International Arbitration Law Research Articles

The Turkish International Arbitration Law of 2001

The Turkish International Arbitration Law of 2001

The Enforcement of International Commercial Arbitration Agreements in Canada

PRIOR TO 1980, lawyers with experience and understanding of the law and culture of international commercial arbitration were few and far between, usually found only in London, Paris, Geneva and New York. In Canada, there was a handful distributed between Toronto, Montreal, Calgary and Vancouver. This led to poorly-drafted agreements to arbitrate and uninformed arguments in support of enforcing such agreements before Canadian judges. These judges were similarly handicapped. This article will attempt to review what has led up to what I call the ‘big bang’ in arbitration in Canada, its effect, some problematic areas, and suggestions how we might deal with them, along with a few examples of how some of our common law trading partners manage their recognition of international commercial arbitration agreements. As part of a flurry of legislation dealing with commercial law in the late nineteenth century, the English Arbitration Act 18891 was passed into law. It did away with the requirement to obtain a rule in the courts to enforce an arbitration agreement and substituted the principle that a private agreement to arbitrate was irrevocable, without the need for any order of the court. Further, the agreement was deemed to operate as a court order and to include such provisions as assuming a single arbitrator, providing for umpires, giving arbitrators the power to summon witnesses and examine them on oath, giving the arbitrators power to award costs, and making awards final. However, the courts took it upon themselves to supervise closely this private dispute resolution mechanism agreed by the parties. Canadian jurisdictions followed the English legislation either by passing enactments mirroring the 1889 Act, or indirectly through legislation adopting English statute law where no inconsistent domestic enactment existed. There was no federal arbitration legislation until 1986, and Quebec continued to refuse to recognize agreements …

Erganzung und Anpassung von Vertragen durch Schiedsgerichte by Stefan Kroll

Erganzung und Anpassung von Vertragen durch Schiedsgerichte, by Stefan Kroll. Published by Carl Heymanns Verlag, Koln, Berlin, Bonn, Munchen (1998, xvii + 383 pp.). Hardcover. Price DM188. ISBN 3-452-24013-4 Adaptation and supplementation of contracts by international arbitrators has always been one of the most important and also one of the most debated issues of international arbitration law. Two reasons account for this. First, the international arbitrator's competence to adapt a contract to changed circumstances or to fill gaps in the contractual stipulations of the parties always involves a complex interaction of the applicable procedural law (the lex loci arbitri ) and the substantive law applicable to the contract (the lex contractus ). If the arbitration law does not allow for the adaptation or gap-filling by the arbitrator, an arbitral tribunal acting under this law may not proceed to adapt the contract before it, even if the applicable substantive law allows for contract adaptation, unless this procedure may be qualified as a mere construction of the contract under the applicable law. Secondly, contract adaptation by international arbitrators involves a basic conflict between two fundamental principles of contract law, the notion of sanctity of contracts (‘ pacta sunt servanda …

The Applicable Law in International Arbitration Under the New English Arbitration Act 1996

FOR OVER the past 50 years there has been a discernible movement both in public and private international law away from dependence on states. The multiplication of accredited actors in international law and recognized sources of international norms, the increasing autonomy of international law vis-a-vis its authors, together with the diminishing importance of sovereignty and a new appreciation of legal pluralism broadening nationalist definitions of what counts as ‘law’, all mark the decline of the role of the state. This modern trend has been evident in international commercial arbitration where legal phenomena such as the evolution of a new lex mercatoria , the use of principles of general application derived from techniques of comparative law, delocalization and the growing recognition of the specificity of international transactions as distinct from purely domestic contracts, can be seen as responses to the limitations of statist conceptions of the definition, sources and interpretation of law in the resolution of international disputes. Following these developments, the new English Arbitration Act 1996 freed commercial parties from national constraints of procedural law with the result that fundamental English rules no longer necessarily apply in arbitral proceedings in England: discovery, hearsay, parol evidence and rules excluding evidence of pre-contractual negotiations. All the more so in international proceedings involving parties from different legal cultures. The object of these reforms has been, of course, in the words of Lord Saville, ‘to reflect generally accepted international views on the proper conduct of the arbitral process’.1 The new law affords a very high degree of accommodation to the parties' choice of institutional or foreign procedural rules. Apart from a few mandatory provisions,2 parties are free to exclude large parts of the Arbitration Act itself in order to adopt procedures they are more familiar with, or which they believe are best …

