Evidentiary Rules in International Arbitration – A Comparative Analysis of Approaches and the Need for Regulation

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.

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.

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.

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 …

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.

IT HAS been said about the determination of privileges in international commercial arbitration that ‘[t]he only thing that is clear is that nothing is clear in this area’,1 that the law of evidentiary privileges in international arbitration is ‘substantially unsettled’2 and that ‘there is very little authority addressing how international arbitrators should proceed when presented with a claim of privilege’.3 In spite of these uncertainties, or because 4 of them, international arbitral tribunals have been facing an increasing number of claims of privilege in recent years. Arbitral practice and legal doctrine mention three reasons why legal issues related to privilege determination in international arbitration are regarded as diverse, complex and disputed: 1. the nature and concept of evidentiary privileges is different in civil law and common law; 2. there are essential differences in the qualification of privileges as substantive or procedural matters in common and in civil law; 3. there are no established conflict-of-laws rules for the determination of the law applicable to privileges in international arbitration. However, there is not only agreement on differences but also on two basic policy considerations. They form the bottom line of any discussion on the treatment of evidentiary privileges in international arbitration. First, international arbitrators should accede to an appropriate privilege objection raised in good faith.5 Secondly, the need for legal certainty and predictability and the need to safeguard the parties’ legitimate expectations as to the application of a certain privilege standard is particularly strong in this field of law because ‘[p]arties rely on privileges’6: > Parties are likely to be surprised, to say the least, to learn that their agreement to arbitrate could have the effect of imposing on them a general obligation to disclose all relevant documents including internal communications and legal advice which would not be subject to …

This dissertation provides an analysis of the scope and procedure of obtaining documents from the opponent in international commercial arbitration. The goal of this research is to provide an in-depth study of the myriad of detailed questions regarding the procedure and scope of obtaining document production which goes beyond analyzing the differences between common law and civil law practices and takes an international commercial arbitration perspective. The primary aim, however, is not to supply definite answers, but rather to present possible best practices by, for example, discussing various approaches and problematic areas of the topic and also providing the reader with awareness of different aspects that should be taken into account when dealing with document production. To reach this aim, the method of legal dogmatics is predominantly employed. The core of this research is in the interpretation and systematization of international arbitration sources, especially soft law, which provide detailed guidance regarding document production, against the background of legal principles of arbitral procedure. The challenge of conducting research regarding document production is that procedural timetables, document requests, objections and procedural orders are confidential. However, the author of this dissertation had the rare opportunity to research files of ICC cases and anonymized examples from the chosen cases serve as valuable source regarding international arbitration practice. The research is divided into five substantive chapters. In Chapter 2, the framework for document production is discussed. In Chapter 3, the procedure and requirements of the request for documents is analyzed. Here im-portant questions are considered, such as what is the basis of a party’s right to obtain documents, how to delimit a narrow category of documents, what is meant by relevance and materiality, can a party request documents relating to issues it does not have the burden of proving and also when are the documents considered as being in a party’s control. In Chapter 4, the attention turns to the possible bases for an objection to a document request, such as privilege, confidentiality, data protection, unreasonable burden of production etc. Chapter 5 contains analysis of the questions connected to the actual production, including the tribunal’s order to produce or dismiss a production request, the form of production and the consequences of non-compliance, i.e. adverse inferences and financial consequences. In Chapter 6, the issue of national courts’ assistance in obtaining documents from the opponent is addressed. The detailed results of the analysis are presented throughout this dissertation and the significance of this research is in the discussion of the specific questions. Nonetheless, on the basis of the conducted study certain key find-ings are also drawn. First, the research shows that many issues can be resolved on the basis of balancing principles of international commercial arbitration. Consequently, there is no need for more regulation. Arbitration needs to remain flexible. Predictability should not be achieved on the level of arbitration rules and soft law, but in specific arbitration proceedings. Second, there are important legal implications relating to production of electronic documents and participants of the arbitral process need to be aware of them. Third, arbitrators are very cautious when making decisions as to not violate possible due process or public policy requirements. In fact, only one arbitral award has been set aside due to a reason connected to a document production question. Finally, with respect to many questions regarding the scope and procedure of document production, one can refer to an international commercial arbitration approach.

