Principles of International Litigation and Arbitration
Author:
Folsom, Ralph H.
Edition:
1st
Copyright Date:
2016
16 chapters
have results for arbitration
Chapter 3. International Commercial Arbitration 362 results (showing 5 best matches)
- Institutional arbitration involves selection of a specific arbitration center or “court,” often accompanied by its own basic rules of arbitration. Such rules typically cover the selection of arbitrators, resolution of disputes about the neutrality of arbitrators, designation of the place of arbitration, and fees. Institutional arbitration is in a sense pre-packaged, and the parties need only “plug in” to the arbitration system of their choice. There are numerous competing centers of arbitration, each busy marketing its desirability to the world business community. Some centers are longstanding and busy, such as the International Chamber of Commerce (ICC) “Court of Arbitration” headquartered in Paris, which has its own Rules of Arbitration. The ICC may assist in the formation of tribunals anywhere in the world with arbitrators from any country using any language. Other centers are more recent in time and still struggling for clientele, such as the Commercial Arbitration and Mediation...
- International commercial arbitration also allows the parties to select and shape the procedures and costs of dispute resolution, and in selecting the seat (place) of arbitration to ensure they are represented by their regular counsel in an arbitration friendly jurisdiction. That selection will also determine the law which generally governs the arbitration proceedings. But in relatively rare instances the parties’ choice of law clause may over-ride procedural International commercial arbitration clauses generally prevail over bankruptcy stays of proceedings.
- There are two distinct types of international commercial arbitrations: ad hoc and institutional. Ad hoc arbitrations involve selection by the parties of the arbitrators and rules governing the arbitration. The classic formula involves each side choosing one arbitrator who in turn agree upon a third arbitrator. The ad hoc arbitration panel selects its procedural rules (such as the UNCITRAL Arbitration Rules, see Section 3.6). Ad hoc arbitration can be agreed upon in advance or, quite literally, selected ad hoc as disputes arise. But some jurisdictions, such as the People’s Republic of China, are hostile to ad hoc arbitrations, fearing perhaps they may operate too far beyond government influence.
- Uncertainty about identity of the country and the court in which a dispute may be heard, about procedural and substantive rules to be applied, about the degree of publicity to be given the proceedings and the judgment, about the time needed to settle a dispute, and about the efficacy which may be given to a resulting judgment all have combined to make arbitration the preferred mechanism for solving international commercial disputes. Some Western European countries, notably France, Switzerland, Britain and Sweden, have been long accustomed to arbitration. The English Arbitration Act dates from 1889, for example. The London Court of International Arbitration, a private arbitration institution with its own set of procedural rules, has existed since 1892. The United States has had a Federal Arbitration Act since 1925, and, since 1996, the American Arbitration Assn’s International Centre for Dispute Resolution in New York readily embraces international commercial arbitration.
- Arbitration of international commercial disputes is favored by the People’s Republic of China, if mediation and conciliation fail (see Chapter 1), either through the Chinese International Economic and Trade Arbitration Commission (CIETAC) or the Chinese Maritime Arbitration Commission (CMAC). Most of the nations of the former Soviet Union also favor arbitration, and have organizations similar to the Chinese CIETAC and MAC. In terms of volume, CIETAC is now the world’s largest arbitration center, followed by the ICC in Paris, the AAA International Centre for Dispute Resolution, the Hong Kong International Arbitration Center and the Singapore International Arbitration Center. Headquartered in Beijing, CIETAC has regional offices in Tianjin, Shanghai, Shenzhen and Chongqing. In a change from earlier practices, CIETAC’s approved list of arbitrators is now quite international and any language can be chosen for the proceedings. It is not clear, however, whether foreign attorneys may serve...
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Chapter 10. WTO and NAFTA Dispute Settlement 22 results (showing 5 best matches)
- 3. Other Members may become party to an arbitration proceeding only upon the agreement of the parties which have agreed to have recourse to arbitration. The parties to the proceeding shall agree to abide by the arbitration award. Arbitration awards shall be notified to the DSB and the Council or Committee of any relevant agreement where any Member may raise any point relating thereto.
- 2. Except as otherwise provided in this Understanding, resort to arbitration shall be subject to mutual agreement of the parties which shall agree on the procedures to be followed. Agreements to resort to arbitration shall be notified to all Members sufficiently in advance of the actual commencement of the arbitration process.
