Planning Efficient Arbitration Proceedings

Name: Planning Efficient Arbitration Proceedings | The Law Applicable in International Arbitration
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The Law Applicable in International Arbitration

Kluwer Law International (Verlag)

Erschienen am 1. April 1996

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Cover
Half Title Page
Title Page
Copyright Page
Preface
Table of Contents
Welcoming Address: Dr. Nikolaus Michalek, Austrian Federal Minister of Justice
Opening Address: Prof. Giorgio Bernini
Opening Address: DDr. Werner Melis, Chairman of the International Arbitral Centre of the Austrian Federal Economic Chamber
Foreword to Proceedings of Working Group I
Planning Efficient Arbitration Proceedings: The Accomplishments of Working Group I of the 1994 ICCA Vienna Congress
I. INTRODUCTION
II. POWERS OF ARBITRATORS TO DETERMINE PROCEDURE
III. POSSIBLE METHODS OF INCREASING EFFECIENCY
IV. IMPROVING THE PRESENTATION OF EVIDENCE
V. UNCITRAL PROJECT FOR IMPROVING PLANNING OF ARBITRAL PROCEEDINGS
VI. PRACTICAL EXPERIENCE OF ARBITRAL INSTITUTIONS
VII. CONCLUSION
Comparative Analysis of Power of Arbitrators to Determine Procedures in Civil and Common Law Systems
I. INTRODUCTION
II. THE EXISTENCE OF THE POWER
III. RESTRICTIONS UPON THE EXERCISE OF THE POWER
1. Types of Restriction
2. Nature of the Restrictions upon the Exercise of Power
IV. THE SLACKENING OF RESTRICTIONS IN INTERNATIONAL ARBITRATION
V. CONCLUSION
Power of Arbitrators to Determine Procedures under the UNCITRAL Model Law
I. A PERSONAL INTRODUCTION TO ARBITRATION
1. A Family Episode
2. Paradise Lost?
II. BASIC DISCRETIONARY POWER OF ARBITRATORS
1. Party Autonomy and Arbitrators' Discretion
2. Purpose and Scope of Arbitrators' Discretion
III. EMANATIONS AND ILLUSTRATIONS OF GENERAL DISCRETION
1. Important Provisions for International Cases
2. Some Other Supportive Provisions
IV. "IF TOUGH, USE TEETH" ("DENTAL" PROVISIONS TO OVERCOME OBSTRUCTION)
1. Default of a Party (Art. 25)
2. Objections to Be Raised Promptly (Arts. 4, 13, 16)
3. Precluding Parties from Playing Games (Arts. 32, 30)
4. Interim Measures of Protection (Arts. 17)
V. PLANNING EFFICIENT PROCEEDINGS WITHOUT UNDUE COURT RESORT ("DO NOT DISTURB")
1. Discretion to Continue Proceedings Despite Pending Court Review (Arts. 8, 13, 16)
2. Transparency and Concentration of Court Involvement (Arts. 5, 6)
VI. SOME THOUGHTS ON UNCITRAL'S DRAFT GUIDELINES FOR PREPARATORY CONFERENCES
Comparative Analysis of Power of Arbitrators to Determine Procedures under Various Arbitration Rules
I. INTRODUCTION
II. INSTITUTIONAL ARBITRATION RULES
III. CONSTRUCTION AND APPLICATION
IV. GENERAL POWERS
V. EXPRESS POWERS
SCHEDULE A EXPRESS POWERS OF TRIBUNAL TO DETERMINE PROCEDURE
Pros and Cons of More Detailed Arbitration Laws and Rules
I. INTRODUCTION: ADVANTAGES AND DISADVANTAGES OF DETAILED ARBITRATION LAW
II. REFORM OF INTERNATIONAL AND DOMESTIC ARBITRATION LAW
III. DEGREE OF DETAIL AND COMPLEXITY OF ARBITRAL RULES
IV. CONCLUSION: ADVANTAGES OF ARBITRATION
Pros and Cons of Terms of Reference and Specific Procedural Agreements in Arbitration Clauses: Storm in to Calm the Sea
I. INTRODUCTION
II. CONTENTS OF THE TERMS OF REFERENCE: THE ICC MODEL
III. FORMAT OF THE TERMS OF REFERENCE
Part a: Parties and Part b: Notifications
Part c: The parties' claims
Part d: Issues to be determined
Part e: Arbitral tribunal, Part f Place of arbitration and Part g: Procedure or "Order for Directions
APPENDICES
Appendix 1: Terms of Reference - Hints to Presiding Arbitrators
Appendix 2: Terms of Reference/Instructions to Presiding Arbitrator's Clerical Staff: An example of internal instructions
