International Arbitration

579 Pages·2014·3.94 MB·English

by  Born, Gary

International Arbitration: Law and Practice
Gary b. born
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For Clyde Raymond Born
Table of Contents
Preface
Acknowledgments
Part I
International Arbitration Agreements
Chapter 1
Introduction to International Arbitration
§1.01 Definition of International Arbitration
[A] What Is “Arbitration”?
[1] Consensual Means to Resolve Disputes
[2] Non-Governmental Decision-Maker Selected by or for the Parties
[3] Final and Binding Decision
[4] Use of Adjudicatory Procedures
[B] Forum Selection Clauses and National Courts
[C] Other Forms of Alternative Dispute Resolution
[1] Mediation and Conciliation
[2] Expert Determination
[3] Mini-Trials and Neutral Evaluation
[4] “Baseball” or “Final-Offer” Arbitration
[D] “International” Arbitration
§1.02 Reasons for International Arbitration
[A] Neutrality
[B] Centralized Dispute Resolution
[C] Enforceability of Agreements and Awards
[D] Commercial Competence and Expertise
[E] Finality of Decisions
[F] Party Autonomy and Procedural Flexibility
[G] Cost and Speed
[H] Confidentiality and Privacy of Dispute Resolution
[I] Arbitration Involving States and State-Entities
§1.03 Popularity of International Arbitration
§1.04 Contemporary International Arbitration Conventions
[A] New York Convention
[B] Inter-American Convention
[C] European Convention
§1.05 Contemporary National Arbitration Legislation
[A] Supportive National Arbitration Legislation
[B] 1985 UNCITRAL Model Law and 2006 Revisions
[C] Less Supportive National Legislation
§1.06 Ad Hoc and Institutional Arbitration
[A] Institutional Arbitration
[B] Ad Hoc Arbitration
[C] Relative Advantages and Disadvantages of Institutional and Ad Hoc Arbitration
[D] UNCITRAL Arbitration Rules
[E] Leading International Arbitral Institutions
[1] International Chamber of Commerce
[2] London Court of International Arbitration
[3] American Arbitration Association/International Centre for Dispute
Resolution
[4] Singapore International Arbitral Centre
[5] ICSID
[6] Permanent Court of Arbitration
[7] Other International Arbitral Institutions
§1.07 Elements of International Arbitration Agreements
[A] Submission Agreement versus Arbitration Clause
[B] Critical Elements of International Arbitration Agreements
[1] The Agreement to Arbitrat
[2] Scope of Arbitration Agreement
[3] Institutional Arbitration Rules
[4] Seat or Place of the Arbitration
[5] Number, Method of Selection and Qualifications of Arbitrators
[6] Language of the Arbitration
[7] Choice-of-Law Clauses
[C] Other Provisions of International Arbitration Agreements
§1.08 Overview of Choice of Law in International Commercial Arbitration
[A] Law Applicable to the Substance of the Parties’ Dispute
[B] Law Applicable to the Arbitration Agreement
[C] Procedural Law Applicable to the Arbitral Proceedings
[D] Choice of Laws Rules Applicable in International Arbitration
§1.09 Investor-State Arbitration
[A] ICSID Convention
[B] Bilateral Investment Treaties
§1.10 State-to-State Arbitration
Chapter 2
International Arbitration Agreements: Legal Framework
§2.01 Disputes Concerning International Arbitration Agreements
[A] Challenges to Existence, Validity and Scope of International Commercial
Arbitration Agreements
[B] Procedural Settings for Jurisdictional Objections
[1] Consideration of Jurisdictional Objections by Arbitrators
[2] Consideration of Jurisdictional Objections by National Courts
§2.02 Jurisdictional Requirements of International and National Commercial Arbitration
Regimes
[A] “Arbitration” Agreement Requirement
[B] “Commercial” Relationship Requirement
[C] “Disputes” or “Differences” Requirement
[D] “Existing or Future” Disputes Requirement
[E] “Defined Legal Relationship” Requirement
[F] “Foreign” or “International” Arbitration Agreements Requirement
[G] Reciprocity Requirements
§2.03 Presumptive Validity of International Arbitration Agreements
[A] Historic Rules of Unenforceability
[B] New York Convention
[C] National Arbitration Legislation
§2.04 Separability of International Arbitration Agreements
[A] Separability Presumption
[B] Rationale for Separability Presumption
[C] Consequences of Separability Presumption
§2.05 Allocation of Competence to Decide Disputes Over Existence, Validity and
Interpretation of International Arbitration Agreements
[A] Competence-Competence Doctrine
[B] Allocation of Competence to Decide Jurisdictional Disputes
[1] France: Prima Facie Jurisdiction
[2] United States: Interlocutory Judicial Decisions
