This is the first publication to identify a universal procedural code for international commercial arbitration. This informative and well-argued discussion of a uniform code for due process is a useful aid for both practitioners and scholars. More than just a useful desk reference, this publication uncovers a unifying arbitration principle in light of the diversity of national traditions. The author Matti S. Kurkela demonstrates how this unifying principle might establish a new standard procedure in arbitration law.
Guiding the reader through a step-by-step analysis of due process in international commercial arbitration, the book is comprehensive without being esoteric. Due Process in International Commercial Arbitration, Second Edition thus helps both practitioners new to arbitration procedure and experienced attorneys looking for a cutting-edge discussion of due process issues. It can be used as a handbook for lawyers engaged in arbitral disputes. To provide the necessary guidance for lawyers in need of quick, reliable information, author Matti Kurkela and Santtu Turunen update readers on the numerous changes made to arbitration law since the book's 2005 edition. Even more helpfully, Kurkela and Turunen have added two new chapters to show lawyers what to expect in the midst of an arbitration proceeding: a chapter on procedural rules from the New York Convention and a chapter on jurisdiction arising from sources outside the arbitration agreement. As corporations engage in more globalized commerce, and as arbitrators resolve more international legal disputes, this resource provides both the broad background and the quick reference information necessary to understand the complexities of arbitration procedure. A thorough Table of Contents, Index, and Appendix of primary documents facilitate practitioners' research in this vital book. This new edition's balance of comprehensiveness and concision make it a one-stop resource for arbitration attorneys around the world.
Auflage
Sprache
Verlagsort
Zielgruppe
Für höhere Schule und Studium
Für Beruf und Forschung
Arbitrators, arbitration counsel, law students, law librarians
Editions-Typ
Maße
Höhe: 260 mm
Breite: 183 mm
Dicke: 36 mm
Gewicht
ISBN-13
978-0-19-537713-2 (9780195377132)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Klassifikation
Matti S. Kurkela is a docent at the University of Helsinki School of Law, where he teaches International Trade Law and Private International Law. He is also a Senior Partner at Hannes Snellman (Helsinki), where his practice includes financial and contract law as well as mergers and acquisitions. Kurkela is a Foreign Associate for Chadbourne & Parke (New York) and Counsel to the Bank of Boston (Boston). A member of both the Finnish and the Paris Bars, he has also acted as an arbitrator in national and international proceedings.
Santtu Turunen works as a researcher at University of Helsinki Conflict Management Institute based at University of Helsinki Law Faculty. He has written several articles concerning arbitration and procedural law in general, and edited books in the field of law. Among others, Turunen has edited a collection of Finnish arbitral award published in the publication series of the COMI institute. Turunen has also acted as an arbitrator in the institutionalized arbitration offered by the support association of the University of Helsinki Conflict Management Institute.
