Being arbitration friendly, pro-arbitration, and pro-enforcement: why the ways in which we evaluate international commercial arbitration need to change

India embraced the modern international arbitration regime towards the end of last century by reforming its arbitration law, mainly to attract foreign investment. However, the practice shows that Indian courts have been unfavourable to international commercial arbitration in contrast to the standards of international arbitration law. Against the backdrop of tremendous foreign investment commitments and a vast Bilateral Investment Treaty network by India, approach of the national judiciary towards international commercial arbitration rights of a foreign investor is highly significant. In this context, the article seeks to analyse how the investment treaty legal framework operates to make Indian courts accountable. Thus, it essentially addresses the question, whether international responsibility arising out of actions of the national courts would help disciplining the international commercial arbitration landscape in India? In response, the article claims that investment treaty arbitration regime has contributed to the reinforcement of international commercial arbitration in India. The article concludes by signalling at some of the pressing issues in the context of interplay between international investment and commercial arbitrations.

This chapter surveys the existing empirical literature on international arbitration. It seeks to be thorough but does not claim to be comprehensive. The chapter focuses on quantitative rather than qualitative empirical studies, and covers studies both of international commercial arbitration and international investment arbitration. Part I describes empirical research on the use of arbitration to resolve transnational disputes — in particular, the extent to which parties use arbitration clauses in international contracts, why they do so, and the frequency of international commercial and investment arbitration proceedings. Part II examines arbitral procedures, and Part III considers the applicable law in international commercial arbitration. Part IV looks at the demographics of international arbitrators, with emphasis on their diversity (or lack thereof), and arbitrator decisionmaking, in particular potential biases of party-appointed arbitrators, whether arbitrators make compromise awards, and the psychological aspects of arbitrator decisionmaking. Part V looks at the controversy over studies of outcomes in investment arbitrations. Finally, Part VI examines empirical studies of compliance with and enforcement of international arbitration awards, while Part VII considers their precedential effect, if any.

The author of the book outlines US common law doctrines related to international commercial arbitration. He presents the developments in the US common law jurisprudence in international commercial for two reasons: First to inform the reader regarding doctrinal transformations, and second, with hope of achieving the perfect workings of international commercial arbitration as an aspirational goal. To this end, examining the American influence on international commercial arbitration is important. The author suggests that US common law may help to overcome challenges arising out of cultural differences in international commercial arbitration. While doing so, there are important contrasting and competing principles to consider, such as party-autonomy and arbitrator discretion, which stand out as saliently competing paradigms. The author indicates that giving equal weight to these competing principles in international commercial arbitration might be a useful strategy to harmonize seemingly polar opposite propositions. The book focuses, in part, on the US common law of discovery and how it might be adopted in international arbitration to develop efficiency in such proceedings. The International Bar Association (IBA) Rules on Evidence Gathering, the Prague Rules, and the role of 28 U.S.C. §1782 in international arbitration are closely analyzed, among others, to develop alternative approaches concerning evidence gathering in international commercial arbitration. Overall, the book contributes important discussions and suggestions to the literature. Also, the text presents analyses and suggested solutions with the help of leading principles developed by US common law, which facilitates understanding these principles from the author’s perspective. While the book provides those valuable inquiries and discussions, the book review took a critical approach towards them. The authors of the review critically analyze those suggestions. The book review compares to other books that pursue a similar approach to international commercial arbitration. How justified suggestions in the book are, as well as their strong and weak points, are displayed in the review. Are all those suggestions in the book correct? It must not be forgotten that the book looks into issues from an American perspective and those suggestions are coming from US common law. However, this approach can be problematic in international arbitration. If there is a dominant legal system in international commercial arbitration, how “international” can international arbitration be? The review criticizes those contradictions and presents a comprehensive analysis of the book. The authors of this review believe that an idea can be developed if there is criticism against it. Thus, authors here offer a critical eye towards the book with the purpose of development of the ideas within the book. Acknowledging the hard work of the author of the book, the authors of the review offer some thoughts to develop the ideas in the book and to make its next edition even better. Therefore, those who are interested in learning about Martinez Fraga’s book with a critical approach can find some interesting insights from the review.

