communicating facts to a jury…communicating facts to an arbitrator can
become enormously simplified, if he be skilled and expert in the field”); Stipanowich,
Contract and Conflict Management, 2001 Wisc. L. Rev. 831.
590) 2012 London Maritime Arbitration Association Terms (maritime); 2013 German Maritime
Arbitration Association Rules (maritime); 2010 Society of Maritime Arbitration Rules
(maritime); 2004 China Maritime Arbitration Commission Arbitration Rules (maritime);
2010 Tokyo Maritime Arbitration Commission of Japan Shipping Exchange, Inc.
Arbitration Rules (maritime); 2013 Vancouver Maritime Arbitration Association Rules
(maritime); C. Ambrose & K. Maxwell, London Maritime Arbitration (3d ed. 2009); F. Rose,
International Commercial and Maritime Arbitration (1988).
591) D. Johnson, International Commodity Arbitration (1991); National Grain and Feed
Association Arbitration Rules (2008) (selected commodities disputes). See also
Bernstein, Private Commercial Law in the Cotton Industry: Creating Cooperation Through
Rules, Norms, and Institutions, 99 Mich. L. Rev. 1724 (2001).
592) ARIAS Procedures for the Resolution of U.S. Insurance Reinsurance Disputes (1999);
ARIAS-UK Arbitration Rules (1997).
593) Rail Arbitration Rules of the National Grain and Feed Association (2005).
594) AAA Labor Arbitration Rules (2007); AAA Rules for Impartial Determination of Union Fees
(1988); JAMS Employment Arbitration Rules (2009).
595) This was historically one of the reasons cited in favor of arbitration. See§§1.01[B][1]-[2] &
[5]; UNCITRAL, Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on
International Commercial Arbitration as Amended in 2006 ¶15 (2008) (“the parties to an
arbitration agreement make a conscious decision to exclude court jurisdiction and
prefer the finality and expediency of the arbitral process”); Stipanowich, Arbitration and
Choice: Taking Charge of the “New Litigation”, 7 DePaul Bus. & Comm. L.J. 383 (2009);
Sussman, Why Arbitrate: The Benefits and Savings, 7 Transnat’l Disp. Mgt 2 (2010).
Speed and efficiency are also frequently referred to in contemporary judicial
authorities. See§15.01[B]; Stolt-Nielsen SA v. Animalfeeds Int’l, 130 S.Ct. 1758, 1775 (U.S.
S.Ct. 2010) (“In bilateral arbitration, parties forgo the procedural rigor and appellate
review of the courts in order to realize the benefits of private dispute resolution: lower
costs, greater efficiency and speed, and the ability to choose expert adjudicators to
resolve specialized disputes.”); Folkways Music Publ’rs, Inc. v. Weiss, 989 F.2d 108, 111 (2d
Cir. 1993) (“twin goals of arbitration, namely settling disputes efficiently and avoiding
long and expensive litigation”); Bull HN Info. Sys. v. Hutson, 229 F.3d 321, 329 (1st Cir.
2000) (“The purpose of arbitration in large part is to have simplified, expedited
proceedings and courts should be reluctant to adopt rules which interfere with the
accomplishment of those purposes.”); Fradella v. Petricca, 183 F.3d 17, 19 (1st Cir. 1999)
(“The primary purpose served by the arbitration process is expeditious dispute
resolution.”).
596) Revised Uniform Arbitration Act, Prefatory Note (2000); Stipanowic & Lamare, Living with
ADR: Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in
Fortune 1,000 Corporations, Pepperdine Univ. Legal Studies Research Paper No. 2013/16,
14-15 (2013) (“Most respondents believed arbitration to be ‘better, faster and cheaper
than litigation.’”).
597) Diapulse Corp. of Am. v. Carba, Ltd, 626 F.2d 1108, 1110 (2d Cir. 1980).
598) See, e.g., Croft, Arbitrators Disappoint in Business Disputes, Study Finds, Financial Times 7
(4 October 2010) (“Half of the multinational companies using arbitration to settle
business disputes have been disappointed with the performance of their arbitrator.”);
Lyons, Arbitration: The Slower, More Expensive Alternative, The American Lawyer 107
(Jan/Feb 1985); Silberman, International Arbitration: Comments From A Critic, 13 Am. Rev.
Int’l Arb. 9 (2002).
599) Blue Tee Corp. v. Koehring Co., 999 F.2d 633, 634 (2d Cir. 1993).
Choices in International Arbitration: Industry Perspectives 5 (2013) (“Some interviewees
have expressed concerns over the ‘judicialization’ of arbitration, the increased formality
of proceedings and their similarity with litigation, along with the associated costs and
delays in proceedings. This trend is potentially damaging to the attractiveness of
arbitration. In-house counsel value the features of the arbitration process that
distinguish it from litigation.”).
601) Wetter, The Present Status of the International Court of Arbitration of the ICC: An Appraisal,
1 Am. Rev. Int’l Arb. 91, 103 (1990). See Chartered Institute of Arbitrators, Costs of
International Arbitration Survey (2011); Kerr, International Arbitration v. Litigation, 1980 J.
Bus. L. 164, 164-65, 175-78 (“Arbitral tribunals have to be paid, whereas court fees are
often negligible. In important cases, three arbitrators, or two and an umpire, are usually
preferred to a single arbitrator, and this greatly adds to the costs and complexities. If
the arbitrators are busy men, as they usually are, arbitration can be much more
protracted than litigation…”).
106
602) See, e.g., Goldhaber, 2011 Arbitration Scorecard: High Stakes, The American Lawyer 1 (1
July 2011) (between 2009 and early 2011, 113 pending international arbitrations where
amount in dispute was $1 billion or more were reported); Perry, The GAR 30 Unveiled, GAR
News (12 March 2012) (GAR’s measure of total value of international arbitration claims
and counterclaims that reached merits stage increased over 100% from $96 billion in
2010 to $206 billion in 2011).
603) Schneider, Not Quite A World Without Trials: Why International Dispute Resolution Is
Increasingly Judicialized, 2006 J. Disp. Res. 119.
604) See§13.05[B]; §15.08[T].
605) See§1.02[A][1].
606) See§15.08[O]; Chartered Institute of Arbitrators, Costs of International Arbitration Survey
112 (2011) (“average length of an arbitration is between 17 and 20 months”); Dabdoub &
Cox, Which Costs Less: Arbitration or Litigation?, InsideCounsel 2 (6 December 2012) (“the
median arbitration case lasted 21 months”).
607) See§15.08[O]; Welser & Klausegger, The Arbitrator and the Arbitration Procedure – Fast
Track Arbitration: Just Fast or Something Different?, 2009 Austrian Arb. Y.B. 259.
608) Bureau of Justice Statistics, Civil Justice Survey of State Courts (CJSSC), Bureau of Justice
Statistics 2005, available at bjs.ojp.usdoj.gov (for state court contract cases in 75 largest
U.S. counties, average length of time from case filing to trial in jury cases was 25.3
months and for bench trials was 18.4 months); Judicial Business of the United States
Courts, 2011 Annual Report of the Director, Table C-5, 156, Table B-4, 83, available at
www.uscourts.gov (median of 23.4 months through trial in federal courts, with median in
various districts ranging from 12.3 to 37.6 months; median through appeal of 29.3
months); Judicial Business of the United States Courts, 2009 Annual Report of the Director,
Table C-5, 172 (median of 23.4 months through trial in federal courts, with median in
various districts ranging from 14.9 to 57.3 months; median through appeal of 32.1
months).
609) Kumar, Judicial Delays in India: Causes & Remedies, 4 J. L. Pol’y & Glob. 16, 16 (2012) (15
years on average to resolve case in Indian courts); Government of India/Law Commission
of India, Report No. 230 Reforms in the Judiciary – Some Suggestions 14 (2009) (noting that
it “often takes 10 - 20 - 30 or even more years before a matter is finally decided”).
610) See§1.02[B][5]; §25.02[B]; §26.03[B].
611) It may be possible to compare more precisely the relative speed and cost of
international arbitration and particular national courts with respect to a specific kind of
contract or category of disputes. But, even here, the uncertainties of appellate review,
summary dispositions, and other procedural developments will make predictions
difficult.
Empirical Research 25, 32, 35 (2005); Naimark & Keer, International Private Commercial
Arbitration – Expectations and Perceptions of Attorneys and Business People, in C. Drahozal
& R. Naimark (eds.), Towards A Science of International Arbitration: Collected Empirical
Research 49 (2005) (cost and speed one of several significant objectives); Queen Mary,
Corporate Attitudes and Practices 2 (2008) (“length of time and the costs of International
Arbitration are seen as…disadvantages”); Queen Mary, University of London, 2013
International Arbitration Survey: Corporate Choices in International Arbitration: Industry
Perspectives 5 (2013) (“For respondents who considered arbitration not to be well suited
to their industry, costs and delay were cited as the main reasons more than any other
factors…”).
613) Judicial authorities provide a measure of anecdotal confirmation. See, e.g., Mitsubishi
Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (U.S. S.Ct. 1985) (party
agreeing to arbitration “trades the procedures and opportunity for review of the
courtroom for the simplicity, informality, and expedition of arbitration”); McDonald v.
City of W. Branch, 466 U.S. 284, 292 (U.S. S.Ct. 1984); Judgment of 28 April 1999, Attorney
Gen. of the Repub. of Kenya v. Bank für Arbeit und Wirtschaft AG, XXV Y.B. Comm. Arb. 692,
694 (Cyprus S.Ct.) (2000) (“The length of time required for an action within the state
judicial system, the use of time-consuming judicial means which add to the delay, the
familiarity of arbitrators with their subject matter, the rigidity of regular judicial means,
are some of the reasons for which the institution of arbitration has flourished and been
established for disputes of various natures.”).
614) The difference between “privacy,” where third parties are customarily denied access to
hearings, and “confidentiality,” where parties are legally prohibited from disclosing
matters relating to the arbitration to third parties, are discussed below. See§20.01, pp.
2782-83; §20.05.
615) Nonetheless, there are often no legally-enforceable guarantees of confidentiality.
See§20.03[C]; §20.03[D][2].
616) See§20.01; Drahozal, Business Courts and the Future of Arbitration,10 Cardozo J. Conflict
Res. 491, 499 (2008-2009); Kann, A Report Card on the Quality of Commercial Arbitration:
Assessing and Improving Delivery of the Benefits Customers Seek, 7 DePaul Bus. & Comm.
L.J. 499, 502 (2009); Rogers, Transparency in International Commercial Arbitration, 54 Kan.
L. Rev. 1301, 1304 (2006).
617) SeeChapter 20 for a discussion of confidentiality in international arbitration.
618) See§20.03[D].
107
619) See§20.03[D][2].
620) See§§20.03[C]-[E]. It is possible to reduce these risks of disclosure by a counter-party,
through appropriately-drafted confidentiality provisions. SeeG. Born, International
Arbitration and Forum Selection Agreements: Drafting and Enforcing 12, 119-21 (4th ed.
2013); §20.03[B].
621) Empirical research suggests that confidentiality is a material, but not primary,
motivation for international arbitration agreements. Bühring-Uhle, A Survey on
Arbitration and Settlement in International Business Disputes, in C. Drahozal & R. Naimark
(eds.), Towards A Science of International Arbitration: Collected Empirical Research 25, 35
(2005) (confidentiality third in list of 11 reasons for arbitration); Queen Mary, University
of London, 2010 International Arbitration Survey: Choices in International Arbitration 29-31
(2010).
622) As discussed below, this is the practice in some industry sectors (e.g., some maritime,
commodities and other “trade” arbitrations). See§20.10, pp. 2817-18; Bernstein, Opting
Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J.
Legal Studies 115, 124-30 (1992) (quoting Diamond Dealers’ Club Arbitration Bylaws, Art.
12(26): “All decisions of arbitration panels…which are not complied with within 10
working days, together with the picture of the non-complying member, shall be posted in
a conspicuous place in the Club rooms” and communicated to other diamond exchanges
internationally).
Empirical Research 25, 35 (2005).
This perception has deep historic roots. Baker, From Lovedays to ADR: Arbitration and
Dispute Resolution in England 1066-1800, 3(5) Transnat’l Disp. Mgt 1, 5 (2006) (13th century
submission agreements disposing of pending litigations by way of referral to “arbitration
of friends”); Arbitration of Interstate Commercial Disputes: Joint Hearings on S. 1005 and
H.R. 646 Before the Subcommittee of the Committees on the Judiciary, 68th Cong., 1st Sess.,
7 (1924) (arbitration “preserves business friendships…It raises business standards. It
maintains business honor, prevents unnecessary litigation and eliminates the law’s
delay by relieving our courts.”).
624) See§8.02[B]; §13.06[B] for a discussion of the parties’ obligations to cooperate in the
arbitral process.
625) This is not always the case. Sometimes, the uncertainties of a random dispute resolution
process, or the hardships of an arbitrary process, do more to encourage settlement. See
Park, Arbitration’s Protean Nature: The Value of Rules and the Risks of Discretion, 19 Arb.
Int’l 279, 279 (2003) (recounting proverb involving Chinese emperor who encouraged
settlements by providing abusive and arbitrary judiciary).
626) Users of arbitration rank amicable dispute resolution and future relations relatively low
on the important objectives of international arbitration. Bühring-Uhle, A Survey on
Arbitration and Settlement in International Business Disputes, in C. Drahozal & R. Naimark
(eds.), Towards A Science of International Arbitration: Collected Empirical Research 25, 35
(2005); Naimark & Keer, International Private Commercial Arbitration – Expectations and
Perceptions of Attorneys and Business People, in C. Drahozal & R. Naimark (eds.), Towards
A Science of International Arbitration: Collected Empirical Research 43, 52 (2005).
627) For an idiosyncratic critique of efforts to promote settlement, in a domestic setting, see
Fiss, Against Settlement, 93 Yale L.J. 1073, 1075 (1983-1984) (alternative dispute resolution
“is a capitulation to the conditions of mass society and should be neither encouraged
nor praised”).
628) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 231-356,
797-857 (5th ed. 2011).
629) See Annacker & Greig, State Immunity and Arbitration, 15(2) ICC Ct. Bull. 70 (2004);
Bockstiegel, States in the International Arbitral Process, 2 Arb. Int’l 22 (1986); Bowett,
State Contracts With Aliens: Contemporary Developments on Compensation for
Termination or Breach, 59 Brit. Y.B. Int’l L. 49 (1988); Fox, States and the Undertaking to
Arbitrate, 37 Int’l & Comp. L.Q. 1 (1988); Gaillard, Effectiveness of Arbitral Awards, State
Immunity From Execution and Autonomy of State Entities: Three Incompatible Principles, in
E. Gaillard & J. Younan, State Entities in International Arbitration 179 (2008); Heiskanen,
State as A Private: The Participation of States in International Commercial Arbitration, 7(1)
Transnat’l Disp. Mgt (2010); Shore, You Can Bet the Company But Not the State: The Proper
and Improper Conduct of Sovereigns in Arbitration, 3 World Arb. & Med. Rev. 465 (2009);
Silva Romero, The Dialectic of International Arbitration Involving State Parties, 15(2) ICC
Ct. Bull. 79 (2004).
630) See, e.g., U.S. Foreign Sovereign Immunities Act, 28 U.S.C. §§1605(a)(1), 1605(a)(6), 1610(a)
(5); European Convention on State Immunity, Art 12(1); U.K. State Immunity Act, 1978,
§9(1); Canada State Immunity Act; Australian Foreign States Immunities Act, 2010,
§§17(1)-(3). See also Annacker & Greig, State Immunity and Arbitration, 15(2) ICC Ct. Bull. 70
(2004); K. Böckstiegel, Arbitration and State Enterprises: Surveys on the National and
International State of Law and Practice 40 (1984); Gaillard, Effectiveness of Arbitral
Awards, State Immunity From Execution and Autonomy of State Entities: Three
Incompatible Principles, in E. Gaillard & J. Younan (eds.), State Entities in International
Arbitration 179 (2008).
108
631) See, e.g., 28 U.S.C. §1610(a)(6); U.K. State Immunity Act, 1978, §§9, 13(2); Australian Foreign
States Immunities Act, 2010, §17(2); Creighton v. Ministère des Finances de l’Etat du Qatar,
15(9) Int’l Arb. Rep. A-1 (2000) (French Cour de cassation civ. 1re). See also Annacker &
Greig, State Immunity and Arbitration, 15(2) ICC Ct. Bull. 70 (2004); J. Dellapenna, Suing
Foreign Governments and Their Corporations 774-75 (2d ed. 2003).
632) See K.-H. Böckstiegel, Arbitration and State Enterprises: Surveys on the National and
International State of Law and Practice 20 (1984) (33% of ICC arbitrations in 1980s involve
state entities); ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 10 (2013) (9.9% of ICC
arbitrations filed in 2012 involved state or state entity). Conservatively assuming some
3,000 international arbitrations filed per year (§1.03, pp. 93-95), with 10% involving state
entities, roughly 300 international arbitrations involving state entities are filed each
year. If a more realistic figure, of 5,000 international arbitrations per year is used, then
there are some 500 arbitrations filed per year involving states or state entities.
633) Buchanan, Public Policy and International Commercial Arbitration, 26 Am. Bus. L.J. 511, 512
(1988). See Aksen, The Need to Utilize International Arbitration, 17 Vand. J. Transnat’l L. 11
(1984); Paulsson, International Arbitration Is Not Arbitration, 2008:2 Stockholm Int’l Arb.
Rev. 1, 2 (“In the transnational environment, international arbitration is the only game. It
is a de facto monopoly.”).
634) Lyons, Arbitration: The Slower, More Expensive Alternative, The American Lawyer 107
(Jan/Feb 1985).
635) In re Canadian Gulf Line, 98 F.2d 711, 714 (2d Cir. 1938) (Learned Hand, J.).
636) Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 987 n.32 (2d Cir. 1942). See
also Bell Canada v. ITT Telecomms. Corp., 563 F.Supp. 636, 641-42 (S.D.N.Y. 1983)
(“Arbitration is not a one-way street. It has its drawbacks as well as advantages.”).
637) See§1.01[B].
638) See Queen Mary, University of London, 2013 International Arbitration Survey: Corporate
Choices in International Arbitration: Industry Perspectives 6 (2013) (“Overall, the ‘2013
International Arbitration Survey’ results confirm that…arbitration continues to be more
popular than any of the other options available.”).
639) Lalive, Transnational (or Truly International) Public Policy and International Arbitration, in
P. Sanders (ed.), Comparative Arbitration Practice and Public Policy in Arbitration 257, 293
(ICCA Congress Series No. 3 1987).
A study of domestic commercial arbitration in the mid-20th century United States
concluded that a substantial percentage of U.S. commercial disputes were arbitrated
(rather than litigated). Mentschikoff, The Significance of Arbitration – A Preliminary
Inquiry, 17 Law & Contemp. Probs. 698, 698 (1952) (“preliminary inquiry suggests that if we
lay aside first the cases in which the government is a party and second the accident
cases, then the matters going to arbitration rather than to the courts represent 70 per
cent or more of our total civil litigation”).
640) See§1.03.
641) See§1.03. See also C. Drahozal & R. Naimark, Towards A Science of International
Arbitration: Collected Empirical Research App UNCITRAL Model Law, 2006 Revisionsendix
1, 341 (2005).
642) The International Centre for the Settlement of Investment Disputes registered 37 new
arbitrations (and one conciliation) in 2011 and 48 new arbitrations (and two
conciliations) in 2012. ICSID, The ICSID Caseload: Statistics 7 (2014); ICSID, The ICSID
Caseload: Statistics 7 (2013); ICSID, The ICSID Caseload: Statistics 8 (2012). See Aksen,
International Arbitration – Its Time Has Arrived, 14 Case Western Reserve J. Int’l L. 247
(1982); C. Drahozal & R. Naimark, Towards A Science of International Arbitration: Collected
Empirical Research Appendix 1, 341 (2005); Stein & Wotman, International Commercial
Arbitration in the 1980s, 38 Bus. Law. 1685 (1983).
643) C. Drahozal & R. Naimark, Towards A Science of International Arbitration: Collected
Empirical Research Appendix 1, 341 (2005). See also C. Drahozal & R. Naimark, Towards A
Science of International Arbitration: Collected Empirical Research 344 (2005) (for ICC 1921-
2003); J. Wetter, The International Arbitral Process: Public and Private 124 (1979) (for AAA
1975-1977); www.sccinstitute.com (for SCC domestic and international case load 1998-
2011); www.hkiac.org (for CIETAC and HKIAC 1985-2011).
644) Naimark & Keer, International Private Commercial Arbitration – Expectations and
Perceptions of Attorneys and Business People, in C. Drahozal & R. Naimark (eds.), Towards
A Science of International Arbitration: Collected Empirical Research 45 (2005); Queen Mary,
Corporate Attitudes and Practices 2, 5 (2008).
109
645) C. Drahozal & R. Naimark, Towards A Science of International Arbitration: Collected
Empirical Research 59 (2005) (88% of surveyed international joint venture agreements
contain arbitration clauses); Naimark, Building A Fact-Based Global Database: The
Countdown, 20 J. Int’l Arb. 105, 106 (2003).
For a contrary, if flawed, analysis in domestic U.S. contracts, see Eisenberg & Miller, The
Flight From Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in the Contracts
of Publicly Held Companies, 56 DePaul L. Rev. 335 (2007) (relying on limited sample of
contracts in domestic settings to conclude that arbitration is not frequently used in
lending and similar financial transactions). Compare Benson, To Arbitrate or to Litigate:
That Is the Question, 8 Eur. J. L. & Econ. 91 (1999); Drahozal & Ware, Why Do Businesses Use
(or Not Use) Arbitration Clauses, 25 Ohio State J. Disp. Res. 433 (rebutting Eisenberg
study); Koremenos, If Only Half of International Agreements Have Dispute Resolution
Provisions, Which Half Needs Explaining?, 36 J. Legal Stud. 189 (2007) (same).
646) Janssen & Spilker, The Application of the CISG in the World of International Commercial
Arbitration, 77 RabelZ 131, 134 (2013) (based on analyses of PACE database, “at least 70-
80% of CISG-related cases hav[e] been settled by arbitral tribunals”).
647) Queen Mary, University of London, 2010 International Arbitration Survey: Choices in
International Arbitration 5 (2010). Broadly similar results were reached in the Fulbright
7th Annual Litigation Trends Survey (of 403 corporate in-house counsel), where 48% of
respondents favored international arbitration in cross-border contracts, 21% preferred
national courts, 21% used both methods and 10% favored other means of dispute
resolution. Fulbright & Jaworski LLP, Fulbright’s 7th Annual Litigation Trends Survey Report
21 (2010).
Choices in International Arbitration: Industry Perspectives 6 (2013) (52% of respondents
identified international arbitration as their preferred mechanism for dispute resolution:
“Conventional wisdom, anecdotal evidence and prior research all suggest that
arbitration is the business community’s preferred mechanism for resolving international
disputes.”).
649) SeeJudgment of 10 June 2004, Bargues Agro Industrie SA v. Young Pecan Cie, XXX Y.B.
Comm. Arb. 499, 502 (Paris Cour d’appel) (2005) (“Arbitration is the usual means of
dispute settlement in international commerce.”); Messrs. Eckhardt & Co. v. Mohammad
Hanif, PLD 1993 SC 42, 52 (Pakistan S.Ct. 1993) (“With the development and growth of
International Trade and Commerce and due to modernization of
Communication/Transport systems in the world, the contracts containing such an
arbitration clause are very common nowadays.”); Aksen, International Arbitration – Its
Time Has Arrived, 14 Case Western Reserve J. Int’l L. 247 (1982); K.-P. Berger, International
Economic Arbitration 8 (1993); R. Schütze, D. Tscherning & W. Wais, Handbuch des
Schiedsverfahrens ¶34 (1990); Stein & Wotman, International Commercial Arbitration in
the 1980s, 38 Bus. Law. 1685 (1983).
650) See Chambers, Global Guide: The World’s Leading Lawyers (2012); Y. Dezalay & B. Garth,
Dealing in Virtue: International Commercial Arbitration and the Construction of A
Transnational Legal Order (1996).
651) See Rogers, The Arrival of the “Have-Nots” in International Arbitration, 8 Nev. L.J. 341
(2007); Youssef, The Death of Inarbitrability, in L. Mistelis & S. Brekoulakis (eds.),
Arbitrability: International and Comparative Perspectives 47-68 (2009).
652) See§1.04[A][6].
653) Hill, On-Line Arbitration: Issues and Solutions, 15 Arb. Int’l 2 (1999); Hörnle, Online Dispute
Resolution, in J. Tackaberry & A. Marriott (eds.), Bernstein’s Handbook of Arbitration and
Dispute Resolution Practice (4th ed. 2003); Kallel, Online Arbitration, 25 J. Int’l Arb. 345
(2008); G. Kaufmann-Kohler & T. Schultz, Online Dispute Resolution: Challenges for
Contemporary Justice (2004).
654) Ganguly, Tribunals and Taxation: An Investigation of Arbitration in Recent Tax Conventions,
29 Wisc. Int’l L.J. 735 (2012); Gildemeister & Koppensteiner, Arbitration Clauses in Tax
Treaties (Conference Report), 7(1) Transnat’l Disp. Mgt (2010); Park, Tax Arbitration and
Investor Protection, in C. Rogers & R. Alford (eds.), The Future of Investment Arbitration 227
(2009); Walck, Tax and Currency Issues in International Arbitration, 3 World Arb. & Med.
Rev. 173 (2009).
655) See§10.08.
656) See British American Tobacco Cooperation Agreement, 2010; Japan Tobacco International
Cooperation Agreement, 2007; Imperial Tobacco Limited Co-Operation Agreement, 2010;
Philip Morris International Anti-Contraband and Anti-Counterfeit Agreement and General
Release, 2004.
657) PCA, Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (2011).
658) Alford, Arbitrating Human Rights, 83 Notre Dame L. Rev. 505 (2008); Eliasoph, A Missing
Link: International Arbitration and the Ability of Private Actors to Enforce Human Rights
Norms, 10 N. E. J. Int’l & Comp. L. 83 (2004).
659) Rogers, International Arbitration’s Public Realm, in A. Rovine (ed.), Contemporary Issues in
International Arbitration and Mediation: The Fordham Papers 2010 165 (2011).
660) Born, A New Generation of International Adjudication, 61 Duke L.J. 775 (2012); Malkawi,
Arbitration and the World Trade Organization, 24 Arb. Int’l 173 (2007); Spain, Integration
Matters: Rethinking the Architecture of International Dispute Resolution, 32 U. Pa. Int’l L.J.
1 (2010).
110
661) For discussion of the circumstances in which parties are likely to favor forum selection
clauses, seeG. Born, International Arbitration and Forum Selection Agreements: Drafting
and Enforcing 2-13 (4th ed. 2013); Brekoulakis, The Notion of the Superiority of Arbitration
Agreements Over Jurisdiction Agreements: Time to Abandon It?, 24 J. Int’l Arb. 341 (2007); P.
Friedland, Arbitration Clauses for International Contracts 7-36 (2d ed. 2007).
662) See K.-P. Berger, International Economic Arbitration 8 n.62 (1993) (“About ninety percent of
international economic contracts contain an arbitration clause.”); Menkel-Meadow, Are
Cross-Cultural Ethics Standards Possible or Desirable in International Arbitration?, in P.
Gauch, P. Pichonnaz & F. Werro (eds.), Mélanges en l’honneur de Pierre Tercier 883, 884 n.2
(2008) (“It is widely estimated that 90% of all international contracts contain arbitration
clauses”); A. van den Berg, Arbitragerecht 134 (1988).
663) See§1.01[A][2]; §1.04[E]; §2.01[A][1].
664) See§2.01[A][1]; §§5.01[A]-[B]; Chapter 8; N. Blackaby et al. (eds.), Redfern and Hunter on
International Arbitration ¶1.06 (5th ed. 2009) (“The practice of resolving disputes by
international commercial arbitration only works because it is held in place by a
complex system of national laws and international treaties.”).
665) SeePart III; Chapter 26.
666) See§§1.01[B][2]-[8].
667) See§§1.01[B][4]-[5].
668) See§1.01[B][3].
669) See§1.02.
670) Veeder, The Lawyer’s Duty to Arbitrate in Good Faith, in L. Lévy & V. Veeder (eds.),
Arbitration and Oral Evidence 115, 118 (2004). See also D. Caron & L. Caplan, The UNCITRAL
Arbitration Rules: A Commentary 2 (2d ed. 2013) (“an effective system of international
dispute resolution is indispensable to the growth of more complex transnational
arrangements, and – for the foreseeable future – that system of resolution is primarily
international arbitration”); Paulsson, International Arbitration Is Not Arbitration, 2008:2
Stockholm Int’l Arb. Rev. 1.
671) David L. Threlkeld & Co. v. Metallgesellschaft Ltd, 923 F.2d 245, 248 (2d Cir. 1991).
672) See§1.01[C].
673) See§1.04[A]; §1.04[B][1].
674) See§1.01[C].
675) See§1.01[C]; §1.04.
676) Bilateral treaties relating to international commercial arbitration continue to exist
today. Many countries have entered into a number of friendship, commerce, and
navigation treaties that contain provisions relating to the mutual recognition and
enforcement of arbitration agreements and awards. See§1.04[A][7]. For the most part,
these treaties are of very limited practical import, given the efficacy of multilateral
conventions (and, particularly, the New York Convention).
Numerous states have entered into bilateral investment treaties, which address issues
relating to international arbitration of investment disputes. See§1.04[A][6]. These
treaties are much more significant internationally than bilateral treaties concerning
677) See Geneva Protocol, 27 L.N.T.S. 158 (1924); Geneva Convention, 92 L.N.T.S. 302 (1929);
§1.01[C]. Other early multilateral treaties included the Montevideo Convention, the
Hague Conventions of 1899 and 1907 and the Bustamante Code. See§1.01[A][5]; §1.01[C].
678) See§1.01[C].
679) The standard reference works on the Convention are: A. van den Berg, The New York
Arbitration Convention of 1958 (1981) and G. Gaja, International Commercial Arbitration:
The New York Convention (1978). See also M. Blessing (ed.), The New York Convention of
1958 (ASA Spec. Series No. 9 1996); UNCITRAL, 1958 New York Convention Guide; H. Kronke
et al. (eds.), Recognition and Enforcement of Foreign Arbitral Awards: A Global
Commentary on the New York Convention (2010); UNCITRAL, Report on the Survey Relating
to the Legislative Implementation of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, U.N. Docs. A/CN.9/656, A/CN.9/656/Add.1 (2008); United
Nations, Enforcing Arbitration Awards Under the New York Convention Experience and
Prospects (1998); R. Wolff (ed.), New York Convention: Convention on the Recognition and
Enforcement of Foreign Arbitral Awards of 10 June 1958 (2012).
680) New York Convention, 330 U.N.T.S., No. 4739 (1958).
681) Sanders, The History of the New York Convention, in A. van den Berg (ed.), Improving the
Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York
Convention 11 (ICCA Congress Series No. 9 1999).
682) A. van den Berg, The New York Arbitration Convention of 1958 7 (1981) (“although the
Geneva Treaties were undoubtedly an improvement in comparison with the previous
situation, they were still considered inadequate”).
683) G. Gaja, International Commercial Arbitration: The New York Convention (1978); ICC, Report
and Preliminary Draft Convention Adopted by the Committee on International Commercial
Arbitration at Its Meeting of 13 March 1953, reprinted in 9(1) ICC Ct. Bull. 32 (1998).
684) ICC, Report and Preliminary Draft Convention Adopted by the Committee on International
Commercial Arbitration at Its Meeting of 13 March 1953, reprinted in 9(1) ICC Ct. Bull. 32, 32
(1998).
685) A. van den Berg, The New York Arbitration Convention of 1958 6-10, 29-40 (1981).
111
686) ICC, Report and Preliminary Draft Convention Adopted by the Committee on International
Commercial Arbitration at Its Meeting of 13 March 1953, reprinted in 9(1) ICC Ct. Bull. 32, 32
(1998).
687) Resolution 520 (XVIII) of ECOSOC Council.
688) Report of the Committee on the Enforcement of International Arbitral Awards, U.N. Doc.
E/AC.42/4 (1955).
689) In particular, as discussed below, the ECOSOC rejected the notion of a-national arbitral
proceedings and awards, and instead insisted on rooting the arbitral process firmly in
national law (particularly the law of the arbitral seat). See§11.03[C][1][c][i], pp. 1547-48; A.
van den Berg, The New York Arbitration Convention of 1958 6-10, 29-40 (1981).
690) Sanders, The History of the New York Convention, in A. van den Berg (ed.), Improving the
Convention 11-12 (ICCA Congress Series No. 9 1999).
691) A. van den Berg, The New York Arbitration Convention of 1958 8 (1981) (“the fundamental
difference between the ICC Draft Convention of 1953 and the ECOSOC Draft Convention of
1955 was reconciled by a compromise reached at the Convention”).
692) A. van den Berg, The New York Arbitration Convention of 1958 8-10, 56 (1981).
693) See§1.01[C].
694) A. van den Berg, The New York Arbitration Convention of 1958 12-13 (1981).
695) See§2.01[A][1][a].
696) For a summary of these negotiations, seeSanders, The History of the New York Convention,
in A. van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40
Years of Application of the New York Convention 11 (ICCA Congress Series No. 9 1999); A.
van den Berg, The New York Arbitration Convention of 1958 1-10 (1981). For a useful
collection of the travaux preparatoires, see G. Gaja, The New York Convention (1978).
697) New York Convention, Art. XVI.
698) See§1.04[A][1][c][i]; Renusagar Power Co. v. Gen. Elec. Co., XX Y.B. Comm. Arb. 681, 685
(Indian S.Ct. 1993) (1995).
699) See New York Convention, Arts. III-V; §1.04[A][1][c][ii]; §26.03[B][1]. The shift in the burden
of proof was accomplished by Articles III and V, which required the award-creditor to
present only minimal evidence in support of recognition of an award (in Article III), while
specifying only limited grounds, which needed affirmatively to be proven, that could
result in non-recognition (in Article V). See§26.01[A]; §26.03[B][1].
700) See New York Convention, Art. V(1)(d); §1.04[A][1][c]; §11.03[C][1][c]; §15.02[A].
701) See New York Convention, Art. V(1)(a); §1.04[A][1][c][i].
702) See§1.01[C][2]; §26.03[B][4].
703) Summary Record of the Twenty-Fifth Meeting of the United Nations Conference on
International Commercial Arbitration, U.N. Doc. E/CONF.26/SR.25, 2 (1958).
704) Kaverit Steel & Crane Ltd v. Kone Corp., XIX Y.B. Comm. Arb. 643, 651 (Alberta Ct. App. 1992)
(1994). See also Repub. of Ecuador v. Chevron Corp., 2011 U.S. App. LEXIS 5351, at *14 (2d
Cir.) (federal policy favoring arbitration “is even stronger in the context of international
business transactions” where “arbitral agreements promote[] the smooth flow of
international transactions by removing the threats and uncertainty of time-consuming
and expensive litigation”) (quoting David L. Threlkeld & Co. v. Metallgesellschaft Ltd, 923
F.2d 245, 248 (2d Cir. 1991)); Park, Neutrality, Predictability and Economic Cooperation, 12 J.
Int’l Arb. 99 (1995); A. van den Berg, The New York Arbitration Convention of 1958 17-19
(1981); §1.01[C]; §1.04[A].
705) Summary Record of the Thirteenth Meeting of the United Nations Conference on
International Commercial Arbitration, U.N. Doc. E/CONF.26/SR.13, 3 (1958).
706) See§2.01[A][1][a]; §4.02[A][1]; §4.04[B][2][b]; §5.01[B][2]; §5.05[A]; §11.03[C][1][c] discussing
effect of the Convention on the recognition and enforcement of international arbitration
agreements.
707) See§11.03[C][1][c][ii]; §11.05[B][2].
708) The effect of the Convention on the conduct of international arbitral proceedings is
discussed below. See§11.03[C][1][c].
709) A. van den Berg, The New York Arbitration Convention of 1958 1 (1981).
710) Mustill, Arbitration: History and Background, 6(2) J. Int’l Arb. 43, 49 (1989).
711) Wetter, The Present Status of the International Court of Arbitration of the ICC: An Appraisal,
1 Am. Rev. Int’l Arb. 91, 93 (1990). See also Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 R.C.S.
649, 657 (Canadian S.Ct.) (New York Convention is “a great success”); Graving, Status of the
New York Arbitration Convention: Some Gaps in Coverage But New Acceptances Confirm Its
Vitality, 10 ICSID Rev. 1, 3 (1995) (“mortar of the edifice of international commercial
arbitration”); Kerr, Concord and Conflict in International Arbitration, 13 Arb. Int’l 121, 127
(1997) (“the foundation on which the whole of the edifice of international arbitration
rests”).
712) Schwebel, A Celebration of the United Nations New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, 12 Arb. Int’l 83, 85 (1996).
713) The Convention entered into force on the ninetieth day following the deposit of the third
instrument of ratification or accession. New York Convention, Art. XII(1).
714) UNCITRAL, Status: 1958 Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, available at www.uncitral.org.
112
715) Prior to 1980, the New York Convention had not been ratified or acceded to by (among
others) Algeria, Argentina, Bahrain, Bangladesh, Bolivia, Burkina Faso, Cameroon, China,
Costa Rica, Guatemala, Guinea, Haiti, Indonesia, Kenya, Laos, Lebanon, Malaysia, Mali,
Mauritania, Mozambique, Nepal, Panama, Paraguay, Peru, Saudi Arabia, Senegal,
Singapore, Turkey, Uruguay, Venezuela, Vietnam and Zimbabwe. Between 1980 and the
present, all of these states acceded to the Convention.
716) In the United States, historic distrust of arbitration and the domestic debate over the
appropriate scope of the federal treaty power and the authority of the several states led
to an initial recommendation from the U.S. delegation against ratifying the Convention.
Czysak & Sullivan, American Arbitration Law and the UN Convention, 13 Arb. J. 197 (1958);
Springer, The United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, 3 Int’l Law. 320 (1969). See also Paulsson, International Arbitration Is Not
Arbitration, 2008:2 Stockholm Int’l Arb. Rev. 1, 20 (U.S. ratification of New York Convention
opposed by Heinrich Kronstein, an out-spoken opponent of arbitration, who served as
Deputy Legal Adviser) (citing Kronstein, Business Arbitration – Instrument of Private
Government, 54 Yale L.J. 36 (1944)).
717) In 1970, the United States reconsidered its position and acceded to the Convention. See
Message From the President on the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, S. Exec. Doc. E, 90th Cong., 2d Sess. 18 (1968); Quigley, Accession
by the United States to the United Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, 70 Yale L.J. 1049 (1961).
718) Seewww.uncitral.org for a list of states that have ratified or acceded to the Convention.
719) See G. Petrochilos, Procedural Law in International Arbitration 16 (2004) (“The states party
to [the New York Convention] constitute a large and representative geographical, legal-
cultural, and economic sample of the international community…”).
720) In ratifying or acceding to the Convention, many states have attached reservations that
can have significant consequences in private disputes. These reservations frequently
deal with reciprocity and limiting the Convention’s applicability to disputes arising from
“commercial” relations. See§2.03[B][2]; §2.03[G].
721) It appears clear that the Convention’s terms apply to agreements made prior to the
Convention entering into effect. Fotochrome, Inc. v. Copal Co., 517 F.2d 512, 515 n.3 (2d Cir.
1975) (“the [New York] Convention contains no prospective language and should be
applied retroactively to existing arbitration agreements and awards”); A. van den Berg,
The New York Arbitration Convention of 1958 72-80 (1981).
722) See§1.04[B][1][a]. It is instructive to compare the broad statements of principle,
succinctly set forth in the Convention, with the much more detailed provisions of the
UNCITRAL Model Law. See§1.04[B][1][a].
723) See A. van den Berg, The New York Arbitration Convention of 1958 6, 54-55, 168-69, 262-63,
274, 357-58 (1981).
724) Scherk v. Alberto-Culver Co., 417 U.S. 506, 502 n.15 (U.S. S.Ct. 1974) (emphasis added). See
also Smith/Enron Cogeneration LP v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 96 (2d Cir.
1999) (“goal of simplifying and unifying international arbitration law”); D. Caron & L.
Caplan, The UNCITRAL Arbitration Rules: A Commentary 1 (2d ed. 2013) (“In essence, the
treaty allows private parties to use the coercive power of national courts to implement
private arrangements for international arbitration…”); A. van den Berg, The New York
Arbitration Convention of 1958 1-3 (1981).
725) See§4.04[B][2][b][ii].
726) See§11.03[C][1][c][ii].
727) A. van den Berg, The New York Arbitration Convention of 1958 1, 6, 54-55, 168-69, 262-63,
274, 357-58 (1981). See also Lindo v. NCL (Bahamas), Ltd, 652 F.3d 1257, 1285 (11th Cir. 2011)
(“These precedents [including Scherk] reveal the Supreme Court’s and our Circuit’s
