“Do I believe in arbitration? I do. But not in arbitration between the lion and the lamb, in which the lamb is in the morning found inside the lion”. Samuel Gompers (1850-1924) President of the American Federation of Labour (1888-1924) 1 CONTENT Introduction............................................................................................................................................................5 Historical development of international arbitration..........................................................................................5 Arbitration in ancient history..........................................................................................................................5 The development of international arbitration in medieval times..................................................................6 The arduous acceptation of arbitration process in European modern history...................................................7 In the English system......................................................................................................................................7 In France.........................................................................................................................................................8 The evolution of arbitration towards the international sphere......................................................................9 Clarification of notions forming International Commercial arbitration............................................................11 Definition of Arbitration...............................................................................................................................11 A private system of adjudication..................................................................................................................11 Controlled by the parties..............................................................................................................................12 Designed to be binding upon them..............................................................................................................12 An attempt to a complete definition............................................................................................................12 Definition of “International”.........................................................................................................................13 The definition of “Commercial”....................................................................................................................14 Introducing the study of the choice of law in International arbitration...............................................................16 Chapter 1: Various types of strategy in the legal field..........................................................................................18 Strategies designed to win................................................................................................................................18 Strategies that constraint the decision maker..............................................................................................18 Strategies that transcend the decision maker..............................................................................................20 Choices allowing increased cost-‐efficiency and time reduction in International Commercial Arbitration......23 Arbitration rules and cost..............................................................................................................................23 Arbitration rules and place of arbitration.....................................................................................................24 Number of arbitrators...................................................................................................................................25 Ad hoc or institutional arbitration................................................................................................................25 Reducing procedural disputes and shortening of the procedure.................................................................25 Chapter 2: The Parties’ choice of law...................................................................................................................27 The choice of law as part of the arbitration agreement...................................................................................28 2 The issue of the validity of the Arbitration agreement.................................................................................28 The choice of the applicable law to the procedure..........................................................................................36 Distinction between the procedural rules and the Lex Arbitri......................................................................36 The opposition between the “Seat theory” and the theory of “delocalisation”...........................................39 The choice of the substantive law....................................................................................................................41 Parties’ autonomy in the scope of the choice of law....................................................................................41 The various types of choices possible...........................................................................................................44 Chapter 3: The outcomes of the absence of choice of law...................................................................................52 The duties of the arbitrators.............................................................................................................................52 The duty to deliver an enforceable award....................................................................................................52 The duty to apply the