A Practical Guide to International Arbitration

Preface
Foreword
About the Authors
Acknowledgement
Testimonials

CHAPTER 1: WHY AND WHEN ARBITRATION
A. Key Characteristics of International Arbitration

1. Party Consent
2. Private Decisionmakers
3. International Dispute
4. Final and Binding Decision

B. Main Types of International Arbitration

1. Institutional Arbitration vs. Ad Hoc Arbitration
2. International Commercial Arbitration vs. International Investment Arbitration

C. Users of International Arbitration
D. How Arbitration Differs from Other Forms of ADR

1. Litigation
2. Mediation
3. Expert Determination
4. Early Evaluation

E. Advantages of International Arbitration

1. Enforcement of Awards
2. Flexible Procedures
3. A More Neutral Process
4. Hand-Picked Arbitrators
5. Tribunals with Technical Expertise and Experience
6. Cost Savings
7. Efficient Process
8. Finality for Users
9. Privacy and Confidentiality

F. Potential Disadvantages of International Arbitration

1. .Limited Coercive Powers of the Tribunal
2. Additional Costs
3. No Appeals
4. Less Predictability
5. Potential Inefficiency

CHAPTER 2: DRAFTING AGREEMENTS TO ARBITRATE
A. Requirements for a Valid Arbitration Agreement

1. In Writing
2. Exclusive Means of Dispute Resolution

B. Types of Disputes Suitable for Arbitration

1. Arbitrability
2. Pathological Arbitration Agreements

C. The Parties to an Arbitration Agreement

1. Non-Signatories
2. Multi-Party Arbitration
3. Arbitration With a State or State Entity
4. Transfer to a Third Party

D. Disputes Covered by an Arbitration Agreement

E. Providing for Institutional Arbitration or Ad Hoc Arbitration

F. The Essential Elements of an Arbitration Agreement

1. The Place or Seat of Arbitration
2. Governing Law
3. Number of Arbitrators
4. Arbitrator Selection
5. The Language of the Proceeding

G. Arbitration Agreements in Multiple Contracts

H. Confidentiality Provisions

I. Multi-Tiered & Staggered Arbitration Clauses

J. Hybrid Clauses

K. Other Elements in an Arbitration Agreement

CHAPTER 3: OVERVIEW OF ARBITRAL INSTITUTIONS
A. Reasons to Use an Arbitral Institution

1. Advantages
2. Disadvantages

B. Relationship Between the Institution & the Tribunal / Parties / Seat / Rules

1. The Tribunal
2. The Parties
3. The Arbitral Seat
4. The Procedural Rules

C. The Most Well-Known Arbitral Institutions

1. American Arbitration Association
2. International Chamber of Commerce
3. London Court of International Arbitration
4. Arbitration Institute of the Stockholm Chamber of Commerce
5. Singapore International Arbitration Centre
6. Hong Kong International Arbitration Centre

D. How Arbitral Institutions Administer Cases

1. Efficiency
2. Costs

E. Ad Hoc Arbitration

1. Advantages
2. Disadvantages

CHAPTER 4: COMPELLING ARBITRATION
A. The Obligations that Derive from a Valid Arbitration Agreement

1. Negative Obligations
2. Positive Obligations

B. The “Separability” Doctrine

C. The “Competence-Competence” Doctrine

D. Law Governing the Enforcement of an Arbitration Agreement

1. The New York Convention
2. The UNCITRAL Model Law

E. Exceptions to the Enforcement of an Arbitration Agreement

1. An Agreement in Writing
2. An Actual Dispute
3. A Defined Legal Relationship
4. A Dispute Capable of Settlement by Arbitration
5. A Valid Agreement
6. An Operative Agreement
7. An Agreement Capable of Being Performed

F. Time Needed to Compel Arbitration

G. Waiver of the Right to Compel Arbitration

H. Remedies Available

1. Specific Performance
2. Stay or Dismissal of Litigation
3. Damages
4. Non-Recognition of Judgment

I. How to Prevent Other Parallel Proceedings

1. Anti-Suit Injunctions
2. Anti-Arbitration Injunction

CHAPTER 5: APPOINTMENT OF ARBITRATORS
A. Rules Governing the Appointment of Arbitrators