recognition of the reciprocal nature of the Convention and the need for uniformity in the
enforcement of arbitration agreements.”); Certain Underwriters at Lloyd’s v. Argonaut Ins.,
500 F.3d 571, 580 (7th Cir. 2007) (“uniformity in determining the manner by which
agreements to arbitrate will be enforced is a critical objective of the Convention”); IPCO
(Nigeria) Ltd v. Nigerian Nat’l Petroleum Corp. [2008] EWCA Civ 1157, 553 (English Ct. App.)
(“we were however referred to an Austrian case, which the judge relied on, which is of
some relevance given the importance of uniformity in the interpretation of international
conventions”); Hebei Imp. & Exp. Corp. v. Polytek Eng’g Co., XXIV Y.B. Comm. Arb. 652, 675
(H.K. Ct. Fin. App. 1999) (1999) (“When a number of states enter into a treaty to enforce
each other’s arbitral awards, it stands to reason that they would do so in the realisation
that they, or some of them, will very likely have very different outlooks in regard to
internal matters. And they would hardly intend, when entering into the treaty or later
when incorporating it into their domestic law, that these differences should be allowed
to operate so as to undermine the broad uniformity which must be the obvious aim of
such a treaty and the domestic laws incorporating it.”); IMC Aviation Solutions Pty Ltd v.
Altain Khuder LLC, [2011] 253 FLR 9, 19-20 (Victoria Ct. App.); Judgment of 26 April 1980,
[1981] E.C.C. 183, 186 (Genoa Corte d’Appello) (“it is ‘necessary to depart from the
attitudes of the internal system’ in interpreting the basic core of the above Convention,
entered into to satisfy the need for greater expedition in decisions concerning
international trade relations and uniformity of substantive law and its interpretation,
already manifested by the growing concentration of disputes before existing arbitral
institutions”).
113
728) Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 R.C.S. 649, 657 (Canadian S.Ct.) (emphasis
added). See also Gas Auth. of India, Ltd v. SPIE-CAPAG, SA, XXIII Y.B. Comm. Arb. 688, 694
(Delhi High Ct. 1993) (1998) (“New York Convention lays down one uniform code” for
recognition of international arbitration agreements; “common yard stick…generates
confidence in the parties, who may be unfamiliar with the diverse laws prevailing in
different countries with which they are trading”).
729) New York Convention, Art. II(1). See§2.01[A][1][a]; §5.01[B][2]; §5.06[B][1].
730) New York Convention, Art. II(3).
731) New York Convention, Arts. III, V. “Recognition” of an arbitral award refers to giving
preclusive effect to the award, usually to bar relitigation of the claims that were
arbitrated; “enforcement” refers to the invocation of coercive judicial remedies to fulfil
the award. SeePart III; §22.01[B].
732) See§12.01[B][2].
733) Int’l Ins. Co. v. Caja Nacional De Ahorro y Seguro, 293 F.3d 392, 399 (7th Cir. 2002).
734) See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (U.S. S.Ct. 1974); Repub. of
Ecuador v. Chevron Corp., 2011 U.S. App. LEXIS 5351, at *14 (2d Cir.) (federal policy favoring
arbitration “is even stronger in the context of international business transactions”);
Polimaster Ltd v. RAE Sys., Inc., 623 F.3d 832, 841 (9th Cir. 2010) (“New York Convention was
enacted to promote the enforceability of international arbitration agreements”);
Judgment of 20 January 1987, Société Bomar Oil NV v. Entreprise Tunisienne d’Activités
Pétrolières, 1987 Rev. arb. 482, 485-86 (Paris Cour d’appel) (“facilitate dispute resolution
by way of international commercial arbitration”); Judgment of 30 September 2010, 2011
NJW-RR 569, 570 (German Bundesgerichtshof) (“With the New York Convention, the
enforcement of arbitration agreements should be facilitated internationally.”); Judgment
of 7 February 1984, Tradax Exp. SA v. Amoco Iran Oil Co., XI Y.B. Comm. Arb. 532, 535 (Swiss
Federal Tribunal) (1986) (“The purpose of the Convention is to facilitate the resolution of
disputes through arbitration…”); Renusagar Power Co. v. Gen. Elec. Co., XX Y.B. Comm. Arb.
681, 685 (Indian S.Ct. 1993) (1995) (“The purpose of this Convention was to widen the
scope of the Geneva Protocol of 1923…”); Altain Khuder LLC v. IMC Aviation Solutions Pty
Ltd, [2011] VSCA 248, ¶45 (Victoria Ct. App.) (“The New York Convention is widely
recognised in international arbitration circles as having a ‘pro-enforcement’ policy.”);
Automatic Sys. Inc. v. Bracknell Corp., (1994) 18 O.R.3d 257, 264 (Ontario Ct. App.) (“The
purpose of the United Nations conventions and the legislation adopting them is to
ensure that the method of resolving disputes, in the forum and according to the rules
chosen by the parties, is respected.”). See also§2.01[A][1][a].
735) See, e.g., Admart AG v. Stephen & Mary Birch Found., Inc., 457 F.3d 302, 307 (3d Cir. 2006)
(“Consistent with the policy of favoring enforcement of foreign arbitral awards, parties
have limited defenses to recognition and enforcement of an award as set out in Article V
of the Convention.”); Bergesen v. Joseph Muller Corp., 710 F.2d 928, 932 (2d Cir. 1983)
(“intended purpose” of Convention is “to encourage the recognition and enforcement of
international arbitration awards”); Parsons & Whittemore Overseas Co. v. Société Generale
de l’Industrie du Papier, 508 F.2d 969, 973 (2d Cir. 1974) (Convention’s “basic thrust was to
liberalize procedures for enforcing foreign arbitral awards”); Dowans Holdings SA v.
Tanzania Elec. Supply Co. [2011] EWHC 1957, ¶105 (Comm) (English High Ct.) (“It is common
ground that the intention of the New York Convention was to make enforcement of a
Convention award more straightforward, and in particular to remove the previous
necessity for a double exequatur…”); Gater Assets Ltd v. Nak Naftogaz Ukrainy [2007]
EWHC 697, ¶29 (Comm) (English High Ct.) (“policy of the Arbitration Act and the New York
Convention to give effect to Convention awards by speedy and effective enforcement”);
Hainan Mach. Imp. & Exp. Corp. v. Donald & McArthy Pte Ltd, XXII Y.B. Comm. Arb. 771, 778
(Singapore High Ct. 1995) (1997) (“principle of comity of nations requires that the awards
of foreign arbitration tribunals be given due deference and be enforced unless
exceptional circumstances exist”); Bharat Aluminium v. Kaiser Aluminium, C.A. No.
7019/2005, ¶150 (Indian S.Ct. 2012) (“The underlying motivation of the New York
Convention was to reduce the hurdles and produce a uniform, simple and speedy system
for enforcement of foreign arbitral award. Therefore [Article V(1)(e) of the Convention
should be interpreted in the manner that] seems to be accepted by the commentators
and the courts in different jurisdictions.”); Judgment of 3 June 1988, XV Y.B. Comm. Arb.
498, 499 (Florence Corte d’Appello) (1990) (“The New York Convention clearly aimed at
making the enforcement of foreign arbitral awards easier.”). See also§26.03[B].
736) New York Convention, Art. II(1). The formal requirements that the Convention imposes
with regard to arbitration agreements are addressed in Article II(2) of the Convention.
See§5.02[A][2][a].
737) New York Convention, Art. II(3).
738) See§2.03[C][1][a]. The obligations imposed by Article II may be subject to reciprocity
exceptions, discussed in detail below. See§2.03[G].
739) See§2.01[A][1][a]; §5.01[B][2].
740) See§5.01[B][2]; §8.02[A][1].
741) Bautista v. Star Cruises, 396 F.3d 1289, 1302 (11th Cir. 2005). See also Aggarao v. MOL Ship
Mgt, 675 F.3d 355, 370-71 (4th Cir. 2012) (Convention “‘expressly compels the federal
courts to enforce arbitration agreements,’ notwithstanding jurisdiction conferred on such
courts to adjudicate Seaman’s Wage Act claims.”) (quoting Rogers v. Royal Caribbean
Cruise Line, 547 F.3d 1148, 1157 (9th Cir. 2008)); Francisco v. Stolt Achievement MT, 293 F.3d
270, 273-74 (5th Cir. 2002); Ledee v. Ceramiche Ragno, 684 F.2d 184, 187 (1st Cir. 1982);
§5.01[B][2].
114
742) See§4.02[A][1].
743) See§4.04[B][2][b].
744) See§4.04[A][1][b].
745) See§4.04[A][3].
746) See§4.04[A][1][b]; §5.06[B][1][a]. Article II(1) also provides that an arbitration agreement
need not be recognized if it “concern[s] a subject matter not capable of settlement by
arbitration.” New York Convention, Art. II(1). This exception deals with the
“nonarbitrability” or “objective arbitrability” doctrine and is also discussed below.
See§§6.02[A]et seq.
747) See§5.06[B][1].
748) See§5.06[B][1][a]; §§5.02[D][1]-[3] & [5].
749) See§§5.06[B][1][a]et seq.
750) Bautista v. Star Cruises, 396 F.3d 1289, 1302 (11th Cir. 2005) (quoting DiMercurio v. Sphere
Drake Ins. plc, 202 F.3d 71, 79 (1st Cir. 2000)). See§5.06[B][1][c].
751) See§15.02[A].
752) See§15.02[B].
753) New York Convention, Art. III (emphasis added).
754) See§26.01[A][1].
755) See§22.02[E][1][a].
756) New York Convention, Art. V(1).
757) See§26.05[C][12][a].
758) See, e.g., Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 405 (2d Cir. 2009) (“a
district court, upon petition by a party to a qualifying arbitral award, ‘shall confirm the
award unless it finds one of the grounds for refusal or deferral of recognition or
enforcement of the award specified in the…Convention’”); Admart AG v. Stephen & Mary
Birch Found., Inc., 457 F.3d 302, 307 (3d Cir. 2006) (“Under the Convention, a district
court’s role is limited – it must confirm the award unless one of the grounds for refusal
specified in the Convention applies to the underlying award.”); Rosseel NV v. Oriental
Commercial & Shipping (U.K.) Ltd [1991] 2 Lloyd’s Rep 625, 628 (Comm) (English High Ct.)
(“If none of the grounds for refusal are present, the award ‘shall’ be enforced.”); Imbar
Maratima SA v. Repub. of Gabon, XV Y.B. Comm. Arb. 436, 439 (Cayman Islands Grand Ct.
1989) (1990) (“It is plain upon the wording of subsect. (1) that enforcement of a
Convention award duly evidenced is mandatory upon this court except in one or other of
the circumstances detailed in [the implementing legislation for Article V of the
Convention].”).
759) See, e.g., §26.03[B][5]; Encyclopaedia Universalis SA v. Encyclopaedia Britannica, Inc., 403
F.3d 85, 90 (2d Cir. 2005) (“district court is strictly limited to the seven defenses under
the New York Convention when considering whether to confirm a foreign award”); Karaha
Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 288
(5th Cir. 2004) (“courts in countries of secondary jurisdiction may refuse enforcement
only on the grounds specified in Article V”); Dallah Real Estate & Tourism Holding Co. v.
Ministry of Religious Affairs, Gov’t of Pakistan [2010] UKSC 46, ¶101 (UK S.Ct.) (“[Article V]
grounds are exhaustive”); Judgment of 28 July 2010, DFT 4A_233/2010, 8 (Swiss Federal
Tribunal) (“Art. V…exhaustively sets forth the grounds on which recognition and
enforcement of a foreign arbitral award can be refused. Such grounds must be
interpreted restrictively in order to facilitate the enforcement of the arbitral award.”);
Judgment of 25 January 1996, Inter-Arab Inv. Guarantee Corp. v. Banque Arabe et
Internationale d’Investissements, XXII Y.B. Comm. Arb. 643, 647 (Brussels Tribunal
Première Inst.) (1997) (“Article V…enumerates limitatively the grounds for refusal of
recognition and enforcement of an award.”); Karaha Bodas Co. LLC v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, XXXIV Y.B. Comm. Arb. 577, 580-81 (H.K. Ct.
Fin. App. 2008) (2009) (“Both the Ordinance and the Convention give effect to the
principles of finality and comity by prohibiting refusal of enforcement of a Convention
award except in the cases for which they provide…”); Judgment of 13 January 2009, XXXIV
Y.B. Comm. Arb. 632, 635 (2009) (Jerusalem Dist. Ct.) (“recognition and enforcement of a
foreign award…can be opposed on limited grounds listed in Article V of the Convention”).
115
760) See, e.g., Polimaster Ltd v. RAE Sys., Inc., 623 F.3d 832, 836 (9th Cir. 2010) (“the New York
Convention defenses are interpreted narrowly”); Ario v. Underwriting Members of
Syndicate Lloyds for the 1998 Year of Account, 618 F.3d 277, 290-91 (3d Cir. 2010) (“Article V
of the Convention sets forth the grounds for refusal, and courts have strictly applied the
Article V defenses and generally view[ed] them narrowly.”); China Minmetals Materials
Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 283 (3d Cir. 2003) (“generally have construed
those exceptions narrowly”); Int’l Trading & Indus. Inv. Co. v. Dyncorp Aerospace Tech.,
2011 U.S. Dist. LEXIS 5954, at *28 (D.D.C.) (Article V provides exclusive grounds for non-
recognition of Convention awards: “Such a narrow reading of the New York Convention
comports with the context in which the Convention was enacted, as a broad construction
of the Convention would do nothing more than erect additional hurdles to confirmation
of arbitral awards, which in turn would contravene the ‘principal purpose’ of the
Convention, i.e., ‘to encourage the recognition and enforcement of commercial
arbitration agreements in international contracts.’”); AO Techsnabexport (Russian Fed’n)
v. Globe Nuclear Servs. & Supply, Ltd (US), 656 F.Supp.2d 550, 555 (D. Md. 2009) (“The
party opposing confirmation bears the heavy burden of proving the applicability of the
[New York] Convention’s enumerated defenses.”); FG Hemisphere Assoc. v. Democratic
Repub. of the Congo, [2008] HKCFI 906, ¶11 (H.K. Ct. First Inst.) (“The regime under the
[New York Convention] is extremely onerous and a heavy burden is placed upon any
party seeking to set aside an award.”).
761) See§26.03[B][6].
762) See§8.03[C]; §15.02[A].
763) See§11.05[B][2][b].
764) New York Convention, Art. V(1)(d). See§15.04[A][1][c].
765) See§11.03[C][1][c][ii].
766) See§26.05[C][3].
767) See§1.04[B].
768) See§§1.04[B][1]-[2].
769) See§1.04[B][1].
770) Nine years were required to bring implementing legislation into force in Indonesia. In
Colombia, similar delays occurred, including Supreme Court litigation over the validity
of the President’s signature on the relevant enactment. For a good overview, see
Hermann, Implementing Legislation: The IBA/UNCITRAL Project, in The New York
Convention of 1958 135 (ASA Spec. Series No. 9 1996); Paulsson, The New York Convention in
International Practice – Problems of Assimilation, in The New York Convention of 1958 100
(ASA Spec. Series No. 9 1996).
771) For example, Belize declared upon independence in 1981 that it would “provisionally”
apply the Convention, while Indonesia imposed requirements that made recognition of
foreign awards unlikely and Vietnam imposed substantive review requirements with
regard to recognition of foreign awards. Graving, Status of the New York Arbitration
Convention: Some Gaps in Coverage But New Acceptances Confirm Its Vitality, 10 ICSID Rev.
1 (1995); Moser, The Recognition and Enforcement of Foreign Arbitral Awards: A Survey of
the Asia-Pacific Region, 5(2) ICC Ct. Bull. 20 (1994); Paulsson, The New York Convention in
International Practice – Problems of Assimilation, in The New York Convention of 1958 100-
02 (ASA Spec. Series No. 9 1996).
772) For example, Singapore imposed restrictions on representation in international
arbitrations by foreign attorneys (later repealed), see§21.01[D], pp. 2838-39, U.S. courts
have failed to give effect to the parties’ selection of the arbitral seat and to enforce
foreign arbitral awards (on forum non conveniens grounds), see§14.04[B][1], pp. 2077-79,
Chinese courts have refused to recognize agreements to ad hoc arbitration, see§5.02[D]
[5], pp. 721-22, and various courts have stayed arbitral proceedings pending resolution of
related litigation, see§8.04[A].
773) See§1.04[A][1][c].
774) Early experience was more mixed. Sanders, Court Decisions on the New York Convention
1958, Consolidated Commentary, IV Y.B. Comm. Arb. 231 (1979); Sanders, Court Decisions on
the New York Convention 1958, Commentary, II Y.B. Comm. Arb. 254 (1977); Sanders, Court
Decisions on the New York Convention 1958, Commentary, I Y.B. Comm. Arb. 207 (1976); van
den Berg, The New York Convention: Its Intended Effects, Its Interpretation, Salient
Problem Areas, in M. Blessing (ed.), The New York Convention of 1958 25, 25-26 (ASA Spec.
Series No. 9 1996).
775) As discussed below, there are a number of sources for national court decisions and
arbitral awards dealing with international arbitration. See§1.06.
776) Kaplan, A Case by Case Examination of Whether National Courts Apply Different Standards
When Assisting Arbitral Proceedings and Enforcing Awards in International Cases as
Contrasting With Domestic Disputes, in International Dispute Resolution: Towards An
International Arbitration Culture 187 (ICCA Congress Series No. 8 1996).
116
777) For representative examples, see Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc.,
473 U.S. 614, 660 (U.S. S.Ct. 1985) (Stevens, J., dissenting) (citing Belgian and Italian
decisions on nonarbitrability doctrine); Karaha Bodas Co. v. Perusahaan Pertambangan
Minyak Dan Gas Bumi Negara, 364 F.3d 274 (5th Cir. 2004) (citing English, Hong Kong,
Swedish, Swiss and other authorities); Europcar Italia, SpA v. Maiellano Tours, Inc., 156
F.3d 310, 314 (2d Cir. 1998) (reviewing Italian and German court decisions to determine if
awards rendered under “arbitrato irrituale” were enforceable under Convention); Ministry
of Defense of the Islamic Repub. of Iran v. Gould Inc., 887 F.2d 1357, 1364 (9th Cir. 1989)
(citing English authority); Lesotho Highlands Dev. Auth. v. Impregilo SpA [2006] AC 221, 236
(House of Lords) (citing U.S. authority); Fiona Trust & Holding Corp. v. Privalov [2007] 1 All
ER 891 (Comm) (English Ct. App.) (citing U.S. and German authority), aff’d, [2007] UKHL 40
(House of Lords); IPCO (Nigeria) Ltd v. Nigerian Nat’l Petroleum Corp. [2008] EWCA Civ 1157,
¶19 (English Ct. App.) (citing Austrian authority); TMR Energy Ltd v. State Prop. Fund of
Ukraine, XXIX Y.B. Comm. Arb. 607, 630 (Canadian Fed. Ct. 2003) (2004) (citing English
authority); Wires Jolley LLP v. Jean Estate, [2010] CarswellBC 722, ¶26 (B.C. S.Ct.) (citing
English authority); Corporación Transnacional de Inversiones, SA de CV v. STET Int’l, SpA,
(2000) 49 O.R.3d 414 (Ontario Ct. App.) (citing U.S. and English authority); Grand Pac.
Holdings Ltd v. Pac. China Holdings Ltd (in liquidation) (No. 1), [2012] 4 HKLRD 1, ¶¶36-37
(H.K. Ct. App.) (citing English authority); Democratic Repub. of the Congo v. FG Hemisphere
Assocs. LLC, [2011] HKEC 747, ¶¶152-55 (H.K. Ct. App.) (citing U.S., English and Canadian
authority); Hebei Imp. & Exp. Corp. v. Polytek Eng’g Co., XXIV Y.B. Comm. Arb. 652, 668 (H.K.
Ct. Fin. App. 1999) (1999) (citing U.S. and Indian authorities); Bharat Aluminium v. Kaiser
Aluminium, C.A. No. 7019/2005, ¶¶94, 128, 142, 150 (Indian S.Ct. 2012) (citing U.S., English
and Hong Kong authorities); Universal Tractor Holding LLC v. Escorts Ltd, [2012] Ex. P. 372
of 2010, ¶30 (Delhi High Ct.) (citing U.S. and English authorities); Gas Auth. of India, Ltd v.
SPIE-CAPAG SA, XXIII Y.B. Comm. Arb. 688, 694 (Delhi High Ct. 1993) (1998) (citing U.S.
authority); Uganda Telecom Ltd v. Hi-Tech Telecom Pty Ltd (No 2), [2011] FCA 206, ¶13
(Australian Fed. Ct.) (citing English authority); IMC Aviation Solutions Pty Ltd v. Altain
Khuder LLC, [2011] 253 FLR 9, 41 et seq. (Victoria Ct. App.) (citing U.S., English, Irish,
Canadian, Hong Kong and Singapore authority); Attorney Gen. v. Mobil Oil New Zealand,
Ltd, [1989] 2 NZLR 649, 668 (N.Z. High Ct.) (although U.S. judicial decisions reflect “United
States judicial policy towards international investments and contracts…such principles
are appropriate even in this small country as international trade and commercial
relationships are of critical importance”); Judgment of 28 April 1999, Attorney Gen. of the
Repub. of Kenya v. Bank für Arbeit und Wirtschaft AG, XXV Y.B. Comm. Arb. 692, 704 et seq.
(Cyprus S.Ct.) (2000); Brostrom Tankers AB v. Factorias Vulcano SA, XXX Y.B. Comm. Arb.
591, 596-97 (Dublin High Ct. 2004) (2005) (citing U.S. authority).
778) Bharat Aluminium v. Kaiser Aluminium, C.A. No. 7019/2005, ¶150 (Indian S.Ct. 2012). See
also§1.04[A][1][a].
779) IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC, [2011] 253 FLR 9, 19-20 (Victoria Ct.
App.). See also Kaplan, A Case by Case Examination of Whether National Courts Apply
Different Standards When Assisting Arbitral Proceedings and Enforcing Awards in
International Cases as Contrasting With Domestic Disputes, in International Dispute
Resolution: Towards An International Arbitration Culture 187 (ICCA Congress Series No. 8
1996) (“There appears to be much more cross-referencing of judicial decisions involving
international arbitration cases than there is in any other area of the law.”).
780) See§1.04[B][1][a].
781) See§4.04[A][4][b]. See also Ritter, Disputing Arbitration Clauses in International Insurance
Agreements: Problems With the Self-Execution Framework, 3 Pace Int’l L. Rev. 40 (2012);
Strong, Monism and Dualism in International Commercial Arbitration: Overcoming Barriers
to Consistent Application of Principles of Public International Law, in M. Novakovic (ed.),
Basic Concepts in Public International Law – Monism & Dualism 547 (2013).
782) See, e.g.,Judgment of 7 February 1984, DFT 110 II 54 (Swiss Federal Tribunal) (Article II of
New York Convention is directly applicable in Swiss courts); Judgment of 8 October 2008,
XXXIV Y.B. Comm. Arb. 644, 647 (Italian Corte di Cassazione) (“The Convention
provisions…create a fully autonomous micro-system, either because treaty provisions (in
respect of both the requirements for enforcement of the foreign award and the grounds
to oppose enforcement) prevail over the provision in the [Italian] Code of Civil
Procedure, or because of the Convention’s completeness and self-sufficiency.”) (2009).
783) Cf. Carbonneau, The Reception of Arbitration in United States Law, 40 Me. L. Rev. 262, 272
(1988) (New York Convention is “universal charter” of international commercial
arbitration); Landau, The Requirement of A Written Form for An Arbitration Agreement:
When “Written” Means “Oral”, in A. van den Berg (ed.), International Commercial
Arbitration: Important Contemporary Questions 19, 64 (ICCA Congress Series No. 11 2003)
(New York Convention is a “living document”).
784) Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 R.C.S. 649, 661 (Canadian S.Ct.) (citing G. Born,
International Commercial Arbitration 101 (2009)). The same decision held that, “as a
treaty, the Convention must be interpreted ‘in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose.’” Ibid. (quoting Vienna Convention on the Law of Treaties, Art.
31(1)).
117
785) See, e.g., A. van den Berg (ed.), 50 Years of the New York Convention 667 (2009) (Annex I:
“Text of the Hypothetical Draft Convention on the International Enforcement of
Arbitration Agreements and Awards”); Veeder, Summary of the Discussion in the First
Working Group, 45, in A. van den Berg (ed.), 40 Years of the New York Convention (1999)
(noting proposals to amend writing requirement under Article II(2) of Convention).
786) See, e.g., Brekoulakis, Enforcement of Foreign Arbitral Awards: Observations on the
Efficiency of the Current System and the Gradual Development of Alternative Means of
Enforcement, 19 Am. Rev. Int’l Arb. 415, 417 (2008); Gaillard, The Urgency of Not Revising
the New York Convention, in A. van den Berg (ed.), 50 Years of the New York Convention
689, 693 (2009); Veeder, Is There A Need to Revise the New York Convention?, 1 J. Int’l Disp.
Sett. 499, 499 (2010).
787) See§4.06[A][3]; §5.02[A][5][b].
788) See§1.04[B][1][a].
789) See§1.04[A][1][d].
790) Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 R.C.S. 649, 661 (Canadian S.Ct.) (quoting Vienna
Convention on the Law of Treaties, Art. 31(1)).
791) See Judgment of 2 July 2012, 5A_754 2011, ¶5.4.1 (Swiss Federal Tribunal) (New York
Convention “shall be interpreted in good faith”).
792) European Convention on International Commercial Arbitration (“European Convention”),
484 U.N.T.S. 349 (1961). See A. van den Berg, The New York Arbitration Convention of 1958
92-98 (1981).
793) Glossner, The Institutional Appointment of Arbitrators, 12 Arb. Int’l 95 (1996); Hascher,
European Convention on International Commercial Arbitration of 1961 – Commentary, XX
Y.B. Comm. Arb. 1006 (1995).
794) A. van den Berg, The New York Arbitration Convention of 1958 93 (1981) (European
Convention’s “main purpose is arbitration in East-West trade”).
795) European Convention, 484 U.N.T.S. 349 (1961). See Hascher, European Convention on
International Commercial Arbitration of 1961 – Commentary, XX Y.B. Comm. Arb. 1006
(1995).
796) See European Convention, 484 U.N.T.S. 349 (1961).
797) See European Convention, 484 U.N.T.S. 349 (1961).
798) The Convention does so through provisions regarding the obligations of public entities to
arbitrate and the treatment of jurisdictional objections. European Convention, Arts. II(1),
IV, V. See§5.03[D]; §7.02[A][2].
799) European Convention, Art. V(1) (“either non-existent or null and void or had lapsed”).
See§5.01[B][3].
800) European Convention, Arts. III, IV, V, VI, VII, Annex.
801) European Convention, Art. IX. See§22.02[E][1][b]; §26.03[C][2]; A. van den Berg, The New
York Arbitration Convention of 1958 96 (1981) (“the European Convention cannot function
without the New York Convention as the former is built upon the latter”).
802) This is confirmed by the relative scarcity of judicial decisions (and commentary)
involving the Convention.
803) European Convention, Arts. V, VI. As discussed below, Article V confirms the arbitral
tribunal’s competence-competence to consider challenges to its own jurisdiction, while
Article VI provides in principle for national courts to permit initial resolution of
jurisdictional objections by the tribunal. See§7.02[A][2], p. 1058.
804) European Convention, Art. IV, Annex.
805) United Nations Economic and Social Council, Economic Commission for Europe, Doc. No.
trade/2000/7, ¶¶25-28 (2000). See alsowww.unece.org.
806) For commentary, see J. Bowman, The Panama Convention and Its Implementation Under
the Federal Arbitration Act (2002); Garro, Enforcement of Arbitration Agreements and
Jurisdiction of Arbitral Tribunals in Latin America, 1(4) J. Int’l Arb. 293 (1984); Holtzmann,
The United States Becomes A Party to the Inter-American Convention on International
Commercial Arbitration, XVI Y.B. Comm. Arb. 419 (1991); van den Berg, The New York
Convention 1958 and Panama Convention 1975: Redundancy or Compatibility?, 5 Arb. Int’l
214 (1989).
807) See§1.01[C].
808) Inter-American Convention on International Commercial Arbitration was signed in
Panama on 30 January 1975.
809) Seewww.oas.org/juridico/english/Sigs/b-35.html.
810) House Report No. 501, 101st Cong., 2d Sess. 4 (1990), reprinted in 1990 U.S.C.C.A.N. 675, 678
(“The New York Convention and the Inter-American Convention are intended to achieve
the same results, and their key provisions adopt the same standards, phrased in the
legal style appropriate for each organization. It is the Committee’s expectation, in view
of that fact and the parallel legislation under the Federal Arbitration Act that would be
applied to the Conventions, that courts in the United States would achieve a general
uniformity of results under the two conventions.”); Productos Mercantiles e Industriales,
SA v. Faberge USA, 23 F.3d 41, 45 (2d Cir. 1994) (“the legislative history of the Inter-
American Convention’s implementing statute…clearly demonstrates that Congress
intended the Inter-American Convention to reach the same results as those reached
under the New York Convention”). See also§2.01[A][1][b]; §5.01[B][3]; §22.02[E][1][c];
§25.02[C]; §26.03[C][1].
811) Inter-American Convention, Art. 1.
812) Inter-American Convention, Arts. 4, 5.
118
814) Inter-American Convention, Art. 3. The Inter-American Commercial Arbitration
Commission was established in 1934 by the predecessor to the Organization of American
States. IACAC is composed of national sections in about a dozen nations; the AAA is the
U.S. national section. IACAC’s administrative headquarters is located in OAS facilities in
Washington, D.C., and is overseen on a day-to-day basis by a Director General.
815) IACAC Rules, available at www.sice.oas.org.
817) Compare New York Convention, Art. II(3); §8.02[A]; §8.03. See also A. van den Berg, The
New York Arbitration Convention of 1958 102 (1981) (“Panama Convention shows a certain
number of lacunae and obscurities in comparison with the New York Convention”).
818) Convention on the Settlement of Investment Disputes Between States and Nationals of
Other States, produced at Washington, D.C., 18 March 1965. For commentary, seeD.
Bishop, J. Crawford & M. Reisman, Foreign Investment Disputes: Cases, Materials and
Commentary (2005); C. Dugan et al., Investor-State Arbitration (2008); C. McLachlan, L.
Shore & M. Weiniger, International Investment Arbitration (2007); A. Newcombe & L.
Paradell, Law and Practice of Investment Treaties: Standards of Treatment (2009); L. Reed,
J. Paulsson & N. Blackaby, Guide to ICSID Arbitration (2d ed. 2011); C. Schreuer et al., The
ICSID Convention: A Commentary (2d ed. 2009).
819) ICSID Convention, Art. 1; C. Schreuer et al., The ICSID Convention: A Commentary Art. 1,
¶¶2-3 (2d ed. 2009). ICSID is affiliated with the International Bank for Reconstruction
and Development (“IBRD” or “World Bank”) and is based at the World Bank’s Washington,
D.C. headquarters.
820) ICSID, List of Contracting States and Other Signatories of the Convention (as of November
1, 2013), available at icsid.worldbank.org. In recent years, a few states have denounced
their accession to the ICSID Convention (e.g., Bolivia, Ecuador, Venezuela).
821) ICSID Convention, Art. 25(1). See Krishan, A Notion of ICSID Investment, in T. Weiler (ed.),
Investment Treaty Arbitration: A Debate and Discussion 66-84 (2008); C. Schreuer et al., The
ICSID Convention: A Commentary 128-34 (2d ed. 2009).
822) See Amerasinghe, Jurisdiction Ratione Personae Under the Convention on the Settlement of
Investment Disputes Between States and Nationals of Other States, 47 Brit. Y.B. Int’l L. 227
(1974-1975); Saverese, Investment Treaties and the Investor’s Right to Arbitration – Between
Broadening and Limiting ICSID Jurisdiction, 7 J. World Inv. & Trade 407 (2006); C. Schreuer
et al., The ICSID Convention: A Commentary (2d ed. 2009); Yala, The Notion of “Investment”
ICSID Case Law: A Drifting Jurisdictional Requirement?: Some “Un-Conventional” Thoughts
on Salini, SGS and Mihaly, 22 J. Int’l Arb. 105 (2005).
823) ICSID Convention, Arts. 28-35. See Nurick & Schnably, The First ICSID Conciliation: Tesoro
Petroleum Corporation v. Trinidad and Tobago, 1 ICSID Rev. 340 (1986).
824) See§1.04[A][6].
825) ICSID Convention, Arts. 41, 52, 53; C. Schreuer et al., The ICSID Convention: A Commentary
516-24 (2d ed. 2009).
826) See§7.02[A][4].
827) ICSID Convention, Arts. 53, 54; C. Schreuer et al., The ICSID Convention: A Commentary Art.
54, ¶¶42-44 (2d ed. 2009).
828) ICSID Convention, Art. 52. See C. Schreuer et al., The ICSID Convention: A Commentary Art.
52, ¶¶451-60, 466-510 (2d ed. 2009).
The ICSID annulment mechanism has been widely criticized. See, e.g., Crivellaro,
Annulment of ICSID Awards: Back to the “First Generation”?, in L. Lévy & Y. Derains (eds.),
Liber Amicorum – Mélanges en l’Honneur de Serge Lazareff 145 (2011); Redfern, ICSID –
Losing Its Appeal?, 3 Arb. Int’l 98 (1987); Schreuer, From ICSID Annulment to Appeal. Half
Way Down the Slippery Slope, 10 L. & Prac. Int’l Cts. & Tribs. 211 (2011).
829) ICSID Convention, Art. 52. See C. Schreuer et al., The ICSID Convention: A Commentary Art.
52, ¶656 (2d ed. 2009).
830) See§24.08.
831) ICSID Convention, Arts. 13(1), 38, 40(1); C. Schreuer et al., The ICSID Convention: A
Commentary45-47, 490-97, 508-10, 1102-05 (2d ed. 2009).
832) See§1.04[C][2].
833) ICSID Convention, Art. 42.
834) See§1.04[A][6].
835) See, e.g., Born, A New Generation of International Adjudication, 61 Duke L.J. 775 (2012);
Sedlak, ICSID’s Resurgence in International Investment Arbitration: Can the Momentum
Hold?, 23 Penn St. Int’l L. Rev. 147 (2004).
836) See§1.03.
837) See§1.04[A][6].
838) ICSID, The ICSID Caseload: Statistics 7 (2014). See also Goldhaber, Arbitration Scorecard
2013, Focus Europe 1 (2013) (“spotlights 165 treaty arbitrations and 109 contract
arbitrations that were active in 2011-12,” including a record 121 billion-dollar disputes);
Goldhaber, Arbitration Scorecard 2009: One Battleground Isn’t Enough, Focus Europe 28-
39 (2009) (33 treaty arbitrations in which at least $1 billion was at stake); Goldhaber,
Arbitration Scorecard 2007, Focus Europe 22-37 (2007) (63 treaty disputes in which at least
$1 billion was at stake).
839) ICSID, 2013 Annual Report 17 (2013).
119
840) NAFTA, Chapter 11, Art. 1102 (national treatment), Art. 1103 (most-favored-nation
treatment), Art. 1105 (fair and equitable treatment), Art. 1110 (expropriation).
The Dominican Republic-Central American Free Trade Agreement (commonly referred to
as “CAFTA”) provides substantive rights and dispute resolution mechanisms similar, but
not identical, to those under NAFTA among the CAFTA Contracting Parties (Costa Rica,
Dominican Republic, El Salvador, Guatemala, Nicaragua, Honduras and the United
States).
841) See NAFTA, Chapter 11, Art. 1122 (“Each Party consents to the submission of a claim to
arbitration in accordance with procedures set out in this Agreement.”).
842) ICSID, List of Contracting States and Other Signatories of the Convention (as of November
1, 2013), available at icsid.worldbank.org. ICSID arbitration could be exercised as an
option under NAFTA in certain cases if Canada or Mexico were to ratify the ICSID
Convention. NAFTA, Chapter 11, Art. 1120(1)(a). Canada is currently taking steps to do so.
843) C. Schreuer et al., The ICSID Convention: A Commentary 85 (2d ed. 2009).
844) See ICSID, Additional Facility Rules. See C. Schreuer et al., The ICSID Convention: A
Commentary 85 (2d ed. 2009).
845) For commentary, see R. Dolzer & M. Stevens, Bilateral Investment Treaties (1995); R. Dolzer
& C. Schreuer, Principles of International Investment Law 89-191 (2008); ICSID, Bilateral
Investment Treaties, 1959-1996, ICSID Doc. ICSID/17 (1997); A. Newcombe & L. Paradell, Law
and Practice of Investment Treaties: Standards of Treatment (2009); Parra, Provisions on
the Settlement of Investment Disputes in Modern Investment Laws, Bilateral Investment
Treaties and Multilateral Instruments on Investment, 12 ICSID Rev. 287 (1997); K.
Vandevelde, United States Bilateral Investment Treaties: Policy and Practice (1992).
846) See, e.g., U.S. Model BIT (2012); French Model BIT (2006); German Model BIT (2008);
Canadian Model BIT (2004); Indian Model BIT (2003); Colombian Model BIT (2007). These
model treaties are available at italaw.com/investment-treaties.
847) For example, 20 out of 58 BITs in 2010 were concluded between developing countries.
UNCTAD, World Investment Report 2011 (2011); UNCTAD, Bilateral Investment Treaties 1995-
2006: Trends in Investment Rulemaking (2007). A few states, notably Brazil, have refused
to conclude BITs, but most states, including the United States, China, all EU states, most
Latin American, Asian states and many African states, have concluded substantial
numbers of BITs.
848) See R. Dolzer & C. Schreuer, Principles of International Investment Law 130-212 (2d ed.
2012); A. Newcombe & L. Paradell, Law and Practice of Investment Treaties: Standards of
Treatment (2009); S. Schill, The Multilateralization of International Investment Law (2009).
849) See Paulsson, Arbitration Without Privity, 10 ICSID L. Rev. 232 (1995). In fact, “arbitration
without privity” is a misnomer: BITs contain standing offers by states to arbitrate defined
categories of investment disputes with foreign investors, which, when accepted by a
foreign investor, give rise to a bilateral arbitration agreement between the host state
and foreign investor. See Repub. of Ecuador v. Chevron Corp., 638 F.3d 384, 392 (2d Cir.
2011) (“this proves to be a distinction without a difference, since Ecuador, by signing the
BIT, and Chevron, by consenting to arbitration, have created a separate binding
agreement to arbitrate”); R. Dolzer & C. Schreuer, Principles of International Investment
Law 254-64 (2d ed. 2012).
850) A. Newcombe & L. Paradell, Law and Practice of Investment Treaties: Standards of
Treatment 73-74 (2009).
851) G. Born, International Arbitration and Forum Selection Agreements: Drafting and Enforcing
142 (4th ed. 2013).
852) UNCTAD, Recent Developments in Investor-State Dispute Settlement (2013) (more investor-
state arbitrations (62) filed in 2012 than in any previous year).
853) See authorities cited at §1.04[A][6], pp. 124-25.
854) See, e.g., 11 U.S.T. 2398 (France); 7 U.S.T. 1839 (Germany); 8 U.S.T. 2043 (Netherlands); 14
U.S.T. 1284 (Belgium); T.I.A.S. No. 4797 (Denmark); 5 U.S.T. 1829 (Greece); 1 U.S.T. 785
(Ireland); T.I.A.S. No. 4685 (Italy); 4 U.S.T. 251 (Luxembourg); 8 U.S.T. 899 (Iran); 5 U.S.T. 550
(Israel); 4 U.S.T. 2063 (Japan); 8 U.S.T. 2217 (Korea); 9 U.S.T. 449 (Nicaragua); 12 U.S.T. 110
(Pakistan); 9 U.S.T. 5843 (Thailand); 18 U.S.T. 1 (Togo).
855) Treaty of Friendship, Commerce and Navigation, United States-West Germany, 7 U.S.T.
1839, 1845, T.I.A.S. No. 3593, Art. 6(2) (1954).
856) As noted above, the New York Convention leaves such bilateral arrangements intact,
applicable where the Convention either does not apply or does not provide for
recognition. See§1.04[A][1].
857) See§11.03[E][2].
120
858) See Ball, The Essential Judge: The Role of the Courts in A System of National and
International Commercial Arbitration, 22 Arb. Int’l 74 (2006); Böckstiegel, The Relevance of
National Arbitration Law for Arbitrations Under the UNCITRAL Rules, 1(3) J. Int’l Arb. 223
(1984); Goode, The Adaptation of English Law to International Commercial Arbitration, 8
Arb. Int’l 1 (1992); Grigera Naón, Arbitration in Latin America: Overcoming Traditional
Hostility, 5 Arb. Int’l 137 (1989); Herrmann, Does the World Need Additional Uniform
Legislation on Arbitration?, 15 Arb. Int’l 211 (1999); Kaufmann-Kohler, Globalization of
Arbitral Procedure, 36 Vand. J. Transnat’l L. 1313 (2003); Lew, Does National Court
Involvement Undermine the International Arbitration Process?, 24 Am. U. Int’l L. Rev. 489
(2009); Park, National Law and Commercial Justice: Safeguarding Procedural Integrity in
International Arbitration, 63 Tulane L. Rev. 647 (1989); Samuel, Arbitration in Western
Europe: A Generation of Reform, 7 Arb. Int’l 319 (1991); Wetter, The Proper Scope of A
National Arbitration Act, 5(10) Mealey’s Int’l Arb. Rep. 17 (1990).
859) See Park, National Law and Commercial Justice: Safeguarding Procedural Integrity in
International Arbitration, 63 Tulane L. Rev. 647, 680 (1989).
860) Menon, The Challenges of the Golden Age, ICC Newsletter 1 (April 2013).
861) M. de Boisséson, Le droit français de l’arbitrage interne et international ¶¶8-11 (2d ed.
1990); Weiss, Arbitration in Germany, 43 L.Q. Rev. 205, 206 (1927). See also§§1.01[B][4] & [6].
862) See, e.g., French Code of Civil Procedure; German Zivilprozessordnung (“ZPO”);
Netherlands Code of Civil Procedure; Belgian Judicial Code.
863) See, e.g., U.S. FAA, 9 U.S.C. §§1-16; English Arbitration Act, 1996; Singapore International
Arbitration Act, 2012; Hong Kong Arbitration Ordinance, 2013; Japanese Arbitration Law;
Indian Arbitration and Conciliation Act; Samuel, Arbitration Statutes in England and the
USA, 8 Arb. & Disp. Res. L.J. 2, 32 (1999).
864) See§1.04[B][1][a].
865) For example, the UNCITRAL Model Law, the Swiss Law on Private International Law, the
Singapore International Arbitration Act, the relevant parts of the French Code of Civil
Procedure and U.S. Federal Arbitration Act deal only with international (and not
domestic) arbitrations.
In France, the drafters of the revised 2011 arbitration legislation considered, but
rejected, the unification of international and domestic arbitration regimes. SeeFrench
Code of Civil Procedure, Arts. 1442-1503 (domestic arbitration), Arts. 1504-1527
(international arbitration); Gaillard, Les principes fondamentaux du nouvel arbitrage, in T.
Clay (ed.), Le nouveau droit francais de l’arbitrage 57 (2011). See§§1.04[B][1][b]-[c].
866) See§1.04[B][1][d].
867) The reasoning for distinguishing international matters from domestic ones rests on the
greater jurisdictional, choice-of-law and enforcement uncertainties in the international
context and the need for national neutrality predictability and certainty in international
commerce. See§1.02[B]; §1.04[A]; Carducci, The Arbitration Reform in France: Domestic and