תקציר בעברית: מאמר זה מצביע על פרדוקס: למרות שישראל הינה מדינה המעורה מאד במסחר הבינלאומי, ולמרות שבוררות היא הדרך המועדפת בקהילת העסקים לפתרון סכסוכים מסחריים בינלאומיים, בפועל מתקיימות מעט מאד בוררויות בינלאומיות בישראל. התשובה לפרדוקס טמונה לדעת המחבר בעובדה שלמדינת ישראל יש חוק בוררות מיושן, הסובל ממספר פגמים מרכזיים, אבל בעיקר בעובדה שהוא חוק אידיוסינקרטי שאינו מוכר למשפטנים זרים. לפיכך מציע המחבר לאמץ את החוק לדוגמה של האום לבוררות מסחרית בינלאומית (UNCITRAL Model Law on International Commercial Arbitration). המאמר מראה כי חוק זה, המותאם במיוחד לצרכים של הבוררות המסחרית הבינלאומית, נהנה ממוניטין בינלאומי ויכול לסייע רבות בלהפוך את מדינת ישראל ליעד אטרקטיבי יותר לבוררויות בינלאומיות. המחבר מצביע על הבעיות שמהן סובל חוק הבוררות שלנו ומראה שבעיות אלו נפתרו בחוק לדוגמה ושאימוצו יתרום לשיפור וייעול של הליכי הבוררות בישראל ולהגשמת רצון הצדדים. כמו כן, הוא טוען שמעצם העובדה שחוק זה מוכר בקהילת המשפטנים בעולם העוסקים במשפט מסחרי ובבוררות בינלאומית- בהיותו מאומץ בקרוב למאה מדינות בעולם - יהיה באימוצו כדי להפוך את ישראל לשיטת משפט מוכרת לקהילה זו. המאמר גם מראה את היתרונות שיצמחו לכלכלה הישראלית ולעורכי-הדין בישראל מכך שיותר בוררויות בינלאומיות יתקיימו כאן. מדינות רבות אימצו את החוק לדוגמה לכל סוגי הבוררויות – הן בינלאומיות והן מקומיות – ובחלקו האחרון עוסק המאמר בשאלה אם כדאי גם לישראל לעשות כך. לאחר העלאת היתרונות והחסרונות של שתי האפשרויות, נוטה המחבר להמליץ על אימוצו לבוררויות בינלאומיות בלבד, תוך הכנסת תיקונים נדרשים מסוימים גם לתוך חוק הבוררות הקיים, אשר ימשיך לחול על בוררויות מקומיות. English Abstract: This article points to a paradox: Despite the fact that Israel is deeply involved in international commerce, and although arbitration is the most common way to resolve international business disputes, very few international commercial arbitrations are seated in Israel. The explanation to this paradox, in the author’s view, is that Israel has an outdated arbitration law that suffers from several flaws, and in particular, that it is an idiosyncratic law with which foreign lawyers are not familiar. Therefore, the article suggests that Israel should adopt the UNCITRAL Model Law on International Commercial Arbitration. It argues that the Model Law enjoys an excellent reputation within the international arbitration community and can help much in making Israel a more attractive seat for international arbitrations. The author points to the flaws of Israel’s existing arbitration law and shows how the Model Law has fixed these flaws. He also argues that since the Model Law is well known among the world’s international business and arbitration lawyers – having been adopted in almost one hundred different jurisdictions in the world – by adopting it, Israel can turn its arbitration law into a familiar legal system for those lawyers. The article also points to the benefits that will accrue to the Israeli economy and to Israeli lawyers from the increase in the number of international arbitrations seated in Israel. Many countries have adopted the Model Law for both international and domestic arbitration, so in its last chapter, the article deals with the question of whether Israel should do the same. After raising the pros and cons of the two options in this regards, the author leans towards the option of adopting the Model Law only for international commercial arbitrations, while making necessary amendments to the existing law, which will continue to apply to domestic arbitrations.

