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Document information Acknowledgments to Third Edition

As with the First and Second Editions of this treatise, I owe much greater debts for this
Third Edition than these acknowledgements can describe. This treatise took as its point
Publication of departure the works of other authors – Pieter Sanders, Francis Mann, Pierre Lalive,
International Commercial Gunnar Lagergren, Philippe Fouchard, Berthold Goldman, Emmanuel Gaillard, Michael
Arbitration (Third Edition) Reisman, Jan Paulsson, Rusty Park, Laurie Craig, Albert Jan van den Berg, Alan Redfern and
Martin Hunter, Stephen Schwebel, Peter Schlosser, Howard Holtzmann, Catherine Rogers,
Doak Bishop, David Caron, Michael Hwang and many others – which addressed the central
Bibliographic aspects of the international arbitral process. The treatise, and this Third Edition, also
benefited enormously from faculty and students too numerous to list – at St. Gallen
reference University, the Harvard Law School, the University of Pennsylvania Law School, the
'Acknowledgments to Third National University of Singapore, Tsinghua Law School, the Georgetown Law Center, the
Edition', in Gary B. Born , Peking University School of Transnational Law, the University of Virginia School of Law,
International Commercial Yonsei University Law School, King’s College and Stanford Law School – all of whom
Arbitration (Third Edition), contributed in a multitude of ways to the development of my own thoughts on
3rd edition (© Kluwer Law international arbitration. The treatise was also improved substantially by the thoughtful
International; Kluwer Law comments on early drafts of large numbers of colleagues and competitors around the
International 2021) pp. vii - world, again too numerous to identify individually, who gave very generously of their time
viii and experience. My publishers at Kluwer Law International, including particularly Gwen
de Vries and Steve Lambley, have also assisted throughout in bringing this treatise to
print.
This Third Edition also owes much to the exceptional research assistance and tireless
efforts of my colleagues, including in particular Youjin Jo and Marc Lee, without whose
exceptional, devoted and talented help this edition would not have been possible. I also
benefited greatly from the aid of Carina Alcoberro Llivina, Eva Altmann, Donia Alwan,
Matteo Angelini, Saif Ansari, Margaret Artz, David Arziani, Daria Astakhova, Alyson Akoka,
Shiva Amelie, Victoria Barausova, Olga Besperstova, Miljana Bigovic, Catalina Bizic,
Miriam Boxberg, Olga Braeuer, Stuart Bruce, Nicolas Caffo, Manuel Casas, Fabio
Cavalcante, Andre Chong Wei Ling, Viviane Cismak, Daniel Costelloe, Elliott Couper, Wen-
Chuan Dai, Eleanor Daley, Jordi de la Torre, Cansu Donmez, Sonya Ebermann, Nahi El
Hachem, Jasmine Feng, Stephanie Forrest, Francisco Franco Rodriguez, Sofia Galindo,
Puneeth Ganapathy, Gustavo Gaspar, Nadine Hafaitha, Alexandra Heneine, Desley Horton,
Michael Howe, Kevin Huber, Shanelle Irani, Ole Jensen, Cyrill Kaeser, Cem Kalelioglu,
Matthew Kennedy, Basil Kirby, Rafaela Knapper, Diana Kostina, Marleen Krüger, Seung-
Woon Lee, Justin Li, Jonathan Lim, Stephanie Limaco Blas, John McMillan, Danielle Morris,
Andrea Nikolic, Dragana Nikolic, Maria Pabon, Apoorva Patel, Valentina Pavusek, John
Pierce, Dharshini Prasad, Max Raileanu, Daniel Regan, Juliane Reschke, Joe Rich, Ella
Rutter, Claudio Salas, Molly Savage, Marija Scekic, Maxi Scherer, Yoanna Schuch, Rina
See, Olena Sichkovska, Amélie Skierka, Alejandro Solano, Olivier Stephan, Jared Tan,
Charles Tay, Julie Thompson, Leticia Tomkowski, Achilles Tsoutsis, Brenda Turkowski, Jozi
Uehbe, Juan Carlos Urquidi, Rodrigo Urrutia, Manuel Valderrama, Sonja Vidal, Felipe
Volio, Christina von Post, Wanqiu Wang, and Takashi Yokoyama.
Tireless and resourceful library and research assistance was provided by Sally Charin,
Nick Cleary, Sasha Woinowsky-Krieger and Kevin Mottram, while excellent and unfailingly
cheerful secretarial assistance was provided by Katrin Frach, Marta Valtulini, Sally Anniss,
Ece Girginok, Francine Maskell, Cindy Meissner, Stefanie Rytterband, Jessica Schitter, and
Felicity Frost.
Gary B. Born
P vii London
1
© 2022 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Document information About the Author
Gary B. Born is the world’s leading authority on international commercial arbitration and
international litigation. He is the author of numerous works on these subjects, including
Publication International Civil Litigation in United States Courts (6th ed. 2018), International Arbitration
International Commercial and Forum Selection Agreements: Drafting and Enforcing (5th ed. 2016), International
Arbitration (Third Edition) Arbitration: Law and Practice (2d ed. 2015), International Arbitration: Cases and Materials
(2d ed. 2015), International Commercial Arbitration (3d ed. 2020) and International
Commercial Arbitration: Commentary and Materials (2d ed. 2001). Mr. Born has been
Bibliographic practicing for over thirty years in the fields of international arbitration and litigation in
P ix Europe, the United States, Asia, Latin America, Africa and elsewhere.
reference
'About the Author', in Gary
B. Born , International
Commercial Arbitration
(Third Edition), 3rd edition
(© Kluwer Law
International; Kluwer Law
International 2021) pp. ix -
x
2
Document information Introduction
This Treatise aspires to provide a comprehensive description and analysis of the
contemporary constitutional structure, law, practice and policy of international
Publication commercial arbitration. It also endeavors to identify prescriptive solutions for the
International Commercial conceptual and practical challenges that confront the international arbitral process. In
Arbitration (Third Edition) so doing, the Treatise focuses on the law and practice of international commercial
arbitration in the world’s leading arbitral centers and on the constitutional principles
and legal frameworks established by the world’s leading international arbitration
Bibliographic conventions, legislation and institutional rules.
reference International arbitration warrants attention, if for nothing else, because of its historic,
contemporary and future practical importance, particularly in business affairs. For many
'Introduction', in Gary B. centuries, arbitration has been a preferred means for resolving transnational commercial
Born , International disputes, as well as other important categories of international disputes. (1) The
Commercial Arbitration preference which businesses have demonstrated for arbitration, as a means for resolving
(Third Edition), 3rd edition their international disputes, has become even more pronounced in the past several
(© Kluwer Law decades, as international trade and investment have burgeoned. As international
International; Kluwer Law commerce has expanded and become more complex, so too has its primary dispute
International 2021) pp. 1 - 6 resolution mechanism – international arbitration. (2) The practical importance of
international commercial arbitration is one reason that the subject warrants study by
companies, lawyers, arbitrators, judges and legislators.
At a more fundamental level, international commercial arbitration merits study because
it illustrates the complexities and uncertainties of contemporary international society –
legal, commercial and cultural – while providing a highly sophisticated and effective
means of dealing with those complexities. Beyond its immediate practical importance,
international arbitration is worthy of attention because it operates within a framework of
international legal rules and institutions which – with remarkable and enduring success –
provide a fair, neutral, expert and efficient means of resolving difficult and contentious
transnational problems. That framework enables private and public actors from diverse
jurisdictions to cooperatively resolve deep-seated and complex international disputes in
a neutral, durable and satisfactory manner. At their best, the analyses and mechanisms
which have been developed in the context of international commercial arbitration offer
models, insights and promise for other aspects of international affairs.
The legal rules and institutions relevant to international commercial arbitration have
evolved over time, in multiple and diverse countries and settings. As a rule, where
totalitarian regimes or tyrants have held sway, arbitration – like other expressions of
private autonomy and association – has been repressed or prohibited; where societies
are free, both politically and economically, arbitration has flourished.
Despite periodic episodes of political hostility, the past half-century has witnessed the
progressive development and expansion of the legal framework for international
P 2 commercial arbitration, almost always through the collaborative efforts of public and
private actors. While the latter have supplied the driving and dominant force for the
successful development and use of international commercial arbitration, governments
and courts from leading trading nations around the world have contributed materially, by
ensuring the recognition and enforceability of private arbitration agreements and
arbitral awards, and by affirming principles of party autonomy and judicial non-
interference in the arbitral process.
In recent decades, the resulting legal framework for international commercial arbitration
has achieved progressively greater practical success and acceptance in all regions of the
world and most political quarters. The striking success of international arbitration is
reflected in part in the increasing numbers of international (and domestic) arbitrations
conducted each year, under both institutional auspices and otherwise, (3) the growing use
of arbitration clauses in almost all forms of international contracts, (4) the stated
preferences of business users for arbitration as a mode of dispute resolution, (5) the
widespread and continuing adoption of pro-arbitration international arbitration
conventions and national arbitration statutes, (6) the refinement of institutional
arbitration rules to correct deficiencies in the arbitral process (7) and the use of arbitral
procedures to resolve new categories of disputes which have not historically been subject
to arbitration (e.g., investor-state, competition, securities, intellectual property,
corruption, human rights and taxation disputes). (8)
The success of international arbitration is also reflected by a comparison between the
treatment of complex commercial disputes in international arbitration and in national
courts – where disputes over service of process, jurisdiction, forum selection and lis
pendens, taking of evidence, choice of law, state or sovereign immunity, recognition of
judgments and neutrality of litigation procedures and decision-makers are endemic, and
result in significant uncertainty and inefficiency. (9) Equally, the litigation procedures
used in national courts are often ill-suited for both the resolution of international
commercial disputes and the tailoring of procedures to particular parties and disputes,
while decision-makers often lack the integrity, experience and expertise demanded by
complex international business controversies. In all of these respects, international
arbitration typically offers a simpler, more effective and more competent means of
dispute resolution, tailored to the needs of business users and modern commercial
3
communities.
Drawing on these advantages, this Treatise aspires to describe the law, practice and
policy of international commercial arbitration in a manner that enables it to be of use,
and guidance, in other areas of international affairs, including international litigation.
The Treatise begins with an Overview, in Chapter 1, which introduces the subject of
international commercial arbitration. This introduction includes an historical summary,
as well as an overview of the legal framework governing international arbitration
agreements and the principal elements of such agreements. Chapter 1 also introduces
the primary sources relevant to a study of international commercial arbitration. The
P 3 remainder of the Treatise is divided into three Parts.
Part I of the Treatise deals with international commercial arbitration agreements. It
describes the legal framework applicable to such agreements, the presumptive
separability or autonomy of international arbitration agreements, the law governing
international arbitration agreements, the substantive and formal rules of validity relating
to such agreements, the nonarbitrability doctrine, the competence-competence
doctrine, the legal effects of international arbitration agreements, the interpretation of
international arbitration agreements and the legal rules for identifying the parties to
international arbitration agreements.
Part II of the Treatise deals with international arbitration proceedings and procedures. It
addresses the legal framework applicable to such proceedings, the selection and
challenge of international arbitrators, the rights and duties of arbitrators, the selection of
the arbitral seat, the conduct of arbitral procedures, disclosure or discovery, provisional
measures, consolidation and joinder, the selection of substantive law, confidentiality and
legal representation.
Part III of the Treatise deals with international arbitral awards. It addresses the legal
framework for international arbitral awards, the form and contents of such awards, the
correction and interpretation of arbitral awards, actions to annul or vacate awards, the
recognition and enforcement of international arbitral awards and the application of
principles of res judicata, preclusion and stare decisis in international arbitration.
The focus of the Treatise, in all three Parts, is on international standards and practices,
rather than a single national legal system. Particular attention is devoted to the leading
international arbitration conventions – the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the “New York Convention”), the European
Convention on International Commercial Arbitration and the Inter-American Convention
on International Commercial Arbitration.
This Treatise rests on the premise that these instruments, and particularly the New York
Convention, establish a constitutional framework for the conduct of international
commercial arbitrations around the world. That framework is given effect through
national arbitration legislation, with Contracting States enjoying substantial autonomy to
give effect to the basic principles of the Convention. At the same time, the Convention
also imposes important international limits on the ability of Contracting States to deny
effect to international arbitration agreements and arbitral awards. These limitations
have not always been appreciated by courts in Contracting States, and are not always
fully addressed in commentary, but they form a critical constitutional foundation for the
contemporary international arbitral process. Identifying and refining these limits is a
central aspiration of this Treatise.
The Treatise also devotes substantial attention to leading national arbitration legislation
– including the United Nations Commission on International Trade Law (“UNCITRAL”)
Model Law on International Commercial Arbitration and the arbitration statutes in
leading arbitral centers (including the United States, England, France, Switzerland,
Singapore, Germany, Austria, Sweden, Hong Kong, Korea, China, Japan and elsewhere). The
Treatise’s focus is expressly international, focusing on how both developed and other
jurisdictions around the world give effect to the New York Convention and to international
arbitration agreements and arbitral awards. Every effort is made to avoid adopting
purely national solutions, without consideration of international and comparative
perspectives.
The Treatise’s international and comparative focus rests on the premise that the
treatments of international commercial arbitration in different national legal systems
are not diverse, unrelated phenomena, but rather form a common corpus of international
arbitration law which has global application and importance. From this perspective, the
analysis and conclusions of a court in one jurisdiction (e.g., France, the United States,
P 4 Switzerland, India, or Singapore) regarding international arbitration agreements,
proceedings, or awards have direct and material relevance to similar issues in other
jurisdictions.
That conclusion is true both descriptively and prescriptively. In practice, on issues
ranging from the definition of arbitration, to the separability presumption, the
competence-competence doctrine, the interpretation of arbitration agreements, choice-
of-law analysis, nonarbitrability, the role of courts in supporting the arbitral process, the
principle of judicial non-interference in the arbitral process, the immunities of
arbitrators and the recognition and enforcement of arbitral awards, decisions in
4
individual national courts have drawn upon and developed a common body of
international arbitration law. Guided by the constitutional principles of the New York
Convention, legislatures and courts in Contracting States around the world have in
practice looked to and relied upon one another’s decisions, (10) and commentary on
international arbitration, (11) formulating and progressively refining legal frameworks of
national law with the objective of ensuring the effective enforcement of international
arbitration agreements and awards.
More fundamentally, national courts not only have but should consider one another’s
decisions in resolving issues concerning international arbitration. By considering the
treatment of international arbitration in other jurisdictions, and the policies which
inspire that treatment, national legislatures and courts can draw inspiration for resolving
comparable problems. Indeed, it is only by taking into account how the various aspects
of the international arbitral process are analyzed and regulated in different jurisdictions
that it is it possible for courts in any particular state to play their optimal role in that
process. This involves considerations of uniformity – where the harmonization of national
laws in different jurisdictions can produce fairer and more efficient results – as well as
the ongoing reform of the legal frameworks for international arbitration – where national
courts and legislatures progressively develop superior solutions to the problems that
P 5 arise in the arbitral process.
The Treatise also focuses on leading institutional arbitration rules, particularly those
adopted by the International Chamber of Commerce, the London Court of International
Arbitration, the American Arbitration Association’s International Centre for Dispute
Resolution, and the Singapore International Arbitration Centre, as well as the UNCITRAL
Rules. (12) Together with the contractual terms of parties’ individual arbitration
agreements, these rules reflect the efforts of private parties and states to devise the
most efficient, neutral, objective and enforceable means for resolving international
disputes. These various contractual mechanisms provide the essence of the international
commercial arbitral process, which is then given effect by international arbitration
conventions and national arbitration legislation.
Taken together, international arbitration conventions (particularly the New York
Convention), national arbitration legislation and institutional arbitration rules provide a
complex legal framework for the international arbitral process. That framework requires
Contracting States to effectuate the broad constitutional mandate of the New York
Convention – to recognize and enforce arbitration agreements and arbitral awards –
while affording individual states considerable latitude in implementing these
obligations. In turn, most Contracting States have used that latitude to adopt vigorously
pro-arbitration legislative frameworks, which grant arbitral institutions, arbitrators and
parties broad autonomy to devise mechanisms for the arbitral process and which give
effect to international arbitration agreements and arbitral awards. The resulting legal
framework provides a highly effective means for resolving difficult international
commercial disputes in a fair, efficient and durable manner.
The Treatise’s analysis is intended to be clear, direct and accessible. International
arbitration law is complex, sometimes unnecessarily so. That is unfortunate. Like most
things, the arbitral process works better, and its problems are more readily confronted
and overcome, when it is clearly described and when issues are transparently presented.
Every effort has been made in the drafting and revisions of this Treatise to avoid
obscurity, and instead to address matters clearly and simply so they can be understood
and debated.
Like international commercial arbitration itself, this Treatise is a work in progress. The
first edition of International Commercial Arbitration, published in 2009, was the successor
to two earlier works by the same author; the second edition of the Treatise built upon and
extensively revised these earlier works. The current third edition continued and
expanded the efforts of both earlier editions. In doing so, this edition of the Treatise
draws on the extensive body of judicial authority, legislative and institutional
developments and commentary that have become available since 2014.
This edition inevitably contains errors, omissions and confusions, which will require
correction, clarification and further development in future editions, to keep pace with
the ongoing developments in the field. Corrections, comments and questions are
P 5 encouraged, by email to [email protected].
References
1) The history of international arbitration is summarized below. See §1.01.
2) The popularity of international commercial arbitration as a means of dispute
resolution is discussed below. See §1.03.
3) See §1.03.
4) See §1.03.
5) See §1.04.
6) See §1.04_[A]; §1.04[B].
5
7) See §1.04 [C].
8) See §6.06.
9) The persistence and complexity of such disputes are beyond the scope of this work.
They are discussed in G. Born & P. Rutledge, International Civil Litigation in United
States Courts (6th ed. 2018); L. Collins et al. (eds.), Dicey Morris and Collins on The
Conflict of Laws (15th ed. 2012 & Supp. 2018); R. Geimer, Internationales
Zivilprozessrecht (8th ed. 2019).
10) See §1.04[A][1][d], p. 114 n. 777.
11) See, e.g., GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA,
LLC, 590 U.S.- (U.S. S.Ct. 2020) (citing G. Born, International Commercial Arbitration
(2014)); BG Group plc v. Argentina, 572 U.S. 25 (U.S. S.Ct. 2014) (citing G. Born,
International Commercial Arbitration (2009)); Enka Insaat Ve Sanayi AS v. OOO Ins. Co.
Chubb [2020] UKSC 38 (U.K. S.Ct.) (citing G. Born, International Commercial Arbitration
(2014)); DallahReal Estate & Tourism Holding Co. v. Ministry of Religious Affairs,
Pakistan [2010] UKSC 46, ¶87 (U.K. S.Ct.) (citing G. Born, International Commercial
Arbitration (2009) and J.-F. Poudret & S. Besson, Comparative Law of International
Arbitration (2d ed. 2007)); Judgment of 25 September 2014, DFT 5A_165/2014 ¶7.2 (Swiss
Fed. Trib.) (citing G. Born, International Commercial Arbitration (2d ed. 2014)); Uber v.
Heller, 2020 SCC 16 (Canadian S.Ct.) (citing G. Born, International Commercial
Arbitration (2014)); YugraneftCorp. v.RexxMgtCorp., [2010] 1 RCS 649, 661 (Canadian
S.Ct.) (citing G. Born, International Commercial Arbitration 101 (2009) and N. Blackaby
et al. (eds.), Redfern and Hunter on International Arbitration 70, 72-73 (5th ed. 2009));
RaknaArakshakaLanka Ltd v. AvantGardeMaritimeServs. Ltd, [2019] 2 SLR 131, ¶¶51, 70
(Singapore Ct. App.) (citing G. Born, International Commercial Arbitration (2d ed.
2014)); PT Perusahaan Gas Negara (Persero)TBKv.CRWJoint Operation, [2015] SGCA 30,
¶¶45-52, 138 (Singapore Ct. App.) (citing G. Born, International Commercial
Arbitration (2d ed. 2014)); Larsen Oil & Gas Pte Ltd v.PetroprodLtd, [2011] SGCA 21, ¶18
(Singapore Ct. App.) (citing G. Born, International Commercial Arbitration 1083 (2009)
and J. Lew, L. Mistelis & S. Kröll, Comparative International Commercial Arbitration
152 (2003)); Judgment of 18 February 2020, Case No. 200.197.079/01 (Hague Gerechtshof)
(citing G. Born, International Commercial Arbitration (2d ed. 2014)); Hancock
Prospecting Pty Ltd v. Rinehart, [2017] FCAFC 170, ¶¶368, 376, 399 (Australian Fed. Ct.)
(citing G. Born, International Commercial Arbitration (2d ed. 2014)); Todd Petroleum
Mining Co. Ltd v. Shell Co. Ltd, [2014] NZCA 507, ¶35 (Wellington Ct. App.) (citing G.
Born, International Commercial Arbitration (2d ed. 2014)); Bharat Aluminium v. Kaiser
Aluminium, C.A. No. 7019/2005, ¶¶20, 149, 156 (Indian S.Ct. 2012) (citing G. Born,
International Commercial Arbitration (2009) and L. Collins et al. (eds.), Dicey and
Morris on The Conflict of Laws (11th ed. 1987)).
12) See §1.04[C].
6
Document information Chapter 1: Overview of International Commercial
Arbitration (Updated August 2022)
Publication This Chapter provides an overview of the history and contemporary legal framework for
International Commercial international commercial arbitration. First, the Chapter sets out a summary of the history
Arbitration (Third Edition) of international arbitration. Second, the Chapter considers the key objectives of
contemporary international commercial arbitration. Third, the Chapter outlines the
contemporary legal framework for international commercial arbitration, including
international arbitration conventions, national arbitration legislation, institutional
Last Reviewed arbitration rules, international arbitration agreements and choice-of-law rules. Fourth,
August 2022 the Chapter briefly summarizes leading “theories of arbitration.” Finally, the Chapter
reviews the main sources of information and research materials in the field of
international commercial arbitration.
Bibliographic §1.01 HISTORY OF INTERNATIONAL ARBITRATION (1)
reference
'Chapter 1: Overview of A thorough treatment of the history of international commercial arbitration is beyond the
International Commercial scope of this Treatise. Indeed, such a history remains to be recorded by legal historians,
Arbitration (Updated even insofar as the comparatively limited subjects of arbitration in individual
August 2022)', in Gary B. jurisdictions or commercial sectors are concerned. (2)
Born , International Nevertheless, a brief review of the history of arbitration in international matters provides
Commercial Arbitration an important introduction to analysis of contemporary international commercial
(Third Edition), 3rd edition arbitration. In particular, this review identifies some of the principal themes and
(© Kluwer Law objectives of international commercial arbitration and places modern developments in
International; Kluwer Law context. An historical review also underscores the extent to which international state-to-
International 2021) pp. 7 - state and commercial arbitration developed in parallel, with similar objectives,
250 institutions and procedures.
[A] Historical Development of International Arbitration Between States

The origins of international arbitration are sometimes traced, if uncertainly, to ancient
mythology. Early instances of dispute resolution among the Greek gods, in matters at
least arguably international by then-prevailing standards, involved disputes between
Poseidon and Helios over the ownership of Corinth (which was reportedly split between
them after an arbitration before Briareus, a giant), (3) Athena and Poseidon over
possession of Aegina (which was awarded to them in common by Zeus) (4) and Hera and
Poseidon over ownership of Argolis (which was awarded entirely to Hera by Inachus, a
mythical king of Argos). (5) Egyptian mythology offers similar accounts of divine
arbitrations, including a dispute between Seth and Osiris, resolved by Thot (“he who
decides without being partial”). (6)
Apart from suggesting Poseidon’s persistent problems with his peers, these myths tempt
interpretation, perhaps more than they can fairly bear. Among other things, the diverse
outcomes of these various “cases” at once suggest and contradict images of arbitration as
pure compromise, (7) while the role of neutral humans (or giants) (8) in resolving disputes
among gods, and Thot’s descriptive appellation, hints at the arbitrator’s impartial,
adjudicatory function (9) and the central role of the rule of law in arbitration. (10)
[1] Inter-State Arbitration in Antiquity
Deities aside, international arbitration was a favored means for peacefully settling
disputes between states and state-like entities in Antiquity: “arbitration is the oldest
method for the peaceful settlement of international disputes.” (11) In particular, there is
substantial historical evidence for the use of arbitration to resolve disputes between
states, city-states and similar entities in ancient Greece, Rome, Persia and Mesopotamia.
(12)
Historical scholarship provides no clear conclusions regarding the first recorded instance
of international arbitration between states (or state-like entities). In the state-to-state
context, some cite what contemporary reporters would denominate as the case of Lagash
v. Umma, apparently settled in 2550 B.C. by King Mesilim of Kish, (13) or the 2100 B.C. case
of Ur v. Lagash, in which the King of Uruk ordered one city to return territory seized by
force from another. (14) Others look to two disputes decided in the eighth century B.C. by
Eriphyle, a noblewoman, over Argos’s plans to wage war on Thebes, (15) a 650 B.C. dispute
between Andros and Chalcis over possession of a deserted city, (16) a controversy
between Athens and Megara in 600 B.C. over the island of Salamis, (17) or a 480 B.C.
disagreement between Corinth and Corcyra over control of Leucas. (18)
Scholars of Antiquity are uniform in concluding that the ancient Greeks frequently
resorted to international arbitration to resolve disputes between city-states. In one
authority’s words, “arbitration was used throughout the Hellenic world for five hundred
years.” (19) There are records of 46 separate state-to-state arbitrations between 300 B.C.
and 100 B.C., a reasonably impressive figure of one inter-state arbitration every four
years. (20) This was the result of frequent inclusion of arbitration clauses in state-to-state
treaties, providing for specified forms of arbitration to resolve future disputes that might
arise under such treaties, (21) as well as submission agreements with regard to existing
7
“inter-state” disputes. (22)
The procedures used in arbitrations between Greek city-states would not be unfamiliar to
contemporary litigants. (23) The parties were represented by agents, who acted as
counsel (in a dispute between Athens and Megara, Solon represented the former); (24) the
parties presented documentary evidence and witness testimony (or sworn witness
statements); (25) oral argument was presented through counsel, with time limits being
imposed on counsel’s arguments; (26) and the arbitrators rendered written, signed and
reasoned awards. (27) As one authority summarized the arbitral process: “[a]s a method of
dispute settlement, arbitration did not rely on divine authority for its sanction, or even
on the institutional power of an oracle or amphictyony. Awards were respected because
they were the product of a rhetorical exchange where the interested parties could
marshal whatever arguments or forms of persuasion they wished.” (28)
It is also clear, however, that the term “arbitration” encompassed a range of different
dispute resolution mechanisms, some of which appear reasonably similar to
contemporary international arbitration, while others differed in substantial ways. One
aspect of ancient state-to-state arbitration that would strike contemporary observers as
unusual was the number of arbitrators: although most tribunals were apparently
comprised of three members, there were instances where tribunals consisted of large
numbers (variously, 600 Milesians, 334 Larissaeans, and 204 Cnidians) which arguably
reflect a quasi-legislative, rather than adjudicatory, function. (29) Other “arbitrations”
appear to have been more in the nature of non-binding mediation, or political
consultation, than true arbitration. (30)
Nonetheless, the conception of the arbitrator as an independent and impartial
adjudicator was central to the state-to-state arbitral process. An oath, sworn by
arbitrators in one ancient Greek arbitration, illustrates these expectations of
independence and impartiality:
“I swear by Jupiter, the Lycian Apollo, and by the earth that I will judge in the
case between the parties under oath as will appear to be most just. I will not
judge according to one witness if this witness does not appear to me to tell the
truth. I have not received any present with relation to this suit, neither myself
nor any other for me, man or woman, nor by any detour whatsoever. May I
prosper as I adhere to my oath, but unhappiness to me if I perjure myself.” (31)
Arbitration was also used to settle disputes between state-like entities during the Roman
age. Although commentators observe that the use of arbitration declined from Hellenic
practice, (32) it was by no means abandoned. Territorial subdivisions of the Roman
Empire, as well as vassal states and allies, appealed to the Roman Senate, to Roman
proconsuls, or to other Roman institutions for “arbitral” decisions or the appointment of
arbitrators to resolve territorial and other disputes. (33) In general, however, the
historical record indicates that Rome preferred political directives or military solutions,
within the Empire, to inter-state arbitration or adjudication. (34)
[2] Inter-State Arbitration in European Middle Ages
After an apparent decline in usage under late Roman practice, international arbitration
between state-like entities in Europe experienced a revival during the Middle Ages.
Although historical records are sketchy, scholars conclude that international arbitration
“existed on a widespread scale” during the Middle Ages, (35) that “the constant disputes
that arose in those warlike days were very frequently terminated by some kind of
arbitration,” (36) and that “it is surprising to learn of the great number of arbitral
decisions, of their importance and of the prevalence of the ‘clause compromissoire.’” (37)
The states of the Swiss Confederation (38) and the Hanseatic League, (39) as well as
Italian principalities, (40) turned with particular frequency to arbitration to settle their
differences, often pursuant to agreements to resolve future disputes by arbitration. (41)
Determining the precise scope and extent of international arbitration between states or
state-like entities during the Medieval era is difficult, in part because a distinction was
not always drawn between judges, arbitrators, mediators and amiables compositeurs. (42)
Indeed, one of the most famous “arbitrations” of the age – Pope Alexander VI’s division of
the discoveries of the New World between Spain and Portugal – appears not to have been
an arbitration at all, but rather a negotiation or mediation. (43) On the other hand,
numerous treaties throughout this period drew clear distinctions between arbitration (in
the sense of an adjudicative, binding process) and conciliation or mediation (in the sense
of a non-binding procedure). (44)
As with arbitration in Antiquity, the procedures used during arbitral proceedings in
Medieval times bore important resemblances to those used today. Both parties
presented arguments through counsel, evidence and testimony were received by the
tribunal, the arbitrators deliberated and a written award was made. (45) There is also
evidence that written briefs were a standard element of inter-state arbitral procedures.
(46)
Parties appear to have placed importance on the prompt resolution of their disputes,
including by imposing time limits in their agreements on the arbitrators’ mandates. (47)
And, if a losing party flouted an arbitral tribunal’s decision, the arbitrator or another
8
authority was sometimes empowered to impose sanctions to enforce compliance. (48)
Arbitrators were frequently ecclesiastics or rulers of neighboring or neutral states; (49) in
particular, the Papacy was frequently involved in arbitrating various categories of
dynastic, territorial and similar disputes between feudal rulers. (50)
During the 16th, 17th and 18th centuries, the popularity of international arbitration as a
means of resolving state-to-state disputes apparently declined significantly. Although by
no means entirely abandoned, the rising tide of nationalism reportedly chilled historic
reliance on state-to-state arbitration: “nor is arbitration the immediate jewel of Tudor
souls.” (51) It was only at the end of the 18th century, with Jay’s Treaty between the newly-
founded United States and Great Britain (discussed below), (52) that international
arbitration in the state-to-state context saw a new resurgence.
[3] Inter-State Arbitration in 18th and 19th Centuries
Great Britain’s North American colonies appear to have embraced inter-state arbitration
from at least the moment of their independence. The 1781 Articles of Confederation
provided a mechanism for resolving inter-state disputes between different American
states, through what can only be categorized as arbitral procedures. (53)
More significantly, “[t]he modern era of arbitral or judicial settlement of international
disputes, by common accord among all writers upon the subject, dates from the signing
on November 19, 1794, of the Jay’s Treaty between Great Britain and the United States.”
(54) Among other things, in a determined effort to restore amicable relations between the
newly-independent United States and Great Britain, Jay’s Treaty provided for the
establishment of three different arbitral mechanisms, dealing with boundary disputes,
claims by British merchants against U.S. nationals and claims by U.S. citizens against
Great Britain. (55) This was a remarkable step, between recent combatants, which
ushered in a new age of inter-state arbitration.
The United States continued its tradition of arbitrating international disputes throughout
the 19th century. (56) It included an arbitration clause (albeit an optional one) in the 1848
Treaty of Guadalupe Hidalgo, which provided for resolution of future disputes between
the United States and Mexico “by the arbitration of commissioners appointed on each
side, or by that of a friendly nation.” (57) The United States did the same in the 1871
Treaty of Washington with Great Britain, providing the basis for resolving a series of
disputes provoked by the Civil War, (58) including the classic Alabama Arbitration
concerning U.S. claims that Great Britain had violated its obligations of neutrality during
the U.S. Civil War. (59) Among other things, the Washington Treaty provided for arbitration
of the disputes before a five-person tribunal, with one arbitrator nominated by each of
the United States and Great Britain, and three arbitrators nominated by neutral states.
The United States and Great Britain also repeatedly resorted to arbitration to settle
various boundary and other disputes during the 19th and early 20th centuries. (60)
Agreements to arbitrate in the Americas were not confined to matters involving the
United States. On the contrary, between 1800 and 1910, some 185 separate treaties
among various Latin American states included arbitration clauses, dealing with
everything from pecuniary claims, to boundaries, to general relations. (61) For example,
an 1822 agreement between Colombia and Peru, which was intended to “draw more
closely the bonds which should in future unite the two states,” provides that “a general
assembly of the American states shall be convened … as an umpire and conciliator in
their disputes and differences.” (62) At the end of the 19th century, several Latin American
states entered into bilateral arbitration treaties, providing that specified categories of
future inter-state disputes would, if they arose, be submitted to arbitration. (63)
Moreover, many Latin American states engaged in inter-state arbitrations arising from
contentious boundary disputes inherited from colonial periods, which the disputing
parties generally submitted to a foreign sovereign or commission for resolution. (64)
Arbitration of such matters was not always successful, especially when the disputed
territory was rich in natural resources or minerals, (65) and boundary disputes at times
required additional arbitrations to interpret or implement an initial award. (66)
Arbitration of state-to-state disputes does not appear to have been used significantly in
Europe during the 18th century. By the late 19th century, however, arbitration provisions
began to be included in various types of treaties between European states. Multilateral
treaties containing institutional arbitration agreements included matters ranging from
the General Postal Union, (67) to the carriage of goods by rail and post, (68) to European
colonization and trade in Africa, (69) and to the slave trade. (70) A number of bilateral
treaties between European states during the late 19th century dealing with extradition
(71) and commercial relations (72) also contained arbitration clauses.
In the final years of the 19th century, European states also concluded a number of
arbitration treaties providing generally for the arbitration of defined categories of future
disputes. (73) One representative bilateral arbitration treaty from this era provided that
the parties would submit to arbitration: “all the controversies, whatever their nature and
cause, which may arise between them in the period of existence of this Treaty.” (74) As
discussed below, the popularity of bilateral arbitration treaties – if not their actual usage
– continued well into the first half of the 20th century. (75)
9
[4] Proposals for Institutional Inter-State Arbitration
Proposals for institutional forms of state-to-state arbitration existed in some regions
from an early date. Grotius’ exhortations at the end of the 17th century are illustrative:
“Christian kings and states are bound to pursue this method [arbitration] of
avoiding wars. … [F]or this and for other reasons it would be advantageous,
indeed in a degree necessary, to hold certain conferences of Christian powers,
where those who have no interest at stake may settle the disputes of others,
and where, in fact, steps may be taken to compel parties to accept peace on
fair terms.” (76)
By the end of the 19th century, proposals for more universal and binding state-to-state
arbitration mechanisms emerged with greater frequency, often supported by religious
and pacifist groups. (77) Capturing the moral roots of such proposals, Andrew Carnegie
famously remarked that “[t]he nation is criminal which refuses arbitration.” (78)
Although seldom discussed in today’s literature, an 1875 project of the Institut de Droit
International produced a draft procedural code, based on existing inter-state arbitral
practice and designed to provide basic procedural guidelines and mechanisms for future
ad hoc arbitrations between states. (79) The project provides impressive testimony to
both the frequency of inter-state arbitrations at the time and the perceived desirability
of more consistent, transparent and internationally-neutral procedures for such
arbitrations.
In 1899, the Hague Peace Conference produced the 1899 Convention for the Pacific
Settlement of International Disputes. (80) A central feature of the Conference’s program
was the use of adjudication to prevent conflicts between states, with proposals for an
ambitious multilateral convention mandatorily requiring state-to-state arbitration of
most international legal disputes. (81) These proposals were unacceptable to some
European states and the Conference instead adopted provisions for voluntary arbitration
of certain categories of state-to-state arbitration.
In particular, the 1899 Convention encouraged – but did not require – Contracting States
to resolve their international disputes by arbitration. (82) The Convention included
chapters on international arbitration and established a so-called “Permanent Court of
Arbitration” (PCA). (83) Thus, Article 16 of the Convention declared that “[i]n questions of a
legal nature, and especially in the interpretation of International Conventions,
arbitration is recognized by the Signatory Powers as the most effective, and at the same
time the most equitable, means of settling disputes.” (84)
The 1899 Convention suggested that, where states chose to arbitrate a dispute, the award
would be binding. Article 18 of the Convention provided that an agreement to arbitrate
“implies the engagement to submit loyally to the Award.” (85) The Convention also
distinguished the binding character of arbitration from the resolution of disputes through
“commissions of inquiry,” “good offices” and “mediation” – each of which were provided
for by the Convention, but none of which entailed a binding decision. (86) At the same
time, however, the Convention contained no means to enforce arbitral awards, and the
Convention’s language underscored the tenuous character of any obligation to comply
with an award (providing only that states impliedly “engage[d]” to “submit in good faith”
to awards). (87)
In order to encourage states to resort to arbitration, the 1899 Convention established the
PCA (seated in the Hague), for administering inter-state arbitrations. (88) Articles 15 to 19
of the 1899 Convention prescribed a set of rules regarding the constitution of inter-state
arbitral tribunals and the conduct of inter-state arbitrations, with the PCA serving as a
form of arbitral institution responsible for a variety of administrative and other functions,
including maintaining a list of arbitrators who might be appointed to tribunals in future
cases (if states chose to agree to such arbitrations). (89) The Convention also provided a
skeletal set of procedural rules that could be applied in proceedings (again, if states
agreed to such arbitrations). (90)
The 1899 Convention was revised in 1907, with the new version of the Convention for the
Pacific Settlement of International Disputes including the addition or amendment of a
number of the existing provisions regarding international arbitral proceedings. (91)
However, the 1907 Conference made no fundamental changes to the treatment of inter-
state arbitration under the 1899 Convention, including the absence of any general
obligation to submit disputes to arbitration. (92)
PCA arbitral tribunals subsequently issued a handful of well-reasoned awards in state-to-
state arbitrations, occasionally in disputes of some practical significance, which played a
material role in the development of customary international law. (93) In general,
however, the PCA was used relatively infrequently and addressed few cases of
international importance during the first century or so of its existence. (94) All told,
during the first 70 years of the PCA’s existence, only 25 arbitrations were submitted to PCA
tribunals; (95) even fewer non-binding PCA conciliations or inquiries were conducted. (96)
The 1899 and 1907 Hague Conventions provided the foundation for more formal inter-
state adjudication, in the form of the Permanent Court of International Justice (PCIJ) and
International Court of Justice (ICJ). (97) Also during the early 20th century, states
10
negotiated large numbers of bilateral (98) and multilateral (99) arbitration treaties
providing for mandatory arbitration of defined, but generally broad, categories of future
disputes (along the lines of the proposals rejected in the Hague Conferences).
The United States was an avid proponent of bilateral arbitration treaties and concluded
a number of such treaties with various European states. The U.S. treaties with the United
Kingdom and France, referred to as the Taft or Knox Arbitration Treaties (after the U.S.
politicians who championed the treaties), provided for broad mandatory arbitration of
all justiciable disputes between the Contracting States, but were never ratified; instead,
the United States concluded a series of more limited treaties (not providing for
mandatory arbitration), often referred to as the Bryan Treaties, principally with European
and Latin American states. (100) Other states also concluded such agreements, with some
120 bilateral arbitration treaties being entered into between 1900 and 1914. (101)
Multilateral arbitration treaties included the 1924 Geneva Protocol for the Pacific
Settlement of International Disputes and the 1928 Geneva General Act for the Pacific
Settlement of International Disputes, (102) both of which provided for the compulsory
arbitration of a broad range of future international disputes. In addition, more than a
hundred bilateral arbitration treaties were entered into between 1900 and 1939,
generally providing for compulsory arbitration of a wide range of disputes between the
Contracting States. (103) In the words of one commentator, “the immense output of
arbitration treaties has been such that to-day [i.e., 1928] they constitute a forest, a very
dense forest, in which it is difficult to find one’s way.” (104)
Nonetheless, most states remained sceptical of such treaties and declined to ratify them
– or, even if ratified, declined to use them. (105) Following World War II, the popularity of
compulsory arbitration treaties declined precipitously; in the words of one author, they
“were abandoned almost entirely.” (106) Moreover, as with the PCA itself, usage of these
treaties was very modest, with fewer than ten arbitrations being conducted pursuant to
general compulsory arbitration treaties between 1920 and 1990. (107)
Despite this, through other mechanisms, international arbitration remained a favored
means of resolving state-to-state disputes throughout the 20th century. In total, some 200
inter-state arbitrations were conducted between 1900 and 1970, not involving the PCA or
compulsory arbitration treaties; instead, these arbitrations generally arose pursuant to
ad hoc submission agreements or compromissory clauses in particular bilateral treaties.
(108) Particularly compared to the PCIJ and ICJ, it is clear that arbitration was a preferred
method of resolving inter-state disputes during the 20th century. (109)
[5] Arbitral Procedures in Inter-State Arbitration
As outlined above, arbitral procedures have varied substantially, both over time and in
different geographic and political settings. At least in part, that reflects the inherent
flexibility of the arbitral process, which leaves the parties (and arbitrators) free to devise
procedures tailored to a particular dispute and legal or cultural setting. (110)
Despite this inherent flexibility, the procedures used in state-to-state arbitrations have
also displayed, with remarkable consistency, certain enduring, common characteristics.
These have included an essentially adversarial procedure, with states being free – and
required – to present their respective cases, often through counsel and/or agents; (111) an
adjudicative procedure, with decisions being based on the evidentiary and legal
submissions of the parties and generally resulting in a reasoned award; (112) and
continuing efforts to devise procedures that would provide a fair, efficient and
expeditious arbitral process. (113) As already noted, historic approaches to the inter-
state arbitral process often produced procedures that were not dissimilar to those used
in contemporary state-to-state arbitrations. (114)
Arbitral procedures that evolved in state-to-state arbitrations during the 19th century
and the beginning of the 20th century bore even closer resemblances to contemporary
proceedings than was historically the case, with international tribunals more
systematically exercising their power to establish rules governing pleadings and
proceedings. (115) Governments were generally represented by an agent, who
represented the interests of the state, and a counsel, who provided advice, managed the
case and appeared before the tribunal at oral hearings. (116) Cases were initiated by a
written memorial, which asserted the basic legal claims and alleged sufficient facts to
establish jurisdiction; the opposing party’s response then could come in the form of an
answer, a plea, a motion to dismiss, or an exception. (117)
Although rules for evidence varied, inter-state arbitral tribunals generally preferred
documentary evidence to live witnesses and, rather than excluding certain types of
evidence, would accept all evidence and weigh it at their discretion. (118) With the
increased frequency of state-to-state arbitration over the course of the 19th century,
practices of civil and common law countries converged, eventually giving way to the
partial codification of these procedures in international instruments (including the
Institut de Droit International projects, discussed above). (119) Again, the procedures
outlined in these 19th century instruments bear striking similarities to contemporary
procedural regimes. (120)
One of the enduring features of international arbitration procedures in the state-to-state
11
context, regardless of time or cultural setting, has been the nomination of members of
the tribunal by the parties and, in particular, unilateral nomination of one or more
members of the tribunal by each party. Indeed, from almost the beginning of recorded
modern history – through every age until the present – party-nominated arbitrators were
an enduring, essential feature of the international arbitral process. (121) Thus:
a. In a 1254 treaty of peace among various German states, future disputes were to be
settled by mixed tribunals composed of judges of equal number of the two parties
and presided over by a “gemeiner mann” (or umpire). (122) Northern Italian states
and Swiss cantons adopted the same approach, during the 12th, 13th and 14th
centuries, with occasional variation that the tribunal would be composed of an even
number of arbitrators, with or without umpire, or that each party would be required
to select a national of the counter-party as co-arbitrator. (123)
b. In one of the earliest Medieval plans for institutional inter-state arbitration, in 1306,
Pierre Dubois proposed a means of settling disputes among European
principalities, involving each party nominating three arbitrators, to be joined by
three additional ecclesiastics. (124)
c. The 1343 Arbitral Convention between King Waldemar of Denmark and King Magnus
of Sweden provided for each state to select three bishops and three knights and, if
the resulting tribunal was unable to resolve matters, to select two (one each) of its
number to make a final decision. (125)
d. The 1516 Treaty of Perpetual Peace between the Swiss Cantons and Francis I
provided for arbitration before “four men of substance, two named by each party,”
and “if their opinions are divided, the plaintiff may choose from the neighboring
counties a prud’homme beyond suspicion and who will meet with the arbitrators to
decide the difficulty.” (126)
e. The 1655 Treaty of Westminster between France and England provided for resolution
of future disputes by six arbitrators, three named by each side, with unresolved
matters being referred to the Republic of Hamburg, which was charged with
selecting a further tribunal. (127)
f. The 1781 Articles of Confederation, of the American colonies, provided for the
resolution of disputes between states by an arbitral process, with the concerned
states being involved in selection of the tribunal, either by agreement or through an
innovative list system. (128)
g. Jay’s Treaty of 1794, between the United States and Great Britain, provided for three
arbitral mechanisms, with the tribunals consisting of either three arbitrators (one
appointed by the United States and one by Great Britain, with the two party-
nominated arbitrators selecting a third, either by agreement or a prescribed list
system) or five arbitrators (two appointed by the King of England, two by the
President of the United States and the fifth by agreement or through the use of a
prescribed list system). (129)
h. The Treaty of 11 April 1839, between the United States and Mexico, provided for a
tribunal of five, with two arbitrators appointed by each state and (absent
agreement) the fifth arbitrator being selected by the King of Prussia. (130) A large
number of other treaties between the United States, Latin American and other
states provided for party-nominated arbitrators on either three or five-person
tribunals. (131)
i. The so-called Portendick claims, between Great Britain and France (concerning an
allegedly unlawful French blockade of the Moroccan coast), were referred to the
King of Prussia, who in turn referred implementation of his award to a tribunal
consisting of one arbitrator nominated by each state and a third whom he selected.
(132)
j. The 1871 Treaty of Washington provided (with regard to U.S. claims against Great
Britain) for two party-nominated arbitrators on a tribunal of five, with the remaining
three arbitrators being nominated by neutral states. (133) To resolve claims by
private citizens against either of the two Contracting States, the treaty provided for
three-person tribunals, with each state nominating one arbitrator and an umpire
being selected by agreement or by a neutral third party. (134) Other arbitration
provisions between the United States and Great Britain very frequently involved
party-nomination of members of the tribunal. (135)
k. An 1897 reference to arbitration between Austria and Hungary, relating to territorial
claims near Lake Meerauge, was referred to a tribunal consisting of two party-
nominated arbitrators and an umpire. (136)
l. “Mixed” claims tribunals have been repeatedly used by European and other states,
in a wide variety of contexts, to resolve claims arising out of war, unrest, or similar
circumstances. The invariable procedure for constituting a tribunal was for one
arbitrator to be nominated by each side, and a presiding arbitrator or umpire to be
selected by agreement or by a neutral power. (137)
m. The 1899 Hague Convention for the Pacific Settlement of International Disputes and
the 1907 Hague Convention for the Pacific Settlement of International Disputes
established procedural rules for the constitution of arbitral tribunals, including
provisions for each party to nominate two co-arbitrators and for the co-arbitrators
12
to select an “umpire,” failing which a neutral party would be chosen to make the
selection. (138)
n. Both the Permanent Court of International Justice, and its eventual successor, the
International Court of Justice, provided mechanisms for the constitution of the court
that included ad hoc judges nominated by each party. (139)
o. Each of the governments of Guatemala and Honduras appointed an arbitrator with a
third arbitrator, the Chief Justice of the United States, appointed as a presiding
arbitrator by agreement of the parties under a Treaty of Arbitration signed between
the two states on 16 July 1930. (140)
p. Under a 1989 arbitration agreement, France and Canada mutually agreed to the
appointment of three arbitrators and then each side appointed an additional
arbitrator. (141)
q. Under the 2000 Eritrea-Ethiopia Boundary Commission Arbitration Agreement, each
party appointed two commissioners and the president of the Commission was
selected by the party-appointed commissioners, failing which the Secretary-
General of the United Nations would have appointed the president in consultation
with the parties. (142)
r. The 2008 arbitration agreement between the Government of Sudan and the Sudan
People’s Liberation Movement/Army (the representatives of what would become
the Republic of South Sudan in 2011) provided that each party would appoint two
arbitrators and the party-appointed arbitrators would appoint a fifth arbitrator, or,
failing agreement among the co-arbitrators, the Secretary-General of the
Permanent Court of Arbitration would do so. (143)
s. In 2011, Croatia and Slovenia submitted an arbitration agreement for registration
with the United Nations that provided first for both parties to appoint by common
agreement the president of the tribunal and two members drawn from a list
provided by the President of the European Commission, and then for each party to
appoint a further member of the tribunal. (144)
Based on similar examples, one scholar of state-to-state arbitration during the 19th
century concluded his discussion of the widespread use of party-appointed co-
arbitrators by referring to:
“the very common idea that the sovereign power of the contestants should
find representation on the court, an idea which finds illustration even in the
Permanent Court of International Justice. The theory is that the
representatives of the parties can speak with authority within the bosom of
the court with regard to the law and contentions of their governments, an idea
which would not be tolerated because of manifest evils within the bosom of a
national court.” (145)
As discussed below, this was also an enduring characteristic of arbitrations between
private parties and states, (146) and international commercial arbitrations between
private parties. (147) Indeed, the same reasoning that was invoked historically in state-
to-state arbitrations has been adopted, in almost identical terms, in the context of
contemporary international commercial arbitration, where party-nominated co-
arbitrators have been a central feature of the arbitral process since the historical record
begins. (148)
[B] Historical Development of Commercial Arbitration

Just as arbitration between states has a rich and ancient history, so the arbitration of
commercial disputes can be traced to the beginning of recorded human society. It is
occasionally suggested 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 [i.e., the 20th century]” (149) or “at the beginning of this [the 20th] century, …
international commercial arbitration was becoming established.” (150) Insofar as these
comments imply that international commercial arbitration is a recent phenomenon, they
are contradicted by a detailed historical record, which leaves no serious doubt as to the
long tradition – stretching for many centuries – of arbitration as a means for resolving
international and other cross-border business disputes.
At the same time, it is again clear (as with state-to-state arbitration) (151) that the
boundaries between arbitration and other modes of dispute resolution were not always
clearly drawn in earlier times. Rather, “arbitration” sometimes resembled a form of
state-sponsored (or -compelled) alternative dispute resolution, which was more akin to
judicial or administrative proceedings, or to non-binding conciliation, than to
contemporary international commercial arbitration. (152) At the same time, ancient
societies seldom possessed systems of judicial administration and civil litigation
comparable to those in contemporary legal systems. (153) As one commentator
concludes: “Until well into imperial times there were no professional judges in Rome. In
all civil matters, the state deputed respected citizens, sometimes from a panel to act as
adjudicators on its behalf.” (154)
Despite these ambiguities, there is substantial evidence of alternative dispute resolution
mechanisms for commercial disputes, distinct and different from judicial processes, and
13
often resembling contemporary arbitration, through almost all ages of recorded human
history. Indeed, in many eras, commercial and similar disputes were resolved
consensually through processes very closely resembling contemporary international
commercial arbitration.
[1] Commercial Arbitration in Antiquity
As in the state-to-state context, some of the earliest reports of commercial arbitration
are from the Middle East. Archaeological research reports that clay tablets from
contemporary Iraq recite a dispute between one Tulpunnaya and her neighbor, Killi, over
water rights in a village near Kirkuk, which was resolved by arbitration (with Tulpunnaya
being awarded 10 silver shekels and an ox). (155) Arbitration was also apparently well
known in ancient Egypt, with convincing examples of agreements to arbitrate future
disputes (used alongside what amount to forum selection clauses) included in funerary
trust arrangements in 2500 B.C. and 2300 B.C. (156)
[a] Arbitration in Ancient Greece
Arbitration was no less common in ancient Greece for the resolution of commercial and
other “private” disputes than for state-to-state disputes. (157) Homer describes an 8th-
century B.C. resolution of a blood debt through a public arbitral process, where the
disputants appealed to a man “versed in the law,” of their mutual choice, who presided
over a tribunal of elders which publicly heard the parties’ claims and rendered reasoned
oral opinions. (158) The example suggests the use of arbitration to resolve disputes
between private parties in Antiquity, but also confirms the lack of clear boundaries in
some periods between governmental dispute resolution mechanisms and “private,”
consensual arbitration.
The reasons for resorting to arbitration in Antiquity appear to be remarkably modern.
Historical research indicates that ancient Greek courts – like today’s courts in many
countries – suffered from congestion and back-logs, which led to the use of arbitrators,
sometimes retained from other city states (rather like foreign engineers or mercenaries),
to resolve pending cases. (159) As one commentator put it, “[a]rbitration was the natural
and regular process of choice for those who could not afford litigation, were afraid of its
outcome, preferred privacy, or were manipulating the alternatives.” (160)
Similarly, a summary of the basic legal rules governing commercial arbitration in ancient
Greece is not far removed from much contemporary legislation in the area:
“If any parties are in dispute concerning private contracts, and wish to choose
any arbitrator, it shall be lawful for them to choose whomsoever they wish. But
when they have chosen by mutual agreement, they shall abide by his
decisions and shall not transfer the same charges from him to another court,
but the judgments of the arbitrator shall be final.” (161)
Arbitral procedures in ancient Greece appear to have been largely subject to the parties’
control, including with regard to the subject matter of the arbitration, the selection of
arbitrators, the choice of law and other matters. (162) Although sole arbitrators were not
uncommon, parties frequently agreed to arbitrate before three or five arbitrators, with
each party selecting one (or two) arbitrator(s) and the party-nominated arbitrators
choosing a presiding arbitrator (a koinos). (163) There were few restrictions on the
subjects that could be arbitrated, although commercial (and family) matters were
apparently the most commonly arbitrated categories of disputes. (164)
[b] Arbitration in Ancient Rome
Arbitration of commercial matters in ancient Roman times was more common than
Roman state-to-state arbitrations, in part because there was no judicial system of
litigation comparable to those in contemporary legal structures. (165) A leading scholar
on Roman law summarizes the subject as follows:
“from the beginning of the empire, Roman law allowed citizens to opt out of
the legal process by what they called compromissum. This was an agreement
to refer a matter to an arbiter, as he was called, and at the same time the
parties bound themselves to pay a penalty if the arbitrator’s award was
disobeyed. Payment of the penalty could be enforced by legal action.” (166)
As in Greece, awards in Roman practice were reasoned, binding and apparently subject
to very limited subsequent judicial review: “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.” (167)
According to one authority, “[n]o appeal was possible against the arbiter’s decision.” (168)
Parties could seek enforcement of awards in the courts (or other government forums),
although the precise enforcement mechanisms that were available varied over time.
(169)
Arbitral procedures in Roman times were sophisticated; as one commentator summarizes
the evidence, “[r]ecords of very advanced procedures of arbitration survive from [Greco-
Roman] periods.” (170) In particular, it appears that arbitral procedures were not
14
dissimilar to those in more modern eras. (171) In a parallel to modern arbitral practice,
the arbitrator’s jurisdiction was strictly limited to “the terms of the agreement for
arbitration … and, therefore, he cannot decide anything he pleases, nor with reference to
any matter that he pleases, but only what was set forth in the agreement for arbitration,
and in compliance with the terms of the same.” (172) Arbitrators in the classical age
reportedly remained entirely free in their decisions: they were “not bound by any rules of
substantive law.” (173) Parties enjoyed substantial autonomy with regard to establishing
the arbitral procedures. (174)
Among other things, and again paralleling state-to-state practice, historical records
reveal the widespread use of party-nominated arbitrators: “a common practice … [was] to
refer the matter to two arbitrators and the praetor is bound to compel them, if they
disagree, to choose a third person themselves and his authority can be obeyed.” (175) If
an arbitrator agreed to hear a dispute (receptum arbitrum), but subsequently refused to
do so, local judicial authorities could apparently compel him to fulfil his duties. (176)
Although records of ordinary commercial disputes from this era have seldom survived,
historians nonetheless conclude that arbitration was widely used in ancient Rome. (177)
There were few limits on the subjects of arbitration, and in practice a wide range of
commercial and family matters were arbitrated: “With these few restrictions [for
inheritance and status of slaves/citizens] … arbitration ex compromisso was used
comprehensively to deal with all kinds of disputes, relating to land and goods and slaves,
and breaches of contract of all kinds.” (178)
Roman law also dealt with questions of the enforceability of agreements to arbitrate
future commercial disputes (e.g., arising from a contract). It did so by treating arbitration
clauses as separate agreements (promissum), to which the parties could attach penalty
mechanisms (stipulationes poenae) to enforce compliance. (179) The parties’ promises to
arbitrate could apparently only be enforced through a mechanism of “double promises”
(“com-promissum”), (180) in which the promise to arbitrate was coupled with the promise
to pay a penalty if the arbitration agreement was breached. (181)
A representative compromissum from Roman times, including a penalty mechanism,
provided:
“In the dispute between L Cominius Primus and L Appuleius Proculus about the
boundaries of the Numidian land of L Cominius Primus and the Stlasanician
land of L Appuleius Proculus, … they have by stipulation and pact agreed as
follows: that Ti. Crassius Firmus should be arbiter ex compromisso between L
Cominius Primus and his heir and L Appuleius Proculus and his heir and should
render his award or order his award to be rendered, openly in his presence
and in the presence of each other, before the first day of February next, and
may postpone that day when he renders his award or orders it to be rendered
or orders it to be postponed, and if anything shall be done or fail to be done,
against these agreements 1,000 sesterces of good money shall be properly
paid, fraud being absent from this matter and arbitration and to be so in the
future.” (182)
These various enforcement issues under Roman law, and the mechanisms that were
adopted to address them, foreshadowed challenges to the enforceability of arbitration
agreements, and mechanisms for addressing these challenges, that would recur in later
historical periods. (183) They also laid very early foundations for the separability
doctrine, which would also recur and play a leading role in the law of arbitration in later
historical periods. (184)
[c] Arbitration in Post-Classical Roman Empire
In the post-Classical period, arbitration became increasingly popular in many parts of
the Roman Empire because of deficiencies in state court systems, which were
characterized as unreliable, cumbersome and costly, and which faced particular
difficulties in international and other cross-border matters. (185) During this era, the
enforceability of arbitration agreements was progressively recognized, even without a
penalty mechanism. (186) This result was generally based on the principle of pacta sunt
servanda, which was developed and applied by canonical jurists in the context of
agreements to arbitrate. (187)
The Church began to play a leading role in arbitration in the later Roman Empire, with
arbitral jurisdiction frequently being exercised by Christian bishops (episcopalis
audentia). Once parties had agreed to “Episcopal” arbitration, a subsequent arbitral
award was enforceable through the courts without judicial review. (188) Simultaneously,
arbitral tribunals established within Jewish congregations within the Roman Empire were
granted similar powers, enabling them to decide not only religious, but also commercial,
disputes. (189)
Arbitration continued to play – so far as the historical record reveals – an important role
in commercial matters in the Byzantine period, in Egypt and elsewhere. Although the
records and details of such arbitrations are uncertain, those materials that survive
involve merchants, family feuds, inheritance disputes and other private law matters
being submitted to binding arbitration, with the results being enforced through penalty
15
mechanisms (as in Roman times). (190)
One apparent motivation for arbitration during this era was avoiding the delays and
expense of litigation. Thus, an 8th century Coptic record quotes an heir of one Germanos
explaining the resolution of his disputes with other heirs:
“We fought each other before the most famous comes, dioketes
(administrative tribunals) of the castron (district) of Jeme, about the house on
Kuelol Street. … After much altercation before the diokete, he made a proposal
with which we all agreed: we elected arbitrators from the castron and the
diokete sent them into the house and they made the division.” (191)
As described below, this motivation of avoiding protracted, uncertain litigation continues
to prevail today, often expressed in very similar language, as a reason for parties to agree
to international commercial arbitration. (192)
[2] Commercial Arbitration in European Middle Ages
A wide variety of regional and local forms of arbitration were used to resolve commercial
and other disputes throughout the Middle Ages in Europe. A recurrent theme of this
development was the use of arbitration by merchants in connection with merchant
guilds, trade fairs, or other forms of commercial or professional organizations. Indeed, it
is “very common,” if inaccurate, “to say that commercial arbitration had its beginning
with the practices of the market and fair courts and in the merchant gilds.” (193)
As in the state-to-state context, (194) arbitration was used with particular frequency
during Medieval times in the Swiss Confederation, Northern Italy, Germany and
neighboring regions (the Hanseatic League in particular), France and England. Whatever
the force of various claims to historical priority, it is clear that commercial arbitration
was very widespread in many European localities in the Middle Ages. (195)
In Medieval England, (196) the charters of numerous guilds – such as the Company of
Clothworkers or the Gild of St. John of Beverley of the Hans House (197) – provided for
mandatory arbitration of disputes among members: the guilds “entertain actions of debt
and covenant and trespass, and hardly dare we call such assemblies mere courts of
arbitration, for they can enforce their own decrees.” (198) Where merchants did business
with one another at trade fairs, outside the context of a guild, arbitration also played an
important role in dispute resolution. Indeed, because fairs involved numerous itinerant
or foreign merchants, this appears to have been a direct forbearer of more modern forms
of international commercial arbitration. Arbitration was also relied on to resolve
disputes in a wide range of substantive areas outside of commercial matters, including
real estate, medical negligence, employment, determinations of feudal status and even
quasi-criminal complaints of assault or arson. (199)
Arbitration of “international” disputes (including those arising from Medieval fairs) was
preferred for reasons of expedition and commercial expertise, as well as, increasingly,
the inadequacy of the local courts or other decision-makers to deal with the special
jurisdictional and enforcement obstacles presented by foreign or “international”
litigation. In Blackstone’s words, which again are almost equally applicable today:
“The reason of their original institution seems to have been, to do justice
expeditiously among the variety of persons that resort from distant places to a
fair or market; since it is probable that no inferior court might be able to serve
its process, or execute its judgments, on both or perhaps either of the parties.”
(200)
It is unclear just how “consensual” arbitrations in the context of Medieval guilds and fairs
really were, since the relevant tribunals appear to have had a degree of mandatory
jurisdiction. (201) It nonetheless is clear that the guilds and fairs were central to
developing their respective arbitral mechanisms, which functioned with substantial
independence from local court systems. That is reflected in the explanation provided by
Gerard Malynes, a 17th-century English authority on the law merchant:
“The second meane or rather ordinarie course to end the questions and
controversies arising between Merchants, is by way of Arbitrement, when both
parties do make choice of honest men to end their causes, which is voluntarie
and in their own power, and therefore called Arbitrium, or free will, whence
the name Arbitrator is derived: and these men (by some called Good men)
give their judgments by Awards, according to Equitie and Conscience,
observing the Custome of Merchants, and ought to be void of all partialitie or
affection more nor lesse to the one, than to the other, having onely care that
right may take place according the truth, and that the difference may be
ended with brevitie and expedition.” (202)
It also appears that English courts were prepared during this early period to give effect to
arbitration agreements, by enforcing penalty clauses associated with them (in
accordance with the Roman law compromissum theory), (203) by barring litigation on
claims within the scope of arbitration agreements (204) and by robust enforcement of
awards. (205)
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Arbitration appears to have been equally important in commercial affairs in Germany,
Switzerland, Northern Italy, France and Russia. The Edict of 1560, promulgated by Francis
II, made arbitration mandatory for the resolution of commercial disputes among
merchants; at the same time, it declared arbitration agreements valid, even without a
penalty clause, thereby moving beyond Roman law requirements for a compromissum.
(206) Although successive French Parliaments apparently fought to restrict the binding
character of commercial arbitration, the practice remained well-established until after
the French Revolution. (207)
Commercial arbitration was also prevalent during the Middle Ages in the Swiss cantons
and German principalities. (208) In these areas of Europe, arbitration developed from
two principal sources, which began to fuse in the 14th and 15th centuries. On the one
hand, local traditions of arbitration were integrated into the feudal system; on the other,
the Catholic Church offered arbitral mechanisms and practices which developed under
canonical law. (209)
Arbitration was also widely used in Russia in Medieval times. The Russkaya Pravda
provided a mechanism for party appointment of twelve-person tribunals, (210) while
other Slavic traditions used three-person tribunals. (211) Both mechanisms were
reportedly used in customary practice, before being normalized in local legislation or
decrees.
Whatever its sources, it is clear that commercial arbitration was very widely-used in
these regions of Europe during the Middle Ages. Consistent with this, early codifications of
procedural law dating from the 14th, 15th and 16th centuries provided for arbitration as a
supplement to local court proceedings. (212) Research in southern Germany, Switzerland
and Austria also reveals thousands of “arbitration deeds” (“Schiedsurkunde”) evidencing a
rich and varied arbitral practice in these regions during the Middle Ages. (213) A
representative example was Bavaria, where there is substantial evidence of commercial
arbitration in the 13th and 14th centuries. (214) Another anecdotal example is drawn from
the archives of the principality of Fürstenberg, which contain more than 500 arbitral
deeds for the period between 1275 and 1600 (compared to records for some 25 court
proceedings). (215)
The traditional concept of arbitration in Germany was remarkably modern in many
respects. Arbitration agreements were treated as binding by state courts, and thus did
not require penalty clauses for enforcement, while arbitral awards were subject to
immediate enforcement, with minimal judicial review. (216)
During Medieval times, arbitration in German-speaking regions frequently did not involve
a strict application of rules of substantive law, instead leaving considerable scope for
decisions based on equity (and for settlements). (217) At the same time, however, arbitral
mechanisms developed in which arbitrators were expected to apply formal legal rules. It
is said that a new type of “arbiter” emerged in the Middle Ages, who was “taken to
perform the function of a judge”: “He was chosen by the parties not merely in order to
restore the peace between the parties or to determine, ex aequo et bono, points which
the parties had left open in their agreement, but to decide a dispute.” (218) As a
consequence, a distinction was drawn between arbitration “nach Guet” (or in equity) and
arbitration “nach Recht” (or in law). (219) Where arbitration “nach Recht” was used,
arbitrators were generally obliged to apply the law (in the same manner as a judge),
while an arbitrator acting ex aequo et bono was not subject to such constraints. (220)
The canonical approach to arbitration during this period was somewhat different. The
absorption of canonical law (through the Church) and Roman law (imported from Italian
universities (221) ) changed the nature of arbitration in German-speaking regions from an
informal, consensual mechanism to a more formal, legalistic procedure, where awards
could be challenged in state courts. (222) The canonical model also offered more
sophisticated legal mechanisms based on written legal sources and doctrine, which
limited the arbitrators’ discretion. (223) Moreover, in the canonical tradition, an
agreement to arbitrate still needed to be combined with penalty clauses to be effective,
(224) and canonical awards were not treated as immediately enforceable, but remained
subject to judicial challenge based on various grounds, including laesio enormis or
manifest injustice. (225)
The reasons that merchants resorted to arbitration during the Medieval era are – we will
see in subsequent sections of this Chapter – almost eerily familiar to contemporary users
of international commercial arbitration. Simply put, arbitration was used in substantial
part as a means of overcoming the peculiar difficulties and uncertainties of international
litigation in state courts. One of Europe’s leading historians of the feudal period put it as
follows:
“The most serious cases could be heard in many different courts exercising
parallel jurisdiction. Undoubtedly there were certain rules which, in theory,
determined the limits of competence of the various courts; but in spite of
them uncertainty persisted. The feudal records that have come down to us
abound in charters relating to disputes between rival jurisdictions. Despairing
of knowing before which authority to bring their suits, litigants often agreed to
set up arbitrators of their own or else, instead of seeking a court judgment, they
preferred to come to a private agreement. … Even if one had obtained a
17
favourable decision there was often no other way to get it executed than to
come to terms with a recalcitrant opponent.” (226)
More generally, in the words of another authority on the feudal period, “in order to
escape the consequences, the delays, or the uncertainties of strict law, arbitration was a
more attractive resort, in nine cases out of ten, than the ordinary judgment of a regular
tribunal.” (227)
Despite its deep historical roots, commercial arbitration also encountered recurrent
challenges, often in the form of political and judicial mistrust or jealousy. These
challenges have sometimes been overstated, and they have almost always (eventually)
been overcome by the perceived benefits of the arbitral process in commercial settings
and the (eventual) acceptance of these benefits by local governments. Moreover, the
enforceability of arbitration agreements appears frequently to have been achieved, in
historical commercial settings, largely through non-legal sanctions, such as commercial,
religious and other sanctions effectuated via guilds or similar bodies. (228) Nonetheless,
the historical record is not complete without addressing some of the more significant
challenges that have sporadically emerged to the legal enforcement of arbitration
agreements and arbitral awards.
[3] Commercial Arbitration at English Common Law and English Legislative Reform
Arbitration was widely used among English merchants throughout the Middle Ages. (229)
As in other European jurisdictions, arbitration was seen by commercial parties as
providing greater expertise: “merchants were keen to have their disputes resolved by
arbitrators because they tended to apply the laws and practices of the market, which
were familiar to the merchants, rather than to apply the common law which was generally
alien to them.” (230) In international settings, arbitration also avoided jurisdictional,
enforcement and related difficulties. (231)
Nonetheless, arbitration encountered mixed treatment in English courts. In the common
law world, Lord Coke’s 1609 decision in Vynior’s Case enjoys the greatest notoriety, if least
precedential support, for its treatment of agreements to arbitrate. The case involved a
suit by Vynior against Wilde, seeking payment on a bond, which had secured the parties’
promise to submit a dispute over a parish tax payment to arbitration. (232) Coke granted
judgment for Vynior on the bond, but added the following reasoning:
“[A]lthough … 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; as if I make a letter of attorney … so if I make my testament
and last will irrevocable. … And therefore … in both cases [i.e., both where an
arbitration agreement is supported by a bond and where the agreement
incorporates no bond] the authority of the arbitrator may be revoked; but then
in the one case he shall forfeit his bond and in the other he shall lose nothing.”
(233)
Scholarly analysis has challenged most aspects of Coke’s opinion – including its excursion
into unnecessary dicta, its inapposite analogies between an arbitration agreement and a
power of attorney or will and its ill-concealed distaste for the arbitral process. (234)
Nonetheless, as long as penalty bonds remained enforceable, Coke’s dictum was of
limited practical import: parties could, and, as the Romans and Medieval Germans had,
(235) routinely did, include penalty provisions in their agreements to arbitrate. (236) The
common law’s treatment of such provisions was changed, however, in 1687, when
Parliament enacted the Statute of Fines and Penalties, which disallowed recovery of
penalties generally, limiting bond-holders to the recovery of actual damages. (237)
Apparently to correct the effect of this statute on commercial arbitration, Parliament
soon thereafter enacted one of the world’s first extant arbitration statutes, adopting what
is sometimes called the 1698 Arbitration Act (238) or the “Locke Act,” after John Locke, its
principal author. (239) Reflecting an objective of promoting commerce that would recur in
connection with arbitration legislation in later eras, the Act’s purposes were:
“promoting trade, and rendering the awards of arbitrators more effectual in all
cases, for the final determination of controversies referred to them by
merchants and traders, or others, concerning matters of account or trade, or
other matters.” (240)
These objectives were realized by statutory provisions allowing parties to make their
arbitration agreement “a rule of any of His Majesty’s Courts of Record,” which would
permit enforcement by way of a judicial order that “the parties shall submit to, and
finally be concluded by the arbitration and umpirage.” (241) This legislation sought to
remedy, at least in part, the damage effected by the combination of Coke’s dicta in
Vynior’s Case and the Statute against Fines, allowing Blackstone to conclude:
“it is now become the practice to enter into mutual bonds, with condition to
stand to the award or arbitration of the arbitrators or umpire therein named.
And experience having shewn the great use of these peaceable and domestic
tribunals, especially in settling matters of account, and other mercantile
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transactions, which are difficult and almost impossible to be adjusted on a
trial at law; the legislature has now established the use of them.” (242)
It nonetheless remained the case that, at English common law, an arbitration agreement
was – on the authority of the dicta in Vynior’s Case, which later hardened into solid
precedent – “revocable” at will. Although damages were in theory recoverable when an
arbitration agreement was revoked, damages could not readily be proven or recovered
for breach of an arbitration agreement – rendering such agreements nearly
unenforceable in those cases where the 1698 Arbitration Act did not apply. (243)
Outside the statutory “safe haven” of the 1698 Arbitration Act, common law enforcement
of arbitration agreements was made even more problematic by the decision in Kill v.
Hollister. There, the court permitted an action on an insurance policy to proceed,
notwithstanding an arbitration clause, on the grounds that “the agreement of the parties
cannot oust this court.” (244) In subsequent centuries, that doctrine – which appeared to
raise a broad-based public policy objection to arbitration (and forum selection)
agreements – provided ample support for both English and U.S. proponents of judicial
hostility to arbitration. (245)
Nonetheless, subsequent legislative reforms in England gradually introduced greater
support for commercial arbitration agreements and arbitral tribunals’ powers. The 1833
Civil Procedure Act restated the rule that an arbitration agreement which was made a
rule of court could not be revoked, while providing arbitrators with a mechanism to
summon witnesses and the power to administer oaths. (246)
At the same time, in the middle of the 19th century, English courts revisited the analysis
in Kill v. Hollister, arriving at a very different view. The leading authority is Scott v. Avery,
where Lord Campbell said:
“Is there anything contrary to public policy in saying that the Company shall
not be harassed by actions, the costs of which might be ruinous, but that any
dispute that arises shall be referred to a domestic tribunal, which may
speedily and economically determine the dispute? 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.” (247)
He also disposed of the “ousting the court of jurisdiction” adage – proffered in Kill v.
Hollister – by remarking dismissively that “[i]t probably originated in the contests of the
different courts in ancient times for extent of jurisdiction, all of them being opposed to
anything that would altogether deprive every one of them of jurisdiction.” (248) In a
subsequent case, decided the same year, Lord Campbell declared:
“Somehow the Courts of law had in former times acquired a horror of
arbitration; and it was even doubted if a clause for a general reference of
prospective disputes was legal. I never could imagine for what reason parties
should not be permitted to bind themselves to settle their disputes in any
manner on which they agreed.” (249)
Lord Campbell also provided a famously cynical explanation for the alleged historic
hostility of English common law judges to arbitration:
“This doctrine had its origin in the interests of the judges. There was no
disguising the fact that, as formerly, the emoluments of the Judges depended
mainly, or almost entirely, on fees, and as they had no fixed salaries, there was
great competition to get as much as possible of litigation into Westminster
Hall, and there was a great scramble in Westminster Hall for the division of the
spoil. … And they had great jealousy of arbitration whereby Westminster Hall
was robbed of those cases.” (250)
While Lord Campbell’s derisory description of the English courts’ historical attitude
towards commercial arbitration appears to have been overstated, (251) the more
enduring point is his own resounding endorsement of the arbitral process in commercial
matters – a point of view that has been formulated with increasing vigor by English courts
and legislatures in succeeding decades. (252)
This was confirmed in the 1854 Common Law Procedure Act, one of the first modern efforts
at a comprehensive arbitration statute. (253) Among other things, the Act provided (albeit
circuitously) for the irrevocability of any arbitration agreement, by permitting it to be
made a rule of court, regardless whether the parties had so agreed. (254) At the same
time, however, the statute introduced new limits on the arbitral process by providing for
fairly extensive judicial review of the substance of arbitrators’ awards, through a “case
stated” procedure that permitted any party to obtain judicial resolution of points of law
arising in the arbitral proceedings. (255)
At the end of the 19th century, England enacted the 1889 Arbitration Act, which was in turn
widely adopted throughout the Commonwealth. (256) The Act confirmed the irrevocability
of agreements to arbitrate future disputes, (257) while granting English courts discretion
whether or not to stay litigations brought in breach of such agreements (effectively
19
permitting specific performance of arbitration agreements to be ordered, albeit on a
discretionary basis). (258) At the same time, the Act preserved previous features of
English arbitration law, including the “case stated” procedure for judicial review and the
powers of the English courts to appoint arbitrators and assist in taking evidence. (259) The
1889 Act remained in force for more than half a century, (260) only eventually being
replaced by England’s 1950 Arbitration Act. (261)
In terms of procedures, it appears that a variety of means of selecting arbitrators were
used at English common law. (262) In general, however, a consistent theme in English
arbitration throughout this period was the use of party-nominated arbitrators, with a
presiding arbitrator or umpire. (263) It is unclear how often umpires, rather than three-
arbitrator tribunals, were utilized, although the latter remained a common fixture in
English arbitration until well into the 20th century. (264) What appears to have been an
informal approach to rules of procedure in these early arbitrations was later abandoned,
at least in part and for a time, with local judicial procedures being imposed on English
arbitral tribunals (as discussed below). (265)
[4] Commercial Arbitration in France
A broadly similar set of historical developments occurred in France as in England. There,
as discussed above, the Edict of 1560 and merchant practice led to widespread use of
arbitration for resolving commercial disputes in the 16th, 17th and 18th centuries. (266)
The French Revolution changed this, like much else. Consistent with more general notions
of liberty and democratic choice, arbitration was initially afforded enhanced dignity
during the Revolution. Arbitration was described as producing “pure, simple and pacific
justice,” (267) which was legislatively declared in 1790 to be “the most reasonable means
for the termination of disputes arising between citizens.” (268)
Arbitration was also seen as a safeguard for liberty and equality, guaranteeing citizens a
measure of protection from governmental oppression (particularly in the form of courts
historically associated with the Monarchy). (269) In due course, arbitration was elevated
to constitutional status in the Constitution of 1793 (Year I) and the Constitution of 1795
(Year III). Among other things, Article 86 of the French Constitution of Year I declared that
“[t]he right of the citizens to have their disputes settled by arbitrators of their choice
shall not be violated in any way whatsoever.” (270)
As with many other things, the French Revolution soon turned on its progeny, with
arbitration eventually being considered (ironically) a threat to the rule of law and (more
realistically) the authority of the revolutionary state. (271) With this hostility in the air, the
1806 Napoleonic Code of Civil Procedure imposed numerous legislatively-mandated
procedural and technical restrictions on arbitration agreements and procedures. (272) In
particular, Article 2059 of the Civil Code and Article 1006 of the Code of Civil Procedure
provided that agreements to arbitrate future disputes were generally unenforceable.
(273) The French Commercial Code permitted agreements to arbitrate future disputes
only in limited circumstances, consisting of maritime insurance contracts and certain
corporate and partnership contexts. (274) More generally, as one commentator observes:
“[A]ll the provisions of the [Napoleonic Code] do appear to reflect, so to speak,
a hatred of arbitration agreements and provide evidence of a secret desire to
eliminate their existence.” (275)
This hostility towards the arbitral process was reflected in contemporaneous French legal
commentary, which held that “arbitration is a rough draft of the institutions and the
judicial guarantees” (276) and “[a] satire of judicial administration.” (277)
French courts did little during the 19th century to ameliorate this hostility. An 1843
decision of the Cour de Cassation, in Cie l’Alliance v. Prunier, held that agreements to
arbitrate future disputes were not binding unless they identified the particular dispute
and specified the individuals who were to serve as arbitrators. (278) The stated rationale,
which would recur in other historical and geographical settings, was that parties should
be protected against the consequences of advance and abstract waivers of access to
judicial protections and guarantees. (279) That was coupled with a parallel perception
that “[o]ne does not find with an arbitrator the same qualities that it is assured to find
with a magistrate: the probity, the impartiality, the skillfulness, [and] the sensitivity of
feelings necessary to render a decision.” (280) The judicial decisions that followed on the
heels of these observations significantly limited the practicality and usefulness of
arbitration agreements in 19th (and early 20th) century France.
As discussed below, it took some eight decades before this judicial hostility was finally
moderated by the French courts and legislature – first in international cases and later in
domestic ones. (281) Indeed, it was only with France’s ratification of the 1923 Geneva
Protocol, discussed below, that agreements to arbitrate future international commercial
disputes became fully enforceable in French courts. (282)
[5] Commercial Arbitration in United States
A broadly similar course was followed with regard to commercial arbitration in the
United States during the 18th and 19th centuries as in England and France. Consistent
20
with the United States’ vital role in the development of state-to-state arbitration in the
18th century, (283) arbitration was widely used to resolve commercial (and other)
disputes during Colonial times and the early years of the Republic. Despite this, over the
course of the 19th century, significant judicial (and legislative) hostility to arbitration
agreements developed, as some U.S. courts developed a peculiarly radical
interpretation of historic English common law authority. (284) Importantly, the resulting
judicial hostility to the arbitral process did not prevent the use of extrajudicial and
commercial mechanisms for enforcing arbitration agreements and awards, (285) but it
nonetheless undoubtedly hindered use of arbitration in the 19th century United States.
This hostility was only fully overcome in the early 20th century, when determined efforts
by the U.S. business community resulted in enactment of the Federal Arbitration Act
(“FAA”) and similar state arbitration legislation. (286)
Difficulties in resolving private disputes existed from the earliest days of European
settlement in North America – which was hardly surprising, in light of the lack of
governmental administrative structures and trained lawyers in the colonies, coupled with
the fluid, sometimes chaotic dynamism of colonial life. Equally unsurprising is the use of
various forms of arbitration to address these difficulties. Early Dutch settlers in New York,
frustrated with efforts to replicate European judicial institutions, turned to the election
of a council of “arbitrators,” which was in fact a form of judicial body whose jurisdiction
appears in at least some cases to have been mandatory. (287)
Nonetheless, from an early date, it was also common to refer disputes in New Amsterdam
to truly consensual arbitration:
“the arbitrators were left to the choice of the litigants, or appointed by the
court. … These references were frequent upon every court day, and … though
the amount involved was frequently considerable, or the matter in dispute
highly important, … appeals to the court from the decision of the arbitrators
were exceedingly rare.” (288)
Indeed, commentators conclude that, after the 1664 hand-over of administration in New
York to Great Britain, the use of arbitration in commercial matters was one of the
enduring features of continuing Dutch influence. (289)
Arbitration of commercial and other matters was widespread in the American colonies
during the 17th and 18th centuries. Drawing on English, as well as Dutch, practice, the
colonists found the flexibility, practicality and speed of arbitral processes well-suited to
their conditions: “From whatever source they derived the practice, the colonists engaged
in extensive arbitration throughout the period of English rule.” (290) Relying on court files
(relatively sparse and terse), newspaper accounts (more fulsome), merchants’ books and
chamber of commerce records, historians have sketched a picture of widespread, routine
use of arbitration in Colonial commercial matters, including in transactions between
businesses in different colonies, typically by agreement between the parties after
disputes had arisen. (291)
A primary motive then, as now, was avoidance of the delays and costs of litigation. One
letter, printed in a 1751 edition of the “New York Weekly Post-Boy,” recorded a litigant’s
plea to a counter-party:
“[L]et me tell you that after you have expended large Sums of Money, and
squander’d away a deal of Time & Attendance on your lawyers, and
Preparations for Hearings one Term after another, you will probably be of
another Mind, and be glad Seven Years hence to leave it to that Arbitration
which you now refuse.” (292)
Whatever the truth, Colonial businessmen of the day shared this view, turning with great
regularity and confidence to arbitration to settle their commercial disputes.
Following the American Revolution, the routine use of arbitration to resolve commercial
disputes did not diminish. On the contrary, as New York developed over the course of the
19th century from a small, closely-knit colonial town into a cosmopolitan center of
commerce, the use of arbitration grew apace with the expansion of commercial affairs.
(293) One commentator concludes:
“[I]t is clear that arbitration has been in constant use in New York from its
beginnings to 1920. It did not suddenly come into being at that time because
of the passage of a statute making agreements to arbitrate future disputes
enforceable. Rather, it has existed with and without the benefit of statutes,
and both separate from, and in connection with, court adjudication.” (294)
Or, in another commentator’s words, “[a]rbitration actually was in widespread use in the
United States almost three centuries before modern arbitration statutes were passed in
the 1920s; its history traces back to the colonial period.” (295) The driving motivation for
arbitration in commercial matters during this period, as in many earlier eras, continued
to be the perception by Colonial American businesses “that government courts of the
period did not apply commercial law in what the merchant community considered to be
a just and expeditious fashion.” (296)
21
As its role as the dominant U.S. commercial and financial center would suggest, New York
practice was generally representative of the country as a whole at the time. (297)
Research into individual jurisdictions, including New Jersey, Pennsylvania, Connecticut,
Massachusetts, Delaware, Virginia and Ohio, reveals a history similar to that in New York.
(298) As one early 19th century commentator noted, the commercial arbitration system
established by New York merchants offered a lead that “has been taken by the merchants
of [Philadelphia] and other cities.” (299)
Other areas of the United States had a history of arbitration independent of New York’s
lead. Influenced by Quaker anti-legalism, (300) William Penn’s laws (1682) in Pennsylvania
provided that each precinct should appoint three individuals to serve as “common
peacemakers.” (301) In Dedham, Massachusetts, disputes were mediated from 1636
onwards by “three understanding men,” or by “two judicious men,” chosen either by the
parties or the community itself – whose decisions were routinely complied with. (302)
Similarly, in Kent County, Delaware, a 1680 judicial decision appointed two arbitrators to
decide the parties’ dispute, who would in case of a “non agreement … chuse a third
person as an Umpire [to] make a final End thereof.” (303)
Some early legislative efforts were made in different American states to support the
arbitral process in commercial matters. The first American arbitration legislation
appears to have been adopted in Connecticut, where a 1753 statute, modeled on the
English Arbitration Act of 1698, provided for the enforcement of agreements to arbitrate
future disputes where they had been made a rule of court. (304) In 1791, the New York
legislature enacted a similar statute, also virtually identical to the 1698 English
Arbitration Act. (305) Similar mechanisms were adopted in various colonies, including the
use of conditioned bonds and promissory notes, designed to make both arbitration
agreements and arbitral awards more readily enforceable. (306)
A 1775 American insurance policy contained an arbitration clause, suggesting that
legislation of this character arose from the use of arbitration in routine commercial
arrangements:
“And it is agreed, that if any Dispute should arise relating to the Loss on this
Policy; it shall be referred to two indifferent Persons, one to be chosen by the
Assured, the other by the Assurer, who shall have full Power to adjust the same;
but in case they cannot agree, then such two persons shall choose a third; and
any two of them agreeing, shall be obligatory to both parties.” (307)
Nonetheless, it appears that the principal means by which arbitration agreements and
arbitral awards were enforced during the Colonial era was through non-legal or extralegal
commercial, professional and other mechanisms. (308) That is in part because of the
character of U.S. commercial affairs at the time, and in part because of the general
shortcomings of legal or judicial enforcement mechanisms. (309)
Despite the prevalence of commercial arbitration as a means of dispute resolution, and
the existence of a measure of early legislative and judicial support, some 19th century
American courts developed a puritanical version of English common law hostility to
agreements to arbitrate future disputes. Indeed, for some decades, a number of U.S.
courts held flatly that agreements to arbitrate future disputes were contrary to public
policy and revocable at will. (310)
Joseph Story, a preeminent U.S. legal authority in a wide range of fields, reflected 19th
century American judicial hostility to arbitration agreements. In 1845, he stated the
common law position in the United States, inherited from England and elaborated with
particular vigor:
“Now we all know that arbitrators, at the common law, possess no authority
whatsoever, even to administer an oath, or to compel the attendance of
witnesses. They cannot compel the production of documents and papers and
books of account, or insist upon a discovery of facts from the parties under
oath. They are not ordinarily well enough acquainted with the principles of law
or equity, to administer either effectually, in complicated cases; and hence it
has often been said, that the judgment of arbitrators is but rusticum judicium.
Ought then a court of equity to compel a resort to such a tribunal, by which,
however honest and intelligent, it can in no case be clear that the real legal or
equitable rights of the parties can be fully ascertained or perfectly protected?
… [An arbitration agreement is not specifically enforceable because it] is
essentially, in its very nature and character, an agreement which must rest in
the good faith and honor of the parties, and like an agreement to paint a
picture, to carve a statue, or to write a book … must be left to the conscience
of the parties, or to such remedy in damages for the breach thereof, as the law
has provided.” (311)
While this left open the possibility of recovering money damages for breach of an
arbitration agreement, (312) this was virtually never an effective (or even very plausible)
means of enforcement, since adequate proof of injury resulting from a refusal to arbitrate
was virtually impossible. (313)
Relying on literal interpretations of the English common law in Vynior’s Case and Kill v.
22
Hollister, (314) and evidencing a disdain for the arbitral process reminiscent of Coke’s
dicta in Vynior’s Case and early 19th century French authors, (315) Story’s influential
academic commentaries adopted similar reasoning:
“[W]here the stipulation, though not against the policy of the law, yet is an
effort to divest the ordinary jurisdiction of the common tribunals of justice,
such as an agreement, in case of any disputes, to refer the same to arbitrators,
Courts of Equity will not, any more than Courts of Law, interfere to enforce that
agreement, but they will leave the parties to their own good pleasure in
regard to such agreements. … The regular administration of justice might be
greatly impeded or interfered with by such stipulations if they were
specifically enforced. And at all events courts of justice are presumed to be
better capable of administering and enforcing the rights of the parties than
any mere private arbitrators, as well from their superior knowledge as from
their superior means of sifting the controversy to the very bottom.” (316)
Elsewhere, Story apparently went even further, seemingly declaring that agreements to
arbitrate future disputes violated public policy (which would presumably result in denial
of even a claim in damages for breach of an arbitration agreement). He rejected specific
performance of such agreements, “deeming it against public policy to exclude from the
appropriate judicial tribunals of the State any persons who, in the ordinary course of
things, have a right to sue there.” (317)
Although the precise basis for this judicial hostility was unclear, (318) some U.S. courts
applied an extreme interpretation of English common law precedents to withhold
meaningful judicial enforcement of arbitration agreements throughout much of the 19th
century. (319) In the words of then-Judge Cardozo: “It is true that some judges have
expressed the belief that parties ought to be free to contract about such matters as they
please. In this state, the law has long been settled to the contrary. … The jurisdiction of
our courts is established by law, and is not to be diminished, any more than it is to be
increased, by the convention of the parties.” (320) Or, as a leading treatise
contemporaneously concluded: “It is an elementary proposition of the common law
cases, and is almost universally accepted by the American courts, that future disputes
clauses and provisions for arbitration are revocable.” (321)
Moreover, U.S. courts and legislatures did not quickly follow the path of Scott v. Avery or
the 1889 English Arbitration Act, which had taken steps to facilitate the enforcement of
arbitration agreements in England. (322) As the Second Circuit once wrote, with only a
measure of exaggeration, “[one] of the dark chapters in legal history concerns the
[treatment of questions of the] validity, interpretation and enforceability of arbitration
agreements” by U.S. courts in the 19th century. (323)
Importantly, even while many U.S. courts refused to enforce commercial arbitration
agreements during the mid- and late-19th century, arbitration remained both popular
and effective in American commercial settings: “The use of commercial arbitration
developed during the colonial and post revolutionary periods in spite of this [judicial]
hostility.” (324) As already noted, it did so on the basis of non-legal commercial sanctions
and enforcement mechanisms, including through membership in commercial guilds,
societies, municipal communities, or religious groups, all of which proved sufficiently
resilient to sustain arbitration as an effective means of dispute resolution
notwithstanding judicial hostility. (325)
Moreover, even with regard to judicial enforcement of arbitration agreements and
awards, other movements were afoot in the United States by the mid- and late 19th
century. Courts in a number of American jurisdictions rejected the common law notion
that arbitration agreements were either unenforceable or revocable, and instead upheld
them, (326) while also enforcing arbitral awards with minimal judicial review. (327)
Rejecting Story’s doctrinal authority, a Virginia court declared in 1858, in terms that could
have been written 150 years later, that:
“The only ground on which [the arbitration agreement] can be said to be
unlawful is, that in referring all disputes and difficulties arising under the
contract to the engineer or inspector, it tends to oust the courts of law of their
jurisdiction; and is therefore against the policy of the law and void. … I am
certainly not disposed to extend the operation of a rule which appears to me
to have been founded on very narrow grounds, directly contrary to the spirit of
later times, which leaves parties at full liberty to refer their disputes at
pleasure to public or private tribunals.” (328)
At the same time, as noted above, legislation or judicial decisions in a number of U.S.
states permitted the use of rules of court, conditioned bonds, or promissory notes to
provide enforcement mechanisms for arbitration agreements and arbitral awards. (329)
Shortly after the U.S. Civil War, the U.S. Congress enacted legislation encouraging efforts
to use arbitration to resolve international commercial disputes – although it does not
appear that the statute had significant practical effects. (330) What did continue to have
practical effects, however, were commercial and professional associations, which
ensured that arbitration remained a central part of commercial life, even during the
23
“dark chapters in legal history,” when many U.S. courts were most hostile to arbitration
and agreements to arbitrate. (331)
U.S. judicial and legislative hostility to commercial arbitration substantially eroded in
the late 19th and early 20th century. American judicial opinions began increasingly to
question the wisdom of Story’s views, (332) while commercial pressure for legislative
reform built. (333) This pressure eventually had its intended effect, and in 1920 New York
enacted legislation providing for the validity and specific enforcement of arbitration
agreements. That was followed in 1925 by similar provisions in the FAA (which are
discussed in detail below), which paralleled negotiation and adoption of the 1923 Geneva
Protocol (also discussed below). (334) The New York arbitration law and FAA enacted a sea
change from the American common law by instituting a default rule that contracts to
arbitrate were valid and would be specifically enforced by the courts. (335)
[6] Commercial Arbitration in Germany
Historically, commercial arbitration was commonly used by merchants in what is today
Germany, perhaps particularly because of the lack of a centralized government (until
comparatively recently) and the demands of international commerce. (336) Thus, a
German commentator at the beginning of the 20th century could observe, with regard to
historic German experiences: “arbitral tribunals have at all times been regarded as an
urgent necessity by the community of merchants and legislation has always granted them
a place alongside the ordinary courts.” (337)
The role of arbitration in commercial matters was recognized, and given effect, in the
civil codes of Baden (in 1864), Prussia (in 1864) and Bavaria (in 1869). All of these
statutory codifications confirmed the role of arbitration in the resolution of commercial
disputes, while granting arbitrators varying degrees of freedom from local procedural
and substantive requirements and judicial control. (338) These developments led to
statutory provisions regulating arbitration in the first German Code of Civil Procedure of
1877 (which would remain the fundamental basis for Germany’s legal regime for
arbitration until 1998).
The 1877 Code of Civil Procedure incorporated provisions that freed arbitrators from the
obligation to apply strict legal rules (and, concurrently, from judicial review of the
substance of arbitral awards). The drafters of the Code explained:
“By submitting themselves to arbitration the parties want to escape from the
difficulties and complexities arising from the application of the law. They
intend that the law as between them should be what the arbitrators, according
to their conscientious conviction – ex aequeo et bono – determine. They will
therefore as a rule consider the arbitrators to be friendly mediators –
amiables compositeurs, as the Belgian draft says – and it is obvious that they
do so consider them whenever they appoint as arbitrators persons who are not
learned in the law. As a rule therefore the goal of arbitration is attained only
when the arbitrators are not bound to follow the ordinary rules of law when
giving their awards.” (339)
At the same time, at the end of the 19th and beginning of the 20th century, German courts
gave active support to the arbitral process, including by pioneering the development of
what would later be termed the separability doctrine, in order to facilitate the
enforcement of arbitration agreements. (340)
By the turn of the 20th century, permanent arbitral tribunals, organized under the
auspices of trade organizations, became a common feature of German business life. In
1909, 1030 cases were pending before such tribunals in Berlin alone. (341)
Contemporaneous German authors generally praised the arbitral process, highlighting its
efficiency, trustworthiness and the commercial sense of arbitrators with industry
experience. (342)
Like some common law courts, however, the German courts came in the next decades to
“guard [] their rights with extreme jealousy, and were only too inclined to set aside
awards [on the basis of] even a slight failure to comply with the provisions of the Code.”
(343) The provisions of the German Code of Civil Procedure left considerable leeway to
local courts to interfere with the arbitral process, curtailing the practical value of
arbitration. (344)
The mistrust for arbitration in German courts (and commentary) developed with
particular vigor between the two World Wars, (345) becoming especially pronounced after
the rise of the National Socialists in 1933. (346) According to the “Guidelines of the Reich
Regarding Arbitral Tribunals,” published in December 1933, arbitration threatened
governmental authority and “the State itself,” demanding a rejection of arbitration
agreements in state contracts:
“Directives for the Reichs-authorities on arbitration clauses have been
enacted, which lay down that all disputes arising out of contracts between the
Reich and a private party must, in principle, be brought before the ordinary
courts. It is emphasized in the directives that due to practical experience the
alleged advantages of arbitration, namely rapidness of settlement and lower
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cost-expenditure, are rather problematic and are altogether not capable to
outweigh the disadvantages of greater legal uncertainty mostly present in
arbitration in comparison to the ordinary jurisdiction. From the political
perspective it must further be noticed, that a greater extension of arbitration
would constitute a loss of confidence in the national jurisdiction and
ultimately in the State itself.” (347)
One local adherent approved the declaration, adding “that the national-socialist state
rejects – contrary to liberalists’ views – arbitral tribunals” altogether. (348)
Consistent with this rationale, the Nazi regime systematically curtailed the use of
arbitration in all walks of German life, both domestic and international. (349) As one
contemporaneous commentator explained, “[t]o the totalitarian state, with its doctrine of
the all-enslaving power of the state (or more correctly, of the armed groups and their
leaders) arbitration means an attempt of private individuals to free an important part of
their activities from the dominating yoke of the governing group.” (350)
[7] Commercial Arbitration in Other European Jurisdictions in 18th and 19th Centuries
The history of commercial arbitration in other nations did not always involve the same
degree of judicial or legislative hostility as occasionally demonstrated in 18th and 19th
century England, France and the United States.
As already described, the Napoleonic Code (and Cour de Cassation, in an 1843 decision)
had adopted a similarly anti-arbitration course in France, which persisted until the 1920s.
(351) Despite that, Belgian courts refused, unusually, to follow the approach of the French
Cour de Cassation on this subject and instead gave effect to agreements to arbitrate
future disputes. (352) The Netherlands took a similar approach, enacting an Arbitration
Act as part of its Code of Civil Procedure in 1838 to provide a comprehensive legal
framework for commercial arbitration. (353) The Dutch and Belgian approach reflected
the Low Countries’ historical reliance on arbitration, (354) which can be attributed in
significant part to their mercantile cultures and the influence of Roman law. (355) Swiss
cantonal legislation and constitutions were also generally supportive of arbitration
during this era. (356)
Arbitration also appears to have been widely used in Russia prior to the 20th century.
(357) The 1649 Council Code provided that arbitral awards had the same effect as judicial
judgments, (358) while legislation in 1831 provided more normal mechanisms for the
arbitral process. (359) In the early 20th century, however, judicial hostility to arbitration
developed. (360) As in France, early Revolutionary decrees favored arbitration, (361) but
subsequent Soviet regulations, somewhat ironically, reflected the same hostility to
arbitration that had emerged in other European jurisdictions. (362) At the same time,
Soviet authorities used international arbitration extensively in dealings with foreign
concession-holders (363) and foreign trade-partners (364) in the early 20th century.
[8] Arbitration in Middle East, Asia, Africa and Americas
While there is not the same corpus of evidence of arbitration outside Europe and the
United States, it appears from available historical materials that arbitration of
commercial disputes has also been common in the Middle East, Asia, Africa and the
Americas. Arbitration in its contemporary form was introduced into many parts of the
world through British, Spanish, Dutch or other colonialism, but often co-existed with or
supplanted earlier local traditions. (365)
[a] Middle East
In Arab and Islamic areas, in particular, there was a long and rich history of commercial
arbitration. (366) The use of arbitration in the Middle East dates to pre-Islamic times
when there was often no centralized, established system of justice, and arbitration was
used to settle disputes between both individuals and tribes. (367) Arbitration was
voluntary and the arbitrator’s decision was not legally binding: (368) In one
commentator’s words, “[d]isputes in pre-Islamic Arabia were resolved under a process of
arbitration (of sorts). … This was voluntary arbitration, an essentially private arrangement
that depended on the goodwill of the parties.” (369)
In terms of procedures, the arbitrator in pre-Islamic arbitrations in many parts of the
Arab Middle East was chosen by the parties and was not obliged to apply rules of law or
follow judicial procedures, but, at a minimum, typically conducted a hearing attended by
all parties. (370) Enforcement of awards generally depended on the moral authority of the
arbitrator, although in some instances parties were required to submit a bond to
guarantee enforcement of the awards (not dissimilar to Roman, canonical and English
penalty mechanisms). (371)
Although political territories and religious groups in the region differed widely in their
practices, (372) arbitration continued to be a popular form of dispute resolution after the
advent of Islam. (373) The Prophet Muhammad appointed arbitrators to resolve his own
disputes and counseled tribes to use arbitrators for peaceful settlement of their
differences. (374)
The Prophet also served as arbitrator, with the most famous of these examples involving
25
a dispute between two clans over placement of the sacred black stone in the Kaaba in
Mecca. The Prophet fulfilled his mandate by placing a cloak under the stone and asking a
representative from each clan to lift one side of the cloak, with the resulting joint effort
marking the resting place of the Black Stone. In later arbitrations, the Prophet was chosen
to settle disputes between other clans, including the Aws and Khazraj tribes of Medina,
and a dispute with the Bani Qurayzah, a Jewish tribe, in which both parties agreed to
submit their dispute to arbitration. (375)
The Koran also condones arbitration with respect to family matters, in Verse 35 of the
Surah of the Women: “If ye fear a breach Between them twain, Appoint (two) arbiters, One
from his family, And the other from hers; If they wish for peace, Allah will cause Their
reconciliation: For Allah has full knowledge, And is acquainted With all things.” (376) The
verse has been interpreted to extend approval to party-nominated arbitrators (377) and
to arbitration in matters of politics and the state. (378)
The most famous arbitration in Islamic history took place between Ali (the Fourth Caliph)
and Mu’awiyyah (Governor of Syria). The arbitration arose from a written agreement
including provisions for nomination of arbitrators, terms of reference, applicable law and
a time limit for making the award. (379)
During the 19th century, the Ottoman Empire adopted legislation (modeled on then
recently-adopted European arbitration legislation) regulating the arbitral process. In
particular, the Ottoman Civil Code of 1876 contained 11 articles (Articles 1841-1851)
dealing with arbitration, generally in a relatively restrictive manner. (380) Among other
things, paralleling the unavailability in some states of specific performance of arbitration
agreements, the Ottoman Civil Code permitted either party to “dismiss the arbitrator
before he has given his decision,” unless the arbitrator’s appointment had been judicially
confirmed. (381) Moreover, Article 1849 provided for broad powers of judicial review,
mandating that an award shall be confirmed “if given in accordance with law. Otherwise
it shall not be so confirmed.” (382)
[b] Jewish Communities
There is a long tradition of arbitration in Jewish communities, both in the Middle East and
elsewhere. A system of Jewish courts (battei dinin), including the Sanhedrin, were
developed at an early stage for resolution of civil, criminal and other disputes. (383)
According to many authorities, arbitration only flourished in Jewish communities during
the Roman period, as an alternative to Roman courts, after Roman law restricted Jewish
judicial autonomy. (384) In the words of one writer, arbitration in Jewish communities in
Antiquity “was the outgrowth of a period of persecution and oppression that followed the
destruction of the Second Temple.” (385) At the same time that Jewish communities
relied on arbitration as a means of preserving local autonomy, agreements by Jews to
submit disputes to arbitration, and decisions by Jewish arbitral tribunals, were
recognized and given effect by Roman authorities. (386) In contrast, Jewish communities
in Babylon apparently enjoyed substantial judicial autonomy from Roman authorities
and did not make use of arbitration. (387)
A characteristic feature of arbitration in Jewish communities in the Classical era was the
use of party-appointed arbitrators (on three-person tribunals); indeed, the Hebrew term
for arbitration (Zabla) is derived from the phrase “zeh borer lo ehad,” meaning “he
chooses one.” (388) The Talmud subsequently addressed the issue, providing: “Civil cases
by three; one party may select one and so the other, and both of them select one more;
so is the decree of R. Meir. The Sages, however, maintain that the two judges may select
the third one.” (389) Classical Jewish arbitrations were also characterized by the final
resolution of disputes (with arbitration distinguished from mediation or conciliation,
which did not produce binding decisions). (390)
Arbitration was also widely-used in Jewish communities outside the Middle East as a
consequence of the Jewish Diaspora. (391) Jewish communities adapted differently in
different locales throughout Europe during the Middle Ages. (392) In some jurisdictions,
such as Germany, Jewish communities generally enjoyed substantial autonomy, (393)
establishing relatively formalized dispute resolution mechanisms with tribunals
composed of rabbis, applying Jewish law and sometimes denominated as Beth Dins
(Jewish courts or, literally, “houses of judgment”). (394) In other jurisdictions, such as Italy,
Jewish communities were not afforded comparable freedom and informal arbitral
mechanisms were adopted (with rabbis again playing a significant role in dispute
resolution). (395)
The tradition of three-person tribunals continued in Jewish communities during the
Diaspora. In general, where the arbitrators (or parties) were unable to agree upon the
identity of the third arbitrator, the appointment would be made by the elders of the
locality; it was apparently common practice for the rabbi of the city or town to be
appointed as the third arbitrator. (396) The parties were free to agree upon fewer or more
than three arbitrators, which apparently occurred not infrequently in practice. (397)
Arbitrators were apparently required to be (relatively) independent of the parties. (398)
Parties reportedly enjoyed broad autonomy over the arbitral procedures. (399) Formal
requirements applicable in Jewish courts were inapplicable in arbitration and in some
localities special rules of arbitral procedure were adopted. (400) In Krakow, for example,
26
arbitrators were required to begin the arbitral hearing within 24 hours of their
appointment and render a decision within three days of the hearing. (401)
There were apparently debates, in different Jewish localities, about the degree of
formality that was required for a binding arbitration agreement. (402) There were also
apparently disputes about the subjects that could be submitted to arbitration, with some
authorities indicating that both civil and criminal matters could be arbitrated and others
limiting arbitrable subjects to civil disputes. (403) Arbitrators were reportedly not
required to render reasoned awards, although they sometimes did (as in the cases of a
17th century award in Vienna, holding that leaders of the Jewish community had not
committed financial malfeasance). (404)
The use of arbitration for the settlement of disputes in Jewish communities expanded
during the 20th century in many jurisdictions. Arbitration was extensively used by Jewish
parties in Palestine during the Mandate, in large part to avoid local courts. (405) The Beth
Din of America was founded in 1960, and provides an umbrella organization for the
resolution of disputes by rabbinical courts (Beth Din) in a number of U.S. cities. (406)
Beth Dins exist in other jurisdictions as well, including England, South Africa and
Switzerland (site of the European Beth Din which serves individuals and communities in a
number of European states, including Austria, Bulgaria, Denmark, Finland, Germany,
Hungary, Norway, Poland, Romania, Slovakia, Sweden and Turkey). (407)
[c] East and Southeast Asia
In East and South Asia, commentators conclude that arbitration has existed since
antiquity. The recorded history of arbitration in many parts of Asia largely follows
developments of the colonial powers. (408) That said, fragments of historical evidence
provide insights into a deep-rooted reliance on arbitration in at least some areas and
time periods.
China has a long tradition of settling disputes through conciliation and arbitration, said
to be grounded in the Confucian ideal of harmony. (409) For example, reports from the
Qing dynasty describe the resolution of a property dispute by six relatives and friends
who examined the dispute and crafted a compromise which was approved by a local
court. (410)
Most traditional forms of dispute resolution, particularly in China and Japan, more closely
resemble conciliation or mediation, rather than arbitration. (411) More recently, the
lineage system in parts of China recognized the authority of elder members of village
society to mediate disputes and settle local conflicts. (412) Similar private adjudicatory
processes have existed for centuries in Indonesia, the Philippines and other parts of
South Asia. (413) Some of these dispute resolution systems were later codified in the
early 19th century, notably in the Code of the Three Great Seals in Thailand, which
prescribed an early form of binding arbitration. (414)
[d] India
Hindu mythology provides early descriptions of arbitration. In some accounts of the
Ramayana, Rama and his family attempt to settle their disputes through arbitration by
the deities. (415) In one story, Shiva’s twin sons capture their father’s horse, leading to a
battle between the sons and father (who is unaware of the identity of his sons). A range of
Hindu deities (including Brahman, Siva, Indra and their wives) attempt to resolve the
dispute through mediation, including by attempting to persuade the twins to accept a
divine arbitrator; in a development reminiscent of some contemporary arbitral settings,
none of these efforts succeed, because the parties reject all proposals for arbitrators for
various asserted reasons of partiality. (416)
In ancient India, local village councils (jirgas and panchayats) conducted informal
arbitral proceedings and their decisions were considered binding. (417) These forms of
dispute resolution involved the nomination of local luminaries, often village elders or
others of high social stature, to settle disputes within communities. This traditional
council of adjudicators eventually evolved into a form of self-rule in India, the panchayat
raj, which incorporated arbitral practices as part of a post–colonial ideal of local
governance and grassroots democracy. (418)
There is some evidence that early Indian practice preferred panchayat dispute resolution
to litigation before judges who had been appointed by political authorities; the informal
nature of the proceedings and the ability to avoid the technical requirements of India’s
judicial system were seen as significant advantages. (419) Even today, many villages in
Southern Asia view state courts with suspicion and prefer to settle disputes before the
panchayat, which takes forms varying from informal mediation by family/village elders to
enforceable decisions ofpanchayat committees. Under British colonial administration,
arbitration was accorded a limited, but gradually expanding, place in the resolution of
Indian commercial disputes. (420)
[e] Africa
Arbitration in Africa presents a similar situation. The recorded history of arbitration is not
well-elaborated until the colonial period, when Europeans imported their use of
commercial arbitration into the African setting. (421) Nonetheless, local commentators
27
report that “[a]rbitration and ADR … have always existed in Africa, harking back to ancient
custom that, unlike in the northern hemisphere, is still practised widely.” (422) In
traditional African communities, “when a dispute arose among individuals, even in non-
commercial transactions, the complainant invariably referred the matter to a third party
for redress.” (423) The most serious disputes were resolved by a council of elders that
would take testimony and sometimes hear the arguments of agents acting as advocates
on behalf of the disputants. (424)
[f] Latin America
There is a long history of arbitration as a means of commercial dispute resolution in Latin
America. Spanish and Portuguese rule was particularly influential. Spanish colonial
institutions in Latin America also used commercial arbitration, with the commercial
consulados (merchant guilds that regulated trade between Spanish colonies and Spain)
organizing arbitral tribunals that resolved international commercial disputes, generally
applying lex mercatoria. (425) The oldest of such institutions were established in
Veracruz, Mexico, and Lima, Peru, in 1592 and 1613, respectively. Colonial arbitration
regulations and legislation remained in force even after independence, until the new
American states developed their own civil procedure codes. (426) This readiness to
accept arbitration changed somewhat with the new legislation, which did “not always
provid[e] very efficient regulation for the enforcement of arbitration agreements and
awards.” (427)
While “Mexican legal culture has a long history of promoting conflict resolution through
mediation and negotiation rather than through litigation,” Mexico’s 1890 Commercial
Code disfavored arbitration, instead expressing a preference for conventional litigation
procedures. (428) In both Paraguay and Chile, rules on arbitration were enacted as part of
domestic civil procedure codes in 1883 and 1902, respectively, and remained essentially
unchanged during the next century. (429)
As for independent Brazil, while it initially exhibited enthusiasm for commercial
arbitration – enacting legislation in 1850 mandating arbitration for commercial cases –
this was repealed only seventeen years later. (430) Thereafter, Brazil soon became known
as “one of the most notorious examples of Latin American adversity against arbitration.”
(431) Indeed, until recently, Brazilian courts would not enforce predispute agreements to
arbitrate (432) and Brazilian courts did not recognize a foreign arbitral award until 1940,
citing the exclusive jurisdiction of local courts under Brazilian civil procedural rules. (433)
Notwithstanding inefficient procedures – and, in the case of Brazil, official hostility to
commercial arbitration – pressure from domestic business interests nonetheless helped
foster “a surge in and growing popularity of arbitration for the resolution of commercial
disputes, particularly after the end of the First World War.” (434) In 1916, for example, the
Buenos Aires Stock Exchange entered into a bilateral agreement with the United States
Chamber of Commerce to establish a system of international commercial arbitration.
(435) For the most part, however, these efforts did not bear fruit until the 1990s, when
Brazil began increasingly to accept and support international commercial arbitration
and other Latin American states. (436)
* * * * *
Despite generally supportive historic traditions, international commercial arbitration
eventually came to be regarded with mistrust in parts of Asia, Africa, the Middle East and
Latin America during much of the 20th century. Reflecting deep-seated political
attitudes, countries in these regions frequently limited the efficacy of agreements to
arbitrate future disputes and refused to recognize the finality of arbitral awards. (437) As
discussed below, it was only in the 1980s and 1990s that many countries in these regions
ratified the New York Convention and adopted even arguably workable international
arbitration legislation. (438)
[9] Arbitral Procedures in Commercial Arbitration
The procedures that were historically adopted for commercial arbitration bore important
similarities to those in state-to-state arbitral proceedings. (439) Procedural flexibility,
informality and efficiency were key attributes of the arbitral process, and central to the
business community’s preference for arbitration. (440) Equally, contemporary users and
observers regarded commercial arbitration procedures as more likely to produce
sensible, informed results and to facilitate settlement than litigation. (441)
Although evidence is less clear with regard to early periods, it appears that the
institution of party-nominated co-arbitrators was an enduring feature of commercial
arbitration (just as in inter-state arbitrations (442) ). As noted above, this procedure was
prevalent in Rome, England, Continental Europe, the United States, Russia, the Middle
East and elsewhere. (443) A striking example, drawn from George Washington’s last
testament, records the use of party-nominated arbitrators in U.S. colonial times:
“My Will and direction expressly is, that all disputes (if unhappily any should
arise) shall be decided by three impartial and intelligent men, known for their
probity and good understanding; two to be chosen by the disputants, each
having the choice of one, and the third by those two. Which three men thus
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chosen, shall, unfettered by Law, or legal constructions, declare their Sense of
the Testator[‘]s intention; and such decision is, to all intents and purposes, to
be as binding on the Parties as if it had been given in the Supreme Court of the
United States.” (444)
In a very different context, traditional Beth Din arbitration in Jewish communities
provided for party-appointed arbitrators (which were regarded as a distinguishing
characteristic of the arbitral process). (445) And, from yet another quarter, an 1875
Institut de Droit International Resolution for International Arbitral Procedure provided
for a default appointment mechanism whereby each party selected one arbitrator and
the two co-arbitrators then selected a chairman. (446)
The use of party-nominated co-arbitrators continued into and throughout the 20th
century. The predominant means of selecting arbitral tribunals in 19th century New York
practice appears, from standard forms used in different types of contracts, to have been
three-person tribunals, with each party nominating an arbitrator and the co-arbitrators
jointly choosing a chairman or umpire. (447) The same procedures prevailed in other
Colonial settings in the United States. (448) In some instances, the two co-arbitrators
were joined by an “umpire,” and in others by an arbitrator, (449) but the basic structure of
two party-nominated arbitrators, with a third member of the tribunal presiding, was an
enduring, universal feature of commercial arbitration in widely different historical
settings.
Arbitral procedures varied across geographic location, time period and commercial
settings. In some instances, arbitral procedures were highly informal, differing materially
from national court proceedings at the time. (450) In other settings, arbitral procedures
were formalized, including testimony under oath and representation of parties by
counsel. (451) In some cases, it appears that arbitrations were public events, attracting
considerable local attention and audiences. (452)
[C] Development of Contemporary Legal Framework for International Arbitration

During Early 20th Century
The mistrust of the arbitral process which had arisen in some jurisdictions during the 19th
century (453) was eroded, and then firmly repudiated, during the 20th century. This was
accomplished by means of a panoply of related developments, including the adoption of
international arbitration conventions, national arbitration legislation and institutional
arbitration rules, and the supportive roles of national courts in many jurisdictions. The
driving force behind these various developments was the international business
community, also the principal user of the arbitral process, which found ready partners in
national legislatures and judiciaries eager to promote international trade, investment
and peace by providing workable, effective international dispute resolution mechanisms.
It was the combination and active collaboration of these two communities – public and
private – that produced the contemporary legal framework for international commercial
arbitration.
The first international commercial arbitration treaty in the modern era was the
Montevideo Convention, signed in 1889 by various Latin American states. (454) Like other
early efforts in the field, the Montevideo Convention attracted few signatories and had
little practical impact. Nevertheless, it initiated a tradition of multilateral conventions
that progressively elaborated and improved the international legal framework for the
arbitral process.
Almost immediately after adoption of the Montevideo Convention, the 1899 Hague
Convention for the Pacific Settlement of Disputes and the 1907 Hague Convention for the
Pacific Settlement of International Disputes provided (as discussed above, with limited
success) for the settlement of inter-state disputes by arbitration. (455) It remained,
however, for later developments, in the 1920s, to lay the foundations of the contemporary
legal framework for international commercial arbitration.
[1] Geneva Protocol of 1923
During the first decades of the 20th century, businesses in developed states made
increasingly urgent calls for legislation to facilitate the use of arbitration in resolving
domestic and, particularly, international commercial disputes. (456) These appeals
emphasized the importance of reliable, effective and fair mechanisms for resolving
international disputes to the expansion of international trade and investment. (457) In
the international context, the newly-founded International Chamber of Commerce (“ICC”)
(established in 1919) played a central role in efforts by the business community to
strengthen the legal framework for international arbitration. (458)
In 1922, initially under the auspices of the ICC, major trading nations negotiated the
Geneva Protocol on Arbitration Clauses in Commercial Matters (“Geneva Protocol”). (459)
The Protocol was ultimately ratified by the United Kingdom, Germany, France, Japan,
India, Brazil and about two dozen other nations. (460) Although the United States and the
United Kingdom did not ratify the Protocol, the nations that did so represented a very
significant portion of the international trading community at the time.
The Geneva Protocol played a critical – if often underappreciated – role in the
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development of the legal framework for international commercial arbitration. (461)
Among other things, the Protocol laid the basis for the modern international arbitral
process, requiring Contracting States to recognize, if only imperfectly, the enforceability
of specified international arbitration agreements and arbitral awards; (462) in particular,
the Protocol was limited to arbitration agreements “between parties subject respectively
to the jurisdiction of different contracting states.” (463) The Protocol also permitted
Contracting States to limit its scope to “contracts which are considered as commercial
under its national law.” (464)
Among other things, the Geneva Protocol declared:
“Each of the Contracting States recognizes 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 all or any differences that
may arise in connection with such contract relating to commercial matters or
to any other matter capable of settlement by arbitration, whether or not the
arbitration is to take place in a country to whose jurisdiction one of the parties
is subject.” (465)
This provision was complemented by a further declaration, in Article 4, that:
“The tribunals of the Contracting Parties, on being seized of a dispute
regarding a contract made between persons to whom Article I applies and
including an arbitration agreement whether referring to present or future
differences which is valid by virtue of the said article and capable of being
carried into effect, shall refer the parties on the application of either of them
to the decision of the arbitrators.” (466)
Within the space of these two sentences, the Geneva Protocol planted the seeds for a
number of principles of profound future importance to the international arbitral process
– including the presumptive validity of agreements to arbitrate future (as well as
existing) disputes, (467) the obligation of national courts to enforce arbitration
agreements by referring parties to arbitration, (468) the concept of arbitrating
“commercial” disputes and disputes “capable of settlement by arbitration,” (469) and the
obligation to recognize international arbitration agreements on an equal footing with
domestic arbitration agreements. (470) As discussed elsewhere, all of these basic themes
reappeared repeatedly in international conventions and national legislation over the
next 90 years and remain the foundation of the contemporary legal framework for
international commercial arbitration. (471) Importantly, the Protocol also established
standards which made international arbitration agreements more enforceable than
domestic arbitration agreements had historically been in many nations, (472) reflecting a
deliberate policy of promoting the use of arbitration to resolve international commercial
disputes. (473)
Additionally, Article 3 of the Geneva Protocol attempted to provide for the recognition of
international arbitral awards. It declared:
“Each Contracting State undertakes to ensure the execution by its authorities
and in accordance with the provisions of its national laws of arbitral awards
made in its own territory.” (474)
This provision was extremely limited, providing only for Contracting States to enforce
awards made on their own territory (i.e., not “foreign” awards, made in other countries).
Even then, enforcement was required only in accordance with local law (i.e., the
“provisions of its national law”) – effectively making the commitment dependent on each
individual state’s arbitration legislation. In contrast to the simple, but decisive,
provisions of the Geneva Protocol regarding arbitration agreements, Article 3’s treatment
of arbitral awards was at best tentative and incomplete. (475)
Finally, the Protocol also recognized, again imperfectly, the leading role of party
autonomy in establishing the arbitral procedures. (476) In particular, it provided for the
application of both the procedures specified in the parties’ agreement to arbitrate and
the law of the arbitral seat, without indicating any priority between the two sources. (477)
[2] Geneva Convention of 1927
The Geneva Protocol was augmented by the Geneva Convention for the Execution of
Foreign Arbitral Awards of 1927. (478) Recognizing the Protocol’s deficiencies in dealing
with this issue, the Geneva Convention expanded the enforceability of awards rendered
pursuant to arbitration agreements subject to the Geneva Protocol. It did so by requiring
the recognition and enforcement of such “foreign” awards within any Contracting State
(rather than only within the state where an award was made, as was the case under the
Protocol), and forbidding substantive judicial review of the merits of such awards in
recognition proceedings. (479)
Regrettably, the Convention placed the burden of proof in recognition proceedings on the
award-creditor, requiring it to demonstrate both the existence of a valid arbitration
agreement, (480) concerning an arbitrable subject matter, (481) and that the arbitral
30
proceedings had been conducted in accordance with the parties’ agreement. (482) The
Convention also required the award-creditor to show that the award had become “final”
in the place of arbitration (483) and was not contrary to the public policy of the
recognizing state. (484) This approach to the awards’ finality led to the so-called “double
exequatur” requirement – whereby an award could effectively only be recognized abroad
under the Geneva Convention if it had been confirmed by the courts of the place of the
arbitration. (485) This proved a major source of difficulty and uncertainty in establishing
the finality of international arbitral awards under the Geneva Convention. (486)
Despite their shortcomings, the Geneva Protocol and Geneva Convention were major
steps towards today’s legal framework for international commercial arbitration. Most
fundamentally, both instruments established, if only imperfectly, the basic principles of
the presumptive validity of international arbitration agreements (487) and arbitral
awards, (488) and the enforceability of arbitration agreements by specific performance,
(489) as well as recognition of the parties’ autonomy to select the substantive law
governing their relations (490) and to determine the arbitral procedures. (491)
Further, the Geneva Protocol and Convention both inspired and paralleled national
legislation and business initiatives to augment the legal regime governing international
commercial arbitration agreements. As already discussed, in 1920, New York enacted
arbitration legislation, largely paralleling the Geneva Protocol, to ensure the validity and
enforceability of commercial arbitration agreements. (492) Likewise, with an eye towards
ratification of the Geneva Protocol, France adopted legislation in 1925 that made
arbitration agreements valid in commercial transactions, (493) while similar legislation
was also enacted in England. (494)
Also in 1925, the United States enacted the Federal Arbitration Act – providing the first
federal legislation in the United States governing domestic (and international)
arbitration agreements. (495) The centerpiece of the FAA was §2, which provided that
arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any contract,” (496) while §§9
and 10 of the Act provided for the presumptive validity and enforceability of arbitral
awards. (497) Much like the 1923 Geneva Protocol, the stated purpose of the FAA was to
reverse decades of judicial mistrust in the United States of arbitration and render
arbitration agreements enforceable on the same terms as other contracts. (498) From the
outset, U.S. judicial decisions embraced the Act’s avowedly pro-arbitration objectives.
(499)
After a hiatus provoked by the Second World War, development of “pro-arbitration” legal
regimes for international commercial arbitration continued. As discussed in greater
detail below, the signing of the New York Convention (in 1958), (500) the promulgation of
the UNCITRAL Arbitration Rules (in 1976, with revisions in 2010), (501) the adoption of the
UNCITRAL Model Law on International Commercial Arbitration (in 1985, with revisions in
2006) (502) and the enactment of “modern” arbitration statutes in many developed
jurisdictions (between 1980 and 2019), (503) marked decisive advances in international
acceptance of the arbitral process. The international community’s growing embrace of
arbitration was further demonstrated by the progressive refinement of national
arbitration statutes in leading jurisdictions and of institutional arbitration rules by
leading arbitral institutions (504) and by the widespread adoption of multilateral and
bilateral investment treaties in all major regions of the world. (505) All of these various
steps evidence an abiding and decisive commitment to international arbitration as a
means of resolving transnational commercial disputes – and thereby promoting
international trade – and to continually improving the arbitral process in response to
changing conditions and emerging (or reemerging) critiques.
* * * * *
In sum, arbitration has been an enduring feature of dispute resolution – both state-to-
state and commercial – since the beginning of recorded history. In societies of profoundly
different characters, ranging from Sumerian and Egyptian, to ancient Greek and Roman,
to medieval English, French, Swiss, German, Italian and Russian, to Colonial American,
Asian and Latin American, to Islamic and Arab, to Jewish, to more modern common law
and civil law jurisdictions, arbitration has been used equally by both states and state-
like entities, and by businessmen and women, to resolve their disputes, and particularly,
their international disputes.
So far as can be ascertained, parties have turned to international arbitration for
remarkably similar reasons, using broadly similar procedures, throughout recorded
history: they have sought to avoid the expense, delays, rigidities and other defects of
litigation in national courts, as well as the potential bias and peculiar uncertainties of
international litigation (including jurisdictional, choice-of-law and enforcement
disputes). (506) Particularly in international matters, parties have instead sought dispute
resolution by expert – commercially, technically, or diplomatically – tribunals, which
they have a hand in selecting, applying practical, neutral procedural rules, (507) which,
again, they have a hand in fashioning.
There have been periods of lesser, and periods of greater, judicial and legislative support
for the arbitral process. Different legal systems, in different eras, have taken a variety of
approaches to the extent of judicial support (or hostility). Judicial skepticism or hostility
31
has typically been cyclical, not infrequently coinciding with outbreaks of extreme
nationalism or totalitarianism, while in most instances the enduring needs of the
business community, the respect of enlightened governments for the freedom of citizens
to order their commercial affairs and the relative advantages of the arbitral process have
eventually overcome limitations or prohibitions on the arbitral process. For the most
part, therefore, arbitration agreements and awards have been capable, at least in
commercial matters, of effective enforcement – either by non-legal, commercial
measures or by formal judicial enforcement steps.
Against this historic background, the contemporary needs and objectives of commercial
(and other) users of arbitration – which are the foundation and driving force for the
international arbitral process – are discussed in greater detail below. (508) These
historical origins and current objectives play a central role in explaining and evaluating
specific aspects of the contemporary legal regime for international commercial
arbitration, discussed in subsequent Chapters.
§1.02 OBJECTIVES OF INTERNATIONAL COMMERCIAL ARBITRATION

In contemporary legal systems, international commercial arbitration is a means by which
international business disputes can be definitively resolved, pursuant to the parties’
agreement, by independent, non-governmental decision-makers, selected by or for the
parties, applying neutral adjudicative procedures that provide the parties an
opportunity to be heard. (509) As discussed below, there are almost as many other
definitions of international arbitration as there are commentators on the subject, but this
formulation best captures the consensus of national court decisions and other decisions
on the subject. (510)
Before considering these definitions in greater detail, it is useful to examine the
objectives that commercial parties generally have in entering into international
arbitration agreements. These objectives are essential to interpreting, and giving
appropriate effect to, such agreements and the arbitral awards they produce, as well as
to interpreting the legislative frameworks within which international arbitrations occur.
[A] Contractual Forum Selection in International Transactions

Preliminarily, it is important to appreciate the business and legal context in which
contemporary international commercial arbitration agreements are made. In today’s
global economy, business enterprises of every description can find themselves parties to
contracts with foreign companies (and states) from around the world, as well as parties to
litigation before courts in equally distant locales. The consequences of these proceedings
– and of losing them – are often enormous. (511) A contract means no more than what it is
interpreted to say, and how it is enforced; corrupt, incompetent, or arbitrary decisions
can rewrite a party’s agreements or impose staggering liabilities and responsibilities.
Almost every international commercial controversy poses a critical preliminary question
– “Where, and by whom, will this dispute be decided?” The answer to this question often
decisively affects a dispute’s eventual outcome.
There are many reasons why the same dispute can have materially different outcomes in
different forums. Procedural, choice-of-law and substantive legal rules differ
dramatically from one country to another. (512) Other considerations, such as
inconvenience, local bias and language, may make a particular forum much more
favorable for one party than another. (513) More pointedly, the experience, competence
and integrity of judicial officers also vary substantially among different forums; annual
corruption indices and other studies leave little doubt as to the uneven levels of
independence and integrity in many national judiciaries. (514) Those indices are,
regrettably, confirmed by contemporary anecdotal experience as to the corruption
endemic in civil litigation in some jurisdictions.
Precisely because national legal systems differ profoundly, parties inevitably seek to
ensure that, if international disputes arise, those disputes are resolved in the forum that
is most favorable to their interests. In turn, that can mean protracted litigation over
jurisdiction, forum selection and recognition of national court judgments. (515) These
disputes can result in lengthy and complex litigation – often in parallel or multiple
proceedings – which produce more in legal costs and uncertainty than anything else. (516)
In this regard, contemporary international litigation bears unfortunate, but close,
resemblances to the difficulties reported by Medieval commentators regarding
transnational litigation in earlier eras. (517)
Because of the importance of forum selection in the international context, parties to
cross-border commercial transactions very often include dispute resolution provisions in
their agreements, selecting a contractual forum in which to resolve any future
differences. (518) By selecting a forum in advance, parties are able to mitigate the costs
and uncertainties of international dispute resolution, through the centralization of their
disputes in a single neutral and reliable forum. (519)
As discussed below, contractual dispute resolution provisions typically take one of two
basic forms: (a) forum selection clauses; or (b) arbitration agreements. (520) In some
cases, other forms of dispute resolution mechanisms, such as negotiation, conciliation, or
32
mediation, are combined with a forum selection or arbitration agreement. (521)
[1] International Forum Selection Agreements
A forum selection clause is an agreement which either permits or requires its parties to
pursue their claims against one another in a designated national court. (522) Forum
selection agreements can be either “exclusive” (i.e., requiring that all litigation between
the parties be resolved solely in their contractual forum, and nowhere else) or “non-
exclusive” (i.e., permitting litigation between the parties in their contractual forum, but
not prohibiting substantive claims from being brought in other national courts which
possess jurisdiction). (523) Once enforced, a forum selection clause will result in litigation
in the selected national court, and will produce (unless settled) a national court
judgment.
[2] International Arbitration Agreements
An international arbitration agreement is similar in some respects to a forum selection
clause, in that it provides a contractual choice of a dispute resolution forum. In the words
of the U.S. Supreme Court, “an agreement to arbitrate before a specialized tribunal [is],
in effect, a specialized kind of forum-selection clause that posits not only the situs of suit
but also the procedure to be used in resolving the dispute.” (524)
Nonetheless, there are fundamental differences between such provisions, in both
practical and legal terms. (525) As already noted, international arbitration is a means for
definitively resolving a dispute, pursuant to the parties’ voluntary agreement, through
the binding decision of a non-governmental decision-maker selected by or for the parties
(an “arbitrator”), who applies neutral, adjudicative procedures. The various elements of
this definition of international commercial arbitration, and its vitally-important
differences from a forum selection clause, are discussed in detail below. (526) Likewise,
the fundamentally different legal frameworks applicable to, on the one hand,
international arbitration agreements, and, on the other hand, forum selection clauses,
are also discussed below. (527)
Arbitration (and forum selection) agreements can be entered into either before or after a
dispute arises. (528) In practice, almost all international commercial arbitrations occur
pursuant to arbitration clauses contained within underlying business contracts. (529)
These clauses typically provide for the arbitration of future disputes relating to the
contract in accordance with a specified set of procedural rules (often promulgated by an
arbitral institution). (530)
[B] Objectives of International Arbitration Agreements

