Obtaining Documents From the Opponent in International Commercial Arbitration

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.

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.

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 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 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.

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.

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.

Over the past 15 years, a significant “transparency gap” has developed between the investment treaty arbitration and international commercial arbitration regimes. With increasing frequency in investment treaty cases, the public is provided with some form of access to documents and hearings as well as opportunities for participation through written amicus submissions; only to a very limited extent have such developments occurred within the international commercial arbitration regime. This chapter examines whether the existing transparency gap between the two regimes should be maintained. To evaluate that transparency gap, this chapter analyzes the respective regimes in light of three factors: (i) the nature of the public interest; (ii) the role of confidentiality; and (iii) the role of party autonomy. This chapter concludes that the existing transparency gap between the two regimes 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 particular issue of public availability of arbitral awards, this chapter concludes that the existing transparency gap should be narrowed significantly, given the compelling and multifaceted nature of the public interest in that context. The public interest in obtaining access to arbitral awards exceeds — both in strength and multiplicity — the public interest in obtaining access to other documents and hearings, or in participating in disputes as amicus curiae. With respect to the future development of international law, it is the awards — not other documents, hearing transcripts, and/or amicus submissions — that hold the greatest potential for significant impact.With a view to increasing the public availability of commercial arbitration awards, this chapter proposes three alternative models for rulemaking: (i) a default rule model (which — absent party agreement to keep awards confidential — would require publication of redacted versions of awards), (ii) a modified mandatory rule model (which would track the ICSID approach of publishing, at a minimum, excerpts of the legal reasoning in each award), and (iii) a mandatory rule model (which would track recent investment treaty practice, requiring publication of awards subject to redaction of protected information).

Extensive research has been undertaken on the practical application of arbitration nationally and internationally. While many commentaries and textbooks are to be qualified as adopting a ‘how-to’ approach, there is a growing body of scientific literature on arbitration. On an international level, Gary Born's International Commercial Arbitration is an extraordinary combination of both practical experience and academic analysis. In his introduction, Born writes that he ‘aspires to provide a comprehensive description and analysis of the contemporary constitutional structure, law, practice and policy of international commercial arbitration’, and that he ‘also endeavours to identify prescriptive solutions for the conceptual and practical challenges that confront the international arbitral process’. These aspirations may sound Herculean and even unrealistic at first sight. Not to those who read Born's International Commercial Arbitration . In the opinion of this reviewer, there can be no doubt that Born has reached his goals, and partially even gone beyond. As Born emphasises from the outset, the focus of his book is on international standards and practices, rather than a single national legal system. Yet, international standards have not developed out of the blue, but have been based on converging legislation and practices in important arbitration centres such as the United States, Singapore, Hong Kong, England, France and Switzerland. Legislatures and courts in contracting states around the world have looked to and relied upon one another's decisions and have formulated and progressively refined legal frameworks of national law to ensure the effective enforcement of international arbitration agreements and awards. A central theme of International Commercial Arbitration is that the New York Convention and other international instruments establish a constitutional framework for the conduct of international commercial arbitration around the world. While parties and arbitral tribunals enjoy substantial autonomy in the conduct of international arbitrations, the Convention imposes important limits on …

In this day and age, international commercial arbitration is widely regarded as an effective alternative dispute resolution mechanism, voluntarily chosen by a majority of parties. However, a pertinent question arises: why do an increasing number of international businesses prefer international commercial arbitration over national courts to resolve commercial cases? Apart from the efficiency and convenience that international arbitration provides, the arbitrator's professional ethics play a crucial role in maintaining the credibility and legitimacy of the process. Therefore, to bolster parties' trust in international arbitration, it is imperative to uphold the requirement of independence and impartiality of arbitrators throughout the arbitration procedure. Specifically, the arbitrator plays an important role in giving effective awards in the arbitral proceeding. Hence, each arbitrator is required to be independent and impartial so that the arbitrator's award is not questioned on the ground of lacking fairness. Furthermore, in order for the appointment process to operate smoothly, the independence and impartiality of arbitrators will be challenged in the relationships with the parties or the parties' lawyers.

