Arbitration Insights

Name: Arbitration Insights | Twenty Years of the Annual Lecture of the School of International Arbitration
Brand: Kluwer Law International
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Twenty Years of the Annual Lecture of the School of International Arbitration

Julian D. M. Lew Loukas A. Mistelis(Editor)

Kluwer Law International (Publisher)

Published on 6. December 2006

538 pages

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Alles über E-Books | Antworten auf Fragen rund um E-Books, Kopierschutz und Dateiformate finden Sie in unserem Info- & Hilfebereich.

Alles über E-Books, Kopierschutz & Dateiformate finden Sie in unserem Info- & Hilfebereich.

Since its establishment in 1986, the annual "Freshfields Arbitration Lecture" (as it has come to be known) has given both practitioners and academics a unique and extraordinary opportunity to explore new insights and frontiers in the theory and practice of international arbitration. Hosted by the School of International Arbitration, Queen Mary University of London, each lecture provides an eminent figure in international arbitration a platform on which to investigate problems of interest on aspects and trends in the field.

Bringing together all the published (and some unpublished) lectures in this important series, this valuable book confirms the interaction between theory and practice that the School has pursued since its inauguration, and provides in addition a remarkable testament of the School's policy of ensuring a comparative and international approach to international arbitration research and study.

Twenty-one leading academics and practitioners explore the issues of States and state enterprises in arbitration, including the following topics:

- international investment arbitration;

- national regulation of arbitration with particular focus on the English Arbitration Act, the UNCITRAL Model Law, and Latin America;

- arbitration proceedings (including the problem of delays and control of the arbitral process);

- availability of remedies (Farnsworth 1990);

- efficiency of arbitration process; and

- the impact of rules of law and national law on arbitration tribunals and the arbitration process.

The book also includes substantial coverage of such fundamental and more recent themes as default procedural rules, autonomy of the arbitration process, regulation of arbitration in national laws, validity of arbitral awards, and dissenting opinions. Several of the lectures have been augmented with updates and endnotes, and an in-depth introduction supplies a welcome overview.

With contributions by some of today's leading academics and practitioners in the field, this book will be of great interest to arbitration lawyers, international lawyers, and business people, as well as to academics, law libraries, and students of dispute resolution.