Abbreviations
TABLE OF CONTENTS
DUE PROCESS IN INTERNATIONAL COMMERCIAL ARBITRATION
1. DUE PROCESS AND ARBITRATION
1.1. The Origin of Due Process Requirements in Arbitration
1.2. How Should the Due Process Requirements in Arbitration Be Defined?
1.3. The Floating Nature of the Law of Due Process - Analogy with Lex Mercatoria
1.4. The Method of Defining Due Process and Lex Proceduralia in Arbitration
1.5. Due Process as a Principle of Law
2. THE NEW YORK CONVENTION AS A STARTING POINT
2.1. Introduction
2.2. Public Policy ("Ordre Public") as a Ground to Refuse the Recognition and Enforcement
2.2.1. A Vague Category
2.2.2. Procedural Aspects: Just a Right, Not a Duty; Actions Ex Officio and Sua Sponte
2.2.3. What Constitutes Public Policy?
2.2.4. ILA on Fundamental Principles
2.2.5. ILA on Public Policy Rules
2.3. Arbitrability of the Subject Matter
2.4. Arbitration Agreement ("Mandate in Concreto") and the Convention
2.4.1. Agreement as the Basis of the Procedure
2.4.2. Breach of the Procedural Agreement as a Ground to Refuse the Recognition and Enforcement
2.4.3. Ultra Petita - Matters Beyond the Scope
2.4.4. Waiver Doctrine and the Breach of the Procedural Agreement
2.5. Incapacity and Invalidity
2.5.1. Incapacity of the Party And Invalidity of the Agreement
2.5.2. Incapacity of a Person
2.5.3. Invalidity of the Arbitration Agreement
2.6. Ability to Present One's Case
2.6.1. Ability to Present One's Case as a Fundamental General Requirement
2.6.2. Ability to Present One's Case According to the Agreement and of the Law of the Seat
2.7. Award has to be Final ("Condition Subsequent")
2.8. Conclusions on the Analysis of Article V of the Convention
3. ARBITRATION AGREEMENT AS BASIS OF JURISDICTION
3.1. Agreement on Basis of Jurisdiction - Mandate in Concreto Based on Mandate in Abstracto
3.2. Existence of an Arbitration Agreement
3.2.1. The Written Form
3.2.2. Competence Competence
3.2.3. The Validity of the Agreement
3.3. On Interpretation of the Arbitration Agreement
3.3.1. Methods of Interpretation
3.3.2. Assignment and Transfer
3.3.3. Time Limit for the Award
3.3.4. Time Limit in the Arbitration Clause as a Statute of Limitation
3.3.5. Guarantor's or Indemnitor's Right to Invoke an Arbitration Agreement
3.4. The Unconscionability or Unreasonability
3.5. The Enforceability of an Arbitration Agreement and Due Process
3.5.1. Agreement Defining Due Process?
3.5.2. Good Faith of the Parties
3.5.3. Possible Action in Case of Disloyalty
3.5.4. Non-Respect of the Agreement by the Arbitral Tribunal as Violation of Due Process
3.5.5. Manifest Disregard of Agreement and Substantive Law as Violation of Due Process
3.5.6. Disregard of Facts as Violation of Due Process
3.5.7. "Carte Blanche" Prayer for Relief and Due Process
3.6. Arbitration Agreement and Due Process - Summary
4. OTHER ASPECTS OF JURISDICTION THAN THE AGREEMENT
4.1. Due Process and the Jurisdiction - Problems Related to Other Aspects than the Agreement
4.2. Parties to the Proceedings
4.3. Arbitrability
4.4. Res Judicata
4.4.1. Defining Res Judicata
4.4.2. "Effects" of Enforcement Dimensions
4.5. Lis Pendens
4.5.1. Lis Pendens Doctrine in Arbitration
4.5.2. When Are the Proceedings Parallel? Test of Identity or Similarity and the Enforcement Effects Test
4.5.3. The Effect of Parallel Proceedings
4.6. Forum Non Conveniens
4.6.1. Doctrine of Forum Non Conveniens
4.6.2. Special Considerations in Arbitration
4.7. Conditions Imposed by the Applicable Rules
4.7.1. Security for Fees and Costs of the Arbitral Tribunal and Institution
4.7.2. Security for Attorneys' Fees and Legal Costs of the Parties
4.7.3. Security for Loss or Damage
4.7.4. Security for the Claims or for the Enforcement of the Award
4.8. Conditions Imposed by the Panel within its Autonomy
4.9. Conditions Imposed by the Agreement of the Parties: Duty to Mediate or Negotiate
4.10. Summary
5. THE PANEL AND DUE PROCESS
5.1. Arbitration Panel in Dispute Resolution Context
5.2. The Composition of the Panel
5.3. Challenge of Arbitrators
5.4. Impartiality and Independence
5.4.1. The Requirement of Impartial and Independent Arbitrators
5.4.2. The Meaning of Independency and Impartiality in Arbitration
5.4.3. Same, Same but Different? The Standard of Impartiality in Arbitration
5.4.4. What Constitutes Bias?
5.4.5. Duty to Disclose
5.4.6. IBA Guidelines - Green, Orange, Red and Non-Waivable Red Lists
5.4.7. Requirement of Impartial Conduct
5.5. Waiver
5.6. Communication with the Parties
5.7. Secretary and His Role
5.8. Fees and Costs
5.9. Liability
5.10. Confidentiality
5.11. Summary
6. FACTS AND EVIDENCE RELATED DUE PROCESS
6.1. The Structure of a Legal Decision: Facts and Due Process
6.2. Facts in Legal Decision: Relevance, Sufficiency and Truth
6.3. On Burden of Proof
6.4. Role of Arbitral Panel in Establishing the Facts
6.4.1. Conflicts of Traditions and Culture
6.4.2. Guidance by Consultations
6.4.3. Direct Intervention by the Panel
6.5. Enforcement of Evidentiary Measures
6.5.1. "Tool-box" of Measures for Bringing Evidence into Proceedings
6.5.2. "Internal" Orders
6.5.3. "External" Orders
6.5.4. Fact-Finding by the Arbitrators
6.5.5. Organizing the Evidentiary Hearings
6.5.6. "Entire Agreement Clauses" and Other Agreements on Admissibility of Evidence
6.6. Questions and Answers
6.7. Discovery
6.8. Witnesses
6.8.1. Prior to Hearings
6.8.2. Language
6.8.3. "Nothing But the Truth"
6.8.4. Hostility, Evasiveness or Psychological or Emotional Ties
6.8.5. Questioning
6.8.6. Cross-Examination and Special Arrangements
6.8.7. Timing
6.8.8. Compensation for Witnesses
6.9. Experts
6.10. Other Evidence
6.11. Summary
7. THE ROLE OF THE PANEL IN THE PROCEEDINGS
7.1. Managing the Proceedings
7.2. The Role of the Panel in Establishing the Facts
7.3. Jura Novit Arbiter and the " Burden of Education"
7.4. Administration of Remedies and Consultations
7.5. Summary
8. FAIR ARBITRATION - OPPORTUNITY TO PRESENT ONE'S CASE
8.1. Fair Arbitration
8.2. Equality of Arms and Reasonable Opportunity to Present One's Case
8.3. Right to a Counsel of One's Choice
8.4. Conflict between Timeliness and Opportunity to Present One's Case
8.5. Award
8.6. Summary
9. DUE PROCESS, LEX PROCEDURALIA, FAIR ARBITRATION - PROCEDURAL FOUNDATION OF ARBITRATION
9.1. The Three Facets: Due Process, Fair Arbitration and Lex Proceduralia
9.2. How to Formulate Due Process Argumentation
9.3. Fairness or Finality? Conflicts of Principles and Goals
9.4. Access to Arbitration and Fair Hearing
List of References
Appendices
Index