There are a number of reasons why arbitration is the preferred means of resolving
international commercial disputes. Put simply, and as explained in greater detail below,
businesses perceive international arbitration as providing a neutral, speedy and expert
dispute resolution process, largely subject to the parties’ control, in a single, centralized
forum, with internationally-enforceable dispute resolution agreements and decisions.
(531) As one national court summarized the attractions of international arbitration for
commercial parties:
“There are myriad reasons why parties may choose to resolve disputes by
arbitration rather than litigation … [A]n arbitral award, once made, is
immediately enforceable both nationally and internationally in all treaty
states. One would imagine that parties might be equally motivated to choose
arbitration by other crucial considerations such as confidentiality, procedural
flexibility and the choice of arbitrators with particular technical or legal
expertise better suited to grasp the intricacies of the particular dispute or the
choice of law. Another crucial factor that cannot be overlooked is the finality
of the arbitral process. Arbitration is not viewed by commercial persons as
simply the first step on a tiresome ladder of appeals. It is meant to be the first
and only step.” (532)
While far from perfect, international arbitration is, rightly, regarded as generally suffering
fewer ills than litigation of international disputes in national courts and as offering more
workable and effective opportunities for remedying or avoiding those ills which do exist.
[1] Neutrality of Dispute Resolution Forum
One of the central objectives of international arbitration agreements is to provide a
neutral, evenhanded forum for dispute resolution, detached from either the parties or
their respective home state governments. This objective of neutrality is cited by
contemporary users of international arbitration (533) and by commentators, (534) and is
reflected in the history of state-to-state, investor-state and commercial arbitration. (535)
Not surprisingly, parties often begin to negotiate dispute resolution mechanisms with the
objective of ensuring that disputes are resolved in the most favorable forum – from their
own individual perspective – rather than a neutral one. (536) In many cases, choosing the
most favorable forum for a party means choosing the local courts in that party’s principal
place of business. These courts will be convenient and familiar to the home-town party,
33
and to its regular outside counsel; they will also probably be somewhat inconvenient and
unfamiliar to the counter-party. Where local courts are subject to political, media,
popular, ethnic, or other pressures, the attractions of a home court judicial forum may be
significantly sharpened. (537)
The characteristics that make one party’s local courts attractive to it will often make
them unacceptable to counter-parties. (538) If nothing else, an instinctive mistrust of the
potential for home-court bias usually prompts parties to refuse to agree to litigate in
their counter-party’s local courts. As a consequence, outside of lending and similar
transactions, (539) it is very often impossible for either party to a transnational business
transaction to obtain agreement to dispute resolution in its local courts.
In these circumstances, the almost universal reaction for business men and women is to
seek agreement on a suitable neutral forum – a forum for dispute resolution that does not
favor either party, but that will afford each party the opportunity to fairly present its case
to an evenhanded and objective tribunal. The result, in most instances, will be an
agreement to arbitrate (or, less frequently, litigate) in a neutral forum, pursuant to
neutral procedures. (540) That means, for example, that a French and a Mexican company
will agree to arbitrate their disputes in Miami, Spain, or England, while a U.S. and a
Japanese or German company will agree to dispute resolution in Switzerland, England, or
Singapore. Put simply, a party typically does not agree to arbitrate because arbitration is
the most favorable possible forum for it, but because it is the least unfavorable forum
that the party can obtain in arms’ length negotiations; phrased alternatively, arbitration
is all parties’ second choice, in circumstances where no party can obtain its first choice.
An essential aspect of the neutrality of international arbitration is the composition of the
arbitral tribunal. (541) International arbitration permits the parties to play a substantial
role in selecting the members of the tribunal, including the right to choose a sole or
presiding arbitrator whose nationality is almost always different from that of the parties
involved (thus reducing the risks of national bias, parochial prejudice, or similar
partiality). (542) The consequence, ordinarily, is the constitution of a genuinely-
international tribunal – in line with the parties’ basic objectives in entering into
Another essential feature of the neutrality of international arbitration is the use of
internationally-neutral procedures and rules. (543) National courts apply local
procedural rules, which are often designed for particular judicial frameworks (e.g., a U.S.
jury trial or a civil law system that does not provide for witness testimony, discovery, or
cross-examination) and which therefore are usually unfamiliar to, and often ill-suited for,
parties from different legal traditions. (544) In contrast, international arbitration seeks to
avoid the application of domestic litigation rules and instead to apply internationally-
neutral procedures tailored to the parties’ expectations and needs in particular
disputes. (545)
[2] Centralized Dispute Resolution Forum
Another one of the basic objectives, and enduring attractions, of international arbitration
is its ability to avoid the endemic jurisdictional and choice-of-law difficulties attending
international civil litigation. This has long been a perceived advantage of the arbitral
process, and was identified as such even in Medieval times. (546) As already discussed
above, “[t]he reason [for arbitration] seems to have been, to do justice expeditiously
among the variety of persons that resort from distant places to a fair or market; since it is
probable that no inferior court might be able to serve its process, or execute its
judgments, on both or perhaps either of the parties.” (547)
This attraction is, if anything, even more important today. International transactions
inevitably involve parties from, and conduct in, two or more states. Under contemporary
jurisdictional principles, (548) this means that disputes arising from such transactions
can potentially be resolved in two or more different national courts. Inevitably, parties
will seek to litigate in the forum (or forums) which each considers most favorable to its
individual interests. In turn, that results in recurrent, protracted disputes in and between
national courts over jurisdiction, forum selection, choice of law, evidence and recognition
of foreign judgments. (549)
One of the central objectives of international arbitration agreements is avoiding
multiplicitous litigation in different national courts, as well as protracted jurisdictional
disputes, inconsistent decisions and enforcement uncertainties. Instead, international
arbitration offers the promise of a single, centralized dispute resolution mechanism in
one contractual forum. (550) As the U.S. Supreme Court has put it:
“Much uncertainty and possibly great inconvenience to both parties could
arise if a suit could be maintained in any jurisdiction [where personal
jurisdiction could be established]. The elimination of all such uncertainties by
agreeing in advance on a forum acceptable to both parties is an
indispensable element in international trade, commerce and contracting.”
(551)
Other authorities, (552) as well as empirical findings, (553) are to the same effect.
34
It bears emphasis that neutral, centralized dispute resolution is not merely desirable for
its own sake, but is a vital precondition to international trade and investment. That is,
the additional uncertainties, risks and costs of resolving international commercial
disputes are such that, unless they can be managed, legitimate businesses will not
engage in transnational enterprises. Indeed, it was precisely to promote international
commerce that developed states established, and have sought to perfect, today’s legal
regime for international commercial arbitration. (554)
[3] Enforceability of Agreements and Awards
Another vital objective, and attraction, of international arbitration is to provide
relatively enforceable agreements and awards. Unless the parties’ dispute resolution
agreement – selecting a neutral, competent and central forum – can be enforced, it is of
little value. The same is true with regard to the decisions eventually rendered in the
contractual forum: unless they can be given effect, in places where the parties do
business, they are of limited value.
One of the most basic objectives of contemporary legal regimes for international
arbitration is to provide for the enforceability of arbitration agreements and arbitral
awards. (555) In particular, international arbitration aspires to produce more
enforceable, final results than may be achieved by forum selection agreements. As one
national court put it, modern legal regimes for international arbitration aim, “as a matter
of policy, to adopt a standard which seeks to preserve the autonomy of the forum
selected by the parties and to minimize judicial intervention when reviewing
international commercial arbitral awards.” (556) This aspiration has been largely realized
by contemporary international arbitration conventions and national arbitration
legislation.
As discussed below, international arbitration agreements are more readily and more
expeditiously enforced, with fewer exceptions, and more broadly interpreted, in most
national courts, than forum selection clauses. (557) This is consistently cited by users as
one of the most significant benefits of the arbitral process, (558) and is confirmed by
anecdotal evidence from a wide range of sources. (559) The comparative enforceability of
arbitration agreements is in large part because of the New York Convention, to which
some 170 states are party (as of May 2022), and because of the existence of national
arbitration legislation (increasingly based on the UNCITRAL Model Law), both of which
facilitate the enforceability of international arbitration agreements. (560)
In contrast, there are only a few regional arrangements which seek to establish effective
international enforcement regimes for forum selection clauses. The most notable is
Council Regulation No. 44/2001 in the European Union (“EU”), which replaced the Brussels
Convention. (561) Among other things, Regulation 44/2001 (and the revised “Recast
Regulation”) provide for the enforceability of forum selection agreements designating an
EU Member State’s courts, subject to only limited exceptions. (562) There are also a few
industry-specific arrangements providing enforcement mechanisms for international
forum selection clauses (such as treaties governing carriage of goods by sea). (563) In
general, however, international forum selection agreements do not benefit from anything
comparable to the New York Convention.
Additionally, many states impose limitations on the enforceability of forum selection
clauses, such as requiring a “reasonable relationship” between the parties’ contract and
the forum or considering forum non conveniens objections to the parties’ contractual
forum. (564) Similarly, “public policy” or “mandatory law” limitations on forum selection
mechanisms are usually less significant obstacles to enforcing arbitration agreements
than forum selection clauses. (565) For these reasons, international arbitration
agreements are often substantially more enforceable than forum selection clauses.
The Hague Conference on Private International Law’s Convention on Choice of Court
Agreements (“Hague Convention on Choice of Court Agreements”) would provide more
uniform international standards governing the enforcement of forum selection
agreements – if it were ratified by significant numbers of states. (566) That has not
occurred, despite conclusion of the Convention in June 2005. (567) Given the serious
questions regarding the integrity, competence and efficiency of national courts in many
jurisdictions, it is doubtful that significant numbers of states will (or should) ratify the
Choice of Court Convention.
Even if such ratifications occur, the Convention’s limitations and exceptions would leave
the enforceability of forum selection clauses subject to significant uncertainties.
Moreover, if effective, the Convention would presumptively mandate enforcement of
judgments received by states whose courts have repeatedly been found to lack basic
standards of integrity and competence – a result that comports with neither the rule of
law nor the facilitation of international trade and investment. At least for the foreseeable
future, international arbitration agreements will therefore continue to offer a substantial
“enforceability premium” as compared to forum selection clauses. (568)
Like agreements to arbitrate, international arbitral awards enjoy the protection of the
New York Convention, as well as favorable arbitration legislation in many countries. (569)
As discussed below, these instruments provide a “pro-enforcement” regime, with
expedited recognition procedures and only limited grounds for denying recognition to an
35
arbitral award. (570) Particularly in developed trading states, there is substantial,
successful experience with the enforcement of international arbitral awards. (571)
In contrast, there are only a few regional arrangements for the enforcement of foreign
judgments (in particular, Regulation EU 1215/2012 44/2001 in Europe (572) ), and there is
no global counterpart to the New York Convention for foreign judgments. (573) The
Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in
Civil or Commer... (“Judgments Convention”) has been signed by countries such as United
States (on 2 March 2022) and Russia (on 17 November 2021), but it has not yet entered into
force. (574) The EU has also indicated an intention to accede to the Judgments
Convention. (575) It requires Contracting States to recognize and enforce judgments in
civil or commercial matters in other Contracting States. It is intended to operate as a
sister instrument to the Hague Convention on Choice of Court Agreements. (576) In the
absence of international treaties, the recognition of foreign judgments in many nations is
subject to local law, which often makes it difficult or impossible to obtain effective
enforcement.
As a consequence, there is generally a significantly greater likelihood that an
international arbitral award will be enforced abroad, and actually put the parties’
dispute to rest, than will a national court judgment. (577) Together with the comparatively
greater enforceability of arbitration agreements, the more reliable enforceability of
arbitral awards is another one of the basic objectives, and attractions, of international
arbitration.
[4] Commercial Competence and Expertise of Tribunal
Another essential objective of international arbitration is providing a maximally
competent, expert dispute resolution process. (578) It is a harsh, but undeniable, fact
that many national courts are distressingly inappropriate choices for resolving
international commercial disputes. In some states, local courts have little experience or
training in understanding international transactions or resolving international business
disputes and can often face serious difficulties in fully apprehending the business
context and terms of the parties’ dispute. (579)
Even more troubling, as discussed above, basic standards of judicial integrity and
independence are lacking in many states. The simple reality is that corruption, nepotism
and personal favoritism are rife in many national legal systems. (580) Particularly in
cases against local litigants or state entities, the notion of a fair, objective proceeding,
much less an expert and sophisticated proceeding, is wholly chimerical. The grim reality
is that you get what you pay for in some national courts – which is a wholly unacceptable
and untenable position for legitimate businesses. (581)
Of course, some national judiciaries include very talented judges with considerable
experience in resolving international disputes. The courts of New York, England,
Switzerland, Singapore, Japan, Switzerland and a few other jurisdictions are able to
resolve complex transnational disputes with a fairly high degree of reliability.
Additionally, with English increasingly serving as the language of international commerce,
translations may not be necessary in many national courts. (582) Nevertheless, even in
these jurisdictions, local idiosyncrasies can interfere with the objectives of competence
and objectivity in resolving commercial disputes. (583)
Moreover, it is fundamental in most national legal traditions that judges are selected
randomly for assignment to particular cases, regardless of their experience or aptitude in
the underlying matter. (584) Judges are ordinarily generalists, often without any
specialization in complex commercial matters, much less a particular type of transaction
(M&A, joint venture) or industry (oil and gas, insurance). These considerations inevitably
affect the efficiency, and the quality, of the dispute resolution process. As one
commentator puts it:
“while the civil justice system often selects its triers of fact on the basis that
they know little or nothing about the subject of the dispute, a hallmark of
arbitration is the presence of one or more decisionmakers with pertinent
knowledge or experience. The theory is that an individual familiar with the
commercial context of the dispute, including industry customs and
vocabulary, is better suited to dispense justice than laypersons who might be
hampered by their relative lack of business experience and understanding of
trade practices.” (585)
As discussed above, arbitration was historically favored by commercial (and other) users
because it offered a more expert, experienced means of resolving commercial disputes.
(586) This continues to be the case today. Both empirical studies (587) and anecdotal
commentary (588) emphasize the importance of the tribunal’s commercial expertise and
experience in parties’ decisions to make use of international arbitration. In the brutal
assessment of one anonymous respondent to a survey of international arbitration users:
“for a French party, the big advantage is that international commercial
arbitration offers ‘de luxe justice’ … instead of having a $600 million dispute
before the Commercial Court in Paris, where each party has only one hour for
pleadings and where you can’t present witnesses and have no discovery; for a
36
dispute of that importance it may well be worth the costs to get a type of
justice that is more international and more ‘luxurious’; what you get is more
extensive and thorough examination of witness testimony – without the
excesses of American court procedure.” (589)
This is not only a perception of businesses, but also of some national courts. In the words
of the former President of the French Cour de Cassation, explaining why he regarded
arbitration as desirable: “first, what you do we don’t have to do; … second, in many fields
you are more professional than we are.” (590) Or, as one U.S. trial judge nicely put it,
arbitrators “know more about the value of peach orchards, their productivity and earning
power than I do.” (591)
The parties’ desire for commercially-experienced decision-makers is achieved in
substantial part through their participation in the selection of the arbitral tribunal. As
discussed below, this aspect of the arbitral process is intended to enable the parties –
who have the most intimate knowledge of their disagreements and the greatest incentive
to wisely choose a capable tribunal – to select arbitrators with the best experience,
abilities and availability for their particular dispute. (592) This is confirmed by users of
international arbitration who frequently cite “the possibility for the parties to select the
members of the tribunal themselves,” as compared to being provided a randomly-picked
judge of uncertain experience, age and competence, as one of the process’s most
substantial benefits. (593)
[5] Finality of Decisions
Another salient feature of international commercial arbitration is the absence, in most
cases, of extensive appellate review of arbitral awards. Judicial review of awards in most
developed countries is narrowly confined to issues of procedural fairness, jurisdiction
and public policy: as discussed below, any judicial scrutiny of the arbitrators’ substantive
decisions is ordinarily very limited and highly deferential. (594) This contrasts markedly
with the availability of appellate review of first instance judgments under national court
systems, which may allow either de novo relitigation or fairly searching reconsideration
of both factual and legal matters.
There are both advantages and disadvantages to the general absence of appellate review
mechanisms for arbitral awards. (595) Dispensing with appellate review significantly
reduces both litigation costs and delays (particularly when a successful appeal means
that the case must be retried in the first instance court, with the possibility of yet further
appeals). On the other hand, it also means that a wildly eccentric, or simply wrong,
arbitral decision cannot readily be corrected.
Anecdotal evidence and empirical research indicate that business users ordinarily
consider the efficiency and finality of arbitral procedures favorably, even at the expense
of foregoing appellate rights. (596) There are also some developed legal systems in which
the parties have the possibility, by contracting into or out of judicial review, to obtain a
measure of appellate review of the arbitrators’ substantive decisions, (597) or to select an
arbitral procedure that includes appeals to a tribunal within the arbitral process. (598) As
discussed below, however, international businesses generally choose speed and finality
over the opportunity for appellate review.
[6] Party Autonomy and Procedural Flexibility
A further objective, and advantage, of international commercial arbitration is the
maximization of party autonomy and procedural flexibility. (599) As discussed below,
leading international arbitration conventions and national arbitration laws accord
parties broad autonomy to agree upon the substantive laws and procedures applicable
to “their” arbitrations. (600) This emphasis on the importance of party autonomy
parallels applications of the doctrine throughout the field of contemporary private
international law, (601) and commercial law more generally, (602) but has particular
significance in the field of international commercial arbitration. (603)
In the words of one arbitral award: “In general, parties to a commercial agreement are
free to choose the law which is to govern their contractual relationship. … This doctrine of
party autonomy makes particular sense in the context of an international commercial
arbitration.” (604) The same autonomy is recognized in other international contexts
(including state-to-state and investment arbitration). (605)
One of the principal reasons that this procedural autonomy is recognized is to enable the
parties and arbitrators to dispense with the technical formalities and procedures of
national court proceedings and instead to fashion procedures tailored to particular
disputes. (606) Thus, technically-complex disputes can include specialized procedures
for testing and presenting expert evidence, (607) or “fast track” procedures can be
adopted where time is of the essence, (608) or tailor-made dispute resolution
mechanisms can be adopted in particular commercial markets (e.g., sports, commodities
or construction arbitrations). (609) More generally, parties are typically free to agree
upon the existence and scope of discovery or disclosure, the modes for presentation of
fact and expert evidence, the length of the hearing, the format of site inspections, the
timetable of the arbitration and other matters. (610) The parties’ ability to adopt (or,
failing agreement, the tribunal’s power to prescribe) flexible or innovative procedures is
37
a central attraction of international arbitration – again, as evidenced by empirical
research (611) and commentary. (612)
An essential aspect of the international arbitral process, reflecting both commercial
parties’ desire for expertise and the exercise of their autonomy, involves the use of
specialized arbitral rules in particular markets. Thus, specially-tailored arbitral
institutions exist in the fields of maritime and salvage, (613) commodities, (614) insurance
and reinsurance, (615) transportation, (616) intellectual property, (617) construction, (618)
and labor and employment (619) disputes. In each case, specialized procedural rules,
required or optional lists of arbitrators and other contractual provisions structure the
arbitral process in order to provide users with the maximum degree of specialized
expertise and procedural predictability, efficiency and security.
[7] Efficiency and Economy
It has long been said that arbitration offers a cheaper, quicker means of dispute
resolution than national court proceedings. (620) Thus, proponents of arbitration often
claim that “the underlying reason many parties choose arbitration is the relative speed,
lower cost, and greater efficiency of the process” (621) and “[t]he purpose of arbitration is
to permit relatively quick and inexpensive resolution of contractual disputes by avoiding
the expense and delay of extended court proceedings.” (622)
More recently, however, it has become fashionable, at least in some circles, to challenge
these characterizations or to describe arbitration as a slower, costlier option. (623) As one
U.S. appellate court remarked about a less-than-efficient arbitration, “[t]his appeal …
makes one wonder about the alleged speed and economy of arbitration in resolving
commercial disputes.” (624) Surveys of users also report pressure for more efficient and
expeditious arbitral proceedings. (625)
In reality, both international arbitration and international litigation can involve
significant expense and delay, and it is unwise to make sweeping generalizations about
which mechanism is necessarily quicker or cheaper in all cases. Although sometimes
advertised on grounds of economy, even its proponents rightly acknowledge that
“[i]nternational arbitration is an expensive process,” at least in some circumstances (626)
– or, more accurately, that international arbitration can be an expensive process. This is
particularly true in major international disputes, which can involve claims for billions of
dollars or Euro (or more), and complex factual and legal issues. (627) Disputes of this
character often require very substantial written submissions, factual and expert
evidence, and lengthy hearings, with the attendant costs; parties not only expect and
tolerate these expenses, but are concerned if disputes of this magnitude do not attract
commensurate litigation efforts. (628)
Moreover, in international arbitration, the parties are required (subject to later
allocation of arbitration costs by the tribunal) to pay the fees of the arbitrator(s) and,
usually, an arbitral institution. The parties will also have to pay the logistical expenses of
renting hearing rooms, travel to the arbitral situs, lodging and the like. (629) This entails
expenses that may not exist in national court litigation.
Nonetheless, the additional expenses of arbitration will often pale in comparison with
the costs of legal representation if there are parallel or multiplicitous proceedings in
national courts. This can be the case where the parties have, for whatever reason, not
agreed upon an exclusive forum selection clause, or where such a clause is held
unenforceable or inapplicable. (630) Likewise, the expenses of arbitration will typically
not approach those that are incurred if there is relitigation of factual issues in national
trial and appellate courts. Arbitration also usually does not have the potential for costly,
scorched-earth discovery, or disputes over service, evidentiary matters, immunity and
other litigation formalities, which may exist in some jurisdictions.
As discussed elsewhere, a number of leading arbitral institutions have adopted fast-track
or expedited procedures for small-value disputes and disputes requiring urgent
disposition. (631) These mechanisms permit resolution of disputes in a matter of months,
typically by a sole arbitrator in expedited proceedings. (632) Similarly, a number of
arbitral institutions provide for early dismissal of claims or defenses (633) – again
materially expediting the arbitral process.
International commercial arbitration is nonetheless not always speedy. Outside of some
specialized contexts, larger commercial disputes often require between 18 and 36
months to reach a final award, (634) with only limited possibilities for earlier summary
dispositions. Procedural mishaps, challenges to arbitrators, concerns regarding due
process and litigation over jurisdictional issues in national courts can delay even these
timetables, as can crowded diaries of busy arbitrators and counsel. (635) It is possible to
achieve greater expedition, through either drafting a “fast-track” arbitration clause (636)
or adroit arbitrator selection and procedural planning, but there are limits to how
quickly a major commercial arbitration can realistically and reliably be resolved.
Nonetheless, in many jurisdictions, national court proceedings are subject to at least
equally significant delays. Judicial dockets in many countries are overburdened and
obtaining a trial date and final decision may take years or longer; that is true even in
states with reasonably well-funded judicial systems, (637) while delays are substantially
38
longer in states with budgetary or other endemic organizational deficiencies. (638)
Further, as already noted, arbitration typically does not involve appellate review, (639)
thereby avoiding the delay inherent in appellate proceedings and reducing the risk that
new trial proceedings will be required (in the event of appellate reversal of an initial
trial court decision).
On balance, international arbitration does not necessarily have either dramatic speed
and cost advantages or disadvantages as compared to national court proceedings.
Broadly speaking, however, the absence of appellate review and the availability of
expedited procedures means that arbitration is usually materially less slow than
litigation of comparable disputes, although there are sometimes exceptions to this
generalization. (640) This conclusion is supported by empirical evidence (641) and
anecdotal accounts (642) of users’ evaluations of the international arbitral process and
its advantages.
[8] Confidentiality and Privacy of Dispute Resolution Process
Another objective of international arbitration in many contexts is to provide a
confidential, or at least private, (643) dispute resolution mechanism. As discussed below,
where the parties desire, international arbitration is substantially more likely than
national court litigation to produce a nonpublic dispute resolution process. (644) This
often serves to prevent aggravation of the parties’ dispute, to limit any collateral damage
of a dispute and to focus the parties’ energies on an amicable, business-like resolution of
their disagreements.
Most national court proceedings offer little by way of confidentiality to the parties.
Hearings and court dockets are almost always open to the public, competitors, press
representatives and regulators in many countries (sometimes by constitutional
requirement), (645) and parties are often free to disclose the contents of submissions and
evidence to the public and the press. Public disclosure can encourage efforts at “trial by
press release” and may impede negotiated compromises, by hardening positions, fueling
emotions, or provoking collateral disputes and damage.
In contrast, international arbitration is usually substantially more private, and often
more confidential, than national court proceedings. Arbitral hearings are virtually always
closed to the press and public, and in practice both submissions and awards often
remain confidential, or at least private. (646) In a number of jurisdictions, confidentiality
obligations are implied into international arbitration agreements as a matter of law,
while some institutional arbitration rules impose such duties expressly. (647)
Nonetheless, there is no clear duty of confidentiality in arbitral proceedings in many
jurisdictions (648) and, even where such obligations exist, they are subject to exceptions
which have the effect that awards are sometimes made public, either in enforcement
actions or otherwise. (649)
Most international businesses prefer, and affirmatively seek out, the privacy and
confidentiality of the arbitral process. (650) Nonetheless, commercial parties sometimes
affirmatively desire that certain disputes and their outcomes be made public. Where a
company has a standard form contract, used with numerous counter-parties, it may want
interpretations of the contract to become publicly-known, and binding through
precedent, as widely as possible. Where that is the case, parties are of course free to
agree that their arbitral proceedings (or the awards) will be public; in practice, this
occurs in some commercial settings. (651)
As discussed elsewhere, there has been a trend towards transparency in international
arbitration over the past decade. (652) This trend has been most pronounced in
investment arbitration, where a number of developments have made many investor-state
arbitrations substantially more transparent (and less confidential) than historically was
the case. (653) There have also been proposals for greater transparency in international
commercial arbitration, (654) although they have been much more limited than those in
investment arbitration.
[9] Facilitation of Amicable Settlement
Another objective, and historic attraction, of international arbitration is the facilitation of
parties’ efforts to settle their differences amicably. (655) Arbitral proceedings generally
require some measure of procedural cooperation between the parties (for example, in
choosing arbitrators and devising appropriate procedures). (656) Equally, the prospect of
an expert and enforceable decision rendered expeditiously by a commercially-sensible
and independent tribunal often facilitates the settlement process. (657)
In reality, it is not clear that international arbitration is systemically more likely than
litigation to produce negotiated settlements. There is little empirical data on the
subject, (658) and anecdotal experiences vary. Nonetheless, the arbitral process does
present parties with opportunities for both procedural cooperation and more general
settlement discussions. Approached constructively, these opportunities can be used to
pursue a negotiated resolution, at least where parties are so inclined, and remain a
material (if uncertain) objective of the international arbitral process. (659)
Mediation is frequently offered by institutions alongside arbitration, aimed at promoting
the amicable settlement of disputes. The ICC’s International Centre for Alternative
39
Dispute Resolution registered 45 new cases under its Mediation Rules in 2020, the largest
number of cases ever registered. (660) Interest in mediation is also reflected in the
proliferation of international instruments. The United Nations Convention on
International Settlement Agreements Resulting from Mediation (“Singapore Convention
on Mediation”) was adopted in December 2018 and entered into force on 12 September
2020. (661) The Model Law on International Commercial Conciliation of 2002 was
amended in 2018 and renamed the UNCITRAL Model Law on International Commercial
Mediation and International Settlement Agreements Resulting from Mediation. (662) The
new version includes a section on international settlement agreements and their
enforcement. (663)
[10] Disputes Involving States and State Entities
International commercial arbitration plays a particularly significant role in the resolution
of commercial disputes involving foreign states and state entities. Disputes involving
states present particular difficulties in national courts, because of traditional doctrines
of sovereign or state immunity, the act of state doctrine and similar obstacles to
obtaining and enforcing judgments, (664) and because of concerns about the impartiality
of national courts in disputes involving local state entities or corporations.
International arbitration provides a means of overcoming or mitigating these difficulties.
(665) In particular, by agreeing to international arbitration, a state or state entity
ordinarily waives its sovereign immunity from enforcement of the arbitration agreement
and recognition of any resulting award; (666) execution of the award against state assets
often requires a separate (and specific) waiver of immunity, but awards are generally
more readily enforceable against state assets than national court judgments. (667)
Similarly, arbitration, particularly in a neutral seat, can provide a more significantly
independent and impartial basis for resolution of disputes involving states and state
entities or corporations than proceedings in the courts of that state.
Arbitrations involving foreign states and state-related entities are a significant subset of
contemporary international commercial arbitrations. The number of international
commercial arbitrations involving foreign states or state entities has increased robustly
over the past five decades. (668) In practice, many states and state-related entities must
accept international arbitration as a necessary condition to concluding significant
international business transactions: unless the state accepts international arbitration, it
will not be able to conclude commercial arrangements, at least not with serious counter-
parties.
* * * * *
The aspirations of the arbitral process to accomplish the various objectives described
above lead the more enthusiastic proponents of international arbitration to proclaim:
“In th[e] realm of international commercial transactions, arbitration has
become the preferred method of dispute resolution. Arbitration is preferred
over judicial methods of dispute resolution because the parties have
considerable freedom and flexibility with regard to choice of arbitrators,
location of the arbitration, procedural rules for the arbitration, and the
substantive law that will govern the relationship and rights of the parties.”
(669)
Equally vigorous are some critics, including those who regard arbitration as “the slower,
more expensive alternative,” (670) or conclude that “arbitration sometimes involves
perils that even surpass the ‘perils of the seas.’” (671)
In fact, the truth about contemporary international commercial arbitration is less clear-
cut, and lies somewhere between these extremes:
“The more enthusiastic of [its] sponsors have thought of arbitration as a
universal panacea. We doubt whether it will cure corns or bring general
beatitude. Few panaceas work as well as advertised.” (672)
At bottom, if generalizations must be made, international arbitration is much like
democracy; it is nowhere close to ideal, and often fails fully to realize its objectives, but
it is generally a good deal better than the available alternatives. To those who have
experienced it, litigation of complex international disputes in national courts is often
distinctly unappealing – particularly litigation in national courts that have not been
carefully selected in advance for their neutrality, integrity, competence and
convenience. Indeed, the risks of corruption, incompetence, or procedural arbitrariness
make litigation of complex commercial disputes in many national courts an
unacceptable option. Despite sometimes daunting procedural and choice-of-law
complexities and other uncertainties, international arbitration generally offers the least
ineffective and damaging means to finally settle the contentious disputes that arise when
international commercial transactions go awry.
§1.03 INCREASING USE OF INTERNATIONAL COMMERCIAL ARBITRATION

Dispute resolution mechanisms must fulfill difficult, often thankless, tasks, particularly in
40
international disputes: parties who are often bent upon (mis)using every available
procedural and other opportunity to disadvantage one another simultaneously demand
rapid, expert and objective results at minimal cost. Despite these generally unrealistic
expectations, arbitration has for centuries been perceived as the most effective – if by no
means flawless – means for resolving international commercial disputes. (673)
That perception has not diminished, but rather has been strengthened, during the past
several decades. (674) In the words of one distinguished academic: arbitration is “‘the’
ordinary and normal method of settling disputes of international trade.” (675)
The enduring popularity of international arbitration as a means of dispute resolution is
reflected by a number of developments. These include steadily increasing caseloads at
leading arbitral institutions, with the number of reported cases increasing between three
and five-fold in the past 30 years.
Among other things, the ICC’s International Court of Arbitration received requests for 32
new arbitrations in 1956, 210 arbitrations in 1976, 337 arbitrations in 1992, 452 arbitrations
in 1997, 529 arbitrations in 1999, 599 arbitrations in 2007, 869 arbitrations in 2019, and 929
arbitrations in 2020 – a roughly 30-fold increase over the past 50 years. (676) Similarly,
the American Arbitration Association administered approximately 100 international
arbitrations in 1980, 207 international arbitrations in 1993, 510 international arbitrations
in 2000, 622 international arbitrations in 2007, and 892 international arbitrations in 2018.
(677) Other institutions show similar growth in caseloads, (678) as illustrated in the
following statistics, which show the number of cases filed with each of the listed arbitral
institutions between 1993-2020. (679)
Caseload of leading arbitral institutions (1993-2020)
‘93 ‘94 ‘95’ ‘96 ‘97 ‘98 ‘99 ‘00 ‘01 ‘02 ‘03 ‘04 ‘05 ‘06
AAA - 207 187 180 135 343 385 453 510 649 672 646 614 580 586
ICDR
AIAC 7 1 7 7 8 9 14 19 8 10 9 11 14 37
VANIAC 54 43 37 48 35 42 46 87 85 71 77 80 78 77
CIETAC 486 829 902 778 723 678 669 633 731 684 709 850 979 981
DIS 19 30 26 34 43 42 32 62 58 77 81 87 72 75
HKIAC 139 150 184 197 218 240 257 298 307 320 287 280 281 139
ICC 352 384 427 433 452 466 529 541 566 593 580 561 521 593
JCAA 3 4 8 8 13 15 12 10 17 9 14 21 11 11
KCAB 68 72 79 109 133 192 150 175 197 210 211 185 213 215
LCIA 29 39 49 37 52 70 60 87 71 87 105 86 119 132
LMAA 3,126 3,558 2,996 3,384 3,076 3,022 2,477 2,622 2,686 2,030 2,445 2,746 2,864 2,500
SCC 110 100 97 100 110 122 135 135 130 120 169 123 100 141
SIAC 15 22 37 25 43 67 67 58 64 64 64 78 74 90
VIAC 65 55 45 45 46 51 49 70 60 33 45 46 52 34
Total 4,680 5,474 5,074 5,340 5,295 5,401 4,950 5,307 5,629 4,980 5,442 5,768 5,958 5,611
‘07 ‘08 ‘09 ‘10 ‘11 ‘12 ‘13 ‘14 ‘15 ‘16 ‘17 ‘18 ‘19 ‘20
AAA - 622 703 836 888 994 996 1,165 1,015 1,064 1,050 1,026 892 882 704
ICDR
AIAC 40 47 42 44 48 61 154 100 103 62 100 90 125 100
VANIAC 82 84 76 78 71 96 102 80 104 100 101 106 134 178
CIETAC 1,118 1,230 1,482 1,352 1,435 1,060 1,256 1,610 1,968 2,181 2,298 2,962 3,333 3,615
DIS 100 116 176 155 174 121 121 132 134 166 152 153 145 162
HKIAC 150 184 429 291 275 293 260 252 271 262 297 265 308 318
ICC 599 663 817 793 796 759 767 794 801 966 810 842 869 929
JCAA 15 12 18 27 19 19 26 14 20 18 14 13 9 18
KCAB 320 262 318 316 323 360 338 382 413 381 385 331 443 405
LCIA 128 215 272 246 224 265 290 296 326 303 285 317 395 440
LMAA 2,559 3,567 4,326 3,343 3,412 3,719 2,836 3,408 3,001 2,754 2,357 2,369 2,697 2,754
SCC 170 176 216 197 199 177 203 183 181 199 200 152 175 213
SIAC 86 99 160 198 188 235 259 222 271 343 452 402 479 1,080
VIAC 36 42 62 70 75 67 49 54 38 58 41 62 43 37
Total 6,025 7,400 9,230 7,998 8,233 8,228 7,826 8,542 8,695 8,843 8,518 8,956 10,037 10,953
The same increasing preference for, and use of, international commercial arbitration is
reflected in surveys of users, (680) in empirical studies of the use of arbitration clauses in
international commercial agreements (681) and studies of dispute resolution in
41
international sale of goods settings. (682) These conclusions have been confirmed in
recent surveys of corporate users. For example, in its 2021 International Arbitration
Survey, the School of International Arbitration at Queen Mary, University of London found
that 90% of the respondents preferred international arbitration to resolve cross-border
disputes. (683)
Anecdotal observations are even more robust in their assessments of the growing
popularity of international arbitration (in some cases, unrealistically enthusiastic). (684)
Likewise, a sizeable, specialized international arbitration bar has developed, consisting
of international practitioners in the world’s leading commercial centers, whose
professional activities are directed almost exclusively towards international commercial
arbitration (or other forms of international arbitration, including investor-state and
state-to-state arbitrations). (685) Finally, the use of arbitration as a means of resolving
new (previously “un-arbitrated”) categories of disputes, (686) including bilateral
investment treaty claims, (687) online disputes, (688) tax disputes, (689) class actions,
(690) securities claims, (691) competition disputes (692) (including with regulatory
authorities (693) ), health-related regulatory disputes (e.g., tobacco-related issues), (694)
outer space activities, (695) consumer disputes, (696) corporate disputes, (697)
intellectual property disputes, (698) insolvency disputes, (699) human rights claims (700)
and other “public” issues, (701) attests to its enduring and increasing popularity.
Similarly, procedures developed in international commercial arbitration have influenced
other forms of dispute resolution, often in significant respects. (702)
These various sources leave no doubt as to the robust growth in the use of international
commercial arbitration in the past several decades. At the same time, it is an
oversimplification to say that international arbitration is the “dominant” form of dispute
resolution in international matters. The number of disputes that are settled by
negotiation dwarfs those that are litigated or arbitrated. Moreover, litigation in national
courts continues to be a plausible means of dispute resolution in many commercial
matters. Parties frequently consider the relative advantages and disadvantages of
international arbitration and forum selection agreements, not infrequently opting for the
latter if their negotiating power permits. (703)
Arbitration enthusiasts sometimes make exaggerated claims concerning the prevalence
of international arbitration clauses – suggesting that some 90% of all international
commercial contracts contain such provisions. (704) This figure lacks empirical support
and is almost certainly inflated: in reality, significant numbers of international
commercial transactions – certainly much more than 10% of all contracts – contain either
forum selection clauses or no dispute resolution provision at all. It is probably true that,
in negotiated commercial (not financial) transactions, where parties devote attention to
the issue of dispute resolution, and where the parties possess comparable bargaining
power, arbitration clauses are significantly more likely than not to be encountered. This
remains a highly impressive endorsement of arbitration, and permits one to fairly say
that international arbitration is the preferred means for contractual dispute resolution,
but more ambitious statistical claims are unproven.
§1.04 OVERVIEW OF CONTEMPORARY LEGAL FRAMEWORK FOR

INTERNATIONAL COMMERCIAL ARBITRATION
International commercial arbitration is fundamentally a consensual means of dispute
resolution: unless the parties have agreed to arbitrate, there is no obligation to arbitrate
and there can be no valid arbitral determination of their rights. (705) In turn, an
agreement to arbitrate has binding effect only by virtue of a complex framework of
national and international law, ultimately enforced via national courts. (706) Equally, an
arbitral award has binding effect, and can be recognized and enforced, only by virtue of
this same legal framework. (707)
As discussed above, both national law and commercial practice have, for centuries, given
legal effect to parties’ agreements to arbitrate and the resulting awards. (708) There have
been periods in which arbitration agreements and/or awards were afforded only limited
efficacy by national laws, (709) or were given effect only pursuant to particular legal
forms. (710) Nonetheless, the general treatment of arbitration agreements and awards in
developed jurisdictions has usually been at least satisfactory. (711)
The current international legal regime for commercial arbitration has improved
materially on historic enforcement mechanisms. As detailed below, contemporary
international conventions, national arbitration legislation and institutional arbitration
rules provide a specialized and highly-supportive legal regime for most contemporary
international commercial arbitrations. This regime has been established, and
progressively refined, with the express goal of facilitating international trade and
investment by providing a stable, predictable and effective legal framework in which
these commercial activities may be conducted: “international arbitration is the oil which
lubricates the machinery of world trade.” (712) More specifically:
“Enforcement of international arbitral agreements promotes the smooth flow
of international transactions by removing the threats and uncertainty of time-
consuming and expensive litigation.” (713)
42
As discussed above, the foundations for this legal regime were laid in the first decades of
the 20th century, with the 1923 Geneva Protocol and 1927 Geneva Convention, national
arbitration legislation that paralleled these instruments and effective institutional
arbitration rules. (714) Building on these foundations, the current legal regime for
international arbitration was developed in significant part during the second half of the
20th century, with countries from all geographical regions entering into international
arbitration conventions and enacting national arbitration statutes designed specifically
to facilitate the arbitral process; at the same time, national courts in most states have
given effect to these legislative instruments, often extending or elaborating on their
terms. Most importantly, and as discussed below, this avowedly “pro-arbitration” regime
ensures the enforceability of both arbitration agreements and arbitral awards, gives
effect to the parties’ procedural autonomy and the arbitral tribunal’s procedural
discretion and seeks to insulate the arbitral process from interference by national courts
or other governmental authorities. (715)
[A] International Arbitration Conventions

Over the past century, major trading nations have entered into a number of international
treaties and conventions designed to facilitate the transnational enforcement of
arbitration agreements and awards and to promote the use of arbitration in international
settings. (716) They have done so for the specific purpose of providing an effective
mechanism for resolving international commercial disputes, and thereby promoting
international trade and investment. (717) These instruments have, for the most part,
contributed to a stable and effective legal framework for arbitration between
international businesses.
International treaties dealing with arbitration sometimes took the form of bilateral
treaties, although the significance of such agreements was limited. (718) Much more
importantly, multilateral conventions have sought to facilitate and promote
international arbitration by encouraging the recognition of arbitration agreements and
awards. These included the 1923 Geneva Protocol and the 1927 Geneva Convention. (719)
As discussed above these two instruments established basic requirements that
Contracting States recognize and enforce international arbitration agreements and
awards (subject to a number of important limitations), marking the beginning of
contemporary international efforts comprehensively to facilitate and support the
international commercial arbitration process. (720) The Geneva Protocol and Convention
did not merely make international arbitration agreements and awards as enforceable as
their domestic counterparts. Rather, these instruments made international arbitration
agreements and awards more enforceable than domestic ones, establishing pro-
arbitration standards that did not then exist in many domestic legal systems, for the
specific purpose of promoting international trade and investment.
[1] New York Convention (721)
The Geneva Protocol and the Geneva Convention were succeeded by the United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral Awards. (722)
Generally referred to as the “New York Convention,” the treaty is by far the most
significant contemporary legislative instrument relating to international commercial
arbitration. It provides what amounts to a universal constitutional charter for the
international arbitral process, whose expansive terms have enabled both national courts
and arbitral tribunals to develop durable, effective means for enforcing international
arbitration agreements and arbitral awards. The Convention has also provided the basis
for most contemporary national legislation governing the international arbitral process,
and in particular the UNCITRAL Model Law, which has implemented and elaborated upon
the Convention’s basic principles and legal framework.
[a] Historical Background of New York Convention
The Convention was adopted – like many national arbitration statutes – specifically to
address the needs of the international business community and the requirements of
international trade and commerce. (723) In particular, the Convention was intended to
improve the legal regime provided by the Geneva Protocol and Geneva Convention for
the international arbitral process. (724)
The first draft of what became the Convention was prepared by the ICC in 1953, focused
exclusively on the enforcement of international arbitral awards. (725) The ICC introduced
the draft with the observation that “the 1927 Geneva Convention was a considerable step
forward, but it no longer entirely meets modern economic requirements,” and with the
objective of “obtaining the adoption of a new international system of enforcement of
arbitral awards.” (726)
The ICC’s proposed Draft Convention would have provided for a “denationalized” form of
international arbitration, with both the international arbitral process and arbitral awards
contemplated to be largely detached from national laws. (727) In particular, the ICC
declared that the “[Geneva] Convention’s main defect” was its “enforcement of only those
awards that are strictly in accordance with the rules of procedure laid down in the law of
the country where the arbitration took place,” and concluded “that there could be no
progress without full recognition of the conception of international awards.” (728)
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The ICC draft was transmitted to the United Nations Economic and Social Council
(“ECOSOC”), which established a committee to study the proposal. (729) After some
delays, the ECOSOC produced a revised draft of a successor convention to the Geneva
Convention, (730) which adopted a somewhat less ambitious approach to the recognition
and enforcement of foreign arbitral awards than that proposed by the ICC. (731)
After further governmental consideration, the ICC and ECOSOC drafts provided the basis
for a three-week conference in New York – the United Nations Conference on Commercial
Arbitration – attended by 45 states in the Spring of 1958. (732) The New York Conference
resulted in a compromise instrument that reconciled the ICC and ECOSOC drafts, (733)
while also introducing significant new elements not contemplated by either proposal.
The resulting document – now termed the New York Convention – was in many respects a
radically innovative instrument which created for the first time a comprehensive legal
regime for the international arbitral process.
Both the ICC’s original text and the ECOSOC’s subsequent draft were focused entirely on
the recognition and enforcement of arbitral awards, with no serious attention to the
enforcement of international arbitration agreements. As one commentator summarizes
the drafting history:
“Originally, … it was the intention to leave the provisions concerning the
formal validity of the arbitration agreement and the obligatory referral to
arbitration to a separate protocol. At the end of the New York Conference of
1958, it was realized that this was not desirable. Article II was drafted in a race
against time, with, as a consequence, the omission of an indication as to which
arbitration agreements the Convention would apply.” (734)
The initial approach to drafting the New York Convention paralleled that of the Geneva
treaties (where the Geneva Protocol dealt with arbitration agreements and the Geneva
Convention addressed arbitral awards). (735) It was only late in the Conference that the
delegates recognized the limitations of this approach and considered a proposal from
the Dutch delegation to extend the proposed treaty from only the recognition of arbitral
awards to also include recognition of international arbitration agreements. (736) That
approach was eventually adopted, and the resulting provisions regarding the recognition
and enforcement of international arbitration agreements form one of the central
elements of the Convention. (737) At the same time, the extension of the Convention to
encompass both arbitration agreements and awards was a significant step beyond the
Geneva treaties and made the Convention the first international instrument to
comprehensively deal with the major elements of the international arbitral process.
The text of the Convention was approved on 10 June 1958 by a unanimous vote of the
Conference (with only the United States and three other states abstaining). (738) The
Convention is set forth in English, French, Spanish, Russian and Chinese texts, all of which
are equally authentic. (739) The text of the Convention is only a few pages long, with the
instrument’s essential substance being contained in seven concisely-drafted provisions
(Articles I through VII).
The New York Convention made a number of significant improvements in the regime of
the Geneva Protocol and Geneva Convention for the enforcement of international
arbitration agreements and awards. Particularly important were the Convention’s
broader scope with regard to arbitration agreements, (740) its shifting of the burden of
proving the validity or invalidity of awards away from the party seeking enforcement to
the party resisting enforcement, (741) its recognition of substantial party autonomy with
respect to choice of arbitral procedures, (742) its adoption of choice-of-law rules for the
law applicable to the arbitration agreement (743) and its abolition of the previous
“double exequatur” requirement (which had required that awards be confirmed in the
arbitral seat before being recognized abroad). (744)
The Convention’s various improvements were summarized by the President of the U.N.
Conference on the Convention as follows:
“it was already apparent that the document represented an improvement on
the Geneva Convention of 1927. It gave a wider definition of the awards to
which the Convention applied; it reduced and simplified the requirements
with which the party seeking recognition or enforcement of an award would
have to comply; it placed the burden of proof on the party against whom
recognition or enforcement was invoked; it gave the parties greater freedom in
the choice of the arbitral authority and of the arbitration procedures; it gave
the authority before which the award was sought to be relied upon the right to
order the party opposing the enforcement to give suitable security.” (745)
More generally, the Convention was intended to promote the use of arbitration as a
means of resolving international commercial disputes, in order to facilitate international
trade and investment. In the words of one national court decision, “it is common ground
that the evident purpose of Alberta’s acceptance of the [New York] Convention is to
promote international trade and commerce by the certainty that comes from a scheme of
international arbitration.” (746)
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[b] Success of New York Convention
Despite the Convention’s brevity and focus on arbitration agreements and arbitral
awards, the significance of its terms can scarcely be exaggerated. The Convention’s
provisions effected a fundamental restructuring of the international legal regime for
international commercial arbitration, combining the separate subject matters of the
Geneva Protocol and Geneva Convention into a single instrument, which provided a
robust and effective legal regime that covered international arbitrations from their
inception (the arbitration agreement) until their conclusion (recognition of the award). In
so doing, the Convention established for the first time a comprehensive international
legal framework for international arbitration agreements, arbitral proceedings and
arbitral awards.
Moreover, the terms of this legal framework were important and remarkably innovative.
Considering only the Convention’s provisions mandating recognition of arbitral awards,
subject to a limited, exclusive list of exceptions, one delegate to the New York
Conference termed the Convention a “very bold innovation.” (747) Equally, the
Convention’s introduction of uniform international legal standards mandatorily requiring
the recognition and enforcement of international arbitration agreements, subject to only
specified exceptions, was also a bold advance, (748) as was the Convention’s emphatic
recognition of the predominant role of party autonomy in the arbitral process. (749)
Taken together, the Convention’s provisions regarding the recognition of arbitral awards
and agreements provided an international legal framework within which the arbitral
proceedings could be conducted largely in accordance with the parties’ desires and the
arbitrators’ directions, and whose results could be effectively enforced in national courts
around the world. (750)
The Convention was ultimately successful in accomplishing its drafters’ objectives: it is
now widely regarded as “the cornerstone of current international commercial
arbitration,” (751) the “most effective instance of international legislation in the entire
history of commercial law” (752) and the “single most important pillar on which the
edifice of international arbitration rests.” (753) In the apt words of Judge Stephen
Schwebel, former President of the International Court of Justice, “It works.” (754)
Notwithstanding its present significance, the New York Convention initially attracted
relatively few signatories or ratifications, particularly from major trading states. Only 26
of the 45 countries participating in the Conference signed the Convention prior to its
entry into force on 7 June 1959. (755)
Moreover, many trading states that signed the Convention prior to June 1959, such as
Belgium, the Netherlands, Sweden and Switzerland, did not ratify it for several years
thereafter. The first states to ratify or accede to the Convention were Israel, Morocco,
Egypt and Syria, none of whom were major trading states; by 1970, only 32 states had
ratified or acceded to the Convention, including only a limited number of states with
substantial economies. (756) Other major trading states, including the United States and
the United Kingdom, as well as much of Asia (including China) and Latin America did not
accede to the Convention until many years later. (757) The United States did not accede
to the Convention until 1970 (because of concerns about domestic federalism issues and
hostility from some within the U.S. State Department). (758)
Over time, however, states from all regions of the globe reconsidered their position, (759)
and by May 2022 some 170 nations had ratified or acceded to the Convention. (760) The
Convention’s parties include virtually all major trading states and most Latin American,
African, Asian, Middle Eastern and former socialist states. (761) During the past decade,
numerous states (including a number in the Middle East and Latin America) have
departed from their former distrust of international arbitration and have acceded to the
Convention. (762)
One reason for the Convention’s success was its timeliness. It became available in the
1960s and 1970s, as world trade and investment began significantly to expand (facilitated
in part by the Convention). With this expansion came substantially greater numbers of
international commercial disputes – and arbitrations – which gave both national courts
and arbitral tribunals opportunities to interpret and apply the Convention. (763)
[c] Overview of New York Convention’s Provisions
It is often said that the Convention did not provide a detailed legislative regime for all
aspects of international arbitrations (as, for example, the UNCITRAL Model Law would
later do (764) ). Rather, the Convention’s provisions focused on the recognition and
enforcement of arbitration agreements and arbitral awards, without specifically
regulating the conduct of the arbitral proceedings or other aspects of the arbitral
process. (765) As one national court has observed, the Convention was designed to
“encourage the recognition and enforcement of commercial arbitration
agreements in international contracts and to unify the standards by which
agreements to arbitrate are observed and arbitral awards are enforced in the
signatory nations.” (766)
Although these observations are broadly accurate, a critical aspect of the Convention is
45
its indirect governance of the arbitral process, through its requirement that courts of
Contracting States recognize agreements to arbitrate – including the procedural terms of
those agreements (767) – and its provisions for non-recognition of arbitral awards if the
parties’ agreed arbitral procedures have not been complied with. (768) Taken together,
the Convention’s provisions set forth binding international legal principles governing the
entire arbitral process – including the recognition of arbitration agreements, the conduct
of the arbitral process and the recognition of arbitral awards.
An essential objective of the Convention was uniformity: like the drafters of other
international treaties, the Convention’s drafters sought to establish a single uniform set
of international legal standards for the enforcement of arbitration agreements and
arbitral awards. As a leading commentator on the Convention concludes, “the significance
of the New York Convention for international commercial arbitration makes it even more
important that the Convention is interpreted uniformly by the courts.” (769) Or, in the
words of a well-reasoned Canadian decision, “[t]he purpose of the Convention is to
facilitate the cross-border recognition and enforcement of arbitral awards by
establishing a single, uniform set of rules that apply worldwide.” (770)
In particular, the Convention’s provisions prescribe uniform international rules that: (a)
require national courts to recognize the presumptive validity of international arbitration
agreements, subject to specified exceptions (Article II(1)); (771) (b) require national courts
to refer parties to arbitration when they have entered into a valid agreement to arbitrate
that is subject to the Convention (Article II(3)); (772) and (c) require national courts to
recognize and enforce foreign arbitral awards (Articles III and IV), subject to a limited
number of specified exceptions (Article V). (773) Additionally, Articles II and V(1)(d) also
indirectly govern the arbitral process itself, generally according decisive weight to the
parties’ agreements regarding arbitral procedures (rather than the law of the arbitral
seat). (774)
National courts have consistently held that these provisions of the Convention establish a
“pro-enforcement” or “pro-arbitration” regime for international arbitration agreements
and arbitral awards. According to one court:
“The purpose of the New York Convention … is to ‘encourage the recognition
and enforcement of commercial arbitration agreements in international
contracts and to unify the standards by which agreements to arbitrate are
observed and arbitral awards are enforced in the signatory countries.’” (775)
Other courts, and commentators, adopt similar interpretations of the Convention’s basic
“pro-enforcement” objectives with respect to both arbitration agreements (776) and
arbitral awards. (777)
[i] Article II: Presumptive Validity of Arbitration Agreements
Central to the Convention is Article II(1), which establishes a basic rule of formal and
substantive validity for international arbitration agreements falling within the
Convention’s scope:
“Each Contracting State shall recognize an agreement in writing under which
the parties undertake to submit to arbitration all or any differences which
have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not, concerning a subject matter capable
of settlement by arbitration.” (778)
This basic rule is elaborated, and also provided an enforcement mechanism, in Article
II(3) of the Convention, which requires the courts of Contracting States to refer parties to
international arbitration agreements to arbitration unless “the said [arbitration]
agreement is null and void, inoperative or incapable of being performed.” (779)
Importantly, as discussed below, Article II’s obligations are applicable in Contracting
States to all international arbitration agreements, including agreements to arbitrate
locally (in the Contracting State whose courts are asked to apply Article II) and
agreements to arbitrate abroad (in a state other than that whose courts are asked to
apply Article II). (780)
By virtue of Article II, international arbitration agreements are presumptively valid and
enforceable, subject only to specifically-defined exceptions (identified in Article II(3)),
whose applicability must be proven by the party opposing recognition of the arbitration
agreement. (781) Under the Convention, Contracting States are not free to fashion
additional grounds for denying recognition of agreements to arbitrate, and are instead
subject to the mandatory provisions of Articles II(1) and II(3). (782) As one U.S. court put it,
“[d]omestic defenses to arbitration are transferable to [the challenge to an arbitration
agreement under the New York Convention] only if they fit within the limited scope of
defenses” permitted by Article II. (783)
The Convention is also properly interpreted as imposing international choice-of-law rules
that govern the selection of the law applicable to international arbitration agreements.
As discussed below, these choice-of-law rules (set forth in Article V(1)(a) and, impliedly,
Article II (784) ) require Contracting States to give effect to the parties’ choice of law
governing their agreement to arbitrate, (785) and, in the absence of any (express or
46
implied) choice by the parties, to apply the law of the arbitral seat. (786) Moreover, the
better view is that the Convention also requires application of a validation principle,
reflecting the parties’ implied intentions, which mandates application of the national law
of the jurisdiction, related to the parties’ transaction, which will give effect to the parties’
arbitration agreement. (787)
The Convention is also best interpreted as imposing limits on the grounds of substantive
invalidity that can be asserted against international arbitration agreements. (788) In
particular, Article II(3) requires – as a uniform and mandatory international rule – the
recognition of the validity of international arbitration agreements except where such
agreements are invalid under generally-applicable, internationally-neutral contract law
defenses that do not impose discriminatory burdens or requirements on the formation or
validity of agreements to arbitrate. (789) These limits are required by Article II’s
reference to ordinary, generally-accepted principles of contract law (“null and void,
inoperative or incapable of being performed”), and by the Convention’s objective of
ensuring that Contracting States recognize the validity of international arbitration
agreements in accordance with uniform international standards.
Under this standard, a Contracting State may not avoid its obligations to recognize
international arbitration agreements by adopting special rules of national law that make
such agreements invalid (or “null and void, inoperative or incapable of being
performed”). Thus, national law provisions that impose unusual notice requirements (e.g.,
particular font), consent requirements (e.g., that arbitration agreements be specifically
approved or established by heightened proof requirements), procedural requirements
(e.g., only institutional arbitration agreements are permitted), or invalidity rules (e.g.,
arbitration agreements applicable to future disputes, fraud claims, or tort claims are
invalid) are all impermissible under Article II(3). (790)
Consistent with this analysis, Contracting States have almost always applied generally-
applicable contract law rules to determine the validity of international arbitration
agreements in both their international arbitration legislation and judicial decisions. (791)
Moreover, a number of national courts have adopted this analysis, holding that only
“internationally neutral” grounds for challenging the validity of international arbitration
agreements may be asserted under Article II of the Convention. In the words of one U.S.
decision:
“The limited scope of the Convention’s null and void clause ‘must be
interpreted to encompass only those situations – such as fraud, mistake,
duress, and waiver – that can be applied neutrally on an international scale.’”
(792)
Finally, Article II applies to, and requires recognition of, all material terms of
international arbitration agreements. This includes provisions regarding the arbitral seat,
the selection of institutional rules, the language of the arbitration, the choice of
arbitrators, the procedures required by the arbitration agreement and the like. (793) As a
consequence, courts in Contracting States are mandatorily required to enforce not just
the parties’ exchange of commitments to arbitrate, but also the material terms of that
agreement to arbitrate, pursuant to Article II’s internationally-neutral standards:
Contracting States cannot uphold parties’ agreements to arbitrate, while ignoring their
choice of arbitral seat, arbitral institution, arbitrators, language, or other procedures.
Again, the overwhelming weight of national court authority is consistent with this analysis.
(794)
[ii] Articles III, IV and V: Presumptive Validity of Arbitral Awards
Equally central to the Convention are Articles III, IV and V, which establish a basic rule of
validity and enforceability of foreign and nondomestic arbitral awards falling within the
scope of the Convention. Thus, Article III provides that “Each Contracting State shall
recognize arbitral awards as binding” (795) and enforce awards in accordance with the
Convention and its national procedural rules. Article IV prescribes streamlined
requirements and procedures for the proof of foreign and nondomestic arbitral awards
by the award-creditor, essentially requiring only presentation of certified and translated
copies of the award and underlying arbitration agreement. (796) As discussed below,
these obligations apply only to “foreign” awards, made outside the Contracting State in
which recognition of the award is sought, and “nondomestic” awards, a category of awards
with limited relevance in contemporary practice. (797)
In turn, Article V provides that “[r]ecognition and enforcement of the award may be
refused … only if” (798) one of seven specified exceptions applies, set forth in Articles V(1)
and V(2). The Convention’s exceptions to the obligation to recognize foreign awards are
limited to issues of jurisdiction (Articles V(1)(a), V(1)(c)), procedural regularity and
fundamental fairness (Article V(1)(b)), compliance with the procedural terms of the
parties’ arbitration agreement or, absent such agreement, the procedural requirements
of the arbitral seat (Article V(1)(d)) and public policy or nonarbitrability (Articles V(2)(a),
V(2)(b)); an award may also be denied recognition if it has been annulled by a competent
court in the arbitral seat (Article V(1)(e)). Notably, these exceptions do not include any
possibility of review by a recognition court of the merits of the arbitrators’ substantive
decision. (799)
47
And, as with Article II, the provisions of Articles III, IV and V are self-evidently mandatory,
not permissive – a conclusion that national courts and other authorities have uniformly
confirmed. (800) It is also clear that the exceptions set forth in Article V of the
Convention, to the general obligation on Contracting States to recognize awards, are
exclusive and exhaustive; courts in Contracting States may not deny recognition of
foreign or nondomestic awards except on the grounds specifically set out in Article V.
(801) Moreover, the burden of proof under Article V is on the award-debtor, not the
award-creditor, and national courts have emphasized that Article V’s exceptions are
strictly construed. (802)
Finally, it is also clear that neither Article V nor anything else in the Convention ever
requires a Contracting State to deny recognition to a foreign or nondomestic award. The
Convention requires only that Contracting States recognize awards (and arbitration
agreements) in specified circumstances. Nothing in Article V, nor the basic structure and
purpose of the Convention, imposes the opposite obligation, not to recognize an award
(or arbitration agreement). That is made explicit in Article VII, which preserves rights that
award-creditors enjoy under national law or other international treaties to recognize and
enforce arbitral awards (and, by analogy, arbitration agreements). (803)
[iii] Articles II and V(1)(d): Recognition of Parties’ Procedural Autonomy
The Convention also addresses the procedures used in international arbitrations, albeit
indirectly. In particular, Articles II and V(1)(d) of the Convention both provide for
recognition of the parties’ agreed arbitral procedures.
As noted above, Article II(1) and II(3) of the Convention require Contracting States to
recognize the material terms of agreements to arbitrate, including their procedural
terms, and to refer the parties to arbitration in accordance with those terms. (804) Those
provisions obligate courts in Contracting States to give effect to the arbitral procedures
that the parties have provided for in their arbitration agreements (or otherwise). As
discussed below, the Convention impliedly permits Contracting States to deny effect to
such agreements in limited, exceptional circumstances, in order to protect the integrity
of the arbitral process, but does not otherwise limit the parties’ procedural autonomy.
(805)
Article V(1)(d) similarly provides for non-recognition of arbitral awards where the
“composition of the arbitral authority or the arbitral procedure was not in accordance
with the agreement of the parties, or, failing such agreement, was not in accordance with
the law of the country where the arbitration took place.” (806) Even more explicitly than
Article II, Article V(1)(d) gives priority to the parties’ agreement regarding arbitral
procedures, providing for application of the law of the arbitral seat only as a default
mechanism, when the parties have not made any agreement regarding procedural
matters. (807) At the same time, Article V(1)(b) of the Convention also permits non-
recognition of awards in cases where a party was denied an opportunity to present its
case, imposing a general requirement of procedural fairness and regularity on the
arbitral process (including in (exceptional) cases where the parties’ agreed arbitral
procedures are fundamentally unfair). (808)
Taken together, Articles II and V(1)(d) prescribe a basic rule of party autonomy for
regulation of the arbitral procedures. Under the Convention, Contracting States (and
arbitral tribunals) are mandatorily required to give the parties’ procedural agreements
effect, subject to only limited exceptions to protect the fundamental fairness of the
arbitral process.
[d] Application of New York Convention by National Courts
In virtually all Contracting States, the New York Convention has been implemented
through national legislation. The practical effect of the Convention is therefore often
dependent on both the content of such national legislation and the interpretations given
by national courts to the Convention and national implementing legislation. (809)
As discussed below, the extent to which Contracting States have been faithful to the
Convention and its underlying objectives varies. (810) Most states have adopted
legislation (such as the UNCITRAL Model Law) that gives almost complete effect to the
Convention, clarifying ambiguities or adding detail regarding the role of national courts.
(811) Similarly, most Contracting States have treated the Convention as directly-
applicable (or “self-executing”), with national courts directly applying the Convention’s
terms. (812)
Nonetheless, a few states have failed (sometimes for prolonged periods) to enact any
implementing legislation, (813) or have promulgated national laws that do not comport
with the Convention. (814) Even in developed states, legislation is occasionally enacted
or judicial decisions issued that do not comport with the Convention’s requirements. (815)
As noted above, an important aim of the Convention’s drafters was uniformity. (816) The
fulfillment of that aim is dependent upon the willingness of national legislatures and
courts, in different Contracting States, to adopt uniform interpretations of the
Convention. In general, national courts have risen to the challenge of adopting uniform
interpretations of the Convention’s provisions. (817) That process has accelerated in
recent decades, as national court decisions have become increasingly available in
48
foreign jurisdictions (818) and national courts have increasingly cited authorities from
foreign and international sources in interpreting the Convention. As one experienced
(former) judge correctly observed, the New York Convention is “one of the few
international treaties in respect of which the courts look at what the courts have done in
other Contracting States.” (819)
Thus, national courts have fairly consistently sought to interpret the Convention
uniformly, particularly in the past two decades, with judicial decisions drawing on
interpretations of the Convention and resolutions of particular issues from different legal
systems; (820) they have often done so for the express purpose of achieving uniformity
and developing a predictable and coherent body of international arbitration law. (821) In
the words of one recent Indian court decision, which reversed decades of Indian
precedent that contradicted the Convention:
“The underlying motivation of the New York Convention was to reduce the
hurdles and produce a uniform, simple and speedy system for enforcement of
foreign arbitral award. Therefore [Article V(1)(e) of the Convention should be
interpreted in the manner that] seems to be accepted by the commentators
and the courts in different jurisdictions.” (822)
Or, as another national court put it:
“Insofar as the Act implements an international treaty, Australian courts will,
as far as they able, construe the Act consistently with the international
understanding of that treaty. Uniformity also accords with the Act’s stated
purpose to facilitate the use of arbitration as an effective dispute resolution
process.” (823)
This process has been materially assisted by the adoption, in a significant number of
Contracting States, of the UNCITRAL Model Law. As discussed below, the Model Law is
based substantially on the New York Convention, mirroring its basic terms and specific
language (in Articles II, III, IV and V of the Convention), while also providing elaboration of
those terms. (824) The interpretation of the Model Law in Contracting States that have
adopted it has provided further impetus towards uniformity in interpretation of the
Convention and regulation of the arbitral process.
[e] Self-Executing Character of New York Convention
National courts have devoted only limited attention to the question whether the New
York Convention has “direct” application in the courts of Contracting States (or,
formulated differently, is “self-executing”). (825) Nonetheless, the text, structure and
object and purposes of the Convention indicate decisively that the Convention is
directly-applicable in those national legal system where international treaties may have
such effects. (826) Decisions from a number of jurisdictions have arrived at this
conclusion. (827)
[i] Text of Convention
The text of Articles II, III, IV, V, and VI of the New York Convention argue decisively for the
direct application or self-executing status of the Convention. Article II, as both a textual
matter and as interpreted by national courts, (828) is unequivocally mandatory,
providing that Contracting States “shall” recognize international arbitration agreements
and “shall” refer parties to such agreements to arbitration. (829) Article II is also directed
specifically to national courts, rather than to legislative or executive authorities, with
Article II(3)’s direction to “the court[s] of a Contracting State” requiring those courts to
“refer the parties to arbitration” – an action that only a court “seized of an action” can
perform. (830) Provisions of this character, addressed specifically to judicial authorities
in mandatory terms, are prime examples of directly applicable treaty provisions.
It is also significant that the text of Article II is complete and comprehensive, requiring
nothing further to accomplish the Convention’s purposes. (831) National courts can apply
Article II’s provisions directly to give effect to arbitration agreements and refer parties to
arbitration without any need for further substantive elaboration or detail (as Articles 7
and 8 of the UNCITRAL Model Law, which merely reproduce the language of Article II of
the Convention, illustrate). (832)
Likewise, Article III mandatorily provides that Contracting States “shall recognize arbitral
awards as binding and enforce them” in accordance with local procedural rules. (833)
Article V is equally mandatory, providing that recognition of an award may be refused
“only if” one of the exceptions specified in Article V is applicable. (834) Articles III, IV, V,
and VI are also directed specifically to national courts. Article III requires recognition of
awards “in accordance with the rules of procedure of the territory where the award is
relied upon,” (835) while Article IV addresses “application[s]” for recognition and the
proof of awards. (836) Each of these activities is characteristically and uniquely that of a
judicial body. And, as with Article II, no additional text is required beyond that of Articles
III, IV, V and VI for the effective recognition and enforcement of awards. Articles 35 and 36
of the UNCITRAL Model Law are representative examples of statutes implementing the
Convention, by using text identical to Articles III and V. (837)
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[ii] Object and Purposes of Convention
The Convention’s directly-applicable status is confirmed by the treaty’s object and
purposes. As discussed elsewhere, one of the Convention’s central objectives was
prescribing uniform standards for recognizing international arbitration agreements and
awards in the courts of Contracting States. (838) As one commentator on the Convention
observed that, “[f]or the enforcement of the arbitration agreement, the Convention
contains internationally uniform provisions.” (839)
To the same effect, the U.N. General Assembly emphasized the importance of “uniform
interpretation and effective implementation” of the Convention by Contracting States.
(840) National courts have likewise consistently emphasized the central importance of
uniformity to the Convention’s purposes. (841)
These purposes are best achieved by treating the Convention as directly applicable and
self-executing. Doing so means that courts in Contracting States that permit treaties to be
directly applicable will interpret and apply a single international text, informed by
decisions in other Contracting States that interpret the same text, rather than
interpreting and applying a multiplicity of individual national legislative instruments.
This significantly increases the likelihood that international arbitration agreements and
arbitral awards will, as the Convention was intended to ensure, be subject to uniform
international standards in all Contracting States.
In contrast, treating the Convention’s provisions as non-self-executing would materially
increase the risk that different Contracting States would adopt different national
implementing statutes for the Convention and apply divergent lines of judicial
interpretation. This would materially reduce the likelihood that uniform international
rules would be applied under the Convention – contrary to the Convention’s basic
purpose.
[iii] Positions of Contracting States
A substantial majority of the Convention’s Contracting States take the position that the
Convention is directly applicable in national courts. The UNCITRAL Secretariat published
a report in 2008 examining how Contracting States to the Convention have incorporated it
into national law. (842) Based on responses of 108 of the 142 Contracting States (in 2008),
the Secretariat reported that “[f]or a vast majority of States, the New York Convention was
considered as ‘self-executing,’ ‘directly applicable’ and becoming a party to it put the
Convention and all of its obligations in action.” (843)
Similarly, although there is relatively limited authority, judicial decisions in a number of
Contracting States have held that the Convention is directly applicable in national
courts. For example, the Italian Corte di Cassazione held that the Convention
“create[s] a fully autonomous micro-system, either because treaty provisions
(in respect of both the requirements for enforcement of the foreign award and
the grounds to oppose enforcement) prevail over the provision in the [Italian]
Code of Civil Procedure, or because of the Convention’s completeness and self-
sufficiency.” (844)
Likewise, the Singapore High Court has referred to the “self-execution” regime that Article
II(3) creates. (845) Courts in the United States, Switzerland and Japan have also treated
the Convention as self-executing, without the need for statutory incorporation into
domestic law. (846)
These decisions are well-considered and reflect the better view of the Convention’s
status. As discussed above, the text of the Convention’s principal provisions – Articles II,
III, IV, V, VI, and VII – is clearly addressed mandatorily and directly to national courts and,
equally clearly, capable of direct and immediate application by those courts. Likewise,
giving effect to this language is important to accomplish the Convention’s objectives.
There is no justification, except where domestic constitutional principles require, for
denying the Convention’s direct effect in national courts.
[f] Constitutional Character of New York Convention
Finally, it also bears emphasis that the Convention is a “constitutional” instrument. (847)
The Convention’s text is drafted in broad terms, designed as the basic legal framework for
the international arbitral process and for application in a multitude of states and legal
systems, over a period of decades. By necessity, as well as design, the interpretation of
the Convention must evolve and develop over time, as national courts and arbitral
tribunals confront new issues, develop more refined analyses and implement the treaty’s
underlying objectives. As one national court explained, accepting the characterization of
“the Convention as a ‘constitutional instrument,’” the Convention imposes uniform
international standards while “leav[ing] a substantial role for national law and national
courts to play in the international arbitral process.” (848)
The process of interpretation and application of the Convention can be uneven and slow,
but it is very well-adapted to the evolving needs of the international arbitral process,
which by its nature is characterized by changing commercial demands and conditions. It
is also well-adapted to the nature of the Convention’s constitutional structure, which
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leaves a substantial role for national law and national courts to play in the international
arbitral process, but within the international framework and limitations imposed by the
Convention’s provisions. Much of the discussion in the following Chapters is addressed to
the manner in which national courts and arbitral tribunals have jointly given effect to the
Convention’s terms and developed their respective fields of competence within the
Convention’s framework.
There have been occasional proposals to amend the New York Convention. (849) Those
proposals have attracted substantial criticism, (850) and have gained little political or
other momentum. As a practical matter, it is highly unlikely that amendments to the
Convention are foreseeable in the coming decade.
A more significant step in this direction was the adoption by UNCITRAL of the UNCITRAL
Model Law and of two “Recommendations” regarding interpretation of Articles II and VII
of the Convention. (851) The Model Law was based in significant part on the Convention
(with Articles 7, 8, 35 and 36 largely tracking the text of the Convention in verbatim
language). (852) As discussed elsewhere, interpretations of the Model Law often look to
the Convention and decisions interpreting the Convention, while conversely influencing
analysis and interpretation of the Convention. (853)
At the same time, UNCITRAL’s Recommendations will (properly) influence interpretation
of the Convention (as well as the Model Law). These actions reflect the ongoing
cooperation of Contracting States in their judicial and quasi-legislative interpretations of
the Convention, progressively developing and elaborating the Convention’s meaning over
time. These actions have been of particular importance given the constitutional
character of the Convention, whose broad and general text necessarily requires
substantial interpretation and elaboration.
Finally, the New York Convention must also be interpreted in accordance with principles
of good faith, including as reflected in Article 31 of the Vienna Convention on the Law of
Treaties. As one well-reasoned national court decision held, “as a treaty, the Convention
must be interpreted ‘in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and purpose.’” (854)
Other authorities are to the same effect. (855) The Contracting States’ obligations of good
faith under the Convention complement the Convention’s constitutional character,
contemplating a progressive and cooperative development of the Convention’s basic
objectives of facilitating the recognition and enforcement of international arbitration
agreements and awards.
[g] Proposals to Amend New York Convention
The New York Convention celebrated its 60th anniversary in 2018. In conjunction with that
celebration, and otherwise, the possibility of amendments to the Convention, or adoption
of a new international arbitration convention, has been debated. (856)
Various of the proposed amendments to the Convention relate to the formal
requirements for arbitration agreements, (857) the enforcement of arbitration
agreements, (858) non-arbitrability, (859) the definition of public policy, (860) settlement
agreements, (861) interim measures, (862) pre-award attachments, (863) waiver of a right
to resist enforcement, (864) judicial assistance in taking evidence (865) and recognition
of awards that have been set aside in the arbitral seat. (866)
There appears to be limited (or no) political appetite to either amend or replace the
Convention. No meaningful steps have been taken in either direction. At the same time,
application of the Convention by national courts has continued to develop and
strengthen the legal frameworks for international commercial arbitration. Given that
development, the better view is that amendment or revision of the Convention is neither
necessary nor advisable. As one folk adage puts it, “If it ain’t broke, don’t fix it.”
[2] European Convention on International Commercial Arbitration
The 1961 European Convention on International Commercial Arbitration (867) is one of the
world’s most important regional commercial arbitration treaties. Drafting of the
European Convention began in 1954, aimed at producing a treaty that would improve
upon the then-existing legal framework for international arbitration involving parties
from European states (868) and particularly East-West trade. (869) The drafting process
was protracted (and delayed by the intervening New York Convention), but ultimately
concluded with signing of the Convention in Geneva on 21 April 1961, three years after the
New York Convention was opened for signature. (870)
The European Convention entered into force in 1964, and 31 states are currently party to
it. (871) Most European states (but not the United Kingdom, the Netherlands or Finland)
are party to the Convention, while some ten non-European states are parties, including
Russia, Cuba and Burkina Faso. (872) The Convention consists of ten articles and a
detailed annex (dealing with certain procedural matters).
The Convention addresses the three principal phases of the international arbitral process
– arbitration agreements, arbitral procedure and arbitral awards. With regard to the
arbitration agreement, the Convention (impliedly) recognizes the validity of international
arbitration agreements, (873) while expressly providing for a specified, limited number of
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bases for the invalidity of such agreements in proceedings concerning recognition of
awards. (874) With regard to the arbitral procedure, the Convention limits the role of
national courts and confirms the autonomy of the parties and the arbitrators (or arbitral
institution) to conduct the arbitration proceedings; the Convention also addresses the
allocation of competence between arbitral tribunals and national courts over
jurisdictional challenges, to the existence, validity, or scope of the arbitration
agreement. (875) With regard to awards, the European Convention is designed to
supplement the New York Convention, essentially dealing only with the effects of a
judicial decision annulling an award in the arbitral seat in other jurisdictions (and not
with other recognition obligations). (876) The European Convention also contains a
number of provisions which improve on the New York Convention, including provisions
regarding allocation of jurisdictional competence, appointment of arbitrators, arbitral
procedure and state entities. (877)
The European Convention’s impact in actual litigation has not been substantial (owing to
the limited number of Contracting States, all of whom are also party to the New York
Convention). (878) Nonetheless, the Convention’s effects on international arbitration
doctrine have been significant. (879) This is particularly true with regard to the
arbitrators’ jurisdiction to consider challenges to their own jurisdiction (so-called
“competence-competence”) (880) and the parties’ (and arbitrators’) autonomy to
determine the arbitral procedures. (881) The Convention is currently dated – reflecting its
origins during the Cold War – and efforts were undertaken in 2000 to revise its provisions.
(882) Those efforts proved unsuccessful and there are currently no steps being taken to
revise or reinvigorate the Convention.
[3] Inter-American Convention on International Commercial Arbitration (883)
After the pioneering Montevideo Convention in 1889, and the Bustamante Code in 1920,
(884) much of South America effectively turned its back on international commercial
arbitration. Only Brazil ratified the Geneva Protocol, and even it did not adopt the
Geneva Convention. South American states were very reluctant to ratify the New York
Convention, for the most part only beginning to do so in the 1980s.
Nevertheless, in 1975, the United States and most South American nations negotiated the
Inter-American Convention on International Commercial Arbitration (“Inter-American
Convention”), also known as the “Panama Convention.” (885) The United States ratified
the Convention in 1990; other parties include Mexico, Brazil, Argentina, Venezuela,
Columbia, Chile, Ecuador, Peru, Costa Rica, El Salvador, Guatemala, Honduras, Panama,
Paraguay and Uruguay. (886)
The Inter-American Convention is similar to the New York Convention in many respects:
indeed, the Inter-American Convention’s drafting history makes clear that it was intended
to provide the same results as the New York Convention. (887) Among other things, the
Inter-American Convention provides for the presumptive enforceability of arbitration
agreements (888) and arbitral awards, (889) subject to specified exceptions similar to
those in the New York Convention. (890)
The Inter-American Convention nonetheless introduces significant innovations, not
present in the New York Convention. It does so by providing that, where the parties have
not expressly agreed to any institutional or other arbitration rules, the rules of the “Inter-
American Commercial Arbitration Commission” (“IACAC”) will govern. (891) In turn, the
Commission has adopted rules that are similar to the UNCITRAL Rules. (892) The
Convention also introduces provisions regarding the constitution of the arbitral tribunal
and the parties’ freedom to appoint arbitrators of their choosing (regardless of
nationality). (893) Much less desirably, the Inter-American Convention departs from the
New York Convention by omitting provisions dealing expressly with judicial proceedings
brought in national courts in breach of an arbitration agreement. (894)
[4] ICSID Convention
A central pillar of the international investment regime is the so-called ICSID Convention
or “Washington Convention” of 1965. (895) The Convention establishes the International
Centre for Settlement of Investment Disputes (“ICSID”), a specialized arbitral institution,
which administers international investment arbitrations and conciliations, both pursuant
to the Convention (896) and, in limited circumstances, otherwise. (897)
The ICSID Convention was negotiated and opened for signature in 1965 and now has 156
Contracting States, including states in every geographic region of the world. (898) The
Convention is designed to facilitate the settlement of “investment disputes” (i.e., “legal
dispute[s] arising directly out of an investment” (899) ) that the parties have agreed to
submit to ICSID. (900) Investment disputes are defined as controversies that arise out of
an “investment” and are between a Contracting State (or “host State”) or a designated
state-related entity from that state and a national of another Contracting State (or
“investor”). (901) The Convention does not apply to disputes not involving a Contracting
State and an investor from another Contracting State or to disputes between private
parties; it also does not apply to purely commercial disputes that do not involve an
investment.
Moreover, the Convention does not provide an independent, stand-alone basis for
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arbitrating particular disputes under the Convention. Instead, an ICSID arbitration cannot
be pursued without a separate consent to ICSID arbitration by the foreign investor and
host state, which usually takes the form of either an arbitration clause contained within
an investment contract or a consent provided in a foreign investment law, a bilateral
investment treaty (“BIT”) (discussed below), or another treaty. (902)
As to investment disputes that fall within its terms, the Convention provides both
conciliation (903) and arbitration procedures. If parties agree to submit a dispute to
ICSID arbitration, the ICSID Convention (and related ICSID Arbitration Rules) provide a
comprehensive, stand-alone regime, almost entirely detached from national law and
national courts, for the conduct of ICSID arbitral proceedings. This regime differs
materially from that applicable in international commercial arbitrations (under the New
York Convention) and most other investment arbitration contexts. In particular,
arbitrations under the ICSID Convention do not have a legal seat. At the same time,
despite these differences, ICSID arbitrations also have significant similarities to
international commercial arbitration, having deliberately adopted many of its
procedural aspects.
Under the ICSID Convention regime, arbitral tribunals are granted exclusive competence-
competence to resolve jurisdictional challenges (subject to limited subsequent review by
ICSID-appointed annulment committees (and not by national courts)). (904) This differs
from international commercial arbitrations, where national courts play a significant role
in considering and resolving jurisdictional disputes. (905)
Likewise, ICSID awards are subject to immediate recognition and enforcement in the
courts of Contracting States without set aside proceedings or any other form of review in
national courts (but execution upon such awards remains subject to local rules of state
immunity from execution). (906) Instead, ICSID awards are subject to a specialized
internal annulment procedure, in which ad hoc committees selected by ICSID are
mandated, in very limited circumstances, to annul awards for jurisdictional or grave
procedural violations; (907) if an award is annulled the dispute may be resubmitted to a
new ICSID arbitral tribunal. (908) This is a substantial difference from the New York
Convention model, where awards are subject to annulment or set-aside (in the national
courts of the arbitral seat) and non-recognition (in national courts elsewhere). (909)
Moreover, ICSID (and not a national court) serves as the appointing authority in ICSID
arbitrations, when necessary, selecting and replacing arbitrators from a list of individuals
selected by individual Contracting States and by the Chairman of ICSID’s Administrative
Council. (910) Again, this differs materially from appointment mechanisms in at least
some non-ICSID settings (particularly ad hoc arbitrations, where national courts can be
involved in the appointment and challenge process (911) ).
Finally, the ICSID Convention provides that, absent agreement of the parties, ICSID
arbitrations are governed by the law of the state that is party to the dispute (including its
conflict of laws rules) “and such rules of international law as may be applicable.” (912) In
contrast, neither the New York nor Inter-American Convention contains comparable
substantive choice-of-law provisions.
Major international infrastructure and natural resource projects frequently include ICSID
arbitration clauses, usually because of demands from host governments. ICSID has also
frequently been included as an arbitral institution to administer investment arbitrations
pursuant to BITs, which proliferated during the 1990s. (913) As a consequence, ICSID has
gained substantially greater experience in administering international arbitrations, and
enhanced credibility as an arbitral institution, during the past two decades. (914)
That trend has continued in recent years, as ICSID has progressively modernized the ICSID
Arbitration Rules, which led to some improvement in the institution’s arbitral
procedures. (915) ICSID Member States approved a comprehensive set of amendments to
ICSID’s rules on 21 March 2022. (916) The 2022 ICSID Regulations and Rules, which aim to
provide broader access to ICSID’s dispute resolution rules and services, as well as
enhance the transparency of proceedings, enter into effect on 1 July 2022.
ICSID’s caseload has very significantly increased in the past 30 years, particularly as a
consequence of arbitrations brought pursuant to BITs or investment protection
legislation. (917) As of 31 December 2021, the Centre had registered 869 ICSID arbitrations
since its establishment, with 66 new ICSID arbitrations registered in 2021. (918) While only
four ICSID awards were made between 1971 and 1980, nine were made between 1981 and
1990, 18 were made between 1991 and 2000, 96 were made between 2001 and 2010, and
225 were made between 2011 and 2020. (919)
[5] The North American Free Trade Agreement and the U.S.–Mexico–Canada Agreement
A number of other multilateral treaties also play important roles in international
investment law, establishing legal regimes that resemble, but also differ from, the ICSID
Convention. The North American Free Trade Agreement (“NAFTA”) was a multilateral treaty
between Canada, Mexico and the United States which addressed a wide range of trade,
investment and other issues. The NAFTA was renegotiated in 2018 and 2019 and was
replaced by the U.S.–Mexico–Canada Agreement on 1 July 2020.
Chapter 11 of the NAFTA set forth standards for treatment by each NAFTA state of investors
53
from other NAFTA states, as well as a mechanism for arbitrating investment disputes
under those standards. The substantive rights provided by the NAFTA to investors from
NAFTA states included protections against discriminatory treatment of a NAFTA investor
by the host state, unfair or inequitable treatment and expropriation without adequate
compensation. (920)
Unlike the basic models for both international commercial arbitration and the ICSID
Convention, no separate consent to arbitration was required to permit an investor from
one NAFTA state to arbitrate claims under the NAFTA’s substantive provisions against
another NAFTA state. Rather, the necessary consent by the NAFTA state parties was
provided in Chapter 11 of the NAFTA itself, which provided investors from NAFTA states
with immediate access to an arbitral forum. (921)
While the NAFTA included ICSID arbitration as an option for resolving disputes, Canada
only ratified the ICSID Convention in 2013 and Mexico only signed and ratified the
Convention in 2018. Prior to Canada’s and Mexico’s ratifications, NAFTA arbitrations could
not be conducted as ICSID arbitrations under the Convention. (922) Instead, ICSID’s
“Additional Facility” Rules were applied in NAFTA arbitrations, permitting use of ICSID as
an appointing authority and administering institution, notwithstanding the ICSID
Convention’s inapplicability. (923) As a result, NAFTA arbitrations and awards were not
subject to the ICSID Convention (including its internal institutional annulment
procedure), and were instead subject to being set aside in national courts of the arbitral
seat in the same general manner as international commercial arbitration awards. (924)
Following ratification of the ICSID Convention by Canada and Mexico, NAFTA arbitrations
could be conducted pursuant to the ICSID Convention, with awards being ICSID awards,
subject to the ICSID Convention’s annulment and recognition mechanisms.
In 2017, at the initiation of the U.S. government, the three NAFTA parties commenced a
process of renegotiating and revising the terms of the NAFTA, reaching preliminary
agreement in September 2018 (including on renaming the treaty the “U.S.–Mexico–
Canada Agreement” (“USMCA”)). (925) Subsequently, the governments of the three states
ratified the USMCA and the treaty entered into force on July 1, 2020.
Chapter 14 of the USMCA addresses investment protection and investment claims. (926)
Like the NAFTA, the USMCA provides protection to investors against denial of national
treatment, (927) denial of most favored nation treatment, (928) violation of the minimum
standard of treatment, (929) and unlawful expropriation. (930)
The USMCA provisions on investor-state dispute settlement mechanisms available to
investors of the Contracting States reflect a significant change from the NAFTA. (931) The
USMCA eliminates Canada from the investor-state arbitration system altogether. (932)
Once the USMCA enters into force, Canadian investors in Mexico and the United States,
and U.S. and Mexican investors in Canada, will no longer have recourse to investor-state
arbitration. To settle disputes relating to their investments under the USMCA, these
investors will only have recourse to domestic courts. (933)
Additionally, the USMCA significantly curtails investor-state arbitration for U.S. investors
in Mexico and vice-versa. (934) In contrast to the NAFTA, the USMCA requires the investor
to exhaust local remedies for a minimum of 30 months, unless recourse to local courts is
“obviously futile.” (935) Moreover, under the USMCA, most investors may only bring
investment claims on the basis of post-establishment discrimination and direct
expropriation. (936) The USMCA also precludes claims for indirect or creeping
expropriation, (937) violation of the minimum standard of treatment, (938) and violation
of an investor’s legitimate expectations. (939)
The USMCA provides broader access to investor-state arbitration to investors who are
parties to qualified government contracts in a number of important industries, such as
telecommunications, transportation, and oil and natural gas production. (940) In these
circumstances, investors may also bring investment claims against their host state for
indirect expropriation and violation of the minimum standard of treatment. (941)
[6] Comprehensive Economic Trade Agreement
The 2016 Comprehensive Economic and Trade Agreement (“CETA”) between Canada and
the EU and of the EU–Vietnam Free Trade Agreement (“EVFTA”) provide for a new form of
investor-state dispute settlement. Both agreements provide for the establishment of a
permanent court and an appellate tribunal, instead of the ad hoc arbitral tribunals
historically used in trade and investment agreements. (942) This approach echoes earlier
(unsuccessful) EU proposals to create a permanent international investment court. (943)
Implementation of this dispute settlement mechanism is likely to face serious
challenges, including difficulties with the appointment of court members, neutrality and
objectivity, enforcement of investment court decisions and adequacy of investment
protections. (944)
On 29 January 2021, the EU and Canada adopted four decisions, establishing the
investment court system outlined in CETA through detailed rules, procedures and
structures. (945) These include administrative and organizational rules for the functioning
of the Appellate Tribunal, a code of conduct for the judges of the investment court
system, rules for mediation and rules for binding interpretations to be adopted by the
54
CETA Joint Committee. (946) These decisions, and the investment protection provisions of
CETA, will only apply once all 27 EU Member States will have approved CETA.
[7] Bilateral Investment Treaties (947)
BITs play a central role in the international investment protection regime. Unlike the
ICSID Convention (and other multilateral investment treaties), BITs are bilateral treaties,
tailored to the circumstances of specific bilateral relationships and only binding the two
relevant Contracting States. Nonetheless, as discussed below, most BITs follow a common
structure and include common provisions (often contained in “model” BITs published by
some states). (948)
Historically, capital-exporting states (including Germany, the United Kingdom, most
other Western European states, the United States and Japan) were the earliest
proponents of BITs, which were originally entered into principally between developed
and developing countries. More recently, states in all stages of development have
concluded BITs with one another. More than 2,900 BITs are currently either in force or
concluded, with a substantial proportion of all BITs being between developing states (so-
called “South-South” BITs). (949)
Most BITs provide significant substantive protections for investments made by investors
from one of the two Contracting States in the territory of the other Contracting State.
These protections typically include guarantees against uncompensated expropriation,
unfair or inequitable treatment and discriminatory treatment. (950)
BITs also very frequently (but not always) contain dispute resolution provisions which
permit investors from one Contracting State to submit “investment disputes” with the
other Contracting State to arbitration, subject occasionally to specified exclusions (e.g.,
for tax disputes or in relation to specific industries). Importantly, like the Energy Charter
Treaty, (951) these provisions provide each state’s binding consent to arbitration of
investment disputes; this permits investors to demand arbitration of covered disputes
against the host state without a traditional contractual arbitration agreement with the
host state or other separate consent to arbitration by the host state (so-called
“arbitration without privity”). (952) These provisions have been characterized as “standing
offers to arbitrate” by host states, which investors can typically accept by commencing an
investment arbitration pursuant to the BIT, thus giving rise to an arbitration agreement.
(953) A few BITs do not include the Contracting States’ consent to arbitration, instead
requiring foreign investors to conclude a separate arbitration agreement with the host
state in order to arbitrate an investment dispute under the treaty, but this is unusual.
BITs contain a variety of different arbitration mechanisms. Some BITs provide for ICSID
Convention arbitration of investment disputes under the BIT; other BITs provide for some
form of institutional arbitration (e.g., ICC or SCC) or ad hoc arbitration (e.g., under the
UNCITRAL Rules); and some BITs permit investors to select among any of the foregoing (or
other) options. (954) The appointing authority in a particular BIT arbitration will vary,
depending on the terms of the individual BIT and the option(s) selected by the investor.
Unless a BIT arbitration proceeds under the ICSID Arbitration Rules and ICSID Convention,
BIT awards will be subject to the New York Convention and general national arbitration
legislation. (955)
As with ICSID arbitrations, the past several decades have witnessed a steadily increasing
number of BIT arbitrations and awards. Recent reports indicate that more than 50 BIT
arbitrations are filed each year, with a substantial number of these proceeding to final
awards. (956)
There is a substantial, and growing, body of specialized commentary addressing the
subjects of BITs and investor-state arbitration. (957) These topics are beyond the scope of
this Treatise, save where relevant as useful parallels, contrasts, or illustrations of issues
arising in international commercial arbitration.
[8] Bilateral Friendship, Commerce and Navigation Treaties
A number of nations have entered into bilateral treaties dealing principally with
commercial relations and incidentally with international arbitration. These treaties
generally provide for the reciprocal recognition of arbitral awards made in the territory
of one of the Contracting States.
For example, the United States includes an article relating to arbitration between
private parties in many of its bilateral Friendship, Commerce and Navigation treaties.
(958) A representative example of such an article provides:
“Contracts entered into between nationals or companies of either party and
nationals or companies of the other party that provide for settlement by
arbitration of controversies shall not be deemed unenforceable within the
territories of such other party merely on the grounds that the place
designated for arbitration proceedings is outside such territories or that the
nationality of one or more of the arbitrators is not that of such other party.
Awards duly rendered pursuant to any such contracts which are final and
enforceable under the laws of the place where rendered shall be deemed
conclusive in enforcement proceedings brought before the courts of
55
competent jurisdiction of either party, and shall be entitled to be declared
enforceable by such courts, except where found contrary to public policy.”
(959)
For the most part, these treaty provisions have been effectively superseded by the terms
of the New York Convention and other multilateral treaties, which generally provide
substantially more expansive protections. (960)
[B] Overview of National Arbitration Legislation

