Fouchard, Gaillard, Goldman On International Commercial Arbitration

Name: Fouchard, Gaillard, Goldman On International Commercial Arbitration
Brand: Kluwer Law International
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Emmanuel Gaillard John Savage(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 1. September 1999

1320 Seiten

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Cover
Half Title Page
Title Page
Copyright Page
Table of Contents
TABLE OF ABBREVIATIONS
FOREWORD
About the authors
INTRODUCTION
PART ONE DEFINITION AND SOURCES
CHAPTER I DEFINITION OF INTERNATIONAL COMMERCIAL ARBITRATION
SECTION I DEFINITION OF ARBITRATION
§ 1. - The Arbitrators' Judicial Role
A. - ARBITRATORS' DECISIONS ARE BINDING
1° Arbitration, Conciliation and Mediation
2° Arbitration and the Role of the Engineer in FIDIC Contracts
3° Arbitration and Expert Proceedings
B. - ARBITRATORS' DECISIONS RESOLVE DISPUTES
1° Amiable Composition
2° Quality Arbitrations
3° The Completion or Adaptation of Contracts
a) In the Absence of a Hardship Clause
b) Where the Contract Contains a Hardship Clause
§ 2. - The Contractual Basis of Arbitration
A. - PARTY AUTONOMY IN INTERNATIONAL ARBITRATION
1° The Choice of a National Law to Govern the Procedure or the Merits of a Dispute
2° The Choice of Substantive Transnational Rules to Govern the Procedure or the Merits of a Dispute
B. - THE INSTITUTIONALIZATION OF INTERNATIONAL COMMERCIAL ARBITRATION
SECTION II THE MEANING OF "COMMERCIAL
§ 1. - Civil and Commercial Arbitration
A. - THE UNCITRAL MODEL LAW
B. - MODERN LEGISLATION
C. - INTERNATIONAL CONVENTIONS ON ARBITRATION
§ 2. - Public Law Arbitration and Commercial Arbitration
A. - THE ARBITRATION OF STATE CONTRACTS
B. - PUBLIC INTERNATIONAL LAW ARBITRATIONS
SECTION III THE MEANING OF "INTERNATIONAL
§ 1. - The International Nature of Arbitration and the Connection of an Arbitration to a Specific Legal Order
A. - NATIONAL ARBITRATION AND FOREIGN ARBITRATION
B. - NATIONAL ARBITRATION AND A-NATIONAL ARBITRATION
§ 2. - The International Nature of Arbitration and the Application of Specific Substantive Rules
A. - TREATY AND COMPARATIVE LAW
B. - FRENCH LAW
1° Article 1492 of the New Code of Civil Procedure
2° The Application of Article 1492 by the French Courts
CHAPTER II SOURCES OF INTERNATIONAL COMMERCIAL ARBITRATION
SECTION I PUBLIC SOURCES
§ 1. - National Sources
A. - FRENCH LAW
1° The 1980-1981 Reforms
2° Developments Since the 1981 Reform
B. - OTHER LEGAL SYSTEMS
1° Analysis
a) Europe
i) United Kingdom
ii) Belgium
iii) The Netherlands
iv) Germany
v) Portugal
vi) Switzerland
vii) Spain
viii) Italy
ix) Sweden
x) Other countries of the European Union
xi) Central and East European countries
xii) States of the former USSR
b) Other Continents
i) United States of America
ii) Canada
iii) Latin America
iv) Africa
v) The Middle East
vi) Asia and the Pacific Rim
2° Trends
a) Diversity of Legislative Techniques
b) Convergence of Legislative Objectives
§ 2. - International Sources
A. - OPTIONAL INSTRUMENTS
1° Arbitration Rules
2° The UNCITRAL Model Law
B. - BILATERAL AGREEMENTS
1° Bilateral Agreements Concerning Arbitration Incidentally
a) Bilateral Treaties Governing Economic Relations
b) Conventions on Judicial Assistance
2° Conventions Primarily Concerning Arbitration
C. - MULTILATERAL CONVENTIONS
1° The Early Conventions
a) The Geneva Protocol of September 24, 1923
b) The Geneva Convention of September 26, 1927
2° The 1958 New York Convention
a) Principal Characteristics
b) The Scope of the Convention
3° Regional Conventions
a) The European Convention of April 21, 1961
b) The Paris Agreement of December 17, 1962
c) The Strasbourg Convention of January 20, 1966
d) The Moscow Convention of May 26, 1972
e) Inter-American Conventions
f) Inter-Arab Conventions
g) The OHADA Treaty of October 17, 1993
4° The 1965 Washington Convention
SECTION II Private Sources
§ 1. - Model Arbitration Agreements
A. - MODEL ARBITRATION AGREEMENTS PREPARED BY INDIVIDUAL INSTITUTIONS
B. - INTER-INSTITUTIONAL AGREEMENTS
§ 2. - Arbitration Rules
A. - THE DIVERSITY OF ARBITRATION RULES