[3] UNCITRAL Model Law: Diversity of Approaches
§2.06 Law Applicable to Formation, Validity and Interpretation of International Arbitration
Agreements
[A] Law of Judicial Enforcement Forum
[B] Law Chosen by Parties
[C] Law of Arbitral Seat
[D] “Validation” Principle
[E] International Law
[F] Other Choice-of-Law Issues
[1] Formal Validity
[2] Capacity
[3] Non-Arbitrability
[4] Non-Signatory Issues
§2.07 Effects of International Arbitration Agreements
[A] Positive Effects of Arbitration Agreement: Obligation to Arbitrate in Good Faith
[1] Source of Positive Obligations to Arbitrate
[2] Content of Positive Obligation to Arbitrate
[3] Remedies for Breach of Positive Obligation to Arbitrate
[B] Negative Effects of Arbitration Agreement: Obligation Not to Litigate
[1] Negative Obligations under Agreement to Arbitrate
[2] Remedies for Breach of Negative Obligation Not to Litigate Arbitrable
Disputes: Stay or Dismissal of Litigation
[3] Remedies for Breach of Negative Obligation Not to Litigate Arbitrable
Disputes: Antisuit Injunction
[4] Remedies for Breach of Negative Obligation Not to Litigate Disputes:
Damages for Breach of Obligation Not to Litigate
[5] Remedies for Breach of Negative Obligation Not to Litigate Disputes: Non-
Recognition of Judgments
[C] Anti-Arbitration and Anti-Suit Orders
Chapter 3
Formation and Validity of International Arbitration Agreements
§3.01 Formation of International Arbitration Agreements
[A] Consent to Arbitration Agreement
[B] Standard of Proof for International Arbitration Agreements
[C] Essential Terms of Arbitration Agreements
[1] Agreement to Arbitrate
[2] Incidental Terms
[3] Blank Clauses
[D] Pathological Arbitration Clauses
[1] Indefinite Arbitration Agreements
[2] Arbitration Agreements Referring to Non-Existent Arbitral Institutions,
Arbitration Rules, or Arbitrators
[3] Internally Contradictory Arbitration Agreements
[4] “Optional” or Non-Mandatory Arbitration Agreements
[E] Formal Validity of International Arbitration Agreements
[1] Written Form Requirement – New York Convention
[2] Written Form Requirement – National Arbitration Legislation
[3] UNCITRAL Model Law, Article 7 (and Revisions)
[4] Relationship between New York Convention and National Law
[5] 2006 UNCITRAL Recommendations
[6] Incorporation of Arbitration Agreement
[F] Substantive Validity of International Arbitration Agreements
[1] “Null and Void,” “Inoperable” and “Incapable of Being Performed”
[2] Unconscionability and Duress
[3] Fraudulent Inducement or Fraud
[4] Impossibility and Frustration
[5] Illegality
[6] Lack of Capacity
[7] Termination and Repudiation
[8] Waiver of Right to Arbitrate
[9] Inconvenient Arbitral Seat
§3.02 The Non-Arbitrability Doctrine
[A] Basis for Non-Arbitrability Doctrine
[B] Applications of Non-Arbitrability Doctrine
[1] Competition and Antitrust Claims
[2] Securities Claims
[3] Bankruptcy
[4] Employment Contracts
[5] Consumer Disputes
[6] Other Non-Arbitrable Disputes
[C] Choice of Law Governing Non-Arbitrability
[D] Non-Arbitrability Issues in Annulment or Enforcement of Awards
Chapter 4
Interpretation of International Arbitration Agreements
§4.01 Scope of Arbitration Agreements
[A] Rules of Construction
[1] Pro-Arbitration Rules of Construction
[2] Anti-Arbitration Rules of Construction
[B] Recurrent Issues
[1] Commonly-Used Formulae in Arbitration Agreements
[2] “Broad” versus “Narrow” Arbitration Clauses
[3] Tort Claims
[4] Statutory Claims
[5] Multiple Contracts
§4.02 Incorporation of Institutional Arbitration Rules
§4.03 Allocation of Competence to Interpret International Arbitration Agreements
Chapter 5
International Arbitration Agreements: Non-signatory Issues
§5.01 Non-Signatories to Arbitration Agreements
[A] Agency
[B] Alter Ego and Veil-Piercing
[C] Group of Companies
[D] Succession
[E] Assignment or Transfer
[F] Estoppel
[G] Corporate Officers and Directors
§5.02 Formal Validity and Non-Signatories
§5.03 Choice of Law Governing Non-Signatory Issues
§5.04 Allocation of Competence to Decide Non-Signatory Issues
§5.05 Non-Signatory Issues and Institutional Arbitration Rules
Part II
International Arbitral Proceedings
Chapter 6
International Arbitral Proceedings: Legal Framework
§6.01 Meaning and Importance of the Arbitral Seat
[A] Location of Arbitral Seat
[B] Arbitral Seat Distinguished from Location of Hearings
[C] Territorial Structure of National Arbitration Legislation
[D] Issues Governed by Law of Arbitral Seat
[1] “Internal” Procedures in the Arbitration: Due Process Requirements of
Arbitral Seat
[2] “External” Relationship with National Courts: Supervisory Authority of