This October 1988 sees the start of the Diploma in International Commercial Arbitration at the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary College, University of London. The Diploma is the first course of its kind, anywhere in the world, dedicated to providing a post-graduate course in international commercial arbitration. It is hoped that the Diploma will not only provide an understanding of the practical problems of international commercial arbitration, but will provide a stepping stone to the professional becoming involved in international commercial arbitration. It is the aim of the School of International Arbitration, established in 1985, to develop educational programmes at the post-graduate level for those involved with international arbitration, whether as arbitrators, counsel, or expert witnesses, as well as to participate in areas of research which affect international arbitration. The Diploma is the first course of the school dedicated only to training lawyers and other professionals to participate in international commercial arbitration. Arbitration has now been taught as part of the London University intercollegiate Master of Laws programme for three years. There has been, in recent years, an enormous expansion in the use of arbitration, as a mechanism of dispute settlement in international commercial transactions. No-one really knows how many international arbitrations are held every year: the Court of Arbitration of the International Chamber of Commerce has in excess of 400 new cases every year; the specialist commodity institutions in London, including maritime arbitration, have many thousands of arbitrations in different centres. Other institutions, eg, the London Court of International Arbitration, the Stockholm Chamber of Commerce, the American Arbitration Association also have increasing case loads. Certain specialist tribunals, like the Iran/US Claims Tribunal in The Hague, contribute to the international arbitral case load, as do the many unchartered ad hoc arbitrations. The problem is …

International arbitration is a solution to resolve disputes between persons due to the existence of a communication element International is distinguished from national arbitration rules.International title on international arbitration may make this impression that International arbitration is a nascent institution, while a review of past literature reveals that It has been an institution of the past. Therefore, national arbitration is different from international arbitration. What factors This article examines the factors that lead to the internationalization of arbitration.Normally, in any case, the slightest communication factor may cause conflict of laws, This highlights the need for international commercial arbitration .For this reason, the UNCITRAL Model Arbitration Law has introduced a large number of communication factors that are subject to international arbitration for countries.However, in Iranian law, the distinction between national arbitration and international arbitration, contrary to the UNCITRAL Model Law, is achieved simply by the International Commercial Arbitration Law of Iran and simply by having different nationalities of the parties.In other words, the legislator has introduced citizenship as the only communication factor that causes the inclusion of Iran's international commercial arbitration law.This causes most arbitrations to be subject to national arbitration so that the parties have limited freedom and cannot use the rules of international commercial arbitration even by mutual agreement.In this article, the factors that are based on the model law The internationalization of arbitration has been examined and their non-inclusion in commercial arbitration regulations Will be examined internationally and then interact with the Convention on the Recognition and Enforcement of Arbitral Awards New York 1985 will be analyzed. Keywords : International Arbitration, National Arbitration, foreign Arbitration, Communication Elements. DOI: 10.7176/JLPG/110-14 Publication date: June 30 th 2021

The revised and expanded second edition of Gary Born's treatise Commercial provides detailed commentary, case analyses, and practice pointers. With full annotations and footnotes for research assistance, and analyses that identify and discuss critical issues, it should be a valuable guide to the actual practice of international commercial arbitration anywhere in the world. Among other things, Commercial Arbitration, Second Edition, examines the procedural aspects of international arbitration in contemporary practice; provides excerpts of representative international arbitral awards and national court decisions; and makes abundant reference to leading institutional rules as they are brought to bear on specific fact situations. It discusses in detail all leading international practices and legal sources relating to international commercial arbitration, including the New York and Inter-American Conventions, the UNCITRAL Model Law and other national arbitration legislation, and all leading institutional arbitration rules. It also expands and updates the First Edition's authoritative treatment of international arbitration by U.S. and other national courts. Divided into three parts - international arbitration agreements, international arbitral procedures, and international arbitration awards - the treatise explores each topic in detail, dealing with both legal and practical issues under leading international and national legal regimes. Through excerpts of key court decisions and detailed analysis, it thoroughly covers the role of U.S. courts in enforcing international arbitration agreements under the Federal Arbitration Act, providing a guide to the enforceability of international arbitration awards in U.S. courts and the role of U.S. courts in granting provisional remedies, selecting arbitrators and arbitral situses, ordering discovery, and otherwise providing judicial support for the international arbitral process. Appendices reproduce commonly-used materials essential for practitioners, including the New York and Inter-American Conventions, the Geneva Convention of 1961, the UNCITRAL Model Law, the Federal Arbitration Act, the Swiss Law on Private International Law, leading institutional arbitration rules (including the ICC, AAA, LCIA, and UNCITRAL Rules), and the IBA's Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration and Ethics for International Arbitrators.