Procedures for A voiding Unexpected Legal Issues
I INTRODUCTION AND TERMINOLOGY: THE ADVERSARY AND INVESTIGATORY MODELS
MA TERIELLE PROZESSLEITUNG AND JURA NOVIT CURIA
II. ARE THE PRINCIPLES OF JUDICIAL PROCEDURE EQUALLY APPLICABLE IN ARBITRATIONS?
III. THE SCYLLA AND CHARYBDIS DILEMMA
IV. SIX GUIDELINES
1. First Guideline: Ex Officio Domain
2. Second Guideline: Party Autonomy, Equality of the Parties and Impartiality of Arbitrators
3. Third Guideline: Allowance for Diversity
4. Fourth Guideline: The Principal Aims of the Arbitral Remedy Should Be Realized
5. Fifth Guideline: Ex Parte Proceedings
6. Sixth Guideline: Timing and Manners
V. CONCLUSION
UNCITRAL Project for Improving Methods of Planning Arbitral Proceedings
I. ORIGIN OF THE PROJECT
1. UNCITRAL Congress
2. Proposal to UNCITRAL
II. FIRST DRAFT OF GUIDELINES
1. Chapter I. "General Considerations
2. Chapter II. "Convening and Conducting Preparatory Conference
3. Chapter III. "Annotated Checklist of Possible Topics for Preparatory Conference
III. JUNE 1994 UNCITRAL SESSION
1. General Observations about the Draft
2. Commission's Conclusions
IV. ICCA CONGRESS
V. FUTURE WORK
1. Revision of Draft Guidelines for Adoption in 1995
2. Possible Other Related Projects
Overview of Methods of Presenting Evidence in Different Legal Systems
I. THE FALLACY OF THE GREAT DIVIDE
II. A MODEST PROPOSAL
III. OVERVIEW OF THE SESSION
V. CONCLUSIONS
Burden of Proof in International Arbitration
I. INTRODUCTION
II. WHAT TRUTH DOES THE ARBITRATOR SEEK?
III. THE BURDEN OF GOING FORWARD
IV. THE BURDEN OF PERSUASION
1. Where Is the Standard to Be Found?
2. What Is the Standard?
3. Ways in Which the Standard Can Be Met - The Use of Presumptions
V. CONCLUSION
Improving Procedures for Discovery and Documentary Evidence
I. INTRODUCTION
II. DISCOVERY
1. Forms of Discovery
2. Aims of the Discovery Process
3. Methods for Improving the Use of Discovery
4. Compliance
III. DOCUMENTARY EVIDENCE
1. Rules of Evidence
2. Methods for Improving the Presentation of Documentary Evidence
IV. CONCLUSIONS
APPENDIX A
APPENDIX B
Improving Procedures for Oral and Written Witness Testimony
I. THE FRAMEWORK
1. National Rules of Procedure
2. Mandatory Rules
3. Tribunals Are Not Usually Bound to Strict Rules of Evidence
II. TESTIMONY IN INTERNATIONAL ARBITRATION: THE PRACTICE
1. Widely Applied Pre-formulated Rules
2. Published Material Concerning Oral and Written Testimony During Arbitral Proceedings
III. WHAT SHOULD BE MAINTAINED AND WHAT COULD BE CHANGED?
1. Importance of the Written Statement in Proceedings
2. Extensive Volume of Testimony
IV. PROPOSAL FOR WITNESS TESTIMONY
1. Initial Statements
2. Arbitrator's Means to Avoid Unnecessary Oral Testimony
3. Written Witness Testimony During Hearings
V. A REMARK CONCERNING INSTITUTIONAL RULES
VI. ADDITIONAL SUGGESTIONS FOR IMPROVEMENTS
VII. CONCLUSION
Improving Procedures for Expert Testimony
I. INTRODUCTION - DEFINITION
II. EXPERT WITNESSES IN THE RULES OF ARBITRATION INSTITUTIONS
III. STATUS AND ROLE OF EXPERT WITNESSES
IV. THE WRITTEN STATEMENT OF THE EXPERT WITNESS
V. APPEARANCE OF THE EXPERT WITNESS BEFORE THE ARBITRATORS
VI. CONCLUSION