International Arbitration Law, 28 Arb. Int’l 125, 125 (2012) (“[Elaboration] of two articulated
and distinct ‘domestic’ and ‘international’ arbitration regimes has been driven, in our
view, by more than economic growth and the increasing needs of the business
community for smooth, fast and private justice.”).
These considerations have been relied on in some national court decisions. See
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (U.S. S.Ct. 1985);
Scherk v. Alberto-Culver Co., 417 U.S. 506, 517 n.10 (U.S. S.Ct. 1974); Judgment of 3 June 1997,
LexisNexis JurisClasseur No 95-17.603 (French Cour de cassation civ. le).
868) For example, England, Germany, Ireland, Portugal, Spain, Scotland and Hong Kong’s
enactment of the UNCITRAL Model Law deleted provisions limiting the legislation’s
application to “international” arbitrations, extending it to all arbitrations. English
Arbitration Act, 1996, §2; German ZPO, §1025; Irish Arbitration Act, 2010, §6; Portuguese
Law on Voluntary Arbitration Law, 2011, Art. 49; Scottish Arbitration Act, 2010, §2(1);
Spanish Arbitration Act, 2011, Art. 1(1); Hong Kong Arbitration Ordinance, 2013, §5.
869) Mustill, Cedric Barclay Memorial Lecture, 1992 Arb. 159, 165 (“never understood why
international arbitration should be different in principle from any other kind of
arbitration”).
870) See§6.01 for a discussion of these issues in the nonarbitrability context.
871) See§1.02[B]; §1.04[A].
872) See§1.04[B][1].
873) See§1.04[B][1]; Mustill, Arbitration: History and Background, 6(2) J. Int’l Arb. 43, 53 (1989)
(noting “efforts made by individual nations to make their arbitration laws…more
attractive”); Park, National Law and Commercial Justice: Safeguarding Procedural Integrity
in International Arbitration, 63 Tulane L. Rev. 647, 680 (1989).
874) This includes legislation in France, Switzerland, Germany, Italy, Spain, Portugal and all
other Continental European states. It also includes England, Scotland, Ireland, Canada
(and its provinces), Australia and New Zealand, as well as Singapore, Hong Kong, India,
Malaysia and Saudi Arabia. The principal exception is the United States, where the FAA
dates to 1925, while U.S. implementing legislation for the New York Convention dates to
1970. See§1.04[B][1][e][i].
875) See§§1.04[B][1][a]-[b] & [d]; §2.01[A][2]; §5.01[C]; §8.02[A][2].
876) SeeChapters 8et seq.
877) SeePart III; §22.01[B][3].
121
878) SeePart III; §26.01[B]; §26.03[D].
879) See§12.03[E][4]; §16.03[A].
880) See§15.02[B].
881) Djibouti Code of International Arbitration, Law No. 79/AN/84 of 13 February 1983,
Statement of Principles, 25 Int’l Legal Mat. 1, 3 (1986).
882) Bernardini, The Role of the International Arbitrator, 20 Arb. Int’l 113, 115 (2004).
883) These include jurisdictional, choice-of-law and enforcement issues. See§1.02[B]; §1.04[E]
[7].
884) See§1.04[B] (especially §1.04[B][1]); Foreign Arbitral Awards, S. Rep. No. 91-702, 91st Cong.,
2d Sess., 1-2 (1970) (“In the committee’s view, the provisions of S. 3274 [implementing the
New York Convention] will serve the best interests of Americans doing business abroad
by encouraging them to submit their commercial disputes to impartial arbitration for
awards which can be enforced in both U.S. and foreign courts.”); Australian International
Arbitration Act, 2011, Art. 2D (“The objects of this Act are: (a) to facilitate international
trade and commerce by encouraging the use of arbitration as a method of resolving
disputes; and (b) to facilitate the use of arbitration agreements made in relation to
international trade and commerce; and (c) to facilitate the recognition and enforcement
of arbitral awards made in relation to international trade and commerce; and (d) to give
effect to Australia’s obligations under the [New York] Convention; and (e) to give effect to
the UNCITRAL Model Law on International Commercial Arbitration…”); Konkan Railways
Corp. v. Mehul Constr. Co., [2000] 7 SCC 201, ¶2 (Indian S.Ct.) (“To attract the confidence of
the international mercantile community and the growing volume of India’s trade and
commercial relationship with the rest of the world after the new liberalisation policy of
the Government, Indian Parliament was persuaded to enact the Arbitration and
Conciliation Act of 1996 in UNCITRAL Model…”). See also Murray, Domestic Court
Implementation of Coordinative Treaties: Formulating Rules for Determining the Seat of
Arbitration Under the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, 41 Va. J. Int’l L. 859, 865 (2001) (“policymakers…believe that if businesses are
confident that their arbitration agreements and awards will be enforced they will
engage in more cross-border transactions”).
885) Seidel v. TELUS Commc’ns Inc., [2011] SCC 15, ¶54 (Canadian S.Ct.) (Lebel, J., dissenting).
See also Gallaway Cook Allan v. Carr, (2013) NZCA 11, ¶66 (N.Z. Ct. App.) (“Two specific
purposes of [New Zealand’s arbitration legislation are] to encourage the use of
arbitration as an agreed method of resolving commercial and other disputes, and to
facilitate the recognition and enforcement of arbitration agreements and arbitral
awards.”).
886) Press Release, O’Donoghue Publishes Bill Designed to Attract International Inward
Investment to Ireland (2 October 1997), cited in C. Drahozal & R. Naimark, Towards A
Science of International Arbitration: Collected Empirical Research 113 (2005).
887) 392 Parl. Deb., HL (5th series) 99 (1978). See also Craig, Some Trends and Developments in
the Laws and Practice of International Commercial Arbitration, 30 Tex. Int’l L.J. 1, 58 (1995)
(“if the participants in international trade become accustomed to general arbitral
practices developed under the Model Law, any state which does not adapt its own
procedures to offer similar advantages risks losing its place as a preferred site for
arbitration”).
888) T. Carbonneau, Cases and Materials on the Law and Practice of Arbitration 1143 (2d ed.
2000).
889) Park, Judicial Controls in the Arbitral Process, 5 Arb. Int’l 230, 232-33, 256 (1989).
890) Frequently-cited examples include Belgium, which attracted little (if any) increased
arbitration business by radically revising its international arbitration law (see§25.05, pp.
3340 n.991; §25.06, pp. 3362-63), and the United States, which has enjoyed increasing
numbers of international arbitrations despite an archaic legislative regime (see§1.04[B]
[1][e], p.152).
891) Some commentators have concluded that, at least historically, “so-called modern
arbitration statutes, which command courts to recognize arbitration settlements and
arbitration clauses in contracts, were not the major stimulus for the growth of
commercial arbitration that they are often assumed to have been.” Benson, An
Exploration of the Impact of Modern Arbitration Statutes on the Development of
Arbitration in the United States, 11 J. L. Econ. & Org. 479, 497 (1995). Although this view
appears correct in 19th-century, and earlier, settings, it is doubtful that it would apply to
current international commercial dealings.
892) Sumito v. Antig Invs. Pte Ltd, [2009] SGCA 41, ¶28 (Singapore Ct. App.).
893) See Born, Arbitration and the Freedom to Associate, 38 Ga. J. Int’l & Comp. L. 7 (2009).
894) As discussed above, the French Constitution of Year I accorded the right to arbitrate
constitutional status. See§1.01[B][4]; French Constitution of Year I, 1793, Art. 86 (“The right
of the citizens to have their disputes settled by arbitrators of their choice shall not be
violated in any way whatsoever.”).
122
895) Laurentienne-vie, Cie d’assurances Inc. v. Empire, Cie d’assurance-vie, [2000] CanLII 9001
(Québec Ct. App.) (arbitration is a “fundamental right”); Judgment of 3 April 2000, II ZR
373/98 (German Bundesgerichtshof) (right to arbitrate is based on constitutional rights to
personal freedom and private autonomy). The German Bundesgerichtshof cited Article
2(1) of the German Grundgesetz (Constitution), which provides: “Every person shall have
the right to free development of his personality insofar as he does not violate the rights
of others or offend against the constitutional order or the moral law.” German
Grundgesetz (Constitution), Art. 2(1).
896) Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 123 Haw. 476, 478 (Haw.
2010). See also Matter of Sprinzen v. Nomberg, 389 N.E.2d 456, 459 (N.Y. 1979) (“The
courts…must exercise due restraint in this regard, for the preservation of the arbitration
process and the policy of allowing parties to choose a nonjudicial forum, embedded in
freedom to contract principles, must not be disturbed by courts…”).
897) Laurentienne-vie, Cie d’assurances Inc. v. Empire, Cie d’assurance-vie, [2000] CanLII 9001,
¶80 (Québec Ct. App.).
898) See, e.g., Judgment of 4 January 2012, DFT 4A_238/2012, ¶3.2 (Swiss Federal Tribunal) (“no
reason to deprive the parties able to bear the consequences of a renunciation to appeal
from the possibility offered by this provision – which embodies procedurally the
principle of party autonomy – to escape any state intervention which could harm the
confidentiality of arbitration or to prevent the swift rendering of an enforceable decision
putting an end to the dispute”); Judgment of 23 August 1963, 1 AZR 469/61, ¶2 (German
Fed. Labor Ct.) (“The parties, decision to enter into arbitral proceedings arises from their
constitutional right of party autonomy as stated in Article 2 Grundgesetz (German
constitution). If the scope of application of the State Court’s jurisdiction is narrowed by
the parties’ agreement upon an arbitration clause, this is only due to the parties’
voluntary agreement, which is also a constitutional right under Article 2 Grundgesetz.”);
Judgment of 5 May 2009, 2010 SchiedsVZ 173, 176 (Schiedsgericht Hamburg) (“On the one
hand the interest of the arbitral parties in upholding the arbitration agreement is
protected as an element of the freedom of contract and private autonomy pursuant to
Sec. 2 par. 1 of the German constitution. In the same way as having the right to be judged
by one’s competent state court pursuant to Sec. 101 par. 1 sentence 2 of the German
constitution there also exists a right to waive this right by choosing an arbitral court.”);
Judgment of 9 April 2008, Case No. 2007/0063183-9, ¶16 (Brazilian Superior Tribunal de
Justiça) (“It is well recognized that arbitration does not subtract any constitutional
guarantees from domestic proceedings, on the contrary, it implies fulfilling these
[constitutional rights and guarantees].”); Judgment of 3 November 2010, Astivenca
Astilleros de Venezuela, CA v. Oceanlink Offshore III AS, XXXVI Y.B. Comm. Arb. 496, ¶5
(Venezuela Tribunal Supremo de Justicia) (“Hence, the principles of competence-
competence and autonomy of the arbitration agreement are essential elements in the
statutory regime of arbitration, guaranteeing the ‘fundamental right to use alternative
means of dispute resolution, including, obviously, arbitration.’”).
899) ATA Constr., Indus. & Trading Co. v. Hashemite Kingdom of Jordan, Award in ICSID Case No.
ARB/08.02 of 18 May 2010, ¶¶124-25 (Jordanian court’s purported annulment of
arbitration agreement was denial of fair and equitable treatment); Saipem SpA v.
People’s Repub. of Bangladesh, Award in PCA Case No. AA-280 of 26 November 2009
(Bangladeshi court’s purported revocation of arbitral tribunal’s authority was violation
of Article II of New York Convention).
900) See§1.02[B][1].
901) Brazil-David, Harmonization and Delocalization of International Commercial Arbitration,
28 J. Int’l Arb. 445, 446 (2011) (“In order to reduce the disparities between national
arbitration laws and the surprises one might have in international commercial
arbitrations, there has been a movement towards harmonization of the law and practice
of international commercial arbitration.”); Craig, Some Trends and Developments in the
Laws and Practice of International Commercial Arbitration, 30 Tex. Int’l L.J. 1, 57-58 (1995)
(“substantial convergence in modern arbitration laws with respect to the procedures to
be followed in arbitration and the standards for judicial recourse therefrom”); Hanotiau,
International Arbitration in a Global Economy: The Challenges of the Future, 28(2) J. Int’l
Arb. 89, 92-93 (2011) (“In the process of renewal and adaptation of their legislations,
legislators have erased the main differences existing between their national arbitration
laws.”); Kaufmann-Kohler, Globalization of Arbitral Procedure, 36 Vand. J. Transnat’l L.
1313, 1320-22 (2003) (arbitration legislation “tend to become interchangeable” because
of uniformity); Samuel, Arbitration in Western Europe: A Generation of Reform, 7 Arb. Int’l
319 (1991).
123
902) For commentary, see H. Alvarez, N. Kaplan & D. Rivkin, Model Law Decisions: Cases
Applying the UNCITRAL Model Law on International Commercial Arbitration (2003);
Association for International Arbitration, The UNCITRAL Model Law on International
Commercial Arbitration: 25 Years (2010); P. Binder, International Commercial Arbitration
and Conciliation in UNCITRAL Model Law Jurisdictions (3d ed. 2009); Brekoulakis & Shore,
United Nations Commission on International Trade Law (UNCITRAL) Model Law on
International Commercial Arbitration, 1985/2006, in L. Mistelis (ed.), Concise International
Arbitration (2010); A. Broches, Commentary on the UNCITRAL Model Law on International
Commercial Arbitration (1990); Broches, The 1985 UNCITRAL Model Law on International
Commercial Arbitration: An Exercise in International Legislation, 18 Neth. Y.B. Int’l L. 3
(1987); Gaillard, The UNCITRAL Model Law and Recent Statutes on International Arbitration
in Europe and North America, 2 ICSID Rev. 424 (1987); Hermann, The UNCITRAL Model Law –
Its Background, Salient Features and Purposes, 1 Arb. Int’l 6 (1985); H. Holtzmann & J.
Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration:
Legislative History and Commentary (1989); Kavass & Liivak, UNCITRAL Model Law of
International Commercial Arbitration: A Documentary History (1985); Kerr, Arbitration and
the Courts: The UNCITRAL Model Law, 34 Int’l & Comp. L.Q. 1 (1985); Mantilla-Serrano &
Adam, UNCITRAL Model Law: Missed Opportunities for Enhanced Uniformity, 31 U. N.S.W.
L.J. 307 (2008); Sanders, Unity and Diversity in the Adoption of the Model Law, 11 Arb. Int’l 1
(1995).
903) See§1.04[B][1][a].
904) See§1.04[B][1][a]; UNCITRAL Model Law, 2006 Revisions.
905) Note by the Secretary-General, U.N. Doc. A/CN.9/127, VIII Y.B. UNCITRAL 233 (1977).
906) UNCITRAL, Report of the Secretary-General on the Possible Features of A Model Law of
International Commercial Arbitration, U.N. Doc. A/CN.9/207, XII Y.B. UNCITRAL 75 (1981).
International Commercial Arbitration, U.N. Doc. A/CN.9/207, ¶¶9-11, XII Y.B. UNCITRAL 75
(1981).
International Commercial Arbitration, U.N. Doc. A/CN.9/207, ¶10, XII Y.B. UNCITRAL 75
(1981). The Report was submitted to UNCITRAL’s 14th Session in June 1981.
909) H. Holtzmann & J. Neuhaus, A Guide to the UNCITRAL Model Law on International
Commercial Arbitration: Legislative History and Commentary 12-13 (1989).
Commercial Arbitration: Legislative History and Commentary 12-14 (1989).
911) UN General Assembly Resolution No. 40/72, Model Law on International Commercial
Arbitration of the UNCITRAL (1985).
912) UNCITRAL Model Law, Arts. 7-8. See§5.01[C][1]; §§5.02[A][5][a]-[b]; §5.06[C]. The Model
Law’s “writing” requirement for arbitration agreements is broadly similar to, but
somewhat less demanding than, Article II of the New York Convention. SeeUNCITRAL
Model Law, Art. 7(2). See also§5.02[A][5][a].
913) UNCITRAL Model Law, Art. 8(1). See§8.02[A][2]; §8.02[C]; §8.03[A][2].
914) UNCITRAL Model Law, Art. 16. See§3.02[B][3][e].
915) UNCITRAL Model Law, Art. 16. See§7.02[B][1]; §7.03.
916) See§7.03[A][2].
917) UNCITRAL Model Law, Art. 5. See§15.06[B].
918) UNCITRAL Model Law, Art. 19(1). See§15.02[B].
919) UNCITRAL Model Law, Arts. 19(2), 24(1). See§15.03[B].
920) UNCITRAL Model Law, Art. 18 (“The parties shall be treated with equality and each party
shall be given a full opportunity of presenting his case.”), Art. 24(2) (“The parties shall be
given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal
for the purposes of inspection of goods, other property or documents.”). See§15.04[B][1].
921) This addressed concerns that national mandatory laws were unduly constraining arbitral
procedures and that the definitions of mandatory and non-mandatory procedural laws
were unclear. UNCITRAL, Report of the Secretary-General on the Possible Features of A
Model Law of International Commercial Arbitration, U.N. Doc. A/CN.9/207, ¶¶12-13, XII Y.B.
UNCITRAL 75 (1981).
922) UNCITRAL Model Law, Arts. 9, 11-13, 27. See§11.03[D][1][b]; §12.03[E][3][a]; §16.03[A][1].
923) UNCITRAL Model Law, Art. 34. See§25.03[A].
924) UNCITRAL Model Law, Arts. 35, 36. See§26.03[B].
925) Note of the Secretariat on the Possible Future Work in the Area of International
Commercial Arbitration, U.N. Doc. A/CN.9/460, XXX UNCITRAL Y.B. 395 (1999); Report of the
Secretary-General on the Possible Uniform Rules on Certain Issues Concerning Settlement
of Commercial Disputes: Conciliation, Interim Measures of Protection, Written Form for
Arbitration Agreement, U.N. Doc. A/CN.9/WG.II/WP.108 (2000).
926) UNCITRAL, Note by the Secretariat on the Preparation of A Model Legislative Provision on
Written Form for the Arbitration Agreement, Forty-Third Session, U.N. Doc.
A/CN.9.WG.II/WP.136 (2005); UNCITRAL, Note of the Secretariat on the Interim Measures of
Protection, Forty-Third Session, U.N. Doc. A/CN.9/WG.II/WP.138 (2005).
124
927) UNCITRAL Model Law, 2006 Revisions; Mantilla-Serrano & Adam, UNCITRAL Model Law:
Missed Opportunities for Enhanced Uniformity, 31 U. N.S.W. L.J. 307 (2008); Menon & Chao,
Reforming the Model Law Provisions on Interim Measures of Protection, 2 Asian Int’l Arb. J.
1 (2006); Paulsson & Petrochilos, Report: Revision of the UNCITRAL Arbitration Rules
(2006); Sorieul, UNCITRAL’s Current Work in the Field of International Commercial
Arbitration, 22 J. Int’l Arb. 543 (2005).
928) UNCITRAL Model Law, 2006 Revisions, Art. 2A.
929) UNCITRAL Model Law, 2006 Revisions, Art. 7. See§5.02[A][5][b].
930) UNCITRAL Model Law, 2006 Revisions, Arts. 17, 17A-J. See§17.02[A][3][b][i]; §17.04[C][1][a].
931) UNCITRAL Model Law, 2006 Revisions, Art. 35. See§26.01[B].
932) As discussed below, the 2006 Revisions’ authorization of ex parte provisional measures is
of doubtful wisdom and has attracted substantial criticism. See§17.02[G][10], pp. 2509-11.
933) UNCITRAL Working Group on Arbitration and Conciliation, APRAG Report on 43d and 44th
Sessions, ¶5 (9 January 2006) (“proposed additions are very extensive, particularly in
comparison with the relatively short and concise drafting style of other articles in
[Model Law]”).
At the same time, the 2006 Revisions failed to address a number of areas where
improvements would have been welcome (e.g., the choice of law governing the
arbitration agreement, the allocation of competence to resolve jurisdictional objections
and the grounds for holding arbitration agreements and awards invalid).
934) States that have adopted some or all of the 2006 amendments to the UNCITRAL Model
Law include Australia, Brunei, Costa Rica, Florida, Georgia, Hong Kong, Ireland, Mauritius,
Peru, Serbia and Slovenia.
935) In particular, the Model Law makes clear the grounds for annulling international arbitral
awards, defines the (limited) scope of national court interference in the arbitral process,
and prescribes the types and extent of judicial support for international arbitrations.
936) Note of Secretariat on Further Work in Respect of International Commercial Arbitration
(A/CN.9/169, 11 May 1979) at paras 6-9.
937) For an updated list of jurisdictions, seewww.uncitral.org.
938) Bundestags-Drucksache No. 13/5274 of 12 July 1996, reprinted in K.-P. Berger, The New
German Arbitration Law 140 (1998), quoted in K.-P. Berger, The New German Arbitration
Law in International Perspective, 26 Forum Int’l 4 (2000). See also M. Krimpenfort,
Vorläufige und sichernde Maßnahmen in schiedsrichterlichen Verfahren 4-5 (2001).
939) Law Reform Commission of Hong Kong, Report on the Adoption of the UNCITRAL Model Law
of Arbitration 6, 11 (1987). See alsoSingapore International Arbitration Act, [Hansard at
col. 624] (“In summary, the reasons why Singapore should adopt the Model Law are as
follows: Firstly, the Model Law provides a sound and internationally accepted framework
for international commercial arbitrations. Secondly, the general approach of the Model
Law will appeal to international businessmen and lawyers especially those from
Continental Europe, China, Indonesia, Japan and Vietnam who may be unfamiliar with
English concepts of arbitration. This will work to Singapore’s advantage as our
businessmen expand overseas. Thirdly, it will promote Singapore’s role as a growing
centre for international legal services and international arbitrations.”); Singapore Law
Reform Committee (ed.), Report of the Sub-Committee on Review of Arbitration Laws 13
(1994) (“If Singapore aims to be an international arbitration centre it must adopt [the
Model Law expressing] a world view of international arbitration.”); Australian
International Arbitration Act, 2011, Art. 2D. See alsoSchaefer, Borrowing and Cross-
Fertilising Arbitration Laws – A Comparative Overview of the Development of Hong Kong
and Singapore Legislation for International Commercial Arbitration, 16(4) J. Int’l Arb. 41,
45-49, 54-56 (1999).
940) See§§1.04[B][1][b]-[e].
941) E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration ¶204 (1999). See also Kerr, Arbitration and the Courts: The UNCITRAL Model
Law, 34 Int’l Comp. L.Q. 1, 19 (1985) (distinguished English judge warning: “let us never
leave arbitration as immune from judicial review, and the parties as defenseless, as they
would be under the present text” of Model Law).
942) See, e.g., H. Alvarez, N. Kaplan & D. Rivkin, Model Law Decisions: Cases Applying the
UNCITRAL Model Law on International Commercial Arbitration (2003). See alsoUNCITRAL,
Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International
Commercial Arbitration as Amended in 2006 (2008); Association of International
Arbitration, The UNCITRAL Model Law on International Commercial Arbitration: 25 Years
(2010); Beraudo, Case Law on Articles 5, 8, and 16 of the UNCITRAL Model Arbitration Law,
23 J. Int’l Arb. 101 (2006); Brekoulakis & Shore, United Nations Commission on
International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration,
1985/2006, in L. Mistelis (ed.), Concise International Arbitration (2010); Foster & Elsberg,
Two New Initiatives for Provisional Remedies in International Arbitration: Article 17 of the
UNCITRAL Model Law on International Commercial Arbitration and Article 37 of the
AAA/ICDR International Dispute Resolution Principles, 3(5) Transnat’l Disp. Mgt (2006);
Liebscher, Interpretation of the Written Form Requirement Art. 7(2) UNCITRAL Model Law,
2005 Int’l Arb. L. Rev. 164; Sanders, UNCITRAL’s Model Law on International and
Commercial Arbitration: Present Situation and Future, 21 Arb. Int’l 443 (2005).
943) UNCITRAL, 2012 Digest of Case Law on the Model Law on International Commercial
Arbitration (2012), available at www.uncitral.org/pdf/english/clout/MAL-digest-2012-
e.pdf.
125
944) Case Law on UNCITRAL Texts (“CLOUT”), available at
www.uncitral.org/uncitral/en/case_law.html.
945) McGill Model Arbitration Law Database, available at www.maldb.org.
946) TCL Air Conditioner (Zhongshan) Co. v. Judges of the Federal Court of Australia, [2013] HCA
5, ¶7 (Australia High Ct.).
947) See§1.04[A][1][e].
948) Compare Cargill Int’l SA v. Peabody Australia Mining Ltd, [2010] NSWSC 887, ¶31 (N.S.W.
S.Ct.) (“agreement by parties to refer any disputes to international arbitration under a
particular set of procedural rules (as opposed to an agreement that the lex arbitri should
be other than that of the Model Law) does not constitute an implied agreement to opt
out of the Model Law for the purposes of s21 of the Commonwealth Act”), overruling
Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v. Australian Granites Ltd, [2001] 1 Qd
R 461 (Queensland Ct. App.) (holding that parties opted out of Model Law by agreeing
that any dispute would be finally settled by arbitration under ICC Rules). See also John
Holland Pty Ltd v. Toyo Eng’g Corp. (Japan), [2001] 2 SLR 262 (Singapore Ct. App.) (holding
parties opted out of Model Law by agreeing to institutional arbitration; subsequently
overruled by Singaporean legislation).
949) For commentary, see Ancel, Le nouveau droit français de l’arbitrage: le meilleur de soi-
même, 2011 Arbitraje: Revista de Arbitraje Comercial y de Inversiones 822; J. Béguin,
L’arbitrage commercial international (1987); Carducci, The Arbitration Reform in France:
Domestic and International Arbitration Law, 28 Arb. Int’l 125 (2012); Castellane, The New
French Law on International Arbitration, 28 J. Int’l Arb. 371 (2011); T. Clay (ed.), Le nouveau
droit français de l’arbitrage (2011); D. Cohen, Arbitrage et société (1993); S. Crepin, Les
sentences arbitrales devant le juge français – pratique de l’exécution et du contrôle
judiciaires depuis les réformes de 1980-1981 (1995); Darwazeh & Rigaudeau, Clues to
Construing the New French Arbitration Law, 28 J. Int’l Arb. 381 (2011); M. de Boisséson, Le
droit français de l’arbitrage interne et international (2d ed. 1990); J.-L. Delvolvé, French
Arbitration Law and Practice (2d ed. 2009); P. Fouchard, L’arbitrage commercial
international (1965); Duprey, Présentation du nouveau décret sur l’arbitrage, 2011 Cah. CNB
15; P. Fouchard, E. Gaillard & B. Goldman, Traité de l’arbitrage commercial international
(1996); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International
Commercial Arbitration (1999); E. Gaillard & R. von Mehren, International Commercial
Arbitration – Recent Developments (1988); Gaillard, France Adopts New Law on Arbitration,
N.Y. L.J. (24 January 2011); Gaillard & de Lapasse, Le nouveau droit français de l’arbitrage
interne et international, 2011 Dalloz 175; Gaillard & de Lapasse, Commentaire analytique
du décret du 13 janvier 2011 portant réforme du droit français de l’arbitrage, 2011:2 Gaz.
Pal. 263; B. Goldman, Les conflits de lois dans l’arbitrage international de droit privé (1963);
L. Gouiffès et al., Recherches sur l’arbitrage en droit international et comparé (1997);
Jarrosson & Pellerin, Le droit français de l’arbitrage apres le décret du 13 janvier 2011, 2011
Rev. arb. 5; A. Kassis, Problèmes de base de l’arbitrage en droit comparé et en droit
international I: Arbitrage juridictionnel et arbitrage contractuel (1987); A. Kassis, Réflexions
sur le règlement d’arbitrage de la Chambre de commerce internationale – Les déviations de
l’arbitrage institutionnel (1988); E. Loquin, L’amiable composition en droit comparé et
international – Contribution à l’étude du non-droit dans l’arbitrage commercial (1980);
Loquin, La réforme du droit français de l’arbitrage interne et international, 2011 RTD Com.
255; P. Mayer, L’autonomie de l’arbitre international dans l’appréciation de sa propre
compétence (1989); B. Oppetit, Théorie de l’arbitrage (1998); D. Réné, L’arbitrage dans le
commerce international (1981); J. Robert, L’arbitrage, Droit interne, Droit international
privé (5th ed. 1983); J. Robert & T. Carbonneau, The French Law of Arbitration (1983); J.
Rubellin-Devichi, L’arbitrage: nature juridique, droit interne et droit international privé
(1965); Schwartz, The New French Arbitration Decree: the Arbitral Procedure, 2011:2 Gaz. Pal.
349; Seraglini, L’efficacité et l’autorité renforcées des sentences arbitrales en France après
le décret No. 2011-48 du 13 janvier 2011, 2011:2 Gaz. Pal. 375.
950) France has historically been the seat for more ICC arbitrations than any other state.
See§14.02[B]. France was the seat for 17.63% of all the ICC arbitrations filed in 2012,
18.45% in 2011, 15.6% in 2010, 14.5% in 2000, and 15.5% in 1999. 2012 Statistical Report,
24(1) ICC Ct. Bull. 14 (2013); 2011 Statistical Report, 23(1) ICC Ct. Bull. 13 (2012); 2010
Statistical Report, 22(1) ICC Ct. Bull. 13 (2011); 2000 Statistic Report, 12(1) ICC Ct. Bull. 10
(2001); 1999 Statistic Report, 11(1) ICC Ct. Bull. 9 (2000).
951) The historical development of arbitration in France prior to the 20th century is discussed
above. See§1.01[B][4].
952) See Code of Civil Procedure Book IV Arbitration, in J. Paulsson (ed.), International
Handbook on Commercial Arbitration (1984 & Update 2011), for English translations. The
original version is available at www.legifrance.gouv.fr.
953) The term is defined to include matters involving cross-border transfers of goods or
services. French Code of Civil Procedure, Art. 1504 (“Arbitration is international when it
involves the interests of international commerce.”). See§2.03[C][2][c], pp. 333-35.
954) French Code of Civil Procedure, Art. 1506 (“Unless the parties have agreed otherwise, and
subject to the provisions of the present Title, the following Articles shall apply to
international arbitration…”).
126
955) Ancel, French Judicial Attitudes Toward International Arbitration, 9 Arb. Int’l 121 (1993);
Audit, A National Codification of International Commercial Arbitration: The French Decree
of May 12, 1981, in T. Carbonneau & M. Domke (eds.), Resolving Transnational Disputes
Through Arbitration 117 (1984); Bellet & Mezger, L’arbitrage international dans le nouveau
code de procédure civile, 70 Rev. Critique de Droit Int’l Privé 611 (1981); Castellane, The
New French Law on International Arbitration, 28 J. Int’l Arb. 371 (2011); M. de Boisséson, Le
droit français de L’arbitrage interne et international ¶21 (2d ed. 1990); Delaume,
International Arbitration Under French Law, 37 Arb. J. 38 (1982); Gaillard & de Lapasse,
Commentaire analytique du décret du 13 janvier 2011 portant réforme du droit français de
l’arbitrage, 2011:2 Gaz. Pal. 263, ¶¶2-3; Gaillard & de Lapasse, Le nouveau droit français
de l’arbitrage interne et international, 2011 Dalloz 175; Gaillard, Les principes
fondamentaux du nouvel arbitrage, in T. Clay (ed.), Le nouveau droit français de l’arbitrage
59 (2011); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International
Commercial Arbitration ¶¶136-39 (1999); Goldman, La nouvelle réglementation française
de l’arbitrage international, in The Art of Arbitration – Liber Amicorum Pieter Sanders 153
(1982); Jarrosson & Pellerin, Le droit français de l’arbitrage après le décret du 13 janvier
2011, 2011 Rev. arb. 54; Perrot, Sur la réforme de l’arbitrage international, in Travaux du
comité français de droit international privé 1981-1982 53 (1983); von Mehren, International
Commercial Arbitration: The Contribution of the French Jurisprudence, 46 La. L. Rev. 1045
(1985-1986).
Arbitration ¶¶148-51 (1999).
957) Gaillard & de Lapasse, Commentaire analytique du décret du 13 janvier 2011 portant
réforme du droit français de l’arbitrage, 2011:2 Gaz. Pal. 263, ¶¶2-3; Gaillard, Les principes
fondamentaux du nouvel arbitrage, in T. Clay (ed.), Le nouveau droit français de l’arbitrage
59 (2011); Jarrosson & Pellerin, Le droit français de l’arbitrage après le décret du 13 janvier
2011, 2011 Rev. arb. 5, 55 (“The decree has not modified the French approach towards
international arbitration, which remains guided by strong liberalism based on
contractual freedom and limited only by international public policy.”); Pierce, Born &
Scherer, Revision to French Arbitration Law Arrives, N.Y. L.J. S5 (16 May 2011) (“With its
most recent revision of its arbitration law, France seeks to put itself once more at the
forefront of modern international arbitration legislation.…The new law is in line with the
long-standing tradition of innovative and ‘arbitration-friendly’ arbitration law in France,
which has been important in establishing Paris as one of the world’s most popular
venues for international arbitration.”).
958) French Code of Civil Procedure, Art. 1447. See Carducci, The Arbitration Reform in France:
Domestic and International Arbitration Law, 28 Arb. Int’l 125, 130-32 (2012); Castellane, The
New French Law on International Arbitration, 28(4) J. Int’l Arb. 371 (2011). See also
Judgment of 7 May 1963, Ets Raymond Gosset v. Carapelli, JCP G 1963, II, 13, ¶405 (French
Cour de cassation civ. 1e) (“In international arbitration, the arbitration agreement,
whether concluded separately or included in the contract to which it relates, shall, save
in exceptional circumstances…, have full legal autonomy and shall not be affected by
the fact that the aforementioned contract may be invalid…”); E. Gaillard & J. Savage
(eds.), Fouchard Gaillard Goldman on International Commercial Arbitration ¶¶391 et seq.
(1999). French courts have given robust effect to the separability doctrine. See§3.02[B][3]
[d], pp. 373-75.
959) Judgment of 20 December 1993, Municipalité de Khoms El Mergeb v. Société Dalico, 1994
Rev. arb. 116 (French Cour de cassation civ. 1e); Judgment of 17 December 1991, Gatoil v.
Nat’l Iranian Oil Co., 1993 Rev. arb. 281, 284 (Paris Cour d’appel) (“in the field of
international arbitration, the principle of the autonomy of the arbitration agreement is
of general application, as an international substantive rule upholding the legality of the
arbitration agreement”); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on
International Commercial Arbitration ¶¶436-37 (1999).
960) Judgment of 20 December 1993, Municipalité de Khoms El Mergeb v. Société Dalico, 1994
Rev. arb. 116, 117 (French Cour de cassation civ. 1e).
961) French Code of Civil Procedure, Art. 1465 (“The arbitral tribunal alone has jurisdiction to
rule on objections to its jurisdiction…”); E. Gaillard & J. Savage (eds.), Fouchard Gaillard
Goldman on International Commercial Arbitration ¶¶650-60 (1999); Jarrosson & Pellerin,
Le droit français de l’arbitrage apres le décret du 13 janvier 2011, 2011 Rev. arb. 5, ¶35
(Article 1465 confirms the “positive aspect of the competence-competence principle,
which is directed at the arbitral tribunal and which complements its negative aspect
which is directed at the state courts”). See also§7.03[B][1].
962) French Code of Civil Procedure, Art. 1448 (“When a dispute subject to an arbitration
agreement is brought before a court, such court shall decline jurisdiction, except if an
arbitral tribunal has not yet been seized of the dispute and if the arbitration agreement
is manifestly void or manifestly not applicable.”); Carducci, The Arbitration Reform in
France: Domestic and International Arbitration Law, 28 Arb. Int’l 125, 133 (2012) (“A very
important provision codifies the ‘negative effect’ of Kompetenz-Kompetenz that has
been anticipated by the Cour de cassation and is mandatory in nature.”); Gaillard,
France Adopts New Law on Arbitration, N.Y. L.J. (24 January 2011) (“when no arbitral
tribunal has been constituted yet, the courts will be entitled to rule on the dispute only
where a prima facie examination of the arbitration agreement establishes that such
agreement is manifestly void or manifestly not applicable”); Jarrosson & Pellerin, Le
droit français de l’arbitrage apres le décret du 13 janvier 2011, 2011 Rev. arb. 5, ¶35. See
also§7.03[B][2].
127
Arbitration ¶¶418-19, 436-37 (1999). SeeJudgment of 20 December 1993, Municipalité de
Khoms El Mergeb v. Société Dalico, 1994 Rev. arb. 116, 117 (French Cour de cassation civ.
1e) (“no need to refer to any national law”); Judgment of 4 July 1972, Hecht v. Buisman’s, 99
J.D.I. (Clunet) 843, 845 (French Cour de cassation civ. 1e) (1972) (“total autonomy of
arbitration agreement in the field of international arbitration”). See§4.02[A][2][c], pp.
481-82.
964) SeeE. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration ¶574 (1999) (antitrust, intellectual property, bankruptcy and corporate law
issues are arbitrable). See also§6.03[C][3].
Arbitration ¶481 (1999). See also§9.02[D][2].
966) French Code of Civil Procedure, Arts. 1508, 1509, 1511, 1512; E. Gaillard & J. Savage (eds.),
Fouchard Gaillard Goldman on International Commercial Arbitration ¶¶753, 1171, 1200,
1427 (1999). See also§12.03[D][1]; §15.02[B].
967) French Code of Civil Procedure, Arts. 1464, 1509; E. Gaillard & J. Savage (eds.), Fouchard
Gaillard Goldman on International Commercial Arbitration ¶¶1200-02 (1999); Jarrosson &
Pellerin, Le droit français de l’arbitrage apres le décret du 13 janvier 2011, 2011 Rev. arb. 5,
¶34. See also§15.03[B]; §15.06[B].
968) French Code of Civil Procedure, Art. 1468. However, seizures of property and compulsory
posting of security may only be ordered by the French courts (“However, only courts may
order conservatory attachments and judicial security.”). See Clay, L’appui du juge à
l’arbitrage, 2011:2 Gaz. Pal. 331, ¶¶49-51.
969) French Code of Civil Procedure, Arts. 1452-1454. See Clay, L’appui du juge à l’arbitrage,
2011:2 Gaz. Pal. 331.
970) French Code of Civil Procedure, Arts. 1448, 1468 (French courts may order provisional
measures upon request of party before arbitral tribunal is constituted; following
constitution of tribunal, it may issue such measures, except for seizures and security
which may only be ordered by French courts). See Clay, L’appui du juge à l’arbitrage,
2011:2 Gaz. Pal. 331, ¶¶49-51. See also§17.04[C][1][b].
Arbitration ¶1290 (1999). Among other things, the Tribunal de Grande Instance is
responsible for selecting arbitrators and dealing with other problems in constituting a
tribunal, in cases where the parties have not agreed upon institutional or other
mechanisms. See French Code of Civil Procedure, Arts. 1452-1454, 1505; Judgment of 22
November 1989, Philipp Bros. v. Société Drexel Burham Lambert, 1990 Rev. arb. 142 (French
Cour de cassation civ. 2e); Clay, L’appui du juge à l’arbitrage, 2011:2 Gaz. Pal. 331. See
also§12.03[E][2][c].
972) French Code of Civil Procedure, Art. 1520. See§25.06. Following the decree of 13 January
2011, French law allows the parties to waive (by special agreement) the right to seek
annulment of an award made in France. See French Code of Civil Procedure, Art. 1522
(“The parties may, by specific agreement, waive at any time their right to challenge the
award.”). See also Seraglini, L’efficacité et l’autorité renforcées des sentences arbitrales en
France après le décret No. 2011-48 du 13 janvier 2011, 2011:2 Gaz. Pal. 375, ¶30.
973) French Code of Civil Procedure, Arts. 1520, 1525. See§25.06; §26.03[B][6].
974) For commentary, see B. Berger & F. Kellerhals, International and Domestic Arbitration in
Switzerland (2d ed. 2010); B. Berger & F. Kellerhals, Internationale und interne
Schiedsgerichtsbarkeit in der Schweiz (2006); S. Berti et al. (eds.), Basler Kommentar
Internationales Privatrecht (2d ed. 2007); S. Berti et al. (eds.), International Arbitration in
Switzerland (2000); A. Bucher & P.-Y. Tschanz, International Arbitration in Switzerland
(1988); E. Geisinger & N. Voser (eds.), International Arbitration in Switzerland (2008); E.
Geisinger & N. Voser (eds.), International Arbitration in Switzerland: A Handbook for
Practitioners (2d ed. 2013); G. Kaufmann-Kohler & A. Rigozzi, Arbitrage international – Droit
et pratique à la lumière de la LDIP (2007); P. Lalive, J.-F. Poudret & C. Reymond, Le droit de
l’arbitrage interne et international en Suisse (1989); J.-F. Poudret & S. Besson, Comparative
Law of International Arbitration (2d ed. 2007); T. Rüede & R. Hadenfeldt, Schweizerisches
Schiedsgerichtsrecht (2d ed. 1993); von Segesser & Schramm, Swiss International
Arbitration Act (Chapter 12: International Arbitration), 1989, in L. Mistelis (ed.), Concise
International Arbitration 911 (2010); G. Walter, W. Bosch & J. Brönnimann, Internationale
Schiedsgerichtsbarkeit in der Schweiz (1991); T. Zuberbühler, C. Müller & P. Habegger
(eds.), Swiss Rules of International Arbitration: Commentary (2005).
975) Switzerland was the seat for approximately 21.29% of all ICC arbitrations filed in 2012,
15.98% in 2011, 14.5% in 2010, 17.8% in 2009 and 15.8% in 2008 (ranking as jurisdiction
with most locally-seated ICC arbitrations in 2009 and second behind France in 2008 and
2010). 2012 Statistical Report, 24(1) ICC Ct. Bull. 14 (2013); 2011 Statistical Report, 23(1) ICC
Ct. Bull. 13 (2012); 2010 Statistical Report, 22(1) ICC Ct. Bull. 13 (2011); 2009 Statistical
Report, 21(1) ICC Ct. Bull. 12-13 (2010); 2008 Statistical Report, 20(1) ICC Ct. Bull. 12-13
(2009). See§14.02[B].
976) The historical development of arbitration in Switzerland prior to the 20th century is
summarized briefly above. See§1.01[B][6].