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Cover
Half Title Page
Title Page
Copyright Page
FOREWORD
Table of Contents
PREFACE
ACKNOWLEDGMENTS
TABLE OF ABBREVIATIONS
CHAPTER 1 ARBITRATION INSIGHTS: EVOLUTION AND THEMES
I. THE ESTABLISHMENT AND HISTORY OF THE LECTURE SERIES
II. THE THEMES OF THE LECTURE SERIES
A. States and State Enterprises in Arbitration
B. National Regulation of Arbitration
C. Procedural Matters and Availability of Remedies
D. Efficiency of Arbitration Process
E. Impact of Law and Rules of Law on Arbitration Tribunals and the Arbitration Process
CHAPTER 2 STATES AND THE UNDERTAKING TO ARBITRATE
I. INTRODUCTION
II. OBLIGATIONS CONTAINED IN THE UNDERTAKING TO ARBITRATE
A. Between Private Parties
B. Between States
III. EXTENSION OF UNDERTAKING TO ARBITRATE TO COVER LOCAL COURT PROCEEDINGS
A. State Immunity
B. Section 9 of the State Immunity Act 1978
IV. MIXED CLAIMS COMMISSIONS AND ARBITRAL CLAIMS TRIBUNALS
A. The Position of the Individual Claimant
B. Relationship of Arbitral Claims Tribunals to Local Courts
C. Dallal v. Bank Mellat
V. CONCLUSION
VI. ADDENDUM [2005]
CHAPTER 3 THE FUTURE OF ARBITRATION: FLEXIBILITY OR RIGIDITY?
I. INTRODUCTION: THE GENERAL THEME
II. DILEMMA: FLEXIBILITY VERSUS RIGIDITY
III. DIFFERENT SITUATIONS CALL FOR DIFFERENT REMEDIES
IV. A REALISTIC APPROACH TO THE APPRAISAL OF FLEXIBILITY AS OPPOSED TO RIGIDITY: INSTANCES IN WHICH RIGIDITY MAY BE AVOIDED
V. FORM OF PROCEEDINGS AND FORESEEABILITY OF RESULT IN INTERNATIONAL ARBITRATION
CHAPTER 4 THE PROBLEM OF DELAY IN ARBITRATION
I. INTRODUCTION
II. SUGGESTED SOLUTIONS TO THE PROBLEM OF DELAY
III. OTHER JURISDICTIONS
IV. A CRITICAL LOOK
CHAPTER 5 PUNITIVE DAMAGES IN ARBITRATION
I. INTRODUCTION
II. PUNITIVE DAMAGES
A. Will a Court Stay Arbitration of the Punitive Damage Claim?
B. Will the Arbitrators Grant Punitive Damages?
C. Will a Court where the Award is Rendered Refuse Enforcement?
D Will a Court in another Jurisdiction (than where the Award was Rendered) Refuse Enforcement?
III. LESSONS FOR DRAFTING ARBITRATION CLAUSES
CHAPTER 6 THE ADAPTATION OF ENGLISH LAW TO INTERNATIONAL COMMERCIAL ARBITRATION
I. INTRODUCTION
II. THE NEEDS OF FOREIGN PARTIES ARBITRATING IN ENGLAND
III. THE RULES OF ENGLISH LAW GOVERNING INTERNATIONAL COMMERCIAL ARBITRATION
A. The Limits of Arbitral Power
B. The Availability of Judicial Review
IV. TOWARDS A TRANSNATIONAL COMMERCIAL LAW
V. THE ADAPTATION OF ENGLISH COMMERCIAL LAW TO INTERNATIONAL COMMERCIAL ARBITRATION
CHAPTER 7 THE EFFICACY OF AWARD IN INTERNATIONAL COMMERCIAL ARBITRATION
I. INTRODUCTION
II. PREVAILING LEGAL REGIME CONCERNING ANNULMENT
III. RECENT DEVELOPMENTS
A. Country of Origin
B. Foreign Enforcement Country
IV. SHOULD THE ACTION FOR SETTING ASIDE ARBITRAL AWARDS BE RETAINED IN INTERNATIONAL ARBITRATION?
A. Assessment of Motives for Above Developments
B. Disadvantages of the Developments Concerning Setting Aside
V. CONCLUSION
CHAPTER 8 ENGLAND'S RESPONSE TO THE UNCITRAL MODEL LAW OF ARBITRATION
I. INTRODUCTION