Roles of the Arbitral Tribunal in Civil Law and Common Law Systems with Respect to Presentation of Evidence
I. INTRODUCTION
II. THE CIVIL LAW MODEL
1. Pleadings
2. No Pretrial Discovery
3. Limited Hearings
4. Experts
5. Exclusionary Rules
6. Compulsory Production of Evidence
III. THE COMMON LAW MODEL
1. Pleadings
2. Pretrial Discovery
3. The Trial
4. Exclusionary Rules
5. Compelling Production of Evidence
IV. THE MARRIAGE OF CIVIL AND COMMON LAW SYSTEMS IN CONTEMPORARY INTERNATIONAL ARBITRATION
1. Pleading Rules
2. Discovery
3. The Hearings
4. The Question of Guidelines
5. Exclusionary Rules
6. Obtaining Evidence in Another Country
APPENDIX
Books
Articles
Questions Concerning the Desirability and Text of the UNCITRAL Project to Improve Planning of Arbitral Proceedings
I. INTRODUCTION
II. DESIRABILITY AND THE LEGAL AND PRACTICAL EFFECT OF A PLANNING CHECKLIST
1. Question
2. Comments by Participants
III. DRAFT TOPICS
1. Draft Topic A
2. Draft Tapic B
3. Draft Topic C
4. Draft Topic D
5. Draft Topic E
6. Draft Topic F
7. Draft Topic G
8. Draft Topic H
9. Draft Topic I
10. Draft Topic J
11. Draft Topic K
12. Draft Topic L
13. Draft Topic M
14. Draft Topic N
15. Draft Topic O
16. Draft Topic P
17. Draft Topic Q
18. Draft Topic R
19. Draft Topic S
20 Draft Topic T
IV. ADDITIONAL TOPICS
a. Question
b. Comments by Participants
LIST OF ORAL INTERVENTIONS TO WORKING GROUP I
International Arbitral Centre of the Austrian Federal Economic Chamber
I. ORGANIZATION OF THE VIENNA CENTRE
II. THE VIENNA RULES
1. Art. 5(2) oF the Vienna RuLes
2. Art. 6(2) and Art. 7 of the Vienna Rules
3. Art. 11(3) of the Vienna Rules
4. Art. 12 of the Vienna Rules
5. Art. 13(2) of the Vienna Rules
6. Art. 17 of the Vienna Rules
7. Art. 23(3) and (4) of the Vienna Rules
III. PROVISIONS IN OTHER ARBITRATION RULES, NOT ADOPTED IN THE VIENNA RULES
1. Terms of Reference
2. Scrutiny of the Award
IV. PRACTICE OF THE BOARD OF THE VIENNA CENTRE
1. Composition of the Board
2. Decision-making Process of the Board
3. Services
V. AUSTRIAN STATUTORY LAW
1. Arbitration Clauses
2. Discretion of the Arbitrators
3. Absence of the Parties
4. No Procedure to Make A ward Enforceable
VI. OTHER AUSTRIAN ARBITRAL CENTRES
International Court of Arbitration of the International Chamber of Commerce
I. INTRODUCTION
II. LAWS AND RULES CONCERNED WITH INTERNATIONAL ARBITRATION NEED TO REMAIN FLEXIBLE
III. IN PRACTICE, IT IS MOST COMMONLY THE ARBITRATORS WHO DETERMINE THE PROCEDURE TO BE FOLLOWED
IV. METHODS OF INCREASING EFFICIENCY
1. Setting out All Claims and Defenses at an Early Stage of the Proceedings
2. Selecting Arbitrators Who Are Suitable and Available
3. Adopting Suitable Procedures
V. UNCITRAL'S GUIDELINES FOR PREPARATORY CONFERENCES IN ARBITRAL PROCEEDINGS
London Court of International Arbitration
I. INTRODUCTION
II. UNCITRAL'S DRAFT GUIDELINES
III. LCIA RULES
IV. CONCLUSION
1. The Working Group is asked whether it agrees with the Commission's support of the project to prepare Guidelines and the view expressed in its Report of the recent New York Session that "Guidelines would provide welcome assistance to practitioners ... [and] would be helpful in ad hoc arbitrations as well as arbitrations administered by institutions".
