Contemporary Problems in International Arbitration PDF
Preview Contemporary Problems in International Arbitration
CONTEMPORARY PROBLEMS IN INTERNATIONAL ARBITRATION Contemporary Problems in International Arbitration edited by JULIAN D.M. LEW Head of the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary College, University of London 1987 Springer-Science+Business Media, B.Y. IV Distrlbuton Library of Congress Cataloging in PubUcation Data ISBN 978-0-89838-926-5 ISBN 978-94-017-1156-2 (eBook) DOI 10.1007/978-94-017-1156-2 Book Information This book was first published in 1986 in a hardcover edition by the Centre of Commercial Law Studies Copyright © 1987 Springer Science+Business Media Dordrecht Originally published by Centre for Commercial Law Studies, Queen Mary College, . University of London in 1987. All rights reserved. No part of this publication may be reproduced. stored in a retrieval system. or transmitted in any form or by any means. mechanical. photocopying. recording. or otherwise. without the prior written permission of the publishers. Springer-Science+Business Media, B.V. Contents Glossary of terms ix List of contributors xi Table of Cases xiii Table of Statutes xxv Table of Treaties and Conventions xxxii Draft Legislation xxxvi Rules xxxviii Resolutions xli Declaration xlii Draft Convention xliii EEC Secondary Legislation (Regulations) xliv Miscellaneous xlv Introduction Julian DM Lew I Part 1 The School of International Arbitration 1 The birth of the School of International Arbitration 9 Pieter Sanders 2 The School of International Arbitration: aspirations and objects 12 Roy Goode 3 International arbitration - teaching and research 16 Pierre Lalive Part 2 The jurisdiction and authority of arbitrators 4 ICSID arbitration 23 Georges R Delaume 5 States in the international arbitral process 40 Karl-Heinz B6ckstiegel 6 The sources and limits of the arbitrator's powers 50 Sigvard Jarvin 7 Determination of arbitrator's jurisdiction and the public policy limitations on that jurisdiction 73 Julian D M Lew 8 The sources and limits of the arbitrators' powers in England 86 Kenneth S Rokison 9 The law applicable to the merits of the dispute 101 Ole Lando 10 The applicable law: general principles oflaw - the lex mercatoria 113 Berthold Goldman II The law governing the agreement and procedure in international arbitration in England 126 Lawrence Collins v vi Contemporary problems in international arbitration Part 3 International arbitration procedure 12 The extent of independence of international arbitration from the law of the situs 141 Jan Paulsson 13 The role of national law and the national courts in England 149 Stewart C Boyd QC 14 The role of the courts under the UNCITRAL model law script 164 Gerold Herrmann Annex: UNCITRAL model law on international commercial arbitration 176 15 Supplementary rules governing the presentation and reception of evidence in international commercial arbitration 188 David W Shenton 16 Judicial assistance for the arbitrator 195 J Martin H Hunter 17 The supervisory and adjunctive jurisdiction of American courts in arbitration cases 207 Joseph D Becker 18 The conduct of ICC arbitration proceedings 210 Ottoarndt Glassner 19 The conduct of arbitration proceedings under English law 216 John A Tackaberry 20 Finality of arbitral awards and judicial review 230 Clive M Schmitthoff Part 4 International arbitration involving states and state-entity parties 21 The strengths and weaknesses of international arbitration involving a state as a party 241 Philippe Cahier 22 Disputes between states and foreign companies 250 AH Hermann 23 The strengths and weaknesses of international arbitration involving a state as a party: practical implications 264 Jeremy P Carver 24 International arbitration between states and corporate entities: a cautionary note 273 Kenneth R Simmonds 25 Settlement of disputes within the framework of foreign debt rescheduling in Latin American countries 279 Bernardo M Cremades 26 Arbitration with foreign states or state-controlled entities: some practical questions 289 Pierre Lalive Contents vii 27 Structuring the arbitration in advance - the arbitration clause in an international development agreement 297 Markham Ball 28 Sovereign immunity and transnational arbitration 313 Georges R Delaume 29 Sovereign immunity and arbitration 323 Hazel Fox 30 Enforcement of arbitral awards in Eastern Europe 332 Werner Melis 31 The recognition and enforcement of foreign arbitral awards in the states of the Arab Middle East 340 SamirSaleh 32 So far, so good: enforcement of foreign commercial arbitration awards in United States courts 353 Robert Coulson 33 The enforcement of arbitral awards against a state: the problem of immunity from execution 359 Giorgio Bernini and Albert Jan Van den Berg Glossary of terms European Convention means the European Convention on International Commercial Arbitration, signed in Geneva on April 21, 1961. ICC means the International Chamber of Commerce, and where