B. Qualities Required of an International Arbitrator

1. Experience and Outlook
2. Cultural Background
3. Impartiality and Independence
4. Personality and Attitude
5. Availability
6. Linguistic Abilities
7. Technical or Industry Knowledge
8. Age and Health

C. Selecting a Tribunal Chair or Sole Arbitrator

1. International Arbitration Experience
2. Availability
3. Case-Management Skills
4. Nationality

D. Number of Arbitrators

1. Advantages of a Three-Member Tribunal
2. Disadvantages of a Three-Member Tribunal
3. Advantages of a Sole Arbitrator
4. Disadvantages of a Sole Arbitrator

E. Mechanics of Arbitrator Appointments

F. Researching and Identifying Potential Arbitrators

G. Interviewing a Potential Arbitrator

CHAPTER 6: CHALLENGING ARBITRATORS
A. Standards Governing Arbitrator Challenges

1. ICC Rules
2. LCIA Rules
3. UNCITRAL Rules
4. SIAC Rules
5. SCC Rules

B. Standards Governing in an Ad Hoc Arbitration

C. Timeframe for Making a Challenge

1. ICC Rules
2. LCIA Rules
3. UNCITRAL Rules
4. SCC Rules
5. SIAC Rules

D. Procedures Applicable to Arbitrator Challenges

1. ICC Rules
2. LCIA Rules
3. UNCITRAL Rules
4. SCC Rules
5. SIAC Rules

E. The Decision Maker of the Challenge

1. ICC Rules
2. LCIA Rules
3. UNCITRAL Rules
4. SCC Rules
5. SIAC Rules

F. Nature of the Challenge Decision

1. ICC Rules
2. LCIA Rules
3. UNCITRAL Rules
4. SCC Rules
5. SIAC Rules

G. Procedures Pending the Challenge Decision

H. Guidelines Relevant to the Merits of a Challenge

1. IBA Guidelines
2. IBA Rules of Ethics
3. AAA/ABA Code of Ethics
4. Arbitrator Disclosures Relevant to a Challenge

I. Circumstances Justifying a Challenge

1. Connections Between an Arbitrator and a Party
2. Connections Between an Arbitrator and Counsel for One of the Parties
3. Prejudgment by an Arbitrator
4. Bias

J. Recourse Available If a Challenge Is Rejected

K. Recourse After the Final Award Is Issued

CHAPTER 7: APPLICABLE LAW
A. Law Applicable to the Merits of a Dispute

1. Domestic Law of a Party
2. Neutral Domestic Law
3. United Nations Convention on Contracts for the International Sale of Goods
4. Lex Mercatoria

B. Flexibility of Tribunals in Resolving Disputes

C. Laws Applicable to the Arbitration Agreement Itself

D. Law Applicable to the Arbitration Procedure

E. Other Rules and Guidelines

CHAPTER 8: CONFIDENTIALITY
A. Privacy in International Arbitration

B. Confidentiality in International Arbitration

1. The Parties’ Arbitration Agreement
2. The Arbitration Rules Selected
3. The Law Governing the Arbitration

C. How Confidentiality Is Addressed in International Arbitral Rules

1. ICC
2. LCIA
3. ICDR
4. HKIAC
5. SCC
6. SIAC
7. UNCITRAL Rules

D. The Role of National Law

E. The Existence of an Arbitration as Confidential

F. The Confidentiality of Written Submissions

1. International Arbitral Tribunals
2. National Courts

G. The Confidentiality of Arbitral Awards & Decisions

H. Confidentiality By Agreement of the Parties

I. Confidentiality Considerations for Disputes with State Parties

J. Rules Regarding Publicizing Issues in Dispute

CHAPTER 9: PROVISIONAL MEASURES
A. The Purpose of Provisional Measures

B. Types of Protection Offered by Provisional Measures

C. Source of Provisional Measures

1. Measures from National Courts
2. Measures from the Arbitral Tribunal
3. Measures from an Emergency Arbitrator

D. Availability of Provisional Measures

E. Showing Needed to Obtain Provisional Measures

F. Reason for Provisional Measures

1. Ensuring the Effectiveness of an Arbitration
2. Preserving the Possibility of Relief
3. Maintaining or Restoring the Status Quo