977) The leading members of the committee were Professors Pierre Lalive and Claude
Reymond, together with Dr. Marc Blessing. See Blessing, in S. Berti et al. (eds.),
International Arbitration in Switzerland Introduction, ¶426 (2000).
128
978) Kommission für Rechtsfragen, Bundesgesetz über das internationale Privatrecht: Die
Attraktivität der Schweiz als internationalen Schiedsplatz erhalten (3 February 2012),
available at www.parlament.ch.
979) See Blessing, in S. Berti et al. (eds.), International Arbitration in Switzerland Introduction,
¶414 (2000).
980) Chapter 12 of the Swiss Law on Private International Law is translated in S. Berti et al.
(eds.), International Arbitration in Switzerland, passim (2000). The official French, German
and Italian versions of Chapter 12, as well as unofficial English, Russian and Spanish
translations can be found at www.swissarbitration.ch./rules.php.
981) Swiss Law on Private International Law, Art. 178(3); §3.02[B][3][b].
982) Swiss Law on Private International Law, Art. 178(2); §4.02[A][2][b]; §4.04[B][3][d].
983) Swiss Law on Private International Law, Art. 186; §7.03[C][1].
984) Swiss Law on Private International Law, Art. 177; §6.03[C][2].
985) See§9.02[D][1][b].
986) See§8.03[C][1]; Judgment of 29 April 1996, Found. M v. Banque X, 14 ASA Bull. 527 (1996)
(Swiss Federal Tribunal) (where party challenges jurisdiction under arbitration
agreement providing for seat in Switzerland, Swiss court must decline jurisdiction,
unless it concludes upon a prima facie examination that arbitration agreement is null
and void, inoperative, or incapable of being performed); Judgment of 16 January 1995,
Compagnie de Navigation et Transports SA v. Mediterranean Shipping Co., XXI Y.B. Comm.
Arb. 690 (1996) (Swiss Federal Tribunal) (where party challenges jurisdiction under
arbitration agreement providing for seat abroad, Swiss court must subject question of
validity and scope of agreement to full judicial consideration); Wenger, in S. Berti et al.
(eds.), International Arbitration in Switzerland Art. 186, ¶¶5 et seq. (2000).
987) Swiss Law on Private International Law, Arts. 182, 187.
988) Swiss Law on Private International Law, Arts. 179(2),(3), 180(3), 183(2), 184(2), 185.
989) Swiss Law on Private International Law, Art. 190(2).
990) Swiss Law on Private International Law, Art. 192; §§25.07[A][1]-[2].
991) Swiss Law on Private International Law, Art. 194.
992) Swiss Law on Private International Law, Art. 191(1).
993) There is extensive commentary on the English Arbitration Act, 1996. See, e.g., British
Institute of International and Comparative Law, The Eleventh Annual Review of the
Arbitration Act: Is English Law Really Better? (2008); B. Harris, R. Planterose & J. Tecks, The
Arbitration Act 1996: A Commentary (4th ed. 2007); R. Merkin & L. Flannery, Arbitration Act
1996 (4th ed. 2008); R. Merkin, Arbitration Law ¶¶1.6 to 1.45 (1991 & Update August 2013);
R. Merkin, Arbitration Act 1996 – An Annotated Guide (1996); M. Mustill & S. Boyd,
Commercial Arbitration (2d ed. 1989 & 2001 Companion); Saville, The Origin of the New
English Arbitration Act 1996: Reconciling Speed With Justice in the Decision-Making Process,
13 Arb. Int’l 237 (1997); Special Section, The 1996 English Arbitration Act: A Ten Year
Retrospective, 23 Arb. Int’l 431 (2007); Fraser, Arbitration of International Commercial
Disputes Under English Law, English Arbitration Act 1996, 8 Am. Rev. Int’l Arb. 1 (1997); D.
Sutton, J. Gill & M. Gearing, Russell on Arbitration (23d ed. 2007).
994) The United Kingdom was the seat for approximately 12.39% of all ICC arbitrations filed in
2012, 10.21% in 2011, 8.8% filed in 2010 and 10.1% in 2000. 2012 Statistical Report, 24(1) ICC
Ct. Bull. 14 (2013); 2011 Statistical Report, 23(1) ICC Ct. Bull. 13 (2012); 2010 Statistical
Report, 22(1) ICC Ct. Bull. 13 (2011); 2000 Statistical Report, 12(1) ICC Ct. Bull. 10 (2001).
See§14.02[B].
995) English Arbitration Act, 1996, §2(1) (“provisions of this Part apply where the seat of the
arbitration is in England and Wales or Northern Ireland”).
996) Goode, The Role of the Lex Loci Arbitri in International Commercial Arbitration, 17 Arb. Int’l
19, 19 (2001) (“Arbitration Act 1996, unlike early versions of the draft Arbitration Bill
prepared for the Departmental Advisory Committee on Arbitration, bears the strong
impress of the Model Law”); Saville, The Origin of the New English Arbitration Act 1996:
Reconciling Speed With Justice in the Decision-Making Process, 13 Arb. Int’l 237 (1997). The
Act differs from the UNCITRAL Model Law in a number of respects. For a summary of the
most important of these, see R. Merkin, Arbitration Law ¶1.22 (1991 & Update August
2013).
997) See§1.01[B][3].
998) Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 24-32 (1999).
999) Compare the 23 (short) sections of the French New Code of Civil Procedure, the 19
(shorter) sections of the Swiss Law on Private International Law and the 31 (short)
sections of the FAA (which include substantially duplicative implementing legislation for
the Inter-American and New York Conventions).
1000) See Hunter, Arbitration Procedure in England: Past, Present and Future, 1 Arb. Int’l 82
(1985); Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 14, 19
(1999). The historical development of commercial arbitration in England prior to the 20th
century is described above. See§1.01[B][3].
1001) Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 19 (1999).
1002) English Arbitration Act, 1979, §§1(3)(a), (b), 3; Antaios Compania Naviera SA v. Salen
Rederierna AB [1985] AC 191 (House of Lords); Pioneer Shipping v. B.T.P. Tioxide (The
“Nema”) [1982] AC 724 (House of Lords); Macassey, English Arbitration, XV J. Institute Arb.
63 (1947).
129
1003) For commentary on English arbitration law prior to 1996, see B. Harris, R. Planterose & J.
Tecks, The Arbitration Act 1996: A Commentary (4th ed. 2007); R. Merkin, Arbitration Law
(1991 & Update August 2013); D. Sutton, J. Gill & M. Gearing, Russell on Arbitration ¶¶1-
042 to 1-054 (23d ed. 2007).
For a critical overview, see Samuel, Arbitration Statutes in England and the USA, 8 Arb. &
Disp. Res. L.J. 2, 19 (1999) (“A great deal of ink has been spilt on this ill-conceived piece of
compromise legislation.”); Samuel, The 1979 Arbitration Act – Judicial Review of Arbitral
Awards on the Merits in England, 2(4) J. Int’l Arb. 53 (1985).
1004) Ashville Inv. Ltd v. Elmer Contractors Ltd [1988] 3 WLR 867 (English Ct. App.); Samuel,
Separability in English Law – Should An Arbitration Clause Be Regarded as An Agreement
Separate and Collateral to A Contract in Which It Is Contained?, 3(3) J. Int’l Arb. 95 (1986).
The separability presumption was recognized in England in Harbour Ass. Co. (U.K.) Ltd v.
Kansa Gen. Int’l Ins. Co. [1993] 3 All ER 897 (English Ct. App.). See§3.02[B][3][f].
1005) See English Arbitration Act, 1979, §§3, 4; R. Merkin, Arbitration Law ¶22.5 (1991 & Update
August 2013).
1006) English Arbitration Act, 1979, §§3, 4; R. Merkin, Arbitration Law ¶22.5 (1991 & Update
August 2013).
1007) Marriott, The Politics of Arbitration Reform, 14 C.L.Q. 125 (1995). See§25.05[A][1][b];
§25.07[A][1].
1008) See U.K. Departmental Advisory Committee on Arbitration Law, Report on the Arbitration
Bill (1996); U.K. Departmental Advisory Committee on Arbitration Law, Supplement to the
Departmental Advisory Committee on Arbitration Law Report of February 1996 (1997).
1009) Chukwumerije, Reform and Consolidation of English Arbitration Law, 8 Am. Rev. Int’l Arb.
21 (1996); Mustill, A New Arbitration Act for the United Kingdom? The Response of the
Departmental Advisory Committee to the UNCITRAL Model Law, 6 Arb. Int’l 3 (1990);
Saville, The Origin of the New English Arbitration Act 1996: Reconciling Speed With Justice
in the Decision-Making Process, 13 Arb. Int’l 237 (1997).
1010) English Arbitration Act, 1996, §§5, 6, 9. See§5.02[A][5][e]; §8.03[C][1].
1011) English Arbitration Act, 1996, §7. See§3.02[B][3][f].
1012) English Arbitration Act, 1996, §§30, 31, 67; Aeberli, Jurisdictional Disputes Under the
Arbitration Act 1996: A Procedural Route Map, 21 Arb. Int’l 253, 260-65 (2005). See§7.03[F].
1013) See Fiona Trust & Holding Corp. v. Privalov [2007] 1 All ER 891 (Comm) (English Ct. App.),
aff’d, [2007] UKHL 40 (House of Lords); Film Fin. Inc. v. Royal Bank of Scotland [2007] EWHC
195 (Comm) (English High Ct.); Vee Networks Ltd v. Econet Wireless Int’l Ltd [2005] 1 Lloyd’s
Rep. 192 (QB) (English High Ct.); §9.02[D][1][d].
1014) See Fulham Football Club (1987) Ltd v. Richards [2011] EWCA Civ 855 (English Ct. App.); ET
Plus SA v. Jean-Paul Welter [2005] EWHC 2115 (Comm) (English High Ct.); R. Merkin,
Arbitration Law ¶3.17 (1991 & Update August 2013); §6.03[C][5].
1015) The Act underscores the parties’ autonomy and the tribunal’s discretion to conduct the
arbitral proceedings. English Arbitration Act, 1996, §§33, 34; §15.02[B]; §15.03[B].
Reflecting Article 5 of the UNCITRAL Model Law, the English Arbitration Act, 1996,
provides that, in matters covered by Part I (“Arbitration Pursuant to an Arbitration
Agreement”) “the court should not intervene except as provided by this part.” SeeEnglish
Arbitration Act, 1996, §1(c).
1016) English Arbitration Act, 1996, §34(1) (“It shall be for the tribunal to decide all procedural
and evidential matters, subject to the right of the parties to agree any matter…”);
§15.08[AA]][9], p. 2285.
1017) English Arbitration Act, 1996, §37; §15.08[AA][7].
1018) English Arbitration Act, 1996, §37; §17.02[G][4][f].
1019) English Arbitration Act, 1996, §§38(4), 39; §17.02[G][4][a].
1020) See§11.03[C][2][b]; §11.03[F]. This contrasts with the English Arbitration Act, 1950, which
operated on the presumption that arbitrators were to act in accordance with the
ordinary rules of evidence under applicable English law. See Land Sec. plc v. Westminster
City Council [1992] 44 EG 153 (QB) (English High Ct.).
1021) English Arbitration Act, 1996, §44; §16.03[A][2].
1022) English Arbitration Act, 1996, §§16, 18, 19, 24; §12.03[E][2][e]; §12.06[B][1]; §12.06[C][2].
1023) English Arbitration Act, 1996, §44.
1024) Lesotho Highlands Dev. Auth. v. Impregilo SpA [2006] 1 AC 221, 231 (House of Lords).
1025) English Arbitration Act, 1996, §§67-69; §25.05[A][1][b].
1026) English Arbitration Act, 1996, §69; §25.05[A][1][b].
1027) Athletic Union of Constantinople v. Nat’l Basketball Assoc. [2002] 1 Lloyd’s Rep. 305
(English Ct. App.); Sanghi Polyesters (India) Ltd v. Int’l Investor (KCFC, Kuwait) [2000] 1
Lloyd’s Rep. 480 (QB) (English High Ct.).
1028) English Arbitration Act, 1996, §§100-104. See§25.05[A][1][b].
130
1029) For commentary on international arbitration in the United States, see Bermann,
“Domesticating” the New York Convention: The Impact of the Federal Arbitration Act, 2 J.
Int’l Disp. Sett. 317 (2011); E. Brunet et al., Arbitration Law in America: A Critical Assessment
(2006); J. Carter & J. Fellas, International Commercial Arbitration in New York (2010);
Drahozal, New Experiences of International Arbitration in the United States, 54 Am. J.
Comp. L. 233 (2006); L. Edmonson (ed.), Domke on Commercial Arbitration (3d ed. 2010 &
Update 2013); F. Kellor, American Arbitration: Its History, Functions and Achievements
(2000); A. Lowenfeld, International Litigation and Arbitration (3d ed. 2005); I. Macneil et
al., Federal Arbitration Law: Agreements, Awards and Remedies Under the Federal
Arbitration Act (1994); I. Macneil, American Arbitration Law: Reformation, Nationalization,
Internationalization (1992).
1030) The United States was the seat for approximately 7.6% of all ICC arbitrations filed in
2012, 7.91% in 2011, 5.5% in 2010, 5.6% in 2006, and 7.9% in 2000. 2012 Statistical Report,
24(1) ICC Ct. Bull. 14 (2013); 2011 Statistical Report, 23(1) ICC Ct. Bull. 12 (2012); 2010
Statistical Report, 22(1) ICC Ct. Bull. 13 (2011); 2006 Statistical Report, 18(1) ICC Ct. Bull. 12
(2007); 2000 Statistical Report, 12(1) ICC Ct. Bull. 10 (2001).
1031) More U.S. companies are parties to ICC arbitrations than any other nationality. In 2012,
7.12% of the parties to new ICC arbitrations were U.S., more than from any other nation
(6.48% of parties to ICC arbitrations in 2012 were German, placing Germany in second
place). ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 10 (2013). Likewise, 6.76% of all
parties to ICC arbitrations filed in 2011 were U.S. parties, the highest proportion of any
nation. ICC, 2011 Statistical Report, 23(1) ICC Bull. 5, 9 (2012).
1032) See§14.02[B].
1033) U.S. FAA, 9 U.S.C. §§1-16 (domestic and non-New York or Inter-American Convention
international arbitrations), §§201-208 (New York Convention), §§301-307 (Inter-American
Convention).
1034) For much of the 20th century, Japan’s arbitration legislation dated to 1890; it was
replaced with a more modern statutory enactment in 2004. See Oghigan, Japan’s New
Arbitration Law, 2005 Asian Disp. Res. 56; Suzuki, Japan’s New Arbitration Law, 2005 Asian
Disp. Res. 16.
1035) For a discussion of the respective roles of federal and state law in international
arbitration in the United States, see§1.04[B][1][e][iv]; §4.04[A][2][j].
1036) See§1.01[B][5]; Red Cross Line v. Atl. Fruit Co., 264 U.S. 109, 121-22 (U.S. S.Ct. 1924); Tobey v.
County of Bristol, 23 F.Cas. 1313 (C.C. D. Mass. 1845).
1037) See§1.01[B][5].
1038) See§1.01[B][5].
1039) N.Y. Arbitration Law, Chp. 275, 1920 N.Y. Laws 803-808 (1920). See§1.01[B][5].
1040) An American Bar Association committee prepared the initial draft of what was then
called the “United States Arbitration Act.” That bill was first introduced in Congress in
1922. See S. 4214, 67th Cong., 4th Sess., 64 Cong. Rec. 732 (1922); H.R. 13522, 67th Cong., 4th
Sess., 64 Cong. Rec. 797 (1922). The Senate Judiciary Committee held hearings on the bill
in 1923. See Hearings on S. 4213 and S. 4214 Before the Subcommittee of the Senate
Committee on the Judiciary, 67th Cong., 4th Sess. (1923). Joint congressional hearings on
the bill were held in 1924. Joint Hearings on S. 1005 and H.R. 646 Before the
Subcommittee of the Committees on the Judiciary, 68th Cong., 1st Sess. (1924).
1041) S. Rep. No. 536, 68th Cong., 1st Sess. 3 (1924); Committee on Commerce, Trade and
Commercial Law, The United States Arbitration Act and Its Application, 11 A.B.A.J. 153, 155-
56 (1925).
1042) Hearings on S. 4213 and S. 4214 Before the Subcommittee of the Senate Committee on the
Judiciary, 67th Cong., 4th Sess., 14 (1923) (Letter from H. Hoover, Secretary of Commerce).
1043) Hearings on S. 4213 and S. 4214 Before the Subcommittee of the Senate Committee on the
Judiciary, 67th Cong., 4th Sess., 14 (1923) (ABA Report).
1044) Supporters of the FAA stated on numerous occasions, without contradiction, that support
for the legislation was universal. Hearings on S. 4213 and S. 4214 Before the Subcommittee
of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 3, 5, 17, 21 (1923).
1045) Even after the passage of the FAA, U.S. courts’ historical mistrust of arbitration
agreements was reflected in the Restatement (First) Contracts, published in 1932.
Restatement (First) Contracts §550 (1932) (“a bargain to arbitrate either an existing or a
possible future dispute…will not be specifically enforced, and only nominal damages
are recoverable for its breach”). While noting that Congress had enacted the FAA, the
Restatement observed that “such statutes have not as yet been generally enacted in the
United States.” Ibid.
1046) 65 Cong. Rec. 1931 (1924).
1047) See§§1.01[B][3] & [5].
1048) Hearings on S. 4213 and S. 4214 Before the Subcommittee of the Senate Committee on
the Judiciary, 67th Cong., 4th Sess., 2 (1923).
1049) U.S. FAA, Chp. 392, §1, 62 Stat. 669 (1947) (as codified at 9 U.S.C. §§1-16).
1050) U.S. FAA, 84 Stat. 692 (1970) (as codified at 9 U.S.C. §§201-208).
1051) U.S. FAA, Pub. L. 101-369 (1990) (as codified at 9 U.S.C. §§301-307).
1052) The Act contains no or only the most rudimentary provisions regarding constitution of
the arbitral tribunal, conduct of the arbitral proceedings, provisional measures,
applicable law, costs and form of award.
131
1053) Cf. Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Res. L.J. 2, 32 (1999)
(“The [FAA] falls in the category of ‘small but perfectly formed.’ It is very resilient and
loosely enough drafted in the right places to enable the court to do the right thing for
the arbitral process.”).
1054) The FAA applies to arbitration agreements and awards affecting either inter-state or
foreign commerce. U.S. FAA, 9 U.S.C. §1; §2.03[B][2][b]. These jurisdictional grants have
been interpreted expansively. SeeG. Born, International Commercial Arbitration:
Commentary and Materials 124-26, 388-89 (2d ed. 2001). The FAA’s focus was principally
domestic, although it also expressly applies to “foreign commerce.” U.S. FAA, 9 U.S.C. §1.
1055) U.S. FAA, 9 U.S.C. §2. For discussion of §2 and its “savings clause,” see§4.04[A][2][j][i].
1056) U.S. FAA, 9 U.S.C. §§3-4. For a discussion of §§3 and 4, see§8.02[A][2]; §8.02[C]; §14.08[B]
[2].
1057) See U.S. FAA, 9 U.S.C. §5; §12.03[E][2][b].
1058) See U.S. FAA, 9 U.S.C. §7; §16.03[A][4].
1059) See U.S. FAA, 9 U.S.C. §§9-11; §22.01[B][3]; §25.03[B].
1060) See U.S. FAA, 9 U.S.C. §13.
1061) The domestic FAA consists of only 16 articles, a number of which are archaic or
immaterial. This contrasts with the much lengthier English Arbitration Act and UNCITRAL
Model Law, see§1.04[B][1][d]; §1.04[B][1][a], while roughly paralleling French and Swiss
legislative style, see§§1.04[B][1][b]-[c].
1062) See§1.04[B][1][e][ii].
1063) Restatement (Third) U.S. Law of International Commercial Arbitration §4-3, Reporters’
Note e(i) (Tentative Draft No. 2 2012) (“The Restatement position is that applying FAA
Chapter One to non-Convention awards is most consistent with the text of the FAA and
the federal policy in favor of arbitral dispute resolution.”).
1064) See§1.04[A][1][b].
1065) U.S. FAA, 9 U.S.C. §§201-208.
1066) 116 Cong. Rec. 22, 732-33 (24 July 1970) (Hamilton Fish). See also id. at 22, 731 (Andrew
Jacobs).
1067) Foreign Arbitral Awards, S. Rep. No. 91-702, 91st Cong., 2d Sess. 1-2 (1970); Aksen, American
Arbitration Accession Arrives in the Age of Aquarius, 3 Sw. U. L. Rev. 1 (1971); Bermann,
“Domesticating” the New York Convention: The Impact of the Federal Arbitration Act, 2 J.
Int’l Disp. Sett. 317 (2011).
1068) U.S. FAA, 9 U.S.C. §201. See§8.02[C]; §14.06[B]. In addition, the amendments expand
federal subject matter jurisdiction and removal authority in cases falling under the
Convention. U.S. FAA, 9 U.S.C. §§203, 205.
1069) U.S. FAA, 9 U.S.C. §§206, 207. See§26.03[D].
1070) U.S. FAA, 9 U.S.C. §§203, 205. See Silec Cable SAS v. Alcoa Fjardaal Sf, 2012 U.S. Dist. LEXIS
167020, at *20 (3d Cir.) (for removal to be proper it need only be “at least conceivable
that the arbitration clause will impact the disposition of the case”); Infuturia Global Ltd
v. Sequus Pharm., Inc., 2011 U.S. App. LEXIS 2337 (9th Cir.) (permitting removal under §205
of FAA because one party sought to rely on prior arbitral award); Beiser v. Weyler, 284
F.3d 665, 669-70 (5th Cir. 2002) (“[T]he district court will have jurisdiction under §205 over
just about any suit in which a defendant contends that an arbitration clause falling
under the Convention provides a defense. As long as [it] is not completely absurd or
impossible.”).
1071) U.S. FAA, 9 U.S.C. §§301-306; J. Bowman, The Panama Convention and Its Implementation
Under the Federal Arbitration Act (2002). See§1.04[A][3]; §2.01[A][1][b]; §5.01[B][3]; §22.02[E]
[1][c]; §22.04[A][3]; §25.02[C]; §26.03[C][1].
1072) U.S. FAA, 9 U.S.C. §302.
1073) U.S. FAA, 9 U.S.C. §§303, 306. See§2.03[C][2][b].
1074) U.S. FAA, 9 U.S.C. §305.
1075) U.S. FAA, 9 U.S.C. §§202, 206, 207, 302-304.
1076) Section 208 of the FAA provides that the domestic FAA “applies to actions and
proceedings brought under this chapter to the extent that [the domestic FAA] is not in
conflict with this chapter or the Convention as ratified by the United States.” U.S. FAA, 9
U.S.C. §208.
1077) See Publicis Commc’n v. True N. Commc’ns, Inc., 206 F.3d 725, 729 (7th Cir. 2000) (“New York
Convention supplements the Federal Arbitration Act, and the logic of decisions applied
to the latter may guide the interpretation of the former”).
1078) Rent-A-Ctr, W., Inc. v. Jackson, 130 S.Ct. 2772 (U.S. S.Ct. 2010); Buckeye Check Cashing, Inc.
v. Cardegna, 546 U.S. 440, 447-48 (U.S. S.Ct. 2006); Southland Corp. v. Keating, 465 U.S. 1
(U.S. S.Ct. 1984); Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (U.S. S.Ct.
1983); Prima Paint Corp. v. Flood & Conklin Mfg Co., 388 U.S. 395 (U.S. S.Ct. 1967). See
Restatement (Third) U.S. Law of International Commercial Arbitration §4-3, Reporters’
Note b (Tentative Draft No. 2 2012) (“In light of the fact that the Conventions and their
implementing legislation are sparsely written and leave unanswered many specific
questions, courts have developed a fairly expansive ‘federal common law’ of arbitration
to interpret and apply the Conventions.”).
1079) See§4.02[A][2][d]; §9.05[A]; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 628 (U.S. S.Ct. 1985).
1080) See§3.02[B][3][c]; §4.02[A][2][d]; §4.04[A][2][j] (especially §4.04[A][2][j][iv]); §5.06[C][4];
§5.06[C][6][c]; §6.04[H][1]; §7.02[B][7]; §9.05[A]; §10.02[A]; §15.02[B]; §15.06[B].
132
1081) See§1.01[B][5]; §1.04[B][1][e] (especially §1.04[B][1][e][iv]); §4.04[A][2][j]; §6.04[A][1];
Scherk v. Alberto-Culver Co., 417 U.S. 506, 516-17 (U.S. S.Ct. 1974); Drahozal, The New York
Convention and the American Federal System, 2012 J. Disp. Res. 101.
1082) See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (U.S. S.Ct.
1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 516-17 (U.S. S.Ct. 1974); §6.03[A]; §6.03[C]
[4].
1083) See Rent-A-Ctr, W., Inc. v. Jackson, 130 S.Ct. 2772 (U.S. S.Ct. 2010); Buckeye Check Cashing,
Inc. v. Cardegna, 546 U.S. 440, 445 (U.S. S.Ct. 2006); Prima Paint Corp. v. Flood & Conklin
Mfg Co., 388 U.S. 395, 402 (U.S. S.Ct. 1967); §3.02[B][3][c]; §3.03[A][2][b].
1084) See Granite Rock Co. v. Int’l Bhd of Teamsters, 130 S.Ct. 2847, 2855-56 (U.S. S.Ct. 2010);
Rent-A-Ctr, W., Inc. v. Jackson, 130 S.Ct. 2772 (U.S. S.Ct. 2010); PacifiCare Health Sys., Inc. v.
Book, 538 U.S. 401 (U.S. S.Ct. 2003); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (U.S.
S.Ct. 2002); First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (U.S. S.Ct. 1995); §7.03[E].
1085) See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (U.S. S.Ct. 2006); Doctor’s
Assocs., Inc. v. Casarotto, 517 U.S. 681 (U.S. S.Ct. 1996); Southland Corp. v. Keating, 465 U.S.
1 (U.S. S.Ct. 1984); §4.04[A][2][j][v]; §4.04[B][3][b]; §5.01[C][2].
1086) See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (U.S. S.Ct. 1995); Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (U.S. S.Ct. 1985); §9.02[D][1][a].
1087) See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (U.S. S.Ct.
1985) (party agreeing to arbitration “trades the procedures and opportunity for review of
the courtroom for the simplicity, informality, and expedition of arbitration”); McDonald
v. City of W. Branch, 466 U.S. 284, 292 (U.S. S.Ct. 1984); §15.02[B]; §15.04[B]; §§25.04[B][3]
[c]-[d].
1088) See§15.03[B].
1089) See§12.06[B][3]; §15.06[B].
1090) See§17.04[B][2] (especially §17.04[B][2][b]).
1091) See§16.03[A][4][a][iv](1).
1092) See§12.03[E][2][a].
1093) See§25.04[A][1]; §25.04[B][1]; §25.04[E][1]; §25.05[A][1][a]. This substantive review is
referred to under the rubric of “manifest disregard of law.” See§25.05[A][1][a], pp. 3341-
48.
1094) See§1.04[A][1][c][ii]; §26.03[B].
1095) See, e.g., Brunel, A Proposal to Adopt UNCITRAL’s Model Law on International Arbitration
as Federal Law, 25 Tex. Int’l L.J. 43 (1990); Kolkey, It’s Time to Adopt the UNCITRAL Model
Law on International Commercial Arbitration, 8 Transnat’l L. & Contemp. Probs. 3 (1998);
Park, Amending the Federal Arbitration Act, 13 Am. Rev. Int’l L. 75 (2002); Stipanowich,
Rethinking American Arbitration, 63 Ind. L.J. 425 (1987).
1096) Park, Amending the Federal Arbitration Act, 13 Am. Rev. Int’l L. 75 (2002).
1097) Hulbert, The Case for A Coherent Application of Chapter 2 of the Federal Arbitration Act, 22
Am. Rev. Int’l Arb. 45 (2011); Kaufmann-Kohler, Globalization of Arbitral Procedure, 36
Vand. J. Transnat’l L. 1313 (2003).
1098) Rivkin & Kellner, In Support of the FAA: An Argument Against U.S. Adoption of the
UNCITRAL Model Law, 10 Am. Rev. Int’l Arb. 535 (1999); Samuel, Arbitration Statutes in
England and the USA, 8 Arb. & Disp. Res. L.J. 2, 32 (1999).
1099) Hulbert, Should the FAA Be Amended?, 18(2) Mealey’s Int’l Arb. Rep. 37 (2003).
1100) Park, Amending the Federal Arbitration Act, 13 Am. Rev. Int’l L. 75, 135 (2002). The same
author quotes the chief legal officer of a major company as saying that amendment of
the FAA sent “shivers down the spine” of the business community, because of concerns
about legislative interference with a system that basically functioned satisfactorily.
Compare Carrington & Haagen, Contract and Jurisdiction, 1996 S.Ct. Rev. 331, 401 (1997)
(“As architecture, the arbitration law made by the Court is a shantytown.”).
1101) See Arbitration Fairness Act of 2013, S. 878, 113th Congress (2013); Arbitration Fairness Act
of 2011, H.R. 1873, S. 987, 112th Cong. (2011); Arbitration Fairness Act of 2009, H.R. 1020,
111th Congress (2009); Arbitration Fairness Act of 2007, H.R. 3010, S. 1782, 110th Cong.
(2007).
1102) Although not as far-reaching as proposed legislation to render consumer and employee
disputes nonarbitrable, Congress enacted the Dodd-Frank Wall Street Reform and
Consumer Protection Act in 2010 to reform financial regulation. As part of the Act, the
Securities and Exchange Commission was granted the authority to invalidate mandatory
arbitration provisions in certain securities transactions. See Dodd-Frank Wall Street
Reform and Consumer Protection Act, 124 Stat. 1376, §921 (2010); §6.04[H][1].
1103) See, e.g., Medellin v. Texas, 552 U.S. 491, 521-22 (U.S. S.Ct. 2009) (dicta that New York
Convention is non-self-executing); Safety Nat’l Cas. Corp. v. Certain Underwriters at
Lloyd’s, London, 587 F.3d 714, 737 (5th Cir. 2009) (Elrod, J., dissenting) (New York
Convention is non-self-executing and therefore cannot preempt state law); Stephens v.
Am. Int’l Ins. Co., 66 F.3d 41, 45 (2d Cir. 1995) (“the Convention is not self-executing, and
therefore relies upon an Act of Congress for its implementation”). See also ESAB Group,
Inc. v. Zurich Ins. plc, 685 F.3d 376, 390-91 (4th Cir. 2012) (raising, but not deciding,
question whether New York Convention is self-executing); Safety Nat’l Cas. Corp. v. Certain
Underwriters at Lloyd’s, London, 587 F.3d 714 (5th Cir. 2009) (raising, but not deciding,
question whether New York Convention is self-executing); Suter v. Munich Reins. Co., 223
F.3d 150, 162 (3d Cir. 2000) (raising, but not deciding, question whether New York
Convention is self-executing).
133
1104) See, e.g., Louisiana Safety Ass’n of Timbermen – Self Insurers Fund v. Certain Underwriters
at Lloyd’s, London, Amicus Curiae Brief of United States, 2010 WL 3375626, at *7 (“The
better view of the matter…is that Article II is self-executing.”) (emphasis in original);
Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, London, 587 F.3d 714, 733 (5th Cir.
2009) (Clement, J., concurring) (“the plain text of Article II of the Convention compels a
finding of self-execution”; “The text of Article II constitutes ‘a directive to domestic
courts.’…It leaves no discretion to the political branches of the federal government
whether to make enforceable the agreement-enforcing rule it prescribes; instead, that
rule is enforceable by the Convention’s own terms.…The terms of Article II do not merely
describe arbitration rights which are ‘of a nature to be enforced in a court of justice,’ but
expressly instruct courts to enforce those rights by referring the parties to arbitration.”).
See also Publicis Commc’n v. True N. Commc’ns, Inc., 206 F.3d 725, 729 (7th Cir. 2000).
1105) See§4.04[A][2][j].
1106) See§4.05[B].
1107) There has been a vigorous debate on the Supreme Court concerning the preemptive
effect of the FAA. Compare Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265 (U.S. S.Ct.
1995) (Breyer, J.) with id. at 285 (Scalia, J., dissenting); compare Southland Corp. v. Keating,
465 U.S. 1 (U.S. S.Ct. 1984) (Burger, J.) with id. at 25 (O’Connor, J., dissenting).
Academic debate has been just as robust. Compare Drahozal, In Defense of Southland:
Reexamining the Legislative History of the Federal Arbitration Act, 78 Notre Dame L. Rev.
101 (2002) with I. Macneil, American Arbitration Law: Reformation, Nationalization,
Internationalization 83-147 (1992).
It is difficult to be certain what Congress thought it was doing when it enacted the FAA in
1925. The better view is that it intended that §2 of the Act states a substantive rule of
federal law, governing the validity of arbitration agreements, which would preempt state
law and be enforceable in state, as well as federal, courts. Drahozal, In Defense of
Southland: Reexamining the Legislative History of the Federal Arbitration Act, 78 Notre
Dame L. Rev. 101, 163-65 (2002). This interpretation is buttressed by the then recently-
adopted 1923 Geneva Protocol, which also provided for the validity of arbitration
agreements (but not for the recognition of foreign arbitral awards), in a manner
structurally paralleling the FAA. See§1.01[C][1].
1108) Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (U.S. S.Ct. 2003); Hines v. Davidowitz, 312 U.S. 52
(U.S. S.Ct. 1941). See also Drahozal, The New York Convention and the American Federal
System, 2012 J. Disp. Res. 101.
1109) The U.S. Supreme Court has repeatedly held that the FAA preempts particular state law
rules. AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740. 1747 (“When state law prohibits
outright the arbitration of a particular type of claim, the analysis is straightforward: The
conflicting rule is displaced by the FAA.”); Allied-Bruce Terminix Co. v. Dobson, 513 U.S.
265 (U.S. S.Ct. 1995); Perry v. Thomas, 482 U.S. 483 (U.S. S.Ct. 1987); Southland Corp. v.
Keating, 465 U.S. 1 (U.S. S.Ct. 1984); §4.04[A][2][j][iii]; §4.04[B][3][b]; §5.06[C][4]; §6.04[H]
[1]. See also Besson, The Utility of State Laws Regulating International Commercial
Arbitration and Their Compatibility With the FAA, 11 Am. Rev. Int’l Arb. 211 (2000); Drahozal,
In Defense of Southland: Reexamining the Legislative History of the Federal Arbitration Act,
78 Notre Dame L. Rev. 101 (2002); Drahozal, Federal Arbitration Act Preemption, 79 Ind. L.J.
393 (2004); Hayford & Palmiter, Arbitration Federalism: A State Role in Commercial
Arbitration, 54 Fla. L. Rev. 175 (2002).
1110) See Restatement (Third) U.S. Law of International Commercial Arbitration §4-3 (Tentative
Draft No. 2 2012) (“Since the FAA does not pre-empt state law in the sense of occupying
the field, state law may provide a basis for confirming, vacating, recognizing, or
enforcing international awards made in the United States.”); Volt Info. Sciences, Inc. v.
Stanford Univ., 489 U.S. 468, 477 (U.S. S.Ct. 1989) (“even when Congress has not completely
displaced state regulation in an area, state law may nonetheless be preempted to the
extent that it actually conflicts with federal law”).
1111) Southland Corp. v. Keating, 465 U.S. 1, 10 (U.S. S.Ct. 1984). See also Buckeye Check Cashing,
Inc. v. Cardegna, 546 U.S. 440, 444-48 (U.S. S.Ct. 2006) (“Section 2 embodies the national
policy favoring arbitration and places arbitration agreements on equal footing with all
other contracts.”).
1112) See§4.04[A][2][j][iii]; §4.04[B][3][b]; §6.04[H][1]; AT&T Mobility LLC v. Concepcion, 131 S.Ct.
1740 (U.S. S.Ct. 2011); Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681 (U.S. S.Ct. 1996);
Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265 (U.S. S.Ct. 1995); Southland Corp. v.
Keating, 465 U.S. 1, 10 (U.S. S.Ct. 1984).
1113) See§3.02[B][3][c]; §3.03[A][2][b]; Rent-A-Ctr, W., Inc. v. Jackson, 130 S.Ct. 2772 (U.S. S.Ct.
2010); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (U.S. S.Ct. 2006); Prima Paint
Corp. v. Flood & Conklin Mfg Co., 388 U.S. 395 (U.S. S.Ct. 1967).
1114) See§9.05[A]; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628
(U.S. S.Ct. 1985).
1115) See§25.03[B].
134
1116) Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265 (U.S. S.Ct. 1995); First Options of Chicago,
Inc. v. Kaplan, 514 U.S. 938 (U.S. S.Ct. 1995); Perry v. Thomas, 482 U.S. 483 (U.S. S.Ct. 1987);
§4.04[A][2][j].
In contrast, state laws that are specifically directed towards the formation or validity of
arbitration agreements (as distinguished from other types of agreements) are preempted
by the FAA. See Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265 (U.S. S.Ct. 1995);
Southland Corp. v. Keating, 465 U.S. 1 (U.S. S.Ct. 1984); §4.04[A][2][j][iii].
1117) See§4.04[A][2][j][iii]; Sourcing Unlimited Inc., d/b/a Jumpsource v. Asimco Int’l, Inc., 526
F.3d 38, 46 (1st Cir. 2008); Certain Underwriters at Lloyd’s v. Argonaut Ins., 500 F.3d 571, 579
(7th Cir. 2007) (“We believe that this overarching federal concern with the uniformity of
treatment of international arbitration agreements requires that the issue before us be
resolved by a federal common law rule, rather than by a state rule of decision.”);
InterGen NV v. Grina, 344 F.3d 134, 143 (1st Cir. 2003).
1118) See§4.04[A][2][j][iii]; §4.04[B][3][b]; §6.04[H][1].
1119) See§25.04[F][3][e]; §25.03[B], §26.03[D].
1120) Restatement (Third) U.S. Law of International Commercial Arbitration §4-3, Reporters’
Note e(ii) (Tentative Draft No. 2 2012) (“To the extent that no state arbitration statute is
applicable, non-Convention awards may be enforced under state common law.”);
Standard Magnesium Corp. v. Fuchs, 251 F.2d 455, 458 (10th Cir. 1957) (enforcing award
made in Norway under state common law); Weizmann Institute of Science v. Neschis, 421
F.Supp.2d 654, 674-75 n.21 (S.D.N.Y. 2005) (recognizing award made in Liechtenstein
under state common law); Gilbert v. Bernstine, 174 N.E. 706, 709 (N.Y. 1931) (enforcing
award made in London under state common law).
1121) See Lerner, The Uniform Arbitration Act: 25-Year Retrospective, N.Y. L.J. 1 (1981); Pirsig, The
New Uniform Arbitration Act, 11 Bus. Law. 44 (1956); Pirsig, Some Comments on Arbitration
Legislation and the Uniform Act, 10 Vand. L. Rev. 685 (1957); Report of the National
Conference of Commissioners on Uniform State Laws, 50 A.B.A.J. 134, 134-62 (1925).
1122) National Conference of Commissioners on Uniform State Laws, Revised Uniform
Arbitration Act (2000). The drafters of the Act observe: “The Uniform Arbitration Act,
promulgated in 1955, has been one of the most successful Acts of the National
Conference of Commissioners on Uniform State Laws.” Revised Uniform Arbitration Act,
Prefatory Note (2000).
1123) The Revised Uniform Arbitration Act (2000) has been adopted by the District of Columbia
and 15 states: Alaska, Arizona, Arkansas, Colorado, Hawaii, Minnesota, Nevada, New
Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Utah and
Washington. The 1956 Act remains in effect in 28 states: Alaska, Arizona, Arkansas,
Delaware, District of Columbia, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska,
Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia and
Wyoming. Alaska, Arizona and Arkansas did not repeal the 1956 Act when they adopted
the 2000 Act.
1124) The National Conference of Commissioners on Uniform Laws originally opposed the
enforceability of arbitration agreements applicable to future disputes. Report of the
National Conference of Commissioners on Uniform State Laws, 50 A.B.A.J. 134, 134-62
(1925). As initially adopted, the Uniform Act was confined to agreements covering
existing disputes. Id. at 591.
1125) Revised Uniform Arbitration Act, §§4, 6-7 (2000).
1126) Revised Uniform Arbitration Act, §§22-23 (2000).
1127) Revised Uniform Arbitration Act, §§11-12 (2000).
1128) Revised Uniform Arbitration Act, §8 (2000).
1129) Revised Uniform Arbitration Act, §§9, 15-17 (2000).
1132) See, e.g., Arkansas Code Annotated §16-108-201 (tort claims); Kentucky Revised Statutes
§417.050 (insurance disputes); Ohio Revised Code Annotated §2711.01 (real property
disputes). These state rules are preempted by the FAA in almost all circumstances.
See§§4.04[A][2][j][i]-[ii]; §6.04[H][1].
1133) See, e.g., California Code of Civil Procedure §1295(b) (requiring special notice of
arbitration clauses in medical services contracts); California Code of Civil Procedure
§1298 (requiring special notice of arbitration clauses in real property contracts); Missouri
Annotated Statutes §435.460 (requiring notice of arbitration clause to appear in ten
point font capital letters before signature line); South Carolina Code Annotated §15-48-
10 (requiring front-page notice of arbitration clause in all but employment contracts,
lawyer/client and doctor/patient prearrangements, and personal injury claims). These
state law rules are also preempted by the FAA in almost all cases. See Doctor’s Assocs.,
Inc. v. Casarotto, 517 U.S. 681 (U.S. S.Ct. 1996) (state statute requiring special notice for
arbitration clauses preempted by FAA); Morrison v. Colo. Permanente Med. Group, 983
F.Supp. 937 (D. Colo. 1997) (state notice requirement for medical malpractice arbitration
clauses preempted by FAA). See§§4.04[A][2][j][i] & [v]; §§5.02[D][1]-[3].
1134) Georgia Code Annotated §9-9-13; Pennsylvania Consolidated Statutes Annotated title 42,
§7302(d)(2). Again, these state law provisions are generally preempted by the FAA.
135
1135) See Besson, The Utility of State Laws Regulating International Commercial Arbitration and
Their Compatibility With the FAA, 11 Am. Rev. Int’l Arb. 211 (2000); Garvey & Heffelfinger,
Towards Federalizing U.S. International Commercial Arbitration Law, 25 Int’l Law. 209
(1991); McClendon, State International Arbitration Laws: Are They Needed or Desirable, 1
Am. Rev. Int’l Arb. 245, 250 (1990); Walker, Trends in State Legislation Governing
International Arbitrations, 17 N.C.J. Int’l L. & Com. Reg. 419 (1992).
1136) Arbitration & Conciliation of International Commercial Disputes, California Code of Civil
Procedure §§1297.11 et seq.; Colorado International Dispute Resolution Act, Colorado
Revised Statutes §§13-22-501 to 13-22-507; UNCITRAL Model Law on International
Commercial Arbitration, Connecticut General Statutes §§50a-100 to 50a-136; Florida
International Commercial Arbitration Act, Florida Statutes Annotated §§684.0001 to
684.0048; Georgia International Commercial Arbitration Code, Georgia Code Annotated
§9-9-20et seq.; Hawaii International Arbitration, Mediation, and Conciliation Act, Hawaii
Revised Statutes §§658D-1 to 658D-9; Maryland International Commercial Arbitration
Act, Maryland Courts & Judicial Procedural Code Annotated §§3-2B-01 to 3-2B-09; North
Carolina International Commercial Arbitration & Conciliation Act, N.C. Gen. Stat. §§1-
567.30 to 1-567.68; International Commercial Arbitration, Ohio Revised Code Annotated
§§2712.01 to 2712.91; Oregon International Commercial Arbitration and Conciliation Act,
Oregon Revised Statutes §§36.450 to 36.558; Arbitration & Conciliation of International
Commercial Disputes, Texas Civil Practice & Remedies Annotated §172.001 et seq.
1137) As discussed elsewhere, generally-applicable state law provides most basic rules of
contract law governing the formation of domestic arbitration agreements; federal
common law principles appear to apply to the formation and validity of international
arbitration agreements subject to the New York and Inter-American Conventions.
See§1.04[B][1][e]; §4.04[A][2][j]. State law can, of course, also provide the substantive
rules governing the merits of the parties’ dispute.
1138) Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468 (U.S. S.Ct. 1989).
1139) Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681 (U.S. S.Ct. 1996); Mastrobuono v. Shearson
Lehman Hutton, Inc., 514 U.S. 52 (U.S. S.Ct. 1995); §4.04[A][2][j][i].
1140) See§4.04[B][6][c].
1141) See, e.g., Donovan, International Commercial Arbitration and Public Policy, 27 N.Y.U.J. Int’l
L. & Pol. 645 (1995); El-Kosheri, Is There A Growing International Arbitration Culture in the
Arab-Islamic Juridical Culture?, in A. van den Berg (ed.), International Dispute Resolution:
Towards An International Arbitration Culture 47 (1998); Kassis, The Questionable Validity of
Arbitration and Awards Under the Rules of the International Chamber of Commerce, 6(2) J.
Int’l Arb. 79 (1989); Nariman, East Meets West: Tradition, Globalization and the Future of