National courts operate with a sophisticated set of rules governing what evidence can and cannot be introduced in court proceedings. However, unless the parties in an international arbitration agree to follow a particular set of evidentiary rules, they are generally inapplicable. Usually the applicable ‘rule’ in an international arbitration is that the tribunal has broad discretion to determine what evidence it should hear. The tribunal admits most or all of the evidence offered by the parties and then determines what weight, if any, should be given to particular pieces of evidence. Because of this practice, we submit that the critical challenge for the advocate in an international arbitration is to develop a strategy for presenting and submitting evidence that will persuade the members of the tribunal – recognizing that the art of persuasion in this context often involves the complicated process of presenting the evidence in a way that will appeal to arbitrators from several different cultures and legal traditions. In pragmatic terms, the strategic advocate needs to realize and balance the interplay between a variety of factors that arise in an international arbitration. The advocate must remember that the various international arbitration rules generally do not provide clear guidelines for the presentation of evidence and give the arbitral tribunal broad discretion in conducting the proceedings and determining admissibility. Moreover, although witness testimony can at times be powerfully persuasive, civil and common law lawyers have markedly different approaches to the credibility of written versus oral testimony. Part II of this article discusses the various methods for presenting evidence. Part III discusses current issues regarding admissibility, and Part IV discusses the challenges regarding the burden of proof in an international arbitration. Lastly, Part V discusses the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (“IBA Rules”), which are becoming a significant reference point, if not adopted in full, in most international arbitrations. In the end, however, it is the advocate who must mold the strategic game plan to the arbitration at hand to obtain the best results.

This chapter surveys the existing empirical literature on international arbitration. It focuses on quantitative rather than qualitative empirical studies, and covers studies both of international commercial arbitration and international investment arbitration. The chapter first 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. Empirical studies have also examined an array of topics about the procedures in international arbitration. The empirical evidence typically comes from surveys or observational studies of commercial and investment arbitration proceedings. The chapter then considers empirical insights on selected topics such as the cost and length of arbitration proceedings, the size of arbitral tribunals, interim measures, multi-party disputes, challenges to arbitrators, the role of tribunal secretaries, and the use of mediation. It also looks at empirical studies on the applicable law in international commercial arbitration; the demographics of international arbitrators; and compliance with and enforcement of international arbitration awards.