Choice of Substantive Law in International Arbitration

Choice of Substantive Law in International Arbitration

The International Arbitration Kit (Fourth Edition) edited by Laura Ferris Brown

The International Arbitration Kit, 4th ed., ed. Laura Ferris Brown. Published by The American Arbitration Association, USA (1993, 395 pp and v, no index ). Paperback US$55 members US$65 non-members. The fourth edition of the American Arbitration Association's ‘International Arbitration Kit’ has been completely revised by the editor, Laura Ferris Brown, and is considerably more attractive too for non-US users than its predecessors. The book is described as a ‘compilation of basic and frequently requested documents’, and the preface explains that it has been assembled by analysing the hundreds of enquiries made each year to the Reference Desk of the AAA's library and the information centre relating to the law and practice of international business arbitration. This is no doubt the reason why the volume …

International Arbitration Law by Mauro Rubino-Sammartano

Arbitration law and its application to disputes arising out of commercial transactions has changed in recent years. Traditionally, it was considered on a purely domestic basis: the local law of the place where an arbitration was held governed the conduct of the arbitration, whatever the nature of the arbitration. With the increase of international arbitration following the Second World War, and particularly in the 1960's and 1970's, several countries adopted a two-tier regime with different or special rules applying to domestic and international arbitrations. This is the position presently in, e.g., English, French and Swiss law, and is supported by the UNCITRAL Model Law on International Commercial Arbitration. In recent years the view that there is a truly international arbitration law, over and above national law, which applies in the international arena, has developed and found increasing support. This transnational arbitration law is part of the lex mercatoria;...

The Immunity of Arbitrators edited by Dr. Julian D. M. Lew

The Immunity of Arbitrators edited by Dr. Julian D. M. Lew. Published by Lloyd's of London Press Ltd, UK, (1990, 129 pp and xix, incl. Index). Hardback. price £52. Dr. Julian Lew has a valuable instinct for identifying the key issues of the day. In his classic work The Applicable Law in International Arbitration (now urgently in need of a new edition) and in the later Contemporary Problems in International Commercial Arbitration he brought to the international arbitration community a cogent understanding of some important areas of practice. Now, in The Immunity of Arbitrators he has once again made a significant contribution in a field which gives cause for concern in our increasingly litigious society. The whole area of the legal status of arbitrators and their liabilities to civil process is a minefield in which there is currently little or no harmonisation in different legal systems. Indeed, in only a handful of jurisdictions is the position settled. One such rare jurisdiction is the United States of America which appears to be the only country in which arbitrators enjoy absolute immunity. > Arbitrators may act with impunity, > > For theirs is a favored community, > > Though losers may whine, > > And even malign, > > Judges will guard your immunity. So said a United States judge, apparently, in an address to a conference of arbitrators. Indeed, immunity from suit both for arbitrators and arbitral institutions is deeply rooted in U.S. Federal common law. There have been some incursions at the level of State courts, but even where that has happened State legislatures have stepped in quickly to reaffirm the absolutely character of immunity. At the other end of the spectrum a very few civil law countries go in the opposite direction explicitly. The 1988 Spanish Arbitration Act contains the following provision: > 16. Acceptance obligates the arbitrators and, if such is the case, the Institution or Association, to faithfully fulfil their assignment, incurring, if they do not do so, liability for damages they may occasion due to …