THE LANDMARK case of Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. ,1 raised and decided, at least as a matter of the law of the United States, the question of the arbitrability of antitrust claims. In the judgment of the European Court of Justice in the Eco Swiss case, appropriately named, one can hear an echo of Mitsubishi : ‘Anticompetitive conduct is subject to arbitration’. This article does not attempt to present any detailed analysis of the proceedings in the European Court of Justice or in the Dutch courts where the arbitral award was challenged. These matters are ably discussed by Professor Allan Philip in the paper referred to below.2 The purpose of this article is rather to discuss the lessons that are found in the Eco Swiss judgment and the Mitsubishi case for the conduct of international commercial arbitrations in respect to which anticompetitive or antitrust laws are implicated. Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc. , was decided in 1985 by a five to three vote of the Justices of the Supreme Court. In 1986 the Brooklyn Law School held a Symposium on ‘The Future of Private International Arbitration: Beyond Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc.’ (hereinafter ‘The Future of Private International Arbitration’). At that Symposium, I presented a discussion ‘From Vynior Case to Mitsubishi: The Future of Arbitration and Public Law’.3 The decision of the Supreme Court was a watershed in international commercial arbitration. For the first time, our highest court conferred upon a private system of dispute resolution — international commercial arbitration — not only the power but the duty to adjudicate civil antitrust disputes. In my presentation to the Brooklyn Law School Symposium, I summarized the Court's decision: > The Court rebutted the argument that the public interest involved in the private enforcement of …

With the tremendous growth in international trade and investments, international commercial arbitration has become a frequently used mechanism to settle investment/trade/contractual disputes. Most people are of the opinion that resolution of dispute by litigation in court is time consuming and money consuming whereas arbitration may speed the resolution and lower the expenses of disputes. However to ensure the integrity of the arbitral process and protect the public interest, the courts must support and supervise that process. On the other hand, to prevent the confidence of users of the arbitral system from being damaged, the level of judicial control should not be too high. The debate in international commercial arbitration is what scale of judicial intervention should be allowed. While it is argued that arbitration must be free from courts, in order to be effective, it is also accepted that arbitration needs the support of national courts to be effective. Flowing from this contention laws and rules has been formulated to balance the competing interests. In this paper, the author discusses the key features of international commercial arbitration, theories behind judicial intervention in international commercial arbitration and the role of domestic courts on the major concepts of international commercial arbitration such as; arbitration agreement, the concept of arbitrality, seperability, competence-competence, assistance in taking evidence and, recognition and enforcement of arbitral awards by court without which the arbitral process cannot hold. The author concludes that the increasing growth in international trade and investments require the presence of active international commercial arbitration to settle disputes but since arbitration is private in nature, parties need courts to enforce the arbitration agreement and enforce arbitral awards. That there is need to sensitize domestic courts to support the arbitral process, without which arbitration will remain ineffective, particularly in developing economies.