Many nations have enacted arbitration legislation, which provides a basic legal
framework for international arbitration agreements, arbitral proceedings, and arbitral
awards. National arbitration statutes are of fundamental importance in giving effect to –
or, less frequently, creating obstacles to – the functioning of the international arbitral
process. Despite occasional rhetoric as to the “autonomy” of the international arbitral
process, (961) it is essential to the efficient functioning of the arbitral process, and the
realization of the parties’ objectives in agreeing to arbitrate, that national courts give
effect to such agreements, provide support for the arbitral process and recognize arbitral
awards. The enactment of legislation accomplishing these ends has been a major
objective – and achievement – of developed trading states and many other jurisdictions
over the past 50 years. (962)
Over the past several decades, large numbers of developed and less-developed states
have enacted, revised or improved legislation dealing with international commercial
arbitration. (963) The extent of these legislative revisions is striking, both in number and
diversity. Important new enactments, or thorough revisions, have occurred in Algeria
(2008), Andorra (2015), Australia (1989, 2011, 2015 and 2017), Austria (2013), Bangladesh
(2001), Bahrain (2015), Barbados (2007), Belgium (2013), Bolivia (1997), Brazil (2015),
Bulgaria (1993, 2007 and 2017), Cambodia (2006), Chile (2004), China (1991 and 1994),
Colombia (2012), Costa Rica (1997 and 2011), Croatia (2001), Czechia (1994 and 2012), Cuba
(2007), Denmark (2005), Dominican Republic (2008), Ecuador (1997, 2015 and 2021), El
Salvador (2002), England (1996), Egypt (1994), Finland (1992), France (2011), Germany (1998),
Ghana (2010), Greece (1999), Guatemala (1995), Honduras (2000), Hong Kong (1997, 2010 and
2021), Hungary (2014 and 2018), India (1996, 2015, 2019 and 2021), Indonesia (1999), Ireland
(1998 and 2010), Italy (2006 and 2021), Japan (2004), Kenya (1995 and 2010), Luxembourg
(2021), Malaysia (2006, 2011 and 2018), Mauritius (2008 and 2013), Mexico (1993 and 2011),
New Zealand (1996, 2007 and 2019), Nicaragua (2005), the Netherlands (1986 and 2015),
North Macedonia (2006), Norway (2004), Panama (1999 and 2013), Paraguay (2002), Peru
(2008 and 2020), Poland (2005 and 2019), Portugal (2012), Qatar (2017), Russia (2016 and
2019), Saudi Arabia (2012 and 2017), Scotland (2010), Singapore (1995, 2012, 2016, 2019 and
2020), South Korea (2009 and 2016), Spain (2003 and 2011), Sweden (1999 and 2019),
Switzerland (2020), Tanzania (2002 and 2020), Thailand (2002), Tunisia (1993), Turkey
(2001), the United Arab Emirates (1992 and 2018), Venezuela (1998) and Vietnam (2011).
Given these (and other enactments), and the even more widespread acceptance of the
New York Convention and ICSID Convention, international arbitration has become a
global mechanism of dispute resolution. As a leading Singaporean jurist has correctly
observed, “arbitration is no longer the preserve of the developed jurisdictions of Europe
and North America.” (964) Rather, international arbitration is a universally-accepted
means of dispute resolution, supported by national and international legal regimes and
preferred by public and private users from all jurisdictions.
Particularly in civil law jurisdictions, early arbitration legislation was often a part or
chapter within the national Code of Civil Procedure. (965) This continues to be the case in
a number of jurisdictions even today. (966) In common law jurisdictions, the tendency was
(and remains) to enact separate legislation dealing specifically with arbitration. (967) The
growing popularity of the UNCITRAL Model Law on International Commercial Arbitration
(968) has made the latter approach of stand-alone arbitration legislation increasingly
common, even in civil law jurisdictions.
As discussed below, in many, (969) but not all, (970) cases, national arbitration statutes
are applicable only to international (and not domestic) arbitrations, or contain separate
parts dealing differently with domestic and international arbitration. This approach has
generally been adopted in order to permit the application of particularly “pro-
arbitration” rules and procedures in the international context, which may not (for
historical or other reasons) be appropriate for purely domestic matters. (971)
Nevertheless, a number of countries have adopted the same legislation for both
domestic and international arbitrations – even then, however, with specific provisions
that treat the two fields differently with regard to particular subjects. (972)
Some commentators have suggested that there is no reason to distinguish between
international and domestic arbitrations. (973) That view may be appropriate in
jurisdictions where domestic arbitration agreements and awards are accorded strong
guarantees of validity and enforceability, and where the parties’ autonomy with regard to
arbitral procedures, arbitrator selection, choice of law and other matters are fully
respected in domestic matters.
In many countries, however, such guarantees do not exist, or are subject to important
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qualifications, in domestic contexts. Moreover, there are particular issues as to which
local traditions or policies may argue for greater restrictions on domestic, rather than on
international arbitration. (974) In these instances, the special characteristics of
international arbitration – aimed at overcoming the unique jurisdictional, choice-of-law
and enforcement uncertainties which exist in international matters, and providing an
internationally-neutral dispute resolution process – fully justify treating it differently
from purely domestic arbitration. (975)
Broadly speaking, there are two categories of national arbitration legislation: statutes
which are supportive of the international arbitral process (increasingly, but not always,
based on the UNCITRAL Model Law) and statutes which are not supportive of the arbitral
process. Both of these types of legislation are discussed below.
[1] Supportive National Arbitration Legislation
Most states in Europe, North America and parts of Asia have adopted legislation that
addresses all of the foregoing issues and provides effective and stable support for the
arbitral process. (976) In many cases, jurisdictions have progressively refined their
national arbitration statutes, adopting either amendments or new legislation to make
their arbitration regimes maximally supportive for the international arbitral process and
attractive to users. (977) Thus, over the past 50 years, virtually every major developed
country has substantially revised or entirely replaced its international arbitration
legislation, in every case, to facilitate the arbitral process and promote the use of
international arbitration. (978)
Paralleling the main features of the New York Convention, the pillars of modern
arbitration statutes are provisions that affirm the capacity and freedom of parties to
enter into valid and binding agreements to arbitrate future commercial disputes, (979)
provide mechanisms for the enforcement of such agreements by national courts (through
orders to stay litigation or to compel arbitration), (980) prescribe procedures for
confirming or annulling arbitral awards (981) and require the recognition and
enforcement of foreign awards. (982) In many cases, national arbitration statutes also
authorize limited judicial assistance to the arbitral process; this assistance can include
removing and selecting arbitrators, enforcing a tribunal’s orders with respect to
evidence-taking or discovery and granting provisional relief in aid of arbitration. (983)
In addition, most modern arbitration legislation affirms the parties’ autonomy to agree
upon arbitral procedures and, sometimes, the applicable substantive law governing the
parties’ dispute, while narrowly limiting the power of national courts to interfere in the
arbitral process, either when arbitral proceedings are pending or in reviewing awards.
(984)
Although generally off the beaten trail, the arbitration legislation of Djibouti is
representative, in its statement of legislative purpose of “giv[ing] the widest effect to the
contractual provisions agreed upon by the parties in regard to the framework of the
arbitration proceedings.” (985) Or, as one distinguished authority put it:
“[One focus of national legislative developments over the past four decades] is
found in the widening of the parties’ autonomy in regulating qualifying aspects
of the arbitration (number and manner of appointment of arbitrators; seat and
language of the arbitration; rules applicable to the proceedings; rules
applicable to the merits of the dispute; and waiver of means of recourse
against the award).” (986)
The central objective of these legislative enactments has been to facilitate international
trade and investment by providing more secure means of dispute resolution. Recognizing
that international transactions are subject to unique legal uncertainties and risks, (987)
states have sought to promote the use of arbitration as a way of mitigating such risks.
(988) Among other things, they have done so through enactment of modern arbitration
statutes, giving effect to the constitutional principles of the New York Convention,
ensuring the validity and enforceability of international arbitration agreements and
awards, and facilitating the autonomy and efficiency of the arbitral process.
A recent Canadian decision captured this attitude, in a representative contemporary
business setting, in well-reasoned terms:
“Access to justice in Canada no longer means access just to the public court
system. Historically, judges were reluctant to relinquish their grasp on dispute
resolution, and they even viewed alternative dispute resolution as antithetical
to the parties’ interests. This era is gone. It is the role of the legislature, not
the courts, to limit access to alternative dispute resolution mechanisms.
Unlike several other provinces, British Columbia has not limited the resolution
of consumer disputes to a single procedural regime. On the contrary, it has left
room for arbitration and allowed arbitrators to exercise broad remedial
powers, subject to the agreement of parties to a dispute. Given the current
structure of consumer protection legislation in British Columbia, submitting a
consumer’s dispute with their mobile phone service provider to arbitration is
entirely consistent with the important public purposes of protecting
consumers, vindicating their rights and promoting access to justice.” (989)
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Additionally, one of the stated objectives of new arbitration legislation during the past
several decades has been to attract international arbitration business. In the words of
one Irish legislator: “The economies of other countries have benefited considerably from
arbitration business and there is no reason why Ireland should not share in those
benefits.” (990) Or, as was asserted in debates on England’s arbitration legislation, a
revised arbitration act would supposedly bring the country $1 billion annually in lawyers’
and arbitrators’ fees. (991)
Some have considered these motivations unseemly or illegitimate. One commentator has
complained that “countries have, without shame, exhibited their desire to attract the
business of arbitration,” (992) while another has observed, with a measure of reproach,
that:
“There has been a scramble among Western European nations to
accommodate their arbitration laws to what they perceive to be the
consumers’ tastes, thereby attracting a greater share of the fees that go to
lawyers and arbitrators at the place of the proceeding.” (993)
The reality appears to be that these legislative reforms have done relatively little to
attract international arbitrations to particular countries. (994) Whatever the case,
however, there is no reason to regard contemporary arbitration legislation with cynicism
or reproach because of such motivations. (995)
Modern international arbitration statutes do good (in addition to hopefully doing well) by
addressing the needs of international business and international trade (“the consumers’
tastes”) and by further enhancing the ability of international arbitration to resolve
commercial disputes efficiently and definitively, without burdening the parties, national
courts, or international commerce with the peculiar uncertainties and difficulties of
transnational disputes. The fact that legislatures evince a natural and commonplace
interest in fostering the local economy, and that local residents and businesses in a
particular jurisdiction will derive professional opportunities and financial gain from
increased use of that jurisdiction as an arbitral seat, in no way alters the benefits that
such legislation produces for international businesses and, more broadly, for the global
economy.
A recent Singaporean decision expressed this attitude, embraced by a number of courts
in developed states around the world, as follows:
“There was a time when arbitration was viewed disdainfully as an inferior
process of justice. Those days are now well behind us. An unequivocal judicial
policy of facilitating and promoting arbitration has firmly taken root in
Singapore. It is now openly acknowledged that arbitration, and other forms of
alternative dispute resolution such as mediation, help to effectively unclog
the arteries of judicial administration as well as offer parties realistic choices
on how they want to resolve their disputes at a pace they are comfortable
with. More fundamentally, the need to respect party autonomy (manifested by
their contractual bargain) in deciding both the method of dispute resolution
(and the procedural rules to be applied) as well as the substantive law to
govern the contract, has been accepted as the cornerstone underlying judicial
non-intervention in arbitration. In essence, a court ought to give effect to the
parties’ contractual choice as to the manner of dispute resolution unless it
offends the law.” (996)
Finally, there is an additional, but deeply-rooted, foundation for contemporary support
for the arbitral process. The right of private parties to resolve their disputes
consensually, by arbitration, instead of by recourse to state courts or administrative
agencies, is related to constitutionally-protected rights of autonomy and association.
(997) The parties’ freedom to elect the manner in which they resolve their disputes is a
basic aspect of individual autonomy and liberty, no different from the freedom to enter
into contracts and other forms of association, which is properly accorded protection in
almost all developed legal systems. (998) Likewise, the parties’ freedom to arbitrate has
been seen, and continues to be seen, as a guarantee against governmental oppression.
(999)
Consistent with this analysis, national courts have characterized the right to arbitrate as
a “fundamental right,” with “constitutional” underpinnings.” (1000) One U.S. court
declared: “The recognized autonomy of parties to enter into an arbitration agreement …
is directly correlated to and stems from the constitutionally protected right of freedom
to contract.” (1001) Similarly, a Québec court reasoned:
“Arbitration is a fundamental right of citizens and an expression of their
contractual freedom. It should not be considered as an attack on the
monopoly of state justice. Rather, arbitration should be perceived as an
alternative means of dispute resolution that, depending on the circumstances,
addresses certain objectives pursued by the parties – e.g., rapidity, peer
review, cost efficiency etc.” (1002)
Courts in other jurisdictions, from widely different legal systems and geographic
58
locations, have similarly recognized the constitutional foundations of the right to
arbitrate. (1003) Investor-state tribunals have recognized similar conceptions of a right to
arbitrate, guaranteed by both national laws and Article II of the New York Convention.
(1004)
These considerations have particular application in international matters, where
commercial parties choose to arbitrate in significant part to obtain neutral, effective
adjudication of their disputes, rather than dispute resolution that is frequently arbitrary,
oppressive, or unreliable. (1005) It is particularly appropriate for states not just to
protect, but to affirmatively encourage and support, parties’ efforts to resolve their
disputes in this manner.
There are by now a large number of supportive national arbitration statutes, in both
developed and less developed jurisdictions. Most, but not all, of these statutes are
modern, in the sense of having been adopted during the last three decades. The following
sections briefly outline the UNCITRAL Model Law and the English, French, Swiss and U.S.
international arbitration frameworks, which provide a selection of differing contemporary
models for supportive arbitral regimes. At the same time, there are substantial
similarities, in many respects, between contemporary international arbitration statutes
in most developed jurisdictions, (1006) all of which represent further steps, beyond the
New York Convention, in establishing today’s “pro-arbitration” legal regime for
[a] UNCITRAL Model Law (1007)
The United Nations Commission on International Trade Law (“UNCITRAL”) Model Law on
International Commercial Arbitration (“UNCITRAL Model Law”) is the single most
important legislative instrument in the field of international commercial arbitration. It
has been adopted in a substantial (and growing) number of jurisdictions and served as a
model for legislation and judicial decisions in many others. (1008) Revisions to the Model
Law (in 2006) sought to enhance its legislative framework, (1009) introducing new features
and providing a representative example of ongoing legislative efforts aimed at improving
the international arbitral process.
The Model Law was initiated by a proposal from the Asian African Legal Consultative
Committee to supplement the New York Convention with a protocol regarding party-
adopted arbitration rules. (1010) The origins of the UNCITRAL Model Law are detailed in a
Report by the UN Secretary-General, titled “Possible Features of a Model Law of
International Commercial Arbitration.” (1011) Among other things, the Report declared
that the “ultimate goal of a Model Law would be to facilitate international commercial
arbitration and to ensure its proper functioning and recognition.” (1012)
The Secretary-General’s Report also identified a number of “defects” in national laws,
which the New York Convention had sought to remedy, but which persisted in national
legal systems:
“To give only a few examples, such provisions may relate to, and be deemed to
unduly restrict, the freedom of parties to submit future disputes to
arbitration, or the selection and appointment of arbitrators, or the
competence of the arbitral tribunal to decide on its own competence or to
conduct the proceedings as deemed appropriate taking into account the
parties’ wishes. Other such restrictions may relate to the choice of the
applicable law, both the law governing the arbitral procedure and the one
applicable to the substance of the dispute. Supervision and control by courts
is another important feature not always welcomed by parties especially if
exerted on the merits of the case.” (1013)
The Report was the basis for extensive consultations and debates involving states, the
international business and arbitration communities (e.g., International Council for
Commercial Arbitration; ICC International Court of Arbitration), and regional
organizations (e.g., Asian-African Legal Consultative Committee). (1014) These discussions
ultimately produced the current draft of the Model Law, which UNCITRAL approved in a
resolution adopted in 1985. (1015) The Model Law was approved by a U.N. General
Assembly resolution later the same year. (1016)
The Model Law was designed to be implemented by national legislatures, with the
objective of further harmonizing the treatment of international commercial arbitration in
different countries. The Law consists of 36 articles, which deal relatively comprehensively
with the issues that arise in national courts in connection with international arbitration.
Among other things, the law contains provisions concerning the validity and enforcement
of arbitration agreements (Articles 7-9), appointment and removal of arbitrators (Articles
10-15), jurisdiction of arbitrators (Article 16), provisional measures (Article 17), conduct of
the arbitral proceedings, including language, seat and procedures (Articles 18-26),
evidence-taking and discovery (Article 27), applicable substantive law (Article 28),
arbitral awards (Articles 29-33), setting aside or annulling awards (Article 34), and
recognition and enforcement of foreign awards, including bases for non-recognition
(Articles 35-36).
Under the Model Law, written international arbitration agreements are presumptively
59
valid and enforceable, subject to limited, specified exceptions. (1017) Article 8 of the Law
provides for the presumptive validity of international arbitration agreements and the
enforcement of valid arbitration agreements, regardless of the arbitral seat, by way of a
dismissal or stay of national court litigation. (1018) The Model Law also adopts the
separability presumption, (1019) and expressly grants arbitrators the authority
(competence-competence) to consider and decide their own jurisdiction. (1020) (As
discussed below, however, it is not entirely clear what approach the Model Law takes to
the allocation of competence to resolve jurisdictional disputes, and in particular whether
interlocutory judicial review of jurisdictional objections is on a prima facie or a final
basis. (1021) )
The Model Law expressly prescribes a principle of judicial nonintervention in the arbitral
proceeding. (1022) It also affirms the parties’ autonomy (subject to specified due process
limits) with regard to the arbitral procedures (1023) and, absent agreement between the
parties, the tribunal’s authority to prescribe such procedures. (1024) The basic approach
of the UNCITRAL Model Law to the arbitral proceedings is to define a basic set of
procedural rules which – subject to a very limited number of fundamental mandatory
principles of fairness, due process and equality of treatment (1025) – the parties are free
to alter by agreement. (1026) The Model Law also provides for judicial assistance to the
arbitral process in prescribed respects, including provisional measures, constitution of a
tribunal and evidence-taking. (1027)
The Model Law mandates the presumptive validity of arbitral awards, subject to a
limited, exclusive list of grounds for annulment of awards; these grounds precisely
parallel those available under the New York Convention for non-recognition of a foreign
award (i.e., lack or excess of jurisdiction, noncompliance with arbitration agreement, due
process violations, public policy, nonarbitrability). (1028) The Model Law also requires
the recognition and enforcement of foreign awards (made both within and outside the
recognition forum), again on terms virtually identical to those prescribed in the New York
Convention. (1029)
During the 37 years since the Model Law’s adoption (in 1985), significant developments
have occurred in the field of international commercial arbitration. In 1999, the UNCITRAL
Secretariat identified thirteen areas for study and potential modification of the Model
Law. (1030) This list was culled and eventually produced proposals for amendments to
the Model Law concerning interim measures and the written form requirements for
arbitration agreements. (1031)
In 2006, UNCITRAL adopted a limited number of amendments to the Model Law. (1032)
The principal revisions were made to Article 2 (the addition of general interpretative
principles), (1033) Article 7 (the definition and written form of an arbitration agreement),
(1034) Article 17 (the availability of and standards for provisional measures from
international arbitral tribunals and national courts) (1035) and Article 35 (procedures for
recognition of awards). (1036)
The 2006 Revisions of the Model Law make useful improvements (for the most part) to the
original text, (1037) utilizing a drafting style that sits uneasily in the original Model Law’s
relatively concise, elegant text. (1038) The most important accomplishment of the
Revisions is their tangible evidence of the ongoing process by which states and business
representatives seek to improve the international legal regime for the arbitral process.
Several states have revised their local adaptations of the Model Law to reflect its 2006
Revisions. (1039)
The Model Law and its revisions represent a significant further step, beyond the New York
Convention, towards the development of a predictable “pro-arbitration” legal framework
for commercial arbitration. Like the New York Convention, the Model Law’s efficacy is
ultimately dependent upon its interpretation and application by national courts. But the
Model Law goes beyond the Convention by prescribing in significantly greater detail the
legal framework for international arbitration, by clarifying points of ambiguity or
disagreement under the Convention, (1040) and by establishing directly applicable
national legislation. (1041) At least as important, the Model Law has set the agenda for
reform of arbitration statutes, even in states (like England and Switzerland) where it has
not been adopted.
One of the central objectives of the UNCITRAL Model Law was to further encourage the
uniform treatment of international commercial arbitration in national courts, beyond
that provided by the New York Convention. In the words of the UNCITRAL Secretariat,
“[o]ne of UNCITRAL’s aims through the Model Law was to reduce the divergences which
might result from each State’s interpretation of its obligations under the New York
Convention.” (1042) At the same time, the Model Law’s uniform international terms and
format were calculated to be accessible to parties from diverse jurisdictions.
Additionally, the Model Law drew on the experience of a wide range of jurisdictions and
authorities, in the UNCITRAL working groups and otherwise, permitting an instrument that
reflected a substantial body of international experience and expertise.
As of April 2022, 118 jurisdictions have adopted legislation based on the Model Law,
including Australia, Bahrain, Bermuda, British Virgin Islands, Brunei, Bulgaria, Canada,
Costa Rica, Cyprus, Denmark, Dominican Republic, Fiji, Germany, Georgia, Hong Kong,
India, Ireland, Japan, Malaysia, Mauritius, Mexico, Montenegro, New Zealand, Nigeria,
60
Norway, Peru, the Russian Federation, Scotland, Singapore, Spain, Sweden, Tunisia,
Turkey and various U.S., Australian and Canadian sub-national jurisdictions. (1043) Other
nations are considering its adoption.
The continuing increase in the number of jurisdictions adopting legislation based on the
Model Law is illustrated in the following chart:
Number of jurisdictions that have adopted the UNCITRAL Model Law (1986-2021)
The German Ministry of Justice explained some of the reasons for adopting the UNCITRAL
Model Law, during Germany’s enactment of legislation derived predominantly from the
Model Law:
“If we want to reach the goal that Germany will be selected more frequently as
the seat of international arbitrations in the future, we have to provide foreign
parties with a law that, by its outer appearance and by its contents, is in line
with the framework of the Model Law that is so familiar all over the world. This
is necessary, in particular, in view of the fact that in negotiating international
contracts, usually not much time is spent on the drafting of the arbitration
agreement. The purpose of the Model Law, to make a significant contribution
to the unification of the law of international arbitration, can only be met if one
is willing to prefer the goal of unification instead of a purely domestic
approach when it comes to the question of the necessity and the scope as well
as to the determination of the contents of individual rules.” (1044)
These objectives – accessibility, international uniformity and a tested structure – have
been cited in other jurisdictions. For example, the Hong Kong Law Reform Commission
concluded that “the Model Law … has the advantage of making [Hong Kong] law
internationally recognizable and accessible” and
“[the] primary reason for recommending the adoption of the Model Law … is
the need to make knowledge of our legal rules for international commercial
arbitration more accessible to the international community … We are
convinced that it is much better [to avoid changes than] trying to improve
what is already the result of many years work by an international group of
experts.” (1045)
That said, it is noteworthy that the world’s leading international arbitration centers have
generally not adopted the UNCITRAL Model Law. That is true, in particular, of France,
Switzerland, England, the United States, the Netherlands, Belgium and Sweden. (1046) In
each of these jurisdictions, legislatures (and arbitration practitioners) have extensively
debated the advisability of adopting the Model Law, but decided in favor of alternative
solutions. Equally, at least some distinguished practitioners consider the Model Law to
be a conservative, overly-detailed basis for national arbitration legislation. (1047)
Nonetheless, the Model Law’s contributions to the international arbitral process are
enormous and it remains, appropriately, the dominant “model” for national legislation
dealing with international commercial arbitration.
Importantly, decisions by courts in jurisdictions that have adopted the Model Law are
beginning to produce a reasonably uniform international body of precedent concerning
its meaning and application. (1048) There are a variety of collections of these decisions,
including UNCITRAL’s 2012 Digest of Cases, (1049) UNCITRAL’s “CLOUT” database (1050) and
the McGill Model Arbitration Law Database. (1051) It is safe to say that the importance of
the Model Law to international commercial arbitration will only increase in the future, as
national court decisions in Model Law jurisdictions contribute to a more comprehensive
and detailed body of precedent in the field.
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Also, importantly, decisions in jurisdictions that have adopted the UNCITRAL Model Law
have emphasized the close relationship between the Model Law and the New York
Convention, with authorities under one instrument informing decisions under the other.
As one court reasoned:
“The origin of some of [the Model Law’s] key provisions, including Arts 35 and
36, may be traced to provisions of the [New York Convention] … Those
considerations of international origin and international application make
imperative that the Model Law be construed without any assumptions that it
embodies common law concepts or that it will apply only to arbitral awards or
arbitration agreements that are governed by common law principles. The first
of those considerations makes equally imperative that so much of the text of
the Model Law as has its origin in the New York Convention be construed in the
context, and in the light of the object and purpose, of the New York
Convention.” (1052)
These developments are of particular importance given the constitutional character of
the Convention (discussed above (1053) ), which foresees and requires decisions by
national courts to give effect to the broad terms of the Contracting States under Articles
II, III and V.
It is theoretically possible for parties to “opt-out” of the coverage of the Model Law,
although this virtually never occurs in practice. In one of the few instances that this has
occurred, a court in a Model Law jurisdiction held that only express agreements excluding
application of the Model Law will have the effect of opting-out of the legislation’s
coverage. (1054)
[b] France (1055)
France is one of the leading centers for international commercial arbitration in Europe
and, indeed, the world. More international arbitrations are reportedly seated in France
than any other European jurisdiction, (1056) and French arbitration legislation and
judicial decisions have exceptional international importance. (1057)
International arbitration in France is governed by the French Code of Civil Procedure,
principally as adopted in decrees promulgated on 14 May 1980, 12 May 1981 and 13
January 2011. These three decrees added (or revised) Articles 1442-1527 to the French
Code of Civil Procedure. (1058) Articles 1442 to 1503 of the current Code of Civil Procedure
apply to domestic arbitrations, while Articles 1504 to 1527 apply to “international”
arbitrations. (1059) Certain provisions applicable to domestic arbitration apply by
analogy to international arbitrations, unless specifically agreed otherwise by the parties
(and subject to the specific rules applicable to international arbitrations set forth in
Articles 1504 to 1527 of the French Code of Civil Procedure). (1060)
The provisions of the Code of Civil Procedure have produced a strongly pro-arbitration
legal framework for international commercial arbitration. (1061) That regime has been
materially assisted by the French judiciary and academic community (particularly
Professors Berthold Goldman, Philippe Fouchard, Pierre Mayer, Emmanuel Gaillard and
others). For the past three decades, both French courts and academics have interpreted
French legislation, and developed non-statutory doctrine, in a manner which has been
highly supportive of the international arbitral process. (1062) This pro-arbitration
approach was further enhanced by the revision of the French arbitration regime by the
decree dated 13 January 2011. (1063)
French law emphatically recognizes the autonomy (or separability) doctrine, (1064) and
provides for the presumptive validity and enforceability of arbitration agreements.
(1065) As one classic French decision held:
“by virtue of a substantive rule of international arbitration, the arbitration
agreement is legally independent of the main contract containing or referring
to it, and the existence and effectiveness of the arbitration agreement are to
be assessed, subject to the mandatory rules of French law and international
public policy, on the basis of the parties’ common intention, there being no
need to refer to any national law.” (1066)
French law also expressly grants arbitrators the power (competence-competence) to
decide challenges to their jurisdiction. (1067) Further, if claims which are allegedly
subject to an arbitration agreement are brought before the French courts, the Code of
Civil Procedure provides for dismissal of the judicial proceedings, except if the arbitral
tribunal has not yet been constituted and if the arbitration agreement is “manifestly null
or manifestly inapplicable.” (1068)
With regard to the law applicable to the arbitration agreement, French courts have
developed a relatively unusual doctrine that arbitration agreements are autonomous,
subject to specific principles of international law, rather than to national law. (1069) The
nonarbitrability doctrine has not been invoked to any significant extent by French courts,
except in labor and consumer matters. (1070) In contrast to a number of developed
jurisdictions, French courts do not appear to have developed “pro-arbitration” rules of
interpretation of arbitration agreements. (1071)
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French courts generally afford the parties to an arbitration agreement substantial
autonomy with respect to choice of law, procedural rules, selection of arbitrators and the
like. (1072) In particular, French law expressly provides that arbitrators sitting in France
are generally not bound by local rules of civil procedure applicable in French courts, and
have very wide discretion in adopting arbitral procedures. (1073) French law also confers
the power to the arbitral tribunal – once it is constituted – to order any provisional or
conservatory measures that it deems appropriate. (1074)
The Code of Civil Procedure also grants French courts the power to assist in constituting
an arbitral tribunal, acting in the capacity of juge d’appui (“supporting judge”), (1075) and
to issue specified court-ordered provisional measures in aid of arbitration. (1076) The
efficacy of France’s arbitration legislation is materially advanced through its
centralization of most international arbitration-related judicial proceedings in the
Tribunal de Grande Instance in Paris, which has developed substantial expertise in the
field. (1077) This is a significant institutional advance, which could usefully be adopted in
other jurisdictions.
The 2011 decree also reformed French law relating to recognition and enforcement of
international arbitral awards. Among other things, the Code of Civil Procedure permits
actions in French courts to annul international arbitral awards made in France, on limited
grounds (substantially similar to, and sometimes more liberal than, those provided for
non-recognition in the New York Convention). (1078) The Code of Civil Procedure also
provides for the recognition and enforcement of international arbitral awards on the
same grounds. (1079)
[c] Switzerland (1080)
Like France, Switzerland is one of Europe’s, and the world’s, leading centers for
international commercial arbitration. (1081) Its arbitration legislation, and academic
community, have also been at the forefront of developments in the field of international
arbitration over the past century. (1082) International arbitration in Switzerland is
governed primarily by Chapter 12 of the federal Swiss Law on Private International Law,
which entered into effect in 1989. These statutory provisions were significantly influenced
by proposals and reviews of a committee of leading Swiss arbitration practitioners and
academics. (1083) Legislative proposals for revision of the Swiss arbitration legislation
have been advanced, prompting a review of the legislation. (1084)
The Swiss Government published a draft bill with proposed amendments on 11 January
2017 and released an updated draft bill in October 2018. On 19 June 2020, the Swiss
Parliament enacted the draft bill. The revised version of Chapter 12 of the Swiss Law on
Private International Law entered into force on 1 January 2021. (1085) The modest
revisions were aimed at modernizing and clarifying the provisions of Chapter 12,
including by codifying a number of decisions of the Swiss Federal Tribunal. For instance,
the revised Article 176(1) clarifies the scope of application of Chapter 12, providing that
Chapter 12 will apply if at least one of the parties to a dispute has its domicile outside of
Switzerland at the time when the arbitration agreement was concluded. Revised Chapter
12 also contains new provisions on the appointment, challenge and removal of
arbitrators. (1086) Furthermore, parties are now allowed to file submissions in
international arbitration matters to the Swiss Federal Tribunal in English. (1087)
The previous version of the Swiss Law on Private International Law replaced, insofar as
international arbitration is concerned, the Swiss Inter-Cantonal Concordat. (1088) The
previous version of Swiss Law on Private International Law’s arbitration chapter was
noteworthy for its brevity, comprising only 19 articles, drafted in brief, declarative terms.
(1089) The revised version has been expanded to 24 provisions, but its conciseness and
key features have remained largely unchanged.
Under the Swiss Law on Private International Law, international arbitration agreements
are readily and effectively enforced. The Law expressly recognizes the separability
doctrine (1090) and prescribes a specialized “pro-arbitration” choice-of-law regime,
pursuant to which international arbitration agreements, providing for arbitration in
Switzerland, are substantively valid provided they conform to either (a) the law chosen
by the parties (where the parties have made a specific choice of law governing the
arbitration agreement); (b) the law applicable to the dispute (in particular, that
applicable to the principal contract); or (c) Swiss law. (1091)
The Swiss Law on Private International Law also expressly confirms the arbitrators’
competence-competence, while generally permitting arbitral tribunals in Swiss-seated
arbitrations to resolve jurisdictional challenges in the first instance. (1092) Swiss law also
provides for the arbitrability of a wide range of disputes (1093) and the Swiss Federal
Tribunal has adopted a relatively expansive “pro-arbitration” rule of interpretation of the
scope of international arbitration agreements. (1094) Where claims subject to an
arbitration agreement are asserted in Swiss courts, the parties’ arbitration agreement
will be given effect by dismissing judicial proceedings. (1095)
Under the Swiss Law on Private International Law, the parties’ freedom to agree upon the
applicable procedural and substantive law is expressly recognized. (1096) Judicial
interference by Swiss courts in the arbitral process (other than regarding the availability
of provisional measures and evidence-taking in aid of a tribunal) is narrowly limited.
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(1097) The supportive role of the Swiss courts was enhanced in the revised Chapter 12,
which aims to make the assistance of the Swiss courts more widely available to parties
and arbitral tribunals seated in Switzerland or abroad. (1098) It allows the parties
themselves to directly seek assistance from the Swiss courts. (1099) While the previous
version of Chapter 12 only allowed arbitral tribunals seated in Switzerland to seek direct
assistance from the courts, the new provisions empower both arbitral tribunals and
parties to arbitral proceedings seated outside of Switzerland to seek direct assistance
from Swiss courts. (1100)
As to awards made in Switzerland, actions to annul are limited to grounds generally
paralleling those in the New York Convention. (1101) Parties can agree to exclude even
this review of international awards, provided that none of the parties are domiciled in
Switzerland. (1102) The revised version of Chapter 12 codifies decisions of the Swiss
Federal Tribunal, by introducing additional remedies of review, correction,
interpretation, amendment and revision of arbitral awards. (1103) Swiss courts will
recognize and enforce foreign awards without substantial judicial review, subject only to
the provisions of the New York Convention. (1104) As in France, many judicial functions
relating to international arbitration are centralized, with the Swiss Federal Tribunal
generally having original jurisdiction in annulment actions. (1105)
[d] England (1106)
England is a significant center for international commercial arbitration. (1107) The
continuing spread of English as the language of international business, and the
development of London as an international financial and business center, augur for
continued growth in England’s importance as an arbitral center.
Both international and domestic arbitrations seated in England, Wales, or Northern
Ireland are governed by the English Arbitration Act, 1996, which provides a detailed (110
separate sections) statement of English arbitration law. (1108) The Act is based roughly on
the UNCITRAL Model Law, while introducing a number of formal and substantive
innovations. (1109) The Act departed from the historic common law approach towards
arbitration legislation (e.g., addressing isolated issues, often in response to judicial
decisions (1110) ), in favor of greater codification (derived in part from the Model Law).
(1111) Indeed, the Act has produced the somewhat anomalous result that the cradle of
common law jurisprudence now boasts a substantially longer, more detailed statutory
treatment of international arbitration law than any civil law jurisdiction (and,
specifically, France and Switzerland, whose arbitration statutes are exceptional for their
brevity (1112) ).
The English Arbitration Act, 1996, was preceded in the 20th century by three other major
pieces of arbitration legislation, enacted in 1950, 1975 and 1979. (1113) The 1950 and 1975
Acts established a highly-regulated legal regime for arbitration in England, with
substantial scope for judicial involvement in the arbitral process and review of arbitral
awards. (1114) In particular, English legislation prior to 1979 provided for a widely-
criticized “case stated” procedure, which had granted parties to arbitrations seated in
England a mandatory right of access to the English courts to review de novo issues of
English law that arose in the course of arbitral proceedings (without the possibility of
exclusion agreements to contract out of such review). (1115) The Arbitration Act, 1979,
revised this historic approach and established a more acceptable, if by no means ideal,
regime for international arbitrations in England. (1116)
Under the Arbitration Act, 1979, agreements to arbitrate were presumptively enforceable
in England, including by means of a stay of national court litigation, and English courts
imposed few “nonarbitrability” constraints. Moreover, although not formally accepting
the “separability” doctrine, English courts did not in fact permit challenges to the parties’
underlying contract to interfere unduly with the arbitral process. (1117) The 1979 Act
amended, but did not eliminate, the historic “case stated” procedure: the Act permitted
parties to enter into exclusion agreements, which waived the right to judicial review of
the merits of the arbitrators’ award (save for cases involving shipping, commodities and
insurance). (1118) Where no such exclusion agreement existed, more demanding judicial
review persisted, (1119) which was the cause for continuing criticism in many quarters.
(1120)
In response to these (and other) criticisms, the English Arbitration Act, 1996, was adopted,
following an extensive consultation process with both English and foreign sources. (1121)
The Act was intended to – and did – significantly improve the legislative framework for
international arbitration in England. The Act compiled all prior English legislative
provisions relating to arbitration into a single statute, based in large part on the
UNCITRAL Model Law, and introduced a modern “pro-arbitration” legislative regime for
international arbitration in England. (1122)
The 1996 Act provides expressly for the validity of written (and some other) arbitration
agreements (as to both existing and future disputes) and for the stay of English court
proceedings concerning claims subject to valid arbitration agreements. (1123) The Act
also provides for the separability of arbitration agreements, (1124) and for recognition of
the arbitral tribunal’s competence-competence to rule on its own jurisdiction. (1125)
English judicial decisions have interpreted the competence-competence doctrine
broadly, and adopted a robust “pro-arbitration” approach to the interpretation of
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international arbitration clauses. (1126) The Act does not address the subject of
nonarbitrable disputes or claims, but English courts have generally adopted a narrow
view of the doctrine. (1127)
The 1996 Act contains a number of provisions granting arbitrators broad freedom in
conducting arbitral proceedings, with a minimum of judicial interference. (1128) This
freedom includes wide authorization with respect to procedural and evidentiary matters,
(1129) appointment of experts, (1130) ordering the payment of security for the costs of the
arbitration (1131) and granting conservatory or provisional measures. (1132) Among other
things, it is now clear that arbitrators conducting arbitral proceedings seated in England
are not obliged to apply local rules of English civil procedure or evidence. (1133) The Act
also provides for English judicial assistance to arbitrations seated in England, including
in taking evidence, (1134) appointing or removing arbitrators (1135) and granting
provisional measures in aid of arbitration. (1136)
The changes introduced by the 1996 Act with regard to the arbitral procedures were
described in Lesotho Highlands Development Authority v. Impregilo SpA, where the House
of Lords quoted with approval the remarks of Lord Wilberforce during the legislative
process:
“I have never taken the view that arbitration is a kind of annex, appendix or
poor relation to court proceedings. I have always wished to see arbitration, as
far as possible, and subject to statutory guidelines no doubt, regarded as a
freestanding system, free to settle its own procedure and free to develop its
own substantive law – yes, its substantive law. I have always hoped to see
arbitration law moving in that direction. That is not the position generally
which has been taken by English law, which adopts a broadly supervisory
attitude, giving substantial powers to the court of correction and otherwise. …
Other countries adopt a different attitude and so does the UNCITRAL Model
Law. The difference between our system and that of others has been and is, I
believe, quite a substantial deterrent to people to sending arbitrations here.
… How then does this Bill stand in that respect? … I find that on the whole,
although not going quite as far as I should personally like, it has moved very
substantially in this direction. It has given to the court only those essential
powers which I believe the court should have; that is, rendering assistance
when the arbitrators cannot act in the way of enforcement or procedural steps,
or, alternatively, in the direction of correcting very fundamental errors.” (1137)
With respect to awards made in England, the Act departs entirely from the historic “case
stated” procedure and provides only limited grounds for annulling international arbitral
awards made in England. The Act’s grounds for annulling awards are now limited to lack
of substantive jurisdiction of the tribunal, limited categories of “serious irregularity” in
procedural matters and limited appeals on points of law. (1138) Appeals on legal issues
may only be brought with leave of the court and may be excluded by agreement between
the parties; (1139) English courts have held that appeal for error of law is impliedly
excluded where the parties have chosen a substantive applicable law other than English
law or where the parties have chosen a set of institutional rules, such as the ICC Rules,
which excludes the right of appeal to the extent possible. (1140) The Act also provides for
the recognition and enforcement of foreign arbitral awards, primarily by incorporating
the provisions of the New York Convention. (1141)
On 30 November 2021, the U.K. Law Commission announced that it will conduct a review
of the Act. (1142) The Law Commission listed broad areas of potential focus, including the
procedure for challenging a jurisdictional award and the availability of appeals on points
of law. (1143) The Law Commission aims to ensure that the Act is as modern, efficient and
clear as possible and plans to publish a consultation paper by the end of 2022. (1144)
[e] United States of America (1145)
The United States is an important center for international arbitration (1146) and U.S.
companies are even more important participants in the international arbitral process.
(1147) Despite general concerns about the U.S. legal system (focused on jury trials,
discovery, punitive damages and delays), the United States has become increasingly
popular as an international arbitral seat over the past three decades. (1148)
International arbitration in the United States is governed by an outwardly complex, but
generally adequate, legal framework. Most important issues relating to international
arbitration agreements and arbitral awards are governed primarily by U.S. federal
(rather than state) law. In particular, the “Federal Arbitration Act” (or “FAA”) sets forth a
basic statutory regime for arbitration, with separate chapters for both domestic
arbitration (Chapter 1) and international arbitrations subject to the New York and Inter-
American Conventions (Chapters 2 and 3). (1149) The FAA has the distinction – and burden
– of being one of the oldest surviving arbitration statutes in any major jurisdiction. (1150)
Additionally, although limited, the role of state law in the enforcement of international
arbitration agreements is occasionally important. (1151)
[i] Unenforceability of Arbitration Agreements Under U.S. Law in 19th Century
As discussed above, for the better part of the 19th century, many U.S. courts were hostile
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towards agreements to arbitrate future disputes, developing and applying discriminatory
rules that frequently rendered such agreements unenforceable. Even more so than
English courts (where legislative reforms had intervened), many U.S. judges refused to
grant specific enforcement of arbitration agreements, and permitted their revocation at
any time. (1152) This grudging approach towards arbitration agreements reflected a
variety of factors, including concern about private agreements “ousting” the courts of
jurisdiction, skepticism about the adequacy and fairness of the arbitral process and
suspicions that arbitration agreements were often the product of unequal bargaining
power. (1153)
As discussed above, these attitudes began to shift during the late 19th century,
particularly in some U.S. state court decisions. (1154) Following sustained lobbying from
the business community, New York enacted an arbitration statute in 1920 designed to
reverse common law discrimination against arbitration and to render arbitration
agreements enforceable in New York courts. (1155) The New York statute provided a
model for what became federal legislation dealing with arbitration – the Federal
Arbitration Act, originally titled the “United States Arbitration Act.” (1156)
The FAA was strongly supported by the U.S. business community, which saw litigation in
American courts as expensive, slow and unreliable: (1157) “The clogging of our courts is
such that the delays amount to a virtual denial of justice,” (1158) and the proposed FAA
was intended to “enable business men to settle their disputes expeditiously and
economically.” (1159) With no opposition or amendment, the bill that became the FAA was
unanimously adopted in 1925 by both the House of Representatives and the Senate.
(1160)
The Act’s stated purpose was to reverse the hostility which U.S. courts had developed
towards arbitration agreements in commercial matters, and in particular the
discriminatory common law rules that arbitration agreements were revocable or
unenforceable as contrary to public policy. (1161) According to the FAA’s legislative
history:
“The need for the law arises from an anachronism of our American law. Some
centuries ago, because of the jealousy of the English courts for their own
jurisdiction, they refused to enforce specific agreements to arbitrate upon the
ground that the courts were thereby ousted from their jurisdiction. This
jealousy survived for so long a period that the principle became firmly
embedded in the English common law and was adopted with it by the
American courts. The courts have felt that the precedent was too strongly fixed
to be overturned without a legislative enactment.” (1162)
This historical description was not entirely accurate, omitting to note that English law
had in fact developed reasonably effective mechanisms for enforcing arbitration
agreements, while many American courts (and legislatures) had failed to do so. (1163)
Nevertheless, this explanation captured one of the key statutory objectives of the FAA:
“the fundamental conception underlying the law is to make arbitration agreements valid,
irrevocable, and enforceable.” (1164)
[ii] Federal Arbitration Act: Chapter One
As noted above, the FAA currently consists of three chapters: (a) the “domestic” FAA, 9
U.S.C. §§1-16, enacted in 1925 and applicable to agreements and awards affecting either
inter-state or foreign commerce; (1165) (b) the New York Convention’s implementing
legislation, 9 U.S.C. §§201-208, enacted in 1970 and applicable only to awards and
agreements falling within the Convention; (1166) and (c) the Inter-American Convention’s
implementing legislation, 9 U.S.C. §§301-307, enacted in 1990 and applicable only to
awards and agreements falling under the Inter-American Convention. (1167)
The FAA is remarkably brief and, by contemporary standards, relatively skeletal; among
other things, it omits provisions on numerous topics addressed in most contemporary
arbitration legislation in other developed jurisdictions. Also, the Act contains no or only
the most rudimentary provisions regarding the constitution of the arbitral tribunal,
conduct of the arbitral proceedings, provisional measures, applicable law, costs and
form of award.
In true common law fashion, however, U.S. courts have developed an extensive body of
judicial authority which, while sometimes inconsistent and often not readily accessible to
non-U.S. parties or practitioners, provides a reasonably effective legal regime for
international arbitrations. Most observers would agree, however, that the regime for
international arbitration in the United States would be materially improved by
enactment of the UNCITRAL Model Law or comparable contemporary international
arbitration legislation. (1168)
The centerpiece of the domestic FAA is §2, which provides that arbitration agreements
involving inter-state and foreign commerce (1169) “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” (1170) In turn, §§3 and 4 of the Act provide the principal mechanisms for
enforcing §2’s general rule that arbitration agreements are presumptively valid. Section 3
requires “any court of the United States” to stay proceedings before it, if they involve
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issues that are “referable to arbitration,” while §4 requires “United States district
court[s]” to issue orders compelling arbitration of such issues. (1171)
Other sections of the FAA address limited aspects of the arbitral process. Section 5 grants
district courts the power to appoint arbitrators if the parties either have not done so or
have agreed upon an appointment procedure which proves unworkable. (1172) Section 7
of the Act authorizes the issuance of “subpoenas” (orders to provide evidence) by arbitral
tribunals, and permits U.S. district courts to issue compulsory process to assist tribunals
in taking evidence. (1173) In turn, §§9, 10 and 11 of the FAA provide that arbitral awards
may be confirmed as U.S. judgments, subject to only a limited number of enumerated
exceptions. (1174) These sections also set forth procedures for confirming, vacating, or
correcting awards subject to the Act. (1175)
It is notable how many subjects are not directly addressed by the FAA. The statute does
not expressly deal with such matters as the separability presumption, the allocation of
competence between U.S. courts and arbitrators to resolve disputes over arbitration
agreements (competence-competence), challenging and removing arbitrators,
provisional relief, the conduct of arbitral proceedings, interlocutory judicial review,
choice of law, form of the award and costs. Notable also is the relative brevity of the FAA
on most of the issues which it does address, such as the grounds and procedures for
challenging either arbitration agreements or awards. (1176)
As discussed below, most international arbitration agreements and arbitral awards are
subject to either the New York Convention or Inter-American Convention, and, as a
consequence, either Chapter 2 or 3 of the U.S. FAA. (1177) Nonetheless, there are
exceptions, where neither Convention applies to an international arbitration agreement
or arbitral award. (1178) In the relatively unusual cases where non-Convention agreements
or awards are at issue in U.S. courts, the better view is that Chapter 1 of the FAA (which
applies to foreign, as well as interstate, commerce) is applicable. (1179)
[iii] U.S. Ratification of New York Convention (1180)
Following the 1958 New York Conference, and the opening of the New York Convention for
signature, the U.S. delegation to the New York Conference initially recommended against
U.S. ratification of the treaty, asserting that this was necessary to avoid potential
conflicts between the Convention and existing U.S. law. (1181) That recommendation was
followed for the next decade, with the United States taking no steps to ratify the
Convention, notwithstanding the accessions of a number of other major trading states.
(1182)
The position of the United States “changed as the nation’s transnational commerce
increased.” (1183) On 10 June 1968, exactly ten years after the Convention was opened for
signature, President Johnson signed the Convention and submitted it to the Senate for
advice and consent. (1184) U.S. international businesses and the legal profession strongly
supported U.S. ratification, emphasizing the importance of international arbitration to
cross-border trade and investment. (1185) Virtually no opposition was recorded to the
Convention, including from the Department of State, which previously opposed U.S.
accession. (1186) In addition to supporting ratification of the Convention, the
Departments of State and Justice also recommended federal implementing legislation to
ensure effective application of the Convention in U.S. courts. (1187)
After receiving the Senate’s consent – by a vote of 57-0 – President Nixon ratified the
Convention on behalf of the United States in 1970. (1188) At the same time, Congress
enacted Chapter 2 of the FAA, which, as discussed below, added eight sections to the Act
addressing various procedural aspects of the Convention’s application in U.S. federal
courts. (1189) The new provisions of Chapter 2 included sections on federal subject matter
jurisdiction, venue, removal, injunctive authority and similar ancillary matters. (1190)
Chapter 2 supplemented the original FAA, enacted in 1925, which addressed, in a skeletal
and relatively archaic fashion, the enforcement of domestic and some international
arbitration agreements and awards. (1191) After the enactment of Chapter 2 of the FAA,
the instrument of the accession of the United States to the Convention was filed with the
United Nations on 30 September 1970, and the Convention entered into force for the
United States on 29 December 1970. (1192)
[iv] Federal Arbitration Act: Chapter Two
As discussed above, the United States did not ratify the New York Convention for more
than a decade after its signing (from which the United States abstained). (1193)
Contemporaneously with U.S. ratification of the Convention in 1970, Congress enacted
amendments to the FAA, in a second chapter to the Act, implementing the Convention.
(1194) In ratifying the New York Convention, Congress was motivated (as with the domestic
FAA in 1925) by a desire for more efficient dispute resolution:
“It is important to note that arbitration is generally a less costly method of
resolving disputes than is full-scale litigation in the courts. To the extent that
arbitration agreements avoid litigation in the courts, they produce savings not
only with the parties to the agreement but also for the taxpayers – who must
bear the burden for maintaining our court system.” (1195)
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In addition, Congress sought to facilitate the development of a stable and effective
system of international commercial dispute resolution, on which U.S. businesses
expanding into global markets could rely, in order to promote international trade and
investment. (1196)
Like the original domestic Act, the FAA’s second chapter is remarkably brief. It provides
generally that “the [New York] Convention shall be enforced in the United States courts in
accordance with this Chapter.” (1197) The Chapter rests on the premise that, pursuant to
Article II of the Convention, international arbitration agreements are presumptively valid
and enforceable, and sets forth provisions addressing ancillary matters of venue, federal
subject matter jurisdiction and the authority of U.S. courts to compel arbitration
pursuant to such agreements (including in foreign arbitral seats). (1198) Chapter 2 of the
Act also provides for the recognition and enforcement of awards that are subject to the
Convention, providing that U.S. courts shall recognize awards that are subject to the
Convention, unless they find “one of the grounds for refusal or deferral of recognition or
enforcement of the award specified in the Convention. (1199) Chapter 2 of the FAA also
grants U.S. federal courts broad jurisdiction, including by “removal” from state courts,
over actions arising under the Convention (for the purpose of ensuring uniform and
effective enforcement of the Convention in U.S. courts). (1200)
[v] Federal Arbitration Act: Chapter Three
In 1990, the United States enacted implementing legislation for the Inter-American
Convention, codified as a third chapter to the FAA. (1201) The chapter incorporates much
of the New York Convention’s implementing legislation by reference, (1202) adding
additional provisions to deal with the Inter-American Commercial Arbitration
Commission’s rules (1203) and the relationship between the New York and Inter-American
Conventions. (1204) Like the domestic FAA, at the heart of Chapter 3 are provisions
requiring the enforcement of specified arbitration agreements and awards, together with
very briefly-described procedures for doing so. (1205)
[vi] Federal Arbitration Act: Overlapping Provisions
There is considerable “overlap” among the various sources of U.S. federal law affecting
international arbitration agreements and awards. Most obviously, arbitral awards and
agreements falling under the New York Convention are governed by both the Convention
and Chapter 2 of the FAA (which implements the Convention). The same is true with
respect to the Inter-American Convention and Chapter 3 of the FAA. (1206) In addition,
these awards and agreements are also potentially governed by the first, “domestic”
chapter of the FAA, which is expressly incorporated by §208 of the FAA to the extent it is
not “in conflict” with the New York Convention, (1207) and §307 of the FAA to the extent it
is not in conflict with the Inter-American Convention. (1208)
Moreover, Chapter 1 of the domestic FAA has repeatedly been held not to preempt or
occupy the entire field of arbitration. (1209) As a consequence, U.S. state (and foreign) law
apply to aspects of the arbitral process in U.S. federal and state courts.
Beyond their express terms, the FAA, New York Convention and Inter-American
Convention have provided the basis for a fairly expansive “federal common law” of
arbitration. (1210) This body of judicial authority applies, more broadly than in domestic
matters, in the context of international arbitrations subject to the New York and Inter-
American Conventions. (1211) That body of federal law is of uncertain scope, but it clearly
extends to such subjects, discussed below, as the separability presumption, the
competence-competence doctrine, the interpretation and presumptive validity of
international arbitration agreements, the parties’ autonomy with regard to arbitral
procedures, the tribunal’s procedural powers and the availability of provisional relief in
connection with arbitrations. (1212) Importantly, as also discussed below, the FAA and the
federal common law rules derived from the FAA override (or “preempt”) inconsistent
state (and foreign) law rules governing the same subjects, particularly rules which seek to
deny effect to agreements to arbitrate and arbitral awards. (1213)
Despite the relatively spartan, and archaic, drafting and ad hoc origins of the FAA’s three
chapters, U.S. courts have generally interpreted the Act in a fashion which is supportive
of the international arbitral process. For the most part, U.S. courts have been even more
supportive of the international arbitral process than of domestic U.S. arbitrations. (1214)
With respect to arbitration agreements, U.S. courts have repeatedly applied the
separability doctrine, (1215) have defined in considerable and influential detail the
allocation of competence between courts and arbitrators to decide disputes over the
formation, validity and interpretation of arbitration agreements, (1216) have strongly
affirmed the presumptive validity of arbitration agreements (subject only to limited,
non-discriminatory exceptions based on general principles of contract law), (1217) have
fashioned a decidedly “pro-arbitration” approach to the interpretation of arbitration
agreements and have interpreted the so-called nonarbitrability doctrine narrowly. (1218)
With respect to the arbitral process, U.S. courts have emphasized the parties’ freedom to
agree upon arbitration rules and procedures, (1219) the arbitrator’s discretion in
presiding over the arbitral process and adopting arbitral procedures (1220) and the very
limited scope for interlocutory judicial review of the arbitrator’s decisions. (1221) U.S.
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judicial decisions have also provided (with some exceptions) for court-ordered
provisional measures (1222) and disclosure, (1223) as well as judicial support for
constitution of the arbitral tribunal. (1224)
Finally, with respect to arbitral awards, U.S. courts have permitted vacatur (annulment)
of awards made in the United States on limited grounds, generally paralleling those for
non-recognition in the New York Convention, but with some courts also permitting a very
limited degree of substantive judicial review of the merits of the arbitrators’ award
(under the so-called “manifest disregard” doctrine). (1225) With regard to foreign awards,
U.S. courts have held that such awards are presumptively valid and enforceable, subject
only to the New York Convention’s specified exceptions, which U.S. courts have
interpreted restrictively. (1226)
[vii] Self-Executing Status of New York Convention (1227)
The New York Convention is properly regarded as “self-executing” or directly applicable
in the United States. As discussed above, the same conclusion should also generally
apply in other national legal systems where international treaties may have such effects.
(1228) The same analysis also applies to the Inter-American Convention, again both in the
United States and elsewhere.
Under long-standing U.S. authority, there is an important distinction between “self-
executing” and “non-self-executing” treaties. A self-executing treaty has direct, binding
effect in U.S. courts and “operates of itself without the aid of any legislative provision.”
(1229) In contrast, a “non-self-executing” treaty is not ordinarily directly applicable in
U.S. courts. It must be “executed” by Congress through implementing legislation that
provides the applicable rules of decision in U.S. courts. (1230) Applying this distinction, it
is relatively clear that Articles II, III, IV, V and VI of the New York Convention are self-
executing in the United States. (1231)
(1) Text of Convention
The starting point for analysis of the Convention’s status under U.S. law is its text, (1232)
which argues decisively for self-executing status in U.S. courts. The U.S. Supreme Court
has consistently held that the use of mandatory terms, including “shall,” are strong
evidence that a treaty is self-executing. (1233) Article II, as both a textual matter and as
interpreted by U.S. and foreign courts, (1234) is unequivocally mandatory, providing that
Contracting States “shall” recognize international arbitration agreements and “shall”
refer parties to such agreements to arbitration. (1235) As discussed, above, Article II is
also addressed specifically to national courts, rather than to legislative or executive
authorities, with Article II(3)’s direction to “the court[s] of a Contracting State” requiring
those courts to “refer the parties to arbitration” – an action that only a court “seized of an
action” can perform. (1236) It is well-settled in the United States that provisions directed
specifically to judicial authorities are classic indicia of self-executing treaties. (1237)
The language of Articles III, IV, V, and VI is also that of a self-executing treaty. As
discussed elsewhere, Article III mandatorily provides that Contracting States “shall
recognize arbitral awards as binding and enforce them” in accordance with local
procedural rules. (1238) Article V is equally mandatory, providing that recognition of an
award may be refused “only if” one of the exceptions specified in Article V is applicable.
(1239)
Articles III, IV, V, and VI are also plainly directed specifically to national courts. Article III
requires recognition of awards “in accordance with the rules of procedure of the territory
where the award is relied upon,” (1240) while Article IV addresses “application[s]” for
recognition and the proof of awards. (1241) These provisions are self-evidently addressed
to national courts, where “rules of procedure” are applied and “applications” are
customarily (and only) made, and not to legislative or executive authorities. (1242)
(2) Object and Purposes of Convention
The conclusion that the Convention is self-executing is confirmed by the Convention’s
object and purposes. As discussed above, it is non-controversial that the Convention’s
drafters sought to establish a single uniform set of international legal standards, in
particular for enforcing international arbitration agreements and arbitral awards in the
courts of Contracting States. (1243) A delegate to the New York Conference made this
point, noting that Contracting States should not be permitted to decline enforcement of
arbitration agreements based on parochial local laws and that Article II’s provisions were
thus essential to the “whole purpose of the Convention.” (1244) To the same effect, the
U.N. General Assembly emphasized the importance of “uniform interpretation and
effective implementation” of the Convention by Contracting States. (1245)
As discussed above, national courts have consistently emphasized the Convention’s
purpose of establishing internationally uniform rules. (1246) The U.S. Supreme Court has
observed, for example, that the Convention’s purpose was to “unify the standards by
which agreements to arbitrate are observed and arbitral awards are enforced.” (1247)
These purposes are best achieved by treating the Convention as self-executing. Doing so
means that courts in the United States will directly apply and interpret a single
international text, informed by decisions in other Contracting States, rather than
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domestic U.S. (federal and state) law. This significantly increases the likelihood that
international arbitration agreements and awards will be subject to uniform international
standards in both the United States and other Contracting States. In contrast, treating the
Convention’s provisions as non-self-executing would materially increase the likelihood
that different Contracting States would adopt different implementing legislation for the
Convention or divergent lines of judicial interpretation. In turn, this result would reduce
the likelihood that uniform international rules will be applied under the Convention in
different Contracting States – contrary to the Convention’s basic purpose.
(3) U.S. Government Position
The self-executing nature of the Convention is also confirmed by the position of the U.S.
government. (1248) In amicus curiae submissions to the Supreme Court, the U.S.
government has emphasized that “Article II of the Convention is self-executing,” (1249)
reasoning that “[b]oth the mandatory nature of Article II(3)’s text, and its direction to the
‘court[s]’ (rather than to the governments) of the contracting States, suggest that the
provision was intended to be immediately enforceable in domestic courts” and is,
therefore, self-executing. (1250) It is well-settled that the Executive Branch’s
understanding of a treaty to which the United States is a party is “entitled to great
weight” in the interpretation of the treaty by U.S. courts, including in assessing whether
the treaty is self-executing. (1251)
(4) Chapter 2 of the Federal Arbitration Act
The language, structure and history of Chapter 2 of the FAA also indicate that the
Convention is self-executing. As discussed above, the original FAA (enacted in 1925)
addresses the enforcement of arbitration agreements and arbitral awards involving
“commerce among the several States or with foreign nations.” (1252) As also discussed
above, Chapter 2 of the FAA was enacted, as a necessary step towards U.S. ratification of
the Convention, adding eight relatively brief sections to the original FAA (which was
simultaneously re-titled as “Chapter 1” of the FAA). These sections, which are discussed in
detail above, do not suggest that the Convention is non-self-executing; on the contrary,
they point to the opposite conclusion.
First, the fact that Chapter 2 provides implementing measures for the Convention in
federal courts does not suggest that the Convention is non-self-executing in the United
States. As the Restatement (Fourth) of Foreign Relations Law of the United States explains:
“[T]he adoption of related legislation is an unreliable indication of the
understanding of U.S. treatymakers with regard to self-execution. Congress
may adopt legislation necessary and proper to implement any valid treaty
commitment. The adoption of U.S. legislation implementing some aspects of a
treaty, or establishing related procedures, however, does not necessarily
suggest that other, substantive aspects of the treaty are not self-executing.”
(1253)
It is particularly unsurprising that a treaty like the Convention, which imposes obligations
directly affecting the rights of parties in U.S. courts, in a field subject to existing federal
legislation, would be accompanied by legislation containing ancillary provisions
addressing issues such as venue, subject matter jurisdiction, removal, and injunctive
authority. (1254) These types of provisions address the procedural issues that inevitably
arise and must be resolved in order to allow effective enforcement of the Convention’s
substantive terms. As an international instrument with more than 160 Contracting States,
the Convention does not, and could not sensibly, address the types of jurisdictional,
venue, and procedural issues that local law regulates. (1255) The inclusion of these types
of provisions – and not substantive ones – in Chapter 2 of the FAA confirms, rather than
contradicts, the self-executing character of the Convention.
Second, it is clear that Chapter 2 of the FAA addresses only the application of the
Convention by U.S. federal (and not state) courts. As a consequence, unless the Convention
is self-executing, its substantive terms would not be applicable at all in U.S. state courts.
(1256) This is a highly unattractive result which the U.S. political branches would not
likely have intended.
Section 201 of Chapter 2 of the FAA provides that the Convention “shall be enforced in
United States courts” in accordance with Chapter 2’s provisions. (1257) Other provisions of
Chapter 2 either repeat and clarify the same reference to “United States courts” (1258) or
refer to Chapter 2’s federal subject matter jurisdiction provisions. (1259)
It is fairly clear, however, that the term “United States courts,” as used in Chapter 2,
means U.S. federal, not state, courts. (1260) Among other things, Chapter 1 of the FAA also
uses the term “courts of the United States” or “United States courts,” in what was clearly
intended to refer to federal, and not state, courts (1261) – as the U.S. Supreme Court has
held. (1262) It is highly unlikely that Congress intended the reference in Chapter 2 to
“United States courts” to mean something different from “courts of the United States” and
“United States courts” in Chapter 1 of the same statute. (1263) As a consequence, it is
clear that Chapter 2 of the FAA applies only in U.S. federal (not state) courts.
Despite this, U.S. state courts have historically addressed, and will inevitably continue to
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address, numerous disputes over the recognition of international arbitration agreements
and awards. (1264) Moreover, when the United States ratified the Convention in 1970,
arbitration legislation in nearly one-third of all U.S. states clearly did not provide for the
effective recognition of arbitration agreements (1265) or arbitral awards. (1266) Indeed,
as of 1970, the Supreme Court had not held that §2 of the FAA applied in state courts, and
the Court would not do so for another 15 years. (1267)
If the Convention had not been self-executing, then, because Chapter 2 of the FAA applies
only in federal courts (as discussed above), a substantial number of state courts would
have applied state law (as it existed in 1970) to international arbitration agreements,
which would have not infrequently denied effect to such agreements. Likewise, the
Supreme Court had not yet held in 1970 (and still has not held) that §§9 and 10 of the FAA
apply in state courts. (1268) As a consequence, if the Convention were non-self-executing,
state courts considering requests for recognition of either arbitration agreements or
awards after the United States ratified the Convention in 1970 would very likely have
applied existing state law and, equally clearly, would have also denied recognition
frequently.
Given the limited scope of Chapter 2 (applicable only in federal courts), the result of
treating the Convention as non-self-executing would have been to treat international
arbitration agreement and awards very differently in federal and state courts and would
likely have been to place the United States in violation of its obligations under the
Convention following ratification in 1970. As noted above, nearly one-third of all state
arbitration statutes in 1970 would not have permitted recognition and enforcement of
international arbitration agreements or awards in accordance with the mandatory
requirements of the Convention, a result that would have constituted material non-
compliance with the Convention. (1269) It is difficult to imagine that Congress and the
President would have intended, in ratifying the Convention and enacting Chapter 2, to put
the United States into almost immediate breach of the Convention’s terms. (1270)
Third, under any of the legal regimes that would apply in U.S. federal and state courts if
the Convention were treated as non-self-executing, there would be a number of
substantial differences between the standards applicable to recognition of international
arbitration agreements and awards under the Convention itself, on the one hand, and
those applicable under domestic U.S. law, on the other hand. (1271) These differences
would exist regardless of whether existing state arbitration laws or Chapter 1 of the
domestic FAA were applied. These differences between the substantive provisions of the
Convention and domestic U.S. law, would, again, very likely leave the United States in
material breach of the Convention in significant categories of cases.
Fourth, even if one assumed that §2 of the domestic FAA preempted the application of
state arbitration laws, there is a lengthy catalogue of material differences between the
treatment of international arbitration agreements under Article II of the Convention and
the treatment of such agreements under §2 of Chapter 1 of the FAA. Among other things,
U.S. courts have consistently held that the Convention and Chapter 1 of the FAA differ
materially with respect to: (a) choice-of-law rules governing the existence and validity of
arbitration agreements (with Articles II(3) and V(1)(a) prescribing international standards
and Chapter 1 providing for domestic U.S. state choice-of-law rules); (1272) (b) available
substantive grounds for challenging the validity of international arbitration agreements
(with Article II(3) prescribing limited international grounds and Chapter 1 prescribing
broader domestic grounds); (1273) (c) non-arbitrability exception to the enforceability of
arbitration agreements (which is narrower under Article II than Chapter 1); (1274) (d) form
requirements for international arbitration agreements (with Article II(1) and (2) providing
different written form requirements than Chapter 1); (1275) (e) courts’ obligation to “refer
the parties to arbitration” under Article II(3) of the Convention and the absence of such a
requirement under §2 of the FAA (in contrast to §§3 and 4 of the FAA); (1276) (f) courts’
power to enforce an agreement to arbitrate in a non-U.S. arbitral seat (which is required
under the Convention and unavailable under Chapter 1); (1277) (g) United States’
reciprocity reservation, establishing an exception to the Convention’s obligations for
arbitration agreements and awards made in non-Convention states (which is not included
in Chapter 1); (1278) and (h) federal policies favoring enforcement of international
arbitration agreements subject to the Convention (which have repeatedly been held to
be more expansive than under Chapter 1). (1279)
The existence of these material differences between the standards under Article II of the
Convention and §2 of the FAA would produce a highly unsatisfactory result if the
Convention were non-self-executing, again entailing non-trivial U.S. non-compliance with
its obligations under the Convention. (1280) That is because §2 currently provides, in
many material respects, less favorable standards for recognition and enforcement of
arbitration agreements than Article II of the Convention.
Moreover, treating the Convention as non-self-executing also results in the application of
different standards to international arbitration agreements in U.S. state and federal
courts, with Article II of the Convention applying in federal courts, through either §201 or
§208 of the FAA, and §2 of the FAA applying in state courts. (1281) This result would
frustrate the objectives of uniformity, both generally in U.S. treaty application (1282) and
specifically with regard to the Convention (as discussed above). (1283) It is again difficult
to imagine that the U.S. federal political branches intended such results when they
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ratified the Convention and enacted Chapter 2 of the FAA.
Rather, the straightforward, sensible result that the federal political branches much more
plausibly intended in ratifying the Convention and enacting Chapter 2 was that the
Convention would be self-executing and therefore applicable in both state and federal
courts alike; in turn, Chapter 2 provided the procedural rules necessary to facilitate the
Convention’s application in U.S. federal courts, while analogous jurisdictional, venue, and
other procedural issues in state courts would be addressed by state law and procedural
rules. Unsurprisingly, this is how the FAA’s legislative history describes Chapter 2: “These
amendments would be additions to the Federal Arbitration Act to insure the coverage of
the act extends to all cases arising under the treaty and some changes in Federal civil
procedure to take care of related venue and jurisdictional requirement problems.” (1284)
Under this analysis, §201 rests on the premise, and expressly provides, that it is the
Convention itself, as a self-executing treaty, that is applicable in state and federal courts,
with Chapter 2 of the FAA supplying ancillary provisions to facilitate enforcement of the
Convention in federal courts. (1285) This is the most natural reading of §201’s language,
which provides that “the Convention … shall be enforced in United States courts in
accordance with this Chapter.” (1286) This is a formula declaring that it is the substantive
terms of “the Convention” itself, as a self-executing treaty, that are “enforced in United
States courts” rather than the terms of a federal statutory provision. (1287)
Finally, this is exactly the conclusion that state courts have reached. They have
consistently applied the Convention directly in state court proceedings, a result that can
only be reached, given the terms of Chapter 2 of the FAA, if the Convention is self-
executing. (1288) As one state court held, “[a]n arbitration agreement between residents
of different countries is governed by the New York Convention … provided both countries
are signatory nations to the Convention.” (1289) Or, in the words of another state court,
“since the New York Convention applies, [the plaintiff] cannot raise an unconscionability
defence to the enforcement of the arbitration clause against it.” (1290) In contrast, no
state court appears to have held that the Convention is not self-executing. (1291)
(5) U.S. Ratification History of the New York Convention
The actions and statements of the U.S. political branches during the process of
ratification further support the conclusion that the Convention is self-executing in the
United States. These actions display a consistent recognition that the Convention would
be applicable in both state and federal courts and that the Convention’s terms would
produce materially different results from those under existing state arbitration
legislation.
Preliminarily, there is no indication in the U.S. ratification process that the Convention
was considered non-self-executing. In particular, nothing in the 1958 Report of the U.S.
Delegation to the New York Conference, (1292) the 1968 Report of the U.S. State
Department to President Lyndon Johnson, (1293) or President Johnson’s Letter of
Transmittal of the Convention to the Senate (1294) suggests that the Executive Branch
viewed the Convention or any of its particular provisions as non-self-executing. Likewise,
as discussed above, none of the legislative materials associated with Chapter 2 of the
FAA, enacted in conjunction with ratification of the Convention in 1970, contain any such
statement or suggestion on the part of Congress. (1295)
In contrast, there are important affirmative indications of the Convention’s self-executing
status. At the conclusion of the Conference, the U.S. Delegation advised against
ratification of the Convention on the grounds that its provisions would “override” and
“interfere with” state law in a substantial number of states. (1296) In the words of the
Delegation’s Report, “[t]he convention, if accepted on a basis that assures [meaningful
advantages on the United States], will override the arbitration laws of a substantial
number of States and entail changes in State and possibly Federal court procedures”
(1297) and “make rather substantial changes in United States domestic law.” (1298)
Similarly, “the United States would be able as a constitutional matter to adhere to the
convention without any reservations whatsoever, [but to] do so, however, would entail
interference with the laws and judicial procedures of a substantial number of the States.”
(1299)
The Delegation concluded that neither the Executive Branch nor the Senate would
support such results as a matter of either politics or policy. (1300) The Delegation also
raised the possibility of a U.S. “federal-state” reservation under Article XI of the
Convention, which would declare the Convention inapplicable where the law of a
particular U.S. state conflicted with the Convention’s terms (1301) but ultimately rejected
this as impracticable. (1302) The Delegation therefore recommended “strongly” against
U.S. signature or ratification of the Convention. (1303)
The explicit basis for the Delegation’s recommendation was that, absent a reservation
regarding state law, the Convention would “override,” “make rather substantial changes
in,” or “entail interference with” the laws of a majority of the several States. In the
Delegation’s view, these consequences of U.S. ratification were untenable. These views,
which were central to the Delegation’s recommendation, rested necessarily and expressly
on the premise that the Convention was self-executing. This is reflected in its references
to “overriding” or “changing” state law. Particularly when considered in the context of
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Article XI of the Convention, addressing the Convention’s application in federal or non-
unitary states, (1304) and in light of the fact that the Delegation considered, but rejected,
a federal-state reservation, it is very difficult to avoid a conclusion that the Convention
was understood by the Delegation to be self-executing.
Despite the Delegation’s negative views, the United States took steps a decade later,
beginning in 1968, to ratify the Convention. Those steps occurred with the Delegation’s
views regarding the Convention’s self-executing status clearly in mind, in part because
the Executive Branch needed to justify its reversal of the U.S. attitude toward the
Convention in order to obtain Senate ratification. (1305)
A central element of the Executive Branch’s support for ratification of the Convention in
1968 and 1970 was its view that state arbitration laws had changed materially since 1958,
with the result that U.S. ratification of the Convention would no longer have the sweeping
impact on state law that the Delegation previously emphasized. (1306) Instead, U.S. state
law dealing with arbitration had significantly evolved and (in 1968) prescribed rules that
were materially more similar to those of the Convention than in 1958, thereby
significantly reducing the policy and political objections raised by the Delegation’s
Report. Relatedly, Ambassador Richard Kearney (the U.S. member of the International
Law Commission and Chairman of the U.S. Secretary of State’s Advisory Committee on
Private International Law) also raised – but firmly rejected – the possibility of a U.S.
reservation limiting the effect of the Convention to federal courts (1307) (as also had
occurred when such a reservation was considered in 1958). (1308)
Finally, it seems very unlikely that the federal political branches intended the
Convention to be non-self-executing, applying only in federal (and not state) courts, with
the possibility of removal of actions arising under the Convention to federal courts (under
§205 of the FAA) providing the only avenue for U.S. compliance with its obligations under
the Convention. That approach contradicts all of the analysis above, which fairly clearly
demonstrates that Article II is self-executing. Furthermore, an approach that left the
Convention only enforceable in federal courts, coupled with rights to remove from state
courts, would not comply with the Convention, which mandates that “[t]he court of a
Contracting State … shall … refer the parties to arbitration” (1309) and “shall recognize
arbitral awards ….” (1310) The Convention does not provide that “some” courts of the
United States (that is, only federal courts or just some federal and state courts) must
refer parties to arbitration and recognize arbitral awards; it provides that all courts in a
Contracting State must do so. (1311)
Moreover, Article XI of the Convention is impossible to reconcile with application of the
Convention in some (federal), but not all (state), courts of a Contracting State. Under
Article XI(b), if a federal state cannot implement the Convention in constituent states, it
must immediately give those states notice of the Convention and favorably recommend
that they adopt the Convention. (1312) It is very difficult to see how this provision would
permit the United States simply not to implement the Convention in state courts,
notwithstanding the legislative authority under the U.S. Constitution to do so, and also
not make any recommendation that states take steps to implement the Convention.
Again, the Executive Branch’s deliberate consideration, and rejection, of the possibility of
an Article XI reservation argues decisively against the notion that the United States
intended to comply with the Convention in federal, but not state, courts.
(6) Judicial Decisions
The best-reasoned U.S. judicial analysis of Article II’s status is a concurring opinion in a
federal appellate decision that considered whether the so-called McCarran-Ferguson Act
provides that state law reverse-preempts federal law governing the validity of arbitration
agreements in insurance policies. (1313) In that case, majority of the Court of Appeals did
not reach the question whether Article II is self-executing. (1314) The self-executing
character of Article II was addressed, however, in a concurring opinion by Judge Edith
Brown Clement, who concluded after careful analysis that “the plain text of Article II of
the Convention compels a finding of self-execution.” (1315) She also emphasized that
Article II(3) “is addressed to the courts of contracting States, not to the States themselves
or to their respective legislatures” and that “[r]eferral to arbitration is mandatory, not
discretionary” (1316) concluding that “Article II of the Convention is self-executing and
fully enforceable in domestic courts by its own operation. It is entitled to recognition as
‘the supreme Law of the Land’ under the Supremacy Clause.” (1317)
Similarly, the weight of U.S. authority in other contexts applies Article II directly (albeit
usually without discussion or analysis) to give effect to international arbitration
agreements and awards. (1318) This includes a substantial body of U.S. federal court
authority holding that Article II limits the types of national law that may be applied to
international arbitration agreements under the Convention. (1319) Other U.S. federal
courts have directly applied the provisions of Article II requiring a “written” arbitration
agreement. (1320)
Equally importantly, a number of state courts have also applied the terms of Article II
directly, (1321) which must result from the Convention’s status as a self-executing treaty.
(1322) Moreover, in applying the Convention, U.S. state courts have frequently made it
clear that it is the Convention – not Chapter 2 of the FAA – that they are applying. (1323)
The reasons include, among others, that “[a]n arbitration agreement between residents of
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different countries is governed by the New York Convention,” (1324) an international
arbitration agreement is “subject to the [New York] Convention enforcement rules” (1325)
and “this arbitration is governed by the [New York] Convention ….” (1326) In contrast,
much like federal courts, no reported U.S. state court decision holds the Convention non-
self-executing. These state court decisions are of particular significance given that the
self-executing character of the Convention has its most obvious and important
consequences in state courts – where, as discussed above, Chapter 2 of the FAA does not
apply. (1327)
In contrast, the very limited U.S. federal authority concluding that the Convention is not
self-executing is dated and rests on cursory reasoning. (1328) The only U.S. appellate
decision holding Article II as non-self-executing is the Second Circuit’s 1995 ruling in
Stephens v. American International Insurance. (1329) As Judge Clement noted in Safety
National, however, the panel of the Second Circuit that rendered this decision “undertook
no textual analysis and set forth no reasons to support its conclusion.” (1330)
* * * * *
In sum, the better view is that the New York Convention – specifically Articles II, III, IV, V
and VI of the Convention – are self-executing and directly applicable in U.S. courts. As a
consequence, those provisions of the Convention are directly applicable in U.S. courts,
preempting (or superseding) inconsistent provisions of state or federal (or foreign) law. As
discussed above, U.S. federal and state courts have frequently applied the Convention’s
provisions, including to preempt contrary rules of U.S. or foreign law. (1331)
[viii] Proposals to Amend FAA
There have been repeated suggestions in the past decades for revision or replacement of
the FAA, particularly as regards international arbitration. (1332) Critics have argued that
the Act fails to provide a detailed and comprehensive statutory framework for
international arbitration, like that which exists in most developed arbitral centers,
placing the United States in an unattractive position vis-à-vis such jurisdictions (1333)
and failing to provide (particularly foreign) parties with clear guidance regarding the
content of U.S. law. (1334)
Others have responded that U.S. law regarding arbitration, and particularly international
arbitration, is highly developed, through judicial decisions, (1335) and that legislation
would likely produce a worse (not better) result. (1336) Business leaders in particular fear
that congressional legislation on arbitration could “open a Pandora’s box of special
interests” and result in damage to the pro-arbitration legal framework currently existing
in U.S. courts. (1337) Although these fears are real, the inadequacies of the FAA as a
statutory framework for international arbitration are strikingly apparent and detract from
both the efficacy of the international arbitral process and the attractiveness of the
United States as an arbitral seat.
Legislation has been introduced in recent Congresses which would amend the domestic
FAA (in particular to render domestic consumer and employee disputes nonarbitrable).
(1338) Although predictions about legislative processes are notoriously risky, it continues
to appear unlikely that this legislation will be adopted, even in domestic matters. (1339)
At least for the present, legislative reform meaningfully affecting international
commercial arbitration in the United States appears unlikely.
One avenue for reform of U.S. international arbitration law would be through judicial
interpretation of the New York Convention (and Inter-American Convention), and the FAA.
As discussed above, Article II of the Convention is properly regarded as “self-executing”
and directly applicable in U.S. courts. (1340) Relying on the Convention, U.S. courts have
addressed, and can be expected to continue to address, at least some of the lacunae and
deficiencies in the FAA (e.g., with regard to the allocation of jurisdictional competence,
the selection of the arbitral seat, the annulment of awards and the removal of
arbitrators). Indeed, U.S. courts have already done so, including in the development of
choice-of-law rules for the law governing the arbitration agreement (1341) and the
application of the nonarbitrability doctrine in international disputes. (1342)
[ix] U.S. State Arbitration Laws
The role of the FAA within the U.S. legal system, and in particular in relation to the laws of
the 50 states, can appear complex. (1343) The basic principles can nonetheless be readily
summarized.
In principle, a U.S. federal statute or U.S. treaty will override, or “preempt,” inconsistent
U.S. state law substantive rules addressing the same subjects. (1344) Accordingly, insofar
as a federal statute, such as the FAA, was intended to address particular substantive
topics or general fields, it will preempt state law addressing those topics or fields. (1345)
As discussed above, the same is true of the New York Convention. (1346)
The U.S. Supreme Court has held that the domestic FAA “contains no express preemptive
provision, nor does it reflect a congressional intent to occupy the entire field of
arbitration.” (1347) At the same time, the Court has also repeatedly declared that the FAA
creates a body of substantive federal rules relating to arbitration: in enacting the FAA,
“Congress declared a national policy favoring arbitration and withdrew the power of the
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states to require a judicial forum for the resolution of claims which the contracting
parties agreed to resolve by arbitration.” (1348) As a consequence, it is well-settled that
U.S. state law rules which single out inter-state and international arbitration agreements
for discriminatory treatment or idiosyncratic burdens are preempted by the FAA. (1349)
As noted above, it is also settled, in both domestic and international contexts, that the
FAA and federal law establish the presumptive separability of the arbitration agreement,
(1350) provide the exclusive standards for interpreting the scope of arbitration
agreements (1351) and for confirming and vacating arbitral awards. (1352)
Nonetheless, in a purely domestic context, issues concerning the formation of arbitration
agreements, as well as at least some issues of substantive and formal validity, are
governed primarily by generally-applicable state contract law. (1353) In contrast, there is
substantial lower court and other authority holding that federal common law, derived
from the New York Convention, governs the formation and validity of international (as
distinguished from domestic) arbitration agreements. (1354) These issues of preemption
under U.S. law are complex and are addressed in greater detail below. (1355)
Apart from these complexities, U.S. state law is applicable to arbitration agreements and
awards when – but only when – the Convention and the FAA (and the rules of federal
common law derived from both sources) are inapplicable. That may be the case, for
example, because the agreement or award does not affect inter-state or foreign
commerce (which is by definition virtually impossible in international commercial
matters).
State law may also be applicable to issues bearing on arbitration that federal statutory
and common law do not directly or indirectly address. Although the issue is unsettled,
that may include the availability of court-assisted discovery, provisional relief, or
consolidation. (1356) Similarly, state law might apply to the (relatively infrequent)
enforcement in the U.S. courts of foreign arbitral awards which do, not fall within either
the New York or Inter-American Conventions. (1357)
Every state of the Union has adopted legislation dealing with commercial arbitration.
Many states have enacted some versions of the “Uniform Arbitration Act.” First proposed
in 1924 by the Conference of Commissioners on Uniform State Laws, (1358) the current,
revised text of the Act was adopted by the Conference in 2000, making substantial
changes to earlier versions. (1359)
Some versions of the Uniform Arbitration Act have been enacted in 39 states and the
District of Columbia, (1360) and have influenced arbitration legislation in other U.S.
states. (1361) The original Uniform Arbitration Act was substantially similar to the FAA.
Among other things, it required specific enforcement of arbitration agreements (as to
both existing and future disputes) (1362) and provided for the recognition and
enforcement of awards with only limited judicial review. (1363) The Revised Uniform
Arbitration Act usefully adds a number of additional provisions, roughly paralleling the
UNCITRAL Model Law, concerning the constitution of the arbitral tribunal, (1364)
provisional measures, (1365) arbitral procedure, (1366) form of awards (1367) and
immunity of arbitrators. (1368)
Nevertheless, a number of U.S. states have not adopted the Uniform Arbitration Act, and
a few have rejected its generally “pro-arbitration” lead (although most or all state laws
disfavoring the arbitral process are preempted by the FAA). Thus, several state statutes
do not permit arbitration of various categories of claims, such as tort, real property and
insurance claims (although, again, federal law preempts these statutory provisions).
(1369) Other U.S. states have enacted legislation requiring that arbitration clauses be
conspicuously identified (e.g., printed in capital letters, placed on the front of any
contract, etc.). (1370) And some state statutes do not provide for the same general rule of
presumptive validity and limited judicial review of arbitral awards that the FAA and
Uniform Arbitration Act require. (1371)
In addition, especially in recent years, some U.S. states have enacted legislation
designed to fill perceived gaps left in the U.S. federal framework for international
arbitration. (1372) In particular, California, Colorado, Connecticut, Florida, Georgia,
Hawaii, Illinois, Louisiana, Maryland, New Jersey, North Carolina, Ohio, Oregon, Puerto
Rico, Texas and Washington State have adopted statutes purporting to deal
comprehensively with the subject of international arbitration. (1373) The extent to which
these statutes are preempted by the FAA and federal common law principles remains
unclear. To date, however, both these statutes and state law more generally have played
a distinctly secondary role in the international arbitral process. (1374)
One potential exception to this general rule was the Supreme Court’s decision in Volt
Information Sciences, Inc. v. Stanford Univ. (1375) There, a California choice-of-law clause
in the parties’ purely domestic contract was interpreted, in vaguely-defined
circumstances, to incorporate state procedural rules relating to arbitration, and the FAA
was held not to preempt this result. Subsequent U.S. Supreme Court decisions, (1376) and
most lower court decisions, (1377) have interpreted Volt narrowly, holding that general
choice-of-law clauses ordinarily do not encompass state arbitration laws and that the
FAA preempts state law rules that impede the enforcement of arbitration agreements.
[2] Less Supportive National Arbitration Legislation
75
Some nations regarded international commercial arbitration with a mixture of suspicion
and hostility during much of the 20th century. (1378) This hostility arose from a reluctance
to compromise perceived principles of national sovereignty, a disdain for principles of
party autonomy and doubts concerning the fairness, neutrality and efficacy of
contemporary international commercial arbitration. (1379) Although historic distrust for
international arbitration has waned substantially in recent decades, it has not entirely
disappeared and continues occasionally to influence legislation, judicial decisions and
other actions in some countries. (1380)
Developing countries in many parts of the world refused for much of the 20th century to
enforce agreements to arbitrate future disputes. This was particularly true in Latin
America and much of the Middle East. (1381) In the words of one leading commentator,
“there is a definite ambivalence in the attitudes of developing countries towards
international commercial arbitration.” (1382)
Some developing states took the position that international arbitration agreements were
an unjustifiable infringement upon national sovereignty, which was to be vigorously
resisted. (1383) In many cases, echoing some 19th century views, (1384) arbitration
agreements were valid only if they concerned an existing (not a future) dispute, which
was the subject of a submission agreement committing the parties to resolve the dispute
by arbitration. (1385)
In Latin America, the Calvo doctrine (first formulated in 1896) declared among other
things that foreign nationals were mandatorily subject to the jurisdiction of local courts,
which could not be “ousted” by international arbitration agreements. (1386) The doctrine
was incorporated into some national legislative or constitutional instruments, which not
infrequently rendered international arbitration agreements invalid. (1387) Political
declarations from developing states also reflected the continuing hostility of many
developing states towards international arbitration, even well into the 20th century. A
1971 declaration of the Andean Commission reflected this perspective, declaring that:
“[No agreement concerning foreign investment shall] withdraw possible …
controversies from the national jurisdiction of the recipient country.” (1388)
Similar principles were later reflected in various declarations during the 1970s
associated with the “New International Economic Order.” (1389)
Against this background, contemporary arbitration legislation in some developing states
still does not provide effective enforcement of agreements to arbitrate future disputes;
such provisions are sometimes either revocable at will, unenforceable in broad
categories of disputes, or subject to idiosyncratic form or substantive requirements.
(1390) Similarly, in a number of states, international arbitral awards are subject to either
de novo judicial review or to similarly rigorous scrutiny on other grounds. (1391) Finally,
some national courts have been prepared to interfere in the international arbitral
process – for example, by purporting to remove arbitrators, to resolve “preliminary”
issues, to bar foreign lawyers from appearing in arbitral proceedings, or to enjoin
arbitrations. (1392)
Nonetheless, during the last several decades, almost all states which historically
mistrusted international arbitration have ratified the New York Convention and/or
enacted legislation supportive of the arbitral process. (1393) These include India, China,
Saudi Arabia, Argentina, Algeria, Bahrain, Brazil, Tunisia, Turkey, Nigeria, Peru and (at
least for a time) Russia, Ecuador and Venezuela. Although there is often little practical
experience with the application of arbitration legislation in such states, these statutes
have the potential for providing a more stable, predictable framework for international
arbitration.
Unfortunately, even where national law is superficially supportive of the international
arbitral process, some national courts have been quick to hold arbitration agreements or
awards invalid or to interfere with the arbitral process. That is particularly true when
national courts are requested to do so by local companies, state entities, or individuals.
(1394) Moreover, the first decades of the 21st century have witnessed a potential
resurgence of historic ideological opposition to some aspects or applications of the
international arbitral process, with a few states (1395) and some commentators (1396)
condemning the legitimacy and fairness of the process. It remains to be seen how
substantial and long-lived this trend is, although it has thus far gained little currency
outside a limited number of states.
* * * * *
Despite resistance in a few quarters, most national arbitration statutes enacted during
the past several decades have adopted robustly pro-arbitration legal regimes that give
effect to and complement the terms of the New York Convention and support the
international arbitral process. These legislative regimes are of essential importance to
the contemporary international arbitral process, enabling parties reliably to resolve
their disputes efficiently in a neutral, centralized forum. Equally, the continuing
development and refinement of these legislative regimes is vital to the ongoing
improvement and adaptation of the arbitral process to changing conditions.
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[C] Overview of Leading International Arbitration Institutions and Institutional
Arbitration Rules
As discussed above, a central objective of contemporary international arbitration
conventions and national arbitration legislation has been to give effect to commercial
parties’ international arbitration agreements, including agreements on arbitral
procedures. (1397) A vital means by which parties exercise their autonomy in this context
is through the inclusion, in their commercial contracts, of arbitration agreements
incorporating institutional or ad hoc arbitration rules.
International arbitration can be either “institutional” or “ad hoc.” There are vitally
important differences between these two alternatives. Institutional arbitrations are
conducted pursuant to institutional arbitration rules, almost always overseen by an
administrative authority with responsibility for various aspects relating to constituting
the arbitral tribunal, fixing the arbitrators’ compensation and similar matters. (1398) In
contrast, ad hoc arbitrations are conducted without the benefit of an appointing and
administrative authority or (generally) preexisting arbitration rules, subject only to the
parties’ arbitration agreement and applicable national arbitration legislation.
[1] Institutional Arbitration
A number of organizations, located in different countries, provide institutional
arbitration services, often tailored to particular commercial or other needs. As indicated
above, the best-known international commercial arbitration institutions are the
International Chamber of Commerce (“ICC”), the American Arbitration Association (“AAA”)
and its International Centre for Dispute Resolution (“ICDR”), the Singapore International
Arbitration Centre (“SIAC”), the London Court of International Arbitration (“LCIA”), the
Stockholm Chamber of Commerce Arbitration Institute (“SCC”), the Hong Kong
International Arbitration Centre (“HKIAC”) and the Vienna International Arbitral Centre
(“VIAC”). Each of these institutions is described below. (1399)
Also active in the field are the Japan Commercial Arbitration Association (“JCAA”), the
Swiss Chambers’ Arbitration Institution, the German Institution of Arbitration (“DIS”), the
Chinese International Economic and Trade Arbitral Center (“CIETAC”), the Cairo Regional
Centre for International Commercial Arbitration (“CRCICA”), the Australian Centre for
International Commercial Arbitration (“ACICA”), the Asian International Arbitration Centre
(“AIAC”) (formerly known as the Kuala Lumpur Regional Centre for Arbitration (“KLRCA”)),
the Indian Council of Arbitration (“ICA”), the Dubai International Arbitration Centre
(“DIAC”), JAMS International and the Korean Commercial Arbitration Board (“KCAB”). There
are also a number of less widely-known regional or national arbitral institutions, as well
as the International Centre for Settlement of Investment Disputes (“ICSID”), dealing with
investment disputes, (1400) and industry-specific institutions, (1401) including the World
Intellectual Property Organization (“WIPO”) and the Court of Arbitration for Sport (“CAS”).
These (and other) arbitral institutions have promulgated sets of procedural rules that
apply where parties have agreed to arbitration pursuant to such rules. (1402) Among
other things, institutional rules set out the basic procedural framework and timetable for
the arbitral proceedings. Institutional rules also typically authorize the arbitral
institution to select arbitrators in particular disputes and resolve challenges to
arbitrators (that is, to serve as “appointing authority”), to designate the place of
arbitration, to decide issues of consolidation or joinder, to fix or influence the fees
payable to the arbitrators and (sometimes) to scrutinize the arbitrators’ awards to
reduce the risk of unenforceability. Each arbitral institution has a staff (with the size
varying significantly from one institution to another) and a decision-making body.
It is fundamental that arbitral institutions do not themselves arbitrate the merits of the
parties’ dispute. This is the responsibility of the particular individuals selected as
arbitrators. (1403) Arbitrators are virtually never employees of the arbitral institution, but
instead are private persons selected by the parties. (1404) If parties cannot agree upon
an arbitrator, most institutional rules provide that the host institution will act as an
“appointing authority,” which chooses the arbitrators in the absence of the parties’
agreement. (1405)
[2] Ad Hoc Arbitration
Ad hoc arbitrations are not conducted under the auspices or supervision of an arbitral
institution. Instead, parties simply agree to arbitrate, without designating any institution
to administer or otherwise support their arbitration. Ad hoc arbitration agreements will
sometimes choose an arbitrator (or arbitrators), who is (or are) to resolve the dispute
without institutional supervision or assistance. (1406) The parties will sometimes also
select a preexisting set of procedural rules designed to govern ad hoc arbitrations. For
international commercial disputes, the United Nations Commission on International
Trade Law (“UNCITRAL”) has published a commonly-used set of such rules, the UNCITRAL
Arbitration Rules. (1407)
Where ad hoc arbitration is chosen, parties will sometimes designate an appointing
authority, (1408) that will select the arbitrator(s) if the parties cannot agree (or if their
chosen arbitrator is unable to serve) and that, in some cases, will consider any
subsequent challenges to members of the tribunal. If the parties fail to select an
77
appointing authority, then the national arbitration statutes of many states permit
national courts to appoint arbitrators in locally-seated arbitrations (although many
practitioners regard this as less desirable than the selection of arbitrators by an
experienced appointing authority). (1409)
[3] Relative Advantages and Disadvantages of Institutional and Ad Hoc Arbitration
Both institutional and ad hoc arbitration have strengths. Institutional arbitration is
conducted according to a standing set of procedural rules and supervised, to a greater or
lesser extent, by a professional staff. (1410) This reduces the risks of procedural
breakdowns, particularly at the beginning of the arbitral process, and of technical
defects in the arbitration proceedings and arbitral award. The institution’s involvement
can be particularly valuable on issues relating to the appointment of arbitrators, the
resolution of challenges to arbitrators, the selection of an arbitral seat, the consolidation
of related arbitrations and fixing the arbitrators’ fees, where professional, specialized
staff provide better service than ad hoc decisions by national courts that have little, if
any, experience or institutional resources for such matters. (1411)
Equally important, many institutional rules contain provisions that make the arbitral
process more reliable and expeditious. This includes provisions in institutional rules
concerning competence-competence, separability, provisional measures, consolidation
and joinder, disclosure, arbitrator impartiality, corrections and challenges to awards,
replacement of arbitrators and truncated tribunals, costs and the like. (1412) Less
directly, an arbitral institution lends its standing to any award that is rendered, which
may enhance the likelihood of voluntary compliance and judicial enforcement. (1413)
On the other hand, ad hoc arbitration is sometimes said to be more flexible, less
expensive (since it avoids sometimes substantial institutional fees) and more
confidential than institutional arbitration; (1414) despite this, the provisions of
institutional rules sometimes make institutional arbitrations more flexible (by
minimizing the involvement of national courts), more confidential (by including express
confidentiality obligations) and less expensive (by providing institutional oversight of
arbitrator fees). Although there is room for debate, most international practitioners fairly
decisively prefer the more structured, predictable character of institutional arbitration,
and the benefits of institutional rules and appointment mechanisms, at least in the
absence of unusual circumstances arguing for an ad hoc approach. (1415)
[4] UNCITRAL Arbitration Rules (1416)
The UNCITRAL Arbitration Rules occupy an important position, both historically and in
contemporary arbitration practice. In 1973, UNCITRAL proposed the preparation of model
arbitration rules. (1417) The objective of the UNCITRAL Rules was to create a unified,
predictable and stable procedural framework for international arbitrations without
stifling the informal and flexible character of the arbitral process. (1418) The Rules aimed
ambitiously to be acceptable to common law, civil law and other legal systems, as well to
both capital-importing and capital-exporting interests. (1419) The Rules were
promulgated by Resolution 31/98, adopted by the General Assembly of the United
Nations on 15 December 1976. (1420)
UNCITRAL reviewed the usage of the Rules during the first decade of the 21st century and,
after extensive consultations and study, undertook a revision of the Rules in 2006. (1421)
On 25 June 2010, UNCITRAL published extensive revisions of the original UNCITRAL Rules
(the first revision since their adoption). (1422) A further revised version of the UNCITRAL
Rules was published in 2013, which incorporated a reference to the UNCITRAL Rules on
Transparency in Treaty-Based Investor-State arbitration (the “UNCITRAL Rules on
Transparency”). (1423)
The UNCITRAL Rules are designed for use in ad hoc international arbitrations. When the
Rules were adopted in 1976, they were the only set of rules available specifically for that
purpose. Although a few alternatives now exist, (1424) most states, which generally will
have supported the Rules in the United Nations debates, and their state-owned entities,
find it difficult to object to their use in an arbitration agreement or arbitral proceeding.
(1425)
Like most institutional rules, the UNCITRAL Rules prescribe a basic procedural framework
for the arbitration. This includes provisions for initiating an arbitration, (1426) selection
and challenge of arbitrators, (1427) conduct of the arbitral proceedings (1428) (including,
in the 2010 Rules, the joinder of third persons (1429) and issuance of interim relief (1430) ),
choice of applicable law or rules of law, (1431) awards (1432) and costs of the arbitration.
(1433) The Rules also contain provisions confirming the presumptive separability of the
arbitration clause from the underlying contract, and the tribunal’s power (competence-
competence) to consider jurisdictional objections. (1434) Under the Rules, where the
parties have not agreed on an appointing authority, (1435) the Secretary General of the
Permanent Court of Arbitration serves a sui generis function, of designating a suitable
individual or institution to act as appointing authority. (1436) The UNCITRAL Rules have
contributed significantly to the harmonization of international arbitration procedures. A
number of arbitral institutions have either adopted the UNCITRAL Rules entirely, or have
substantially adopted the Rules in prescribing a set of local institutional rules. (1437)
Although designed principally for international trade disputes, the Rules are not limited
78
to commercial matters and have also been used successfully in both state-to-state and
investor-state arbitrations. (1438)
In July 2021, UNCITRAL adopted the UNCITRAL Expedited Arbitration Rules as an Appendix
to the UNCITRAL Arbitration Rules. The Rules came into force on 19 September 2021.
(1439)
[5] UNCITRAL Transparency Rules
In 2013, the UNCITRAL Rules were supplemented by reference to the UNCITRAL
Transparency Rules, which came into effect on 1 April 2014 (1440) and which apply as part
of the UNCITRAL Rules in investor-state arbitrations. (1441) The Rules can also be used in
investor-state arbitrations initiated under rules other than the UNCITRAL Rules or in ad
hoc proceedings. (1442) The Rules contain a variety of provisions which enhance public
awareness of and involvement in investor-State arbitrations, including provisions for
publication of information about cases, publication of submissions, orders and awards,
and amicus curiae submissions. (1443)
Among other things, the UNCITRAL Transparency Rules provide for publication of
information about the arbitrations which are subject to their provisions, including the
names of the disputing parties, the economic sector involved and the treaty under which
the arbitration is commenced, (1444) the parties’ (and any third parties’) submissions,
lists of exhibits and awards and procedural decisions of the arbitral tribunal. (1445) The
Rules authorize third persons to file written submissions in the arbitration (1446) and
provide that hearings are public. (1447) According to the Rules, exceptions can be made
to publication requirements in order to protect confidential information or the integrity
of the arbitral process. (1448)
In addition to the UNCITRAL Transparency Rules, the United Nations Convention on
Transparency in Treaty-based Investor-State Arbitration (the “Mauritius Convention on
Transparency”) was adopted on 10 December 2014 and entered into force on 18 October
2017 (it was signed by 23 states, nine of which also ratified it). (1449) The Mauritius
Convention extends the application of the UNCITRAL Transparency Rules to investment
arbitrations arising under investment treaties that were concluded before the UNCITRAL
Transparency Rules came into force, regardless of the applicable arbitration rules. (1450)
The Mauritius Convention applies unless either the respondent state or the home state of
the claimant have made a reservation under the Convention or excluded its application
to certain types of treaties or disputes. (1451)
[6] Leading International Arbitral Institutions
If institutional arbitration is desired, the parties must choose a particular arbitral
institution and refer to it in their arbitration clause. (1452) Parties ordinarily rely on one
of a few established international arbitral institutions. This avoids the confusion and
uncertainty that comes from inexperienced arbitrator appointments and administrative
efforts by inappropriately–selected institutions.
All leading international arbitral institutions are prepared to, and routinely do,
administer arbitrations seated almost anywhere in the world, and not merely in the place
where the institution itself is located. (1453) There is therefore no need to select an
arbitral institution headquartered in the parties’ desired arbitral seat (e.g., the LCIA or
VIAC can readily administer an arbitration seated in Paris or New York, while the AAA can
administer arbitrations seated in Vienna or London).
A number of organizations provide institutional arbitration services. Some of the best
known of these organizations are described briefly below. (1454)
The services rendered by professional arbitral institutions come at a price, which is in
addition to the fees and expenses of the arbitrators. Every institution has a fee schedule
that specifies what that price is. The amounts charged by institutions for particular
matters vary significantly, as does the basis for calculating such fees. For example, some
institutions use hourly charges while others charge based upon a percentage of the
amount in dispute.
All leading arbitral institutions periodically revise their institutional arbitration rules.
Like the rules themselves, these revisions are the product of extensive consultations
among leading practitioners, academics, business users and arbitrators. (1455) These
consultative processes are aimed at refining the institutional rules for the purpose of
making arbitration agreements and awards more enforceable and arbitral proceedings
more efficient. As with the refinement of national arbitration legislation, (1456) this is an
example of the ongoing adaptation and improvement of the international arbitral
process in response to criticisms, users’ needs and changing conditions.
[a] International Chamber of Commerce International Court of Arbitration (1457)
The ICC’s International Court of Arbitration was established in Paris in 1923 (in parallel
with efforts by the international business community to secure adoption of the Geneva
Protocol, the FAA and other legislative reforms). (1458) The ICC is generally described as
the world’s leading international commercial arbitration institution, with less of a
national character than any other leading arbitral institution. (1459)
79
The ICC’s annual caseload was well above 300 cases filed per year during much of the
1990s, and, by 2021 had reached 853 cases filed per year. (1460) Most of these cases are
international disputes, many involving very substantial sums. The ICC’s caseload includes
disputes between parties from around the world, with parties outside Western Europe
being involved in more than 50% of all ICC cases in many recent years. (1461) In 2020, as
in most other years, 19.8% of the ICC’s caseload involved states or state-related entities.
(1462)
The ICC has promulgated a set of ICC Rules of Arbitration (which are periodically revised,
most recently in 2012, 2017 and 2021 (1463) ), as well as the ICC Mediation Rules, Rules of
ICC as Appointing Authority in UNCITRAL or Other Arbitration Proceedings, ICC Rules for
Expertise, the ICC DOCDEX Rules, the ICC Dispute Board Rules and the ICC Rules for a Pre-
Arbitral Referee Procedure. (1464) The ICC Rules are published in a number of languages,
including English, French, Spanish, German, Russian, Arabic, Chinese, Japanese, Italian,
Polish, Portuguese and Ukrainian.
Under the ICC Rules, the ICC (through the International Court of Arbitration (“ICC Court”)) is
extensively involved in the administration of individual arbitrations. Among other things,
the ICC Court and its Secretariat are responsible for service of the initial Request for
Arbitration; (1465) fixing and receiving payment of advances on costs of the arbitration by
the parties; (1466) confirming the parties’ nominations of arbitrators; (1467) appointing
arbitrators if a party defaults or if the parties are unable to agree upon a presiding
arbitrator or sole arbitrator; (1468) considering challenges to the arbitrators including on
the basis of lack of independence; (1469) deciding issues of consolidation and joinder;
(1470) reviewing and approving so-called “Terms of Reference” (a unique procedure under
the ICC Rules), which define the issues and procedures for the arbitration; (1471)
scrutinizing a tribunal’s draft award for formal and other defects; (1472) and fixing the
arbitrators’ compensation. (1473)
The ICC’s International Court of Arbitration is not, in fact, a “court,” and does not itself
decide disputes or act as an arbitrator. Rather, the ICC Court is an administrative body
that acts in a supervisory and appointing capacity under the ICC Rules. (1474) It maintains
a sizable legal and administrative staff of around 40 persons, from more than a dozen
nationalities, organized as a Secretariat. Specialized teams of counsel and
administrative staff are assigned to cases originating from particular geographic,
linguistic and/or cultural regions.
As detailed above, the Secretariat is substantially involved in the day-to-day supervision
of arbitrations. (1475) In recent years, the ICC has established case-administration offices
in a number of locations in addition to Paris (where the ICC was historically located);
these locations include New York, Hong Kong, Singapore, São Paulo and Abu Dhabi. (1476)
Small professional staff in each office are responsible, with the support of the Paris-
based Secretariat, for day-to-day administration of arbitrations.
ICC arbitrations can be (and are) seated almost anywhere in the world. In 2020, for
example, ICC arbitrations were conducted in 65 different countries. (1477) Over the last
decade, an increasing number of ICC arbitrations have been seated outside of Europe,
particularly in Asia and the Pacific, Brazil and the Middle East. Nonetheless, by far the
most common seats for ICC arbitrations remain France, Switzerland, England, other
Western European states, Singapore and the United States. (1478)
One of the ICC’s principal functions is the appointment of arbitrators and the resolution
of challenges to arbitrators. (1479) As discussed below, the ICC Rules prescribe
procedures and substantive standards for the exercise of these responsibilities (which
are supplemented by a substantial body of administrative practice and experience).
(1480) The ICC does not maintain a formal panel or list of potential arbitrators and
instead relies heavily on the experience of its Secretariat and the ICC’s “National
Committees” in making arbitrator appointments. (1481)
The ICC Rules are broadly similar to the UNCITRAL Rules (1482) (and many other leading
institutional rules) in providing a broad procedural framework for the arbitral
proceedings. This includes provisions for filing a request for arbitration and other initial
written pleadings, (1483) constituting an arbitral tribunal, (1484) conducting the
arbitration (1485) and making an award. (1486) As with most other institutional rules, only
a skeletal procedural framework is provided by the ICC Rules, with the parties and
arbitrators being accorded substantial freedom to adopt procedures tailored to
particular disputes. Unlike other institutional rules, the ICC Rules require both a “Terms
of Reference” (1487) and procedural timetable to be adopted by the Tribunal at the
outset of the arbitral proceedings (1488) and that an award be rendered within six
months (absent extensions). (1489) Also, the ICC Rules provide for the ICC Court to
scrutinize draft awards before they are finalized and executed by the arbitrators. (1490)
The ICC’s administrative fees are based on the amount in dispute between the parties.
With respect to arbitrators’ fees, the ICC Rules fix both a minimum and a maximum
amount which can be charged, based on the amount in dispute. (1491) With respect to
administrative fees and charges, the ICC Rules provide for a sliding scale of charges that
is again based upon the amount in dispute between the parties. The ICC Rules require
that the parties pay an advance on the costs of the arbitration calculated by the ICC
Court. (1492) The advance on costs is equally divided between the claimant and the
80
respondent, although one party may pay the full amount in order to enable the
arbitration to proceed if the other party defaults. (1493)
The ICC’s Rules have often been criticized as expensive and cumbersome. (1494) The 2012,
2017 and 2021 amendments to the Rules reflected a concerted effort to increase the
efficiency, speed and effectiveness of ICC proceedings. (1495) In particular, provisions
were added to the ICC Rules in the 2012 amendments addressing multiple contracts and
parties, (1496) case management conferences (1497) and emergency arbitrator
procedures, (1498) while the 2017 amendments introduced the expedited procedure
providing for a streamlined arbitration with a reduced scale of fees. (1499)
The 2021 amendments to the ICC Rules aimed to achieve greater transparency, flexibility
and efficiency by updating provisions on joinder and consolidation, as well as introducing
a provision on the disclosure of third-party funders. (1500) The 2021 amendments also
provide for increased transparency with regards to party representation, investment
treaty arbitrations, the composition and functioning of the Court, and the communication
of reasons behind the Court’s decisions. (1501) Additionally, the amendments provide for
virtual hearings and electronic communication, thereby seeking to facilitate efficient
administration of ICC arbitrations through the Covid-19 pandemic and beyond. (1502)
It remains to be seen how responsive to users’ needs these amendments, and the
administration of ICC cases, will be. Despite continuing criticisms about cost and
efficiency, there are reasonable grounds for believing that the ICC will continue to be the
institution of preference for many commercial users in Europe.
In addition to modernizing its Rules, the ICC issued a Note to Parties and Arbitral
Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration, which
entered into force on 1 January 2019. This Note introduced a requirement for arbitrators
to consider disclosing any relationship with a non-party that might have an interest in the
outcome of the arbitration, and prospective arbitrators are invited to list in their
biographical information all treaty-based arbitrations in which they acted as arbitrator,
counsel or expert. (1503) For arbitrations commenced after 1 January 2019, the ICC Court
will publish information on the sector of industry involved and counsel representing
parties in the arbitration, and ICC awards made after 1 January 2019 may be published if
neither of the parties objects to publication. (1504)
The ICC issued a revised Note, which entered into force on 1 January 2021, to provide
guidance on the new 2021 ICC Rules. (1505) The Note has been significantly expanded to
provide guidance on the interpretation and application of the ICC Rules, notably on the
changes to the 2021 ICC Rules. The Note includes a number of new sections, including on
electronic communications and submissions, virtual hearings, transparency efforts, and
arbitrator impartiality and independence.
Related to the ICC Rules of Arbitration are the ICC’s ADR Rules. (1506) These Rules provide
(where agreed by the parties) a skeletal procedure for non-binding conciliation.
The ICC also operates the International Centre for Expertise (founded in 1976). (1507) The
Centre operates under rules last revised in 2015 (the ICC Rules for Expertise) (1508) which
provide for non-binding expert opinions or reports to be made, upon the request of
parties (and following opportunities for submissions to the designated expert). (1509)
Parties are free to provide for greater binding effect for such recommendations, but
doing so requires a specific contractual provision. (1510)
[b] London Court of International Arbitration (1511)
Founded in 1892, the LCIA is, by many accounts, the second most popular European
institution in the field of international commercial arbitration. (1512) The LCIA’s annual
caseload exceeded 300 cases filed in recent years and exceeded 400 cases in 2020. (1513)
The LCIA has made a determined, and somewhat successful, effort in recent years to
overcome perceptions that it is a predominantly English organization. The current
president of the LCIA Court is English and has been the president since 2019, but the
previous five presidents were non-English, and its vice-presidents include a number of
non-English practitioners. In recent years, fewer than 20% of the LCIA’s cases on average
have involved any U.K. parties. (1514) More generally, in 2009, the LCIA launched the LCIA
India, (1515) which it later terminated in 2016. (1516) The LCIA also entered into an
agreement in July 2011 to establish a new arbitration center in Mauritius, LCIA-Mauritius
International Arbitration Centre (“MIAC”), (1517) and separately concluded a partnership
with the Dubai International Financial Centre (“DIFC”). (1518)
The LCIA administers a set of arbitration rules, the LCIA Arbitration Rules, which were
extensively revised in 1998, 2014 and 2020. Although identifiably English in drafting style,
and to a lesser extent in procedural approach, the LCIA Rules generally provide a sound
basis for international dispute resolution, particularly for parties desiring common law
procedures (e.g., disclosure, security for costs).
Broadly speaking, LCIA arbitrations are administered in a less comprehensive fashion
than ICC cases. Among other things, the LCIA Rules contain no Terms of Reference
procedure and do not provide for institutional scrutiny of draft awards. (1519) The LCIA’s
administrative fees are calculated based upon the time spent by LCIA personnel (as of
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2020, £280/hour for the Registrar, £250/hour for Counsel, £195/hour for Case
Administrators and £165/hour for Casework Accounting Functions). (1520)
In contrast to most other institutional rules, the LCIA Rules set out the powers of an LCIA
arbitral tribunal in some detail. (1521) The powers to order disclosure (1522) and security
for legal costs (i.e., a deposit or bank guarantee securing the estimated amounts which an
unsuccessful claimant would be liable to reimburse to a successful respondent for its
costs of legal representation) (1523) are included among the arbitrators’ powers.
A particular procedural advantage of the LCIA Rules is their provision for expedited
formation of the arbitral tribunal. (1524) Consistent with many other institutional rules,
the LCIA Rules also permit intervention of third parties in LCIA arbitrations (subject to
prescribed conditions). (1525)
Unlike the ICC, the LCIA maintains a database of arbitrators from which it selects
arbitrators, taking into consideration the nature and circumstances of the dispute, the
nationality, location and languages of the parties and the number of parties. (1526)
Historically, the LCIA’s appointments of arbitrators consisted predominantly of members
of the English bar and retired judiciary, in large part because many LCIA cases have
involved contracts governed by English law. In cases not involving English law, the LCIA’s
selections of arbitrators are more international.
The LCIA fixes the arbitrators’ fees according to the time expended by the arbitrators at
the hourly rates published by the LCIA and fixed by agreement between the arbitrators
and the LCIA. (1527) The LCIA was among the first major arbitral institutions to publish (in
a redacted form) decisions on challenges to arbitrators, (1528) announcing its decision to
do so in 2006.
Most LCIA arbitrations are seated in London. In the absence of agreement by the parties
to the contrary, London will be selected by the LCIA as the arbitral seat under Article
16(2) of the LCIA Rules. (1529)
[c] American Arbitration Association and International Centre for Dispute Resolution (1530)
The AAA was founded in 1926, following the merger of two New York arbitration
institutions (themselves founded in the early 1920s). (1531) The AAA remains based in New
York (with approximately 35 regional offices throughout the United States). (1532) The AAA
is the leading U.S. arbitral institution, and reportedly handles one of the largest numbers
of arbitral disputes in the world. (1533)
The primary arbitration rules administered by the AAA are the AAA Commercial
Arbitration Rules. (1534) These rules are used in a large majority of domestic U.S.
commercial arbitrations. (1535) Numerous other sets of AAA arbitration rules also exist, in
particular for specialized types of disputes, and can be selected in the parties’
arbitration agreement. (1536)
Non-U.S. parties have sometimes been reluctant to agree to arbitration against U.S.
parties under any of the available versions of the AAA rules, fearing parochial
predisposition and unfamiliarity with international practice. Over the past two decades,
the AAA has taken a number of steps aimed at overcoming this image and enhancing its
position as an international arbitral institution.
In 1991, the AAA promulgated the AAA International Arbitration Rules, designed
specifically for international arbitrations (which have since evolved into the current ICDR
Rules). (1537) In 1996, the AAA established an “International Centre for Dispute Resolution”
(“ICDR”), with exclusive responsibility for administering the AAA’s international
arbitrations. (1538)
The ICDR has an administrative facility in New York (having recently closed its
administrative facility in Dublin, Ireland) and administers ICDR cases seated outside the
United States with the support of a Senior Vice President located in Europe. The ICDR
recently entered into cooperative arrangements with the Chambers of Commerce of
Colombia and Peru and Bahrain’s Ministry of Justice and Islamic Affairs (to establish the
Bahrain Chamber for Dispute Resolution-AAA (“BCDR-AAA”). The ICDR also entered into a
joint venture with SIAC, opening an Asia Center in Singapore.
The ICDR International Dispute Resolution Procedures (“ICDR Rules”) provide the
applicable set of AAA arbitration rules for use in “international” disputes (except where
the parties have otherwise agreed). (1539) This alters the previous position under AAA
Rules, in which the primarily domestic AAA Commercial Arbitration Rules provided the
default institutional rules when parties to international agreements had agreed to AAA
arbitration without designating a particular set of AAA rules; absent contrary agreement,
the current fallback rules in international disputes where the parties have agreed to AAA
arbitration (without specifying a particular set of AAA arbitration rules) are the ICDR
Rules. (1540)
The ICDR Rules include a presumption that the parties will mediate under the Mediation
Rules concurrently with the arbitration. However, the parties can elect not to participate
in mediation or opt out of this requirement pursuant to Article 6 of the ICDR Rules.
The AAA/ICDR’s international rules are based principally on the UNCITRAL Rules, and
82
were intended to permit a maximum of flexibility and a minimum of administrative
supervision. They are periodically revised, most recently in 2014 and 2021. (1541) In
addition to the official English version, the ICDR Rules are available in Spanish, French,
Portuguese, Chinese and German.
Under all versions of AAA rules, the AAA/ICDR administrative staff plays a less significant
supervisory role than does the ICC Secretariat. Among other things, the AAA/ICDR does not
receive or serve initial notices or requests for arbitration; does not require or review a
Terms of Reference; and plays a less significant role in setting the arbitrators’ fees. (1542)
The AAA’s administrative charges are based on the amount in dispute. With respect to the
arbitrators’ fees, arbitrators fix their own rates under the AAA Rules, which are published
on their resumes for parties to consider when receiving a list of potential arbitrators.
Compensation under the AAA/ICDR international rules is ultimately based on the
arbitrators’ “amount of service,” taking into account their stated rates and the “size and
complexity of the case.” (1543)
The AAA/ICDR’s international rules allow the parties to agree on any procedure for
appointing arbitrators. (1544) In practice, most AAA appointments are based on a list
procedure, whereby names drawn from the AAA’s rosters are presented to the parties for
expressions of preference. (1545) The ICDR maintains a list of some 650 arbitrators and
mediators, including many non-U.S. practitioners. Although the AAA’s arbitrator
selections have historically been dominated by U.S. practitioners, the ICDR increasingly
seeks to appoint arbitrators with international experience in appropriate international
cases. (1546) Nonetheless, some users have found the AAA/ICDR appointment procedures
and selections patchy, with less involvement of experienced international practitioners
at the AAA and ICDR than other leading institutions.
The AAA’s caseload has increased significantly over recent decades. In 1997, it reported a
total caseload of 11,130 cases (under its Commercial Rules), rising to 14,157 cases (under
its Commercial Rules) in 2009, and 17,620 cases (under its Commercial Rules) in 2018.
Similar growth is reported in international cases. The AAA reports increases in its
international caseload from 453 cases filed in 1999 to 993 new international filings in
2018. (1547) In 2019 and 2020, the AAA registered respectively 882 and 704 international
arbitrations. On any measure, these statistics place the AAA among the world’s most
active international arbitral institutions.
[d] Singapore International Arbitration Centre (1548)
The Singapore International Arbitration Centre (“SIAC”) was established in 1991, initially
for disputes arising out of construction, shipping, banking and insurance contracts, with a
Southeast Asian focus. More recently, consistent with Singapore’s increasing importance
as an international commercial and financial center, SIAC has seen a wider range of
disputes, including trade, commercial, maritime/shipping, corporate, construction and
other matters, with parties from all parts of the world. (1549)
SIAC has enjoyed rapid growth in the recent years and has ranked as the most preferred
arbitral institution in the Asia-Pacific and second among the world’s top five arbitral
institutions. (1550) In particular, SIAC achieved a new record of 1,080 new case filings in
2020. (1551) Over the last few years, SIAC has routinely handled more than 400 new filings
each year. In 2021, 469 new arbitrations were filed with SIAC, 1,080 new filings in 2020,
(1552) 479 new filings in 2019, 402 new filings in 2018, 452 new filings in 2017, 343 new
filings in 2016 and 271 new filings in 2015. (1553) Arbitrations filed in 2021 involved parties
from 64 jurisdictions, with the largest number of non-Singaporean parties coming from
India, China, the United States, Malaysia and Vietnam. (1554)
The SIAC Rules are based largely on the UNCITRAL Rules, and were revised in 2007, 2010,
2013 and 2016. (1555) SIAC has introduced a number of significant procedural innovations,
which have been adopted by other leading arbitral institutions in Asia and elsewhere,
including provisions for expedited arbitrations (1556) and for early dismissal of claims
and defences. (1557) The SIAC Rules also include provisions for emergency arbitration
(1558) and expansive possibilities for consolidation, joinder and intervention. (1559) SIAC
arbitrations are reportedly conducted more expeditiously, at lower cost, than
arbitrations under many other institutional rules. (1560)
The SIAC has made a determined, and successful, effort in recent years to
internationalize its procedures, (1561) including by appointing a Board of Directors,
Secretariat, Court and President with broad international experience. SIAC arbitrators
are appointed by the President (or Vice-President) of the SIAC Court of Arbitration. (1562)
Appointments are of arbitrators from Asia, Europe, the Americas and elsewhere, with
Singapore, English, U.S. and other Asian nationalities being most common. (1563)
SIAC published the SIAC Investment Arbitration Rules in 2017. The Rules provide a
bespoke set of procedures for investment arbitrations, offering an efficient and
pragmatic alternative to the ICSID and UNCITRAL Rules.
In 2020, SIAC launched an office in New York, SIAC’s first representative office outside of
Asia. (1564) In 2021, SIAC entered into partnership agreements with the Abu Dhabi Global
Market Arbitration Centre, the Arbitration Place, the Korea In-House Counsel Association,
the Santiago Arbitration and Mediation Center, Yonsei University Law School, as well as
83
the Suzhou Industrial Park Administrative Committee. (1565)
[e] Permanent Court of Arbitration (1566)
The Permanent Court of Arbitration (“PCA”), established by the 1899 and 1907 Hague
Conventions for the Pacific Settlement of International Disputes, is focused particularly
on international arbitrations involving states and state-like entities. (1567) As discussed
above, the PCA was not established as a “court,” with a standing panel of judges. (1568)
Rather, as originally established, the PCA was a registry for inter-state arbitrations
conducted pursuant to the Hague Conventions, which provided a number of institutional
administering services. In an often-quoted phrase, the PCA has been described in its
original form as “a permanent framework for temporary tribunals.” (1569)
The PCA’s original functions did not involve serving as an appointing authority. Instead,
the PCA was only responsible for maintaining a list of arbitrators who might be appointed
to tribunals in future arbitrations under the Hague Conventions (if states chose to agree
to such arbitrations), with the appointment of arbitrators reserved to states (either as
parties to the dispute or as a neutral appointing authority). (1570) At the same time, even
as originally conceived, the PCA provided a wider range of administrative services than
many modern arbitral institutions; these services included assistance in negotiating and
drafting submission agreements (1571) and serving as intermediary between the parties
and arbitral tribunal. (1572)
Since the 1970s, the PCA has been called upon to act as a traditional appointing authority
with increasing frequency and now routinely serves as an institutional administering
body for arbitrations conducted under both the PCA Arbitration Rules and ad hoc
arbitration agreements. Additionally, and at least as important, the PCA serves as the
default institution to select appointing authorities under the UNCITRAL Rules – a function
that has assumed increasing importance in recent decades in both international
commercial arbitrations and investment arbitrations. (1573)
The PCA consists of three organs: (1) an Administrative Council, which is comprised of the
representatives of Member States that are party to the Hague Conventions and which
serves as the governing body of the PCA; (1574) (2) the Members of the PCA, which is a list
of potential arbitrators chosen by the Member States (each Member State being entitled
to appoint up to four individuals); and (3) an International Bureau, which functions as a
registry or secretariat and provides administrative support to arbitral tribunals
conducting arbitrations under the PCA Rules or where the PCA is registry. (1575)
The Hague Conventions were negotiated with disputes between states in mind and the
PCA’s early activity was confined to this area. As discussed above, the PCA enjoyed very
modest usage during its first 70 years of existence (when only 25 arbitrations and three
conciliations were submitted to PCA tribunals). (1576) By comparison, some 200 non-PCA
inter-state arbitrations were conducted during the same time period (1900 to 1970), often
pursuant to ad hoc submission agreements or compromissory clauses in bilateral
treaties. (1577)
In a striking turn-around, the PCA’s caseload has increased materially since 1995, in part
because of the PCA’s interpretation of Article 26 of the 1899 Convention (and Article 47 of
the 1907 Convention), which permits the PCA to “place its premises and its staff at the
disposal of the Signatory Powers for the operations of any special Board of Arbitration,”
as allowing the PCA to administer disputes between states and non-state actors. (1578)
The PCA’s Administrative Council also expanded the PCA’s remit to cover disputes
involving international organizations, and disputes relating to natural resources and/or
the environment. (1579)
As a consequence, the PCA’s caseload has significantly changed, both in size and
composition. The PCA administered 204 cases (40 new cases) in 2021, 211 cases (59 new
cases) in 2020 and 199 cases (49 new cases) in 2019, in comparison to a cumulative total of
only 34 cases administered in the organization’s first century (1899-1999). (1580) The
substantial majority of these new filings were either international commercial or
investment arbitrations, although there has also been growth in classic inter-state
proceedings. (1581) Out of 204 arbitrations administered in the course of 2021, seven were
state-to-state disputes, while 115 were investor-state disputes under bilateral or
multilateral investment treaties; 80 disputes arose under contracts or other agreements
to which at least one party was a state, state-controlled entity, or intergovernmental
organization. (1582)
The PCA’s International Bureau provides skilled support services for arbitrations
conducted under PCA auspices. In particular, PCA legal counsel provide administrative,
research and logistical support for tribunals hearing disputes administered by the PCA.
Additionally, the PCA frequently provides hearing facilities at the Peace Palace in The
Hague, a physical venue which is particularly appropriate in arbitrations involving one or
more states. (1583)
During the 1990s, the PCA promulgated four sets of procedural rules for various categories
of arbitrations, all of which were based on the 1976 UNCITRAL Rules: Optional Rules for
Arbitrating Disputes between Two States (1992); Optional Rules for Arbitrating Disputes
between Two Parties of Which Only One Is A State (1993); Optional Rules for Arbitration
84
Involving International Organizations and States (1996); and Optional Rules for Arbitration
between International Organizations and Private Parties (1996). The PCA has also devised
ad hoc procedural regimes, such as rules of procedure for arbitration pursuant to Annex
VII of the United Nations Convention on the Law of the Sea. All of these various rules have
been used relatively infrequently (with most parties to PCA-administered arbitration
instead electing to use the UNCITRAL Rules). (1584)
In 2001, the PCA adopted Optional Rules for Arbitration of Disputes Relating to the
Environment and/or Natural Resources (“PCA Environmental Rules”). (1585) The PCA’s
Environmental Rules are drafted for the resolution of disputes involving environmental
issues and provide for the establishment of a specialized list of arbitrators, which
provides the parties opportunities to choose among specialists in the area but does not
restrict the parties’ freedom to choose other persons as arbitrators. (1586) The PCA
remains the only arbitral institution to develop a specialized set of rules for
environmental disputes. (1587) Although the PCA Environmental Rules have not yet been
used extensively, cases involving sustainable development and environmental issues
have become an important part of the PCA caseload. (1588)
In 2012, the PCA published a new set of Rules, which effectively consolidate and replace
the PCA’s existing four sets of rules (although the older rules were not withdrawn and
technically remain in existence). (1589) By combining the PCA’s existing sets of rules into
a single new instrument, the drafting committee sought to streamline the process of PCA
arbitrations and to ensure that multi-party disputes can be submitted more easily to PCA
arbitration. (1590)
The 2012 PCA Rules are similar to the 2010 and 2013 UNCITRAL Rules, providing greater
flexibility to the parties than the PCA’s earlier rules, but are also specifically tailored to
suit cases involving states, state-controlled entities and intergovernmental organizations.
(1591) Among other things, the 2012 PCA Rules provide that a state’s or state-entity’s
adoption of the Rules in a dispute with a non-state party constitutes a waiver of
immunity from jurisdiction (although immunity from enforcement requires an express
waiver); (1592) provide for three-person tribunals by default, but also allow the parties to
agree upon one or five arbitrators (the latter being common in inter-state arbitrations);
(1593) permit the parties to select arbitrators that are not Members of the PCA’s Court;
(1594) allow for the joinder of third parties and multi-party appointment of arbitrators;
(1595) contain provisions on the conduct of site inspections; (1596) offer a model
arbitration clause for inclusion in treaties; (1597) and provide for application of
international law in state-to-state disputes, the rules of intergovernmental organizations
where relevant and the 2013 UNCITRAL Rules in investor-state disputes. (1598)
The 2012 PCA Rules depart from the 2010 and 2013 UNCITRAL Rules by providing that the
PCA Secretary General will review the tribunal’s determination of its own fees and
expenses and of those of any tribunal-appointed experts in all cases, rather than only
upon the request of a party; (1599) and that the International Bureau, rather than the
arbitral tribunal, will determine the amount payable for arbitrators’ fees and expenses
and hold the parties’ deposits. (1600)
One of the PCA’s most significant functions is under the UNCITRAL Rules. As discussed
below, the Secretary General of the PCA serves a sui generis function under the UNCITRAL
Rules, of designating a suitable appointing authority for the appointment of arbitrators
when the parties to an agreement to arbitrate under the UNCITRAL Rules have not agreed
upon the arbitrators or an appointing authority. (1601) The 2010 and 2013 UNCITRAL Rules
also provide that the parties may designate the Secretary-General of the PCA directly as
appointing authority. (1602)
Under these provisions of the UNCITRAL Rules, the PCA has frequently designated
appointing authorities in international commercial and investment disputes and, in a
number of cases, acted directly as appointing authority itself. Among other things, the
PCA has considered and resolved a substantial number of challenges to arbitrators, with
its decisions frequently being made public. (1603) In so doing, the PCA has played a
significant and increasingly important role in the formulation of standards of
independence and impartiality under the UNCITRAL Rules. (1604)
[f] Swiss Arbitration Centre (1605)
Switzerland’s major cities have historically maintained local Chambers of Commerce and
Industry which have administered institutional arbitrations, including international
arbitrations. (1606) On 1 January 2004, the leading Swiss Chambers of Commerce adopted
a unified set of arbitration rules, the Swiss Rules of International Arbitration (“Swiss
Rules” or “Swiss International Arbitration Rules”), and designated an Arbitration
Committee to oversee arbitrations conducted under the Swiss Rules. (1607) A 1 June 2012
revision of the Swiss Rules consolidated the administrative structure by replacing the
Arbitration Committee’s oversight with the Swiss Chambers’ Arbitration Institution, an
independent association that, similar to the ICC, consists of a Court of Arbitration and
Secretariat. (1608)
On 1 June 2021, the Swiss Chambers’ Arbitration Institution was restructured and renamed
as the Swiss Arbitration Centre. (1609) This reorganization took place following the merger
between the Swiss Arbitration Association (“ASA”) and the Swiss Chambers’ Arbitration
85
Institution, which was announced in September 2020. (1610)
The institutional reorganization prompted the revision of the Swiss Rules. On 1 June 2021,
the 2021 Swiss Rules entered into force. (1611) The 2021 Swiss Rules reflect the
institutional reorganization and include new provisions to modernize arbitration
proceedings and facilitate the online management of arbitral proceedings. (1612) The
revisions also contain significantly more detailed provisions on multi-party and multi-
contract arbitrations. (1613) Alongside the 2021 Swiss Rules, ASA has also launched the
new Swiss Arbitration online platform, which is intended to serve as a one-stop-shop
service for arbitration users, with the aim of providing comprehensive access to
information regarding arbitration in Switzerland, including user-friendly details of
organizations, services, events and practitioners working in the jurisdiction. (1614)
Arbitrations under the Swiss Rules benefit from the pro-arbitration Swiss Law on Private
International Law (1615) and from the availability in Switzerland of substantial numbers
of potential arbitrators with impressive arbitration experience. The Swiss Rules are
particularly detailed, containing provisions regarding competence-competence, (1616)
confidentiality, (1617) expedited procedures, (1618) emergency and interim relief
(including ex parte measures), (1619) arbitrator immunity (1620) and consolidation and
joinder. (1621) Between 2004 and 2020, 1354 cases were submitted to the Swiss Chambers,
with 83 new cases submitted in 2020. (1622) A record number of 113 new cases were
submitted in 2021. (1623) The majority of cases submitted to the Swiss Chambers involved
parties from Western Europe and Switzerland (40% and 31% respectively during the
period 2004-2020 and 38% and 39% respectively in 2020). (1624) In 2021, 81% of Swiss
Arbitration Centre’s cases were international, involving at least one party not domiciled
nor resident in Switzerland. (1625)
[g] Vienna International Arbitral Centre (1626)
The Vienna International Arbitral Centre (“VIAC”) was established in 1975. (1627) VIAC is
based in Vienna, Austria and the overwhelming majority of the arbitrations that it
administers are seated in Vienna (although VIAC can also administer arbitrations sited
elsewhere). (1628) VIAC conducts only international arbitrations, as mandated by the VIAC
Rules’ requirement that at least one of the parties be of non-Austrian origin or that the
dispute be of an international character. (1629) VIAC reported the filing of 44 new cases in
2021, compared with 40 cases in 2020 and 45 cases in 2019. (1630)
VIAC arbitrations are administered in accordance with the Vienna Rules of Arbitration
and Conciliation (“VIAC Rules”). The VIAC Rules were revised in 2006 (1631) in order to take
into account changes to Austrian arbitration legislation. (1632) More recent revisions in
2018 preserved the essential features of the 2013 VIAC Rules while introducing
amendments to modernize and streamline the rules’ procedures. (1633)
The VIAC Rules were most recently revised in 2021. The new VIAC Rules entered into force
on 1 July 2021. The revision of the VIAC Rules was prompted by the drafting of the new
standalone set of VIAC Rules of Investment Arbitration and Mediation, which also entered
into force on 1 July 2021. (1634)
The latest revisions of the VIAC Rules were limited and sought to bring the rules in line
with modern trends. The amendments reflect technical innovations, introduce the VIAC
Portal, and enhance the efficiency of the proceedings. (1635)
VIAC was originally conceived primarily as a venue for East/West economic disputes
during the Cold War. These origins are reflected in the fact that a significant proportion of
VIAC’s caseload still includes parties from Central and Eastern Europe or Russia.
[h] Stockholm Chamber of Commerce Arbitration Institute (1636)
Founded in Stockholm in 1917, the Stockholm Chamber of Commerce Arbitration Institute
(“SCC”) is a well-recognized arbitral institution and reportedly the second most popular
institution for the administration of investor-state disputes. The SCC administers
arbitrations under SCC Rules and other rules agreed by the parties, including the
UNCITRAL Rules. The SCC also offers mediation services.
The development of the SCC was significantly enhanced by its designation as appointing
authority under the 1977 agreement on the optional clause for use in contracts in USA-
USSR trade, and the 1984 cooperation agreement between the SCC and the China Council
for the Promotion of International Trade. (1637) In the 1980s, the SCC developed into a
substantial forum for foreign trade disputes involving parties from the USSR and
(subsequently) China. (1638) The designation of SCC arbitration as an option for investor-
state dispute resolution in bilateral investment treaties between the Eastern European
and Western states in the 1980s and in the Energy Charter Treaty further enhanced the
SCC’s role. (1639)
In 2021, the SCC registered 165 new arbitrations, of which about half (78) were
international disputes involving parties from 42 countries. The three largest users of SCC
arbitration after Swedish parties were parties from Tajikistan, Russia, Italy and the
United States. (1640)
The SCC Rules were extensively revised in 2007, 2010 (with the addition of the Emergency
Arbitrator Rules) (1641) and in 2017. (1642) The 2017 SCC Rules introduced new provisions
86
on multi-party and multi-contract disputes, security for costs and administrative
secretaries, a new summary procedure, and rules for investor-state disputes. When
revising its rules, the SCC continued to prefer short, flexible provisions that leave many
aspects of arbitral procedure to the tribunal and the parties to decide. (1643) The SCC
also revised its Guidelines for Arbitrators in June 2020 and issued Rules for Express
Dispute Assessment in May 2021. (1644)
SCC arbitrations are usually seated in Sweden, although other places of arbitration may
be chosen. (1645) Most arbitrators appointed in SCC cases in 2020 were European
nationals, although also arbitrators from Australia, North America and South America
were appointed. (1646)
[i] Hong Kong International Arbitration Centre (1647)
The HKIAC was established in 1985 and had developed into Asia’s leading international
arbitral institution prior to hand-over of the British administration. On 1 September 2008,
HKIAC adopted the HKIAC Administered Arbitration Rules, which are based on the
UNCITRAL Rules (although parties are free to agree upon alternative procedural regimes).
(1648) The HKIAC Rules were revised in revised in 2013 and in 2018, in response to users’
comments and developments in other institutional rules. (1649) The HKIAC enjoys a
substantial caseload (277 arbitrations reportedly filed in 2021, 319 in 2020, 308
arbitrations in 2019, 265 in 2018, 297 in 2017, 262 in 2016, 271 in 2015 and 252 in 2014).
(1650)
The Hong Kong Arbitration Ordinance (which is based on the UNCITRAL Model Law)
provides a broadly favorable arbitration regime. Nonetheless, potential users have
increasingly voiced concerns about judicial independence and neutrality in Hong Kong,
and most informed parties are very reluctant to designate the HKIAC, particularly in
disputes involving Chinese parties.
Hong Kong and China concluded the Supplemental Arrangement Concerning Mutual
Enforcement of Arbitral Awards on 27 November 2020, clarifying and removing certain
restrictions in the mutual enforcement regime between Hong Kong and China. The Hong
Kong Arbitration Ordinance was amended via the Arbitration (Amendment) Ordinance on
19 May 2021, which came into effect to implement Article 2 and Article 3 of the
Supplemental Arrangement.
[j] Chinese International Economic and Trade Arbitration Center (1651)
The China International Economic and Trade Arbitration Center (“CIETAC”) was
established by the Chinese government in 1956. Also known as the Court of Arbitration of
China Chamber of International Commerce, CIETAC is based in Beijing, with offices in a
number of other Chinese cities. CIETAC enjoys a privileged position in Chinese arbitration
and is focused overwhelmingly on Chinese-related disputes. In particular, the 1995
Chinese Arbitration Law gave CIETAC (and the China Maritime Arbitration Commission) a
de facto monopoly on international arbitrations seated in China. (1652)
During the 1980s, CIETAC played only a relatively minor role, even in Chinese arbitrations,
handling only some 40 cases a year. (1653) During recent years, however, CIETAC’s
caseload has reportedly increased substantially, with 4,071 arbitrations filed in 2021 (of
which, 636 were foreign-related and 3,435 were domestic arbitrations). (1654)
CIETAC frequently revises its Rules, most recently in 1998, 2000, 2012 and 2015. (1655) The
revisions have sought to bring CIETAC’s practices into line with other major international
arbitration institutions, by affording greater party autonomy, transparency and
efficiency. Unlike early versions of the CIETAC Rules, which required the parties to
appoint arbitrators from CIETAC’s Panel of Arbitrators, recent versions of the Rules permit
the parties, by agreement, to choose non-CIETAC arbitrators. (1656) Nevertheless, CIETAC
reportedly continues to promote a Sino-centric Panel of Arbitrators. (1657)
Under the 2015 CIETAC Rules, parties are able to choose either adversarial or inquisitorial
proceedings. (1658) The Rules impose a six-month time limit from the date of
composition of the tribunal to issuance of an award (1659) and stricter requirements have
been introduced for disclosure of conflicts, as well as challenges to, and replacement of,
arbitrators. (1660)
Other important changes to the CIETAC Rules include the parties’ ability to agree to
CIETAC arbitration outside China and to modify the CIETAC Rules and/or incorporate the
rules of other arbitral institutions. (1661) Arbitral tribunals have also been granted
enhanced powers under the CIETAC Rules, including the power in some cases to decide on
its own jurisdiction (a power previously reserved exclusively for CIETAC itself). (1662) The
2015 Rules have introduced an emergency arbitrator procedure, (1663) as well as
provisions on the joinder and consolidation of parties. (1664) The 2015 Rules have
retained CIETAC’s supervision over cases, including the practice of reviewing draft
awards. (1665) In terms of fees, both the administrative fees charged by CIETAC and the
arbitrators’ fees are based upon the amount in dispute between the parties. (1666)
In 2017, CIETAC also introduced a new set of Investment Arbitration Rules. These rules
were drafted by CIETAC and its parent body, the China Council for the Promotion of
International Trade, reportedly with the intention of developing the practice of
87
investment arbitration in China and supporting outbound Chinese investment in “Belt
and Road Initiative” projects. (1667) These rules include a number of unique features that
mirror Chinese domestic arbitration practice, including an express obligation on
participants to the arbitration to act in good faith, (1668) and a provision allowing an
investment arbitral tribunal to itself conduct mediation of the dispute during arbitral
proceedings. (1669)
Despite recent changes, experienced foreign users are very, and increasingly, skeptical
about CIETAC arbitration, particularly in matters involving disputes between Chinese and
non-Chinese parties. Uncertainty regarding CIETAC’s management and independence has,
in the eyes of many observers, deepened in recent years. (1670) Except in the most
routine types of commercial dealings, with limited amounts in dispute, foreign investors
and other foreign parties doing business related to China will continue to insist for the
foreseeable future on third-country arbitral institutions. Chinese state entities often
suggest that they are unable to accept any arbitral institution other than CIETAC, but
experience indicates that this is not correct.
[k] Cairo Regional Centre for International Commercial Arbitration
The Cairo Regional Centre for International Commercial Arbitration (“Cairo Centre” or
“CRCICA”) is a non-profit, international organization established in Egypt in 1979 under the
auspices of the Egyptian Government and the Asian-African Legal Consultative
Organization. The Cairo Centre administers both domestic and international arbitrations;
the Centre received 67 new arbitration filings in 2020, compared to 82 arbitrations filed
in 2019. (1671) Between 1979 and 2020, the Cairo Centre administered over 1,450
arbitrations. (1672) The Cairo Centre directs its services primarily towards Asian-African
trade and investment disputes, particularly in the Arab world. The CRCICA Rules were
revised in 1998, 2000, 2002, 2007 and, most recently, in 2011, when the Cairo Centre
adopted the UNCITRAL Rules, as revised in 2010, with only minor changes addressing the
Cairo Centre’s role as an arbitral institution and appointing authority. (1673) The Cairo
Centre reportedly maintains a list of more than 1,000 international arbitrators (drawn
primarily from the Asian-African region).
[l] Saudi Center for Commercial Arbitration
The Saudi Center for Commercial Arbitration (“SCCA”) is a new arbitral institution
established in 2014 by Saudi governmental decree. (1674) The SCCA Arbitration Rules are
based on the UNCITRAL Rules and are in line with recent developments in institutional
arbitration, including provisions for emergency arbitration, joinder and consolidation.
(1675) The SCCA Rules take into account the Saudi Arbitration Law, providing that they
apply without prejudice to Sharia law. (1676) The establishment of the SCCA is an
important step in the development of international arbitration in the Middle East.
[m] Arbitral Institutions in the United Arab Emirates
The UAE is one of the principal international arbitration jurisdictions in the Middle East.
Arbitration in the UAE is characterized by a distinction between “onshore” arbitration, in
Dubai (and other Emirates), which is governed by Federal Law No. 6 of 2018 (which
replaced applicable provisions in Civil Procedure Code No. 11 of 1992), and “offshore”
arbitration, which is established in certain free zones having their own distinct
arbitration regime. (1677) “Offshore” arbitration has developed in two free zones having
separate legal systems, based principally on common law. (1678) The Dubai International
Financial Centre (“DIFC”) was established in 2004, followed by the Abu Dhabi Global
Market (“ADGM”) in 2013. (1679) In establishing the DIFC and ADGM, the UAE provided,
uniquely, for a largely autonomous common law legal regime within a civil law
jurisdiction.
The principal “onshore” arbitration institutions in the UAE include the Abu Dhabi
Commercial Conciliation and Arbitration Centre (“ADCCAC”) established in 1993 by the Abu
Dhabi Chamber of Commerce and Industry, the Dubai International Arbitration Centre
(“DIAC”), the Sharjah International Commercial Arbitration Centre and the Ras Al Khaimah
Centre for Reconciliation and Commercial Arbitration. (1680) In addition, a new
specialized maritime arbitration institution, the Emirates Maritime Arbitration Centre
(“EMAC”), commenced operations in Dubai in 2016. (1681)
The DIAC was the first “onshore” arbitral institution in the UAE and is widely used in the
Middle East. Founded in 2004, the DIAC reportedly registered 208 new cases in 2019.
On 14 September 2021, the Emirate of Dubai issued a new DIAC Statute via Decree No. 34
of 2021, including new provisions concerning DIAC’s Board and its Administrative Body, as
well as establishing the DIAC Court of Arbitration. (1682) Decree No. 34 provides for the
consolidation of local arbitration centers into a single institution, DIAC 2.0, which will
have both an onshore and an offshore presence. (1683) The DIAC published updated rules
after a lengthy review process in March 2022. The 2022 DIAC Arbitration Rules entered into
force on 21 March 2022 and apply to arbitrations commenced on or after that date. The
revisions address matters such as third-party funding, virtual hearings, expedited and
emergency proceedings.
The DIFC-LCIA Arbitration Centre (“DIFC-LCIA”) was established in 2008 to provide
88
“offshore” arbitration in association with the LCIA. (1684) DIFC-LCIA was restructured by
legislation in 2014 to address questions concerning its territorial jurisdictional
competence. (1685) The DIFC-LCIA Rules came into effect in February 2008 and were
revised in October 2016 and January 2021. The DIFC-LCIA experienced strong growth in its
caseload, (1686) but the Emirate of Dubai abolished the institution by Decree No. 34 of
2021, which became effective on 20 September 2021. (1687) The Decree abolished the
EMAC and the DIFC Arbitration Institute, which operated the DIFC-LCIA. The property, staff
and cases of these entities were transferred to the DIAC pursuant to the Decree. This
unexpected move is reported to have been motivated by a desire to concentrate
institutional arbitration in the re-launched DIAC, instead of having two different
institutions – an onshore (the previous DIAC) and an off-shore (DIFC-LCIA) institution –
operating under different rules. (1688)
The ICC has a representative office in the ADGM and in October 2018 the ADGM Arbitration
Centre was opened. (1689)
[n] World Intellectual Property Organization (1690)
The Arbitral Centre of the World Intellectual Property Organization (“WIPO”) was
established in Geneva, Switzerland in 1994. WIPO and its Arbitration Rules are designed
particularly for intellectual property disputes, although other types of controversies are
not excluded from use of the WIPO Rules and facilities. WIPO’s Arbitration Rules contain
detailed provisions dealing with issues that are of particular importance in intellectual
property disputes. These include provisions relating to discovery, disclosure and
protection of trade secrets, and confidentiality of arbitral proceedings. (1691) The WIPO
Rules were revised in 2014, 2020 and in 2021 and now incorporate provisions for
emergency relief proceedings. (1692)
As of 2022, the WIPO Arbitration and Mediation Centre had administered a cumulative
total of nearly 900 arbitrations, mediations and expert determinations, covering a broad
range of intellectual property disputes (including patent, copyright, software licenses
and research and development matters). (1693) WIPO also administers a very large
number of domain names disputes. (1694)
[o] Court of Arbitration for Sport (1695)
The Court of Arbitration for Sport (“CAS”) was established in Lausanne, Switzerland, in
1984, and is sometimes termed the “Supreme Court of world sport.” (1696) Most major
sports governing bodies use the CAS’s arbitration facilities, including the International
Olympic Committee, (1697) World Athletics, (1698) Fédération Internationale de Football
Association (“FIFA”), (1699) and the Union of European Football Associations (“UEFA”).
(1700) North American sports leagues are notable exceptions. (1701)
Arbitration procedure at CAS is governed by the Code of Sports-Related Arbitration and
Mediation Rules (“CAS Code”). (1702) The CAS Code is comprised of two parts: the “Statutes
of the Bodies Working for the Settlement of Sports-related Disputes” (Rules S1 to S26 of
the CAS Code) and the “Procedural Rules” (Rules R27 to R70). CAS provides for four
different forms of arbitration proceedings – an “ordinary” arbitration procedure, (1703) an
appeals procedure, (1704) special ad hoc procedures, (1705) and a first-instance
procedure related to anti-doping matters (since 2019). (1706)
The “ordinary” arbitration procedure governs commercial sports disputes submitted to
CAS (e.g., disputes arising out of sponsorship or licensing agreements, or employment
contracts) and is very similar to traditional commercial arbitration proceedings. (1707)
Appeals filed against decisions taken by sports-governing bodies (e.g., anti-doping
matters and other disciplinary sanctions, eligibility issues, match fixing) are governed by
the appeals procedure (1708) and constitute about 80% of the CAS caseload. (1709) Ad hoc
Divisions are established on site at sporting competitions and, in principle, are able to
render decisions within 24 hours of an application being filed. (1710) CAS’s new “Anti-
Doping Division” began operating in January 2019 under a separate set of arbitration rules
and “has been established to hear and decide anti-doping cases as a first-instance
authority” conferred to it by sports-governing bodies. (1711)
Parties to CAS arbitrations must select arbitrators from a list of arbitrators compiled by
the International Council of Arbitration for Sport (“ICAS”) and published on the CAS
website. (1712) The CAS maintains three separate lists of arbitrators: (i) the general list; (ii)
the football list; and (iii) the Anti-Doping Division list. Arbitrators appearing on the new
Anti-Doping Division list (eligible in first-instance procedures related to anti-doping
matters) may not serve as arbitrators in proceedings conducted by the Appeals
Arbitration Division, (1713) but remain eligible for proceedings submitted to the Ordinary
Arbitration Division.
CAS’s caseload has grown considerably over the last decade from 44 new cases in 2001 to
957 in 2020. (1714) The majority of cases relate to appeals of FIFA decisions. (1715) Other
cases cover a mixture of appeals relating to selection and eligibility decisions,
governance issues, match-fixing and challenges to the granting of hosting rights for
championships. (1716) Approximately 15% of all CAS cases can be characterized as
international commercial cases. (1717)
Arbitral awards rendered under the auspices of CAS can be challenged and set aside by
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the Swiss Federal Tribunal. (1718) While CAS awards may be recognized and enforced
under the New York Convention, in practice, they are usually enforced (indirectly) through
sanction mechanisms employed by various sports-governing bodies. (1719) The efficiency
and integrity of CAS arbitrations, including in highly-scrutinized settings such as the
Olympics, is a striking illustration of adaptation of the arbitral process to new forms of
dispute resolution, using procedures tailored to particular settings and needs.
[p] German Institution of Arbitration
The German Arbitration Committee was originally founded in 1920 to offer arbitration
services in Germany. (1720) On 1 January 1992, the Committee merged with the German
Arbitration Institute to form the German Institution of Arbitration (“Deutsche Institution
für Schiedsgerichtsbarkeit” or “DIS”) to provide nationwide arbitration services in
Germany for all sectors of the economy. (1721)
The DIS Arbitration Rules (published in both German and English, each of which is equally
authoritative) are intended for both national and international arbitrations. The DIS
Arbitration Rules were updated extensively in 2018. (1722) Much of the DIS’s caseload
consists of domestic disputes, although Germany’s enactment of the UNCITRAL Model Law
in 1998 (1723) may have helped somewhat to attract greater international usage. In 2019,
approximately 41% of the DIS annual caseload of 123 arbitrations (excluding sports
arbitration proceedings) involved foreign parties. (1724)
[q] Korean Commercial Arbitration Board
The Korean Commercial Arbitration Board (“KCAB”) was founded in 1966 and is authorized
to settle disputes under the Korean Arbitration Act. The KCAB has two sets of arbitration
rules, one for domestic arbitration and the other for international arbitration. The KCAB’s
International Arbitration Rules were most recently revised in 2016.
Over the past 55 years, the KCAB has administered some 7,000 arbitrations. (1725) In 2020,
the KCAB administered 406 arbitrations, including 336 domestic arbitrations and 69
international arbitrations. (1726)
[r] Japanese Commercial Arbitration Association
The Japan Commercial Arbitration Association (“JCAA”) and the Japan Shipping Exchange
(“JSE”) are Japan’s only permanent arbitral institutions. (1727) The JCAA was founded by
the Japan Chamber of Commerce and Industry in 1950, with a particular focus on
international commercial disputes.
The JCAA has adopted the JCAA Commercial Arbitration Rules, most recently revised and
supplemented in 2021, (1728) which have been used principally for Japan-related
international transactions. Between 2017 and 2021, 69 new arbitrations were registered
with the JCAA, including 15 new arbitrations in 2021. (1729) In general, the majority of the
JCAA’s cases have involved at least one non-Japanese party. (1730)
[s] Australian Centre for International Commercial Arbitration
The Australian Centre for International Commercial Arbitration (“ACICA”) was established
in 1985 on the initiative of the Institute of Arbitrators in Australia. The ACICA promulgated
new rules, based on the UNCITRAL Rules, in 2005, which were revised in 2011, 2016 and
2021 (among other things incorporating provisions addressing emergency arbitrations,
expedited procedures, consolidation, joinder, early determination, virtual hearings and
disclosure of third-party funding arrangements). (1731)
The ACICA enjoys a growing reputation, particularly in arbitrations involving parties from
the Asia/Pacific region, providing a credible alternative to either HKIAC or SIAC. The
ACICA can also act as appointing authority under the UNCITRAL Rules. (1732)
[t] Asian International Arbitration Centre
The Kuala Lumpur Regional Centre for Arbitration (“KLRCA”) was established in 1978 to
promote international commercial arbitration in the Asia/Pacific region. (1733) The KLRCA
was recently rebranded as the Asian International Arbitration Centre (“AIAC”). The AIAC
administers arbitrations under its rules, adopted in 2010 and extensively revised in 2018,
based on the 2013 UNCITRAL Rules. The AIAC released its latest revisions to its Arbitration
Rules on 1 August 2021. (1734) Although it still has a relatively limited caseload at this
stage (nine international arbitrations in 2019 and 11 in 2020), AIAC provides an alternative
to SIAC, HKIAC and ACICA in commercial arbitrations involving parties from the
Asia/Pacific region. (1735)
[u] Indian Council of Arbitration
The Indian Council of Arbitration (“ICA”) was established in 1965 and is regarded as India’s
preeminent arbitral institution. The ICA Rules of International Commercial Arbitration
(“ICA Rules”) are based on the provisions of the Indian Arbitration and Conciliation Act
(1996) and were most recently revised in 2016. (1736) Moreover, ICA’s new Rules of
Domestic Commercial Arbitration and Conciliation entered into force on 1 January 2021.
(1737) Many users remain cautious about seating arbitrations in India, noting
interventionist attitudes of Indian courts and other concerns. (1738) The ICA administered
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thirteen international arbitrations in 2015, compared with eight in August 2010 and five in
2011. (1739)
[v] JAMS International
In 2011, JAMS, a leading domestic mediation and arbitral institution in the United States,
combined with the ADR Center in Italy to form JAMS International, headquartered in
London. (1740) JAMS handles more than 10,000 arbitrations or mediations a year in North
America, where its panel of “neutrals” is comprised largely of former U.S. judges and
litigators. JAMS International launched its list of arbitrators and mediators. (1741)
The JAMS International Arbitration Rules, adopted in 2011, revised in 2016 and 2021, have
provisions similar to other leading institutional arbitration rules. (1742) They include
features that reflect recent developments in arbitration practice, (1743) such as a liberal
consolidation provision and options for online filing and email communications. The
Rules do not require terms of reference, but include a process for scrutinizing awards
before they are issued.
JAMS and JAMS International have sought to address concerns of parties about the costs
of the arbitral process. To that end, JAMS has adopted “Efficiency Guidelines for the Pre-
Hearing Phase of International Arbitrations,” which contain guidelines similar to those in
the 2020 IBA Guidelines for the Taking of Evidence in International Arbitration. (1744)
[w] Center for Arbitration and Mediation of the Chamber of Commerce Brazil–Canada
The Center for Arbitration and Mediation of the Chamber of Commerce Brazil–Canada
(“CAM-CCBC”) was founded in 1979 and is one of the leading arbitral institutions in Latin
America, with its headquarters in São Paulo. Since 1979, the CAM-CCBC has administered
more than 1,000 arbitrations, 17% of them being international. (1745) The CAM-CCBC Rules
were extensively revised in 2012, (1746) and are now broadly similar to the UNCITRAL
Rules. The CAM-CCBC issues Administrative Resolutions dealing with specific procedural
aspects of CAM-CCBC arbitrations (such as arbitration with Brazilian state entities (1747)
and third-party funding). (1748)
[D] Overview of International Guidelines and Soft Law

In addition to institutional arbitration rules, there are a number of international
guidelines or codes of best practice regarding the conduct of international arbitrations.
(1749) These sources play an important role in providing tested procedural solutions and
predictability in international arbitrations. These guidelines are buttressed by extensive
commentary from a wide range of arbitrators, practitioners, users and academics
addressing various procedural aspects of the international arbitral process. (1750)
These materials can provide important sources of guidance for both tribunals and
parties, making the arbitral process more predictable and transparent, while not
curtailing the parties’ and arbitrators’ ability to tailor arbitral procedures in particular
cases to the individual needs of those cases. (1751) In addition, some arbitral institutions
have incorporated guidelines into their institutional arbitration rules, or encourage the
use of guidelines in proceedings which they administer. (1752)
[1] IBA Rules on the Taking of Evidence in International Arbitration (1753)
Although not a set of institutional arbitration rules, the International Bar Association’s
“Rules on the Taking of Evidence in International Arbitration” fulfill related functions. In
1983, the IBA adopted the “Supplementary Rules Governing the Presentation and
Reception of Evidence in International Commercial Arbitration.” (1754) The Rules
attempted to provide a blend of civil law and common law approaches to the subjects of
discovery and evidentiary presentations in arbitration. (1755) The Rules were not
independently binding, but could either be adopted by parties in their arbitration
agreement (or otherwise) or relied upon by arbitral tribunals for guidance in making
procedural orders. (1756)
The IBA Rules were extensively revised in 1999, and retitled the “Rules on the Taking of
Evidence in International Commercial Arbitration” (“IBA Rules” or “IBA Rules on the Taking
of Evidence”). The 1999 IBA Rules established a reasonably-detailed and workable set of
procedures for witness evidence and disclosure requests in international arbitrations.
(1757) Like their predecessors, the 1999 IBA Rules were not independently binding, but
were intended for incorporation into parties’ arbitration agreements or as a basis for
tribunals’ procedural rulings. (1758) In practice, the 1999 IBA Rules came to be used
frequently as guidelines for arbitral procedures in international commercial arbitrations.
(1759)
The 1999 IBA Rules were revised in 2010 and (again) retitled the “Rules on the Taking of
Evidence in International Arbitration.” (1760) The 2010 IBA Rules were amended in three
principal respects.
First, the 2010 IBA Rules attempt to provide for a more efficient evidence-gathering
process which calls for early involvement of the tribunal (1761) and specific guidelines
regarding electronic documents, (1762) witness statements (1763) and expert reports.
(1764) Second, in order to maintain “fairness and equality,” the 2010 IBA Rules provide
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considerations for the tribunal to take into account when determining whether a legal
privilege should exclude a certain item of evidence. (1765) Third, the 2010 IBA Rules
provide an express requirement of good faith in the taking of evidence, (1766) and
authorize arbitral tribunals to consider violations of this obligation in awarding costs.
(1767)
The 2010 IBA Rules have achieved even greater currency than earlier versions of the rules.
According to a recent survey, 69% of those responding regarded the IBA Rules as
effective. (1768)
The IBA Rules were again revised in 2020. The IBA adopted the 2020 IBA Rules on 17
December 2020 and formally released the revised Rules on the Taking of Evidence in
International Arbitration on 15 February 2021. The aim of the 2020 revision was to further
clarify and streamline the IBA Rules, bringing them in line with international best
practice and reflecting the increasing use of technology in international arbitration.
(1769)
The 2020 changes were limited. The 2020 IBA Rules allow the tribunal to consult the
parties on cybersecurity and data protection issues, (1770) allow parties to respond to the
other party’s objections to document production requests, (1771) and explain that
documents produced in response to a document request do not form part of the
evidentiary record and do not have to be translated into the language of the arbitration.
(1772) A new Article 8(2) also provides that the tribunal may order that the evidentiary
hearing be conducted remotely. (1773)
The IBA Rules are discussed in detail below. (1774)
[2] ABA/AAA Code of Ethics, IBA Rules of Ethics for International Arbitrators and IBA
Guidelines on Conflicts of Interest in International Arbitration (1775)
In a related set of developments, non-binding international guidelines have been
adopted by the IBA and other bar associations with regard to the ethics of international
arbitrators. In 1977, a joint committee of the American Bar Association (“ABA”) and
American Arbitration Association adopted the ABA/AAA Code of Ethics. (1776) As discussed
in greater detail below, the Code sought to provide ethical guidelines for arbitrators,
focusing particularly on issues of bias and partiality. (1777) After lengthy debate, in 2004,
the ABA/AAA Code of Ethics was amended, including to impose presumptive duties of
independence and impartiality on co-arbitrators. (1778)
In 1987, the IBA adopted “Rules of Ethics for International Arbitrators.” (1779) Derived in
part from the ABA/AAA Code, the IBA effort sought to establish ethical standards for
application to international arbitrators. (1780) The IBA Rules of Ethics for International
Arbitrators were (and remain) influential guidelines in international arbitration practice.
In 2004, the IBA published a detailed set of guidelines and accompanying commentary
concerning the impartiality and independence of arbitrators (the “IBA Guidelines on
Conflicts of Interest in International Arbitration”). (1781) The 2004 IBA Guidelines were
extensively revised and expanded in 2014. (1782) As discussed in greater detail below,
(1783) the IBA Guidelines detail circumstances which are customarily considered to raise
doubts regarding an arbitrator’s independence or impartiality, and supersede the IBA
Rules of Ethics for International Arbitrators in this regard; they also provide for disclosure
of such circumstances by arbitrators and prospective arbitrators. (1784)
The IBA Guidelines have been the subject of considerable criticism, on the grounds that
they are needlessly detailed and encourage challenges to both arbitrators and awards.
(1785) The IBA Guidelines are not automatically binding on either national courts or
arbitral institutions. They nonetheless provide an influential perspective on customary
attitudes towards an arbitrator’s obligations of independence and impartiality in an
In 2021, a taskforce at the International Council for Commercial Arbitration (“ICCA”)
published Guidelines on Standards of Practice in International Arbitration (the “ICCA
Guidelines”), which includes general guidelines for all participants, as well as specific
guidelines for arbitrators, party representatives and other participants, including expert
and fact witnesses, tribunal secretaries, interpreters, court reporters and personnel of
arbitral institutions. They are not intended as mandatory rules, but as guiding principles
of civility in international arbitration. (1786) As explained by the introduction, “[t]he
Guidelines originated from a concern that there have been repeated examples in
international arbitration practice of conduct that falls below minimum civility
standards.” (1787)
[3] IBA Guidelines on Party Representation in International Arbitration
In 2013, the IBA adopted “Guidelines on Party Representation in International
Arbitration,” which seek to provide guidance regarding the conduct of counsel and other
party representatives in international commercial, investment and other arbitrations. By
their terms, Guidelines are not intended to “displace otherwise applicable mandatory
laws, professional or disciplinary rules, or agreed arbitration rules that may be relevant
or applicable to matters of party representation,” and instead purport to be purely
“contractual” in nature and applicable only when adopted by the parties. (1788)
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The Guidelines are “inspired by the principle that party representatives should act with
integrity and honesty and should not engage in activities designed to produce
unnecessary delay or expense, including tactics aimed at obstructing the arbitration
proceedings.” (1789) As discussed in detail below, (1790) the Guidelines set forth 27
principles, with accompanying commentary, regarding the professional conduct of party
representatives in international arbitrations, focusing in particular on conduct during the
arbitral proceedings (including disclosure, witness preparation, submissions to the
tribunal and similar subjects). (1791)
[4] Prague Rules on the Efficient Conduct of Proceedings in International Arbitration
The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration
(“Prague Rules”) were adopted in December 2018 and are intended to provide an
alternative to the IBA Rules. (1792) The drafters of the Prague Rules designed the Rules to
encourage tribunals to take a more active role in arbitral proceedings, consistent with
approaches in some civil law countries. (1793)
Unlike the IBA Rules, the Prague Rules discourage any form of document production,
(1794) encourage the arbitral tribunal to intervene to a greater extent in determining
which witnesses are cross-examined, (1795) and give the tribunal the right to apply legal
provisions not pleaded by the parties, including, but not limited to public policy rules.
(1796) The Prague Rules also provide for the assistance of the tribunal in achieving an
amicable settlement, including the right of the tribunal to act as mediator. (1797) The
reception to the Prague Rules has been mixed and it remains to be seen whether they
will be widely adopted in international arbitrations. (1798)
[5] UNCITRAL Notes on Organizing Arbitral Proceedings
In 1996, UNCITRAL published the “UNCITRAL Notes on Organizing Arbitral Proceedings.”
(1799) The UNCITRAL Notes are non-binding guidelines for arbitrators and parties which
are designed to identify issues that frequently arise in the course of international
arbitrations. Among other things, the UNCITRAL Notes briefly discuss procedural rules,
communications, written submissions, evidence, witnesses and hearings. The UNCITRAL
Notes were extensively updated in 2016, with new provisions addressing cost allocation,
joinder and consolidation, and in-house legal costs. (1800)
[6] Chartered Institute of Arbitrators “Practice Guidelines”
The Chartered Institute of Arbitrators (based in London) has issued a number of “Practice
Guidelines” providing recommendations regarding various practical aspects of the
international arbitral process. Among other things, the Guidelines address the
interviewing of arbitrators, documents-only arbitrations, costs orders and jurisdictional
challenges: the Guidelines are significantly influenced by domestic English practice and
are infrequently relied upon in international cases. The Guidelines are considered a work
in progress by the Institute with their most recent updates in November 2021. (1801)
[7] Cybersecurity Guidelines
In 2018, the IBA adopted “Cybersecurity Guidelines” (1802) which address the issue of
cybersecurity in arbitration and provide for a set of recommendations to law firms,
including the use of effective technology to protect data. The IBA Cybersecurity
Guidelines are in line with the initiatives of some other institutions, such as the
International Council for Commercial Arbitration (“ICCA”) Protocol, which seek to increase
awareness about information security in international arbitration proceedings and to
provide a framework to establish reasonable cybersecurity measures for individual
arbitration proceedings. (1803)
[8] Hague Rules on Business and Human Rights Arbitration
In 2019, a group of practicing lawyers and academics, chaired by Judge Bruno Simma,
released the Hague Rules on Business and Human Rights Arbitration (the “Hague Rules”).
The Hague Rules provide arbitral procedures for disputes arising from human rights
breaches related to transnational business conduct. (1804) The 2019 Hague Rules do not
seek to displace state-based judicial or non-judicial remedies, and were developed to
provide a voluntary international dispute mechanism to implement the UN Guiding
Principles on Business and Human Rights. (1805)
[E] Overview of Elements of International Arbitration Agreements

As already discussed, international commercial arbitration is almost always consensual:
(1806) arbitration generally occurs only pursuant to an arbitration agreement between
the parties. (1807) It is, of course, possible for parties to agree to submit an existing
dispute to arbitration, pursuant to a “submission agreement” or “compromise.” (1808)
Typically, however, disputes are arbitrated as a consequence of preexisting arbitration
clauses, applicable to future disputes, in the parties’ underlying commercial contract.
(1809)
Parties are largely free to draft their arbitration agreements in whatever terms they wish
and in practice this freedom is liberally exercised. (1810) Like other contractual clauses,
the terms of arbitration agreements are largely a product of the parties’ interests,
93
negotiations and drafting skills.
International arbitration agreements often – and advisedly – address a number of critical
issues. These are: (a) the agreement to arbitrate; (b) the scope of the disputes submitted
to arbitration; (c) the use of an arbitral institution and its rules; (d) the seat of the
arbitration; (e) the method of appointment, number and qualifications of the arbitrators;
(f) the language of the arbitration; and (g) a choice-of-law clause. In particular cases,
other provisions may be either vital to an effective international arbitration agreement
or advantageous to one or both parties. (1811)
[1] Agreement to Arbitrate
It is tautological – but not always the case in practice – that any arbitration clause must
set forth the parties’ agreement to arbitrate. (1812) As a drafting matter, this means that
arbitration agreements should (and usually do) expressly refer to “arbitration” – and not
to expert determination, accounting, conciliation, mediation, negotiation, settlement,
“ADR,” or some other form of non-judicial resolution. (1813) As discussed in greater detail
below, these other forms of alternative dispute resolution are not categorized as
“arbitration” under many international treaties and national arbitration statutes, and will
often not qualify for the “pro-enforcement” safeguards provided by these instruments.
(1814) Accordingly, a fundamental element of any international arbitration agreement is
the parties’ undertaking that “all disputes shall be finally resolved by arbitration.”
Similarly, most international arbitration agreements provide (and should provide) that
disputes should be referred to arbitration for a “binding” or “final” disposition (and not
for an advisory recommendation). (1815) An arbitration clause also should not treat
arbitration as a possible future option, applicable only if the parties so agree after a
dispute arises. (1816) Thus, arbitration clauses should (and usually do) provide that “all
disputes shall be finally resolved by arbitration.” (1817)
[2] Scope of Arbitration Agreement
Critical to any arbitration clause is its “scope” – that is, the categories of disputes or
claims that will be subject to arbitration. (1818) For example, an agreement to arbitrate
may provide that all disputes between the parties, bearing any conceivable connection
to their dealings with one another, are subject to arbitration. Alternatively, the parties
may agree that only contract claims that clearly arise under the express terms of the
parties’ contract or, alternatively, under only specified provisions of that contract, are to
be arbitrated; similarly, the parties may agree that particular types of claims are to be
excluded from an otherwise broad arbitration agreement. (1819)
There are a handful of formulae that are customarily used to define the scope of
arbitration clauses. (1820) These formulae include (i) “any” or “all” disputes; (ii) “arising
under this Agreement”; (iii) “arising out of this Agreement”; (iv) “in connection with this
Agreement”; and (v) “relating to this Agreement.” Alternative formulations are also used,
including: (vi) “all disputes relating to this Agreement, including any question regarding
its existence, validity, breach, or termination”; or (vii) “all disputes relating to this
Agreement or the subject matter hereof.” (1821)
As a general rule, international arbitration clauses are drafted broadly, to cover all
disputes having any connection with the parties’ dealings. (1822) Doing so avoids the
expense arising from parallel proceedings (when certain contractual disputes are
arbitrated and other, related contractual, or non-contractual, disputes are litigated).
(1823) It also avoids the uncertainties resulting from potentially inconsistent decisions in
different forums and from jurisdictional disputes over the scope of disputes to be heard
in different forums.
Even where the parties have agreed in principle to a broad arbitration clause, there may
be claims or disputes that one party does not want submitted to arbitration. This can
include matters such as intellectual property rights or payment obligations, which are
sometimes excluded or carved out of the scope of the arbitration clause. (1824) Although
these types of provisions can serve legitimate objectives, it is usually better to avoid
efforts to exclude particular types of disputes from arbitration, except in unusual
circumstances. Such exclusions often lead (undesirably) to parallel proceedings in both
the arbitral forum and national courts, and to jurisdictional disputes over the application
of an arbitration clause to particular claims. (1825)
[3] Institutional Arbitration
As discussed above, institutional arbitration is conducted pursuant to procedural rules
promulgated by a particular arbitral institution, which generally also “administers” the
arbitration. (1826) If institutional arbitration is desired, the parties’ arbitration
agreement must select and refer to an arbitral institution and its rules. (1827) In general,
every arbitral institution provides its own model arbitration clause; parties wishing to
invoke the institution’s rules should ordinarily use this clause as the basis for their
arbitration agreement, departing from it only with care and for considered reasons.
(1828)
In cases where the parties do not wish to agree to institutional arbitration, they will
sometimes select a preexisting set of procedural rules designed for ad hoc arbitrations
94
(such as the UNCITRAL Rules). (1829) Arbitration clauses frequently accomplish this result
by references such as “all disputes shall be settled by arbitration in accordance with the
UNCITRAL Arbitration Rules.”
[4] Specifying Seat or Place of Arbitration
Another vital element of any international arbitration agreement is designation of the
“seat” (or “place”) of the arbitration. (1830) As discussed below, the arbitral seat is a legal
or choice-of-law concept: it is the state where the arbitration has its formal legal or
juridical home, whose arbitration law governs the arbitral proceedings, and under whose
law the arbitral award is made. (1831) The seat of an arbitration is also frequently the
geographic location where many or all of the hearings in the arbitration will be
conducted, although this is not a requirement and the tribunal may hold hearings
elsewhere for reasons of convenience. (1832) The text of contractual provisions selecting
the arbitral seat is not complex, usually providing only “The seat of the arbitration shall
be …” or “The place of arbitration shall be ….”
As discussed below, there are a number of legal and practical consequences that follow
from selection of an arbitral seat, making this one of the most important aspects of any
international arbitration agreement. (1833) These consequences include influencing the
choice of law governing the arbitration agreement, the selection of the procedural law of
the arbitration and the national courts responsible for applying that law, the selection of
the national courts responsible for issues relating to constitution of the tribunal and
assistance in other aspects of arbitral procedure, and the selection of the national courts
responsible for (and arbitration law applicable to) annulment of arbitral awards. (1834)
All of these issues are of substantial importance to the arbitral process (which contrasts
with domestic arbitration in many countries, where the selection of an arbitral situs has
much less practical importance).
[5] Number, Method of Selection and Qualifications of Arbitrators
It is also common for international arbitration agreements to address the number, means
of appointment and qualifications of the arbitrators. (1835) As discussed below, selection
of the arbitrators is one of the most critical issues in any arbitration. (1836) Addressing
this issue in the arbitration agreement is vitally important.
Arbitration clauses often specify the number of persons who will comprise an arbitral
tribunal in the event of future disputes. If the parties do not agree upon the number of
arbitrators, leading institutional rules generally grant the arbitral institution power to do
so; (1837) otherwise, national courts in the arbitral seat will have the power to decide,
generally pursuant to default rules in national arbitration legislation. (1838) Nonetheless,
relying on a judicial or institutional decision regarding the number of arbitrators can
result in delays or jurisdictional disputes. As a consequence, parties often specify the
number of arbitrators in their arbitration clause. (1839)
The text of provisions designating the number of arbitrators is not complex. For example,
a typical clause would provide: “Any dispute shall be finally resolved under the [Rules] by
[three arbitrators] [one arbitrator] appointed in accordance with the said Rules.” An
alternative provides “the number of arbitrators shall be [three] [one].” (1840)
It is also essential for an arbitration agreement to include some method for selecting the
arbitrator(s). The most common approach is for the parties to attempt to reach
agreement on a sole arbitrator or to each appoint one member of a three-member
tribunal, with the third arbitrator chosen by the two party-appointed arbitrators or
selected by an appointing authority. (1841)
It is also essential for the parties to include a method of appointing the arbitral tribunal
in the event that they cannot, or do not, constitute the tribunal as agreed. (1842) The most
common such mechanism is designation of an “appointing authority,” which will select a
sole arbitrator or presiding arbitrator in the event that the parties (or party-nominated
arbitrators) cannot do so, or if a party fails to select a party-nominated arbitrator. (1843)
All leading institutional rules provide for such a role by the arbitral institution when the
parties agree to arbitrate under an institution’s rules, (1844) and no special wording
(aside from adopting the institution’s rules) is necessary to select the institution as
appointing authority. (1845)
Finally, international arbitration agreements can either directly specify or indirectly
influence the qualifications and characteristics of the arbitrators. (1846) For example,
most leading institutional rules provide that a presiding or sole arbitrator shall not have
the same nationality as that of any of the parties (unless otherwise agreed). (1847) An
arbitration agreement can also require (or prohibit) the appointment of persons with
particular credentials or expertise (such as legal qualifications, accounting degrees of
Iran, specified nationalities or engineering experience). (1848) Arbitration clauses may
also require that the arbitrators have particular language abilities, such as “each
arbitrator shall be fluent in Spanish.” (1849)
[6] Language of Arbitration
Arbitration clauses in international agreements frequently specify the language (or
languages) of the arbitral proceedings and award. (1850) Although sometimes overlooked,
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this is a point of vital importance, which can have a critical practical effect on the
selection of the arbitrators (and counsel) and the character of the arbitral proceedings.
Absent the parties’ agreement, institutional rules usually expressly authorize the arbitral
tribunal to select a language (or languages) of the arbitration. (1851) This will often be the
language of the underlying contract or arbitration agreement. (1852) Even if institutional
rules do not address the issue, national law will ordinarily give the tribunal authority to
select a language for the arbitration. (1853) Nonetheless, there is seldom any reason to
leave this issue to chance, particularly given the simplicity of a provision to the effect
that “the language of the arbitration shall be [English].”
[7] Choice-of-Law Clauses
Any international dispute can give rise to tortuous choice-of-law questions. (1854) As a
consequence, and as discussed below, many international commercial agreements are
accompanied by a choice-of-law clause, specifying the substantive law applicable to the
parties’ underlying contract and related disputes. (1855)
In addition to the substantive law governing the parties’ underlying contract, other
questions of applicable law frequently arise in connection with international
arbitrations. Thus, as discussed in detail below, a different law may apply to the
arbitration agreement (as distinguished from the parties’ underlying contract); (1856) that
is because an arbitration clause is deemed a “separable” or “autonomous” contract in
most legal systems, which is not necessarily subject to the same substantive law as the
underlying contract. (1857) It is possible, and occasionally advisable, to adopt a choice-
of-law clause that specifically addresses the law applicable to the arbitration
agreement, as distinct from the parties’ underlying contract.
It is also possible for a different law to apply to the procedural conduct of the arbitration
itself, separate from that governing the arbitration agreement or underlying contract.
(1858) In almost all cases, the procedural law of the arbitration will be that of the arbitral
seat, although there are rare exceptions. (1859) Parties sometimes include choice-of-law
provisions that designate the procedural law applicable to arbitral proceedings.
Significant complexities can arise from such provisions, and great care must be taken in
utilizing them. (1860)
[8] Other Provisions of International Arbitration Agreements
Many international arbitration agreements also contain other provisions, in addition to
the elements discussed above. The existence and nature of these provisions varies from
case to case, depending on the parties’ negotiations, drafting and interests. The most
common additional elements include: (a) allocation of the costs of legal representation;
(1861) (b) interest and currency of an award; (1862) (c) disclosure or discovery; (1863) (d)
fast-track or other procedural rules; (1864) (e) so-called escalation clauses or multi-tier
dispute resolution clauses; (1865) (f) state/sovereign immunity waivers; (1866) and (g)
confidentiality. (1867)
[9] Drafting Arbitration Agreements: Recommended Approach
Like other contractual provisions, an international arbitration clause is ultimately the
product of what the parties choose to agree upon. It is a creature of negotiations and
drafting skill (or fallibility). In some cases, the parties’ products are sui generis; they may
be thoughtful and inspired or, regrettably, pathologically defective.
In the overwhelming majority of cases, however, international arbitration agreements are
straightforward exercises, adopting either entirely or principally the model, time-tested
clause recommended by a leading arbitral institution. (1868) Although pedestrian, this
course is almost always the wisest one.
A representative example of such an arbitration agreement, which should contain each of
the elements identified above, is as follows:
“All disputes, claims, controversies, and disagreements relating to or arising
out of this Agreement (including the formation, existence, validity,
enforceability, performance, or termination of this Agreement), or the subject
matter of this Agreement, shall be finally resolved by arbitration [under the –
Rules] by [three arbitrators] [one arbitrator]. The seat of the arbitration shall
be [Paris] [London, England] [New York/Washington]. The language of the
arbitration shall be English.” (1869)
Provisions of this sort are frequently supplemented by a choice-of-law clause, selecting
the law applicable to the parties’ underlying contract and other disputes, as well as by
one or more of the optional provisions referred to above. Where such a clause is used,
rather than more complex or creative provisions, the risks of pathological defects or
jurisdictional and procedural disputes are minimized.
[F] Overview of Choice of Law in International Commercial Arbitration