2. The Working Group is also asked to what extent the various arbitral institutions represented at this Congress presently conduct Preparatory Conferences
3. Generally
International Centre for Settlement of Investment Disputes
I. INTRODUCTION
II. ICSID ARBITRATION RULES
III. PROVISIONS FOR PRELIMINARY CONFERENCES
IV. OTHER PROVISIONS TO EXPEDITE PROCEEDINGS
American Arbitration Association
I. INTRODUCTION
II. DELAYING TACTICS
III. AAA SOLUTIONS
IV. CONCLUSION
Various Central and Eastern European Centres
I. INTRODUCTION
II. WAYS OF RATIONALLY ORGANIZING THE WORK OF THE COURT OF ARBITRATION
1. Drawing up Terms of Reference
2. Preparatory Conferences and Other Arrangements
3. Time-limit for A ward
4. Creation of a "Friendly Arbitration" Atmosphere
III. WEAPONS AGAINST DELAYING TACTICS OF THE PARTY(IES)
1. Setting a Time-limit for Pleas against Jurisdiction
2. Appointment of Arbitrator(s) Instead of the Party(ies)
3. Waiver of Rules
4. Fiction Regarding Receipt of Notices (Art. 2(1) of the UNCITRAL Rules)
5. Consequences of the Parties' Default
6. A "Second-best
IV. SUMMARY
Other Arbitration Centres: Québec National and International Commercial Arbitration Centre
I. INTRODUCTION
II. CONTEXT OF QNICAC
III. SOME SPECIFIC ASPECTS OF COMPLEX ARBITRATIONS
1. The Legal Side of Arbitration
2. Confidentiality
3. Technical Consultants to the Parties
4. A Spirit of Cooperation and the Elimination of Surprises
5. Evidence
6. Scheduling
7. Arbitration Expense Sharing
III. RAPID SURVEY OF THE UNCITRAL DRAFT GUIDELINES FOR PREPARATORY CONFERENCES
1. General Comments
2. Specific Comments
IV. CONCLUSION
Non-administered Arbitration
I. TERM: NON-ADMINISTERED ARBITRATIONS
II. INTRODUCTION
III. VARIATION IN PROCEDURAL DETAILS FOR AD HOC ARBITRATIONS
IV. ARGUMENTS CONCERNING PROCEDURAL ISSUES AT AN EARLY STAGE
V. MERITS OF AN EARLY PREPARATORY MEETING
VI. CONCLUSION
Introduction to Proceedings of Working Group II
I. INTRODUCTION
II. RELEVANCE OF APPLICABLE LAW
III. PRELIMINARY ISSUES
IV. PROCEDURAL LAW
V. CONFLICT OF LAWS
VI. SUBSTANTIVE LAW
1. National Private Law
2. National Public Law
3. General Principles and Lex Mercatoria
4. Public International Law
VII. CONCLUSION
The Law Governing the Capacity to Arbitrate
I. INTERNATIONAL AND NATIONAL RULES OF CONFLICT REGULATING THE CAPACITY TO ARBITRATE
II. AUTHORITY TO REPRESENT PARTIES
III. PARTICIPATION IN THE ARBITRATION AGREEMENTS BY STATES OR OTHER LEGAL ENTITIES OF PUBLIC LAW
IV. CAPACITY TO ARBITRATE IN CONNECTION WITH THE SETTLEMENT OF DISPUTES RELATED TO THE FOREIGN DEBT OF THE FORMER USSR
Towards a Possible Solution: Limitation, Interest and Assignment in London and Paris
I. INTRODUCTION
II. TASK OF COMPARATIVE LAW
1. French Arbitration
2. English Arbitration
III. LIMITATION DEFENCES
1. Paris Arbitration
2. London Arbitration
IV. INTEREST
1. Paris Arbitration
2. London Arbitration
V. CONSENSUAL ASSIGNMENT
1. London Arbitration
2. Paris Arbitration
VI. CONCLUSION
Applicable Substantive Law in Disputes between States and Private Foreign Parties: The Case of Arbitration under the ICSID Convention
