Pervasive Problems in International Arbitration

Name: Pervasive Problems in International Arbitration
Brand: Kluwer Law International
Price: 218.99 EUR
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Loukas Mistelis Julian D. M. Lew QC(Herausgeber*in)

Kluwer Law International (Verlag)

Erschienen am 30. Mai 2006

418 Seiten

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Beschreibung

International arbitration perhaps crosses more practical and theoretical boundaries than any other area of law. A practitioner must approach the field prepared to deal with aspects of national, international and conflicts laws, public and private law, and substantive and procedural law. Crucial issues involve policy matters as well as the layers of national and international regulation of the arbitral process. There are also special considerations to be taken into account in the presence of state parties and of third parties.

In a three-day symposium held at the School of International Arbitration, Centre for Commercial Law Studies (CCLS), Queen Mary University of London, on the occasion of its twentieth anniversary in April 2005, a stellar array of practitioners and academics undertook the task of taking a fresh look at some of the persistent legal and practice issues of international arbitration. The conference-and this book derived from it-illustrate the combination of the scholarly and the highly practical which has characterised the mission of the School of International Arbitration since its establishment in 1985.

These insightful papers demonstrate not only the increasing breadth and scope of the subject, but also the way in which many of its themes and issues cross legal and disciplinary boundaries and pose questions for the future of the law and arbitration practice in an internationalised world. These include:

- public policy;

- mandatory rules;

- confidentiality;

- provisional measures;

- res judicata;

- costs;

- amicus briefs;

- groups of companies;

- parallel proceedings; and

- anti-suit injunctions.

Contributors focus on topics and countries with which they have particular expertise or experience. Both international commercial and international investment arbitration are covered.

This important book will be of great interest to arbitration lawyers, international lawyers and business people, as well as to academics, libraries, and students of dispute resolution.