The article is dedicated to the study of the legal aspects of the procedure for obtaining evidence at the request of the International Commercial Arbitration Court through national courts. The procedure for submitting evidence in international commercial arbitration depends on the rules agreed upon by the parties in the arbitration agreement, as well as the applicable procedural norms of the arbitration institution (e.g., UNCITRAL Rules, ICC, LCIA, etc.). However, there are general principles and stages that are characteristic of most arbitration processes. The participation of national courts in relationships arising in connection with arbitration proceedings is implemented through the exercise of certain functions by the judiciary within the established scope of interaction. It has been determined that the primary goal pursued by the state, by granting national courts the authority to perform functions of assistance and control, is an interest in the implementation of the international commercial arbitration jurisdictional function. These circumstances ensure the effectiveness of arbitration proceedings and their attractiveness for the disputing parties. The general rules for submitting evidence and the powers granted to international commercial arbitration are highlighted, which include the authority to determine the admissibility, relevance, materiality, and significance of any evidence. It is concluded that the general rule is that the international arbitration court has the right to require the parties to submit evidence, as well as the right to request evidence from third parties, which the arbitration tribunal deems necessary for the resolution of the dispute. It is noted that an effective way to obtain the requested evidence is provided by Article 27 of the Law of Ukraine «On International Commercial Arbitration,» which allows the arbitration court to apply to the national court for assistance in obtaining evidence by way of a request for evidence. It is argued that the court’s assistance in obtaining evidence within the context of Article 27 of the Law of Ukraine «On International Commercial Arbitration» should only be considered in the possibility of requesting evidence by the court in accordance with Article 84 of the Civil Procedure Code of Ukraine. The request for evidence, as part of the institution of evidence preservation, in accordance with part 7 of Article 116 of the Civil Procedure Code, is not a form of court assistance to international commercial arbitration, which involves not only obtaining evidence relevant to the subject matter of the case and important for its resolution, but also primarily a way to prevent its potential loss in the future.

Under the background of social change and the great development of "Belt and Road" policy, China's international commercial arbitration is facing a higher level of development needs. In order to solve the existing problems, draw on the experience of the world's advanced international arbitration centers, improve the concept of arbitration, and improve the level of arbitration services, China should take the goal of building a China international commercial arbitration center comparable to the world-class level, and constantly explore the development path of arbitration. This paper analyzes the present situation and trend of international commercial arbitration in China, discusses the connotation and value of China international commercial arbitration center, put forward from government relations, institutional development, system architecture, modernization can assign four aspects to improve the arbitration center construction scheme, and innovatively put forward the horizontal and vertical two lines and special assigned to the development of the framework. Accordingly, China's international commercial arbitration system should be continuously improved, the credibility and discourse power of China's international commercial arbitration should be enhanced, and China should build an international arbitration brand with Chinese characteristics.

PurposeParty autonomy is a core tenet of the arbitral process which bestows certain contractual freedoms upon the disputing parties. This paper aims to utilise both doctrinal analysis and theoretical conceptualisation to examine the principle of party autonomy in international commercial arbitration. It examines the extent to which certain exceptions to this principle, such as public policy and natural justice, where autonomy impedes on matters of justice and delocalisation, have restricted the principle in practice.Design/methodology/approachParty autonomy is a core tenet of the arbitral process, which bestows certain contractual freedoms upon the disputing parties. However, in spite of its appeal as an unfettered right, it has been challenged by an array of exceptions that have rendered it largely unqualified in international commercial arbitration. This paper utilises both doctrinal analysis and theoretical conceptualisation to examine the principle of party autonomy in international commercial arbitration. It examines the extent to which certain exceptions to this principle, such as public policy and natural justice, where autonomy impedes on matters of justice and delocalisation, have restricted the principle in practice. Furthermore, approaches to party autonomy in two distinct legal systems, the Common law system in England and Sharia law in Saudi Arabia, are examined to ascertain the extent to which party autonomy has been hindered by these exceptions.FindingsArbitration continued to grow throughout the forgone centuries, with key philosophers, such as Aristotle, advocating the advantages of arbitration over litigation. In addition, the emergence of party autonomy occurred in the sixteenth century, with Dumoulin proposing that the parties’ will in contracts is sovereign. Thus, party autonomy began to develop into a significant aspect of contract law, which plays a pivotal role in arbitration. This is because the principle has its roots in the autonomous will of the parties to conduct the arbitral process as they wish. The paper explored the debate regarding party autonomy and its development into the contemporary world of arbitration. It examined its origins and how it has grown into the core fabric of arbitration today. Emphasis was provided in relation to the nature of the principle, which was highly relevant to the debate. This is because it is vital to appreciate issues such as freedom of contract to have a deeper insight into the principle and what it entails. The limitations of party autonomy were extensively examined, and the public policy exception was found to construe narrowly by a vast number of States. As a result, it was suggested that the exception should be more than merely a theoretical defence. Thus, it should be exercised where enforcement of an arbitral award would disregard unjust or improper results. Furthermore, the natural justice principle was observed as a double-edged sword that protected the parties in the arbitral process. However, it also hampered the effectiveness of party autonomy by impeding upon the parties’ freedom to contract, which ultimately limited the principle. Thus, it is concluded that the principle of party autonomy is not absolute. While it would be desirable if it was, certain issues cannot be resolved so easily. Limitations to party autonomy have existed since its inception and are most likely to continue. Although this is not the ideal situation for proponents of autonomy, it nevertheless appears to be the case. However, it is proposed that limitations to party autonomy should be chipped away as much as possible. This would enable the autonomy of the parties to be upheld at a much higher rate.Originality/valueThis paper utilises both doctrinal analysis and theoretical conceptualisation to examine the principle of party autonomy in international commercial arbitration. Secondary sources were also used.