1° Rules Prepared by Arbitral Institutions
a) Classification of Arbitral Institutions
b) The International Court of Arbitration of the International Chamber of Commerce
2° Rules of Other Organizations
a) Rules of Evidence
b) Rules Governing Arbitrators' Ethics
B. - THE AUTHORITY OF PRIVATE ARBITRATION RULES
1° Basis of the Authority of Arbitration Rules
a) The Contractual Value of Arbitration Rules
b) Arbitration Rules as Usages or Principles of International Arbitration
2° The Status of Private Arbitration Rules in International Arbitration Law
a) Arbitration Rules Take Priority over Other Sources
b) Arbitration Rules Are Generally Sufficient to Regulate the Arbitration
§ 3. - Arbitral Awards
A. - AUTONOMY OF ARBITRAL AWARDS
B. - CONSISTENCY OF ARBITRAL CASE LAW
C. - PUBLICATION OF ARBITRAL AWARDS
PART TWO THE ARBITRATION AGREEMENT
CHAPTER I THE AUTONOMY OF THE ARBITRATION AGREEMENT
SECTION I AUTONOMY OF THE ARBITRATION AGREEMENT FROM THE MAIN CONTRACT
§ 1. - Nature of the Rule
A. - RECOGNITION OF THE PRINCIPLE IN LEADING ARBITRATION RULES
B. - RECOGNITION OF THE PRINCIPLE IN ARBITRATION STATUTES
C. - RECOGNITION OF THE PRINCIPLE IN INTERNATIONAL ARBITRAL CASE LAW
D. - RECOGNITION OF THE PRINCIPLE BY INTERNATIONAL COURTS
§ 2. - Consequences of the Autonomy of the Arbitration Agreement
A. - DIRECT CONSEQUENCES OF THE PRINCIPLE OF AUTONOMY
1° The Status of the Main Contract Does Not Affect the Arbitration Agreement
2° The Arbitration Agreement May Be Governed by a Law Different from that Governing the Main Contract
B. - INDIRECT CONSEQUENCES OF THE PRINCIPLE OF AUTONOMY
1° The Principle of Autonomy and "Competence-Competence
2° The Principle of Autonomy, the Principle of Validity and the Rejection of the Choice of Law Method
SECTION II AUTONOMY OF THE ARBITRATION AGREEMENT FROM ALL NATIONAL LAWS
§ 1. - The Choice of Law Method
A. - LEGAL CATEGORIES
1° The Arbitration Agreement and Procedure
2° The Arbitration Agreement and the Main Contract
B. - CONNECTING FACTORS
1° The Place Where the Arbitration Agreement Was Concluded
2° Factors Specific to Certain Arbitration Agreements
3° The Seat of Arbitration
§ 2. - The Substantive Rules Method
A. - FRENCH CASE LAW ESTABLISHING THE SUBSTANTIVE RULES METHOD
B. - CRITICISM OF THE SUBSTANTIVE RULES METHOD
C. - SCOPE AND MERIT OF THE SUBSTANTIVE RULES METHOD
1° Application of the Substantive Rules Method by Courts Reviewing Arbitral Awards
2° Application of the Substantive Rules Method by Arbitrators
§ 3. - Combining In Favorem Validitatis Choice of Law Rules and Substantive Rules
A. - THE SWISS MODEL
B. - THE POSITION IN FRANCE
CHAPTER II FORMATION OF THE ARBITRATION AGREEMENT
SECTION I CAPACITY AND POWER
§ 1. - The Choice of Law Method
A. - THE LAW GOVERNING THE CAPACITY TO ENTER INTO AN ARBITRATION AGREEMENT
1° Natural Persons
2° Juridical Persons
B. - THE LAW GOVERNING POWERS
§ 2. - The Substantive Rules Method
A. - THE EXCLUSIVE USE OF SUBSTANTIVE RULES
1° Capacity
2° Powers
B. - THE CORRECTIVE USE OF SUBSTANTIVE RULES
SECTION II CONSENT
SUBSECTION I THE EXISTENCE OF CONSENT
§ 1. - Interpreting the Parties' Consent
A. - THE PRINCIPLE OF INTERPRETATION IN GOOD FAITH
B. - THE PRINCIPLE OF EFFECTIVE INTERPRETATION
C. - THE PRINCIPLE OF INTERPRETATION CONTRA PROFERENTEM
D. - REJECTION OF THE PRINCIPLE OF STRICT INTERPRETATION
E. - REJECTION OF THE PRINCIPLE OF INTERPRETATION IN FAVOREM VALIDITATIS
§ 2. - The Degree of Certainty Required of the Parties' Consent
A. - PATHOLOGICAL CLAUSES
1° Selecting an Institution Which Does Not Exist or Which Is Inadequately Defined
2° "Blank Clauses
B. - COMBINED CLAUSES
1° Option to Choose Between Arbitration and the Courts
2° The Courts as an Appeal Jurisdiction
3° Conflict Between Arbitration and the Courts
C. - ARBITRATION CLAUSES INCORPORATED BY REFERENCE
1° Arbitration Clauses Incorporated by Reference and the Autonomy of the Arbitration Agreement
2° Arbitration Clauses Incorporated by Reference and Requirements of Form
3° Arbitration Clauses Incorporated by Reference and the Interpretation of the Consent of the Parties