II. THE DECISION NOT TO ADOPT THE MODEL LAW
III. THE WAY FORWARD
IV. THE STRUCTURE OF THE BILL
V. SOME MAJOR ISSUES
A. Kompetenz/Kompetenz and the Separability of the Arbitration Agreement
B. Evidence
C. Procedure
D. Immunity of Arbitrators
E. The Relationship between the Courts and Arbitration
F. Equity Clauses
VI. CONCLUSION
CHAPTER 9 STREAMLINING ARBITRAL PROCEEDINGS: SOME TECHNIQUES OF THE IRAN-UNITED STATES CLAIMS TRIBUNAL
I. INTRODUCTION
II. INDICATING IN ADVANCE THE EVIDENCE NEEDED TO ESTABLISH PRIMA FACIE PROOF OF COMPLEX FACTS
III. ESTABLISHING AND ENFORCING SCHEDULES FOR PRESENTATIONS BY PARTIES DURING HEARINGS
IV. USE OF CHECKLISTS FOR PREPARATORY CONFERENCES TO PLAN PROCEEDINGS
V. CONCLUSION
CHAPTER 10 'TELL IT TO THE JUDGE - BUT ONLY IF YOU MUST'
I. INTRODUCTION
II. THE CASE FOR SETTLEMENT
A. Will the Judge Intervene?
B. Costs and Savings
C. The Green Paper
D. The Labour Party's Proposals
E. The Herbert Smith Report
III. THE COSTS OF LAWYERS
IV. EXPERIENCE IN THE US
V. TAKING CASES OUT OF THE COURTS
VI. CASES NOT SUITABLE FOR ADR
VII. ARBITRATION
A. Delay and Cost in Arbitration
B. Procedural Change
VIII. RESISTANCE TO ADR
IX. THE ROLE OF THE COURTS IN ADR
X. ADJUDICATION AND MEDIATION IN ONE PROCEDURE
XI. OTHER STEPS
XII. CONCLUSION
XIII. EDITORS' ENDNOTE [FOR THE ORIGINAL PUBLICATION]
XIV. EDITORS' ENDNOTE [2005]
CHAPTER 11 MAY THE MAJORITY VOTE OF AN INTERNATION ARBITRAL TRIBUNAL BE IMPEACHED?
I. INTRODUCTION
II. THE ARBITRAL AWARD OF 31 JULY 1989
III. CASE CONCERNING THE ARBITRAL AWARD OF 31 JULY 1989
IV. THE JUDGMENT OF THE COURT
V. CONCLUSIONS
CHAPTER 12 'PASTURES NEW' (REVIEW OF ARBITRATION ACT 1996)
CHAPTER 13 DOES THE WORLD NEED ADDITIONAL UNIFORM LEGISLATION ON ARBITRATION?
I. INTRODUCTION
II. THE BASIS OF ARBITRATION
A. 'In Writing'
B. Field of Application of Article II(3) New York Convention
C. Subjective and Objective Arbitrability
D. Restricting or Enlarging the Scope of the Arbitration Agreement
III. POWERS AND DUTIES OF ARBITRATORS, AND OTHER PROCEDURAL ISSUES
IV. COURT ASSISTANCE OR CONTROL (EXCLUDING ENFORCEMENT)
V. REINFORCING RECOGNITION AND ENFORCEMENT OF AWARDS
A. Widening/Clarifying the Definition of 'Award'
B. Enforcement Conditions and Procedure
C. Grounds for Refusal of Recognition or Enforcement
CHAPTER 14 LLOYD GEORGE, LENIN AND CANNIBALS: THE HARRIMAN ARBITRATION
I. INTRODUCTION
II. THE HARRIMAN CONCESSION (1925)
III. THE HARRIMAN ARBITRATION (1928)
IV. 'WHY' IS ARBITRATION?
V. PEACE THROUGH TRADE
VI. SOVIET CONCESSIONS POLICY
VII. URQUHART AND HAMMER
A. The Urquhart Negotiations (1921)
B. Hammer's First Concession (1921)
C. Urquhart's Concession Agreement (1922)
VIII. THE HARRIMAN CONCESSION AGREEMENT
IX. THE HARRIMAN ARBITRATION CLAUSE
X. THE HARRIMAN VERSUS USSR DISPUTE
XI. CONCLUSION
XII. APPENDIX
CHAPTER 15 REFLECTIONS ON THE INTERNATIONAL ARBITRATOR'S DUTY TO APPLY THE LAW
I. INTRODUCTION
II. THE STATUS OF LAW IN THE INTERNATIONAL ARBITRAL PROCESS
A. Domestic Arbitration
B. International Arbitration
