The American Influence on International Commercial Arbitration: Doctrinal Developments and Discovery Methods, 2nd ed, by Pedro J. Martinez-Fraga, eds, Cambridge: Cambridge University Press, 2020, ISBN: 978-11-07-15152-9, 474 pages

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 article discusses the procedure of taking evidence in international commercial arbitration from the perspective of balancing different legal cultures and values. It analyses the results of the existing evidentiary rules and attempts to harmonise the procedure, and their sufficiency in terms of securing the interests, expectations and rights of the parties involved in the international arbitration. The actual outcome must be estimated taking into consideration the balancing of the relationships and the differences between legal cultures, fairness and flexibility. In the first instance the author analyses each of the legal systems, civil law and common law, in order to compare the differences and similarities in terms of the procedure, especially in relation to evidentiary issues. A further step involves the analysis of the need for harmonised rules of procedure and in particular evidentiary rules in international arbitration and the factors in the determination and application of the rules, with a focus on the role of the tribunal’s discretion, the parties’ autonomy, as well as the impact of cultural background. Furthermore, the International Bar Association (IBA) Rules on Taking of Evidence in International Arbitration are analysed in terms of their completeness in such areas as admissibility and assessment of evidence, which permits the comprehension of the strengths and weaknesses of the IBA Rules and the need for the introduction of further rules. Finally, conclusions follow as to the proper way of balancing the competing values and approaches and the need for the application of new solutions in terms of taking of evidence in order to achieve the desired outcome in arbitral proceedings.

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 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.

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.

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

The awarding of arbitration costs and attorneys’ fees in international arbitrations is often arbitrary and unpredictable. In one recent investment arbitration where the tribunal deciding a case under the auspices of the international Centre for the Settlement of Investment Disputes (ICSID) had broad discretion to award costs and fees, the tribunal allocated arbitration costs evenly amongst the claimant and respondent and required each party to bear its own fees and expenses, even though the claimant prevailed. In another case where the claimant was successful on its substantive claim, the ICSID tribunal ordered the respondent to pay the claimant US$6 million for legal fees, but required the parties to bear the costs of the arbitration equally. And in still another recent investment arbitration the unsuccessful respondent was ordered to pay the costs of the arbitration, but each party was responsible for its own legal fees. These results are not unique to investment arbitrations; they can also be found in international commercial arbitrations. The lack of uniformity in the awarding of costs and fees poses two major problems. First, arbitrary awards undermine the legitimacy of the dispute resolution system. Second, the lack of predictability may hinder parties from being able to settle the dispute and could rob arbitration of its efficiency. These problems are exacerbated in the international context because the costs and fees in transnational disputes can run into the millions of dollars. Indeed, in one recent celebrated arbitration, the costs and fees totaled over US$21 million. This article examines the awarding of costs and fees in international commercial arbitrations and transnational investment disputes. My study finds that awards of costs and fees are arbitrary and unpredictable under both systems. To remedy these problems, I propose two different approaches: one for ICSID tribunals and another for international commercial arbitrations. In the case of ICSID arbitrations, the parties should share equally the costs of the arbitration and bear their own legal expenses. In essence, I propose that ICSID adopt what has become known as the American Rule with respect to the awarding of costs and fees. This approach is needed to bring predictability to the field, provide greater administrative efficiency, and reduce the overall costs. In the case of international commercial arbitrations, I argue that parties should be free to select the method for resolving claims for costs and fees, including authorizing the tribunal to resolve such claims pursuant to the principle of “costs follow the event” or the “loser pays” rule. In this context, the adoption of the American Rule would not achieve the same administrative and economic benefits, and the principle of party autonomy calls for this different approach.

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.

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 …

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).