I INTRODUCTION
II. ART. 42(1), FIRST SENTENCE
1. Party Autonomy
2. Must the Choice of Law Be Express?
III. ART. 42(1), SECOND SENTENCE
1. Applicable Law in the Absence of Party Agreement
2. The Meaning of "International Law" in This Context
IV. ARTS. 42(2) AND 42(3) OF THE CONVENTION
1. Prohibition of a Non Liquet
2. Ex Aequo et Bono Decision-Making Power
V. APPLICATIONS OF ART. 42 OF THE CONVENTION
1. Party Agreement
2. Time of Agreement and Implied Agreements
3. Absence of Agreement
4. Applications of International Law
VI. PROSPECTS AND CONCLUSIONS
1. The Relevance of the Annulment Remedy
2. The Growing Role of International Law
3. Investment Treaties and the World Bank Group Guidelines on the Treatment of Foreign Direct Investment
Introduction: the Law Governing the Procedure
The Law Governing Procedure: Express or Implied Choice by the Parties - Contractual Practice
I. INTRODUCTION
II. CONTRACTUAL CHOICE IN THE ARBITRATION AGREEMENT
III. CHOICE BY THE PARTIES IN THE TERMS OF REFERENCE
IV. CONCLUSION
International Arbitration under U.S. Law and AAA Rules
I. INTRODUCTION
II. DRAFTING STAGE
III. ARBITRATION AGREEMENT
IV. ARBITRABILITY
V. CAPACITY
VI. PLACE OF ARBITRATION
VII. CHOICE OF LAW
VIII. PREHEARING CONFERENCES AND PRELIMINARY HEARINGS
IX. LEGAL REPRESENTATION
X. THE ARBITRATOR
XI. INTERIM MEASURES
XII. CONSOLIDATION
XIII. DISPOSITIVE MOTIONS
XIV. REMEDIES
XV. THE AWARD
XVI. ENFORCEMENT
Mandatory National Procedural Law and Auxiliary Powers of Courts
I. INTRODUCTION
II. STIPULATION OF THE ARBITRATION AGREEMENT
III. PROCEDURAL IMPLICATIONS OF THE CHOICE OF VENUE
IV. CAPACITY OF THE ARBITRATORS
V. CONCLUSION
Special Considerations Which May Affect the Procedure (Interim Measures, Amiable Composition, Adaptation of Contracts, Agreed Settlements)
I. INTRODUCTION
II. INTERIM MEASURES
III. AMIABLE COMPOSITION
IV. ADAPTATION OF CONTRACTS
V. AWARDS BY CONSENT
Procedural Decisions by the Arbitral Tribunal
I. INTRODUCTION
II. PROBLEMS ARISING AT THE OPENING OF THE ARBITRATION PROCEEDINGS
III. PLACE OF MUNICIPAL RULES IN PROCEDURE
IV. LATER STAGES OF THE PROCEEDINGS
V. CONCLUSION
SELECTED BIBLIOGRAPHY
Express and Implied Choice of the Substantive Law in the Practice of International Arbitration
I. INTRODUCTION
II. NO AGREEMENT AS TO THE APPLICABLE SUBSTANTIVE LAW: AMIABLE COMPOSITEUR
III. PUBLIC INTERNATIONAL LAW
IV. INTERNATIONAL TRADE LAW - LEX MERCATORIA
V. APPLICABLE SUBSTANTIVE LAW
1. Freedom to Choose the Law
2. The Application of the Law and Mandatory Law
3. Stabilization Clauses
4 Conflict Rules
5. European Convention of 1980
6. The German View
VI. ARBITRATION OF TORT CLAIMS
VII. ARBITRATOR'S REFUSAL TO FOLLOW THE CHOICE OF LAW
1. Domestic Award
2. International Arbitration
VIII. CONCLUSION
Regulations in Arbitration Rules on Choice of Law
I. INTRODUCTION
1. A Few Essential Definitions
2. The Topic of This Report
3. Four Types of Choices of Law