Parties frequently agree to arbitration to avoid the jurisdictional and choice-of-law
uncertainties that arise when international disputes are litigated in national courts.
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(1870) Unfortunately, international arbitration can produce its own set of complex,
sometimes unpredictable choice-of-law issues. (1871)
Choice-of-law issues play an important role in international commercial arbitration. It is
necessary to distinguish between four separate choice-of-law issues that can arise in
connection with an international arbitration: (a) the substantive law governing the merits
of the parties’ underlying contract and other substantive rights and obligations; (b) the
law governing the parties’ arbitration agreement; (c) the law applicable to the arbitral
proceedings; and (d) the conflict of laws rules applicable to select each of the foregoing
laws. (1872) Although not common, it is possible for each of these four issues to be
governed by a different national (or other) law.
Each of the foregoing choice-of-law issues can have a vital influence on international
arbitral proceedings. Different national laws provide different – sometimes dramatically
different – rules applicable at different stages of the arbitral process. Understanding
which national rules will potentially be applicable can therefore be critical.
[1] Law Applicable to Substance of Parties’ Dispute
The parties’ underlying dispute will ordinarily be resolved under the rules of substantive
law of a particular national legal system. (1873) In the first instance, it will usually be the
arbitrators who determine the substantive law applicable to the parties’ dispute. (1874)
As discussed in detail below, international arbitral awards typically give effect to the
parties’ agreements concerning applicable substantive law (“choice-of-law clauses”).
(1875) The principal, but very limited, exception is where mandatory national laws or
public policies purport to override private contractual arrangements. (1876)
Where the parties have not agreed upon the substantive law governing their dispute, the
arbitral tribunal must select such a law. In so doing, the tribunal will sometimes (but not
always) refer to some set of national or international conflict of laws rules. These varying
approaches to the choice of substantive law in international arbitration are examined in
detail below. (1877)
Although the historical practice was to apply the national conflict of laws rules (or
substantive law) of the arbitral seat, more recent practice is diverse. Some tribunals and
commentators adhere to the traditional approach, while others look to the conflicts rules
of all states having a connection with the dispute. (1878) Additionally, some authorities
adopt either international conflict of laws rules or validation principles. (1879) The
development of bodies of international substantive rules dealing with commercial
matters has facilitated this development. (1880)
[2] Law Applicable to Arbitration Agreement
As discussed elsewhere, arbitration agreements are universally regarded as
presumptively “separable” from the underlying contract in which they appear. (1881) One
consequence of this is that the parties’ arbitration agreement may be governed by a
different national law than that applicable to the underlying contract. This can occur
either by the parties’ express choice of law or by the application of conflict of laws rules
(which may select different substantive laws for the parties’ arbitration agreement and
their underlying contract). (1882)
As described below, four alternatives for the law governing an arbitration agreement are
of particular importance: (a) the law chosen by the parties to govern the arbitration
agreement itself; (b) the law of the arbitral seat; (c) the law governing the parties’
underlying contract; and (d) international principles, either applied as a substantive
body of contract law (as in France) or as rules of non-discrimination (as in most U.S.
authority). (1883) As also discussed below, the better view is that Articles II(1) and V(1)(a)
of the New York Convention mandate presumptive application of the law of the arbitral
seat to international arbitration agreements, together with a validation principle. This
validation principle upholds the substantive validity of those agreements if they are
valid under any potentially-applicable national law with a connection to the parties’
agreement. (1884)
[3] Procedural Law Applicable to Arbitral Proceedings
The arbitral proceedings themselves are also subject to legal rules, governing both
“internal” procedural matters and “external” relations between the arbitration and
national courts. In virtually all instances, the law governing the arbitral proceeding is the
arbitration statute of the arbitral seat (i.e., the location selected by the parties as the
juridical place of arbitration). (1885)
Among other things, the law of the arbitral seat typically deals with such issues as the
arbitral tribunal’s competence-competence, the appointment and qualifications of
arbitrators, the extent of judicial intervention in the arbitral process, the availability of
provisional relief, the procedural conduct of the arbitration, the form of any award and
the standards for annulment of any award. Different national laws take significantly
different approaches to these various issues. In some countries, national law imposes
strict limits or requirements on the conduct of the arbitration and local courts have
broad powers to supervise or intervene arbitral proceedings. (1886) Elsewhere, and in
most developed jurisdictions, local law affords parties and international arbitrators very
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broad freedom to conduct the arbitral process – subject only to mandatory requirements
of procedural regularity (“due process” or “natural justice”). (1887)
In some jurisdictions, parties are free to select the law governing the arbitral proceedings
(variously referred to as the procedural law of the arbitration, the curial law, the lex
arbitri, or the loi de l’arbitrage). (1888) This theoretically includes the freedom to agree to
the application of a different procedural law than that of the arbitral seat; in practice,
however, this very seldom occurs and the effects of such an agreement are uncertain and
problematic. (1889)
[4] Choice-of-Law Rules Applicable in International Arbitration
Selecting each of the bodies of law identified in the foregoing three sections – the law
applicable to the merits of the underlying contract or dispute, to the arbitration
agreement and to the arbitral proceedings – ordinarily requires application of conflict of
laws rules. In order to select the substantive law governing the parties’ dispute, for
example, an arbitral tribunal must generally apply a conflict of laws system. (1890) And,
just as different states have different rules of substantive law, they also have different
conflict of laws rules. An international arbitral tribunal must therefore decide at the
outset what set of conflicts rules to apply.
The practice of arbitral tribunals in selecting the law applicable to each of the foregoing
issues varies significantly. Approaches include application of (a) the arbitral seat’s
conflict of laws rules; (b) “international” conflict of laws rules; (c) cumulative application
of the conflict of laws rules of all interested states; and (d) “direct” application of
substantive law (without any express conflicts analysis). (1891)
The current state of conflict of laws analysis in international arbitration has not kept pace
with the parties’ aim of avoiding the peculiar jurisdictional, choice-of-law and
enforcement difficulties that attend the litigation of international disputes in national
courts. There is often uncertainty, and wasted time and expense, as a consequence of
contemporary conflict of laws analysis. Nonetheless, recent national court decisions and
arbitral awards suggest the path towards development of international principles of
validation and non-discrimination which hold promise of realizing more fully the
aspirations of the international arbitral process. (1892)
§1.05 THEORIES OF INTERNATIONAL ARBITRATION

There have been numerous theoretical efforts to categorize arbitration within domestic
legal systems. (1893) Among other things, these theories have included characterizations
of arbitration as “contractual,” “jurisdictional,” “hybrid” and “autonomous.” There has
been little agreement on these various theories and recent academic debate has
centered on the notion of autonomy, or “delocalization” of international arbitration.
(1894)
[A] Leading Theories of Arbitration

The “contractual” school of thought regarded arbitration as a form of contractual
relations. (1895) According to one early proponent of this analysis:
“It is the arbitration agreement that gives [the arbitral award] its existence; it
is from the arbitration agreement that it derives all its substance; it has, then,
like the arbitration agreement, the character of a contract; and the precise
truth is that it is only the performance of the mandate that the parties have
entrusted to the arbitrators; it is even, to put it precisely, only an agreement
to which the parties have bound themselves by the hands of the latter (the
arbitrators).” (1896)
The contractualist school emphasized that arbitrators were not judges (since they
performed no “public” function and exercised no powers on behalf of the state). In
general terms, the contractualist school placed primary emphasis on the role of party
autonomy in the arbitral process. (1897)
Other authors reject the notion that arbitration – including the arbitral proceedings and
award – is predominantly contractual, and instead adopt a “jurisdictional” analysis. They
reason that arbitration is essentially adjudicative, involving the exercise of independent,
impartial decision-making by the arbitrators:
“while an arbitration agreement has the formal aspects of a contract, by its
very nature it assumes the absence of any agreement between the parties with
respect to a dispute other than on the mode of settlement. Arbitration is a
means, a method, a procedure, rather than an agreement.” (1898)
Or, as another authority put it, “[a]n arbitrator is a private judge.” (1899) Proponents of
this school emphasize the arbitrator’s performance of functions that are public, or
“judicial,” in character, (1900) and the role of national law in conferring such powers on
the arbitrator. (1901) In general terms, the “jurisdictional” theory of arbitration gives
primary importance to the role of national law, and particularly the law of the arbitral
seat, in the arbitral process, while contemplating greater limits on the parties’ autonomy
98
than other authors. (1902)
Some other commentators have advanced the theory that arbitration is “hybrid” or
“mixed,” involving elements of both contract and jurisdiction. (1903) “Although deriving its
effectiveness from the agreement of the parties, as set out in the arbitral agreement,
[arbitration] has a jurisdictional nature involving the application of the rules of
procedure.” (1904) This school offered comparatively little analysis as to what
characteristics arbitration “should” demonstrate, focusing instead on the parties’
autonomy. (1905)
Finally, some commentators urged that arbitration be treated as “autonomous,” and not
as either contractual or jurisdictional (or hybrid). (1906) Even less so than other
characterizations, it is unclear what doctrinal or practical consequences result from this
analysis. The theory was developed by French scholars (1907) based on the thesis that
“the juridicity of arbitration is rooted in a distinct, transnational legal order, that could
be labeled as the arbitral legal order, and not in a national legal system.” (1908)
Within each of the various foregoing categorizations of arbitration, different approaches
existed. In some legal systems, arbitration was characterized as a form of procedure, with
arbitration agreements being treated as procedural contracts. (1909) Other
commentators and courts classified arbitration as “remedial” in nature, and applied the
law of remedies to arbitration agreements. (1910) More recently, many developed
national legal systems have emphasized the contractual aspects of arbitration (1911) and
the parties’ autonomy with regard to choice-of-law, procedural and other issues. (1912)
[B] Future Directions: The Jurisprudential Character of International Arbitration

All of these theoretical characterizations contain elements which are accurate and, in an
abstract manner, useful. Arbitration manifestly exhibits attributes of contractual
relations, albeit of an unusual type. The arbitration agreement is the essential and
necessary foundation of the arbitral process, (1913) whose existence, validity and
interpretation can only be assessed pursuant to principles of contract law. (1914)
Moreover, the parties’ agreement to arbitrate retains a central role throughout the
subsequent arbitral proceedings (1915) and is critically important to the terms, validity
and recognition of the arbitral award. (1916) In these respects, it is essential that
arbitration be considered as reflecting elements of contract and the law of contracts.
At the same time, arbitration also manifestly involves attributes of jurisdictional
authority and adjudicative decision-making, different from other forms of contractual
relations. The arbitration agreement does not produce a typical “commercial” bargain,
but instead results in a particular kind of dispute resolution process, (1917) where the
decision-maker must be impartial and independent and must apply adjudicatory
procedures in reaching a decision. (1918) Moreover, the arbitral process is granted
independence from and support by national judicial systems, while the award is granted
the binding force and res judicata effect of a national court judgment. (1919) In these
regards, it is necessary that arbitration be regarded as an adjudicative or jurisdictional
process.
More fundamentally, both the hybrid and autonomous theories capture remaining and
important analytical aspects of arbitration. For the reasons already outlined, it is
impossible not to consider arbitration as a hybrid, combining elements of both
contractual relations and jurisdictional authority. Indeed, arbitration cannot be
conceptualized without adopting this starting point: it makes no sense to seek to analyze
the arbitration agreement, and its effects at every stage of the arbitral process, without
reference to contract law and principles, just as it makes no sense to seek to analyze the
arbitrator’s function, the arbitral proceedings and the arbitral award without reference to
the law and principles of adjudicative decision-making and res judicata.
At the same time, arbitration is also sui generis and autonomous, exhibiting
characteristics that are not shared by either contract or judicial decision-making. That
should hardly be surprising, because arbitration has been treated for centuries as a
separate field of law: as discussed elsewhere, arbitration agreements and awards have
been subject to specialized legal rules since Antiquity, (1920) with this categorization
becoming more explicit during the 20th century. (1921) Indeed, having regard to the
specialized international legal regimes (i.e., the Geneva Protocol and Convention; New
York Convention; European Convention) (1922) and national legislative regimes (i.e., the
UNCITRAL Model Law; modern arbitration legislation) (1923) makes it difficult to conceive
of treating arbitration as something other than an autonomous field of law.
Thus, it is true that the field of international arbitration draws essential doctrine and
rules from contract law and from the law of civil procedure and judgments. But in many
cases, particularly in international matters, these disciplines are at most analogies,
providing the starting point, not the end result, of analysis. In all cases, it remains
essential to categorize and treat arbitration as a distinctive and autonomous discipline,
specially designed to achieve a particular set of objectives, (1924) which other branches
of private international law fail satisfactorily to resolve. (1925)
§1.06 OVERVIEW OF SOURCES OF INFORMATION ABOUT INTERNATIONAL
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ARBITRATION
One of the perceived benefits of international arbitration is its confidentiality or, at
least, privacy. (1926) Many international arbitral awards, as well as the submissions,
hearings and deliberations in almost all international commercial arbitrations, remain
confidential. (1927) Although it has benefits, the confidentiality or privacy of the arbitral
process is at the same time an obstacle to practitioners, decision-makers and
academics, all of whom frequently desire precedent, authority, or information about the
arbitral process.
There are a wide variety of sources of information about international commercial
arbitration which are useful for both practitioners and academics. (1928) The number and
detail of these sources has increased materially in recent years, and new projects are
underway which would further expand the corpus of available information concerning the
international arbitral process. These are welcome and important developments that
contribute to the efficacy of the international arbitral process.
[A] ICCA Yearbook of Commercial Arbitration and ICC Handbooks

The Yearbook of Commercial Arbitration is published annually by the International
Council for Commercial Arbitration. The Yearbooks contain excerpts of international
arbitral awards (usually redacted to remove parties’ names), national arbitration
legislation, judicial decisions, and other materials relevant to international arbitration.
The Yearbook is supplemented by handbooks on national arbitration legislation,
containing international arbitration statutes from jurisdictions around the world. (1929)
[B] Mealey’s International Arbitration Report

Since 1986, Mealey Publications has published a monthly summary of recent judicial
decisions concerning international arbitration and arbitral awards. The International
Arbitration Report is a source of timely information (with a recently-introduced email
service) and provides full-text copies of significant awards and decisions. The Report’s
primary focus is the United States, but it increasingly includes authorities from other
jurisdictions.
[C] Journal du Droit International

Published in French, the Journal du Droit International reprints excerpts and summaries of
arbitral awards and French judicial decisions concerning international arbitration and
other private international law subjects. The Journal is a significant source of extracts of
otherwise unavailable arbitral awards, often with comments by leading French
practitioners or academics.
[D] Revue de l’Arbitrage

Published four times a year, in French, the Revue de l’Arbitrage contains articles relating
to international and domestic arbitration as well as commentary on French judicial
decisions and arbitral awards. The Revue was founded in 1955 and was for many years
directed by Professor Phillip Fouchard and is currently directed by Professor Charles
Jarrosson.
[E] Arbitration International

Arbitration International is a quarterly journal, published since 1985 by the LCIA. It
provides commentary on international commercial arbitration, with a particular focus on
Europe and England.
[F] ASA Bulletin

The Bulletin of the Swiss Arbitration Association (“ASA”) is published quarterly. Available
from Kluwer Law International, it contains excerpts of Swiss (and other) judicial decisions
dealing with international arbitration, arbitral awards and commentary on recent
developments.
[G] Collections of ICC Arbitral Awards

Five collections of ICC arbitral awards rendered between 1974 and 2007 have recently
been published. The collections cover awards made between 1974-1985, 1986-1990, 1991-
1995, 1996-2000, 2001-2007, 2008-2011, 2012-2015 and 2016-2020. (1930) In addition, the ICC
has published two collections of procedural decisions in ICC arbitrations. (1931) Each of
these collections includes excerpts or summaries of approximately 150 ICC arbitral
awards and other rulings. The excerpts are edited to avoid identifying the parties to the
dispute. Many of the awards were previously published in the Yearbook of Commercial
Arbitration or Journal du Droit International (Clunet), but the collections are a convenient
reference source. The ICC promises comparable collections in the future.
[H] International Legal Materials

Sponsored by the American Society of International Law, the International Legal
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Materials are published six times each year. They contain a wide range of international
legal documents, and do not focus specifically on arbitration. They are, however, a useful
source of significant developments – legislative, judicial and otherwise – in the
arbitration field.
[I] Fouchard Gaillard Goldman on International Commercial Arbitration

The leading French commentary on international commercial arbitration, published in
1999 in English, is authored by a distinguished French professor and practitioner, together
with a very able colleague. (1932) In addition to providing encyclopedic discussions of
French international arbitration law and practice, the work also offers insightful comment
on more general developments.
[J] Redfern and Hunter on International Arbitration

The leading English commentary on international commercial arbitration, originally
titled Law and Practice of International Commercial Arbitration, is in its sixth edition, now
titled “Redfern and Hunter on International Arbitration.” (1933) Authored by two respected
English practitioners, now assisted by able co-authors, the book is required reading for
any lawyer involved in international arbitration.
[K] Commentary on International Chamber of Commerce Arbitration

International Chamber of Commerce Arbitration is authored by three experienced
practitioners and commentators. (1934) The book is a comprehensive work on ICC
arbitration, which was first published in 1984, and most recently revised and updated in
2000 to address the 1998 ICC Rules. The work is useful to any practitioner in an ICC
arbitration, and contains commentary on the ICC rules, with shrewd practical
observations.
Yves Derains and Eric Schwartz (both of whom held the office of Secretary General of the
ICC International Court of Arbitration) have published A Guide to the ICC Rules of
Arbitration, now in its second edition. (1935) The work is thoroughly researched and
provides valuable practical guidance regarding the 1998 ICC Rules.
More recently, three former members of the Secretariat of the ICC International Court of
Arbitration, published “The Secretariat’s Guide to ICC Arbitration.”. (1936) The Guide
provides a practical commentary on the 2012 ICC Rules and contains detailed and helpful
guidance on the ICC Secretariat’s and Court’s application of the Rules. Other useful works
on ICC arbitration have also recently been published. (1937)
[L] Commentary on New York Convention

Albert Jan van den Berg’s The New York Arbitration Convention of 1958 was the first work
on the New York Convention. (1938) The author is a distinguished Dutch practitioner, and
his work assembles in a single source detailed commentary and materials relating to the
New York Convention. Although the book’s effort to annotate the Convention’s various
articles with judicial decisions is now dated, it remains required reading on the subject.
Several recent commentaries have also been published on the New York Convention,
updating and expanding on Professor van den Berg’s work. (1939)
Giorgio Gaja’s work on The New York Convention is an exhaustive compilation of the
materials relevant to the negotiation and drafting of the Convention. Ideal for detailed
research on particular aspects of the Convention, the book provides the successive drafts
of the Convention, the comments and questions of participating states, and various
interim reports.
[M] Guide to the UNCITRAL Model Law on International Commercial Arbitration

Howard Holtzmann and Joseph Neuhaus have contributed a painstaking study of the
UNCITRAL Model Law and its history. (1940) Particularly as the Model Law gains in
adherents, the Guide will become a standard reference source for practitioners and
courts.
[N] Domke on Commercial Arbitration

The leading U.S. work on domestic arbitration has been Domke on Commercial
Arbitration. (1941) First published in 1968, with a predominantly domestic focus, the work
has been updated, with efforts to look beyond U.S. shores, in recent years. For U.S.
practitioners, it can be a useful source.
[O] Awards of Iran–United States Claims Tribunal (1942)

The Iran–United States Claims Tribunal is one of the most ambitious international claims
commissions. (1943) The Tribunal was established pursuant to the so-called Algiers
Accords, which resolved some of the legal disputes arising from the Iranian seizure of U.S.
hostages during President Carter’s administration. (1944) Pursuant to the Accords,
litigation in national courts concerning defined claims between U.S. and Iranian entities
was suspended. A nine-person tribunal was established in The Hague, with defined
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jurisdiction over claims arising from U.S.–Iran hostilities; three tribunal members were
appointed by the United States, three by Iran, and three from other states.
The Iran–U.S. Claims tribunal adopted the UNCITRAL Arbitration Rules (with some
modifications). It issued a substantial number of decisions, many of which are published
and which make useful contributions to the interpretation of the UNCITRAL Arbitration
Rules and to a number of issues commonly arising in international commercial (and
investment) arbitrations. (1945)
[P] International Arbitration Law Databases

There are several useful databases providing online access to both source materials and
recent decisions under the New York Convention and/or UNCITRAL Model Law. UNCITRAL
maintains a searchable, online database of publicly-available court decisions regarding
the various instruments that have been produced by the Commission, including the New
York Convention and the UNCITRAL Model Law on International Commercial Arbitration.
(1946) UNCITRAL also hosts an online “Guide” to the New York Convention that contains
recent decisions by courts of Contracting States under the Convention, together with
various basic documents relating to the Convention and its travaux préparatoires. (1947)
Other institutions have also recently launched online databases providing access to
international arbitration materials and decisions. (1948)
[Q] Kluwer Arbitration and Kluwer Arbitration Blog

Released by Kluwer Law International, the Kluwer Arbitration online service contains an
extensive, computer-searchable library of arbitral awards, judicial decisions and
commentary. The Kluwer Arbitration Blog provides brief, topical articles and essays on
international arbitration with online comments.
[R] Global Arbitration Review

Billing itself as the “world’s leading international arbitration journal,” the Global
Arbitration Review publishes (by email) five editions a week containing brief reports on
topical developments in international commercial and investment arbitration. It also
publishes periodic articles and commentary by arbitration practitioners and hosts live
events at which international arbitration issues are debated.
[S] Transnational Dispute Management and OGEMID

Transnational Dispute Management is an online service providing materials and
commentary concerning international commercial arbitration. An Internet-based
discussion forum founded by the late Professor Thomas Wälde, the “Oil-Gas-Energy-
Mining-Infrastructure Dispute Management” is a source of recent developments, with
online comments, regarding international arbitration. (1949)
[T] Swedish Arbitration Portal (1950)

The Swedish Arbitration Portal provides access to English translations of Swedish court
decisions on international arbitration issues. The Portal contains decisions from all
instances of the Swedish courts on issues related to both international and domestic
arbitrations. The Portal is facilitated by the Arbitration Institute of the Stockholm
Chamber of Commerce. The unofficial English case translations are provided by the
Stockholm Chamber of Commerce, with the assistance of Swedish arbitration
practitioners.
[U] ALI Restatement of U.S. Law of International Commercial and Investor-State

Arbitration Law
The American Law Institute has released a Restatement of International Commercial and
Investor-State Arbitration Law. The Reporters of the project are Professor George
Bermann, Professor Jack Coe, Professor Chris Drahozal and Professor Catherine Rogers. The
Restatement is focused on the U.S. statutory framework for international arbitration,
drawing extensively from domestic U.S. sources, and can be expected to have an
influence on U.S. international arbitration law.
[V] Swiss Arbitration Platform