Problem setting. The active development of international trade in the 21st century requires the unification and consolidation of legislation and the creation of a unified law to enforce practice in areas related to international commercial arbitration and mediation. Economic disputes are an integral part of commercial relations. Arbitration as a mechanism for resolving conflicts is quite common. From French arbitrage translates as resolving a dispute by involving a mediator. At the same time, the parties may choose commercial mediation, consultation or negotiation. The implication is that it is quite difficult to choose only one method or the need to combine several methods to effectively resolve the dispute. Target of research. The purpose of the article is to analyze the main features of international commercial arbitration and mediation, determinate and establish peculiarities of legislative regulation in Ukraine and abroad. Analysis of recent researches and publications. A significant contribution to the study of this problem was made by O.M. Sadikov, N.O. Saniahmetova, M.M. Агарков, С.С. Alekseev, A.S. Vasiliev, O. A. Belyanevich, M. I. Braginsky, I. B. Zaverukha, I.E. Zamoysky, V.V. Kovalenko, G.F. Shershenev and others. Article’s main body. Ukraine has risen in the world rankings for the investment attractiveness «Doing Business 2020» – by 7 points and ranked 64th among 190 countries and significantly increased economic growth. This ensures the attractiveness of the investment market for Ukraine, which significantly affects the economic development of the country. For instance, a large number of agreements and obligations are concluded between the parties, in which the counterparties can be both the Ukrainian citizens and foreigners, which increases the growth rate of the Ukrainian economy. However, in the concluded agreements there are can be discrepancies, violations and improper fulfillment of obligations by contractors, which can turn into disrupts, interrelated contracts and even leads to a decrease in business activity and affects the reputation of such activities. To resolve such disputes, the parties have the opportunity to go to court or use alternative methods of resolving the conflict. At the discretion of the parties, alternative methods such as commercial mediation and international commercial arbitration are possible, which are designed to resolve disputes and disagreements arising from trading agreements. Conclusions and prospects for the development In conclusion, amendments in the legislation can help to precise the main advantages of international commercial arbitration and mediation, including: neutrality, centralized dispute resolution, final decision, confidentiality and time savings. That is why international commercial arbitration with the use of mediation is one of the most effective alternative methods of resolving commercial disputes. What is more, international arbitration and mediation as ways of alternative dispute resolution have been used since ancient times. However, recognition and enforcement at the level of state courts began in the 20th century – the signing of international conventions governing the procedure for enforcing and enforcing decisions, and states – parties to the conventions – ratified and enshrined in national law. In the future, there is an opportunity to improve the legislation by implementation of the new Act “On Mediation” and also by including mediation as a necessary part of arbitration process into the official rules.

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.

Academics increasingly characterize international commercial arbitration (ICA) as a form of global governance. However, this literature rarely discusses why ICA should come to provide truly global governance, as opposed to being simply an atomized form of governance derivative of national court litigation — more neutral, more widely enforceable, perhaps faster and cheaper, but essentially the same adjudicative exercise in a different venue. For ICA to constitute global governance, as opposed to merely disconnected resolutions of individual cross-border disputes according to national laws, there are at least two prerequisites. First, legal rules must be formulated at the global level and apply regardless of the nationality and public or private status of the parties. Second, there must be a functional consistency in arbitral decision-making; a consistent adjudicative approach, such that “like cases are treated alike,” is a hallmark of the rule of law. In the radically decentralized ICA system, where there is no central administrative body, no appellate hierarchy, and no common sets of procedural or substantive rules, consistency appears to be a tall order. Can there be global governance without a global governor?This book chapter argues that the key to understanding ICA’s emergence as global governance is a legal culture specific to the international arbitration community. This culture instills into international arbitration practitioners a normative commitment to establishing international arbitration as a global system of governance for cross-border commercial relationships. It also provides the decisional stability necessary for arbitration to come into its own as a form of legal governance promoting the rule of law. The chapter evaluates “culture” as the basis for a theory of ICA-as-governance, then explains how a common culture can emerge within a heterogeneous, transnational community. Next, it describes the aspects of international arbitration culture that are most relevant to ICA’s development as a form of global governance. In particular, it argues that arbitrators are driven to establish ICA as an autonomous, global system of governance by a shared dedication to internationalism for its own sake and also by a belief that internationalism serves the interests of commercial parties.