International Arbitration Institutions Research Articles

Past, Present, and Future Perspectives of Arbitration

This publication of the Patron’s Address at the CIArb’s Kuala Lumpur Conference presents selective thoughts on the development and role of arbitration in the past, today and its future perspective, primarily from the view of an arbitrator and from the background of experience the author has and has had in various functions in national and international legal and arbitration institutions. It starts by looking at past developments that were the basis for the present situation. Regarding the situation today, it deals in separate chapters with dispute settlement in general, commercial arbitration, politically sensitive disputes, investment arbitration, globalisation of arbitration, relevance of international law in commercial arbitration, arbitral procedure, promotion of amicable settlements, and the use of electronic media in arbitration. In a last chapter, it presents future perspectives particularly regarding a continuing expansion of arbitration, its subject matters and participating parties, its use for politically sensitive disputes, and the growing harmonisation between national arbitration laws and practices. Finally, it addresses the role of arbitrators in the process and the specific rising role and organisation of young arbitration practitioners.

Articles 16 and 18 of the PRC Arbitration Law: The Great Wall of China for Foreign Arbitration Institutions

Although China has been continuously developing its arbitration practice to international standards, one thing on the Chinese arbitration scene remains anomalous: Whereas local arbitration commissions have been mushrooming since 2005, today exceeding 180 in number nationwide, foreign and/or international arbitration institutions are almost completely absent from the Chinese arbitration scene. The present article aims to analyze the reasons for this absence from a legal perspective, i.e. the actual legal impediments preventing foreign arbitration institutions from operating in China: Articles 16 and 18 of the Arbitration Law. These two provisions disqualify, if not de lege , at least de facto , international arbitrations from operating in China, first of all because of the formal requirements they set with regard to arbitration agreements, but also and especially because of the protectionist and restrictive way these provisions are interpreted and handled by the different People's Courts. Articles 16 and 18 are crucial when deciding on conflicts of jurisdiction between courts and arbitration institutions raised by pathological arbitration agreements, and the way they are applied by Chinese courts reveals the lack of a consistent and arbitration-friendly approach in this regard. This article illustrates this lack of consistency through a short study of case law and in the end shows the impact of articles 16 and 18 of the Chinese Arbitration Law on foreign arbitration institutions, taking the ICC Court of Arbitration as an example. Despite its growing role in the international market, China has not yet managed to position itself as a leading center for arbitration. If one of the reasons is the lack of experience of Chinese courts, arbitrators and counsel dealing with international arbitration, this deficiency could be – at least partly – filled by opening the doors to foreign arbitration institutions and practitioners. Of course, this would increase the competition for local arbitration commissions, but this pressure would be a strong incentive for Chinese arbitration to become more efficient and thus more competitive on a world scale.

International Commercial Arbitration: A Canadian Perspective

INTERNATIONAL COMMERCIAL arbitration is finding a safe haven in Canada after years of neglect, mistrust and misunderstanding. Canadian and international arbitration institutions are co-ordinating the resolution of many commercial disputes involving parties from different countries using Canada as the place of arbitration, subject to the laws of Canadian provinces, while including some Canadian arbitrators on arbitration panels. This article is intended to provide background and introductory information for individuals who wish to use or participate in the international arbitration process in Canada. It is also intended to provide individuals who are interested in international arbitration with a summary of the special features of the process in this country. In this article, we shall provide a general overview of the legal framework in Canada. This will be followed by a review of leading Canadian jurisprudence in the area of international commercial arbitration and a discussion of recent developments and trends. Finally, we shall review the work and services provided by a selection of autonomous Canadian and international arbitration institutions. Individuals choosing to arbitrate their international disputes in Canada ought to be aware of the special features of the Canadian legal framework. Canada is a federal state with ten provinces and three territories. Canada's Constitution Act 1867,1 provides for the division of legislative powers between the federal and provincial governments. Section 92 of the Constitution Act sets out the enumerated classes of matters over which the provincial governments have exclusive legislative competence, while section 91 sets out the enumerated classes of matters over which the federal government has exclusive legislative competence. It has been traditionally held that the subjects of ‘arbitration’ and ‘enforcement of arbitral awards’, neither of which is specifically enumerated among the matters listed in sections 91 and 92, fall within provincial legislative competence under sub-sections 92(13) (‘Property and …

Rules and Networks. The Legal Culture of Global Business Transactions edited by Richard P. Appelbaum, William L. F. Felstiner, and Volkmar Gessner

Rules and Networks. The Legal Culture of Global Business Transactions edited by Richard P. Appelbaum William L. F. Felstiner and Volkmar Gessner. Published by Hart Publishing, Oxford (2001, xiii + 427 pp). ISBN 1-84113-296-9. This book is a welcome addition to the bibliography discussing the emergence of a global regulatory framework for international business transactions. The discussion is not new1 nor is it purely theoretical, but it does have an impact on legal practice; in particular, on arbitration. However, the perspective of Rules and Networks is novel as it offers theoretical support and interdisciplinary legitimacy for many arguments already made. While globalization in the aftermath of 11 September is no longer fashionable,2 the main premise, that as far as international commercial relations are concerned one could observe the incremental organic creation of an autonomous system which operates on the basis of rules of law rather than legal systems, is appealing and increasingly well founded. Effectively one could speak of a lex arbitralis materialis which consists of transnational substantive rules,3 general principles of law and practice as generally expressed in the work of leading arbitration institution and international law firms. In addition such an emerging autonomous system is compatible with the rules of many of the major international arbitration institutions.4 Such a system can only work if it is predictable enough and if it is an accurate reflection of accepted practice (s). It will normally operate because of party autonomy and when widely acceptable it will have a significant role to play in trade facilitation. A possible disadvantage of such a system may be that it is culturally neutral or, when it expresses a legal culture this may not be universally acceptable. However, one can argue that to the extent that lawyers and law firms are ultimate users of this autonomous system, those who participate in major business dispute resolution share the same culture, irrespective of their place of work. Most of the issues above are discussed in Rules and Networks …