- An alternative to Phases 2 through 4 is arbitration, if both parties agree. The arbitration must be binding on the parties, and there is no appeal from the arbitral tribunal’s decision to the DSB or Appellate Body.
- retaliation. There is also a parallel process for binding arbitration, if both parties agree to submit this dispute to arbitration, rather than to a DSB panel. In addition, the party subject to an adverse decision may seek arbitration as a matter of right on issues of compliance and authorized retaliation.
- 6. When the situation described in paragraph 2 occurs, the DSB, upon request, shall grant authorization to suspend concessions or other obligations within 30 days of the expiry of the reasonable period of time unless the DSB decides by consensus to reject the request. However, if the Member concerned objects to the level of suspension proposed, or claims that the principles and procedures set forth in paragraph 3 have not been followed where a complaining party has requested authorization to suspend concessions or other obligations pursuant to paragraph 3(b) or (c), the matter shall be referred to arbitration. Such arbitration shall be carried out by the original panel, if members are available, or by an arbitrator appointed by the Director-General and shall be completed within 60 days after the date of expiry of the reasonable period of time. Concessions or other obligations shall not be suspended during the course of the arbitration.
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Chapter 4. Foreign Investment Arbitrations 164 results (showing 5 best matches)
- Unless the disputing parties agree otherwise, a Tribunal shall hold an arbitration in the territory of a Party that is a party to the New York Convention, selected in accordance with: (a) the ICSID Additional Facility Rules if the arbitration is under those Rules or the ICSID Convention; or (b) the UNCITRAL Arbitration Rules if the arbitration is under those Rules.
- Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.
- Chapter 3 covered international commercial contract arbitrations, by far the most common. This chapter concerns the arbitration of foreign investment disputes between investors and host states (referred to as investor-state dispute settlement, ISDS). Foreign investment arbitrations have been rising quickly in volume and significance, notably so under bilateral investment treaties (BITs) and NAFTA.
- A highlight of all U.S. BITs is the consent in advance of host sovereign states to arbitration of foreign investor disputes; no separate consent is required. BIT arbitrations are subject to review in the place of arbitration
- 4. A claim shall be deemed submitted to arbitration under this Section when the claimant’s notice of or request for arbitration (“notice of arbitration”):
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Chapter 1. Fundamentals of International Business Dispute Settlement, Mediation and Conciliation 26 results (showing 5 best matches)
- International business litigation is also more common than appreciated when arbitration is chosen to resolve disputes. Pre-arbitration litigation may be undertaken to challenge the validity of arbitration agreements, to compel arbitration or attach property. Litigation during the arbitration may raise questions of arbitrator integrity, evidence taking, or interim judicial relief. If an award is granted, litigation in the arbitral seat may seek to vacate the award. Ultimately, the award may need to be enforced in the courts where the arbitration took place or elsewhere. All of these themes are reviewed in Chapters 3 and 4.
- When your client is involved with a suspect jurisdiction, the desire to avoid international business litigation increases. Arbitration proceedings become more attractive, particularly so if undertaken in well-regarded arbitral institutions. That said, arbitrators are not necessarily immune to corruption, and judicial intervention in arbitration proceedings and judicial review of arbitral awards may not come to the rescue. See Chapter 3.
- International Centre for the Settlement of Investment Disputes (ICSID), the World Bank’s center for arbitration of investment disputes, and the Permanent Court of Arbitration at The Hague.
- But the dispute may require more, it may require someone to step in and make decisions. Arbitration may or may not be the answer. Sometimes arbitrators are perceived as persons who believe that they must find a resolution which satisfies both parties to some degree, leading to the charge of dividing up the pie rather than awarding it all to the party whose legal arguments are correct. However untrue this perception of arbitration may be, it may cause a party who strongly believes that its position is correct, to reject arbitration and turn to litigation.
- There are numerous other methods to resolve cross-border business disputes. Which method is chosen by the parties is critical. See Chapter 2. Mediation and conciliation are discussed below. Arbitration is commonly used for commercial contracts. See Chapter 3. Trade and foreign investment agreements, such as those of the World Trade Organization and NAFTA, have developed unique processes for dispute resolution, notably dispute panels and appeals, often combining elements of litigation and arbitration. See Chapters 4 and 10.