II. RECOGNITION OF THE CHOICE OF LAW MADE BY THE PARTIES
1. The Principle of the Parties' Autonomy
2. A-national Rules of Law, Lex Mercatoria, General Principles of Law, the 1994 UNIDROIT Principles
3. Limitations as to the Parties' Freedom of Choice
4. The Interrelation Between the Choice of Law, the Arbitration Rules of an Arbitral Institution and the Lex Arbitri
III. IN THE ABSENCE OF A CHOICE: POSSIBLE METHODS FOR DETERMINING THE APPLICABLE LA W
1. The Subjective Approach: Researching the Hypothetical Intentions of the Parties
2. The Objective Approach: Applying Conflict of Laws Rules - But Which Ones?
3. The Major Connecting Factors
4. The Failure of Private International Law Systems to Provide Consistent, Convincing and Harmonious Answers
IV. THE EVOLUTION FROM THE "CLASSICAL" APPROACH TO THE MODERN APPROACH
1. The Survival of the Old "Classical Approach" - Application of the Conflict of Laws System of the Place of Arbitration - in a Few Modern Arbitration Rules and Laws
2. The New Perception of the European Convention of 1961 (Art. VII)
3. The Washington Convention of 1965 - A Singular Solution
4. The UNCITRAL Arbitration Rules of 1976 (Art. 33)
5. The Algiers Declaration of 19 January 1981 (Art. V)
6. The Rome Convention on the Law Applicable to Contractual Obligations (A rt. 4(1))
V. THE REFLECTION OF THE NEW APPROACH IN INSTITUTIONAL ARBITRATION RULES
1. ICC Rules of 1975 (Art. 13(3))
2. LCIA (Art. 13 (1)(a))
3. AAA International Arbitration Rules (Art. 29(1))
4. WIPO Arbitration Rules (Art. 59)
5. Vienna International Arbitral Centre (Art. 16)
6. NAI Rules (Art. 46)
7. German Institution of Arbitration (Sect. 21(2))
8. Ukrainian Chamber
9. Bulgarian Chamber
10. Romanian Chamber
11. Croatian Chamber
12. Polish Chamber
13. Stockholm Chamber
14. Indian Council of Arbitration
15. Milan Chamber
16. Institutional Arbitration Rules without Specific Provisions
VI. THE REFLECTION OF THE LIBERAL APPROACH IN MODERN ARBITRATION LAWS
1. French Law (Art. 1496 NCCP)
2. Swiss Arbitration Act (Art. 187(1) PILA)
3. Dutch Arbitration Act (Art. 1054(2) Dutch CCP)
4. New Italian Law of 1994 (Art. 834 Code of Civil Procedure, as amended by Law No. 25 of 5 January 1994)
5. New Draft Indian Arbitration and Conciliation Bill of 1995
6. National Laws Based on the UNCITRAL Model Law
7. Arbitration Laws Which Remain Silent on This Point
VII. THE REFLECTION IN THE UNCITRAL MODEL LAW (ART. 28)
VIII. WHERE DO WE STAND? - CONCLUSIONS AND OUTLOOK
1. What Has Been Achieved So Far? - The Essential Milestones
2. Certainty and Predictability of Law
APPENDIX 1
APPENDIX 2
Relevance of Conflict of Law Rules In the Practice of Arbitration
I. INTRODUCTION
II. ALTERNATIVE CONFLICT OF LAW RULES
III. APPLICATION OF CONFLICT RULES BY ARBITRATORS
1. Application of the Substantive Law Chosen by the Parties
2. Application of the Law Impliedly Selected by the Parties