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

Confidentiality is one of the most controversial issues in international commercial arbitration. On the one hand, it is widely recognized that confidentiality is an important advantage of arbitration which contributes to its attractiveness. On the other hand, there is no uniform regulation in national legislations, arbitration rules, and other relevant sources as to the scope or even to the existence of a duty of confidentiality. Despite ail the uncertainty, however, confidentiality has long been considered an inherent feature of international arbitration. In addition, since arbitral hearings are traditionally held privately and arbitral awards are published only sporadically (in contrast with court proceedings and court judgments), there have been no reasons in the past to believe that arbitral proceedings were not confidential. And then in 1995, the High Court of Australia in Esso/BHP etc. v. Plowman rendered a decision that came as a shock for most of arbitration scholars and practitioners. In this case, the Australian Supreme Court held that unless the parties had specifically agreed on a confidentiality provision, there was no obligation of confidentiality regarding the information obtained in the course of the arbitration, and that such information could thus be disclosed to third parties. Since the Australian Esso case, there has been much debate on the issue of confidentiality. However, the analysis I have done in my thesis has shown that not ail aspects of confidentiality are controversial. The main two controversial issues are i) the parties' implied duty of confidentiality and ii) the publication of arbitral awards. In my thesis, I have tried to demonstrate that a consensus is possible on both issues and proposed a solution so that a uniform approach to confidentiality could be adopted in most if not ail jurisdictions. My proposai is to introduce a rule on confidentiality into national arbitration laws. First, if a rule on confidentiality is contained in national arbitration law, this will put an end to the debate on the existence of an implied duty of confidentiality. There would be a specifie provision having a binding legal effect on ail persons involved in arbitration proceedings. Second, unlike provisions on confidentiality in arbitration rules, provisions on confidentiality in national arbitration laws would apply to ail arbitrations as every arbitration will necessarily be governed by some national law. Third, institutional arbitration rules have a binding effect only on the parties, on the arbitration institutions, and on arbitrators. National arbitration laws, as the lex arbitri, would also have a binding effect on counsel and on third parties, such as fact and expert witnesses, third party funders, interpreters, and court reporters. In the meantime, as long as confidentiality has not become the universally recognized rule in international commercial arbitration, I recommend that parties seeking predictability on the issue of confidentiality enter into a tailor-made agreement or adopt institutional rules containing provisions on confidentiality of arbitration proceedings. As long as the law governing an arbitration does not contain mandatory provisions on confidentiality, the parties' agreement will always prevail. 11 octobre 2018 As to publication of arbitral awards, some legal scholars argue that confidentiality of arbitration is not compatible with the general tendency towards transparency and that confidentiality contradicts the principle of openness of court proceedings. In my opinion, confidentiality should not be an obstacle to publication of arbitral awards if the parties give their consent and even without the parties' consent, if the awards are published in such a form that the parties cannot be identified. This last approach has already been adopted by some arbitration institutions, such as Milan Chamber and Vienna International Arbitral Centre, which allow publication of sanitized arbitral awards even without the parties' express agreement. I argue for a systematic publication of arbitral awards as this would help, in particular, to create consistent arbitral case law, improve the quality of arbitral awards, promote arbitration as a dispute resolution method and enable users to make a more informed decision when choosing an arbitration institution and appointing an arbitrator. In my thesis, I am taking a pro-confidential approach, but I am not for an absolute confidentiality. The confidentiality obligation should be subject to certain exceptions. The purpose of maintaining confidentiality would be to protect primarily the parties from undesirable leaks that can be avoided and to protect arbitration as an institution. As to a systematic publication of arbitral awards without identifying the parties' identity, it is desirable and should be the goal.

This article is dedicated to the study and disclosure of the legal essence of international commercial arbitration as a legal phenomenon representing an alternative method of resolving international commercial disputes. It highlights the growing popularity of arbitration among participants in foreign economic relations and the expanding jurisdictional scope of arbitration. Various approaches to defining the essence of this legal phenomenon have been explored, and three main aspects of it have been identified: (1) as a permanent or ad hoc arbitral body tasked with resolving international commercial disputes; (2) as a procedure (mechanism, process) for dispute resolution in accordance with arbitration rules established by the arbitral tribunal or agreed upon by the parties; and (3) as a specific panel of arbitrators who resolve a particular dispute, appointed or selected according to the procedure agreed upon by the parties, authorized to resolve the dispute on the merits and render an arbitral award. The article explores concepts related to international commercial arbitration, such as «arbitration», «commercial», and «international arbitration». It clarifies the conceptual correlation between international commercial arbitration and arbitral tribunals, as well as the term «international arbitration,» which should be distinguished from one another. The article identifies terminological discrepancies in the definitions of «arbitration», «arbitral tribunal», «arbitral institution» and «arbitration court» in Ukrainian national legislation compared to equivalent terms in international law, such as «arbitration», «arbitral tribunal» and «arbitral institution». Additionally, the subject matter and parties involved in legal relations that may be referred to arbitration are analyzed. The essential characteristics of arbitration are outlined, and a new definition of international commercial arbitration is proposed, considering both the approach of current Ukrainian legislation and the requirements of international law. The advantages of arbitration as an alternative dispute resolution method compared to litigation in national courts are highlighted. These advantages include the flexibility of available arbitration types and institutions, the possibility of appointing a competent arbitrator who may be a specialized expert in a particular field without necessarily being a lawyer, the confidentiality of arbitration proceedings, the speed and efficiency of dispute resolution, the finality and binding nature of arbitral awards, and the extraterritorial enforceability of such awards. The article also addresses challenges in the regulation and practical application of arbitration.

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.