§ 3. - Scope of the Parties' Consent
A. - WHICH PARTIES ARE BOUND BY THE CONSENT TO ARBITRATE?
1° Groups of Companies
a) Arbitral Case Law
b) French Case Law
2° States and State-Owned Entities
a) Extension of an Arbitration Agreement Signed by a State-Owned Entity to the State
b) Extension of an Arbitration Agreement Signed by a State to a State-Owned Entity
B. - WHAT SUBJECT-MATTER IS COVERED BY THE PARTIES' CONSENT?
1° Diversity of Disputes Arising from a Single Contract
a) Omission of Disputes Concerning the Validity or interpretation of the Contract
b) Submission to Arbitration of Disputes Concerning only Interpretation
2° Groups of Contracts
a) Contracts with the Same Purpose
b) Successive Contracts Between the Same Parties
3° Extra-Contractual Disputes
SUBSECTION 2 VALIDITY OF THE PARTIES' CONSENT
§ 1. - Duress
§ 2. - Misrepresentation
§ 3. - Mistake
SECTION III ARBITRABILITY
§ 1. - Subjective Arbitrability
A. - THE CHOICE OF LAW METHOD
B. - SUBSTANTIVE RULES
1° French Law
2° General Principles of International Arbitration
a) International Conventions
b) Comparative Law
c) International Arbitral Case Law
d) Resolution of the Institute of International Law
§ 2. - Objective Arbitrability
A. - FRENCH LAW
1° Methodology
a) Scope of Objective Non-Arbitrability
b) Establishing Non-Arbitrability
2° Specific Applications
a) Matters Which Do Not Involve an Economic Interest
b) Inalienable Rights
c) Other Sensitive Areas
B. - INTERNATIONAL ARBITRAL CASE LAW
1° Antitrust Law
2° Intellectual Property
3° Corruption
4° Bankruptcy Proceedings
5° Exclusive Sales Concessions
6° Embargoes
7° Taxation Disputes
SECTION IV FORM AND PROOF
§ 1. - French Law
A. - FORMAL VALIDITY AND AUTONOMY OF THE ARBITRATION AGREEMENT
1° The Cassia Decision
2° The Prevailing Position in French Law
B. - RULES GOVERNING THE FORMAL VALIDITY OF AN ARBITRATION AGREEMENT
1° The Choice of Law Method
2° Substantive Rules
§ 2. - International Conventions
A.-THE NEW YORK CONVENTION
1° The Relationship Between the Requirements of Form of the New York Convention and Those of National Arbitration Laws
a) Can National Laws Be More Liberal than the New York Convention?
b) In Order to Rely on the New York Convention, Is It Necessary to Comply with All Its Terms?
2° Provisions of the New York Convention Regarding the Form of the Arbitration Agreement
B. - THE 1961 EUROPEAN CONVENTION
CHAPTER III EFFECTS OF THE ARBITRATION AGREEMENT
SECTION I POSITIVE EFFECTS OF THE ARBITRATION AGREEMENT
§ 1. - The Parties' Obligation to Submit Disputes Covered by the Arbitration Agreement to Arbitration
A. - THE PRINCIPLE THAT PARTIES ARE OBLIGED TO SUBMIT DISPUTES COVERED BY THEIR ARBITRATION AGREEMENT TO ARBITRATION
B. - THE OBLIGATION TO SUBMIT TO ARBITRATION DISPUTES COVERED BY THE ARBITRATION AGREEMENT IS CAPABLE OF SPECIFIC PERFORMANCE
C. - THE OBLIGATION TO SUBMIT DISPUTES COVERED BY THE ARBITRATION AGREEMENT TO ARBITRATION PREVAILS OVER JURISDICTIONAL PRIVILEGES AND IMMUNITIES
1° Jurisdictional Privileges
2° Jurisdictional Immunities
§ 2. - The Arbitral Tribunal Has Jurisdiction to Resolve Disputes Covered by the Arbitration Agreement
A. - THE EXTENT OF THE JURISDICTION OF THE ARBITRAL TRIBUNAL
B. - THE ARBITRAL TRIBUNAL'S JURISDICTION TO RULE ON ITS OWN JURISDICTION ("COMPETENCE-COMPETENCE")
1° Recognition of the Principle
2° Basis of the Principle
3° Meaning of the Principle
SECTION II NEGATIVE EFFECTS OF THE ARBITRATION AGREEMENT
§ 1. - The Principle that the Courts Have No Jurisdiction
A. - INTERNATIONAL CONVENTIONS
B. - ARBITRATION LEGISLATION
§ 2. - Implementation of the Principle that the Courts Have No Jurisdiction
A. - THE COURTS CANNOT DECLARE Ex OFFICIO THAT THEY HAVE NO JURISDICTION AS A RESULT OF THE EXISTENCE OF AN ARBITRATION AGREEMENT