appropriate the Court of Arbitration of the International Chamber of Commerce. ICC Rules means the Rules of Conciliation and Arbitration of the International Chamber of Commerce, in force as from June 1, 1975. ICSID means the International Centre for the Settlement of Investment Disputes, established by the Washington Convention. LelA means the London Court of International Arbitration. New York Convention means the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York on June 10, 1958. UNCITRAL Model Law means the draft Model Law on International Commercial Arbitration as at March 25, 1985 and as published in United Nations Document No AlCN 9/264. UNCITRAL Rules mean the Arbitration rules adopted on April 28, 1976 by the United Nations Commission on International Trade Law (UNCITRAL) at its Ninth Session. Washington Convention means the Convention on the Settlement ofI nvestment Disputes between States and Nationals of Other States, signed in Washington, DC, on March 18, 1965. ix List of contributors MarkhamBaU Georges R Delaume Attorney-at-Law, Wald Harkrader & Ross, Senior Legal Adviser of the International Washington, DC. Centre for Settlement of Investment Disputes. Joseph D Becker J D Harvard; Attorney-at-Law, partner, Fox Hazel Fox Flyn & Me1a-ed, New York City; Adjunct Director of the British Institute of Professor of Law, New York University. International and Comparative Law; formerly Fellow of Somerville College, Oxford. Giorgio Bernini Ottoamdt Glossner Professor of Law, University of Bologna; Chairman-Elect of the International Council President of the German Institute of for Commercial Arbitration; Advocate, Arbitration, Cologne; President of the ICC Studio Beniini, Bologna. Commission on International Arbitration, Paris. Karl-Heinz BOckstiegel Berthold Goldman Professor of International Business Law, University of Cologne; President of the Iran Professor of Law, Universite de Droit US Claims Tribunal, The Hague. d'Economie et de Sciences Socia1es, Paris. Stewart C Boyd Roy Goode One of Her Majesty's Counsel, practising in Crowther Professor of Credit and Commercial England. Law; Director, Centre for Commercial Law Studies, Queen Mary College, University of Philippe Cahier London. Professor of the Graduate Institute of AHHermann International Studies, Geneva. Consultant on international business law; Jeremy P Carver Legal Correspondent of the Financial Times; Solicitor, partner in Coward Chance, Editor of the Financial Ti11UlS Business Law London. Brief Lawrence Collins Gerold Herrmann Solicitor, partner in Herbert Smith & Co, Legal OfflCer in the UNCITRAL Secretariat London. (International Trade Law Branch office of Legal Affairs, United Nations). Robert Coulson J Martin H Hunter President of the American Arbitration Association. Solicitor, partner in Freshfields, London. Bemardo M Cremades Sigvard Jarvin Practising lawyer in Madrid; Professor of General Counsel of the Court of Arbitration Law, University of Madrid. of the International Chamber of Commerce. xi xii Contemporary problems in international arbitration Pierre Lalive Pieter Sanders . Professor of Law, Geneva University and the Professor Emerims, Law Faculty of the Graduate Institute of International Smdies, Erasmus University, Rotterdam; Chairman, Geneva; Counsel, Lalive and Budin, Geneva; International Council for Commercial President of the ICC Instimte of International Arbitration. Business Law and Practice, Paris; President of the Swiss Arbitration Association. Clive M Schmitthoff Barrister, Visiting Professor of International Ole Lando Business Law, City University and of Kent at Professor of European and Comparative Law, Canterbury; Joint Vice-Chairman of the Instimte of European Market Law, Committee of Management, Centre for Copenhagen, School of Economics and Commercial Law Smdies. Business Administration. David W Shenton Julian D M Lew Solicitor, Senior Partner of Lovell, White & International Lawyer, Partner in S J Berwin King, London; Chairman of Committee D & Co, London; Senior Visiting Fellow and (Procedures for Settling Disputes) of the Head of the School of International Section on Business Law of the International Arbitration, Centre for Commercial Law Bar Association. Studies, Queen Mary College, University of London. Kenneth R Simmonds Professor of International Law, Queen Mary WemerMelis College, University of London; Former Dean Chairman of the Arbitral Centre of the of the Faculty of Laws, Queen Mary College, Federal Economic Chamber of Austria. London. Jan Paulsson John A Tackaberry Practising Lawyer, Partner in Coudert One of Her Majesty's Counsel, practising in Freres, Paris. England. Kenneth S Rokison Albert Van den Berg One of Her Majesty's Counsel, practising in Partner, Messrs Van Doorne & Sjollema, England. Rotterdam. Samir Saleh Attorney-at-Law (Beirut), Law Consultant (London), Islaniic and Middle Eastern Law, Vice-Chairman of the Court of Arbitration, ICC, Paris.
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