Interim Relief Pursuant to Institutional Rules Under the English Arbitration Act 1996

Does the Arbitration Act 1996 (hereafter referred to as ‘the Act’) allow an arbitral tribunal in England to grant interim relief during the course of an arbitration? In particular, can it grant interim injunctive relief? The answer to both questions is yes, but the power is not automatic. Further, the Act deals with interim relief in a way which raises issues for anyone drafting arbitration clauses or institutional arbitration rules. The rules of two of the most important international arbitral institutions have been updated (the ICC Rules have been finalised and the LCIA Rules are in final draft). Both the LCIA and the ICC have produced draft amendments which will be implemented on 1 January 1998. Both sets of amendments incorporate new provisions for interim relief. This note discusses the application of the Act to those rules in the context of interim relief, and concludes that issues will arise in relation to interim relief in England under the different rules, which parties may wish to address in their agreements to arbitrate.

The ICC Arbitration Rules and the UNCITRAL Model Law

THE ADOPTION in 1985 by the United Nations Commission on International Trade Law (‘UNCITRAL’) of a model law on international commercial arbitration (the ‘Model Law’) was a seminal event in the modern history of international arbitration. It was also an event that was encouraged, and welcomed, by international arbitral institutions such as the International Chamber of Commerce (the ‘ICC’). Although the ICC took no formal part in the elaboration of the Model Law, it was closely associated with its development. Indeed, UNCITRAL's decision to commence work on the Model Law followed a consultative meeting in Paris in September 1978 with representatives of the ICC's Commission on International Arbitration as well as the Asian–African Legal Consultative Committee (the ‘AALCC’) and the International Council for Commercial Arbitration (‘ICCA’).1 The participants at that meeting, including the representatives of the ICC, were of the unanimous view2 ‘… that it would be in...

Reglament Arbitrazhnogo Instituta Stokgol'mskoi Torgovoi Palaty

Recent Soviet economic reforms promise to extend the right to engage directly in foreign trade transactions to thousands of Soviet enterprises and organisations. This change means that Soviet managers and their legal counsel who were brought up in domestic Soviet trade will now be dealing in foreign trade. Some of the newcomers to the foreign trade scene will not have the fluent knowledge of English that characterised the few Soviet specialists allowed to engage in foreign trade in the pre-Gorbachev period. Thus the provision of Russian-language versions of rules of international arbitration institutions can serve an important practical need. Economic restructuring is not limited to the Soviet Union, however. The dreaded phenomenon of ‘marketing’ has emerged not only in law practice, but also in international arbitration. It must be, to use one of Pravda's favourite phrases, ‘no accident’ that the Russian translation of the Stockholm Rules appeared with lightning speed after the publication of the draft Russian translation of the Rules of the London Court of International Arbitration. This healthy competition is leading to a dramatic increase in translation quality. The translation reviewed here is definitely better than the English translations that Soviet arbitration tribunals publish of their own arbitration rules. However, technical accuracy is not enough for a translation. The translator must understand a difficult legal text and must make hard choices when no word in the target language exactly matches the source language. The first choice that faced the translator was whether to use the genitive case or the adjectival form of ‘Stockholm’ in the title of the brochure. Either would serve perfectly to reflect the meaning of the English text. The translator avoided the dilemma of Buridan's ass by choosing the genitive form for the front cover and the adjectival form for the title page.2 The …

An introduction to the IBA Rules of Evidence

ON 28 May 1983, the Council of the IBA adopted by Resolution and recommendation to its members and others Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration. These rules, denominated in abbreviation the IBA Rules of Evidence, are set out in detail at the end of this paper. It may be of interest to those concerned with international arbitration between parties from civil law and common law countries to know the reasons and processes whereby they came about, their scope and the philosophy behind some of their individual provisions. Numerous efforts have, from time to time, been made to develop a uniform arbitration law and uniform rules for application in international arbitration. Both ad hoc and institutional rules have been drawn in order to suit, as far as possible, the various disciplines and approaches to the conduct of the dispute resolving process: The most familiar rules are those of the major international arbitral institutions: the 1975 Rules of the International Chamber of Commerce Court of Arbitration, the Arbitration Rules of the International Centre for the Settlement of Investment Disputes, and the 1985 Rules of the London Court of International Arbitration. There have, however, been others as well. Rules on Commercial Arbitration were formulated by the International Law Association in 1950. A Uniform Law on Arbitration in Respect of Relations of Private Law was developed by UNIDROIT in 1935, revised in 1954, and amended by the Legal Committee of the Consultative Assembly of the Council of Europe in 1957. The European Convention on International Commercial Arbitration of 1961 under the auspices of the United Nations Economic Commission for Europe promulgated its ECE Rules for International Commercial Arbitration in 1966. In 1976, finally, UNCITRAL adopted the most important arbitration rules of all for ad hoc arbitration and …