B. - WHEN CAN THE COURTS REVIEW THE EXISTENCE AND VALIDITY OF THE ARBITRATION AGREEMENT?
1° The Position Adopted in Comparative Law
2° Policy Considerations
§ 3. - The Limits of the Courts' Lack of Jurisdiction
A. - THE CONSTITUTION OF THE ARBITRAL TRIBUNAL
B. - PROVISIONAL AND CONSERVATORY MEASURES
C. - REVIEW OF THE AWARD BY THE COURTS
CHAPTER IV ASSIGNMENT AND EXPIRATION OF THE ARBITRATION AGREEMENT
SECTION I ASSIGNMENT OF THE ARBITRATION AGREEMENT
§ 1. - The Choice of Law Method
A. - THE LAW GOVERNING VOLUNTARY ASSIGNMENTS
1° Determining the Applicable Law
a) Contractual Assignment a/the Arbitration Agreement
b) Other Forms of Voluntary Assignment of the Arbitration Agreement
2° Scope of the Applicable Law
a) The Law Governing Formalities Aimed at Ensuring Enforceability Against the Initial Co-Contractor
b) International Mandatory Rules
B. - THE LAW GOVERNING STATUTORY ASSIGNMENTS
1° Determining the Applicable Law
2° Scope of the Applicable Law
§ 2. - Substantive Rules
A. - CONDITIONS GOVERNING THE ASSIGNMENT OF THE ARBITRATION AGREEMENT
1° Enforceability Against the Assignee of the Assignment of an Arbitration Agreement
a) Voluntary Assignments
1) The Assignee Must Consent to the Assignment
2) Acceptance of the Assignment of the Main Contract Raises a Presumption of Acceptance of the Arbitration Agreement
b) Other Means of Assigning the Arbitration Agreement
1) Statutory Subrogation
2) Universal Succession
2° Conditions Governing the Enforceability of the Assignment of the Arbitration Agreement Against the Initial Co-Contractor
a) The Presumption that the Initial Co-Contractor Accepts the Assignability of the Arbitration Agreement
1) Contractual Assignments
2) Assignment by Subrogation
b) Situations Where Express Acceptance by the Initial Co-Contractor Is Required for the Assignment of the Arbitration Agreement
1) Inuitus Personae Inferred from the Facts
2) Intuitus Personae Expressly Provided for by Contract
B. - CONSEQUENCES OF THE ASSIGNMENT OF THE ARBITRATION AGREEMENT
1° The Obligation to Submit Disputes to Arbitration
2° The Effect of an Assignment of the Arbitration Agreement on the Composition of the Arbitral Tribunal
SECTION II EXPIRATION OF THE ARBITRATION AGREEMENT
§ 1. - Expiration of the Arbitration Agreement as a Result of the Expiration of the Main Agreement?
A. - PERFORMANCE
B. - STATUTE OF LIMITATIONS
C. - NOVATION
D. - SETTLEMENT
E. - RESCISSION
F. -NULLITY
§ 2. - Causes of Expiration Specific to the Arbitration Agreement
A. - EVENTS EXTINGUISHING THE ARBITRATION AGREEMENT
1° Waiver
2° Avoidance
B. - EVENTS WHICH EXTINGUISH SUBMISSION AGREEMENTS BUT DO NOT AFFECT ARBITRATION CLAUSES
1° The Making of a Final Award
2° The Default of an Arbitrator
3° Expiration of the Deadline for the Arbitrators' Award
4° The Setting Aside of an Award
PART THREE THE ARBITRAL TRIBUNAL
CHAPTER I THE CONSTITUTION OF THE ARBITRAL TRIBUNAL
SECTION I NATIONAL AND INTERNATIONAL RULES
§ 1. - The Appointment of the Arbitrators
A. - THE PRIMACY OF THE PARTIES' AGREEMENT
1° The Meaning of the Primacy of the Parties' Agreement
a) Identity of the Arbitrators
b) Number of Arbitrators
c) Method of Appointing Arbitrators
2° Consequences of the Primacy of the Parties' Agreement
3° Limits of the Primacy of the Parties' Agreement
B. - THE SUBSIDIARY ROLE OF NATIONAL LAWS
1° French Law
2° Other Legal Systems and International Conventions
C. - RECOGNITION OF THE ROLE OF ARBITRAL INSTITUTIONS
1° International Conventions
a) The 1958 New York Convention
b) The 1961 European Convention
c) The 1965 Washington Convention
2° Recent Arbitration Statutes
3° French Law
§2. - Difficulties in the Constitution of the Arbitral Tribunal
A. - FRENCH LAW
1° Conditions Governing Judicial Intervention
a) The International Jurisdiction of the French Courts
b) Non-Mandatory Character of French Courts' Jurisdiction