Along with the institutional reorganization of the Swiss Arbitration Centre and the 2021
revision to the Swiss Rules, the ASA has also launched a “Swiss Arbitration” online
platform. (1951) The platform is designed to provide centralized access to information
and resources relevant to arbi-tration in Switzerland, including the websites of the ASA
and the Swiss Arbitration Centre, as well as the Swiss Arbitration Hub, ASA’s platform for
hearing logistics, and the Swiss Arbitration Academy.
The ASA also launched an “Arbitration Toolbox” on 9 June 2021. (1952) The Arbitration
Toolbox provides templates and practical advice on the stages of international
commercial arbitration proceedings. This new source is also available on the Swiss
Arbitration online platform.
102
References
1) For commentary, see S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C.
(1996); D. Bederman, International Law in Antiquity (2001); Cohn, Commercial
Arbitration and the Rules of Law: A Comparative Study, 4 U. Toronto L.J. 1 (1941);
Crawford, Continuity and Discontinuity in International Dispute Settlement, 1 J. Int’l
Disp. Sett. 3 (2010); R. David, Arbitration in International Trade 83-130 (1985);
Ellenbogen, English Arbitration Practice, 17 Law & Contemp. Probs. 656 (1952);
Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179 (1925-
1926); K. Harter-Uibopuu, Das Zwischenstaatliche Schiedsverfahren im Achaeischen
Koinon (1998); Jones, Historical Development of Commercial Arbitration in the United
States, 12 Minn. L. Rev. 240 (1927); Jones, Three Centuries of Commercial Arbitration in
New York: A Brief Survey, 1956 Wash. U. L.Q. 193 (1956); King & Graham, The Origins of
Modern International Arbitration, 51 Disp. Resol. J. 42 (1996); Mann, The Formalization
of Informal Law: Arbitration Before the American Revolution, 59 N.Y.U. L. Rev. 443
(1984); W. Manning, Arbitration Treaties Among the American Nations (1978); J.B.
Moore (ed.), International Adjudications (1936); Mustill, Arbitration: History and
Background, 6(2) J. Int’l Arb. 43 (1989); Paulsson, International Arbitration Is Not
Arbitration, 2008:2 Stockholm Int’l Arb. Rev. 1; J. Ralston, International Arbitration
from Athens to Locarno (1929); D. Roebuck, English Arbitration and Mediation in the
Long Eighteenth Century (2019); D. Roebuck, Mediation and Arbitration in the Middle
Ages: England 1154-1558 (2012); D. Roebuck, Early English Arbitration (2008); D.
Roebuck & B. de Fumichon, Roman Arbitration (2004); D. Roebuck, Ancient Greek
Arbitration (2001); Roebuck, A Short History of Arbitration, in N. Kaplan, J. Spruce &
M. Moser (eds.), Hong Kong and China Arbitration: Cases and Materials xxxv (1994);
Roebuck, L’Arbitrage en Droit Anglais Avant 1558, 2002 Rev. Arb. 535; Roebuck,
Sources for the History of Arbitration: A Bibliographical Introduction, 14 Arb. Int’l 237
(1998) (comprehensive bibliography); Sayre, Development of Commercial Arbitration
Law, 37 Yale L.J. 595 (1927-28); J. Scott, The Hague Peace Conferences of 1899 and 1907
(1909); Sohn, The Function of International Arbitration Today, 1963 Recueil des Cours
1; A. Stuyt, Survey of International Arbitrations 1794-1989 (3d ed. 1990); M. Tod,
International Arbitration Amongst the Greeks (1913); A. Vitsyn, On Arbitration in
Russian Law (1856); Westermann, Interstate Arbitration in Antiquity, II The Classical J.
197 (1906-07); Wolaver, The Historical Background of Commercial Arbitration, 83 U.
Pa. L. Rev. 132 (1934-35); K.-H. Ziegler, Das Private Schiedsgericht in Antiken
Römischen Recht (1971).
2) Mustill, Foreword: Sources for the History of Arbitration, 14 Arb. Int’l 235, 235 (1998)
(“Arbitration has a long Past, but scarcely any History. … There are none of the
grand perspectives in which modern arbitration could be viewed as the inheritor of
a continuous process of change”).
3) J. Ralston, International Arbitration from Athens to Locarno 153 (1929). See also C.
Phillipson, II The International Law and Custom of Ancient Greece and Rome 129-30
(1911) (examples of Greek gods using arbitration).
4) C. Phillipson, II The International Law and Custom of Ancient Greece and Rome 130
(1911).
5) J. Ralston, International Arbitration from Athens to Locarno 153 (1929).
6) Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 155 (1957).
7) See§2.02[C][1] & §2.02[C][4].
8) The theme of mortal arbitrator, presiding over divine (and unscrupulous) parties, is
repeated in Paris’ ill-fated role in deciding between the conflicting claims of Hera,
Athena and Aphrodite. D. Roebuck, Ancient Greek Arbitration 67-68 (2001).
9) See§2.02[C][4]; §12.05.
10) One of the enduring challenges confronting the arbitral process is foreshadowed by
Poseidon’s refusal to honor the award against him by Inachus. SeeChapter 26.
11) A. Stuyt, Survey of International Arbitrations 1794-1989 vii (3d ed. 1990).
12) See S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. (1996); D.
Bederman, International Law in Antiquity 93-94 (2001) (Persians were “willing to
submit certain kinds of local disputes to third-party arbitration”); Lafont,
L’Arbitrage en Mésopotamie, 2000 Rev. Arb. 557; J. Ralston, International Arbitration
from Athens to Locarno 153-73 (1929); D. Roebuck, Ancient Greek Arbitration (2001)
(arbitration in Greek Antiquity).
13) L. Edmonson (ed.), Domke on Commercial Arbitration §2.1 (3d ed. 2010 & Update
2019).
14) Lafont, L’Arbitrage en Mésopotamie, 2000 Rev. Arb. 557, 568-78 (arbitrations
between principalities in ancient Mesopotamia).
15) D. Roebuck, Ancient Greek Arbitration 71 (2001). Eriphyle, the sister of the King of
Argos, also appears to have been one of the first recorded instances of a corrupt
arbitrator, accepting bribes (of a magic necklace and a magic robe), to decide,
inter alia, against her husband. Eriphyle’s misconduct was foreshadowed by that of
Paris, whose decision in favor of Aphrodite (and against Hera and Athena) was
procured by the promise of Aphrodite’s divine attentions.
16) Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179, 186
(1925-1926) (citing A. Raeder, L’Arbitrage International Chez les Hellènes 16-17 (1912)).
103
17) Smith, “Judicial Nationalism” in International Law: National Identity and Judicial
Autonomy at the ICJ, 40 Tex. Int’l L.J. 197, 203 n.30 (2005). Compare J. Verzijl, III
International Law in Historical Perspective 72 (1976) (first state-to-state arbitration
in 600 B.C. between Athens and Mytilene concerning town of Sigeion).
18) Plutarch, Themistocles 24.1, cited in G. de Sainte Croix, The Origins of the
Peloponnesian War, Classical Philology 379 (1976).
(1925-1926). See also S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. 3
(1996).
20) Westermann, Interstate Arbitration in Antiquity, II The Classical J. 197, 201 (1906-07).
21) J. Ralston, International Arbitration from Athens to Locarno 156-58 (1929); M. Tod,
International Arbitration Amongst the Greeks 65-69 (1913); Westermann, Interstate
Arbitration in Antiquity, II The Classical J. 197, 202 (1906-07).
22) S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. 8-10 (1996);
Westermann, Interstate Arbitration in Antiquity, II Classical J. 197, 199-200 (1906-07).
23) Greek city-states also used “religious” arbitration, where priestly authorities
rendered decisions, but with mixed results. D. Bederman, International Law in
Antiquity 83 (2001) (“[Oracle of Delphi was] an abominable arbitrator. Difficult
questions were often evaded. … When awards were rendered they typically lacked
the clarity and precision needed to settle the matter authoritatively”).
24) J. Ralston, International Arbitration from Athens to Locarno 161-62 (1929); D.
Roebuck, Ancient Greek Arbitration 95-96 (2001).
25) S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. 15 (1996); D. Bederman,
International Law in Antiquity 83 (2001) (parties “offered records of previous
treaties or decisions, maps and charts, the writings of historians, interpretations of
myths and legends, archeological evidence, and even eye-witness testimony”); J.
Ralston, International Arbitration from Athens to Locarno 162–64 (1929).
26) J. Ralston, International Arbitration from Athens to Locarno 162-64 (1929).
27) D. Bederman, International Law in Antiquity 84 (2001) (in ancient Greece, “the
reasoned character of the awards … was essential for their legitimacy and
enforcement”); J. Ralston, International Arbitration from Athens to Locarno 165
(1929).
28) D. Bederman, International Law in Antiquity 84 (2001). See id. at 83 (“So, as we might
expect, arbitrations became a largely secular, and reasoned, process”).
30) See, e.g., S. Ager, Interstate Arbitrations in the Greek World 337-90 B.C. 264-66 (1996)
(describing Rome’s increasingly frequent role as “mediator and arbitrator” in
disputes between Sparta and the Achaean League), 281 (describing “interven[tion]”
and “mediation” by Megara in a dispute between Achaia and Boeotia).
(1925-1926) (“The republic lost what Greece had gained, and the empire lost the
little the republic had won”).
(1925-1926).
35) Id. at 190-91; J. Scott, The Hague Peace Conferences of 1899 and 1907 200-10 (1909).
36) Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179, 190-91
(1925-1926).
37) Id. at 190-91; J. Ralston, International Arbitration from Athens to Locarno 177-78
(1929) (citing 1235 treaty of alliance between Genoa and Venice providing for
arbitration of future disputes, 1343 “arbitral convention” between Denmark and
Sweden promising to arbitrate any serious future disputes, and 1516 treaty of
“perpetual peace” between France and Swiss Cantons).
38) J. Verzijl, VIII International Law in Historical Perspective 189-90 (1974) (citing
historical authorities).
40) J. Verzijl, VIII International Law in Historical Perspective 189-90 (1974).
(1925-1926); J. Ralston, International Arbitration from Athens to Locarno 176-77 (1929).
On the other hand, there is scant evidence that these clauses were ever enforced,
in the sense of requiring arbitration by a state that had changed its mind about
complying with an arbitration agreement. Id.
(1925-1926); J. Ralston, International Arbitration from Athens to Locarno 179 (1929)
(“By a quite universal practice it would appear that before proceeding to adjudge,
the arbitrator acted in the capacity of what subsequently became known as
‘amiable compositeur’ – in other words he sought to find a basis for the composition
of difficulties before considering them from the standpoint of law”). For discussions
of the differences between arbitration, mediation, or conciliation, and amiable
composition, see§2.02[C][2]-§2.02[C][3].
104
43) Bourne, The Demarcation Line of Pope Alexander VI, in Essays in Historical Criticism
13 (1901); Jarrett, XI Papal Arbitration, in The Catholic Encyclopedia (1911); Linden,
Alexander IV and the Demarcation of the Maritime and Colonial Domains of Spain
and Portugal, 22 Am. Hist. Rev. 1, 20 (1916) (“The difficulties between the two powers
were smoothed away by their own diplomatic means and Portugal distinctly
repudiated the incidental arbitration of the pope or any other authority”).
44) See the examples cited in J. Ralston, International Arbitration from Athens to
Locarno 180 (1929).
(1925-1926) (quoting M. Novacovitch, Les Compromis et les Arbitrages Internationaux
du XIIe au XVe Siècle 85 (1905)); J. Ralston, International Arbitration from Athens to
Locarno 185-86 (1929) (describing four-member legal teams of Kings of Castile and
Navarre in 1176).
46) Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179, 197-98
(1925-1926) (case study of arbitration by Henry II of England between Castile and
Navarre); Roebuck, L’Arbitrage en Droit Anglais Avant 1558, 2002 Rev. Arb. 535, 538.
47) J. Ralston, International Arbitration from Athens to Locarno 186 (1929) (citing 1405
treaty requiring award to be rendered within six weeks and three days).
48) Id. at 187-88 (discussing penalty bonds, undertakings and possibility that violators
of arbitral awards might be excommunicated by Pope).
49) Id. at 181 (“It was, perhaps, usual and natural that among the sovereigns of the
Middle Ages there was little inclination to bow in any cases of arbitration to the
determination of anyone occupying the rank of less than that of their peer”); Sohn,
The Function of International Arbitration Today, 1963 Recueil des Cours 1, 60 (“In
many cases, arbitration has been entrusted to a single person whose position and
experience were such as command the confidence of the parties,” such as the
Pope, other ecclesiastics, or heads of state).
50) Jarrett, Papal Arbitration, in The Catholic Encyclopedia 1 (1911) (Papal arbitration is
“[a]n institution almost coeval with the papacy itself”); J. Ralston, International
Arbitration from Athens to Locarno 174-76 (1929) (“earliest and most important
influence tending towards arbitration was that of the Papacy”).
(1925-1926).
52) See§1.01[A][3]; §1.01[A][5].
53) J. Ralston, International Arbitration from Athens to Locarno 190 (1929). The Articles of
Confederation provided for States with inter-state disagreements to jointly
appoint five “commissioners or judges” to resolve their disputes; failing agreement,
a complex list system was prescribed, in which each party was entitled to strike
names of unsuitable candidates. U.S. Articles of Confederation, Art. 9 (1781); §1.01[A]
[5].
54) J. Ralston, International Arbitration from Athens to Locarno 191 (1929). See also
Raymond, Demosthenes and Democracies: Regime-Types and Arbitration Outcomes,
22 Int’l Interactions 1, 3 (1996) (“interstate arbitration prior to the Jay Treaty of 1794
remained more of an episodic occurrence in world affairs than a patterned
regularity”); Reynolds, So Near Yet So Far, 25 Int’l Arb. L. Rev. 117, 120 (2022).
55) Jay’s Treaty, Arts. V-VII (1794), reprinted in H. Miller, II Treaties and Other
International Acts of the United States of America 1776-1863 245 (1931).
56) See Editorial Comment, The American Theory of International Arbitration, 2 Am. J.
Int’l L. 387 (1908); Reynolds, So Near Yet So Far, 25 Int’l Arb. L. Rev. 117 (2022).
57) Treaty of Guadalupe Hidalgo, Art. 21 (1848). The United States and Mexico entered
into a number of other treaty arrangements during the 19th century, to resolve
various categories of disputes. J. Ralston, International Arbitration from Athens to
Locarno 203-07 (1929). An even larger number of arbitrations were conducted
between the United States and other countries during the 19th and early 20th
centuries. Id. at 208-26.
58) Treaty of Washington, Art. 1 (1871), reprinted in C. Bevans, XII Treaties and Other
International Agreements of the United States of America 1776-1949 170 (1968);
Reynolds, So Near Yet So Far, 25 Int’l Arb. L. Rev. 117, 121 (2022).
59) The Alabama Arbitration concerned claims by the United States that Great Britain
had wrongfully permitted the construction and outfitting of Confederate
privateers, in English shipyards, which subsequently caused substantial damage to
Union shipping. Following lengthy written proceedings and oral hearings in Geneva,
a five-person arbitral tribunal rendered the historic Alabama award, where Great
Britain was ordered to pay the equivalent of $15.5 million in gold to the United
States. Despite the magnitude of that amount at the time (equivalent to the annual
budget for the British government), Great Britain subsequently did so. The
Alabama arbitration was a remarkable proceeding, eventually overcoming a host
of procedural challenges and mishaps. See T. Balch, The Alabama Arbitration (1900);
F. Hackett, Reminiscences of the Geneva Tribunal of Arbitration (1911); Bingham, The
Alabama Claims Arbitration, 54 Int’l & Comp. L.Q. 1 (2005).
60) J. Ralston, International Arbitration from Athens to Locarno 194-95 (1929); Reynolds,
So Near Yet So Far, 25 Int’l Arb. L. Rev. 117, 119-22 (2022).
61) See W. Manning, Arbitration Treaties Among the American Nations (1978).
105
62) Additional Treaty Between Colombia and Peru to Form the Assembly of
Plenipotentiaries, Arts. 1 & 3 (1822).
63) See J. Verzijl, VIII International Law in Historical Perspective 223-24 (1976) (citing
arbitration treaties between Brazil and Chile (1899), Argentina and Uruguay (1899),
and Guatemala and Honduras (1890, 1895)).
64) Woolsey, Boundary Disputes in Latin-America, 25 Am. J. Int’l L. 324, 325 nn.1-2 (1931)
(Argentine and Paraguayan territorial dispute settled by 1878 award issued by U.S.
President Hayes; Costa Rican and Nicaraguan territorial dispute settled by 1888
award issued by U.S. President Cleveland; Argentine and Chilean territorial dispute
settled by 1902 award issued by King Edward VII of United Kingdom).
65) See Donovan, Challenges to the Territorial Integrity of Guyana: A Legal Analysis, 32
Ga. J. Int’l & Comp. L. 661, 675-78 (2004) (describing demise of arbitral ruling over
Venezuela-British Guyana territory with gold deposits); Woolsey, Boundary Disputes
in Latin-America, 25 Am. J. Int’l L. 324, 330-31 (1931) (describing inconclusive nature
of arbitration over Ecuador-Peru territory rich in resources).
66) See Convention Between Costa Rica and Panama for the Settlement of the
Boundary Controversy, reprinted in 6 Am. J. Int’l L. 1, 1-4 (Supp. 1912); K. Carlston,
The Process of International Arbitration 66-70 (1946).
67) Treaty of Bern, Art. 16 (1874).
68) Convention of Bern, Art. 57(3) (1890).
69) General Act of the Berlin Conference on West Africa, Art. 12 (1885).
70) General Act of the Anti-Slavery Convention of Brussels, Art. 55 (1890), in Statutory
Instruments 1892/5017.
71) J. Verzijl, VIII International Law in Historical Perspective 223 (1976) (citing Italy-
Uruguay Treaty, Art. 16(1) (1879)).
72) Id. at 233 (citing Netherlands-Portuguese Declaration, Art. 7 (1894)).
73) Id. at 223. See also H. Cory, Compulsory Arbitration of International Disputes 22-25
(1932).
74) Argentina–Italy Arbitration Treaty (1898), cited in J. Verzijl, VIII International Law in
Historical Perspective 223 (1976).
75) See§1.04[A][7].
76) Grotius, De Jure Belli ac Pacis, II, Chp. XXIII, ¶VIII (1646), in F. Kelsey, Classics of
International Law 1925 563 (1964).
77) See, e.g., Best, Peace Conferences and the Century of Total War: The 1899 Hague
Conference and What Came After, 75 Int’l Affairs 619, 619-21, 623-31 (1999); Caron, War
and International Adjudication: Reflections on the 1899 Peace Conference, 94 Am. J.
Int’l L. 4 (2000); Janis, Protestants, Progress and Peace in the Influence of Religion:
Enthusiasm for An International Court in Early Nineteenth Century America, in M.
Janis (ed.), The Influence of Religion on the Development of International Law 223
(1991).
78) Raymond, Demosthenes and Democracies: Regime-Types and Arbitration Outcomes,
22 Int’l Interactions 1, 3-4 (1996).
79) Institute of International Law, Projet de Règlement pour la Procédure Arbitrale
Internationale (1875).
80) 1899 Convention for the Pacific Settlement of International Disputes (“1899 Hague
Convention”). See Bederman, The Hague Peace Conferences of 1899 and 1907, in M.
Janis (ed.), International Courts for the Twenty-First Century 9 (1992); Best, Peace
Conferences and the Century of Total War: The 1899 Hague Conference and What
Came After, 75 Int’l Affairs 619, 619-21, 623-31 (1999); Janis, Protestants, Progress and
Peace in the Influence of Religion: Enthusiasm for An International Court in Early
Nineteenth Century America, in M. Janis (ed.), The Influence of Religion on the
Development of International Law 223 (1991); Reynolds, So Near Yet So Far, 25 Int’l
Arb. L. Rev. 117, 123-30 (2022); S. Rosenne (ed.), The Hague Peace Conference of 1899
and 1907 and International Arbitration: Reports and Documents vii (2001).
81) J. Scott, The Hague Peace Conferences of 1899 and 1907 276-77, 319-85 (1909). Under
these proposals, Contracting States would have been obligated to arbitrate
virtually all disputes with other Contracting States under a wide range of treaties
(concerning, for example, communications, transport, navigation, intellectual
property, inheritance, health and judicial cooperation), as well as all claims for
monetary damages for wrongful state actions.
82) 1899 Hague Convention, Arts. 15-29. See Best, Peace Conferences and the Century of
Total War: The 1899 Hague Conference and What Came After, 75 Int’l Affairs 619, 619-
21, 630 (1999) (“Arbitration enthusiasts had hoped that the use of it would be
obligatory. The Great Powers were not having that!”); Reynolds, So Near Yet So Far,
25 Int’l Arb. L. Rev. 117, 123-30 (2022).
106
83) See Bederman, The Hague Peace Conferences of 1899 and 1907, in M. Janis (ed.),
International Courts for the Twenty-First Century 9, 10 (1992); Best, Peace Conferences
and the Century of Total War: The 1899 Hague Conference and What Came After, 75
Int’l Affairs 619, 619-21 (1999); Born, A New Generation of International Adjudication,
61 Duke L.J. 775, 796 (2012); Caron, War and International Adjudication: Reflections on
the 1899 Peace Conference, 94 Am. J. Int’l L. 4 (2000); J. Scott, The Hague Peace
Conferences of 1899 and 1907 423 (1909). Compare F. Holls, The Peace Conference at
the Hague 354 (1900) (describing Hague Convention as the “Magna Charta of
International Law”) with Posner & Yoo, Judicial Independence in International
Tribunals, 93 Cal. L. Rev. 1, 9-10 (2005) (describing Hague Convention as a “tentative
first step[]” that “fell into desuetude”).
84) 1899 Hague Convention, Art. 16. Nothing in the Convention imposed any obligation
that arbitration (or any other form of adjudication) be pursued in particular cases.
85) Id. at Art. 18.
86) Id. at Arts. 6, 14.
87) Id. at Art. 37.
88) The PCA is described below. See§1.04[C][6][e].
89) 1899 Hague Convention, Articles. 22-25.
90) The Convention contained (in Articles 30 to 57) procedural rules addressing limited
aspects of the arbitral process. The PCA was also responsible for providing limited
services as a registry (the “International Bureau”). Id. at Arts. 22, 28. These services
did not include many of the functions of more developed arbitral institutions, such
as appointing arbitrators and hearing challenges to and removing arbitrators.
91) 1907 Convention for the Pacific Settlement of International Disputes (“1907 Hague
Convention”).
92) Id. at Arts. 37-90.
93) Leading examples include the Island of Palmas Case (Netherlands v. U.S.), 2 R.I.A.A.
829 (P.C.A. 1928); N. Atl. Coast Fisheries Case, 11 R.I.A.A. 167 (P.C.A. 1910); Pious Funds
of the Cal. Case, 9 R.I.A.A. 1 (P.C.A. 1902).
94) Best, Peace Conferences and the Century of Total War: The 1899 Hague Conference
and What Came After, 75 Int’l Affairs 619, 630 (1999) (“The great days of the Hague’s
Court of Arbitration were over by 1914”).
95) Born, A New Generation of International Adjudication, 61 Duke L.J. 775, 798 (2012); M.
Hudson, International Tribunals: Past and Future 3, 7 (1944).
96) In its early years, the PCA provided support to three conciliation commissions in
disputes involving Denmark and Lithuania, France and Switzerland, and Greece
and Italy, as well as four commissions of enquiry relating to the treatment of
neutral shipping during the First and Second World Wars. More recently, the PCA
has administered a number of non-binding dispute resolution procedures,
including a Review Panel established under the Convention on the Conservation
and Management of High Seas Fishery Resources in the South Pacific Ocean and
several conciliations involving States, State entities, international organizations,
and private parties (e.g., PCA Case No. 2016-06: Consorcio Sogeosa-Tilmon v.
Instituto Tecnológico de Costa Rica). See PCA, 116thAnnual Report, 17 (2016). More
recently, the PCA supported the conciliation of a maritime boundary dispute
between Timor-Leste and Australia. See PCA, 120th Annual Report, 15 (2020).
97) See generally S. Rosenne, I The Law and Practice of the International Court, 1920-
2005 9-42, 97-116 (4th ed. 2006).
98) See H. Cory, Compulsory Arbitration of International Disputes 63-65, 136-44 (1932)
(same) (citing compulsory bilateral arbitration treaties in 1920s and 1930s); Sohn,
The Function of International Arbitration Today, 1963 Recueil des Cours 1, 25-26, 33-
34, 38-40.
99) See H. Cory, Compulsory Arbitration of International Disputes 63-65, 145-52 (1932);
Sohn, The Function of International Arbitration Today, 1963 Recueil des Cours 1, 29-
33.
100) See, e.g., Treaty for the Advancement of Peace, U.S.–Russia (18 Sept.-1 Oct. 1914), 39
Stat. 1622; Treaty for the Advancement of Peace, U.S.–China (15 Sept. 1914), 39 Stat.
1642; Treaty for the Advancement of Peace, U.S.–France (15 Sept. 1914), 38 Stat.
1887; Treaty for the Advancement of Peace, U.S.–U.K. (15 Sept. 1914), 38 Stat. 1853;
Treaty for the Advancement of Peace, U.S.–Ecuador (13 Oct. 1914), 39 Stat. 1650;
Treaty for the Advancement of Peace, U.S.–Sweden (13 Oct. 1914), 38 Stat. 1872. See
also Noyes, William Howard Taft and the Taft Arbitration Treaties, 56 Villanova L.
Rev. 535 (2011).
101) S. Rosenne, The World Court: What It Is and How It Works 10 (5th ed. 1995).
102) Geneva Protocol for the Pacific Settlement of International Disputes, League of
Nations Official Journal, Spec. Supp. No. 21, at 21 (1924); Geneva General Act for the
Pacific Settlement of International Disputes (1928), 93 U.N.T.S. 343 (1929).
103) Between 1900 and 1914, an estimated 120 bilateral general arbitration treaties,
providing for arbitration of a broad range of disputes between the two contracting
states, were concluded. Sohn, The Function of International Arbitration Today, 1963
Recueil des Cours 1, 26-27, 33-34, 38-40. Between 1914 and 1939, hundreds of
additional bilateral arbitration treaties were concluded. H. Mangoldt, Arbitration
and Conciliation Treaties, in 1 Encyclopedia of Public International Law 28, 30 (1981).
107
104) Minutes of the First Session of the Committee on Arbitration and Security, 16
January 1928, L.N. Doc. C.667.M.225.1927.IX (1928), quoted in Sohn, The Function of
International Arbitration Today, 1963 Recueil des Cours 1, 35.
105) H. Mangoldt, Arbitration and Conciliation Treaties, in 1 Encyclopedia of Public
International Law 28, 31 (1981) (“In contrast to the astoundingly high number of
general arbitration and conciliation treaties concluded since the beginning of this
century, the frequency of their application to actual disputes is just as
astoundingly low”).
106) Sohn, The Function of International Arbitration Today, 1963 Recueil des Cours 1, 40.
107) PCA, 109th Annual Report, Annex 2 (2009). See also A. Stuyt, Survey of International
Arbitrations 1794-1989 x (3d ed. 1990).
108) A. Stuyt, Survey of International Arbitrations 1794-1989 233-450 (3d ed. 1990). See
also Gray & Kingsbury, Interstate Arbitration Since 1945: Overview and Evaluation, in
M. Janis (ed.), International Courts for the Twenty-First Century 56-57 (1992).
109) See Born, A New Generation of International Adjudication, 61 Duke L.J. 775, 827 (2012);
Charney, Third Party Dispute Settlement and International Law, 36 Colum. J.
Transnat’l L. 65, 68 (1997) (“While the establishment of the World Court was
particularly significant, ad hoc arbitrations … continue to be important [in the 20th
century]”); Copeland, The Use of Arbitration to Settle Territorial Disputes, 67 Fordham
L. Rev. 3073 (1999); Gray & Kingsbury, Inter-State Arbitration Since 1945: Overview and
Evaluation, in M. Janis (ed.), International Courts for the Twenty-First Century 55
(1992); Merrills, The Mosaic of International Dispute Settlement Procedures:
Complementary or Contradictory, 54 Neth. Int’l L. Rev. 361 (2007); A. Stuyt, Survey of
International Arbitrations 1794-1989 vii-viii (3d ed. 1990).
110) See alsoChapter 15.
111) See§1.01[A][1]-§1.01[A][2],
112) See§1.01[A][1]-§1.01[A][2].
113) See§1.01[A][4].
114) See§1.01[A][1].
115) See C. Bishop, International Arbitral Procedure (1930); K. Carlston, The Process of
International Arbitration 3-33 (1946); Institute of International Law, Projet de
Règlement pour la Procédure Arbitrale Internationale (1875); J. Scott, The Hague
Peace Conferences of 1899 and 1907 286-303 (1909).
117) Id. at 77-78. See also K. Carlston, The Process of International Arbitration 7 (1946)
(noting that, in 19th century arbitral practice, opening pleading was often
designated “case” and was followed by counter-case, or answer and reply);
Institute of International Law, Projet de Règlement pour la Procédure Arbitrale
Internationale (1875). See §15.08.
118) J. Ralston, International Arbitration from Athens to Locarno 79-80 (1929). See also K.
Carlston, The Process of International Arbitration 26-27 (1946); Pietrowski, Evidence in
International Arbitration, 22 Arb. Int’l 373, 374-75 (2006); §15.08[W] & §15.08[X];
§15.09[A].
119) See Institute of International Law, Projet de Règlement pour la Procédure Arbitrale
Internationale (1875). See also K. Carlston, The Process of International Arbitration
260-64 (1946).
120) Pietrowski, Evidence in International Arbitration, 22 Arb. Int’l 373, 376-77 (2006)
(noting influence of 19th century arbitral procedure on draft arbitral code adopted
by Institut de Droit International in 1875, Hague Conventions of 1899 and 1907, Rules
of the Permanent Court of International Justice and International Court of Justice,
and International Law Commission’s 1958 Model Rules on Arbitral Procedure).
121) Similarly, as discussed below, regardless of the market, cultural context, or
geographic location, parties opted for means of international commercial
arbitration that included party nomination of co-arbitrators. See§1.01[B][3];
§1.01[B][9]; §12.01[D].
123) J. Verzijl, VIII International Law in Historical Perspective 192-95 (1974).
124) Fraser, A Sketch of the History of International Arbitration, 11 Cornell L.Q. 179, 179 n.3
(1925-1926) (citing authorities).
126) Id. at 178 (quoting A. Mergnhac, Traité Théorique et Pratique de l’Arbitrage
International 40 (1895)).
127) Id. at 185.
108
128) U.S. Articles of Confederation, Art. 9 (1781) (“[The two disputing States] shall then be
directed to appoint by joint consent, commissioners or judges to constitute a court
for hearing and determining the matter in question: but if they cannot agree,
Congress shall name three persons out of each of the United States, and from the
list of such persons each party shall alternately strike out one, the petitioners
beginning, until the number shall be reduced to thirteen; and from that number
not less than seven, nor more than nine names as Congress shall direct, shall in the
presence of Congress be drawn out by lot, and the persons whose names shall be so
drawn or any five of them, shall be commissioners or judges, to hear and finally
determine the controversy, so always as a major part of the judges who shall hear
the cause shall agree in the determination …”). The arbitral mechanism was used
to resolve the so-called “Wyoming Valley” dispute between Pennsylvania and
Connecticut. See Boyd, Connecticut’s Experiment in Expansion: The Susquehanna
Company, 1753-1803, 27 J. Econ. & Bus. Hist. 38 (1931).
129) Jay’s Treaty, Arts. V-VII (1794), reprinted in H. Miller, II Treaties and Other
International Acts of the United States of America 1776-1863 245 (1931).
130) Convention for the Adjustment of Claims of Citizens of the USA upon the Mexican
Republic, Arts. 1, 7 (1839), reprinted in H. Miller, IV Treaties and Other International
Acts of the United States of America 1776-1863 189 (1931).
131) J. Ralston, International Arbitration from Athens to Locarno 205-26 (1929) (including
Mexican pecuniary and boundary disputes; Chilean, Colombian, Ecuadorean,
German, Peruvian, Spanish and other pecuniary disputes; Norwegian shipping
claims, and a host of other matters).
132) Id. at 227-28.
133) Treaty of Washington, Art. 1 (1871), reprinted in C. Bevans, XII Treaties and Other
International Agreements of the United States of America 1776-1949 170 (1968).
134) Id. at Art. 12.
135) J. Ralston, International Arbitration from Athens to Locarno 194-96 (1929). A leading
example of this involved disputes over the harvesting of fur seals on U.S. islands.
Id.
136) Id. at 236.
137) Id. at 246-49.
138) 1899 Hague Convention, Art. 24; 1907 Hague Convention, Arts. 45, 54. See R. Caldwell,
A Study of the Code of Arbitral Procedure Adopted by the Hague Peace Conference of
1899 and 1907 (1921).
139) PCIJ Statute, Arts. 5, 6 (1920); Statute of the International Court of Justice, Arts. 5, 6
(1945). See generally S. Rosenne, III The Law and Practice of the International Court
1920-2005 1079-89 (4th ed. 2006). See also§12.05[B][6].
140) Treaty of Arbitration Between Guatemala and Honduras (1930).
141) Agreement Establishing A Court of Arbitration for the Purpose of Carrying out the
Delimitation of Maritime Areas Between France and Canada, Art. 1 (1989), reprinted
in I.L.M. Background/Content Summary, 29 I.L.M. 1 (1990).
142) Agreement Between the State of Eritrea and the Democratic Republic of Ethiopia
(the “Algiers Agreement”) (2000), available at www.pca-cpa.org.
143) Arbitration Agreement Between Sudan and the Sudan People’s Liberation
Movement/Army on Delimiting Abyei Area (2008), available at www.pca-cpa.org.
See Born & Raviv, The Abyei Arbitration and the Rule of Law, 58 Harv. Int’l L.J. 177
(2017).
144) Arbitration Agreement Between Slovenia and Croatia (2009), available at
www.vlada.si.
146) Agreement Between Lena Goldfields Company and USSR, U.N. Doc. A/CN.4/35, ¶28
(1925), reprinted in ILC, Memorandum on Arbitral Procedure, Prepared by the
Secretariat, II Y.B. I.L.C. 157, 162 (1950) (tribunal composed of two party-nominated
co-arbitrators and “the super-arbitrator … chosen by the two parties together by
mutual agreement” or appointment mechanism).
147) See§1.01[B][3] & §1.01[B][8].
148) See§12.01[D]; §12.03[A]-§12.03[B].
149) Shalakany, Arbitration and the Third World: A Plea for Reassessing Bias Under the
Specter of Neoliberalism, 41 Harv. Int’l L.J. 419, 430 (2000).
150) A. van den Berg, The New York Arbitration Convention of 1958 6 (1981). See also
Sornarajah, The Climate of International Arbitration, 8(2) J. Int’l Arb. 47, 50-51 (1991)
(“International commercial arbitration, particularly in the field of foreign
investment contracts, developed principally in the latter part of the twentieth
century”); UNCTAD, Dispute Settlement: International Commercial Arbitration 20
(2005) (“International commercial arbitration as we know it today began in
Continental Europe in the 1920s”).
151) See§1.01[A][2] & §1.01[A][5].
152) M. Bohacek, Arbitration and State-Organized Tribunals in the Ancient Procedure of
the Greeks and Romans 197-203 (1952); D. Roebuck, Ancient Greek Arbitration 46-47
(2001). Indeed, “litigation” in many historical settings bore little resemblance to
contemporary processes, making the categorization of arbitration as “alternative”
dispute resolution misleading.
109
153) See Lafont, L’Arbitrage en Mésopotamie, 2000 Rev. Arb. 557; D. Roebuck, Ancient
Greek Arbitration 23-25, 36-45 (2001); D. Roebuck & B. de Fumichon, Roman
Arbitration 193 (2004).
154) D. Roebuck & B. de Fumichon, Roman Arbitration 193 (2004).
155) Lafont, L’Arbitrage en Mésopotamie, 2000 Rev. Arb. 557, 579-81 (describing evidence
that Assyrian merchants used arbitration to resolve commercial disputes at
roughly same time); Pfeiffer & Speiser, One Hundred New Selected Nuzi Texts, in M.
Burrows & E. Speiser (eds.), XVI The Annual of The American Schools of Oriental
Research 79, 95 (1936), cited in L. Edmonson (ed.), Domke on Commercial Arbitration
§2.1 (3d ed. 2010 & Update 2019).
156) Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 158-60 (1957).
157) D. Roebuck, Ancient Greek Arbitration 45-46, 348-49, 358 (2001) (“Everywhere in the
Ancient Greek world, including Ptolemaic Egypt, and at all times within our period,
disputing parties considered arbitration to be a natural, perhaps the most natural,
method of resolving the differences they could not settle themselves, even though
they sometimes resorted to litigation (or in earlier times self-help) when they
could not get their own way”).
158) Hammond, Arbitration in Ancient Greece, 1 Arb. Int’l 188 (1985) (citing Homer, The
Iliad XVIII 497-508). See also Aeschylus, Eumenides 433-753 (similar description of
public arbitration before distinguished arbitrators, from 460 B.C.); Herodotus, I
Histories 96-98 (1858) (fictionalized exploits of Deioces as professional arbitrator);
D. Roebuck, Ancient Greek Arbitration 70-71 (2001) (citing description in Homer’s
Odyssey of Eriphyle as arbitrator).
159) Bonner, The Institution of Athenian Arbitrators, 11 Classical Philology 191, 192 (1916);
Hammond, Arbitration in Ancient Greece, 1 Arb. Int’l 188, 189 (1985); D. Roebuck,
Ancient Greek Arbitration 348-49 (2001).
160) D. Roebuck, Ancient Greek Arbitration 348 (2001).
161) Demosthenes, Against Meidias, in Demosthenes Against Meidias, Androtion,
Aristocrates, Timocrates, Aristogeiton 69, 94 (1935). See also Velissaropoulos-
Karakostas, L’Arbitrage dans la Grèce Antique: Epoques Archaïque et Classique, 2000
Rev. Arb. 9, 18-26 (outlining arbitral procedure in Greece during fourth and fifth
century B.C.).
162) D. Roebuck, Ancient Greek Arbitration 347-48 (2001) (“If the parties chose to submit
their disputes to private arbitration, then throughout the arbitration process they
had almost unlimited freedom of choice. By their agreement they controlled the
subject-matter in dispute, the selection of arbitrators, the limits of their
jurisdiction, the rules of procedure and even whether they should decide the issue
according to the law or should determine according to their sense of fairness”).
163) Id. at 349 (where tribunal consisted of more than one arbitrator: “Each party would
then appoint one, sometimes two, who would be identified with that party’s
interests either as a friend or member of the family. The parties’ arbitrators would
then appoint a koinos, someone common to both sides, who took his place as an
equal with the others”).
164) Id. at 348-49 (“[C]ivil litigation in Athens, probably throughout Greece, was the
preserve of the rich. … The most common subjects [of arbitration were] commercial
in the widest sense and about property”).
165) See D. Roebuck & B. de Fumichon, Roman Arbitration 94 (2004) (“The Romans
probably began to make use of arbitration ex compromisso, a private arbitration
created and controlled by the written agreement of the parties but supported by
the praetor, at some time in the second century BC, at a time of great imperial and
colonial expansion”); §1.01[A][1].
166) Stein, Arbitration Under Roman Law, 41 Arb. 203, 203-04 (1974). See also D. Roebuck
& B. de Fumichon, Roman Arbitration194 (2004) (“Across a wide range of subject
matter the Romans had a selection of [dispute resolution] techniques. … [A]t their
heart was a simple idea which remained essentially the same. That idea was the
appropriateness of private arbitration, which included a whole toolbag of
imaginable techniques, from which the parties could choose whatever was
appropriate for their dispute”).
167) Digest, 4, 8, 27, 2 (Ulpian), in S. Scott (ed.), III The Civil Law 125-26 (1932).
168) R. Zimmermann, The Law of Obligations 526 (1996). See also Coing, Zur Entwicklung
des Schiedsvertrages im Ius Commune, in G. Baumgärtel et al. (eds.), Festschrift für
Heinz Hübner 35, 36 (1984).
169) M. Kaser & K. Hackl, Das Römische Zivilprozessrecht 640 (2d ed. 1996); Matthias, Die
Entwicklung des Römischen Schiedsgerichts, in R. Juristenfakultaöt (ed.), Festschrift
zum Fünfzigjährigen Doctorjubiläum von Bernhard Windscheid 102 (1888).
170) Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 159-60 (1957).
171) D. Roebuck & B. de Fumichon, Roman Arbitration199 (2004) (“[T]he Roman practice
[in arbitration] was much like ours today, particularly in those jurisdictions whose
arbitration law has followed the Roman law on compromissum. The documents that
survive are quite familiar to the modern practitioner, the arbitrator’s crisp
summons to the parties in Puteoli, and the awards from Dioscorus’s files, whose
otiose drafting makes the purist’s spirits sink”).
110
172) Digest, 4, 8, 32, 15 (Paulus), in S. Scott (ed.), III The Civil Law 129 (1932); Stein, Labeo’s
Reasoning on Arbitration, 91 S. African L.J. 135 (1974). See also R. Zimmermann, The
Law of Obligations 513-14 (1996) (“the arbitrator can act only on the basis of a
contractual relationship (sui generis) existing between himself and the parties to
the dispute”).
173) R. Zimmermann, The Law of Obligations 529 (1996). See also Coing, Zur Entwicklung
des Schiedsvertrages im Ius Commune, in G. Baumgärtel et al. (eds.), Festschrift für
Heinz Hübner 35-36 (1984).
174) D. Roebuck & B. de Fumichon, Roman Arbitration 160 (2004) (“The parties
controlled the scope of the arbiter’s powers to dictate the form of the
proceedings”).
175) Stein, Arbitration Under Roman Law, 41 Arb. 203, 205 (1974). Professor Stein
describes the use of three-person tribunals, where disputes were resolved by
majority vote. Id. See also§12.02[E]. See Stein, Roman Arbitration: An English
Perspective, 29 Israel L. Rev. 215, 220-21 (1995).
176) M. Kaser & K. Hackl, Das Römische Zivilprozessrecht 639 (2d ed. 1996); Litewski,
Schiedsgerichtsbarkeit nach den Ältesten Ordines Iudiciarii, in N. Brieskorn et al.
(eds.), Vom Mittelalterlichen Recht zur Neuzeitlichen Rechtswissenschaft 193, 198
(1994) (Roman-canonic law of 11th through 13th century). The parties, however,
apparently had no direct claim against the arbitrator to perform his undertaking.
Bornhak, Schiedsvertrag und Schiedsgericht nach Geschichtlicher Entwicklung und
Geltendem Recht, 30 Zeitschrift für Deutschen Zivilprozeβ 1, 13 (1902); R.
Zimmermann, The Law of Obligations 514 (1996).
177) D. Roebuck & B. de Fumichon, Roman Arbitration (2004); F. Sanborn, Origins of the
Early English Maritime and Commercial Law 8-9 (1930); Stein, Arbitration Under
Roman Law, 41 Arb. 203, 203-04 (1974).
179) Id. at 98 (“A compromissum contained a number of promises: to choose and
appoint an arbitrator; to commit the matter to him; to participate in the process;
to perform whatever the award required; and to pay a penalty in default of
performance of any of those promises”); R. Zimmermann, The Law of Obligations 526
(1996) (“The mere agreement to submit to arbitration was not binding under
classical law”; “the parties could make their arrangement indirectly enforceable by
means of two (non-genuine) stipulationes poenae. Each of the parties had to
promise a penalty; a unilateral stipulationes poenae did not give rise to a valid
compromissum”) (emphasis in original); Stein, Arbitration Under Roman Law, 41 Arb.
203, 203-05 (1974).
180) Compare D. Roebuck & B. de Fumichon, Roman Arbitration126-27 (2004) (exclusivity
of arbitration).
181) R. David, Arbitration in International Trade 84-85 (1985); D. Roebuck & B. de
Fumichon, Roman Arbitration121-25 (2004).
183) See§1.01[B][3]-§1.01[B][6].
184) SeeChapter 3.
185) K.-H. Ziegler, Das Private Schiedsgericht im Antiken Römischen Recht 199-201 (1971).
186) Id. at 182; R. Zimmermann (ed.), The Law of Obligations 527 (1996).
187) Ziegler, Geschichtliche und Dogmatische Aspekte des Schiedsvertrages, in R.
Zimmermann (ed.), Rechtsgeschichte und Privatrechtsdogmatik 671 et seq. (1999).
188) M. Kaser & K. Hackl, Das Römische Zivilprozessrecht 643 (2d ed. 1996). By 330 A.D.,
there seems to have been episcopal jurisdiction (as opposed to contract-based
arbitration). By the end of the 4th century, however, Roman legislation limited
episcopal jurisdiction to religious disputes, while commercial disputes could be
referred to a bishop based only on the parties’ agreement. B. Matthias, Die
Entwicklung des Römischen Schiedsgerichts, in Festschrift zum Fünfzigjährigen
Doctorjubiläum von Bernhard Windscheid 144 (1888).
189) K.-H. Ziegler, Das Private Schiedsgericht im Antiken Römischen Recht 175 (1971).
190) R. Taubenschlag, The Law of Greco-Roman Egypt in the Light of Papyri 372-75, 377
(1944); Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 161-62 (1957);
Modrzejewski, Private Arbitration in the Law of Greco-Roman Egypt, 6 J. Juristic
Papyrology 239 (1952). Compare T. Gagos & P. van Minnen, Settling A Dispute: Toward
A Legal Anthropology of Late Antique Egypt 32-35, 121-27 (1994) (suggesting that
arbitration was used, but less frequently than mediation, in 3d- to 7th-century
Egypt).
191) W. Crum & G. Steindorff, Koptische Rechtsurkunden aus Djeme 835-37 (1912), quoted
in Mantica, Arbitration in Ancient Egypt, 12 Arb. J. 155, 162 (1957).
192) See§1.02[B][5] & §1.02[B][7].
193) Wolaver, The Historical Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132,
133 (1934-35).
194) See§1.01[A][2].
195) See R. David, Arbitration in International Trade 85-86 (1985); D. Roebuck, Mediation
and Arbitration in the Middle Ages: England 1154-1558 (2012).
111
196) Before the development of the common law, arbitration appears to have been
popular among the Anglo-Saxons. See, e.g., D. Roebuck, Mediation and Arbitration in
the Middle Ages: England 1154-1558 (2012); Baker, From Lovedays to ADR: Arbitration
and Dispute Resolution in England 1066-1800, 3(5) Transnat’l Disp. Mgt 1 (2006);
Murray, Arbitration in the Anglo-Saxon and Early Norman Periods, 16 Arb. J. 193
(1961); Roebuck, L’Arbitrage en Droit Anglais Avant 1558, 2002 Rev. Arb. 535.
197) J. Cohen, Commercial Arbitration and the Law 4 (1918).
198) F. Pollock & F. Maitland, The History of English Law 668 (2d ed. 1898). For a less
expansive view, see A. Carter, A History of English Legal Institutions 258-59 (1902)
(“Members of the same gild were bound to bring their disputes before the gilds
before litigating the matter elsewhere”).
199) See Roebuck, L’Arbitrage en Droit Anglais Avant 1558, 2002 Rev. Arb. 535, 567-76.
200) W. Blackstone, III Commentaries on the Laws of England 33 (1768), quoted in
Wolaver, The Historical Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132,
136 (1934-35). See also Baker, From Lovedays to ADR: Arbitration and Dispute
Resolution in England 1066-1800, 3(5) Transnat’l Disp. Mgt 1 (2006) (describing
Medieval arbitrations in England involving Italian merchants).
201) Baker, From Lovedays to ADR: Arbitration and Dispute Resolution in England 1066-
1800, 3(5) Transnat’l Disp. Mgt 1 (2006) (distinction between arbitration,
conciliation and miscellaneous public courts was unclear in Medieval England);
137 (1934-35).
202) G. Malynes, Consuetudo, vel, Lex Mercatoria, or The Ancient Law Merchant: Divided
into Three Parts: According to the Essentials Parts of Trafficke: Necessarie for All
Statesmen, Judges, Magistrates, Temporal and Civil Lawyers, Mint-men, Merchants,
Mariners, and All Others Negotiating in All Places of the World Chp. XV (1622). See
also id. at Chp. XV (3d ed. 1685) (“when Merchants by their Letters or Commissions
use these or the like words, Let All things be done as shall be thought most
expedient or convenient, that the said Commissions or Directions are to be left to
the interpretation of Arbitrators when any question ariseth, which is also in many
more questions concerning Merchants”).
203) Simpson, The Penal Bond with Conditional Defeasance, 82 L.Q. Rev. 392 (1966).
204) D. Roebuck, Mediation and Arbitration in the Middle Ages: England 1154-1558 371-80
(2012); Roebuck, L’Arbitrage en Droit Anglais Avant 1558, 2002 Rev. Arb. 535, 563-65
(“The judges increasingly accepted that not only an award but also an arbitration
agreement or even a mere agreement that would arrange to compromise could
prevent a claim in a tribunal”).
205) D. Roebuck, Mediation and Arbitration in the Middle Ages: England 1154-1558 384-87
(2012); Roebuck, L’Arbitrage en Droit Anglais Avant 1558, 2002 Rev. Arb. 535, 556.
206) R. David, Arbitration in International Trade 88-89 (1985).
207) D. Bell, Lawyers and Citizens: The Making of A Political Elite in Old Regime France 31
(1994); R. David, Arbitration in International Trade 88-90 (1985); Castan, The
Arbitration of Disputes Under the “Ancien Regime,” in J. Bossy (ed.), Disputes and
Settlements: Law and Human Relations in the West 234-35, 253-54 (1983) (arbitration
of various types of social disputes); Kessler, Enforcing Virtue: Social Norms and Self-
Interest in An Eighteenth-Century Merchant Court, 22 Law & Hist. Rev. 71, 82-86
(2004).
208) Bader, Arbiter Arbitrator seu Amicabilis Compositor, 77 Zeitschrift für
Rechtsgeschichte Kan. Abt. 239, 240 et seq. (1960); H. Krause, Die Geschichtliche
Entwicklung des Schiedsgerichtswesens in Deutschland 36 et seq., 52 (1930).
209) H. Krause, Die Geschichtliche Entwicklung des Schiedsgerichtswesens in Deutschland
2 et seq., 40 et seq. (1930).
210) M. Mikhailov, The History of the Formation and Development of the System of
Russian Civil Proceedings up to the Code of 1649 40 (2014) (provisions of 11th century
Russkaya Pravda, providing for tribunal of twelve members selected by parties:
“[T]he oldest way of dealing with disputed cases among the Anglo-Saxons, Danes,
Swedes and Norwegians. Such a court was in existence among these peoples, first
by custom, then according to the law, and consisted of each the plaintiff and the
defendant appointing six judges to decide in the dispute”).
211) Mirkhuseeva, Formation of An Arbitral Tribunal: A Historical Comparative Study, 97(1)
Treteysky Sud. 21 (2015) (three person tribunals used in Slavic tradition).
212) Id. at 58 et seq.
213) See Bader, Arbiter Arbitrator seu Amicabilis Compositor, 77 Zeitschrift für
Rechtsgeschichte Kan. Abt. 239, 240 et seq. (1960).
214) M. Kobler, Das Schiedsgerichtswesen nach Bayerischen Quellen des Mittelalters 107-
08 (1966).
215) See Bader, Arbiter Arbitrator seu Amicabilis Compositor, 77 Zeitschrift für
Rechtsgeschichte Kan. Abt. 239, 240 et seq. (1960).
4, 31, 35-36, 52 (1930).
217) Id. at 33.
218) R. Zimmermann, The Law of Obligations 529 (1996).
219) Id. at 528-30.
112
220) Coing, Zur Entwicklung des Schiedsvertrages im Ius Commune 35 et seq., in G.
Baumgärtel et al. (eds.), Festschrift für Heinz Hübner 35, 36-37 (1984); R.
Zimmermann, The Law of Obligations 529 (1996).
221) There are records of arbitral tribunals composed of German academics trained in
Italy as early as the 14th century. M. Kobler, Das Schiedsgerichtswesen nach
Bayerischen Quellen des Mittelalters 113-14 (1966); A. Lindheim, Das Schiedsgericht
im Modernen Civilprocesse 14 (1891).
48, 54 (1930); K. Kroeschell, Deutsche Rechtsgeschichte 2 (1250-1650) 34 (8th ed.
1992); R. Zimmermann, The Law of Obligations 529 (1996) (in European Middle Ages,
arbitrator responsible for deciding dispute was “bound to follow the rules of civil
procedure (‘Nam arbiter est, quem partes eliguant ad cognoscendum de quaestione,
vel lite’) and had to apply law (‘Arbiter debet sequi iuris rigorem, et aequitatem
scriptam’)”).
223) Some commentators suggest that parties turned to canonical arbitration for
sophisticated answers that customary German law could not offer. M. Kobler, Das
Schiedsgerichtswesen nach Bayerischen Quellen des Mittelalters 49 (1966); A.
Lindheim, Das Schiedsgericht im Modernen Civilprocesse 14 (1891).
50 et seq. (1930).
225) Id. at 48, 54.
226) M. Bloch, Feudal Society 359 (1961) (emphasis added).
227) Adams, The Anglo-Saxon Courts of Law, in H. Adams et al. (eds.), Essays in Anglo-
Saxon Law 1, 26-27, 53 (1876).
228) See§1.01[B][5]; Benson, An Exploration of the Impact of Modern Arbitration Statutes
on the Development of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 480
n.2, passim (1995).
229) See, e.g., Brekoulakis, The 2019 Roebuck Lecture: The Unwavering Policy Favouring
Arbitration Under English Law, 86 Arb. 97, 98 (2020) (standard form commercial
contracts in 18th century England included arbitration clauses); D. Roebuck, English
Arbitration and Mediation in the Long Eighteenth Century (2019); D. Roebuck,
Mediation and Arbitration in the Middle Ages: England 1154-1558 (2012); D. Roebuck,
Early English Arbitration (2008).
230) Brekoulakis, The 2019 Roebuck Lecture: The Unwavering Policy Favouring Arbitration
Under English Law, 86 Arb. 97, 99 (2020).
231) See, e.g., Brekoulakis, The 2019 Roebuck Lecture: The Unwavering Policy Favouring
Arbitration Under English Law, 86 Arb. 97, 98 (2020) (arbitration more suited for
international disputes because of lack of jurisdictional restrictions).
232) Vynior v. Wilde [1609] 77 ER 597 (English K.B.). Earlier English decisions had
commented favorably on the use of arbitration to reduce litigation and resolve
disputes. See also Cook v. Songate [1588] 4 Leon 31 (English K.B.).
233) Vynior v. Wilde [1609] 77 ER 597, 598-600 (English K.B.) (emphasis added).
234) See, e.g., J. Cohen, Commercial Arbitration and the Law 84 et seq. (1918); Roebuck,
The Myth of Judicial Jealousy, 10 Arb. Int’l 395, 400-01 (1994); Wolaver, The Historical
Background of Commercial Arbitration, 83 U. Pa. L. Rev. 132, 138-41 (1934-35).
235) See§1.01[B][1]-§1.01[B][2].
236) R. David, Arbitration in International Trade 109 (1985) (noting willingness of English
courts to enforce penalty provisions); W. Holdsworth, 12 A History of English Law
519-20 (2d ed. 1966) (discussing distinction between penalty clauses and
liquidated damages); Roebuck, The Myth of Judicial Jealousy, 10 Arb. Int’l 395 (1994).
237) An Act for the Better Preventing Frivolous and Vexatious Suits, 1697, 8 & 9 Will. III,
Chp. 11. See also Mann, The Formalization of Informal Law: Arbitration Before the
American Revolution, 59 N.Y.U. L. Rev. 443, 459 n.66 (1984) (noting that Act
responded in part to equity courts’ increasing refusal to enforce penalty clauses
beyond amount of actual damages).
238) Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J. 2, 4
(1999).
239) Brekoulakis, The 2019 Roebuck Lecture: The Unwavering Policy Favouring Arbitration
Under English Law, 86 Arb. 97, 99-100 (2020) (1698 English Arbitration Act was “first
Arbitration statute in the world”; Act was drafted “single-handedly” by John Locke).
240) English Civil Procedure Act, 1698, 9 & 10 Will. III, Chp. 15 (emphasis added). See also
S. Kyd, A Treatise on the Law of Awards (2d ed. 1799).
241) English Civil Procedure Act, 1698, 9 & 10 Will. III, Chp. 15.
242) W. Blackstone, III Commentaries on the Laws of England 16-17 (1768). It appears that
use of the 1698 Arbitration Act was limited, because of reluctance to invoke the
contempt authority of English courts. Samuel, Arbitration Statutes in England and
the USA, 8 Arb. & Disp. Resol. L.J. 2, 4 (1999). As noted elsewhere, the use of
commercial, professional and other forms of non-legal influence appears to have
played a significant role in enforcing arbitration agreements and awards during
this era. See§1.01[B][5]; Mann, The Formalization of Informal Law: Arbitration Before
the American Revolution, 59 N.Y.U. L. Rev. 443, 459 n.66 (1984).
243) See Doleman & Sons v. Ossett Corp. [1912] 3 KB 257, 267-68 (English Ct. App.).
244) Kill v. Hollister [1746] 95 ER 532, 532 (English K.B.).
245) See§1.01[B][5].
113
246) English Civil Procedure Act, 1833, 3 & 4 Will. IV, Chp. 42, §§39-41. See also
Brekoulakis, The 2019 Roebuck Lecture: The Unwavering Policy Favouring Arbitration
Under English Law, 86 Arb. 97, 100 (2020) (“since 17th century, Parliament has been
consistently enacting legislation that has given effect to a clear policy favouring
arbitration as a means of promoting business”; “arbitration was seen as an
ancillary to the judiciary in England”).
247) Scott v. Avery [1856] 5 HL Cas 811, 853 (House of Lords).
248) Id.
249) Russell v. Pellegrini [1856] 6 El. & Bl. 1020, 1025-26 (English Q.B.).
250) Scott v. Avery 25 L.J.Ex. 308, 313 (House of Lords 1856) (quoted in Kulukundis
Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 983 n.14 (2d Cir. 1948)). The report
of the Scott v. Avery judgment elsewhere omits the quoted passage from Lord
Campbell’s remarks. Scott v. Avery [1856] 5 HL Cas 811, 853 (House of Lords).
Compare Roebuck, The Myth of Judicial Jealousy, 10 Arb. Int’l 395 (1994).
251) Horowitz & Oldham, John Locke, Lord Mansfield and Arbitration During the
Eighteenth Century, 36(I) Historical J. 137 (1993) (concluding that common law
hostility to arbitration was not significant); Roebuck, The Myth of Judicial Jealousy,
10 Arb. Int’l 395, 403-04 (1994) (concluding that early English courts were not hostile
to arbitration).
252) See§1.04[B][1][d].
253) English Common Law Procedure Act, 1854, 17 & 18 Vict., Chp. 125. See Samuel,
Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J. 2, 6 (1999).
254) English Common Law Procedure Act, 1854, 17 & 18 Vict., Chp. 125, §17 (“Every
agreement for submission to arbitration by consent, whether by deed or
instrument in writing not under seal may be made a rule of any one of the superior
courts of law or equity at Westminster, on the application of any party thereto,
unless such agreement or submission contain words purporting that the parties
intend that it should not be made a rule of court”).
255) Id. §4. The Act also required arbitrators to issue their awards within three months
of their appointment, unless the parties or a superior court judge agreed to extend
the time limit. Id. at §15.
256) See Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J. 2,
6 (1999) (“The 1889 Arbitration Act can be regarded as the first modern arbitration
statute in the common law world”).
257) English Arbitration Act, 1889, 52 & 53 Vict., Chp. 49 (arbitration agreement is
irrevocable, unless otherwise indicated).
258) Id. §4.
259) Id. §§5, 8, 10, 19.
260) Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J. 2
(1999). The 1889 Act was amended in 1934, in light of the U.K.’s ratification of the
Geneva Protocol and Geneva Convention. See id. at 13; §1.01[C][1]-§1.01[C][2].
261) See§1.04[B][1][d].
262) Cf. Re Shaw & Sims [1851] 17 LTOS 160 (English Bail Ct.) (arbitrators may be chosen
by lot). But see Harris v. Mitchell [1704] 2 Vern. 485 (English Ct. Ch.) (selection of
umpire by lot rendered his appointment and award invalid).There is also some
evidence that women served as arbitrators at the time. S. Kyd, A Treatise on the
Law of Awards 70-71 (2d ed. 1799) (“an unmarried woman may be an arbitratrix”).
263) Baker, From Lovedays to ADR: Arbitration and Dispute Resolution in England 1066-
1800, 3(5) Transnat’l Disp. Mgt 1, 5 (2006) (advantage of 13th century arbitration:
“the parties could nominate their own arbitrators with an umpire in case of
disagreement”); R. Merkin, Arbitration Law ¶12.2 n.2 (1991 & Update March 2022).
See also Doley v. Pitstow [1755] 96 ER 859 (English K.B.); Elliott v. Chevall [1699] 125
ER 284 (English Common Pleas).
264) An “umpire” typically presided over deliberations between two party-nominated
arbitrators who were expected to function as quasi-advocates for their nominating
parties. See§12.02[E].
265) See§1.04[B][1][d]; . There is historical evidence suggesting that legal formalities had
made occasional in-roads even in early English arbitration, provoking complaints
from arbitration users. R. Henryson, The Tale of the Sheep and the Dog, reprinted in
7 Arb. Int’l 66 (1991).
266) See§1.01[B][2].
267) M. de Boisséson, Le Droit Français de l’Arbitrage Interne et International ¶8 (2d ed.
1990) (quoting Thouret, Member of Constituent Assembly).
268) French Law of 16-24 August 1790, Art. 1 (“As arbitration is the most reasonable
means of terminating disputes between citizens, the legislators shall not make any
provisions that would diminish either the favor or the efficiency of an arbitration
agreement”).
269) Clère, L’Arbitrage Révolutionnaire: Apogée et Déclin d’Une Institution (1790-1806),
1981 Rev. Arb. 3, 5-6; Hilaire, L’Arbitrage Dans la Période Moderne (XVIe-XVIIIe siècle),
2000 Rev. Arb. 187.
270) French Constitution of Year I, 1793, Art. 86; French Constitution of Year III, 1795, Art.
210 (“The right to choose arbitrators in any dispute shall not be violated in any way
whatsoever”). See Clère, L’Arbitrage Révolutionnaire: Apogée et Déclin d’Une
Institution (1790-1806), 1981 Rev. Arb. 3, 5-6; Hilaire, L’Arbitrage Dans la Période
Moderne (XVIe-XVIIIe siècle), 2000 Rev. Arb. 187.
114
271) Clére, L’Arbitrage Révolutionnaire: Apogée et Déclin d’Une Institution (1790-1806),
1981 Rev. Arb. 3, 21-23; R. David, Arbitration in International Trade 90 (1985). This
perception apparently arose from the use of compulsory arbitration in a wide
range of civil disputes (including domestic relations, inheritance and similar
areas).
272) Articles 1003 to 1028 of the 1806 Code of Civil Procedure introduced an extremely
unfavorable legal regime for arbitration. See Clére, L’Arbitrage Révolutionnaire:
Apogée et Déclin d’Une Institution (1790-1806), 1981 Rev. Arb. 3; M. de Boisséson, Le
Droit Français de l’Arbitrage Interne et International ¶¶8-11 (2d ed. 1990).
273) French Code of Civil Procedure, 1806, Art. 1006. See R. David, Arbitration in
International Trade 90 (1985); M. de Boisséson, Le Droit Français de l’Arbitrage
Interne et International ¶¶8-11 (2d ed. 1990).
274) French Commercial Code, 1804, Arts. 51-63, 332. See M. de Boisséson, Le Droit
Français de l’Arbitrage Interne et International ¶10 (2d ed. 1990).
275) R. David, Arbitration in International Trade 90 (1985) (quoting Bellot).
276) M. Bourbeau, Procedure Civile, Tome VI 422 (1837-63), quoted in Rubellin-Devichi &
Loquin, JurisClasseur Proc. Civ., Fasc. 1010 ¶19 (2013 & Update 2015).
277) Mounier, Rapport Rigaud, Sur le Projet de Loi Relative à l’Arbitrage Forcé, 1856 Dalloz
113.
278) Judgment of 10 July 1843, Cie l’Alliance v. Prunier, 1843 Dalloz 561 (French Cour de
Cassation Civ.), reprinted in 1992 Rev. Arb. 399.
279) J.-L. Delvolvé, J. Rouche & G. Pointon, French Arbitration Law and Practice ¶8 (2d ed.
2009); Remarks by Avocat Général Hello regarding Judgment of 10 July 1843, Cie
l’Alliance v. Prunier (French Cour de Cassation Civ.), 1992 Rev. Arb. 399, 404 (“The
obligation to nominate arbitrators in the arbitration agreement aims at avoiding
incidents and proceedings regarding the composition of an arbitral tribunal, and
mainly at warning the citizens against their own silliness, which would lead them to
subscribe too easily and without anticipation to future arbitrations, without being
assured of having capable and trustworthy persons as voluntary judges”). See
also§5.01[D].
280) Judgment of 10 July 1843, Cie l’Alliance v. Prunier, 1843 Dalloz 561 (French Cour de
Cassation Civ.), reprinted in 1992 Rev. Arb. 399.
281) See§1.04[B][1][b].
282) See id.; French Commercial Code, 1925, Art. 631.
283) See§1.01[A][3].
(1999) (“baleful influence of the common law”).
285) See Benson, An Exploration of the Impact of Modern Arbitration Statutes on the
Development of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 481-82
(1995); Mann, The Formalization of Informal Law: Arbitration Before the American
Revolution, 59 N.Y.U. L. Rev. 443 (1984).
286) See§1.04[B][1][e][i]-§1.04[B][1][e][v].
287) J. Auerbach, Justice Without Law? 32 (1983); Jones, Three Centuries of Commercial
Arbitration in New York: A Brief Survey, 1956 Wash. U. L.Q. 193, 195 (1956). While the
label “arbitrator” was used, the early Dutch colonial arrangements appear not to
have been arbitration as generally referred to today. As in some other historical
settings, arbitration was instead sometimes used to refer to a type of specialized
court procedure with mandatory jurisdiction.
288) Jones, Three Centuries of Commercial Arbitration in New York: A Brief Survey, 1956
Wash. U. L.Q. 193, 196 (1956) (quoting Daly, History of the Court of Common Pleas, in 1
Smith xxix (N.Y.C.P. 1855)).
289) Aiken, New Netherlands Arbitration in the 17th Century, 29 Arb. J. 145 (1974); A. Flick
(ed.), 3 History of the State of New York 14-16 (1933) (noting influence of Dutch
practice on colonial New York under English rule); Jones, Three Centuries of
Commercial Arbitration in New York: A Brief Survey, 1956 Wash. U. L.Q. 193, 197-98
(1956).
Wash. U. L.Q. 193, 198 (1956). See also Mann, The Formalization of Informal Law:
Arbitration Before the American Revolution, 59 N.Y.U. L. Rev. 443, 472 (1984)
(arbitration widely used to resolve commercial disputes in 17th and 18th century
American colonies).
291) Aiken, New Netherlands Arbitration in the 17th Century, 29 Arb. J. 145 (1974); Benson,
An Exploration of the Impact of Modern Arbitration Statutes on the Development of
Arbitration in the United States, 11 J. L. Econ. & Org. 479, 481-82 (1995); Conklin, Lost
Options for Mutual Gain? The Lawyer, The Layperson, and Dispute Resolution in Early
America, 28 Ohio St. J. Disp. Resol. 581 (2013); Konig, Law and Society in Puritan
Massachusetts: Essex County 1629-1692 108-16 (1979) (arbitration used “often and
effectively in the early years of settlement”); Mann, The Formalization of Informal
Law: Arbitration Before the American Revolution, 59 N.Y.U. L. Rev. 443, 447, 452 (1984)
(“Along with other legal traditions, arbitration was part of the cultural baggage of
the trans-Atlantic migration”; “there is no reason to doubt that arbitration was an
accepted form of adjudicating disputes in Connecticut before 1680”); Odiorne,
Arbitration Under Early New Jersey Law, 8 Arb. J. 117 (1953).
115
Wash. U. L.Q. 193, 202 (1956) (quoting N.Y. Weekly Post-Boy (20 May 1751)). See also J.
Higgins, Sampson Against the Philistines, or the Reformation of Lawsuits 37 (2d ed.
1805) (early 19th-century pamphlet reporting on popularity of arbitration: “so
strong is the predilection of men in favor of adjustment by reference, and so
convenient is that mode of terminating disputes, which have stood years in courts,
been found to courts and suitors, that in some states more judgments of courts are
given on reports of referees than on verdicts of juries”); Mann, The Formalization of
Informal Law: Arbitration Before the American Revolution, 59 N.Y.U. L. Rev. 443, 454
(1984) (“[Arbitration] was expeditious and inexpensive. It was also less public and
less adversarial than litigation”).
Wash. U. L.Q. 193, 213-14 (1956).
294) Id. at 211-18.
295) Benson, An Exploration of the Impact of Modern Arbitration Statutes on the
(1995).
296) Id. at 482.
Wash. U. L.Q. 193, 218 (1956).
298) L. Edmonson (ed.), Domke on Commercial Arbitration §§2.6-9 (3d ed. 2010 & Update
2019); Gwynne, The Oldest American Tribunal, 1 Arb. J. 117, 120 (1937); Mann, The
Formalization of Informal Law: Arbitration Before the American Revolution, 59 N.Y.U.
L. Rev. 443 (1984); Odiorne, Arbitration Under Early New Jersey Law, 8 Arb. J. 117
(1953).
299) J. Higgins, Sampson Against the Philistines, or the Reformation of Lawsuits 32 (2d ed.
1805).
300) M. Horwitz, The Transformation of American Law 1780-1860 151 (1977) (noting Quaker
doctrine urged that business disputes “‘should be settled in a Christian manner.
Therefore … no member should appeal to law; but … he should refer his difference
to arbitration by persons of exemplary character in the Society’”) (quoting T.
Clarkson, 2 A Portraiture of Quakerism 56 (1808)).
301) L. Friedman, A History of American Law 13 (3d ed. 2005). These “arbitrations” were
deemed as “‘valid as the judgments of the Courts of Justice.’” Id. (quoting E.
Bronner, William Penn’s “Holy Experiment” 36 (1962)).
302) J. Auerbach, Justice Without Law? 25 (1983).
303) Groendyk v. Winsmore, reprinted in L. de Valinger (ed.), Court Records of Kent
County, Delaware, 1680-1705 4-5 (1959).
304) An Act for the More Easy and Effectually Finishing of Controversies by Arbitration,
1753, reprinted in C. Hoadley (ed.), 10 The Public Records of the Colony of
Connecticut 201-02 (1877) (modeled on English Arbitration Act, 1698; permitting
arbitration agreements to be made a rule of court, with awards enforceable
through contempt power of court). See Mann, The Formalization of Informal Law:
Arbitration Before the American Revolution, 59 N.Y.U. L. Rev. 443 (1984).Earlier
Connecticut legislative enactments had encouraged resort to arbitration, including
a statement of approval in the first meeting of the Connecticut legislation (in 1645).
J. Trumbull (ed.), 1 The Public Records of the Colony of Connecticut 117 (“unnecessary
tryalls by Jury … might be prevented if arbitrations were attended in a more
private way”).
305) I Laws of the State of New York, 1802, Chp. XX, 1-23 (14th Sess.). Similar legislation
was proposed by some commentators at the time. See B. Austin, Observations on
the Pernicious Practice of the Law as Published Occasionally in the Independent
Chronicle (1796) (criticism of litigation and proposals for arbitration); J. Higgins,
Sampson Against the Philistines, or the Reformation of Lawsuits 41, 95 (2d ed. 1805)
(proposing legislation entitling either party to require resolution of disputes by
arbitration).
306) Mann, The Formalization of Informal Law: Arbitration Before the American
Revolution, 59 N.Y.U. L. Rev. 443, 458-60 (1984) (colonists used arbitration deeds,
conditioned bonds and promissory notes in late 17th century and 18th century
Connecticut to make arbitration agreements and awards enforceable).
307) 1775 Insurance Company of North American Insurance Policy, quoted in W.B. Clark
(ed.), VI Naval Documents of the American Revolution 171 (1964). Other examples
include: 1751 Marine Insurance of North American Insurance Policy, quoted in J.A.
Fowler, History of Insurance in Philadelphia for Two Centuries (1683-1882) 18 (1911);
1788 Marine Insurance of North American Insurance Policy, quoted in J.A. Fowler,
History of insurance in Philadelphia for two centuries (1683-1882) 39 (1911); 1752 North
American Insurance Policy, quoted in P. Frazer, Notes and Papers of or Connected
with Persifor Frazer in Glasslough, Ireland: and His Son John Frazer of Philadelphia,
1735-1765 59 (1906). See also Gillette v. Hosford, Arbitration Award of May 14, 1733, 12
Connecticut Archives, Private Controversies 39 (2d Ser. 1735) (arbitration agreed “for
the freindly [sic] ending and appeasing of differences and controvercies”), quoted
in Mann, The Formalization of Informal Law: Arbitration Before the American
Revolution, 59 N.Y.U. L. Rev. 443, 463 (1984).
116
308) J. Auerbach, Justice Without Law? 19-46 (1983); Benson, An Exploration of the Impact
of Modern Arbitration Statutes on the Development of Arbitration in the United
States, 11 J. L. Econ. & Org. 479, 488 (1995) (“arbitration was being developed and
expanded under the auspices of trade associations, mercantile exchanges, and
other commercial organizations where nonlegal sanctions apparently were
relatively strong”); Bernstein, Opting out of the Legal System: Extralegal Contractual
Relations in the Diamond Industry, 21 J. Legal Studies 115 (1992). See also Conklin,
Transformed, Not Transcended: The Role of Extrajudicial Dispute Resolution in
Antebellum Kentucky and New Jersey, 48 Am. J. Legal Hist. 39 (2006).
309) See§1.01[B][5].
310) Home Ins. Co. v. Morse, 87 U.S. 445, 451 (U.S. 1874); Robert Lawrence Co. v. Devonshire
Fabrics, Inc., 271 F.2d 402, 406 (2d Cir. 1959) (discussing U.S. courts’ hostility to
arbitration in 19th century); J. Cohen, Commercial Arbitration and the Law 226-52
(1918); Sayre, Development of Commercial Arbitration Law, 37 Yale L.J. 595, 595-97
(1927-28).
311) Tobey v. County of Bristol, 23 F.Cas. 1313, 1321-22 (C.C.D. Mass. 1845). See also§5.01[A].
312) Thomas W. Finucane Co. v. Bd of Educ. of Rochester, 82 N.E. 737 (N.Y. 1907).
313) See, e.g., Aktieselskabet Korn-Og Foderstof Kompagniet v. Rederiaktiebolaget
Atlanten, 250 F. 935, 937 (2d Cir. 1918) (breach of arbitration agreement yields only
“nominal damages” unless arbitral expenses have actually been incurred); Munson
v. Straits of Dover S.S. Co., 99 F. 787, 789 (S.D.N.Y. 1900) (“no case is to be found in
which … any other than nominal damages have ever been indicated to be
recoverable, because too loose, indefinite and incapable of verification”), aff’d,
100 F. 1005 (2d Cir. 1900); Restatement (First) Contracts §550 (1932) (“only nominal
damages are recoverable for its breach”); Sayre, Development of Commercial
Arbitration Law, 37 Yale L.J. 595, 604-05 (1927-28). See also Doleman & Sons v. Ossett
Corp. [1912] 3 KB 257, 267-68 (English Ct. App.) (“It will be evident, however, that the
remedy in damages must be an ineffective remedy in cases where the arbitration
had not been actually entered into, for it would seem difficult to prove any
damages other than nominal”); Tan, Damages for Breach of Forum Selection Clauses,
Principled Remedies, and Control of International Civil Litigation, 40 Tex. Int’l L.J. 623
(2004-05) (discussing conflicting authority on availability of damages for breach of
forum selection clause). See also§8.03[C][7].
314) See§1.01[B][3].
315) See§1.01[B][4].
316) J. Story, 1 Commentaries on Equity Jurisprudence as Administered in England and
America §670 (13th ed. 1886).
317) Id. at §1457 (13th ed. 1886) (citing Kill v. Hollister and its English progeny). See also
Hobart v. Drogan, 35 U.S. 108 (U.S. 1836) (relying on doctrine of “ousting courts of
jurisdiction” to hold that agreement to arbitrate did not bar civil litigation);
Parsons v. Ambos, 48 S.E. 696, 697 (Ga. 1904) (“The mere executory agreement to
submit is generally revocable. Otherwise, nothing would be easier than for the
more astute party to oust the courts of jurisdiction. By first making the contract
and then declaring who should construe it, the strong could oppress the weak, and
in effect so nullify the law as to secure the enforcement of contracts usurious,
immoral or contrary to public policy”).The broad declaration that arbitration
agreements were unenforceable as contrary to public policy was also reflected in
contemporaneous U.S. decisions regarding forum selection agreements. See G.
Born & P. Rutledge, International Civil Litigation in United States Courts 500-01 (6th
ed. 2018).
318) Blodgett Co. v. Bebe Co., 214 P. 38, 39 (Cal. 1923) (“Judges and commentators have
ascribed the origin of the rule to the jealousy of courts in the matter of their power
and jurisdiction and have been somewhat inclined to criticize it on that ground.
Another and better ground assigned for it is that citizens ought not to be permitted
or encouraged to deprive themselves of the protection of the courts by referring to
the arbitrament of private persons or tribunals, in no way qualified by training or
experience to pass upon them, questions affecting their legal rights.”); Cocalis v.
Nazlides, 139 N.E. 95, 96 (Ill. 1923). See also§5.01[A].
319) See Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 982-86 (2d Cir.
1942), for a detailed (and influential) historical review of the enforceability of
arbitration agreements at common law. See also S. Rep. No. 536, 68th Cong., 1st
Sess. 2-3 (1924) (“[judges’] jealousy of their rights as courts, coupled with the fear
that if arbitration agreements were to prevail and be enforced, the courts would
be ousted of much of their jurisdiction”); Arbitration of Interstate Commercial
Disputes: Joint Hearings on S. 1005 and H.R. 646 Before the Subcommissions of the
Commissions on the Judiciary, 68th Cong. 16 (1924).
320) Meacham v. Jamestown, Franklin & Clearfield R.R., 211 N.Y. 346, 354 (N.Y. 1914)
(Cardozo, J., concurring). See also Prince Steam-Shipping Co. v. Lehman, 39 F. 704,
704 (S.D.N.Y. 1889) (“Such agreements have repeatedly been held to be against
public policy and void”); Wood v. Humphrey, 114 Mass. 185, 186 (Mass. 1873) (“It has
been long settled that agreements to arbitrate which entirely oust the courts of
jurisdiction will not be supported either at law or in equity”); Hurst v. Litchfield, 39
N.Y. 377, 379 (N.Y. 1868) (“Such stipulations [for arbitration] are regarded as against
the policy of the common law as having a tendency to exclude the jurisdiction of
the courts”).
117
321) W. Sturges, A Treatise on Commercial Arbitrations and Awards 45 (1930).
322) See§1.01[B][3].
323) Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 406 (2d Cir. 1959).
Development of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 483 (1995).
See also W. Wooldridge, Uncle Sam: The Monopoly Man (1970); Lévy, The
Transformation of Arbitration Law 1835-1870: The Lessening of Judicial Hostility
Towards Private Dispute Resolution (unpublished paper 1993); Paulsson,
International Arbitration Is Not Arbitration, 2008:2 Stockholm Int’l Arb. Rev. 1, 5 (U.S.
Chamber of Commerce representations that enforcement of arbitral awards
depends in substantial part on “a moral sanction, such as can be exercised by the
International Chamber of Commerce”).
(1995) (New York Stock Exchange; Quakers; New York Chamber of Commerce). See
also§1.01[B][5].
326) See, e.g., Burchell v. Marsh, 58 U.S. 344, 351-52 (U.S. S.Ct. 1854); Condon v. Southside
R.R. Co., 14 Gratt. 302 (Va. 1858); Snodgrass v. Gavit, 28 Pa. 221 (Pa. 1857) (dicta);
Doolittle v. Malcom, 8 Leigh 608 (Va. 1837). See generally Benson, An Exploration of
the Impact of Modern Arbitration Statutes on the Development of Arbitration in the
United States, 11 J. L. Econ. & Org. 479, 485-87 (1995) (discussing cases); Conklin,
Transformed, Not Transcended: The Role of Extrajudicial Dispute Resolution in
Antebellum Kentucky and New Jersey, 48 Am. J. Legal Hist. 39 (2006).From an early
date, Pennsylvania decisions held that an agreement to arbitrate future disputes
before a specifically-named arbitrator was not revocable (in contrast to an
agreement to arbitrate before an as-yet-unidentified arbitrator). W. Sturges, A
Treatise on Commercial Arbitrations and Awards 48-49 (1930). Similar rules applied
in some other states. Conklin, Transformed, Not Transcended: The Role of
Extrajudicial Dispute Resolution in Antebellum Kentucky and New Jersey, 48 Am. J.
Legal Hist. 39 (2006).
327) See, e.g., Ebert v. Ebert, 5 Md. 353, 354 (Md. 1854) (“every reasonable intendment is
now made in favor of [arbitral] awards … and … all matters have been decided by
them, unless the contrary shall appear on the face of the award”); Doolittle v.
Malcom, 8 Leigh 608 (Va. 1837). See also Del. & Hudson Canal Co. v. Pa. Coal Co., 50
N.Y. 250, 258 (N.Y. 1872) (“It appears to be well settled by authority that an
agreement to refer all matters of difference or dispute that may arise to
arbitration, will not oust a court of law or equity of jurisdiction. The reason of the
rule is by some traced to the jealousy of the courts, and a desire to repress all
attempts to encroach on the exclusiveness of their jurisdiction; and by others an
aversion of the courts, from reasons of public policy, to sanction contracts by which
the protection which the law affords the individual citizens is renounced. An
agreement of this character induced by fraud, or overreaching, or entered into
unadvisedly through ignorance, folly or undue pressure, might well be refused a
specific performance, or disregarded. … But when the parties stand upon an equal
footing, and intelligently and deliberately, in making their executory contracts,
provide for an amicable adjustment of any difference that may arise, either by
arbitration, or otherwise, it is not easy to assign at this day any good reason why
the contract should not stand, and the parties made to abide by it, and the
judgment of the tribunal of their choice”).
328) Condon v. Southside R.R. Co., 14 Gratt. 302, 313-17 (Va. 1858). One may surmise that
George Washington’s attitude towards arbitration, expressed in his last will and
testament, favorably influenced Virginian courts. See§1.01[B][9].
329) See§1.01[B][5]; Mann, The Formalization of Informal Law: Arbitration Before the
American Revolution, 59 N.Y.U. L. Rev. 443, 458-60 (1984).
330) 22 U.S.C.A. §161 (1927) (duty of foreign service officers to encourage use of
arbitration and to facilitate arbitral processes).
Development of Arbitration in the United States, 11 J. L. Econ. & Org. 479, 488 (1995)
(“arbitration was being developed and expanded under the auspices of trade
associations, mercantile exchanges, and other commercial organizations where
nonlegal sanctions apparently were relatively strong”). See also Bernstein, Opting
out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21
J. Legal Studies 115 (1992); Bernstein, Private Commercial Law in the Cotton Industry:
Creating Cooperation Through Rules, Norms and Institutions, 99 Mich. L. Rev. 1724,
1725 (2001) (“The institutions that create and administer the [cotton] industry’s
private legal system work extraordinarily well. … The arbitration tribunals that
resolve disputes do so expeditiously and inexpensively. Their decisions, which are
recorded in written opinions, reveal a distinctive and coherent jurisprudential
approach. Within the industry, arbitration awards are widely respected and
complied with promptly”).
118
332) Hamilton v. Liverpool & London & Globe Ins. Co., 136 U.S. 242, 242-55 (U.S. 1890)
(recognizing arbitral award determining damages, where court decided general
question of liability); U.S. Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 222 F.
1006, 1008-09, 1010-11 (S.D.N.Y. 1915). See§1.01[B][5]. Compare A. Corbin, 6A Corbin
on Contracts §1432-44B (1962) (addressing arbitration agreements under heading of
“illegal bargains”).
333) G. Graham, To Validate Certain Agreements for Arbitration, H.R. Rep. No. 68-96, 1
(1924); Chamber of the State of New York, Report of the Committee on Arbitration
(1917); Sayre, Development of Commercial Arbitration Law, 37 Yale L.J. 595, 595 n.2
(1927-28).
334) See§1.01[C][1]; U.S. FAA, 9 U.S.C. §§1 et seq.; New York Arbitration Law, 1920, Ch. 275,
Laws 803-807; Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp.
Resol. L.J. 2, 7-13 (1999).
335) Berkovitz v. Arbib & Houlberg, 130 N.E. 288, 290-92 (N.Y. 1921) (upholding New York
arbitration legislation); Stone, Rustic Justice: Community and Coercion Under the
Federal Arbitration Act, 77 N.C. L. Rev. 931, 982-87 (1999).
336) See§1.01[B][2].
337) W. Haeger, Schiedsgerichte für Rechtsstreitigkeiten der Handelswelt 2 (1910), quoted
in Berger, The New German Arbitration Law in International Perspective, 26 Forum
Int’l 1, 1 (2000).
338) A. Lindheim, Das Schiedsgericht im Modernen Civilprocesse 17 (1891).
339) Begründung des Entwurfs Einer Zivilprozessordnung, Deutscher Reichstag, II,
Legislatur-Periode, I, Session 1876, Ad No. 6, 476, quoted in Cohn, Commercial
Arbitration and the Rules of Law: A Comparative Study, 4 U. Toronto L.J. 1, 16 (1942).
340) See§3.02[B][3][a].
341) W. Haeger, Schiedsgerichte für Rechtsstreitigkeiten der Handelswelt 21 (1910).
342) Id. at 24.
343) Weiss, Arbitration in Germany, 43 L.Q. Rev. 205, 206 (1927). But see Kahn, Arbitration
in England and Germany, 12 J. Comp. Legis. & Int’l L. 58, 76-77 (1930) (suggesting that
Weiss’s view of German courts was unduly bleak); Nussbaum,
Schiedsgerichtsschriftstellerei Zwecks Störung Internationaler Beziehungen, in 2
Internationales Jahrbuch für Schiedsgerichtswesen 384 (1928) (arguing that Weiss
misinterpreted German law).
344) Nussbaum, Schiedsgerichtswesen, 42 Zeitschrift für Zivilprozeßrecht 254, 259-60
(1912), referring to Judgment of 28 January 1908, 69 RGZ 52, 55 (German
Reichsgericht).
345) Legal Opinion of 17 October 1925, 31 DJZ 500, 501 (Reichskartellgericht Chairman)
(1926) (emphasizing state’s duty to ensure that requirements of due process and
impartiality of arbitrators are observed during arbitral process); Nussbaum,
Schiedsgerichte und Rechtsordnung, 1926 JW 55.
346) Blomeyer, Betrachtungen über die Schiedsgerichtsbarkeit, in B. Wolfgang & L.
Rosenberg (eds.), Festgabe zum Siebzigsten Geburtstag von Leo Rosenberg 59 (1949);
Kuntze, Schiedsgericht oder Rechtsprechung Durch die Gerichte des Staates, 1934 JW
649, 651; Raeke, Dienst am Recht, 65 Juristische Wochenschrift 3 (1935).
347) See Richtlinien des Reiches über Schiedsgerichte, 95 Deutsche Justiz 52, 821 (1933).
For a description and assessment of the Nazi Directives on Arbitration, see Born,
The 1933 Directives on Arbitration of the German Reich: Echoes of the Past?, 38 J. Int’l
Arb. 417 (2021).
348) Kuntze, Schiedsgericht oder Rechtsprechung Durch die Gerichte des Staates, 63 JW
649, 651 (1934).
349) Cohn, Commercial Arbitration and the Rules of Law: A Comparative Study, 4 U.
Toronto L.J. 1, 27-28 (1941); Cohn, Foreign Awards and Exchange Restrictions Under
German Law, 21 J. Comp. Legis. & Int’l L. 75-76, 81-82 (1939).
350) Cohn, Commercial Arbitration and the Rules of Law: A Comparative Study, 4 U.
Toronto L.J. 1, 27 (1941).
351) See§1.01[B][4].
352) Judgment of 17 December 1936, Pas. 1936 I 457, 458 (Belgian Cour de Cassation); G.
Keutgen & G. Dal, L’Arbitrage en Droit Belge et International Tome I: Le Droit Belge
¶42 (2d ed. 2006); Keutgen & Huys, Chronique de Jurisprudence: L’Arbitrage (1950-
75), 1976 Journal des Tribunaux 53, 54.
353) A. van den Berg, R. van Delden & H. Snijders, Netherlands Arbitration Law §1.1 (1993);
Sanders, The Netherlands, VI Y.B. Comm. Arb. 60 (1981) (describing Dutch arbitral
procedure under 1838 law).
354) Van Bladel, Arbitration in the Building Industry in the Netherlands, 54 Disp. Resol. J.
42, 43 (1999). See also Moglen, Commercial Arbitration in the Eighteenth Century:
Searching for the Transformation of American Law, 93 Yale L.J. 135, 136-37 (1983-84)
(noting historical “Dutch fondness for extrajudicial settlement” as reflected in
American colonies).
355) Aiken, New Netherlands Arbitration in the 17th Century, 29 Arb. J. 145, 146-49 (1974)
(describing influence of Roman arbitration law on Dutch legal tradition).
356) R. David, Arbitration in International Trade 101-02 (1985).
357) See M. Mikhailov, The History of the Formation and Development of the System of
Russian Civil Proceedings up to the Code of 1649 40 (2014).
358) Russian Council Code, 1649, Art. 5 (arbitral awards have same effect as judicial
judgments); A. Mankov, Commentary to the Council Code 1649 §73 (1987).
119
359) K. Annenkov, 6 The Experience of Commenting on the Charter of Civil Procedure 276
(1887) (Russian Arbitration Courts Regulation, 1831, providing for formalized
arbitral tribunals); A. Vitsyn, On Arbitration in Russian Law (1856).
360) I. Engelman, Textbook on Russian Civil Procedure 400 (1904) (judicial hostility to
arbitration and formalistic legislation.
361) Russian Court Decree (No. 1) of 24 November 1917 (all civil disputes, and criminal
disputes where private party is complainant, could be referred to arbitration);
Russian Decree of the All-Russian Central Executive Committee on Arbitral
Tribunals of 16 February 1918.
362) Russian Arbitration Tribunals Regulation of 16 October 1924 (only existing, not
future, disputes could be referred to arbitration; prohibiting institutional
arbitration).
363) See, e.g., Veeder, Arbitral Reform and Legal History: “The Blank Piece of Paper,” in A.
Asoskov et al. (eds.), New Horizons of International Arbitration 5, 55 (2019) (citing
“favourable approach taken towards international arbitration in the principal
concession agreements granted by the USSR to foreign investors”); Veeder, The
Natural Limits to the Truncated Tribunal: The German Case of the Soviet Eggs and the
Dutch Abduction of the Indonesian Arbitrator, in R. Briner et al., (eds.), Law of
International Business and Dispute Settlement in the 21st Century 795 (2001).
Compare Veeder, 1922: The Birth of the ICC Arbitration Clause and the Demise of the
Anglo-Soviet Urquhart Concession, in R. Aksen et al. (eds.), Global Reflections on
International Law, Commerce and Dispute Resolution 881, 882-97 (2005).
364) See, e.g., 1925 USSR–Germany Commercial Treaty (amended in 1928), LIII L.N.T.S. 7 &
LXXVIII L.N.T.S. 472, Chapter VI (“Agreement Concerning Commercial Courts of
Arbitration”).
365) See, e.g., M. Moser & J. Choong (eds.), Asia Arbitration Handbook 431, 845 (2011).
366) M. Abu-Nimer, Non-Violence and Peacebuilding in Islam: Theory & Practice (2003); S.
Saleh, Commercial Arbitration in the Arab Middle East 15 et seq. (2d ed. 2006); El-
Kosheri, Is There A Growing International Arbitration Culture in the Arab-Islamic
Juridical Culture?, in A. van den Berg (ed.), International Dispute Resolution:
Towards An International Arbitration Culture47 (1998); Majeed, Good Faith and Due
Process: Lessons from the Shari’ah, 20 Arb. Int’l 97, 104 (2004).
367) S. Amin, Commercial Arbitration in Islamic Law and Iranian Law (1984); A. El-Ahdab &
J. El-Ahdab, Arbitration with the Arab Countries5-6 (3d ed. 2011); S. Saleh,
Commercial Arbitration in the Arab Middle East 18 (2d ed. 2006).
368) S. Saleh, Commercial Arbitration in the Arab Middle East 12 (2d ed. 2006).
369) Majeed, Good Faith and Due Process: Lessons from the Shari’ah, 20 Arb. Int’l 97, 104
(2004).
370) El-Kosheri, Is There A Growing International Arbitration Culture in the Arab-Islamic
Juridical Culture?, in A. van den Berg (ed.), International Dispute Resolution:
Towards An International Arbitration Culture47 (1998).
371) A. El-Ahdab & J. El-Ahdab, Arbitration with the Arab Countries5 (3d ed. 2011).
372) See id. (describing contemporary arbitration practices in countries across Arabic
Middle East); S. Saleh, Arbitration in the Arab Middle East 18-19 (1984).
373) See A. Al-Ramahi, Sulh: A Crucial Part of Islamic Arbitration 12 (LSE Law, Soc’y &
Econ., Working Paper No. 12, 2008); Katbeh, Palestine Moving Ahead: New Draft of the
Arbitration Law, 12(2) Transnat’l Disp. Mgt 2 (2015).
374) Fry, Islamic Law and the Iran–United States Claims Tribunal: The Primacy of the
International Law over Municipal Law, 18 Arb. Int’l 105 (2002).
375) See M. Abu-Nimer, Non-Violence and Peacebuilding in Islam, Theory & Practice 63
(2003).
376) A. El-Ahdab & J. El-Ahdab, Arbitration with the Arab Countries 8-9 (3d ed. 2011).
377) Al Qurashi, Arbitration Under the Islamic Sharia, 1 Oil, Gas & Energy L. Int’l (2003);
Fathy, Arbitration According to Islamic Law (Sharia), 1 Arab Arb. J. 31 (2000). As
discussed above, the institution of party-nominated arbitrators was an enduring
feature of both state-to-state and commercial arbitration in Europe from Antiquity
until the present. See§1.01[A][5]; §1.01[B][1], §1.01[B][3] & §1.01[B][8]; §12.01[D];
§12.03[A]-§12.03[B].
378) A. El-Ahdab & J. El-Ahdab, Arbitration with the Arab Countries9-11 (3d ed. 2011).
379) Id. at 9.
380) Article 1841 of the Civil Code provided broadly that “Actions relating to rights
concerning property may be settled by arbitration.” Ottoman Civil Code of 1876,
Art. 1841.
381) Id. Art. 1847. The arbitrator’s authority was limited to “the persons who have
appointed him, and the matters he has been appointed to decide.” Id. at Art. 1842.
382) Id. Art. 1849.
383) II Encyclopaedia Judaica 364 (2d ed. 2007). Jewish courts are referred to in the
Pentateuch. Exodus 18:25-26; Deuteronomy 16:38, 17:8-13.
120
384) II Encyclopaedia Judaica 365 (2d ed. 2007); H. Lapin, Rabbis as Romans: The Rabbinic
Movement in Palestine, 100-400 C.E. 99 (2012) (describing increasing scope of
rabbinic arbitration in 3d and 4th century); Z. Warhaftig, Studies in Jewish Law 25-26
(1985) (arbitration “gradually established its prominence in Jewish adjudication,
until finally it became the sole adjudicative institution that was recognized by the
Romans, pursuant to the Emperor’s order in the year 398 of the Common
era”).Some authorities conclude that arbitration predated Roman times, merely
receiving impetus from Roman domination of the judicial system. B. Cohen, Jewish
and Roman Law 657, 796 (1966); A. Gulak, Foundations of Jewish Law IV.30 (1922)
(“most plausible view is that the [Roman] assumption of jurisdiction over civil law
and the dispersal of the permanent courts prompted Rabbi Meir to amend his
rulings regarding the establishment of arbitrator’s courts”).
385) S. Assaf, Jewish Courts and Procedure in the Post-Talmudic Period 54-57 (1924). See
also Sinai, Arbitration as An Ideal Judicial Procedure, in J. Fleishman (ed.), Jewish Law
Association Studies XVIII: The Bar-Ilan Conference Volume 279, 284-85 (2008).
386) II Encyclopaedia Judaica 365 (2d ed. 2007) (Codex Theodosianus 2:2, 10; Codex
Justinianus 1:9, 8). “[T]he background to the creation of arbitration as an institution
of Jewish judicial authority [finds] expression in an order of Honorius in 398 C.E.,
according to which Jews were rendered subject to Roman law and the regular
courts, but permitted, in civil law matters and by mutual consent of the parties, to
resort to their own arbitration proceedings, enforceable at the hands of the
provincial judges.” Id. See also H. Lapin, Rabbis as Romans: The Rabbinic Movement
in Palestine, 100-400 C.E. 121 (2012) (Roman law gave effect to agreements to resolve
disputes “before the Jews or the Patriarchs after the manner of arbitration”).
387) II Encyclopaedia Judaica 365 (2d ed. 2007).
388) Sinai, Arbitration as An Ideal Judicial Procedure, in J. Fleishman (ed.), Jewish Law
Association Studies XVIII: The Bar-Ilan Conference Volume 279, 279 (2008).
389) M. Rodkinson, The Babylonian Talmud: Tract Sanhedrin Chp. 3 (2010). See also Sinai,
Arbitration as An Ideal Judicial Procedure, in J. Fleishman (ed.), Jewish Law
Association Studies XVIII: The Bar-Ilan Conference Volume 279, 279 (2008) (“In the
zabla form of arbitration in the Jewish tradition, each party chooses one judge and
the third judge is chosen jointly by both parties or by the judges of their choice”);
Leben, L’Arbitrage par un Tribunal Rabbinique Appliquant le Droit Hebraïque, 2011
Rev. Arb. 87, 97.
390) Sinai, Arbitration as An Ideal Judicial Procedure, in J. Fleishman (ed.), Jewish Law
Association Studies XVIII: The Bar-Ilan Conference Volume 279, 285 (2008)
(distinguishing Roman and Greek arbitrations, which supposedly were
characterized by compromise, from Jewish arbitration, which “is not just reaching
compromise and conciliation”).
391) Id. 287-89 (citing Rabbi Yaakov Reisher: arbitration was an “ancient tradition
always practised” and “in many communities, even though they had permanent
judges, there were many cases in which the parties compromised and agreed to
litigate in zabla proceedings”).
392) Gordis, Judaism: Freedom of Expression and the Right to Knowledge in the Jewish
Tradition, 54 Colum. L. Rev. 676, 689 (1954).
393) N.S. Hecht et al. (eds.), An Introduction to the History and Sources of Jewish Law 326
(1996).
394) Kirshner, Introduction, 16 Jewish History 1, 10 (2002).
395) Siegmund, Division of the Dowry on the Death of the Daughter: An Instance in the
Negotiation of Laws and Jewish Customs in Early Modern Tuscany, 16 Jewish History
73, 81 (2002).
397) Id. at 365 (citing authorities).
398) Id. at 365-66 (Talmudic authorities rejected suggestion that Jewish sources “justify[]
the arbitrator’s blind support of the party by whom he was chosen when they
should rather be read as meaning that the arbitrators appointed by both parties
would thoroughly investigate the facts objectively and negotiate on the respective
merits of the litigants’ claim – the third arbitrator listening to them and then
deciding between them”).
399) See B. Cohen, Jewish and Roman Law: A Comparative Study 13-17 (1985) (arbitral
procedures chosen by parties in traditional Jewish arbitrations); Z. Warhaftig,
Studies in Jewish Law 23-24 (1985) (arbitral procedures chosen by parties in
traditional Jewish arbitrations).
401) Id. at 366.
402) Id.
403) Id. at 367.
404) Id. (citing M. Krochmal, Zemah Zedek 37 (1675)).
405) Bentwich, The Application of Jewish Law in Palestine, 9 J. Comp. Legis. & Int’l L 59, 65
(1927) (Jewish parties used arbitration to avoid Turkish courts); Likhovski, The
Invention of “Hebrew Law” in Mandatory Palestine, 46 Am. J. Comp. L. 339 (1998)
(creation of “arbitration courts” in Mandatory Palestine).
121
406) Grossman, Is This Arbitration? Religious Tribunals, Judicial Review, and Due Process,
107 Colum. L. Rev. 169 (2007); Royde, Jewish Law Courts in America: Lessons Offered
to Sharia Courts by the Beth Din of America Precedent, 57 N.Y.L. Sch. L. Rev. 287, 298
(2012); Wolfe, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious
Arbitration Systems and Their Interaction with Secular Courts, 75 Fordham L. Rev. 427
(2006).
407) Legall, Beth Din Meets Secular Law: Orthodox Jews Often Rely on Their Own Religious
Court, the Beth Din, to Resolve Civil Disputes in Matters as Diverse as Business and
Divorce, 62(2) Int’l Bar News 25, 25 (2008); European Beth Din, available at
europeanbethdin.com. See also Sterling v. Rand [2019] EWHC 2560 (Ch) (English High
Ct.).
408) See, e.g., Raghavan, New Horizons for Alternative Dispute Resolution in India: The
New Arbitration Law of 1996, 13(4) J. Int’l Arb. 5, 7 (1996) (describing influence of
English law on arbitration in India); Schaefer, Leaving the Colonial Arbitration Laws
Behind: Southeast Asia’s Move into the International Arbitration Arena, 16 Arb. Int’l
297, 298 (2000) (describing history of arbitration in Southeast Asia); Xu & Wilson,
One Country, Two International Commercial Arbitration-Systems, 17(6) J. Int’l Arb. 47
(2000) (describing British influence on arbitration in Hong Kong).
409) Cohen, Chinese Mediation on the Eve of Modernization, in D. Buxbaum (ed.),
Traditional and Modern Legal Institutions in Asia and Africa (1967); Liu & Lourie,
International Commercial Arbitration in China: History, New Developments and
Current Practice, 28 J. Marshall L. Rev. 539, 540 (1995); D. Roebuck, A Miscellany of
Disputes 21-26 (2000); Wang, The Unification of the Dispute Resolution System in
China: Cultural, Economic, and Legal Contributions, 13(2) J. Int’l Arb. 5, 7-10
(1996).Arbitration was also reportedly preferred due to the interdependent nature
of Chinese society in which families resided in the same villages for generations. It
is said that villagers would not risk alienating a neighbor by bringing a lawsuit, so
amicable settlement of disputes was preferred. Liu & Lourie, International
Commercial Arbitration in China: History, New Developments and Current Practice, 28
J. Marshall L. Rev. 539, 540 (1995).
410) Wang, The Unification of the Dispute Resolution System in China: Cultural, Economic,
and Legal Contributions, 13(2) J. Int’l Arb. 5, 8-9 (1996).
411) For a discussion of the influence of Confucianism on the resolution of social conflict
in China, see E. Black & G. Bell (eds.), Law and Legal Institutions of Asia: Traditions,
Adaptations, and Innovations 28 (2011).
412) See P. Huang, Chinese Civil Justice, Past and Present 4, 29 (2010).
413) See, e.g., M. Moser & J. Choong (eds.), Asia Arbitration Handbook431, 819 (2011).
414) Id. at 583.
415) See P. Richman (ed.), Many Ramayanas: Diversity of A Narrative Tradition in South
Asia 123 (1991).
416) Id. at 123.
417) M. Moser & J. Choong (eds.), Asia Arbitration Handbook845, 903 (2011); Raghavan,
New Horizons for Alternative Dispute Resolution in India: The New Arbitration Law of
1996, 13(4) J. Int’l Arb. 5, 6 (1996).
418) See R. Josh & G. Narvani, Panchayat Raj in India: Emerging Trends Across the States
13 (2002).
419) Id. at 13.
420) D. Rautray, Master Guide to Arbitration in India ¶¶1-010 et seq. (2008).
421) Butler & Finsen, Southern Africa, in E. Cotran & A. Amissah (eds.), Arbitration in
Africa 193-95 (1996) (discussing impact of Roman-Dutch law and English arbitration
practice in Southern Africa). But see Amoussou-Guenou, Former French Territories, in
E. Cotran & A. Amissah (eds.), Arbitration in Africa 270 (1996) (France did not extend
arbitration provisions of French Code of Civil Procedure to its African colonies).
422) Goodman-Everard, Book Review: Arbitration in Africa, 14 Arb. Int’l 457, 458 (1998).
423) Liundi, Introduction: Status of Tanzania and Zanzibar and Applicable Laws, in E.
Cotran & A. Amissah (eds.), Arbitration in Africa 78-79 (1996).
424) Id.; Le Bars, International Commercial Arbitration in Africa: The Whole Nine Yards, in
A. Menaker (ed.), International Arbitration and the Rule of Law: Contribution and
Conformity931 (2017) (“The ancient judicial tradition in Sub-Saharan Africa consists
in achieving social peace and harmony, essentially through alternative dispute
resolution, based on dialogue between parties in front of a panel of ‘wise men’
acting as judges”).
425) J. Pejovés, El Tribunal del Consulado de Lima (2018); Smith, A Research Report on
Consulado History, 3 J. Inter-Am. Studs. 41 (1961); Smith, The Institution of the
Consulado in New Spain, 24 Hispanic Am. Hist. Rev. 61 (1944); Woodward, Mercantile
Justice in Guatemala (1793-1871): El Tribunal del Consulado, 8 Inter-Am. L. Rev. 293
(1966). See also Mazzeo, El Consulado de Lima y la Política Comercial Española
Frente a las Coyunturas de Cambio de Fines del Periodo Colonial (1806-1821), in B.
Hausberger & A. Ibarra (eds.), Comercio y Poder en América Colonial: Los Consulados
de Comerciantes, Siglos XVII-XIX 199 (2003).
426) N. Blackaby, D. Lindsey & A. Spinillo (eds.), International Arbitration in Latin
America, Overview of Regional Developments 3-10 (2003); J. Kleinheisterkamp,
International Commercial Arbitration in Latin America 5 (2005); C. Leathley,
International Dispute Resolution In Latin America: An Institutional Overview (2006).
427) J. Kleinheisterkamp, International Commercial Arbitration in Latin America 5 (2005).
122
428) Balli & Coale, Recent Reforms to Mexican Arbitration Law: Is Constitutionality
Achievable?, 30 Tex. Int’l L.J. 535, 539-40 (1995); von Wobeser, Mexico, in N. Blackaby,
D. Lindsey & A. Spinillo (eds.), International Arbitration in Latin America 155, 159, 162
(2002).
429) J. Kleinheisterkamp, International Commercial Arbitration in Latin America 9 (2005);
Jorquiera & Helmlinger, Chile, in N. Blackaby, D. Lindsey & A. Spinillo (eds.),
International Arbitration in Latin America 89, 90-91 (2002).
430) Falcão, Recognition and Enforcement of Foreign Arbitral Awards: A New Chapter in
Brazilian Arbitration History, 8 Am. Rev. Int’l Arb. 367, 369 (1997).
431) J. Kleinheisterkamp, International Commercial Arbitration in Latin America 8 (2005);
Jorquiera & Helmlinger, Brazil, in N. Blackaby, D. Lindsey & A. Spinillo (eds.),
International Arbitration in Latin America 61, 62-66 (2002).
432) J. Kleinheisterkamp, International Commercial Arbitration in Latin America 114-15
(2005); Lee, Brazil, in N. Blackaby, D. Lindsey & A. Spinillo (eds.), International
Arbitration in Latin America 61, 62-63, 69 (2002).
433) Falcão, Recognition and Enforcement of Foreign Arbitral Awards: A New Chapter in
Brazilian Arbitration History, 8 Am. Rev. Int’l Arb. 367, 369 (1997); Volz & Haydock,
Foreign Arbitral Awards: Enforcing the Award Against the Recalcitrant Loser, 21 Wm.
Mitchell L. Rev. 867, 874-77 nn.29, 47 (1996).
434) H.-W. Greminger, Die Genfer Abkommen von 1923 und 1927 über die Internationale
Private Schiedsgerichtsbarkeit 1-3 (1957).
435) Grigera Naón, Arbitration and Latin America: Progress and Setbacks, 21 Arb. Int’l 127,
141 (2005).
436) See, e.g., Brazilian Arbitration Law.
437) See, e.g., Lew, The Recognition and Enforcement of Arbitration Agreements and
Awards in the Middle East, 1 Arb. Int’l 161, 161 (1985) (“the law in many Middle
Eastern countries has given rise to uncertainty and insecurity with respect to the
effectiveness of the arbitration agreement and award”).
438) See§1.04[A][1][b]; §1.04[B].
439) See§1.01[A][5].
440) See§1.01[B][2], §1.01[B][5]-§1.01[B][6].
441) See§1.01[B][2], §1.01[B][5] & §1.01[B][9].
442) See§1.01[A][5].
443) See§1.01[B][1], §1.01[B][3], §1.01[B][5]-§1.01[B][7].
444) J. Fitzpatrick (ed.), 37 The Writings of George Washington 275, 294 (1940).
445) See§1.01[B][8][b]; Leben, L’Arbitrage par un Tribunal Rabbinique Appliquant le Droit
Hebraïque, 2011 Rev. Arb. 87, 97; M. Rodkinson, The Babylonian Talmud: Tract
Sanhedrin Chp. 3 (2010) (“Civil cases by three; one party may select one and so the
other, and both of them select one more; so is the decree of R. Meir. The Sages,
however, maintain that the two judges may select the third one”).
446) Institute of International Law, Projet de Règlement pour la Procédure Arbitrale
Internationale Art. 2 (1875).
447) Michel v. Am. Century Ins. Co., 44 N.Y.S. 832, 832-33 (N.Y. App. Div. 1897); Terry v.
Moore, 22 N.Y.S. 785, 786-87 (N.Y. Ct. Common Pleas 1893). But see Smith v. Alker, 5
N.E. 791, 791-92 (N.Y. 1886) (disputes to be submitted to two arbitrators). See§1.01[B]
[5].
448) See authorities cited at §1.01[B][5].
449) See, e.g., Union Ins. Co. of Philadelphia v. Cent. Trust Co. of N.Y., 157 N.Y. 633, 634-35
(N.Y. 1899) (arbitrator); Day v. Hammond, 57 N.Y. 479, 484 (N.Y. 1874) (discussing
distinctions between umpires and “third arbitrators,” although observing that
“[t]he cases sometimes refer indiscriminately to these two classes of persons”);
Michel v. Am. Century Ins. Co., 44 N.Y.S. 832, 832 (N.Y. App. Div. 1897) (umpire).In
some cases, the parties agreed to the appointment of a third arbitrator or umpire
only where the first two arbitrators disagreed or where certain conditions were not
met. But even in these cases, a rehearing with the full participation of the third
arbitrator or umpire was often required. See Hammond, 57 N.Y. at 484-88 (N.Y.
1874); In re Grening, 26 N.Y.S. 117, 118 (N.Y. Gen. Term 1893).
450) Z. Swift, A System of the Laws of the State of Connecticut 7 (1796) (“[Arbitrators] are
not tied down to the same strictness, formality and precision as courts of law.
While they have greater latitude in the mode of proceeding than courts of law, they
have ampler powers to do compleat and perfect justice between the parties in the
decision of the matters in dispute”).
451) Mann, The Formalization of Informal Law: Arbitration Before the American
Revolution, 59 N.Y.U. L. Rev. 443, 475 (1984) (arbitrations in 18th-century
Connecticut conducted with counsel for parties and testimony under oath).
452) Id. at 468 (arbitration in 18th century Connecticut was “public event” with
numerous spectators).
453) See§1.01[B][4]-§1.01[B][5].
454) Treaty Concerning the Union of South American States in Respect of Procedural
Law, Signed at Montevideo, 11 January 1889 (1889). Only six states ratified the
Montevideo Convention. The subsequent Bustamante Code of 1928, approved in
1928 by the Inter-American conference, also attracted few ratifications.
455) See§1.01[A][4].
123
456) I. Macneil, American Arbitration Law: Reformation, Nationalization,
Internationalization 25-26 (1992); Benson, An Exploration of the Impact of Modern
Arbitration Statutes on the Development of Arbitration in the United States, 11 J. L.
Econ. & Org. 479, 491-94 (1995) (describing role of lobbying from legal profession in
passage of FAA); Drahozal, In Defense of Southland: Reexamining the Legislative
History of the Federal Arbitration Act, 78 Notre Dame L. Rev. 101, 125-26 (2002);
Stempel, A Better Approach to Arbitrability, 65 Tul. L. Rev. 1377, 1380 (1990-91). See
also Arbitration of Interstate Commercial Disputes: Joint Hearings on S. 1005 and H.R.
646 Before the Subcommissions of the Commissions on the Judiciary, 68th Cong. 21-24
(1924) (listing 67 business organizations supporting proposed Act and letters of
endorsement from various groups), 10 (statement of American Bar Association
representative W.H.H. Piatt).
457) See authorities cited at §1.04[A][1][a].
458) H.W. Greminger, Die Genfer Abkommen von 1923 und 1927 über die Internationale
Private Schiedsgerichtsbarkeit 1-3 (1957); Lorenzen, Commercial Arbitration:
International and Interstate Aspects, 43 Yale L.J. 716, 750 (1933-34); Nussbaum,
Treaties on Commercial Arbitration: A Test of International Private-Law Legislation,
56 Harv. L. Rev. 219, 220-22 (1942-43). See Romero, Jolivet & Girsel, Aux Orgines de
l’Arbitrage Commercial Contemporain: L’Emergence de l’Arbitrage CCI (1920-58), 2016
Rev. Arb. 403, 406-07.
459) The ICC’s role in negotiating the Geneva Protocol was later taken over by the
League of Nations. See Mezger, Zur Auslegung und Bewertung der Genfer
Schiedsabkommen von 1923 und 1927, 24 Zeitschrift für Ausländisches und
Internationales Privatrecht 222 (1959); Veeder, 1922: The Birth of the ICC Arbitration
Clause and the Demise of the Anglo-Soviet Urquhart Concession, in R. Aksen et. al.
(eds.), Global Reflections on International Law, Commerce and Dispute Resolution
881, 881 (2005).
460) Geneva Protocol on Arbitration Clauses in Commercial Matters (“Geneva Protocol”),
27 L.N.T.S. 158 (1924). The Geneva Protocol was signed on 24 September 1923 at a
meeting of the Assembly of the League of Nations.
461) Contrary suggestions are inaccurate. See, e.g., H. Gharavi, The International
Effectiveness of the Annulment of An Arbitral Award 46 (2002) (“The Protocol was not
a major contribution to the development of the law of arbitration …”). In fact, the
Protocol’s internationally-binding requirement of recognition of the validity of
arbitration agreements, and the formulae used in implementing that requirement,
had a profound and lasting effect on the language of the New York Convention, the
UNCITRAL Model Law and other leading instruments in the field, and on the future
of international arbitration law. See§2.01[A][1]; §5.01[B].
462) Geneva Protocol, Arts. 3, 4 (1924). See§2.03[C][1][a]; §2.03[G]; §15.02[A].
463) Geneva Protocol, Art. 1. See§8.02[A][1].
464) Geneva Protocol, Art. 1. See§2.03[B][1][a].
465) Geneva Protocol, Art. 1.
466) Id. at Art. 4.
467) See§2.01[A].
468) See§5.01[B][1].
469) See§2.03[B] (especially §2.03[B][1][a]).
470) See§1.04[A][1][a].
471) See§1.04[A][1] (New York Convention); §1.04[A][2] (European Convention); §1.04[B][1]
[a] (UNCITRAL Model Law).
472) See§1.01[C][2]; §2.01[A].
473) See§2.01[A].
474) Geneva Protocol, Art. 3. See§3.02[A][1].
475) See; §26.03[A].
476) Geneva Protocol, Art. 2. See §11.04[A][1].
477) See§4.04[A][1][a].
478) Geneva Convention on the Execution of Foreign Arbitral Awards (“Geneva
Convention”), 92 L.N.T.S. 302 (1929). See H.-W. Greminger, Die Genfer Abkommen von
1923 und 1927 über die Internationale Private Schiedsgerichtsbarkeit 3-5 (1957);
Mezger, Zur Auslegung und Bewertung der Genfer Schiedsabkommen von 1923 und
1927, 24 Zeitschrift für Ausländisches und Internationales Privatrecht 222 (1959).
479) Geneva Convention, Arts. 1-4.
480) Id. at Art. 1(a).
481) Id. at Art. 1(b).
482) Id. at Art. 1(c).
483) Id. at Art. 1(d).
484) Id. at Art. 1(e).
485) See§23.01[A]; §26.03[B][1] & §26.03[B][4]; A. van den Berg, The New York Arbitration
Convention of 1958 7 (1981).
486) See §11.04[A][2]; §26.03[B][4].
487) See§1.04[A]; §2.01[A][1]; §5.01[B][1].
488) See§26.03[A]-§26.03[B].
489) See§8.02[A][1]; §8.03[C].
490) See§19.04[A][1]-§19.04[A][4].
491) See§15.02[A].
124
492) See§1.04[B][1][e][i]; New York Arbitration Law, 1920, Ch. 275, Laws 803-807 (providing
for validity of arbitration agreements).
493) French Commercial Code, 1925, Art. 631. See also von Mehren, International
Commercial Arbitration: The Contribution of the French Jurisprudence, 46 La. L. Rev.
1045, 1049-51 (1985-86) (discussing impact of 1925 amendment).
494) See Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J. 2,
13 (1999). See also§1.01[B][3].
495) See§1.01[B][5]; §1.04[B][1][e][i].
496) U.S. FAA, 9 U.S.C. §2. Section 2 was implemented by §§3 and 4 of the FAA, providing
for the stay of litigation of matters subject to arbitration and for orders compelling
arbitration. See§8.02[C]; §8.03[C][1].
497) U.S. FAA, 9 U.S.C. §§9, 10. For discussion of §§9 and 10, see§25.03[B].
498) See§1.01[B][5]; §1.04[B][1][e][i]-§1.04[B][1][e][ii].
499) Marine Transit Corp. v. Dreyfus, 284 U.S. 263 (U.S. S.Ct. 1932) (upholding FAA against
constitutional challenge). See§1.04[B][1][e].
500) See§1.04[A][1][a].
501) See§1.04[C][4].
502) See§1.04[B][1][a].
503) See§1.04[B].
504) This includes periodic amendments of the arbitration rules of the ICC, SIAC,
AAA/ICDR, LCIA, ICSID and other institutions. See§1.04[C][6].
505) See R. Dolzer & M. Stevens, Bilateral Investment Treaties 267-326 (1995); C.
McLachlan, L. Shore & M. Weiniger, International Investment Arbitration ¶¶1.01-16
(2007); UNCTAD, Bilateral Investment Treaties in the Mid-1990s, U.N. Doc.
UNCTAD/ITE/IIT/7 (1998); UNCTAD, The Entry into Force of Bilateral Investment
Treaties, U.N. Doc. No. UNCTAD/WEB/ITE/IIA/2006/9 (2006).
506) See§1.01[B][1]-§1.01[B][2].
507) See§1.01[A][5]; §1.01[B][1]-§1.01[B][2] & §1.01[B][5].
508) See§1.02.
509) See§1.01[A][5]; §1.01[B][9]; §2.02.
510) See§2.02.
511) United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd, 210 F.3d 1207 (10th Cir. 2000) ($153
million damages, including $58.5 million punitive damages); Shell Oil Co. v. Franco-
Franco, 2005 WL 6184247 (C.D. Cal. 2005) ($489.4 million Nicaraguan default
judgments); CBS Corp. v. WAK Orient Power & Light Ltd, 168 F.Supp.2d 403 (E.D. Pa.
2001) ($1.4 billion Pakistani default judgment, plus Pakistani judicial order to
provide $11.5 billion letter of credit); Chevron Corp. v. Ecuador, Second Partial
Award on Track II in PCA Case No. 2009-23 of 30 August 2018 (partial award
regarding $8.6 billion damages and reclamation costs judgment in Ecuadorian
courts); Merck Sharpe & Dohme (I.A.) LLC v. Ecuador, Decision on Interim Measures in
PCA Case No. 2012-10 of 7 March 2016 (interim measures regarding $150 million
damages judgment in Ecuadorian courts).
512) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 2-4,
446-47 (6th ed. 2018).
513) Smith Kline & French Labs. v. Bloch [1983] 2 All ER 72, 74 (Comm) (English Ct. App.)
(“As a moth is drawn to the light, so is a litigant drawn to the United States. If only
he can get his case into their courts, he stands to win a fortune”). See generally M.
Reimann & R. Zimmermann (eds.), The Oxford Handbook of Comparative Law (2010);
T. Weir, An Introduction to Comparative Law (3d ed. 1998).
514) See Transparency International, Corruption Perceptions Index 2018 (2018);
Transparency International, Corruption Perceptions Index 2011 (2011); Transparency
International, Global Corruption Report 2007: Corruption in Judicial Systems xxi
(2007) (“Corruption is undermining justice in many parts of the world, denying
victims and the accused the basic human right to a fair and impartial trial”). See
also§1.02[B][1] & §1.02[B][4]; Born, The Hague Convention on Choice of Court
Agreements: A Critical Assessment, 169 U. Pa. L. Rev. 2079 (2021).
349-443 (6th ed. 2018).
516) See§1.02[B][2].
517) See§1.01[B][2].
125
518) See§1.02[A][2]; K.-P. Berger, International Economic Arbitration 8 n.62 (1993); C.
Drahozal & R. Naimark, Towards A Science of International Arbitration: Collected
Empirical Research 59 (2005); Lalive, Transnational (or Truly International) Public
Policy and International Arbitration, in P. Sanders (ed.), Comparative Arbitration
Practice and Public Policy in Arbitration 257, 293 (1987); D. Lipsky & R. Seeber, The
Appropriate Resolution of Corporate Disputes: A Report on the Growing Use of ADR by
U.S. Corporations (1998); Queen Mary, University of London, 2021 International
Arbitration Survey: Adapting Arbitration to A Changing World 2 (2021) (90% of
respondents identified international arbitration as their preferred method of
resolving cross-border disputes); Queen Mary, University of London, 2018
International Arbitration Survey: The Evolution of International Arbitration 2 (97% of
respondents identified international arbitration as preferred mechanism for
dispute resolution); Queen Mary, University of London, 2013 International
Arbitration Survey: International Arbitration: Industry Perspectives (2013) (52% of
respondent across all industries preferred international arbitration and 73% of all
respondents found international arbitration suitable to their industry); Queen
Mary, University of London, 2010 International Arbitration Survey: Choices in
International Arbitration, 2, 5 (2010); Queen Mary, University of London, 2008
International Arbitration Survey: International Arbitration: Corporate Attitudes and
Practices 2, 5 (2008) (88% of corporations surveyed had used international
arbitration, and 86% of corporate counsel were satisfied with experience).
519) See G. Born, International Arbitration and Forum Selection Agreements: Drafting
and Enforcing 1-12 (6th ed. 2021); Kerr, International Arbitration v. Litigation, 1980 J.
Bus. L. 164, 164 (“in international cases, where jurisdictional problems are bound to
arise in the event of dispute, the practice of incorporating arbitration clauses into
contracts is becoming almost universal”); Park, Illusion and Reality in International
Forum Selection, 30 Tex. Int’l L.J. 135 (1995).
520) See§1.02[A][1]-§1.02[A][2].
521) See§5.08. Either form of agreement can, and frequently is, combined with a choice-
of-law clause, selecting the substantive law applicable to the parties’ contract.
See§1.04[E][7].
522) For commentary on forum selection clauses, see M. Ahmed, The Nature and
Enforcement of Choice of Court Agreements: A Comparative Study (2017); G. Born,
International Arbitration and Forum Selection Agreements: Drafting and
Enforcing(6th ed. 2021); G. Born & P. Rutledge, International Civil Litigation in United
States Courts 499-595 (6th ed. 2018); Draguiev, Unilateral Jurisdiction Clauses: The
Case for Invalidity, Severability, or Enforceability, 31 J. Int. Arb. 19 (2014); P.
Friedland, Arbitration Clauses for International Contracts (2d ed. 2007); Gan,
Jurisdiction Agreements in Chinese Conflict of Laws: Searching for Ways to Implement
the Hague Convention on Choice of Court Agreements in China, 14 J. Priv. Int’l L. 295
(2018); Gilbert, Choice of Forum Clauses in International and Interstate Contracts, 65
Ky. L.J. 1 (1976); Grigera Naón, Jurisdictional Choice in Times of Trouble (2015); Gruson,
Forum-Selection Clauses in International and Interstate Commercial Agreements,
1982 Ill. L. Rev. 133 (1982); Hague Conference on Private International Law, Choice of
Court Agreements in International Litigation: Their Use and Legal Problems to Which
They Give Rise in the Context of the Interim Text, Preliminary Doc. No. 18 (2002),
available at www.hcch.net; Hague Conference on Private International Law 20th
Session, Convention on the Choice of Court Agreements (2005); D. Joseph, Jurisdiction
and Arbitration Agreements and Their Enforcement (3d ed. 2015); A. Mills, Party
Autonomy in Private International Law (2018); Nadelmann, Choice-of-Court Clauses
in the United States: The Road to Zapata, 21 Am. J. Comp. L. 124 (1973); W. Park,
International Forum Selection (1995); W. Park, Arbitration of International Business
Disputes (2012); Park, Bridging the Gap in Forum Selection: Harmonizing Arbitration
and Court Selection, 8 Transnat’l L. & Contemp. Probs. 19 (1998); J. Paulsson, N.
Rawding & L. Reed, The Freshfields Guide to Arbitration and ADR: Clauses in
International Contracts (3d ed. 2010); Solomine, Forum Selection Clauses and the
Privatization of Procedure, 25 Cornell Int’l L.J. 51 (1992); S. Symeonides, Choice of Law
(2016).
523) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 499–
501 (6th ed. 2018); W. Park, International Forum Selection (1995). Forum selection
agreements are also sometimes referred to as “jurisdiction clauses” or “choice-of-
forum agreements.”
524) Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (U.S. S.Ct. 1974).
525) See§2.02[C][2][a].
526) See id.
527) See§1.04. See alsoChapter 2, Chapter 22; §5.02.
528) See§2.03[F].
529) As discussed below, the principal exception to this generalization involves
investor-state arbitrations pursuant to bilateral or multilateral investment
treaties. See§1.04[A][7].
530) See§1.04[E]; §1.04[F][3].
531) Drahozal, Why Arbitrate? Substantive Versus Procedural Theories of Private Judging,
22 Am. Rev. Int’l Arb. 163 (2011) (reviewing various rationales for arbitration).
532) Sumito v. Antig Invs. Pte Ltd, [2009] SGCA 41, ¶29 (Singapore Ct. App.).
126
533) Empirical research reports that users of international arbitration identify
neutrality as one of the most important benefits of the process. Bühring-Uhle, A
Survey on Arbitration and Settlement in International Business Disputes, in C.
Drahozal & R. Naimark (eds.), Towards A Science of International Arbitration:
Collected Empirical Research 25, 43 (2005); Mason, The Corporate Counsel’s View:
International Commercial Arbitration, 49 Disp. Resol. J. 22, 23 (1994); Queen Mary,
University of London, 2021 International Arbitration Survey: Adapting Arbitration to A
Changing World 8 (2021); Queen Mary, University of London, 2018 International
Arbitration Survey: The Evolution of International Arbitration 7 (2018); Queen Mary,
University of London, 2013 International Arbitration Survey: Corporate Choices in
International Arbitration: Industry Perspectives 8 (2013) (neutrality ranked second in
order of importance among seven perceived benefits of arbitration).
534) See Drahozal & Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25
Ohio St. J. Disp. Resol. 433, 452 (2010); Fortier, International Arbitration on the Eve of
the New Millennium, 1997 Int’l Arb. L. Rev. 1; Naimark & Keer, International Private
Commercial Arbitration: Expectations and Perceptions of Attorneys and Business
People, 30 Int’l Bus. Law. 203 (2002); Paulsson, International Arbitration Is Not
Arbitration, 2008:2 Stockholm Int’l Arb. Rev. 1, 2 (“[I]nternational arbitration finishes
first even though it was perhaps never better than second best in anyone’s mind.
The problem was that the most preferred alternative of each side was the least
acceptable to the other”: “unique criterion” of international arbitration is
“neutrality.”); Reisman, International Arbitration and Sovereignty, 18 Arb. Int’l 231,
235 (2002); Rogers, Fit and Function in Legal Ethics: Developing A Code of Conduct for
International Arbitration, 23 Mich. J. Int’l L. 341, 422 (2002) (“International arbitration
… functions to promote the ‘rule of law’ at an international level when national
legal systems are inadequate to the task”). See also Mayer, Must Justice be a Goal
for the Arbitrator?, 37(2) Arb. Int’l 503 (2021); Menon, Arbitration’s Blade:
International Arbitration and the Rule of Law, 38 J. Int’l. Arb. 1, 20-24 (2021); Ongenae
& Piers, Procedural Formalities in Arbitration: Towards a Technologically Neutral
Legal Framework,38 J. Int’l Arb. 27 (2021).
535) See§1.01[A][5]; §1.01[B][9].
536) See G. Born, International Arbitration and Forum Selection Agreements: Drafting
and Enforcing4-5 (6th ed. 2021).
537) There have been suggestions that, in some jurisdictions, foreign litigants may be
preferred over domestic ones. Clermont & Eisenberg, Xenophilia in American
Courts, 109 Harv. L. Rev. 1120 (1995).
538) Despite the foregoing advantages, a company is not always favored by litigation in
its home courts. In some cases, various procedural aspects of litigation can make a
counter-party’s home courts a more favorable venue than its own courts. These
include the availability (or unavailability) of discovery, the applicable rules of law,
the rules for allocation of the parties’ costs for legal representation, the length of
time required for a decision, or trial by a lay jury or judge. More generally, a party
that obtains a favorable judgment in its own domicile may be required to enforce
the judgment in its counter-party’s home forum, with the attendant uncertainties,
costs and delays. There is no “universal” convention on the recognition and
enforcement of foreign judgments, parallel to the New York Convention for arbitral
awards. See§22.02[A]; §26.03[B]; G. Born & P. Rutledge, International Civil Litigation
in United States Courts 2-3, 1198-208 (6th ed. 2018).
539) There is a long tradition in international financial transactions for the lender to be
granted exclusive forum selection provisions choosing its own home courts
(typically, New York, London, or Singapore). See Horn, The Development of
Arbitration in International Financial Transactions, 16 Arb. Int’l 279, 280 (2000).
540) Of course, sometimes parties will simply not agree upon any dispute resolution
provisions, leaving it to post-dispute litigation to determine the place (or places)
where their dispute will be resolved. This happens with some frequency, but
entails the costs and uncertainties of conflicting jurisdictional claims,
multiplicitous legal proceedings and possibly inconsistent judgments.
541) See§12.05; Leikin & Treichl, Pick Your President: Why and How Parties Should Seek to
Agree on a Presiding Arbitrator, 37(1) Arb. Int’l 121 (2021).
542) See§12.04[A]; P. Lalive, On the Neutrality of the Arbitrator and of the Place of
Arbitration, in C. Reymond & E. Bucher (eds.), Swiss Essays on International
Arbitration 23, 24 (1984) (presiding or sole arbitrator’s neutrality includes national
neutrality: “the fundamental idea of equality of the parties … appears necessarily
to imply and lead to the ‘neutral nationality’ of the arbitrator”). Indeed, the
presumption under virtually all institutional rules, and common practice in other
circumstances, is that the sole arbitrator or presiding arbitrator may not be of the
same nationality as any of the parties; Bonnan, On the Nationality and Multi-
Nationality of the Arbitrator: Old and New Issues of Formal Neutrality, 38(3) ASA Bull.
637 (2020). See§12.04[A][1].
127
543) As discussed above, this was also one of the historic attractions of international
arbitration. See§1.01[A][5], §1.01[B][8]. See also D. Caron & L. Caplan, The UNCITRAL
Arbitration Rules: A Commentary 521 (2d ed. 2013) (in drafting UNCITRAL Rules “it
was determined that different legal systems have different standards of proof and
therefore a neutral formulation was preferred”); G. Petrochilos, Procedural Law in
International Arbitration 44-45 (2004) (“It is believed that [the international
business] community would wish arbitration to be a truly universal practice, where
the rules would not fluctuate from one state to another and where parties would
not be taken by surprise by the law of the arbitration and its application by the
courts”).
544) For this reason, there have been efforts to propose uniform international rules of
procedure for transnational disputes in national courts. ALI/UNIDROIT, Principles of
Transnational Civil Procedure (2004); Hazard et al., Introduction to the Principles and
Rules of Transnational Civil Procedure, 33 N.Y.U. J. Int’l L. & Pol. 769 (2001). These
efforts have gained limited business attention or political traction, nor is there a
realistic likelihood that they will do so; if nothing else, the absence of uniform
procedural rules in the various Member States of the European Union and states of
the United States leaves little doubt on this score.
545) See D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 30-31 (2d
ed. 2013) (“In international cases there is also a special need for freedom from
unfamiliar local standards and requirements …”). See also§15.01[A].
546) See M. Bloch, Feudal Society 359 (1961). See also§1.01[B][2].
547) W. Blackstone, III Commentaries on the Laws of England 33 (1768), quoted in
136 (1934-35). See§1.01[B][2].
548) G. Born & P. Rutledge, International Civil Litigation in United States Courts 1-4 (6th
ed. 2018); L. Collins (ed.), Dicey, Morris and Collins on The Conflict of Laws ¶¶1-003
to 004, 11-002, 13-002 to 003 (15th ed. 2012 & Supp. 2019); J. Pontier & E. Burg, EU
Principles on Jurisdiction and Recognition and Enforcement of Judgments in Civil and
Commercial Matters: According to the Case Law of the European Court of Justice 1
(2004).
passim (6th ed. 2018); L. Collins (ed.), Dicey, Morris and Collins on The Conflict of
Laws, passim (15th ed. 2012 & Supp. 2019).
550) As discussed below, international arbitration agreements are typically drafted
expansively and given broad effect, including to preclude the parallel litigation of
the same or similar claims in national courts. See§1.04[E][2]. This facilitates the
parties’ objective of centralizing their disputes in a single forum for prompt,
efficient resolution. The complexity of international commercial disputes provides
a challenge for the arbitral process, as disputes involving multiple parties,
contracts, claims and proceedings becomes more common. See Brower, Brower &
Sharpe, The Coming Crisis in the Global Adjudication System, 19 Arb. Int’l 415 (2003).
551) MS Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13-14 (U.S. S.Ct. 1972) (in context of
forum selection clause). See also Scherk v. Alberto-Culver Co., 417 U.S. 506, 522 (U.S.
1974).
552) Judgment of 15 March 1990, Sonatrach v. KCA Drilling Ltd, 1990 Rev. Arb. 921, 923
(Swiss Fed. Trib.); Judgment of 27 February 1970, 6 Arb. Int’l 79, 85 (1990) (German
Bundesgerichtshof); Berger, Aufgaben und Grenzen der Parteiautonomie in der
Internationalen Wirtschaftsschiedsgerichtsbarkeit, 1994 RIW 12.
553) See Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Disputes, in C. Drahozal & R. Naimark (eds.), Towards A Science of International
Arbitration: Collected Empirical Research 25, 31, 35 (2005); Queen Mary, University of
London, 2021 International Arbitration Survey: Adapting Arbitration to A Changing
World 5 (2021); Queen Mary, University of London, 2018 International Arbitration
Survey: The Evolution of International Arbitration 7 (2018).
554) See§1.01[B][2]-§1.01[B][3] & §1.01[B][5]; §1.04[A][1][a]; §1.04[B][1].
555) See§1.04[A][1]; §1.04[B][1]; Chapter 5.
556) Quintette Coal Ltd v. Nippon Steel Corp., XVIII Y.B. Comm. Arb. 159, ¶32 (B.C. Ct. App.
1990) (1993).
557) SeeChapter 8; §9.02[D].
128
558) Queen Mary, University of London, 2021 International Arbitration Survey: Adapting
Arbitration to A Changing World 2 (2021); Queen Mary, University of London, 2018
International Arbitration Survey: The Evolution of International Arbitration 7 (2018);
Queen Mary, University of London, 2013 Corporate Choices in International
Arbitration Survey: Industry Perspectives 1, 7(2013); Queen Mary, University of
London, 2010 International Arbitration Survey: Choices in International Arbitration 11,
21 (2010); Queen Mary, University of London, 2008 International Arbitration Survey:
International Arbitration: Corporate Attitudes and Practices 2, 5 (2008). See also
Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Arbitration: Collected Empirical Research 25, 31, 35 (2005) (one of “two most
significant advantages and presumably the two most important reasons for
choosing arbitration as a means of international commercial dispute resolution [is]
… the superiority of its legal framework with treaties like the New York Convention
guaranteeing the international enforcement of awards”); Mistelis & Baltag, Trends
and Challenges in International Arbitration: Two Surveys of In-House Counsel of
Major Corporations, 2(5) World Arb. & Med. Rev. 94 (2008).
559) Empresa Constructora Contex Limitada v. Iseki, Inc., 106 F.Supp.2d 1020, 1023 (S.D.
Cal. 2000) (“Arbitration agreements are intended to make arbitration decisions
binding and enforceable and to limit how parties may challenge them”); Drahozal
& Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St. J. Disp.
Resol. 433, 452-53 (2010); McLaren, Effective Use of International Commercial
Arbitration: A Primer for In-House Counsel, 5 J. Int’l Arb. 475, 477-78 (2002).
560) See§1.04[A][1]; §1.04[B][1][a]. A list of the New York Convention’s parties and their
reservations is available at
https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards
/status2.
561) EC Regulation 44/2001; J. Pontier & E. Burg, EU Principles on Jurisdiction and
Recognition and Enforcement of Judgments in Civil and Commercial Matters:
According to the Case Law of the European Court of Justice 1 (2004).
562) EC Regulation 44/2001, Art. 23. The Brussels Regulation was revised, effective
January 2015, as EC Regulation 1215/2012 (“Recast Regulation”).
563) See, e.g., Warsaw Convention for the Unification of Certain Rules Relating to
International Carriage by Air (1929) (as Amended at the Hague, 1955, and by
Protocol No. 4 of Montreal, 1975, ICAO Doc. 9148).
564) G. Born & P. Rutledge, International Civil Litigation in United States Courts 508-74
(6th ed. 2018); Chang, The Superiority of the Arbitration Clause over A Forum
Selection Clause Under French Law, 22 ASA Bull. 800 (2004). See §5.02[A][11].Compare
Brekoulakis, The Notion of the Superiority of Arbitration Agreements over Jurisdiction
Agreements: Time to Abandon It?, 24 J. Int’l Arb. 341, 346-47 (2007).
565) See §5.06[D][12]; §6.02[F].
566) G. Born & P. Rutledge, International Civil Litigation in United States Courts 507, 525,
1207 (6th ed. 2018).
567) Hague Convention on Choice of Courts Agreements. As of May 2022, thirty-seven
states had signed the Convention; two states (Montenegro and Singapore) had
ratified the Convention; three states (Denmark, Mexico, United Kingdom) had
acceded to the Convention; and one state (the EU) had approved the Convention.
See https://www.hcch.net/en/instruments/conventions/status-table/?cid=98.
568) For discussions of the Hague Choice of Court Agreements Convention, see Ahmed &
Beaumont, Exclusive Choice of Court Agreements: Some Issues on the Hague
Convention on Choice of Court Agreements and its Relationship with the Brussels I
Recast Especially Anti-Suit Injunctions, Concurrent Proceedings and the Implications
of Brexit, 13 J. Priv. Int’l L 386 (2017); G. Born & P. Rutledge, International Civil
Litigation in United States Courts 507, 524-26 (6th ed. 2018); Brand, Arbitration or
Litigation? Choice of Forum After the 2005 Hague Convention on Choice of Court
Agreements, 7(1) Transnat’l Disp. Mgt 2 (2010); Brand, Arbitration or Litigation?
Private Choice as A Political Matter, 8 Arb. L. Rev. 20 (2016); Brand, Introductory Note
to the 2005 Hague Convention on Choice of Court Agreements, 44 I.L.M. 1291 (2005);
Garnett, The Hague Choice of Court Convention: Magnum Opus or Much Ado About
Nothing?, 8(2) Transnat’l Disp. Mgt 7 (2011); Kelleher, The Judgments Project: A Review
of the Hague Conference on Private International Law’s Work in Progress, 23
Australian Int’l L.J. 91 (2017); Kessedjian, La Convention de La Haye du 30 Juin 2005
sur l’Élection de For, 133 J.D.I. (Clunet) 813 (2006); Mills, The Hague Choice of Court
Convention and Cross-Border Commercial Dispute Resolution in Australia and the
Asia-Pacific, 18 Melb. J. Int’l L. 1 (2017); Note, Recent International Agreement, 119
Harv. L. Rev. 931 (2006); Weller, Choice of Court Agreements Under Brussels Ia and
Under the Hague Convention: Coherences and Clashes, 13 J. Priv. Int’l L. 91 (2017).
569) See§1.04[A][1][c]; §1.04[B][1].
570) See§1.04[A][1][c]; §26.01-§26.02; §26.03[B][3]; §26.03[D].
571) See Part III; §26.03[D].
572) See EU Regulation 1215/2012.
573) G. Born & P. Rutledge, International Civil Litigation in United States Courts 1198-208
(6th ed. 2018).
129
574) The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters was adopted on 2 July 2019,
seehttps://www.hcch.net/en/news-archive/details/?varevent=687. It is available
at https://www.hcch.net/en/instruments/conventions/full-text/?cid=137. The
relevant status table, including information regarding signatories, is available at
https://www.hcch.net/en/instruments/conventions/status-table/?cid=137.
575) The European Commission has adopted a proposal for the EU to accede to the
Judgments Convention.
Seehttps://ec.europa.eu/info/sites/default/files/proposal_eu_accession_judgmen
ts_convention_and_annex_e.... On 23 June 2022, the European Parliament gave its
consent to the accession of the European Union to the HCCH 2019 Judgments
Convention. Seehttps://www.europarl.europa.eu/doceo/document/TA-9-2022-
0261_EN.pdf.
576) See Beaumont, Judgments Convention: Application to Governments, 67 Netherlands
Int’l L. Rev. 121 (2020); Guo, From Conventions to Protocols: Conceptualizing Changes
to the International Dispute Resolution Landscape, 11(2) J. Int’l Disp. Sett. 217 (2020);
Zhang & Tu, The 1971 and 2019 Hague Judgments Conventions: Compared and
Whether China Would Change Its Attitude Towards the Hague, 11(4) J. Int’l Disp. Sett.
614 (2020).
577) Of course, where a regional or other treaty for the mutual recognition of foreign
court judgments is applicable, the advantages of arbitral awards may be smaller.
578) See, e.g., Drahozal & Ware, Why Do Businesses Use (or Not Use) Arbitration Clauses?,
25 Ohio St. J. Disp. Resol. 433, 451 (2010); Park, Arbitration’s Protean Nature: The
Value of Rules and the Risks of Discretion, 19 Arb. Int’l 279, 280 (2003) (parties choose
to arbitrate in part with “hope of avoiding a grossly mismanaged judicial system”);
Shavell, Alternative Dispute Resolution: An Economic Analysis, 24 J. Legal Studies 1, 5
(1995); Stipanowich, Rethinking American Arbitration, 63 Ind. L.J. 425, 426-28 (1987)
(“The success of arbitration is a reflection of the shortcomings of the American civil
justice system …”); Walt, Decision by Division: The Contractarian Structure of
Commercial Arbitration, 51 Rutgers L. Rev. 369, 387 (1999).
579) See§1.01[B][9]. Even where such experience exists, the need to translate
evidentiary materials or legal authorities into the language of the forum will often
create practical problems and jeopardize a tribunal’s comprehension of the case.
580) IBA, The International Bar Association Judicial Integrity Initiative: Judicial Systems
and Corruption (2016); Transparency International, Corruption Receptions Index
(2019); Transparency International, Global Corruption Report 2007: Corruption in
Judicial Systems (2007); U.S. State Department, Country Reports on Human Rights
Practices (2017) See also Oko, Seeking Justice in Transitional Societies: An Analysis of
the Problems and Failures of the Judiciary in Nigeria, 31 Brooklyn J. Int’l L. 9 (2005);
Orts, The Rule of Law in China, 34 Vand. J. Transnat’l L. 43, 70-72 (2001).
581) In order to combat corruption internationally, including judicial corruption, the
United States adopted the Foreign Corrupt Practices Act of 1977. 15 U.S.C. §78dd-1.
Subsequently, in 1997, numerous states voted to adopt a similar convention, the
Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions of 17 December 1997 (“OECD Convention”), which entered into
force on 15 February 1999.
582) Courts in some non-English-speaking jurisdictions (e.g., Germany, France) have
begun to conduct proceedings in certain international commercial matters in
English, in part in an effort to make local courts more attractive. Phillips, Open for
Business: The German Commercial Court, in English, The Law. (21 June 2010). The
practical efficacy of such arrangements remains uncertain.
583) The jury trial system, along with local discovery and evidentiary rules, methods of
judicial selection, the absence of fee-shifting and damages theories are often cited
as shortcomings in the United States. The divided legal profession, cost and length
of proceedings (particularly hearings) are often cited as shortcomings in England.
584) Ashenfelter, Eisenberg & Schwab, Politics and the Judiciary: The Influence of Judicial
Background on Case Outcomes, 24 J. Legal Studies 257, 266-70 (1995); Drahozal, Why
Arbitrate? Substantive Versus Procedural Theories of Private Judging, 22 Am. Rev. Int’l
Arb. 163, 174 (2011).
585) Stipanowich, Rethinking American Arbitration, 63 Ind. L.J. 425, 435-38 (1987).
586) See§1.01[B][2].
130
587) Queen Mary, University of London, 2018 International Arbitration Survey: The
Evolution of International Arbitration 7 (2018); Queen Mary, University of London,
2015 International Arbitration Survey: Improvements and Innovations in
International Arbitration 6 (2015) (selection of arbitrators was ranked fourth most
important characteristic of arbitration); Queen Mary, University of London, 2013
International Arbitration Survey: Corporate Choices in International Arbitration:
Industry Perspectives 8 (2013) (“In Financial Services, the number one benefit is the
expertise of decision-maker. This appears to be in line with the perception that
many disputes in the Financial Services sector are highly technical …”; expertise of
decision-maker ranked 1st overall across industries in importance of perceived
benefits of arbitration); Queen Mary, University of London, 2006 International
Arbitration Survey: International Arbitration: Corporate Attitudes and Practices 6
(2006) (“The ability of parties to select arbitrators with the necessary skills and
expertise and who are well suited to the appropriate cultural and legal context
was also ranked highly”; 4th among reasons cited by corporations surveyed). See
also Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Arbitration: Collected Empirical Research 25, 32, 35 (2005); Naimark & Keer,
International Private Commercial Arbitration: Expectations and Perceptions of
Attorneys and Business People, in C. Drahozal & R. Naimark (eds.), Towards A Science
of International Arbitration: Collected Empirical Research 45, 49 (2005) (expertise as
one of several significant objectives).
588) Positive Software Solutions, Inc. v. New Century Mortg. Corp., 476 F.3d 278, 285 (5th
Cir. 2007) (describing expertise as one of arbitration’s “most attractive features
apart from speed and finality”); Judgment of 28 April 1999, Attorney Gen. of Kenya v.
Bank für Arbeit und Wirtschaft AG, XXV Y.B. Comm. Arb. 692, 694 (Cyprus S.Ct.) (2000)
(“familiarity of arbitrators with their subject matter”); Trebilock & Leng, The Role of
Formal Contract Law and Enforcement in Economic Development, 92 Va. L. Rev. 1517,
1541 (2006) (“As compared to public courts, the advantages of international
commercial arbitration in enforcing contracts include increased flexibility,
technical expertise, privacy, and confidentiality, all of which are important in
satisfying the needs of private parties for low-cost, expeditious, and effective
resolution of contract disputes”).
589) Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Arbitration: Collected Empirical Research 25, 34 n.28 (2005).
590) Lazareff, International Arbitration: Towards A Common Procedural Approach, in S.
Frommel & B. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration: Old
Issues and New Trends 31, 33 (1999).
591) Gramling v. Food Mach. & Chem. Corp., 151 F.Supp. 853, 858 (W.D.S.C. 1957).
592) See§12.01[A].
Evolution of International Arbitration 7 (2018) (“ability of parties to select
arbitrators” is fourth among most valuable characteristics of international
arbitration); Queen Mary, University of London, 2015 International Arbitration
Survey: Improvements and Innovations in International Arbitration 6 (2015)
(selection of arbitrators ranked fourth most important characteristic of
Survey: Choices in International Arbitration 2-3 (2010). See also Bühring-Uhle, A
Survey on Arbitration and Settlement in International Business Disputes, in C.
Collected Empirical Research 25, 33 (2005); Landau, Composition and Establishment
of the Tribunal, 9 Am. Rev. Int’l Arb. 45 (1998).
594) See§25.03[A]-§25.03[C]; §26.03[B][1] for a discussion of the extent of judicial review
in annulment and recognition actions.
595) Some empirical research suggests that a majority of users do not favor an
institutional appeal mechanism. See, e.g., Queen Mary, University of London, 2018
International Arbitration Survey: The Evolution of International Arbitration 7, 8 (2018);
Queen Mary, University of London, 2015 International Arbitration Survey:
Improvements and Innovations in International Arbitration 5, 8 (2015).For a
discussion of when companies might prefer appellate review, see Drahozal & Ware,
Why Do Businesses Use (or Not Use) Arbitration Clauses?, 25 Ohio St. J. Disp. Resol.
451, 455 (2010). See also Pathak, The Advisability of Appellate Arbitration: Proposing
an Efficient Institutional Framework, X(1) Indian J. Arb. L. 144 (2021); Thirgood,
Appeals in Arbitration: ‘To Be or Not to Be’, 87(3) Int’l. J. Arb. Med. & Disp. Mgt 423
(2021).
131
Evolution of International Arbitration 8 (2018) (lack of appeal mechanism on merits
is eighth worst characteristic of arbitration); Queen Mary, University of London,
2015 International Arbitration Survey: Improvements and Innovations in
International Arbitration 5, 8 (2015) (although lack of appeal mechanism was ranked
fourth worst characteristic of arbitration, majority of users view arbitration “as a
‘one stop shop’”); Queen Mary, University of London, 2010 International Arbitration
Survey: Choices in International Arbitration 18 (2010) (“Efficiency and promptness of
court proceedings is the most important aspect of the convenience of a seat”). See
also Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Arbitration: Collected Empirical Research 25, 32, 35 (2005); Landes & Posner,
Adjudication as A Private Good, 8 J. Legal Studies 235, 238 (1979) (“It is possible of
course that there is less emphasis on appeal in arbitration because the arbitrator
is a more expert fact finder than a jury”); Shavell, Alternative Dispute Resolution: An
Economic Analysis, 24 J. Legal Studies 1, 9 (1995).
597) See§25.07[B].
598) See§15.02[B]; §15.03[B]; 2013 AAA Optional Appellate Arbitration Rules; 2022
National Grain and Feed Association Arbitration Rules, Rule 7 (appeals procedure).
599) See§15.02; Arbitration Application No. 3 of 2011, [2011] CSOH 164 (Scottish Ct. Sess.)
(Scottish Arbitration Act, 2010, “marks a new beginning for arbitration in Scotland,
recognising the desire in this field for party autonomy, privacy and finality”); D.
Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 30 (2d ed. 2013)
(“procedural flexibility … is generally regarded as one of the main advantages of
arbitration”); Drahozal, Business Courts and the Future of Arbitration, 10 Cardozo J.
Conflict Resol. 491 (2008-09) (citing control of parties over decision-maker and
procedural flexibility); Rau, The Culture of American Arbitration and the Lessons of
ADR, 40 Tex. Int’l L.J. 449, 534 (2005) (“parties can experiment with dispute
resolution – cutting and tailoring, shaping and adapting different processes to
meet their own particular needs”); Stipanowich, The Arbitration Penumbra:
Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution, 8 Nev.
L.J. 427, 432 (2007) (“The principle of freedom to choose among procedural options
suffuses nearly all aspects of arbitration, and the wide arbitration spectrum
includes a considerably rich and diverse array of procedures …”).
600) See §25.04[A][7][a]; §26.05[C][3][c].
601) Restatement (Second) Conflict of Laws §187 (1971); Berger, Party Autonomy in
International Commercial Arbitration, 4 Am. Rev. Int’l Arb. 1 (1993); Böckstiegel, The
Role of Party Autonomy in International Arbitration, 52 Disp. Resol. J. 24 (1997); L.
Collins (ed.), Dicey, Morris and Collins on The Conflict of Law ¶¶16-006 et seq. (15th
ed. 2012 & Supp. 2019); P. Nygh, Autonomy in International Contracts (1999); Zhang,
Party Autonomy and Beyond: An International Perspective of Contractual Choice of
Law, 20 Emory Int’l L. Rev. 511 (2006). See also International Law Institute,
Resolution on the Autonomy of the Parties in International Contracts Between Private
Persons or Entities, 64 Ann. Inst. Droit Inter. 383 (1992).
602) See, e.g., Harbour Assur. Co. (U.K.) Ltd v. Kansa Gen. Int’l Ins. Co. [1993] 3 All ER 897,
903 (English Ct. App.) (“there is the imperative of giving effect to the wishes of the
parties unless there are compelling reasons of principle why it is not possible to do
so”); Fassberg, Lex Mercatoria: Hoist with Its Own Petard?, 5 Chicago J. Int’l L. 67, 77
(2004) (“The principle of party autonomy so essential to international trade is a
central principle of all aspects of private international law. It is expressed in the
willingness of national law to acknowledge the autonomy of parties to resolve
disputes outside the system, and to provide tools for enforcing that autonomy –
enforcing agreements and awards irrespective of their content. It is expressed
further in the willingness of almost all systems to allow parties to choose almost
any national law to govern their relationship”); Mills, The Private History of
International Law, 55 Int’l & Comp. L.Q. 1, 7 n.302 (2006); Reich, A European Contract
Law: Ghost or Host for Integration, 24 Wisc. Int’l L.J. 425 (2006).
603) Bernardini, The Role of the International Arbitrator, 20 Arb. Int’l 113, 115 (2004); M.
Bühler & T. Webster, Handbook of ICC Arbitration: Commentary and Materials 16 (5th
ed. 2021) (“One of the fundamental principles that forms the basis and runs through
most aspects of modern international arbitration is party autonomy”).Where
parties do not agree upon arbitral procedures, the arbitrators are granted
expansive authority to prescribe procedural rules (which may differ substantially
from those used for litigation in national courts). See§15.03.
604) Interim Award in ICC Case No. 7929 of 1995, XXV Y.B. Comm. Arb. 312, 317 (2000).
605) See, e.g., ILC, Memorandum on Arbitral Procedure, Prepared by the Secretariat, U.N.
Doc. A/CN.4/35, II Y.B. I.L.C. 157, 161 (1950) (“The parties are of course free to refer
their questions to any person or body available, or to create a tribunal in whatever
shape they may wish …”).
606) See§15.02 for a discussion of the parties’ autonomy with regard to procedural
matters in international arbitration.
607) See§15.01[A]-§15.01[B]; §15.08[AA]; §15.08[Z][8].
608) See§15.08[II].
609) See§2.02[C][2][g].
132
610) See§15.02; §15.07[D]; Chapter 16. See also Lufuno Mphaphuli & Assocs. Pty Ltd v.
Andrews, [2009] ZACC 6, ¶219 (S. African Const. Ct.) (“The decision to refer a dispute
to private arbitration is a choice which, as long as it is voluntarily made, should be
respected by the courts. Parties are entitled to determine what matters are to be
arbitrated, the identity of the arbitrator, the process to be followed in the
arbitration, whether there will be an appeal to an arbitral appeal body and other
similar matters”).
Arbitration to A Changing World 3, 9, 12, 14, 23 (2021); Queen Mary, University of
London, 2018 International Arbitration Survey: The Evolution of International
Arbitration 7, 8 (2018); Queen Mary, University of London, 2015 International
Arbitration Survey: Improvements and Innovations in International Arbitration 6
(2015); Queen Mary, University of London, 2013 International Arbitration Survey:
Corporate Choices in International Arbitration: Industry Perspectives 8 (2013)
(“Flexibility of procedure” cited as second most important benefit of arbitration to
the energy industry); Queen Mary, University of London, 2008 International
Arbitration Survey: International Arbitration: Corporate Attitudes and Practices 2, 5
(2008) (“Flexibility of procedure” cited as prime advantage of international
arbitration). See also T. Stipanowich & P. Kaskell, Commercial Arbitration at Its Best:
Successful Strategies for Business Users: A Report of the CPR Commission on the
Future of Arbitration xxiii (2001) (“Ultimately, control over the process – the
flexibility to make arbitration what you want it to be – [is] the single most
important advantage of binding arbitration”).
612) Carlston, Theory of the Arbitration Process, 17 Law & Contemp. Probs. 631, 650 (1952)
(“source of strength” of commercial arbitration “lies in the fact that it is a mode of
trial, to which the laws of evidence are largely inapplicable because they are a
product of the problem of communicating facts to a jury … communicating facts to
an arbitrator can become enormously simplified, if he be skilled and expert in the
field”); Hennessee, Change for the Sake of Change: Does the Explosion of Recent
Arbitral Innovations Actually Deliver on the User’s Expectations?, 86(3) Int’l J. Arb.
Med. & Disp. Mgt 254, 254-57 (2020); Stipanowich, Contract and Conflict
Management, 2001 Wisc. L. Rev. 831.
613) See, e.g., 2021 LMAA Terms (maritime); 2020 GMAA Rules (maritime); 2022 SMA Rules
(maritime); 2021 CMAC Rules (maritime); 2014 Tokyo Maritime Arbitration
Commission of Japan Shipping Exchange Arbitration Rules (maritime); 2016 VMAA
Rules (maritime). See also C. Ambrose, K. Maxwell & M. Collett, London Maritime
Arbitration (4th ed. 2017); F. Rose, International Commercial and Maritime Arbitration
(1988).
614) See also 2022 National Grain and Feed Association Arbitration Rules (selected