3. Application of Conflict of Law Rules to Determine the Applicable Law
4. Application of the Law Which Arbitrators Consider to Be Applicable
IV. CONCLUSION
International Conventions on Conflict of Laws and Substantive Law
I. INTRODUCTION
II. REFERENCE TO INTERNATIONAL CONVENTIONS CONSIDERED AS LEX FORI
III. REFERENCE SUGGESTED BY THE GENEVA CONVENTION AND UNCITRAL MODEL LAW
IV. REFERENCE SUGGESTED BY ARBITRATION RULES
V. THE SOLUTIONS PROVIDED BY THE 1980 ROME CONVENTION
VI. THE SUBSTANTIVE LAW SOLUTIONS PROVIDED BY THE 1980 VIENNA SALES CONVENTION
VII. THE UNIFORM INTERPRETATION OF CONVENTION RULES
VIII. ARBITRAL LAW RELATING TO CONVENTIONS ON THE CONFLICTS OF LAW
IX. ARBITRAL LAW RELATING TO THE 1980 VIENNA CONVENTION AND THE 1980 ROME CONVENTION
X. SUGGESTED ISSUES FOR DISCUSSION
The Law Applicable in International Arbitration - Relevance of Reference to Trade Usages
I. INTRODUCTION
II. RECOGNITION AND ACCEPTANCE OF TRADE USAGES
III. APPLICATION OF TRADE USAGES
IV. CONCLUSION
Special Features of the Application of Particular Laws Relevant for the Practice of Arbitration - Common Law
I. THE ADAPTABILITY OF THE COMMON LAW
II. THE COMMON LAW - HOW IT SPREAD
III. THE OBSESSIVE CONCERN WITH CASE-LAW AND ITS DEVELOPMENT
IV. DEVELOPMENT OF THE SEPARABILITY DOCTRINE UNDER THE COMMON LAW SYSTEM
V. "SEPARABILITY" - THE INNOVATIVE TECHNIQUES OF THE COMMON LAW
VI. SOME OF THE DRAWBACKS OF THE COMMON LAW SYSTEM: THE DEAD HAND OF PRECEDENT
VII. EXTRANEOUS INFLUENCES ON THE COMMON LAW
VIII. EQUITY CLAUSES - HOW FAR CAN, HOW FAR WILL, THE COMMON LAW GO?
Some Special Features of the Law of Civil Law States Relevant for the Practice of Arbitration
I. INTRODUCTION
II. AMIABLE COMPOSITION
III. THE FORMATION OF CONTRACTS AND PRE-CONTRACTUAL LIABILITY
IV. THE RULES OF INTERPRETATION OF CONTRACTS
1. Interpretation According to Good Faith
2. The Role of Precontractual Relations Between the Parties
3. Absence of the "Parol Evidence" Rule
V. GOOD FAITH IN THE PERFORMANCE OF THE CONTRACT
VI. CONCLUSION
Islamic Law
I. INTRODUCTION
II. THE PARTIES' ABILITY TO CHOOSE THE ARBITRATOR(S) TO SOLVE AN EXISTING DISPUTE
III. THE EXTENSION OF THE ARBITRAL PROCESS TO INCLUDE ASPECTS USUALLY ASSOCIATED WITH CONCILIATION
IV. THE HISTORICAL HOSTILITY TOWARDS CERTAIN TYPES OF ARBITRATION
V. CONCLUSION
Law Applicable to International Contracts in Latin America
I. INTRODUCTION
II. PARTIES' POWER TO CHOOSE APPLICABLE LAW ACCORDING TO CONFLICT OF LAWS RULES IN LATIN AMERICA
1. National Conflict of Laws Rules (Outside International Conventions)
2. Conflict of Laws Rules in International Conventions
III. UNIFORM AND MODEL LAWS AND LEX MERCATORIA CONCERNING INTERNATIONAL CONTRACTS
IV. PARTIES' POWER TO CHOOSE APPLICABLE LAW IN INTERNATIONAL ARBITRATION IN LATIN AMERICA
1. International Conventions
2. Current Outlook and Doctrinaire Considerations
CURRENT TREATIES
