The Evolution and Future of International Arbitration

Name: The Evolution and Future of International Arbitration
Brand: Kluwer Law International
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Stavros Brekoulakis Julian D. M. Lew(Editor)

Kluwer Law International (Publisher)

Published on 24. June 2016

538 pages

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Intro
Halftitle Page
Volume
Title
Copyright
Table of Contents
Preface
Opening Speech at the SIA30 Anniversary Conference-Julian D M Lew
I. Conference Arrangements
II. The Definition of International Arbitration as Different from National Arbitration
III. Development of International Arbitration Instruments and Law
IV. Preference for Arbitration by International Business
V. Changes to Political and Economic Affiliations and Power
Chapter 1 Introduction: The Evolution and Future of International Arbitration-Stavros Brekoulakis
I. The Beginnings
II. The Evolution
III. Future Challenges
IV. Conclusion
Chapter 2 Paradigmatic Changes - Uniformity, Diversity, Due Process and Good Administration of Justice: The Next Thirty Years-Filip De Ly
I. Introduction
II. The Sources: Uniformity and Divergence
A. Regulatory Competition
B. Uncitral Model Law
C. Non Model Law Countries
D. Regionalisation of Arbitration Law?
E. New York Convention
F. Soft Law: Rules and Guidelines
G. Conclusion
III. General Principles: Due Process and Good Administration of Justice
A. Introduction 27
B. Statutory Developments and Expeditiousness
C. Arbitration Rules and Expeditiousness
D. Expeditiousness as a New Principle
E. Fair Trial as Another Emerging Principle
IV. Conclusions
Chapter 3 Document Production, Witness Statements, and Cross-Examination: The Enduring Tensions in International Arbitration-Laurence Shore
I. Introduction
II. Document Production
III. Witness Statements
IV. Cross-Examination
V. Conclusion
Chapter 4 Evolution of Case Law in International Arbitration-Sébastien Besson
I. Introduction and Scope of the Topic
II. Role and Importance of Case Law in International Arbitration
III. Accessibility of Case Law and the Need for Restatements, Syntheses and (Over)-Simplifications
IV. Common Trends and Variety in Case Law from a Comparative Law Perspective - a Digression on Dallah
V. Concluding Remarks
Chapter 5 A Weather Map for International Arbitration: Mainly Sunny, Some Cloud, Possible Thunderstorms-Luke Nottage
I. Introduction
II. Back to the Future for International Arbitration
III. Looking East
IV. The Rise and Possible Fall of Investment (Treaty) Arbitration
V. Conclusion: Mainly Sunny, Some Clouds and Possible Thunderstorms
Chapter 6 The Concept of Seat in the New York Convention and the Autonomy of Arbitral Award-Stefan Kröll
I. Introduction
II. The Enforcement Regimes for Foreign Awards
A. International Obligations and National Laws
1. Developments of the International Regime
2. Relationship of the International Regimes with the National Enforcement Regime
B. Examples from Case Law
1. The German Supreme Court's Refusal to Enforce an Annulled Ukrainian Award
2. The Amsterdam Court of Appeal's Enforcement the Annulled Yukos Award
3. The Putrabali Decisions of the French Cour de Cassation
C. Evaluation of the Different Views
1. Spectrum of Approaches
2. Classification of Approaches
D. Legal Admissibility of the Various Approaches
III. Necessity of Recognition of the Annulment Decision under General Rules?
IV. Existence of Discretion under Article V?
V. Advantages and Disadvantage of the Various Approaches
A. Strict Territorial Approach
B. 'Westphalian Approach'
C. Internationalist View
VI. Guidelines for Exercising the Discretion
VII. Conclusion for the Question of an Autonomous Concept
Chapter 7 The Use of Investor-State Arbitration as a De Facto Enforcement Mechanism for Arbitral Awards-Andrea K. Bjorklund
I. Introduction
II. The Legal Characterization of an Award
A. The Reception of the Notion of Awards as Investments by Investment Tribunals - or - Can Awards Qualify as Investments?