c) Validity and Content of the Arbitration Clause
2° The Purpose of Judicial Intervention
a) Resolving Initial Difficulties Concerning the Constitution of the Arbitral Tribunal
b) Resolving Subsequent Difficulties Affecting the Constitution of the Arbitral Tribunal
3° The Procedure for Judicial Intervention
a) Relevant Jurisdiction
b) Organization of the Proceedings
c) Finality of the Court's Decisions
B. - OTHER LEGAL SYSTEMS
C. - INTERNATIONAL CONVENTIONS
1° The 1961 European Convention
2° The 1965 Washington Convention
§ 3. - Acceptance by the Arbitral Tribunal of Its Brief
A. - NECESSITY FOR ACCEPTANCE BY THE TRIBUNAL OF ITS BRIEF
B. - FORM OF ACCEPTANCE
C. - CONSEQUENCES OF ACCEPTANCE
SECTION II INTERNATIONAL PRACTICE
§ 1. - Ad hoc Arbitration
A. - COMMON METHODS OF APPOINTING AD HOC ARBITRATORS
B. - THE CONSTITUTION OF THE ARBITRAL TRIBUNAL UNDER THE UNCITRAL ARBITRATION RULES
1° The Appointment of the Arbitrators
2° The Challenge and Replacement of an Arbitrator
§ 2. - Institutional Arbitration
A. - THE RULES OF ARBITRATION OF THE INTERNATIONAL COURT OF ARBITRATION OF THE ICC
1° Nature and Purpose of the International Court of Arbitration
2° The Appointment of the Arbitrators
3° The Challenge and Replacement of an Arbitrator
4° The Seat of the Arbitration
B. - RULES OF OTHER ARBITRAL INSTITUTIONS
1° The Initial Constitution of the Arbitral Tribunal
2° Resolving Subsequent Difficulties
CHAPTER II THE STATUS OF THE ARBITRATORS
SECTION I ARBITRATORS AS JUDGES
§ 1. - Requirements Imposed on Arbitrators
A. - NATURE OF THE REQUIREMENTS
1° Independence and Impartiality
a) Universal Acceptance af the Principle
b) Definition of Independence and Impartiality
c) Scope of the Requirement that Arbitrators Be Independent and Impartial
2° Special Conditions Imposed on Arbitrators
B. - IMPLEMENTATION OF THE REQUIREMENTS
1° Preventative Measures
a) Duty of Disclosure
b) Powers of the Authority Appointing the Arbitrators
2° Punitive Measures
a) Interrelation of the Two Procedures
b) Challenging Arbitrators
c) Actions to Set Aside or Prevent Enforcement of the Award
§ 2. - Protection of the Arbitrators
A. - THE PRINCIPLE OF IMMUNITY
1° French Law
2° Other Legal Systems
B. - THE LIMITS OF ARBITRATOR IMMUNITY
1° Liability for Failure to Comply with Duty of Disclosure
2° Liability of Arbitrators for the Wilful Violation of Their Obligations
SECTION II ARBITRATORS AS SERVICE PROVIDERS
§ 1. - The Contractual Nature of the Arbitrators' Status
A. - THE EXISTENCE OF A CONTRACT BETWEEN THE ARBITRATORS AND THE PARTIES
B. - THE CHARACTERIZATION OF THE CONTRACT BETWEEN THE ARBITRATORS AND THE PARTIES
1° Agency
2° A Contract for the Provision of Services
3° A Sui Generis Contract
§ 2. - The Arbitrators' Contractual Rights and Obligations
A. - THE ARBITRATORS' OBLIGATIONS
1° Determining the Arbitrators' Obligations
2° Remedies for Non-Compliance with the Arbitrators' Obligations
a) Termination of the Arbitrators' Contract
b) Arbitrators' Personal Liability
B. - RIGHTS OF THE ARBITRATORS
1° Arbitrators' Pecuniary Rights
a) Determining the Amount of Arbitrators' Fees
b) Methods of Payment
c) Who Ultimately Bears the Costs of an Arbitration?
2° Arbitrators' Moral Rights
PART FOUR THE ARBITRAL PROCEDURE
CHAPTER I THE LAW GOVERNING THE PROCEDURE
SECTION I AUTONOMY OF THE LAW GOVERNING THE ARBITRAL PROCEDURE
§ 1. - The Law Governing the Procedure and the Law Governing the Merits
§ 2. - The Procedural Law and the Law of the Seat
A- NATIONAL LEGISLATION
B.- INTERNATIONAL CONVENTIONS
C.- ARBITRATION RULES
D.- ARBITRAL CASE LA W
§ 3. - Procedural Law and the Law of the Country Where the Award Is Subject to Court Review
SECTION II DETERMINING THE LAW GOVERNING THE ARBITRAL PROCEDURE
§ 1.- Is It Necessary or Appropriate to Determine the Procedural Law in Advance?
