Transnational Litigation In a Nutshell
Author:
Bermann, George A.
Edition:
1st
Copyright Date:
2003
9 chapters
have results for arbitration
Chapter Eleven: Judicial Intervention in International Commercial Arbitration 87 results (showing 5 best matches)
- Since arbitration is driven by a purpose to substitute private for public adjudication, one might suppose that disputes arising out of international agreements containing arbitration clauses will not likely find their way into national court. This, however, is far from the case. Even in the presence of a perfectly valid and clearly applicable arbitration agreement, national courts potentially have a variety of roles to play throughout the life cycle of an arbitration. The moments of intersection between arbitral and judicial procedures may occur at different stages of the arbitral process: before commencement of the arbitral proceedings (as in compelling arbitration or determining the arbitrability of disputes), during arbitration (as in assisting arbitration or reviewing arbitral jurisdiction), as well as after an arbitral award has been rendered (as in the vacatur or confirmation of arbitral award or the recognition and enforcement of a foreign arbitral award). One obvious issue...
- In principle, an arbitration commences when one of the parties to an arbitration agreement signifies to the other, either directly or via a chosen arbitral institution, its intent to arbitrate a given dispute falling within the scope of application of the agreement to arbitrate. However, rather than appear in the arbitration, the other party may institute its own action in national court seeking a stay of the arbitration on grounds of the inexistence, inapplicability or invalidity of the arbitration agreement. That party may also institute an action in national court seeking affirmative relief of some kind (e.g. under the securities or antitrust laws, or simply in contract), notwithstanding the arbitration agreement. The defendant in that action (i.e. the arbitral claimant) then typically interposes the arbitration agreement as a basis for a motion to dismiss.
- International arbitration may be either institutional (i.e., organized under the auspices of a more or less permanent arbitral institution, which often enough has its own published procedural rules) or Prominent international arbitral institutions include the International Chamber of Commerce (ICC), the American Arbitration Association (AAA) and the London Court of International Arbitration (LCIA). This chapter will refer to the rules of these three institutions at various points. International arbitration is associated with cities having influential international arbitration institutions, and the procedural rules promulgated by these bodies address recurring procedural questions in arbitration: appointment of arbitrators, pleadings, hearings, timetables, provisional relief, and the like. These cities include (besides London) Stockholm, Geneva, Singapore, Hong Kong, and Washington D.C. (Washington is the site of the International Center for Settlement of Investment Disputes (ICSID),...
- arbitrations do not take place within the institutional framework of any given international arbitral body, they do not occur in a vacuum. The arbitration agreement will ordinarily designate an arbitral site, with the law of arbitration in effect within that jurisdiction thus providing the applicable legal framework. This body of law is arbitration, contracting parties are free specifically to incorporate preexisting procedural rules, which will then supply the arbitral ground rules. By far the most frequently adopted procedural rules are those promulgated by the United Nations Commission on International Trade Law (UNCITRAL), known simply as the UNCITRAL Rules, to which reference will be made throughout this chapter. If the parties to arbitration have failed to designate a set of procedural rules, and do not subsequently agree on one, then the arbitrators will identify or devise their own. Especially in ...arbitration, it will be necessary for the parties to have designated a...
- In the US, federal rather than state law governs most issues relating to international arbitration. The principal source is the Federal Arbitration Act (FAA), adopted in 1925 and applicable to contracts respecting interstate and foreign commerce. The FAA establishes the broad procedural framework for the conduct of arbitration in the US, while at the same time announcing a strong federal policy in favor of the enforcement of both arbitration agreements and arbitral awards.
- Open Chapter
Introduction 1 result
- Notwithstanding the growth of transnational litigation in US courts, a significant volume of private international disputes are resolved not through adjudication in national (or sub-national) courts, but through international arbitral channels. Even if one wanted to, one could not ignore arbitration in a book of this sort—this, for the simple reason that courts have a significant role to play in many aspects of the international arbitral process, including compelling arbitration, awarding provisional relief in conjunction with arbitration, setting aside arbitral awards, and eventually recognizing and/or enforcing arbitral awards. On the other hand, the law of international arbitration presupposes a basic adudicatory ...) in a national court system. It has also become exceedingly complex. Accordingly, international arbitration will be dealt with in only a preliminary fashion toward the end of this book, with a decided emphasis on the intersections between courts and arbitral...