Weitere Details

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
FOREWORD
Table of Contents
TABLE OF ABBREVIATIONS
INTRODUCTION FUNDAMENTAL PROBLEMS IN INTERNATIONAL ARBITRATION
PART I INTERNATIONAL ARBITRATION AND POLICY ISSUES
CHAPTER 1 MITSUBISHI AFTER TWENTY YEARS: MANDATORY RULES BEFORE COURTS AND INTERNATIONAL ARBITRATORS
I. INTRODUCTION
II. THE MITSUBISHI DOCTRINE
1. Background
2. The Mitsubishi Decision
3. Understanding Mitsubishi
III. THE COURTS' PERSPECTIVE
1. Improper Delegation
2. The Waiver Argument
3. Arbitration of Mandatory Rules After Mitsubishi
IV. THE ARBITRATORS' PERSPECTIVE
1. Mandatory Rules and Arbitral Authority
2. Application of Mandatory Rules Which Exceed the Parties' Agreement
CHAPTER 2 EFFECT OF INTERNATIONAL PUBLIC POLICY IN INTERNATIONAL ARBITRATION?
I. INTRODUCTION
II. NOTION OF TRANSNATIONAL PUBLIC POLICY
III. NATURE OF TRANSNATIONAL PUBLIC POLICY
1. Proposed Analysis
2. Consequences of the Proposed Analysis
IV. CHOICE BETWEEN RELIANCE ON TRANSNATIONAL PUBLIC POLICY AND APPLICATION OF MANDATORY STATE RULES
CHAPTER 3 DETERMINATION AND APPLICATION OF RELEVANT NATIONAL AND INTERNATIONAL LAW AND RULES
I. INTRODUCTION
II. ETAT DES LIEUX (INVENTORY)
III. HIERARCHY?
IV. ROLE OF CONFLICT OF LAWS
V. A SPECIAL NOTE ON THE INTERPRETATION OF THE CONTRACT
VI. HOW TO ASCERTAIN THE CONTENT OF THE APPLICABLE LAW?
VII. EVOLUTION OF THE APPLICABLE LAW OVER TIME
VIII. EXTENT TO WHICH A JUDGE MAY CONTROL THE APPLICATION OF THE LAW OR RULES BY THE ARBITRAL TRIBUNAL
CHAPTER 4 THE TRANSPARENCY OF INTERNATIONAL ARBITRATION: PROCESS AND SUBSTANCE
I. INTRODUCTION: ARBITRAL CONFIDENTIALITY IN RELATED COURT PROCEEDINGS
II. ESTABLISHED CONFIDENTIALITY
III. CONFIDENTIALITY AND ENGLISH LAW
IV. CONCLUSION
CHAPTER 5 TIME AND MONEY: COST CONTROL AND EFFECTIVE CASE MANAGEMENT
I. INTRODUCTION
II. THE COSTS OF ARBITRATION
1. The Cost Structure of Arbitration
2. The Various Methods of Calculating the Arbitrators' Fees
(a) Institutional Arbitration
(b) UNCITRAL Arbitration Rules 1976 and ad hoc Arbitration
(c) The Administrative Fees
(d) The Comparison between the Different Calculation Methods
(e) The Cost of Legal Representation
III. THE REASONS FOR THE INCREASING COST OF ARBITRATION
IV. HOW TO CONTROL AND REDUCE THE COST OF ARBITRATION
V. CONCLUSION
PART II NATIONAL AND INTERNATIONAL REGULATION OF INTERNATIONAL ARBITRATION
CHAPTER 6 AUTONOMY OF INTERNATIONAL ARBITRATION PROCESS
I. INTRODUCTION
II. INTERNATIONAL ARBITRATION PROCEDURE
III. NOMINATION AND APPOINTMENT OF ARBITRATORS
IV. SEPARABILITY AND KOMPETENZ-KOMPETENZ - DIFFERENT APPROACHES TO THESE QUESTIONS AND LIMITS
V. STANDARDS IN RESPECT OF EXPERT EVIDENCE
VI. CONCLUSIONS
CHAPTER 7 THE PROCEDURAL SOFT LAW OF INTERNATIONAL ARBITRATION: NON-GOVERNMENTAL INSTRUMENTS
I THE CHALLENGE OF SOFT LAW
II. SOFT LAW AND THE ARBITRAL PROCESS
1. What Consumers Want: Balancing Fairness and Efficiency
2. "Judicialisation"
3. Institutional Rules
4. Divergent Cultural Baselines
5. Secondary Markets for Rules: Illustrating the Impact of Soft Law
(a) Who Gets the Last Word?
(b) Ex Parte Measures
III. SOFT LAW AND THE IMPERIAL ARBITRATOR
CHAPTER 8 THE ROLE OF NATIONAL COURTS AND LEX FORI IN INTERNATIONAL COMMERCIAL ARBITRATION