commodities disputes). See also Bernstein, Private Commercial Law in the Cotton
Industry: Creating Cooperation Through Rules, Norms, and Institutions, 99 Mich. L.
Rev. 1724 (2001); D. Johnson, International Commodity Arbitration (1991).
615) 2014 ARIAS Procedures for the Resolution of U.S. Insurance Reinsurance Disputes;
2014 ARIAS-UK Arbitration Rules.
616) 2019 National Grain and Feed Association Rail Arbitration Rules.
617) 2021 WIPO Rules.
618) 2015 ICC Dispute Board Rules. See J. Hinchey & T. Harris, International Construction
Arbitration Handbook (2020).
619) 2013 AAA Labor Arbitration Rules; 1988 AAA Rules for Impartial Determination of
Union Fees; 2021 JAMS Employment Arbitration Rules.
620) This was historically one of the reasons cited in favor of arbitration. See§1.01[B]
[1]-§1.01[B][2] & §1.01[B][5]; UNCITRAL, Explanatory Note by the UNCITRAL Secretariat
on the 1985 Model Law on International Commercial Arbitration as Amended in 2006
¶15 (2008) (“the parties to an arbitration agreement make a conscious decision to
exclude court jurisdiction and prefer the finality and expediency of the arbitral
process”). See also Stipanowich, Arbitration and Choice: Taking Charge of the “New
Litigation”, 7 DePaul Bus. & Comm. L.J. 383 (2009); Sussman, Why Arbitrate: The
Benefits and Savings, 7 Transnat’l Disp. Mgt 2 (2010).Economy and efficiency are also
frequently referred to in contemporary judicial authorities. See§15.01[B]; Stolt-
Nielsen SA v. Animalfeeds Int’l, 559 U.S. 662 685 (U.S. S.Ct. 2010) (“In bilateral
arbitration, parties forgo the procedural rigor and appellate review of the courts in
order to realize the benefits of private dispute resolution: lower costs, greater
efficiency and speed, and the ability to choose expert adjudicators to resolve
specialized disputes”); Folkways Music Publ’rs, Inc. v. Weiss, 989 F.2d 108, 111 (2d Cir.
1993) (“twin goals of arbitration, namely settling disputes efficiently and avoiding
long and expensive litigation”); Bull HN Info. Sys. v. Hutson, 229 F.3d 321, 329 (1st Cir.
2000) (“The purpose of arbitration in large part is to have simplified, expedited
proceedings and courts should be reluctant to adopt rules which interfere with the
accomplishment of those purposes”); Fradella v. Petricca, 183 F.3d 17, 19 (1st Cir.
1999) (“The primary purpose served by the arbitration process is expeditious
dispute resolution”).
133
621) U.S. Revised Uniform Arbitration Act, Prefatory Note (2000); Stipanowich & Lamare,
Living with ADR: Evolving Perceptions and Use of Mediation, Arbitration and Conflict
Management in Fortune 1,000 Corporations, 19 Harv. Neg. L. Rev. 1, 20 (2014) (“Most
respondents believed arbitration to be ‘better, faster and cheaper than
litigation’”).
622) Diapulse Corp. of Am. v. Carba, Ltd, 626 F.2d 1108, 1110 (2d Cir. 1980).
623) See, e.g., Croft, Arbitrators Disappoint in Business Disputes, Study Finds, Fin. Times 7
(4 Oct. 2010) (“Half of the multinational companies using arbitration to settle
business disputes have been disappointed with the performance of their
arbitrator”); ICC, Commission Report: Controlling Time and Costs in Arbitration
(2018); ICC, Report of the ICC Commission on Arbitration and ADR Task Force on
Reducing Time and Costs in Arbitration (2012) (“Arbitration is a valuable tool for the
resolution of disputes. However, if it is to serve the needs of its users, it must be
time and cost effective”); Queen Mary, University of London, 2021 International
Arbitration Survey: Adapting Arbitration to A Changing World 14 (2021); Queen Mary,
University of London, 2018 International Arbitration Survey: The Evolution of
International Arbitration 7-8 (2018) (“Previous surveys by the School dating as far
back as 2006 have shown that users are most discontent with the ‘cost’ of
arbitration. The current survey continues to confirm this trend as ‘cost’ is yet again
the most selected option, and by a significant margin”); Queen Mary, University of
London, 2015 Improvements and Innovations in International Arbitration 24 (2015)
(“Cost and lack of speed were both ranked by respondents as amongst the worst
characteristics of international arbitration”); Silberman, International Arbitration:
Comments from A Critic, 13 Am. Rev. Int’l Arb. 9 (2002). See also Lyons, Arbitration:
The Slower, More Expensive Alternative, Am. Law. 107 (Jan./Feb. 1985).
624) Blue Tee Corp. v. Koehring Co., 999 F.2d 633, 634 (2d Cir. 1993).
International Arbitration Survey: The Evolution of International Arbitration 37 (2018)
(“Interviews confirmed that improving the overall efficiency of arbitral proceedings
should indeed be a top concern for all stakeholders involved”); Queen Mary,
University of London, 2013 International Arbitration Survey: Corporate Choices in
International Arbitration: Industry Perspectives 5 (2013) (“Some interviewees have
expressed concerns over the ‘judicialization’ of arbitration, the increased formality
of proceedings and their similarity with litigation, along with the associated costs
and delays in proceedings. This trend is potentially damaging to the attractiveness
of arbitration. In-house counsel value the features of the arbitration process that
distinguish it from litigation”).
626) Wetter, The Present Status of the International Court of Arbitration of the ICC: An
Appraisal, 1 Am. Rev. Int’l Arb. 91, 103 (1990). See Chartered Institute of Arbitrators,
Costs of International Arbitration Survey (2011); Kerr, International Arbitration v.
Litigation, 1980 J. Bus. L. 164, 164-65, 175-78 (“Arbitral tribunals have to be paid,
whereas court fees are often negligible. In important cases, three arbitrators, or
two and an umpire, are usually preferred to a single arbitrator, and this greatly
adds to the costs and complexities. If the arbitrators are busy men, as they usually
are, arbitration can be much more protracted than litigation. …”).
627) See, e.g., Goldhaber, 2011 Arbitration Scorecard: High Stakes, Am. Law. 1 (1 July 2011)
(between 2009 and early 2011, 113 pending international arbitrations where amount
in dispute was $1 billion or more were reported); Perry, The GAR 30 Unveiled, GAR
News (12 Mar. 2012) (GAR’s measure of total value of international arbitration
claims and counterclaims that reached merits stage increased over 100% from $96
billion in 2010 to $206 billion in 2011).
628) Schneider, Not Quite A World Without Trials: Why International Dispute Resolution Is
Increasingly Judicialized, 2006 J. Disp. Resol. 119.
629) See§13.05[B]; §15.08[T].
630) See§1.02[A][1].
631) See§15.08[II]-§15.08[JJ].
632) See§1.04[D]; §15.08[II]-§15.08[JJ].
633) See§15.08[R].
634) See§15.08[O]; Chartered Institute of Arbitrators, Costs of International Arbitration
Survey i (2011) (“average length of an arbitration is between 17 and 20 months”);
Dabdoub & Cox, Which Costs Less: Arbitration or Litigation?, InsideCounsel 2 (6 Dec.
2012) (“the median arbitration case lasted 21 months”). See also ICC, 2020 Dispute
Resolution Statistics 19 (2021) (median duration of 22 months); HKIAC, Average Costs
and Duration Report (2021) (mediation duration of 13 months); HKIAC, Average Costs
and Duration Report (2018) (median duration of 14.3 months); LCIA, Facts and
Figures: Costs and Duration: 2013-2016 Report 8 (2017) (median duration of 16
months); SIAC, Costs and Duration Study (2016) (median duration of 11.7 months);
SCC, Report: Costs of Arbitration and Apportionment of Costs Under the SCC Rules 8
(2016) (median duration of 13.5 months).
134
635) See, e.g., Queen Mary, University of London, 2021 International Arbitration Survey:
Adapting Arbitration to A Changing World 12 (2021) (“In relation to the ability of
arbitrators to sanction parties and their counsel, several respondents felt that
arbitrators are still overly cautious when it comes to ‘due process paranoia’. As one
interviewee stressed, this ‘timid’ approach leaves clients with a negative
perception of arbitration”); Queen Mary, University of London, 2018 International
Arbitration Survey: The Evolution of International Arbitration 27 (“A number of
respondents and interviewees referred to what the 2015 survey called the ‘due
process paranoia’ of arbitrators as a probable reason for this continued lack of
proactiveness”); Queen Mary, University of London, 2015 International Arbitration
Survey: Improvements and Innovations in International Arbitration 2 (2015) (“A
growing concern in international arbitration is a perceived reluctance by tribunals
to act decisively in certain situations for fear of the award being challenged on the
basis of a party not having had the chance to present its case fully (‘due process
paranoia’)”); Berger & Jensen, Due Process Paranoia and the Procedural Judgment
Rule: A Safe Harbour for Procedural Management Decisions by International
Arbitrators, 32 Arb. Int’l 415, 423 (2016); Metsch & Gerbay, Prospect Theory and Due
Process Paranoia: What Behavioural Models Say About Arbitrators’ Assessment of
Risk and Uncertainty, 36(2) Arb. Int’l 233 (2020).
636) See§15.08[O]; Pettibone, Due Process Considerations in Expedited Arbitrations, X(1)
Indian J. Arb. L. 175 (2021); Welser & Klausegger, The Arbitrator and the Arbitration
Procedure: Fast Track Arbitration: Just Fast or Something Different?, 2009 Austrian
Arb. Y.B. 259.
637) U.S. Bureau of Justice, Civil Justice Survey of State Courts (CJSSC), Bureau of Justice
Statistics 2005, available at bjs.ojp.usdoj.gov (for state court contract cases in 75
largest U.S. counties, average length of time from case filing to trial in jury cases
was 25.3 months and for bench trials was 18.4 months); Judicial Business of the
United States Courts, 2011 Annual Report of the Director, Table C-5, 156, Table B-4,
83, available at www.uscourts.gov (median of 23.4 months through trial in federal
courts, with median in various districts ranging from 12.3 to 37.6 months; median
through appeal of 29.3 months); Judicial Business of the United States Courts, 2009
Annual Report of the Director, Table C-5, 172 (median of 23.4 months through trial in
federal courts, with median in various districts ranging from 14.9 to 57.3 months;
median through appeal of 32.1 months).
638) Kumar, Judicial Delays in India: Causes & Remedies, 4 J. L. Pol’y & Glob. 16, 16 (2012)
(15 years on average to resolve case in Indian courts); Government of India/Law
Commission of India, Report No. 230 Reforms in the Judiciary: Some Suggestions 14
(2009) (noting that it “often takes 10 – 20 – 30 or even more years before a matter is
finally decided”).
639) See§1.02[B][5]; §25.02[B]; §26.03[B].
640) It may be possible to compare more precisely the relative speed and cost of
international arbitration and particular national courts with respect to a specific
kind of contract or category of disputes. But, even here, the uncertainties of
appellate review, summary disposition, and other procedural developments will
make predictions difficult.
Arbitration to A Changing World 13 (2021) (“Time and cost are perennially
acknowledged as the biggest concerns for arbitration users”); Queen Mary,
University of London, 2018 International Arbitration Survey: The Evolution of
International Arbitration 7, 8 (2018) (cost and speed cited among both advantages
and disadvantages of international arbitration); Queen Mary, University of London,
An Insight into Resolving Technology, Media and Telecoms Disputes 26-27 (2016) (81%
of respondents indicated that international arbitration is not well-suited for
resolution of TMT disputes because of the costs; “Complaints regarding
international arbitration have largely been connected to costs, delays and the
arbitrators’ behaviour”); Queen Mary, University of London, 2013 International
Arbitration Survey: Corporate Choices in International Arbitration: Industry
Perspectives 5 (2013) (“For respondents who considered arbitration not to be well
suited to their industry, costs and delay were cited as the main reasons more than
any other factors …”); Queen Mary, University of London, 2008 International
Arbitration Survey: International Arbitration: Corporate Attitudes and Practices 2
(2008) (“length of time and the costs of International Arbitration are seen as …
disadvantages”). See also Bühring-Uhle, A Survey on Arbitration and Settlement in
International Business Disputes, in C. Drahozal & R. Naimark (eds.), Towards A
Science of International Arbitration: Collected Empirical Research 25, 32, 35 (2005);
Naimark & Keer, International Private Commercial Arbitration: Expectations and
Perceptions of Attorneys and Business People, in C. Drahozal & R. Naimark (eds.),
Towards A Science of International Arbitration: Collected Empirical Research 49
(2005) (cost and speed one of several significant objectives of arbitration).
135
642) Judicial authorities provide a measure of anecdotal confirmation. See, e.g.,
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (U.S. S.Ct.
1985) (party agreeing to arbitration “trades the procedures and opportunity for
review of the courtroom for the simplicity, informality, and expedition of
arbitration”); McDonald v. City of W. Branch, 466 U.S. 284, 292 (U.S. S.Ct. 1984);
Judgment of 28 April 1999, Attorney Gen. of Kenya v. Bank für Arbeit und Wirtschaft
AG, XXV Y.B. Comm. Arb. 692, 694 (Cyprus S.Ct.) (2000) (“The length of time required
for an action within the state judicial system, the use of time-consuming judicial
means which add to the delay, the familiarity of arbitrators with their subject
matter, the rigidity of regular judicial means, are some of the reasons for which the
institution of arbitration has flourished and been established for disputes of
various natures”).
643) The difference between “privacy,” where third parties are customarily denied
access to hearings, and “confidentiality,” where parties are prohibited from
disclosing matters relating to the arbitration to third parties, are discussed below.
See§20.01; §20.05.
644) Nonetheless, there are often no legally-enforceable guarantees of confidentiality.
See§20.03[C]; §20.03[D][2].
645) See§20.01; Drahozal, Business Courts and the Future of Arbitration, 10 Cardozo J.
Conflict Resol. 491, 499 (2008-09); Kann, A Report Card on the Quality of Commercial
Arbitration: Assessing and Improving Delivery of the Benefits Customers Seek, 7
DePaul Bus. & Comm. L.J. 499, 502 (2009); Rogers, Transparency in International
Commercial Arbitration, 54 Kan. L. Rev. 1301, 1304 (2006).
646) SeeChapter 20 for a discussion of confidentiality in international arbitration.
647) See§20.03[D].
648) See§20.03[D][2].
649) See§20.03[C]-§20.03[E]. It is possible to reduce these risks of disclosure by a
counter-party, through appropriately-drafted confidentiality provisions. See G.
Born, International Arbitration and Forum Selection Agreements: Drafting and
Enforcing 127-28 (6th ed. 2021); §20.03[B].
650) Empirical research suggests that confidentiality is a material, but not primary,
motivation for international arbitration agreements. Queen Mary, University of
London, 2018 International Arbitration Survey: The Evolution of International
Arbitration 24 (2018) (“87% of respondents believe that confidentiality in
international commercial arbitration is of importance”); Queen Mary, University of
London, 2015 International Arbitration Survey: Improvements and Innovations in
International Arbitration 6 (2015) (33% of respondents indicated confidentiality and
privacy among top three most valuable characteristics of international
Survey: Choices in International Arbitration 29-31 (2010); Bühring-Uhle, A Survey on
Arbitration and Settlement in International Business Disputes, in C. Drahozal & R.
Naimark (eds.), Towards A Science of International Arbitration: Collected Empirical
Research 25, 35 (2005) (confidentiality third in list of 11 reasons for arbitration).
651) As discussed below, this is the practice in some industry sectors (e.g., some
maritime, commodities and other “trade” arbitrations). See§20.10; 2022 GAFTA
Arbitration Rules, §24 (allowing public notice of non-compliance with GAFTA
award); Bernstein, Opting out of the Legal System: Extralegal Contractual Relations
in the Diamond Industry, 21 J. Legal Studies 115, 124-30 (1992) (quoting Diamond
Dealers’ Club Arbitration Bylaws, Art. 12(26): “All decisions of arbitration panels …
which are not complied with within 10 working days, together with the picture of
the non-complying member, shall be posted in a conspicuous place in the Club
rooms” and communicated to other diamond exchanges internationally).
652) See§20.04; §20.10.
653) The developments include the 2014 UNCITRAL Rules on Transparency in Treaty-
Based Investor-State Arbitration, the Mauritius Convention on Transparency,
amendments to the ICSID Rules and revised bilateral investment treaties (which
include transparency provisions). See§20.11.
654) See §20.04[A]; §20.10. See also Kumar & Singh, Transparency and Confidentiality in
International Commercial Arbitration, 86(4) Int’l. J. Arb. Med. & Disp. Mgt 463 (2020);
Miles & Goh, Transparency v Confidentiality: A Fork in the Road for Arbitration?, in G.
Banerji et al. (eds.), International Arbitration and the Rule of Law: Essays in Honour
of Fali Nariman 389 (2021); Partasides, What Has Been the ‘’Spillover’’ Effect of the
Transparency Debate on Commercial Arbitrations?, in E. Kalicki & M. Abdel Raouf
(eds.), Evolution and Adaptation: The Future of International Arbitration 699 (2019);
Tung & Lin, The Arbitrator and the Arbitration Procedure, More Transparency in
International Commercial Arbitration: To Have or Not to Have?, 2018 Austrian Y.B.
Int’l Arb. 77; Partasides & Maynard, Raising the Curtain on English Arbitration, 33 Arb.
Int’l 197 (2017); Samuel, Confidentiality in International Commercial Arbitration:
Bedrock or Window-Dressing?, Kluwer Arb. Blog (21 Feb. 2017).
136
655) Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Arbitration: Collected Empirical Research 25, 35 (2005).This perception has deep
historic roots. Baker, From Lovedays to ADR: Arbitration and Dispute Resolution in
England 1066-1800, 3(5) Transnat’l Disp. Mgt 1, 5 (2006) (13th century submission
agreements disposing of pending litigations by way of referral to “arbitration of
friends”); Arbitration of Interstate Commercial Disputes: Joint Hearings on S. 1005
and H.R. 646 Before the Subcommittee of the Committees on the Judiciary, 68th
Cong., 1st Sess., 7 (1924) (“[Arbitration] preserves business friendships. … It raises
business standards. It maintains business honor, prevents unnecessary litigation
and eliminates the law’s delay by relieving our courts”).
656) See§8.02[B]; §13.06[B] for a discussion of the parties’ obligations to cooperate in
the arbitral process.
657) This is not always the case. Sometimes, the uncertainties of a random dispute
resolution process, or the hardships of an arbitrary process, do more to encourage
settlement. See Park, Arbitration’s Protean Nature: The Value of Rules and the Risks
of Discretion, 19 Arb. Int’l 279, 279 (2003) (recounting proverb involving Chinese
emperor who encouraged settlements by providing abusive and arbitrary
judiciary).
658) Users of arbitration rank amicable dispute resolution and future relations
relatively low on the important objectives of international arbitration. See also
Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Arbitration: Collected Empirical Research 25, 35 (2005); Canada et al., A Data-Driven
Exploration of Arbitration as A Settlement Tool: What Happens When Cases Do Not
Settle..., Kluwer Arb. Blog (28 Nov. 2018); Dispute Resolution Data, What Happens
When Cases Do Not Settle Before a Hearing?, available at
https://www.disputeresolutiondata.com/what_happens_when_cases_do_not_settl
e_before_a_hearing (“When taking all 3,642 international commercial arbitration
cases into account, a clear majority (approximately 59%) of cases result in
settlement/withdrawal, with comparatively fewer cases resulting in an award and
other outcomes, which is consistent with our previously reported results. However,
when we limit the analysis to include only those cases that have proceeded to a
hearing, the distribution of outcomes clearly shifts towards a sizeable majority of
cases (approximately 68%) that result in an award judgment, with a
correspondingly small proportion of cases (approximately 20%) reaching
settlement/withdrawal”); Hennessee, Arbitrating for Settlement: Eyes on the Prize,
22 Asian Disp. Rev. 81 (2020); Naimark & Keer, International Private Commercial
Arbitration: Expectations and Perceptions of Attorneys and Business People, in C.
Collected Empirical Research 43, 52 (2005); Slate, Slate & Canada, A Data-Driven
Exploration of Arbitration as A Settlement Tool: Does the Sample Reflect the
Populatio..., Kluwer Arb. Blog (3 Sept. 2018); Queen Mary, University of London, 2021
International Arbitration Survey: Adapting Arbitration to A Changing World 6 (2021)
(“Only a few private practitioners observed that their clients were now exploring
settlements more willingly than previously”).
659) For an idiosyncratic critique of efforts to promote settlement, in a domestic
setting, see Fiss, Against Settlement, 93 Yale L.J. 1073, 1075 (1983-84) (alternative
dispute resolution “is a capitulation to the conditions of mass society and should
be neither encouraged nor praised”).
660) ICC, 2020 Dispute Resolution Statistics 21 (2021).
137
661) The Singapore Convention on Mediation is available at
https://uncitral.un.org/en/texts/mediation/conventions/international_settlement
_agreements. As of June 2022, there were 10 Contracting Parties and 55 signatories.
The relevant status table can be found at
https://uncitral.un.org/en/texts/mediation/conventions/international_settlement
_agreements/status. For commentary on the Singapore Convention on Mediation
and mediation more generally, see N. Alexander & Sh. Chong, The Singapore
Convention on Mediation: A Commentary (2019); Anderson, Beaumont & Verbist, The
United Nations Convention on International Settlement Agreements Resulting from
Mediation: Its Genesis, Negotiation and Future, in C. Campbell (ed.), Comparative
Law Yearbook of International Business 41a: International Mediation 35 (2020);
Chua, The Singapore Convention on Mediation and the New York Convention on
Arbitration: Comparing Enforcement Mechanisms and Drawing Lessons for Asia, 16(2)
Asian Int’l Arb. J. 113 (2020); Morris-Sharma,The Singapore Convention: A Milestone
for Mediation, 6(2) BCDR Int’l Arb. Rev. 261 (2019); Ray, Is Singapore Convention to
Mediation what New York Convention is to Arbitration?, Kluwer Arb. Blog (31 Aug.
2019); Strong, Promoting International Mediation Through the Singapore Convention
on Mediation, in Sh. Ali et al. (eds.), New Frontiers in Asia-Pacific International
Arbitration and Dispute Resolution 337 (2020); C. Titi & K. Fach Gomez, Mediation in
International Commercial and Investment Disputes (2019); Tezuka, Rise of Hybrid
Arbitration/Mediation in the Era of the Singapore Mediation Convention, in N. Kaplan
et al. (eds.), International Arbitration: When East Meets West – Liber Amicorum
Michael Moser 277 (2020); Treichl, The Singapore Convention: Towards A Universal
Standard for the Recognition and Enforcement of International Settlement
Agreements?, 11(3) J. Int’l Disp. Sett. 409 (2020); Verbist, Mediation as a Method to
Settle International Trade and Investment Disputes, in A.M. Anderson & B. Beaumont
(eds.), The Investor-State Dispute Settlement System: Reform, Replace or Status-
Quo? 341 (2020); Verbist, United Nations Convention on International Settlement
Agreements Resulting from Mediation, 2019(1) Belgian Rev. Arb. 53 (2019). For a
summary of empirical surveys on mediation, see A. Howard, EU Cross-Border
Commercial Mediation: Listening to Disputants – Changing the Frame; Framing the
Chan... 47 (2021).
662) Legislation based on or influenced by the Model Law has been adopted in a total
of 46 jurisdictions, see
https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_conciliation/s
tatus. For commentary, see P. Binder, International Commercial Arbitration and
Mediation in UNCITRAL Model Law Jurisdictions 551 (4th ed. 2019); O’Malley, A New
‘UNCITRAL Model Law on International Commercial Adjudication’: How Beneficial
Could It Really Be?, 88(1) Int’l. J. Arb. Med. & Disp. Mgt 34 (2022); Verbist, The
Amended UNCITRAL Model Law on International Commercial Mediation 2018, in D. De
Meulemeester et al. (eds.), Liber Amicorum CEPANI (1969-2019): 50 Years of
Solutions 457 (2019).
663) See UNCITRAL Model Law on International Commercial Mediation and International
Settlement Agreements Resulting from Mediation, Section 3. The UNCITRAL Model
Law on International Commercial Mediation and International Settlement
Agreements Resulting from Mediation is available at
https://uncitral.un.org/en/texts/mediation/modellaw/commercial_conciliation.
664) See G. Born & P. Rutledge, International Civil Litigation in United States Courts 215-
349, 793-863 (6th ed. 2018).
665) Annacker & Greig, State Immunity and Arbitration, 15(2) ICC Ct. Bull. 70 (2004);
Böckstiegel, States in the International Arbitral Process, 2 Arb. Int’l 22 (1986); Fox,
States and the Undertaking to Arbitrate, 37 Int’l & Comp. L.Q. 1 (1988); Gaillard,
Effectiveness of Arbitral Awards, State Immunity From Execution and Autonomy of
State Entities: Three Incompatible Principles, in E. Gaillard & J. Younan (eds.), State
Entities in International Arbitration 179 (2008); Heiskanen, State as A Private: The
Participation of States in International Commercial Arbitration, 7(1) Transnat’l Disp.
Mgt (2010); Shore, You Can Bet the Company But Not the State: The Proper and
Improper Conduct of Sovereigns in Arbitration, 3 World Arb. & Med. Rev. 465 (2009);
Silva Romero, The Dialectic of International Arbitration Involving State Parties, 15(2)
ICC Ct. Bull. 79 (2004).
666) See, e.g., U.N. Convention on Jurisdictional Immunities of States and Their Property,
Art. 17; European Convention on State Immunity, Art. 12(1); U.S. Foreign Sovereign
Immunities Act, 28 U.S.C. §§1605(a)(1), 1605(a)(6), 1610(a)(5); U.K. State Immunity
Act, 1978, §9(1); Canadian State Immunity Act, 1985, §4; Australian Foreign States
Immunities Act, 1985, §§17(1)-(3). See also Annacker & Greig, State Immunity and
Arbitration, 15(2) ICC Ct. Bull. 70 (2004); K. Böckstiegel, Arbitration and State
Enterprises: Surveys on the National and International State of Law and Practice 40
(1984); Brenninkmeijer & Gelinas, Execution Immunities and the Effect of the
Arbitration Agreement, 37(5) J. Int’l Arb. 549 (2020); Collins, Captain Duff, the Sultan
of Kelantan and Their Legacy in the Law of State Immunity and International
Arbitration, 37(2) Arb. Int’l 463 (2021); Gaillard, Effectiveness of Arbitral Awards, State
Immunity from Execution and Autonomy of State Entities: Three Incompatible
Principles, in E. Gaillard & J. Younan (eds.), State Entities in International Arbitration
179 (2008); Howe, A Case Note on the UK Supreme Court’s Recent Decision in General
Dynamics v. Libya, 39(2) J. Int’l Arb. 277 (2022).
138
667) See, e.g., 28 U.S.C. §1610(a)(6); U.K. State Immunity Act, 1978, §§9, 13(2); Australian
Foreign States Immunities Act, 2010, §17(2); Creighton v. Ministère des Finances de
l’Etat du Qatar, 15(9) Int’l Arb. Rep. A-1 (2000) (French Cour de Cassation Civ. 1). See
also Annacker & Greig, State Immunity and Arbitration, 15(2) ICC Ct. Bull. 70 (2004); J.
Dellapenna, Suing Foreign Governments and Their Corporations 774-75 (2d ed. 2003).
668) See K.-H. Böckstiegel, Arbitration and State Enterprises: Surveys on the National and
International State of Law and Practice 20 (1984); ICC, 2020 Dispute Resolution
Statistics (2021) (“In 2020, 19.8% of new cases involved a state or state entity”); ICC,
2018 Dispute Resolution Statistics, 30(2) ICC Ct. Bull. 12, 18 (2019) (“The number of
states or state-owned parties in ICC arbitrations has shown a 50% increase over the
past five years. In 2018 (and since 2017), approximately 15% of ICC caseload
involves a state or state entity, with 43 states and 100 state parties under state
ownership from all parts of the world”); ICC, 2017 Dispute Resolution Statistics, 29(2)
ICC Ct. Bull. 51, 55-56 (2018) (“The number has grown by 50% in the past five years
and has doubled in ten years. The number of cases filed in 2017 involving states or
state entities rose to record levels of over 15%, from 11% in 2016 which is a
testament of the suitability of the Rules for both commercial disputes involving
states and state entities and investment disputes”); ICC, 2016 Dispute Resolution
Statistics, 28(2) ICC Ct. Bull. 106, 109 (2017) (“Some 11% of cases filed in 2016
involved states or parties under state ownership”); ICC, 2015 Dispute Resolution
Statistics, 27(1) ICC Ct. Bull. 9, 12 (2016) (“Some 13% of the cases filed in 2015
involved a state or a party under state ownership”); ICC, 2014 Dispute Resolution
Statistics, 26(1) ICC. Ct. Bull. 7, 11 (2015) (“the number of 2014 filings in which states
or entities under state control were parties remained stable at 11% of the total
caseload”).
669) Buchanan, Public Policy and International Commercial Arbitration, 26 Am. Bus. L.J.
511, 512 (1988). See Aksen, The Need to Utilize International Arbitration, 17 Vand. J.
Transnat’l L. 11 (1984); Paulsson, International Arbitration Is Not Arbitration, 2008:2
Stockholm Int’l Arb. Rev. 1, 2 (“In the transnational environment, international
arbitration is the only game. It is a de facto monopoly”).
670) Lyons, Arbitration: The Slower, More Expensive Alternative, Am. Law. 107 (Jan./Feb.
1985).
671) In re Canadian Gulf Line, 98 F.2d 711, 714 (2d Cir. 1938) (Learned Hand, J.).
672) Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 987 n.32 (2d Cir. 1942).
See also Bell Canada v. ITT Telecommc’ns Corp., 563 F.Supp. 636, 641-42 (S.D.N.Y.
1983) (“Arbitration is not a one-way street. It has its drawbacks as well as
advantages”).
673) See§1.01[B].
674) See Queen Mary, University of London, 2018 International Arbitration Survey: The
Evolution of International Arbitration 2 (97% of respondents identified international
arbitration as their preferred mechanism for dispute resolution).
675) Lalive, Transnational (or Truly International) Public Policy and International
Arbitration, in P. Sanders (ed.), Comparative Arbitration Practice and Public Policy
in Arbitration257, 293 (1987).A study of domestic commercial arbitration in the mid-
20th century United States concluded that a substantial percentage of U.S.
commercial disputes were arbitrated (rather than litigated). Mentschikoff, The
Significance of Arbitration: A Preliminary Inquiry, 17 Law & Contemp. Probs. 698, 698
(1952) (“preliminary inquiry suggests that if we lay aside first the cases in which the
government is a party and second the accident cases, then the matters going to
arbitration rather than to the courts represent 70 per cent or more of our total civil
litigation”).
676) See§1.03.
677) See§1.03. See also C. Drahozal & R. Naimark, Towards A Science of International
Arbitration: Collected Empirical Research 341 (2005).
678) The International Centre for Settlement of Investment Disputes registered 53 new
arbitrations (and one conciliation) in 2017, 56 new arbitrations in 2018, 39 new
arbitrations in 2019, 58 new arbitrations in 2020 and 66 new arbitrations in 2021.
ICSID, The ICSID Caseload 7 (2022); ICSID, The ICSID Caseload 8 (2021); ICSID, The
ICSID Caseload 7 (2020); ICSID, The ICSID Caseload 7 (2019); ICSID, The ICSID Caseload:
Statistics 8 (2018); ICSID, The ICSID Caseload: Statistics 7 (2017); ICSID, The ICSID
Caseload: Statistics 7 (2016); ICSID, The ICSID Caseload: Statistics 7 (2015); ICSID, The
ICSID Caseload: Statistics 7 (2014); ICSID, The ICSID Caseload: Statistics 7 (2013). See
C. Drahozal & R. Naimark, Towards A Science of International Arbitration: Collected
Empirical Research Appendix 1, 341 (2005); Drahozal, Empirical Findings on
International Arbitration: An Overview, in T. Schultz & F. Ortino (eds.) The Oxford
Handbook of International Arbitration 644 (2020).
139
679) C. Drahozal & R. Naimark, Towards A Science of International Arbitration: Collected
Empirical Research Appendix 1, 341 (2005). See also id. at 344 (for ICC 1921-2003);
Drahozal, Empirical Findings on International Arbitration: An Overview, in T. Schultz
& F. Ortino (eds.), The Oxford Handbook of International Arbitration 644 (2020); ICC,
2020 Dispute Resolution Statistics 9 (2021); ICC, 2019 Dispute Resolution Statistics 9
(2020); ICC, 2018 Dispute Resolution Statistics, 2019:1 ICC Disp. Resol. Bull. 11; ICC,
2017 Dispute Resolution Statistics, 2018:2 ICC Disp. Resol. Bull. 51; ICC, 2016 Dispute
Resolution Statistics, 2017:2 ICC Disp. Resol. Bull. 106; ICC, 2015 Dispute Resolution
Statistics, 2016:1 ICC Disp. Resol. Bull. 9; ICC, 2014 Dispute Resolution Statistics,
2015:1 ICC Disp. Resol. Bull. 7, 13; ICC, 2013 Statistical Report, 25(1) ICC Ct. Bull. 5
(2014); ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 16 (2013); J. Wetter, The
International Arbitral Process: Public and Private 124 (1979) (for AAA 1975-1977);
http://siac.org.sg (for SIAC); http://www.lcia.org/LCIA/reports.aspx (for LCIA);
https://www.hkiac.org/about-us/annual-report (for HKIAC);
http://www.cietac.org/index.php?m=Page&a=index&id=40&l=en (for CIETAC);
www.sccinstitute.com (for SCC domestic and international caseload);
https://www.viac.eu/en/statistics (for VIAC); AIAC, Annual Report 2019 & 2020 12
(2021).
International Arbitration Survey: The Evolution of International Arbitration 2 (2018);
Perceptions of Attorneys and Business People, in C. Drahozal & R. Naimark (eds.),
Towards A Science of International Arbitration: Collected Empirical Research 45
(2005).
681) Coyle & Drahozal, An Empirical Study of Dispute Resolution Clauses in International
Supply Contracts, 52 Vand. J. Transnat’l L. 323 (2019) (more than 50% of surveyed
international supply contracts contain arbitration clauses); Drahozal, Empirical
Findings on International Arbitration: An Overview, in T. Schultz & F. Ortino (eds.),
The Oxford Handbook of International Arbitration 644 (2020); C. Drahozal & R.
Naimark, Towards A Science of International Arbitration: Collected Empirical
Research 59 (2005) (88% of surveyed international joint venture agreements contain
arbitration clauses); Naimark, Building A Fact-Based Global Database: The
Countdown, 20 J. Int’l Arb. 105, 106 (2003).For a contrary, if flawed, analysis in
domestic U.S. contracts, see Eisenberg & Miller, The Flight From Arbitration: An
Empirical Study of Ex Ante Arbitration Clauses in the Contracts of Publicly Held
Companies, 56 DePaul L. Rev. 335 (2007) (relying on limited sample of contracts in
domestic settings to conclude that arbitration is not frequently used in lending
and similar financial transactions). Compare Benson, To Arbitrate or to Litigate: That
Is the Question, 8 Euro. J. L. & Econ. 91 (1999); Drahozal & Ware, Why Do Businesses
Use (or Not Use) Arbitration Clauses, 25 Ohio State J. Disp. Resol. 433 (rebutting
Eisenberg study); Koremenos, If Only Half of International Agreements Have Dispute
Resolution Provisions, Which Half Needs Explaining?, 36 J. Legal Stud. 189 (2007)
(same).
682) Janssen & Spilker, The Application of the CISG in the World of International
Commercial Arbitration, 77 RabelZ 131, 134 (2013) (based on analyses of PACE
database, “at least 70-80% of CISG-related cases hav[e] been settled by arbitral
tribunals”).
Arbitration to A Changing World 2 (2021) (90% of respondents identified
international arbitration as their preferred method to resolve cross-border
disputes); Queen Mary, University of London, 2018 International Arbitration Survey:
The Evolution of International Arbitration 2 (97% of respondents identified
international arbitration as their preferred mechanism for dispute resolution and
99% of respondents recommend international arbitration to resolve cross-border
disputes). Broadly similar results were reached in a 2015 Litigation Trends Survey
(of 8,403 participants from 26 countries worldwide), where 48% of respondents
favored international arbitration in cross-border contracts, 25% preferred
litigation, 27% said that it depends on the dispute. Norton Rose Fulbright LLP,
Litigation Trends Survey Report (2015).
140
684) See Judgment of 10 June 2004, Bargues Agro Industrie SA v. Young Pecan Cie, XXX Y.B.
Comm. Arb. 499, 502-03 (Paris Cour d’Appel) (2005) (“Arbitration is the usual means
of dispute settlement in international commerce”); Messrs. Eckhardt & Co. v. Hanif,
PLD 1993 SC 42, 52 (Pakistan S.Ct. 1993) (“With the development and growth of
International Trade and Commerce and due to modernization of
Communication/Transport systems in the world, the contracts containing such an
arbitration clause are very common nowadays”). See also Aksen, International
Arbitration: Its Time Has Arrived, 14 Case Western Reserve J. Int’l L. 247 (1982); K. P.
Berger, International Economic Arbitration 8 (1993); N. Blackaby et al. (eds.), Redfern
and Hunter on International Arbitration ¶1.01 (6th ed. 2015); Schill, Developing A
Framework for the Legitimacy of International Arbitration, in A. van den Berg (ed.),
Legitimacy: Myths, Realities, Challenges789, 795 (2015) (“During the past two
decades international arbitration has seen a transformation from a recurrent
phenomenon of transborder commercial and inter-state relations with little social
significance, whose function was the ex post settlement of individual disputes and
no more, into a stable and permanent institution with universal aspirations that
contributes significantly to ordering social relations ex ante between the disputing
parties but also beyond”); R. Schütze, D. Tscherning & W. Wais, Handbuch des
Schiedsverfahrens ¶34 (1990); Stein & Wotman, International Commercial Arbitration
in the 1980s, 38 Bus. Law. 1685 (1983).
685) See Chambers, Global Guide: The World’s Leading Lawyers (2022); Y. Dezalay & B.
Garth, Dealing in Virtue: International Commercial Arbitration and the Construction
of A Transnational Legal Order (1996).
686) See Born, A New Generation of International Adjudication, 61 Duke L.J. 775 (2012);
Rogers, The Arrival of the “Have-Nots” in International Arbitration, 8 Nev. L.J. 341
(2007); Ma & Boo, Autonomous Arbitrability? Whose Autonomy? Whose Arbitrability?,
in F. Ferrari & F.J. Rosenfeld (eds.), Autonomous Versus Domestic Concepts under the
New York Convention 299 (2021); Youssef, The Death of Inarbitrability, in L. Mistelis &
S. Brekoulakis (eds.), Arbitrability: International and Comparative Perspectives 47
(2009).
687) See§1.04[A][7].
688) Amro, The Resolution of Consumer Disputes through Online Arbitration, Int’l J. Arb.
Med. & Disp. Mgt 265 (2016); Chatterjee & Uddin, Online Dispute Resolution: An
Effective Mechanism and an Alternative Tool for Justice at a Reasonable Time, 87(4)
Int’l J. Arb. Med. & Disp. Mgt 529 (2021); Hill, On-Line Arbitration: Issues and
Solutions, 15 Arb. Int’l 2 (1999); Hörnle, Online Dispute Resolution, in J. Tackaberry &
A. Marriott (eds.), Bernstein’s Handbook of Arbitration and Dispute Resolution
Practice (4th ed. 2003); Kallel, Online Arbitration, 25 J. Int’l Arb. 345 (2008); G.
Kaufmann-Kohler & T. Schultz, Online Dispute Resolution: Challenges for
Contemporary Justice (2004); Musella, Arbitration, Open Data, Justice and Artificial
Intelligence: A New Step Forward, Kluwer Arb. Blog (16 Apr. 2020); Ng & del Rio,
When The Tribunal Is an Algorithm: Complexities of Enforcing Orders Determined by a
Software under the New York Convention, in K. Fach Gomez & A. Lopez-Rodriguez
(eds.), 60 Years of the New York Convention: Key Issues and Future Challenges 121
(2019); Vij, Arbitrator-Robot: Is A(I)DR the Future?, 39(1) ASA Bull. 123-146 (2021).
689) Bantekas, Interstate Arbitration in International Tax Disputes, 8(3) J. Int’l Disp. Sett.
507 (2017); Brazier, The Arbitrability of Investor-State Taxation Disputes in
International Commercial Arbitration, 32(1) J. Int’l Arb. 1 (2015); Cherian, Between the
Scylla and Charybdis: Tax Carve-outs and Tribunal Jurisprudence, X(1) Indian J. Arb. L.
156 (2021); Ganguly, Tribunals and Taxation: An Investigation of Arbitration in Recent
Tax Conventions, 29 Wisc. Int’l L.J. 735 (2012); Gildemeister & Koppensteiner,
Arbitration Clauses in Tax Treaties (Conference Report), 7(1) Transnat’l Disp. Mgt
(2010); Markham, Arbitration and Tax Treaty Disputes, 35(4) Arb. Int’l 473 (2019);
Markham, Mandatory Binding Tax Arbitration: Is This A Pathway to A More Efficient
Mutual Agreement Procedure?, 35 Arb. Int’l 149 (2019) (mandatory arbitration in
bilateral tax treaties increasingly accepted); Mooij, Tax Treaty Arbitration, 35(2) Arb.
Int’l (2019); Muñoz, Tax Arbitration and Its Issues: From Fiction to Reality, to
Surrealism, 21 Spanish Arb. Rev. 5 (2014); Park, Tax and Arbitration, 36(2) Arb. Int’l
157 (2020); Park, Tax Arbitration and Investor Protection, in C. Rogers & R. Alford
(eds.), The Future of Investment Arbitration 227 (2009); Salehifar, Rethinking the Role
of Arbitration in International Tax Treaties, 37(1) J. Int’l Arb. 87 (2020); Walck, Tax and
Currency Issues in International Arbitration, 3 World Arb. & Med. Rev. 173 (2009).
690) See§10.08.
691) See§6.04. See ICC, Commission Report on Financial Institutions and International
Arbitration 11 (2016); Leonard & O’Donnell, Arbitration in Derivatives Contracts, 39(1)
J. Int’l Arb. 61 (2021); Muñoz & Andreotti, Transnational Securities Disputes: A Role for
Arbitration?, 31 Spanish Arb. Rev. 73, 88 (2018) (discussing trend towards use of
arbitration for securities disputes); Queen Mary, University of London, 2018
International Arbitration Survey: The Evolution of International Arbitration 29-30
(2019).
141
692) See, e.g., Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524 (U.S. S.Ct.
2019); In re Cox Enter. Inc. Set-Top Cable Television Box Antitrust Litg., 835 F.3d 1195,
1201 (10th Cir. 2016) (federal antitrust claims arbitrable); Lindo v. NCL (Bahamas),
Ltd, 652 F.3d 1257, 1266 (11th Cir. 2011) (international antitrust claim arbitrable); JLM
Indus. v. Stolt-Nielsen SA, 387 F.3d 163, 181 (2d Cir. 2004) (international antitrust
claim arbitrable notwithstanding its asserted complexity); George Fischer Foundry
Sys., Inc. v. Adolph H. Hottinger Maschinenbau GmbH, 55 F.3d 1206, 1210 (6th Cir.
1995) (international antitrust claim arbitrable “even if there is a chance that United
States antitrust statutory rights will not be fully recognized”); In re Auto. Parts
Antitrust Litg., 2017 WL 3579753, at *2, 6 (E.D. Mich.) (federal antitrust claims
arbitrable); Spinelli v. Nat’l Football League, 96 F.Supp.3d 81, 103 (S.D.N.Y. 2015)
(antitrust conspiracy claims arbitrable).
693) See, e.g., U.S. Department of Justice, Press Release (4 Sept. 2019) (“The Department
of Justice filed a civil antitrust lawsuit today seeking to block Novelis Inc.’s
proposed acquisition of Aleris Corporation in order to preserve competition in the
North American market for rolled aluminum sheet for automotive applications,
commonly referred to as aluminum auto body sheet. The Antitrust Division’s
lawsuit alleges that the transaction would combine two of only four North American
producers of aluminum auto body sheet … The Antitrust Division has agreed with
defendants to refer the matter to binding arbitration should certain conditions be
triggered. The arbitration would resolve the issue of product market definition. …
This would mark the first time the Antitrust Division is using this arbitration
authority to resolve a matter”); U.S. Department of Justice, Press Release (9 Mar.
2020) (“The Department of Justice prevailed in a first-of-a-kind arbitration, which
will resolve a civil antitrust lawsuit challenging Novelis’s proposed merger with
Aleris Corporation”).
694) See British American Tobacco Cooperation Agreement, 2010, Art. 12; Imperial
Tobacco Limited Co-Operation Agreement, 2010; Japan Tobacco International
Cooperation Agreement, 2007, Art. 14; Philip Morris International Anti-Contraband
and Anti-Counterfeit Agreement and General Release, 2004, Art. 12.
695) 2011 PCA Optional Rules for Arbitration of Disputes Relating to Outer Space
Activities; Frohloff, Arbitration in Space Disputes, 35(3) Arb. Int’l 309 (2019); Frohloff,
Per arbitrum ad astra, 37(6) J. Int’l Arb. 721 (2020); Rosenberg & Dadwal, The 10 Year
Anniversary of the PCA Outer Space Rules: A Failed Mission or the Next Generation?,
Kluwer Arb. Blog (16 Feb. 2021).
696) See§6.04. Seealso Amro, The Resolution of Consumer Disputes through Online
Arbitration, 82(3) Int’l J. Arb. Med. & Disp. Mgt, 265 (2016); Mechantaf, Balancing
Protection and Autonomy in Consumer Arbitrations: An International Perspective,
78(3) Int’l J. Arb. Med. & Disp. Mgt 232 (2012); Sinha & Gupta, Arbitrability of
Consumer Disputes: Excavating the Hinterland, VII(1) Indian J. Arb. L. 120 (2018).
697) Allemann, Setting the Ground for Corporate Arbitration in Switzerland: Swiss
Parliament Approves New Rules for..., Kluwer Arb. Blog (17 Aug. 2020); Benedettelli,
International Arbitration of Corporate Disputes: A Workable Balance Between Two
Dimensions of Party Autonomy, in J.E. Kalicki & M. Abdel Raouf (eds.), Evolution and
Adaptation: The Future of International Arbitration 985 (2019); Kasolowsky &
Mathews, The Arbitrability of Corporate Disputes after Fulham Football Club v.
Richards: A Decade On, 39(2) J. Int’l Arb. 263 (2022); Lee, Intra-Corporate Dispute
Arbitration and Minority Shareholder Protection: A Corporate Governance
Perspective, 83(1) Int’l J. Arb. Med. & Disp. Mgt 85 (2017); Viscasillas, Substantive
Rules on Arbitrability, Chapter 14 – Arbitrability of (Intra-) Corporate Disputes, in L.
Mistelis & S. Brekoulakis (eds.), Arbitrability: International and Comparative
Perspectives 273 (2009).
698) Blessing, Arbitrability of Intellectual Property Disputes, 12(2) Arb. Int’l 191 (1996);
Legler, Arbitration of Intellectual Property Disputes, 37(2) ASA Bull. 289 (2019); Negm
& Bustanji, Particularity of Arbitration in International Intellectual Property Disputes:
Fitting Square Peg into Round Hole, 14(1) Asian Int’l Arb. J. 88 (2018); van Hooft,
Arbitration and Intellectual Property, in D. De Meulemeester, M. Belingin & B. Kohl
(eds.), Liber Amicorum CEPANI (1969-2019): 50 Years of Solutions 301 (2019); Vicente,
Arbitrability of Intellectual Property Disputes: A Comparative Survey, 31(1) Arb. Int’l
151 (2015).
699) Chan & Rajagopal, To Stay or Not to Stay? A Clash of Arbitration and Insolvency
Regimes, 38(4) J. Int’l Arb. 457 (2021); Fischer & Li, Swiss Supreme Court Clarifies
Arbitrability of Claims in Insolvency Context, Kluwer Arb. Blog (12 July 2021);
Madaus, The (Underdeveloped) Use of Arbitration in Insolvency Proceedings, 37(4) J.
Int’l Arb. 449 (2020).
142
700) Alford, Arbitrating Human Rights, 83 Notre Dame L. Rev. 505 (2008); Choudhury,
Investor Obligations for Human Rights, 35(1) ICSID Rev. 82 (2020); Duggal &
Rangachari, Business, Human Rights, and International Arbitration: Family, Friend or
Foe?, 75 (3) Disp. Resol. J. 83 (2021); El-Hosseny & Devine, Contributory Fault under
International Law: A Gateway for Human Rights in ISDS?, 35(1) ICSID Rev. 105 (2020);
Eliasoph, A Missing Link: International Arbitration and the Ability of Private Actors to
Enforce Human Rights Norms, 10 N. E. J. Int’l & Comp. L. 83 (2004); Joshii & Gurpur,
The Silent Spring of Human Rights in Investment Arbitration: Jurisprudence Constante
through Case-Law Trajectory, 36(4) Arb. Int’l 557 (2020); Zaugg & Bardin, Business
Human Rights – A New Field of Activity for Arbitration?, 39(1) ASA Bull. 109 (2021).
701) Rogers, International Arbitration’s Public Realm, in A. Rovine (ed.), Contemporary
Issues in International Arbitration and Mediation: The Fordham Papers 2010 165
(2011).
702) Born, A New Generation of International Adjudication, 61 Duke L.J. 775 (2012);
Malkawi, Arbitration and the World Trade Organization, 24 Arb. Int’l 173 (2007); Spain,
Integration Matters: Rethinking the Architecture of International Dispute Resolution,
32 U. Pa. Int’l L.J. 1 (2010).
703) For discussion of the circumstances in which parties are likely to favor forum
selection clauses, see G. Born, International Arbitration and Forum Selection
Agreements: Drafting and Enforcing 1-12 (6th ed. 2021); Brekoulakis, The Notion of
the Superiority of Arbitration Agreements over Jurisdiction Agreements: Time to
Abandon It?, 24 J. Int’l Arb. 341 (2007); P. Friedland, Arbitration Clauses for
International Contracts 7-36 (2d ed. 2007).
704) See K. P. Berger, International Economic Arbitration 8 n.62 (1993) (“About ninety
percent of international economic contracts contain an arbitration clause”);
Menkel-Meadow, Are Cross-Cultural Ethics Standards Possible or Desirable in
International Arbitration?, in P. Gauch, P. Pichonnaz & F. Werro (eds.), Mélanges en
l’Honneur de Pierre Tercier 883, 884 n.2 (2008) (“It is widely estimated that 90% of
all international contracts contain arbitration clauses”).
705) See§1.01[A][2]; §1.04[E]; §2.01[A][1].
706) See§2.01[A][1]; §5.01[A]-§5.01[B]; Chapter 8; N. Blackaby et al. (eds.), Redfern and
Hunter on International Arbitration ¶1.08 (6th ed. 2015) (“The practice of resolving
disputes by international commercial arbitration only works because it is held in
place by a complex system of national laws and international treaties”).
707) See Part III; Chapter 26.
708) See§1.01[B][2]-§1.01[B][8].
709) See§1.01[B][4]-§1.01[B][5].
710) See§1.01[B][3].
711) See§1.02.
712) Veeder, The Lawyer’s Duty to Arbitrate in Good Faith, in L. Lévy & V. Veeder (eds.),
Arbitration and Oral Evidence 115, 118 (2004). See also D. Caron & L. Caplan, The
UNCITRAL Arbitration Rules: A Commentary 2 (2d ed. 2013) (“an effective system of
international dispute resolution is indispensable to the growth of more complex
transnational arrangements, and – for the foreseeable future – that system of
resolution is primarily international arbitration”); Myburgh & Paniagua, Does
International Commercial Arbitration Promote Foreign Direct Investment?, 59 J. L. &
Econ. 597 (2016); Paulsson, International Arbitration Is Not Arbitration, 2008:2
Stockholm Int’l Arb. Rev. 1.
713) David L. Threlkeld & Co. v. Metallgesellschaft Ltd, 923 F.2d 245, 248 (2d Cir. 1991).
714) See§1.01[C].
715) See§1.04[A]; §1.04[B][1].
716) See§1.01[C].
717) See§1.01[C]; §1.04.
718) Bilateral treaties relating to international commercial arbitration continue to exist
today. Many countries have entered into a number of friendship, commerce, and
navigation treaties that contain provisions relating to the mutual recognition and
enforcement of arbitration agreements and awards. See§1.04[A][7]. For the most
part, these treaties are of very limited practical import, given the efficacy of
multilateral conventions (and, particularly, the New York Convention).Numerous
states have entered into bilateral investment treaties, which address issues
relating to international arbitration of investment disputes. See§1.04[A][7]. These
treaties are much more significant internationally than bilateral treaties
concerning international commercial arbitration.
719) See Geneva Protocol, 27 L.N.T.S. 158 (1924); Geneva Convention, 92 L.N.T.S. 302 (1929);
§1.01[C]. Other early multilateral treaties included the Montevideo Convention, the
Hague Conventions of 1899 and 1907 and the Bustamante Code. See§1.01[A][5];
§1.01[C].
720) See§1.01[C].
143
721) The standard reference works on the Convention include: G. Gaja, International
Commercial Arbitration: The New York Convention (1978); H. Kronke et al. (eds.),
Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on
the New York Conventi...(2010); U.N., Enforcing Arbitration Awards Under the New
York Convention Experience and Prospects (1999); UNCITRAL, Guide on the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (2016); UNCITRAL,
Report on the Survey Relating to the Legislative Implementation of the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards, U.N. Docs.
A/CN.9/656 & A/CN.9/656/Add.1 (2008); A. van den Berg, The New York Arbitration
Convention of 1958 (1981). See also M. Blessing (ed.), The New York Convention of
1958 (1996); F. Ferrari & F.J. Rosenfeld, Autonomous Versus Domestic Concepts
under the New York Convention (2021); R. Wolff (ed.), New York Convention:
Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June
1958 (2012).
722) New York Convention, 330 U.N.T.S., No. 4739 (1958).
723) Briner, Philosophy and Objective of the Convention, in Enforcing Arbitration Awards
Under the New York Convention: Experience and Prospects, U.N. Sales No. E.99.V.2 9
(1999); Briner & Hamilton, The History and General Purpose of the Convention, in E.
Gaillard & D. Di Pietro (eds.), Enforcement of Arbitration Agreements and
International Arbitral Awards The New York Convention in Practice 3 (2008); Grion &
Zanelato, Historical Aspects of the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards and Perspectives on the Resolution of
International Commercial Disputes, 87 (2) Int’l J. Arb. Med. & Disp. Mgt 153 (2021);
Sanders, The History of the New York Convention, in A. van den Berg (ed.), Improving
the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the
New Yo... 11 (1999).
724) A. van den Berg, The New York Arbitration Convention of 1958 7 (1981) (“although the
Geneva Treaties were undoubtedly an improvement in comparison with the
previous situation, they were still considered inadequate”).
725) ICC, Report and Preliminary Draft Convention Adopted by the Committee on
International Commercial Arbitration at Its Meeting of 13 March 1953, reprinted in
9(1) ICC Ct. Bull. 32 (1998).
726) Id. at 32.
727) A. van den Berg, The New York Arbitration Convention of 1958 6-10, 29-40 (1981).
728) ICC, Report and Preliminary Draft Convention Adopted by the Committee on
International Commercial Arbitration at Its Meeting of 13 March 1953, reprinted in
9(1) ICC Ct. Bull. 32, 32 (1998).
729) ECOSOC, Resolution 520 (XVIII) (1954).
730) ECOSOC, Report of the Committee on the Enforcement of International Arbitral
Awards, U.N. Doc. E/AC.42/4 (1955).
731) In particular, as discussed below, the ECOSOC rejected the concept of a-national
arbitral proceedings and awards, and instead insisted on rooting the arbitral
process in national law (particularly the law of the arbitral seat). See §11.04[A][3].
732) Sanders, The History of the New York Convention, in A. van den Berg (ed.), Improving
the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the
New Yo... 11-12 (1999).
733) A. van den Berg, The New York Arbitration Convention of 1958 8 (1981) (“the
fundamental difference between the ICC Draft Convention of 1953 and the ECOSOC
Draft Convention of 1955 was reconciled by a compromise reached at the
Convention”).
734) Id. at 56.
735) See§1.01[C].
736) A. van den Berg, The New York Arbitration Convention of 1958 12-13 (1981).
737) See§2.01[A][1][a].
738) For a summary of these negotiations, see Grion & Zanelato, Historical Aspects of the
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
and Perspectives on the Resolution of International Commercial Disputes, 87 (2) Int’l
J. Arb. Med. & Disp. Mgt 153 (2021); Sanders, The History of the New York Convention,
in A. van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and
Awards: 40 Years of Application of the New Yo... 11 (1999). For a useful collection of
the travaux preparatoires, see G. Gaja, The New York Convention (1978).
739) New York Convention, Art. XVI.
740) See§1.04[A][1][c][i].
741) See New York Convention, Arts. III-V; §1.04[A][1][c][ii]; §26.03[B][1]. The shift in the
burden of proof was accomplished by Articles III and V, which required the award-
creditor to present only minimal evidence in support of recognition of an award (in
Article III), while specifying only limited grounds, which needed affirmatively to be
proven, that could result in non-recognition (in Article V). See§26.01[A]; §26.03[B][1].
742) See New York Convention, Art. V(1)(d); §1.04[A][1][c]; §11.04[A][3]; §15.02[A].
743) See New York Convention, Art. V(1)(a); §1.04[A][1][c][i].
744) See§1.01[C][2]; §26.03[B][4].
745) ECOSOC, Summary Record of the Twenty-Fifth Meeting of the United Nations
Conference on International Commercial Arbitration, U.N. Doc. E/CONF.26/SR.25, 2
(1958).
144
746) Kaverit Steel & Crane Ltd v. Kone Corp., XIX Y.B. Comm. Arb. 643, 651 (Alberta Ct.
App. 1992) (1994). See also Ecuador v. Chevron Corp., 638 F.3d 384, 393 (2d Cir. 2011)
(federal policy favoring arbitration “‘is even stronger in the context of international
business transactions’ where ‘arbitral agreements promote[] the smooth flow of
international transactions by removing the threats and uncertainty of time-
consuming and expensive litigation’”) (quoting David L. Threlkeld & Co. v.
Metallgesellschaft Ltd, 923 F.2d 245, 248 (2d Cir. 1991)); Park, Neutrality,
Predictability and Economic Cooperation, 12 J. Int’l Arb. 99 (1995).
747) ECOSOC, Summary Record of the Thirteenth Meeting of the United Nations
Conference on International Commercial Arbitration, U.N. Doc. E/CONF.26/SR.13, 3
(1958).
748) See§2.01[A][1][a]; §4.02[A][1]; §4.04[B][2][b]; §5.01[B][2]; §5.05[A]; discussing effect of
the Convention on the recognition and enforcement of international arbitration
agreements.
749) See §11.04[A][3]; §11.05[B][2].
750) The effect of the Convention on the conduct of international arbitral proceedings is
discussed below. See §11.04[A][3].
751) A. van den Berg, The New York Arbitration Convention of 1958 1 (1981).
752) Mustill, Arbitration: History and Background, 6(2) J. Int’l Arb. 43, 49 (1989).
753) Wetter, The Present Status of the International Court of Arbitration of the ICC: An
Appraisal, 1 Am. Rev. Int’l Arb. 91, 93 (1990). See also Yugraneft Corp. v. Rexx Mgt
Corp., [2010] 1 SCR 649, ¶10 (Canadian S.Ct.) (New York Convention is “a great
success”); Graving, Status of the New York Arbitration Convention: Some Gaps in
Coverage But New Acceptances Confirm Its Vitality, 10 ICSID Rev. 1, 3 (1995) (“mortar
of the edifice of international commercial arbitration”); Kerr, Concord and Conflict
in International Arbitration, 13 Arb. Int’l 121, 127 (1997) (“the foundation on which the
whole of the edifice of international arbitration rests”).
754) Schwebel, A Celebration of the United Nations New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, 12 Arb. Int’l 83, 85 (1996).
755) The Convention entered into force on the ninetieth day following the deposit of the
third instrument of ratification or accession. New York Convention, Art. XII(1).
756) UNCITRAL, Status: 1958 Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, available at www.uncitral.org.
757) Prior to 1980, the New York Convention had not been ratified or acceded to by
(among others) Algeria, Argentina, Bahrain, Bangladesh, Bolivia, Burkina Faso,
Cameroon, China, Costa Rica, Guatemala, Guinea, Haiti, Indonesia, Kenya, Laos,
Lebanon, Malaysia, Mali, Mauritania, Mozambique, Nepal, Panama, Paraguay, Peru,
Saudi Arabia, Senegal, Singapore, Turkey, Uruguay, Venezuela, Vietnam and
Zimbabwe. Between 1980 and the present, all of these states acceded to the
Convention.
758) In the United States, historic distrust of arbitration and the domestic debate over
the appropriate scope of the federal treaty power and the authority of the several
states led to an initial recommendation from the U.S. delegation against ratifying
the Convention. Czysak & Sullivan, American Arbitration Law and the UN Convention,
13 Arb. J. 197 (1958); Springer, The United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, 3 Int’l Law. 320 (1969). See also Paulsson,
International Arbitration Is Not Arbitration, 2008:2 Stockholm Int’l Arb. Rev. 1, 20
(U.S. ratification of New York Convention opposed by Heinrich Kronstein, an out-
spoken critic of arbitration, who served as Deputy Legal Adviser) (citing Kronstein,
Business Arbitration: Instrument of Private Government, 54 Yale L.J. 36 (1944)).
759) In 1970, the United States reconsidered its position and acceded to the
Convention. See Message from the President on the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, S. Exec. Doc. E, 90th Cong., 2d Sess. 18
(1968); Quigley, Accession by the United States to the United Nations Convention on
the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049 (1961).
760) See
https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards
/status2 for a list of states that have ratified or acceded to the Convention.
761) See G. Petrochilos, Procedural Law in International Arbitration 16 (2004) (“The states
party to [the New York Convention] constitute a large and representative
geographical, legal-cultural, and economic sample of the international community
…”).
762) In ratifying or acceding to the Convention, many states have attached reservations
that can have significant consequences in private disputes. These reservations
frequently deal with reciprocity and limiting the Convention’s applicability to
disputes arising from “commercial” relations. See§2.03[B][2]; §2.03[G]. Seealso
Reinisch, The New York Convention as An Instrument of International Law, in F.
Ferrari & F.J. Rosenfeld (eds.), Autonomous Versus Domestic Concepts under the
New York Convention1 (2021).
763) It appears clear that the Convention’s terms apply to agreements made prior to
the Convention entering into effect. Fotochrome, Inc. v. Copal Co., 517 F.2d 512, 515
n.3 (2d Cir. 1975) (“the [New York] Convention contains no prospective language and
should be applied retroactively to existing arbitration agreements and awards”).
145
764) See§1.04[B][1][a]. It is instructive to compare the broad statements of principle,
succinctly set forth in the Convention, with the much more detailed provisions of
the UNCITRAL Model Law. See§1.04[B][1][a].
765) See A. van den Berg, The New York Arbitration Convention of 1958 6, 54-55, 168-69,
262-63, 274, 357-58 (1981). See also GE Energy Power Conversion France SAS, Corp. v.
Outokumpu Stainless USA, LLC, 140 S.Ct. 1637, 1644 (U.S. S.Ct. 2020) (New York
Convention “focuses almost entirely on arbitral awards”).
766) Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (U.S. S.Ct. 1974) (emphasis
added). See also Smith/Enron Cogeneration LP v. Smith Cogeneration Int’l, Inc., 198
F.3d 88, 96 (2d Cir. 1999) (“goal of simplifying and unifying international arbitration
law”); D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 1 (2d ed.
2013) (“In essence, the Convention allows private parties to use the coercive power
of national courts to implement private dispute settlement arrangements”).
767) See§4.04[B][2][b][ii].
768) See §11.04[A][3][b].
769) A. van den Berg, The New York Arbitration Convention of 1958 1, 6, 54-55, 168-69, 262-
63, 274, 357-58 (1981). See also Lindo v. NCL (Bahamas), Ltd, 652 F.3d 1257, 1285 (11th
Cir. 2011) (“These precedents [including Scherk] reveal the Supreme Court’s and our
Circuit’s recognition of the reciprocal nature of the Convention and the need for
uniformity in the enforcement of arbitration agreements”); Certain Underwriters at
Lloyd’s London v. Argonaut Ins., 500 F.3d 571, 580 (7th Cir. 2007) (“uniformity in
determining the manner by which agreements to arbitrate will be enforced is a
critical objective of the Convention”); Shamsi v. Levin, 2017 WL 7803806, at *5 (S.D.
Fla.) (“the ‘principal purpose’ of the Convention was to ‘foster the adoption of
standards which can be uniformly applied on an international scale’ to agreements
to arbitrate”); IPCO (Nigeria) Ltd v. Nigerian Nat’l Petroleum Corp. [2008] EWCA Civ
1157, ¶19 (English Ct. App.) (“we were however referred to an Austrian case, which
the judge relied on, which is of some relevance given the importance of uniformity
in the interpretation of international conventions”); Hebei Imp. & Exp. Corp. v.
Polytek Eng’g Co., XXIV Y.B. Comm. Arb. 652, 675 (H.K. Ct. Fin. App. 1999) (1999)
(“When a number of states enter into a treaty to enforce each other’s arbitral
awards, it stands to reason that they would do so in the realisation that they, or
some of them, will very likely have very different outlooks in regard to internal
matters. And they would hardly intend, when entering into the treaty or later when
incorporating it into their domestic law, that these differences should be allowed
to operate so as to undermine the broad uniformity which must be the obvious aim
of such a treaty and the domestic laws incorporating it”); IMC Aviation Solutions Pty
Ltd v. Altain Khuder LLC, [2011] VSCA 248, ¶35 (Victoria Ct. App.); Judgment of 26 April
1980, [1981] ECC 183, 186 (Genoa Corte di Appello) (“it is ‘necessary to depart from
the attitudes of the internal system’ in interpreting the basic core of the above
Convention, entered into to satisfy the need for greater expedition in decisions
concerning international trade relations and uniformity of substantive law and its
interpretation, already manifested by the growing concentration of disputes
before existing arbitral institutions”).
770) Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 SCR 649, ¶9 (Canadian S.Ct.) (emphasis
added). See also Gas Auth. of India, Ltd v. SPIE-CAPAG, SA, XXIII Y.B. Comm. Arb. 688,
694 (Delhi High Ct. 1993) (1998) (“New York Convention lays down one uniform code”
for recognition of international arbitration agreements; “common yard stick …
generates confidence in the parties, who may be unfamiliar with the diverse laws
prevailing in different countries with which they are trading”).
771) New York Convention, Art. II(1). See§2.01[A][1][a]; §5.01[B][2]; §5.06[B][1].
772) New York Convention, Art. II(3).
773) Id. at Arts. III, V. “Recognition” of an arbitral award refers to giving preclusive effect
to the award, usually to bar relitigation of the claims that were arbitrated;
“enforcement” refers to the invocation of coercive judicial remedies to fulfil the
award. See Part III; §22.01[B].
774) See§12.01[B][2].
775) Int’l Ins. Co. v. Caja Nacional De Ahorro y Seguro, 293 F.3d 392, 399 (7th Cir. 2002).
146
776) See, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (U.S. S.Ct. 1974); Comm’n
Imp. Exp. SA v. Congo, 751 F.3d 321, 324 (D.C. Cir. 2014) (“The Convention is a
multilateral treaty that, with exceptions, obligates participating countries to honor
international commercial arbitration agreements and to recognize and enforce
arbitral awards rendered pursuant to such agreements”); Ecuador v. Chevron Corp.,
638 F.3d 384, 393 (2d Cir. 2011) (federal policy favoring arbitration “is even stronger
in the context of international business transactions”); Polimaster Ltd v. RAE Sys.,
Inc., 623 F.3d 832, 841 (9th Cir. 2010) (“New York Convention was enacted to promote
the enforceability of international arbitration agreements”); Yiwu Bochi Imp. & Exp.
Co. v. Wilson Star Corp., 2019 WL 1613299, at *1 (S.D.N.Y.) (“the primary purpose of
the New York Convention is to efficiently recognize and enforce commercial
arbitration agreements in international contracts while unifying the standards by
which these agreements are observed”); Hispasat, SA v. Bantel Telecom, LLC, 2017
WL 8896241, at *3 (S.D. Fla.) (“it is well-accepted that the Convention manifests a
general pro-enforcement bias”); Judgment of 20 January 1987, Bomar Oil NV v.
Entreprise Tunisienne d’Activités Pétrolières, 1987 Rev. Arb. 482, 486 (Paris Cour
d’Appel) (“facilitate dispute resolution by way of international commercial
arbitration”); Judgment of 7 February 1984, Tradax Exp. SA v. Amoco Iran Oil Co., DFT
110 II 54, ¶10 (Swiss Fed. Trib.) (1986) (“The purpose of the Convention is to
facilitate the resolution of disputes through arbitration …”); Judgment of 30
September 2010, 2011 NJW-RR 569, 570 (German Bundesgerichtshof) (“With the New
York Convention, the enforcement of arbitration agreements should be facilitated
internationally”); Automatic Sys. Inc. v. Bracknell Corp., [1994] 18 OR3d 257, 264
(Ontario Ct. App.) (“The purpose of the United Nations conventions and the
legislation adopting them is to ensure that the method of resolving disputes, in the
forum and according to the rules chosen by the parties, is respected”); IMC Aviation
Solutions Pty Ltd v. Altain Khuder LLC, [2011] VSCA 248, ¶45 n.16 (Victoria Ct. App.)
(“The New York Convention is widely recognised in international arbitration circles
as having a ‘pro-enforcement’ policy”); Renusagar Power Co. v. Gen. Elec. Co., XX Y.B.
Comm. Arb. 681, 685 (Indian S.Ct. 1993) (1995) (“The purpose of this Convention was
to widen the scope of the Geneva Protocol of 1923 …”). See also§2.01[A][1][a].
777) See, e.g., Admart AG v. Stephen & Mary Birch Found., Inc., 457 F.3d 302, 307 (3d Cir.
2006) (“Consistent with the policy of favoring enforcement of foreign arbitral
awards, parties have limited defenses to recognition and enforcement of an award
as set out in Article V of the Convention”); Bergesen v. Joseph Muller Corp., 710 F.2d
928, 932 (2d Cir. 1983) (“intended purpose” of Convention is “to encourage the
recognition and enforcement of international arbitration awards”); Parsons &
Whittemore Overseas Co. v. Generale de l’Industrie du Papier, 508 F.2d 969, 973 (2d
Cir. 1974) (Convention’s “basic thrust was to liberalize procedures for enforcing
foreign arbitral awards”); Smagin v. Yegiazaryan, 2016 WL 10704874, at *1 (C.D. Cal.)
(“The New York Convention manifests ‘a general pro-enforcement bias’ for foreign
arbitration awards”); Dowans Holdings SA v. Tanzania Elec. Supply Co. [2011] EWHC
1957, ¶105 (Comm) (English High Ct.) (“It is common ground that the intention of the
New York Convention was to make enforcement of a Convention award more
straightforward, and in particular to remove the previous necessity for a double
exequatur …”); Gater Assets Ltd v. Nak Naftogaz Ukrainy [2007] EWHC 697, ¶29
(Comm) (English High Ct.) (“policy of the Arbitration Act and the New York
Convention to give effect to Convention awards by speedy and effective
enforcement”); Hainan Mach. Imp. & Exp. Corp. v. Donald & McArthy Pte Ltd, XXII Y.B.
Comm. Arb. 771, 778 (Singapore High Ct. 1995) (1997) (“principle of comity of nations
requires that the awards of foreign arbitration tribunals be given due deference
and be enforced unless exceptional circumstances exist”); Bharat Aluminium v.
Kaiser Aluminium, C.A. No. 7019/2005, ¶149 (Indian S.Ct. 2012) (“The underlying
motivation of the New York Convention was to reduce the hurdles and produce a
uniform, simple and speedy system for enforcement of foreign arbitral award.
Therefore [Article V(1)(e) of the Convention should be interpreted in the manner
that] seems to be accepted by the commentators and the courts in different
jurisdictions”); Judgment of 3 June 1988, XV Y.B. Comm. Arb. 498, 499 (Florence Corte
di Appello) (1990) (“The New York Convention clearly aimed at making the
enforcement of foreign arbitral awards easier”). See also§26.03[B].
778) New York Convention, Art. II(1). The formal requirements that the Convention
imposes with regard to international arbitration agreements are addressed in
Article II(2) of the Convention. See§5.02[A][2][a].
779) New York Convention, Art. II(3).
780) See§2.03[C][1][a]. The obligations imposed by Article II may be subject to
reciprocity exceptions, discussed in detail below. See§2.03[G].
781) See§2.01[A][1][a]; §5.01[B][2].
782) See§5.01[B][2]; §8.02[A][1].
147
783) Bautista v. Star Cruises, 396 F.3d 1289, 1302 (11th Cir. 2005). See also GE Energy Power
Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637, 1646
(U.S. S.Ct. 2020) (“the drafters [of the New York Convention] sought to impose
baseline requirements on contracting states”); Suazo v. NCL (Bahamas), Ltd, 822
F.3d 543, 547 (11th Cir. 2016) (“‘Domestic defenses to arbitration are transferrable to
a Convention Act case only if they fit within the limited scope of defenses
[contained in Articles II and V of the Convention]. Such an approach is required by
the unique circumstances of foreign arbitration …’”) (quoting Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 629 (U.S. S.Ct. 1985)); Aggarao v.
MOL Ship Mgt Co., 675 F.3d 355, 370-71 (4th Cir. 2012) (Convention “‘expressly
compels the federal courts to enforce arbitration agreements,’ notwithstanding
jurisdiction conferred on such courts to adjudicate Seaman’s Wage Act claims”)
(quoting Rogers v. Royal Caribbean Cruise Line, 547 F.3d 1148, 1157 (9th Cir. 2008));
Francisco v. Stolt Achievement MT, 293 F.3d 270, 273-74 (5th Cir. 2002); Ledee v.
Ceramiche Ragno, 684 F.2d 184, 187 (1st Cir. 1982); §5.01[B][2].
784) See§4.02[A][1].
785) See§4.04[B][2][b].
786) See§4.04[A][1][b].
787) See§4.04[A][3].
788) See§4.04[A][1][b]; §5.06[B][1][a]. Article II(1) also provides that an arbitration
agreement need not be recognized if it “concern[s] a subject matter not capable of
settlement by arbitration.” New York Convention, Art. II(1). This exception deals
with the “nonarbitrability” or “objective arbitrability” doctrine and is also
discussed below. See§6.02[A]et seq.
789) See§5.06[B][1].
790) See§5.06[B][1][a]; §5.02[D][1]-§5.02[D][3] & §5.02[D][5]; GE Energy Power Conversion
France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637, 1646 (U.S. S.Ct.
2020) (“‘the delegates to the [New York Conference] voiced frequent concern that
courts of signatory countries … should not be permitted to decline enforcement of
such agreements on the basis of parochial views of their desirability or in a manner
that would diminish the mutually binding nature of the agreements’”) (quoting
Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (U.S. S.Ct. 1976)).
791) See§5.06[B][1][a]et seq.
792) Bautista v. Star Cruises, 396 F.3d 1289, 1302 (11th Cir. 2005) (quoting DiMercurio v.
Sphere Drake Ins. plc, 202 F.3d 71, 79 (1st Cir. 2000)). See§5.06[B][c].
793) See§15.02[A].
794) See§15.02[B].
795) New York Convention, Art. III (emphasis added).
796) See§26.01[A][1].
797) See§22.02[E][1][a].
798) New York Convention, Art. V(1).
799) See§26.05[C][12][a].
148
800) See, e.g., Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 405 (2d Cir. 2009)
(“a district court, upon petition by a party to a qualifying arbitral award, ‘shall
confirm the award unless it finds one of the grounds for refusal or deferral of
recognition or enforcement of the award specified in the … Convention’”) (quoting
U.S. FAA, 9 U.S.C. §207); Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd,
556 F.3d 459, 469 (6th Cir. 2009) (“‘there is nothing discretionary about Article II(3)
of the Convention’”) (quoting McCreary Tire & Rubber Co. v. CEAT SpA, 501 F.2d 1032,
1037 (3d Cir. 1974)); Admart AG v. Stephen & Mary Birch Found., Inc., 457 F.3d 302, 307
(3d Cir. 2006) (“Under the Convention, a district court’s role is limited – it must
confirm the award unless one of the grounds for refusal specified in the Convention
applies to the underlying award”); InterGen NV v. Grina, 344 F.3d 134, 141 (1st Cir.
2003) (“Given this regime, it clearly appears that enforcing arbitration clauses
under the New York Convention is an obligation, not a matter committed to district
court discretion”); Midmark Corp. v. Janak Healthcare Pvt Ltd, 2014 WL 1513009, at *8
(S.D. Ohio) (“[T]here is nothing discretionary about Article II(3) of the Convention.
The language of the treaty and its statutory incorporation provide for no
exceptions. When any party seeks arbitration, if the agreement falls within the
convention, we must compel the arbitration unless the agreement is ‘null and void,
inoperative, or incapable of being performed’”); Sabbagh v. Khoury [2019] EWCA Civ
1219, ¶52 (English Ct. App.) (“Article II(3) requires the court of a contracting state, at
the request of a party, to refer the parties to arbitration”); Ekran OAO v. Magneco
Metrel UK Ltd [2017] EWHC 2208 (Comm) (English High Ct.) (“The grounds on which
recognition and/or enforcement may be refused are set out in §103, which
implements Art. V of the Convention”); Rosseel NV v. Oriental Commercial &
Shipping (U.K.) Ltd [1991] 2 Lloyd’s Rep 625, 628 (Comm) (English High Ct.) (“If none of
the grounds for refusal are present, the award ‘shall’ be enforced”); Hi-Fert Pty Ltd
v. Kiukiang Maritime Carriers Inc., [1998] 86 FCR 374, 393 (Australian Fed. Ct.) (“Court
must stay the proceedings and refer the parties to arbitration”); Imbar Maratima SA
v. Gabon, XV Y.B. Comm. Arb. 436, 439 (Cayman Islands Grand Ct. 1989) (1990) (“It is
plain upon the wording of subsect. (1) that enforcement of a Convention award duly
evidenced is mandatory upon this court except in one or other of the
circumstances detailed in [the implementing legislation for Article V of the
Convention]”).
801) See, e.g., §26.03[B][5]; Encyclopaedia Universalis SA v. Encyclopaedia Britannica, Inc.,
403 F.3d 85, 90 (2d Cir. 2005) (“district court is strictly limited to the seven defenses
under the New York Convention when considering whether to confirm a foreign
award”); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara, 364 F.3d 274, 288 (5th Cir. 2004) (“courts in countries of secondary
jurisdiction may refuse enforcement only on the grounds specified in Article V”);
Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Pakistan
[2010] UKSC 46, ¶101 (U.K. S.Ct.) (“[Article V] grounds are exhaustive”); Judgment of
28 July 2010, DFT 4A_233/2010, 8 (Swiss Fed. Trib.) (“Article V … exhaustively sets
forth the grounds on which recognition and enforcement of a foreign arbitral award
can be refused”); Judgment of 25 January 1996, Inter-Arab Inv. Guarantee Corp. v.
Banque Arabe et Internationale d’Investissements, XXII Y.B. Comm. Arb. 643, 647
(Brussels Tribunal Première Instance) (1997) (“Article V … enumerates limitatively
the grounds for refusal of recognition and enforcement of an award”); Karaha Bodas
Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXXIV Y.B.
Comm. Arb. 577, 580-81 (H.K. Ct. Fin. App. 2008) (2009) (“Both the Ordinance and the
Convention give effect to the principles of finality and comity by prohibiting
refusal of enforcement of a Convention award except in the cases for which they
provide …”); Zeevi Holdings Ltd v. Bulgaria, XXXIV Y.B. Comm. Arb. 632, 635 (2009)
(Jerusalem Dist. Ct. 2009) (“recognition and enforcement of a foreign award … can
be opposed on limited grounds listed in Article V of the Convention”). For an article
that questions the exhaustiveness of Article V, see Lucas, Rules of Procedure and the
Blurred Lines of the 1958 New York Convention, 86(3) Int’l J. Arb. Med. & Disp. Mgt 317
(2020).
149
802) See, e.g., Polimaster Ltd v. RAE Sys., Inc., 623 F.3d 832, 836 (9th Cir. 2010) (“New York
Convention defenses are interpreted narrowly”); Ario v. Underwriting Members of
Syndicate Lloyds for the 1998 Year of Account, 618 F.3d 277, 290-91 (3d Cir. 2010)
(“Article V … sets forth the grounds for refusal, and courts have strictly applied the
Article V defenses and generally view[ed] them narrowly”); China Minmetals
Materials Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 283 (3d Cir. 2003) (“generally
have construed those exceptions narrowly”); Int’l Trading & Indus. Inv. Co. v.
DynCorp Aerospace Tech., 763 F.Supp.2d 12, 28 (D.D.C. 2011) (“Such a narrow reading
of the New York Convention comports with the context in which the Convention was
enacted, as a broad construction of the Convention would do nothing more than
erect additional hurdles to confirmation of arbitral awards, which in turn would
contravene the ‘principal purpose’ of the Convention, i.e., ‘to encourage the
recognition and enforcement of commercial arbitration agreements in
international contracts’”); AO Techsnabexport (Russia) v. Globe Nuclear Servs. &
Supply, Ltd (US), 656 F.Supp.2d 550, 555 (D. Md. 2009) (“The party opposing
confirmation bears the heavy burden of proving the applicability of the [New York]
Convention’s enumerated defenses”); Ekran OAO v. Magneco Metrel UK Ltd [2017]
EWHC 2208 (Comm) (English High Ct.) (“the onus of proof being on the party raising
it as a ground of refusal of enforcement of the award”); FG Hemisphere Assocs. v.
Congo, [2008] HKCFI 906, ¶11 (H.K. Ct. First Inst.) (“The regime under the [New York
Convention] is extremely onerous and a heavy burden is placed upon any party
seeking to set aside an award”).
803) See§26.03[B][6]. See alsoGE Energy Power Conversion France SAS, Corp. v.
Outokumpu Stainless USA, LLC, 140 S.Ct. 1637, 1645 (U.S. S.Ct. 2020) (Article II “does
not restrict contracting [S]tates from applying domestic law to refer parties to
arbitration in other circumstances” than specified in Convention: “Article II(3)
provides that arbitration agreements must be enforced in certain circumstances,
but it does not prevent the application of domestic laws that are more generous in
enforcing arbitration agreements”).
804) See§8.03[C]; §15.02[A].
805) See§11.05[B][2][b].
806) New York Convention, Art. V(1)(d). See§15.04[A][1][c].
807) See §11.04[A][3][b].
808) See§26.05[C][3].
809) See§1.04[B]. As discussed below, the better view is that Article II of the New York
Convention, as well as Articles III, IV and V of the Convention, are “self-executing”
and directly applicable in national courts. See§1.04[B][1][b]-§1.04[B][1][e] below.
810) See§1.04[B][1]-§1.04[B][2].
811) See§1.04[B][1].
812) See§1.04[A][1], §1.04[B][1].
813) Nine years were required to bring implementing legislation into force in Indonesia.
In Colombia, similar delays occurred, including Supreme Court litigation over the
validity of the President’s signature on the relevant enactment. For a good
overview, see Hermann, Implementing Legislation: The IBA/UNCITRAL Project, in M.
Blessing (ed.), The New York Convention of 1958 135 (1996); Paulsson, The New York
Convention in International Practice: Problems of Assimilation, in M. Blessing (ed.),
The New York Convention of 1958 100 (1996).
814) For example, Belize declared upon independence in 1981 that it would
“provisionally” apply the Convention, while Indonesia imposed requirements that
made recognition of foreign awards unlikely and Vietnam imposed substantive
review requirements with regard to recognition of foreign awards. Graving, Status
of the New York Arbitration Convention: Some Gaps in Coverage but New Acceptances
Confirm Its Vitality, 10 ICSID Rev. 1 (1995); Moser, The Recognition and Enforcement of
Foreign Arbitral Awards: A Survey of the Asia-Pacific Region, 5(2) ICC Ct. Bull. 20
(1994); Paulsson, The New York Convention in International Practice: Problems of
Assimilation, in M. Blessing (ed.), The New York Convention of 1958 100-02 (1996).
815) For example, Singapore imposed restrictions on representation in international
arbitrations by foreign attorneys (later repealed) (see§21.01[D]), U.S. courts have
failed to give effect to the parties’ selection of the arbitral seat and to enforce
foreign arbitral awards (on forum non conveniens grounds) (see§14.04[B][1]),
Chinese courts have refused to recognize agreements to ad hoc arbitration
(see§5.02[D][5]), and various courts have stayed arbitral proceedings pending
resolution of related litigation (see§8.04[A]).
816) See§1.04[A][1][c].
817) Early experience was more mixed. Sanders, Court Decisions on the New York
Convention 1958, Consolidated Commentary, IV Y.B. Comm. Arb. 231 (1979); Sanders,
Court Decisions on the New York Convention 1958, Commentary, II Y.B. Comm. Arb.
254 (1977); Sanders, Court Decisions on the New York Convention 1958, Commentary,
I Y.B. Comm. Arb. 207 (1976); van den Berg, The New York Convention: Its Intended
Effects, Its Interpretation, Salient Problem Areas, in M. Blessing (ed.), The New York
Convention of 1958 25, 25-26 (1996).
818) As discussed below, there are a number of sources for national court decisions and
arbitral awards dealing with international arbitration. See§1.06.
150
819) Kaplan, A Case by Case Examination of Whether National Courts Apply Different
Standards When Assisting Arbitral Proceedings and Enforcing Awards in International
Cases as Contrasting with Domestic Disputes, in A. van den Berg (ed.), International
Dispute Resolution: Towards An International Arbitration Culture 187 (1996).
820) See, e.g., GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA,
LLC, 140 S.Ct. 1637 (U.S. S.Ct. 2020) (citing Peruvian legislation and international
authority); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara, 364 F.3d 274 (5th Cir. 2004) (citing English, Hong Kong, Swedish, Swiss and
other authorities); Europcar Italia, SpA v. Maiellano Tours, Inc., 156 F.3d 310, 314 (2d
Cir. 1998) (reviewing Italian and German court decisions to determine if awards
rendered under “arbitrato irrituale” were enforceable under Convention); Ministry of
Defense of Iran v. Gould Inc., 887 F.2d 1357, 1364 (9th Cir. 1989) (citing English
authority); Knight & Kinde v. Rainstorm Pictures Inc. [2014] EWCA Civ 356, ¶¶37, 39-
41 (English Ct. App.) (citing English, Swiss, German and U.S. authority and guidance
from arbitration institutions); Lesotho Highlands Dev. Auth. v. Impregilo SpA [2005]
UKHL 43, ¶30 (House of Lords) (citing U.S. authority); Fiona Trust & Holding Corp. v.
Privalov [2007] 1 All ER 891 (Comm) (English Ct. App.) (citing U.S. and German
authority), aff’d, [2007] UKHL 40 (House of Lords); IPCO (Nigeria) Ltd v. Nigerian Nat’l
Petroleum Corp. [2008] EWCA Civ 1157, ¶19 (English Ct. App.) (citing Austrian
authority); TMR Energy Ltd v. State Prop. Fund of Ukraine, XXIX Y.B. Comm. Arb. 607,
630 (Canadian Fed. Ct. 2003) (2004) (citing English authority); Grand Pac. Holdings
Ltd v. Pac. China Holdings Ltd, [2012] 4 HKLRD 1, ¶¶36-37 (H.K. Ct. App.) (citing
Canadian and English authorities); Congo v. FG Hemisphere Assocs. LLC, [2011] HKEC
747, ¶¶155-64 (H.K. Ct. App.) (citing U.S., English, French and Canadian authority);
Hebei Imp. & Exp. Corp. v. Polytek Eng’g Co., XXIV Y.B. Comm. Arb. 652, 664-66, 668,
676 (H.K. Ct. Fin. App. 1999) (1999) (citing English, German, Swiss, U.S. and Indian
authorities); Hyundai Eng’g & Steel Indus. Co. Ltd v. Alfasi Steel Constrs., [2018] FCA
1054 (Australian Fed. Ct.) (citing English authorities); Uganda Telecom Ltd v. Hi-Tech
Telecom Pty Ltd (No 2), [2011] FCA 206, ¶13 (Australian Fed. Ct.) (citing English
authority); IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC, [2011] VSCA 248,
¶¶43, 174 et seq. (Victoria Ct. App.) (citing U.S., English, Irish, Hong Kong and
Singapore authority).
821) See, e.g., Moore v. Seven Seas Cruises S. de RI, LLC, 2019 WL 3083397 (C.D. Fla.)
(“Concerns of international comity, respect for the capacities of foreign and
transnational tribunals, and sensitivity to the need of the international
commercial system for predictability in the resolution of disputes require that we
enforce the parties’ agreement”); Taurus Petroleum Ltd v. State Oil Mktg Co. of
Ministry of Oil of Iraq [2018] 1 All ER 1005, ¶54 (U.K. S.Ct.) (“Both the international
plane, through the New York Convention … and the UNCITRAL Model Law and Rules,
and the domestic plane, through the Arbitration Act 1996, evince a clear policy to
ensure the efficient recognition and enforcement of arbitration awards”); Stati v.
Kazakhstan [2019] EWHC 1715, ¶35 (Comm) (English High Ct.) (purpose of New York
Convention is to permit enforcement in multiple jurisdictions, which is proper and
not forum shopping); Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 SCR 649, ¶9
(Canadian S.Ct.) (“The purpose of the Convention is to facilitate the cross-border
recognition and enforcement of arbitral awards by establishing a single, uniform
set of rules that apply worldwide”); Wires Jolley LLP v. Wong, 2010 BCSC 3912, ¶26
(B.C. Sup. Ct.) (citing English authority); Judgment of 20 March 2019, Belgorkhimprom
v. Koca Inșaat Sanayi Ihracat Anonim Șirketi, Case No. T5437-17, 1, 7 (Swedish S.Ct.)
(“The principles of the convention, which serve the purpose of ensuring uniform
recognition of arbitration agreements and to facilitate the enforcement of arbitral
awards …”); Bharat Aluminium v. Kaiser Aluminium, C.A. No. 7019/2005, ¶¶94, 128,
142, 151, 152 (Indian S.Ct. 2012) (citing U.S., English and Hong Kong authorities);
Universal Tractor Holding LLC v. Escorts Ltd, [2012] Ex. P. 372/2010, ¶30 (Delhi High
Ct.) (citing U.S. and English authorities); Gas Auth. of India, Ltd v. SPIE-CAPAG SA,
XXIII Y.B. Comm. Arb. 688, 694 (Delhi High Ct. 1993) (1998) (citing U.S. authority);
Brostrom Tankers AB v. Factorias Vulcano SA, XXX Y.B. Comm. Arb. 591, 596-97
(Dublin High Ct. 2004) (2005) (citing U.S. authority); Attorney Gen. v. Mobil Oil N.Z.,
Ltd, [1989] 2 NZLR 649, 668 (Wellington High Ct.) (although U.S. judicial decisions
reflect “United States judicial policy towards international investments and
contracts … such principles are appropriate even in this small country as
international trade and commercial relationships are of critical importance”);
Judgment of 28 April 1999, Attorney Gen. of Kenya v. Bank für Arbeit und Wirtschaft
AG, XXV Y.B. Comm. Arb. 692, 704 et seq. (Cyprus S.Ct.) (2000).
822) Bharat Aluminium v. Kaiser Aluminium, C.A. No. 7019/2005, ¶150 (Indian S.Ct. 2012).
See§1.04[A][1][a].
823) IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC, [2011] VSCA 248, ¶35 (Victoria Ct.
App.). See also Kaplan, A Case by Case Examination of Whether National Courts Apply
Different Standards When Assisting Arbitral Proceedings and Enforcing Awards in
International Cases as Contrasting with Domestic Disputes, in A. van den Berg (ed.),
International Dispute Resolution: Towards An International Arbitration Culture 187
(1996) (“There appears to be much more cross-referencing of judicial decisions
involving international arbitration cases than there is in any other area of the
law”).
824) See§1.04[B][1][a].
151
825) The status of the Convention in the United States is discussed in detail below.
See§1.04[B][1][e].
826) See §4.02[A][1][b].See also Born, The New York Convention: A Self-Executing Treaty,
40 Mich. J. Int’l L. 115 (2018); Ritter, Disputing Arbitration Clauses in International
Insurance Agreements: Problems with the Self-Execution Framework, 3 Pace Int’l L.
Rev. 40 (2012); Strong, Monism and Dualism in International Commercial Arbitration:
Overcoming Barriers to Consistent Application of Principles of Public International
Law, in M. Novakovic (ed.), Basic Concepts in Public International Law: Monism &
Dualism 547 (2013).
827) See, e.g., Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, 587 F.3d 714, 732-37
(5th Cir. 2009) (Clement, J., concurring); Luna Music, LLC v. Executive Ins. Servs., Inc.,
2020 WL 855954, at *3 (D.V.I.) (“Although the Third Circuit has not specifically
addressed whether [Article II(3)] of the Convention is subject to preemption, the
Court finds that use of the word ‘shall’ is indicative of a self-executing treaty
provision”); Judgment of 7 February 1984, DFT 110 II 54 (Swiss Fed. Trib.) (Article 2 of
New York Convention is directly applicable in Swiss courts); Judgment of 8 October
2008, XXXIV Y.B. Comm. Arb. 644, 647 (Italian Corte di Cassazione) (2009) (“The
Convention provisions … create a fully autonomous micro-system, either because
treaty provisions (in respect of both the requirements for enforcement of the
foreign award and the grounds to oppose enforcement) prevail over the provision
in the [Italian] Code of Civil Procedure, or because of the Convention’s
completeness and self-sufficiency”). See also UNCITRAL, Report on the Survey
Relating to the Legislative Implementation of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, U.N. Doc. A/CN.9/656, ¶¶8 et seq. (2008).
828) See, e.g., Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd, 556 F.3d 459,
469 (6th Cir. 2009) (“nothing discretionary about Article II(3)”); InterGen NV v. Grina,
344 F.3d 134, 141 (1st Cir. 2003) (“enforcing arbitration clauses under the New York
Convention is an obligation, not a matter committed to district court discretion”);
Smith/Enron Cogeneration LP v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 93 (2d Cir.
1999) (“courts of a signatory to the Convention should abide by its goal of enforcing
international agreements to arbitrate disputes”); The Rena K [1979] QB 377, 393 (QB)
(English High Ct.) (“Section 1 of the Arbitration Act 1975, giving effect to [Article II(3)
of the New York Convention], compels the recognition and enforcement of
convention (i.e., non-domestic) arbitration agreements”); Hi-Fert Pty Ltd v. Kiukiang
Maritime Carriers Inc., 86 FCR 374, 393 (Australian Fed. Ct. 1998) (“Court must stay the
proceedings and refer the parties to arbitration”). See also§5.01[B][2]; §8.03[C][1].
829) New York Convention, Art. II(1) (“Each Contracting State shall recognize an
agreement …”) (emphasis added), Art. II(3) (“The court of a Contracting State … shall
… refer the parties to arbitration …”) (emphasis added).
830) Article II(1) is not materially different in requiring “Contracting States” to
“recognize” arbitration agreements. “Recognition” is an action characteristically
and necessarily performed by national courts, where dispute resolution
agreements are invoked and where Article II(3)’s enforcement mechanism
expressly applies.
831) Restatement (Fourth) Foreign Relations Law of the United States §310 Reporters’
Note 4 (2018) (“courts focus on whether a treaty provision is appropriate for direct
judicial application”), Reporters’ Note 5 (courts “will consider whether the treaty
provision is sufficiently precise or obligatory to be suitable for direct application
by the judiciary”).
832) The language of arbitration statutes implementing the Convention in Contracting
States where treaties are not self-executing repeat virtually verbatim the text of
Article II, adding nothing to the Convention’s terms. UNCITRAL Model Law, Arts. 7, 8.
See; Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J. Int’l L. 115,
138-39 (2018).
833) New York Convention, Art. III (emphasis added). Article III goes on to provide that
there “shall” not be imposed more onerous conditions or fees for foreign awards
than for domestic awards.
834) Id. at Art. V.
835) Id. at Art. III.
836) Id. at Art. IV.
837) UNCITRAL Model Law, Arts. 35-36.
838) See§1.04[A][1][c].
839) A. van den Berg, The New York Arbitration Convention of 1958 123 (1981).
840) U.N., Fiftieth Anniversary of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, Done at New York on 10 June 1958, U.N. Doc. A/RES/62/65,
at 1-2 (2007) (“Emphasizing the necessity for further national efforts and enhanced
international cooperation to achieve universal adherence to the Convention and
its uniform interpretation and effective implementation, with a view to fully
realizing the objectives of the Convention … Requests the Secretary-General to
increase efforts to promote wider adherence to the Convention and its uniform
interpretation and effective implementation”) (emphasis in original).
841) See§1.04[A][1][c].
842) UNCITRAL, Report on the Survey Relating to the Legislative Implementation of the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, U.N. Doc.
A/CN.9/656, ¶¶8 et seq. (2008).
152
843) Id. at ¶10 (emphasis added). As discussed below, that is also the position of the
U.S. Government. See §1.04[A][1][e].The UNCITRAL Secretariat’s report did not
further specify the number of Contracting States that regard the Convention as
directly applicable in national courts. The Secretariat also noted that “[f]or a
number of other States, the adoption of an implementing legislation was required
for the Convention to gain the force of law in their internal legal order.” Id. at ¶11.
844) Judgment of 8 October 2008, XXXIV Y.B. Comm. Arb. 644, 647 (Italian Corte di
Cassazione) (2009) (emphasis added).
845) See FirstLink Invs. Corp. v. GT Payment Pte Ltd [2014] SGHCR 12, ¶19 (Singapore High
Ct.) (“Article II(3) of the New York Convention … may be considered a self-executing
provision which prescribes substantive rules of international law applicable to the
formation and validity of [an] international arbitration agreement”) (emphasis in
original).
846) See, e.g., Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, London, 587 F.3d
714, 737 (5th Cir. 2009) (Clement, J., concurring); Judgment of 7 February 1984, DFT 110
II 54 (Swiss Fed. Trib.) (Article II of Convention is directly applicable in Swiss
courts); Geisinger, Implementing the New York Convention in Switzerland, 25 J. Int’l
Arb. 691, 693 (2008) (“[N]o implementing legislation was necessary for the New York
Convention to come into force in Switzerland. The New York Convention is thus
applied as a self-executing treaty in the Swiss legal system”); Taniguchi &
Nakamura, Japanese Court Decisions on Article V of the New York Convention, 25 J.
Int’l Arb. 857, 857 (2008) (Japanese courts directly apply Convention as self-
executing under Japanese law).
847) Cf. Carbonneau, The Reception of Arbitration in United States Law, 40 Me. L. Rev. 262,
272 (1988) (New York Convention is “universal charter” of international commercial
arbitration); Landau, The Requirement of A Written Form for An Arbitration
Agreement: When “Written” Means “Oral”, in A. van den Berg (ed.), International
Commercial Arbitration: Important Contemporary Questions 19, 64 (2003) (New York
Convention is “living document”).
848) Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 SCR 649, ¶19 (Canadian S.Ct.) (citing G.
Born, International Commercial Arbitration 101 (2009)). The same decision held that,
“as a treaty, the Convention must be interpreted ‘in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose.’” Id. (quoting Vienna Convention on the Law of
Treaties, Art. 31(1)).
849) See, e.g., A. van den Berg (ed.), 50 Years of the New York Convention 667 (2009)
(Annex I: “Text of the Hypothetical Draft Convention on the International
Enforcement of Arbitration Agreements and Awards”); Veeder, Summary of the
Discussion in the First Working Group, in A. van den Berg (ed.), 40 Years of the New
York Convention 45 (1999) (noting proposals to amend writing requirement under
Article 2(2) of Convention).
850) See, e.g., Brekoulakis, Enforcement of Foreign Arbitral Awards: Observations on the
Efficiency of the Current System and the Gradual Development of Alternative Means
of Enforcement, 19 Am. Rev. Int’l Arb. 415, 417 (2008); Gaillard, The Urgency of Not
Revising the New York Convention, in A. van den Berg (ed.), 50 Years of the New York
Convention 689, 693 (2009); Veeder, Is There A Need to Revise the New York
Convention?, 1 J. Int’l Disp. Sett. 499, 499 (2010).
851) See§4.06[A][3]; §5.02[A][5][b].
852) See§1.04[B][1][a].
853) See§1.04[A][1][d].
854) Yugraneft Corp. v. Rexx Mgt Corp., [2010] 1 SCR 649, ¶19 (Canadian S.Ct.) (quoting
Vienna Convention on the Law of Treaties, Art. 31(1)).
855) See Judgment of 2 July 2012, DFT 5A_754 2011, ¶5.4.1 (Swiss Fed. Trib.) (New York
Convention “shall be interpreted in good faith”).
856) Compare K. Fach Gomez & A. Lopez-Rodriguez (eds.), 60 Years of the New York
Convention: Key Issues and Future Challenges (2019); Kröll, 50 Jahre UN-
Übereinkommen über die Anerkennung und Vollstreckung Ausländischer
Schiedssprüche: Standortbestimmung und Zukunftsperspektive, 2009 SchiedsVZ 40;
Paulsson, The Eve of the New York Convention’s 60th Anniversary and the Birthday
Party: How to Prepare with Too Many Guests at the Table. “Il ne Faut pas Melangér les
Tables”, Kluwer Arb. Blog (21 June 2018); University of Miami School of Law, 60 Years
of the New York Convention: A Rewind to Fast-Forward (2018); van den Berg,
Hypothetical Draft Convention on the International Enforcement of Arbitration
Agreements and Awards: Explanatory Note and Annexes, in A. van den Berg (ed.), 50
Years of the New York Convention 649 (2008) with Gaillard, The Urgency of Not
Revising the New York Convention, in id. at 689 (resisting proposals to amend or
replace Convention); Veeder, Is There A Need to Revise the New York Convention?, 1
J. Int’l Disp. Sett. 499 (2010).
857) Melis, Considering the Advisability of Preparing An Additional Convention,
Complementary to the New York Convention, in U.N., Enforcing Arbitration Awards
Under the New York Convention Experience and Prospects 44 (1999).
153
858) van den Berg, Hypothetical Draft Convention on the International Enforcement of
Arbitration Agreements and Awards: Explanatory Note and Annexes, in A. van den
Berg (ed.), 50 Years of the New York Convention 649 (2009). See also Tsakiri,
Application of the New York Convention to the Enforcement of the Arbitration
Agreement, 36(2) ASA Bull. 364, 374 (2018).
859) Paulsson, Towards Minimum Standards of Enforcement: Feasibility of A Model Law, in
A. van den Berg (ed.), Improving the Efficiency of Arbitration Agreements and
Awards: 40 Years of Application of the New Yo... 574 (1998).
860) Lamm, Comments on the Proposal to Amend the New York Convention, in A. van den
Berg (ed.), 50 Years of the New York Convention 697, 707 (2008); Paulsson, The 1958
New York Convention from An Unusual Perspective: Moving Forward by Parting with
It, 5(2) Indian J. Arb. L. 23, 37 (2017).
861) Sussman, The New York Convention Through A Mediation Prism, 15 Disp. Resol. Mag.
10 (2009).
862) Melis, Considering the Advisability of Preparing An Additional Convention,
Complementary to the New York Convention, in U.N., Enforcing Arbitration Awards
Under the New York Convention Experience and Prospects 44, 45 (1999); Paulsson,
Towards Minimum Standards of Enforcement: Feasibility of A Model Law, in A. van
den Berg (ed.), Improving the Efficiency of Arbitration Agreements and Awards: 40
Years of Application of the New Yo... 574, 575 (1999).
863) Brody, An Argument for Pre-Award Attachment in International Arbitration Under the
New York Convention, 18 Cornell Int’l L.J. 99 (1985).
864) van den Berg, Hypothetical Draft Convention on the International Enforcement of
Arbitration Agreements and Awards: Explanatory Note and Annexes, in A. van den
Berg (ed.), 50 Years of the New York Convention 649 (2008).
865) Paulsson, Towards Minimum Standards of Enforcement: Feasibility of A Model Law, in
Awards: 40 Years of Application of the New Yo... 547, 575 (1999).
866) See§26.05[C][8][a][i]. See also Gaillard, The Urgency of Not Revising the New York
Convention, in A. van den Berg (ed.), 50 Years of the New York Convention 689, 695
(2008); K. Fach Gomez & A. Lopez-Rodriguez (eds.), 60 Years of the New York
Convention: Key Issues and Future Challenges (2019); Lamm, Comments on the
Proposal to Amend the New York Convention, in A. van den Berg (ed.), 50 Years of the
New York Convention 697, 706 (2008); Landbrecht & Wehowsky, A New Treaty and
Approach to Reconciling the Choice of Remedies Concept, the Judgment Route, and
the Approaches to Enforcing Awards Set Aside?, 37 J. Int’l Arb. 679, 709-19 (2020);
Paulsson, Towards Minimum Standards of Enforcement: Feasibility of A Model Law, in
Awards: 40 Years of Application of the New Yo... 574, 580 (1999); van den Berg,
Should the Setting Aside of the Arbitral Award Be Abolished?, 29(2) ICSID Rev. 1, 26
(2014).
867) European Convention on International Commercial Arbitration (“European
Convention”), 484 U.N.T.S. 349 (1961).
868) Glossner, The Institutional Appointment of Arbitrators, 12 Arb. Int’l 95 (1996);
Hascher, European Convention on International Commercial Arbitration of 1961:
Commentary, XX Y.B. Comm. Arb. 1006 (1995).
869) A. van den Berg, The New York Arbitration Convention of 1958 93 (1981) (European
Convention’s “main purpose is arbitration in East-West trade”).
870) European Convention, 484 U.N.T.S. 349 (1961). See Hascher, European Convention on
International Commercial Arbitration of 1961: Commentary, XX Y.B. Comm. Arb. 1006
(1995); A. Zeiler & G. Siwy (eds.), The European Convention on International
Commercial Arbitration: A Commentary (2018).
871) See European Convention, 484 U.N.T.S. 349 (1961).
872) Id.
873) The Convention does so through provisions regarding the obligations of public
entities to arbitrate and the treatment of jurisdictional objections. European
Convention, Arts. II(1), IV, V. See§5.03[D]; §7.02[A][2].
874) European Convention, Art. V(1) (“either non-existent or null and void or had
lapsed”). See§5.01[B][3].
875) European Convention, Arts. III-VII, Annex.
876) Id. at Art. IX. See§22.02[E][1][b]; §26.03[C][2]; A. van den Berg, The New York
Arbitration Convention of 1958 96 (1981) (“the European Convention cannot function
without the New York Convention as the former is built upon the latter”).
877) Pitkowitz, Issues Specific to Arbitration in Europe, Is There Still A Scope of Application
of the European Convention on International Commercial Arbitration?, 2013 Austrian
Y.B. Int’l Arb. 93.
878) This is confirmed by the relative scarcity of judicial decisions (and commentary)
involving the Convention.
879) de la Brena, Scope of the Convention, in A. Zeiler & G. Siwy (eds.), The European
Convention on International Commercial Arbitration: A Commentary 31 (2018).
Tribunals have applied the Convention to a wide variety of cases, including those
related to joint ventures, shareholder disputes, and the lease of office premises.
154
880) European Convention, Arts. V-VI. As discussed below, Article V confirms the arbitral
tribunal’s competence-competence to consider challenges to its own jurisdiction,
while Article VI provides in principle for national courts to permit initial resolution
of jurisdictional objections by the tribunal. See§7.02[A][2].
881) European Convention, Art. IV, Annex.
882) ECOSOC, Economic Commission for Europe, Doc. TRADE/2000/7, ¶¶25-28 (2000).
883) For commentary, see J. Bowman, The Panama Convention and Its Implementation
Under the Federal Arbitration Act (2002); Garro, Enforcement of Arbitration
Agreements and Jurisdiction of Arbitral Tribunals in Latin America, 1(4) J. Int’l Arb. 293
(1984); Holtzmann, The United States Becomes A Party to the Inter-American
Convention on International Commercial Arbitration, XVI Y.B. Comm. Arb. 419 (1991).
884) See§1.01[C].
885) Inter-American Convention on International Commercial Arbitration (“Inter-
American Convention”) was signed in Panama on 30 January 1975.
886) See Inter-American Convention on International Commercial Arbitration (1975),
available at www.oas.org/juridico/english/Sigs/b-35.html.
887) H.R. Rep. No. 501, 101st Cong., 2d Sess. 4 (1990), reprinted in 1990 U.S.C.C.A.N. 675,
678 (“The New York Convention and the Inter-American Convention are intended to
achieve the same results, and their key provisions adopt the same standards,
phrased in the legal style appropriate for each organization. It is the Committee’s
expectation, in view of that fact and the parallel legislation under the Federal
Arbitration Act that would be applied to the Conventions, that courts in the United
States would achieve a general uniformity of results under the two conventions”);
Productos Mercantiles e Industriales, SA v. Faberge USA, 23 F.3d 41, 45 (2d Cir. 1994)
(“the legislative history of the Inter-American Convention’s implementing statute …
clearly demonstrates that Congress intended the Inter-American Convention to
reach the same results as those reached under the New York Convention”). See
also§2.01[A][1][b]; §5.01[B][3]; §22.02[E][1][c]; §25.02[C]; §26.03[C][1].
888) Inter-American Convention, Art. 1.
889) Id. at Arts. 4-5.
890) Id. at Art. 5.
891) Id. at Art. 3. The Inter-American Commercial Arbitration Commission was
established in 1934 by the predecessor to the Organization of American States.
IACAC is composed of national sections in about a dozen nations; the AAA is the U.S.
national section. IACAC’s administrative headquarters is located in OAS facilities in
Washington, D.C., and is overseen on a day-to-day basis by a Director General.
892) IACAC Rules, available at www.sice.oas.org.
893) Inter-American Convention, Art. 2.
894) Compare New York Convention, Art. II(3); §8.02[A]; §8.03. See also A. van den Berg,
The New York Arbitration Convention of 1958 102 (1981) (“Panama Convention shows
a certain number of lacunae and obscurities in comparison with the New York
Convention”).
895) Convention on the Settlement of Investment Disputes Between States and
Nationals of Other States, produced at Washington, D.C., 18 March 1965. For
commentary, see C. Baltag (ed.), ICSID Convention After 50 Years: Unsettled Issues
(2017); D. Bishop, J. Crawford & M. Reisman, Foreign Investment Disputes: Cases,
Materials and Commentary (2d ed. 2014); M. Kinnear et al. (eds.), Building
International Investment Law: The First 50 Years of ICSID (2015); C. McLachlan, L.
Shore & M. Weiniger, International Investment Arbitration (2d ed. 2017); A.
Newcombe & L. Paradell, Law and Practice of Investment Treaties: Standards of
Treatment (2009); A. Parra, The History of ICSID (2d ed. 2017); L. Reed, J. Paulsson &
N. Blackaby, Guide to ICSID Arbitration (2d ed. 2010); B. Sabahi, N. Rubins & D.
Wallace, Investor-State Arbitration (2d ed. 2019); C. Schreuer et al., The ICSID
Convention: A Commentary (2d ed. 2009).
896) ICSID Convention, Art. 1; C. Schreuer et al., The ICSID Convention: A Commentary Art.
1, ¶¶2-3 (2d ed. 2009). ICSID is affiliated with the International Bank for
Reconstruction and Development (“IBRD” or “World Bank”) and is based at the
World Bank’s Washington, D.C. headquarters.
897) The ICSID Additional Facility (created in 1978) offers arbitration and conciliation of
investment disputes between a State and a foreign national, one of which is not an
ICSID Contracting State or a national of an ICSID Contracting State; arbitration and
conciliation of disputes that do not arise directly out of an investment between a
State and a foreign national, at least one of which is an ICSID Contracting State or a
national of an ICSID Contracting State; and fact-finding proceedings instituted by
any State or a national of any State.
898) ICSID, List of Contracting States and Other Signatories of the Convention (as of April
26, 2022), available at icsid.worldbank.org. In recent years, a few states have
denounced their accession to the ICSID Convention (Bolivia and Venezuela). Other
states have recently ratified the ICSID Convention (e.g., Kyrgyz Republic, Djibouti,
Mexico). After denouncing the ICSID Convention in 2009, Ecuador rejoined the ICSID
Convention in 2021. The Kyrgyz Republic ratified the ICSID Convention on 21 April
2022, 27 years after its signature in 1995.
899) ICSID Convention, Art. 25(1).
155
900) Id. See Krishan, A Notion of ICSID Investment, in T. Weiler (ed.), Investment Treaty
Arbitration: A Debate and Discussion 61-84 (2008); C. Schreuer et al., The ICSID
Convention: A Commentary 128-34 (2d ed. 2009); Thomas & Kaur Dhillon, The
Foundations of Investment Treaty Arbitration: The ICSID Convention, Investment
Treaties and the Review of Arbitration Awards, 32 ICSID Rev. 459 (2017).
901) See Amerasinghe, Jurisdiction Ratione Personae Under the Convention on the
Settlement of Investment Disputes Between States and Nationals of Other States, 47
Brit. Y.B. Int’l L. 227 (1974-75); J. Baumgartner, Treaty Shopping in International
Investment Law 140-165 (2016); C. McLachlan, L. Shore & M. Weiniger, International
Investment Arbitration (2d ed. 2017); L. Reed, J. Paulsson & N. Blackaby (eds.), Guide
to ICSID Arbitration (2d ed. 2010); Savarese, Investment Treaties and the Investor’s
Right to Arbitration: Between Broadening and Limiting ICSID Jurisdiction, 7 J. World
Inv. & Trade 407 (2006); C. Schreuer et al., The ICSID Convention: A Commentary (2d
ed. 2009); Veeder & Legg, The Meaning of “Foreign Control” Under Article 25(2)(B) of
the ICSID Convention, in M. Kinnear et al. (eds.), Building International Investment
Law: The First 50 Years of ICSID 191 (2015); Yala, The Notion of “Investment” ICSID
Case Law: A Drifting Jurisdictional Requirement?: Some “Un-Conventional” Thoughts
on Salini, SGS and Mihaly, 22 J. Int’l Arb. 105 (2005).
902) See§1.04[A][7].
903) ICSID Convention, Arts. 28-35. See Nurick & Schnably, The First ICSID Conciliation:
Tesoro Petroleum Corporation v. Trinidad and Tobago, 1 ICSID Rev. 340 (1986).
904) ICSID Convention, Arts. 41, 52-53; C. Schreuer et al., The ICSID Convention: A
Commentary 516-24 (2d ed. 2009).
905) See§7.02[A][4].
906) ICSID Convention, Arts. 53-54; C. Schreuer et al., The ICSID Convention: A
Commentary Art. 54, ¶¶42-44 (2d ed. 2009).
907) ICSID Convention, Art. 52. See C. Schreuer et al., The ICSID Convention: A
Commentary Art. 52, ¶¶451-60, 466-510 (2d ed. 2009).The ICSID annulment
mechanism has been widely criticized. See, e.g., Botini, Present and Future of ICSID
Annulment: The Path to An Appellate Body?, 31 ICSID Rev. 712 (2016); A. Crivellaro,
Annulment of ICSID Awards: Back to the “First Generation”?, in L. Lévy & Y. Derains
(eds.), Liber Amicorum: Mélanges en l’Honneur de Serge Lazareff 145 (2011); Mullen &
Whitsitt, Quantum, Annulment and the Requirement to Give Reasons: Analysis and
Reform, 31 Arb. Int’l 59 (2015); A. Redfern, ICSID: Losing Its Appeal?, 3 Arb. Int’l 98
(1987); Schreuer, From ICSID Annulment to Appeal: Half Way Down the Slippery Slope,
10 L. & Prac. Int’l Cts. & Tribs. 211 (2011).
908) ICSID Convention, Art. 52. See C. Schreuer et al., The ICSID Convention: A
Commentary Art. 52, ¶656 (2d ed. 2009).
909) See§24.08.
910) ICSID Convention, Arts. 13(1), 38, 40(1); C. Schreuer et al., The ICSID Convention: A
Commentary 45-47, 490-97, 508-10, 1102-05 (2d ed. 2009).Each Contracting State
may designate up to four persons to the Panel of Arbitrators. The Chairman of the
Administrative Council may designate up to ten persons.
911) See§1.04[C][2].
912) ICSID Convention, Art. 42.
913) See§1.04[A][7].
914) See, e.g., Born, A New Generation of International Adjudication, 61 Duke L.J. 775, 838-
40 (2012); Paulsson, The Tipping Point, in M. Kinnear et al. (eds.), Building
International Investment Law: The First 50 Years of ICSID 85 (2015); Sedlak, ICSID’s
Resurgence in International Investment Arbitration: Can the Momentum Hold?, 23
Penn St. Int’l L. Rev. 147 (2004).
915) See§1.03.
916) ICSID, ICSID Administrative Council Approves Amendment of ICSID Rules (21 Mar.
2022). ICSID released six working papers between 2018 and 2021 and submitted
resolutions on the amended rules to the Administrative Council for a vote of
approval on 20 January 2022. Further information on the ICSID rule amendment
process—including Working Papers and the input received on them— is available
on ICSID’s website at https://icsid.worldbank.org/resources/rules-amendments.
917) See§1.04[A][7].
918) ICSID, The ICSID Caseload: Statistics 7 (2022); ICSID, The ICSID Caseload: Statistics 7
(2020). For statistics on the increase in investment arbitrations generally, see the
Issue Notes published by the United Nations Conference on Trade and
Development (UNCTAD), available at https://unctad.org.
919) ICSID, The ICSID Caseload: Statistics 7 (2022); ICSID, 2019 Annual Report 26 (2019);
ICSID, 2018 Annual Report 37 (2018).
920) NAFTA, Chapter 11, Art. 1102 (national treatment), Art. 1103 (most-favored-nation
treatment), Art. 1105 (fair and equitable treatment), Art. 1110 (expropriation).The
Dominican Republic–Central American Free Trade Agreement (commonly referred
to as “CAFTA”) provides substantive rights and dispute resolution mechanisms
similar, but not identical, to those under NAFTA among the CAFTA Contracting
Parties (Costa Rica, Dominican Republic, El Salvador, Guatemala, Nicaragua,
Honduras and the United States).
921) See NAFTA, Chapter 11, Art. 1122 (“Each Party consents to the submission of a claim
to arbitration in accordance with procedures set out in this Agreement”).
156
922) ICSID, List of Contracting States and Other Signatories of the Convention (as of April
12, 2019), available at icsid.worldbank.org. Both the U.S. and Canada are
Contracting States to the ICSID Convention, with Mexico having signed the
Convention on 11 January 2018. NAFTA, Chapter 11, Art. 1120(1)(a).
923) See 2006 ICSID Additional Facility Rules; C. Schreuer et al., The ICSID Convention: A
Commentary 85 (2d ed. 2009).
924) C. Schreuer et al., The ICSID Convention: A Commentary 85 (2d ed. 2009).
925) Agreement Between the United States of America, the United Mexican States, and
Canada (“USMCA”).
926) See USMCA, Chapter 14. See also, García-Barragan, Mitretodis, Tuck, The New NAFTA:
Scaled-Back Arbitration in the USMCA, 36(6) J. Int’l Arb. 739, 740 (2019); Gore & Camp,
The Rise of NAFTA 2.0: A Case Study in Effective ISDS Reform, in A.M. Anderson & B.
Beaumont (eds.), The Investor-State Dispute Settlement System: Reform, Replace or
Status Quo? 119 (2020); Mandell, The Trump Administration’s Impact on US
Investment Policy, 35(2) ICSID Rev. 345 (2020).
927) See USMCA, Art. 14.4.
928) Id. at Art. 14.5.
929) Id. at Art. 14.6.
930) Id. at Art. 14.8.
931) Gore & Camp, The Rise of NAFTA 2.0: A Case Study in Effective ISDS Reform, in A.M.
Anderson & B. Beaumont (eds.), The Investor-State Dispute Settlement System:
Reform, Replace or Status Quo? 119 (2020); Landicho, What’s in A Name Change? For
Investment Claims Under the New USMCA Instead of NAFTA, (Nearly) Everything,
Kluwer Arb. Blog (5 Oct. 2018).
932) See USMCA, Art. 14.D.1.
933) The only exceptions are for claims pending under the NAFTA at the time the USMCA
enters into force, which are allowed to continue to completion, and for so-called
legacy claims. These are claims related to investments made while the NAFTA was
still in force. Investors have three years to bring such claims from the date the
USMCA enters into force, and the claims will be subject to the provisions of the
NAFTA.
934) See USMCA, Annex 14-D.
935) Id. at Art. 14.D.5.1.
936) Id. at Art. 14.D.3.1.
937) Id. at Art. 14.D.3.1.
938) Id. at Art. 14.D.3.
939) Id. at Art. 14.6.4.
940) Id. at Annex 14-E. See also García-Barragan, Mitretodis & Tuck, The New NAFTA:
Scaled-Back Arbitration in the USMCA, 36(6) J. Int’l Arb. 739, 748 (2019).
941) In addition to claims for post-establishment denial of national and most-favored
nation treatment, and direct expropriation.
942) Sardinha, The New EU-Led Approach to Investor-State Arbitration: The Investment
Tribunal System in the Comprehensive Economic Trade Agreement (CETA) and the EU–
Vietnam Free Trade Agreement, 32 ICSID Rev. 625, 626 (2017). The same mechanism
is proposed in the Transatlantic Trade and Investment Partnership (“TTIP”). Happ &
Wuschka, From the Jay Treaty Commissions Towards A Multilateral Investment Court:
Addressing the Enforcement Dilemma, 6(1) Indian J. Arb. L. 113 (2017). On the
potential impact of an appellative review mechanism on investor state dispute
settlement, see Jaime, Could An Appellate Review Mechanism “Fix” the ISDS
System?, Kluwer Arb. Blog (11 Feb. 2021).
943) Bernardini, The European Union’s Investment Court System: A Critical Analysis, 35
ASA Bull. 812 (2017).
944) Bjorklund, Arbitration, the World Trade Organization, and the Creation of A
Multilateral Investment Court, 37(2) Arb. Int’l 433 (2021); M. Bungenberg & A.
Reinisch, From Bilateral Arbitral Tribunals and Investment Courts to a Multilateral
Investment Court: Options Regarding the Institutionalization of Investor-State
Dispute Settlement (2020); IILCC, IILCC Comparative Report on the Creation and
Implementation of a Multilateral Investment Court (2020); Lee, ISDS Reform: Analysis
on Establishing A Multilateral Investment Court System, 87 (4) Int’l J. Arb. Med. &
Disp. Mgt 484 (2021); Medvedskaya, Enforcement Mechanism under the TTIP
Investment Court System, An Appropriate Tool for Enforcing Awards in Third States?,
35 Spain Arb. Rev. 71 (2019); Potesta, Investment Arbitration, Challenges And
Prospects For the Establishment Of A Multilateral Investment Court: Quo Vadis
Enforcement?, in C. Klausegger et al. (eds.), Austrian Y.B. Int’l Arb. 157 (2018);
Reinisch, Will the EU’s Proposal Concerning An Investment Court System for CETA and
TTIP Lead to Enforceable Awards? The Limits of Modifying the ICSID Convention and
the Nature of Investment Arbitration, 19 J. Int’l Econ. L. 761 (2016); Thanvi, The
Investment Court System under the EU-Canada Comprehensive Economic and Trade
Agreement: Proposal and Some Unaddressed Issues, VIII (2) Indian J. Arb. L. 97 (2019).
945) European Commission, The EU and Canada Adopt Rules Putting in Place the CETA
Investment Court (29 Jan. 2021), available at
https://policy.trade.ec.europa.eu/news/eu-and-canada-adopt-rules-putting-
place-ceta-investment-court....
157
946) European Commission, The EU and Canada Adopt Rules Putting in Place the CETA
Investment Court (29 Jan. 2021), available at
https://policy.trade.ec.europa.eu/news/eu-and-canada-adopt-rules-putting-
place-ceta-investment-court....
947) For commentary, see R. Dolzer & M. Stevens, Bilateral Investment Treaties (1995); R.
Dolzer & C. Schreuer, Principles of International Investment Law 28-43 (2d ed. 2012);
ICSID, Bilateral Investment Treaties, 1959-1996, ICSID Doc. ICSID/17 (1997); A.
Newcombe & L. Paradell, Law and Practice of Investment Treaties: Standards of
Treatment (2009); K. Vandevelde, U.S. International Investment Agreements (2009);
Parra, Provisions on the Settlement of Investment Disputes in Modern Investment
Laws, Bilateral Investment Treaties and Multilateral Instruments on Investment, 12
ICSID Rev. 287 (1997). See also C. Baltag (ed.), ICSID Convention After 50 Years:
Unsettled Issues (2017); M. Kinnear et al. (eds.), Building International Investment
Law: The First 50 Years of ICSID(2015).
948) See, e.g., U.S. Model BIT (2012); French Model BIT (2006); German Model BIT (2008);
Canadian Model BIT (2004); Indian Model BIT (2003); Colombian Model BIT (2007).
These model treaties are available at italaw.com/investment-treaties.
949) For example, 8 out of 20 BITs in 2019 were concluded between developing
countries. See UNCTAD, World Investment Report 2021: Investing in Sustainable
Recovery 123 (2021) (2,943 BITs were in force by the end of 2021); UNCTAD, Bilateral
Investment Treaties 1995-2006: Trends in Investment Rulemaking (2007); UNCTAD,
World Investment Report 2019: Special Economic Zones 99 (2019). Most states,
including the United States, China, all EU states, most Latin American, Asian states
and many African states, have concluded substantial numbers of BITs. Historically,
some states like Brazil have been reluctant to conclude BITs. However, in the last
years this tendency has changed, and Brazil has entered into more than a dozen
BITs since 2015.
950) See R. Dolzer & C. Schreuer, Principles of International Investment Law 130-212 (2d
ed. 2012); C. McLachlan, L. Shore & M. Weiniger, International Investment Arbitration:
Substantive Principles 267-458 (2d ed. 2017); A. Newcombe & L. Paradell, Law and
Practice of Investment Treaties: Standards of Treatment (2009); S. Schill, The
Multilateralization of International Investment Law (2009).
951) The 1994 Energy Charter Treaty contains provisions on inter-governmental
cooperation in the energy sector, including the investor’s right to submit the
dispute to arbitration under one of the following sets of rules: the ICSID Rules or
the ICSID Additional facility Rules, the UNCITRAL Arbitration Rules or the SCC
Arbitration Rules: Art. 25. See also Hobér, Overview of Energy Charter Treaty Cases, in
M. Scherer (ed.), International Arbitration in the Energy Sector 175 (2018). The
adoption of the International Energy Charter in 2015 marked the beginning of a
longer-term process focused on modernization of the Energy Charter Treaty and its
political process. International Energy Charter, Annual Report 1 (2017).
952) See Paulsson, Arbitration Without Privity, 10 ICSID Rev. 232 (1995). In fact,
“arbitration without privity” is a misnomer: BITs contain standing offers by states to
arbitrate defined categories of investment disputes with foreign investors, which,
when accepted by a foreign investor, give rise to a bilateral arbitration agreement
between the host state and foreign investor. See Ecuador v. Chevron Corp., 638 F.3d
384, 392 (2d Cir. 2011) (“this proves to be a distinction without a difference, since
Ecuador, by signing the BIT, and Chevron, by consenting to arbitration, have
created a separate binding agreement to arbitrate”); R. Dolzer & C. Schreuer,
Principles of International Investment Law 254-64 (2d ed. 2012).
953) See Alemanni v. Argentina, Decision on Jurisdiction and Admissibility in ICSID Case No.
ARB/07/8 of 17 November 2014, ¶305 (“What the [BIT’s dispute settlement clause]
does is to generate and record the [State’s] standing offer to arbitrate. … It is trite
law that the jurisdictional link is then completed by the acceptance of the offer by
an investor, manifested implicitly by the investor’s commencing arbitration
proceedings in reliance on its terms”); Générale de Surveillance SA v. Paraguay,
Decision on Jurisdiction in ICSID Case No. ARB/07/29 of 12 February 2010, ¶70 (“The
State’s consent in a BIT is often described as an ‘open invitation’ or a ‘standing
offer’ to covered investors to submit such disputes to international arbitration,
which the investor ‘accepts’ by giving its own written consent to resort to such
arbitration (whether prior to or in its Request for Arbitration)”); BG Group, plc v.
Argentina, 572 U.S. 25, 46 (2014) (Sotomayor, J., concurring) (“Consent is especially
salient in the context of a bilateral investment treaty, where the treaty is not an
already agreed-upon arbitration provision between known parties, but rather a
nation state’s standing offer to arbitrate with an amorphous class of private
investors”); C. Schreuer et al., The ICSID Convention: A Commentary Art. 25, ¶448 (2d
ed. 2009) (“An investor may accept an offer contained in a BIT simply by instituting
ICSID proceedings. Tribunals have accepted this form of expressing consent in
numerous cases”).
954) A. Newcombe & L. Paradell, Law and Practice of Investment Treaties: Standards of
Treatment 73-74 (2009).
955) G. Born, International Arbitration and Forum Selection Agreements: Drafting and
Enforcing 133-39 (6th ed. 2021).
158
956) UNCTAD, Fact Sheet on Investor-State Dispute Settlement Cases in 2018 1 (2019) (“At
least 71 treaty-based investor-State dispute settlement (ISDS) cases were initiated
in 2018. … As of 1 January 2019, the total number of known ISDS cases pursuant to
international investment agreements (IIAs) had reached 942”); UNCTAD, Investor-
State Dispute Settlement Cases: Facts and Figures 2020 1-2 (2021) (“In 2020, at least
68 known treaty-based investor–State dispute settlement (ISDS) cases were
initiated. … As of 1 January 2021, the total number of publicly known ISDS cases had
reached 1,104. As some arbitrations can be kept confidential, the actual number of
disputes filed in 2020 and previous years is likely to be higher”).
957) See authorities cited at §1.04[A][7].
958) See, e.g., 11 U.S.T. 2398 (France); 7 U.S.T. 1839 (Germany); 8 U.S.T. 2043 (Netherlands);
14 U.S.T. 1284 (Belgium); T.I.A.S. No. 4797 (Denmark); 5 U.S.T. 1829 (Greece); 1 U.S.T.
785 (Ireland); T.I.A.S. No. 4685 (Italy); 4 U.S.T. 251 (Luxembourg); 8 U.S.T. 899 (Iran); 5
U.S.T. 550 (Israel); 4 U.S.T. 2063 (Japan); 8 U.S.T. 2217 (Korea); 9 U.S.T. 449
(Nicaragua); 12 U.S.T. 110 (Pakistan); 9 U.S.T. 5843 (Thailand); 18 U.S.T. 1 (Togo).
959) Treaty of Friendship, Commerce and Navigation, 29 October 1954, 7 U.S.T. 1839,
T.I.A.S. No. 3593 (U.S.–Germany), Art. 6(2) (1954).
960) As noted above, the New York Convention leaves such bilateral arrangements
intact, applicable where the Convention either does not apply or does not provide
for recognition. See§1.04[A][1].
961) See §11.05[B][2].
962) See Ball, The Essential Judge: The Role of the Courts in A System of National and
International Commercial Arbitration, 22 Arb. Int’l 74 (2006); Böckstiegel, The
Relevance of National Arbitration Law for Arbitrations Under the UNCITRAL Rules, 1(3)
J. Int’l Arb. 223 (1984); Goode, The Adaptation of English Law to International
Commercial Arbitration, 8 Arb. Int’l 1 (1992); Grigera Naón, Arbitration in Latin
America: Overcoming Traditional Hostility, 5 Arb. Int’l 137 (1989); Herrmann, Does the
World Need Additional Uniform Legislation on Arbitration?, 15 Arb. Int’l 211 (1999);
Kaufmann-Kohler, Globalization of Arbitral Procedure, 36 Vand. J. Transnat’l L. 1313
(2003); Lew, Does National Court Involvement Undermine the International
Arbitration Process?, 24 Am. U. Int’l L. Rev. 489 (2009); Park, National Law and
Commercial Justice: Safeguarding Procedural Integrity in International Arbitration,
63 Tulane L. Rev. 647 (1989); Samuel, Arbitration in Western Europe: A Generation of
Reform, 7 Arb. Int’l 319 (1991); Wetter, The Proper Scope of A National Arbitration Act,
5(10) Mealey’s Int’l Arb. Rep. 17 (1990).
963) See Park, National Law and Commercial Justice: Safeguarding Procedural Integrity in
International Arbitration, 63 Tulane L. Rev. 647, 680 (1989).
964) Menon, The Challenges of the Golden Age, ICC Newsletter 1 (Apr. 2013).
965) M. de Boisséson, Le Droit Français de l’Arbitrage Interne et International ¶¶8-11 (2d
ed. 1990); Weiss, Arbitration in Germany, 43 L.Q. Rev. 205, 206 (1927). See also§1.01[B]
[4] & §1.01[B][6].
966) See, e.g., French Code of Civil Procedure; German Zivilprozessordnung (“ZPO”);
Netherlands Code of Civil Procedure; Belgian Judicial Code.
967) See, e.g., U.S. FAA, 9 U.S.C. §§1-16; English Arbitration Act, 1996; Singapore
International Arbitration Act; Hong Kong Arbitration Ordinance; Indian Arbitration
and Conciliation Act; Japanese Arbitration Law; Samuel, Arbitration Statutes in
England and the USA, 8 Arb. & Disp. Resol. L.J. 2, 32 (1999).
968) See§1.04[B][1][a].
969) For example, the UNCITRAL Model Law, the Swiss Law on Private International Law,
the Singapore International Arbitration Act, the relevant parts of the French Code
of Civil Procedure and U.S. Federal Arbitration Act deal only with international
(and not domestic) arbitrations.In France, the drafters of the revised 2011
arbitration legislation considered, but rejected, the unification of international
and domestic arbitration regimes. See French Code of Civil Procedure, Arts. 1442-
1503 (domestic arbitration), Arts. 1504-1527 (international arbitration); Gaillard, Les
Principes Fondamentaux du Nouvel Arbitrage, in T. Clay (ed.), Le Nouveau Droit
Francais de l’Arbitrage 57 (2011). See; §1.04[B][1][b]-§1.04[B][1][c].
970) See§1.04[B][1][d].
971) The reasoning for distinguishing international matters from domestic ones rests on
the greater jurisdictional, choice-of-law and enforcement uncertainties in the
international context and the need for national neutrality predictability and
certainty in international commerce. See§1.02[B]; §1.04[A]; Carducci, The
Arbitration Reform in France: Domestic and International Arbitration Law, 28 Arb.
Int’l 125, 125 (2012) (“[elaboration] of two articulated and distinct ‘domestic’ and
‘international’ arbitration regimes has been driven, in our view, by more than
economic growth and the increasing needs of the business community for smooth,
fast and private justice”).These considerations have been relied on in some
national court decisions. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614 (U.S. S.Ct. 1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 517 n.10
(U.S. S.Ct. 1974); Judgment of 3 June 1997, LexisNexis JurisClasseur No. 95-17.603
(French Cour de Cassation Civ. 1).
159
972) For example, England, Germany, Ireland, Portugal, Spain, Scotland and Hong Kong’s
enactment of the UNCITRAL Model Law deleted provisions limiting the legislation’s
application to “international” arbitrations, extending it to all arbitrations. English
Arbitration Act, 1996, §2; German ZPO, §1025; Irish Arbitration Act, §6; Portuguese
Law on Voluntary Arbitration Law, Art. 49; Scottish Arbitration Act, §2(1); Spanish
Arbitration Act, Art. 1(1); Hong Kong Arbitration Ordinance, §5.
973) Mustill, Cedric Barclay Memorial Lecture, 1992 Arb. 159, 165 (“I have never
understood why international arbitration should be different in principle from any
other kind of arbitration”).
974) See§6.01 for a discussion of these issues in the nonarbitrability context.
975) See§1.02[B]; §1.04[A].
976) See§1.04[B][1].
977) See§1.04[B][1]; Mustill, Arbitration: History and Background, 6(2) J. Int’l Arb. 43, 53
(1989) (noting “efforts made by individual nations to make their arbitration laws …
more attractive”); Park, National Law and Commercial Justice: Safeguarding
Procedural Integrity in International Arbitration, 63 Tulane L. Rev. 647, 680 (1989).
978) This includes legislation in France, Switzerland, Germany, Italy, Spain, Portugal and
all other Continental European states. It also includes England, Scotland, Ireland,
Canada (and its provinces), Australia and New Zealand, as well as Singapore, Hong
Kong, India, Malaysia and Saudi Arabia. The principal exception is the United
States, where the FAA dates to 1925, while U.S. implementing legislation for the
New York Convention dates to 1970. See§1.04[B][1][e][i].
979) See§1.04[B][1][a]-§1.04[B][1][b] & §1.04[B][1][d]; §2.01[A][2]; §5.01[C]; §8.02[A][2].
980) SeeChapter 8.
981) See Part III; §22.01[B][3].
982) See Part III; §26.01[B]; §26.03[D].
983) See§12.03[E][4]; §16.03[A].
984) See§15.02[B].
985) Djibouti Code of International Arbitration, Law No. 79/AN/84 of 13 February 1983,
Statement of Principles, 25 I.L.M. 1, 3 (1986).
986) Bernardini, The Role of the International Arbitrator, 20 Arb. Int’l 113, 115 (2004).
987) These include jurisdictional, choice-of-law and enforcement issues. See§1.02[B];
§1.04[E][7].
988) See§1.04[B] (especially §1.04[B][1]); Foreign Arbitral Awards, S. Rep. No. 91-702, 91st
Cong., 2d Sess., 1-2 (1970) (“In the committee’s view, the provisions of S. 3274
[implementing the New York Convention] will serve the best interests of Americans
doing business abroad by encouraging them to submit their commercial disputes
to impartial arbitration for awards which can be enforced in both U.S. and foreign
courts”); Australian International Arbitration Act, Art. 2D (“The objects of this Act
are: (a) to facilitate international trade and commerce by encouraging the use of
arbitration as a method of resolving disputes; and (b) to facilitate the use of
arbitration agreements made in relation to international trade and commerce;
and (c) to facilitate the recognition and enforcement of arbitral awards made in
relation to international trade and commerce; (d) to give effect to Australia’s
obligations under the [New York] Convention; and (e) to give effect to the UNCITRAL
Model Law on International Commercial Arbitration …”); Konkan Railways Corp. v.
Mehul Constr. Co., [2000] 7 SCC 201, ¶2 (Indian S.Ct.) (“To attract the confidence of
the international mercantile community and the growing volume of India’s trade
and commercial relationship with the rest of the world after the new liberalisation
policy of the Government, Indian Parliament was persuaded to enact the
Arbitration and Conciliation Act of 1996 in UNCITRAL Model …”). See also Murray,
Domestic Court Implementation of Coordinative Treaties: Formulating Rules for
Determining the Seat of Arbitration Under the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, 41 Va. J. Int’l L. 859, 865 (2001)
(“policymakers … believe that if businesses are confident that their arbitration
agreements and awards will be enforced they will engage in more cross-border
transactions”).
989) Seidel v. TELUS Commc’ns Inc., [2011] SCC 15, ¶54 (Canadian S.Ct.) (Lebel, J.,
dissenting). See also Gallaway Cook Allan v. Carr, (2013) NZCA 11, ¶66 (Wellington Ct.
App.) (“Two specific purposes of [New Zealand’s arbitration legislation are] to
encourage the use of arbitration as an agreed method of resolving commercial and
other disputes, and to facilitate the recognition and enforcement of arbitration
agreements and arbitral awards”).
990) Press Release, O’Donoghue Publishes Bill Designed to Attract International Inward
Investment to Ireland (2 Oct. 1997), cited in C. Drahozal & R. Naimark, Towards A
Science of International Arbitration: Collected Empirical Research 113 (2005).
991) 392 Parl. Deb., H.L. (5th series) 99 (1978). See also Craig, Some Trends and
Developments in the Laws and Practice of International Commercial Arbitration, 30
Tex. Int’l L.J. 1, 58 (1995) (“if the participants in international trade become
accustomed to general arbitral practices developed under the Model Law, any
state which does not adapt its own procedures to offer similar advantages risks
losing its place as a preferred site for arbitration”).
992) T. Carbonneau, Cases and Materials on the Law and Practice of Arbitration 1143 (2d
ed. 2005).
160
993) Park, Judicial Controls in the Arbitral Process, 5 Arb. Int’l 230, 232-33, 256 (1989).
994) Frequently-cited examples include Belgium, which attracted little (if any)
increased arbitration business by radically revising its international arbitration
law (see§25.05-§25.06), and the United States, which has enjoyed increasing
numbers of international arbitrations despite an archaic legislative regime
(see§1.04[B][1][e]).
995) Some commentators have concluded that, at least historically, “so-called modern
arbitration statutes, which command courts to recognize arbitration settlements
and arbitration clauses in contracts, were not the major stimulus for the growth of
commercial arbitration that they are often assumed to have been.” Benson, An
Exploration of the Impact of Modern Arbitration Statutes on the Development of
Arbitration in the United States, 11 J. L. Econ. & Org. 479, 497 (1995). Although this
view appears correct in 19th-century, and earlier, settings, it is doubtful that it
would apply to current international commercial dealings.
996) Sumito v. Antig Invs. Pte Ltd, [2009] SGCA 41, ¶28 (Singapore Ct. App.).
997) See Born, Arbitration and the Freedom to Associate, 38 Ga. J. Int’l & Comp. L. 7 (2009);
§5.01[C][1].
998) As discussed above, the French Constitution of Year I accorded the right to
arbitrate constitutional status for precisely this reason. See§1.01[B][4]; French
Constitution of Year I, 1793, Art. 86 (“The right of the citizens to have their disputes
settled by arbitrators of their choice shall not be violated in any way whatsoever”).
999) Born, Arbitration and the Freedom to Associate, 38 Ga. J. Int’l & Comp. L. 7 (2009).
1000) Laurentienne-vie, Cie d’Assurance Inc. v. Empire, Cie d’Assurance-vie, [2000] CanLII
9001 (Québec Ct. App.) (arbitration is a “fundamental right”); Judgment of 3 April
2000, II ZR 373/98 (German Bundesgerichtshof) (right to arbitrate is based on
constitutional rights to personal freedom and private autonomy). The German
Bundesgerichtshof cited Article 2(1) of the German Grundgesetz (Constitution),
which provides: “Every person shall have the right to free development of his
personality insofar as he does not violate the rights of others or offend against the
constitutional order or the moral law.” German Grundgesetz, Art. 2(1).
1001) Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 123 Haw. 476, 478
(Haw. 2010). See also Matter of Sprinzen v. Nomberg, 389 N.E.2d 456, 459 (N.Y. 1979)
(“The courts … must exercise due restraint in this regard, for the preservation of the
arbitration process and the policy of allowing parties to choose a nonjudicial
forum, embedded in freedom to contract principles, must not be disturbed by
courts …”).
1002) Laurentienne-vie, Cie d’Assurance Inc. v. Empire, Cie d’Assurance-vie, [2000] CanLII
9001, ¶80 (Québec Ct. App.).
1003) See, e.g., Judgment of 4 January 2012, DFT 4A_238/2011, ¶3.2 (Swiss Fed. Trib.) (“no
reason to deprive the parties able to bear the consequences of a renunciation to
appeal from the possibility offered by this provision – which embodies
procedurally the principle of party autonomy – to escape any state intervention
which could harm the confidentiality of arbitration or to prevent the swift
obtention of an enforceable decision putting an end to the dispute”); Judgment of
23 August 1963, 1 AZR 469/62, ¶14 (German Bundesarbeitsgericht) (“The decision of
the parties to enter into arbitral proceedings arises from their constitutional right
of party autonomy as stated in Article 2 of the [German constitution]. If the scope of
application of the State courts’ jurisdiction is narrowed by the parties’ submission
of their dispute to arbitration, this is due to the parties’ voluntary agreement,
which is in turn guaranteed by the constitutional right to free development of
personality under Article [2.1] of the [German Constitution]”); Judgment of 5 May
2009, 2010 SchiedsVZ 173, 176 (Schiedsgericht Hamburg) (“On the one hand the
interest of the arbitral parties in upholding the arbitration agreement is protected
as an element of the freedom of contract and private autonomy pursuant to §2(1)
of the German constitution. In the same way as having the right to be judged by
one’s competent state court pursuant to §101(1)(2) of the German constitution there
also exists a right to waive this right by choosing an arbitral court”); Judgment of 9
April 2008, TMC Terminal Multimodal de Coroa Grande SPE SA v. Ministro de Estado
da Ciência e Tecnologia, Case No. 11.308 (2005/0212763-0), ¶16 (Brazilian Superior
Tribunal de Justiça) (“It is well recognized that arbitration does not subtract any
constitutional guarantees from domestic proceedings, on the contrary, it implies
fulfilling these [constitutional rights and guarantees]”); Judgment of 3 November
2010, Astivenca Astilleros de Venezuela, CA v. Oceanlink Offshore III AS, XXXVI Y.B.
Comm. Arb. 496, ¶5 (Venezuelan Tribunal Supremo de Justicia) (“Hence, the
principles of competence-competence and autonomy of the arbitration agreement
are essential elements in the statutory regime of arbitration, guaranteeing the
‘fundamental right to use alternative means of dispute resolution, including,
obviously, arbitration’”).
1004) See, e.g., ATA Constr., Indus. & Trading Co. v. Jordan, Award in ICSID Case No.
ARB/08.02 of 18 May 2010, ¶¶124-25 (Jordanian court’s purported annulment of
arbitration agreement was denial of fair and equitable treatment); Saipem SpA v.
Bangladesh, Award in ICSID Case No. RB/05/07 of 30 June 2009 (Bangladeshi court’s
purported revocation of arbitral tribunal’s authority was violation of Article II of
New York Convention).
161
1005) See§1.02[B][1]. See also Mayer, Must Justice be A Goal for the Arbitrator?, 37(2) Arb.
Int’l 503 (2021).
1006) Brazil-David, Harmonization and Delocalization of International Commercial
Arbitration, 28 J. Int’l Arb. 445, 446 (2011) (“In order to reduce the disparities
between national arbitration laws and the surprises one might have in
international commercial arbitrations, there has been a movement towards
harmonization of the law and practice of international commercial arbitration”);
Craig, Some Trends and Developments in the Laws and Practice of International
Commercial Arbitration, 50 Tex. Int’l L.J. 699, 759 (2016) (“substantial convergence in
modern arbitration laws with respect to the procedures to be followed in
arbitration and the standards for judicial recourse therefrom”); Hanotiau,
International Arbitration in A Global Economy: The Challenges of the Future, 28(2) J.
Int’l Arb. 89, 92-93 (2011) (“In the process of renewal and adaptation of their
legislations, legislators have erased the main differences existing between their
national arbitration laws”); Kaufmann-Kohler, Globalization of Arbitral Procedure, 36
Vand. J. Transnat’l L. 1313, 1320-22 (2003) (arbitration legislation “tend[s] to become
interchangeable” because of uniformity); Samuel, Arbitration in Western Europe: A
Generation of Reform, 7 Arb. Int’l 319 (1991).
1007) For commentary, see C. Alvarez, N. Kaplan & D. Rivkin, Model Law Decisions: Cases
Applying the UNCITRAL Model Law on International Commercial Arbitration (2003);
Association for International Arbitration, The UNCITRAL Model Law on International
Commercial Arbitration: 25 Years (2010); I. Bantekas et al., UNCITRAL Model Law on
International Commercial Arbitration: A Commentary (2020); G. Bell, The UNCITRAL
Model Law and Asian Arbitration Laws: Implementation and Asian Arbitration Laws
(2018); P. Binder, International Commercial Arbitration and Mediation in UNCITRAL
Model Law Jurisdictions (4th ed. 2019); Brekoulakis, Ribeiro & Shore, United Nations
Commission on International Trade Law (UNCITRAL) Model Law on International
Commercial Arbitration, 1985/2006, in L. Mistelis (ed.), Concise International
Arbitration 835 (2d ed. 2015); A. Broches, Commentary on the UNCITRAL Model Law
on International Commercial Arbitration (1990); F. Gelinas, UNCITRAL Model Law After
25 Years: Global Perspectives on Arbitration Law (2013); Gaillard, The UNCITRAL
Model Law and Recent Statutes on International Arbitration in Europe and North
America, 2(2) ICSID Rev. 424 (1987); Hermann, The UNCITRAL Model Law: Its
Background, Salient Features and Purposes, 1 Arb. Int’l 6 (1985); H. Holtzmann et al.,
A Guide to the UNCITRAL Model Law on International Commercial Arbitration:
Legislative History and C... (1989); H. Holtzmann & J. Neuhaus, A Guide to the 2006
Amendments to the UNCITRAL Model Law on International Commercial Arbitration:
Le...(2015); I. Kavass & A. Liivak, UNCITRAL Model Law of International Commercial
Arbitration: A Documentary History (1985); Kerr, Arbitration and the Courts: The
UNCITRAL Model Law, 34 Int’l & Comp. L.Q. 1 (1985); D. Lewis, The Interpretation and
Uniformity of the UNCITRAL Model Law on International Commercial Arbitration
(2016); Mantilla-Serrano & Adam, UNCITRAL Model Law: Missed Opportunities for
Enhanced Uniformity, 31 U. N.S.W. L.J. 307 (2008); Sanders, Unity and Diversity in the
Adoption of the Model Law, 11 Arb. Int’l 1 (1995).
1008) See§1.04[B][1][a].
1009) See§1.04[B][1][a]; UNCITRAL Model Law, 2006 Revisions.
1010) UNCITRAL, Note by the Secretary-General, U.N. Doc. A/CN.9/127, VIII Y.B. UNCITRAL
233 (1977).
1011) UNCITRAL, Report of the Secretary-General on the Possible Features of A Model Law
of International Commercial Arbitration, U.N. Doc. A/CN.9/207, XII Y.B. UNCITRAL 75
(1981).
1012) Id. at ¶¶9-11.
1013) Id. at ¶1075. The Report was submitted to UNCITRAL’s 14th Session in June 1981.
1014) H. Holtzmann & J. Neuhaus, A Guide to the UNCITRAL Model Law on International
Commercial Arbitration: Legislative History and C...12-13 (1989).
1015) Id. at 12-14.
1016) Model Law on International Commercial Arbitration of the UNCITRAL, U.N. G.A. Resol.
No. 40/72 (1985).
1017) UNCITRAL Model Law, Arts. 7-8. See§5.01[C][1]; §5.02[A][5][a]-§5.02[A][5][b]; §5.06[C].
The Model Law’s “writing” requirement for arbitration agreements is broadly
similar to, but somewhat less demanding than, Article II of the New York
Convention. See UNCITRAL Model Law, Art. 7(2). See also§5.02[A][5][a].
1018) UNCITRAL Model Law, Art. 8(1). See§8.02[A][2]; §8.02[C]; §8.03[A][2]. See also
Bantekas, Article 8: Arbitration Agreement and Substantive Claim Before Court, in I.
Bantekas et al. (eds.), UNCITRAL Model Law on International Commercial Arbitration:
A Commentary 547 (2020).
1019) UNCITRAL Model Law, Art. 16. See§3.02[B][3][e].
1020) UNCITRAL Model Law, Art. 16. See§7.02[B][1]; §7.03.
1021) See§7.03[A][2].
1022) UNCITRAL Model Law, Art. 5. See§15.06[B]. See also Garnett, Article 5 of the Model
Law: Protector of the Arbitral Process?, 38(2) J. Int’l Arb. 127 (2021).
1023) UNCITRAL Model Law, Art. 19(1). See§15.02[B].
1024) UNCITRAL Model Law, Arts. 19(2), 24(1). See§15.03[B].
162
1025) UNCITRAL Model Law, Art. 18 (“The parties shall be treated with equality and each
party shall be given a full opportunity of presenting his case”), Art. 24(2) (“The
parties shall be given sufficient advance notice of any hearing and of any meeting
of the arbitral tribunal for the purposes of inspection of goods, other property or
documents”). See§15.04[B][1].
1026) This addressed concerns that national mandatory laws were unduly constraining
arbitral procedures and that the definitions of mandatory and non-mandatory
procedural laws were unclear. UNCITRAL, Report of the Secretary-General on the
Possible Features of A Model Law of International Commercial Arbitration, U.N. Doc.
A/CN.9/207, ¶¶12-13 (1981).
1027) UNCITRAL Model Law, Arts. 9, 11-13, 27. See§11.04[B][1]; §12.03[F][2][a]; §16.03[A][1].
1028) UNCITRAL Model Law, Art. 34. See§25.03[A].
1029) UNCITRAL Model Law, Arts. 35-36. See§26.03[B].
1030) UNCITRAL, Note of the Secretariat on the Possible Future Work in the Area of
International Commercial Arbitration, U.N. Doc. A/CN.9/460, XXX UNCITRAL Y.B. 395
(1999); UNCITRAL, Report of the Secretary-General on the Possible Uniform Rules on
Certain Issues Concerning Settlement of Commercial Disputes: Conciliation, Interim
Measures of Protection, Written Form for Arbitration Agreement, U.N. Doc.
A/CN.9/WG.II/WP.108 (2000).
1031) UNCITRAL, Note by the Secretariat on the Preparation of A Model Legislative
Provision on Written Form for the Arbitration Agreement, Forty-Third Session, U.N.
Doc. A/CN.9.WG.II/WP.136 (2005); UNCITRAL, Note of the Secretariat on the Interim
Measures of Protection, Forty-Third Session, U.N. Doc. A/CN.9/WG.II/WP.138 (2005).
1032) UNCITRAL Model Law, 2006 Revisions; Mantilla-Serrano & Adam, UNCITRAL Model
Law: Missed Opportunities for Enhanced Uniformity, 31 U. N.S.W. L.J. 307 (2008);
Menon & Chao, Reforming the Model Law Provisions on Interim Measures of
Protection, 2 Asian Int’l Arb. J. 1 (2006); Paulsson & Petrochilos, Report: Revision of
the UNCITRAL Arbitration Rules (2006); Sorieul, UNCITRAL’s Current Work in the Field
of International Commercial Arbitration, 22 J. Int’l Arb. 543 (2005).
1033) UNCITRAL Model Law, 2006 Revisions, Art. 2A. See also Bantekas, Article 2A:
International Origin and General Principles, in I. Bantekas et al. (eds.), UNCITRAL
Model Law on International Commercial Arbitration: A Commentary 38 (2020).
1034) UNCITRAL Model Law, 2006 Revisions, Art. 7. See§5.02[A][5][b].
1035) UNCITRAL Model Law, 2006 Revisions, Arts. 17, 17A-J. See§17.02[A][3][b][i]; §17.04[C][1]
[a].
1036) UNCITRAL Model Law, 2006 Revisions, Art. 35. See§26.01[B].
1037) As discussed below, the 2006 Revisions’ authorization of ex parte provisional
measures is of doubtful wisdom and has attracted substantial criticism.
See§17.02[G][10].
1038) UNCITRAL Working Group on Arbitration and Conciliation, Asia Pacific Regional
Arbitration Group Report on 43d and 44th Sessions ¶5 (9 Jan. 2006) (“proposed
additions are very extensive, particularly in comparison with the relatively short
and concise drafting style of other articles in [the Model Law]”). At the same time,
the 2006 Revisions failed to address a number of areas where improvements would
have been welcome (e.g., the choice of law governing the arbitration agreement,
the allocation of competence to resolve jurisdictional objections and the grounds
for holding arbitration agreements and awards invalid).
1039) States that have adopted some or all of the 2006 Revisions to the Model Law
include Australia, Bahrain, Barbados, Belgium, Bhutan, Brunei, British Columbia,
British Virgin Islands, Costa Rica, Fiji, Florida, Georgia, Hong Kong, Ireland, Jamaica,
Lithuania, Macao, Mauritius, Mongolia, New Zealand, Ontario, Peru, Korea, Rwanda,
Slovenia, South Africa, Turkmenistan and Uzbekistan.
1040) In particular, the Model Law makes clear the grounds for annulling international
arbitral awards, defines the (limited) scope of national court interference in the
arbitral process, and prescribes the types and extent of judicial support for
international arbitrations.
1041) As discussed above, the New York Convention is properly regarded as directly
applicable in national courts (or self-executing). See§1.04[A][1][d]. Nonetheless, in
states which (wrongly) fail to give the Convention direct application, the Model Law
provides an additional benefit.
1042) UNCITRAL, Note of Secretariat on Further Work in Respect of International