law.............................................................................................................................53 Applications of the conflict of law rules...........................................................................................................53 “Voie indirecte”............................................................................................................................................53 “Voie directe”...............................................................................................................................................55 Chapter 4: The issue arising when drafting an arbitration clause/agreement.....................................................57 General Framework for the drafting of an arbitration clause or agreement...................................................57 General principles for the drafting of an arbitration clause/agreement......................................................58 Specific considerations to the choice of laws clause....................................................................................60 Analysis of potential grounds for annulment of refusal of enforcement of the court.................................63 Analysis of arbitration clauses in context.........................................................................................................67 Dallah Real Estate v Pakistan........................................................................................................................67 Sulamerica CIA Nacional De Seguros & Ors v Enesa Engenharia..................................................................70 Proposition of a comprehensive draft..............................................................................................................73 Dallah Real Estate v Pakistan........................................................................................................................73 Sulamerica CIA Nacional De Seguros & Ors v Enesa Engenharia..................................................................73 Proposition of comprehensive clause...........................................................................................................74 Conclusive remarks:..............................................................................................................................................75 Bibliography :........................................................................................................................................................82 Books:...............................................................................................................................................................82 Articles:.............................................................................................................................................................82 Legislation:........................................................................................................................................................84 3 Codes:...............................................................................................................................................................84 Cases:................................................................................................................................................................85 Reports:............................................................................................................................................................86 Websites:..........................................................................................................................................................86 dictionary & Encyclopedia:...............................................................................................................................87 4 INTRODUCTION HISTORICAL DEVELOPMENT OF INTERNATIONAL ARBITRATION The development of international commercial arbitration is still an ongoing process. Its history can be traced back to the commencement of human history. ARBITRATION IN ANCIENT HISTORY The first traces of commercial arbitration were found in the Middle East, in what is now Iraq. Clay tablets have been found reciting dispute over water rights between merchants in a village near Kirkuk. The litigation was solved by arbitration, and ten silver shekels and an ox were the award granted to the winning party. Agreements to arbitrate future disputes have also been found in funerary trust in ancient Egypt, between 2500 BC and 2300 BC1. Arbitration processes were also found in the Roman Empire and ancient Greece. In The Iliad Homer describes a blood debt which was settled by a public arbitral process2. Roman law very early offered the possibility of existence of an agreement to arbitrate, called Compromissum. In this case the litigation had to be settled by an arbiter3. Arbitration is a very familiar notion in the Jewish tradition. It is based on Deuteronomy 16, 18, when God orders Moses to “establish judges and officers in your gates”. Throughout the second Temple era (4th cent. BC to 2nd cent. AC), Talmudic literature reports numerous stories about arbitration of monetary matters by a “Beth Din” (a court generally composed of three judges) with a particular emphasis on judges’ scholarship and integrity. In Roman times and ancient Greece, reasons to refer to arbitration as well as the procedure itself were very similar to modern times. Like in today’s national courts, researches proved that Roman and Greek courts were suffering from congestion and backlogs. Thus arbitration quickly appeared as a suitable mean to solve private matters, granting a quicker and sometimes fairer solution to the parties. Arbitral procedure was in both cases essentially subject to the parties’ control. The progressive recognition and validity of arbitration agreements was based on the principle of Pacta sunt servanda. There were only a few limits on the subject of arbitration, for example inheritance and the status of slaves/citizens4. 