§ 2. - Criteria for Determining the Law Applicable to the Arbitral Procedure
A. - CHOICE MADE BY THE PARTIES
B. - CHOICE MADE BY THE ARBITRATORS
§ 3. - The Consequences of the Determination of the Law Governing the Arbitral Procedure
CHAPTER II THE ARBITRAL PROCEEDINGS
SECTION I COMMENCEMENT OF THE ARBITRAL PROCEEDINGS
§ 1. - Adversarial Proceedings
A. - THE REQUEST FOR ARBITRATION
1° Form and Content of the Request
2° Time Limits
3° Receipt
4° Amending the Request
5° Who is the Claimant?
B. - THE ANSWER TO THE REQUEST FOR ARBITRATION
§ 2. - Default Proceedings
SECTION II ORGANIZATION OF THE ARBITRAL PROCEEDINGS
§ 1. - Terms of Reference
A. - UTILITY OF TERMS OF REFERENCE
B. -NATURE OF THE TERMS OF REFERENCE
§ 2. - Issues Relating to the Organization of the Proceedings
A. - SEAT OF THE ARBITRATION
B. - REPRESENTATION OF THE PARTIES
C. - COMMUNICATIONS
D. - LANGUAGE OF THE ARBITRATION
E. - DEADLINES
F. - POWERS OF THE CHAIRMAN OF THE ARBITRAL TRIBUNAL
G. - SECRETARY OF THE ARBITRAL TRIBUNAL
H. - TAKING OF EVIDENCE
I. - PARTIAL AWARDS
J. - COSTS OF THE ARBITRATION
SECTION III PLEADINGS AND EVIDENCE
§ 1. - The Submission of Memorials and Evidence
A. - EVIDENCE TO BE SUBMITTED
B. - METHOD OF PRESENTING EVIDENCE
C. - POWERS OF THE ARBITRATORS
§ 2. - Witness Testimony
A. - THE DECISION TO ALLOW WITNESS TESTIMONY
B. - WHO CAN BE A WITNESS?
C. - THE PROCEDURE FOR HEARING WITNESS EVIDENCE
§ 3. - Expert Evidence and Site Inspections
§ 4. - Hearings
CHAPTER III PROVISIONAL AND CONSERVATORY MEASURES IN THE COURSE OF THE ARBITRATION PROCEEDINGS
SECTION I JURISDICTION OF THE ARBITRAL TRIBUNAL AND THE COURTS
§ 1. - The Principle of Concurrent Jurisdiction
A. - JURISDICTION OF THE COURTS
B. - NO WAIVER OF THE ARBITRATION AGREEMENT
C. - JURISDICTION OF THE ARBITRATORS
§ 2. - Limits to Concurrent Jurisdiction
A. - AGREEMENT BETWEEN THE PARTIES
B. - THE COURTS HAVE EXCLUSIVE JURISDICTION IN MATTERS OF ENFORCEMENT
SECTION II DIFFERENT TYPES OF PROVISIONAL OR CONSERVATORY MEASURES
§ 1. - Conservatory Measures
A. - CONSERVATORY MEASURES INTENDED TO PREVENT IRREPARABLE HARM
B. - CONSERVATORY MEASURES TO PRESERVE EVIDENCE
C. - CONSERVATORY MEASURES DESIGNED TO FACILITATE THE ENFORCEMENT OF THE AWARD
§ 2. - Measures Designed to Facilitate the Production of Evidence
§ 3. - The Référé-Provision Procedure
A. - THE PRINCIPLE
B. - CONDITIONS FOR THE IMPLEMENTATION OF THE RÉFÉRÉ-PROVISION
1° The Arbitral Tribunal Must Not Be Constituted
2° Urgency
CHAPTER IV THE ARBITRAL AWARD
SECTION I CONCEPT AND CLASSIFICATION OF ARBITRAL AWARDS
§ 1. - The Concept of Arbitral Award
§ 2. - Different Categories of Award
A. - FINAL AWARDS AND INTERIM AWARDS
B. - PARTIAL AWARDS AND GLOBAL AWARDS
C. - DEFAULT AWARDS
D. - CONSENT AWARDS
SECTION II THE MAKING OF THE AWARD
§ 1. - Role of the Arbitrators
A. - THE DECISION-MAKING PROCESS
B. - METHODS OF COMMUNICATION BETWEEN THE ARBITRATORS