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Chapter 2. Choice of Law, Choice of Forum, and Forum Non Conveniens 14 results (showing 5 best matches)
- Forum selection clauses are used to designate arbitration in lieu of judicial resolution. In many jurisdictions, these clauses may conflict with provisions alleged to give exclusive jurisdiction to courts over “mandatory law.” See Section 3.3. But two U.S. Supreme Court 5–4 decisions involving arbitration selection clauses in antitrust and securities cases upheld arbitration despite such arguments. These cases involved international agreements, commonly resolved by arbitration. The need for predictability in international commerce
- What’s not to like about international business arbitration? For an extended answer to that question by some leading academics, see Section 3.1 titled “Why Arbitrate?” One major problem with arbitration is that the limited discovery permitted may hinder fact development. Thus, an important criterion for choosing litigation or arbitration will be the relative need for this type of fact development in your client’s case, and in your opponent’s case.
- Remember that both parties must agree if litigation is not to be used and arbitration substituted. The reception of a suggestion to use arbitration will depend upon what the parties believe the most likely judicial forum will be if no agreement is reached. See Chapter 5. A determination as to what court or courts have jurisdiction in the absence of agreement will allow the parties to make a comparison between arbitration and courts as a choice of forum.
- Given the absence, discussed above, of an international agreement on enforcement of court judgments, the selection of arbitration versus litigation for dispute settlement is greatly incentivized by the 1958 New York Convention on the Recognition and Enforcement of Arbitral Awards. Widely adopted, the New York Convention provides judicial pathways for enforcement of foreign commercial arbitration agreements and awards. In the United States, federal courts have exclusive jurisdiction for these purposes. See Section 3.8.
- Litigation versus arbitration may be viewed by different institutions dealing with specific legal issues. Banks dealing with letters of credit use arbitration as a longstanding preference, as does generally the securities industry. It is important for U.S. lawyers representing clients engaged in a dispute with a foreign party to be able to understand not only the characteristics of the various choices of dispute resolution, but how opposing foreign counsel may view the alternatives.
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Table of Contents 16 results (showing 5 best matches)
- § 3.13 Text of Inter-American Convention on International Commercial Arbitration (1975) (IAC) and U.S. Federal Arbitration Act Enactment in 1990 of the IAC
- § 3.16 Text of the American Arbitration Association (AAA) International Commercial Arbitration Rules
- § 4.2 Bilateral Investment Treaty Arbitrations, Energy Charter Treaty Arbitrations
- § 2.3 Forum Selection Clauses: Arbitration
- Chapter 3. International Commercial Arbitration
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- 3. The definition of “foreign-country judgment” in this Act refers to “a judgment” of “a court” of the foreign country. The foreign-country judgment need not take a particular form—any order or decree that meets the requirements of this section and comes within the scope of the Act under Section 3 is subject to the Act. Similarly, any competent government tribunal that issues such a “judgment” comes within the term “court” for purposes of this Act. The judgment, however, must be a judgment of an adjudicative body of the foreign country, and not the result of an alternative dispute mechanism chosen by the parties. Thus, foreign arbitral awards and agreements to arbitrate are not covered by this Act. They are governed instead by federal law, Chapter 2 of the U.S. Arbitration Act, 9 U.S.C. §§ 201–208, implementing the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Chapter 3 of the U.S. Arbitration Act, 9 U.S.C. §§ 301–307, implementing...
- (d) arbitration;
- inconsistency with another final judgment, violation of a choice of forum agreement (including arbitrations), or serious inconvenience of the trial forum when personal service was made in the state of the originating court. The burden of proving one of these defenses rests with the party seeking to avoid recognition and enforcement.
- bankruptcy, social security, arbitration matters and intellectual property licensing contracts are not covered.
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Chapter 7. International Business Litigation: Sovereign Defenses 8 results (showing 5 best matches)
- (6) in which the action is brought, either to enforce an agreement made by the foreign State with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable.
- 7.10 Exceptions to Sovereign Immunity—Arbitration Agreements and Awards
- § 7.10 EXCEPTIONS TO SOVEREIGN IMMUNITY—ARBITRATION AGREEMENTS AND AWARDS
- If the U.S. was the place of arbitration, that is sufficient nexus. Or if the agreement or award is subject to a U.S. treaty such as the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards or the Inter-American Convention on International Commercial Arbitration (see Section 3.8), sufficient nexus is again present.