G. Provisional Measures Are Binding and Enforceable

CHAPTER 10: ARBITRAL PROCEDURE AND EVIDENCE
A. Procedural Framework Governing Evidence in Arbitration

B. Sources of Evidence in International Arbitration

C. General Approaches to Evidence

1. The Common Law Approach
2. The Civil Law Approach
3. The Hybrid Approach

D. Role of the Tribunal in Admitting Evidence

E. The IBA Rules

F. Mechanics for the Submission of Evidence

G. Essential Elements of Document Production

1. Formulating Document Production Requests
2. Responding to Document Production Requests

H. Witness Evidence

1. LCIA
2. ICC
3. IBA Rules

I. Privilege as a Ground to Withhold Evidence

J. Ethical Issues Relating to Document Production

CHAPTER 11: MULTI-PARTY ARBITRATION
A. Potential Advantages to Multi-Party Arbitration

B. Potential Risks to Multi-Party Arbitration

C. Circumstances Giving Rise to Multi-Party Arbitration

1. Single, Multilateral Contract
2. Different Contracts Involving Different Parties

D. Arbitration With Non-Signatories

E. Joinder of Additional Parties to a Dispute

1. AAA / ICDR
2. HKIAC
3. ICC
4. LCIA
5. SCC
6. UNCITRAL

F. Consolidation of Different Arbitration Proceedings

1. AAA/ICDR
2. HKIAC
3. ICC
4. LCIA
5. SCC
6. SIAC
7. UNCITRAL
8. Domestic Courts

G. Constituting an Arbitral Tribunal with Multiple Parties

1. AAA/ICDR
2. HKIAC
3. ICC
4. LCIA
5. SCC
6. SIAC
7. UNCITRAL

H. Third-Party Intervention

I. Class Arbitration

J. Enforceability of Awards Rendered in Multi-Party Arbitration

CHAPTER 12: SPECIAL ISSUES DEALING WITH STATES AND STATE ENTITIES
A. State Immunity

B. Waiver of State Immunity Via an Arbitration Agreement

1. The United States
2. The United Kingdom
3. The United Nations Convention on Jurisdictional Immunities of States and Their Property

C. Sovereignty Objections Relating to Arbitration

1. The Tribunal’s Jurisdiction
2. The Arbitrability of the Dispute
3. The Validity of the Arbitration Agreement

D. Constitution of the Tribunal in Arbitrations Involving States

E. Typical Issues that Arise in Arbitrations Involving States

F. Document Production Issues Involving State Parties

G. Enforcement of Arbitral Awards Against State Parties

H. State Assets to Satisfy an Arbitral Award

1. The United States
2. The United Kingdom
3. The UNCSI

I. Protection of State Property from Execution

1. The United States
2. The United Kingdom
3. The UNCSI

J. Special Forums for Arbitrations Involving State Parties

1. The International Centre for the Settlement of Investment Disputes
2. The Permanent Court of Arbitration

K. Investor-State Arbitration

1. Fair and equitable treatment (FET)
2. Guarantees Against Unlawful Expropriation
3. Full Protection and Security (FPS)
4. National Treatment (NT)
5. Most Favored Nation Treatment (MFN)
6. Umbrella Clause Protection
7. Guarantees Against Denial of Justice

L. Requirements for an Investor to Pursue Investor-State Arbitration

CHAPTER 13: FAST-TRACK ARBITRATION
A. When To Consider Fast-Track Arbitration

1. Types of Disputes Submitted to Fast-Track Arbitration
2. Specialized Fast-Track Arbitration Rules

B. How Parties Agree to Fast-Track Arbitration

1. Model Fast-Track Agreement
2. Agreement After a Dispute Has Arisen
3. Elements To Include in the Fast-Track Agreement
4. Types of Disputes Subject to Fast-Track Procedures

C. Costs of Fast-Track Arbitration

D. Key Threshold Considerations for Track-Track Arbitration

1. Selecting Arbitrators for Fast-Track Arbitration
2. Using a Sole Arbitrator for Fast-Track Proceedings
3. Selecting Counsel for Fast-Track Arbitration