Commercial Arbitration, U.N. Doc. A/CN.9/169, ¶¶6-9 (11 May 1979).
1043) For an updated list of jurisdictions, seewww.uncitral.org.
1044) Bundestags-Drucksache No. 13/5274 of 12 July 1996, reprinted in K. P. Berger, The
New German Arbitration Law 140 (1998), quoted in K. P. Berger, The New German
Arbitration Law in International Perspective, 26 Forum Int’l 4 (2000). See also M.
Krimpenfort, Vorläufige und Sichernde Maßnahmen in Schiedsrichterlichen Verfahren
4-5 (2001).
163
1045) Hong Kong Law Reform Commission, Report on the Adoption of the UNCITRAL Model
Law of Arbitration 6, 11 (1987). See also Singapore Parliamentary Debates, 63 Official
Rep. 624 (31 Oct. 1994) (Ho Peng Kee, Parliamentary Secretary to the Minister for
Law) (“In summary, the reasons why Singapore should adopt the Model Law are as
follows: Firstly, the Model Law provides a sound and internationally accepted
framework for international commercial arbitrations. Secondly, the general
approach of the Model Law will appeal to international businessmen and lawyers
especially those from Continental Europe, China, Indonesia, Japan and Vietnam
who may be unfamiliar with English concepts of arbitration. This will work to
Singapore’s advantage as our businessmen expand overseas. Thirdly, it will
promote Singapore’s role as a growing centre for international legal services and
international arbitrations”); Singapore Law Reform Committee, Report of the Sub-
Committee on Review of Arbitration Laws 13 (1994) (“If Singapore aims to be an
international arbitration centre it must adopt [the Model Law expressing] a world
view of international arbitration”); Australian International Arbitration Act, Art. 2D.
See also Schaefer, Borrowing and Cross-Fertilising Arbitration Laws: A Comparative
Overview of the Development of Hong Kong and Singapore Legislation for
International Commercial Arbitration, 16(4) J. Int’l Arb. 41, 45-49, 54-56 (1999).
1046) See§1.04[B][1][b]-§1.04[B][1][e].
1047) E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International
Commercial Arbitration ¶204 (1999). See also Kerr, Arbitration and the Courts: The
UNCITRAL Model Law, 34 Int’l Comp. L.Q. 1, 19 (1985) (distinguished English judge
warning: “let us never leave arbitration as immune from judicial review, and the
parties as defenseless, as they would be under the present text” of the Model Law).
1048) See, e.g., H. Alvarez, N. Kaplan & D. Rivkin, Model Law Decisions: Cases Applying the
UNCITRAL Model Law on International Commercial Arbitration (2003). See also
Association of International Arbitration, The UNCITRAL Model Law on International
Commercial Arbitration: 25 Years (2010); Beraudo, Case Law on Articles 5, 8, and 16 of
the UNCITRAL Model Arbitration Law, 23 J. Int’l Arb. 101 (2006); Brekoulakis & Shore,
United Nations Commission on International Trade Law (UNCITRAL) Model Law on
International Commercial Arbitration, 1985/2006, in L. Mistelis (ed.), Concise
International Arbitration 581 (2010); Foster & Elsberg, Two New Initiatives for
Provisional Remedies in International Arbitration: Article 17 of the UNCITRAL Model
Law on International Commercial Arbitration and Article 37 of the AAA/ICDR
International Dispute Resolution Procedures, 3(5) Transnat’l Disp. Mgt (2006);
Liebscher, Interpretation of the Written Form Requirement Art. 7(2) UNCITRAL Model
Law, 2005 Int’l Arb. L. Rev. 164; Sanders, UNCITRAL’s Model Law on International and
Commercial Arbitration: Present Situation and Future, 21 Arb. Int’l 443 (2005);
UNCITRAL, Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on
International Commercial Arbitration as Amended in 2006 (2008).
1049) UNCITRAL, Digest of Case Law on the Model Law on International Commercial
Arbitration (2012).
1050) Case Law on UNCITRAL Texts (“CLOUT”), available at
www.uncitral.org/uncitral/en/case_law.html.
1051) McGill Model Arbitration Law Database, available at www.maldb.org.
1052) TCL Air Conditioner (Zhongshan) Co. v. Judges of the Federal Court of Australia, [2013]
HCA 5, ¶7 (Australian High Ct.).
1053) See§1.04[A][1][f].
1054) Wagners Nouvelle Caledonie Sarl v. Vale Inco Nouvelle Caledonie, [2010] QCA 20
(Queensland Ct. App.) (“A reasonable person with the attributes of the parties
would have been aware that the [UNCITRAL Rules] and the Model Law were capable
of operating together. There existed a wealth of commentary and other materials …
to that effect and the terms of the [UNCITRAL Rules] and the Model Law
demonstrated that this was so”); Cargill Int’l SA v. Peabody Australia Mining Ltd,
[2010] NSWSC 887, ¶31 (N.S.W. Sup. Ct.) (“agreement by parties to refer any disputes
to international arbitration under a particular set of procedural rules (as opposed
to an agreement that the lex arbitri should be other than that of the Model Law)
does not constitute an implied agreement to opt out of the Model Law for the
purposes of §21 of the Commonwealth Act”). See also A. Baykitch, Arbitration Law in
Australia: Practice and Procedure 4-5 (2019). An earlier Australian decision held
(wrongly) that an agreement to arbitrate under institutional rules was an opt-out
from the Model Law. Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v.
Australian Granites Ltd, [2001] 1 Qd R 461 (Queensland Ct. App.) (holding that
parties opted out of Model Law by agreeing that any dispute would be finally
settled by arbitration under ICC Rules). In 2010, Australia amended the
International Arbitration Act to provide that the Model Law “covers the field,” and
is the procedural law of locally-seated arbitrations, including where parties have
selected different procedural rules from those of the seat, they are not considered
to have excluded the Model Law.
164
1055) For commentary, see Ancel, Le Nouveau Droit Français de l’Arbitrage: Le Meilleur de
Soi-même, 2011 Arbitraje: Revista de Arbitraje Comercial y de Inversiones 822; J.
Béguin, L’Arbitrage Commercial International (1987); T. Clay (ed.), Le Nouveau Droit
Français de l’Arbitrage (2011); Carducci, The Arbitration Reform in France: Domestic
and International Arbitration Law, 28 Arb. Int’l 125 (2012); Castellane, The New French
Law on International Arbitration, 28 J. Int’l Arb. 371 (2011); D. Cohen, Arbitrage et
Société (1993); S. Crépin, Les Sentences Arbitrales Devant Le Juge Français: Pratique
de l’Exécution et du Contrôle Judiciaires Depuis les Réformes de 1980-1981 (1995);
Darwazeh & Rigaudeau, Clues to Construing the New French Arbitration Law, 28 J.
Int’l Arb. 381 (2011); M. de Boisséson, Le Droit Français de l’Arbitrage Interne et
International (2d ed. 1990); Kiffer, National Report for France (2020 through 2021), in
L. Bosman (ed.), International Handbook on Commercial Arbitration 1 (2020 &
Update December 2020); J.-L. Delvolvé, French Arbitration Law and Practice (2d ed.
2009); Duprey, Présentation du Nouveau Décret sur l’Arbitrage, 2011 Cah. CNB 15; P.
Fouchard, L’Arbitrage Commercial International (1965); P. Fouchard, E. Gaillard & B.
Goldman, Traité de l’Arbitrage Commercial International (1996); Gaillard & de
Lapasse, Commentaire Analytique du Décret du 13 Janvier 2011 Portant Réforme du
Droit Français de l’Arbitrage, 2011:2 Gaz. Pal. 263; Gaillard & de Lapasse, Le Nouveau
Droit Français de l’Arbitrage Interne et International, 2011 Dalloz 175; E. Gaillard & R.
von Mehren, International Commercial Arbitration: Recent Developments (1988); B.
Goldman, Les Conflits de Lois dans l’Arbitrage International de Droit Privé (1963); L.
Gouiffès et al., Recherches sur l’Arbitrage en Droit International et Comparé (1997);
Jarrosson & Pellerin, Le Droit Français de l’Arbitrage Apres le Décret du 13 Janvier
2011, 2011 Rev. Arb. 5; A. Kassis, Problèmes de Base de l’Arbitrage en Droit Comparé et
en Droit International I: Arbitrage Juridictionnel et Arbitrage Contractuel (1987); A.
Kassis, Réflexions sur le Règlement d’Arbitrage de la Chambre de Commerce
Internationale: Les Déviations de l’Arbitrage Institutionnel (1988); E. Loquin,
L’Amiable Composition en Droit Comparé et International: Contribution à l’Étude du
Non-Droit dans l’Arbitrage Commercial (1980); Loquin, La Réforme du Droit Français
de l’Arbitrage Interne et International, 2011 RTD Com. 255; P. Mayer, L’Autonomie de
l’Arbitre International dans l’Appréciation de sa Propre Compétence (1989); B.
Oppetit, Théorie de l’Arbitrage (1998); J-B. Racine, Droit de l’Arbitrage (2016); D. René,
L’Arbitrage dans le Commerce International (1981); J. Robert, L’Arbitrage, Droit
Interne, Droit International Privé (5th ed. 1983); J. Robert & T. Carbonneau, The
French Law of Arbitration (1983); J. Rubellin-Devichi, L’Arbitrage: Nature Juridique,
Droit Interne et Droit International Privé (1965); Schwartz, The New French Arbitration
Decree: The Arbitral Procedure, 2011:2 Gaz. Pal. 349; Seraglini, L’Efficacité et l’Autorité
Tenforcées des Sentences Arbitrales en France Après le Décret No. 2011-48 du 13
Janvier 2011, 2011:2 Gaz. Pal. 375; C. Seraglini & J. Ortscheidt, Droit de l’Arbitrage
Interne et International (2013).
1056) France has historically been the seat for more ICC arbitrations than any other
jurisdiction. See §14.02[B]. France was the seat for 9.3% of all the ICC arbitrations
filed in 2020, 12.42% in 2019, 16.27% in 2018, 14.94% in 2017, 9.94% in 2016, 11.61% in
2015, 11.88% in 2014, 15.51% in 2013 and 13.31% in 2012. ICC, 2020 Dispute Resolution
Statistics 30 (2021); ICC, 2019 Dispute Resolution Statistics 28 (2020); ICC, 2018
Dispute Resolution Statistics, 2019:1 ICC Disp. Resol. Bull. 11, 21; ICC, 2017 Dispute
Resolution Statistics, 2018:2 ICC Disp. Resol. Bull. 51, 60; ICC, 2016 Dispute Resolution
Statistics, 2017:2 ICC Disp. Resol. Bull. 106, 112; ICC, 2015 Dispute Resolution
Statistics, 2016:1 ICC Disp. Resol. Bull. 9, 18; ICC, 2014 Dispute Resolution Statistics,
2015:1 ICC Disp. Resol. Bull. 7, 12; ICC, 2013 Statistical Report, 25(1) ICC Ct. Bull. 5, 13
(2014); ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 16 (2013).
1057) The historical development of arbitration in France prior to the 20th century is
discussed above. See§1.01[B][4].
1058) See Code of Civil Procedure Book IV Arbitration, in J. Paulsson (ed.), International
Handbook on Commercial Arbitration (1984 & Update 2011), for English translations.
The original version is available at www.legifrance.gouv.fr.
1059) The term is defined to include matters involving cross-border transfers of goods or
services. French Code of Civil Procedure, Art. 1504 (“Arbitration is international
when it involves the interests of international commerce”). See§2.03[C][2][c].
1060) French Code of Civil Procedure, Art. 1506 (“Unless the parties have agreed
otherwise, and subject to the provisions of the present Title, the following Articles
shall apply to international arbitration …”).
165
1061) Ancel, French Judicial Attitudes Toward International Arbitration, 9 Arb. Int’l 121
(1993); Audit, A National Codification of International Commercial Arbitration: The
French Decree of May 12, 1981, in T. Carbonneau & M. Domke (eds.), Resolving
Transnational Disputes Through Arbitration 117 (1984); Bellet & Mezger, L’Arbitrage
International dans le Nouveau Code de Procédure Civile, 70 Rev. Critique de Droit
Int’l Privé 611 (1981); Castellane, The New French Law on International Arbitration, 28
J. Int’l Arb. 371 (2011); M. de Boisséson, Le Droit Français de l’Arbitrage Interne et
International ¶21 (2d ed. 1990); Delaume, International Arbitration Under French
Law, 37 Arb. J. 38 (1982); Gaillard, Les Principes Fondamentaux du Nouvel Arbitrage,
in T. Clay (ed.), Le Nouveau Droit Français de l’Arbitrage 59 (2011); Gaillard & de
Lapasse, Commentaire Analytique du Décret du 13 Janvier 2011 Portant Réforme du
Droit Français de l’Arbitrage, 2011:2 Gaz. Pal. 263, ¶¶2-3; Gaillard & de Lapasse, Le
Nouveau Droit Français de l’Arbitrage Interne et International, 2011 Dalloz 175; E.
Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International
Commercial Arbitration¶¶136-39 (1999); Goldman, La Nouvelle Réglementation
Française de l’Arbitrage International, in The Art of Arbitration: Liber Amicorum Pieter
Sanders 153 (1982); Jarrosson & Pellerin, Le Droit Français de l’Arbitrage Après le
Décret du 13 Janvier 2011, 2011 Rev. Arb. 54; Perrot, Sur la Réforme de l’Arbitrage
International, in Travaux du Comité Français de Droit International Privé 1981-1982 53
(1983); von Mehren, International Commercial Arbitration: The Contribution of the
French Jurisprudence, 46 La. L. Rev. 1045 (1985-86).
Commercial Arbitration ¶¶148-51 (1999).
1063) Gaillard & de Lapasse, Commentaire Analytique du Décret du 13 Janvier 2011 Portant
Réforme du Droit Français de l’Arbitrage, 2011:2 Gaz. Pal. 263, ¶¶2-3; Gaillard, Les
Principes Fondamentaux du Nouvel Arbitrage, in T. Clay (ed.), Le Nouveau Droit
Français de l’Arbitrage 59 (2011); Jarrosson & Pellerin, Le Droit Français de l’Arbitrage
Après le Décret du 13 Janvier 2011, 2011 Rev. Arb. 5, 55 (“The decree has not modified
the French approach towards international arbitration, which remains guided by
strong liberalism based on contractual freedom and limited only by international
public policy”); Pierce, Born & Scherer, Revision to French Arbitration Law Arrives,
N.Y. L.J. S5 (16 May 2011) (“With its most recent revision of its arbitration law, France
seeks to put itself once more at the forefront of modern international arbitration
legislation. … The new law is in line with the long-standing tradition of innovative
and ‘arbitration-friendly’ arbitration law in France, which has been important in
establishing Paris as one of the world’s most popular venues for international
arbitration”).
1064) French Code of Civil Procedure, Art. 1447. See Carducci, The Arbitration Reform in
France: Domestic and International Arbitration Law, 28 Arb. Int’l 125, 130-32 (2012);
Castellane, The New French Law on International Arbitration, 28(4) J. Int’l Arb. 371
(2011). See also Judgment of 7 May 1963, Ets Raymond Gosset v. Carapelli, JCP G 1963,
II, 13, ¶405 (French Cour de Cassation Civ. 1) (“In international arbitration, the
arbitration agreement, whether concluded separately or included in the contract
to which it relates, shall, save in exceptional circumstances …, have full legal
autonomy and shall not be affected by the fact that the aforementioned contract
may be invalid …”); E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on
International Commercial Arbitration ¶¶391 et seq. (1999). French courts have given
robust effect to the separability doctrine. See§3.02[B][3][d].
1065) Judgment of 20 December 1993, Municipalité de Khoms El Mergeb v. Dalico, 1994 Rev.
Arb. 116 (French Cour de Cassation Civ. 1); Judgment of 17 December 1991, Gatoil v.
Nat’l Iranian Oil Co., 1993 Rev. Arb. 281, 284 (Paris Cour d’Appel) (“in the field of
international arbitration, the principle of the autonomy of the arbitration
agreement is of general application, as an international substantive rule upholding
the legality of the arbitration agreement”); E. Gaillard & J. Savage (eds.), Fouchard
Gaillard Goldman on International Commercial Arbitration ¶¶436-37 (1999).
1066) Judgment of 20 December 1993, Municipalité de Khoms El Mergeb v. Dalico, 1994 Rev.
Arb. 116, 117 (French Cour de Cassation Civ. 1).
1067) French Code of Civil Procedure, Art. 1465 (“The arbitral tribunal alone has
jurisdiction to rule on objections to its jurisdiction …”); Jarrosson & Pellerin, Le Droit
Français de l’Arbitrage Après le Décret du 13 Janvier 2011, 2011 Rev. Arb. 5, ¶35
(Article 1465 confirms the “positive aspect of the competence-competence
principle, which is directed at the arbitral tribunal and which complements its
negative aspect which is directed at the state courts”). See also§7.03[B][1].
166
1068) French Code of Civil Procedure, Art. 1448 (“When a dispute subject to an arbitration
agreement is brought before a court, such court shall decline jurisdiction, except if
an arbitral tribunal has not yet been seized of the dispute and if the arbitration
agreement is manifestly void or manifestly not applicable”); Carducci, The
Arbitration Reform in France: Domestic and International Arbitration Law, 28 Arb.
Int’l 125, 133 (2012) (“A very important provision codifies the ‘negative effect’ of
Kompetenz-Kompetenz that has been anticipated by the Cour de Cassation and is
mandatory in nature”); Gaillard, France Adopts New Law on Arbitration, N.Y. L.J. (24
Jan. 2011) (“when no arbitral tribunal has been constituted yet, the courts will be
entitled to rule on the dispute only where a prima facie examination of the
arbitration agreement establishes that such agreement is manifestly void or
manifestly not applicable”); Jarrosson & Pellerin, Le Droit Français de l’Arbitrage
Après le Décret du 13 Janvier 2011, 2011 Rev. Arb. 5, ¶35. See also§7.03[B][2].
Commercial Arbitration¶¶418-19, 436-37 (1999). See Judgment of 20 December 1993,
Municipalité de Khoms El Mergeb v. Dalico, 1994 Rev. Arb. 116, 117 (French Cour de
Cassation Civ. 1) (“no need to refer to any national law”); Judgment of 4 July 1972,
Hecht v. Buisman’s, 99 J.D.I. (Clunet) 843, 845 (French Cour de Cassation Civ. 1) (1972)
(“total autonomy of arbitration agreement in the field of international
arbitration”). See§4.02[A][2][c].
1070) See E. Gaillard & J. Savage (eds.), Fouchard Gaillard Goldman on International
Commercial Arbitration ¶574 (1999) (antitrust, intellectual property, bankruptcy
and corporate law issues are arbitrable). See also§6.03[C][3].
Commercial Arbitration ¶481 (1999). See also§9.02[D][2].
1072) French Code of Civil Procedure, Arts. 1508-1509, 1511-1512. See also§12.03[D][1];
§15.02[B].
1073) French Code of Civil Procedure, Arts. 1464, 1509; Jarrosson & Pellerin, Le Droit
Français de l’Arbitrage Après le Décret du 13 Janvier 2011, 2011 Rev. Arb. 5, ¶34. See
also§15.03[B]; §15.06[B].
1074) French Code of Civil Procedure, Art. 1468. However, seizures of property and
compulsory posting of security may only be ordered by the French courts. See Clay,
L’Appui du Juge à l’Arbitrage, 2011:2 Gaz. Pal. 331, ¶¶49-51.
1075) French Code of Civil Procedure, Arts. 1452-1454. See Clay, L’Appui du Juge à
l’Arbitrage, 2011:2 Gaz. Pal. 331.
1076) French Code of Civil Procedure, Arts. 1448, 1468 (French courts may order
provisional measures upon request of party before arbitral tribunal is constituted;
following constitution of tribunal, it may issue such measures, except for seizures
and security which may only be ordered by French courts). See Clay, L’Appui du Juge
à l’Arbitrage, 2011:2 Gaz. Pal. 331, ¶¶49-51. See also§17.04[C][1][b].
Commercial Arbitration¶1290 (1999). Among other things, the Tribunal de Grande
Instance is responsible for selecting arbitrators and dealing with other problems in
constituting a tribunal, in cases where the parties have not agreed upon
institutional or other mechanisms. See French Code of Civil Procedure, Arts. 1452-
1454, 1505; Judgment of 22 November 1989, Philipp Bros. v. Drexel Burnham Lambert,
1990 Rev. Arb. 142 (French Cour de Cassation Civ. 2); Clay, L’Appui du Juge à
l’Arbitrage, 2011:2 Gaz. Pal. 331. See also §12.06[B][2].
1078) French Code of Civil Procedure, Art. 1520. See§25.06. Following the decree of 13
January 2011, French law allows the parties to waive (by special agreement) the
right to seek annulment of an award made in France. See French Code of Civil
Procedure, Art. 1522 (“The parties may, by specific agreement, waive at any time
their right to challenge the award”). See also Seraglini, L’Efficacité et l’Autorité
Renforcées des Sentences Arbitrales en France Après le Décret No. 2011-48 du 13
Janvier 2011, 2011:2 Gaz. Pal. 375, ¶30.
1079) French Code of Civil Procedure, Arts. 1520, 1525. See§25.06; §26.03[B][6].
1080) For commentary, see D. Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s
Guide (2d ed. 2018); B. Berger & F. Kellerhals, International and Domestic Arbitration
in Switzerland (4th ed. 2021); B. Berger & F. Kellerhals, Internationale und interne
Schiedsgerichtsbarkeit in der Schweiz (2006); S. Berti et al. (eds.), Basler Kommentar
Internationales Privatrecht (2d ed. 2007); S. Berti et al. (eds.), International
Arbitration in Switzerland (2000); E. Geisinger & N. Voser (eds.), International
Arbitration in Switzerland (2008); E. Geisinger & N. Voser (eds.), International
Arbitration in Switzerland: A Handbook for Practitioners (2d ed. 2013); D. Girsberger
& N. Voser, International Arbitration: Comparative and Swiss Perspectives (4th ed.
2021); G. Kaufmann-Kohler & A. Rigozzi, Arbitrage International: Droit et Pratique à la
Lumière de la LDIP (2007); P. Lalive, J.-F. Poudret & C. Reymond, Le Droit de
l’Arbitrage Interne et International en Suisse (1989); J.-F. Poudret & S. Besson,
Comparative Law of International Arbitration (2d ed. 2007); T. Rüede & R.
Hadenfeldt, Schweizerisches Schiedsgerichtsrecht (2d ed. 1993); T. Zuberbühler, C.
Müller & P. Habegger (eds.), Swiss Rules of International Arbitration: Commentary
(2d ed. 2013); G. Walter, W. Bosch & J. Brönnimann, Internationale
Schiedsgerichtsbarkeit in der Schweiz (1991); von Segesser & Schramm, Swiss
International Arbitration Act (Chapter 12: International Arbitration), 1989, in L.
Mistelis (ed.), Concise International Arbitration 911 (2010).
167
1081) Switzerland was the most popular seat for arbitration in 2020 (104 ICC arbitrations),
third most popular seat in 2019 (84 ICC arbitrations), and second most popular seat
in 2018 (78 ICC arbitrations). ICC, 2020 Dispute Resolution Statistics 16 (2021); ICC,
2019 Dispute Resolution Statistics 14 (2020); ICC, 2018 Dispute Resolution Statistics,
30(1) ICC Disp. Resol. Bull. 11, 21 (2019); ICC, 2017 Dispute Resolution Statistics, 29(2)
ICC Disp. Resol. Bull. 51, 60 (2018); ICC, 2016 Dispute Resolution Statistics, 28(2) ICC
Disp. Resol. Bull. 106, 112 (2017); ICC, 2015 Dispute Resolution Statistics, 27(1) ICC
Disp. Resol. Bull. 9, 14 (2016).
1082) The historical development of arbitration in Switzerland prior to the 20th century
is summarized briefly above. See§1.01[B][7].
1083) The leading members of the committee were Professor Pierre Lalive and Dr. Marc
Blessing. See Blessing, in S. Berti et al. (eds.), International Arbitration in Switzerland
Intro. ¶426 (2000).
1084) Swiss Federal Council, Botschaft zur Änderung des Bundesgesetzes über das
Internationale Privatrecht (12. Kapitel: Internationale Schiedsgerichtsbarkeit) (24 Oct.
2018), available at www.admin.ch.
1085) von Segesser & Petti, The Changing Legal Landscape of Arbitration in Switzerland,
Global Arb. Rev. (17 Nov. 2021).
1086) See Swiss Law on Private International Law, Arts. 179, 180a, 180b.
1087) Swiss Federal Federal Tribunal, Art. 77(2)-bis; von Segesser & Petti, The Changing
Legal Landscape of Arbitration in Switzerland, Global Arb. Rev. (17 Nov. 2021).
1088) See Blessing, in S. Berti et al. (eds.), International Arbitration in Switzerland
Introduction ¶414 (2000).
1089) The current version of Chapter 12 of the Swiss Law on Private International Law is
available at https://www.fedlex.admin.ch/eli/cc/1988/1776_1776_1776/en. English,
German, French and Italian translations can be found at
https://www.swissarbitration.org/swiss-arbitration/swiss-arbitration-laws/.
1090) Swiss Law on Private International Law, Art. 178(3). See§3.02[B][3][b].
1091) Swiss Law on Private International Law, Art. 178(2). See§4.02[A][2][b]; §4.04[B][3][d].
1092) Swiss Law on Private International Law, Art. 186. See§7.03[C][1].
1093) Swiss Law on Private International Law, Art. 177. See§6.03[C][2].
1094) See§9.02[D][1][b].
1095) See§8.03[C][1]; Judgment of 6 August 2012, 30 ASA Bull. 864, ¶3.2 (2012) (Swiss Fed.
Trib.); Judgment of 29 April 1996, 14 ASA Bull. 527 (1996) (Swiss Fed. Trib.) (where
party challenges jurisdiction under arbitration agreement providing for seat in
Switzerland, Swiss court must decline jurisdiction, unless it concludes upon a
prima facie examination that arbitration agreement is null and void, inoperative,
or incapable of being performed); Judgment of 16 January 1995, Compagnie de
Navigation et Transports SA v. Mediterranean Shipping Co., XXI Y.B. Comm. Arb. 690
(1996) (Swiss Fed. Trib.) (where party challenges jurisdiction under arbitration
agreement providing for seat abroad, Swiss court must subject question of validity
and scope of agreement to full judicial consideration); D. Girsberger & N. Voser,
International Arbitration: Comparative and Swiss Perspectives ¶509 (4th ed. 2021);
Wenger, in S. Berti et al. (eds.), International Arbitration in Switzerland Art. 178 & Art.
186, ¶¶5 et seq. (2000).
1096) Swiss Law on Private International Law, Arts. 182, 187.
1097) Id. at Arts. 179(2), 179(3), 183(2), 184(2), 185.
1098) von Segesser & Petti, The Changing Legal Landscape of Arbitration in Switzerland,
Global Arb. Rev. (17 Nov. 2021). See also Swiss Law on Private International Law,
Arts. 183(2), 184(2), 185a.
1099) Id. at Arts. 183(2), 184(2).
1100) Id. at Art. 185a.
1101) Id. at Art. 190(2). Dasser & Wojtowicz, Swiss International Arbitral Awards Before the
Federal Supreme Court. Statistical Data 1989-2019, 39(1) ASA Bull. 7 (2021).
1102) Id. at Art. 192 (“If none of the parties has their domicile, habitual residence or seat
in Switzerland, they may, by a declaration in the arbitration agreement or by
subsequent agreement, wholly or partly exclude all appeals against arbitral
awards”). See§25.07[A][1]-§25.07[A][2].
1103) Swiss Law on Private International Law, Arts 189a, 190; von Segesser & Petti, The
Changing Legal Landscape of Arbitration in Switzerland, Global Arb. Rev. (17 Nov.
2021).
1104) Swiss Law on Private International Law, Art. 194.
1105) Id. at Art. 191(1).
168
1106) There is extensive commentary on the English Arbitration Act, 1996. See, e.g.,
Arbitration International, The 1996 English Arbitration Act: A Ten Year Retrospective,
23 Arb. Int’l 431 (2007); British Institute of International and Comparative Law, The
Eleventh Annual Review of the Arbitration Act: Is English Law Really Better? (2008);
Fraser, Arbitration of International Commercial Disputes Under English Law, English
Arbitration Act 1996, 8 Am. Rev. Int’l Arb. 1 (1997); B. Harris, R. Planterose & J. Tecks,
The Arbitration Act 1996: A Commentary (5th ed. 2015); R. Merkin & L. Flannery,
Arbitration Act 1996 (6th ed. 2019); R. Merkin, Arbitration Act 1996: An Annotated
Guide (2005); R. Merkin, Arbitration Law (1991 & Update March 2022); M. Mustill & S.
Boyd, Commercial Arbitration (2d ed. 1989 & 2001 Companion); Saville, The Origin of
the New English Arbitration Act 1996: Reconciling Speed with Justice in the Decision-
Making Process, 13 Arb. Int’l 237 (1997); D. Sutton, J. Gill & M. Gearing, Russell on
Arbitration (24th ed. 2015).
1107) The United Kingdom was the seat for approximately 9.15% of all ICC arbitrations
filed in 2020, 13.11% in 2019 (the most frequently selected place of arbitration),
8.5% in 2018, 9% in 2017, 6.3% in 2016, 7.1% in 2015, 10.8% in 2014, 9.4% in 2013, 9.3%
in 2012, 7.8% in 2011, 8.8% in 2010 and 10.1% in 2000: ICC, 2020 Dispute Resolution
Statistics 16 (2021); ICC, 2019 Dispute Resolution Statistics 14 (2020); ICC, 2018 Dispute
Statistics, 2018:2 ICC Disp. Resol. Bull. 51, 60; ICC, 2016 Dispute Resolution Statistics,
2017:2 ICC Disp. Resol. Bull. 106, 112; ICC, 2015 Dispute Resolution Statistics, 2016:1
ICC Disp. Resol. Bull. 9, 18; ICC, 2014 Dispute Resolution Statistics, 2015:1 ICC Disp.
Resol. Bull. 7, 13; ICC, 2013 Statistical Report, 25(1) ICC Ct. Bull. 5, 14 (2014); ICC, 2012
Statistical Report, 24(1) ICC Ct. Bull. 5, 16 (2013); ICC, 2011 Statistical Report, 23(1) ICC
Ct. Bull. 5, 14 (2012); ICC, 2010 Statistical Report, 22(1) ICC Ct. Bull. 5, 14 (2011); ICC,
2000 Statistical Report, 12(1) ICC Ct. Bull. 5, 13 (2001). See§14.02[B].
1108) English Arbitration Act, 1996, §2(1) (“provisions of this Part apply where the seat of
the arbitration is in England and Wales or Northern Ireland”).
1109) Goode, The Role of the Lex Loci Arbitri in International Commercial Arbitration, 17
Arb. Int’l 19, 19 (2001) (“Arbitration Act 1996, unlike early versions of the draft
Arbitration Bill prepared for the Departmental Advisory Committee on Arbitration,
bears the strong impress of the Model Law”); Saville, The Origin of the New English
Arbitration Act 1996: Reconciling Speed with Justice in the Decision-Making Process,
13 Arb. Int’l 237 (1997). The Act differs from the UNCITRAL Model Law in a number of
respects. For a summary of the most important of these, see R. Merkin, Arbitration
Law ¶1.22 (1991 & Update March 2022).
1110) See§1.01[B][3].
1111) Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J. 2, 24-
32 (1999).
1112) Compare the 23 (short) sections of the French New Code of Civil Procedure and the
19 (shorter) sections of the Swiss Law on Private International Law.
1113) See Hunter, Arbitration Procedure in England: Past, Present and Future, 1 Arb. Int’l 82
(1985); Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J.
2, 14, 19 (1999). The historical development of commercial arbitration in England
prior to the 20th century is described above. See§1.01[B][3].
(1999).
1115) English Arbitration Act, 1979, §§1(3)(a), 1(3)(b), 3; Antaios Compania Naviera SA v.
Salen Rederierna AB [1985] AC 191 (House of Lords); Pioneer Shipping v. B.T.P. Tioxide
[1982] AC 724 (House of Lords); Macassey, English Arbitration, XV J. Inst. Arb. 63 (1947).
1116) For commentary on English arbitration law prior to 1996, see B. Harris, R. Planterose
& J. Tecks, The Arbitration Act 1996: A Commentary (4th ed. 2007); R. Merkin,
Arbitration Law (1991 & Update March 2022). D. Sutton, J. Gill & M. Gearing, Russell
on Arbitration ¶¶1-042 to 054 (24th ed. 2015)For a critical overview, see Samuel,
Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J. 2, 19 (1999) (“A
great deal of ink has been spilt on this ill-conceived piece of compromise
legislation”); Samuel, The 1979 Arbitration Act: Judicial Review of Arbitral Awards on
the Merits in England, 2(4) J. Int’l Arb. 53 (1985).
1117) Ashville Inv. Ltd v. Elmer Contractors Ltd [1988] 3 WLR 867 (English Ct. App.); Samuel,
Separability in English Law: Should An Arbitration Clause Be Regarded as An
Agreement Separate and Collateral to A Contract in Which It Is Contained?, 3(3) J. Int’l
Arb. 95 (1986). The separability presumption was recognized in England in Harbour
Assur. Co. (U.K.) Ltd v. Kansa Gen. Int’l Ins. Co. [1993] 3 All ER 897 (English Ct. App.).
See§3.02[B][3][f].
1118) See English Arbitration Act, 1979, §§3-4; R. Merkin, Arbitration Law ¶22.5 (1991 &
Update March 2022).
1119) English Arbitration Act, 1979, §§3-4; R. Merkin, Arbitration Law ¶22.5 (1991 & Update
March 2022).
1120) Marriott, The Politics of Arbitration Reform, 14 C.L.Q. 125 (1995). See§25.05[A][1][b];
§25.07[A][1].
1121) See U.K. Departmental Advisory Committee on Arbitration Law, Report on the
Arbitration Bill (1996); U.K. Departmental Advisory Committee on Arbitration Law,
Supplement to the Departmental Advisory Committee on Arbitration Law Report of
February 1996 (1997).
169
1122) Chukwumerije, Reform and Consolidation of English Arbitration Law, 8 Am. Rev. Int’l
Arb. 21 (1996); Mustill, A New Arbitration Act for the United Kingdom? The Response of
the Departmental Advisory Committee to the UNCITRAL Model Law, 6 Arb. Int’l 3
(1990); Saville, The Origin of the New English Arbitration Act 1996: Reconciling Speed
with Justice in the Decision-Making Process, 13 Arb. Int’l 237 (1997).
1123) English Arbitration Act, 1996, §§5-6, 9; Stemcor UK Ltd v. Global Steel Holdings Ltd
[2015] EWHC 363 (Comm) (English High Ct.). See§5.02[A][5][e]; §8.03[C][1].
1124) English Arbitration Act, 1996, §7. See§3.02[B][3][f].
1125) English Arbitration Act, 1996, §§30, 31, 67; Aeberli, Jurisdictional Disputes Under the
Arbitration Act 1996: A Procedural Route Map, 21 Arb. Int’l 253, 260-65 (2005).
See§7.03[F].
1126) See Enka Insaat Ve Sanayi AS v. OOO Ins. Co. Chubb [2020] UKSC 38, ¶107 (U.K. S.Ct.)
(citing G. Born, International Commercial Arbitration 1403 (2d ed. 2014)); Fiona Trust
& Holding Corp. v. Privalov [2007] 1 All ER 891 (Comm) (English Ct. App.), aff’d, [2007]
UKHL 40 (House of Lords); Film Fin. Inc. v. Royal Bank of Scotland [2007] EWHC 195
(Comm) (English High Ct.). See also Chan & Yang, Ascertaining the Proper Law of an
Arbitration Agreement: The Artificiality of Inferring Intention When There Is None,
37(5) J. Int’l Arb. 635 (2020) (discussing Enka v. Chubb and Kabab-Ji v. Kout Food
Group); Koepp & Turner, A Massive Fire and A Mass of Confusion: Enka v. Chubb and
the Need for a Fresh Approach to the Choice of Law Governing the Arbitration
Agreement, 38(3) J. Int’l Arb. 377 (2021); Phua & Chan, The Distinctive Status of
International Arbitration Agreements in English Private International Law?, 36(3) Arb.
Int’l 419 (2020) (critically discussing Enka v. Chubb); Tseng, Fiona Trust in Context:
Interpreting Arbitration Clauses Following Rinehart v Hancock, 36(1) Arb. Int’l 109
(2020).
1127) See Fulham Football Club (1987) Ltd v. Richards [2011] EWCA Civ 855 (English Ct.
App.); ET Plus SA v. Jean-Paul Welter [2005] EWHC 2115 (Comm) (English High Ct.); R.
Merkin, Arbitration Law ¶3.17 (1991 & Update March 2022); §6.03[C][5].
1128) The Act underscores the parties’ autonomy and the tribunal’s discretion to conduct
the arbitral proceedings. English Arbitration Act, 1996, §§33-34. See§15.02[B];
§15.03[B]. Reflecting Article 5 of the UNCITRAL Model Law, the English Arbitration
Act, 1996, provides that, in matters covered by Part I (“Arbitration Pursuant to an
Arbitration Agreement”) “the court should not intervene except as provided by this
part.” See English Arbitration Act, 1996, §1(c).
1129) English Arbitration Act, 1996, §34(1) (“It shall be for the tribunal to decide all
procedural and evidential matters, subject to the right of the parties to agree any
matter …”). See§15.03[B].
1130) English Arbitration Act, 1996, §37. See§15.08[Z][8].
1131) English Arbitration Act, 1996, §37. See§17.02[G][4][f].
1132) English Arbitration Act, 1996, §§38(4), 39. See§17.02[G][4][a].
1133) See; . This contrasts with the English Arbitration Act, 1950, which operated on the
presumption that arbitrators were to act in accordance with the ordinary rules of
evidence under applicable English law. See Land Sec. plc v. Westminster City
Council [1992] 44 EG 153 (QB) (English High Ct.).
1134) English Arbitration Act, 1996, §44. See§16.03[A][2]; Burn & Cheung, Section 44 of the
English Arbitration Act 1996 and Third Parties to Arbitration, 37(1) Arb. Int’l 287-323
(2021); Freeman & Latasz, Non-Identical Twins: Judicial Assistance for Obtaining
Evidence under Sections 43 and 44 of the English Arbitration Act, 39(1) ASA Bull. 61
(2021).
1135) English Arbitration Act, 1996, §§16, 18-19, 24. See§12.03[F][7][b]; §12.06[B][1];
§12.06[C][2]. On the UK Supreme Court’s recent judgment in Halliburton v. Chubb
concerning the test for apparent bias and the issue of arbitrators’ duties of
disclosure, see Kimmins et al., The Test for Apparent Bias and Arbitrators’ Duties of
Disclosure Following Halliburton v. Chubb: Welcome Clarification, but Questions
Remain, 38(3) J. Int’l Arb. 359 (2021); Nga & Adeleye, The English Supreme Court’s
Decision in Halliburton v. Chubb: An Examination of the Issues Arising from
Arbitrators’ Acceptance of Multiple Appointments in Related Arbitrations and
Arbitrator’s Duty to Disclose, 88(1) Int’l J. Arb. Med. & Disp. Mgt 201 (2022).
1136) English Arbitration Act, 1996, §44. See Gerald Metals SA v. Timis [2016] EWHC 2327
(Ch) (English High Ct.); Burn & Cheung, Section 44 of the English Arbitration Act 1996
and Third Parties to Arbitration, 37(1) Arb. Int’l 287 (2021).
1137) Lesotho Highlands Dev. Auth. v. Impregilo SpA [2005] UKHL 43, ¶18 (House of Lords).
1138) English Arbitration Act, 1996, §§67-69. See§25.05[A][1][b].
1139) English Arbitration Act, 1996, §69. See§25.05[A][1][b].
1140) Lesotho Highlands Dev. Auth. v. Impregilo SpA [2005] UKHL 43 (House of Lords)
(parties exclude right of appeal under §69 by way of Article 26(6) of 1998 ICC Rules);
BLCT Ltd v. J. Sainsbury plc [2003] EWCA Civ 884 (English Ct. App.); Athletic Union of
Constantinople v. Nat’l Basketball Ass’n [2002] 1 Lloyd’s Rep. 305 (English Ct. App.);
Essar Oilfields Servs. Ltd v. Norscot Rig Mgt Pvt Ltd, [2016] EWHC 2361, ¶4 (Comm)
(English High Ct.) (by arbitrating under ICC Rules, parties had excluded any right of
appeal by virtue of Article 28(6) of ICC Rules); C v. D1 [2015] EWHC 2126, ¶76 (Comm)
(English High Ct.) (challenge under §69 precluded by parties’ agreement to
arbitrate under LCIA Rules); Sanghi Polyesters (India) Ltd v. Int’l Investor (KCFC,
Kuwait) [2000] 1 Lloyd’s Rep. 480 (QB) (English High Ct.).
1141) English Arbitration Act, 1996, §§100-104. See§25.05[A][1][b].
170
1142) The U.K. Law Commission’s announcement is available at
https://www.lawcom.gov.uk/law-commission-to-review-the-arbitration-act-1996/.
1143) Kantor, Law Commission Review of the Arbitration Act: Substantive Changes to
Appeals and Challenges?, Kluwer Arb. Blog (15 Mar. 2022).
1144) For more information regarding the timeline of the review process, see
https://www.lawcom.gov.uk/project/review-of-the-arbitration-act-1996/.
1145) For commentary on international arbitration in the United States, see Restatement
of the U.S. Law of International Commercial and Investor-State Arbitration (2019);
Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J. Int’l L. 115 (2018);
E. Brunet et al., Arbitration Law in America: A Critical Assessment (2006); J. Carter & J.
Fellas, International Commercial Arbitration in New York (2d ed. 2016); Drahozal,
New Experiences of International Arbitration in the United States, 54 Am. J. Comp. L.
233 (2006); Drahozal, The New York Convention and the American Federal System,
2012 J. Disp. Resol. 101, 107-08 (2012); L. Edmonson (ed.), Domke on Commercial
Arbitration (3d ed. 2010 & Update 2019); F. Kellor, American Arbitration: Its History,
Functions and Achievements (2000); A. Lowenfeld, International Litigation and
Arbitration (3d ed. 2005); I. Macneil, American Arbitration Law: Reformation,
Nationalization, Internationalization (1992); I. MacNeil et al., Federal Arbitration Law:
Agreements, Awards and Remedies Under the Federal Arbitration Act (1994-2002); P.
Martinez-Fraga, The American Influence on International Arbitration (2009); L. Shore
et al., International Arbitration in the United States (2017).
1146) The United States was the seat for approximately 9.3% of all ICC arbitrations filed
in 2020, 5.6% in 2019, 12.4% in 2018, 8.8% in 2017, 8.3% in 2016, 7.5% in 2015, 7.3% in
2014, 4.9% in 2013, 5.4% in 2012 and 7.9% in 2000. ICC, 2020 Dispute Resolution
Statistics 30 (2021); ICC, 2019 Dispute Resolution Statistics 28 (2020); ICC, 2018
Dispute Resolution Statistics, 2019:1 ICC Disp. Resol. Bull. 11, 21; ICC, 2017 Dispute
Statistics, 2017:2 ICC Disp. Resol. Bull. 106, 112; ICC, 2015 Dispute Resolution
Statistics, 2016:1 ICC Disp. Resol. Bull. 9; ICC, 2014 Dispute Resolution Statistics,
2015:1 ICC Disp. Resol. Bull. 7, 13; ICC, 2013 Statistical Report, 25(1) ICC Ct. Bull. 5, 14
(2014); ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 16 (2013); ICC, 2011 Statistical
Report, 23(1) ICC Ct. Bull. 5, 12 (2012); ICC, 2010 Statistical Report, 22(1) ICC Ct. Bull. 5,
13 (2011); 2000 Statistical Report, 12(1) ICC Ct. Bull. 5, 13 (2001).
1147) In 2020, 9.25% of the parties to new ICC arbitrations were from the U.S., the highest
proportion of any nation. 5.98% were Brazilian, the second highest proportion, and
2.19% were U.K., the thirteenth highest proportion. ICC, 2020 Dispute Resolution
Statistics 24 (2021); ICC, 2017 Dispute Resolution Statistics, 2018:2 ICC Disp. Resol.
Bull. 51, 53. Likewise, 6.9% of all parties to ICC arbitrations filed in 2011 were U.S.
parties, the highest proportion of any nation. ICC, 2011 Statistical Report, 23(1) ICC
Ct. Bull. 5, 9 (2012).
1148) See§14.02[B]. See also, Tompkins, There Is No Impending Crisis: A Look Beyond the
Sixth Circuit’s Decision to Permit Section 1782 Discovery for Use in International
Commercial Arbitration, 36(1) Arb. Int’l 87 (2020).
1149) U.S. FAA, 9 U.S.C. §§1-16 (domestic and non-New York or Inter-American Convention
international arbitrations), §§201-208 (New York Convention), §§301-307 (Inter-
American Convention).
1150) For much of the 20th century, Japan’s arbitration legislation dated to 1890; it was
replaced with a more modern statutory enactment in 2004. See Oghigan, Japan’s
New Arbitration Law, 2005 Asian Disp. Resol. 56; Suzuki, Japan’s New Arbitration Law,
2005 Asian Disp. Resol. 16.Niue (one of the Pacific Islands) currently appears to
have the world’s oldest arbitration legislation, dating to 1908 (two decades before
the U.S. FAA). Niue Arbitration Act, 1908.
1151) For a discussion of the respective roles of federal and state law in international
arbitration in the United States, see §1.04[A][1][e]; §4.04[A][2][j].
1152) See§1.01[B][5]; Red Cross Line v. Atl. Fruit Co., 264 U.S. 109, 121-22 (U.S. S.Ct. 1924);
Tobey v. County of Bristol, 23 F.Cas. 1313 (C.C.D. Mass. 1845).
1153) See§1.01[B][5].
1154) Id.
1155) New York Arbitration Law, 1920, Ch. 275, Laws 803-808. See§1.01[B][5].
1156) An American Bar Association committee prepared the initial draft of what was then
called the “United States Arbitration Act.” That bill was first introduced in Congress
in 1922. See S. 4214, 67th Cong., 4th Sess., 64 Cong. Rec. 732 (1922); H.R. 13522, 67th
Cong., 4th Sess., 64 Cong. Rec. 797 (1922). The Senate Judiciary Committee held
hearings on the bill in 1923. See Hearings on S. 4213 and S. 4214 Before the
Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess. (1923).
Joint congressional hearings on the bill were held in 1924. Joint Hearings on S. 1005
and H.R. 646 Before the Subcommittee of the Committees on the Judiciary, 68th
Cong., 1st Sess. (1924).
1157) S. Rep. No. 536, 68th Cong., 1st Sess. 3 (1924); Committee on Commerce, Trade and
Commercial Law, The United States Arbitration Act and Its Application, 11 A.B.A. J.
153, 155-56 (1925).
1158) Hearings on S. 4213 and S. 4214 Before the Subcommittee of the Senate Committee on
the Judiciary, 67th Cong., 4th Sess., 14 (1923) (Letter from H. Hoover, Secretary of
Commerce).
171
1159) Id. (ABA Report).
1160) Supporters of the FAA stated on numerous occasions, without contradiction, that
support for the legislation was universal. Id. at 3, 5, 17, 21.
1161) Even after the passage of the FAA, U.S. courts’ historical mistrust of arbitration
agreements was reflected in the Restatement (First) Contracts, published in 1932.
Restatement (First) Contracts §550 (1932) (“a bargain to arbitrate either an existing
or a possible future dispute … will not be specifically enforced, and only nominal
damages are recoverable for its breach”). While noting that Congress had enacted
the FAA, the Restatement observed that “such statutes have not as yet been
generally enacted in the United States.” Id.
1162) 65 Cong. Rec. 1931 (1924).
1163) See§1.01[B][3] & §1.01[B][5].
1164) Hearings on S. 4213 and S. 4214 Before the Subcommittee of the Senate Committee
on the Judiciary, 67th Cong., 4th Sess., 2 (1923).
1165) U.S. FAA, Chp. 392, §1, 62 Stat. 669 (1947) (as codified at 9 U.S.C. §§1-16).
1166) U.S. FAA, 84 Stat. 692 (1970) (as codified at 9 U.S.C. §§201-208).
1167) U.S. FAA, Pub. L. 101-369 (1990) (as codified at 9 U.S.C. §§301-307).
1168) Cf. Samuel, Arbitration Statutes in England and the USA, 8 Arb. & Disp. Resol. L.J. 2,
32 (1999) (“The [FAA] falls in the category of ‘small but perfectly formed.’ It is very
resilient and loosely enough drafted in the right places to enable the court to do
the right thing for the arbitral process.”).
1169) The FAA applies to arbitration agreements and awards affecting either inter-state
or foreign commerce. U.S. FAA, 9 U.S.C. §1. See§2.03[B][2][b]. These jurisdictional
grants have been interpreted expansively. See G. Born, International Commercial
Arbitration: Commentary and Materials 124-26, 388-89 (2d ed. 2001). The FAA’s focus
was principally domestic, although it also expressly applies to “foreign commerce.”
U.S. FAA, 9 U.S.C. §1.
1170) U.S. FAA, 9 U.S.C. §2. For discussion of §2 and its “savings clause,” see§4.04[A][2][j][i].
1171) U.S. FAA, 9 U.S.C. §§3-4. For a discussion of §§3 and 4, see§8.02[A][2]; §8.02[C];
§14.08[B][2].
1172) See U.S. FAA, 9 U.S.C. §5; §12.03[F][2][b].
1173) See U.S. FAA, 9 U.S.C. §7; §16.03[A][4].
1174) See U.S. FAA, 9 U.S.C. §§9-11; §22.01[B][3]; §25.03[B].
1175) See U.S. FAA, 9 U.S.C. §13.
1176) The domestic FAA consists of only 16 articles, a number of which are archaic or
immaterial. This contrasts with the much lengthier English Arbitration Act and
UNCITRAL Model Law, see§1.04[B][1][e][iii]; §1.04[B][1][a], while roughly paralleling
French and Swiss legislative style, see§1.04[B][1][b]-§1.04[B][1][c].
1177) See§1.04[B][1][e][ii].
1178) See, Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193, 203 (U.S. S.Ct.
2000) (some international arbitrations are “not covered by either convention”).
1179) Compare Restatement (Third) U.S. Law of International Commercial Arbitration §4-3
Reporters’ Note e(i) (Tentative Draft No. 2 2012) (“The Restatement position is that
applying FAA Chapter One to non-Convention awards is most consistent with the
text of the FAA and the federal policy in favor of arbitral dispute resolution”) with
Restatement of the U.S. Law of International Commercial and Investor-State
Arbitration §4.3(e) (2019) (“Non-Convention awards, like foreign Convention awards,
are of course subject to recognition and enforcement in the United States.
However, such awards do not fall under either Chapter 2 or Chapter 3 of the FAA,
since both chapters are confined to awards made on the territory of a Convention
State. The law that governs the recognition and enforcement of non-Convention
awards is accordingly uncertain.”), §4.3(e) Reporters’ Note e(i) (setting out three
bodies of law that may govern recognition and enforcement of non-Convention
awards).
1180) For commentary on the U.S. ratification of the Convention, see Aksen, American
Arbitration Accession Arrives in the Age of Aquarius: United States Implements United
Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 3
Sw. U.L. Rev. 1, 1 (1971); Born, The New York Convention: A Self-Executing Treaty, 40
Mich. J. Int’l L. 115 (2018); Drahozal, The New York Convention and the American
Federal System, 2012 J. Disp. Resol. 101, 102–04 (2012); Quigley, Accession by the
United States to the United Nations Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, 70 Yale L.J. 1049 (1961).
1181) See H.R. Rep. No. 91-1181, at 1 (1970) (“Although the United States participated in
the [New York] [C]onference, the convention was not signed on behalf of our
government at that time because the American delegation felt that certain
provisions were in conflict with some of our domestic laws”).
1182) Between 1958 and 1968, 33 states acceded to the Convention, including France,
Germany and Switzerland. See New York Arbitration Convention, Contracting States,
available at www.newyorkconvention.org.
172
1183) Del Duca & Welsh, Enforcement of Foreign Arbitration Agreements and Awards:
Application of the New York Convention in the United States, 62 Am. J. Comp. L. 69, 70
(2014). See also S. Exec. Rep. No. 90-10, at 5 (2d Sess. 1968) (Statement of Richard D.
Kearney) (“Our failure to become a party to the convention has resulted in
difficulties for American businessmen seeking to enforce arbitral awards against
parties located in foreign countries”), 7 (unaware of “any indication that any
segment of the community is opposed to this convention”).
1184) 114 Cong. Rec. 10487-88 (1968) (Message of President Johnson).
1185) H.R. Rep. No. 91-1181, at 2 (1970) (House Judiciary Committee reporting receipt of “a
number of communications from lawyers and businessmen urging early and
favorable action on [the Senate bill to enact Chapter 2 of the FAA], and so far as is
known, there is no opposition to the bill. It has the support of the American Bar
Association, the Association of the Bar of the City of New York, the American
Arbitration Association, the Inter-American Commercial Arbitration Association,
the International Chamber of Commerce, Office and Professional Employees
International Union, the Department of State, the Department of Justice, and the
Bureau of the Budget”).
1186) See S. Exec. Rep. No. 90-10, at 5 (2d Sess. 1968) (Statement of Richard D. Kearney)
(“[T]here was no known opposition to the convention in the business or the foreign
trade community. … [T]he Secretary of State should recommend to the President
that the Convention be sent to the Senate for its advice and consent”).
1187) See Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J. Int’l L. 115,
140 n.139 (2018).
1188) 114 Cong. Rec. 29605 (1968); Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, 330 U.N.T.S. 3 (1958).
1189) See U.S. FAA, 9 U.S.C. §§201-208; §1.04[B][1][e][iv]. See also Drahozal, The New York
Convention and the American Federal System, 2012 J. Disp. Resol. 101, 104, 107-11
(2012).
1190) U.S. FAA, 9 U.S.C. §§202-203 (federal subject matter jurisdiction), §204 (venue), §205
(removal), §206 (injunctive authority), §207 (statute of limitations). See also GE
Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140
S.Ct. 1637 (U.S. S.Ct. 2020).
1191) See U.S. FAA, 9 U.S.C. §§1-16. The domestic FAA, now contained in a retitled
“Chapter 1” of the Act, has only been amended in minor respects since 1925. See L.
Edmonson, Domke on Commercial Arbitration Chapter 4 (3d ed. 2010 & Update
2019); Szalai, The Federal Arbitration Act and the Jurisdiction of the Federal Courts, 12
Harv. Negot. L. Rev. 319, 353-57 (2007).
1192) U.S. Department of State, U.S. Accedes to Convention on Foreign Arbitral Awards, 63
Dep’t St. Bull. 598, 598 (1970).
1193) See§1.04[A][1][b].
1194) U.S. FAA, 9 U.S.C. §§201-208.
1195) 116 Cong. Rec. 22, 732-33 (24 July 1970) (Hamilton Fish). See also id. at 731 (Andrew
Jacobs).
1196) Foreign Arbitral Awards, S. Rep. No. 91-702, 91st Cong., 2d Sess. 1-2 (1970); Aksen,
American Arbitration Accession Arrives in the Age of Aquarius, 3 Sw. U. L. Rev. 1 (1971);
Bermann, “Domesticating” the New York Convention: The Impact of the Federal
Arbitration Act, 2 J. Int’l Disp. Sett. 317 (2011); Born, The New York Convention: A Self-
Executing Treaty, 40 Mich. J. Int’l L. 115 (2018).
1197) U.S. FAA, 9 U.S.C. §201.
1198) Id. at §§201, 203-206. See§8.02[C]; §14.06[B].
1199) U.S. FAA, 9 U.S.C. §207.
1200) Id. at §§203, 205. See Infuturia Global Ltd v. Sequus Pharm., Inc., 631 F.3d 1133 (9th
Cir. 2011) (permitting removal under §205 of FAA because one party sought to rely
on prior arbitral award); Beiser v. Weyler, 284 F.3d 665, 669-70 (5th Cir. 2002) (“[T]he
district court will have jurisdiction under §205 over just about any suit in which a
defendant contends that an arbitration clause falling under the Convention
provides a defense. As long as [it] is not completely absurd or impossible”); Torres
v. E-Land World, Ltd, 2017 WL 1423711, at *2 (N. Mar. I.) (“the plain language of §205
provides federal courts with remarkably broad removal authority”) (quoting
Infuturia Global Ltd v. Sequus Pharm., Inc., 631 F.3d 1133, 1138 n.5 (9th Cir. 2011)); SFA
Group, LLC v. Certain Underwriters at Lloyd’s, London, 2016 WL 5842180, at *2 (C.D.
Cal.) (“easy removal is exactly what Congress intended in §205”); Silec Cable SAS v.
Alcoa Fjardaal Sf, 2012 WL 5906535, at *7 (W.D. Pa.) (for removal to be proper it need
only be “at least conceivable that the arbitration clause will impact the
disposition of the case”).
1201) U.S. FAA, 9 U.S.C. §§301-306; J. Bowman, The Panama Convention and Its
Implementation Under the Federal Arbitration Act (2002). See§1.04[A][3]; §2.01[A][1]
[b]; §5.01[B][3]; §22.02[E][1][c]; §22.04[A][3]; §25.02[C]; §26.03[C][1].
1202) U.S. FAA, 9 U.S.C. §302.
1203) Id. at §§303, 306. See§2.03[C][2][b].
1204) U.S. FAA, 9 U.S.C. §305.
1205) Id. at §§202, 206-207, 302-304.
173
1206) See Notre Dame (USA) in England v. TJAC Waterloo, LLC, 861 F.3d 287, 292 (1st Cir.
2017) (“we agree with the view of the Seventh Circuit as stated in [Publicis Commc’n,
206 F.3d at 729], that the ‘Convention supplements the Federal Arbitration Act, and
the logic of decisions applied to the latter may guide the interpretation of the
former’”); Publicis Commc’n v. True N. Commc’ns, Inc., 206 F.3d 725, 729 (7th Cir.
2000) (“New York Convention supplements the [FAA], and the logic of decisions
applied to the latter may guide the interpretation of the former”).
1207) Section 208 of the FAA provides that the domestic FAA “applies to actions and
proceedings brought under this chapter to the extent that [the domestic FAA] is not
in conflict with this chapter or the Convention as ratified by the United States.”
U.S. FAA, 9 U.S.C. §208. See GE Energy Power Conversion France SAS, Corp. v.
Outokumpu Stainless USA, LLC, 140 S.Ct. 1637 (U.S. S.Ct. 2020) (noting potential
overlap between Convention and Chapters 1 and 2 of FAA).
1208) U.S. FAA, 9 U.S.C. §307.
1209) Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468, 477 (U.S. S.Ct. 1989) (“The FAA
contains no express pre-emptive provision, nor does it reflect a congressional
intent to occupy the entire field of arbitration”).
1210) See, e.g., Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524 (U.S. S.Ct.
2019); Rent-A-Ctr, W., Inc. v. Jackson, 561 U.S. 63 (U.S. S.Ct. 2010); Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. 440, 447-48 (U.S. S.Ct. 2006); Southland Corp. v.
Keating, 465 U.S. 1 (U.S. S.Ct. 1984); Moses H. Cone Mem. Hosp. v. Mercury Constr.
Corp., 460 U.S. 1 (U.S. S.Ct. 1983); Prima Paint Corp. v. Flood & Conklin Mfg Co., 388
U.S. 395 (U.S. S.Ct. 1967). See Restatement of the U.S. Law of International
Commercial and Investor-State Arbitration §4-3 Reporters’ Note b (2019) (“In light of
the fact that the Conventions and their implementing legislation are sparsely
written and leave unanswered many specific questions, courts have developed a
fairly expansive ‘federal common law’ of arbitration to interpret and apply the
Conventions”); Korynevych, Revisiting Kompetenz-Kompetenz and Arbitrability in the
U.S. Supreme Court: Vicious Circle of Delegation Clauses and Carve-out Provisions in
Henry Schein Inc. v. Archer and White Sales Inc., 87(1) Int’l J. Arb. Med. & Disp. Mgt
121 (2021).
1211) See§4.02[A][2][d]; §9.05[A]; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,
473 U.S. 614, 628 (U.S. S.Ct. 1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 516-17
(U.S. S.Ct. 1974).
1212) See§3.02[B][3][c]; §4.02[A][2][d]; §4.04[A][2][j] (especially §4.04[A][2][j][iv]); §5.04[C]
[4]; §5.10[C]; §6.04[H][1]; §7.02[B][7]; §9.05[A]; §10.02[A]; §15.02[B]; §15.06[B].
1213) See§1.01[B][5]; §1.04[B][1][e] (especially §1.04[B][1][e][vi]); §4.04[A][2][j]; §6.04[A][1];
Scherk, 417 U.S. at 516-17; Born, The New York Convention: A Self-Executing Treaty, 40
Mich. J. Int’l L. 115 (2018); Drahozal, The New York Convention and the American
Federal System, 2012 J. Disp. Resol. 101.
1214) See Mitsubishi Motors, 473 U.S. at 628; Scherk, 417 U.S. at 516-17; §6.03[A]; §6.03[C]
[4].
1215) See Rent-A-Ctr, W., Inc., 561 U.S. 63; Buckeye Check Cashing, Inc., 546 U.S. at 445;
Prima Paint Corp., 388 U.S. at 402; §3.02[B][3][c]; §3.03[A][2][b]. See also Restatement
of the U.S. Law of International Commercial and Investor-State Arbitration §2.7(a)
(2019) (“An international arbitration agreement is presumed to be separable from
the contract in which it is found”).
1216) See Henry Schein, Inc., 139 S.Ct. 524; BG Group plc v. Argentina, 572 U.S. 25 (U.S. S.Ct.
2014); Granite Rock Co. v. Int’l Bhd of Teamsters, 561 U.S. 287, 295-97 (U.S. S.Ct. 2010);
Rent-A-Ctr, W., 561 U.S. 63; PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401 (U.S. S.Ct.
2003); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (U.S. S.Ct. 2002); First
Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (U.S. S.Ct. 1995); §7.03[E].
1217) See Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612 (U.S. S.Ct. 2018); Kindred Nursing Ctr Ltd v.
Clark, 137 S.Ct. 1421 (U.S. S.Ct. 2017); Marmet Health Care Ctr, Inc. v. Brown, 565 U.S.
530 (U.S. S.Ct. 2012); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (U.S. S.Ct. 2011);
Buckeye Check Cashing, Inc., 546 U.S. 440; Doctor’s Assocs., Inc. v. Casarotto, 517 U.S.
681 (U.S. S.Ct. 1996); Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265 (U.S. S.Ct. 1995);
Southland Corp. v. Keating, 465 U.S. 1 (U.S. S.Ct. 1984); §4.04[A][2][j][iii]; §4.04[A][2][j]
[v]; §4.04[B][3][b]; §5.01[C][2].
1218) See Epic Sys., 138 S.Ct. 1612; Mitsubishi Motors Corp., 473 U.S. 614; Scherk, 417 U.S.
506; §9.02[D][1][a].
1219) See Epic Sys., 138 S.Ct. 1612; Mitsubishi Motors Corp., 473 U.S. at 628 (party agreeing
to arbitration “trades the procedures and opportunity for review of the courtroom
for the simplicity, informality, and expedition of arbitration”); McDonald v. City of
W. Branch, 466 U.S. 284, 292 (U.S. S.Ct. 1984); §15.02[B]; §15.04[B]; §25.04[B][4].
1220) See§15.03[B].
1221) See§12.06[B][3]; §15.06[B].
1222) See§17.04[B][2] (especially §17.04[B][2][b]).
1223) See§16.03[A][4][a].
1224) See§12.03[F][2][b].
1225) See§25.04[A][1]; §25.04[B][1]; §25.04[E][1]; §25.05[A][1][a]. This substantive review is
referred to under the rubric of “manifest disregard of law.” See§25.05[A][1][a].
1226) See§1.04[A][1][c][ii]; §26.03[B].
174
1227) See Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J. Int’l L. 115
(2018); Drahozal, The New York Convention and the American Federal System, J. Disp.
Resol. 101 (2012); Krupar, The McCarran-Ferguson Act’s Intersection with Foreign
Insurance Companies, 58 Clev. St. L. Rev. 883 (2010); Myers, Treaties and Federal
Question Jurisdiction: Enforcing Treaty-Based Rights in Federal Court, 40 Loy. L.A. L.
Rev. 1449, 1499 (2007); Strong, Beyond the Self-Execution Analysis: Rationalizing
Constitutional, Treaty, and Statutory Interpretation in International Commercial
Arbitration, 53 Va. J. Int’l L. 499, 514, 571 (2013) (“judicial analyses of the self-
executing nature of the New York Convention are limited and in
conflict”).Commentary is divided on the self-executing status of the Convention.
Compare Colasurdo, Preventing Reverse-Preemption of the United States’ Obligations
Under the New York Convention, 36 Fordham Int’l L.J. 941, 971–75 (2013) (“Article II of
the New York Convention should be treated as self-executing”); Reichert,
Provisional Remedies in the Context of International Commercial Arbitration, 3
Berkeley J. Int’l L. 368 (1986) (Article II(3) of the Convention is self-executing) with
Kamel, Cooperative Federalism: A Viable Option for Implementing the Hague
Convention on Choice of Court Agreements, 102 Geo. L.J. 1821, 1833–34 (2014)
(“Convention is not self-executing”); McLachlan, Are National Courts and
International Arbitral Tribunals in Two Worlds or One?, 7 J. Int’l Disp. Sett. 577, 587
(2016) (“Article II (3) … is not self-executing”); Rich, Deference to the “Law of
Nations”: The Intersection Between the New York Convention, the Convention Act, the
McCarran-Ferguson Act, and State Anti-Insurance Arbitration Statutes, 33 T. Jefferson
L. Rev. 81, 104–12 (2010) (Convention is non-self-executing); Ward, Circumventing the
Supremacy Clause? Understanding the Constitutional Implications of the United
States’ Treatment of Treaty Obligations Through An Analysis of the New York
Convention, 7 San Diego Int’l L.J. 491, 508 n.115 (2006) (“New York Convention is a
non-self-executing treaty”).
1228) See§1.04[A][1]; UNCITRAL, Report on the Survey Relating to the Legislative
Implementation of the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, U.N. Doc. A/CN.9/656, ¶¶8 et seq. (2008).
1229) Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (U.S. 1829). See also Medellín v. Tex., 552 U.S.
491, 504-05 (U.S. S.Ct. 2008); G. Born & P. Rutledge, International Civil Litigation in
United States Courts 16 (6th ed. 2018).
1230) See Medellín, 552 U.S. at 514. In addition, the distinction between self-executing
and non-self-executing treaties can apply to individual provisions of treaties:
within a single treaty, some provisions may be self-executing, whereas other
provisions of the same treaty are non-self-executing. See Lidas, Inc. v. U.S., 238 F.3d
1076, 1080 (9th Cir. 2001) (“it is far from uncommon for a treaty to contain both self-
executing and non-self-executing provisions”); Restatement (Third) Foreign
Relations Law of the United States §111 comment h (1987).
1231) See§15.04[A][1]. See also KVEN OJSC v. Thunderbolt Enters., Ltd, 2015 WL 9583351, at
*2 (N.D. Cal.) (“the New York Convention … is a treaty and law of the United States
…”); Argentina v. AWG Group Ltd, 211 F.Supp.3d 335, 344 (D.D.C. 2016) (“‘[a]s a general
matter, a treaty is a contract, though between nations’”) (quoting BG Group, plc v.
Argentina, 572 U.S. 25, 36 (U.S. S.Ct. 2014)). The same analysis applies to the Inter-
American Convention, whose text and purposes parallel those of the New York
Convention.
1232) Medellín, 552 U.S. at 506 (“interpretation of a treaty, like the interpretation of a
statute, begins with its text”). See also Born, The New York Convention: A Self-
Executing Treaty, 40 Mich. J. Int’l L. 115, 134-35, 137 (2018).
1233) Medellín, 552 U.S. at 508; Asakura v. City of Seattle, 265 U.S. 332, 340-42 (U.S. S.Ct.
1924) (“shall have”; “shall receive”).
1234) See, e.g., Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd, 556 F.3d 459,
469 (6th Cir. 2009) (“nothing discretionary about Article II(3)”); InterGen NV v. Grina,
344 F.3d 134, 141 (1st Cir. 2003) (“enforcing arbitration clauses under the New York
Convention is an obligation, not a matter committed to district court discretion”);
Smith/Enron Cogeneration LP v. Smith Cogeneration Int’l, Inc., 198 F.3d 88, 93 (2d Cir.
1999) (“courts of a signatory to the Convention should abide by its goal of enforcing
international agreements to arbitrate disputes”); The Rena K [1979] QB 377, 393 (QB)
(English High Ct.) (“Section 1 of the Arbitration Act 1975, giving effect to [Article II(3)
of the New York Convention], compels the recognition and enforcement of
convention (i.e., non-domestic) arbitration agreements”); Hi-Fert Pty Ltd v. Kiukiang
Maritime Carriers Inc., 86 FCR 374, 393 (Australian Fed. Ct. 1998) (“Court must stay the
proceedings and refer the parties to arbitration”).
1235) New York Convention, Art. II(1) (“Each Contracting State shall recognize an
agreement …”) (emphasis added), Art. II(3) (“The court of a Contracting State … shall
… refer the parties to arbitration …”) (emphasis added).
1236) See§1.04[A][1]. Article II(1) is not materially different in requiring “Contracting
States” to “recognize” arbitration agreements. “Recognition” is an action
characteristically and necessarily performed by national courts, where dispute
resolution agreements are invoked and where Article II(3)’s enforcement
mechanism expressly applies.
175
1237) Sanchez-Llamas v. Oregon, 548 U.S. 331, 346-47 (U.S. S.Ct. 2006) (“[W]here a treaty
provides for a particular judicial remedy, there is no issue of intruding on the
constitutional prerogatives of the States or the other federal branches. Courts must
apply the remedy as a requirement of federal law”).
1238) New York Convention, Art. III (emphasis added). Article III goes on to provide that
there “shall” not be imposed more onerous conditions or fees for foreign awards
than for domestic awards.
1239) Id. at Art. V. See§1.04[A][1][c][ii].
1240) New York Convention, Art. III.
1241) Id. at Art. IV.
1242) Likewise, Article V imposes requirements addressed to the “competent authority”
of the recognition forum, which plainly refers to national courts, not to the
executive or legislative branches. Id. at Art. V(1) (“Recognition and enforcement of
the award may be refused … only if that party furnishes to the competent authority
where the recognition and enforcement is sought …”) (emphasis added), Art. V(1)(e)
(“The award … has been set aside or suspended by a competent authority … “)
(emphasis added), Art. V(2) (“Recognition and enforcement of an arbitral award
may also be refused if the competent authority … finds that …”) (emphasis added).
“Competent authorities” clearly refers to national courts. In the U.S. legal system, it
is very difficult to conceive what the term “competent authority” would refer to in
addition to national courts. See§26.01. Article VI is likewise directed to “competent
authorit[ies]” and “authorit[ies],” which are permitted to “adjourn” their “decision
on the enforcement of [an] award” and “order [a] party to give suitable security.”
New York Convention, Art. VI (“If an application for the setting aside or suspension
of the award has been made to a competent authority … the authority before which
the award is sought to be relied upon may, if it considers it proper, adjourn the
decision on the enforcement of the award …”).
1243) See§1.04[A][1][c], at 61.
1244) G. Haight, Convention on the Recognition and Enforcement of Foreign Arbitral
Awards: Summary Analysis of Record of United Nations Conference, May/June 1958
24-25 (1958). See Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (U.S. S.Ct. 1974).
1245) U.N., Fiftieth Anniversary of the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, Done at New York on 10 June 1958, U.N. Doc. A/RES/62/65, 1-
2 (2007) (“Emphasizing the necessity for further national efforts and enhanced
international cooperation to achieve universal adherence to the Convention and
its uniform interpretation and effective implementation, with a view to fully
realizing the objectives of the Convention … Requests the Secretary-General to
increase efforts to promote wider adherence to the Convention and its uniform
interpretation and effective implementation”) (emphasis in original).
1246) See§1.04[A][1][c].
1247) Scherk, 417 U.S. at 520 n.15. See also Certain Underwriters at Lloyd’s London v.
Argonaut Ins., 500 F.3d 571, 579-80 (7th Cir. 2007) (“[T]he Convention and its
implementing federal legislation express a clear federal interest in uniform rules by
which agreements to arbitrate will be enforced. … The application of parochial rules
… to agreements arising under the Convention would frustrate one of the primary
objectives of the United States in becoming a signatory to the Convention: securing
uniform standards by which agreements to arbitrate international disputes are
governed”) (emphasis on “primary” in original, other emphasis added).
1248) The subject-matter of the Convention, dealing with commercial relations between
private parties, also supports its self-executing character. See§1.04[A][1];
Restatement (Fourth) Foreign Relations Law of the United States §310 Reporters’
Note 10 (2018); Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J.
Int’l L. 115, 142-45 (2018).
1249) Brief for the United States as Amicus Curiae 7 (26 Aug. 2010), in La. Safety Ass’n of
Timbermen: Self Insurers Fund v. Certain Underwriters at Lloyd’s, 562 U.S. 827 (U.S.
S.Ct. 2010).
1250) Id. at 9. The U.S. government also observed that “neither Article II(3) nor Article II(1)
… appears to envisage that steps beyond ratification are necessary before the
Convention creates binding obligations enforceable in domestic courts.” Id.
1251) See Medellín v. Tex., 552 U.S. 491, 513 (U.S. S.Ct. 2008) (citing U.S. government amicus
curiae brief in considering relevant treaty’s status); Abbott v. Abbott, 560 U.S. 1, 15
(U.S. S.Ct. 2010) (“It is well settled that the Executive Branch’s interpretation of a
treaty is entitled to great weight”).
1252) U.S. FAA, 9 U.S.C. §§1-16.
1253) Restatement (Fourth) Foreign Relations Law of the United States §310 Reporters’
Note 8 (2018).
1254) See Moore, Treaties and the Presumption Against Preemption, 2015 BYU L. Rev. 1555,
1557 n.10 (2016) (“Although a self-executing treaty might be the subject of
facilitating legislation – legislation that, for example, ‘detail[s] specific legal
procedures, burdens of proof, and remedies for courts applying’ the treaty – the
treaty itself would remain directly enforceable in U.S. courts and should be
treated, for preemption purposes, like self-executing treaties that lack facilitating
legislation”) (quoting Coyle, Incorporative Statutes and the Borrowed Treaty Rule, 50
Va. J. Int’l L. 655, 666-67 (2010)).
176
1255) This is recognized expressly in Article III. See New York Convention, Art. III (“Each
Contracting State shall recognize arbitral awards as binding and enforce them in
accordance with the rules of procedure of the territory where the award is relied
upon …”).
1256) Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J. Int’l L. 115, 148-51
(2018).
1257) U.S. FAA, 9 U.S.C. §201 (emphasis added).
1258) Id. at §203 (“The district courts of the United States … shall have original
jurisdiction” over an action or proceeding falling under the Convention) (emphasis
added).
1259) Id. at §206 (“A court having jurisdiction under this chapter” may compel arbitration
or appoint arbitrators in accordance with an arbitration agreement) (emphasis
added), §207 (a party may apply to “any court having jurisdiction under this
chapter” for order confirming award) (emphasis added).
1260) The phrase “United States courts” refers most naturally to a court “of” or
“established by” the United States – namely, a U.S. federal court, established
pursuant to the U.S. Constitution – not a state court established pursuant to the
laws of one of the several states. The term “United States court” plainly means
federal (and not state) courts in other statutory settings. See, e.g., 12 U.S.C. §632
(2012) (“a case so removed shall have a place on the calendar of the United States
court to which it is removed relative to that which it held on the State court from
which it was removed”); 28 U.S.C. §451 (2012) (defining “court of the United States”
as “the Supreme Court of the United States, courts of appeals, district courts
constituted by chapter 5 of this title, including the Court of International Trade and
any court created by ‘Act of Congress’ the judges of which are entitled to hold office
during good behavior”), §1602 (sovereign immunity in “courts of the United States
and of the States”).The Supreme Court has distinguished between “United States
courts” and “courts of the United States” as compared to state courts in a variety of
statutory settings. See, e.g., Boys Mkts, Inc. v. Retail Clerks Union, Local 770, 398 U.S.
235, 245-47 (U.S. S.Ct. 1970) (“court of the United States” in 29 U.S.C. §104 applies
only to federal courts, not state courts); Adams v. Md., 347 U.S. 179, 181-82 (U.S. S.Ct.
1954) (distinguishing between “United States courts” (which are federal courts) and
“courts” (which include state courts)).
1261) U.S. FAA, 9 U.S.C. §3 (“courts of the United States”), §4 (“United States district
court”), §7 (“United States courts”; “courts of the United States”), §§9-11 (“United
States court in and for the district”).
1262) The Supreme Court has made clear that §§3 and 4 of the FAA, referring to “courts of
the United States” includes only federal, and not state, courts. Southland Corp. v.
Keating, 465 U.S. 1, 16 n.10 (U.S. S.Ct. 1984); id. at 29 n.18 (O’Connor, J., dissenting)
(“Section 3’s ‘courts of the United States’ is a term of art whose meaning is
unmistakable. State courts are ‘in’ but not ‘of’ the United States”).
1263) The legislative history of Chapter 2 also confirms that the chapter’s provisions
apply only in federal courts. According to Richard Kearney, the Chairman of the
State Department’s Advisory Committee on Private International Law, Chapter 2
provided a “system of implementation through the United States District Courts.”
Hearing to Implement the Convention in the Recognition of Foreign Arbitral Awards
Before the Senate Committee on Foreign Relations, 91st Cong. 32 (1970), reprinted in
S. Rep. No. 91-702, at 8 (1970) (emphasis added) (Statement of Richard D. Kearney).
Ambassador Kearney also testified to the Senate Foreign Relations Committee that
the statutory provisions of Chapter 2 would not “have any effect whatever on state
laws” and that the legislation concerns “solely the jurisdiction of the Federal district
courts.” Id. at 10 (emphasis added).
1264) A significant number of U.S. state court decisions have interpreted and directly
applied the Convention. See§1.04.
1265) As discussed below, statutes and judicial decisions in a number of states when
Chapter 2 of the FAA was enacted in 1970 continued to deny effect to arbitration
agreements or awards. See S. Exec. Rep. No. 90-10, at 5, 7 (2d Sess. 1968) (Statement
of Richard D. Kearney) (testifying before Senate Foreign Relations Committee that,
based on review of state statutes and judicial decisions in 1970, it was possible to
enforce an arbitration agreement for future disputes in only 36 states).
148-51 (2018).
1267) Southland Corp. v. Keating, 465 U.S. 1, 14-15 (U.S. S.Ct. 1984).
1268) Restatement of the U.S. Law of International Commercial and Investor-State
Arbitration §1-2 Reporters’ Note a(ii) (2019).
177
1269) Id. There are a number of very substantial differences between contemporary state
arbitration laws and the Convention’s terms. These differences vary from state to
state but continue to include state laws that permit revocation of agreements to
arbitrate future disputes, exclude particular disputes from arbitration, impose
non-arbitrability rules, apply idiosyncratic contract law rules, and permit review of
the merits of arbitral awards. See Besson, The Utility of State Laws Regulating
International Commercial Arbitration and Their Compatibility with the FAA, 11 Am.
Rev. Int’l Arb. 211, 226, 233 (2000); Zeft, The Applicability of State International
Arbitration Statutes and the Absence of Significant Preemption Concerns, 22 N.C. J.
Int’l L. & Com. Reg. 705, 790 n.269 (1997). Application of these various state laws to
international arbitration agreements and awards would entail violation of the
Convention’s requirements that Contracting States recognize and enforce
arbitration agreements and awards, subject to only limited exceptions.
1270) The Charming Betsy canon provides that U.S. statutes are presumed not to conflict
with the United States’ obligations under international law: “an act of Congress
ought never to be construed to violate the law of nations if any other possible
construction remains ….” Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (U.S.
1804). As the Charming Betsy presumption instructs, it is difficult to imagine that
the federal political branches intended to materially violate the U.S.’s obligations
in ratifying the Convention and enacting Chapter 2 of the FAA.
153 (2018).
1272) See, at 593-98; Restatement of the U.S. Law of International Commercial and
Investor-State Arbitration §1-2 Reporters’ Note a(iv) (2019) (noting “differences in
the applicable law” under Article II and §2 of FAA).
1273) See, at 588-90. Compare New York Convention, Art. II(3) (“null and void, inoperative
or incapable of being performed”) with U.S. FAA, 9 U.S.C. §2 (“such grounds as exist
at law or in equity for the revocation of any contract”).
1274) See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 638-39
(U.S. S.Ct. 1985) (antitrust claims are arbitrable pursuant to Convention, even if
they would not be under domestic FAA); Scherk v. Alberto-Culver Co., 417 U.S. 506,
516-17 (U.S. S.Ct. 1974) (securities law claims are arbitrable pursuant to Convention,
even if they would not be under domestic FAA); Aggarao v. MOL Ship Mgt Co., 675
F.3d 355, 370-71 (4th Cir. 2012) (New York Convention “‘expressly compels the
federal courts to enforce arbitration agreements,’ notwithstanding jurisdiction
conferred on such courts to adjudicate Seaman’s Wage Act claims”) (quoting Rogers
v. Royal Caribbean Cruise Line, 547 F.3d 1148, 1157 (9th Cir. 2008)); Francisco v. Stolt
Achievement MT, 293 F.3d 270, 273-74 (5th Cir. 2002). See also§6.02[B]; §6.03[C][4].
Compare New York Convention, Arts. II(1), V(2)(a)-(b) with U.S. FAA, 9 U.S.C. §2.
1275) See§5.02[A][5][c], at 747. Compare New York Convention, Arts. II(1)-(2) with U.S. FAA, 9
U.S.C. §2.
1276) Compare New York Convention, Art. II(3) (“refer the parties to arbitration”) with U.S.
FAA, 9 U.S.C. §2. Chapter 1’s requirements regarding enforcement of arbitration
agreements by stays or orders compelling arbitration are contained in §§3 and 4,
not §2. See also Sanchez-Llamas v. Oregon, 548 U.S. 331, 346-47 (U.S. S.Ct. 2006)
(“where a treaty provides for a particular judicial remedy … [c]ourts must apply the
remedy as a requirement of federal law”).
1277) See§14.08[B]. Compare New York Convention, Art. II(3) with U.S. FAA, 9 U.S.C. §4.
1278) See§2.03[G]; §22.02[F]. Compare New York Convention, Arts. I(1), XIV with U.S. FAA, 9
U.S.C. §§1-16. The reciprocity reservation is of limited (but some) practical
importance today, because 164 states have ratified the Convention (as of June
2020); the situation was very different in 1970, when the United States was the 36th
Contracting State to ratify the Convention.
1279) See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (U.S.
S.Ct. 1985) (“since this Nation’s accession in 1970 to the Convention and the
implementation of the Convention in the same year by amendment of the [FAA],
that federal policy applies with special force in the field of international
commerce”); Ecuador v. Chevron Corp., 638 F.3d 384, 393 (2d Cir. 2011) (federal
policy favoring arbitration “is even stronger in the context of international business
transactions where arbitral agreements promote the smooth flow of international
transactions by removing the threats and uncertainty of time-consuming and
expensive litigation”); Sourcing Unlimited, Inc. v. Asimco Int’l, Inc., 526 F.3d 38, 45
(1st Cir. 2008) (“the national policy favoring arbitration has extra force when
international arbitration is at issue”); Clientron Corp. v. Devon IT, Inc., 2014 WL
940406, at *5 (E.D. Pa.) (“Moreover, it is the policy of the United States to facilitate
the resolution of disputes through arbitration. This policy is even stronger in the
international context”).
178
1280) Treating the Convention as non-self-executing, and subjecting international
arbitration agreements to Chapter 1 of the FAA, also leaves the future enforcement
of international arbitration agreements subject to the domestic FAA’s local
standards. Those standards are developed principally for a different (domestic)
context and set of different (domestic) agreements, and they will almost certainly
diverge at various points in the future from the Convention’s international
standards. Again, one of the principal objects of any international treaty, and
particularly the New York Convention, is to prevent such divergences. See§1.04[A][1]
[c]; Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J. Int’l L. 115,
142-43, 167 (2018).
1281) As discussed below, the possibility of removal from state to federal court would
not bring the United States into compliance with the Convention and would not
have been regarded by the U.S. political branches as a tenable means of
implementing the Convention. See§1.04[B][1][e].
1282) See Lozano v. Alvarez, 572 U.S. 1, 13 (U.S. S.Ct. 2014) (emphasizing “need for uniform
international interpretation of the [Hague] Convention”); Abbott v. Abbott, 560 U.S.
1, 16 (U.S. S.Ct. 2010) (“‘uniform international interpretation’ of the [Hague]
Convention is part of the [Hague] Convention’s framework”); El Al Israel Airlines, Ltd
v. Tseng, 525 U.S. 155, 157 (U.S. S.Ct. 1999) (“[Warsaw] Convention’s central endeavor
to foster uniformity …”).
1283) See§1.04[A][1][c].
1284) S. Exec. Rep. No. 90-10, at 5-6 (2d Sess. 1968) (Statement of Richard D. Kearney).
140-41 & n.139 (2018).
1286) U.S. FAA, 9 U.S.C. §201 (emphasis added).
1287) This conclusion has force with respect to Article II of the Convention. Unless the
Convention were self-executing, it is very difficult to see how Article II would be
“enforced in United States courts” because nothing in Chapter 2 of the FAA further
implements the substantive provisions of that Article. Moreover, §208 provides
that Chapter 1 of the FAA applies to actions under Chapter 2 only to the extent that
Chapter 1 “is not in conflict with this chapter [2] or the Convention as ratified by the
United States.” U.S. FAA, 9 U.S.C. §208 (emphasis added). The italicized phrase
again indicates that it is the substantive terms of the Convention itself, not the
FAA’s implementing legislation, that applies in U.S. courts. See Born, The New York
Convention: A Self-Executing Treaty, 40 Mich. J. Int’l L. 115, 159 & n.231 (2018).
1288) See Cooper v. Ateliers de la Motobecane, SA, 57 N.Y.2d 408 (N.Y. 1982) (Convention
does not permit state courts to issue pre-arbitration orders of attachment); Basis
Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc., 980 N.Y.S.2d 21, 25 (N.Y. App.
Div. 2014) (“motion court properly held that the purported document containing an
arbitration clause did not meet the writing requirements of the New York
Convention …”); Lloyds Underwriters v. Netterstrom, 17 So.3d 732, 737 (Fla. Dist. Ct.
App. 2009); Drexel Burnham Lambert, Inc. v. Ruebsamen, 531 N.Y.S.2d 547, 550-52
(N.Y. App. Div. 1988); Shah v. E. Silk Indus. Ltd, 493 N.Y.S.2d 150, 151 (N.Y. App. Div.
1985) (“this arbitration is governed by the UN Convention, and pursuant to the
terms thereof, we find that pre-judgment attachment is prohibited”); Faberge Int’l
Inc. v. Di Pino, 491 N.Y.S.2d 345, 348 (N.Y. App. Div. 1985) (pre-arbitration
attachment is “unavailable by reason of the existing [state] case law and the UN
Convention …”); CanWest Global Commc’ns Corp. v. Mirkaei Tikshoret Ltd, 804
N.Y.S.2d 549, 562-63 (N.Y. Sup. Ct. 2005) (holding that arbitration agreements at
issue “are subject to the [New York] Convention enforcement rules”).
1289) Lloyds Underwriters v. Netterstrom, 17 So.3d 732, 737 (Fla. Dist. Ct. App. 2009).
1290) Composite Concepts Co. v. Berkenhoff GmbH, 2010 WL 2371991, at *4 (Ohio Ct. App.).
171-72 (2018).
1292) Report of the United States Delegation to the United Nations Conference on
International Commercial Arbitration (15 Aug. 1958), reprinted in 19 Am. Rev. Int’l
Arb. 91, 95 (2008).
1293) N. Katzenbach, Letter of Submittal, S. Exec. Doc. No. 90-118, at 22 (2d Sess. 1968).
1294) S. Exec. Doc. No. 90-118 (1968).
1295) See H.R. Rep. No. 91-1181, at 1-2 (1970).
1296) Report of the United States Delegation to the United Nations Conference on
International Commercial Arbitration (15 Aug. 1958), reprinted in 19 Am. Rev. Int’l
Arb. 91, 112 (2008) (Article II “raises the greatest difficulty from the standpoint of
United States law,” because “[t]his provision is in conflict with the laws of a
majority of the States”). The Delegation’s Report observed that a majority of state
arbitration laws at the time provided that “a contract for the submission of future
disputes to arbitration is held to be revocable by either of the parties at any time
before the award is actually rendered” and that “[i]n fact, only 17 States have
expressly recognized the irrevocability of agreements to arbitrate future disputes.”
Id. The Delegation noted similar conflicts between state laws and Articles IV and V
of the Convention. Id. at 112-13 (noting differing treatment of proof of awards (under
Article IV) and exceptions to obligation of recognition (under Article V)).
1297) Id. at 95 (emphasis added).
179
1300) Id. at 116 (Convention’s effects on state law make it doubtful that “any proposal for
adherence on such a basis would prove acceptable to the Senate”), 117 (United
States could only adhere to Convention “in a meaningful and effective way” by
accepting “substantial changes in United States domestic law” and “exacerbating
Federal-State relations”).
1301) Id. at 115 (“The United States would be required as a practical matter to exclude
from coverage, by invoking the ‘federal state clause,’ arbitrations cognizable and
awards enforceable under State law”).
1302) Id. at 116 (noting possibility of “reservation specially adjusted to the United States
federal system” but rejecting this possibility on multiple grounds, including that
adherence “on the basis for the ‘federal state clause’” would “be of little practical
value”).
1303) Id. at 115 (“Delegation recommends strongly that the United States not sign or
adhere to the convention”).
1304) Article XI provides that, where the Convention’s provisions “come within the
legislative jurisdiction of the federal authority,” then the Contracting State’s
obligations will be no different from those of unitary or non-federal states. New
York Convention, Art. XI(a). If, however, the Convention’s provisions “come within
the legislative jurisdiction of constituent states or provinces” then “the federal
Government shall bring such articles with a favorable recommendation to the
notice of the appropriate authorities of constituent states or provinces at the
earliest possible moment.” Id. at Art. XI(b). As discussed below, the United States
has not taken the position that Article XI applies to it and has taken no action
under Article XI(b), which requires notice and a favorable recommendation to
constituent states.
1305) See S. Exec. Rep. No. 90-10, at 6 (2d Sess. 1968) (Statement of Richard D. Kearney)
(“[the] situation has changed rather dramatically over the past 10 years”); H.R. Rep.
No. 91-1181, at 1-2 (1970).
1306) S. Exec. Rep. No. 90-10, at 4 (2d Sess. 1968) (Statement of Richard D. Kearney) (“the
judicial attitude has now changed in partial consequence, at least, of the
widespread enactment of statutes which in varying degrees declare arbitration
agreements to be irrevocable and provide for their specific enforcement”), 6 (“the
extent to which this convention might change the law in the various States of the
Union and the effect it might have on the State courts”) (emphasis added), 7 (“there
have been a number of other changes in State law which support the enforceability
of an agreement to arbitrate in the future”).
1307) N. Katzenbach, Letter of Submittal, S. Exec. Doc. No. 90-118, at 22 (2d Sess. 1968) (“It
would, however, run counter to the express provisions of [Article XI] for the United
States to seek to take advantage of its provisions with respect to foreign arbitral
awards arising out of the commercial relationships. The Federal Arbitration Act …
and the decisions of U.S. Courts relating thereto show that legislation on
arbitration is clearly within the competence of the Federal Government”).
1308) Id. at 56.
1309) New York Convention, Art. II(3) (emphasis added).
1310) Id. at Art. III (emphasis added).
1311) The Convention does not allow the United States to require parties to give up the
benefits that state courts, state procedural rules, or other factors might, in
particular circumstances, provide those parties as a price of obtaining the
Convention’s protections. As noted above, state courts comprise the substantial
majority of all American courts, and numerous cases involving the Convention are
not removed from state courts – because parties not infrequently prefer state
courts to their federal counterparts. In these cases, the Convention’s terms are
clear, mandatorily requiring that all American courts, state and federal, refer
parties to arbitration and recognize arbitral awards. Likewise, imposing
requirements of removal from state to federal courts is inconsistent with the
Convention’s fundamental objectives of providing for the prompt and efficient
recognition of international arbitration agreements and awards without
idiosyncratic local procedural hurdles and costs.
1312) New York Convention, Art. XI(b).
1313) See Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, 587 F.3d 714, 732-37 (5th
Cir. 2009) (Clement, J., concurring). See also Luna Music, LLC v. Executive Ins. Servs.,
Inc., 2020 WL 855954, at *3 (D.V.I.) (“Although the Third Circuit has not specifically
addressed whether Article II(3) of the Convention is subject to preemption, the
Court finds that use of the word ‘shall’ is indicative of a self-executing treaty
provision”).
1314) Safety Nat’l, 587 F.3d at 731 (“implemented treaty provisions, self-executing or not,
are not reverse-preempted by state law pursuant to the McCarran-Ferguson Act”).
1315) Id. at 733 (Clement, J., concurring).
1316) Id. at 734-35. Judge Clement also observed that Article II’s directive to domestic
courts “leaves no discretion to the political branches of the federal government
whether to make enforceable the [arbitration] agreement-enforcing rule it
prescribes; instead, that rule is enforceable by the Convention’s own terms.” Id. at
735. She reasoned that “[t]reaty provisions setting forth international obligations in
such mandatory terms tilt strongly toward self-execution.” Id.
1317) Id. at 735-36.
180
1318) See, e.g., Bautista v. Star Cruises, 396 F.3d 1289, 1301-02 (11th Cir. 2005); InterGen NV
v. Grina, 344 F.3d 134, 141 (1st Cir. 2003); Rhone Mediterranee Compagnia Francese di
Assicurazioni E Riassicurazioni v. Lauro, 712 F.2d 50, 54-55 (3d Cir. 1983); Ledee v.
Ceramiche Ragno, 684 F.2d 184, 187 (1st Cir. 1982); I.T.A.D. Assocs. v. Podar Bros., 636
F.2d 75, 77 (4th Cir. 1981); McCreary Tire & Rubber Co. v. Ceat SpA, 501 F.2d 1032, 1037
(3d Cir. 1974).
1319) See§1.04[B][1][e][v]. See also Suazo v. NCL (Bahamas), Ltd, 822 F.3d 543, 551 (11th Cir.
2016) (“We adopted the First Circuit’s view that Article II’s ‘“null and void” clause …
limits the bases upon which an international arbitration agreement may be
challenged to standard breach-of-contract defenses’”) (quoting Bautista v. Star
Cruises, 396 F.3d 1289, 1302 (11th Cir. 2005)); CLMS Mgt Servs. Ltd P’ship v. Amwins
Brokerage of Ga., LLC, 2019 WL 7185547, at *5 (W.D. Wash.) (“Because §3 is self-
executing, it is not an ‘Act of Congress’ that is subject to preemption under the
McCarran-Ferguson Act”); Simon v. Princess Cruise Line, Ltd, 2014 WL 12617820, at *3
(S.D. Tex.) (“Article II, applicable at the arbitration-enforcement stage, recognizes
only the affirmative defenses ‘that the said agreement is null and void, inoperative
or incapable of being performed’”) (quoting Lindo v. NCL (Bahamas), Ltd, 652 F.3d
1257, 1276 (11th Cir. 2011)).
1320) See, e.g., Todd v. S.S. Mut. Underwriting Ass’n, 601 F.3d 329, 334-35 n.11 (5th Cir. 2010);
Sphere Drake Ins. v. Marine Towing, Inc., 16 F.3d 666, 669 (5th Cir. 1994); Liu Luwei v.
Phyto Tech. Corp., 2018 WL 6016958, at *3 (C.D. Cal.); Bitúmenes Orinoco SA v. New
Brunswick Power Holding Corp., 2007 WL 485617, at *11-18 (S.D.N.Y.); Chloe Z Fishing
Co. v. Odyssey Re (London) Ltd, 109 F.Supp.2d 1236, 1247-48 (S.D. Cal. 2000); Coutinho
Caro & Co. U.S.A. v. Marcus Trading, Inc., 2000 WL 435566, at *11 (D. Conn.).
1321) See§1.04[B][1][e][v]; Born, The New York Convention: A Self-Executing Treaty, 40 Mich.
J. Int’l L. 115, 172-73 (2018).
1322) As discussed above, Chapter 2 plainly does not apply in state (as distinguished
from federal) courts. See§1.04[B][1][e][v]; Born, The New York Convention: A Self-
Executing Treaty, 40 Mich. J. Int’l L. 115, 148-51 (2018). As a consequence, state court
applications of Article II must result from the Convention’s self-executing status.
1323) See§1.04[B][1][e][v].
1324) Lloyds Underwriters v. Netterstrom, 17 So.3d 732, 737 (Fla. Dist. Ct. App. 2009).
1325) CanWest Global Commc’ns Corp. v. Mirkaei Tikshoret Ltd, 804 N.Y.S.2d 549, 562-63
(N.Y. Sup. Ct. 2005).
1326) Shah v. E. Silk Indus. Ltd, 493 N.Y.S.2d 150, 151 (N.Y. App. Div. 1985).
1327) The U.S. Supreme Court’s decision in Medellín v. Texas has occasionally been
interpreted as suggesting that Article V of the Convention is non-self-executing. See
Medellín v. Tex., 552 U.S. 491, 521-22 (U.S. S.Ct. 2008). See also Restatement of the
U.S. Law of International Commercial and Investor-State Arbitration §1-2 Reporters’
Note a(iv) (2019) (stating, incorrectly, that “the Supreme Court listed FAA Chapter 2
as an example of legislation implementing a non-self-executing treaty”), §1-5
Reporters’ Note b(iv) (stating, incorrectly that: “In Medellín, the Supreme Court
indicated that, in order for a treaty to have self-executing status, an express
determination to that effect must be found either in the treaty itself or in a
pronouncement by the Senate, and the New York Convention presents neither.
Indeed, in dictum in Medellín, the Court went on to cite the New York Convention as
an example of a non-self-executing treaty”). Those interpretations are ill-
considered: Medellín does not argue for the non-self-executing status of the
Convention and, instead, is best read as confirming that the Convention is self-
executing. See Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J.
Int’l L. 115, 140-41, 144-48 (2018).
1328) See, e.g., Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, London, 587 F.3d
714, 737 (5th Cir. 2009) (Elrod, J., dissenting) (New York Convention is non-self-
executing and therefore cannot preempt state law); Stephens v. Am. Int’l Ins. Co., 66
F.3d 41, 45 (2d Cir. 1995) (“the Convention is not self-executing, and therefore relies
upon an Act of Congress for its implementation”). See also ESAB Group, Inc. v. Zurich
Ins. plc, 685 F.3d 376, 390-91 (4th Cir. 2012) (raising, but not deciding, question
whether New York Convention is self-executing); Safety Nat’l Cas. Corp. v. Certain
Underwriters at Lloyd’s, London, 587 F.3d 714 (5th Cir. 2009) (raising, but not
deciding, question whether New York Convention is self-executing); Suter v. Munich
Reins. Co., 223 F.3d 150, 162 (3d Cir. 2000) (raising, but not deciding, question
whether New York Convention is self-executing).
1329) Stephens v. Am. Int’l Ins. Co., 66 F.3d 41, 45 (2d Cir. 1995).
1330) Safety Nat’l Cas. Corp. v. Certain Underwriters at Lloyd’s, London, 587 F.3d 714, 737
(5th Cir. 2009) (Clement, J., concurring).
1331) See§1.04[B][1][e][v].
1332) See, e.g., Brunel, A Proposal to Adopt UNCITRAL’s Model Law on International
Arbitration as Federal Law, 25 Tex. Int’l L.J. 43 (1990); Kolkey, It’s Time to Adopt the
UNCITRAL Model Law on International Commercial Arbitration, 8 Transnat’l L. &
Contemp. Probs. 3 (1998); Park, Amending the Federal Arbitration Act, 13 Am. Rev.
Int’l L. 75 (2002); Stipanowich, Rethinking American Arbitration, 63 Ind. L.J. 425 (1987).
1333) Park, Amending the Federal Arbitration Act, 13 Am. Rev. Int’l L. 75 (2002).
181
1334) Hulbert, The Case for A Coherent Application of Chapter 2 of the Federal Arbitration
Act, 22 Am. Rev. Int’l Arb. 45 (2011); Kaufmann-Kohler, Globalization of Arbitral
Procedure, 36 Vand. J. Transnat’l L. 1313 (2003).
1335) Rivkin & Kellner, In Support of the FAA: An Argument Against U.S. Adoption of the
UNCITRAL Model Law, 10 Am. Rev. Int’l Arb. 535 (1999); Samuel, Arbitration Statutes in
England and the USA, 8 Arb. & Disp. Resol. L.J. 2, 32 (1999).
1336) Hulbert, Should the FAA Be Amended?, 18(2) Mealey’s Int’l Arb. Rep. 37 (2003).
1337) Park, Amending the Federal Arbitration Act, 13 Am. Rev. Int’l L. 75, 135 (2002). The
same author quotes the chief legal officer of a major company as saying that
amendment of the FAA sent “shivers down the spine” of the business community,
because of concerns about legislative interference with a system that basically
functioned satisfactorily. Compare Carrington & Haagen, Contract and Jurisdiction,
1996 S.Ct. Rev. 331, 401 (1997) (“As architecture, the arbitration law made by the
Court is a shantytown”).
1338) See FAIR Act of 2022, 117th Congress (2021-2022); Arbitration Fairness Act of 2017,
115th Congress (2017); Arbitration Fairness Act of 2015, S. 1133, 114th Congress (2015);
Arbitration Fairness Act of 2013, S. 878, 113th Congress (2013); Arbitration Fairness
Act of 2011, H.R. 1873, S. 987, 112th Cong. (2011); Arbitration Fairness Act of 2009, H.R.
1020, 111th Congress (2009); Arbitration Fairness Act of 2007, H.R. 3010, S. 1782, 110th
Cong. (2007).
1339) Although not as far-reaching as proposed legislation to render consumer and
employee disputes nonarbitrable, Congress enacted the Dodd-Frank Wall Street
Reform and Consumer Protection Act in 2010 to reform financial regulation. As part
of the Act, the Securities and Exchange Commission was granted the authority to
invalidate mandatory arbitration provisions in certain securities transactions. See
Dodd-Frank Wall Street Reform and Consumer Protection Act, 124 Stat. 1376, §921
(2010); §6.04[H][1].
1340) See§1.04[B][1]. See also Born, The New York Convention: A Self-Executing Treaty, 40
Mich. J. Int’l L. 115 (2018).
1341) See§4.04[A][2][j].
1342) See§4.05[B].
1343) There has been a vigorous debate on the Supreme Court concerning the
preemptive effect of the domestic FAA. Compare Allied-Bruce Terminix Co. v.
Dobson, 513 U.S. 265 (U.S. S.Ct. 1995) (Breyer, J.) with id. at 285 (Scalia, J., dissenting);
Southland Corp. v. Keating, 465 U.S. 1 (U.S. S.Ct. 1984) (Burger, J.) with id. at 25
(O’Connor, J., dissenting).Academic debate has been just as robust. Compare
Drahozal, In Defense of Southland: Reexamining the Legislative History of the Federal
Arbitration Act, 78 Notre Dame L. Rev. 101 (2002) with I. Macneil, American
Arbitration Law: Reformation, Nationalization, Internationalization 83-147 (1992) and
Moses, Statutory Misconstruction: How the Supreme Court Created A Federal
Arbitration Law Never Enacted by Congress, 34 Fla. St. U. L. Rev. 99 (2006). See also
Dosman & Flebus, The Federal Arbitration Act and State Arbitration Acts: Impact of
Federalism on International Arbitration in the U.S., in L. Shore et al. (eds.),
International Arbitration in the United States31 (2018).It is difficult to be certain
what Congress thought it was doing when it enacted the FAA in 1925. The better view
is that it intended that §2 of the Act states a substantive rule of federal law,
governing the validity of arbitration agreements, which would preempt state law
and be enforceable in state, as well as federal, courts. Drahozal, In Defense of
Southland: Reexamining the Legislative History of the Federal Arbitration Act, 78
Notre Dame L. Rev. 101, 163-65 (2002). This interpretation is buttressed by the then
recently-adopted 1923 Geneva Protocol, which also provided for the validity of
arbitration agreements (but not for the recognition of foreign arbitral awards), in a
manner structurally paralleling the FAA. See§1.01[C][1].
1344) Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (U.S. S.Ct. 2003); Hines v. Davidowitz, 312
U.S. 52 (U.S. S.Ct. 1941). See also Drahozal, The New York Convention and the
American Federal System, 2012 J. Disp. Resol. 101.
1345) The U.S. Supreme Court has repeatedly held that the FAA preempts particular state
law rules. See, e.g., Kindred Nursing Ctr Ltd v. Clark, 137 S.Ct. 1421 (U.S. S.Ct. 2017);
Marmet Health Care Ctr, Inc. v. Brown, 565 U.S. 530 (U.S. S.Ct. 2012); AT&T Mobility
LLC v. Concepcion, 563 U.S. 333, 341 (U.S. S.Ct. 2011) (“When state law prohibits
outright the arbitration of a particular type of claim, the analysis is
straightforward: The conflicting rule is displaced by the FAA”); Allied-Bruce Terminix
Co. v. Dobson, 513 U.S. 265 (U.S. S.Ct. 1995); Perry v. Thomas, 482 U.S. 483 (U.S. S.Ct.
1987); Southland Corp. v. Keating, 465 U.S. 1 (U.S. S.Ct. 1984); §4.04[A][2][j][iii];
§4.04[B][3][b]; §5.02[C]; §6.04[H][1]. See also Besson, The Utility of State Laws
Regulating International Commercial Arbitration and Their Compatibility with the
FAA, 11 Am. Rev. Int’l Arb. 211 (2000); Drahozal, In Defense of Southland: Reexamining
the Legislative History of the Federal Arbitration Act, 78 Notre Dame L. Rev. 101
(2002); Drahozal, Federal Arbitration Act Preemption, 79 Ind. L.J. 393 (2004); Hayford
& Palmiter, Arbitration Federalism: A State Role in Commercial Arbitration, 54 Fla. L.
Rev. 175 (2002).
1346) See§1.04[B][1][e][v].
182
1347) See Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468, 477 (U.S. S.Ct. 1989) (“even
when Congress has not completely displaced state regulation in an area, state law
may nonetheless be preempted to the extent that it actually conflicts with federal
law”); Restatement of the U.S. Law of International Commercial and Investor-State
Arbitration §4-3 (2019) (“Since the FAA does not occupying the field of arbitration
law, state law may provide a basis for confirming, vacating, recognizing, or
enforcing international awards”).
1348) Southland Corp., 465 U.S. at 10. See also Kindred Nursing, 137 S.Ct. 1421; Buckeye
Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444-48 (U.S. S.Ct. 2006) (“Section 2
embodies the national policy favoring arbitration and places arbitration
agreements on equal footing with all other contracts”); Restatement of the U.S. Law
of International Commercial and Investor-State Arbitration §1.6 comment a(i) (2019)
(“The [FAA] makes arbitration clauses subject to the same state law grounds for
nonenforcement as other contract provisions and does not permit them to be
subject to discriminatory treatment …”).
1349) See§4.04[A][2][j][iii]; §4.04[B][3][b]; §6.04[H][1]; Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612
(U.S. S.Ct. 2018); Kindred Nursing, 137 S.Ct. 1421 (preempting state law that “fails to
put arbitration agreements on an equal plane with other contracts”); Marmet
Health Care, 565 U.S. 530; AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (U.S. S.Ct.
2011); Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681 (U.S. S.Ct. 1996); Allied-Bruce
Terminix Co. v. Dobson, 513 U.S. 265 (U.S. S.Ct. 1995); Southland Corp., 465 U.S. at 10.
1350) See§3.02[B][3][c]; §3.03[A][2][b]; Rent-A-Ctr, W., Inc. v. Jackson, 561 U.S. 63 (U.S. S.Ct.
2010); Buckeye Check Cashing, Inc., 546 U.S. 440; Prima Paint Corp. v. Flood &
Conklin Mfg Co., 388 U.S. 395 (U.S. S.Ct. 1967).
1351) See§9.05[A]; BG Group plc v. Argentina, 572 U.S. 25 (U.S. S.Ct. 2014); First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938 (U.S. S.Ct. 1995); Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (U.S. S.Ct. 1985); Moses H. Cone Mem. Hosp.
v. Mercury Constr. Corp., 460 U.S. 1 (U.S. S.Ct. 1983).
1352) See§25.03[B].
1353) Allied-Bruce Terminix Co., 513 U.S. 265; First Options, 514 U.S. 938; Perry v. Thomas,
482 U.S. 483 (U.S. S.Ct. 1987); §4.04[A][2][j]. In contrast, state laws that are
specifically directed towards the formation or validity of arbitration agreements
(as distinguished from other types of agreements) are preempted by the FAA. See
Epic Sys. Corp., 138 S.Ct. 1612; Kindred Nursing Ctr Ltd v. Clark, 137 S.Ct. 1421 (U.S.
S.Ct. 2017); Marmet Health Care, 565 U.S. 530; Allied-Bruce Terminix Co., 513 U.S. 265;
Southland Corp., 465 U.S. 1; §4.04[A][2][j][iii].
1354) See§4.04[A][2][j][iii]; Sourcing Unlimited Inc. v. Asimco Int’l, Inc., 526 F.3d 38, 46 (1st
Cir. 2008); Certain Underwriters at Lloyd’s London v. Argonaut Ins., 500 F.3d 571, 579
(7th Cir. 2007) (“We believe that this overarching federal concern with the
uniformity of treatment of international arbitration agreements requires that the
issue before us be resolved by a federal common law rule, rather than by a state
rule of decision”); InterGen NV v. Grina, 344 F.3d 134, 143 (1st Cir. 2003).
1355) See§4.04[A][2][j][iii]; §4.04[B][3][b]; §6.04[H][1].
1356) See§16.03[A][4]; §17.04[C][1][c].
1357) See, e.g., Standard Magnesium Corp. v. Fuchs, 251 F.2d 455, 458 (10th Cir. 1957)
(enforcing award made in Norway under state common law); Weizmann Inst. of
Science v. Neschis, 421 F.Supp.2d 654, 674-75 n.21 (S.D.N.Y. 2005) (recognizing award
made in Liechtenstein under state common law); Gilbert v. Bernstine, 174 N.E. 706,
709 (N.Y. 1931) (enforcing award made in London under state common law). See also
Restatement of the U.S. Law of International Commercial and Investor-State
Arbitration §4-3 Reporters’ Note e(ii) (2019) (“To the extent that no state arbitration
statute is applicable, non-Convention awards may be enforced under state
common law”).
1358) See Lerner, The Uniform Arbitration Act: 25-Year Retrospective, N.Y. L.J. 1 (1981);
Pirsig, The New Uniform Arbitration Act, 11 Bus. Law. 44 (1956); Pirsig, Some
Comments on Arbitration Legislation and the Uniform Act, 10 Vand. L. Rev. 685 (1957);
Report of the National Conference of Commissioners on Uniform State Laws, 50 A.B.A.
J. 134, 134-62 (1925).
1359) National Conference of Commissioners on Uniform State Laws, Revised Uniform
Arbitration Act (2000). The drafters of the Act observe: “The Uniform Arbitration Act,
promulgated in 1955, has been one of the most successful Acts of the National
Conference of Commissioners on Uniform State Laws.” U.S. Revised Uniform
Arbitration Act, Prefatory Note (2000).
183
1360) The Revised Uniform Arbitration Act (2000) has been adopted by the District of
Columbia and 21 states: Alaska, Arizona, Arkansas, Colorado, District of Columbia,
Connecticut, Florida, Hawaii, Kansas, Michigan, Minnesota, Nevada, New Jersey,
New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Utah,
Washington and West Virginia. In 2019, the Revised Uniform Arbitration Act (2000)
was introduced for enactment in Vermont and Massachusetts. The 1956 Act remains
in effect in 28 states: Colorado, Delaware, District of Columbia, Georgia, Idaho,
Indiana, Iowa, Kansas, Kentucky, Maine, Missouri, Montana, Nebraska, Nevada, New
Mexico, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota,
Utah and Virginia. Colorado, District of Columbia, Nevada, New Mexico, North
Carolina, North Dakota, Oklahoma did not repeal the 1956 Act when they adopted
the 2000 Act. See U.S. Uniform Law Commission Arbitration Act, 2000.
1361) The National Conference of Commissioners on Uniform Laws originally opposed the
enforceability of arbitration agreements applicable to future disputes. Report of
the National Conference of Commissioners on Uniform State Laws, 50 A.B.A. J. 134,
134-62 (1925). As initially adopted, the Uniform Act was confined to agreements
covering existing disputes. Id. at 591.
1362) U.S. Revised Uniform Arbitration Act, §§4, 6-7 (2000).
1363) Id. at §§22-23.
1364) Id. at §§11-12.
1365) Id. at §8.
1366) Id. at §§9, 15-17.
1367) Id. at §19.
1368) Id. at §14.
1369) See, e.g., Arkansas Code Annotated §16-108-233(b)(1) (tort claims); Kentucky Revised
Statutes §417.050 (insurance disputes); Ohio Revised Code Annotated §2711.01 (real
property disputes). These state rules are preempted by the FAA in almost all
circumstances. See§4.04[A][2][j][i]-§4.04[A][2][j][ii]; §6.04[H][1].
1370) See, e.g., California Code of Civil Procedure §1295(b) (requiring special notice of
arbitration clauses in medical services contracts); California Code of Civil
Procedure §1298 (requiring special notice of arbitration clauses in real property
contracts); Missouri Annotated Statutes §435.460 (requiring notice of arbitration
clause to appear in ten point font capital letters before signature line); South
Carolina Code Annotated §15-48-10 (requiring front-page notice of arbitration
clause in all contracts except employment contracts, lawyer/client and
doctor/patient prearrangements, personal injury claims, and those contracts
stipulating that the chapter does not apply).These state law rules are also
preempted by the FAA in almost all cases. See Kindred Nursing Ctr Ltd v. Clark, 137
S.Ct. 1421 (U.S. S.Ct. 2017) (state law requiring specific reference to arbitration
agreement in power of attorney preempted by FAA); Doctor’s Assocs., Inc. v.
Casarotto, 517 U.S. 681 (U.S. S.Ct. 1996) (state statute requiring special notice for
arbitration clauses preempted by FAA); Morrison v. Colo. Permanente Med. Group,
983 F.Supp. 937 (D. Colo. 1997) (state notice requirement for medical malpractice
arbitration clauses preempted by FAA). See§4.04[A][2][j][i] & §4.04[A][2][j][v];
§5.02[D][1]-§5.02[D][3].
1371) Georgia Code Annotated §9-9-13; Pennsylvania Consolidated Statutes Annotated
title 42, §7302(d)(2). Again, these state law provisions are generally preempted by
the FAA.
1372) See Besson, The Utility of State Laws Regulating International Commercial
Arbitration and Their Compatibility with the FAA, 11 Am. Rev. Int’l Arb. 211 (2000);
Garvey & Heffelfinger, Towards Federalizing U.S. International Commercial
Arbitration Law, 25 Int’l Law. 209 (1991); McClendon, State International Arbitration
Laws: Are They Needed or Desirable, 1 Am. Rev. Int’l Arb. 245 (1990); Walker, Trends in
State Legislation Governing International Arbitrations, 17 N.C.J. Int’l L. & Com. Reg.
419 (1992).
184
1373) Arbitration & Conciliation of International Commercial Disputes, California Code of
Civil Procedure Pt. 3, ; Colorado International Dispute Resolution Act, Colorado
Revised Statutes §§13-22-501 to 13-22-507; UNCITRAL Model Law on International
Commercial Arbitration, Connecticut General Statutes §§50a-100 to 50a-136;
Florida International Commercial Arbitration Act, Florida Statutes Annotated
§§684.0001 to 0049; Georgia International Commercial Arbitration Code, Georgia
Code Annotated §9-9-20 et seq.; Hawaii International Arbitration, Mediation, and
Conciliation Act, Hawaii Revised Statutes §§658D-1 to 9; International Commercial
Arbitration Act, Illinois Compiled Statutes Annotated Arts. 1, 5, 10, 15, 20, 25, 99;
International Commercial Arbitration Act, Louisiana Statutes §§4241-76; Maryland
International Commercial Arbitration Act, Maryland Courts & Judicial Procedural
Code Annotated §§3-2B-01 to 3-2B-09; Montana Code Annotated §§27-5-211 et seq.,
27-5-311 et seq.; §27-5-323; New Jersey International Arbitration, Mediation, and
Reconciliation Act, 2a NJ ST Subt. 6, Ch. 23E 2a:23e-1 to 8; North Carolina
International Commercial Arbitration & Conciliation Act, N.C. Gen. Stat. §§1-567.30
to 89; International Commercial Arbitration, Ohio Revised Code Annotated
§§2712.01-91; Oregon International Commercial Arbitration and Conciliation Act,
Oregon Revised Statutes §§36.450-558; Puerto Rico International Commercial
Arbitration, Laws of Puerto Rico Annotated §§3241-49; Arbitration & Conciliation of
International Commercial Disputes, Texas Civil Practice & Remedies Annotated
§172.001 et seq.; International Commercial Arbitration, West’s Revised Code of
Washington Annotated §§7.05.010–470. For a list of changes to U.S. state and
territory arbitration statutes since 2018, see Amirfar, Reid & Popova, National
Report for the United States of America (2018 through 2022), in L. Bosman (ed.),
International Handbook on Commercial Arbitration, Note General Editor (2020 &
Update February 2022).
1374) As discussed elsewhere, generally-applicable state law provides most basic rules
of contract law governing the formation of domestic arbitration agreements;
federal common law principles appear to apply to the formation and validity of
international arbitration agreements subject to the New York and Inter-American
Conventions. See§1.04[B][1][e]; §4.04[A][2][j]. State law can, of course, also provide
the substantive rules governing the merits of the parties’ dispute.
1375) Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468 (U.S. S.Ct. 1989).
1376) See, e.g., DIRECTV, Inc. v. Imburgia, 136 S.Ct. 463, 471 (U.S. S.Ct. 2015) (“California’s
interpretation of the phrase ‘law of your state’ does not place arbitration contracts
‘on equal footing with all other contracts.’ … For that reason, it does not give ‘due
regard … to the federal policy favoring arbitration’”) (quoting Volt Info. Sciences,
489 U.S. at 476); Preston v. Ferrer, 552 U.S. 346, 361 (U.S. S.Ct. 2008) (“[In Volt,] [w]e
thought it proper to recognize state law as the gap filler. Here, in contrast, the
arbitration clause speaks to the matter in controversy. …”); Doctor’s Assocs., Inc. v.
Casarotto, 517 U.S. 681 (U.S. S.Ct. 1996); Mastrobuono v. Shearson Lehman Hutton,
Inc., 514 U.S. 52 (U.S. S.Ct. 1995); §4.04[A][2][j][i].
1377) Ukrnafta v. Carpatsky Petroleum Corp., 2020 WL 1671559, at *4 (1st Cir. 2020) (“the …
choice-of-law provision does not overcome the ‘strong presumption that
designating the place of the arbitration also designates the law under which the
award is made’”) (quoting G. Born, International Commercial Arbitration 3463-65 (2d
ed. 2014)). See§4.04[B][2][b][iii].
1378) See, e.g., Donovan, International Commercial Arbitration and Public Policy, 27 N.Y.U.
J. Int’l L. & Pol. 645 (1995); El-Kosheri, Is There A Growing International Arbitration
Culture in the Arab-Islamic Juridical Culture?, in A. van den Berg (ed.), International
Dispute Resolution: Towards An International Arbitration Culture 47 (1998); Kassis,
The Questionable Validity of Arbitration and Awards Under the Rules of the
International Chamber of Commerce, 6(2) J. Int’l Arb. 79 (1989); Nariman, East Meets
West: Tradition, Globalization and the Future of Arbitration, 20 Arb. Int’l 123, 125-26
(2004); Shalakany, Arbitration and the Third World: A Plea for Reassessing Bias Under
the Specter of Neoliberalism, 41 Harv. Int’l L.J. 419 (2000); Sornarajah, The Climate of
International Arbitration, 8(2) J. Int’l Arb. 47 (1991); Sornarajah, The UNCITRAL Model
Law: A Third World Viewpoint, 6(4) J. Int’l Arb. 7 (1989).
1379) See authorities cited at §1.01[B][5]; §1.04[B][1][e][i].
1380) For a recent illustration of these attitudes in a largely domestic setting, see
Albanese, Ring of Diamonds, 2 Comm. Disp. Resol. 28 (2010) (South African report
criticizing arbitration as permitting parties of European roots to perpetuate racism
by allowing them to avoid local courts).
185
1381) N. Blackaby, D. Lindsey & A. Spinillo (eds.), International Arbitration in Latin
America, Overview of Regional Developments 3-10 (2003); Briones & Tagvoryan, Is
International Arbitration in Latin America in Danger?, 16 L. & Bus. Rev. Ams. 131
(2010); El-Ahdab, Enforcement of Arbitral Awards in the Arab Countries, 11 Arb. Int’l
169 (1995); Grigera Naón, Arbitration and Latin America: Progress and Setbacks, 21
Arb. Int’l 127, 128-40 (2005); Grigera Naón, Arbitration in Latin America: Overcoming
Traditional Hostility, 5 Int’l Arb. 137 (1989); J. Kleinheisterkamp, International
Commercial Arbitration in Latin America 1, 17, 18 (2005); Nattier, International
Commercial Arbitration in Latin America: Enforcement of Arbitral Agreements and
Awards, 21 Tex. J. Int’l L. 397 (1986); S. Saleh, Commercial Arbitration in the Arab
Middle East 393-94 (2d ed. 2012) (in Saudi Arabia under Decree M/46 subsequent
validation required to give effect to arbitration clause; such validation can only be
performed provided after dispute has arisen).
1382) Sornarajah, The UNCITRAL Model Law: A Third World Viewpoint, 6(4) J. Int’l Arb. 7, 9
(1989).
1383) Afro-Asian Legal Consultative Committee, Report of the Seventeenth, Eighteenth and
Nineteenth Sessions Held in Kuala Lumpur (1976), Baghdad (1977) and Doha (1978) 131
(1978) (institutional arbitration rules do “not work out particularly favourably for
the developing countries in the matter of venue, choice of arbitrators, as also fees
and charges leviable by the institutions concerned”); Shalakany, Arbitration and the
Third World: A Plea for Reassessing Bias Under the Specter of Neoliberalism, 41 Harv.
Int’l L.J. 419, 427 et seq. (2000) (“national judicial sovereignty is the price of
capitulation to a historically biased dispute settlement mechanism … a ‘system
that is weighted in favor of the capital exporting states’”) (quoting Sornarajah, The
Climate of International Commercial Arbitration, 8(2) J. Int’l Arb. 47, 47 (1991)).
1384) See Afro-Asian Legal Consultative Committee, Report of the Seventeenth, Eighteenth
and Nineteenth Sessions Held in Kuala Lumpur (1976), Baghdad (1977) and Doha (1978)
131 (1978); Shalakany, Arbitration and the Third World: A Plea for Reassessing Bias
Under the Specter of Neoliberalism, 41 Harv. Int’l L.J. 419, 427 et seq. (2000).
1385) Brazilian Arbitration Act, 1996, Arts. 6-7 (arguably requiring post-dispute
compromise); Grigera Naón, Argentine Law and the ICC Rules: A Comment on the
ECOFISA Case, 3 World Arb. & Med. Rep. 100 (1992). See also Judgment of 12
November 2013, Inepar SA Indústria e Construções v. Itiquira Energética SA, Case No.
1.389.763 (2013/0186578-8) (Brazilian Superior Tribunal de Justiça).
1386) C. Calvo, Derecho Internacional Teorico y Practico de Europa y America (1868); C.
Calvo, Le Droit International Théorique et Pratique (4th ed. 1870-72). See Grigera
Naón, Arbitration and Latin America: Progress and Setbacks, 21 Arb. Int’l 127, 134-37
(2005).
1387) See§1.01[B][3]-§1.01[B][8]; Baker & Yoder, ICSID and the Calvo Clause: Hindrance to
Foreign Direct Investment in LDCs, 5 Ohio St. J. Disp. Resol. 75, 91 (1989); F. Garcia-
Amador, 2 The Changing Law of International Claims 481-82 (1984).
1388) Decision 24 of the Andean Commission Concerning Treatment of Foreign Capital,
Article 51, 10 I.L.M. 15 (1971).
1389) Charter of Economic Rights and Duties of States, U.N. G.A. Resol. No. 3281 (XXIX), U.N.
Doc. A/9631 (1974); Permanent Sovereignty over Natural Resources, U.N. G.A. Resol.
No. 3171, U.N. Doc. A/9030 (1973).
1390) See§1.01[B][3]-§1.01[B][8]; §5.01[C][5]; Brazilian Arbitration Law, Arts. 6, 7 (arguably
requiring post-dispute compromise). See n.1176.
1391) See§25.04[A][8][a]; §26.05[C]; Judgment of 1 August 2002, Electrificadora del Atlantico
SA ESP v. TermoRio SA ESP, Expediente 21.041 (Colombian Consejo de Estado) (“As a
consequence of the evidence given, the arbitration process and the award from the
21st of December of 2001 … between the companies Electrificadora del Atlántico
SA ESP and TermoRio ESP is annulled”).
1392) See§8.04. For an account of efforts made by some states to frustrate the arbitration
of international disputes, see Kantor, International Project Finance and Arbitration
with Public Sector Entities: When Is Arbitrability A Fiction?, 24 Fordham Int’l L.J. 1122,
1171-72 (2001) (“substantial risk exists that courts in developing countries will
intervene to halt arbitration of disputes between investors and public authorities
of that country, particularly in circumstances of pervasive economic and political
turmoil and corruption”).
1393) A. Asouzu, International Commercial Arbitration and African States: Practice,
Participation and Institutional Development (2001); Alfaro & Guimarey, Who Should
Determine Arbitrability? Arbitration in A Changing Economic and Political
Environment, 12 Arb. Int’l 415, 424-26 (1996); Asouzu, The Adoption of the UNCITRAL
Model Law in Nigeria: Implications on the Recognition and Enforcement of Arbitral
Awards, 1999 J. Bus. L. 185; Grigera Naón, Arbitration and Latin America: Progress and
Setbacks, 21 Arb. Int’l 127, 149-76 (2005); Grigera Naón, Arbitration in Latin America:
Overcoming Traditional Hostility (An Update), 22 U. Miami Inter-Am. L. Rev. 203, 231-
34 (1991); Hamilton, International Litigation and Arbitration: Three Decades of Latin
American Commercial Arbitration, 30 U. Pa. J. Int’l L. 1099 (2009).
186
1394) Alfaro & Lorenti, The Growing Opposition of Argentina to ICSID Arbitral Tribunals: A
Conflict Between International and Domestic Law?, 6 J. World Inv. & Trade 417 (2005);
Grigera Naón, Arbitration and Latin America: Progress and Setbacks, 21 Arb. Int’l 127,
150 (2005) (“[D]espite the rosy landscape generally presented by the black letter
law on arbitration in Latin America after its recent modernisation, its substance or
spirit has not always been properly understood or applied. In certain cases, the
Latin American courts have ignored express legal provisions aimed at facilitating
arbitration or ensuring its efficacy, or advanced results notoriously incompatible
with the policies favourable to arbitration underlying the new and updated legal
arbitration framework”).
1395) In May 2007, Venezuela, Bolivia, Ecuador and Nicaragua announced their intention
to withdraw from the ICSID Convention. See South American Alternative to ICSID in
the Works as Governments Create An Energy Treaty, Inv. Treaty News (6 Aug. 2008),
available at www.iisd.org. Bolivia (2007), Ecuador (2009) and Venezuela (2012)
subsequently withdrew from the ICSID Convention, although Ecuador re-ratified the
ICSID Convention on 4 August 2021. See ICSID, List of Contracting States and Other
Signatories of the Convention (as of May 4, 2022), available at icsid.worldbank.org.
1396) See§1.04[B][2]; Franck, The Legitimacy Crisis in Investment Treaty Arbitration: Public
International Law Through Inconsistent Decisions, 73 Ford. L. Rev. 1521 (2005);
Shalakany, Arbitration and the Third World: A Plea for Reassessing Bias Under the
Specter of Neoliberalism, 41 Harv. Int’l L.J. 419, 430 (2000).
1397) See§1.04[A]-§1.04[B].
1398) See§15.07[C].
1399) For brief descriptions of major international arbitral institutions, see G. Born,
International Arbitration and Forum Selection Agreements: Drafting and Enforcing
43-62 (6th ed. 2021); P. Gola, C. Götz Staehelin & K. Graf (eds.), Institutional
Arbitration: Tasks and Powers of Different Arbitration Institutions (2009); R. Schuetze,
Institutional Arbitration: Article-by-Article Commentary (2013); Tiefenbrun, A
Comparison of International Arbitral Rules, 15 Boston C. Int’l & Comp. L. Rev. 25
(1992); von Mehren, Rules of Arbitral Bodies Considered from A Practical Point of View,
9(3) J. Int’l Arb. 105 (1992).
1400) See§1.04[A][4].
1401) In a number of industries, specialized arbitral regimes provide well-established
means of dispute resolution. Examples include maritime, commodities,
construction, insurance and reinsurance, labor and sport arbitration. See§1.04[C][6]
[n]-§1.04[C][6][o]; AAA, www.adr.org (providing descriptions and rules for
construction, textile, apparel, labor, pension, consumer and insurance
arbitrations); C. Ambrose & K. Maxwell, London Maritime Arbitration (4th ed. 2017);
D. Johnson, International Commodity Arbitration (1991); F. Rose, International
Commercial and Maritime Arbitration (1988). See also 1988 AAA Rules for Impartial
Determination of Union Fees (organized labor union fees); 2013 AAA Labor
Arbitration Rules (labor disputes); 2004 ARIAS Procedures for the Resolution of U.S.
Insurance and Reinsurance Disputes (reinsurance); 2014 ARIAS-UK Arbitration
Rules; 2021 CAS Code; 2021 Federation of Cocoa Commerce Arbitration and Appeal
Rules (selected commodities disputes); 2020 GMAA Rules (maritime); 2021 LMAA
Terms (maritime); 2019 National Grain and Feed AssociationRail Arbitration Rules
(selected transport disputes); 2022 National Grain and Feed Association Arbitration
Rules (selected commodities disputes); 2011 PCA Optional Rules for the Arbitration
of Disputes Relating to Outer Space Activities; 2022 SMA Rules (maritime).
1402) The incorporation of institutional arbitration rules is discussed below, see§5.05[C];
§9.03[A].
1403) SeeChapter 13. On therole played by arbitral institutions and the risks of
institutional overreach, see Chong,Institutional Leadership or Institutional
Overreach?,86 (3)Int’l J. Arb. Med. & Disp. Mgt 270(2020).
1404) See§12.04[A].
1405) See§12.01[A].
1406) See§12.03[C][2].
1407) For a discussion of the UNCITRAL Rules, see§1.04[C][4].
1408) Most leading arbitral institutions (including the ICC, SIAC, AAA, LCIA and PCA) will
act as an appointing authority, for a fee, in ad hoc arbitrations.
1409) See§12.03[E].
1410) See§1.04[C][6].
1411) As discussed below, national courts will generally have the power, under most
arbitration statutes and where the parties have not otherwise agreed, to assist the
arbitral process by appointing arbitrators, considering challenges to arbitrators
and fixing compensation of arbitrators. See§12.03[F]; §12.06[B]-§12.06[D].
1412) See§3.02[D]; §7.02[C]; §12.01[D].
1413) See§1.01[B][5].
1414) T. Webster, Handbook on UNCITRAL Arbitration:Commentary, Precedents & Models
for UNCITRAL-Based Arbitration Rules ¶48 (3d ed. 2019) (“There is a strong
preference for ad hoc as opposed to institutional arbitration due to the added
flexibility and independence …”).
1415) Coyle & Drahozal, An Empirical Study of Dispute Resolution Clauses in International
Supply Contracts, 52 Vand. J. Transnat’l L. 323 (2019) (90% of arbitration clauses in
international supply contracts specify institutional arbitration).
187
1416) For commentary, see S. Baker & M. Davis, The UNCITRAL Arbitration Rules in Practice:
The Experience of the Iran–United States Claims Tribunal (1992); D. Caron & L. Caplan,
The UNCITRAL Arbitration Rules: A Commentary (2d ed. 2013); Dietz, Development of
the UNCITRAL Arbitration Rules, 27 Am. J. Comp. L. 449 (1979); I. Dore, Arbitration and
Conciliation Under the UNCITRAL Rules: A Textual Analysis (1986); S. Nappert,
Commentary on the UNCITRAL Arbitration Rules 2010: A Practitioner’s Guide (2012); J.
Paulsson, The Revised UNCITRAL Rules (2013); J. Paulsson & G. Petrochilos, UNCITRAL
Arbitration (2017); Sanders, Commentary on the UNCITRAL Arbitration Rules, II Y.B.
Comm. Arb. 172 (1977); Sanders, Procedures and Practices Under the UNCITRAL Rules,
27 Am. J. Comp. L. 453 (1979); van Haersolte-van Hof, UNCITRAL Arbitration Rules,
2010, in L. Mistelis (ed.) Concise International Arbitration 179 (2d ed. 2015); J. van Hof,
Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran–U.S.
Claims Tribunal (1991); T. Webster, Handbook of UNCITRAL Arbitration: Commentary,
Precedents & Models for UNCITRAL-Based Arbitration Rules (3d ed. 2019). See also
UNCITRAL, Recommendations to Assist Arbitral Institutions and Other Interested
Bodies with Regard to Arbitrations Under the UNCITRAL Arbitration Rules, XIII Y.B.
UNCITRAL 420 (1982).
1417) UNCITRAL, Report on the Work of Its Sixth Session, U.N. Doc. A/9017, ¶85, IV Y.B.
UNCITRAL 11 (1973).
1418) D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 30-36, 45-59
(2d ed. 2013); UNCITRAL, Report of the Secretary-General on the Revised Draft Set of
Arbitration Rules, Ninth Session, Introduction, U.N. Doc. A/CN.9/112, ¶17, VII Y.B.
UNCITRAL 157 (1976). See also Arbitration Rules of the United Nations Commission on
International Trade Law, U.N. G.A. Resol. No. 31/98 (1976) (“establishment of rules for
ad hoc arbitration that are acceptable in countries with different legal, social and
economic systems would significantly contribute to the development of
harmonious international economic relations”).
1419) D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 45-59, 565-79
(2d ed. 2013); UNCITRAL, Report of the Secretary-General on the Preliminary Draft Set
of Arbitration Rules for Optional Use in Ad Hoc Arbitration Relating to International
Trade, U.N. Doc. A/CN.9/97, VI UNCITRAL Y.B. 163, 176 (1975).
1420) UNCITRAL, Report of the UNCITRAL on the Work of Its Ninth Session, U.N. Doc.
A/31/17, VII Y.B. UNCITRAL 9, 20-27, 66-82 (1976). See D. Caron & L. Caplan, The
UNCITRAL Arbitration Rules: A Commentary 2 et seq. (2d ed. 2013).
1421) The UNCITRAL Working Group on International Arbitration and Conciliation began
to study possible revisions to the UNCITRAL Rules in 2006. See UNCITRAL, Report of
the Working Group on Arbitration and Conciliation on the Work of Its Forty-Seventh
Session, U.N. Doc. A/CN.9/641 (2007); Paulsson & Petrochilos, Report: Revision of the
UNCITRAL Arbitration Rules (2006).
1422) 2010 UNCITRAL Rules. By their terms, the revised Rules apply to arbitrations where
the arbitration agreement was concluded on or after 15 August 2010. They also
apply to arbitration agreements concluded earlier, where the parties agree to
their application. 2010 UNCITRAL Rules, Art. 1(2). See§9.03[C].
1423) 2013 UNCITRAL Rules, Art. 1(4). See§20.04. See also J. Paulsson & G. Petrochilos,
UNCITRAL Arbitration (2017); T. Webster, Handbook of UNCITRAL Arbitration:
Commentary, Precedents & Models for UNCITRAL-Based Arbitration Rules (3d ed.
2019).
1424) The International Institute for Conflict Prevention and Resolution (formerly known
as the CPR Institute for Dispute Resolution) has published, on a regular basis, since
1989, a set of “Rules for Non-Administered Arbitration” (formerly called “Rules and
Commentary for Non-Traditional Arbitration for Business Disputes”). The
Permanent Court of Arbitration has promulgated several sets of rules, based on the
UNCITRAL Rules, applicable to disputes between private and public parties.
See§1.04[C][6][e].
1425) Experience with the UNCITRAL Rules has been positive. See D. Caron & L. Caplan,
The UNCITRAL Arbitration Rules: A Commentary 11 (2d ed. 2013) (“Since the 1980s,
the UNCITRAL Rules have come to be very widely used and, more importantly, the
most influential global procedural framework for international dispute
settlement”); PCA, Permanent Court of Arbitration: Optional Rules for Arbitrating
Disputes Between Two States, Effective 20 October 1992, 32 I.L.M. 572 (1993)
(“Experience since 1981 suggests that the UNCITRAL Arbitration Rules provide fair
and effective procedures for peaceful resolution of disputes between States
concerning the interpretation, application and performance of treaties and other
agreements, although they were originally designed for commercial arbitration”).
1426) 2013 UNCITRAL Rules, Arts. 3-4; 2010 UNCITRAL Rules, Arts. 3-4; 1976 UNCITRAL Rules,
Arts. 3-4. See§15.08[A].
1427) 2013 UNCITRAL Rules, Arts. 6-16; 2010 UNCITRAL Rules, Arts. 6-16; 1976 UNCITRAL
Rules, Arts. 5-13. See§12.01[D]; §12.03[B][1]; §12.03[D][2]; §12.03[E][3].
1428) 2013 UNCITRAL Rules, Arts. 17-32; 2010 UNCITRAL Rules, Arts. 17-32; 1976 UNCITRAL
Rules, Arts. 14-25, 27-29. See§15.02[D]; §15.03[C].
1429) 2013 UNCITRAL Rules, Art. 17(5).
1430) Id. at Art. 26.
1431) 2013 UNCITRAL Rules, Art. 35; 2010 UNCITRAL Rules, Art. 35; 1976 UNCITRAL Rules,
Art. 33. See§19.03[C].
188
1432) 2013 UNCITRAL Rules, Arts. 33-39; 2010 UNCITRAL Rules, Arts. 33-39. See§23.01[A];
§24.02.
1433) 2013 UNCITRAL Rules, Arts. 40-43; 2010 UNCITRAL Rules, Arts. 40-43. See§23.08[B].
1434) 2013 UNCITRAL Rules, Art. 23; 2010 UNCITRAL Rules, Art. 23; 1976 UNCITRAL Rules,
Art. 21. See§3.02[D]; §7.02[C].
1435) The parties can select an arbitral institution (like the ICC, AAA, or LCIA) as
appointing authority without adopting that institution’s rules. Alternatively, a
designated individual or office-holder may be selected.
1436) The 2013 UNCITRAL Rules provide expressly that the parties may designate the
Secretary-General of the PCA directly as appointing authority. See 2013 UNCITRAL
Rules, Art. 6. See§12.03[D][2].
1437) This includes the IACAC, ICDR, HKIAC, Asian International Arbitration Centre (“AIAC”),
Cairo Regional Centre for International Commercial Arbitration (“CRCICA”) and the
Iran–U.S. Claims Tribunal. See P. Binder, Analytical Commentary to the UNCITRAL
Arbitration Rules (2013); D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A
Commentary 6-7 (2d ed. 2013); J. van Hof, Commentary on the UNCITRAL Arbitration
Rules: The Application by the Iran–U.S. Claims Tribunal (1991). In August 2010, the
Kuala Lumpur Regional Centre for Arbitration (now the AIAC) became the first
arbitral institution to adopt new arbitration rules incorporating the revised 2010
UNCITRAL Rules.
1438) See D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 7-8 (2d ed.
2013). Arbitral institutions such as PCA administer multiple state-to-state or
investor-state arbitrations under the UNCITRAL Arbitration Rules. See, e.g.,
Ukrnafta v. Russia, Final Award (English) in PCA Case No. 2015-34 of 24 April 2019;
Stabil LLC v. Russia, Final Award in PCA Case No. 2015-35 of 24 April 2019; WNC
Factoring Ltd v. Czechia, Award in PCA Case No. 2014-34 of 22 February 2017; Allard v.
Barbados, Award in PCA Case No. 2012-06 of 27 June 2016; Active Partners Group Ltd v.
S. Sudan, Award in PCA Case No. 2013/4 of 27 January 2016; British Caribbean Bank
Ltd v. Belize, Award in PCA Case No. 2010-18 of 19 December 2014; PJSC E. Sugar BV v.
Czechia, Partial Award in SCC Case No. 088/2004 of 27 March 2007.
1439) 2021 UNCITRAL Expedited Arbitration Rules can be found at
https://uncitral.un.org/sites/uncitral.un.org/files/media-
documents/uncitral/en/uncitral_ear-e_websi.... Explanatory Note to the UNCITRAL
Expedited Arbitration Rules is available at
https://uncitral.un.org/sites/uncitral.un.org/files/media-
documents/uncitral/en/explanatory_note_to_.... See also Bordacahar & Pulkowski,
UNCITRAL, Expedited!, Kluwer Arb. Blog (14 July 2021).
1440) 2013 UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration.
1442) 2013 UNCITRAL Transparency Rules, Art. 1 (9). See also BSG Res. Ltd v. Guinea,
Procedural Order No. 8 in ICSID Case No ARB/14/22 of 23 March 2017.
1443) 2013 UNCITRAL Transparency Rules, Arts. 2-4 & 6. See U.N. Convention on
Transparency in Treaty-Based Investor-State Arbitration, Art. 2.
1444) 2013 UNCITRAL Transparency Rules, Art. 2.
1445) Id. at Art. 3.
1446) Id. at Art. 4.
1447) Id. at Art. 6(1).
1448) Id. at Art. 7.
1449) UNCITRAL, Status of the United Nations Convention on Transparency in Treaty-based
Investor-State Arbitration, available at www.uncitral.org.
1450) Mauritius Convention on Transparency, Art. 2(1).
1451) Id. at Arts. 3(1)(a)-(c). See also§20.11[A][5].
1452) Issues arising from arbitration agreements that incorporate institutional rules
(sometimes defectively) are discussed below. See§9.03.
1453) See§14.07. See also ICC Rules of Arbitration, Foreword (“ICC arbitrations are held in
numerous countries, in most major languages, and with arbitrators from all over
the world”); M. Scherer, L. Richman & R. Gerbay, Arbitrating Under the 2020 LCIA
Rules: A User’s Guide 1, 2 (2021) (“Despite its name, the LCIA is not an exclusively
English organization. In fact, the LCIA will administer cases arising under any
system of law in any venue worldwide”).
1454) For a comparison of the various institutional arbitration rules, see R. Schuetze,
Institutional Arbitration: Article-by-Article Commentary (2013); Gola, Götz Staehelin
& Graf, Comparison of Various Arbitration Institutions, in P. Gola, C. Götz Staehelin &
K. Graf (eds.), Institutional Arbitration: Tasks and Powers of Different Arbitration
Institutions 1 (2009).
1455) See, e.g., 2021 ICC Rules, Foreword (“Drafted by dispute resolution specialists and
users representing a wide range of legal traditions, cultures and professions, these
Rules provide a modern framework for the conduct of procedures and respond to
the needs of international trade today. At the same time, they remain faithful to
the ethos and essential features of ICC dispute resolution and, in particular, its
suitability for use in any part of the world in proceedings conducted in any
language and subject to any law”); Y. Derains & E. Schwartz, A Guide to the ICC Rules
of Arbitration 3 (2d ed. 2005).
1456) See§1.04[B].
189
1457) For commentary, see M. Bühler & T. Webster, Handbook of ICC Arbitration:
Commentary and Materials (5th ed. 2021); W. Craig, W. Park & J. Paulsson,
International Chamber of Commerce Arbitration (3d ed. 2000); Y. Derains & E.
Schwartz, A Guide to the ICC Rules of Arbitration (2d ed. 2005); J. Fry, S. Greenberg &
F. Mazza, The Secretariat’s Guide to ICC Arbitration (2012); J. Grierson & A. van Hooft,
Arbitrating Under the 2012 ICC Rules: An Introductory User’s Guide (2012). See also
Bond, The Present Status of the International Court of Arbitration of the ICC: A
Comment on An Appraisal, 1 Am. Rev. Int’l Arb. 108 (1990); Cohn, The Rules of
Arbitration of the International Chamber of Commerce, 14 Int’l & Comp. L.Q. 132
(1965); Heitzmann, The International Chamber of Commerce, in P. Gola, C. Götz
Staehelin & K. Graf (eds.), Institutional Arbitration: Tasks and Powers of Different
Arbitration Institutions 117 (2009); de los Santos Lago & Bonnín, Emergency
Proceedings Under the New ICC Rules, 2012:13 Spain Arb. Rev. 5; ICC, ICC Commission
Report: Arbitration Involving States and State Entities Under the ICC Rules of
Arbitration (2012); ICC, Guide to ICC Arbitration (1994); ICC, Note to Parties and
Arbitral Tribunal on the Conduct of the Arbitration Under the ICC Rules of Arbitration
(2017); Pair & Frankenstein, The New ICC Rule on Consolidation: Progress or Change?,
25 Emory Int’l L. Rev. 1061 (2011); E. Schäfer, H. Verbist & C. Imhoos, ICC Arbitration
in Practice (2005); Voser, Overview of the Most Important Changes in the Revised ICC
Arbitration Rules, 29 ASA Bull. 783 (2011); Wetter, The Present Status of the
International Court of Arbitration of the ICC: An Appraisal, 1 Am. Rev. Int’l Arb. 91
(1990). For collections of ICC awards and procedural decisions, see J.-J. Arnaldez, Y.
Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2016-2020 (2022); J.-J.
Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2012-2015
(2018); J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards
2008-2011 (2013); J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC
Arbitral Awards 2001-2007 (2009); J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Collection of ICC Arbitral Awards 1996-2000 (2003); J.-J. Arnaldez, Y. Derains & D.
Hascher (eds.), Collection of ICC Arbitral Awards 1990-1995 (1997); S. Jarvin, Y. Derains
& J.-J. Arnaldez (eds.), Collection of ICC Arbitral Awards 1986-1990 (1994); S. Jarvin &
Y. Derains (eds.), Collection of ICC Arbitral Awards 1974-1985 (1990). See also D.
Hascher (ed.), Collection of Procedural Decisions in ICC Arbitration 1993-1996 (1997);
ICC, Procedural Decisions in ICC Arbitration (2015).The ICC International Court of
Arbitration also publishes a periodical bulletin reporting on recent developments
in ICC arbitration. See ICC Court Bulletin.
1458) See§1.01[C][1].
1459) The ICC model arbitration clause provides: “All disputes arising out of or in
connection with the present contract shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by one or more arbitrators
appointed in accordance with the said Rules.”
1460) A total of 853 cases new cases were filed with the ICC International Court of
Arbitration in 2021, 929 new cases in 2020, 869 new cases in 2019, 842 new cases in
2018, 810 new cases in 2017, 966 new cases in 2016 and 801 new cases in 2015. These
figures reflect a generally continual increase in the Court’s active caseload, which
has more than doubled in the last twenty years. See ICC, ICC Unveils Preliminary
Dispute Resolution Figures for 2021 (26 Jan. 2022), available at
https://www.iccwbo.be/icc-unveils-preliminary-dispute-resolution-figures-for-
2021/; ICC, 2020 Dispute Resolution Statistics (2021); ICC, 2019 Dispute Resolution
Statistics (2020); ICC, 2018 Dispute Resolution Statistics, 2019:1 ICC Disp. Resol. Bull.
11, 17; ICC, 2017 Dispute Resolution Statistics, 2018:2 ICC Disp. Resol. Bull. 51, 52; ICC,
ICC Announces 2017 Figures Confirming Global Reach and Leading Position for
Complex, High-Value Disputes (2018); ICC, 2016 Dispute Resolution Statistics, 2017:2
ICC Disp. Resol. Bull. 106, 106; ICC, 2015 Dispute Resolution Statistics, 2016:1 ICC Disp.
Resol. Bull. 9, 12; Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 3
(2d ed. 2005); §1.03.
1461) Parties in the 2020 filings came from 145 countries and independent territories
worldwide. ICC, 2020 Dispute Resolution Statistics 10 (2021). For example, parties to
ICC arbitrations filed in 2012 were nationals of 137 different countries. ICC, 2012
Statistical Report, 24(1) ICC Ct. Bull. 5, 5 (2013).
1462) ICC, 2020 Dispute Resolution Statistics 11 (2021); ICC, ICC Announces 2017 Figures
Confirming Global Reach and Leading Position for Complex, High-Value Disputes
(2018).
1463) The revised ICC Rules became effective as of 1 January 2021 and apply to ICC
arbitration commencing on or following that date, unless the parties agree
otherwise. See also J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC
Arbitration 64 (2012); M. Bühler & T. Webster, Handbook of ICC Arbitration:
Commentary and Materials (5th ed. 2021).
1464) See 2014 ICC Mediation Rules; 2018 ICC Rules of ICC as Appointing Authority in
UNCITRAL or Other Arbitration Proceedings; 2015 ICC Expert Rules; 2015 ICC Dispute
Board Rules; ICC DOCDEX Rules; 1990 ICC Pre-Arbitral Referee Rules.
1465) 2021 ICC Rules, Arts. 4(5), 5(4); 2017 ICC Rules, Arts. 4(5), 5(4); 2012 ICC Rules, Arts.
4(5), 5(4); 1998 ICC Rules, Arts. 4(5), 5(4).
1466) 2021 ICC Rules, Art. 37; 2017 ICC Rules, Art. 37; 2012 ICC Rules, Art. 36; 1998 ICC Rules,
Art. 30.
190
1467) 2021 ICC Rules, Arts. 11-13; 2017 ICC Rules, Arts. 11-13; 2012 ICC Rules, Arts. 11-13; 1998
ICC Rules, Arts. 7-9.
1468) 2021 ICC Rules, Arts. 12-13; 2017 ICC Rules, Art. 13; 2012 ICC Rules, Art. 13; 1998 ICC
Rules, Art. 9. A new paragraph 9 has been added to Article 12 in the 2021 ICC Rules.
It gives the ICC Court the power to appoint each member of the arbitral tribunal,
notwithstanding any agreement by the parties, to avoid “a significant risk of
unequal treatment and unfairness that may affect the validity of the award.”
Art. 11.
1470) 2021 ICC Rules, Arts. 7, 10; 2017 ICC Rules, Arts. 7, 10; 2012 ICC Rules, Arts. 7, 10. The
2021 ICC Rules have made changes to Articles 7 and 10. In particular, Article 7(5) is a
new addition, which allows an arbitral tribunal to join a consenting additional
party after the constitution of the tribunal without the consent of all the parties.
Art. 18.
Art. 27.
Art. 31.
Art. 31. The Court acts pursuant to internal rules governing its administrative
actions. See Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 1-8, 11-
27 (2d ed. 2005); J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC
Arbitration 17-19 (2012); 2021 ICC Rules, Appendix II (Internal Rules of the
International Court of Arbitration); ICC, Note to Parties and Arbitral Tribunals on the
Conduct of the Arbitration Under the ICC Rules of Arbitration (2021).
1475) See§1.04[C][6][a].
1476) ICC, Filing A Request, available at https://iccwbo.org/dispute-resolution-
services/arbitration/filing-a-request.
1477) ICC, 2020 Dispute Resolution Statistics 4 (2021); ICC, 2019 Dispute Resolution
Statistics (2020); ICC, 2018 Dispute Resolution Statistics, 2019:1 ICC Disp. Resol. Bull.
11, 21. See also ICC, 2017 Dispute Resolution Statistics, 2018:2 ICC Disp. Resol. Bull. 51,
56 (ICC arbitrations were seated in 85 different countries in 2017); ICC, 2016 Dispute
Resolution Statistics, 2017:2 ICC Disp. Resol. Bull. 106, 111 (60 countries); ICC, 2015
Dispute Resolution Statistics, 2016:1 ICC Disp. Resol. Bull. 9, 10 (56 countries); ICC,
2014 Dispute Resolution Statistics, 2015:1 ICC Disp. Resol. Bull. 7, 14 (57 countries);
ICC, 2013 Statistical Report, 25(1) ICC Ct. Bull. 5, 9 (2014) (63 countries); ICC, 2012
Statistical Report, 24(1) ICC Ct. Bull. 5, 5 (2013) (59 countries); ICC, 2011 Statistical
Report, 23(1) ICC Ct. Bull. 5, 13 (2012) (63 countries); ICC, 2010 Statistical Report, 22(1)
ICC Ct. Bull. 5, 13 (2011) (53 countries); ICC, 2009 Statistical Report, 21(1) ICC Ct. Bull.
5, 12-13 (2010) (53 countries); ICC, 2008 Statistical Report, 20(1) ICC Ct. Bull. 5, 11
(2009) (50 countries); ICC, 2007 Statistical Report, 19(1) ICC Ct. Bull. 5, 11 (2008) (42
countries).
1478) See§14.02[B]; ICC, 2020 Dispute Resolution Statistics 16 (2021); ICC, 2019 Dispute
Resolution Statistics 14 (2020); ICC, 2018 Dispute Resolution Statistics, 2019:1 ICC
Disp. Resol. Bull. 11, 21; ICC, 2017 Dispute Resolution Statistics, 2018:2 ICC Disp. Resol.
Bull. 51, 60-61; ICC, 2016 Dispute Resolution Statistics, 2017:2 ICC Disp. Resol. Bull.
106, 111; 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 14 (2012); Jarvin, The Place of
Arbitration: A Review of the ICC Court’s Guiding Principles and Practice When Fixing
the Place of Arbitration, 7(2) ICC Ct. Bull. 54 (1996); Verbist, The Practice of the ICC
International Court of Arbitration with Regard to the Fixing of the Place of
Arbitration, 12 Arb. Int’l 347 (1996).
1479) 2021 ICC Rules, Arts. 11, 13, 14; 2017 ICC Rules, Arts. 11, 13, 14; 2012 ICC Rules, Arts. 11,
13, 14; 1998 ICC Rules, Arts. 7, 9. See J. Fry, S. Greenberg & F. Mazza, The Secretariat’s
Guide to ICC Arbitration 161-67, 170-76 (2012).
1480) See§12.03[E][4]; §12.06[A][1]-§12.06[A][2]; §18.02[D][2]; Bond, The Experience of the
ICC in the Confirmation/Appointment Stage of An Arbitration, in ICC, The Arbitral
Process and the Independence of Arbitrators 9 (1991); Fry & Greenberg, Appendix:
References to the IBA Guidelines on Conflicts of Interest in International Arbitration
When Deciding on Arbitrator Independence in ICC Cases, 20(2) ICC Ct. Bull. 33 (2009);
Fry & Greenberg, The Arbitral Tribunal: Applications of Articles 7-12 of the ICC Rules in
Recent Cases, 20(2) ICC Ct. Bull. 12 (2009); J. Fry, S. Greenberg & F. Mazza, The
Secretariat’s Guide to ICC Arbitration 161-94 (2012); Greenberg & Feris, Appendix:
References to the IBA Guidelines on Conflicts of Interest in International Arbitration
When Deciding on Arbitrator Independence in ICC Cases, 28(2) ICC Ct. Bull. 33 (2009);
Hascher, ICC Practice in Relation to the Appointment, Confirmation, Challenge and
Replacement of Arbitrators, 6(2) ICC Ct. Bull. 4 (1995); ICC, Note to Parties and Arbitral
Tribunals on the Conduct of the Arbitration Under the ICC Rules of Arbitration (2021);
Whitesell, Independence in ICC Arbitration: ICC Court Practice Concerning the
Appointment, Confirmation, Challenge and Replacement of Arbitrators, in ICC,
Independence of Arbitrators 7 (2008).
1481) Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 4, 167-76 (2d ed.
2005); J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration 161-
67 (2012).
191
1482) See§1.04[C][4].
1483) 2021 ICC Rules, Arts. 4-5; 2017 ICC Rules, Arts. 4-5; 2012 ICC Rules, Arts. 4-5; 1998 ICC
Rules, Arts. 4-5.
1484) 2021 ICC Rules, Arts. 11-15; 2017 ICC Rules, Arts. 11-15; 2012 ICC Rules, Arts. 11-15; 1998
ICC Rules, Arts. 7-12.
1485) 2021 ICC Rules, Arts. 16-30; 2017 ICC Rules, Arts. 16-30; 2012 ICC Rules, Arts. 16-29;
1998 ICC Rules, Arts. 13-23.
1486) 2021 ICC Rules, Arts. 31-36; 2017 ICC Rules, Arts. 31-36; 2012 ICC Rules, Arts. 30-35;
1998 ICC Rules, Arts. 24-29.
Art. 24; M. Bühler & T. Webster, Handbook of ICC Arbitration: Commentary and
Materials 375 (5th ed. 2021); J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to
ICC Arbitration 9-10 (2012); Rajah, W(h)ither Institutional Terms of Reference?, 39(2) J.
Int’l Arb. 163 (2022).
1488) Article 24(1) of the 2021 ICC Rules require ICC tribunals to conduct a “case
management conference.” The conference must be convened at the point when the
tribunal is “drawing up the Terms of Reference or as soon as possible thereafter.”
See 2021 ICC Rules, Art. 24; J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to
ICC Arbitration 9 (2012).
1489) 2021 ICC Rules, Art. 31(1); 2017 ICC Rules, Art. 31(1); 2012 ICC Rules, Art. 30(1); 1998 ICC
Rules, Art. 24. This time limit is routinely extended. Y. Derains & E. Schwartz, A
Guide to the ICC Rules of Arbitration 303-05 (2d ed. 2005); J. Fry, S. Greenberg & F.
Mazza, The Secretariat’s Guide to ICC Arbitration 310-12 (2012).
Art. 27; J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration 327-
38 (2012).
1491) 2021 ICC Rules, Appendix III, Arts. 2-3; 2017 ICC Rules, Appendix III, Arts. 2-3; 2012 ICC
Rules, Appendix III, Arts. 2, 4; 1998 ICC Rules, Appendix III, Art. 2; J. Fry, S. Greenberg
& F. Mazza, The Secretariat’s Guide to ICC Arbitration 360-67 (2012).
Art. 30.
1493) 2021 ICC Rules, Art. 37(2); 2017 ICC Rules, Art. 37(2); 2012 ICC Rules, Arts. 36(2), (5);
1998 ICC Rules, Art. 30(3).
1494) See M. Bühler & T. Webster, Handbook of ICC Arbitration: Commentary and Materials
(5th ed. 2021); W. Craig, W. Park & J. Paulsson, International Chamber of Commerce
Arbitration ¶3.05 (3d ed. 2000) (attempting to counter criticisms); Buehler, Costs in
ICC Arbitration: A Practitioner’s View, 3 Am. Rev. Int’l Arb. 116 (1992); Wetter, The
Present Status of the International Court of Arbitration of the ICC: An Appraisal, 1 Am.
Rev. Int’l Arb. 91 (1990).
1495) See Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 5 (2d ed. 2005); J.
Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration xi (2012). For
the 2021 ICC Rules, seehttps://iccwbo.org/media-wall/news-speeches/icc-unveils-
revised-rules-of-arbitration/. Seealso M. Bühler & T. Webster, Handbook of ICC
Arbitration: Commentary and Materials (5th ed. 2021). A 2007 ICC Task Force, which
continued its work in 2011-12 and in 2017-2018, studied ways to reduce costs and
delay in ICC arbitrations. See ICC, Commission Report: Controlling Time and Costs in
Arbitration (2018); ICC, Techniques for Controlling Time and Costs in Arbitration (2d
ed. 2012); ICC, Techniques for Controlling Time and Costs in Arbitration (2007).
See§13.04[D].
1496) 2012 ICC Rules, Arts. 7-10. See§18.02[C][2].
1497) See, e.g., 2012 ICC Rules, Art. 24. See§15.08[M].
1498) 2012 ICC Rules, Art. 29. See§17.02[A][4][b].
1499) 2017 ICC Rules, Art. 30.
1500) 2021 ICC Rules, Arts. 7(5), 10; 11(7), 17, Appendices I and II; ICC, Note to Parties and
Arbitral Tribunals on the Conduct of the Arbitration Under the ICC Rules of
Arbitration, Section IV (2021); M. Bühler & T. Webster, Handbook of ICC Arbitration:
Commentary and Materials (5th ed. 2021).
1501) 2021 ICC Rules, Arts 13(6); 17; Appendices I and II.
1502) 2021 ICC Rules, Art. 26(1). See also Bhushan & Thakur, Nothing Changes if Nothing
Changes: An Introduction to the 2021 ICC Rules of Arbitration, Kluwer Arb. Blog (27
Oct. 2020); M. Bühler & T. Webster, Handbook of ICC Arbitration: Commentary and
Materials (5th ed. 2021); Hosking, Article 12(9) of new ICC Rules: is party autonomy
really being eroded?, Practical Law Arb. Blog (4 Mar. 2021); Leoveanu & Giosan, The
2021 ICC Arbitration Rules: Changes to the Arbitral Tribunal’s Powers, Kluwer Arb.
Blog (4 Jan. 2021). The ICC also issued a revised Note, which entered into force on 1
January 2021.
1503) ICC, Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the
ICC Rules of Arbitration ¶139 (2019).
1504) Id. at ¶¶40-46. The revised Note includes a new section (Section IV) entitled
“Transparency.” Section IV B of the revised Note provides that the Court will
disclose the identity of the law firms representing the parties (from 1 January 2020),
as well as the names of administrative secretaries (from 1 July 2021). Section IV C
expands the scope of materials that may be published by the ICC to cover, inter
alia, “ICC Awards and/or orders, as well as any dissenting and/or concurring
opinions made as of 1 January 2019.”
192
1505) ICC, Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration Under the
ICC Rules of Arbitration (2021).
1506) Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration 8-9 (2d ed. 2005);
Figueres, Amicable Means to Resolve Disputes: How the ICC ADR Rules Work, 21(1) J.
Int’l Arb. 91 (2004). The ICC’s Mediation Rules were effective from 1 January 2014
and replaced the earlier 2001 ICC ADR Rules. Id.
1507) Charrin, The ICC International Centre for Expertise: Realities and Prospects, 6(2) ICC
Ct. Bull. 33, 34 (1995).
1508) The Centre’s Rules were revised in 1993, 2003 and 2015. See Charrin, The ICC
International Centre for Expertise: Realities and Prospects, 6(2) ICC Ct. Bull. 33 (1995);
ICC, The New Rules of the ICC International Centre for Technical Expertise, 4(1) ICC Ct.
Bull. 53 (1993); Wolrich, ICC Expertise: The New, Revised ICC Rules for Expertise – A
Presentation and Commentary, 13(2) ICC Ct. Bull. 11 (2002). See also 2015 ICC Expert
Rules.
1509) In particular, Article 8 of the Centre’s Rules provides that “[t]he findings of the
expert shall not be binding on the parties, unless all of the parties expressly agree
in writing that such findings shall be contractually binding upon them.” See 2015
ICC Rules for the Administration of Expert Proceedings, Art. 8(2).
1510) The Centre received 25 requests in 2021, 22 requests in 2020, 16 requests in 2019,
and 24 requests in 2018. ICC, ICC Unveils Preliminary Dispute Resolution Figures for
2021 (26 Jan. 2022), available at https://www.iccwbo.be/icc-unveils-preliminary-
dispute-resolution-figures-for-2021/; ICC, 2020 Dispute Resolution Statistics 22