1 Mantica, Arbitration in Ancient Egypt, 12Arb.J.155,158-60(1957). 2 The Iliad, XVIII. 497-508. 3 Stein, Arbitration under Roman Law, 41 Arb. 203, 203-04 (1974). 4 D. Roebuck & B. de Fumichon, Roman Arbitration ,105 (2004). 5 Jurisdiction of the arbitrators was limited by the arbitration agreement. The award was binding, but at the time judicial review was limited: “The award of the arbiter which he makes with reference to the matter in dispute should be complied with, whether it is just or unjust; because the party who accepted the arbitration had only himself to blame.”5 With Christianisation in the late Roman Empire the church began to play a role. Christian bishops often exercised Arbitral jurisdiction called episcopalis audentia, created by Emperor Constantine at the beginning of the 4th century6. Roman law also allowed Jewish congregations to be granted similar powers. Those historical examples of arbitral procedure show that arbitration was somehow present from the very beginning of human history. However those procedures were generally lacking an “international” character. The internationalisation of arbitration began in the medieval times. THE DEVELOPMENT OF INTERNATIONAL ARBITRATION IN MEDIEVAL TIMES Following the movement of history arbitration developed in medieval Europe (France, England, the Swiss confederation, northern Italy and Germany). Various types of arbitration were used at that time to solve private matters. Arbitration became very common between merchants gilds, trade fairs, and professional organizations. This development was due to the growing exchange flow between European countries, through fairs, markets and gilds. Several gilds provided mandatory arbitration in case of litigation in their charters, like the Company of the Clothworkers, or the Gild of St. John of Beverley of the Hans House7. It is not difficult to justify the existence of arbitral procedures in fairs and markets. Fairs involved many itinerant and foreign merchants who could not afford to leave their disputes unsettled or to the most often inadequate local jurisdictions. The recurrent reasons to use arbitration in this context are still true today. Apart from avoiding the inadequacy of local courts and potential enforcement barriers, the idea was to have a quick procedure performed by arbitrators with commercial expertise. The increasing use of arbitration in medieval times led to various types of challenges coming from local authorities. Political and judicial distrust arose correlatively with a wider use of 5 Digest, 4, 8, 27, 2 (Ulpian), in S. Scott ed., The Civil Law, Vol. 3 (1932). 6 J. Gaudemet, La legislation religieuse de Constantin, in Revue de l’église de France, Paris 1947. 7 J. Cohen, Commercial Arbitration and the Law, 4 (1918). 6 arbitral procedure. But most of the time this jealousy was overcome by the obvious advantages of arbitration in commercial settlements. THE ARDUOUS ACCEPTATION OF ARBITRATION PROCESS IN EUROPEAN MODERN HISTORY England as well as France showed a desire to restraint the possibility using arbitration in any private or commercial matters. The various actions taken by the authorities of these countries reflected either an honest will to protect public order, or a mere hatred of the process. IN THE ENGLISH SYSTEM In 1609 Lord Coke (in Vynior V. Wilde) rendered abitrations agreements revocable at will: “Although (. . .) the defendant was bound in a bond to (. . .) observe the arbitrament, yet he might countermand it; for a man cannot by his act make such authority (. . .) not countermandable, which is by the law and of its own nature countermandable.” 8 In order to limit the effects of Lord Coke’s Dicta on commercial arbitration, the English parliament promulgated a statute commonly referred to as the Arbitration act of 1698. This act allowed the parties to make their arbitration agreement “a rule of any of His Majesty’s Courts of Records”9, thus rendering the enforcement of such agreement easier. But the interaction between Vynior’s case and the Arbitration act of 1698 ended up in an impossibility to enforce an arbitration agreement outside the scope of the Arbitration act. This problem was solved in 1833 with The English Civil Procedure Act, which stated that an arbitration agreement could not be revoked10. This evolution is also reflected in an English precedent. In the 1856 case Scott v. Avery Lord Campbell said: “I can see not the slightest ill consequences that can flow from such an agreement, and I see great advantage that may arise from it. (. . .) Public policy, therefore, seems to me to require that effect should be given to the contract.”11 Finally at the end of the 19th century England enacted the 1889 Arbitration Act. The act established the irrevocability of agreement to arbitrate future disputes12. 8 Vynior v. Wilde (1609) 77 Eng. Rep. 595 (K.B.). 9 English Civil Procedure Act, 1698, 9 & 10 Will. III, Ch. 15 10 English Civil Procedure Act, 1833, 3 & 4 Will. IV, Ch. 42, §§39-41 11 Scott v. Avery (1856) 5 H.L. Cas. 809, 853 12 English Arbitration Act, 1889, 52&53 Vict., Ch.49 7 The English way of showing reluctance to accept a broad validity of arbitration agreement was subtler than the French way. IN FRANCE In 1560 an Edict issued by Francis II rendered arbitration compulsory for commercial matters. This Edict led to a widespread use of arbitration among merchants. Even though the French system appeared to be more open to arbitral process at first, the French revolution completely changed view on the validity of arbitration agreement for future disputes. Right after the revolution arbitration was considered as one of the best applications of the general notion of social contract. It was regarded as “the most reasonable means for the termination of disputes arising between citizens”13. Arbitration