1. Saipem v. Bangladesh
2. ATA v. Jordan
3. Frontier Petroleum v. Czech Republic
4. White Industries v. India
5. GEA Group Aktiengesellschaft v. Ukraine
6. Romak SA v. Republic of Uzbekistan
III. The Assessment of the Existing Case Law on the Qualification of an Award as an Investment - or - How Awards Can Qualify as Investments
A. The Holistic Nature of Investments
B. The Autonomous Award
IV. The Political Impact of Qualifying an Award as an Investment - or - Should Awards Qualify as Investments?
V. Conclusion
Chapter 8 Parties in International Arbitration: Consent v. Commercial Reality-Stavros Brekoulakis
I. Introduction
II. Non-signatory Theories in International Arbitration
A. Assignment
B. Third Party Beneficiary
C. Apparent or Ostensible Authority
D. Equitable Estoppel in Arbitration
E. The Intertwined Version of Equitable Estoppel in Arbitration
F. The "Group of Companies" Doctrine or Implied Consent
1. Legal Basis of the Doctrine
a. The Existence of a Close Group Structure
b. The Active Role of the Non-signatory Company in the Negotiations, Performance, or Termination of the Contract
c. Common Intention of the Parties to Arbitrate
G. Alter Ego and Lifting the Corporate Veil
III. Arbitral Consent and Non-signatory Theories
IV. A Different Approach to Non-signatories in International Arbitration
V. Conclusions
Chapter 9 The Swiss Perspective on Parties in Arbitration: "Traditional Approach With a Twist regarding Abuse of Rights" or "Consent Theory Plus"-Nathalie Voser
I. Introduction
II. Extension of an Arbitration Agreement to Non-signatories when the Seat of the Arbitral Tribunal Is in Switzerland
A. Introduction
B. The Basis: Article 178 SPILA
C. Consent to Arbitrate and Interpretation of Arbitration Agreements under Swiss Law
1. The Principles of Consent and Interpretation under Swiss Law
2. Application to the Arbitration Agreement
3. Supplementary Standards Applied by the Supreme Court
4. Application of these Principles to Non-Signatory Parties
i. Formal Validity
ii. Substantive Validity
D. Practice of the Supreme Court
1. Group of Companies
"Butec Case"
2. Participation in Conclusion and/or Performance of the Contract
"Lebanese Case"
Bank as Financing Entity ("Czech Beer Case")
"Parent Guarantee"
"Employment Contract and Rated Sales Contract for Shares of Company"
3. Piercing the Corporate Veil
4. Confusion about Spheres of Activity between Parent Company and Subsidiary
E. Summary and Conclusion from Supreme Court's Case Law
1. Formal "Transfer" of Arbitration Agreement
2. Implied or Constructive Consent
3. Abuse of Rights/Principle of Good Faith and Principle of Reliance ("Rechtsscheinhaftung")
F. Has the Supreme Court Gone beyond the Consent Theory?
III. Six Reasons Why We Should Not Depart from Standard Consent-based Theories
A. Consent Is the Fundament of Arbitration and the Main Distinguishing Feature from State Court Proceedings
B. Consent Theories Are Adequate and Sufficiently Flexible to Capture Situations Where Fairness Calls for the Inclusion of a Non-Signatory Party Even if There Are Differences in Various Jurisdictions
C. The Scope of an Arbitration Agreement Is Not Relevant
D. Users Want Simple Proceedings and Certainty
E. Parties Are Usually Responsible and Sophisticated Entities
F. Abuse of Rights Theories Can Take Care of Situations Where Consent Theories Cannot Assist and/or Need Adaptation
IV. Conclusion
Chapter 10 Third Party Non-Signatories in English Arbitration Law-Audley Sheppard
I. Introduction
II. Statutory Context
A. English Arbitration Act 1996
B. Human Rights Act 1998
III. Accepted Contractual and Other Doctrines
A. Agency
B. Novation
C. Assignment
D. Operation of Law
E. Merger and Succession
F. Third Party Beneficiaries
IV. Rejected Approaches
A. Piercing the Corporate Veil and the Alter Ego Theory
B. Group of Companies
C. Implied Consent and Common Intention
D. Equitable Estoppel
E. Abuse of Rights
F. Shared Liability
V. Professor Brekoulakis's Thesis
Chapter 11 Comments on Parties in International Arbitration: Consent v. Commercial Reality by Professor Stavros Brekoulakis-John Fellas
I. Introduction
II. Current Non-signatory Theories
III. Shifting from Consent to Scope of the Dispute
IV. Conclusion
Chapter 12 A French View On The Application of The Arbitration Agreement to Non-Signatories-Philippe Pinsolle