C. - REFUSAL OF AN ARBITRATOR TO PARTICIPATE IN THE DELIBERATIONS
D. - SECRECY OF DELIBERATIONS
§ 2. - Role of the Arbitral Institution
§ 3. - Time-Limits for Making the Award
A. - WHERE THE PARTIES HAVE SPECIFIED No TIME-LIMIT
1° Where the Parties Have Chosen a Mechanism for Fixing a Deadline
2° Where the Parties Have Not Chosen a Mechanism for Fixing a Deadline
B. - WHERE THE PARTIES HAVE SPECIFIED A TIME-LIMIT
1° Extending the Deadline Fixed by the Parties
2° Breach of the Time-Limit Fixed by the Parties
SECTION III FORM OF THE AWARD
§ 1. - Language of the Award
§ 3. - Dissenting Opinions
A. - ADMISSIBILITY OF DISSENTING OPINIONS
B. - USEFULNESS OF DISSENTING OPINIONS
C. - THE LEGAL REGIME GOVERNING DISSENTING OPINIONS
§ 4. - Information Which Must Appear in the Award
A. - DATE OF THE AWARD
B. - SIGNATURE OF THE ARBITRATORS
C. - PLACE WHERE THE AWARD IS MADE
§ 5. - Recipients of the Award
SECTION IV IMMEDIATE EFFECTS OF THE AWARD
§ 1. - Termination of the Arbitrators' Jurisdiction
A. - INTERPRETATION OF THE A WARD
B. - CORRECTING CLERICAL ERRORS
C. - ADDITIONAL AWARDS
D. - WITHDRAWAL OF AN AWARD OBTAINED BY FRAUD
§ 2. - Res Judicata
PART FIVE THE LAW APPLICABLE TO THE MERITS OF THE DISPUTE
CHAPTER I APPLICABLE LAW CHOSEN BY THE PARTIES
SECTION I FORMULATION AND TIMING OF THE PARTIES' CHOICE OF LAW
§ 1. - Formulation of the Parties' Choice of Law
§ 2. - The Timing of the Parties' Choice of Law
SECTION II THE SUBJECT MATTER OF THE PARTIES' CHOICE
§ 1. - National Laws
A. - CHOICE OF A NEUTRAL LAW
B. - CHOICE OF SEVERAL LAWS (DÉPEÇAGE)
C. - CHOICE OF A STABILIZED LAW
D. - CHOICE OF A LAW WHICH RENDERS THE CONTRACT VOID
E. - CONTRACTS WITH No GOVERNING LAW
§ 2. - Transnational Rules
A. - VALIDITY OF THE CHOICE OF TRANSNATIONAL RULES AS GOVERNING LAW
B. - CRITICAL ANALYSIS OF TRANSNATIONAL RULES
1° Conceptual Criticism
2° Ideological Criticism
3° Practical Criticism
C. - METHOD AND CONTENT OF TRANSNATIONAL RULES
1° Method
2° Content
a) Principles Relating to the Validity of Contracts
b) Principles Relating to the Interpretation of Contracts
c) Principles Relating to the Performance of Contracts
§ 3. - Amiable Composition
SECTION III LIMITS ON THE EFFECTIVENESS OF THE PARTIES' CHOICE OF LAW
§ 1. - Unsatisfactory Restrictions of the Effectiveness of the Parties' Choice of Governing Law
A. - THE THEORY OF THE INCOMPLETENESS OF THE LAW CHOSEN BY THE PARTIES
B. - THE EXTENSIVE INTERPRETATION OF INTERNATIONAL TRADE USAGES
C. - THE THEORY OF INTERNATIONAL MANDATORY RULES (LOIS DE POLICE)
§ 2. - Legitimate Restrictions of the Effectiveness of the Parties' Choice of Governing Law
A. - SCOPE OF THE LAW CHOSEN BY THE PARTIES
B. - INTERNATIONAL PUBLIC POLICY
CHAPTER II APPLICABLE LAW CHOSEN BY THE ARBITRATORS
SECTION I THE METHOD USED BY ARBITRATORS IN SELECTING THE APPLICABLE LAW
§ 1. - Is a Method Imposed on the Arbitrators?