There are currently no rules in international commercial arbitration law and practice assuring the coordination between arbitral awards and/or national court judgments rendered in identical or related cases. This lack of coordination is unsatisfactory, particularly in light of the ever-growing tendency of parties to submit their commercial disputes to international commercial arbitration and the increasing complexity of international arbitration. Today, international commercial transactions and the disputes to which they give rise regularly involve multiple parties, contracts and issues. As a consequence, these disputes (or certain aspects of these disputes) are increasingly tried in multiple fora. In such circumstances, difficult issues regarding the res judicata effects of prior judgments or awards are likely to arise before international commercial arbitral tribunals. The central hypothesis underlying this research is that transnational principles of res judicata should be elaborated for international commercial arbitral tribunals. This solution is justified for several reasons. First, it is justified given the differences among domestic laws regarding res judicata and the difficulties surrounding the formulation of appropriate conflict-of-laws rules. Second, it avoids inappropriate analogies between international arbitration proceedings and litigation. Finally, the solution provides guidance and ensures a certain degree of fairness, certainty and predictability, which is expected by arbitration users. This research seeks to achieve its aims in two stages: Part One examines the doctrine of res judicata in litigation, analysing the doctrine as applied in different domestic laws, as well as in private and public international law. Part Two aims to determine whether and to what extent the res judicata doctrine may be applied by international commercial arbitral tribunals. It aims to demonstrate that transnational principles of res judicata should be elaborated and will seek to formulate such principles.

The purpose of the article is to conduct a comparative analysis of the processes for issuing, amending and supplementing awards by institutional international commercial arbitrations in the Russian Federation and Singapore, as well as reviewing the legal regulation of the setting aside the arbitral awards and current trends in judicial practice in this area in these states. The mechanism of returning an arbitral award by state courts for consideration within the framework of arbitration is analyzed in the article. This paper examines the provisions of the national legislation of the Russian Federation and Singapore governing the issues of international commercial arbitration, as well as the regulations of institutional arbitration organizations represented by the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation and Singapore International Arbitration Center; analyzes the unified norms of international law, as well as the practice of state courts and international commercial arbitration centers of the Russian Federation and Singapore. The process of an arbitral award issuing in the institutional international arbitrations of the Russian Federation and Singapore has a number of features that may indirectly affect the outcome of the dispute. The legislation of Singapore also contains additional (compared to generally accepted) grounds for the setting aside an arbitral award — fraudulent or corrupt motives; violation of the fundamental principle of natural justice, while specific approaches to the essence of these grounds were developed by judicial practice. Of particular interest is the developed pro-arbitration active position of the state court of Singapore regarding the possibility of returning an arbitration dispute from the state court to arbitration, as well as the criteria for such return.

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. …

It is a pleasure to speak with you today after 38 odd years in this arena. Having handed in my final class grades on Tuesday as a law professor (retiring on January 31, 2021) I am a has been or fast on my way to being one. I think of this as my farewell speech to international commercial arbitration and, upon the suggestion of my wife, have dressed accordingly in the tuxedo I wore yesterday to celebrate our fourth wedding anniversary. I speak to you out of my deep and abiding respect for international commercial arbitration. I have known this field’s promise and limitations, the good and the bad in it, and the best and the worst in it. So I appreciate your time today to discuss this topic. I will attempt to shed some heat but I also hope to bring some light on this arena. You will be the judge of whether I succeed. The presentation will be on the way forward for the New List - Arbitrators of African Descent with a US Connection (https://www.simpsonadr.net/files/NewList2020.07.30Edited.pdf). The bottom line will be you should hire, promote, and appoint these people in international arbitration practice. It is in the best interest of your clients, your firms, and yourselves – and for international commercial arbitration. The durability of international arbitration as the world’s dispute resolution mechanism may depend on it.

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 …