International Arbitration and Transparency

This entry examines whether the existing transparency gap between the investment treaty arbitration and international commercial arbitration regimes should be maintained, considering three factors: (i) the nature of the public interest, (ii) the role of confidentiality, and (iii) the role of party autonomy. The author concludes that the transparency gap should - as a general matter - be maintained. Although the public interest in particular international commercial arbitration cases can be significant - most notably in cases involving state entities or statutory claims - on a systemic level the public interest in international commercial arbitration contrasts sharply with investment treaty arbitration, where cases consistently involve state entities and challenges to government measures. Equally important, two cornerstones of international commercial arbitration also support the existing transparency gap: (i) the availability of discreet and dispassionate dispute resolution, made possible by confidential proceedings, and (ii) the primacy of party autonomy. But with respect to the public availability of arbitral awards, the author concludes that the transparency gap should be narrowed significantly, given larger developments regarding international commercial dispute resolution and public access to decision-making.

INTRODUCTION A central question about the emerging system of international arbitration is whether we are likely to witness growing uniformity and convergence or increasing specialization and divergence. In addressing this question, I am going to focus on the growing divergence between commercial and investment arbitration, which I believe is occurring due to differences in the fields' substantive law and professional communities. In doing so, I will focus on two phases: where we have come from and where we are heading. WHERE WE HAVE COME FROM Investment treaty arbitration grafts public international law (as a matter of substance) onto international commercial arbitration (as a matter of procedure). It has also historically married two professional communities, one coming from the world of inter-state dispute resolution and the other from private contractual arbitration. The fact that investment and commercial arbitration involve similar, and sometimes identical, dispute resolution procedures has led many to see them as two sides of the same coin. But the influence of public international law qualifies this approach. First, investment and commercial arbitration differ in their applicable substantive law. Commercial arbitration is typically characterized by an emphasis on private law, private contracts, and private parties. Even when states take part in commercial arbitration, they are generally understood to be acting in their private capacity. Investment treaty arbitration, by contrast, involves public international law rather than private law, treaties in addition to or instead of contracts, and states acting in their public capacity as sovereigns (which enter into treaties) and regulators (which govern populations). These substantive differences have, in turn, led to procedural divergences between investment and commercial arbitration. As investment treaties typically have similar provisions and investment awards often become public, investment treaty arbitration has developed a robust system of quasi-precedents, with the citation to and analysis of previous awards becoming a routine feature of investment pleadings and awards. The public interest in investment treaty arbitration has also led to procedural tweaks, such as the publication of many awards and some pleadings, as well as the opening of certain hearings and the participation of amici. In terms of professional communities, many advocates and arbitrators cross-specialize in investment and commercial arbitration, while others cross-specialize in inter-state dispute resolution and investment arbitration. As the investment treaty field has undergone a process of professionalization, an increasing number of arbitrators have been drawn from private practice rather than from, for instance, the ranks of ex-judges from Western states. However, a significant minority has always come from academia and public international law, much more so than in commercial arbitration. The profile of arbitrators has important effects on how the investment treaty field is developed because people with different professional backgrounds often approach the system in different ways. While some arbitrators are truly bilingual in public international law and international commercial arbitration, most have a pronounced mother tongue. Although any analysis of the connection between one's background and one's approach involves stereotyping and will be subject to exceptions, some broad trends can be discerned: * Arbitrators with a background in public international law often focus on the interstate treaty basis of the system; the intention and wishes of the treaty parties; how the system is embedded within a broader framework of public international law; and the importance of individual decisions contributing to a growing body of jurisprudence. * Arbitrators with a background in international commercial arbitration, by contrast, often focus on the investor-state dispute resolution relationship; the equality and autonomy of the disputing parties; the significance of commercial expectations; and the importance of deciding the particular case rather than contributing to a broader system. …