A. - ORDINARY CHOICE OF LAW RULES OF THE SEAT OF THE ARBITRATION
B. - CHOICE OF LAW RULES OF THE SEAT OF THE ARBITRATION SPECIFICALLY DESIGNED FOR INTERNATIONAL ARBITRATION
§ 2. - The Different Methods Used by Arbitrators to Choose the Applicable Law
A. - APPLICATION OF A CHOICE OF LAW RULE
1° The Cumulative Method
2° General Principles of Private International Law
3° The Free Selection of a Choice of Law Rule
B. - DIRECT CHOICE METHOD
SECTION II THE SUBJECT MATTER OF THE ARBITRATORS' CHOICE
SECTION III LIMITS ON THE EFFECTIVENESS OF THE ARBITRATORS' CHOICE
PART SIX COURT REVIEW OF ARBITRAL AWARDS
CHAPTER I FRENCH LAW
SECTION I PROCEDURE FOR THE REVIEW BY THE COURTS
§ 1. - Recognition and Enforcement
A. - RECOGNITION OF ARBITRAL AWARDS
B. - ENFORCEMENT OF ARBITRAL AWARDS
1° Jurisdiction
a) Subject-Matter Jurisdiction
b) Territorial Jurisdiction
2° Procedure
3° Extent of the Review by the Court
C. - RECOURSE AGAINST AN ORDER REFUSING OR GRANTING RECOGNITION OR ENFORCEMENT
1° Appeal Against a Decision Refusing Recognition or Enforcement
2° Appeal Against a Decision Granting Recognition or Enforcement
§ 2. - Actions to Set Aside
A. - ACTIONS BEFORE THE FRENCH COURTS TO SET A WARDS ASIDE
1° Awards Which Can Be the Subject of an Action to Set Aside in France
2° Procedure Before the Court of Appeals
B. - THE EFFECT OF PROCEEDINGS PENDING OUTSIDE FRANCE TO SET ASIDE AN A WARD OR OF A DECISION SETTING IT ASIDE
1° Jurisdiction of Courts Outside France to Set Aside Awards
2° Grounds on Which an Award May Be Set Aside Outside France
3° Consequences in France of a Foreign Judgment Setting Aside an Arbitral Award
§ 3. - Exclusivity of Recourse Against Arbitral Awards
A. - No APPEAL
B. - No THIRD PARTY ACTION
C. - No ACTION TO REVISE THE AWARD FOR FRAUD
D. - No ACTION TO HAVE THE AWARD DECLARED NON-BINDING
SECTION II THE EXTENT OF THE REVIEW BY THE COURTS
§ 1. - Where the Arbitrators Have Reached Their Decision in the Absence of an Arbitration Agreement or on the Basis of an Agreement Which Is Void or Has Expired
A. -METHOD
B. - SUBSTANCE
1° Absence of an Arbitration Agreement
2° Where the Arbitration Agreement Is Void
3° Where the Arbitration Agreement Has Expired
§ 2. - Irregular Composition of the Arbitral Tribunal
§ 3. - Where the Arbitrators Have Failed to Comply with Their Brief
A. - FAILURE TO OBSERVE THE LIMITS OF THE PARTIES' CLAIMS
1° Infra Petita
2° Ultra Petita
B. - WHERE THE ARBITRATORS HAVE FAILED TO ACT IN ACCORDANCE WITH THE POWERS CONFERRED ON THEM BY THE PARTIES
1° Procedure
2° Merits
§ 4. - Breach of Due Process
§ 5. - Where Recognition or Enforcement Would Be Contrary to International Public Policy
A. -METHOD
1° The International Nature of Public Policy
2° The Application In Concreto of Public Policy
3° The Evolving Character of Public Policy
B. -CONTENT
1° Public Policy Requirements Concerning the Arbitral Procedure
2° Public Policy Requirements Concerning the Merits of a Dispute
CHAPTER II INTERNATIONAL CONVENTIONS
SECTION I THE 1958 NEW YORK CONVENTION
§ 1. - Procedure for Recognition and Enforcement of Foreign Arbitral Awards Under the New York Convention
A. - PROCEDURE IN THE HOST COUNTRY
B. - INTERACTION OF PROCEEDINGS IN THE HOST COUNTRY WITH PROCEEDINGS IN THE COUNTRY OF ORIGIN
1° Optional Nature of Proceedings in the Country of Origin
2° Possible Implications in the Host Country of Proceedings in the Country of Origin
a) Effect in the Host Country of a Decision Setting Aside or Suspending an Award in the Country of Origin
b) Effect, in the Host Country, of Proceedings to Set Aside or Suspend the Award Pending in the Country of Origin
§ 2. - Substantive Conditions Governing Recognition and Enforcement of Foreign Arbitral Awards Under the New York Convention
A. - GROUNDS WHICH MUST BE RAISED BY THE PARTY RESISTING RECOGNITION OR ENFORCEMENT
1° Invalid Arbitration Agreements
2° Breach of Due Process
3° Non-Compliance with the Terms of the Arbitration Agreement
4° Irregularities Affecting the Composition of the Arbitral Tribunal or the Arbitral Proceedings
B. - GROUNDS WHICH CAN BE RAISED BY THE COURTS ON THEIR OWN MOTION
1° Non-Arbitrability of the Dispute
2° Awards Contravening International Public Policy
SECTION II THE 1961 EUROPEAN CONVENTION
TABLE OF ANNEXES
FRANCE
SWITZERLAND
UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
EUROPEAN CONVENTION ON INTERNATIONAL COMMERCIAL ARBITRATION
INTER-AMERICAN CONVENTION ON INTERNATIONAL COMMERCIAL ARBITRATION
AMERICAN ARBITRATION ASSOCIATION INTERNATIONAL ARBITRATION RULES
ICC RULES OF ARBITRATION
LCIA RULES
UNCITRAL ARBITRATION RULES
BIBLIOGRAPHY
TABLE OF ARBITRAL AWARDS
TABLE OF ARBITRATION RULES
TABLE OF INTERNATIONAL INSTRUMENTS
TABLE OF JUDICIAL DECISIONS
TABLE OF LEGISLATION
ALPHABETICAL INDEX
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