French Judicial Attitudes Toward International Arbitration

FRENCH INTERNATIONAL arbitration law is codified. Its basic rules are set out in the Decree of 12 May 1981, which vests the power to review awards in international arbitrations, both in France and abroad in the Courts of Appeals—subject to final review by the Court of Cassation. International arbitration is defined as including any arbitration which ‘affects interests in international trade’. The French case law has broadly construed this statutory definition by holding that the international character of an arbitration proceeding is determined – excluding any criteria involving the parties' nationality or the governing law – by the international character of the economic transaction in question, which involves a cross-border flow of goods, persons or services. The statute's underlying approach is to provide ‘expedited' review of the award, focussing solely on whether it is internationally lawful. The term ‘international’ is important because, as we shall see, it rules out any resort whatsoever to either French municipal law or any foreign municipal law—for the most part, in any event. The key question therefore becomes: On the basis of which criteria will an arbitral award in an international case be deemed ‘internationally lawful’ so that it can be recognized and enforced in France? Here, we must consider the fundamental concept of the dual nature of arbitration as an institution—a concept which dominates the field of arbitration: it is at the same time both contractual , because of its origin (the agreement binding the parties) and jurisdictional , because of the way in which it is expressed (arbitral award, decision on jurisdictional issues—decision by private judicial authority). The purpose of having an arbitral award reviewed by a higher court is accordingly to ensure that these rules have been strictly compiled with by ensuring both that the arbitration is based upon a valid arbitral …

Problems with Parallel and Duplicate Proceedings: The Litispendence Principle and International Arbitration

A recent (and thoughtful) essay about litispendence and international arbitration begins with the observation that it ‘seems to treat the quintessential non-subject.1 The authors proceed to cite a number of French, Swiss, German, and Austrian writers who deny the existence of any question of litispendence in the context of arbitration. These writers base their conclusions on different grounds. All of these grounds are related to the notion that a contractual undertaking to arbitrate is sufficient, in and of itself, to preclude the concurrent exercise of jurisdiction by public authorities, thus mooting the problem of litispendence. However, Schweizer and Guillod end their essay with the suggestion that judges should apply the litispendence principle by suspending court proceedings whenever an arbitration involving the same dispute and the same parties is already pending, and should do so prior to assessing the effects of the arbitration agreement under the New York Convention or other similar law.2 This suggestion is sound, but it raises the question of whether and under what circumstances a corresponding rule might also be applied by arbitrators when another court or arbitral proceeding involving the same dispute and the same parties presents the risk of a conflicting decision.3 The discussion which follows addresses the arbitral side of the litispendence question. It does not aim at a comparative law analysis of the litispendence principle in different legal systems. It is concerned with the place, if any, for the litispendence principle in the repertory of a developing procedural law of international arbitration. For this reason, the examples contained in this article are drawn exclusively from published international arbitral decisions rather than from national court decisions. As will be seen, however, these examples are merely illustrative of particular rationales given by a variety of arbitral tribunals. They are generally too sparse …

Note From The General Editor

five years have gone by since this journal was launched. In the introduction to the first issue, I wrote: > ‘It is the aim of this journal to strike a balance between academic and practical topics. It is hoped, however, that even articles of an essentially practical nature will nonetheless contain elements of lasting interest; the aim is to generate contributions of some depth, and not mere descriptions.’ The Editorial Board is gratified by the extent to which this objective has been satisfied. Thanks to a steady stream of high-caliber contributions, we have been able to maintain a level of quality reflected in the frequent references to the journal in scholarly publications and decided cases. One might predict already that a number of articles will turn out to be evergreen, such as Pierre Mayer's study on ‘Mandatory Rules of Law in International Arbitration,’ Vol. 2, p. 274, J. Gillis Wetter's proposal for ‘A Multi-Party Arbitration Scheme for International Joint Ventures,’ Vol. 3, p. 2, and Lord Justice Michael Mustill's investigation into ‘The New Lex Mercatoria : The First Twenty-Five Years,’ Vol. 4, p. 86. The only negative aspect of the …

Applicable Law in International Arbitration: The Iran-U.S. Claims Tribunal Experience

International commercial arbitration is being enthusiastically promoted throughout the international legal community. Congresses and conferences abound; over three hundred delegates attended the 1988 Tokyo conference of the International Council for Commercial Arbitration. New arbitration journals proliferate. New international arbitration centers compete for business, particularly around the Pacific Rim in such locations as Hong Kong (opened in 1985), Los Angeles (1985), Melbourne (1985) and Vancouver (1986).