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 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards forms the foundation of the modern system of international commercial arbitration. However, it contains no dispute resolution procedure of its own that a wronged party might use to enforce its rights under an arbitration agreement or award. It is generally left to State parties, and particularly domestic courts, to interpret and apply the Convention's provisions competently and in good faith. This can give rise to politicisation and frustration for contractual parties in the pursuit of their international arbitration rights. A series of recent decisions – by investment arbitration tribunals and regional human rights courts – suggests that public international law has a substantial role to play in the protection of international commercial arbitration rights against interference by States and, in particular, their domestic courts. Those decisions demonstrate that international courts and tribunals are increasingly stepping in to ensure the recognition and enforcement of commercial arbitration rights. In doing so, those international courts and tribunals are resorting to principles and remedies that are well-established under public international law. This article analyses and compares a number of recent judgments and awards addressing the relationship between public international law and international commercial arbitration. It examines the approaches taken by some notable recent investment arbitration awards to the protection of commercial arbitration rights under investment treaties. The article also examines the expandingjurisprudence of the European Court of Human Rights in connection with the recognition and enforcement of commercial arbitration awards. The article concludes by observing that the recent jurisprudence demonstrates a growing symbiotic relationship between public international law and international commercial arbitration rights.

IN ICSID Case No. ARB/05/7, Saipem v. Bangladesh , decision on the merits dated 30 June 2009, the tribunal (composed of Gabrielle Kaufmann Kohler, President, Christoph Schreuer and Sir Phill Otton) held Bangladesh liable under a bilateral investment treaty for unlawfully expropriating Saipem’s right to ICC arbitration through the interference of Bangladesh’s courts. The tribunal also found that Bangladesh violated the New York Convention and committed an abuse of rights under general principles of international law. The tribunal awarded Saipem the amount that the ICC tribunal had awarded, with simple interest. It refused to award Saipem legal costs. The Saipem award provides a rich platform for discussion of several contentious issues currently brewing in the international investment arbitration community. One of those issues is the line tribunals are drawing between contract rights and treaty rights. The question of whether purely contract-based, commercial arbitration claims are being ‘dressed up’ as investment treaty claims was the subject of discussion at the American Society of International Law Annual Meeting in 2009 at the roundtable panel on ‘Mapping the Future of Investment Treaty Arbitration’. The panel discussed, inter alia , the differences between international commercial arbitration and international investment treaty arbitration. One of the panelists warned that arbitrators must be wary of wearing a commercial arbitration ‘hat’ when determining distinct issues of international law and state responsibility under investment treaties.1 The Saipem award, without entering into a discussion of where a line should or should not be drawn between commercial and international investment treaty arbitration, nevertheless sheds some important light on the debate. The Saipem award focuses on the point at which a state’s behaviour during an international commercial arbitration dispute governed by the ICC Rules triggers new obligations under an investment treaty, the ICSID Convention, the New York Convention and under general …

Over the last few decades, international arbitration has emerged as the preferred mechanism for resolving high-stakes international investment disputes. Last Term the Supreme Court of the United States decided BG Group, PLC v. Republic of Argentina, the first case the Court had ever heard concerning an international arbitration award rendered pursuant to an investment treaty dispute. The bilateral investment treaty (BIT) at issue expressly required litigation in a host-country's courts prior to international arbitration, but petitioner BG Group sought arbitration directly against Argentina without first seeking recourse in the Argentine courts. The arbitral tribunal held that failure to fulfill this condition did not strip it of jurisdiction and the tribunal reached the merits, finding in favor of BG. Because the parties chose the United States as the seat of arbitration, Argentina began proceedings in the U.S. national courts to vacate the award. On March 5, 2014, the Supreme Court ruled not to vacate, relying chiefly on the premise that fulfillment of the litigation requirement in the BIT was a procedural precondition to arbitration and thus a question for an arbitrator, not a court, to decide. But what about the text of the BIT, which plainly insists on host-country litigation prior to arbitration? What about the broader criticism that the current investment treaty arbitration (ITA) regime shortchanges host-country sovereignty in order to please foreign investors? Or that host-country courts are better positioned than international arbitral tribunals to decide questions of host-country law? These concerns deserve a response if ITA is to maintain its prominence. Thus, in addition to exploring the implications of the Court's decision for ITA and international commercial arbitration, this Note proposes an improved host-country litigation requirement, arguing that countries should learn from BG Group and seek to implement or improve host-country litigation requirements in their BITs.