I. Introduction
II. The Importance of the (Lack of) Formal Requirements for the Arbitration Agreement
III. What Is the Default Mechanism for Resolving Disputes in International Matters: State Courts or Arbitration?
IV. The Non-signatory's Involvement in the Performance or Termination of the Arbitration Agreement Is Generally Sufficient
V. Knowledge of the Arbitration Agreement, Actual or Imputed, Is Generally not Required
Chapter 13 Parallel Proceedings Involving Objections to Arbitral Jurisdictions: A Closer Look at the Presumed Intention of the Parties-Frédéric Bachand
I. Introduction
II. Jurisdictional Objections That Do Not Call into Question the Existence or Validity of the Arbitration Agreement
III. Jurisdictional Objections That Call into Question the Existence or Validity of the Arbitration Agreement
IV. Conclusion
Chapter 14 Preclusion and the New York Convention: Article V(1)(e) and Converse-Article V(1)(e)-Donald Francis Donovan
I. Introduction
II. The Effect of Decisions Annulling Arbitration Awards by Courts at the Juridical Seat
A. The Territorialist Approach
B. The Delocalized Approach
III. The Effect of Decisions Refusing Annulment or Confirming the Award at the Arbitral Seat
IV. Conclusion
Chapter 15 Anti-Suit Injunctions and Other Means of Indirect Enforcement of an Arbitration Agreement-Crina Baltag
I. Introduction
II. Anti-Suit Injunctions and Arbitration Agreements: Common Law v. Civil Law
III. West Tankers: The Fall of Anti-Suit Injunctions in Support of Arbitration
IV. Recast Brussels I Regulation: The Salvation of Anti-Suit Injunctions?
V. Alternatives to Anti-Suit Injunctions: Protecting the Arbitration Agreement
VI. Conclusion
Chapter 16 National Court Review of Arbitration Awards: Where Do We Go From Here?-Roman Khodykin
I. Introduction
II. Full Recourse against Awards
III. No Recourse to National Courts
IV. Challenging an Award in the Course of Enforcement
A. Option One: Exclusive Judicial Review by the Court of the Seat
B. Option Two: Exclusive Judicial Review by the Courts in the Country of Enforcement
C. Option Three: Review by an Independent International Body
D. Concluding Remarks
V. Challenge of an Award on a Limited Number of Grounds - Happy Medium?
A. Exhaust All Remedies against Award
B. Jurisdiction of Courts
VI. Party Autonomy
A. Parties' Ability to Exclude Grounds for Review
B. Parties' Ability to Expand Grounds for Review
C. Concluding Thoughts on Party Autonomy
Chapter 17 Geography of International Arbitration - Where Does the Power Lie?-Fidelis Oditah