- Open Chapter
Introduction Part 2 1 result
- Notwithstanding the growth of transnational litigation in US courts, a significant volume of private international disputes are resolved not through adjudication in national (or sub-national) courts, but through international arbitral channels. Even if one wanted to, one could not ignore arbitration in a book of this sort—this, for the simple reason that courts have a significant role to play in many aspects of the international arbitral process, including compelling arbitration, awarding provisional relief in conjunction with arbitration, setting aside arbitral awards, and eventually recognizing and/or enforcing arbitral awards. On the other hand, the law of international arbitration presupposes a basic adjudicatory procedure that differs in fundamental .... It has also become exceedingly complex. Accordingly, international arbitration will be dealt with in only a preliminary fashion toward the end of this book, with a decided emphasis on the intersections between courts and...
- Open Chapter
Chapter Five: “Sovereignty” Limitations on the Exercise of Jurisdiction 7 results (showing 5 best matches)
- In order to eliminate any doubt on that score, Congress amended the FSIA in 1988 to deny foreign state immunity in actions to enforce arbitration agreements and to confirm (or enforce) arbitral awards. However, in doing so, the Act still preserved the requirement of a nexus with the US. Thus, Section 1605(a)(6) requires at least one of the following: (a) that the US be the place of arbitration, (b) that the agreement or award be subject to a treaty to which the US is a party and which governs the recognition and enforcement of arbitral awards, or (c) that the underlying claim be one that, but for the arbitration agreement, could ordinarily have been maintained in a US court under the FSIA. See Arbitration, respectively, as just the sort of treaties referred to by the Section 1605(a)(6) exception. Since the New York Convention, as implemented in the US, applies to all awards rendered in a signatory state, it does not matter whether the foreign sovereign that was a party to that
- (S.Ct.1988). Only rarely is the act of state doctrine, as such, addressed in federal legislation. One example is the Second Hickenlooper Amendment, discussed below. Another is the Federal Arbitration Act, 9 U.S.C.A. sec. 15, which, as amended in 1988, provides that the act of state doctrine has no application in actions for the enforcement of international arbitration agreements or awards. (See Chapter 11
- ). Yet another example is the Federal Arbitration Act, 9 U.S.C.A. sec. 15 (discussed at page 370 the act of state doctrine in suits to enforce arbitration agreements or to confirm or enforce foreign arbitral awards. Arguably, the doctrine is also antithetical to certain specifically-created causes of action whose purposes its application would tend to frustrate. See, e.g.,
- Having entered into an arbitration agreement to arbitrate a dispute in the territory of a country that, like the US, was party to the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards (see Chapter 11
- , where the terms of the arbitration exception to the FSIA were met, but jurisdictional due process was found not to be, and the enforcement action was accordingly dismissed.
- Open Chapter
- Parties to arbitration may, in addition, fear that by seeking provisional relief in court prior to (and possibly even pending) arbitration, they may be deemed to have waived their right to arbitrate. They can be reassured. All circuits have refused to hold that such an application constitutes a waiver. See, e.g.,
- (9th Cir.1988). But some courts have refused to entertain applications for provisional relief (notably pre-award attachments) when the situs of arbitration is elsewhere, if the arbitration is subject to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards; they rely upon the language of the Convention (art. II(3)) requiring courts to “refer” the parties to arbitration. See
- Open Chapter
Table of Cases 1 result
Subject Index 26 results (showing 5 best matches)
Outline 7 results (showing 5 best matches)
- But a principle need not be “constitutional” in order to furnish a public policy basis for non-recognition or non-enforcement of a foreign judgment. Thus, judgments have been denied enforcement because of a non-constitutional federal principle favoring international arbitration agreements (e.g.
- Open Chapter
- Publication Date: July 14th, 2003
- ISBN: 9780314145840
- Subject: International - Litigation
- Series: Nutshells
- Type: Overviews
- Description: This title identifies and explores recurring problems caused by private cross-border disputes, while presenting the solutions that appear to be emerging, whether in the form of legislation, case law, treaty or Restatement enumeration. It covers personal and subject matter jurisdiction, parallel litigation, choice of forum, choice of law, extraterritorial discovery, extraterritorial provisional relief, recognition of foreign judgments, pleading, and proof of foreign law. International arbitration is also dealt with, with special emphasis on the role of courts in enforcing international arbitration agreements and effectuating international arbitral awards.