Arbitration, 20 Arb. Int’l 123, 125-26 (2004); Shalakany, Arbitration and the Third World: A
Plea for Reassessing Bias Under the Specter of Neoliberalism, 41 Harv. Int’l L.J. 419 (2000);
Sornarajah, The UNCITRAL Model Law: A Third World Viewpoint, 6(4) J. Int’l Arb. 7 (1989);
Sornarajah, The Climate of International Arbitration, 8(2) J. Int’l Arb. 47 (1991).
1142) See authorities cited at §1.01[B][5], pp. 153-54; §1.04[B][1][e][i], pp. 45-50.
1143) For a recent illustration of these attitudes in a largely domestic setting, see Albanese,
Ring of Diamonds, 2 Comm. Disp. Res. 28 (2010) (South African report criticizing
arbitration as permitting parties of European roots to perpetuate racism by allowing
them to avoid local courts).
1144) Briones & Tagvoryan, Is International Arbitration in Latin America in Danger?, 16 L. & Bus.
Rev. Ams. 131 (2010); El-Ahdab, Enforcement of Arbitral Awards in the Arab Countries, 11
Arb. Int’l 169 (1995); N. Blackaby, D. Lindsey & A. Spinillo (eds.), International Arbitration
in Latin America, Overview of Regional Developments 3-10 (2003); Grigera Naón, Arbitration
in Latin America: Overcoming Traditional Hostility, 5 Int’l Arb. 137 (1989); Grigera Naón,
Arbitration and Latin America: Progress and Setbacks, 21 Arb. Int’l 127, 128-40 (2005); J.
Kleinheisterkamp, International Commercial Arbitration in Latin America 1, 17, 18 (2005);
Nattier, International Commercial Arbitration in Latin America: Enforcement of Arbitral
Agreements and Awards, 21 Tex. J. Int’l L. 397 (1986); S. Saleh, Commercial Arbitration in the
Arab Middle East 39-40 (2d ed. 2006).
1145) Sornarajah, The UNCITRAL Model Law: A Third World Viewpoint, 6(4) J. Int’l Arb. 7, 9 (1989).
1146) Afro-Asian Legal Consultative Committee, Report of the Seventeenth, Eighteenth and
Nineteenth Sessions held in Kuala Lumpur (1976), Baghdad (1977) and Doha (1978) 131 (1978)
(institutional arbitration rules do “not work out particularly favourably for the
developing countries in the matter of venue, choice of arbitrators, as also fees and
charges leviable by the institutions concerned”); Shalakany, Arbitration and the Third
World: A Plea for Reassessing Bias Under the Specter of Neoliberalism, 41 Harv. Int’l L.J.
419, 427 et seq. (2000) (“national judicial sovereignty is the price of capitulation to a
historically biased dispute settlement mechanism…a ‘system that is weighted in favor of
the capital exporting states’”) (quoting Sornarajah, The Climate of International
Commercial Arbitration, 8(2) J. Int’l Arb. 47, 47 (1991)).
1147) Brazilian Arbitration Law, Arts. 6, 7 (arguably requiring post-dispute compromise);
Grigera Naón, Argentine Law and the ICC Rules: A Comment on the ECOFISA Case, 3 World
Arb. & Med. Rep. 100 (1992).
1148) C. Calvo, Derecho Internacional Teorico y Practico de Europa y America (1868); C. Calvo, Le
droit international théorique et pratique (4th ed. 1870-1872). See Grigera Naón, Arbitration
and Latin America: Progress and Setbacks, 21 Arb. Int’l 127, 134-37 (2005).
136
1149) See§§1.01[B][3]-[8]; Baker & Yoder, ICSID and the Calvo Clause: Hindrance to Foreign Direct
Investment in LDCs, 5 Ohio St. J. Disp. Res. 75, 91 (1989); Garcia-Amador, 2 The Changing
Law of International Claims 481-82 (1984).
1150) Decision 24 of the Andean Commission Concerning Treatment of Foreign Capital, Article 51,
10 Int’l Leg. Mat. 15 (1971).
1151) Charter of Economic Rights and Duties of States, UN General Assembly Resolution No.
3281 (XXIX), U.N. Doc. A/9631 (1974); Permanent Sovereignty Over Natural Resources, UN
General Assembly Resolution No. 3171, U.N. Doc. A/9030 (1973).
1152) See§§1.01[B][3]-[8]; §5.01[C][5]; Brazilian Arbitration Law, Arts. 6, 7 (arguably requiring
post-dispute compromise); Grigera Naón, Argentine Law and the ICC Rules: A Comment on
the ECOFISA Case, 3 World Arb. & Med. Rep. 100 (1992).
1153) See§25.05[A]; §26.05[C]; Judgment of 1 August 2002, Electrificadora del Atlantico SA ESP v.
Termorio SA ESP, Expediente. 21.041 (Colombian Consejo de Estado) (“As a consequence
of the evidence given, the arbitration process and the award from the 21st of December
of 2001…between the companies Electrificadora del Atlántico SA E.S.P and Termorio
E.S.P. is annulled.”).
1154) See§8.04. For an account of efforts made by some states to frustrate the arbitration of
international disputes, see Kantor, International Project Finance and Arbitration With
Public Sector Entities: When Is Arbitrability A Fiction?, 24 Fordham Int’l L.J. 1122, 1171-72
(2001) (“substantial risk exists that courts in developing countries will intervene to halt
arbitration of disputes between investors and public authorities of that country,
particularly in circumstances of pervasive economic and political turmoil and
corruption”).
1155) Alfaro & Guimarey, Who Should Determine Arbitrability? Arbitration in A Changing
Economic and Political Environment, 12 Arb. Int’l 415, 424-26 (1996); A. Asouzu,
International Commercial Arbitration and African States: Practice, Participation and
Institutional Development (2001); Asouzu, The Adoption of the UNCITRAL Model Law in
Nigeria: Implications on the Recognition and Enforcement of Arbitral Awards, 1999 J. Bus. L.
185; Grigera Naón, Arbitration and Latin America: Progress and Setbacks, 21 Arb. Int’l 127,
149-76 (2005); Grigera Naón, Arbitration in Latin America: Overcoming Traditional Hostility
(An Update), 22 U. Miami Inter-Am. L. Rev. 203, 231-34 (1991); Hamilton, International
Litigation and Arbitration: Three Decades of Latin American Commercial Arbitration, 30 U.
Pa. J. Int’l L. 1099 (2009).
1156) Alfaro & Lorenti, The Growing Opposition of Argentina to ICSID Arbitral Tribunals: A Conflict
Between International and Domestic Law?, 6 J. World Inv. & Trade 417 (2005); Grigera
Naón, Arbitration and Latin America: Progress and Setbacks, 21 Arb. Int’l 127, 150 (2005)
(“[D]espite the rosy landscape generally presented by the black letter law on arbitration
in Latin America after its recent modernisation, its substance or spirit has not always
been properly understood or applied. In certain cases, the Latin American courts have
ignored express legal provisions aimed at facilitating arbitration or ensuring its efficacy,
or advanced results notoriously incompatible with the policies favourable to arbitration
underlying the new and updated legal arbitration framework.”).
1157) In May 2007, Venezuela, Bolivia, Ecuador and Nicaragua announced their intention to
withdraw from the ICSID Convention. See South American Alternative to ICSID in the Works
as Governments Create An Energy Treaty, Investment Treaty News (6 August 2008),
available at www.iisd.org. Bolivia (2007), Ecuador (2009), and Venezuela (2012)
subsequently withdrew from the ICSID Convention. See ICSID, List of Contracting States
and Other Signatories of the Convention (as of November 1, 2013), available at
icsid.worldbank.org.
1158) See§1.04[B][2]; Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Public
International Law Through Inconsistent Decisions, 73 Ford. L. Rev. 1521 (2005); Shalakany,
Arbitration and the Third World: A Plea for Reassessing Bias Under the Specter of
Neoliberalism, 41 Harv. Int’l L.J. 419, 430 (2000).
1159) See§§1.04[A]-[B].
1160) See§15.07[C].
1161) For brief descriptions of major international arbitral institutions, seeG. Born,
International Arbitration and Forum Selection Agreements: Drafting and Enforcing 46-61
(4th ed. 2013); P. Gola, C. Götz Staehelin & K. Graf (eds.), Institutional Arbitration: Tasks
and Powers of Different Arbitration Institutions (2009); R. Schuetze, Institutional
Arbitration: Article-by-Article Commentary (2013); Tiefenbrun, A Comparison of
International Arbitral Rules, 15 Boston C. Int’l & Comp. L. Rev. 25 (1992); von Mehren, Rules
of Arbitral Bodies Considered From A Practical Point of View, 9(3) J. Int’l Arb. 105 (1992).
1162) See§1.04[A][4].
137
1163) In a number of industries, specialized arbitral regimes provide well-established means
of dispute resolution. Examples include maritime, commodities, construction, insurance
and reinsurance, and labor arbitration. See§1.02[B][6]; AAA, www.adr.org (providing
descriptions and rules for construction, textile, apparel, labor, pension, consumer and
insurance arbitrations); C. Ambrose & K. Maxwell, London Maritime Arbitration (2d ed.
2002); D. Johnson, International Commodity Arbitration (1991); F. Rose, International
Commercial and Maritime Arbitration (1988). See also Procedures for the Resolution of
U.S. Insurance and Reinsurance Disputes (reinsurance); ARIAS-UK Arbitration Rules; 2012
LMAA Terms (maritime); 2013 German Maritime Arbitration Association Rules (maritime);
2010 SMA Rules (maritime); AAA Labor Arbitration Rules (labor disputes); AAA Impartial
Determination of Union Fees Rules (organized labor union fees); 2011 Rail Arbitration
Rules of the National Grain and Feed Association (selected transport disputes); National
Grain and Feed Association Arbitration Rules (selected commodities disputes); 2010
Federation of Cocoa Commerce Arbitration and Appeal Rules (selected commodities
disputes); 2011 PCA Optional Rules for the Arbitration of Disputes Relating to Outer
Space Activities.
1164) The incorporation of institutional arbitration rules is discussed below, see§5.05[C]; §9.03.
1165) SeeChapter 13.
1166) See§12.05[A].
1167) See§12.01[A].
1168) See§12.03[C].
1169) For a discussion of the UNCITRAL Rules, see§1.04[C][4].
1170) Most leading arbitral institutions (including the ICC, AAA, LCIA, PCA and SIAC) will act as
an appointing authority, for a fee, in ad hoc arbitrations.
1171) See§12.03[E].
1172) See§1.04[C][5].
1173) As discussed below, national courts will generally have the power, under most
arbitration statutes and where the parties have not otherwise agreed, to assist the
arbitral process by appointing arbitrators, considering challenges to arbitrators and
fixing compensation of arbitrators. See§12.03[E]; §§12.06[B]-[D].
1174) See§3.02[D]; §7.02[C]; §12.01[D]; §12.03[D].
1175) See§1.01[B][5]; Part III.
1176) For a contrary view, that is inconsistent with most observers’ conclusions, see T. Webster,
Handbook on UNCITRAL Arbitration ¶¶0-47 to 0-59 (2010) (“There is a strong preference
for ad hoc as opposed to institutional arbitration due to the added flexibility and
independence…”).
1177) For commentary, see S. Baker & M. Davis, The UNCITRAL Arbitration Rules in Practice: The
Experience of the Iran-United States Claims Tribunal (1992); D. Caron & L. Caplan, The
UNCITRAL Arbitration Rules: A Commentary (2d ed. 2013); Dietz, Development of the
UNCITRAL Arbitration Rules, 27 Am. J. Comp. L. 449 (1979); I. Dore, Arbitration and
Conciliation Under the UNCITRAL Rules: A Textual Analysis (1986); S. Nappert, Commentary
on the UNCITRAL Arbitration Rules 2010: A Practitioner’s Guide (2012); J. Paulsson, The
Revised UNCITRAL Rules (2013); Sanders, Commentary on the UNCITRAL Arbitration Rules,
II Y.B. Comm. Arb. 172 (1977); Sanders, Procedures and Practices Under the UNCITRAL Rules,
27 Am. J. Comp. L. 453 (1979); van Haersolte-van Hof, United Nations Commission on
International Trade Law (UNCITRAL) Arbitration Rules, 1976, in L. Mistelis (ed.), Concise
International Arbitration 171 (2010); J. van Hof, Commentary on the UNCITRAL Arbitration
Rules: The Application by the Iran-U.S. Claims Tribunal (1991); T. Webster, Handbook of
UNCITRAL Arbitration: Commentary, Precedents & Models for UNCITRAL Based Arbitration
Rules (2010). See alsoUNCITRAL, Recommendations to Assist Arbitral Institutions and Other
Interested Bodies With Regard to Arbitrations Under the UNCITRAL Arbitration Rules, XIII
Y.B. UNCITRAL 420 (1982).
1178) Report of the UNCITRAL on the Work of Its Sixth Session, U.N. Doc. A/9017, ¶85, IV Y.B.
UNCITRAL 11 (1973).
1179) D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 30-36, 45-59 (2d ed.
2013); UNCITRAL, Report of the Secretary-General on the Revised Draft Set of Arbitration
Rules, Ninth Session, Introduction, U.N. Doc. A/CN.9/112, ¶17, VII Y.B. UNCITRAL 157 (1976).
See also UN General Assembly Resolution No. 31/98, dated 15 December 1976, II Y.B.
Comm. Arb. xi, xi (1977) (“establishment of rules for ad hoc arbitration that are
acceptable in countries with different legal, social and economic systems would
significantly contribute to the development of harmonious international economic
relations”).
1180) D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 45-59, 565-79 (2d ed.
2013); UNCITRAL, Report of the Secretary-General on the Preliminary Draft Set of
Arbitration Rules for Optional Use in Ad Hoc Arbitration Relating to International Trade,
Eighth Session, U.N. Doc. A/CN.9/97, VI UNCITRAL Y.B. 163, 176 (1975).
1181) Report of the UNCITRAL on the Work of Its Ninth Session, U.N. Doc. A/31/17, VII Y.B.
UNCITRAL 9, 20-27, 66-82 (1976). See D. Caron & L. Caplan, The UNCITRAL Arbitration Rules:
A Commentary 2 et seq. (2d ed. 2013).
1182) The UNCITRAL Working Group on International Arbitration and Conciliation began to
study possible revisions to the UNCITRAL Rules in 2006. SeeReport of the Working Group
on Arbitration and Conciliation on the Work of Its Forty-Seventh Session, U.N. Doc.
A/CN.9/641 (2007); Paulsson & Petrochilos, Report: Revision of the UNCITRAL Arbitration
Rules (2006).
138
1183) 2010 UNCITRAL Rules. By their terms, the revised Rules apply to arbitrations where the
arbitration agreement was concluded on or after 15 August 2010. They also apply to
arbitration agreements concluded earlier, where the parties agree to their application.
2010 UNCITRAL Rules, Art. 1(2). See§9.03[C].
1184) The International Institute for Conflict Prevention and Resolution (formerly known as the
CPR Institute for Dispute Resolution) has published, on a regular basis, since 1989, a set
of “Rules for Non-Administered Arbitration” (formerly called “Rules and Commentary for
Non-Traditional Arbitration for Business Disputes”). The Permanent Court of Arbitration
has promulgated several sets of rules, based on the UNCITRAL Rules, applicable to
disputes between private and public parties. See§1.04[C][5][d].
1185) Experience with the UNCITRAL Rules has been positive. See D. Caron & L. Caplan, The
UNCITRAL Arbitration Rules: A Commentary 11 (2d ed. 2013) (“Since the 1980s, the
UNCITRAL Rules have come to be very widely used and, more importantly, the most
influential global procedural framework for international dispute settlement.”);
Permanent Court of Arbitration: Optional Rules for Arbitrating Disputes Between Two
States, effective 20 October 1992, 32 Int’l Leg. Mat. 572 (1993) (“Experience since 1981
suggests that the UNCITRAL Arbitration Rules provide fair and effective procedures for
peaceful resolution of disputes between States concerning the interpretation,
application and performance of treaties and other agreements, although they were
originally designed for commercial arbitration.”).
1186) 2010 UNCITRAL Rules, Arts. 3-4; 1976 UNCITRAL Rules, Arts. 3-4. See§15.08[A].
1187) 2010 UNCITRAL Rules, Arts. 6-16; 1976 UNCITRAL Rules, Arts. 5-13. See§12.01[D]; §12.03[B]
[1]; §12.03[D][2]; §12.06[A].
1188) 2010 UNCITRAL Rules, Arts. 17-32; 1976 UNCITRAL Rules, Arts. 14-25, 27-29. See§15.02[D];
§15.03[C].
1189) 2010 UNCITRAL Rules, Art. 17(5).
1190) 2010 UNCITRAL Rules, Art. 26.
1191) 2010 UNCITRAL Rules, Art. 35; 1976 UNCITRAL Rules, Art. 33. See§19.03[C].
1192) 2010 UNCITRAL Rules, Arts. 33-40. See§23.01[A]; §24.02.
1193) 2010 UNCITRAL Rules, Arts. 40-43. See§23.08[B].
1194) 2010 UNCITRAL Rules, Art. 23; 1976 UNCITRAL Rules, Art. 21. See§3.02[D]; §7.02[C].
1195) The parties can select an arbitral institution (like the ICC, AAA, or LCIA) as appointing
authority without adopting that institution’s rules. Alternatively, a designated individual
or office-holder may be selected.
1196) The 2010 Rules provide expressly that the parties may designate the Secretary-General
of the Permanent Court of Arbitration directly as appointing authority. See2010 UNCITRAL
Rules, Art. 6. See§12.03[D][2].
1197) This includes IACAC, ICDR, HKIAC, Kuala Lumpur Regional Centre for Arbitration (“KLRCA”),
Cairo Regional Centre for International Commercial Arbitration (“CRCICA”) and the Iran-
U.S. Claims Tribunal. See D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A
Commentary 6-7 (2d ed. 2013); J. van Hof, Commentary on the UNCITRAL Arbitration Rules:
The Application by the Iran-U.S. Claims Tribunal (1991). In August 2010, the Kuala Lumpur
Regional Centre for Arbitration became the first arbitral institution to adopt new
arbitration rules incorporating the revised 2010 UNCITRAL Rules.
1198) See D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 7-8 (2d ed. 2013).
1199) Issues arising from arbitration agreements that incorporate institutional rules
(sometimes defectively) are discussed below. See§9.03.
1200) See§14.07. See also ICC Rules of Arbitration, Foreword (“ICC arbitrations are held in
numerous countries, in most major languages, and with arbitrators from all over the
world”); www.adr.org/about-icdr (noting that AAA’s cooperative agreements with 62
arbitral institutions in 43 countries worldwide “enable arbitration cases to be filed and
heard virtually anywhere in the world”).
1201) For a comparison of the various institutional rules, see Gola, Götz Staehelin & Graf,
Comparison of Various Arbitration Institutions, in P. Gola, C. Götz Staehelin & K. Graf (eds.),
Institutional Arbitration 1 (2009); R. Schuetze, Institutional Arbitration: Article-by-Article
Commentary (2013).
1202) See, e.g., Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 3 (2d ed. 2005);
ICC Rules of Arbitration, Foreword (“Drafted by dispute resolution specialists and
corporate users from different legal traditions, cultures and professions, these Rules are
applicable to disputes between parties in any part of the world, whether or not
members of ICC. They are intended for use worldwide in proceedings conducted in any
language and subject to any law.”).
1203) See§1.04[B].
139
1204) For commentary, see M. Bühler & T. Webster, Handbook of ICC Arbitration: Commentary,
Precedents, Materials (2d ed. 2008); W. Craig, W. Park & J. Paulsson, International Chamber
of Commerce Arbitration (3d ed. 2000); Y. Derains & E. Schwartz, A Guide to the ICC Rules
of Arbitration (2d ed. 2005); J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC
Arbitration (2012); J. Grierson & A. van Hooft, Arbitrating Under the 2012 ICC Rules (2012).
See alsoS. Bond, M. Paralika & M. Secomb, International Chamber of Commerce (ICC)
Rules of Arbitration, 1998, in L. Mistelis (ed.), Concise International Arbitration 305 (2010);
Bond, The Present Status of the International Court of Arbitration of the ICC: A Comment on
An Appraisal, 1 Am. Rev. Int’l Arb. 108 (1990); Cohn, The Rules of Arbitration of the
International Chamber of Commerce, 14 Int’l & Comp. L.Q. 132 (1965); W. Craig, W. Park & J.
Paulsson, Annotated Guide to the 1998 ICC Arbitration Rules (1998); de los Santos Lago &
Bonnín, Emergency Proceedings Under the New ICC Rules, 2012:13 Spain Arb. Rev. 5;
Heitzmann, The International Chamber of Commerce (ICC), in P. Gola, C. Götz Staehelin &
K. Graf (eds.), Institutional Arbitration 119 (2009); ICC Commission on Arbitration Task
Force, Arbitration Involving States and State Entities Under the ICC Rules of Arbitration
(2012); ICC, Guide to ICC Arbitration (1994); Kirby, The ICC Court: A Behind-the-Scenes Look,
16 ICC Int’l Ct. Bull. 9 (2005); Pair & Frankenstein, The New ICC Rule on Consolidation:
Progress or Change?, 25 Emory Int’l L. Rev. 1061 (2012); E. Schäfer, H. Verbist & C. Imhoos,
ICC Arbitration in Practice (2005); Voser, Overview of the Most Important Changes in the
Revised ICC Arbitration Rules, 29(4) ASA Bull. 783 (2011); Wetter, The Present Status of the
International Court of Arbitration of the ICC: An Appraisal, 1 Am. Rev. Int’l Arb. 91 (1990).
For collections of ICC awards and procedural decisions, see J.-J. Arnaldez, Y. Derains & D.
Hascher (eds.), Collection of ICC Arbitral Awards 2001-2007 (2009); J.-J. Arnaldez, Y. Derains
& D. Hascher (eds.), Collection of ICC Arbitral Awards 1996-2000 (2003); J.-J. Arnaldez, Y.
Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 1990-1995 (1997); S. Jarvin, Y.
Derains, & J.-J. Arnaldez (eds.), Collection of ICC Arbitral Awards 1986-1990 (1994); S. Jarvin
& Y. Derains (eds.), Collection of ICC Arbitral Awards 1974-1985 (1990). See also D. Hascher
(ed.), Collection of Procedural Decisions in ICC Arbitration 1993-1996 (1997). The ICC
International Court of Arbitration also publishes a periodical bulletin reporting on
recent developments in ICC arbitration. See ICC International Court of Arbitration
Bulletin.
1205) See§1.01[C][1]; §1.04[B][1][e][i].
1206) The ICC model arbitration clause provides: “All disputes arising out of or in connection
with the present contract shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce by one or more arbitrators appointed in
accordance with the said Rules.”
1207) A total of 796 new cases were filed with the ICC International Court of Arbitration in 2011
and 759 new cases were filed in 2012. At the end of 2012, 1,476 cases were being
administered by the Court. These figures reflect a generally continual increase in the
Court’s active caseload, which has more than doubled in the last twenty years. See ICC,
2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 5 (2013); ICC, 2011 Statistical Report, 23(1) ICC
Ct. Bull. 5, 7 (2012); Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 3 (2d
ed. 2005); §1.03.
1208) Parties to ICC arbitrations filed in 2012 were nationals of 137 different countries. ICC, 2012
Statistical Report, 24(1) ICC Ct. Bull. 5, 5 (2013).
1209) ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 10 (2013).
1210) The revised Rules became effective as of 1 January 2012 and apply to any ICC arbitration
commencing on or following that date, unless the parties agree otherwise. J. Fry, S.
Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration 64 (2012).
1211) See Philippe, NetCase: A New ICC Arbitration Facility, in ICC, Using Technology to Resolve
Disputes 53 (ICC Ct. Bull. Spec. Supp. 2004).
1212) 2012 ICC Rules, Arts. 4(5), 5(4); 1998 ICC Rules, Arts. 4(5), 5(4).
1213) 2012 ICC Rules, Art. 36; 1998 ICC Rules, Art. 30.
1214) 2012 ICC Rules, Arts. 11-13; 1998 ICC Rules, Arts. 7-9.
1220) 2012 ICC Rules, Art. 1(2); 1998 ICC Rules, Art. 1(2). The Court acts pursuant to internal rules
governing its administrative actions. SeeY. Derains & E. Schwartz, A Guide to the ICC Rules
of Arbitration 1-8, 11-27 (2d ed. 2005); J. Fry, S. Greenberg & F. Mazza, The Secretariat’s
Guide to ICC Arbitration 17-19 (2012); ICC, Internal Rules of the International Court of
Arbitration, Appendix II.
1221) ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 5 (2013). See also ICC, 2011 Statistical
Report, 23(1) ICC Ct. Bull. 5, 13 (2012) (ICC arbitrations were seated in 63 different
countries in 2011); ICC, 2010 Statistical Report, 22(1) ICC Ct. Bull. 5, 13 (2011) (53 countries);
ICC, 2009 Statistical Report, 21(1) ICC Ct. Bull. 5, 12-13 (2010) (53 countries); ICC, 2008
Statistical Report, 20(1) ICC Ct. Bull. 5, 11 (2009) (50 countries); ICC, 2007 Statistical Report,
19(1) ICC Ct. Bull. 5, 11 (2008) (42 countries).
140
1222) See§14.02[B]; ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 14 (2012); Jarvin, The Place of
Arbitration – A Review of the ICC Court’s Guiding Principles and Practice When Fixing the
Place of Arbitration, 7(2) ICC Ct. Bull. 54 (1996); Verbist, The Practice of the ICC
International Court of Arbitration With Regard to the Fixing of the Place of Arbitration, 12
Arb. Int’l 347 (1996).
1223) 2012 ICC Rules, Arts. 11, 13, 14; 1998 ICC Rules, Arts. 7, 9, 1. See J. Fry, S. Greenberg & F.
Mazza, The Secretariat’s Guide to ICC Arbitration 161-67, 170-76 (2012).
1224) See§12.03[D][3]; §§12.06[A][1]-[2]; Bond, The Experience of the ICC in the
Confirmation/Appointment Stage of An Arbitration, in ICC, The Arbitral Process and the
Independence of Arbitrators 9 (1991); Fry & Greenberg, The Arbitral Tribunal: Applications of
Articles 7-12 of the ICC Rules in Recent Cases, 20(2) ICC Ct. Bull. 12 (2009); J. Fry, S.
Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration 161-94 (2012); Greenberg
& Feris, Appendix: References to the IBA Guidelines on Conflicts of Interest in International
Arbitration When Deciding on Arbitrator Independence in ICC Cases, 28(2) ICC Ct. Bull. 33
(2009); Hascher, ICC Practice in Relation to the Appointment, Confirmation, Challenge and
Replacement of Arbitrators, 6(2) ICC Ct. Bull. 4 (1995); Whitesell, Independence in ICC
Arbitration: ICC Court Practice Concerning the Appointment, Confirmation, Challenge and
Replacement of Arbitrators (ICC Ct. Bull. Spec. Supp. 2008).
1225) Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 4, 167-76 (2d ed. 2005); J.
Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration 161-67 (2012).
1226) See§1.04[C][4].
1227) 2012 ICC Rules, Arts. 4, 5; 1998 ICC Rules, Arts. 4, 5.
1231) 2012 ICC Rules, Art. 23; 1998 ICC Rules, Art. 24; M. Bühler & T. Webster, Handbook of ICC
Arbitration: Commentary, Precedents, Materials 257 (2d ed. 2008); J. Fry, S. Greenberg & F.
Mazza, The Secretariat’s Guide to ICC Arbitration 9-10 (2012).
1232) Article 24(1) of the 2012 ICC Rules require ICC tribunals to conduct a “case management
conference.” The conference must be convened at the point when the tribunal is
“drawing up the Terms of Reference or as soon as possible thereafter.” See 2012 ICC
Rules, Art. 24; J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration 9
(2012).
1233) 2012 ICC Rules, Art. 30(1); 1998 ICC Rules, Art. 24. This time limit is routinely extended. Y.
Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 305 (2d ed. 2005); J. Fry, S.
Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration 312 (2012).
1234) 2012 ICC Rules, Art. 33; 1998 ICC Rules, Art. 27; J. Fry, S. Greenberg & F. Mazza, The
Secretariat’s Guide to ICC Arbitration 327-38 (2012).
1235) 2012 ICC Rules, Appendix III, Arts. 2, 4; 1998 ICC Rules, Appendix III, Art. 2; J. Fry, S.
Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration 360-67 (2012).
1237) 2012 ICC Rules, Arts. 36(2), (5); 1998 ICC Rules, Art. 30(3).
1238) See Buehler, Costs in ICC Arbitration: A Practitioner’s View, 3 Am. Rev. Int’l Arb. 116 (1992);
W. Craig, W. Park & J. Paulsson, International Chamber of Commerce Arbitration ¶3.05 (3d
ed. 2000) (attempting to counter criticisms); Wetter, The Present Status of the
International Court of Arbitration of the ICC: An Appraisal, 1 Am. Rev. Int’l Arb. 91 (1990).
1239) SeeY. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 5 (2d ed. 2005); J. Fry, S.
Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration xi (2012).
A 2007 ICC task force, which continued its work in 2011-12, studied ways to reduce costs
and delay in ICC arbitrations. See ICC, Techniques for Controlling Time and Costs in
Arbitration (2d ed. 2012); ICC, Techniques for Controlling Time and Costs in Arbitration
(2007). See§13.04[A][4].
1240) 2012 ICC Rules, Arts. 7-10. See§18.02[C][1].
1241) See, e.g., 2012 ICC Rules, Art 24. See§15.08[M].
1242) 2012 ICC Rules, Art. 29. See§17.02[G][4][e].
1243) Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 8-9 (2d ed. 2005); Figueres,
Amicable Means to Resolve Disputes: How the ICC ADR Rules Work, 21 J. Int’l Arb. 91 (2004).
The ICC’s ADR Rules were adopted in 2002 and replaced earlier ICC Rules of Optional
Conciliation. Ibid.
1244) Charrin, The ICC International Centre for Expertise – Realities and Prospects, 6(2) ICC Ct.
Bull. 33, 34 (1995).
1245) The Centre’s Rules were revised in 1993 and again in 2003. See Charrin, The ICC
International Centre for Expertise – Realities and Prospects, 6(2) ICC Ct. Bull. 33 (1995); ICC,
The New Rules of the ICC International Centre for Technical Expertise, 4(1) ICC Ct. Bull. 53
(1993); Wolrich, ICC Expertise – The New, Revised ICC Rules for Expertise: A Presentation and
Commentary, 13(2) ICC Ct. Bull. 11 (2002).
1246) In particular, Article 12 of the Centre’s Rules for Expertise provides that, unless otherwise
agreed by all parties, “the findings of the expert shall not be binding upon the parties.”
ICC Rules for Expertise, Art. 12(3).
141
1247) The Centre received 19 requests in 2012. ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 17
(2013). See also ICC, 2011 Statistical Report, 23(1) ICC Ct. Bull. 5, 17 (2012) (35 requests in
2011); ICC, 2010 Statistical Report, 22(1) ICC Ct. Bull. 5, 16 (2011) (29 requests); ICC, 2009
Statistical Report, 21(1) ICC Ct. Bull. 5, 16 (2010) (15 requests); ICC, 2008 Statistical Report,
20(1) ICC Ct. Bull. 5, 15 (2009) (10 requests); ICC, 2007 Statistical Report, 19(1) ICC Ct. Bull. 5,
15 (2008) (14 requests); ICC, 2006 Statistical Report, 18(1) ICC Ct. Bull. 5, 14 (2007) (10
requests); ICC, 2005 Statistical Report, 17(1) ICC Ct. Bull. 5, 14 (2006) (11 requests); ICC, 2004
Statistical Report, 16(1) ICC Ct. Bull. 5, 13 (2005) (8 requests); ICC, 2003 Statistical Report,
15(1) ICC Ct. Bull. 5, 16 (2004) (17 requests).
1248) For commentary on the LCIA, see Beale, London Court of International Arbitration (LCIA),
in P. Gola, C. Götz Staehelin & K. Graf (eds.), Institutional Arbitration 141 (2009); Nesbitt,
London Court of International Arbitration (LCIA) Arbitration Rules, 1998, in L. Mistelis,
Concise International Arbitration 401 (2010); P. Turner & R. Mohtashami, A Guide to the
LCIA Arbitration Rules (2009); S. Wade & S. York, A Commentary on the LCIA Rules (2011).
1249) The LCIA model arbitration clause provides:
“Any dispute arising out of or in connection with this contract, including any question
regarding its existence, validity or termination, shall be referred to and finally resolved
by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by
reference into this clause.”
“The number of arbitrators shall be [one/three].The place of arbitration shall be [City
and/or Country].The language to be used in the arbitral proceedings shall be _______.
The governing law of the contract shall be the substantive law of _______.”
1250) The LCIA reports that 118 cases were referred to it in 2005, 133 in 2006, 137 in 2007, 215 in
2008, 272 in 2009, 246 in 2010, 224 in 2011 and 265 in 2012. See LCIA News, Director
General’s Reviews (2007-2012), available at www.lcia.org; LCIA, Registrar’s Report 2012
(2013). The number of disputes referred to the LCIA rose by 18.3% from 2011 to 2012. See
LCIA, Registrar’s Report 2012 4 (2013).
1251) LCIA News, Director General’s Review of 2011 (2012); LCIA, Registrar’s Report 2012 (2013).
1252) In April 2010, the LCIA India adopted rules based on the LCIA’s Rules, with modifications
in light of the Indian Arbitration and Conciliation Act, 1996. See LCIA India Rules,
available at www.lcia-india.org; van den Berg, New and Amended Arbitration Rules: India
– LCIA India, in A. van den Berg (ed.), XXXV Y.B. Comm. Arb. 18 (2010). See also Nariman,
Ten Steps to Salvage Arbitration in India: The First LCIA-India Arbitration Lecture, 27 Arb.
Int’l 115 (2011); Zaiwalla, LCIA India: Will It Change the International Arbitration Scene in
India?, 27 J. Int’l Arb. 657 (2010).
1253) See§1.04[C][5][b].
1254) LCIA, Schedule of Arbitration Costs, available at www.lcia.org.
1255) LCIA Rules, Arts. 14, 15, 19, 22.
1256) LCIA Rules, Arts. 22.1(d), (e).
1257) LCIA Rules, Art. 25(2).
1258) LCIA Rules, Art. 9.
1259) LCIA Rules, Art. 22(1)(h). See§18.02[C][4].
1260) See LCIA, Arbitration, available at www.lcia.org (“The criteria are entered into the LCIA’s
database of arbitrators, from which an initial list is drawn.…If necessary, other
institutions are consulted for further recommendations.”); LCIA Rules, Art. 5(5).
1262) See The LCIA Court Decisions on Challenges to Arbitrators, 27 Arb. Int’l 281, 281-536 (2011).
See also Nicholas & Partasides, LCIA Court Decisions on Challenges to Arbitrators: A
Proposal to Publish, 23 Arb. Int’l 1 (2007); GAR, LCIA to Publish Challenge Decisions, Global
Arb. Rev. (1 June 2006); §12.05[K].
1264) For commentary on the AAA, seeFellas, American Arbitration Association (AAA)
International Centre for Dispute Resolution (ICDR) International Arbitration Rules, 2009, in
L. Mistelis (ed.), Concise International Arbitration 467 (2010); M. Gusy, J. Hosking & F.
Schwarz, A Guide to the ICDR International Arbitration Rules (2011); Hoellering, How the
AAA International Arbitration Program Works, in T. Carbonneau (ed.), Handbook on
International Arbitration and ADR (2006); Traband, American Arbitration Association (AAA),
in P. Gola, C. Götz Staehelin & K. Graf (eds.), Institutional Arbitration (2009). Information
about the AAA is available at the AAA/ICDR website, www.adr.org.
1265) I. Macneil, American Arbitration Law: Reformation, Nationalization, Internationalization
84-88 (1992).
1266) Deye & Britton, Arbitration by the American Arbitration Association, 70 N.D. L. Rev. 281, 281
n.1 (1994).
1267) The AAA reports that it has administered some 3.9 million alternative dispute resolution
(ADR) cases since its foundation. See AAA News Report, American Arbitration Association
Launches Updated Commercial Rules (9 September 2013).
1268) See AAA, Rules & Procedures, available at www.adr.org.
142
1269) A model AAA arbitration clause, selecting the AAA’s Commercial Arbitration Rules,
provides:
“Any controversy or claim arising out of or relating to this contract, or the breach thereof,
shall be settled by arbitration administered by the American Arbitration Association
under its Commercial Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.”
1270) For example, these include specialized rules for construction, energy, health care,
insurance, securities, labor and intellectual property disputes. See AAA, Rules &
Procedures, available at www.adr.org.
1271) The AAA’s International Rules were preceded by a set of “Supplementary Procedures for
International Commercial Arbitration,” adopted in 1982. The AAA Supplementary
Procedures continue to be used in international cases in which the parties have selected
rules other than the AAA International Rules. The Supplementary Procedures (as
amended in 1999) provide:
“Recognizing that international arbitration cases often present unique procedural
problems, the AAA has created the following supplementary procedures to facilitate
such cases when rules other than the International Arbitration Rules govern the
proceedings. Unless the parties advise otherwise by the due date for the return of the
first list, the AAA will assume that they are desired.”
1272) See 2010 ICDR International Dispute Resolution Procedures, Introduction. See also ICDR,
Areas of Expertise: International, available at www.adr.org. The ICDR provides two
alternative model clauses for selecting the International Arbitration Rules in the ICDR
International Dispute Resolution Procedures:
shall be determined by arbitration administered by the International Centre for Dispute
Resolution in accordance with its International Arbitration Rules.”
shall be determined by arbitration administered by the American Arbitration
Association in accordance with its International Arbitration Rules.”
1273) ICDR Rules, Art. 1(1). “International” disputes are not expressly defined in the ICDR Rules.
1274) If the parties have agreed to a set of AAA rules other than the ICDR International
Arbitration Rules (e.g., AAA Commercial Arbitration Rules) those rules will apply,
including to an international dispute. To deal with the unique issues presented by
international arbitrations, the AAA developed the “International Commercial Arbitration
Supplementary Procedures,” which are intended to deal with some of the problems that
may arise in managing an international case under domestic arbitration rules.
1275) The 2006 revisions added Article 37 to the ICDR Rules, which entitles parties to appoint
an “emergency arbitrator” to hear requests for emergency relief prior to the formation of
the entire arbitral tribunal. In 2010, a Flexible Fee Schedule was introduced, permitting
lower initial filing fees. See AAA, Rules & Procedures: Rules Updates, available at
www.adr.org. See§17.02[A][5][e].
1276) Unusually, the ICDR Rules also provide for a waiver of punitive damage claims (unless
otherwise agreed). ICDR Rules, Art. 28(5).
1277) ICDR Rules, Art. 32. Article 32 provides that “[t]he administrator shall arrange an
appropriate daily or hourly rate, based on such considerations, with the parties and with
each of the arbitrators as soon as practicable after the commencement of the
arbitration” and, “[i]f the parties fail to agree on the terms of compensation, the
administrator shall establish an appropriate rate and communicate it in writing to the
parties.”
1278) ICDR Rules, Art. 6(1). See§12.03[A][1].
1279) See ICDR Rules, Art. 6; ICDR International Dispute Resolution Procedures, Introduction
(describing options available to parties for appointment of arbitrators, including use of
an AAA/ICDR list). See also 2013 AAA Rules, Rules 3, 12 (providing, where AAA’s
Commercial Arbitration Rules apply, specific procedures for appointments from AAA’s
National Roster).
1280) The ICDR maintains its own International Panel of Arbitrators.
1281) AAA, 2012 Annual Report, President’s Letter and Financial Statements 7 (2013); AAA, 2000
Annual Report, President’s Letter and Financial Statements 8 (2000). See also Park, A
Comparative Analysis of Arbitral Institutions and Their Achievements in the United States
and Korea, 15 Am. Rev. Int’l Arb. 475, 483 (2004) (tabulating international case filings in
AAA).
143
1282) For commentary, see Bederman, The Hague Peace Conferences of 1899 and 1907, in M.
Janis (ed.), International Courts for the Twenty-First Century 9 (1992); Best, Peace
Conferences and the Century of Total War: The 1899 Hague Conference and What Came
After, 75 Int’l Affairs 619 (1999); Daly, Permanent Court of Arbitration, in C. Giorgetti (ed.),
International Litigation in Practice: The Rules, Practice and Jurisprudence of International
Courts and Tribunals 37 (2012); Daly, New Procedural Rules for the Permanent Court of
Arbitration, 17 IBA Arb. News 92 (2012); Grimmer, The Expanded Role of the Appointing
Authority Under the UNCITRAL Arbitration Rules 2010, 28 J. Int’l Arb. 501 (2011); Hudson,
The Permanent Court of Arbitration, 27 Am. J. Int’l L. 440 (1933); Le Cannu & Drabkin,
Assessing the Role of the Permanent Court of Arbitration in the Peaceful Settlement of
International Disputes, 27 L’Observateur des Nations Unies 194 (2010); Moore, The
Organization of the Permanent Court of International Justice, 22 Colum. L. Rev. 497 (1922);
S. Rosenne (ed.), The Hague Peace Conference of 1899 and 1907 and International
Arbitration: Reports and Documents (2001).
1283) See§1.01[A][4]; 1899 Hague Convention; 1907 Hague Convention.
1284) See§1.01[A][4]. It is also sometimes claimed, less accurately, that the PCA was neither
“permanent” nor engaged in “arbitration.” Hudson, The Permanent Court of International
Justice – An Indispensable First Step, 108 Am. Acad. Pol. & Soc. Sci., Annals 188, 189 (1923)
(“It may well be said of the Permanent Court of Arbitration that it is not permanent, not a
court, and is not an adequate tribunal for arbitration.”). In fact, the PCA was intended to
be (and certainly now is) permanent and it is engaged, at least adequately and, in most
observers’ eyes, much better, in arbitration.
1285) Daly, Permanent Court of Arbitration, in C. Giorgetti (ed.), International Litigation in
Practice: The Rules, Practice and Jurisprudence of International Courts and Tribunals 39
(2012) (quoting Louis Renault, a leading participant at 1899 and 1907 Hague Conferences).
1287) 1907 Hague Convention, Arts. 48, 53.
1289) Levine, Navigating the Parallel Universe of Investor-State Disputes Under the UNCITRAL
Rules, in C. Brown & K. Miles (eds), Evolution in Investment Treaty Arbitration 369 (2011).
1290) As of 2012, there were 115 PCA Member States. PCA, 112th Annual Report 5 (2012).
1291) In 2011, the International Bureau was comprised of some 39 people, including speakers
of the six official languages of the United Nations. PCA, 111th Annual Report ¶87 (2011).
1292) See§1.01[A][4].
1293) A. Stuyt, Survey of International Arbitrations 1794-1989231-467 (3d ed. 1990). See also Gray
& Kingsbury, Interstate Arbitration Since 1945: Overview and Evaluation, in M. Janis (ed.),
International Courts for the Twenty-First Century 60 (1992).
(2012). The PCA administered its first arbitration with a non-state party in 1934. See Radio