I. Introduction
II. Developed Arbitral Centres
III. Emerging Arbitral Centres
A. Asia
B. Middle East and North Africa
C. Latin America
D. Sub-Saharan Africa
IV. Where Does the Power Lie?
V. Complaints of Emerging Economies
VI. New Areas of Growth
Chapter 18 Expansion of Arbitral Subject Matter: New Topics and New Areas of Law-Fan Kun
I. Introduction
II. Expansion of Arbitral Subject Matter and New Areas of Law
A. Human Rights to Water
1. Residents v. Polluting Corporations
2. Corporations v. States
B. Public Health
III. Potential Challenges Raised by the Expansion of Arbitral Subject Matter
A. Confidentiality v. Transparency
B. Private Interests v. Public Interests
C. Political Accountability
IV. Prospects
Chapter 19 Emergence of New Arbitral Centres in Asia and Africa: Competition, Cooperation and Contribution to the Rule of Law-Mohamed Abdel Raouf
I. Introduction
II. Diversification of the Available Arbitral Fora
A. Accessibility
B. Affordability
C. Familiarity
III. Promotion of Best Arbitral Practices
A. Efficiency
B. Cooperation
C. Innovation
IV. Conclusion
Chapter 20 The Geography of International Arbitration - Places of Arbitration: the Old Ones and the New Ones-Andrea Carlevaris
I. Introduction
II. The Evolution of the Place of Arbitration in ICC Arbitration
III. Conservatism in the Choice of the Place of Arbitration
IV. The Criteria for the Choice of the Place of Arbitration
V. Competition between Old and New Places of Arbitration
VI. Competition Among Established Seats of Arbitration
VII. Conclusions
Chapter 21 Soft Law and Power-Paul Friedland
I. Introduction
II. Soft Law
III. Conclusion
Chapter 22 A New Approach to Regulating Counsel Conduct in International Arbitration-Michael Hwang & Jennifer Hon
I. Issues within the Current Debate
II. The Actual Issues
A. Prophylactic/Preventive Sanctions
B. Remedial Sanctions
C. Punitive Sanctions
D. Recommended Solution
Chapter 23 Conflicts Disclosures: The IBA Guidelines and Beyond-Alexis Mourre
Chapter 24 The Future of Science and Technology In International Arbitration: The Next Thirty Years-Robert H. Smit
I. Introduction
II. The Pace of Technological Innovation: Science or Science Fiction?
III. On Telepresence, FMRI Lie-Detectors, and Universal Translation
A. Hearings by Holography and Other Forms of Telepresence
B. fMRI Neuroimaging of Witnesses for Lie-Detection
C. Universal Translation in Multi-Lingual Arbitrations
IV. Predicting the Future: of Computers and Cavemen
Chapter 25 The Uncertain Future of the Interactive Arbitrator: Proposals, Good Intentions and the Effect of Conflicting Views on the Role of the Arbitrator-Michael E. Schneider
I. Introduction: Two Remarkable Changes in the Last Thirty Years
II. Good Intentions: The Proposals for More Active Arbitrators
III. Rules Supporting Interactive Arbitrators
IV. The Reality of the Hands-off Arbitrator
V. A Sceptical View of the Future: Mock Arbitrators Replacing Feedback from the Real Tribunal
VI. Role Models for Arbitrators: The Impartial Referee vs. the Dispute Solver
VII. Gathering Evidence and Applying the Law: What Drives the Process?
VIII. Conclusion
Chapter 26 Report: Teaching in International Arbitration-Norah Gallagher
I. Introduction
II. Aim of an International Arbitration Programme
III. Methodology
IV. Proliferation of Specialist LLM Courses
V. Conclusion
Chapter 27 Critically Thinking: International Arbitration in Context-Jan Kleinheisterkamp
I. Introduction
II. The Arbitration Courses in the Broader Spectrum of the Master's Programme
III. Two Steps towards Mastering International Arbitration
A. Understanding the Fundamentals
B. Discussing International Arbitration at Master's Level
IV. The Role of Theory and Practice
A. Theory
B. Practice
V. Comparative Law and Conflict of Laws
VI. Conclusion
Chapter 28 Constructing a "Suite" of International Arbitration Courses: Sample LL.M Course Descriptions and Some Factors to Consider-Jack J. Coe, Jr