CLASSICAL TREATIES
Arbitration Law in States after Fundamental Changes
I. INTRODUCTION
II. SALIENT FEATURES OF THE SOCIALIST MODEL OF ARBITRATION: A RETROSPECTIVE ANALYSIS
III. CURRENT GENERAL TRENDS AND COMMON FEATURES
1. Dissolution of the COMECON The Present Status of the Moscow Convention
2. The Institutional Arbitration Centres
3. National Arbitration Laws on International Commercial Arbitration: an Overview
IV. THE DOMAIN OF ARBITRATION
V. MEMBERSHIP IN INTERNATIONAL ARBITRATION CONVENTIONS: THE PROBLEM OF NEW STATES IN THE REGION
VI. CONCLUDING REMARKS
Arbitration and Applicable Law in Japan
I. INTRODUCTION
II. LAW APPLICABLE TO ARBITRATION AGREEMENT
1. Tokyo Court of Appeal, 5 August 1935, Shimbun 3904-5
2. Yokohama District Court, 30 May 1980, JCA journal (1981, no. 2) p. 24
3. Tokyo District Court, 25 August 1988, JCA journal (1989, no. 3) p. 2
4. Tokyo District Court, 25 March 1993, 816 Hanta 233
5. Tokyo High Court, 30 May 1994, 1499 Hanji 68
III. LAW APPLICABLE TO ARBITRATION PROCEEDINGS
IV. LAW APPLICABLE TO THE MERITS
V. CONCLUSION
Mandatory Extraterritorial Application of National Law Rules
I. INTRODUCTION
II. THE ARBITRATOR CONFRONTED WITH THE EXTRATERRITORIAL APPLICATION OF MANDATORY RULES FOREIGN TO THE LEX CONTRACTUS
1. Applying Such Rules as Useful for Enforcement
2. Strict and Sole Application of the Lex Contractus
3. Arbitrator Acting as If He Were a Judge
III. ILLUSTRATIONS OF THE INEVITABLE RECOURSE TO AN APPROACH IN CONCRETO
1. The Extraterritorial Application of Competition Rules by the Arbitrator
2. The Extraterritorial Application of Boycotts by the Arbitrator
3. The Extraterritorial Application of RICO by the Arbitrator
IV. CONCLUSION
Application of General Principles of Law
I. INTRODUCTION
II. SPECIFIC PRINCIPLES APPLIED
1. Pacta Sunt Servanda and Changed Circumstances
2. Force Majeure
3. Other Principles Related to Contracts
4. Damages
5. Unjust Enrichment
6. Estoppel
III. ENFORCEABILITY OF AWARDS BASED ON GENERAL PRINCIPLES OF LAW
The Law Applicable in International Arbitration: Application of Public International Law
I. INTRODUCTION
II. INTERNATIONAL LAW AS THE LEX ARBITRI
III. INTERNATIONAL LAW AS THE PROPER LAW
IV. CAUSES OF ACTION IN INTERNATIONAL LAW
Thirty Years of Lex Mercatoria: Towards the Discriminating Application of Transnational Rules
I. INTRODUCTION
II. CASES WHERE TRANSNATIONAL RULES MAY BE APPLIED IN INTERNATIONAL ARBITRATION
1. Cases Where the Application of Transnational Rules Is Questionable
2. Cases Where It Is Legitimate to Apply Transnational Rules
III. THE CONTENT OF TRANSNATIONAL RULES
1. Transnational Rules Are a Method, Not a List
2. The Support for Transnational Rules in Comparative Law Need Not Be Unanimous
LIST OF ORAL INTERVENTIONS TO WORKING GROUP II
LIST OF PARTICIPANTS
INTERNATIONAL COUNCIL FOR COMMERCIAL ARBITRATION (ICCA)
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