Corp. of Am. v. China, Award of the Tribunal of 13 April 1935, III United Nations Reports of
International Arbitral Awards 1621-36 (2006).
Practice: The Rules, Practice and Jurisprudence of International Courts and Tribunals 40-41
(2012).
1296) See Siblesz, What Role for the Permanent Court of Arbitration Today? 2 (2013), available at
www.pca-cpa.org/showfile.asp?fil_id=2110. See also PCA Annual Reports, available at
www.pca-cpa.org/showpage.asp?pag_id=1069; Shifman, The Permanent Court of
Arbitration: An Overview, in P. van Krieken & D. McKay (eds.), The Hague: Legal Capital of
the World 128, 141-44 (2005).
1297) Born, A New Generation of International Adjudication, 61 Duke L.J. 775, 779 (2012); Le Cannu
& Drabkin, Assessing the Role of the Permanent Court of Arbitration in the Peaceful
Settlement of International Disputes, 27 L’Observateur des Nations Unies 194 (2010)
(pending PCA cases in 2009 include 35 investment arbitrations, 14 commercial
arbitrations, 2 environmental arbitrations and 3 inter- or intra-state arbitrations); PCA,
Statistical Summary of Cases Using PCA Support (14 October 2010) (on file with author).
See§6.06.
1298) PCA, 112th Annual Report 5 (2012).
1299) See A. Eyffinger, The Peace Palace: Residence for Justice, Domicile of Learning 129-44
(1988); A. Lysen, History of the Carnegie Foundation and the Peace Palace at The Hague 37-
38 (1934).
144
(2012). See§1.04[C][5][d]; Grimmer, The Expanded Role of the Appointing Authority Under
the UNCITRAL Arbitration Rules 2010, 28 J. Int’l Arb. 501 (2011); Levine, Navigating the
Parallel Universe of Investor-State Disputes Under the UNCITRAL Rules, in C. Brown & K.
Miles (eds.), Evolution in Investment Treaty Arbitration 369 (2011).
Although their use has been limited, the PCA’s 1990 Rules have been adopted wholly or
adapted for use in a number of complex and politically-sensitive arbitrations, including
the Abyei Arbitration between the Government of Sudan and the Sudan People’s
Liberation Movement/Army and arbitrations before the Eritrea-Ethiopia Claims
Commission. See Daly, New Procedural Rules for the Permanent Court of Arbitration, 17 IBA
Arb. News 92, 92 (2012). The awards in these arbitrations are available at www.pca-
cpa.org.
1301) The 2012 Rules became effective on 17 December 2012.
1302) Daly, New Procedural Rules for the Permanent Court of Arbitration, 17 IBA Arb. News 92, 92-
93 (2012).
1303) 2012 PCA Rules, Art. 1(2).
1304) 2012 PCA Rules, Arts. 7, 9(1).
1305) 2012 PCA Rules, Art. 10(4).
1306) 2012 PCA Rules, Art. 17(5).
1307) 2012 PCA Rules, Art. 27(3).
1308) 2012 PCA Rules, Art. 1, Annex.
1309) 2012 PCA Rules, Art. 35.
1310) 2012 PCA Rules, Art. 41.
1311) 2012 PCA Rules, Art. 43(1).
1312) 2010 UNCITRAL Rules, Art. 6(1).
1313) See2010 UNCITRAL Rules, Art. 6. See§12.03[D][2].
1314) See, e.g., The Repub. of Mauritius v. United Kingdom of Great Britain & N. Ireland, Reasoned
Decision on Challenge in PCA Case of 30 November 2011; ICS Inspection & Control Servs. Ltd
(U.K.) v. Repub. of Argentina, Decision on Challenge to Arbitrator in PCA Case No. AA359 of
17 December 2009; Perenco Ecuador Ltd v. Repub. of Ecuador & Empresa Estatal Petroleos
del Ecuador, Decision on Challenge to Arbitrator in PCA Case No. IR-2009/1 of 8 December
2009; Abaclat v. Argentine Repub., Recommendation on the Respondent’s Proposal for the
Disqualification of Arbitrators Pursuant to the Request by ICSID Dated November 18, 2011 in
PCA Case No. IR 2011/1 of 19 December 2011.
1315) See§12.05[E].
1316) For commentary on the Swiss Rules of International Arbitration, see Blessing, Comparison
of the Swiss Rules With the UNCITRAL Arbitration Rules and Others, in The Swiss Rules of
International Arbitration: ASA Swiss Arbitration Association Conference on 23 January 2004
in Zurich 17 (ASA Spec. Series No. 24 2004); Burger, The New Swiss Rules of International
Arbitration: A Comparative Analysis, 19(6) Mealey’s Int’l Arb. Rep. 21 (2004); Frey & Ahrens,
New Arbitration Rules Reflect Modern Trends, 23 IFLR 58 (2004); R. Füeg (ed.), The Swiss
Rules of International Arbitration – Five Years of Experience (2009); Habegger, The Revised
Swiss Rules of International Arbitration – An Overview of the Major Changes, 30(2) ASA Bull.
269 (2012); Landolt, The Character of International Arbitration Under the Swiss Rules, 27(5)
Mealey’s Int’l Arb. Rep. 32 (2012); Oetiker & Burkhalter, Swiss Chambers’ Court of
Arbitration and Mediation (SCCAM), in P. Gola, C. Götz Staehelin & K. Graf (eds.),
Institutional Arbitration 233 (2009); T. Zuberbühler, C. Müller & P. Habegger (eds.), Swiss
Rules of International Arbitration: Commentary (2005).
1317) These included institutions in Basel, Bern, Geneva, Lausanne, Lugano and Zurich. See
2004 Swiss Rules, Introduction (b).
1318) These Rules can be found at www.swissarbitration.org. See also Habegger, The Revised
Swiss Rules of International Arbitration – An Overview of the Major Changes, 30(2) ASA Bull.
269 (2012); T. Zuberbühler, C. Müller & P. Habegger (eds.), Swiss Rules of International
Arbitration: Commentary (2005). The standard Swiss Rules arbitration clause provides:
“Any dispute, controversy or claim arising out of, or in relation to, this contract, including
the validity, invalidity, breach or termination thereof, shall be settled by arbitration in
accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’
Arbitration Institution in force on the date when the Notice of Arbitration is submitted in
accordance with these Rules.”
1319) The Introduction (b) to the 2012 Swiss Rules describes the Institution as follows:
“For the purpose of providing arbitration services, the Chambers founded the Swiss
Chambers’ Arbitration Institution. In order to administer arbitrations under the Swiss
Rules, the Swiss Chambers’ Arbitration Institution has established the Arbitration Court
(hereinafter the ‘Court’), which is comprised of experienced international arbitration
practitioners. The Court shall render decisions as provided for under these Rules. It may
delegate to one or more members or committees the power to take certain decisions
pursuant to its Internal Rules. The Court is assisted in its work by the Secretariat of the
Court (hereinafter the ‘Secretariat’).”
The 2012 revised Swiss Rules apply to all proceedings under the Swiss Rules in which the
request for arbitration is submitted after 1 June 2012, unless the parties agree otherwise.
145
1320) See§1.04[B][1][c].
1321) 2012 Swiss Rules, Art. 21.
1324) 2012 Swiss Rules, Art. 26 (“Interim Measures of Protection”), Art. 43 (“Emergency Relief”).
1327) Swiss Chambers’ Arbitration Institution, Arbitration Statistics 2012 (2013).
1328) For commentary on the VIAC Rules, seeF. Schwarz & C. Konrad, The Vienna Rules: A
Commentary on International Arbitration in Austria (2009); Stippl, International Arbitral
Centre of the Austrian Federal Economic Chamber (VIAC), in P. Gola, C. Götz Staehelin & K.
Graf (eds.), Institutional Arbitration 273 (2009).
1329) The VIAC model arbitration clause provides:
“All disputes arising out of this contract or related to its violation, termination or nullity
shall be finally settled under the Rules of Arbitration and Conciliation of the
International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna
(Vienna Rules) by one or more arbitrators appointed in accordance with these rules.”
1330) Article 25 of the VIAC Rules provides “Unless the parties have agreed otherwise (1) the
place of arbitration shall be Vienna…”
1331) In 2012, 145 out of 193 parties were non-Austrian. VIAC, VIAC Statistics 2012 (2013).
1332) VIAC, VIAC Statistics 2012 (2013).
1333) The 2006 version of the Rules was adopted by the Austrian Federal Economic Chamber
on 3 May 2006, with effect from 1 July 2006. SeeF. Schwarz & C. Konrad, The Vienna Rules:
A Commentary on International Arbitration in Austria ¶1-004 (2009).
1334) The Austrian ZPO was revised in 2006 based on the UNCITRAL Model Law. Austrian ZPO,
§§517-618; B. Kloiber et al., Das neue Schiedsrecht – Schiedsrechts-Änderungsgesetz 2006
(2006); C. Liebscher, The Austrian Arbitration Act 2006: Text and Notes (2006); J. Power, The
Austrian Arbitration Act – A Practitioner’s Guide to Sections 577-618 of the Austrian Code of
Civil Procedure (2006); W. Rechberger (ed.), Kommentar zur ZPO §§577-618 (3d ed. 2006);
A. Reiner, Das neue Österreichische Schiedsrecht – SchiedsRÄG 2006, The New Austrian
Arbitration Law – Arbitration Act 2006 (2006); S. Riegler et al. (eds.), Arbitration Law of
Austria: Practice and Procedure (2007); G. Zeiler, Schiedsverfahren §§577-618 ZPO idF des
SchiedsRÄG 2006 (2006).
1335) For an overview of the changes introduced by the 2013 version of the Rules see VIAC, New
Vienna Rules 2013 (2013), available at www.viac.eu. The new version of the Rules was
adopted on 8 May 2013, with effect from 1 July 2013.
1336) See Ross, The SCC and Ulf Franke: The Sino-Swedish Connection, Global Arb. Rev. (27 April
2010).
1337) SCC, The SCC in Numbers – Statistics 2012, available at www.sccinstitute.com.
1338) SCC, The SCC in Numbers – Statistics 2012, available at www.sccinstitute.com.
1339) The Emergency Arbitrators Rules allow parties to seek interim relief prior to the
commencement of arbitral proceedings. See SCC Rules, Appendix II: Emergency
Arbitrator. See also Hobér & McKenzie, New Rules of the Arbitration Institute of the
Stockholm Chamber of Commerce, 23 Arb. Int’l 261 (2007); Magnusson & Shaughnessy, The
2007 Rules of Stockholm Chamber of Commerce, 2006:3 Stockholm Int’l Arb. Rev. 33, 49-
58; Pavlica, The Arbitration Institute of the Stockholm Chamber of Commerce (SCC), in P.
Gola, C. Götz Staehelin & K. Graf (eds.), Institutional Arbitration 217 (2009); Shaughnessy,
Pre-Arbitral Urgent Relief: The New SCC Emergency Arbitrator Rules, 27 J. Int’l Arb. 337
(2010).
1340) The SCC Rules provide for drafting a provisional timetable designating the language of
proceedings failing the agreement of the parties, the admissibility of evidence and
default by the parties. See Magnusson & Shaughnessy, The 2007 Rules of Stockholm
Chamber of Commerce, 2006:3 Stockholm Int’l Arb. Rev. 33, 49-58.
1341) SIAC, 2013 Annual Report 6 (2014).
1342) SIAC, 2013 Annual Report 6 (2014).
1343) SIAC, 2013 Annual Report 7-9 (2014).
146
1344) The 2010 and 2013 revisions included the addition of “expedited procedure” and
“emergency arbitrator” procedure. See 2013 SIAC Rules, Rule 5 (expedited procedure),
Rule 26, Schedule 1 (emergency arbitrator). The model clause for arbitration under the
SIAC Rules provides:
“Any dispute arising out of or in connection with this contract, including any question
regarding its existence, validity or termination, shall be referred to and finally resolved
by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore
International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are
deemed to be incorporated by reference in this clause.”
1345) See§21.01[D].
1346) For commentary, seeKaplan & Morgan, National Report for Hong Kong (2013), in J.
Paulsson (ed.), International Handbook on Commercial Arbitration 1 (1984 & Update 2013);
N. Kaplan, Hong Kong and China Arbitration: Cases and Materials (1994); R. Morgan, The
Arbitration Ordinance of Hong Kong: A Commentary (1997); M. Moser & T. Cheng,
Arbitration in Hong Kong: A User’s Guide (2004); Polkinghorne & Fitzgerald, Arbitration in
Southeast Asia: Hong Kong, Singapore and Thailand Compared, 18 J. Int’l Arb. 101 (2001); M.
Pryles, Dispute Resolution in Asia (2006); Xu & Wilson, One Country, Two International
Commercial Arbitration-Systems, 17(6) J. Int’l Arb. 47 (2000).
1347) The HKIAC’s other arbitration rules include the Domestic Arbitration Rules, the Securities
Arbitration Rules, the Electronic Transaction Arbitration Rules and the Short Form
Arbitration Rules. See HKIAC, Arbitration Rules & Guidelines, available at www.hkiac.org.
The 2008 HKIAC Rules were described as being inspired by the “light touch administered
approach” of the Swiss International Rules of Arbitration.
1348) See 2013 HKIAC Rules, available at www.hkiac.org.
HKIAC has published its revisions to the HKIAC Administered Arbitration Rules which
came into force on 1 November 2013. The model arbitration provision for the HKIAC
Administered Arbitration Rules provides:
“Any dispute, controversy, difference or claim arising out of or relating to this contract,
including the existence, validity, interpretation, performance, breach or termination
thereof or any dispute regarding noncontractual obligations arising out of or relating to
it shall be referred to and finally resolved by arbitration administered by the Hong Kong
International Arbitration Centre under the Hong Kong International Arbitration Centre
Administered Arbitration Rules in force when the Notice of Arbitration is submitted.”
1349) Of the 293 arbitrations, 68% were international and 32% were domestic; 68 arbitrations
(of the total 293 international and domestic arbitrations) were fully administered by the
HKIAC. HKIAC, 2012 Annual Report 6 (2012).
1350) For commentary, see C. Dejun, M. Moser & W. Shengchang, International Arbitration in the
People’s Republic of China: Commentary, Cases and Materials (2d ed. 2000); P. Leung & S.
Wang, Selected Works of China International Economic and Trade Arbitration Commission:
Awards (1963-1988) (1995); Moser, CIETAC Arbitration: A Success Story, 15(1) J. Int’l Arb. 27
(1998); Moser & Yuen, The New CIETAC Arbitration Rules, 21 Arb. Int’l 391 (2005); M. Pryles,
Dispute Resolution in Asia 20-21 (2006); Song, The New CIETAC Arbitration Rules of 2012, 29
J. Int’l Arb. 299 (2012); Tao, China International Economic and Trade Arbitration Commission
(CIETAC) Arbitration Rules, 2005, in L. Mistelis (ed.), Concise International Arbitration 513
(2010); Yang, CIETAC Arbitration Clauses Revisited, 2007 Int’l Arb. L. Rev. 117.
1351) Chinese Arbitration Law, Arts. 10-15.
1352) Moser, CIETAC Arbitration: A Success Story, 15(1) J. Int’l Arb. 27 (1998); Shields, China’s Two
Pronged Approach to International Arbitration, 15(2) J. Int’l Arb. 67 (1998).
1353) See Y. Jianlong, Working Report of 2012 and Working Plan of 2013 (2013).
1354) See 2012 CIETAC Rules, available at www.cietac.org; Heye, Forum Selection for
International Dispute Resolution in China – Chinese Courts vs. CIETAC, 27 Hastings Int’l &
Comp. L. Rev. 535 (2004); Jones, Trying to Understand the Current Chinese Legal System, in
J. Cohen (ed.), Understanding China’s Legal System 18 (2003); Shields, China’s Two Pronged
Approach to International Arbitration, 15(2) J. Int’l Arb. 67 (1998).
1355) 2012 CIETAC Rules, Art. 24(2). In those cases where CIETAC appoints a presiding or sole
arbitrator, CIETAC is also now required to consider (but not necessarily appoint)
candidates nominated by the parties. 2012 CIETAC Rules, Art. 26. The 2012 CIETAC Rules
modify the procedure for appointing the presiding arbitrator (in cases with three-person
tribunals). Among other things, parties are permitted to provide a list of candidates for
presiding arbitrator. 2012 CIETAC Rules, Art. 25(3).
1356) See CIETAC, Panel of Arbitrators Effective as From May 1 2011 (2011).
1357) 2012 CIETAC Rules, Art. 33(3).
1358) 2012 CIETAC Rules, Art. 46(1).
1359) 2012 CIETAC Rules, Arts. 29, 30.
1360) 2012 CIETAC Rules, Arts. 4(3), 7(1), 34(2).
1361) 2012 CIETAC Rules, Art. 6(3).
1362) 2012 CIETAC Rules, Art. 49.
1363) 2012 CIETAC Rules, Art. 50(2).
147
1364) In 2012, CIETAC Shanghai announced that it was seceding from CIETAC Beijing and later
published its own arbitration rules and list of arbitrators. See China International
Economic and Trade Arbitration Commission Statement of 1 May 2012, available at
www.cietac.org. The announcement provoked controversy and litigation, which is
ongoing.
1365) See CRCICA, Annual Report 2011-2012 11 (2012).
1366) See 2011 CRCICA Rules, available at www.crcica.org.
1367) See WIPO Arbitration and Mediation Center, Guide to WIPO Arbitration, available at
www.wipo.int; WIPO Rules, available at www.wipo.int; Zuberbühler, World Intellectual
Property Organization (WIPO), in P. Gola, C. Götz Staehelin & K. Graf (eds.), Institutional
Arbitration 293 (2009). See alsoT. Cook & A. Garcia, International Intellectual Property
Arbitration (2010).
1368) WIPO Rules, Arts. 48, 52.
1369) WIPO Arbitration and Mediation Center, WIPO Caseload Summary: Statistics.
1370) SeeE. Min & M. Lilleengen, Collection of WIPO Domain Name Panel Decisions (2003).
1371) Reilly, An Introduction to the Court of Arbitration for Sport (CAS) & The Role of National
Courts in International Sports Disputes, 2012 J. Disp. Res. 63, 64.
1372) Olympic Charter, Art. 61.
1373) IAAF Constitution, Art. 15; IAAF Competition Rules 2012-2013, Rule 42.
1374) FIFA Statutes, Arts. 66-68.
1375) UEFA Statutes, Arts. 59, 61-62.
1377) 2013 CAS Rules, available at www.tas-cas.org.
1378) 2013 CAS Rules, Rules 38-46.
1379) 2013 CAS Rules, Rules 47-59.
1380) See Arbitration Rules for the Olympic Games, available at www.tas-cas.org.
1381) Arbitration Rules for the Olympic Games, Art. 18.
1382) 2013 CAS Rules, Rule 33.
1383) CAS, Statistics (2012).
1387) R. Schütze, D. Tscherning & W. Wais, Handbuch des Schiedsverfahrens ¶775 (1990).
1388) K.-P. Berger, International Economic Arbitration 58 (1993).
1389) M. Krimpenfort, Vorläufige und sichernde Maßnahmen im schiedsrichterlichen Verfahren 1
(2001).
1390) DIS, Statistics (2012), available at www.dis-arb.de.
1391) J. Davis & Y. Takaishi, Dispute Resolution in Japan 156 et seq. (1996); Roughton, A Brief
Review of the Japanese Arbitration Law, 1 Asian Int’l Arb. J. 127 (2005).
1392) See 2014 JCAA Rules, available at www.jcaa.or.jp.
1393) Pryles, Section 1: Introduction, The Asia-Pacific Arbitration Review 2013 Preface (2013).
1394) Goodrich, Japanese Arbitration - Much Work Done; Much Still to Do, 27 JCAA Newsletter 1
(2012).
1395) See ACICA website at www.acica.org.au.
1396) The ACICA has a comprehensive website detailing the services it provides at
www.acica.org.au.
1397) Pryles, Section 1: Introduction, The Asia-Pacific Arbitration Review 2013 Preface (2013).
1398) See KLRCA website at www.rcakl.org.my.
1399) See KLRCA, 2011 Annual Report 6 (2011).
1400) See ICA Rules of Arbitration, available at www.icaindia.co.in.
1401) See§11.05[G]; §22.04[A][2] (especially §22.04[A][2][a][ii]); Kantor, International Project
Finance and Arbitration with Public Sector Entities: When Is Arbitrability A Fiction?, 24
Fordham Int’l L.J. 1122 (2001).
1402) See ICA, 2011-2012 Annual Report 12 (2012); ICA, 2010-2011 Annual Report 9 (2011).
1403) See JAMS International website at www.jamsinternational.com. JAMS International has
representation in Amsterdam, Milan, New York, Rome and Toronto.
1404) The JAMS recommended clause for international disputes provides:
“Any dispute, controversy or claim arising out of or relating to this contract, including the
formation, interpretation, breach or termination thereof, including whether the claims
asserted are arbitrable, will be referred to and finally determined by arbitration in
accordance with the JAMS International Arbitration Rules. The tribunal will consist of
[three arbitrators] [a sole arbitrator]. The place of arbitration will be [location]. The
language to be used in the arbitral proceedings will be [language]. Judgment upon the
award rendered by the arbitrator(s) may be entered by any court having jurisdiction
thereof.”
1405) A distinctive feature of JAMS is its “Mediator-in-Reserve Policy for International
Arbitrations.” See JAMS International, Rules & Procedures, available at
www.jamsinternational.com.
1406) See§1.04[D][1].
148
1407) See generally Park, The Procedural Soft Law of International Arbitration: Non-
Governmental Instruments, in L. Mistelis & J. Lew (eds.), Pervasive Problems in
International Arbitration 142 (2006); Paulsson, Ethics and Codes of Conduct for A Multi-
Disciplinary Institute, 70 Arb. 193 (2004); Trakman, “Legal Traditions” and International
Commercial Arbitration, 17 Am. Rev. Int’l Arb. 1 (2006); C. von Kann, J. Gaitis & J. Lehrman
(eds.), The College of Commercial Arbitrators Guide to Best Practices in Commercial
Arbitration (2005).
1408) See§1.06.
1409) For a criticism of the IBA’s guidelines for evidence-taking, party representation and
arbitrator independence, see Schneider, The Essential Guidelines for the Preparation of
Guidelines, Directives, Notes, Protocols and Other Methods Intended to Help International
Arbitration Practitioners to Avoid the Need for Independent Thinking and to Promote the
Transformation of Errors into “Best Practices”, in L. Lévy & Y. Derains (eds.), Liber
Amicorum Serge Lazareff 563 (2011). See also Carter, The International Commercial
Arbitration Explosion: More Rules, More Laws, More Books, So What?, 15 Mich. J. Int’l L. 785
(1993-1994). See also Carter, The International Commercial Arbitration Explosion: More
Rules, More Laws, More Books, So What?, 15 Mich. J. Int’l L. 785 (1993-1994).
1410) For commentary, see§15.07[E]; §20.04[C]; P. Ashford, The IBA Rules on the Taking of
Evidence in International Arbitration (2013); C. Baker et al., The Taking of Evidence in
International Commercial Arbitration (2010); T. Giovannini & A. Mourre, Written Evidence
and Discovery in International Arbitration: New Issues and Tendencies (2009); T.
Zuberbühler, IBA Rules of Evidence: Commentary (2012).
1411) IBA Supplemental Rules Governing the Presentation and Reception of Evidence;
Shenton, International Bar Association Supplementary Rules Governing the Presentation
and Reception of Evidence in International Commercial Arbitration, X Y.B. Comm. Arb. 145
(1985).
1412) See§15.07[E].
1413) IBA Supplemental Rules Governing the Presentation and Reception of Evidence, Art. 1.
1414) See§15.07[E]. See also Lew, Achieving the Potential of Effective Arbitration, 65 Arb. 283, 288
(1999); Veeder, Evidential Rules in International Commercial Arbitration: From the Tower of
London to the New 1999 IBA Rules, 65 Arb. 291, 296 (1999).
1415) IBA Rules on the Taking of Evidence, Preamble, ¶2; Bühler & Dorgan, Witness Testimony
Pursuant to the 1999 IBA Rules of Evidence in International Commercial Arbitration – Novel
or Tested Standards?, 17 J. Int’l Arb. 3, 5 (2000).
1416) See§15.07[E].
1417) The word “commercial” was removed from the title in order to recognize that the rules
could be used in non-commercial settings such as investment treaty disputes. P. Ashford,
The IBA Rules on the Taking of Evidence in International Arbitration (2013); IBA,
Commentary on the IBA Rules on the Taking of Evidence in International Arbitration 2
(2010); T. Zuberbühler et al., IBA Rules of Evidence: Commentary on the IBA Rules on the
Taking of Evidence in International Arbitration 1 (2012).
The 2010 IBA Rules are discussed in detail below. See§15.07[E]; §16.02[E][3][a][ii].
1418) 2010 IBA Rules on the Taking of Evidence, Art. 2(1).
1419) 2010 IBA Rules on the Taking of Evidence, Art. 3(3)(a)(ii).
1423) 2010 IBA Rules on the Taking of Evidence, Preamble, ¶3.
1425) Queen Mary, University of London, 2012 International Arbitration Survey: Current and
Preferred Practices in the Arbitral Process 2 (2012) (IBA Rules used as guidelines in 53% of
cases and as binding rules in 7% of cases).
1426) For commentary, see the authorities cited at §12.05[J][2], pp. 1834-36; §12.05[J][5][a], pp.
1839-40; §13.02[F], p. 1972.
1427) The original ABA/AAA Code of Ethics is excerpted in X Y.B. Comm. Arb. 131 (1985); Feerick,
The 1977 Code of Ethics for Arbitrators: An Outside Perspective, 18 Ga. St. U.L. Rev. 907
(2002).
1428) Consistent with historic practice in the United States, the Code prescribed
presumptively different ethical standards for party-appointed and “neutral” arbitrators.
See§12.05[J][1], p. 1834; §12.05[J][2], pp. 1834-35; §12.05[B][3], pp. 1801-02.
1429) AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes, Note on Neutrality
(effective 1 March 2004); Byrne, A New Code of Ethics for Commercial Arbitrators: The
Neutrality of Party-Appointed Arbitrators on A Tripartite Panel, 30 Ford. Urb. L.J. 1815
(2003). The ABA/AAA Code of Ethics is discussed below. See§12.05[B][3]; §12.05[C][2];
§12.05[J][2]. The ABA publishes an annotated online version of the ABA/AAA Code of Ethics
for Commercial Arbitrators.
Seewww.americanbar.org/content/dam/aba/migrated/dispute/commercial_disputes.a
uthcheckdam.pdf.
1430) IBA Rules of Ethics, available at www.ibanet.org.
1431) Unlike the original ABA/AAA Code, the IBA Rules of Ethics applied the same standards of
impartiality and independence to party-appointed, sole and presiding arbitrators.
See§12.05[J][1], p. 1834; §12.05[J][5][a], p. 1841.
149
1432) See IBA Guidelines on Conflicts of Interest, General Standard 3. The Guidelines are
discussed below. See§12.05[J][5][b].
1433) See§12.05[J][5][b].
1434) See§12.05[L][3]; IBA Guidelines on Conflicts of Interest, General Standard 3. The
Guidelines categorize such circumstances into those matters that give rise to justifiable
doubts concerning independence (a so-called “red list”), matters that require disclosure
(a so-called “orange list”) and matters that do not ordinarily give rise to doubts
regarding independence and that do not require disclosure (a so-called “green list”). IBA
Guidelines on Conflicts of Interest, General Standard 4, Part II. See also§12.05[J][5][b].
1435) See Veeder, Is There Any Need for A Code of Ethics for International Commercial
Arbitrators?, in J. Rosell (ed.), Les arbitres internationaux 187, 187-88 (2005).
1436) IBA Guidelines on Party Representation, Preamble.
1437) IBA Guidelines on Party Representation, Preamble.
1438) IBA Guidelines on Party Representation, Guidelines 1-27. See§21.03[A][1][b], pp. 2854-56.
1439) Report of the UNCITRAL on the Work of Its Twenty-Ninth Session, U.N. Doc. A/51/17 (1996);
UNCITRAL, Notes on Organizing Arbitral Proceedings (2012). The UNCITRAL Notes are also
discussed in greater detail below. See§15.08[N], pp. 2235-37.
1440) Chartered Institute of Arbitration, Practice Guideline 5: Guidelines for Arbitrators regarding
Documents-Only Arbitrations, available at www.ciarb.org.
1441) See§1.01[B] (especially §§1.01[B][1]-[2]); §2.02[C][1][b][i]; §5.04[D]; Rent-A-Ctr W., Inc. v.
Jackson, 130 S.Ct. 2772, 2776 (U.S. S.Ct. 2010) (“fundamental principle that arbitration is a
matter of contract”); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
574, 582 (U.S. S.Ct. 1960) (“arbitration is a matter of contract and a party cannot be
required to submit to arbitration any dispute which he has not agreed to so submit”).
1442) There is a small, but important, category of cases in which international arbitrations may
result without a consensual agreement, by virtue of provisions in international
investment protection or other conventions or legislation. See§1.04[A][6], pp. 125-26.
1443) See§1.01[A][4].
1444) See§1.01[A][2]; §3.03[A].
1445) There is a substantial body of commentary on drafting arbitration agreements.
SeeBernardini, The Arbitration Clause of An International Contract, 9(2) J. Int’l Arb. 45
(1992); Bishop, A Practical Guide for Drafting International Arbitration Clauses (2004);
Bond, How to Draft An Arbitration Clause (Revisited), 1(2) ICC Ct. Bull. 14 (1990); G. Born,
International Arbitration and Forum Selection Agreements: Drafting and Enforcing (4th ed.
2013); Debattista, Drafting Enforceable Arbitration Clauses, 21 Arb. Int’l 233 (2005); P.
Friedland, Arbitration Clauses for International Contracts (2d ed. 2007); IBA Guidelines on
Drafting the International Commercial Arbitration Clause (2010); ICDR, Guide to Drafting
International Dispute Resolution Clauses (2011); J. Paulsson, N. Rawding & L. Reed, The
Freshfields Guide to Arbitration and ADR: Clauses in International Contracts (3d ed. 2011);
Townsend, Drafting Arbitration Clauses, 58 Disp. Res. J. 1 (2003). See also IBA Guidelines on
Drafting the International Commercial Arbitration Clause (2010); ICDR, Guide to Drafting
International Dispute Resolution Clauses (2011).
1446) These include provisions regarding provisional measures, waivers of appeals, immunity
issues, costs, currency and interest, and fast-track or other procedures. SeeG. Born,
International Arbitration and Forum Selection Agreements: Drafting and Enforcing 37-90
(4th ed. 2013); P. Friedland, Arbitration Clauses for International Contracts (2d ed. 2007); J.
Paulsson, N. Rawding & L. Reed, The Freshfields Guide to Arbitration and ADR: Clauses in
International Contracts (3d ed. 2011).
1447) The definition of an “arbitration” agreement is discussed below. See§2.02.
1448) See§1.04[E][9]. Nonetheless, as discussed below, it is not essential that an “arbitration
agreement” use the term “arbitration.” Although this is usually the case, and is strongly
recommended, an agreement to arbitrate can be deduced from other language.
See§2.02[C], p. 245.
1449) See§§2.02[C][2][b]-[c].
1450) See§2.02[C][1][b][iv].
1451) See§5.04[D][6].
38-39 (4th ed. 2013).
1453) The interpretation of arbitration agreements, with particular focus on their scope, is
discussed below. See§9.02.
1454) See§9.02[E][8].
39-44 (4th ed. 2013).
1456) The interpretation of these formulae is discussed below. See§9.02[E], pp. 1345-47.
1457) See§9.02[E] (especially §9.02[E][1]); G. Born, International Arbitration and Forum Selection
Agreements: Drafting and Enforcing 39-43 (4th ed. 2013).
1458) See§1.02[B] (especially §1.02[B][2]); §9.02[E][8].
1459) For examples of exclusions for particular types of issues, seeG. Born, International
Arbitration and Forum Selection Agreements: Drafting and Enforcing 43–44 (4th ed. 2013).
1460) See§9.02[E][9].
1461) See§1.04[C][1].
1462) See§9.03[A]; G. Born, International Arbitration and Forum Selection Agreements: Drafting
and Enforcing 44-62 (4th ed. 2013).
1463) These model clauses are reproduced in G. Born, International Arbitration and Forum
Selection Agreements: Drafting and Enforcing Appendix C (4th ed. 2013).
150
1464) See§1.04[C][2]; G. Born, International Arbitration and Forum Selection Agreements: Drafting
and Enforcing 63-65, 66-67 (4th ed. 2013).
1465) See§11.03[A].
1466) See§11.03[A].
1467) See§11.03[A]; §11.04.
1468) See§11.03[D][1]; §14.02[A].
1469) See§11.03[D]; §14.02[A].
78-87 (4th ed. 2013).
1471) See§12.01[A].
1472) See§12.02[I].
1473) See§12.02[H].
1474) As discussed below, the two most frequently-used numbers of arbitrators in
international commercial arbitration are one and three. See§12.02[C], p. 1669. There is no
“perfect” number of arbitrators, although most significant disputes are better heard by
three (rather than one) arbitrators.
78, 81 (4th ed. 2013).
1476) See§12.02[C].
1477) See§12.03[D]; G. Born, International Arbitration and Forum Selection Agreements: Drafting
and Enforcing 79-83 (4th ed. 2013).
1478) See§12.03[D].
1479) See§§12.03[D][3]-[5]; 2012 ICC Rules, Arts. 8, 11-13; ICDR Rules, Art. 6; 2010 UNCITRAL Rules,
Art. 6. An institution will also appoint an arbitrator on behalf of a party which fails to
exercise its right under the parties’ arbitration agreement to do so. 2012 ICC Rules, Arts.
12(3), (4); ICDR Rules, Art. 6(3); LCIA Rules, Art. 5(4).
1480) As discussed below, if the parties wish for the co-arbitrators to attempt to agree on the
identity of a presiding arbitrator, it may be necessary to include provisions to that effect
in the parties’ arbitration if ad hoc arbitration or some institutional rules are adopted.
See§12.03[C][3], pp. 1698-1700; G. Born, International Arbitration and Forum Selection
Agreements: Drafting and Enforcing 81 (4th ed. 2013).
1481) See§12.04[D].
1482) 2012 ICC Rules, Art. 13(5); LCIA Rules, Art. 6(1). Compare ICDR Rules, Art. 6(4).
83-85 (4th ed. 2013). Such provisions are often sui generis, providing “each arbitrator
shall be a Certified Public Accountant” or “the arbitrators shall be practicing lawyers.”
83-85 (4th ed. 2013). Nonetheless, it is often difficult to determine in advance what sorts
of expertise will be genuinely relevant to a future dispute. Moreover, imposing advance
requirements reduces the pool of available arbitrators – sometimes unacceptably, such
as a “legally-qualified national of Bermuda with a civil engineering degree and fluency
in Arabic.” It can also indirectly influence the background and training of a potential
chairman (and the co-arbitrators), which may have consequences for the approach to the
merits of the dispute in the arbitral proceedings. See§12.04[D][3].
87 (4th ed. 2013). See§15.08[L].
1486) 2010 UNCITRAL Rules, Art. 19; 2012 ICC Rules, Art. 20; ICDR Rules, Art. 14.
1487) See§15.08[L].
1488) See§14.02[A][9].
1489) See§1.04[F]; §4.01; §9.01.
1490) For a discussion of the drafting of such choice-of-law clauses, seeG. Born, International
Arbitration and Forum Selection Agreements: Drafting and Enforcing 159-70 (4th ed. 2013).
1491) See§1.04[F][2]; §3.03[B]; §4.02[A][1].
1492) See§1.04[F][2]; §3.03[B].
1493) See§11.05.
1494) See§11.05[B].
1495) See§11.05[B][2]; G. Born, International Arbitration and Forum Selection Agreements:
Drafting and Enforcing 161 (4th ed. 2013).
91-93 (4th ed. 2013).
93-95 (4th ed. 2013).
95-98 (4th ed. 2013). SeeChapter 16.
1499) Berger, Law and Practice of Escalation Clauses, 22 Arb. Int’l 1 (2006); G. Born, International
Arbitration and Forum Selection Agreements: Drafting and Enforcing 104-05, 112 (4th ed.
2013).
101-04 (4th ed. 2013).
32-33, 129 (4th ed. 2013).
119-21 (4th ed. 2013); §20.03[B].
151
1503) These are catalogued in G. Born, International Arbitration and Forum Selection
Agreements: Drafting and Enforcing 37-38 (4th ed. 2013).
1504) In transactions involving particular jurisdictions with idiosyncratic legislative or judicial
rules regarding the validity or enforceability of international arbitration agreements
(e.g., China, Brazil), more specialized text may be appropriate.
1505) See§1.02 (especially §1.02[B][1]).
1506) See§4.01; §11.05.
1507) For a more detailed discussion, seeChapter 4; §11.05. Additional subcategories arise, for
example, with regard to aspects of the law governing the arbitration agreement (e.g., the
law governing issues of formal validity, substantive validity, capacity, interpretation) or
the arbitral proceedings (e.g., the law governing the arbitrator’s contract, the availability
of provisional relief, privileges).
1508) Parties sometimes agree to permit arbitrators to resolve their dispute without reference
to law, that is, ex aequo et bono or as amiable compositeur (see§2.02[C][3], pp. 284-85;
§19.07, pp. 2770-76) or by reference to a non-national legal system (see§19.06[C], pp.
2754-59; §19.06[C][5], pp. 2765-67).
1509) See§19.02; §19.03.
1510) See§19.04 (especially §19.04[A][4]); §19.04[E]; 2010 UNCITRAL Rules, Art. 35(1).
1511) The role of national and international public policy in arbitration gives rise to
particularly complex choice-of-law issues. See§19.04[B].
1512) See§19.01.
1513) See§19.03[D][1].
1514) See§19.03[A][3]; §19.03[D][3][e]; §19.04[A][6][d]. There is also authority supporting an
arbitral tribunal’s “direct” application of substantive rules of law, purportedly without
prior recourse to any set of conflict of laws rules. See§19.03[D][3][b], pp. 2464-66.
1515) The U.N. Convention on the International Sales of Goods, the UNIDROIT Principles of
International Commercial Contracts and the Rome Convention are leading examples of
this trend. See§4.04[A][1][e]; §19.03[A][4].
1516) See§3.02; §4.02.
1517) SeeChapter 4 for a discussion of the choice of law applicable to the arbitration
agreement.
1518) See§4.04[A][1][b][i].
1519) See§11.03[A]. Parties sometimes agree that hearings may be conducted somewhere other
than the arbitral seat, for convenience, but this in principle does not change the arbitral
seat or the procedural law governing the arbitration. See§11.03[A]; §11.04.
1520) For example, foreign lawyers may not be permitted to appear in arbitrations conducted
on national territory, arbitrators may be prohibited from ordering discovery,
administering oaths, or granting provisional relief, or detailed procedural requirements
or time schedules may be mandatorily applicable. See§11.03[D][2], pp. 1582-83.
1521) The United States, England, Switzerland, France and Singapore generally fall within this
latter category.
1522) See§11.05 for a discussion of the choice of law applicable to the arbitral proceedings.
1523) See§11.05.
1524) See§19.03.
1525) See§§19.03[D][3][b]-[e].
1526) See§4.04[A][1][b][i]; §4.04[A][2][j][v].
1527) For commentary, see Carlston, Theory of the Arbitration Process, 17 Law & Contemp. Probs.
631 (1952); E. Gaillard, Legal Theory of International Arbitration (2010); C. Jarrosson, La
notion d’arbitrage (1987); A. Kassis, Problèmes de base de l’arbitrage en droit comparé et
en droit international I : Arbitrage juridictionnel et arbitrage contractuel (1987); F.-E. Klein,
Considérations sur l’arbitrage en droit international privé ¶113 (1955); J. Rubellin-Devichi,
L’arbitrage: nature juridique, droit interne et droit international privé (1965); A. Samuel,
Jurisdictional Problems in International Commercial Arbitration 32-74 (1989); Sauser-Hall,
L’Arbitrage en droit international privé, 44-I Annuaire de l’Institut de droit international
469 (1952), quoted in A. Samuel, Jurisdictional Problems in International Commercial
Arbitration 60 (1989); P. Schlosser, Das Recht der internationalen privaten
Schiedsgerichtsbarkeit ¶40 (1989).
1528) Cf. T. Carbonneau, Cases and Materials on the Law and Practice of Arbitration 624 (2d ed.
2000) (“tempest in a teapot”), quoted in J. Lew, L. Mistelis & S. Kröll, Comparative
International Commercial Arbitration ¶5-5 (2003).
1529) Balladore-Pallieri, L’arbitrage privé dans les rapports internationaux, 51 Recueil des Cours
287, 316 (1935); J. Fœlix, Traité du droit international privé 461 (2d ed. 1847); P. Merlin, 9
Recueil alphabétique des questions de droit 139, 143-49 (1829).
1530) P. Merlin, 9 Recueil alphabétique des questions de droit 139, 145 (1829), quoted in A.
Samuel, Jurisdictional Problems in International Commercial Arbitration 34 (1989). See also
Judgment of 27 July 1937, 1938 Dalloz 25 (French Cour de cassation civ.) (“arbitral awards,
which have, as their basis, an arbitration agreement, form one entity with it and share its
contractual character”); G. Petrochilos, Procedural Law in International Arbitration 25
(2004) (“An arbitrator is not dispensing justice by delegation of any state”; “An arbitrator
carries the jurisdictional authority of no particular state.”).
1531) P. Fouchard, L’arbitrage commercial international ¶19 (1965); F.-E. Klein, Considerations
sur l’arbitrage en droit international privé ¶115 (1955).
152
1532) Balladore-Pallieri, L’arbitrage privé dans les rapports internationaux, 51 Recueil des Cours
187 (1935); J. Niboyet, VI Traité de droit international privé français – Le conflit des
autorités, le conflit des jurisdictions 135 (1947) (“The arbitrator metes out justice – which is
always a prerogative of the local sovereign. Each state determines pursuant to what
requirements arbitral justice may be rendered in its territory and exclude the
jurisdiction of its courts. Arbitrators therefore mete out justice by delegation from the
sovereign of the territory…”); Laine, De l’exécution en France des sentences arbitrales
étrangères, 26 J.D.I. (Clunet) 641, 653-54 (1899). See A. Pillet, 2 Traité pratique de droit
international privé 537 (1924) (“The arbitration agreement is necessary to give the
arbitrators their authority, but once that authority has been conferred on them,
provided they keep within the limits of the task given to them, their freedom is absolute
and the arbitration agreement has no influence on their award which is based on quite
different matters…”).
1533) H. Motulsky, Ecrits: Etudes et notes sur l’arbitrage 46 (1974). See also ibid. (“Once a claim is
submitted to a person invested by the law with the power to accept or reject the claim
by the application of a rule of law, one is in the presence of a jurisdiction.”); S. Contini,
L’Arbitrage en procedure civile vaudoise 13 (1951).
1534) See authorities cited at §2.02[C][2][a], p. 257; §2.02[C][4], p. 285; §13.02[G], pp. 1974-75.
1535) Mann, State Contracts and International Arbitration, 42 Brit. Y.B. Int’l L. 1, 10-11 (1967).
1536) Mann, Lex Facit Arbitrum, reprinted in 2 Arb. Int’l 241 (1986).
1537) Carlston, Theory of the Arbitration Process, 17 Law & Contemp. Probs. 631, 635 (1952); Rau,
The Culture of American Arbitration and the Lessons of ADR, 40 Tex. Int’l L.J. 449, 451 (2005)
(“dual nature” of arbitration: “An arbitration is from one perspective an exercise of
private ordering – it is formed by private agreement, and the particular shape it takes is