This timely book addresses the main areas of tension between EU law and international arbitration, looking at both commercial and investment treaty arbitration. It opens pathways for practical solutions based on communication between the different regimes. At the same time, it offers a sound theoretical basis that allows for addressing the core problem as normative conflict between legitimate public interests and the ‘privatisation of justice’. The book is divided into five parts. It introduces key aspects of the overall tension between EU law and international arbitration, before setting out the theoretical framework, arguing that EU law, international commercial arbitration, and investment treaty arbitration are operationally closed systems. The author then addresses the core problem of finding the limits to contracting out of the EU legal order, which is linked to the question of trust-building and hence the legitimacy of the respective legal regimes. The book concludes with a short summary of each chapter and key theses. Combining a theoretical and normative stance with a more pragmatic approach to very topical issues, this book offers invaluable insights for academics and practitioners, private and public, commercial and investment treaty lawyers alike.

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.

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 …

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 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.

This article considers the role of national courts in investment treaty arbitrations between an investor and a host-State. While the ICSID arbitration regime provides for an a-national approach, the choice of alternative arbitral institutions or rules in an investment treaty could bring into issue the role of the courts of the place of arbitration. It is suggested that the involvement of a sovereign State as a party to such arbitration proceedings raises issues of state immunity not encountered in international commercial arbitrations. While an agreement in an investment treaty to arbitrate an investor-state dispute confers jurisdiction on an arbitral tribunal to determine the dispute, there is presently no global consensus that such an agreement alone amounts to a waiver of immunity of the host-State from the jurisdiction of other national Courts. Absent such waiver of jurisdiction, the court of the place of arbitration would lack legitimacy to exercise any ‘supervisory’ jurisdiction over the host-State party to ensure compliance under its domestic legislation. The authors suggest that national legislatures should consider this when reviewing applicable domestic laws on international arbitration and state immunity. Treaty negotiators should be aware as well of such limitations. State immunity, waiver of immunity, investment arbitration agreement, investor-State dispute, international arbitration, immunity from jurisdiction, court of the seat, supervisory jurisdiction

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.

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.

In the last decades, transparency has become a fundamental principle in international adjudication. It is usually defined as including concepts such as public access and disclosure of documents or information. Due to the high impact of the activities of international institutions on civil societies and the growing relevance of individuals as subjects of the International Community, it became evident that there was a need to: 1. make the decision-making processes of international organisations more transparent; 2. increase the accountability of the international institutions towards civil societies; 3. give access to the public to international dispute settlement mechanisms. For the purpose of this article, the third aspect, ie access to the public to international dispute settlement mechanisms, will considered. In particular, even though reference will be made to other international dispute settlement systems, the practice of international investment and commercial arbitral tribunals will be dealt with. The article will then study the role of transparency in international arbitration, highlighting three main challenges. First, the author will consider the difficult relation between transparency and confidentiality in arbitral proceedings. As this issue is extremely delicate in international commercial arbitration, this practice will be the focus of this section of the article. Second, transparency as a tool to reach a higher level of consistency in international arbitration will be discussed. This is a highly topical issue in international arbitration, as shown by the United Nations Commission on International Trade Law (UNCITRAL) negotiations that led to the adoption in 2014 of the Rules on Transparency in Treatybased Investor-State Arbitration. As a matter of fact, UNCITRAL looked into the issue of amicus curiae briefs provided by the investor’s home State on issue of treaty interpretation, to secure more consistent and harmonised interpretations of standards in investment arbitration. The author will explore whether consistency through transparency is desirable in international arbitration. Third, the paper will deal with the growing tendency to codify standards in international arbitration. This phenomenon is well illustrated by the current negotiations on investment and trade treaties such as the EU-US Transatlantic Trade and Investment Partnership (TTIP) and the EU-Canada Comprehensive Economic and Trade Agreement (CETA) that provide for specific provisions on transparency relating to investor-to-State disputes. The necessity and effectiveness of this codification will be investigated.