General Principles of Law in International Commercial Arbitration

The arbitral tribunal in an international arbitration usually is accorded great freedom to assess and select the applicable substantive law when the parties themselves did not make a choice of law. The authors discuss what the effect hereof is on the role of the Unidroit Principles within the context of international commercial arbitration. Thereto, they explore the following issues. Firstly, they examine when the Unidroit Principles might serve as applicable law and they provide an overview of the different methods generally used by arbitrators for selecting the appropriate applicable law in an arbitration procedure. Secondly, they investigate the role of the Unidroit Principles in the interpretation and supplementation of national law. They then further examine the use of the Unidroit Principles for the interpretation and supplementation of international uniform law. In the margin of their research, the authors also touch upon the issues of the growing acceptance of the application of a-national law in international arbitration the scepticism of legal scholars as to the application of ‘lexmercatoria’; and the use of the Unidroit Principles as an instrument for interpretation and supplementation of the international uniform law, such as the CISG.

The New International Arbitration Law in Switzerland

The New International Arbitration Law in Switzerland

New Swiss International Arbitration Law

New Swiss International Arbitration Law

Mandatory rules of law in international arbitration

the impact of mandatory rules of law is of great practical importance in international arbitration. Yet it has scarcely been analysed in a serious manner. A few studies have been devoted to isolated aspects of the topic, particularly in connection with competition law.1 The present writer has, however, come across only one thorough effort at synthesis, to wit an essay by Yves Derains2 which analyses arbitral awards and attempts to distil a system from them. This paucity of scholarly work is surprising. It contrasts with the abundance of theses, articles, and notes which have been written during the last half century, especially the past two decades,3 on the subject of mandatory rules of law as invoked before national judges. The same observation applies if one looks to sources of positive law. Neither the various international treaties dealing with arbitration (such as the New York and Geneva Conventions), nor such a comprehensive modern national law as the French Nouveau Code de Procedure Civile , contain the slightest provision with respect to the relationship between mandatory rules of law and the arbitral process. On the other hand, no less than four international treaties contain at least one article dealing with the impact of mandatory rules of law before national judges.4 Although developments injudicial case-law is not the focus of this article, the abundance of material in this related area may well suggest a definition of mandatory rules of law valid in arbitration as well. There are in fact many definitions. For present purposes, we may be inspired by those given in the various treaties, which yield the following synthesis: a mandatory rule ( loi de police in French) is an imperative provision of law which must be applied to an international relationship irrespective of the law that governs that …

The Recognition and Enforcement of Foreign Arbitral Awards in the States of the Arab Middle East

An eminent author on international arbitration law has described the rules on the enforcement of foreign arbitral awards as being beset by uncertainty. According to that author, this uncertainty is fostered by the conflicting views of scholars and practitioners in each state. Faced with the need to formulate some general proposition about the situation in the Arab Middle East there are only two indisputable things one can mention. First, there are in certain states, in addition to where the New York Convention applies, domestic laws and a regional convention adopting, in the majority of cases, outdated concepts. Secondly, apart from the foregoing there is generally a lack of legislation. The statutory vacuum is potentially filled by Islamic law.

Arbitration in France: The French Law of National and International Arbitration. Trilingual edition—French, English, German. Jean-Louis Delvolvé. Deventer/Netherlands: Kluwer Law and Taxation Publishers, 1982. Pp. x, 165. Dfl. 95.00/US $38.00 (cloth).

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