a result of conscious private choice. And at the same time, from another angle, it is an
exercise in adjudication – resulting in an award that the force of the state makes
obligatory on the litigants in much the same way as the judgment of a public tribunal.”);
Sauser-Hall, L’Arbitrage de droit international privé, 44-I Annuaire de l’Institut de droit
international 469, 471 (1952), quoted in A. Samuel, Jurisdictional Problems in International
Commercial Arbitration 60 (1989); P. Schlosser, Das Recht der internationalen privaten
Schiedsgerichtsbarkeit ¶40 (1989); Surville, Jurisprudence française en matière de droit
international, 29 Revue critique de législation et de jurisprudence 129, 148 (1900).
1538) Sauser-Hall, L’Arbitrage de droit international privé, 44-I Annuaire de l’Institut de droit
international 469 (1952), quoted in A. Samuel, Jurisdictional Problems in International
Commercial Arbitration 60 (1989). See also Carlston, Theory of the Arbitration Process, 17
Law & Contemp. Probs. 631, 635 (1952) (“The statement that arbitration is a creature of
the parties, that its occurrence, form and scope are dependent on the will and consent
of the parties, is but part of the truth.”).
1539) A. Samuel, Jurisdictional Problems in International Commercial Arbitration 62-63 (1989).
1540) J. Rubellin-Devichi, L’arbitrage: nature juridique, droit interne et droit international privé
365 (1965) (“In order to allow arbitration to enjoy the expansion it deserves, while all
along keeping it within its appropriate limits, one must accept, I believe, that its nature
is neither contractual, nor jurisdictional, nor hybrid, but autonomous.”).
1541) See§3.02[B][2]; §3.02[B][3][b]; Judgment of 7 October 1933, Tobler v. Justizkommission des
Kantons Schwyz, DFT 59 I 177, 179 (Swiss Federal Tribunal); Judgment of 28 May 1915, Jörg v.
Jörg, DFT 41 II 534 (Swiss Federal Tribunal).
1542) See§4.04[A][2][a]; The Eros, 241 F. 186, 191 (E.D.N.Y. 1916) (Hand, J.) (“a general arbitration
clause…goes to the remedy, not to the rights, of the parties, and…its effect is to be
determined by the law of the forum”), aff’d, 251 F. 45 (2d Cir. 1916); Meacham v.
Jamestown, Franklin and Clearfield R.R., 211 N.Y. 346, 352 (N.Y. 1914) (Cardozo, J.,
concurring).
1543) See§§1.01[B][2] & [5]; §2.02[C][1][b][i]; §11.03.
1544) See§4.04[B][2][b][ii]; §11.03[B]; §15.02.
1545) See§1.02 (especially §1.02[A][2]); §1.04[E]; §2.01[A][1].
1546) See§5.06[A][3].
1547) That includes in defining the arbitrators’ powers and jurisdiction and specifying the
arbitral procedures and applicable substantive law. See§13.01.
1548) See§23.02[B][1]; §24.02[B][3]; §§25.04[A] & [C]; §26.05[C][1].
1549) See§2.02[C][1] (especially §2.02[C][1][b]); §2.02[D].
1550) The “judicial” character of arbitration and the arbitrator’s mandate are discussed below.
See§2.02[C][2][a]; §13.02[G].
1551) See§11.01; §15.06.
1552) See§27.01[B][2].
1553) See§1.01[B][1].
1554) See§§1.01[C][1]-[2]; §1.04[A][1][a].
1555) See§§1.01[C][1]-[2]; §1.04[A][1][a].
1556) See§1.04[B][1][a].
1557) See§1.02.
1558) See§1.02 (especially §1.02[B]).
1559) See§20.01 for a discussion of the confidentiality or privacy of international arbitrations.
1560) See§20.03. Both awards and submissions during the arbitration are much less likely to be
confidential (and instead to be publicly available) in investment arbitration.
See§20.11[A].
153
1561) There is extensive commentary on international arbitration. For bibliographies, see, e.g.,
L. Brown, Selected Bibliography of International Commercial Arbitration: 1970-1978 (1978);
Hiramoto, A Path to Resources on International Commercial Arbitration 1980-1986, 4 Int’l
Tax & Bus. Law. 297 (1986); Jolivet, Access to Information and Awards, 22 Arb. Int’l 265
(2006); V. Pechota, Commercial Arbitration: An International Bibliography (1992); F. Sander
& F. Snyder, Alternative Methods of Dispute Settlement – A Selected Bibliography (1979 &
1982 Rev.); Strong, Research in International Commercial Arbitration: Special Skills,
Special Sources, 20 Am. Rev. Int’l Arb. 119 (2009).
1562) J. Paulsson (ed.), I-IV International Handbook on Commercial Arbitration (1984 & Update
2013).
1563) J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2001-2007
(2009); J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards1996-
2000 (2003); J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards
1990-1995 (1997); S. Jarvin, Y. Derains & J.-J Arnaldez (eds.), Collection of ICC Arbitral
Awards 1986-1990 (1994); S. Jarvin & Y. Derains (eds.), Collection of ICC Arbitral Awards
1974-1985 (1990).
1564) D. Hascher (ed.), Collection of Procedural Decisions in ICC Arbitration 1993-1996 (1997).
Arbitration (1999).
1566) SeeN. Blackaby et al. (eds.), Redfern and Hunter on International Arbitration (5th ed.
2009); A. Redfern & M. Hunter (eds.), Law and Practice of International Commercial
Arbitration (4th ed. 2000).
1567) W. Craig, W. Park & J. Paulsson, International Chamber of Commerce Arbitration (3d ed.
2000).
1568) Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration (2d ed. 2005).
1569) J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration (2012).
1570) See M. Bühler & T. Webster, Handbook of ICC Arbitration: Commentary, Precedents,
Materials (2d ed. 2008); E. Schäfer, H. Verbist & C. Imhoos, ICC Arbitration in Practice
(2005).
1571) A. van den Berg, The New York Arbitration Convention of 1958 (1981).
1572) H. Kronke et al., Recognition and Enforcement of Foreign Arbitral Awards: A Global
Commentary on the New York Convention (2010); R. Wolff (ed)., New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards: Commentary (2012).
Commercial Arbitration: Legislative History and Commentary (1989).
1574) L. Edmonson (ed.), Domke on Commercial Arbitration (3d ed. 2010 & Update 2013).
1575) H. Smit & V. Pechota (eds.), 1 Smit’s Guides to International Arbitration: National
Arbitration Laws (2001).
1576) For commentary, see C. Brower & J. Brueschke, The Iran-United States Claims Tribunal
(1998); R. Khan, The Iran-United States Claims Tribunal: Controversies, Cases, and
Contribution (1990); R. Lillich, The Iran-United States Claims Tribunal 1981-83 (1984); J.
Westberg, International Transactions and Claims Involving Government Parties: Case Law
of the Iran-United States Claims Tribunal (1991).
1577) Bilateral claims commissions to resolve claims of nationals of one state against another
state have frequently been established, particularly following armed conflicts, between
European and American states. See§1.01[A][5], pp. 20-23.
1578) See Algiers Accords, 1 Iran-US C.T.R. 3 et seq. (1981-1982).
1579) The decisions are important precedents on issues of both substantive international law
and arbitral procedure. They are available from the Iran-United States Claims Tribunal
Reports and Mealey’s Iranian Assets Litigation Reporter.
1580) Case Law on UNCITRAL Texts: UNCITRAL Model Law on International Commercial
Arbitration, available at www.uncitral.org/uncitral/en/case_law.html.
1581) Seewww.newyorkconvention1958.org.
1582) See, e.g., www.newyorkconvention.org.
1583) The forum can be contacted at www.dundee.ac.uk/cepmlp; alternatively CEPMLP,
Carnegie Building, University of Dundee, Dundee, DD1 4HN, Scotland, Tel: +44 (0) 13 82 38
43 00.
1584) The Swedish Arbitration Portal can be found at
www.arbitration.sccinstitute.com/Swedish-Arbitration-Portal.
154
Part I: International Arbitration Agreements
Publication ***
International Commercial The foundation of almost every international arbitration – and of the international arbitral
Arbitration (Second Edition) process itself – is an international arbitration agreement. In the words of one commentator,
“[o]bviously, no arbitration is possible without its very basis, the arbitration agreement.” (1)
Absent a valid agreement to arbitrate, there are no legal grounds for requiring a party to
arbitrate a dispute or for enforcing an arbitral award against a party. (2) “Arbitration ‘is a
Bibliographic reference matter of contract and a party cannot be required to submit to arbitration any dispute which
'Part I: International he has not agreed to so submit.’” (3)
Arbitration Agreements', in International arbitration agreements can take in countless forms. Typically, an arbitration
Gary B. Born , International agreement is a provision in an underlying commercial contract, requiring arbitration of any
Commercial Arbitration future disputes relating to the contract. (4) Such a provision can be either short and
(Second Edition), 2nd edition standardized or longer and tailor-made for a particular transaction. As models of brevity, if not
(© Kluwer Law International; prudence, European commentators sometimes cite clauses that provided “English law –
Kluwer Law International arbitration, if any, London according ICC Rules,” (5) and “Arbitration – Hamburg, Germany.” (6) A
2014) pp. 225 - 228 U.S. counterpart read: “Arbitration; if required in New York City.” (7)
At the opposite end of the spectrum are multi-paragraph arbitration provisions, recommended
by assiduous practitioners for inclusion in commercial contracts, or specially-drafted for a
particular transaction. It is also possible for entire agreements to be devoted exclusively to
the arbitration of disputes under a series of related contracts, typically involving multiple
parties. (8) Falling between these extremes are model clauses promulgated by leading
international arbitral institutions, including the International Chamber of Commerce (“ICC”),
London Court of International Arbitration (“LCIA”), the International Center for Dispute
Resolution (“ICDR”) and the Singapore International Arbitration Centre (“SIAC”), which provide
generic, but typically concise and well-tested, formulae. (9)
Whatever form they take, international arbitration agreements are vitally important to the
international arbitral process. Properly drafted, they can provide the basis for a relatively
smooth and efficient arbitration; less carefully drafted, they can give rise to a host of legal and
practical issues; badly drafted, arbitration agreements can be pathological, (10) either
incapable of enforcement or precursors to uncertain and costly litigation in national courts.
The Chapters which follow in this Part explore the principal legal and practical issues arising
from international arbitration agreements.
Chapter 2 discusses the legal framework for international arbitration agreements. It begins by
summarizing the basic rule of presumptive validity of international arbitration agreements
under contemporary international arbitration conventions (particularly the New York
Convention, the European Convention and the Inter-American Convention) and national
arbitration legislation (particularly the UNCITRAL Model Law, the U.S. Federal Arbitration Act
P 226 (“FAA”) and the main European, Asian and other arbitration regimes). The Chapter then
P 227 addresses the question of what constitutes an “arbitration agreement,” which will be subject
to the pro-arbitration legal regimes established by contemporary international arbitration
conventions and legislation. Finally, the Chapter addresses a number of jurisdictional
requirements of these conventions and legislation, including requirements that the arbitration
agreement concern a “commercial” relationship, an “international” matter and a “defined
legal” relationship, which are also conditions for the applicability of such conventions and
national legislation.
Chapter 3 discusses the universally-recognized principle that international arbitration
agreements are presumptively separable or autonomous from the underlying contract(s) with
which they are associated. The Chapter details the historic development, contemporary
acceptance and legal bases of the “separability presumption,” as well as the presumption’s
various consequences for the recognition and enforcement of international arbitration
agreements.
Chapter 4 addresses the choice of the law governing international arbitration agreements. It
details the consequences of the separability presumption for choice-of-law analysis, and
describes the principal conflict of laws rules applied to international arbitration agreements,
including the law of the arbitral seat, the law governing the underlying contract and the law of
the state with which the arbitration agreement has its “closest connection.” The Chapter also
discusses the potential applicability of uniform international substantive rules of formation
and validity to such agreements, either as generally-applicable law or as international limits
on national law rules. In addition, the Chapter examines the applicability of a “validation
principle,” under both the New York Convention and leading national arbitration statutes, to
the substantive and formal validity of international arbitration agreements.
Chapter 5 discusses the substantive rules governing the formation, validity and legality of
international arbitration agreements. The Chapter addresses the formal validity of
international arbitration agreements, including requirements under the New York Convention
and national arbitration legislation for a “writing.” The Chapter also describes the rules of
substantive law applicable to issues of formation, including standards of proof and questions
155
of consent, and to issues of capacity and substantive validity, including fraud,
unconscionability, duress, mistake, waiver, termination and illegality. It concludes by
addressing questions of compliance with pre-arbitral procedural requirements.
Chapter 6 considers the so-called “nonarbitrability” doctrine (or, alternatively titled, the
doctrine of “objective arbitrability”) and related issues of public policy. The Chapter examines
the differences between the nonarbitrability doctrine and the validity, legality and
enforceability of international arbitration agreements. It also examines the bases on which
arbitration agreements have been declared nonarbitrable under national law, as well as
limitations imposed by the New York Convention and other international instruments on the
doctrine.
Chapter 7 addresses the authority of an international arbitral tribunal to consider and decide
disputes over the arbitrators’ own jurisdiction, including disputes over the existence, validity
and interpretation of the parties’ arbitration agreement. This question is the subject-matter of
the so-called “competence-competence” doctrine (also referred to as “Kompetenz-Kompetenz”
or “jurisdiction to decide jurisdiction”); the Chapter examines the bases for this doctrine in
P 227 leading international arbitration conventions and other sources of authority. The Chapter also
P 228 examines the allocation of competence to resolve jurisdictional challenges to international
arbitration agreements between arbitral tribunals and national courts, focusing on the
divergent approaches to this issue in different national legal systems.
Chapter 8 discusses the legal effects of international arbitration agreements and the
mechanisms for enforcing those agreements. It considers both the positive duties (e.g., the
obligation to participate in good faith and cooperatively in arbitral proceedings) and negative
duties (e.g., the obligation to refrain from litigating arbitrable disputes) imposed by
arbitration agreements. The Chapter also sets out the various means by which these
obligations are given effect, including stays of litigation, orders compelling arbitration,
damages actions, antisuit injunctions and non-recognition of judgments procured in breach of
a valid arbitration agreement.
Chapter 9 addresses the interpretation of international arbitration agreements. It considers
the rules applicable to interpreting the scope of arbitration agreements which have been
developed in different national legal systems. The Chapter also addresses the exclusivity of
international arbitration agreements, as well as issues concerning the mandatory or optional
nature of arbitration agreements.
Chapter 10 discusses issues relating to the identities of the parties to international arbitration
agreements. In particular, it examines the various legal theories that have been used to give
binding effect to arbitration agreements vis-à-vis non-signatories, including agency, alter ego
status, the group of companies theory, estoppel, guarantor relations, third party beneficiary
rights and miscellaneous other grounds. The Chapter also examines the choice of law governing
P 228 the foregoing issues and the allocation of competence to decide such disputes between
national courts and arbitral tribunals.
References
1) A. van den Berg, The New York Arbitration Convention of 1958 144-45 (1981). SeeAward in ICC
Case No. 7929, XXV Y.B. Comm. Arb. 312, 316 (2000) (“Arbitration is a consensual process and
depends upon the existence of a valid agreement to arbitrate.”); Watkins-Johnson Co. v.
Islamic Repub. of Iran, Award in IUSCT Case No. 429-370-1 of 28 July 1989, 22 Iran-US C.T.R.
218, 296 (1989) (Noori, J., dissenting) (“There can be no doubt that arbitrations, whether
international or between subjects of private law, derive their mandate and competence
from the consent and agreement of the parties to the arbitral agreement; therefore, it is
the parties’ consent that determines the scope, limits and area of certitude of an
arbitrator’s authority and jurisdiction.”); Reily v. Russell, 34 Mo. 524, 528 (Mo. 1864)
(arbitration rests on the “will and consent of the parties litigant”); Elektrim SA v. Vivendi
Universal SA [2007] EWHC 571 (QB) (English High Ct.) (“Arbitrations…are the result of
agreements between…parties to resolve legal disputes through a private impartial
tribunal. Such arbitrations are, by definition, consensual.”); Judgment of 3 October 2000,
DFT 4P.60/2000, ¶3(a) (Swiss Federal Tribunal) (“Among other prerequisites, an arbitral
tribunal has jurisdiction only in case the dispute is within the scope of the arbitration
agreement.”); Judgment of 3 July 1975, 1978 NJW 109, 110 (German Bundesgerichtshof) (“While
the citizen is subject to the jurisdiction of the state courts by virtue of public law set by the
state, the arbitral proceedings…are always the consequence of a private legal act, be it –
as here – an agreement, be it a final will or the articles of an association.”).
2) See§5.04[A], §8.02, §25.04[A], §26.05[C][1]. There are a few instances where arbitration of
international disputes may be compelled even absent a traditional arbitration agreement,
typically by virtue of international investor protection treaties. Even in these instances,
there is an agreement to arbitrate between the parties. See C. Schreuer et al., The ICSID
Convention: A Commentary Art. 25, ¶¶392-468 (2d ed. 2009).
3) Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (U.S. S.Ct. 2002) (quoting Steelworkers
of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (U.S. S.Ct. 1960)); EEOC v. Waffle
House, Inc., 534 U.S. 279, 294 (U.S. S.Ct. 2002) (“Arbitration under the [FAA] is a matter of
consent, not coercion.”).
156
4) It is also possible for parties to an existing dispute, not otherwise subject to arbitration, to
agree to submit that dispute to arbitration. The agreement doing so is typically a stand-
alone arbitration agreement, often called a “submission agreement” or “compromis.” See,
for example, the model submission agreement, excerpted in G. Born, International
Arbitration and Forum Selection Agreements: Drafting and Enforcing Appendix B (4th ed.
2013); P. Friedland, Arbitration Clauses for International Contracts 112-114 (2d ed. 2007).
5) Arab African Energy Corp. Ltd v. Olieprodukten Nederland BV [1983] 2 Lloyd’s Rep. 419 (QB)
(English High Ct.).
6) Judgment of 24 January 2003, 2003 SchiedsVZ 284, 287 (Hanseatisches Oberlandesgericht
Hamburg).
7) Oriental Commercial & Shipping Co. v. Rosseel, NV, 609 F.Supp. 75 (S.D.N.Y. 1985). See also
Schulze & Burch Biscuit Co. v. Tree Top, Inc., 831 F.2d 709, 715-16 (7th Cir. 1987) (“All disputes
under this transaction shall be arbitrated in the usual manner.”); Bauer Int’l Corp. v.
Etablissements Soules & Cie., 303 N.Y.S.2d 884 (N.Y. 1969) (“Arbitration in New York”).
8) This is most likely to occur in complex transactions (such as infrastructure projects,
construction projects, or major intellectual property matters), with multiple parties and
multiple agreements, where a single, unified dispute resolution scheme is desired.
See§18.02; ICC, Multi-Party Arbitration: Views From International Arbitration Practitioners
(1991); Nicklish, Multi-Party Arbitration and Dispute Resolution in Major Industrial Projects,
11(4) J. Int’l Arb. 57 (1994); Wetter, A Multi-Party Arbitration Scheme for International Joint
Ventures, 3 Arb. Int’l 2 (1987).
Appendix C (4th ed. 2013); P. Friedland, Arbitration Clauses for International Contracts 1-3
(2d ed. 2007); J. Paulsson, N. Rawding & L. Reed, The Freshfields Guide to Arbitration and ADR:
Clauses in International Contracts 131-143 (3d ed. 2011).
10) See§5.04[D]; Eisemann, La Clause d’arbitrage pathologique, in Commercial Arbitration Essays
in Memorium Eugenio Minoli 129 (1974); Schmitthoff, Defective Arbitration Clauses, 1975 J. Bus.
Law 9.
157
Part II: International Arbitral Procedures
Publication ***
International Commercial At the heart of the international arbitral process are the arbitration proceedings and
Arbitration (Second Edition) procedures.
(1)
(2) It is the procedural conduct of international arbitrations, as much as other factors, that
Bibliographic reference leads parties to agree to arbitrate their disputes. In particular, parties agree to arbitrate in
'Part II: International Arbitral order to obtain fair and neutral procedures which are expert, efficient and capable of being
Procedures', in Gary B. Born , tailored to the needs of their particular dispute, without being bound by the formalities and
International Commercial technicalities of procedural rules applicable in national courts. (3)
Arbitration (Second Edition), In many cases, the aspirations of the parties are realized, with the arbitrators adopting
2nd edition (© Kluwer Law prompt, fair and predictable procedures, without adhering to any particular domestic
International; Kluwer Law approach to national court litigation. These procedures combine the best of different national
International 2014) pp. 1525 - procedural traditions, together with international innovations, tailored to the parties’ needs
1527 and dispute. Nonetheless, in some cases obstructionist parties, inexperienced arbitrators or
other factors can produce chaotic, arbitrary, slow, or inappropriately parochial arbitral
proceedings. The Chapters in this Part examine the procedural conduct of international
commercial arbitrations and the mechanisms which exist to ensure that arbitral procedures
are efficient, expert and fair, rather than arbitrary, slow, or parochial.
Chapter 11 examines the legal framework applicable to the arbitral proceeding and, in
particular, the importance of the “arbitral seat” and the “procedural law” of the arbitration
(also referred to as the “curial law” or “lex arbitri”). The Chapter first outlines the general
procedural autonomy accorded parties to international arbitration agreements under both
contemporary international arbitration conventions and national arbitration legislation.
Second, the Chapter summarizes the jurisdictional requirements that must be satisfied for
application of the New York Convention (and other international arbitration conventions), as
well as national arbitration legislation, to an international arbitration. Third, the Chapter
describes the concept of the arbitral seat and the issues governed by the law of the arbitral
seat, as well as the role of the New York Convention in limiting the effects of the arbitral seat’s
P 1525 law. Fourth, the Chapter addresses the procedural law of the arbitration and the various issues
P 1526 that are governed by that law. Finally, the Chapter discusses the conflict of law issues that
arise in identifying the procedural law of an arbitration, and the choice-of-law rules that have
been developed to address these issues.
Chapter 12 addresses the selection of arbitrators and constitution of the arbitral tribunal in
international commercial arbitrations. First, the Chapter discusses the number of arbitrators in
international arbitral proceedings, from both a practical and legal perspective. Second, the
Chapter addresses the parties’ autonomy to select arbitrators (or to agree upon a means of
selecting arbitrators). Third, the Chapter considers various limitations on the choice of
arbitrators, including nationality, capacity and contractual limitations or requirements. Fourth,
the Chapter considers the related topic of the impartiality and independence of arbitrators,
including under contemporary international conventions and national law, as well as under the
IBA Guidelines on Conflicts of Interest in International Arbitration. Fifth, the Chapter considers
the procedures which are commonly utilized for selecting the members of the arbitral tribunal
in contemporary international commercial arbitrations, including the role of arbitral
institutions and national courts in the selection process. Finally, the Chapter examines the
procedures for challenging, removing and replacing arbitrators, under both national
arbitration statutes and institutional rules.
Chapter 13 discusses the rights and duties of arbitrators in international commercial
arbitrations. The Chapter first addresses the duties that are owed by international arbitrators,
including discussion of the arbitrator’s contract and other legal sources of such obligations. The
Chapter next discusses the substantive content of such duties, including the arbitrators’ duties
of impartiality, diligence and confidentiality. The Chapter also addresses the rights and
protections of international arbitrators, including particularly the immunities of arbitrators.
Chapter 14 examines the selection of the arbitral seat in international commercial
arbitrations. It first discusses the importance of the arbitral seat, from both practical and legal
perspectives. The Chapter then addresses the parties’ autonomy to select the arbitral seat,
both directly and through the offices of an arbitration institution or arbitral tribunal. Finally,
the Chapter discusses the (limited) role of national courts in the selection of the arbitral seat.
Chapter 15 discusses the procedural conduct of contemporary international commercial
arbitrations. It first outlines the basic objectives and characteristics of the international
arbitral process, as compared with and distinguished from judicial procedures in national
courts. The Chapter then examines the parties’ autonomy to agree upon the procedural rules
governing the arbitration and the arbitral tribunal’s discretion to order particular procedures
(absent contrary agreement); it also considers the general principle, recognized under most
developed national laws, of judicial non-interference in arbitral proceedings. Finally, the
Chapter discusses how, as a practical matter, international arbitral tribunals treat subjects
158
such as written submissions, disclosure or discovery, hearings, evidence presentation
(including fact and expert witnesses), post-hearing submissions and the other major
procedural steps in an arbitration.
Chapter 16 examines the role of disclosure (or, as sometimes termed, discovery) in
P 1526 international commercial arbitrations. The Chapter first addresses the disclosure or discovery
P 1527 powers of arbitral tribunals under contemporary national arbitration statutes and
institutional arbitration rules. It also discusses the manner in which these powers are exercised
in practice, including under the IBA Rules on the Taking of Evidence in International
Commercial Arbitration. Finally, the Chapter considers the role of national courts in ordering
discovery or disclosure in connection with or in aid of international arbitrations.
Chapter 17 deals with the subject of provisional (or interim) relief in international commercial
arbitrations. The Chapter first explores the extent to which international arbitral tribunals are
authorized to grant provisional relief and the circumstances in which they will do so. Next, the
Chapter considers when national courts may grant provisional relief in aid of international
arbitrations (whether concurrently with arbitral tribunals or independently). Finally, the
Chapter considers the enforceability in national courts of provisional measures ordered by
international arbitral tribunals.
Chapter 18 addresses the procedural treatment of multi-party disputes in international
commercial arbitrations, including the subjects of consolidation, intervention and joinder. The
Chapter first considers when two or more different arbitrations may be consolidated into a
single arbitral proceeding. It then considers the joinder of parties, and the intervention of
parties, into an international arbitration. In each case, the Chapter addresses the treatment of
consolidation, joinder and intervention by both arbitral tribunals and national courts.
Chapter 19 examines the choice of the substantive law applicable to the merits of the parties’
underlying dispute in international commercial arbitrations. It first considers the choice of
substantive law by international arbitrators in the absence of express agreement by the
parties as to the governing law. Second, the Chapter considers the choice of substantive law
where the parties have agreed upon an applicable law, including the validity and
interpretation of choice-of-law agreements and the role of mandatory laws and public policies.
In both situations, the Chapter examines what conflict of law principles apply – both to
selecting the applicable substantive law and to determining the enforceability and meaning of
a governing law clause.
Chapter 20 deals with the confidentiality of international arbitrations and arbitral
proceedings. It examines the nature and scope of confidentiality obligations in international
commercial arbitration, including the divergent approaches that are taken on the subject in
different national jurisdictions and institutional arbitration rules.
Chapter 21 addresses the subject of representation of the parties in international arbitral
proceedings. The Chapter begins with a description of the provisions of international
arbitration conventions, national law and institutional arbitration rules guaranteeing parties
the right to representation of their choice in international commercial arbitrations
(particularly legal representation), as well as deviations from this guarantee. The Chapter also
discusses the rules of professional conduct governing legal representatives in international
arbitrations, including issues of conflict of interest, privilege, witness preparation, candor to
P 1527 the tribunal and the like. In addition, the Chapter considers issues of forum selection for
disputes regarding legal representation in international commercial arbitrations.
References
1) For commentary on international arbitral proceedings and procedures generally, see N.
Blackaby et al. (eds.), Redfern and Hunter on International Arbitration Chapters 4-7 (5th ed.
2009); M. Bühler & T. Webster, Handbook of ICC Arbitration Chapter 4 (2d ed. 2008); W. Craig,
W. Park & J. Paulsson, International Chamber of Commerce Arbitration Parts III, IV (3d ed.
2000); Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration (2d ed. 2005); E.
Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International Commercial
Arbitration Part IV (1999); A. Redfern & M. Hunter (eds.), The Law and Practice of
International Arbitration Chapters 4-7 (4th ed. 2004).
2) G. Wetter, IV The International Arbitral Process: Public and Private 288 (1979) (“arbitration as a
subject is procedure”) (emphasis in original).
3) See§15.01.
159
Part III: International Arbitral Awards
Publication ***
International Commercial The final steps in the arbitral process involve the arbitral award. Once the arbitral proceedings
Arbitration (Second Edition) are concluded, the tribunal will deliberate and make a final award, granting (or withholding)
relief on the parties’ claims and resolving their dispute. Arbitral awards are not “advisory”
recommendations; rather, awards are final and binding legal instruments, having immediate
legal effects and creating immediate rights and obligations for the parties. (1)
Bibliographic reference
With the making of the final award, the arbitral tribunal’s original mandate concludes. The
'Part III: International tribunal becomes functus officio and its remaining responsibilities, and powers, are highly
Arbitral Awards', in Gary B. circumscribed. Further actions with respect to the award, including any post-award
Born , International proceedings, are almost always matters for the parties and national courts, and not for the
Commercial Arbitration arbitral tribunal. (2)
(Second Edition), 2nd edition
(© Kluwer Law International; In practice, the vast majority of awards in international commercial arbitrations are voluntarily
Kluwer Law International complied with, without the need for post-award enforcement proceedings. Nevertheless, one
2014) pp. 2895 - 2896 (or both) parties sometimes reject the arbitral tribunal’s decisions, and refuse to pay amounts
awarded or otherwise to comply with the tribunal’s award. In these circumstances, post-award
proceedings will ensue, either challenging or seeking to enforce the award.
International arbitration conventions and national arbitration legislation provides a robust,
“pro-enforcement” legal framework governing post-award proceedings. This legal framework
permits parties to seek limited revisions of arbitral awards, in proceedings before the arbitral
tribunal to “correct” or “interpret” its award, but only in very narrow circumstances. (3) This
framework also permits the award-debtor to challenge the arbitral award, in proceedings
before the courts of the arbitral seat to “annul” or “set aside” the award, but again only in
defined and limited circumstances. (4)
At the same time, the legal framework for international arbitral awards permits the award-
creditor to commence proceedings in the courts of the arbitral seat to “confirm” or “recognize”
the award (i.e., to obtain exequatur). The successful confirmation of the award will usually
provide the basis for the entry of a judgment of the local national court based upon the
underlying award. (5) After confirmation of an award in the arbitral seat, the resulting judgment
can be “confirmed” or “recognized,” and then “enforced” in local courts in the arbitral seat,
with enforcement typically occurring in the same manner as a domestic court judgment. (6) In
addition, an award can also be taken by the award-creditor to a state outside the arbitral seat,
P 2894 to be “recognized” (and then “enforced”) in the courts of that state, without first being
P 2895 confirmed or recognized in the arbitral seat. Recognition of a foreign arbitral award occurs
in the form of a local national court judgment, which gives the award full legal force within the
local legal system (in the same manner that a foreign judgment is recognized). (7)
Once the award is recognized in a foreign state, the resulting judgment can then ordinarily be
given effect in the local courts of that state in the same manner as a judgment of that state’s
courts. This includes coercively “enforcing” the award/judgment against the assets of the
award/judgment-debtor, in accordance with local legislation and rules governing the
execution and enforcement of judgment. (8) It also includes giving the award/judgment
preclusive effect in the courts of the foreign state, presumptively in accordance with local
legislation regarding the preclusive effects of foreign awards and/or judgments. (9)
The Chapters in this Part address the status, effects and treatment of arbitral awards in
Chapter 22 discusses the legal framework applicable to international arbitral awards. It
introduces the legal effects of international awards and the post-award proceedings that are
available to correct, interpret, supplement, confirm, recognize, annul and recognize such
awards. The Chapter also examines the “jurisdictional” requirements which are applicable to
determine when the pro-enforcement legal framework of the New York Convention and
national arbitration legislation will be applicable to international arbitral awards. The Chapter
also discusses the limitations that this international legal framework places on the forums in
which actions to recognize and to annul international arbitral awards may be brought.
Chapter 23 discusses the form and content of international arbitral awards. Among other things,
the Chapter addresses the requirements under contemporary national arbitration statutes
concerning the form and publication of arbitral awards, including requirements that awards be
in writing, signed, dated, and identifying the place of arbitration. It also discusses the
requirement, in many legal systems, that international arbitral awards be “reasoned.” The
Chapter also examines the treatment of relief, costs and interest in international arbitral
awards.
Chapter 24 discusses the correction, interpretation and supplementation of international
arbitral awards. It first discusses the “functus officio” doctrine, defining the arbitrators’ limited
mandate, which terminates after making a final award. The Chapter also discusses the
circumstances in which corrections, interpretations and supplementations of awards can be
obtained under contemporary national arbitration laws and institutional arbitration rules.
160
Chapter 25 examines the setting aside or annulment of international arbitral awards. It
addresses the judicial forums in which annulment or setting aside can be sought, and the
P 2895 permissible standards for granting such relief, under both international arbitration
P 2896 conventions and leading national arbitration legislation. The Chapter also discusses the
various substantive grounds which are available for setting aside an award, as well as the legal
consequences of setting aside an award. Finally, the Chapter examines the interpretation and
enforcement of agreements providing for heightened (or reduced) standards of judicial review
of arbitral awards in annulment proceedings.
Chapter 26 discusses the recognition and enforcement of international arbitral awards. It
examines the proof of arbitral awards and the presumptive obligation of national courts, under
most international arbitration conventions and national arbitration statutes, to recognize and
enforce foreign arbitral awards. It also discusses the exceptions to this presumptive obligation
to recognize foreign awards, including on grounds of lack of jurisdiction, procedural defects,
bias of the arbitrators, public policy and nonarbitrability. The Chapter concludes by examining
the suspension of proceedings seeking recognition of foreign awards when an application to
annul the award is pending in the arbitral seat.
Finally, Chapter 27 discusses the role of preclusion in international arbitration, including
principles of res judicata and collateral (or issue) estoppel. It considers the preclusive effects
of arbitral awards, in both national court proceedings and arbitral proceedings, as well as the
preclusive effects of national court judgments in arbitral proceedings. The Chapter also
P 2896 discusses application of lis pendens principles in international arbitration. Finally, the Chapter
examines the role of precedent and stare decisis in international arbitration.
References
1) See§22.01[A]
2) See§22.01[B].
3) See, e.g., UNCITRAL Model Law, Art. 34.
4) See, e.g., UNCITRAL Model Law, Art. 33; §25.04.
5) See, e.g., UNCITRAL Model Law, Arts. 35, 36; §22.01[B][3].
6) See, e.g., New York Convention, Arts. III-V; UNCITRAL Model Law, Arts. 35, 36; §22.01[B][3].
7) See§22.01[B][5]; §26.03. As discussed below, one of the fundamental reforms of the New York
Convention was to remove the concept of “double exequatur,” which had required an award
to be confirmed in the arbitral seat before it could be recognized or enforced abroad.
Under the New York Convention, an award is capable of recognition outside the arbitral seat
even if it has not been recognized or confirmed in the arbitral seat. See§26.03[B][4].
8) See§22.01[B][6].
9) See§22.01[B][7]; §27.01.
161
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[A] Historical Development of International Arbitration Between States