SOUTHEAST ASIA used to be a blank space on the international arbitration map. In recent years serious efforts have been undertaken in the region to establish a suitable infrastructure for international commercial arbitration. This article will take a closer look at Singapore's, Hong Kong's, Malaysia's, Indonesia’s and Thailand’s move into the international arbitration arena. In the present context, international commercial arbitration is differentiated from national arbitration and understood as a separate phenomenon having emerged in the wake of increased international commerce.1 It is an expression of the internationalization of business. As the concept of international arbitration is alien to the inherited colonial arbitration laws, these have been left behind in Southeast Asia’s move into the international arbitration arena. Three areas are singled out that will – at the end of the day – decide on the success of Southeast Asia’s efforts to become respected international arbitration venues. They concern the modernization of the regional leges arbitri , the establishment of regional arbitration centres and the nurturing of a regional international arbitration community. Not all countries have adopted the same policies in pursuing these goals. Hong Kong and Singapore, the two arbitration success stores of Southeast Asia, have adopted a radically service-orientated approach. They have modern arbitration laws and provide professional arbitration services. Hence, they self-consciously claim their share of international arbitration business. Malaysia, Indonesia and Thailand are not so advanced but are nonetheless moving into the international arbitration arena. This article will first introduce the colonial arbitration laws, then examine the internationalization of arbitration and the advent of this concept in Southeast Asia. Thereafter the process of establishing a modern infrastructure will be scrutinized. The colonial powers imposed their legal systems in Southeast Asia. Thailand, never subject to colonial rule, adopted a western legal system voluntarily. The legislative imports …

The development in the practice of international commercial arbitration, it appears, is such that a convergence is emerging in terms of procedural similarities, practice of arbitral tribunals, and judicial approaches in setting aside and enforcing cases, irrespective of the legal seat. This has in turn molded the expectations of users and hence the revision and updating of institutional arbitration rules and national laws to meet these expectations. At the risk of stating the obvious, there are two universal and overarching principles that underpin the legality and efficacy of international commercial arbitration--parties' consent and the New York Convention, which may be aptly described as the constitutional framework of international arbitrations, for without them, the system of international commercial arbitration would not exist nor would its use be on the ascent. The other factor that gives international commercial arbitration its efficacy is the practice generally adopted by the experienced arbitrators in dealing with procedural, jurisdictional, or substantive (where awards are published) issues. This practices does not in any way form binding precedents or have formal jurisprudential weight, but decisions have strong persuasive effects in shaping subsequent decisions on similar issues by others, and some may argue that they will eventually form a system of customary laws. Through exchanges in international forums and discussions, experiences are shared (on an anonymous basis, needless to say) and the practice adopted can be criticized, enhanced, and gradually formulated systematically into These norms have, it is submitted, two further far-reaching effects. First, they create an expectation in the users about how issues would generally be dealt with, and in turn reinforces the adoption of such norms. Second, they create the basis on which institutional arbitration rules are updated and national arbitration laws revised. The third important element to the institution of international arbitration is the legal seat itself. The importance of the choice of seat in relation to the process of arbitration itself is perhaps somewhat overstated. The convergence of arbitration laws (manifested generally through the adoption of the UNCITRAL model law), and institutional rules and practice of tribunals in international arbitrations have rendered the differences in the arbitration process in different seats less significant. Yet the distinction in the national laws on recourse against awards and judicial approaches to the same remains significant, and it is that which, it is submitted, ought to be the consideration for the choice of the seat. There are generally three types of approaches in respect of recourse against awards: UNCITRAL model law jurisdictions such as Hong Kong where the only recourse is to set aside on basis of procedural defects; England and Wales where, apart from setting aside on procedural defects, the court also retains a right to confirm, set aside, or vary an award if it contains an error of law, irrespective whether it is a domestic or international award; and jurisdictions which make a distinction between domestic and international arbitrations, such as in mainland China and Singapore, where international awards can only be set aside on procedural grounds, and domestic awards can be reviewed by a national court on errors of law. The choice of seat may therefore depend on whether a party prefers the preservation of the correctness of the substantive law and its jurisprudential development by the national courts of the seat, or simply prefers finality of awards. The factors identified above interact to enhance and reinforce the convergence of the system of international arbitrations. Some examples and comments are set out below. In Plakito Inv. Ltd. v. Klockner East Asia Ltd., (1) the CIETAC tribunal received a tribunal's expert report and relied on it to render an award without giving the parties an opportunity to view or comment on it. …