The UNCITRAL Model Law on Arbitration was adopted by the United Nations on 11 December 1985 as a recommendation to the states that they take account of it when changing existing or enacting new legislation dealing with international commercial arbitration. Meanwhile, this recommendation has been followed by an increasing number of nations, including, e.g. Canada (‘Commercial Arbitration Act’ dated 17 June 1986), Australia (‘International Arbitration Amendment Act 1989, in force since 12 June 1989) and some US States.1 In Europe, the Model Law has been adopted as a pattern for modern arbitration acts only in a few countries: Bulgaria (‘Law on International Commercial Arbitration’, dated 29 July 1988), Cyprus (‘The International Commercial Arbitration Law’ of 1987), the Russian Federation (‘Law on International Commercial Arbitration’, dated 7 July 1993) and Scotland (‘Law Reform (Scotland) Act 1990, section 66, Schedule 7, in force since 1...

Although empirical knowledge about the process of international arbitration and its effectiveness is incomplete, a growing number of empirical studies are being published. By expanding the degree of empirical knowledge about international commercial arbitration, these efforts should benefit all those involved in the arbitration process: parties, practitioners, and arbitrators, not to mention policy-makers and academics. This article outlines the current state of affairs by surveying the existing empirical literature on international commercial arbitration. Part II of the article discusses the sources of data on international arbitration; Part III summarizes many of the existing empirical studies on international arbitration; and Part IV suggests possible experimental research on arbitral decision-making.

In this article, the authors describes the concept of the principle of confidentiality in international commercial arbitration, its history, its legal description, comparative legal analysis, and issues related to the practical aspects of the application of these cases. In addition, it analyzes the scope of documents and persons related to the principles of confidentiality and inviolability and identifies the problems of maintaining confidentiality in the practice of international commercial arbitration. It pays special attention to the interrelationship between the principle of privacy and the interests of the state. Also, it gives a number of proposals aimed at eliminating existing shortcomings in the legislation on these cases. The purpose of the research work is to identify the participants in the arbitration proceedings, including exploring the scope of confidentiality that is binding on the parties and their representatives, the arbitral tribunal, arbitral institutions, and third parties such as witnesses and experts. The presumption of confidentiality exists in international commercial arbitration. However, case law is inconsistent regarding the purpose of arbitration and its interaction with confidentiality. This study focuses on the concept and function of confidentiality in relation to international commercial arbitration. The subject of the research work is the legal significance of the application of the principle of confidentiality in international commercial arbitration in the arbitration process, as well as international conventions on international commercial arbitration, national and foreign experience, judicial practice, theoretical knowledge, research, conceptual approaches, problems, and the scientific and theoretical views used in their study.