E. Other Ways to Expedite an Arbitration

F. Other Time-Saving Devices

G. When To Avoid Fast-Track Arbitration

H. Enforcement Procedures for Fast-Track Arbitration

I. Even Faster Alternatives

CHAPTER 14: POST-AWARD REMEDIES
A. Forum for Post-Award Remedies

B. The Meaning of “Award” for Post-Award Remedies

C. Types of Post-Award Relief Available from the Arbitral Tribunal

1. Rules Applicable to Post-Award Remedies from the Arbitral Tribunal
2. Time Limits Governing Post-Award Relief from the Arbitral Tribunal

D. Correction of the Award

1. HKIAC
2. ICC
3. ICDR
4. LCIA
5. SIAC
6. UNCITRAL

E. Interpretation or Clarification of an Award

1. HKIAC
2. ICC
3. ICDR
4. LCIA
5. SIAC
6. UNCITRAL

F. Supplemental Awards

1. HKIAC
2. ICC
3. ICDR
4. LCIA
5. SIAC
6. UNCITRAL

G. Revision of an Award

H. Remission to the Arbitral Tribunal

I. Form of a Post-Award Decision from the Same Tribunal

1. HKIAC
2. ICC
3. ICDR
4. LCIA
5. SIAC
6. UNCITRAL

J. Set Aside

1. Difference Between Set Aside and Enforcement
2. Set Aside Can Only Happen At the Seat
3. Grounds for Set Aside
4. Timing for Set Aside
5. Stay of Enforcement
6. Effect of Set Aside
7. Partial Set Aside
8. Enforcement of an Award that Has Been Set Aside
9. Second Arbitration

CHAPTER 15: ENFORCEMENT OF ARBITRAL AWARDS
A. The New York Convention

B. New York Convention “Reservations”

1. Reciprocity Reservation
2. Commercial Reservation

C. Recognition, Enforcement, Confirmation, and Execution

1. Recognition
2. Enforcement / Confirmation
3. Execution

D. When Court Enforcement Becomes Necessary

1. Where to Enforce the Award
2. Enforcement Procedure
3. Timing for Enforcement
4. Enforcing an Award Against a Sovereign State

E. Bases for Resisting Enforcement

F. Enforcing in Different Jurisdictions

G. Differences Between Set Aside, Annulment, and Appeal

1. Set Aside
2. Annulment
3. Appeal

H. Enforcement Notwithstanding Set Aside

I. The Panama Conventions

J. ICSID Awards

Abby Cohen Smutny is the Global Head of the International Arbitration Practice Group of White & Case LLP, based in Washington DC.  She is an Advisor to the American Law Institute’s (ALI) U.S. Restatement on International Arbitration. Previously, Ms. Smutny served as Chair of the Executive Committee for the Institute of Transnational Arbitration (ITA), President of the North American User’s Council for the London Court of International Arbitration (LCIA), Vice-President of the American Society of International Law (ASIL), Vice Chair of the Arbitration Committee and Chair of Investment Treaty Subcommittee for the International Bar Association (IBA), and Chair of the International Law Section of the District of Columbia Bar. 

Andrew de Lotbinière McDougall is an international arbitration Partner with White & Case LLP, based in Paris. Mr. McDougall is Canadian and French and admitted to practice in Ontario, Québec, Paris, England & Wales and Ireland. He represents Canada on the ICC Court and is a member of the ICC Institute, ICC Commission, ICC Canada and ICC France. He is also on the Roster of Arbitrators of CAS and the ICDR. Mr. McDougall has taught international arbitration at Université Paris 1, the University of Ottawa and the Moscow State Institute of Foreign Relations.

Michael P. Daly is an attorney in the global disputes practice at Jones Day, based in Washington, DC where his focus is on investor-State arbitration, international commercial disputes, and cross-border litigation.  Mr. Daly previously served as a Legal Adviser at the Iran-United States Claims Tribunal in The Hague, as private law clerk to Charles N. Brower (20 Essex Street), and as a Visiting Associate Professor at George Washington University Law School, where he teaches International Business Transactions.