was even brought to a constitutional status in the year I (1793) and year III (1795) constitutions14. Soon after the French revolution turned its back to its own creations. Arbitration was considered a danger to the rule of law and the authority of state. The Napoleonic codes imposed many restrictions on arbitration agreements. For example article 2059 of the Civil Code, and 1006 of the Code of Civil Procedure provides that agreements to settle future disputes by arbitration are not enforceable. Only a few exceptions to this principle were given in the Commercial Code for maritime insurance contract and corporate partnership15. This policy of limitation was the demonstration of a desire to eliminate this type of process considered to be too vague and a “satire to the judicial system”16. The first pretence of evolution appeared with a case of 1843. There the Cour de Cassation held that agreement to arbitrate future disputes were not binding unless they identified particular disputes and define potential arbitrators17. But the improvement was very limited. French citizen will have to wait 1925 to obtain an almost complete freedom to create binding agreement to arbitrate future litigations18. A new article in the Commercial Code gave complete enforceability of arbitration agreement. This new article was created consequently to the ratification of the 1923 Geneva Protocol on Arbitration clauses. 13 Law of 16-24 August 1790, Art. 1 14 French Constitution of Year I, 1793, Art. 86; French Constitution of Year III, 1795, Art. 210. 15 French Commercial Code, 1804, Arts. 51-63, 332 16 Mounier, Rapport Rigaud sur le projet de loi relative a l’arbitrage forcé: DP 56, at 113. 17 10th July 1843, Cie L’Alliance v. Prunier, Recueil Sirey 1843, 561 18 French Commercial Code, 1925, Art. 631. 8 As we can see arbitration process have always been present in developed societies throughout history, but it is often said that “as a technocratic mechanism of dispute settlement, with a particular set of rules and doctrines, international commercial arbitration is a product of this century"19. THE EVOLUTION OF ARBITRATION TOWARDS THE INTERNATIONAL SPHERE Most developed societies have already witnessed the development of arbitration as a mean of settlement of disputes. Before the expansion of international commercial arbitration, disputes were mainly of a domestic nature and therefore reflecting the nature of a particular society. One could then witness considerable differences between the different societies, like continental Europe, Islamic countries, Latin America. With the exponential growth of international exchange at the end of the 19th century, the need for non-domestic arbitration grew correlatively. The 1923 Geneva Protocol on Arbitration Clauses adopted by the League of Nations is the foundation stone of the development of international commercial arbitration, as we know it. This Protocol solves one of the main problems of arbitration. At that time many countries didn’t recognise the validity of an agreement to arbitrate future disputes, parties could only decide about arbitration once the litigation had arisen. The main provision was that: “Each of the Contracting States recognises the validity of an agreement whether relating to existing or future differences between parties subject respectively to the jurisdiction of different Contracting States by which the parties to a contract agree to submit to arbitration.”20 But the recognition of the validity of the arbitration agreement was not the only problem arising from the internationalisation of exchanges. 19 Shalakany, Arbitration and the Third World: A Plea for Reassessing Bias Under the Specter of Neo- Liberalism, 41 Harv. Int’l L.J. 419, 430 (2000). 20 Assembly of the League of Nations, Geneva Protocol on Arbitration Clauses, art 1, 1923. 9 The issue of the enforcement and execution of foreign arbitral awards became a huge problem. The key roots of this problem are the definition of the applicable law and jurisdiction. Treaties and protocols have been adopted to deal with this problem such as the 1927 Geneva Convention for the Execution of Foreign Arbitral Awards, the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New-York Convention), the 1961 European Convention on International Commercial Arbitration. The New-York Convention is placing consequent obligation on the courts. A court seized for the application of a foreign award is pretty much required to enforce it. The exceptions given in article V of the convention are very limited. The award can be denied enforcement only if there is a clear violation of the procedural rules governing the arbitration21, if the subject matter is not arbitrable under the applicable law22, or if the enforcement of the award is contrary to the public policy of the country23. In 1985 (revised in 2006) the United Nation Commission on International Trade Law (UNCITRAL) published a document called the Model Law on International Commercial arbitration. This document proposed a model for countries which had not yet promulgated proper law on arbitration. The Model Law only concerns International Commercial Arbitration. It does not only encourage the development of international arbitration but also allows parties to carry out the arbitration procedure as they wish24. Nowadays the UNCITRAL is still working on the global recognition of international arbitration, and the harmonization of arbitration rules. The most important treaties and Conventions that have to be kept in mind for the study of contemporary International Commercial Arbitration are: - The Geneva Protocol of 1923. 21 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art V(1), 1958. 22 See Supra note 20, art V(2a), 1958. 23 See Supra note 20, art V(2b), 1958. 24 Model Law, Article 19(1), 1985. (“the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings”). 10
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