I. LEX FORI AND LAWS TO BE APPLIED TO AN ARBITRATION
1. Three Laws Distinguished
2. The Applicable Laws Referred to in the New York Convention
3. Arbitration Agreement v. Lex Arbitri
II. THE JUDICIAL ROLE WITH REGARD TO ARBITRATION AGREEMENT
1. The New York Convention and National Legislations
2. Stay of the Court Action and Anti-Suit Injunctions in England and the United States
3. Upon the Request of a Party?
4. Null and Void, Inoperative or Incapable of Being Performed
(a) Meaning of the Terms
(b) Which Law to Decide "Null and Void, Inoperative or Incapable of Being Performed"?
(c) The Judicial Review of the Existence, Validity and Scope of the Arbitration Agreement
III. THE JUDICIAL ROLE IN THE COMPOSITION OF THE TRIBUNAL
1. Equal Treatment Concern
2. Arbitration Agreement and Lex Fori Regarding the Composition of the Tribunal
3. The Court's Role in the Constitution and Reconstitution of the Tribunal
IV. THE JUDICIAL ROLE WITH REGARD TO INTERIM MEASURES OF PROTECTION
1. Which Organ to Order Interim Measures, the Court or the Tribunal?
(a) Necessity of Court-Ordered Measures
(b) Three Approaches
2. Whether Ordering Interim Measures is in Violation of the Agreement to Arbitrate?
3. Judicial Enforcement of Interim Measures in Support of International Commercial Arbitration
(a) Enforcement of Tribunal-Ordered Measures
(b) Enforcement Of Court-Ordered Measures by the Court of Another Jurisdiction
V. COURT REVIEW OF ARBITRAL AWARDS
1. Two Types of Review and Applicable Laws
2. Grounds for Refusing Recognition and Enforcement and Grounds for Setting Aside
3. Delocalized Awards
4. Enforcement Despite the Existence of a Ground for Refusal
(a) Enforcement of an Award in Spite of its Being Set Aside
(b) Enforcement Despite Procedural Irregularities
VI. CONCLUSION
CHAPTER 9 PROVISIONAL MEASURES
I. INTRODUCTION
II. ARBITRAL PROVISIONAL MEASURES
1. Jurisdiction of Arbitrators
2. Standards, Principles and Procedure
III. COMPLEMENTARY MECHANISMS
1. Emergency Measures from a Head or Organ of an Arbitral Institution
2. Emergency Arbitral Provisional Measure Procedures
IV. ENFORCEMENT OF ARBITRAL PROVISIONAL MEASURES
V. CONCLUSION
CHAPTER 10 REFLECTIONS ON THE USE OF ANTI-SUIT INJUNCTIONS IN INTERNATIONAL ARBITRATION
I. INTRODUCTION
II. THE VARIED USE OF ANTI-SUIT INJUNCTIONS IN INTERNATIONAL ARBITRATION
III. THE INADEQUACY OF ANTI-SUIT INJUNCTIONS IN INTERNATIONAL ARBITRATION
PART III INTERNATIONAL ARBITRATION AND STATE PARTIES
CHAPTER 11 INVESTMENT ARBITRATION AND COMMERCIAL ARBITRATION (OR THE TALE OF THE DOLPHIN AND THE SHARK)
I. INTRODUCTION
II. THE DIFFERENCES
1. Source of the Consent to Arbitrate
2. The Amicable Negotiation Period
3. Nature of the Issues
4. Applicable Law
5. State Participation
6. Transparency
7. Publicity of Decisions
8. Importance of Lex Arbitri
9. International Legal Effect
III. SIMILARITIES
IV. CONCLUSION
CHAPTER 12 JURISDICTION CHALLENGES IN BIT ARBITRATIONS - DO YOU READ A BIT BY READING A BIT OR BY READING INTO A BIT?
I. OVERVIEW
II. SUBSTANCE V. APPEARANCE IN ICSID ARBITRATIONS
III. CMS GAS TRANSMISSION COMPANY V. THE REPUBLIC OF ARGENTINA
IV. SGS SOCIETE GENERALE DE SURVEILLANCE SA V. ISLAMIC REPUBLIC OF PAKISTAN