[B] Historical Development of Commercial Arbitration

[C] Development of Contemporary Legal Framework for International Arbitration

§ 1.02 OBJECTIVES OF INTERNATIONAL COMMERCIAL ARBITRATION

[A] Contractual Forum Selection in International Transactions

[B] Objectives of International Arbitration Agreements

§ 1.03 INCREASING USE OF INTERNATIONAL COMMERCIAL ARBITRATION

§ 1.04 OVERVIEW OF CONTEMPORARY LEGAL FRAMEWORK FOR

[A] International Arbitration Conventions

[B] Overview of National Arbitration Legislation

[C] Overview of Leading International Arbitration Institutions and Rules

[D] Overview of International Guidelines and Harmonization

[E] Overview of Elements of International Arbitration Agreements

[F] Overview of Choice of Law in International Commercial Arbitration

[A] Leading Theories of Arbitration

[B] Future Directions: the Jurisprudential Character of International Arbitration

[A] ICCA Yearbook of Commercial Arbitration and ICC Handbooks

[B] Mealey’s International Arbitration Report

[D] Revue Arbitrage

[E] Arbitration International

[F] ASA Bulletin

[G] Collections of ICC Arbitral Awards

[H] International Legal Materials

[I] Fouchard Gaillard Goldman on International Commercial Arbitration

[J] Redfern and Hunter On International Arbitration

[K] Commentary On International Chamber of Commerce Arbitration

[L] Commentary On New York Convention

[M] Guide to the UNCITRAL Model Law On International Commercial Arbitration

[N] Domke On Commercial Arbitration

[O] Smit’s Guides to International Arbitration

[P] Awards of Iran-United States Claims Tribunal (1576)

[Q] International Arbitration Law Databases

[R] Kluwer Arbitration and Kluwer Arbitration Blog

[S] Global Arbitration Review

[T] Transnational Dispute Management and OGEMID

[U] Swedish Arbitration Portal (1584)

[V] Draft Ali Restatement of International Commercial Arbitration Law

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