III. THE INTERNATIONAL ARBITRATOR'S APPLICATION OF THE LAW
A. Law and Equity
B. Law and Contract
IV. CONCLUSION
CHAPTER 16 ARBITRATION BETWEEN STATES AND FOREIGN INVESTORS: RETROSPECT AND PROSPECT
I. INTRODUCTION
II. THE FUNDAMENTAL CHANGES IN THE NUMBER AND CHARACTER OF THE TRIBUNALS
CHAPTER 17 ARBITRATION'S PROTEAN NATURE: THE VALUE OF RULES AND THE RISK OF DISCRETION
I. SYNOPSIS
II. INTRODUCTION: THE WHY AND HOW OF ARBITRATION
A. Diversity of Motive and Method
B. Common Themes
III. ARBITRAL DISCRETION
A. The Benefits of Procedural Autonomy
B. Two Meanings of 'Rules'
IV. THE DOWN SIDE OF DISCRETION
A. The Need for Default Procedural Protocols
B. Arbitral Orthodoxy
V. ARBITRATION'S ARCHITECTURE
A. Institutional Provisions
B. Illustrative Questions: Privilege and Discovery
C. Consensus and Legal Culture
VI. ALTERNATIVE PROCEDURAL MENUS
A. 'Rules Light' and 'Rules Rich'
B. Supplementary 'Opt-In' Rules
C. Gamesmanship, Over-Specificity and Escape Hatches
VII. LORE, LITERATURE AND FAIRNESS
A. Generally Accepted Norms
B. Perceptions of Fairness
VIII. COSTS AND BENEFITS OF INNOVATION
A. Ex Ante and Ex Post Rule-Making
B. Market Forces
C. Risks of Reform
IX. THE DEVIL IN THE DETAILS
A. Triage and Drafting
B. Surprise and Sequestration
X. CONCLUSION
XI. APPENDIX
ADDENDUM: PROCEDURAL DEFAULT RULES (2005)
I. INTRODUCTION
II. PROFESSIONAL GUIDELINES: THE SOFT LAW OF ARBITRATION
III. CASE MANAGEMENT AND PROCEDURAL DELOCALIZATION
IV. DUE PROCESS, RULES AND FLEXIBILITY
CHAPTER 18 DISSENTING OPINIONS IN INTERNATIONAL COMMERCIAL ARBITRATION: THE GOOD, THE BAD AND THE UGLY
CHAPTER 19 ARBITRATION AND LATIN AMERICA: PROGRESS AND SETBACKS
I. INTRODUCTION
II. HISTORICAL EVOLUTION OF ARBITRATION IN LATIN AMERICA
III. EXPANSION OF INTERNATIONAL COMMERCIAL ARBITRATION IN LATIN AMERICA
IV. POLITICAL AND SOCIO-ECONOMIC DEVELOPMENTS
V. PRESENT SITUATION OF LATIN AMERICAN ARBITRATION
VI. EFFICACY OF ARBITRATION AGREEMENTS AND AWARDS IN LATIN AMERICA
A. The 'Compromiso' or Specific Submission
B. Arbitration as an Exception to the Jurisdiction of the 'Natural Judge'
C. Arbitral Tribunals: a Component of the Judiciary, or a Non-Judicial, Independent, Dispute Resolution Mechanism?
D. National Courts and Arbitrators: Partners or Rivals?
E. Latin America and the Ratification of International Treaties on Commercial Arbitration
VII. CONCLUSION
CHAPTER 20 ACHIEVING THE DREAM: AUTONOMOUS ARBITRATION?
I. INTRODUCTION: DREAMS AND NIGHTMARES
II. PRACTICAL AND THEORETIC DEVELOPMENT OF ARBITRATION
III. HISTORICAL DEVELOPMENT OF INTERNATIONAL ARBITRATION
IV. THE LEGAL NATURE OF ARBITRATION
V. DEVELOPMENTS IN RECENT TIMES
VI. EMERGENCE OF THE INTERNATIONAL ARBITRATION MECHANISM
A. National Legislative Changes in the Major Arbitration Centres
B. Institutional Rules
VII. IMPLICATIONS OF THE AUTONOMY OF INTERNATIONAL ARBITRATION
A. International Arbitration Procedure
B. Approach of National Courts
VIII. AUTONOMY OF INTERNATIONAL ARBITRATION
SUBJECT INDEX
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