I. Introduction
II. Selected Trends in US Legal Education
III. Locating ICA in the Curriculum - ICA as Part of Other Courses
IV. The Role and Structure of LL.M Programs in General
V. ICA as Part of an Intensive Program - Variables and Assumptions
A. Prerequisites?
B. Common Professors, Common Syllabi?
C. Length and Intensity of Courses
D. Avoiding the Idiosyncratic
VI. Possible Specialty ICA Courses
A. ICA Theory and Doctrine
B. ICA Practice and Procedure
C. ICA and the Courts
D. Ethical Considerations in ICA
E. ICA Advocacy
F. Investor-State Disputes
G. ICA Institutions
H. International Disputes Process Design
VII. Inter-state Arbitration
VIII. Conclusion
Chapter 29 Most Effective Teaching Methodologies for International Arbitration: Traditional Teaching v. Experiential Teaching-Christophe Seraglini
I. Introduction
II. Diverging and Sometimes Conflicting Methodologies for Teaching International Arbitration
A. The "Traditional Lecture" Methodology
B. The "Socratic" Method
C. The "Experiential Learning" Methodology
III. Teaching International Arbitration: An Opportunity to Reconcile Different Teaching Methodologies?
IV. Conclusion
Chapter 30 The Proliferation of Specialist LLM Programs - The Challenges They Present, The Development of Programs, Including Specialized Courses-Patricia Shaughnessy
I. Introduction
II. Proliferation of Specialist LLM Programs
III. The Challenges of LLM Programs with Arbitration and Dispute Resolution Specialization
A. Standing Out in the Crowd
B. Costs versus Value
C. Increasing Income
D. Attracting Students
E. The Development of LLM Programs
IV. Conclusion
Chapter 31 International Arbitration Scholarship: Forms, Determinants, Evolution-Thomas Schultz
I. Introduction
II. Types of Scholarship
III. Determination of Scholarship
IV. Pursuing Other People's Interests
V. Pursuing Our Own Interests
VI. Conclusion
Chapter 32 The State of Empirical Research on International Commercial Arbitration: 10 Years Later-Christopher R. Drahozal
I. Introduction
II. Surveys and Simulations
III. Non-survey Empirical Research
A. Use of Arbitration Clauses
B. Court Enforcement of International Arbitration Awards
C. Macroeconomic Effects of International Commercial Arbitration
IV. Conclusion
Chapter 33 Empirical Research on International Arbitrators: Benefits and Challenges-Michael Waibel
I. Introduction
II. Benefits of Empirical Research on Arbitrators
III. Challenges in Empirical Research on Arbitrators
IV. Conclusion
Chapter 34 Interpreting and Understanding Arbitral Awards for Purposes of Scholarly Research-Kaj Hobér
I. Introduction
II. The Availability of Arbitral Awards
III. The Status and Value of Arbitral Awards as a Basis for Scholarly Research
IV. Concluding Remarks
Chapter 35 The Interplay between Empirical Studies and Commercial Arbitration Practice-Thomas J. Stipanowich & Marcio Vasconcellos
I. Backdrop: The Vis-eration of International Commercial Arbitration
II. Surveys as a Source of Empirical Information on Arbitration and Dispute Resolution
III. Challenges and Potential Benefits of Surveys
A. Challenges and Concerns
1. Availability and Busy-ness of Professional Subjects
2. Survey Depth and Breadth
3. Survey Group
4. Vagueness and Ambiguity
5. Faking Good and Perceptibly Desirable Answers
6. Interpretational Issues
B. Potential Benefits of Surveys
IV. Survey Insights That Suggest Areas for Further Investigation and Discussion
A. User Expectations, Experiences
B. Arbitrator Selection
C. Pre-hearing Process
D. Evolving Procedural Variants
E. Arbitrators and Settlement
F. Standards for Arbitral Decision-making
G. The Professional Crunch
V. Conclusion
Articles Produced as a Part of the Straus Institute Research Program
Chapter 36 'Literature Review? What Literature Review?!' - the Influence of Legal Culture on Scholarship in International Arbitration-Rémy Gerbay
I. Introduction
II. What Is Legal Culture, and How Can It Influence Research in Arbitration?
III. Arbitration Research by the Numbers: What Comparing Ten Years of French and English Doctoral Theses Tells Us?
A. Methodology
B. Findings: General Approaches to Research Methodology
1. Multi-disciplinary Research (and Empirical Methods)
2. Historical Research
3. Comparative Research
C. Findings: Choice of Topics
1. Commercial vs Investment Arbitration
2. Breadth of Topics
3. Themes Covered
IV. Conclusions
Appendix School of International Arbitration 30TH Anniversary Gala Dinner Speeches-Julian D M Lew-Albert Jan van den Berg-David Neuberger
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The Evolution and Future of International Arbitration

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