V. SGS SOCIÉTÉ GÉNÉRALE DE SURVEILLANCE SA V. REPUBLIC OF THE PHILIPPINES
VI. TOKIOS TOKELÉS V. UKRAINE
VII. CONCLUSION
CHAPTER 13 INTERPRETATION OF TREATIES: HOW DO ARBITRAL TRIBUNALS INTERPRET DISPUTE SETTLEMENT PROVISIONS EMBODIED IN INVESTMENT TREATIES?
I. THE QUESTION: HOW TO APPROACH IT AND WHY IT IS RELEVANT
II. A REMINDER: BASICS OF TREATY INTERPRETATION
1. The Vienna Convention
2. A Comparison with Contract Interpretation
III. THE APPLICATION OF TREATY INTERPRETATION RULES TO DISPUTE SETTLEMENT PROVISIONS IN INVESTMENT TREATIES
1. Treaty v. Contract Claims
2. "Disputes with Respect to Investments"
3. Umbrella Clause
4. Most Favoured Nation Clause
IV. THE ANSWER: CONSISTENT AND OTHER SOLUTIONS, AND POSSIBLE REMEDIES
1. Consistent Solutions
2. Divergent Solutions due to Different Treaty Provisions
3. Remaining Inconsistencies and Remedies
PART IV INTERNATIONAL ARBITRATION AND THIRD PARTIES
CHAPTER 14 GROUPS OF COMPANIES IN INTERNATIONAL ARBITRATION
I. INTRODUCTION
II. LEADING CASES
III. TENTATIVE CONCLUSIONS
IV. PETERSON FARMS
CHAPTER 15 THE IMPACT OF THIRD PARTIES ON INTERNATIONAL ARBITRATION - ISSUES OF ASSIGNMENT
I. INTRODUCTORY REMARKS
1. Kompetenz-Kompetenz
2. The Importance (and Problem) of Consent
3. Particular ICSID and Other Investor-State Issues
II. CONTRACTUAL PERMISSIONS AND RESTRICTIONS
III. RELEVANT LAWS
IV. PENDING ARBITRATIONS
V. ASSIGNMENT AND THE BURDEN OF AN ARBITRATION AGREEMENT
VI. CONCLUSIONS
CHAPTER 16 THE AMICUS ROLE IN INTERNATIONAL ARBITRATION
I. AMICUS CURIAE FRINGE OR MAINSTREAM
1. Methanex v. United States
2. UPS v. Canada
3. NAFTA and ICSID
II. DIFFERENTIAL IMPACT ON THE ARBITRATING PARTIES
CHAPTER 17 PARALLEL PROCEEDINGS, RES JUDICATA AND LIS PENDENS: PROBLEMS AND POSSIBLE SOLUTIONS
I. INTRODUCTION
II. PARALLEL PROCEEDINGS
1. Introductory Remarks
2. The Czech Republic Arbitrations
III. THE PRINCIPLES OF RES JUDICATA AND LIS PENDENS
1. Res Judicata
2. Lis Pendens
IV. APPLICATION OF DOCTRINES IN RECENT INTERNATIONAL CASES
V. POSSIBLE SOLUTIONS TO THE CURRENT PROBLEM
VI. CONCLUSION
CHAPTER 18 ARBITRATION AND INSOLVENCY PROCEEDINGS - SELECTED PROBLEMS
I. INTRODUCTION
II. OVERVIEW OF THE BASIC PRINCIPLES AND FEATURES OF INSOLVENCY LAW
III. POSSIBLE AREAS OF CONFLICT
IV. THE BINDING FORCE OF INSOLVENCY PROVISIONS FOR COURTS AND TRIBUNALS
V. EFFECTS OF THE EXCLUSIVE JURISDICTION AND MANDATORY STAY PROVISIONS ON ARBITRATION
1. The Effects on Objective Arbitrability
(a) The American View: Limitations on Objective Arbitrability
(b) Arbitrability According to the European View
2. Other Restrictions Imposed in Connections with the "Collective Procedure Principles"
(a) Filing Requirements and Temporary Stays
(b) Limitations on the Remedies Available
VI. EFFECTS OF "DIVESTMENT AND SUBSTITUTION" PROVISIONS ON ARBITRATION
1. Effects on the Tribunal's Jurisdiction: The Personal Scope of the Agreement
(a) Debtor Derived Claims
(b) Non Debtor Derived Claims
2. Effects on the Arbitration Proceedings
VII. EFFECTS OF TRUSTEE'S STATUTORY POWERS TO AVOID EXECUTORY CONTRACTS ON ARBITRATION
VIII. ARBITRATION PRACTICE
IX. CONCLUSION
SUBJECT INDEX
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