- Section 15 of the U.S. Federal Arbitration Act adopting the New York Convention specifically denies judicial application of the Act of State doctrine, covered in Part B below.
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Summary of Contents 2 results
Index 18 results (showing 5 best matches)
Table of Cases 2 results
- The States Parties to this Convention may declare that its provisions cover the execution of letters rogatory in criminal, labor, and “contentious-administrative” cases, as well as in arbitrations and other matters within the jurisdiction of special courts. Such declarations shall be transmitted to the General Secretariat of the Organization of American States.
- On anti-suit injunctions in aid of arbitration, see Paramedics Electromedicina Comercial Ltda v. GE Medical Systems Information Technologies, 369 F.3d 645 (2d Cir. 2004) (injunction upheld) and Ibeto Petrochemical Indus. Ltd v. M/T Beffen, 475 F.3d 56 (2d Cir.2007) (injunction upheld); Karaha Bodas Co. v. Perusahaan Pertambangan, 335 U.S. F.3d 357 (5th Cir. 2003) (injunction denied). Compare Allianze SpA v. West tankers Inc., 2009 E.C.R. I–00663 (EC Court of Justice denies injunction in aid of arbitration).
- , however, narrowed the concept, allowing it to protect the jurisdiction of the court or prevent the litigant from evading public policies of the forum. The federal Circuit Courts are split in their willingness to affirm anti-suit injunctions, including those issued in aid of arbitration agreements.
- EU courts are further prohibited from issuing anti-suit injunctions against proceedings, however vexacious and in bad faith, in another member state, even when the injunction would support courts or arbitrations that have been selected by agreement of the parties.
- era, most applications under Section 1782 have been filed by companies from Britain, Germany, and other European countries. There has also been an increase in recent years in applications from Middle Eastern countries. Arbitration proceedings abroad can trigger Section 1782 discovery.
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Chapter 9. Litigating EU Business Law 4 results
- Nordsee v. Reederei Mond (1982) Eur.Comm.Rep. 1095 (German arbitration court reference rejected). See Corbiau v. Administration des Contributions (1993) Eur.Comm.Rep. I–1277 (Case C–24/92) (Luxembourg Director of Taxes cannot refer questions under Article 234).
- Nordsee v. Reederei Mond (1982) Eur.Comm.Rep. 1095 (German arbitration ciourt reference rejected). See Corbiau v. Administration des Contributions (1993) Eur.Comm.Rep. I–1277 (Case C–24/92) (Luxembourg Director of Taxes cannot refer questions under Article 234).
- Under NAFTA, virtually all dispute settlement resembles arbitration. See Chapter 4. There is no North American Court of Justice. In Europe, there has been an explosive growth in litigation of European Union business law. EU legislation and administrative decisions present fertile fields of European law litigation. The range of EU business law issues being litigated is vast. The bulk of this growth has taken place in private litigation before national courts and tribunals. They are vested with wide (but not final) authority to resolve EU legal issues. That authority rests with the European Court of Justice and its associated General Court, supreme arbiters of the enormous body of EU business law.
- This is a particularly notable decision because ever increasing numbers of business disputes are being taken to binding arbitration. The only recourse for review of an arbitrator’s interpretation of Union law is through ancillary or enforcement proceedings in the national courts.
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- Publication Date: October 20th, 2015
- ISBN: 9781628103540
- Subject: International - Litigation
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
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Description:
Principles of International Litigation and Arbitration is part of West Academic Publishing’s Concise Hornbook series. Its coverage commences in Part One with an introduction to the area, notably choice of law, choice of forum and forum non conveniens issues. Part Two focuses on International Commercial and Foreign Investment Arbitration. Part Three examines International Business Litigation (including jurisdiction, procedure, sovereign defenses, enforcement of judgments and the EU litigation system), finishing with Part Four on WTO and NAFTA Dispute Settlement.
Principles provides considerably more depth, analysis, citations and related documents than found in the West Nutshell Series. Principles of International Business Litigation and Arbitration can be used in connection with any international dispute settlement course book. West Academic Publishing has a number of course books in these areas. Principles can also be used independently as an inexpensive course book, notably in conjunction with the legal documents appended at the end of its chapters.