(2021); ICC, 2019 Dispute Resolution Statistics 19 (2020); ICC, 2018 Dispute Resolution
Statistics, 2019:1 ICC Disp. Resol. Bull. 11, 27. See also ICC, 2017 Dispute Resolution
Statistics, 2018:2 ICC Disp. Resol. Bull. 51, 64 (19 requests in 2018); ICC, 2016 Dispute
Resolution Statistics, 2017:2 ICC Disp. Resol. Bull. 106, 115 (27 requests); ICC, 2015
Dispute Resolution Statistics, 2016:1 ICC Disp. Resol. Bull. 9, 17 (28 requests); ICC,
2014 Dispute Resolution Statistics, 2015:1 ICC Disp. Resol. Bull. 7, 15 (19 requests); ICC,
2013 Statistical Report, 25(1) ICC Ct. Bull. 5, 16 (2014) (27 requests); ICC, 2012
Statistical Report, 24(1) ICC Ct. Bull. 5, 17 (2013) (19 requests); ICC, 2011 Statistical
Report, 23(1) ICC Ct. Bull. 5, 17 (2012) (35 requests); ICC, 2010 Statistical Report, 22(1)
ICC Ct. Bull. 5, 16 (2011) (29 requests); ICC, 2009 Statistical Report, 21(1) ICC Ct. Bull. 5,
16 (2010) (15 requests); ICC, 2008 Statistical Report, 20(1) ICC Ct. Bull. 5, 15 (2009) (10
requests); ICC, 2007 Statistical Report, 19(1) ICC Ct. Bull. 5, 15 (2008) (14 requests);
ICC, 2006 Statistical Report, 18(1) ICC Ct. Bull. 5, 14 (2007) (10 requests); ICC, 2005
Statistical Report, 17(1) ICC Ct. Bull. 5, 14 (2006) (11 requests).
1511) For commentary on the LCIA, see Beale, London Court of International Arbitration
(LCIA), in P. Gola, C. Götz Staehelin & K. Graf (eds.), Institutional Arbitration: Tasks
and Powers of Different Arbitration Institutions 141 (2009); Nesbitt & Darowski,
London Court of International Arbitration (LCIA) Arbitration Rules, 2014, in L. Mistelis
(ed.), Concise International Arbitration 469 (2d ed. 2015); M. Scherer, L. Richman & R.
Gerbay, Arbitrating Under the 2020 LCIA Rules: A User’s Guide (2021); P. Turner, A
Guide to the LCIA Arbitration Rules(2d ed. 2018); S. Wade, P. Clifford & J. Clanchy, A
Commentary on the LCIA Arbitration Rules 2014 (2015).
1512) The LCIA model arbitration clause provides:“Any dispute arising out of or in
connection with this contract, including any question regarding its existence,
validity or termination, shall be referred to and finally resolved by arbitration
under the LCIA Rules, which Rules are deemed to be incorporated by reference
into this clause.”“The number of arbitrators shall be [one/three]. The seat, or legal
place, of arbitration shall be [City and/or Country]. The language to be used in the
arbitral proceedings shall be _______. The governing law of the contract shall be
the substantive law of _______.”
1513) The LCIA reports that 444 cases were referred to in 2020, 395 in 2019, 317 in 2018,
285 in 2017, 303 in 2016, 326 in 2015, 296 in 2014, 290 in 2013, 265 in 2012, 224 in 2011,
246 in 2010, 272 in 2009, 215 in 2008, 137 in 2007, 133 in 2006 and 118 in 2005. See
LCIA, 2020 Annual Casework Report (2021); LCIA, 2019 Annual Casework Report (2020);
LCIA, 2018 Annual Casework Report (2019); LCIA, Facts and Figures: 2017 Casework
Report (2018); LCIA, Facts and Figures: 2016 – A Robust Caseload (2016); LCIA,
Registrar’s Reports (2012-15); LCIA, Director General’s Reports (2005-11).
1514) LCIA, Facts and Figures: 2016 – A Robust Caseload (2016). See LCIA, 2019 Annual
Casework Report (2020); LCIA, 2020 Annual Casework Report 14 (2021) (“In 2020,
86.6% of parties in arbitrations administered pursuant to the LCIA Rules were from
countries other than the United Kingdom, an increase from 81.4% in 2019”).
1515) In April 2010, LCIA India adopted rules based on the LCIA’s Rules, with
modifications in light of the Indian Arbitration and Conciliation Act, 1996. See 2010
LCIA India Rules. See also Nariman, Ten Steps to Salvage Arbitration in India: The
First LCIA-India Arbitration Lecture, 27 Arb. Int’l 115 (2011); Zaiwalla, LCIA India: Will It
Change the International Arbitration Scene in India?, 27 J. Int’l Arb. 657 (2010).
1516) LCIA India, LCIA Adopts A Changed Approach to Indian Arbitration Market (2016).
1517) LCIA-MIAC Arbitration Centre, available at http://www.lcia-miac.org. The LCIA-MIAC
agreement was terminated in 2018.
193
1518) DIFC-LCIA Arbitration Centre, available at http://www.difc-lcia.org. Dubai
abolished the DIFC-LCIA Arbitration Centre by Decree No. 34 of 2021, effective as of
20 September 2021. On 29 March 2022, DIAC and LCIA issued a press release, stating
that “the LCIA will administer all existing DIFC-LCIA cases (i.e., those commenced
and registered by the DIFC-LCIA under a designated case number on or before 20
March 2022) from London”). The press release is available at
https://www.lcia.org/News/update-difc-lcia.aspx.
1519) See§1.04[C][6][b].
1520) LCIA, Schedule of Arbitration Costs (2020).
1521) 2020 LCIA Rules, Arts. 14-15, 19, 22; 2014 LCIA Rules, Arts. 14-15, 19, 22.
1522) 2020 LCIA Rules Arts. 22.1(iv), (v); 2014 LCIA Rules, Arts. 22.1(iv), (v).
1523) 2020 LCIA Rules Art. 25(2); 2014 LCIA Rules, Art. 25(2).
1524) 2020 LCIA Rules, Art. 9A; 2014 LCIA Rules, Art. 9A.
1525) 2020 LCIA Rules, Art. 22(1)(x); 2014 LCIA Rules, Art. 22(1)(x). See§18.02[C][4].
1526) See LCIA, Arbitration, available at www.lcia.org (“The criteria are entered into the
LCIA’s database of arbitrators, from which an initial list is drawn. … If necessary,
other institutions are consulted for further recommendations”); 2020 LCIA Rules,
Art. 5.
1527) 2020 LCIA Rules, Art. 28(1); 2014 LCIA Rules, Art. 28(1).
1528) See Walsh & Teitelbaum, The LCIA Court Decisions on Challenges to Arbitrators: An
Introduction, 27 Arb. Int’l 283 (2011). See also LCIA, Challenge Decision Database,
available at www.lcia.org; LCIA, LCIA Releases Challenge Decisions Online (12 Feb.
2018); Nicholas & Partasides, LCIA Court Decisions on Challenges to Arbitrators: A
Proposal to Publish, 23 Arb. Int’l 1 (2007); Perry, LCIA Publishes Arbitrator Challenge
Decisions, Global Arb. Rev. (12 Feb. 2018); §12.05[K].
1529) 2020 LCIA Rules, Art. 16(2).
1530) For commentary on the AAA, see Fellas, American Arbitration Association (AAA)
International Centre for Dispute Resolution (ICDR) International Arbitration Rules,
2009, in L. Mistelis (ed.), Concise International Arbitration 467 (2010); M. Gusy & J.
Hosking, A Guide to the ICDR International Arbitration Rules (2d ed. 2019); Hoellering,
How the AAA International Arbitration Program Works, in T. Carbonneau (ed.),
Handbook on International Arbitration and ADR 103 (2006); Traband, American
Arbitration Association (AAA), in P. Gola, C. Götz Staehelin & K. Graf (eds.),
Institutional Arbitration (2009). Information about the AAA is available at
www.adr.org.
1531) I. Macneil, American Arbitration Law: Reformation, Nationalization,
Internationalization 38-41 (1992).
1532) Deye & Britton, Arbitration by the American Arbitration Association, 70 N.D. L. Rev.
281, 281 n.1 (1994).
1533) The AAA administered 9,196 commercial arbitrations in 2021, 9,538 in 2020 and 9,737
in 2019. See AAA-ICDR, 2021 B2B Dispute Resolution Infographic (2022); AAA-ICDR,
2020 B2B Dispute Resolution Infographic (2021); AAA, AAA-ICDR’s Annual B2B
Caseload Continues to Increase (2020).The AAA reports that it has administered
some 5.6 million alternative dispute resolution (ADR) cases since its foundation.
See AAA, American Arbitration Association Launches Updated Commercial Rules, AAA
News Report (9 Sept. 2013); AAA, AAA-ICDR Launches Online Caseload Tracker,
Strengthening Transparency & Breaking New Ground in ADR Industry (25 Mar. 2019).
1534) See AAA, Rules, Forms & Fees, available at adr.org/Rules.
1535) A model AAA arbitration clause, selecting the AAA’s Commercial Arbitration Rules,
provides:“Any controversy or claim arising out of or relating to this contract, or the
breach thereof, shall be settled by arbitration administered by the American
Arbitration Association in accordance with its Commercial [or other] Arbitration
Rules, and judgment on the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof.”
1536) For example, these include specialized rules for construction, energy, health care,
insurance, securities, labor and intellectual property disputes. See AAA, Rules
Forms & Fees, available at adr.org/Rules.
1537) The AAA’s International Rules were preceded by a set of “Supplementary
Procedures for International Commercial Arbitration,” adopted in 1982. The AAA
Supplementary Procedures continue to be used in international cases in which the
parties have selected rules other than the AAA International Rules. The
Supplementary Procedures (as amended in 1999) provide:“Recognizing that
international arbitration cases often present unique procedural problems, the AAA
has created the following supplementary procedures to facilitate such cases when
rules other than the International Arbitration Rules govern the proceedings. Unless
the parties advise otherwise by the due date for the return of the first list, the AAA
will assume that they are desired.”
1538) See 2021 ICDR International Dispute Resolution Procedures, Introduction. The ICDR
provides model clauses for selecting the International Arbitration Rules in the ICDR
International Dispute Resolution Procedures:“Any controversy or claim arising out
of or relating to this contract, or the breach thereof, shall be determined by
arbitration administered by the International Centre for Dispute Resolution in
accordance with its International Arbitration Rules.”
194
1539) Id. at Art. 1(1). “International” disputes were not expressly defined in the 2014 ICDR
Rules. The 2021 ICDR Rules have incorporated the UNCITRAL Model Law’s definition
of an international arbitration to determine whether a case is international.
Accordingly, “[a]n arbitration may be deemed international and administered by
the ICDR if the parties to an arbitration agreement have: their places of business in
different countries; the place where a substantial part of the obligations of their
commercial relationship to be performed is situated outside the country of any
party; the place with which the subject-matter of the dispute is most closely
connected is situated outside the country of any party; the place of arbitration is
situated outside the country of any party; or one party with more than one place of
business (including parent and/or subsidiary) is situated outside the country of
any party.” See 2021 ICDR International Dispute Resolution Procedures,
Introduction.
1540) If the parties have agreed to a set of AAA rules other than the ICDR International
Arbitration Rules (e.g., AAA Commercial Arbitration Rules) those rules will apply,
including to an international dispute. To deal with the unique issues presented by
international arbitrations, the AAA developed the “International Commercial
Arbitration Supplementary Procedures,” which are intended to deal with some of
the problems that may arise in managing an international case under domestic
arbitration rules.
1541) The 2006 revisions added Article 37 to the ICDR Rules (currently Article 7 of the 2021
ICDR Rules), which entitles parties to appoint an “emergency arbitrator” to hear
requests for emergency relief prior to the formation of the entire arbitral tribunal.
In 2010, a Flexible Fee Schedule was introduced, permitting lower initial filing fees.
The ICDR’s recent fee schedule was amended and effective on 1 October 2017.
Among other changes, the 2021 revisions added a definition of “international”
disputes to the introduction, introduced a new provision in Article 23 concerning
early disposition of issues, amended Article 8 and Article 9 to extend the scope for
joinder and consolidation, raised the ceiling for expedited procedures,
empowered tribunals to require disclosure of third party funding under Article
14(7), added an express requirement for arbitrators to comply with the Code of
Ethics for Arbitrators in Commercial Disputes, and addresses remote hearing
procedures in Article 22 and Article 26. See AAA, Rules, Forms and Fees, available at
www.adr.org. See§17.02[A][6].
1542) Unusually, the ICDR Rules also provide for a waiver of punitive damage claims
(unless otherwise agreed). 2021 ICDR Rules, Art. 34(5); 2014 ICDR Rules, Art. 31(5).
1543) 2021 ICDR Rules, Art. 38. Article 38 provides that “[a]s soon as practicable after the
commencement of the arbitration, the Administrator shall designate an
appropriate daily or hourly rate of compensation in consultation with the parties
and all arbitrators, taking into account the arbitrators’ stated rate of
compensation and the size and complexity of the case” and “[a]ny dispute
regarding the fees and expenses of the arbitrators shall be determined by the
Administrator.”
1544) Id. at Art. 13(1). See§12.03[D].
1545) See 2021 ICDR Rules, Art. 13; 2014 ICDR Rules, Art. 12. See also 2013 AAA Rules, Rules
3, 12 (providing, where AAA’s Commercial Arbitration Rules apply, specific
procedures for appointments from AAA’s National Roster).
1546) The ICDR maintains an International Panel of Arbitrators.
1547) AAA, 2018 Annual Report & Financial Statements 11 (2019); AAA, 2012 Annual Report,
President’s Letter and Financial Statements 7 (2013); AAA, 2000 Annual Report,
President’s Letter and Financial Statements 8 (2000). See also Park, A Comparative
Analysis of Arbitral Institutions and Their Achievements in the United States and
Korea, 15 Am. Rev. Int’l Arb. 475, 483 (2004) (tabulating international case filings in
AAA). Moreover, AAA/ICDR administered 9,196 cases in 2021, 9,538 in 2020 and 9,737
in 2019. See AAA-ICDR, 2021 B2B Dispute Resolution Infographic (2022); AAA-ICDR,
2020 B2B Dispute Resolution Infographic (2021); AAA-1CDR, 2019 B2B Dispute
Resolution Infographic (2020).
1548) For commentary on the SIAC Rules, see J. Choong et al., A Guide to the SIAC
Arbitration Rules (2d ed. 2018); S. Menon & D. Brock (eds.), Arbitration in Singapore: A
Practical Guide (2014).
1549) SIAC, 2017 Annual Report 15 (2018).
Arbitration to A Changing World 2, 9-10 (2021).
1552) For an analysis of the significant rise in filings in 2020, see Azkiya, The 2020 SIAC
Annual Report: Trends & Questions, Practical Law Arb. Blog (28 May 2021).
1553) SIAC, 2021 Annual Report 4 (2022); SIAC, 2020 Annual Report 4 (2021); SIAC, 2018
Annual Report 14 (2019); SIAC, 2017 Annual Report 13 (2018).
1554) SIAC, 2021 Annual Report 20-21 (2022).
195
1555) The 2010, 2013 and 2016 revisions included the addition of “expedited procedure”
and “emergency arbitrator” procedure. See 2016 SIAC Rules, Rule 5 (Expedited
Procedure), Rule 30 (Interim and Emergency Interim Relief), Schedule 1 (Emergency
Arbitrator). The model clause for arbitration under the SIAC Rules provides:“Any
dispute arising out of or in connection with this contract, including any question
regarding its existence, validity or termination, shall be referred to and finally
resolved by arbitration administered by the Singapore International Arbitration
Centre (‘SIAC’) in Singapore in accordance with the Arbitration Rules of the
Singapore International Arbitration Centre (‘SIAC Rules’) for the time being in force,
which rules are deemed to be incorporated by reference in this clause.”
1556) 2016 SIAC Rules, Art. 5.
1557) Id. at Art. 29.
1558) Id. at Art. 30, Schedule 1.
1559) Id. at Arts. 7-8.
1560) Flannery et al., Arbitration Costs Compared, Global Arb. Rev. (2 Jan. 2019).
1561) See§21.01[D].
1562) 2016 SIAC Rules, Arts. 9-12.
1563) SIAC, 2018 Annual Report 18-19 (2019); SIAC, 2015 Annual Report 16-17 (2016).
1566) For commentary, see Bederman, The Hague Peace Conferences of 1899 and 1907, in
M. Janis (ed.), International Courts for the Twenty-First Century 9 (1992); Best, Peace
Conferences and the Century of Total War: The 1899 Hague Conference and What
Came After, 75(3) Int’l Affairs 619 (1999); B.W. Daly, E. Goriatcheva & H. Meighen, A
Guide to the PCA Arbitration Rules (2016); Daly, New Procedural Rules for the
Permanent Court of Arbitration, 17 IBA Arb. News 92 (2012); Daly, Permanent Court of
Arbitration, in C. Giorgetti (ed.), International Litigation in Practice: The Rules,
Practice and Jurisprudence of International Courts and Tribunals 37 (2012); Grimmer,
The Expanded Role of the Appointing Authority Under the UNCITRAL Arbitration Rules
2010, 28 J. Int’l Arb. 501 (2011); Hudson, The Permanent Court of Arbitration, 27 Am. J.
Int’l L. 440 (1933); Le Cannu & Drabkin, Assessing the Role of the Permanent Court of
Arbitration in the Peaceful Settlement of International Disputes, 27 L’Observateur
des Nations Unies 181 (2009); Moore, The Organization of the Permanent Court of
International Justice, 22 Colum. L. Rev. 497 (1922); S. Rosenne (ed.), The Hague Peace
Conference of 1899 and 1907 and International Arbitration: Reports and Documents
(2001).
1567) See§1.01[A][4]; 1899 Hague Convention; 1907 Hague Convention.
1568) See§1.01[A][4]. It is also sometimes claimed, less accurately, that the PCA was
neither “permanent” nor engaged in “arbitration.” Hudson, The Permanent Court of
International Justice: An Indispensable First Step, 108 Am. Acad. Pol. & Soc. Sci.,
Annals 188, 189 (1923) (“It may well be said of the Permanent Court of Arbitration
that it is not permanent, not a court, and is not an adequate tribunal for
arbitration”). In fact, the PCA was intended to be (and certainly now is) permanent
and it is engaged, at least adequately and, in most observers’ eyes, much better, in
arbitration.
1569) Daly, Permanent Court of Arbitration, in C. Giorgetti (ed.), International Litigation in
Practice: The Rules, Practice and Jurisprudence of International Courts and Tribunals
39 (2012) (quoting Louis Renault, a leading participant at 1899 and 1907 Hague
Conferences).
1570) 1899 Hague Convention, Arts. 22-25.
1571) 1907 Hague Convention, Arts. 48, 53.
1572) Id. at Art. 63.
1573) Levine, Navigating the Parallel Universe of Investor-State Disputes Under the
UNCITRAL Rules, in C. Brown & K. Miles (eds.), Evolution in Investment Treaty
Arbitration 369, 386 (2011).
1574) As of May 2022, there were 122 PCA Contracting States. See PCA, Contracting Parties,
available at www.pca-cpa.org/en/about/introduction/contracting-parties.
1575) In 2019, the International Bureau was comprised of some 96 people, including
speakers of the six official languages of the United Nations. PCA, 2019 Annual
Report 46-7 (2020); PCA, 2021 Annual Report 44-45 (2022).
1576) See§1.01[A][4].
1577) A. Stuyt, Survey of International Arbitrations 1794-1989 233-450 (3d ed. 1990). See
also Gray & Kingsbury, Interstate Arbitration Since 1945: Overview and Evaluation, in
M. Janis (ed.), International Courts for the Twenty-First Century 56-57 (1992).
40 (2012). The PCA administered its first arbitration with a non-state party in 1934.
See Radio Corp. of Am. v. China, Award of the Tribunal of 13 April 1935, III U.N. Rep.
Int’l Arb. Awards 1621-36 (2006).
40-41 (2012).
196
1580) SeeSee PCA, 2021 Annual Report 14 (2022);PCA, 2020 Annual Report 14, 18 (2021); PCA,
2019 Annual Report 9 (2020); PCA, 2000 Annual Report 21-24 (2000); Shifman, The
Permanent Court of Arbitration: An Overview, in P. van Krieken & D. McKay (eds.), The
Hague: Legal Capital of the World 128, 141-44 (2005).
1581) Born, A New Generation of International Adjudication, 61 Duke L.J. 775, 798 (2012); Le
Cannu & Drabkin, Assessing the Role of the Permanent Court of Arbitration in the
Peaceful Settlement of International Disputes, 27 L’Observateur des Nations Unies
181, 194 (2009); PCA, 2019 Annual Report 10 (2020). As of March 2020, pending PCA
cases include 109 investment arbitrations, three inter-state arbitrations, 49
arbitrations cases under contracts involving a state or other public entity. See PCA,
Cases, available at www.pca-cpa.org/en/cases/.
1582) PCA, 2021 Annual Report 10 (2022); PCA, 2020 Annual Report 10 (2021); PCA, 2019
Annual Report 10 (2020).
1583) See A. Eyffinger, The Peace Palace: Residence for Justice, Domicile of Learning 129-44
(1988); A. Lysen, History of the Carnegie Foundation and the Peace Palace at The
Hague 37-38 (1934).
41 (2012). See§1.04[C][6][e]; Grimmer, The Expanded Role of the Appointing Authority
Under the UNCITRAL Arbitration Rules 2010, 28 J. Int’l Arb. 501 (2011); Levine,
Navigating the Parallel Universe of Investor-State Disputes Under the UNCITRAL
Rules, in C. Brown & K. Miles (eds.), Evolution in Investment Treaty Arbitration 369,
370-71, 383-85 (2011).Although their use has been limited, the PCA’s 1990 Rules have
been adopted wholly or adapted for use in a number of complex and politically-
sensitive arbitrations, including the Abyei Arbitration between the Government of
Sudan and the Sudan People’s Liberation Movement/Army and arbitrations before
the Eritrea-Ethiopia Claims Commission. See Daly, New Procedural Rules for the
Permanent Court of Arbitration, 17 IBA Arb. News 92, 92 (2012). The awards in these
arbitrations are available at www.pca-cpa.org.
1585) 2001 PCA Optional Rules for Arbitration of Disputes Relating to the Environment
and/or Natural Resources.
1586) Id. at Art. 8(3).
1587) Rivkin & Amirfar, Climate Disputes and Sustainable Development in the Energy
Sector: Future Directives, in M. Scherer (ed.), International Arbitration in the Energy
Sector 402, 409 (2018).
1588) Levine, Climate Change Disputes: The PCA, The Paris Agreement and Prospects for
Future Arbitrations, 1 Transnat’l Disp. Mgt 1, 2-3 (2017). See also Bruce, The Project for
An International Environment Court, in C. Tomuschat, R.P. Mazzeschi & D. Thürer
(eds.), Conciliation in International Law 133 (2016).
1589) The 2012 Rules became effective on 17 December 2012. See B.W. Daly, E.
Goriatcheva & H. Meighen, A Guide to the PCA Arbitration Rules (2016).
1590) Daly, New Procedural Rules for the Permanent Court of Arbitration, 17 IBA Arb. News
92, 92-93 (2012).
1591) B.W. Daly, E. Goriatcheva & H. Meighen, A Guide to the PCA Arbitration Rules (2016).
1592) 2012 PCA Rules, Art. 1(2).
1593) Id. at Arts. 7, 9(1).
1594) Id. at Art. 10(4).
1595) Id. at Art. 17(5).
1596) Id. at Art. 27(3).
1597) Id. at Art. 1, Annex.
1598) Id. at Art. 35.
1599) Id. at Art. 41.
1600) Id. at Art. 43(1).
1602) Id. at Art. 6. See§12.03[D][2].
1603) See, e.g., Abaclat v. Argentina, Recommendation on the Respondent’s Proposal for
the Disqualification of Arbitrators Pursuant to the Request by ICSID Dated November
18, 2011 in PCA Case No. IR 2011/1 of 19 December 2011; Mauritius v. U.K., Reasoned
Decision on Challenge in PCA Case No. 2011-03 of 30 November 2011; ICS Inspection &
Control Servs. Ltd (U.K.) v. Argentina, Decision on Challenge to Arbitrator in PCA Case
No. 2010-9 of 17 December 2009; Perenco Ecuador Ltd v. Ecuador, Decision on
Challenge to Arbitrator in PCA Case No. IR-2009/1 of 8 December 2009.
1604) See§12.05[E].
197
1605) For commentary on the Swiss Rules of International Arbitration, see Blessing,
Comparison of the Swiss Rules with the UNCITRAL Arbitration Rules and Others, in
ASA, The Swiss Rules of International Arbitration: ASA Swiss Arbitration Association
Conference on 23 January 2004 in Zurich 17 (2004); Burger, The New Swiss Rules of
International Arbitration: A Comparative Analysis, 19(6) Mealey’s Int’l Arb. Rep. 21
(2004); Frey & Ahrens, New Arbitration Rules Reflect Modern Trends, 23 IFLR 58
(2004); R. Füeg (ed.), The Swiss Rules of International Arbitration: Five Years of
Experience (2009); Habegger, The Revised Swiss Rules of International Arbitration: An
Overview of the Major Changes, 30 ASA Bull. 269 (2012); Landolt, The Character of
International Arbitration Under the Swiss Rules, 27 Mealey’s Int’l Arb. Rep. 32 (2012);
Oetiker & Burkhalter, Swiss Chambers’ Court of Arbitration and Mediation (SCCAM), in
P. Gola, C. Götz Staehelin & K. Graf (eds.), Institutional Arbitration: Tasks and Powers
of Different Arbitration Institutions 233 (2009); N. Voser (ed.), 10 Years of Swiss Rules
of International Arbitration (2014); T. Zuberbühler, C. Müller & P. Habegger (eds.),
Swiss Rules of International Arbitration: Commentary (2d ed. 2013).
1606) These included institutions in Basel, Bern, Geneva, Lausanne, Lugano and Zurich.
See 2004 Swiss Rules, Introduction (b).
1607) These Rules can be found at www.swissarbitration.org. See also Habegger, The
Revised Swiss Rules of International Arbitration: An Overview of the Major Changes,
30 ASA Bull. 269 (2012); T. Zuberbühler, C. Müller & P. Habegger (eds.), Swiss Rules of
International Arbitration: Commentary (2d ed. 2013). The standard Swiss Rules
arbitration clause provides:“Any dispute, controversy or claim arising out of, or in
relation to, this contract, including the validity, invalidity, breach or termination
thereof, shall be resolved by arbitration in accordance with the Swiss Rules of
International Arbitration of the Swiss Chambers’ Arbitration Institution in force on
the date on which the Notice of Arbitration is submitted in accordance with these
Rules.”
1608) The Introduction (b) to the 2012 Swiss Rules describes the Institution as follows:“For
the purpose of providing arbitration services, the Chambers founded the Swiss
Chambers’ Arbitration Institution. In order to administer arbitrations under the
Swiss Rules, the Swiss Chambers’ Arbitration Institution has established the
Arbitration Court (hereinafter the ‘Court’), which is comprised of experienced
international arbitration practitioners. The Court shall render decisions as
provided for under these Rules. It may delegate to one or more members or
committees the power to take certain decisions pursuant to its Internal Rules. The
Court is assisted in its work by the Secretariat of the Court …”The 2012 revised Swiss
Rules applied to all proceedings under the Swiss Rules in which the request for
arbitration is submitted after 1 June 2012, unless the parties agree otherwise.
1609) See Nessi, A Swiss “(R)Evolution": SCAI Becomes the Swiss Arbitration Centre and
Enacts New Arbitration Rules, Kluwer Arb. Blog (15 June 2021). The introduction of
the revised 2021 Swiss Rules states that “[i]n 2021, the Chambers of Commerce
strengthened and formalised their cooperation with ASA for the further
development of SCAI. SCAI was converted into a Swiss company and renamed Swiss
Arbitration Centre Ltd. (the ‘Swiss Arbitration Centre’).” The introduction further
explains that “[a]rbitration agreements referring to SCAI or the Chambers of
Commerce remain valid and binding and will be recognized and applied by the
Swiss Arbitration Centre, as legal successor of SCAI.” Thus, arbitration clauses
referring to Swiss Chambers’ Arbitration Institution remain valid and binding, and
will be recognized by the Swiss Arbitration Centre, despite the institutional
reorganization.
1610) Sanderson, ASA teams up with Swiss Chambers, Gloabl Arb. Rev. (18 Sept. 2020),
available at https://globalarbitrationreview.com/asa-teams-swiss-chambers; GAR,
GAR Awards 2021 – Best innovation, Global Arb. Rev. (6 May 2021), available at
https://globalarbitrationreview.com/gar-awards-2021-best-innovation.
1611) The 2021 Swiss Rules are available in English, French, German and Italian, at
https://www.swissarbitration.org/resources/swiss-rules-2021/. The 2021 Swiss Rules
are effective as of 1 June 2021 and apply to arbitration proceedings commenced on
or after that date. See von Segesser & Petti, The Changing Legal Landscape of
Arbitration in Switzerland, Global Arb. Rev. (17 Nov. 2021); Nessi, A Swiss
“(R)Evolution": SCAI Becomes the Swiss Arbitration Centre and Enacts New
Arbitration Rules, Kluwer Arb. Blog (15 June 2021).
1612) 2021 Swiss Rules, Arts. 3(1), 4(1), 12, 16(3)-(4), 19(2), 27(2). New Swiss Arbitration
Centre and Revised Swiss Rules, dated 19 May 2021, available at
https://www.swissarbitration.org/new-swiss-arbitration-centre-and-revised-swiss-
rules/.
1613) Nessi, A Swiss “(R)Evolution”: SCAI Becomes the Swiss Arbitration Centre and Enacts
New Arbitration Rules, Kluwer Arb. Blog (15 June 2021); von Segesser & Petti, The
Changing Legal Landscape of Arbitration in Switzerland Global Arb. Rev. (17 Nov.
2021).
1614) See §1.06[V]. The new platform is hosted at www.swissarbitration.org. See Swiss
Arbitration Centre, ASA Launches New Swiss Arbitration Platform (1 June 2021),
available at https://www.swissarbitration.org/asa-launches-new-swiss-arbitration-
platform/.
1615) See§1.04[B][1][c].
1616) 2021 Swiss Rules, Art. 23; 2012 Swiss Rules, Art. 21.
198
1619) 2021 Swiss Rules, Arts. 29 (“Interim Measures”), 43 (“Emergency Relief”); 2012 Swiss
Rules, Arts. 26 (“Interim Measures of Protection”), 43 (“Emergency Relief”). On
emergency relief, see SCAI, Report on Emergency Relief under the Swiss Rules (Art.
43) An Overview After 8 Years of Practice (2020).
1621) 2021 Swiss Rules, Arts. 6-7, 2012 Swiss Rules, Art. 4.
1622) Swiss Chambers’ Arbitration Institution, Arbitration Statistics 2020, available at
https://www.swissarbitration.org/wp-content/uploads/2021/10/SCAI-Stat-
2020_for-publication-on-websit....
1623) Swiss Arbitration Centre, Update from the Swiss Arbitration Centre (26 Apr. 2022),
available at https://www.swissarbitration.org/update-from-the-swiss-arbitration-
centre-2/.
1624) Swiss Chambers’ Arbitration Institution, Arbitration Statistics 2020, available at
https://www.swissarbitration.org/wp-content/uploads/2021/10/SCAI-Stat-
2020_for-publication-on-websit....
1625) Swiss Arbitration Centre, Update from the Swiss Arbitration Centre (26 Apr. 2022),
available at https://www.swissarbitration.org/update-from-the-swiss-arbitration-
centre-2/.
1626) For commentary on the VIAC Rules, see F. Schwarz & C. Konrad, The Vienna Rules: A
Commentary on International Arbitration in Austria (2009); Stippl, International
Arbitral Centre of the Austrian Federal Economic Chamber (VIAC), in P. Gola, C. Götz
Staehelin & K. Graf (eds.), Institutional Arbitration: Tasks and Powers of Different
Arbitration Institutions 273 (2009). See also VIAC,Handbook VIAC Rules of Arbitration
and Mediation: A Practitioner’s Guide(2d ed. 2019); VIAC, Handbook Vienna Rules: A
Practitioner’s Guide (Vienna Rules 2013) (2014).
1627) The VIAC model arbitration clause provides:“All disputes or claims arising out of
this contract, including disputes relating to its validity, breach, termination or
nullity, shall be finally settled under the Rules of Arbitration (Vienna Rules) of the
Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic
Chamber by one or three arbitrators appointed in accordance with the said Rules.”
1628) Article 25(1) of the VIAC Rules provides “The parties are free to agree on the place
of arbitration. Absent party agreement, the place of arbitration shall be Vienna.”
1629) In 2021, 72 out of 96 parties were non-Austrian. VIAC, Statistics 2021 (2022).
1630) VIAC, Statistics 2021 (2022); VIAC, Statistics 2020 (2021); VIAC, Statistics 2019 (2020).
1631) The 2006 version of the Rules was adopted by the Austrian Federal Economic
Chamber on 3 May 2006, with effect from 1 July 2006. See F. Schwarz & C. Konrad,
The Vienna Rules: A Commentary on International Arbitration in Austria ¶1-004
(2009).
1632) The Austrian ZPO was revised in 2006 based on the UNCITRAL Model Law. Austrian
ZPO, §§517-618; B. Kloiber et al., Das Neue Schiedsrecht: Schiedsrechts-
Änderungsgesetz 2006 3 (2006); C. Liebscher, The Austrian Arbitration Act 2006: Text
and Notes (2006); J. Power, The Austrian Arbitration Act: A Practitioner’s Guide to
Sections 577-618 of the Austrian Code of Civil Procedure (2006); W. Rechberger (ed.),
Kommentar zur ZPO 1794-95 (3d ed. 2006); A. Reiner, Das Neue Österreichische
Schiedsrecht: SchiedsRÄG 2006, The New Austrian Arbitration Law: Arbitration Act
2006 (2006); S. Riegler et al. (eds.), Arbitration Law of Austria: Practice and Procedure
(2007); G. Zeiler, Schiedsverfahren §§577-618 ZPO idF des SchiedsRÄG 2006 (2006).
1633) For an overview of the changes introduced by the 2018 version of the Rules, see
VIAC, Vienna Rules 2018 (2018); VIAC, New Vienna Rules 2013 (2013), available at
www.viac.eu. The new version of the Rules was adopted on 29 November 2017, with
effect from 1 January 2018.
1634) Kathan-Spath & Fremuth-Wolf, VIAC Rules Revision 2021 Part I: Revised Vienna
Rules Enter into Force on 1 July 2021, Kluwer Arb. Blog (1 July 2021); Korom, VIAC
Rules Revision 2021 Part II: The New VIAC Rules of Investment Arbitration and
Mediation, Kluwer Arb. Blog (28 July 2021).
1635) Kathan-Spath & Fremuth-Wolf, VIAC Rules Revision 2021 Part I: Revised Vienna
Rules Enter into Force on 1 July 2021, Kluwer Arb. Blog (1 July 2021).
1636) For commentary on the SCC Rules, see U. Franke et al., International Arbitration in
Sweden: A Practitioner’s Guide (2013); F. Madsen, Commercial Arbitration in Sweden:
A Commentary on the Arbitration Act (1999:116) and the Arbitration Rules of the
Arbitration Institute of the Stockholm Chamber of Commerce (4th ed. 2016).
1637) See U. Franke et al., International Arbitration in Sweden: A Practitioner’s Guide3-4
(2013); Moser, Ulf Franke, Stockholm Arbitration, and the Bridge to China, in K. Hobér
et al. (eds.), Between East and West: Essays in Honour of Ulf Franke 346 (2010).
1638) See Ross, The SCC and Ulf Franke: The Sino-Swedish Connection, Global Arb. Rev. (27
Apr. 2010).
1639) See U. Franke et al., International Arbitration in Sweden: A Practitioner’s Guide 4
(2013); J. Ragnwaldh et al., A Guide to the SCC Arbitration Rules203 (2019).
1640) SCC, SCC Statistics 2021, available at www.sccinstitute.com.
199
1641) The Emergency Arbitrator rules allow parties to seek interim relief prior to the
commencement of arbitral proceedings and/or the constitution of a tribunal. See
2017 SCC Rules, Appendix II: Emergency Arbitrator. See also Hobér & McKenzie, New
Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, 23(2) Arb.
Int’l 261 (2007); Magnusson & Shaughnessy, The 2007 Rules of the Arbitration Institute
of the Stockholm Chamber of Commerce, 2006:3 Stockholm Int’l Arb. Rev. 33, 49-58;
Pavlica, The Arbitration Institute of the Stockholm Chamber of Commerce (SCC), in P.
Gola, C. Götz Staehelin & K. Graf (eds.), Institutional Arbitration: Tasks and Powers of
Different Arbitration Institutions 217 (2009); Shaughnessy, Pre-Arbitral Urgent Relief:
The New SCC Emergency Arbitrator Rules, 27 J. Int’l Arb. 337 (2010).
1642) See also 2017 SCC Rules. See SCC, Dispute Resolution: Rules, available at
www.sccinstitute.com.
1643) See Magnusson & Shaughnessy, The 2007 Rules of the Stockholm Chamber of
Commerce, 2006:3 Stockholm Int’l Arb. Rev. 33; J. Ragnwaldh et al., A Guide to the
SCC Arbitration Rules x-xii (2019).
1644) The 2021 Express Dispute Assessment Rules are available at
https://sccinstitute.com/our-services/rules/. SCC Express offers legal assessment
of a dispute in three weeks for a fixed fee under the 2021 SCC Express Dispute
Assessment Rules. Further information is available at https://sccinstitute.com/our-
services/scc-express/. The SCC has also issued Guidelines to the SCC Rules for
Express Dispute Assessment in May 2021.
1645) Stockholm was selected as the seat of arbitration in 74% (122) of the cases
commenced in 2021. SCC, Statistics 2021, available at www.sccinstitute.com.
1646) Id.
1647) For commentary, see N. Kaplan, J. Spruce & M. Moser, Hong Kong and China
Arbitration: Cases and Materials (1994); N. Kaplan, J. Spruce & T. Cheng, Hong Kong
Arbitration: Cases and Materials (1991); R. Morgan, The Arbitration Ordinance of Hong
Kong: A Commentary (1997); M. Moser & C. Bao, A Guide to the HKIAC Arbitration
Rules (2017); M. Moser & T. Cheng, Arbitration in Hong Kong: A User’s Guide (2004); M.
Pryles, Dispute Resolution in Asia (2006); Moser & Morgan, National Report for Hong
Kong (2021 through 2022), in L. Bosman (ed.), International Handbook on
Commercial Arbitration 1 (2020 & Update February 2022); Polkinghorne & Fitzgerald,
Arbitration in Southeast Asia: Hong Kong, Singapore and Thailand Compared, 18(1) J.
Int’l Arb. 101 (2001); Xu & Wilson, One Country, Two International Commercial
Arbitration-Systems, 17(6) J. Int’l Arb. 47 (2000).
1648) The HKIAC’s other arbitration rules include the Domestic Arbitration Rules, the
Securities Arbitration Rules, the Electronic Transaction Arbitration Rules and the
Short Form Arbitration Rules. See HKIAC, Arbitration Rules & Guidelines, available at
www.hkiac.org. The 2008 HKIAC Rules were described as being inspired by the “light
touch administered approach” of the Swiss International Rules of Arbitration.
1649) See 2018 HKIAC Rules, available at www.hkiac.org.
1650) Of the 277 arbitrations in 2021, 81.6% were international and 18.4% were domestic;
HKIAC, HKIAC Statistics 2021, available at https://www.hkiac.org/about-
us/statistics; HKIAC, 2020 Annual Report 9 (2021); HKIAC, 2019 Annual Report 9
(2020); HKIAC, 2018 Annual Report 9 (2019). See also HKIAC, HKIAC Statistics 2019;
HKIAC, 2016 Annual Report 10 (2017); HKIAC, 2015 Annual Report 10 (2016); HKIAC,
2014 Annual Report 10 (2015).
1651) For commentary, see D. Cheng, M. Moser & S. Wang, International Arbitration in the
People’s Republic of China: Commentary, Cases and Materials (2d ed. 2000); W. Gu,
Dispute Resolution in China: Litigation, Arbitration, Mediation and Their Cross-
Interactions (2021); P. Leung & S. Wang, Selected Works of China International
Economic and Trade Arbitration Commission: Awards (1963-88) (1995); Moser, CIETAC
Arbitration: A Success Story?, 15(1) J. Int’l Arb. 27 (1998); M. Moser, Practical
Commentary on the CIETAC Rules of Arbitration (2012); Moser & Yuen, The New
CIETAC Arbitration Rules, 21(3) Arb. Int’l 391 (2005); Tao, China International
Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules, 2015, in L.
Mistelis (ed.), Concise International Arbitration 617 (2d ed. 2015); Yang, CIETAC
Arbitration Clauses Revisited, 24(4) Arb. Int’l 603 (2008); J. Yu, L. Cao & M. Moser, A
Guide to the CIETAC Arbitration Rules (2018).
1652) Chinese Arbitration Law, Arts. 10-15.
1653) Moser,CIETAC Arbitration: A Success Story?, 15(1) J. Int’l Arb. 27 (1998); Shields, China’s
Two-Pronged Approach to International Arbitration, 15(2) J. Int’l Arb. 67 (1998).
1654) See CIETAC, 2021 Work Report and 2022 Work Plan (2022); CIETAC, Statistics (2021),
available at www.cietac.org.
1655) See 2015 CIETAC Rules, available at www.cietac.org.
1656) 2015 CIETAC Rules, Art. 26(2). In those cases where CIETAC appoints a presiding or
sole arbitrator, CIETAC is also now required to consider (but not necessarily
appoint) candidates nominated by the parties. Id. at Arts. 27(3), 28. The 2012 and
2015. CIETAC Rules modify the procedure for appointing the presiding arbitrator (in
cases with three-person tribunals). Among other things, parties are permitted to
provide a list of candidates for presiding arbitrator. Id. at Art. 27(3).
1657) See CIETAC, Panel of Arbitrators Effective as from May 1 2017 (2017).
1658) 2015 CIETAC Rules, Art. 35(3).
1659) Id. at Art. 48(1).
1660) Id. at Arts. 31, 32.
200
1661) Id. at Arts. 4(3), 7(1), 36(2).
1662) Id. at Art. 6(3).
1663) Id. at Art. 23, Appendix III.
1664) Id. at Arts. 18, 19.
1665) Id. at Art. 51.
1666) Id. at Art. 52(2).
1667) CIETAC Investment Arbitration Rules, Art. 43.
1668) Id. at Art. 6.
1669) CIETAC, Explanatory Note Regarding the CIETAC Investment Arbitration Rules, Sept.
26, 2017.
1670) In 2012, CIETAC Shanghai announced that it was seceding from CIETAC Beijing and
later published its own arbitration rules and list of arbitrators. See China
International Economic and Trade Arbitration Commission Statement of 1 May 2012,
available at www.cietac.org.
1671) CRCICA, 2020 Annual Caseload Report (2020); CRCICA, Caseload of the Year 2018
(2018). See also Shehata, 25 Years of Model Law Arbitration in Egypt, 37 ASA Bull. 631
(2019).
1672) CRCICA, 2020 Annual Caseload Report (2020); CRCICA, Caseload of the Year 2018
(2018).
1673) See 2011 CRCICA Rules, available at www.crcica.org.
1674) Zegers, National Report for Saudi Arabia (2019 through 2021), in L. Bosman (ed.),
International Handbook on Commercial Arbitration 10 (2020 & Update February
2020). See also Ross, Introducing the Saudi Center for Commercial Arbitration, Global
Arb. Rev. (3 Nov. 2016).
1675) See 2018 SCCA Arbitration Rules, available at www.sadr.org.
1676) Id. at Art. 31(4).
1677) Blanke, The UAE Federal Arbitration Law: Taking Stock on Its Third Anniversary, X(1)
Indian J. Arb. L. 17 (2021); Tannous, Hill & Omran, National Report for the United Arab
Emirates (2020 through 2021), in L. Bosman (ed.), International Handbook on
Commercial Arbitration 1 (2020 & Update October 2021).
1678) Tannous, Hill & Omran, National Report for the United Arab Emirates (2020 through
2021), in L. Bosman (ed.), International Handbook on Commercial Arbitration 1, 3-4
(2020 & Update October 2021).
1679) Blanke, Free Zone Arbitration: The Mechanics, 6(2) Indian J. Arb. L. 56 (2017). For
commentary on the DIFC Courts Rules, see R. Reed &T. Montagu-Smith, DIFC Courts
Practice (2020).
1680) The Official Portal of the UAE Government, available at www.government.ae. The
ADGM enacted Amendment No. 1 of 2020 to the ADGM Arbitration Regulations 2015
on 23 December 2020. The amendments codify international best practice and
reflect ADGM’s effort to establish itself as a progressive seat of arbitration.
1681) Blanke, Free Zone Arbitration: The Mechanics, 6(2) Indian J. Arb. L. 56, 63 (2017).
1682) Al Mulla & Seif, Arbitration In Dubai After Decree 34 of 2021: It Has Wings, But Will It
Fly?, Kluwer Arb. Blog (14 Nov. 2021).
1683) Blanke, DIAC 2.0: A Mirage or A Tale of 1001 Arabian Nights, Kluwer Arb. Blog (29 Jan.
2022).
1684) DIFC-LCIA, Overview, available at http://www.difc-lcia.org/overview.aspx.
1685) Dubai Law No. (7) of 2014 Amending Law No. (9) of 2004.
1686) Emmerson et al., DIFC-LCIA Arbitration Overview, Global Arb. Rev. (11 Apr. 2019).
1687) See Al Mulla & Seif, Arbitration In Dubai After Decree 34 of 2021: It Has Wings, But
Will It Fly?, Kluwer Arb. Blog (14 Nov. 2021). On 29 March 2022, DIAC and LCIA issued
a press release, stating that “the LCIA will administer all existing DIFC-LCIA cases
(i.e., those commenced and registered by the DIFC-LCIA under a designated case
number on or before 20 March 2022) from London”). The press release is available
at https://www.lcia.org/News/update-difc-lcia.aspx.
1688) Al Mulla & Seif, Arbitration In Dubai After Decree 34 of 2021: It Has Wings, But Will It
Fly?, Kluwer Arb. Blog (14 Nov. 2021); Blanke, DIAC 2.0: A Mirage or A Tale of 1001
Arabian Nights, Kluwer Arb. Blog (29 Jan. 2022); Kadhim, Upheaval of Dispute
Resolution Centres in the Gulf: Recent Developments in Qatar and Dubai, Kluwer
Arb. Blog (23 Oct. 2021).
1689) See https://www.adgm.com/media/announcements/adgm-arbitration-centre-the-
state-of-the-art-arbitration.
1690) For commentary on the WIPO Arbitration Rules, see P. Landolt & A. García,
Commentary on WIPO Arbitration Rules (2017); WIPO, Guide to WIPO Arbitration
(2004); Zuberbühler, World Intellectual Property Organization (WIPO), in P. Gola, C.
Götz Staehelin & K. Graf (eds.), Institutional Arbitration: Tasks and Powers of
Different Arbitration Institutions 293 (2009).
1691) 2021 WIPO Rules, Arts. 50, 54, 75-78.
1692) Id. at Art. 49. See Rydzinska, Revision of the WIPO Arbitration Rules: Adapting to an
Increasingly Remote Setting in Technology Dis..., Kluwer Arb. Blog (27 Sept. 2021).
1693) WIPO, Caseload Summary: Statistics (2022), available at
www.wipo.int/amc/en/center/caseload.html.
1694) See E. Min & M. Lilleengen, Collection of WIPO Domain Name Panel Decisions(2003);
WIPO, Caseload Summary: Statistics (2022).
201
1695) For commentary on the CAS and CAS Rules, see D. Mavromati & M. Reeb, The Code
of the Court of Arbitration for Sport: Commentary, Cases and Materials (2015).
1696) Reilly, An Introduction to the Court of Arbitration for Sport (CAS) & The Role of
National Courts in International Sports Disputes, 2012 J. Disp. Resol. 63, 64 (2012).
1697) 2019 Olympic Charter, Art. 61.
1698) 2017 World Athletics Constitution, Art. 84.
1699) 2019 FIFA Statutes, Arts. 57-59.
1700) 2021 UEFA Statutes, Arts. 59, 61-63.
National Courts in International Sports Disputes, 2012(1) J. Disp. Resol. 63, 67 (2012).
1702) 2021 CAS Code, available at www.tas-cas.org.
1703) Id. at Rules 38-46.
1704) Id. at Rules 47-59.
1705) See 2021 Arbitration Rules for the Olympic Games, available at www.tas-cas.org.
1706) See 2021 CAS Anti-Doping Division Arbitration Rules, available at www.tas-cas.org.
1707) See 2021 CAS Code, Rule S20 (“The Ordinary Arbitration Division constitutes Panels,
whose responsibility is to resolve disputes submitted to the ordinary procedure,
and performs, through the intermediary of its President or her/his deputy, all other
functions in relation to the efficient running of the proceedings pursuant to the
Procedural Rules”). See also Rigozzi, Hasler & Noth, Introduction to the CAS Code, in
M. Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide 1419, 1426 (2d
ed. 2018) (“Commercial sports disputes are assigned to panels of the Ordinary
Arbitral Division. They are decided pursuant to the General Provisions of the
Procedural Rules in the CAS Code … and to the Special Provisions Applicable to the
Ordinary Arbitration Procedure. … In substance, the CAS ordinary procedure does
not differ from that stipulated in other standard commercial arbitration rules, and
is characterized by a great deal of procedure autonomy for the parties”).
1708) See 2021 CAS Code, Rule S20 (“The Appeals Arbitration Division constitutes Panels,
whose responsibility is to resolve disputes concerning the decisions of federations,
associations or other sports-related bodies insofar as the statutes or regulations of
the said sports-related bodies or a specific agreement so provide. It performs,
through the intermediary of its President or her/his deputy, all other functions in
relation to the efficient running of the proceedings pursuant to the Procedural
Rules”). See also Rigozzi, Hasler & Noth, Commentary on the CAS Procedural Rules,
in M. Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide1419, 1426 (2d
ed. 2018) (“According to Art. R47 CAS Code, an appeal may be filed with CAS (in
other words, the CAS has jurisdiction to hear an appeal) against a decision of a
sports-governing body ‘If the statutes or regulations of the said body so provide.’
This means that the sports-governing bodies are free to determine which kinds of
decisions can be appealed to the CAS”); Rigozzi, Sports Arbitration and the Inherent
Need for Speed and Effectiveness, in L. Lévy & M. Polkinghorne (eds.), Expedited
Procedures in International Arbitration 88, 90-91 (2017).
1709) CAS, Statistics (1986-2020), available at www.tas-cas.org.
1710) 2021 Arbitration Rules for the Olympic Games, Art. 18. See Mitten, Resolving
Disputes in Olympic and International Sports, 16 Insights on Law & Soc. 14 (2016) (“As
a general rule, the panel must render a written arbitration award with reasons for
its decision within 24 hours of the filing of a request”); Rigozzi, Sports Arbitration
and the Inherent Need for Speed and Effectiveness, in L. Lévy & M. Polkinghorne
(eds.), Expedited Procedures in International Arbitration 88, 100 (2017) (“The
proceedings before the Ad Hoc Division are aimed at issuing a final reasoned
decision on the merits after hearing from the parties within a time limit of 24 hours
from the filing of the appeal”).
1711) 2021 CAS Anti-Doping Division Arbitration (“CAS ADD”) Rules, Art. A1 (“The Anti-
Doping Division of the Court of Arbitration for Sport (CAS ADD) has been established
to hear and decide anti-doping cases as a first-instance authority pursuant to a
delegation of powers from the International Olympic Committee (IOC),
International Federations of sports on the Olympic programme (Olympic IFs), and
any other signatories to the World Anti-Doping Code (WADC). … CAS ADD and these
procedural rules have been established in conjunction with the applicable anti-
doping rules of the WADC sugnatories concerned”). See also 2021 CAS Code, Rule
S20 (“The Anti-doping Division constitutes Panels, whose responsibility is to resolve
disputes related to anti-doping matters as a first-instance authority or as a sole
instance. It performs, through the intermediary of its President or her/his deputy,
all other functions in relation to the quick and efficient running of the proceedings
pursuant to the Procedural Rules”).
1712) 2021 CAS Code, Rule R33; 2021 CAS Anti-Doping Division Arbitration Rules, Art. A8.
See also 2021 CAS Code, Rule S14; 2019 CAS Anti-Doping Division Arbitration Rules,
Art. A9.
1713) 2021 CAS Anti-Doping Division Arbitration Rules, Art. A8.
1714) CAS, Statistics (1986-2020); Reeb, Editorial, 2 CAS Bull. 4 (2018). See also CAS, Press
Release: The Court of Arbitration for Sport (CAS) Expands (4 Oct. 2019) (“CAS registers
600 arbitration procedures and organises more than 250 hearings each year”).
202
National Courts in International Sports Disputes, 2012 J. Disp. Resol. 64, 70. See
Rigozzi, Hasler & Noth, Commentary on the CAS Procedural Rules, in M. Arroyo (ed.),
Arbitration in Switzerland: The Practitioner’s Guide 1419, 1426 (2d ed. 2018) (“The
other main type of disputes that is most commonly resolved in CAS under the
appeals procedure are appeals from decisions issued by FIFA, the world governing
body for football, which has its own internal judicial system”).
National Courts in International Sports Disputes, 2012 J. Disp. Resol. 64, 70.
1717) CAS, Statistics (1986-2020); J. Lindholm, The Court of Arbitration for Sport and Its
Jurisprudence 19 (2019).
1718) See Rigozzi, Challenging Awards of the Court of Arbitration for Sport, 1 J. Int’l Disp.
Sett. 220 (2010) (“Since the seat of CAS arbitrations is always Lausanne,
Switzerland, the court of competent jurisdiction to hear actions to set aside CAS
awards is the Swiss Supreme Court”).
1719) See D. Girsberger & N. Voser, International Arbitration: Comparative and Swiss
Perspectives 660-61 (4th ed. 2021) (“In general, compliance with CAS awards is high.
Unlike commercial arbitration, where it may be necessary to have an award
recognized and enforced by courts in different countries, international federations
and other sport bodies have effective mechanisms of their own to ensure
compliance with CAS awards, such as suspension of membership, ineligibility for
sport competitions and fines”).
1720) R. Schütze, D. Tscherning & W. Wais, Handbuch des Schiedsverfahrens ¶775 (1990).
1721) K. P. Berger, International Economic Arbitration 58 (1993).
1722) See G. Flecke-Giammarco et al., The DIS Arbitration Rules – An Article-by-Article
Commentary (1st ed. 2020); Das Gupta, Kurzkommentare zu den Änderungen in der
2018 DIS-Schiedsgerichtsordnung, 2018 SchiedsVZ 44; Mazza & Menz, Neuerungen in
der 2018 DIS-Schiedsgerichtsordnung im Überblick, 2018 SchiedsVZ 39; Theune, DIS-
Schiedsgerichtsordnung, in R. Schuetze (ed.), Institutionelle Schiedsgerichtsbarkeit:
Kommentar, 243-340 (3d ed. 2018).
1723) M. Krimpenfort, Vorläufige und Sichernde Maßnahmen im Schiedsrichterlichen
Verfahren 1 (2001).
1724) DIS, Statistics (2019), available at www.dis-arb.de.
1725) See KCAB website at www.kcabinternational.or.kr; KCAB, 2020 Annual Report 3
(2021).
1726) KCAB, 2020Annual Report 10 (2021).
1727) J. Davis & Y. Takaishi, Dispute Resolution in Japan 156 et seq. (1996); Roughton, A
Brief Review of the Japanese Arbitration Law, 1 Asian Int’l Arb. J. 127 (2005). There
are other arbitral institutions in Japan such as the International Arbitration Center
in Tokyo (IACT) which was established in 2018 (https://www.iactokyo.com/). A list of
arbitral institutions in Japan is available at
http://idrc.jp/images/home/booklet.pdf.
1728) The JCAA Commercial Arbitration Rules were amended, and the amended Rules
came into effect on July 1, 2021. Seehttps://www.jcaa.or.jp/en/news/?
mode=show&seq=202. See 2021 JCAA Rules, available at
https://www.jcaa.or.jp/en/arbitration/rules.html.
1729) JCAA, Statistics, available at https://www.jcaa.or.jp/en/arbitration/statistics.html.
1730) According to the JCAA Statistics
(https://www.jcaa.or.jp/en/arbitration/statistics.html), among the 69 arbitrations
filed with the JCAA from 2017 to 2021, 86% were international cases involving one or
more non-Japanese companies or Japan-based foreign subsidiaries.
1731) The 2021 ACICA Arbitration Rules and Expedited Arbitration Rules came into effect
on 1 April 2021. See ACICA website at www.acica.org.au. See also Nottage, Dreosti &
Tang, The ACICA Arbitration Rules 2021: Advancing Australia’s Pro-Arbitration Culture,
38(6) J. Int’l Arb. 775 (2021).
1732) The ACICA has a comprehensive website detailing the services it provides at
www.acica.org.au.
1733) See AIAC website at www.aiac.world.
1734) AIAC also released the new 2021 i-Arbitration Rules on 1 November 2021. See Loh &
Mira, 2021 in Review: Southeast Asia, Kluwer Arb. Blog (1 Feb. 2022).
1735) See AIAC, Annual Report 2019 & 2020 16 (2021).
1736) See 2016 ICA Rules, available at www.icaindia.co.in.
1737) See 2021 ICA Rules of Domestic Commercial Arbitration and Conciliation, available
at www.icaindia.co.in.
1738) See§11.05[G]; §22.04[A][2] (especially §22.04[A][2][a][ii]).
1739) See ICA, 2015-2016 Annual Report 18 (2016); ICA, 2010-2011 Annual Report 9 (2011).
1740) See JAMS International website at www.jamsinternational.com. JAMS International
has representation in Amsterdam, Milan, New York, Rome and Toronto.
1741) The ‘Neutral Directory’ is available at https://www.jamsadr.com/neutrals/search.
203
1742) A summary of the latest revisions is available at
https://www.jamsadr.com/international-arbitration-rules/english. The JAMS
recommended clause for international disputes provides:“Any dispute, controversy
or claim arising out of or relating to this contract, including the formation,
interpretation, breach or termination thereof, including whether the claims
asserted are arbitrable, will be referred to and finally determined by arbitration in
accordance with the JAMS International Arbitration Rules. The tribunal will consist
of [three arbitrators/a sole arbitrator]. The place of arbitration will be [location].
The language to be used in the arbitral proceedings will be [language]. Judgment
upon the award rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof.”
1743) A distinctive feature of JAMS is its “Mediator-in-Reserve Policy for International
Arbitrations.” See 2021 JAMS International Arbitration Rules & Procedures,
available at www.jamsinternational.com.
1744) See§1.04[D][1].
1745) See CAM-CCBC website at www.ccbc.org.br; Jaramillo & Salgado, Interviews with Our
Editors: In Conversation with Eleonora Coelho, President of the Center for Arbit...,
Kluwer Arb. Blog (23 Aug. 2021); CAM-CCBC, 2019 Annual Report: Facts and Figures 12
(2020).
1746) For commentary on the 2012 CAM-CCBC Rules, see F.J. Straube, C. Finkelstein & N.C.
Filho (eds.), The CAM-CCBC Arbitration Rules 2012: A Commentary (2016).
1747) See CAM-CCBC Administrative Resolution 09/2014: Interpretation and Application of
the Rules of the CAM/CCBC Arbitrations that Involve the Brazilian Public
Administration.
1748) See CAM-CCBC Administrative Resolution 18/2016: Recommendations Regarding the
Existence of Third-Party Funding in Arbitrations Administered by CAM-CCBC.
1749) See generally Park, The Procedural Soft Law of International Arbitration: Non-
Governmental Instruments, in L. Mistelis & J. Lew (eds.), Pervasive Problems in
International Arbitration 142 (2006); Paulsson, Ethics and Codes of Conduct for A
Multi-Disciplinary Institute, 70 Arb. 193 (2004); Trakman, “Legal Traditions” and
International Commercial Arbitration, 17 Am. Rev. Int’l Arb. 1 (2006); C. von Kann, J.
Gaitis & J. Lehrman (eds.), The College of Commercial Arbitrators Guide to Best
Practices in Commercial Arbitration (2005).
1750) See§1.06.
1751) For a criticism of the IBA’s guidelines for evidence-taking, party representation and
arbitrator independence, see Schneider, The Essential Guidelines for the Preparation
of Guidelines, Directives, Notes, Protocols and Other Methods Intended to Help
International Arbitration Practitioners to Avoid the Need for Independent Thinking
and to Promote the Transformation of Errors into “Best Practices,” in L. Lévy & Y.
Derains (eds.), Liber Amicorum Serge Lazareff 563 (2011). See also Carmona,
Considerations on the IBA Guidelines on Party Representation in International
Arbitration: A Brazilian Point of View, Les Cahiers de l’Arbitrage 29 et seq. (2014);
Carter, The International Commercial Arbitration Explosion: More Rules, More Laws,
More Books, So What?, 15 Mich. J. Int’l L. 785 (1993-94); Greineder, The Limitations of
Soft Law Instruments and Good Practice Protocols in International Commercial
Arbitration, 36 ASA Bull. 908 (2018); Schneider, President’s Message: Yet Another
Opportunity to Waste Time and Money on Procedural Skirmishes: The IBA
Guidelines on Party Representation, 31 ASA Bull. 497 (2013).
1752) Wilske, The Duty of Arbitral Institutions to Preserve the Integrity of Arbitral
Proceedings, 10(2) Contemp. Asia Arb. J. 201 (2017). See, e.g., 2020 LCIA Rules, Annex:
General Guidelines for the Authorised Representatives of the Parties (Articles 18.5
and 18.6 of the LCIA Rules); 2016 ACICA Rules, Rule 8(2); 2016 Lagos Chamber of
Commerce International Arbitration Centre Rules, Art. 2; ICC, Note to the Parties and
Arbitral Tribunals on the Conduct of the Arbitration (2017). See also§12.05; §13.02[G];
§21.03[A][1][b].
1753) For commentary, see§15.07[E]; §20.04[C]; P. Ashford, The IBA Rules on the Taking of
Evidence in International Arbitration (2013); C. Baker et al., The Taking of Evidence in
International Commercial Arbitration (2010); F. Ferrari & F.J. Rosenfeld, Handbook of
Evidence in International Commercial Arbitration: Key Concepts and Issues (2022);
T. Giovannini & A. Mourre, Written Evidence and Discovery in International
Arbitration: New Issues and Tendencies (2009); R.-M. Khodykin, C. Mulcahy & N.
Fletcher, A Guide to the IBA Rules on the Taking of Evidence in International
Arbitration (2019); T. Zuberbühler et al., IBA Rules of Evidence: Commentary on the
IBA Rules on the Taking of Evidence in International Arbitr...1 (2d ed. 2022).
1754) 1983 IBA Supplemental Rules Governing the Presentation and Reception of
Evidence; Shenton, International Bar Association Supplementary Rules Governing
the Presentation and Reception of Evidence in International Commercial Arbitration,
X Y.B. Comm. Arb. 145 (1985).
1755) See§15.07[E].
1756) 1983 IBA Supplemental Rules Governing the Presentation and Reception of
Evidence, Art. 1.
1757) See§15.07[E]. See also Lew, Achieving the Potential of Effective Arbitration, 65 Arb.
283, 288 (1999); Veeder, Evidential Rules in International Commercial Arbitration:
From the Tower of London to the New 1999 IBA Rules, 65 Arb. 291, 296 (1999).
204
1758) 1999 IBA Rules on the Taking of Evidence, Preamble, ¶2; Bühler & Dorgan, Witness
Testimony Pursuant to the 1999 IBA Rules of Evidence in International Commercial
Arbitration: Novel or Tested Standards?, 17 J. Int’l Arb. 3, 5 (2000).
1759) See§15.07[E].
1760) The word “commercial” was removed from the title in order to recognize that the
rules could be used in non-commercial settings such as investment treaty
disputes. P. Ashford, The IBA Rules on the Taking of Evidence in International
Arbitration (2013); IBA, Commentary on the IBA Rules on the Taking of Evidence in
International Arbitration 2 (2010); T. Zuberbühler et al., IBA Rules of Evidence:
Commentary on the IBA Rules on the Taking of Evidence in International Arbitr... 1
(2d ed. 2022).The 2010 IBA Rules are discussed in detail below. See§15.07[E];
§16.02[E][3][a][ii](1).
1761) 2010 IBA Rules on the Taking of Evidence, Art. 2(1).
1762) Id. at Art. 3(3)(a)(ii).
1763) Id. at Art. 4(5).
1764) Id. at Art. 5(5).
1765) Id. at Art. 9(3).
1766) Id. at Preamble, ¶3.
1767) Id. at Art. 9(7).
1768) Queen Mary, University of London, 2015 International Arbitration Survey:
Improvements and Innovations in International Arbitration 36 (2015). See also Queen
Mary, University of London, 2018 International Arbitration Survey: The Evolution of
International Arbitration 36 (2018) (“In a similar vein, our 2015 survey found that the
IBA Rules on the Taking of Evidence in International Arbitration and the IBA
Guidelines on Conflicts of Interest enjoyed wide usage and recognition”).
1769) Gorst & Tutt, 2020 Revision of the IBA Rules on the Taking of Evidence in
International Arbitration, Kluwer Arb. Blog (28 Mar. 2021).
1770) 2020 IBA Rules on the Taking of Evidence, Art. 2(2)(e).
1771) Id. at Art. 3(5).
1772) Id. at Art. 3(12). The 2020 IBA Rules also provide clarifications of pre-existing
provisions. See 2020 IBA Rules on the Taking of Evidence, Arts. 3(7), 3(12)(c), 4(6)(b),
6, 9(3).
1773) Seealso Ashford, The Right to an ‘In-person’ Hearing in International Arbitration,
87(4) Int’l. J. Arb. Med. & Disp. Mgt 575 (2021); Bateson, Virtual Arbitrations: The
Impact of COVID-19, IX(1) Indian J. Arb. L. 159 (2020); Born, Day & Virjee, Remote
Hearings (2020 Survey): A Spectrum of Preferences, 38(3) J. Int’l Arb. 291 (2021);
Carducci, Remote or Virtual Arbitration Hearings as “New Normal”: Governing Law
and Rules, Seat, Annulment, Recognition and Enforcement, 39(3) ASA Bull. 656 (2021);
CIARB, Guidance Note on Remote Dispute Resolution Proceedings (2020); Hogan
Lovells, Protocol for the use of technology in international arbitration hearings
(2021); Madyoon, Virtual Hearings in International Arbitration: Challenges, Solutions,
and Threats to Enforcement, 87 (4) Int’l J. Arb. Med. & Disp. Mgt 597 (2021); Ongenae
& Piers, Procedural Formalities in Arbitration: Towards a Technologically Neutral
Legal Framework, 38(1) J. Int’l Arb. 27 (2021); M. Scherer, N. Bassiri & M. Abdel
Wahab, International Arbitration and the COVID-19 Revolution (2020); Scherer,
Remote Hearings in International Arbitration: An Analytical Framework, 37(4) J. Int’l
Arb. 407 (2020); Seoul Protocol on Video Conferencing in International Arbitration
(2020).
1774) See§15.09[A]; §16.02[E][3][a][ii](1).
1775) For commentary, see the authorities cited at §12.05[J][2]; §12.05[J][5][a]; §13.02[F].
1776) The original 1977 ABA/AAA Code of Ethics is excerpted in X Y.B. Comm. Arb. 131
(1985); Feerick, The 1977 Code of Ethics for Arbitrators: An Outside Perspective, 18 Ga.
St. U.L. Rev. 907 (2002).
1777) Consistent with historic practice in the United States, the Code prescribed
presumptively different ethical standards for party-appointed and “neutral”
arbitrators. See§12.05[J][1]; §12.05[J][2]; §12.05[B][3].
1778) 2004 AAA/ABA Code of Ethics, Note on Neutrality; Byrne, A New Code of Ethics for
Commercial Arbitrators: The Neutrality of Party-Appointed Arbitrators on A Tripartite
Panel, 30 Ford. Urb. L.J. 1815 (2003).The ABA/AAA Code of Ethics is discussed below.
See§12.05[B][3]; §12.05[C][2]; §12.05[J][2]. The ABA has published an annotated
version of the ABA/AAA Code of Ethics for Arbitrators in Commercial Disputes. See
https://www.americanbar.org/content/dam/aba/events/dispute_resolution/com
mittees/arbitration/Code_An....
1779) 1987 IBA Rules of Ethics for International Arbitrators, available at www.ibanet.org.
1780) Unlike the original ABA/AAA Code, the 1987 IBA Rules of Ethics for International
Arbitrators applied the same standards of impartiality and independence to
party-appointed, sole and presiding arbitrators. See§12.05[J][1]; §12.05[J][5][a].
1781) See 2004 IBA Guidelines on Conflicts of Interest, General Standard 3. The Guidelines
are discussed below. See§12.05[J][5][b].
1782) 2014 IBA Guidelines on Conflicts of Interest.
1783) See§12.05[J][5][b].
205
1784) See §12.05[J][5][b]; 2014 IBA Guidelines on Conflicts of Interest, General Standard 3.
The Guidelines categorize such circumstances into those matters that give rise to
justifiable doubts concerning independence (a so-called “red list”), matters that
require disclosure (a so-called “orange list”) and matters that do not ordinarily
give rise to doubts regarding independence and that do not require disclosure (a
so-called “green list”). Id. at General Standard 4, Part II. See also§12.05[J][5][b].
1785) See Veeder, Is There Any Need for A Code of Ethics for International Commercial
Arbitrators?, in J. Rosell (ed.), Les Arbitres Internationaux 187, 187-88 (2005). See also
C. Rogers, Ethics in International Arbitration (2014).
1786) The ICCA Guidelines can be found at https://cdn.arbitration-icca.org/s3fs-
public/document/media_document/ICCA_Guidelines_on_Standards_of.... See
Sanderson, A Call for Civility: ICCA Publishes Guidelines on Standards of Practice,
Global Arb. Rev. (9 June 2021); A.C. Smutny & G.S. Tawil, ICCA Reports No. 9:
Guidelines on Standards of Practice in International Arbitration (2021). See also
Rogers, The World Is Not Enough: Ethics In Arbitration Seen Through The World, 37(1)
Arb. Int’l 397 (2021); Sheppard, The Lawyer’s Duty To Arbitrate In Good Faith and With
Civility, 37(2) Arb. Int’l 535 (2021).
1787) A.C. Smutny & G.S. Tawil, ICCA Reports No. 9: Guidelines on Standards of Practice in
International Arbitration (2021).
1788) 2013 IBA Guidelines on Party Representation, Preamble.
1789) Id. at Preamble.
1790) See§21.03[A][1][b].
1791) 2013 IBA Guidelines on Party Representation, Guidelines 1-27.
1792) 2018 Prague Rules on the Efficient Conduct of Proceedings in International
Arbitration. See also§15.07[F]; §15.08[W]-§15.08[Z]; Duggal & Rangachari, A
Challenger Approaches: An Assessment of the Prague Rules on the Efficient Conduct
of Proceedings in International Arbitration, 37(1) J. Int’l Arb. 27 (2020); Henriques, The
Prague Rules: Competitor, Alternative or Addition to the IBA Rules on the Taking of
Evidence in International Arbitration?, 36 ASA Bull. 351, 352 (2018).
1793) 2018 Prague Rules, Note from the Working Group.
1794) Id. at Art. 4(2).
1795) Id. at Arts. 4(2), 5(3).
1796) Id. at Art. 7(2).
1797) Id. at Art. 9.
1798) See Amaral, Prague Rules v. IBA Rules and the Taking of Evidence in International
Arbitration: Tilting at Windmills – Part II, Kluwer Arb. Blog (6 July 2018); Berger,
Common Law vs. Civil Law in International Arbitration: The Beginning or the End?, 36
J. Int’l Arb. 295 (2019); Newman & Zalowsky, The Russians Are Coming, and They Want
to Change How We Conduct International Arbitration, N.Y. L.J. (23 Mar. 2018).
1799) UNCITRAL, Notes on Organizing Arbitral Proceedings (1996); UNCITRAL, Report of the
UNCITRAL on the Work of Its Twenty-Ninth Session, U.N. Doc. A/51/17 (1996). The
UNCITRAL Notes are also discussed in greater detail below. See§15.08[N].
1800) UNCITRAL, Notes on Organizing Arbitral Proceedings (2016).
1801) Chartered Institute of Arbitration, Framework Guideline on the Use of Technology in
International Arbitration (2021) available at www.ciarb.org.
1802) See 2018 IBA Cybersecurity Guidelines.
1803) ICCA-N.Y.C. Bar-CPR Working Group on Cybersecurity in Arbitration, 2020
Cybersecurity Protocol for International Arbitration (2019).
1804) Centre for International Legal Cooperation, The Hague Rules on Business and
Human Rights Arbitration (2019).
1805) Desierto, Why Arbitrate Business and Human Rights Disputes? Public Consultation
Period Open for the Draft Hague Rules on Business and Human Rights Arbitration,
EJIL:Talk! (12 July 2019); Duggal & Rangachari, International Arbitration Promoting
Human Rights: The Hague Rules on Business and Human Rights Arbitration(2019), 22
Asian Disp. Rev. 102 (2020); Haytornthwaite, The Hague Rules on Business and
Human Rights Arbitration: Noteworthy or Not Worthy for Vic-tims of H..., Kluwer Arb.
Blog (5 May 2020); U.N. High Commissioner for Human Rights, Guiding Principles on
Business and Human Rights (2011); Vidyarthi, Hague Rules on Business and Human
Rights: What Lies Ahead?, Am. Rev. Int’l Arb. Blog (28 Sept. 2020).
1806) See§1.01[B] (especially §1.01[B][1]-§1.01[B][2]); §2.02[C][1][b][i]; §5.04[D]; Rent-A-Ctr,
W., Inc. v. Jackson, 561 U.S. 63, 67 (U.S. S.Ct. 2010) (“fundamental principle that
arbitration is a matter of contract”); United Steelworkers of Am. v. Warrior & Gulf
Navigation Co., 363 U.S. 574, 582 (U.S. S.Ct. 1960) (“arbitration is a matter of contract
and a party cannot be required to submit to arbitration any dispute which he has
not agreed to so submit”); Award in ICC Case No. 7929, XXV Y.B. Comm. Arb. 312, 316
(2000) (“Arbitration is a consensual process and depends upon the existence of a
valid agreement to arbitrate”); Watkins-Johnson Co. v. Iran, Award in IUSCT Case No.
429-370-1 of 28 July 1989, 22 Iran–US CTR 218, 296 (1989) (Noori, J., dissenting) (“There
can be no doubt that arbitrations, whether international or between subjects of
private law, derive their mandate and competence from the consent and
agreement of the parties to the arbitral agreement; therefore, it is the parties’
consent that determines the scope, limits and area of certitude of an arbitrator’s
authority and jurisdiction”).
206
1807) There is a relatively limited, but important, category of cases in which
international arbitrations may result without a consensual agreement, by virtue of
provisions in international investment protection or other conventions or
legislation. See§1.04[A][7].
1808) See§1.01[A][4].
1809) See§1.01[A][2]; §3.03[A].
1810) There is a substantial body of commentary on drafting arbitration agreements. See
G. Born, International Arbitration and Forum Selection Agreements: Drafting and
Enforcing (6th ed. 2021); P. Friedland, Arbitration Clauses for International Contracts
(2d ed. 2007); IBA, Guidelines on Drafting International Arbitration Clauses (2010);
ICDR, Guide to Drafting International Dispute Resolution Clauses (2011); J. Paulsson,
N. Rawding & L. Reed, The Freshfields Guide to Arbitration and ADR: Clauses in
International Contracts (3d ed. 2011). See also Bernardini, The Arbitration Clause of
An International Contract, 9(2) J. Int’l Arb. 45 (1992); Bishop, A Practical Guide for
Drafting International Arbitration Clauses, 1 Int’l Energy L. & Tax’n Rev. 16 (2000);
Bond, How to Draft An Arbitration Clause (Revisited), 1(2) ICC Ct. Bull. 14 (1990);
Debattista, Drafting Enforceable Arbitration Clauses, 21 Arb. Int’l 233 (2005);
Townsend, Drafting Arbitration Clauses, 58 Disp. Resol. J. 1 (2003).
1811) These include provisions regarding provisional measures, waivers of appeals,
immunity issues, costs, currency and interest, and fast-track or other procedures.
See G. Born, International Arbitration and Forum Selection Agreements: Drafting
and Enforcing 35-94 (6th ed. 2021); P. Friedland, Arbitration Clauses for International
Contracts (2d ed. 2007); J. Paulsson, N. Rawding & L. Reed, The Freshfields Guide to
Arbitration and ADR: Clauses in International Contracts (3d ed. 2011).
1812) The definition of an “arbitration” agreement is discussed below. See§2.02.
1813) See§1.04[E][9]. Nonetheless, as discussed below, it is not essential that an
“arbitration agreement” use the term “arbitration.” Although this is usually the
case, and is strongly recommended, an agreement to arbitrate can be deduced
from other language. See§2.02[C].
1814) See§2.02[C][2][b]-§2.02[C][2][c].
1815) See§2.02[C][1][b][iv].
1816) See §5.04[D][5].
1818) The interpretation of arbitration agreements, with particular focus on their scope,
is discussed below. See§9.02.
1819) See§9.02[E][8].
1821) The interpretation of these formulae is discussed below. See§9.02[E].
1822) See§9.02[E] (especially §9.02[E][1]); G. Born, International Arbitration and Forum
Selection Agreements: Drafting and Enforcing 35-39 (6th ed. 2021).
1823) See§1.02[B] (especially §1.02[B][2]); §9.02[E][8].
1824) For examples of exclusions for particular types of issues, see G. Born, International
Arbitration and Forum Selection Agreements: Drafting and Enforcing 39-42 (6th ed.
2021).
1825) See§9.02[E][9].
1826) See§1.04[C][1].
1827) See§9.03[A]; G. Born, International Arbitration and Forum Selection Agreements:
Drafting and Enforcing 43 (6th ed. 2021).
1828) These model clauses are reproduced in G. Born, International Arbitration and
Forum Selection Agreements: Drafting and Enforcing Appendix I (6th ed. 2021).
1829) See id. at 64-66; §1.04[C][2].
1830) See§11.03-§11.04.
1831) See§11.03[A].
1832) See id.; §11.04.
1833) See §11.04; §14.02[A].
1834) See§11.03[D]; §14.02[A].
1836) See§12.01[A].
1837) See§12.02[I].
1838) See§12.02[H].
1839) As discussed below, the two most frequently-used numbers of arbitrators in
international commercial arbitration are one and three. See§12.02[C]. There is no
“perfect” number of arbitrators, although most significant disputes are better
heard by three (rather than one) arbitrators.
1841) See§12.02[C].
1842) See§12.03[D]; G. Born, International Arbitration and Forum Selection Agreements:
Drafting and Enforcing 81-84 (5th ed. 2021).
1843) See§12.03[D].
207
1844) See§12.03[D][3]-§12.03[D][5]; 2021 ICC Rules, Art. 13; 2021 ICDR Rules, Art. 13; 2013
UNCITRAL Rules, Art. 6. An institution will also appoint an arbitrator on behalf of a
party which fails to exercise its right under the parties’ arbitration agreement to
do so. 2021 ICC Rules, Arts. 13(3), (4); 2021 ICDR Rules, Art. 13(3); 2020 LCIA Rules, Art.
5(6). See also Leikin & Treichl, Pick Your President: Why and How Parties Should Seek
to Agree on A Presiding Arbitrator, 37(1) Arb. Int’l 121-152 (2021).
1845) As discussed below, if the parties wish for the co-arbitrators to attempt to agree on
the identity of a presiding arbitrator, it may be necessary to include provisions to
that effect in the parties’ arbitration if ad hoc arbitration or some institutional
rules are adopted. See§12.03[C][3]; G. Born, International Arbitration and Forum
Selection Agreements: Drafting and Enforcing 81-84 (6th ed. 2021).
1846) See§12.04[D].
1847) 2021 ICC Rules, Art. 13(5); 2020 LCIA Rules, Art. 6(1). Compare 2021 ICDR Rules, Art.
6(4).
Enforcing 84-86 (6th ed. 2021). Such provisions are often sui generis, providing
“each arbitrator shall be a Certified Public Accountant” or “the arbitrators shall be
practicing lawyers.”
1849) Id. at 69-70. Nonetheless, it is often difficult to determine in advance what sorts of
expertise will be genuinely relevant to a future dispute. Moreover, imposing
advance requirements reduces the pool of available arbitrators – sometimes
unacceptably, such as a “legally-qualified national of Bermuda with a civil
engineering degree and fluency in Arabic.” It can also indirectly influence the
background and training of a potential chairman (and the co-arbitrators), which
may have consequences for the approach to the merits of the dispute in the
arbitral proceedings. See§12.04[D][3].
Enforcing 88-89 (6th ed. 2021). See§15.08[J].
1851) 2013 UNCITRAL Rules, Art. 19; 2021 ICC Rules, Art. 20; 2021 ICDR Rules, Art. 20.
1852) See§15.08[J].
1853) See§14.02[A][9].
1854) See§1.04[F]; §4.01; §9.01.
1855) For a discussion of the drafting of such choice-of-law clauses, see G. Born,
163-72 (6th ed. 2021).
1856) See§1.04[F][2]; §3.03[B]; §4.02.
1857) See§1.04[E][7]; §3.03[B].
1858) See§11.05.
1859) See§11.05[B].
1860) See§11.05[B][2]; G. Born, International Arbitration and Forum Selection Agreements:
Drafting and Enforcing 165 (6th ed. 2021).
1861) Id. at 95-97.
1862) Id. at 97-99.
1863) Id. at 99-101. SeeChapter 16.
1864) Berger, Law and Practice of Escalation Clauses, 22 Arb. Int’l 1 (2006); G. Born,
108-09 (6th ed. 2021).
Enforcing 105-07 (6th ed. 2021); Lal et al., Multi-Tiered Dispute Resolution Clauses in
International Arbitration – The Need for Coherence, 38(4) ASA Bull. 796 (2020).
Enforcing 29-30, 137 (6th ed. 2021).
1867) Id. at 127; §20.03[B].
1868) These are catalogued in G. Born, International Arbitration and Forum Selection
Agreements: Drafting and Enforcing 43-62 (6th ed. 2021).
1869) In transactions involving particular jurisdictions with idiosyncratic legislative or
judicial rules regarding the validity or enforceability of international arbitration
agreements (e.g., China, Brazil), more specialized text may be appropriate.
1870) See§1.02 (especially §1.02[B][1]).
1871) See§4.01; §11.05. For an overview, see Born & Kalelioglu, Choice-Of-Law Agreements
in International Contracts, 50 Ga. J. Int’l & Comp. L. 44 (2021).
1872) For a more detailed discussion, seeChapter 4; §11.05. Additional subcategories
arise, for example, with regard to aspects of the law governing the arbitration
agreement (e.g., the law governing issues of formal validity, substantive validity,
capacity, interpretation) or the arbitral proceedings (e.g., the law governing the
arbitrator’s contract, the availability of provisional relief, privileges).
1873) Parties sometimes agree to permit arbitrators to resolve their dispute without
reference to law, that is, ex aequo et bono or as amiable compositeur (see§2.02[C][3];
§19.08) or by reference to a non-national legal system (see§19.06[C] (especially
§19.06[C][5])).
1874) See§19.02-§19.03.
1875) See§19.04 (especially §19.04[A][4]); §19.04[E]; 2010 UNCITRAL Rules, Art. 35(1).
1876) The role of national and international public policy in arbitration gives rise to
particularly complex choice-of-law issues. See§19.04[B].
1877) See§19.01.
208
1878) See§19.03[D][1].
1879) See§19.03[A][3]; §19.03[D][3][e]; §19.04[A][6][d]. There is also authority supporting an
arbitral tribunal’s “direct” application of substantive rules of law, purportedly
without prior recourse to any set of conflict of laws rules. See§19.03[D][3][b].
1880) The U.N. Convention on the International Sales of Goods, the UNIDROIT Principles of
International Commercial Contracts and the Rome Convention are leading
examples of this trend. See§4.04[A][1][e]; §19.03[F].
1881) See§3.02; §4.02. See also Rukhana & Bacha, The Doctrine of Separability: Through
the Lens of Darwinism, X(1) Indian J. Arb. L. 123 (2021); Scherer & Jensen, Towards A
Harmonized Theory of the Law Governing the Arbitration Agreement, X(1) Indian J.
Arb. L. 1 (2021).
1882) See, e.g., BNA v. BNB, [2019] SGHC 142 (Singapore High Ct.).
1883) SeeChapter 4 for a discussion of the choice of law applicable to the arbitration
agreement.
1884) See§4.04[A][1][b][i].
1885) See§11.03[A]. Parties sometimes agree that hearings may be conducted somewhere
other than the arbitral seat, for convenience, but this in principle does not change
the arbitral seat or the procedural law governing the arbitration. See§11.03[A];
§11.04.
1886) For example, foreign lawyers may not be permitted to appear in arbitrations
conducted on national territory, arbitrators may be prohibited from ordering
discovery, administering oaths, or granting provisional relief, or detailed
procedural requirements or time schedules may be mandatorily applicable.
See§11.04[D][1].
1887) The United States, England, Switzerland, France and Singapore generally fall within
this latter category.
1888) See§11.05 for a discussion of the choice of law applicable to the arbitral
proceedings.
1889) See§11.04[B][2]; §11.05.
1890) See§19.03.
1891) See§19.03[D][3][b]-§19.03[D][3][e].
1892) See§4.04[A][1][b][i]; §4.04[A][2][j][v].
1893) For commentary, see Alcolea, Arbitration as Ius Gentium: A Scholastic Theory of
Arbitration, 13 Contemp. Asia Arb. J. 409, 420-24 (2020); Carlston, Theory of the
Arbitration Process, 17 Law & Contemp. Probs. 631 (1952); E. Gaillard, Legal Theory of
International Arbitration (2010); C. Jarrosson, La Notion d’Arbitrage (1987); A. Kassis,
Problèmes de Base de l’Arbitrage en Droit Comparé et en Droit International I:
Arbitrage Juridictionnel et Arbitrage Contractuel (1987); F.-E. Klein, Considérations sur
l’Arbitrage en Droit International Privé ¶113 (1955); Moreira, The Détachement of
International Arbitration: Reflections on the Existence of An Arbitral Order Détaché,
2016 Revista Brasileira de Arbitragem 13, 68; J. Paulsson, The Idea of Arbitration
(2013); J. Paulsson, Arbitration in Three Dimensions (2011); J. Rubellin-Devichi,
L’Arbitrage: Nature Juridique, Droit Interne et Droit International Privé (1965); A.
Samuel, Jurisdictional Problems in International Commercial Arbitration 32-74 (1989);
Sauser-Hall, L’Arbitrage en Droit International Privé, 44-I Annuaire de l’Institut de
Droit International 469 (1952).
1894) See Barry, The Role of the Seat in International Arbitration: Theory, Practice, and
Implications for Australian Courts, 32 J. Int’l Arb. 289 (2015); Belohlavek, Importance
of the Seat of Arbitration in International Arbitration: Delocalization and
Denationalization of Arbitration as An Outdated Myth, 31 ASA Bull. 262 (2013);
Bermann, The Self-Styled ‘Autonomy’ of International Arbitration, 36(2) Arb. Int’l 221
(2020); Brazil-David, Harmonization and Delocalization of International Commercial
Arbitration, 28 J. Int’l Arb. 445 (2011); E. Gaillard, Legal Theory of International
Arbitration (2010); J. Paulsson, The Idea of Arbitration (2013); Racine, Réflexions sur
l’Autonomie de l’Arbitrage Commercial International, 2 Rev. Arb. 305 (2005).
1895) Balladore-Pallieri, L’Arbitrage Privé dans les Rapports Internationaux, 51 Recueil
des Cours 287, 316 (1935); J. Fœlix, Traité du Droit International Privé 461 (2d ed.
1847); P. Merlin, 9 Recueil Alphabétique des Questions de Droit 139, 143-49 (1829).
1896) P. Merlin, 9 Recueil Alphabétique des Questions de Droit 139, 145 (1829), quoted in A.
Samuel, Jurisdictional Problems in International Commercial Arbitration 34 (1989).
See also Judgment of 27 July 1937, 1938 Dalloz 25 (French Cour de Cassation Civ.)
(“arbitral awards, which have, as their basis, an arbitration agreement, form one
entity with it and share its contractual character”); G. Petrochilos, Procedural Law in
International Arbitration 25, 28 (2004) (“An arbitrator is not dispensing justice by
delegation of any state”; “An arbitrator carries the jurisdictional authority of no
particular state”).
1897) P. Fouchard, L’Arbitrage Commercial International ¶19 (1965); F.-E. Klein,
Considerations sur l’Arbitrage en Droit International Privé ¶115 (1955).
209
1898) Balladore-Pallieri, L’Arbitrage Privé dans les Rapports Internationaux, 51 Recueil
des Cours 187 (1935). See J. Niboyet, VI Traité de Droit International Privé Français: Le
Conflit des Atorités, le Conflit des Jurisdictions 135 (1947) (“The arbitrator metes out
justice – which is always a prerogative of the local sovereign. Each state
determines pursuant to what requirements arbitral justice may be rendered in its
territory and exclude the jurisdiction of its courts. Arbitrators therefore mete out
justice by delegation from the sovereign of the territory …”); Laine, De l’Exécution
en France des Sentences Arbitrales Étrangères, 26 J.D.I. (Clunet) 641, 653-54 (1899); A.
Pillet, 2 Traité Pratique de Droit International Privé 537 (1924) (“The arbitration
agreement is necessary to give the arbitrators their authority, but once that
authority has been conferred on them, provided they keep within the limits of the
task given to them, their freedom is absolute and the arbitration agreement has no
influence on their award which is based on quite different matters …”).
1899) H. Motulsky, Écrits: Études et Notes sur l’Arbitrage 46 (1974). See also id. (“Once a
claim is submitted to a person invested by the law with the power to accept or
reject the claim by the application of a rule of law, one is in the presence of a
jurisdiction”); S. Contini, L’Arbitrage en Procedure Civile Vaudoise 13 (1951).
1900) See authorities cited at §2.02[C][2][a]; §2.02[C][4]; §13.02[G].
1901) Mann, State Contracts and International Arbitration, 42 Brit. Y.B. Int’l L. 1, 10-11
(1967).
1902) Mann, Lex Facit Arbitrum, reprinted in 2 Arb. Int’l 241 (1986).
1903) Carlston, Theory of the Arbitration Process, 17 Law & Contemp. Probs. 631, 635 (1952);
Rau, The Culture of American Arbitration and the Lessons of ADR, 40 Tex. Int’l L.J. 449,
451 (2005) (“dual nature” of arbitration: “An arbitration is from one perspective an
exercise of private ordering – it is formed by private agreement, and the particular
shape it takes is a result of conscious private choice. And at the same time, from
another angle, it is an exercise in adjudication – resulting in an award that the
force of the state makes obligatory on the litigants in much the same way as the
judgment of a public tribunal”); Sauser-Hall, L’Arbitrage de Droit International Privé,
44-I Annuaire de l’Institut de Droit International 469, 471 (1952), quoted in A.
Samuel, Jurisdictional Problems in International Commercial Arbitration 60 (1989); P.
Schlosser, Das Recht der Internationalen Privaten Schiedsgerichtsbarkeit ¶40 (1989);
Surville, Jurisprudence Française en Matière de Droit International, 29 Revue Critique
de Législation et de Jurisprudence 129, 148 (1900).
1904) Sauser-Hall, L’Arbitrage de Droit International Privé, 44-I Annuaire de l’Institut de
Droit International 469 (1952), quoted in A. Samuel, Jurisdictional Problems in
International Commercial Arbitration 60 (1989). See also Carlston, Theory of the
Arbitration Process, 17 Law & Contemp. Probs. 631, 635 (1952) (“The statement that
arbitration is a creature of the parties, that its occurrence, form and scope are
dependent on the will and consent of the parties, is but part of the truth”).
1905) A. Samuel, Jurisdictional Problems in International Commercial Arbitration 62-63
(1989).
1906) J. Rubellin-Devichi, L’Arbitrage: Nature Juridique, Droit Interne et Droit International
Privé 365 (1965) (“In order to allow arbitration to enjoy the expansion it deserves,
while all along keeping it within its appropriate limits, one must accept, I believe,
that its nature is neither contractual, nor jurisdictional, nor hybrid, but
autonomous”).
1907) See P. Fouchard, L’Arbitrage Commercial International (1965); E. Gaillard, Legal
Theory of International Arbitration (2010); Goldman, Les Conflits de Lois dans
l’Arbitrage International de Droit Privé, 109 Recueil des Cours 347 (1963).
1908) Gaillard, Legal Theory of International Arbitration ¶40 (2010). See also Belohlavek,
Importance of the Seat of Arbitration in International Arbitration: Delocalization and
Denationalization of Arbitration as An Outdated Myth, 31 ASA Bull. 262, 268 (2013)
(“the delocalization theory endeavors to separate international arbitration from
the law of the state in whose territory the arbitral proceedings are conducted”).
1909) See§3.02[B][2]; §3.02[B][3][b]; Judgment of 7 October 1933, Tobler v. Justizkommission
des Kantons Schwyz, DFT 59 I 177, 179 (Swiss Fed. Trib.); Judgment of 28 May 1915, Jörg
v. Jörg, DFT 41 II 534 (Swiss Fed. Trib.).
1910) See§4.04[A][2][a]; The Eros, 241 F. 186, 191 (E.D.N.Y. 1916) (Hand, J.) (“a general
arbitration clause … goes to the remedy, not to the rights, of the parties, and … its
effect is to be determined by the law of the forum”), aff’d, 251 F. 45 (2d Cir. 1916);
Meacham v. Jamestown, Franklin & Clearfield R.R., 211 N.Y. 346, 352 (N.Y. 1914)
(Cardozo, J., concurring).
1911) See§1.01[B][2] & §1.01[B][5]; §2.02[C][1][b][i]; §11.03.
1912) See§4.04[B][2][b][ii]; §11.03[B]; §15.02.
1913) See§1.02 (especially §1.02[A][2]); §1.04[E]; §2.01[A][1]; §5.04[E].
1914) See§5.06[A][3].
1915) That includes in defining the arbitrators’ powers and jurisdiction and specifying
the arbitral procedures and applicable substantive law. See§13.01.
1916) See§23.02[B][1]; §24.02[B][3]; §25.04[A] & §25.04[C]; §26.05[C][1].
1917) See§2.02[C][1] (especially §2.02[C][1][b]); §2.02[D].
1918) The “judicial” character of arbitration and the arbitrator’s mandate are discussed
below. See§2.02[C][2][a]; §13.02[G].
1919) See§27.01[B][2].
1920) See§1.01[B][1].
210
1921) See§1.01[C][1]-§1.01[C][2]; §1.04[A][1][a].
1922) See§1.01[C][1]-§1.01[C][2]; §1.04[A][1][a].
1923) See§1.04[B][1][a].
1924) See§1.02.
1925) See id. (especially §1.02[B]).
1926) See§20.01 for a discussion of the confidentiality or privacy of international
arbitrations.
1927) See§20.03. Both awards and submissions during the arbitration are much less likely
to be confidential (and instead to be publicly available) in investment arbitration.
See§20.11[A].
1928) There is extensive commentary on international arbitration. For bibliographies,
see, e.g., L. Brown, Selected Bibliography of International Commercial Arbitration:
1970-1978 (1978); Hiramoto, A Path to Resources on International Commercial
Arbitration 1980-1986, 4 Int’l Tax & Bus. Law. 297 (1986); Jolivet, Access to
Information and Awards, 22 Arb. Int’l 265 (2006); F. Sander & F. Snyder, Alternative
Methods of Dispute Settlement: A Selected Bibliography (1979 & 1982 Rev.); H. Smit, L.
Mistelis & M.H. Mourra, Pechota Bibliography on Arbitration (2d ed. 2018); Strong,
Research in International Commercial Arbitration: Special Skills, Special Sources, 20
Am. Rev. Int’l Arb. 119 (2009).
1929) L. Bosman (ed.), International Handbook on Commercial Arbitration (2020 &
Update February 2022).
1930) J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2016-
2020 (2022); J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC Arbitral
Awards 2012-2015 (2019); J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of
ICC Arbitral Awards 2008-2011 (2013); J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Collection of ICC Arbitral Awards 2001-2007 (2009); J.-J. Arnaldez, Y. Derains & D.
Hascher (eds.), Collection of ICC Arbitral Awards 1996-2000 (2003); J.-J. Arnaldez, Y.
Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 1990-1995 (1997); S.
Jarvin, Y. Derains & J.-J Arnaldez (eds.), Collection of ICC Arbitral Awards 1986-1990
(1994); S. Jarvin & Y. Derains (eds.), Collection of ICC Arbitral Awards 1974-1985 (1990).
1931) D. Hascher (ed.), Collection of Procedural Decisions in ICC Arbitration 1993-1996
(1997); ICC, Procedural Decisions in ICC Arbitrations (2015).
Commercial Arbitration (1999).
1933) See N. Blackaby et al. (eds.), Redfern and Hunter on International Arbitration (6th ed.
2015); N. Blackaby et al. (eds.), Redfern and Hunter on International Arbitration (5th
ed. 2009); A. Redfern & M. Hunter (eds.), Law and Practice of International
Commercial Arbitration (4th ed. 2000).
1934) W. Craig, W. Park & J. Paulsson, International Chamber of Commerce Arbitration (3d
ed. 2000 & Supp. 2015).
1935) Y. Derains & E. Schwartz, A Guide to the ICC Rules of Arbitration (2d ed. 2005).
1936) J. Fry, S. Greenberg & F. Mazza, The Secretariat’s Guide to ICC Arbitration (2012).
1937) See M. Bühler & T. Webster, Handbook of ICC Arbitration: Commentary and Materials
(5th ed. 2021); J. Grierson & A. van Hooft, Arbitrating Under the 2012 ICC Rules (2012);
E. Schäfer, H. Verbist & C. Imhoos, ICC Arbitration in Practice (2015).
1938) A. van den Berg, The New York Arbitration Convention of 1958 (1981).
1939) K. Fach Gomez & A. Lopez-Rodriguez (eds.), 60 Years of the New York Convention:
Key Issues and Future Challenges (2019); A. Frischknecht, Y. Lahlou & G. Walters,
Enforcement of Foreign Arbitral Awards and Judgments in New York (2018); H.
Kronke et al., Recognition and Enforcement of Foreign Arbitral Awards: A Global
Commentary on the New York Conventi... (2010); M. Paulsson, The 1958 New York
Convention in Action (2016); R. Wolff (ed.), New York Convention: Article-by-Article
Commentary (2d ed. 2019).
1940) H. Holtzmann & J. Neuhaus, A Guide to the UNCITRAL Model Law on International
Commercial Arbitration: Legislative History and C... (1989); See also H. Holtzmann et
al., A Guide to the 2006 Amendments to the UNCITRAL Model Law on International
Commercial Arbitration: Le... (2015).
1941) L. Edmonson (ed.), Domke on Commercial Arbitration (3d ed. 2010 & Updates 2019).
1942) For commentary, see C. Brower & J. Brueschke, The Iran–United States Claims
Tribunal (1998); C.R. Drahozal & C.S. Gibson (eds.), The Iran–U.S. Claims Tribunal at
25: The Cases Everyone Needs to Know for Investor-State & International Arbitration
(2007); R. Khan, The Iran–United States Claims Tribunal: Controversies, Cases, and
Contribution (1990); R. Lillich, The Iran–United States Claims Tribunal 1981-83 (1984);
J. Westberg, International Transactions and Claims Involving Government Parties:
Case Law of the Iran–United States Claims Tribunal (1991).
1943) Bilateral claims commissions to resolve claims of nationals of one state against
another state have frequently been established, particularly following armed
conflicts, between European and American states. See§1.01[A][5].
1944) See Algiers Accords, 1 Iran–US CTR 3 (1981-82).
1945) The decisions are important precedents on issues of both substantive international
law and arbitral procedure. They are available from the Iran–United States Claims
Tribunal Reports and Mealey’s Iranian Assets Litigation Reporter.
1946) Case Law on UNCITRAL Texts: UNCITRAL Model Law on International Commercial
Arbitration, available at www.uncitral.org/uncitral/en/case_law.html.
211
1947) Seewww.newyorkconvention1958.org.
1948) See, e.g., www.newyorkconvention.org.
1949) The forum can be contacted at www.dundee.ac.uk/cepmlp; alternatively, CEPMLP,
Carnegie Building, University of Dundee, Dundee, DD1 4HN, Scotland, Tel: +44 (0) 13
82 38 43 00.
1950) The Swedish Arbitration Portal can be found at
www.arbitration.sccinstitute.com/Swedish-Arbitration-Portal.
1951) The new platform is hosted at www.swissarbitration.org.
1952) The Arbitration Toolbox is available at
www.toolbox.swissarbitration.org/toolbox/home.
212
Document information Part I: International Arbitration Agreements
The foundation of almost every international arbitration – and of the international
arbitral process itself – is an international arbitration agreement. In the words of one
Publication award, “[a]rbitration is a consensual process and depends upon the existence of a valid
International Commercial agreement to arbitrate.” (1) Absent a valid agreement to arbitrate, there are no legal
Arbitration (Third Edition) grounds for requiring a party to arbitrate a dispute or for enforcing an arbitral award
against a party. (2) “Arbitration ‘is a matter of contract and a party cannot be required to
submit to arbitration any dispute which he has not agreed to so submit.’” (3)
Bibliographic International arbitration agreements can take in countless forms. Typically, an
reference arbitration agreement is a provision in an underlying commercial contract, requiring
arbitration of any future disputes relating to the contract. (4) Such a provision can be
'Part I: International either short and standardized or longer and tailor-made for a particular transaction. As
Arbitration Agreements', in models of brevity, if not prudence, European commentators sometimes cite clauses that
Gary B. Born , International P 252 provided “English law – arbitration, if any, London according ICC Rules,” (5) and
Commercial Arbitration “Arbitration – Hamburg, Germany.” (6) A U.S. counterpart read: “Arbitration; if required in
(Third Edition), 3rd edition New York City.” (7)
(© Kluwer Law
International; Kluwer Law At the opposite end of the spectrum are multi-paragraph arbitration provisions,
International 2021) pp. 251 - recommended by assiduous practitioners for inclusion in major commercial contracts, or
254 specially-drafted for a particular transaction. It is also possible for entire agreements to
be devoted exclusively to the arbitration of disputes under a series of related contracts,
typically involving multiple parties. (8) Falling between these extremes are model
clauses promulgated by leading international arbitral institutions, including the
International Chamber of Commerce (“ICC”), the Singapore International Arbitration
Centre (“SIAC”), the International Center for Dispute Resolution (“ICDR”) and the London
Court of International Arbitration (“LCIA”), which provide generic, but typically concise
and well-tested, formulae. (9)
Whatever form they take, international arbitration agreements are vitally important to
the international arbitral process. Properly drafted, they can provide the basis for a
relatively smooth and efficient arbitration; less carefully drafted, they can give rise to a
host of legal and practical issues; badly drafted, arbitration agreements can be
pathological, (10) either incapable of enforcement or precursors to uncertain and costly
litigation in national courts.
The Chapters which follow in this Part explore the principal legal and practical issues
arising from international arbitration agreements.
Chapter 2 discusses the legal framework for international arbitration agreements. It
begins by summarizing the basic rule of presumptive validity of international arbitration
agreements under contemporary international arbitration conventions (particularly the
New York Convention, the European Convention and the Inter-American Convention) and
national arbitration legislation (particularly the UNCITRAL Model Law, the U.S. Federal
Arbitration Act (“FAA”) and the main European, Asian and other arbitration regimes). The
Chapter then addresses the question of what constitutes an “arbitration agreement,”
which will be subject to the pro-arbitration legal regimes established by contemporary
international arbitration conventions and legislation. Finally, the Chapter addresses a
number of jurisdictional requirements of these conventions and legislation, including
requirements that the arbitration agreement concern a “commercial” relationship, an
P 253 “international” matter and a “defined legal” relationship, which are also conditions for
the applicability of such conventions and national legislation.
Chapter 3 discusses the universally-recognized principle that international arbitration
agreements are presumptively separable or autonomous from the underlying contract(s)
with which they are associated. The Chapter details the historic development,
contemporary acceptance and legal bases of the “separability presumption,” as well as
the presumption’s various consequences for the recognition and enforcement of
Chapter 4 addresses the choice of the law governing international arbitration
agreements. It details the consequences of the separability presumption for choice-of-
law analysis, and describes the principal conflict of laws rules applied to international
arbitration agreements, including the law of the arbitral seat, the law governing the
underlying contract and the law of the state with which the arbitration agreement has its
“closest connection.” The Chapter also discusses the potential applicability of uniform
international substantive rules of formation and validity to such agreements, either as
generally-applicable law or as international limits on national law rules. In addition, the
Chapter examines the applicability of a “validation principle,” under both the New York
Convention and leading national arbitration statutes, to the substantive and formal
validity of international arbitration agreements.
Chapter 5 discusses the substantive rules governing the formation, validity and legality of
international arbitration agreements. The Chapter addresses the formal validity of
international arbitration agreements, including requirements under the New York
Convention and national arbitration legislation for a “writing.” The Chapter also describes
the rules of substantive law applicable to issues of formation, including standards of
proof and questions of consent, and to issues of capacity and substantive validity,
213
including fraud, unconscionability, duress, mistake, termination and illegality. It
concludes by addressing questions of compliance with pre-arbitral procedural
requirements and waiver of rights to arbitrate.
Chapter 6 considers the so-called “nonarbitrability” doctrine (or, alternatively titled, the
doctrine of “objective arbitrability”) and related issues of public policy. The Chapter
examines the differences between the nonarbitrability doctrine and the validity, legality
and enforceability of international arbitration agreements. It also examines the bases on
which international arbitration agreements have been declared nonarbitrable under
national law, as well as limitations imposed by the New York Convention and other
international instruments on the doctrine.
Chapter 7 addresses the authority of an international arbitral tribunal to consider and
decide disputes over the arbitrators’ own jurisdiction, including disputes over the
existence, validity and interpretation of the parties’ arbitration agreement. This question
is the subject-matter of the so-called “competence-competence” doctrine (also referred
to as “Kompetenz-Kompetenz” or “jurisdiction to decide jurisdiction”); the Chapter
examines the bases for this doctrine in leading international arbitration conventions and
other sources of authority. The Chapter also examines the allocation of competence to
resolve jurisdictional challenges to international arbitration agreements between
arbitral tribunals and national courts, focusing on the divergent approaches to this issue
in different national legal systems.
Chapter 8 discusses the legal effects of international arbitration agreements and the
mechanisms for enforcing those agreements. It considers both the positive duties (e.g.,
the obligation to participate in good faith and cooperatively in arbitral proceedings) and
negative duties (e.g., the obligation to refrain from litigating arbitrable disputes)
imposed by arbitration agreements. The Chapter also examines the various means by
which these obligations are given effect, including stays of litigation, orders compelling
P 254 arbitration, damages actions, antisuit injunctions and non-recognition of judgments
procured in breach of a valid arbitration agreement.
Chapter 9 addresses the interpretation of international arbitration agreements. It
considers the rules applicable to interpreting the scope of arbitration agreements which
have been developed in different national legal systems. The Chapter also addresses the
exclusivity of international arbitration agreements, as well as issues concerning the
mandatory or optional nature of arbitration agreements.
Chapter 10 discusses issues relating to the identities of the parties to international
arbitration agreements. In particular, it examines the various legal theories that have
been used to give binding effect to arbitration agreements vis-à-vis non-signatories,
including agency, alter ego status, the group of companies theory, estoppel, guarantor
relations, third party beneficiary rights and miscellaneous other grounds. The Chapter
also examines the choice of law governing the foregoing issues and the allocation of
P 254 competence to decide such disputes between national courts and arbitral tribunals.
References
1) Award in ICC Case No. 7929, XXV Y.B. Comm. Arb. 312, 316 (2000). See alsoWatkins-
Johnson Co. v. Iran, Award in IUSCT Case No. 429-370-1 of 28 July 1989, 22 Iran–US CTR
218, 296 (1989) (Noori, J., dissenting) (“There can be no doubt that arbitrations,
whether international or between subjects of private law, derive their mandate and
competence from the consent and agreement of the parties to the arbitral
agreement; therefore, it is the parties’ consent that determines the scope, limits and
area of certitude of an arbitrator’s authority and jurisdiction”); Reilyv. Russell, 34 Mo.
524, 528 (Mo. 1864) (arbitration rests on the “will and consent of the parties litigant”);
H v. L [2017] EWHC 137 (Comm) (English High Ct.) (“arbitration is a consensual process
derived from the arbitration agreement between the parties, and the principle of
party autonomy”); ElektrimSA v. Vivendi Universal SA [2007] EWHC 571 (QB) (English
High Ct.) (“Arbitrations … are the result of agreements between … parties to resolve
legal disputes through a private impartial tribunal. Such arbitrations are, by
definition, consensual.”); Judgment of 3 October 2000, DFT 4P.60/2000, ¶3(a) (Swiss
Fed. Trib.) (“Among other prerequisites, an arbitral tribunal has jurisdiction only in
case the dispute is within the scope of the arbitration agreement”); Judgment of 3 July
1975, 1978 NJW 109, 110 (German Bundesgerichtshof) (“While the citizen is subject to
the jurisdiction of the state courts by virtue of public law set by the state, the arbitral
proceedings … are always the consequence of a private legal act, be it – as here – an
agreement, be it a final will or the articles of an association”).
2) See §5.04[A], §8.02, §25.04[A], §26.05[C][1]. There are a few instances where arbitration
of international disputes may be compelled even absent a traditional arbitration
agreement, typically by virtue of international investor protection treaties. Even in
these instances, there is an agreement to arbitrate between the parties. See C.
Schreuer et al., The ICSID Convention: A Commentary Art. 25, ¶¶392-468 (2d ed. 2009).
214
3) Howsamv. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (U.S. S.Ct. 2002) (quoting
Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (U.S. S.Ct. 1960));
EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (U.S. S.Ct. 2002) (“Arbitration under the
[FAA] is a matter of consent, not coercion”).
4) It is also possible for parties to an existing dispute, not otherwise subject to
arbitration, to agree to submit that dispute to arbitration. The agreement doing so is
typically a stand-alone arbitration agreement, often called a “submission
agreement” or “compromis.” See, for example, the model submission agreements,
excerpted in G. Born, International Arbitration and Forum Selection Agreements:
Drafting and Enforcing Appendix B (5th ed. 2016); P. Friedland, Arbitration Clauses for
International Contracts 112-14 (2d ed. 2007).
5) Arab African Energy Corp. Ltd v.OlieproduktenNederland BV [1983] 2 Lloyd’s Rep. 419
(QB) (English High Ct.).
6) Judgment of 24 January 2003, 2003 SchiedsVZ 284, 287 (Oberlandesgericht Hamburg).
7) Oriental Commercial & Shipping Co.v.Rosseel, NV, 609 F.Supp. 75 (S.D.N.Y. 1985). See
alsoSchulze & Burch Biscuit Co. v. Tree Top, Inc., 831 F.2d 709, 715-16 (7th Cir. 1987) (“All
disputes under this transaction shall be arbitrated in the usual manner”); Bauer Int’l
Corp. v.EtablissementsSoules & Cie., 303 N.Y.S.2d 884 (N.Y. 1969) (“Arbitration in New
York”).
8) This is most likely to occur in complex transactions (such as infrastructure projects,
construction projects, or major intellectual property matters), with multiple parties
and multiple agreements, where a single, unified dispute resolution scheme is
desired. See §18.02; ICC, Multi-Party Arbitration: Views from International Arbitration
Practitioners (1991); Nicklish, Multi-Party Arbitration and Dispute Resolution in Major
Industrial Projects, 11(4) J. Int’l Arb. 57 (1994); Wetter, A Multi-Party Arbitration Scheme
for International Joint Ventures, 3 Arb. Int’l 2 (1987).
Enforcing Appendix C (5th ed. 2016); P. Friedland, Arbitration Clauses for International
Contracts 1-3 (2d ed. 2007); J. Paulsson, N. Rawding & L. Reed, The Freshfields Guide to
Arbitration and ADR: Clauses in International Contracts 131-43 (3d ed. 2011).
10) See §5.04_[D]; Eisemann, La Clause d’Arbitrage Pathologique, in Commercial
Arbitration Essays in Memorium Eugenio Minoli 129 (1974); Schmitthoff, Defective
Arbitration Clauses, 1975 J. Bus. Law 9.
215
Document information Part II: International Arbitral Procedures
(1)
Publication At the heart of the international arbitral process are the arbitration proceedings and
International Commercial procedures. (2) It is the procedural conduct of international arbitrations, as much as
Arbitration (Third Edition) other factors, that leads parties to agree to arbitrate their disputes. In particular, parties
agree to arbitrate in order to obtain fair and neutral procedures which are expert,
efficient and capable of being tailored to the needs of their particular dispute, without
being bound by the formalities and technicalities of procedural rules applicable in
Bibliographic national courts. (3)
reference In many cases, the aspirations of the parties are realized, with the arbitrators adopting
'Part II: International prompt, fair and predictable procedures, without adhering to any particular domestic
Arbitral Procedures', in approach to national court litigation. These procedures combine the best of different
Gary B. Born , International national procedural traditions, together with international innovations, tailored to the
Commercial Arbitration parties’ needs and dispute. Nonetheless, in some cases obstructionist parties,
(Third Edition), 3rd edition inexperienced arbitrators or other factors can produce chaotic, arbitrary, slow, or
(© Kluwer Law inappropriately parochial arbitral proceedings. The Chapters in this Part examine the
International; Kluwer Law procedural conduct of international commercial arbitrations and the mechanisms which
International 2021) pp. 1643 exist to ensure that arbitral procedures are efficient, expert and fair, rather than
- 1646 arbitrary, slow, or parochial.
Chapter 11 examines the legal framework applicable to the arbitral proceeding and, in
particular, the importance of the “arbitral seat” and the “procedural law” of the
arbitration (also referred to as the “curial law” or “lex arbitri”). The Chapter first outlines
the general procedural autonomy accorded parties to international arbitration
agreements under both contemporary international arbitration conventions and national
arbitration legislation. Second, the Chapter summarizes the jurisdictional requirements
that must be satisfied for application of the New York Convention (and other
international arbitration conventions), as well as national arbitration legislation, to an
international arbitration. Third, the Chapter describes the concept of the arbitral seat
and the issues governed by the law of the arbitral seat, as well as the role of the New York
Convention in limiting the effects of the arbitral seat’s law. Fourth, the Chapter addresses
the procedural law of the arbitration and the various issues that are governed by that
P 1644 law. Finally, the Chapter discusses the conflict of law issues that arise in identifying the
procedural law of an arbitration, and the choice-of-law rules that have been developed
to address these issues.
Chapter 12 addresses the selection of arbitrators and constitution of the arbitral tribunal
in international commercial arbitrations. First, the Chapter discusses the number of
arbitrators in international arbitral proceedings, from both a practical and legal
perspective. Second, the Chapter addresses the parties’ autonomy to select arbitrators
(or to agree upon a means of selecting arbitrators). Third, the Chapter considers various
limitations on the choice of arbitrators, including nationality, capacity and contractual
limitations or requirements. Fourth, the Chapter considers the related topic of the
impartiality and independence of arbitrators, including under contemporary
international conventions and national law, as well as under the IBA Guidelines on
Conflicts of Interest in International Arbitration. Fifth, the Chapter considers the
procedures which are commonly utilized for selecting the members of the arbitral
tribunal in contemporary international commercial arbitrations, including the role of
arbitral institutions and national courts in the selection process. Finally, the Chapter
examines the procedures for challenging, removing and replacing arbitrators, under both
national arbitration statutes and institutional rules.
Chapter 13 discusses the rights and duties of arbitrators in international commercial
arbitrations. The Chapter first addresses the duties that are owed by international
arbitrators, including discussion of the arbitrator’s contract and other legal sources of
such obligations. The Chapter next discusses the substantive content of such duties,
including the arbitrators’ duties of impartiality, diligence and confidentiality. The
Chapter also addresses the rights and protections of international arbitrators, including
particularly the immunities of arbitrators.
Chapter 14 examines the selection of the arbitral seat in international commercial
arbitrations. It first discusses the importance of the arbitral seat, from both practical and
legal perspectives. The Chapter then addresses the parties’ autonomy to select the
arbitral seat, both directly and through the offices of an arbitral institution or arbitral
tribunal. Finally, the Chapter discusses the (limited) role of national courts in the
selection of the arbitral seat.
Chapter 15 discusses the procedural conduct of contemporary international commercial
arbitrations. It first outlines the basic objectives and characteristics of the international
arbitral process, as compared with and distinguished from judicial procedures in
national courts. The Chapter then examines the parties’ autonomy to agree upon the
procedural rules governing the arbitration and the arbitral tribunal’s discretion to order
particular procedures (absent contrary agreement); it also considers the general
principle, recognized under most developed national laws, of judicial non-interference in
arbitral proceedings. Finally, the Chapter discusses how, as a practical matter,
216
international arbitral tribunals treat subjects such as written submissions, disclosure,
hearings, evidence presentation (including fact and expert witnesses), post-hearing
submissions and the other major procedural steps in an arbitration.
Chapter 16 examines the role of disclosure (or, as sometimes termed, discovery) in
international commercial arbitrations. The Chapter first addresses the disclosure powers
of arbitral tribunals under contemporary national arbitration statutes and institutional
arbitration rules. It also discusses the manner in which these powers are exercised in
practice, including under the IBA Rules on the Taking of Evidence in International
Commercial Arbitration. Finally, the Chapter considers the role of national courts in
ordering discovery or disclosure in connection with or in aid of international arbitrations.
Chapter 17 deals with the subject of provisional (or interim) relief in international
commercial arbitrations. The Chapter first explores the extent to which international
arbitral tribunals and emergency arbitrators are authorized to grant provisional relief
and the circumstances in which they will do so. Next, the Chapter considers when
P 1645 national courts may grant provisional relief in aid of international arbitrations
(whether concurrently with arbitral tribunals or independently). Finally, the Chapter
considers the enforceability in national courts of provisional measures ordered by
international arbitral tribunals.
Chapter 18 addresses the procedural treatment of multi-party disputes in international
commercial arbitrations, including the subjects of consolidation, intervention and
joinder. The Chapter first considers when two or more different arbitrations may be
consolidated into a single arbitral proceeding. It then considers the joinder of parties,
and the intervention of parties, into an international arbitration. In each case, the
Chapter addresses the treatment of consolidation, joinder and intervention by both
arbitral tribunals and national courts.
Chapter 19 examines the choice of the substantive law applicable to the merits of the
parties’ underlying dispute in international commercial arbitrations. It first considers the
choice of substantive law by international arbitrators in the absence of express
agreement by the parties as to the governing law. Second, the Chapter considers the
choice of substantive law where the parties have agreed upon an applicable law,
including the validity and interpretation of choice-of-law agreements and the role of
mandatory laws and public policies. In both situations, the Chapter examines what
conflict of law principles apply – both to selecting the applicable substantive law and to
determining the enforceability and meaning of a governing law clause.
Chapter 20 deals with the confidentiality of international arbitrations and arbitral
proceedings. It examines the nature and scope of confidentiality obligations in
international commercial arbitration, including the divergent approaches that are taken
on the subject in different national jurisdictions and institutional arbitration rules. The
Chapter also considers confidentiality in investor-state arbitrations.
Chapter 21 addresses the subject of representation of parties in international arbitral
proceedings. The Chapter begins with a description of the provisions of international
arbitration conventions, national law and institutional arbitration rules guaranteeing
parties the right to representation of their choice in international commercial
arbitrations (particularly legal representation), as well as deviations from this guarantee.
The Chapter also discusses the rules of professional conduct governing legal
representatives in international arbitrations, including issues of conflict of interest,
privilege, witness preparation, candor to the tribunal and the like. In addition, the
Chapter considers issues of forum selection for disputes regarding legal representation in
P 1645 international commercial arbitrations.
References
1) For commentary on international arbitral proceedings and procedures generally, see
R. Bishop & E. Kehoe (eds.), The Art of Advocacy in International Arbitration (2d ed.
2010); N. Blackaby et al. (eds.), Redfern and Hunter on International Arbitration Chapters
4-7 (6th ed. 2015); D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary
(2d ed. 2013); T. Giovannini & A. Mourre (eds.), Written Evidence and Discovery in
International Arbitration (2009); M. Kurkela & S. Turunen, Due Process in International
Commercial Arbitration (2d ed. 2010); L. Newman & T. Nelson (eds.), Take the Witness:
Cross Examination in International Arbitration (2d ed. 2019); G. Petrochilos, Procedural
Law in International Arbitration (2004); A. van den Berg (ed.), International Dispute
Resolution: Towards An International Arbitration Culture (1998); J. Waincymer, Procedure
and Evidence in International Arbitration (2012); T. Webster, Handbook of UNCITRAL
Arbitration (3d ed. 2019).
2) G. Wetter, IV The International Arbitral Process: Public and Private 288 (1979)
(“arbitration as a subject is procedure”) (emphasis in original).
3) See §15.01.
217
Document information Part III: International Arbitral Awards
The final steps in the arbitral process involve the arbitral award. Once the arbitral
proceedings are concluded, the tribunal will deliberate and make a final award, granting
Publication (or withholding) relief on the parties’ claims and resolving their dispute. Arbitral awards
International Commercial are not “advisory” recommendations; rather, awards are final and binding legal
Arbitration (Third Edition) instruments, having immediate legal effects and creating immediate rights and
obligations for the parties. (1)
With the making of the final award, the arbitral tribunal’s original mandate concludes.
Bibliographic The tribunal becomes functus officio and its remaining responsibilities, and powers, are
reference highly circumscribed. Further actions with respect to the award, including any post-award
proceedings, are almost always matters for the parties and national courts, and not for
'Part III: International the arbitral tribunal. (2)
Arbitral Awards', in Gary B.
Born , International In practice, the vast majority of awards in international commercial arbitrations are
Commercial Arbitration voluntarily complied with, without the need for post-award enforcement proceedings.
(Third Edition), 3rd edition Nevertheless, one (or both) parties sometimes reject the arbitral tribunal’s decisions, and
(© Kluwer Law refuse to pay amounts awarded or otherwise to comply with the tribunal’s award. In these
International; Kluwer Law circumstances, post-award proceedings will ensue, either challenging or seeking to
International 2021) pp. 3139 enforce the award.
- 3142
International arbitration conventions and national arbitration legislation provides a
robust, “pro-enforcement” legal framework governing post-award proceedings. This legal
framework permits parties to seek limited revisions of arbitral awards, in proceedings
before the arbitral tribunal to “correct” or “interpret” its award, but only in very narrow
circumstances. (3) This framework also permits the award-debtor to challenge the
arbitral award, in proceedings before the courts of the arbitral seat to “annul” or “set
aside” the award, but again only in defined and limited circumstances. (4)
At the same time, the legal framework for international arbitral awards permits the
award-creditor to commence proceedings in the courts of the arbitral seat to “confirm” or
“recognize” the award (i.e., to obtain exequatur). The successful confirmation of the award
will usually provide the basis for the entry of a judgment of the local national court based
upon the underlying award. (5) After confirmation of an award in the arbitral seat, the
resulting judgment can be “confirmed” or “recognized,” and then “enforced” in local
courts in the arbitral seat, with enforcement typically occurring in the same manner as a
domestic court judgment. (6) In addition, an award can also be taken by the award-
creditor to a state outside the arbitral seat, to be “recognized” (and then “enforced”) in
the courts of that state, without first being confirmed or recognized in the arbitral seat.
Recognition of a foreign arbitral award occurs in the form of a local national court
judgment, which gives the award full legal force within the local legal system (in the same
P 3140 manner that a foreign judgment is recognized). (7)
Once the award is recognized in a foreign state, the resulting judgment can then
ordinarily be given effect in the local courts of that state in the same manner as a
judgment of that state’s courts. This includes coercively “enforcing” or “executing” the
award/judgment against the assets of the award/judgment-debtor, in accordance with
local legislation and rules governing the execution and enforcement of judgment. (8) It
also includes giving the award/judgment preclusive effect in the courts of the foreign
state, presumptively in accordance with local legislation regarding the preclusive effects
of foreign awards and/or judgments. (9)
The Chapters in this Part address the status, effects and treatment of arbitral awards in
Chapter 22 discusses the legal framework applicable to international arbitral awards. It
introduces the legal effects of international awards and the post-award proceedings that
are available to correct, interpret, supplement, confirm, recognize, annul and recognize
such awards. The Chapter also examines the “jurisdictional” requirements which are
applicable to determine when the pro-enforcement legal framework of the New York
Convention and national arbitration legislation will be applicable to international
arbitral awards. The Chapter also discusses the limitations that this international legal
framework places on the forums in which actions to recognize and to annul international
arbitral awards may be brought.
Chapter 23 discusses the form and content of international arbitral awards. Among other
things, the Chapter addresses the requirements under contemporary national arbitration
statutes concerning the form and publication of arbitral awards, including requirements
that awards be in writing, signed, dated, and identifying the place of arbitration. It also
discusses the requirement, in many legal systems, that international arbitral awards be
“reasoned.” Finally, the Chapter examines the treatment of relief, costs and interest in
international arbitral awards.
Chapter 24 discusses the correction, interpretation and supplementation of international
arbitral awards. It first discusses the “functus officio” doctrine, defining the arbitrators’
limited mandate, which terminates after making a final award. The Chapter also
discusses the circumstances in which corrections, interpretations and supplementations
of awards can be obtained under contemporary national arbitration laws and
218
institutional arbitration rules.
Chapter 25 examines the setting aside or annulment of international arbitral awards. It
addresses the judicial forums in which annulment or setting aside can be sought, and the
permissible standards for granting such relief, under both international arbitration
conventions and leading national arbitration legislation. The Chapter also discusses the
various substantive grounds which are available for setting aside an award, as well as the
legal consequences of setting aside an award. Finally, the Chapter examines the
interpretation and enforcement of agreements providing for heightened (or reduced)
standards of judicial review of arbitral awards in annulment proceedings.
Chapter 26 discusses the recognition and enforcement of international arbitral awards. It
examines the proof of arbitral awards and the presumptive obligation of national courts,
under most international arbitration conventions and national arbitration statutes, to
recognize and enforce foreign arbitral awards. It also discusses the exceptions to this
P 3141 presumptive obligation to recognize foreign awards, including on grounds of lack of
jurisdiction, procedural defects, bias of the arbitrators, public policy and
nonarbitrability. The Chapter concludes by examining the suspension of proceedings
seeking recognition of foreign awards when an application to annul the award is pending
in the arbitral seat.
Finally, Chapter 27 discusses the role of preclusion in international arbitration, including
principles of res judicata and collateral (or issue) estoppel. It considers the preclusive
effects of arbitral awards, in both national court proceedings and arbitral proceedings, as
well as the preclusive effects of national court judgments in arbitral proceedings. The
Chapter also discusses application of lis pendens principles in international arbitration.
Finally, the Chapter examines the role of precedent and stare decisis in international
P 3141 arbitration.
References
1) See §22.01[A].
2) See §22.01[B].
3) See, e.g., UNCITRAL Model Law, Art. 34.
4) See, e.g., id. at Art. 33; §25.04.
5) See, e.g., UNCITRAL Model Law, Arts. 35-36; §22.01[B][3].
6) See, e.g., New York Convention, Arts. III-V; UNCITRAL Model Law, Arts. 35, 36; §22.01[B]
[3].
7) See §22.01_[B][5]; §26.03. As discussed below, one of the fundamental reforms of the
New York Convention was to remove the requirement of “double exequatur,” which
had required an award to be confirmed in the arbitral seat before it could be
recognized or enforced abroad. Under the New York Convention, an award is capable
of recognition outside the arbitral seat even if it has not been recognized or confirmed
in the arbitral seat. See §26.03[B][4].
8) See §22.01[B][6].
9) See §22.01_[B][7]; §27.01.
219
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Document information Statutes
Algeria
Publication Algerian Code of Civil and Administrative Procedure, Arts. 438, 458, 1006, 1008, 1012, 1040
International Commercial Algerian Code of Civil Procedure, Art. 458
Arbitration (Third Edition)
Argentina
Argentine Arbitration Act, 2018, Arts. 6, 22
Bibliographic Argentine National Code of Civil and Commercial Procedure, Arts. 736-741, 743, 745, 753,
reference 756, 758, 761, 772
'Statutes', in Gary B. Born , Australia
Arbitration (Third Edition), Australian Civil Law and Justice (Omnibus Amendments) Act, 2015
3rd edition (© Kluwer Law Australian Federal Court of Australia Act, Part IVA
International 2021) pp. 4391 Australian Foreign States Immunities Act, 1985, §17
- 4406 Australian International Arbitration Act, §§2, 7, 8, 11, 12, 16, 18, 22-29, 39; Schedule 2, Arts.
1, 3, 5, 17, 19-21, 25-27, 29-32, 34
New South Wales Commercial Arbitration Act, §27
New South Wales Limitations Act
South Australia Commercial Arbitration Act, §27
Western Australia Commercial Arbitration Act, §27
Austria
Austrian Civil Code, §§1008, 1325
Austrian Insolvency Act, §7
Austrian Penal Code, §288
Austrian ZPO, §§204, 306-309, 406, 411, 517-618, 1008
Bahrain
Bahrain Code of Civil and Commercial Procedure, Art. 234
Bahrain Legislative Decree No. 30, Art. 25
Bangladesh
Bangladesh Arbitration Act, §§9, 40
Belgium
1988 Belgian Judicial Code, Arts. 1672, 1676-1680, 1682, 1690, 1693, 1694, 1696, 1704, 1718,
1717 (repealed)
2013 Belgian Judicial Code, Arts. 23-27, 1007, 1672, 1676, 1678-1688, 1690, 1691, 1693, 1699-
1718
Belgian Law of 27 July 1961, as amended by Belgian Law of 13 April 1971
Bermuda
Bermuda International Conciliation and Arbitration Act, §§9, 13, 17, 28, 31, 32, 34
Bolivia
Bolivian Code of Civil Procedure, Art. 5
Bolivian Conciliation and Arbitration Law, Arts. 14, 17 III, 67-71, 78, 112(3)(d), 113
Bolivian Law on Arbitration and Mediation, Arts. 63, 64
Brazil
Brazilian Arbitration Law, Arts. 1, 2, 4, 6, 7, 13, 14, 20, 22-24, 26, 29-33, 38
Brazilian Code of Civil Procedure, Art. 453
Brunei
Brunei Laws of S25/91
Brunei International Arbitration Order, §42
Bulgaria
Bulgarian Law on International Commercial Arbitration, Arts. 1, 20, 38, 39, 47
Bulgarian Private International Law Code, Art. 120
Cambodia
374
Cambodian Commercial Arbitration Law, Arts. 45, 46
Canada
Alberta Fair Trading Act, §16
Alberta International Commercial Arbitration Act, §§7, 8; Schedule 2, Art. 19
British Columbia Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, §172
British Columbia Commercial Arbitration Act, §30
British Columbia International Commercial Arbitration Act, §§1, 7, 9, 11, 13, 19, 27, 31, 33
Canadian Code of Professional Conduct, ¶33
Canadian Commercial Arbitration Act, Arts. 1, 9, 11, 12, 17, 19, 20, 31, 34; Schedule 1, Art. 12
Canadian State Immunity Act, 1985
Manitoba International Commercial Arbitration Act, §8
New Brunswick International Commercial Arbitration Act, §8
Newfoundland and Labrador International Commercial Arbitration Act, §9
Northern Territory Commercial Arbitration Act, §27
Nova Scotia International Commercial Arbitration Act, §9
Ontario Arbitration Act, §32
Ontario Class Proceedings Act
Ontario Consumer Protection Act, c. 30, §§7, 8
Ontario International Commercial Arbitration Act, 2017, §§2, 7-9, 11, 19; Schedule, §35(1)
Prince Edward Island Commercial Arbitration Act, §8
Québec Civil Code, Arts. 2638-2643, 3155
Québec Code of Civil Procedure, Arts. 382, 620, 942, 944, 945-47
Québec Consumer Protection Act, §11
Saskatchewan International Commercial Arbitration Act, §7
Victoria Commercial Arbitration Act, §§24, 27, 37
Chile
P 4393 Chilean International Commercial Arbitration Law, Arts. 7, 9, 10, 11, 15, 16, 24, 28, 34
Chilean Organic Code of Tribunals, Art. 526 (2007)
Chilean Organic Law of the Judiciary, Art. 223
China
Chinese Arbitration Law, Arts. 3-6, 10-20, 23, 30, 34, 37-49, 53-56, 58, 59, 63, 68, 70, 77
Chinese Code of Civil Procedure, Arts. 160, 217, 237
Chinese Contract Law, Art. 57
Chinese Law Applicable to Foreign-Related Civil Relationships Law, Art. 18
Chinese Rules on Implementation of the Regulations on the Administration of Foreign Law
Firm Representative Offices in China
Law of the People’s Republic of China on Economic Contracts Involving Foreign Interest,
Art. 39
Colombia
Colombian Arbitration Law, Art. 1, 7, 40, 41, 79
Colombian Code of Commerce, Art. 194
Colombian Decree No. 1818 of 7 September 1998, Arts. 163, 165
Colombian Law No. 23 of 21 March 1991, Art. 100
Colombian Law No. 446 of 8 July 1998, Art. 167
Costa Rica
Costa Rican Arbitration Law, 2011, Arts. 1, 7, 8, 12, 16, 19, 21, 25, 26, 29, 30-34, 38
Croatia
Croatian Arbitration Law, Arts. 2, 6, 31
Cyprus
Cyprus Arbitration Law, §§2(4)-(5)
375
Cyprus International Commercial Arbitration Law, §2
Czech Republic
Czech Act on Arbitral Proceedings and Enforcement of Arbitral Awards, Art. 19
Denmark
Danish Arbitration Act, §§3, 10, 14, 28, 29, 32, 34, 37, 39
Djibouti
Djibouti Code of International Arbitration, Law No. 79/AN/84 of 13 February 1983
Dominican Republic
Dominican Republic Arbitration Law, Arts. 1, 10, 13, 21, 24, 25, 35, 36, 38, 40
Ecuador
Constitution of the Republic of Ecuador, Art. 190
Ecuadorian Law on Arbitration and Mediation, Arts. 5, 31
Ecuadorian Organic Law, Article 127 (repealed)
Egypt
Egyptian Arbitration Law, Arts. 2, 8, 11, 12, 15, 16, 19, 22, 24, 39, 43, 52-54, 58
P 4394 Egyptian Code of Civil Procedure, 1949, Arts. 502, 824 (repealed)
El Salvador
El Salvadorian Law on Mediation, Conciliation and Arbitration, Arts. 30, 68
Estonia
Estonian Code of Civil Procedure, §§721, 722
European Union
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 of
Certain Aspects of Mediation in Civil and Commercial Matters, Art. 1
EC Directive 98/5/EC, Art. 6.1
EC Regulation 1206/2001, Art. 14
EC Regulation 1215/2012, Art. 24(4)
EC Regulation 1348/2000
EC Regulation 44/2001, Arts. 1, 7, 22, 23, 27
EU Directive 2001/97/EC
EU Directive 2004/109/EC, Arts. 4, 5
EU Directive 2013/11, amending EC Regulation 2006/2004 and EC Directive 2009/22 and
EU Regulation 524/2013, amending EC Regulation 2006/2004 and EC Directive 2009/22
EU Directive 93/13/EEC
EU Directive 2014/104/EU
EU Law on Arbitration, 1966, Arts. 15, 17
EU Regulation 1215/2012, Preamble; Recital 12; Arts. 1, 7, 25, 73
EU Regulation 44/2001, Art. 1
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June
2008 on the law applicable to contractual obligations (“Rome I Regulation”), Art. 10
Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July
2007 on the Law Applicable to Non-contractual Obligations
Regulation (EU) 2016/679, Arts. 1, 3, 83, 84, Recitals 20, 91
Resolution 2011/2026 (INI) of the European Parliament of 13 September 2011 on the
Implementation of the Directive on Mediation in the Member States, Its Impact on
Mediation and Its Take-up by the Courts, Preamble
Finland
Finnish Arbitration Act, §§1, 4, 19, 27, 31, 32, 37, 40, 41, 47, 49
Fiji
Finnish Arbitration Act, §§4, 19, 27, 32, 37, 40, 47
Fijian International Arbitration Act, Art. 2
France
376
French Bankruptcy Law, Art. 47
French Civil Code, Arts. 355, 970, 1108, 1112, 1148, 1153, 1157, 1351, 1355, 1382, 1451-59, 1463,
1582, 1592, 1844, 1989, 2051-61
French Code of Civil Procedure, 1806, Arts. 100-01, 341, 367, 480, 481, 482, 488, 1005, 1006,
1442-43, 1448, 1450-1454, 1456-58, 1460, 1463-64, 1467-68, 1473, 1479, 1484-86, 1492-93,
1502, 1504-10, 1514, 1518, 1520, 1522-23, 1525, 2059
French Code of Criminal Procedure, Arts. 442, 454
P 4395 French Commercial Code, 1804, Arts. 51-63, 332
French Commercial Code, 1925, Art. 631
French Constitution of Year I, 1793, Art. 86
French Constitution of Year III, 1795, Art. 210
French Decree No. 2011-48 of 13 January 2011 Reforming the Law Governing Arbitration
French Decree No. 2011-48 of 13 January 2011 reforming the law governing arbitration
French Decree No. 90-170 of 16 February 1990, [1990] O.J. 2344
French Decree No. 91-1197 of 27 November 1991 Regarding the Organization of the Legal
Profession
French Decree No. 93-21 of 7 January 1993, modified by Decree 94-314 of 20 April 1994, Art.
37
French Employment Code, Art. L1411-4
French Law No. 71-1130 of 31 December 1971
French Law No. 71-1130 of 31 December 1971, Art. 3
French Law of 16-24 August 1790, Art. 1
French New Code of Civil Procedure, Arts. 100, 101, 367, 480, 481, 488, 808, 809, 1442-1527,
1648, 2059, 2224 (repealed)
French Penal Code, Art. 313-1
French Règlement intérieur national de la profession d’avocat, Art. 6.2
Germany
German Bundesrechtsanwaltsordnung, §43
German Civil Code, §§139, 145, 253, 433, 611, 766, 2247
German EGBGB, Arts. 7, 27, 32
German Labor Court Act, §101
German Penal Code, §§153, 331, 332, 336
German Richtergesetz, §40
German Securities Exchange Act, §§28 (replaced by German Securities Trading Act, §37h),
53, 61
German Umwandlungsgesetz, §20(1)1
German Wertpapierhandelsgesetz (Securities Trading Act), §37h
German Zivilprozessordnung (ZPO), §§128, 138, 261, 278, 282, 301, 322-327, 438, 767, 796,
1025-26, 1028, 1030-1044, 1047, 1051-1066, 1407
Greece
Greek Civil Code, Art. 217
Greek Code of Civil Procedure, Arts. 217, 321, 685, 871, 878, 880, 882, 894, 896
Greek International Commercial Arbitration Law, Arts. 1, 15, 17, 19, 28, 34, 35
Greek Law 2375/1999, Art. 16(3)
Guatemala
Guatemalan Arbitration Law
Guatemalan Code of Civil and Commercial Procedure, Arts. 287, 288
Guatemalan Decree No. 67-95, Art. 47
Honduras
Honduran Arbitration Act, Art. 74
Hong Kong
P 4396 Hong Kong Arbitration Ordinance, 1997, Art. 34(c)(2) (repealed)
377
Hong Kong Arbitration Ordinance, 2013, §§3-5, 8, 10, 13, 16, 18-21, 24, 25, 33-35, 37, 38, 45-
49, 55-57, 60, 61, 63-68, 70, 74, 79-81, 84, 86, 88, 89, 98, 99, 103.D(1); Schedule 2, ¶¶5-6
Hong Kong Crimes Ordinance, §§31, 35
Hong Kong Legal Practitioners Ordinance, §64
Hungary
Hungarian Arbitration Act, §§11, 15, 47, 49, 57
India
Indian Arbitration and Conciliation (Amendment) Act, 2015
Indian Arbitration and Conciliation Act, 1996, §§2, 5, 7-13, 15-20, 28-31, 33, 34, 47, 48, 57, 73,
74
Indian Arbitration and Conciliation Act, 2019, §§5, 7-8, 10-13, 15, 17-19, 23, 29-30, 33-34, 43,
47; Schedule 5, Schedule 8
Indonesia
Indonesian Law No. 30 of 1999 Concerning Arbitration and Alternative Dispute Resolution,
Arts. 9, 10, 24, 26, 28, 32, 57, 67
Iran
Constitution of Islamic Republic of Iran, Art. 139
Iranian International Commercial Arbitration Law, Arts. 27, 29, 30, 33
Ireland
Irish Arbitration Act, 1954 (as amended by the International Commercial Arbitration Act,
1998), §§16, 17, 22
Irish Arbitration Act, 2010, Arts. 6, 7, 9, 16, 19, 22, 23, 26
Israel
Israeli Arbitration Law, Arts. 14, 26, 29, 34
Italy
Italian Bankruptcy Law, Art. 83bis
Italian Civil Code, Arts. 1341-1342
Italian Code of Civil Procedure, 1973, Art. 808 (repealed)
Italian Code of Civil Procedure, Art. 39, 324, 404, 806-820, 822, 823, 825, 826, 829, 831, 832,
834, 840, 1341, 1342, 1495
Italian Private International Law Act, Art. 7
Jamaica
Jamaican Arbitration Act, Art. 12
Japan
Japanese Act on Special Measures Concerning the Handling of Legal Services by Foreign
Lawyers, 2020
Japanese Arbitration Law, Arts. 1-4, 8, 12-48, 50-55, 231; Supplementary Provisions, Arts. 3,
4
Japanese Code of Civil Procedure, Art. 231
P 4397 Japanese Court Act, Art. 52
Jordan
Jordanian Arbitration Act, Arts. 10, 49
Jordanian Law No. 35 of 1983
Kazakhstan
Kazakhstan Civil Code, Art. 1094
Kenya
Kenyan Arbitration Act, Arts. 2, 3, 7, 9, 19, 29, 35
Korea
Korean Arbitration Act, Arts. 3, 5, 6, 8-9, 11, 14, 17, 20, 22, 23, 25, 26, 34, 35-37
Kuwait
Kuwaiti Civil and Commercial Procedure Code No. 38, Art. 174
Latvia
378
Latvian Arbitration Law, 2017
Latvian Civil Procedure Law, Arts. 487, 497, 501
Latvian Law No. 86-972 of 19 August 1986, Official Journal of 22 August 1986, at 10190
Lebanon
Lebanese New Code of Civil Procedure, Arts. 768, 769, 779, 813, 814, 817
Libya
Libyan Code of Civil and Commercial Procedure, Arts. 407, 408, 740, 741, 748, 767-69, 779,
817
Lithuania
Lithuanian Arbitration Law, Art. 51(4)
Lithuanian Code of Civil Procedure, Art. 809(1)
Luxembourg
Luxembourg Code of Civil Procedure, Arts. 378, 1007, 1009, 1014
Malaysia
Malaysian Arbitration Act, 2018, §§2-4, 7, 8, 21-23, 27, 35, 37, 40
Malaysian Arbitration Act, 1952, §34
Malta
Malta Arbitration Act, Arts. 19, 36, 44; Chapter 387
Mauritius
Mauritius International Arbitration Act, Arts. 4, 8, 32
Mexico
Mexican Commercial Code, Arts. 1423, 1426, 1432, 1434, 1435, 1440, 1445, 1454-1457
Mexican Federal Amparo Act, Arts. 222-224
Morocco
P 4398 Moroccan Code of Civil Procedure, Arts. 310, 311
Moroccan Law No. 05-08, Art. 327-2
Myanmar
Myanmar Arbitration Act, Art. 11
Netherlands
Netherlands Bankruptcy Act, Art. 122
Netherlands Civil Code, Art. 7:900
Netherlands Code of Civil Procedure, Arts. 102, 236, 289, 628, 1020-1043, 1045, 1046, 1048,
1049-1066, 1072-1076, 1704, 1753
New Zealand
Cook Islands Arbitration Act, Schedule 2, §2
New Zealand Arbitration Act, Arts. 2, 6, 7, 10, 11, 13, 14, 18, 19, 24, 28; First Schedule, Arts. 5-
13, 16-19, 27-29, 31, 33-36; Second Schedule, Arts. 2, 5
New Zealand Limitation Act, 1950
New Zealand Trusts Bill, §138
Nigeria
Nigerian Arbitration and Conciliation Decree, §§5, 14, 22, 45, 49, 50, 57; Schedule 1
Norway
Norwegian Arbitration Act, §§4, 5, 9, 10, 16, 32, 36, 38, 39, 46
Norwegian Code of Civil Procedure, 1915, Art. 463
Norwegian Penal Code, Art. 114
Oman
Omani Arbitration Law, Arts. 15, 16, 22, 53
Ottoman Empire
Ottoman Civil Code of 1876, Art. 1841, 1842, 1847, 1849, 1879
Panama
379
Panamanian Arbitration Law
Paraguay
Paraguayan Law on Arbitration and Mediation, Arts. 13, 19
Paraguayan International Contracts Law
Pakistan
Pakistani Arbitration (International Investment Disputes) Act, 2011
Pakistani Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral
Awards) Act, 2011
Pakistani Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral
Awards) Ordinance 2006
Peru
Peruvian Arbitration Law, 2008, Arts. 2, 10, 13-14, 25, 31, 37-39, 41, 47, 50-56, 58-60, 63, 64,
117
P 4399 Peruvian Legislative Decree Regulating Arbitration, Art. 41(4)
Philippines
Philippines Alternative Dispute Resolution Act, Art. 3(f)
Poland
Polish Code of Civil Procedure, Arts. 1170, 1179
Polish Bankruptcy and Restructuring Act, 2015, Arts. 142, 147
Portugal
Portuguese Bankruptcy Law, Art. 87
Portuguese Code of Civil Procedure, Art. 1096(f)
Portuguese Law on Voluntary Arbitration, 2011, Art. 1, 8-10, 12, 18, 29, 30, 39, 40, 46, 49, 53
Portuguese Law on Voluntary Arbitration, Law No. 31/86, as amended by Decree-Law No.
38/2003, Art. 29
Qatar
Qatari Civil and Commercial Arbitration Law, Art. 9
Qatari Code of Civil and Commercial Procedure, Arts. 193, 194, 380
Romania
Romanian Code of Civil Procedure, Arts. 353, 358, 359, 365, 369, 603
Romanian Law 105/1992 on the Settlement of Private International Law Relations, Arts.
168, 174
Russia
Russian Civil Code
Russian Commercial Arbitrazh Procedure Code, Arts. 33, 225
Russian Federal Law on International Commercial Arbitration, Arts. 1, 6, 8, 10, 11, 13, 15, 16,
19, 20, 21, 28, 31-34
Russian Federation Code of Civil Procedure, Arts. 196, 209, 1195-1197
Saudi Arabia
Rules for the Implementation of the Saudi Arabian Arbitration Regulation, 1985, §3
Saudi Arabian Arbitration Regulation Implementation Rules, 2017
Saudi Arabian Arbitration Regulation, 2012, Arts. 2, 10, 14, 39, 43
Saudi Arabian Council of Minister’s Decision No. 58 of 25 June 1963
Senegal
Senegalese Code of Civil Procedure, Arts. 819-827
Serbia
Serbian Law on Arbitration, Art. 29(1)
Singapore
Singapore COVID-19 (Temporary Measures) Act, 2020, §28
Singapore Arbitration Act, §§16, 22, 26, 40, 63
Singapore Contracts (Rights of Third Parties) Act
380
Singapore Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits)
P 4400 Act, §39
Singapore International Arbitration Act, 2012, §§2, 3, 5-9, 12, 13, 15, 18-26, 30-34, 43, 49, 63;
Schedule 1, Arts. 2, 3, 11-12, 15, 18-19, 33, 34, Schedule 2
Singapore Legal Profession Act, §§ 35, 107; Amendment No. 2
Singapore State Immunity Act, §11
Slovakia
Slovak Arbitration Act, Arts. 2, 10(3)
Slovenian
Slovenian Arbitration Law, Arts. 17, 19, 32, 45
South Africa
South African Arbitration Act, §§2, 3
South African Foreign States Immunity Act, §10
South African International Arbitration Act, Schedule 2, Art. 17
Spain
Spanish Arbitration Act, 2011, Preamble 3; Arts. 1-3, 7, 9, 11-13, 15, 17, 18-19, 21, 22, 24, 30,
33-35, 37-41, 43, 61
Spanish Arbitration Act, 1988, Arts. 14, 61, 62 (repealed)
Spanish Arbitration Act, 2003, Art. 37(8)
Spanish Civil Code, Art. 1490
Spanish Insolvency Act, Art. 52
Sri Lanka
Sri Lankan Arbitration Act, §§27, 29
Sweden
Swedish Arbitration Act, §§1-18, 21, 23-27, 30-32, 35, 37, 41, 47, 48, 51, 54
Swedish Arbitration Act, 2019 §§1(3), 6
Switzerland
Swiss Cantonal Concordat, 1969, Arts. 1, 4, 6-8, 15, 25, 26, 39, 40
Swiss Code of Civil Procedure, Arts. 59, 64, 353, 354, 358, 359, 365, 368, 370, 373, 376, 388
Swiss Code of Obligations, Arts. 1, 20, 30, 119, 210, 396
Swiss Federal Law on Mergers, Demergers, Transformation and Transfer of Assets, Arts. 3,
22
Swiss Law on Federal Tribunal, Arts. 77, 105
Swiss Law on Private International Law, Arts. 7, 9, 19, 35, 116, 124, 148, 173, 176-194
Swiss Penal Code, Arts. 306-309, 315, 316
Swiss Private International Law Act (Arbitration, Jurisdiction) Amendment of 6 October
2006, entered into force on 1 March 2007, AS 2007 387.
Swiss Rules of Professional Conduct, Art. 7
Syria
Syrian Arbitration Act, Arts. 11, 17, 29, 55, 56
Taiwan
P 4401 Taiwanese Arbitration Act, Arts. 7, 38, 40
Tanzania
Tanzanian Arbitration Ordinance, 1931, Arts. 16, 22
Thailand
Thai Arbitration Act, §§16, 17, 35, 41-43
Tunisia
Tunisian Arbitration Code, Arts. 10, 11, 34, 48, 55, 57, 58, 61, 73, 78
Turkey
Turkish International Arbitration Law, Arts. 4, 8, 15
Uganda
381
Ugandan Arbitration and Conciliation Act, §§33, 34
Ukraine
Ukrainian Civil Code, Arts. 104, 228
Ukrainian Commercial Procedural Code, Art. 6(1)
Ukrainian Law No. 5076-VI, Art. 34(2)(5)
Ukrainian Law on International Commercial Arbitration, Arts. 1, 31, 32, 34
United Arab Emirates
Abu Dhabi Code of Civil Procedure, Art. 91
Dubai Law No. 6 of 1997, Art. 36
UAE Arbitration Law, Arts. 18, 33, 48
UAE Federal Law No. 11/1992, Art. 207(4), repealed by UAE Federal Law No. 6/2018
UAE Federal Law No. 6/2018, Arts. 14, 15
UAE Penal Code, Federal Law No. 7/2016, Art. 257
United Kingdom
392 Parl. Deb., H.L. (5th series) 99 (1978)
An Act for Determining Differences by Arbitration, William III, 1697-8, Ch. 15
An Act for the Better Preventing Frivolous and Vexatious Suits, 1697, 8 & 9 Will. III, Chp. 11
British Virgin Islands Arbitration Act, Art. 9
Contracts (Rights of Third Parties) Act (England), §8(1)
English Arbitration Act, 1889, §§4, 5, 7, 8, 10, 19, 81
English Arbitration Act, 1950, §§7, 9, 13, 17
English Arbitration Act, 1970, §7
English Arbitration Act, 1979, §§1, 3, 4
English Arbitration Act, 1996, §§1-25, 27-44, 46-58, 60, 61, 66-73, 81, 82, 89-91, 93, 99-106,
138; Schedule 1
English Civil Jurisdiction and Judgments Act, 1982, §34
English Civil Procedure Act, 1698, Chp. 15
English Civil Procedure Act, 1833, Chp. 42, §§39-41
English Civil Procedure Rules 1998, Rules 36.13, 62.8
English Common Law Procedure Act, 1854, Chp. 125; Chp. 125, §§4, 15, 17
P 4402 English Conditional Fee Agreements Order, 2013
English Courts and Legal Services Act, 1990, §58AA.
English Foreign Limitation Periods Act, 1984
English Insolvency Act, 1986, §349A(3)
English Law of Property (Miscellaneous Provisions) Act, §2
English Legal Aid Sentencing and Punishment of Offenders Act, 2012, §§44-45
English Limitation Act, 1980, §5
English Oaths Act, 1978, §1
English Perjury Act, 1978, §§1, 2
English Supreme Court Act, 1981, §49
Scottish Arbitration Act, §§1, 2, 4-7, 10-11, 15, 17, 20, 24-27, 29, 40, 47, 53, 55, 73-75; Schedule
1, Rules 20, 24, 40, 55, 73-75; Schedule 2
Third Parties (Rights Against Insurers) Act 1930
Third Parties (Rights Against Insurers) Act 2010
U.K. Employment Rights Act, §203
U.K. Law of Property (Miscellaneous Provisions) Act, §2
U.K. Patents Act 1977
U.K. State Immunity Act, 1978, §§3, 4, 7-11, 13
U.K. Unfair Terms in Contracts Regulations, Reg. 5, SI 1999 No. 2083
United Nations Commission for International Trade Law
382
UNCITRAL Model Law on International Commercial Arbitration (1976), Arts. 1, 5, 9, 17
UNCITRAL Model Law on International Commercial Arbitration (1985), Arts. 1, 7-17, 34-36
UNCITRAL Model Law on International Commercial Arbitration (2006), Arts. 1-36
UNCITRAL Model Law on International Commercial Conciliation, Art. 10
UNCITRAL Model Law on International Commercial Mediation and International
Settlement Agreements Resulting from Mediation (2018)
United States
Constitutions
Constitution of the United States (U.S. Constitution), Amends. IV, V, VII, XIV
Articles of Confederation (1781) (replaced by U.S. Constitution, 1789), Art. IX
United States Federal Statutes
11 U.S.C. §365(g)(1)
15 U.S.C. §§15, 77, 78, 78l, 1226, 1964, 3802, 7241
22 U.S.C. §§161, 1650a
28 U.S.C. §§1605, 1610, 1738, 1782
35 U.S.C. §§135, 294
46 U.S.C. §743
9 U.S.C. §§1-16, 201-208, 301-07
Arbitration Fairness Act of 2011, H.R. 1873, S. 987, 112th Cong. (2011)
Arbitration Fairness Act of 2009, H.R. 1020, 111th Cong. (2009)
Arbitration Fairness Act of 2013, S. 878, 113th Cong. (2013)
Arbitration Fairness Act of 2015, S. 1133, 114th Cong. (2015)
P 4403 Arbitration Fairness Act of 2017, 115th Cong. (2017)
Arbitration Fairness Act of 2018, S. 2591, §402(a), 115th Cong. (2017-18)
Dodd-Frank Wall Street Reform and Consumer Protection Act, 124 Stat. 1376 (2010), §§748,
921, 922, 1057, 1414
Federation Arbitration Act (9 U.S.C.), Chp. 392, §1, 62 Stat. 669 (1947) (as codified at 9 U.S.C.
§§1-16); 84 Stat. 692 (1970) (as codified at 9 U.S.C. §§201-208); Pub. L. 101-369 (1990) (as
codified at 9 U.S.C. §§301-307); 9 U.S.C. §§1-16, 201-208, 301-307
Foreign Sovereign Immunities Act, 28 U.S.C. §§1603, 1605, 1610
Magnuson-Moss Warranty Act, 15 U.S.C. §§2301-2312
Model Business Corporation Act (3d ed. 2002)
Motor Vehicle Franchise Contract Arbitration Fairness Act, 15 U.S.C. §1226
Revised Uniform Arbitration Act (2000), §§1, 2, 4, 6-12, 14-24; Prefatory Note
Securities Act of 1933, 15 U.S.C. §77n
U.S. 1982 Uniform Conflicts of Laws
U.S. Federal Rules of Civil Procedure, Rules 13, 26, 30, 34
U.S. Federal Rules of Evidence, Rule 408
Uniform Arbitration Act (1995), U.S. UCC §1-105(1) (1995), superseded by U.S. UCC §1-301
(2001)
Uniform Arbitration Act, §§1-201, 1-301, 2-201, 2-207, 2-208, 2-725, 3-305
Uniform Mediation Act, §4
United States Statutes
Alaska Statute, §09.43.370
An Act for the More Easy and Effectually Finishing of Controversies by Arbitration, 1753, in
C. Hoadley (ed.), 10 The Public Records of the Colony of Connecticut 201-02 (1877)
Arizona Revised Statute, §12-3010
Arkansas Code Annotated, §16-108-201
California Code of Civil Procedure, §§1281-1283, 1286, 1287, 1295, 1297, 1298
California Corporations Code, §31512
383
California Ethics Standards for Neutral Arbitrators in Contractual Arbitration, California
Rules of Court, Division VI, Standard 5, 7
California Evidence Code §§703.5, 1152
California Rules of Court, Rule 9.43
Colorado Revised Statutes, §§13-22-210; 13-22-501 to 13-22-507
Connecticut General Statutes, §§50a-100 to 50a-136; 51-88(d)(3); §52-407jj
D.C. Official Code, §16-4410
Delaware Code Annotated, title 10 §5708 (2006); title 10 §346
Florida Statutes Annotated, Florida International Arbitration Act, §§684.0001 to 684.0048
Georgia Code Annotated, Georgia Arbitration Code, §§9-9-2, 9-9-6, 9-9-13, 9-9-20 et seq., 9-
9-42
Hawaii Revised Statutes, Hawaii International Arbitration, Mediation, and Conciliation
Act, §§658A-10 (Supp. 1989), 658D-1 to 658D-9
I Laws of the State of New York, 1802, Chp. XX, 1-23 (14th Sess.)
Iowa Code Annotated, §679A.1
Kansas Statutes Annotated, §§5-401(c), 5-407
Labor Management Relations Act
Louisiana Revised State Annotated, §22-868
P 4404 Louisiana Statutes Annotated, §§9:4245, 9:4251(E), 9:4253(C)
Maryland International Commercial Arbitration Act, Md. Cts. & Jud. Proc. Code Ann., §§3-
2B-01 to 3-2B-09
Massachusetts “Lemon Law”, Massachusetts General Laws Ch. 90, §7N1/2
Massachusetts General Laws Annotated, C. 251, §2A
Md. Cts. & Jud. Proc. Code Ann. §3-2B-07
Michigan Compiled Laws Annotated, Michigan Franchise Investment Law, §445.1527(f)
Michigan Compiled Laws, § 600.5042(4), M.S.A. §27A.5042(4) of Medical Malpractice
Arbitration Act, repealed, P.A. 1993, No. 78, §2
Michigan Compiled Laws, §691.1690
Minnesota Statutes, §572B.10
Missouri Annotated Statutes, §435.460
Montana Code Annotated, §§27-5-114, 27-5-323
Nevada Revised Statutes, §38.224
New Jersey Statutes Annotated, §§2A:23B-10, 2A:24-7
New Jersey Superior Court Rules 4:21A-4
New Mexico Statutes, §44-7A-11
New York Arbitration Law, 1920, Chp. 275, Laws 803-808
New York Civil Practice Law & Rules, Art. 75, §§4547, 5001, 5004, 7502, 7503, 7505, 7511, 7513,
7601
New York Court Rules, §28.12
New York General Obligations Law, §5-1401 (McKinney Supp. 1988)
North Carolina General Statutes, North Carolina International Commercial Arbitration and
Conciliation Act, §§1-567.30 to 1-567.68, 1-569.10
North Dakota Century Code, §32-29.3-10
Ohio Revised Code Annotated, International Commercial Arbitration, §§2711.01, 2712.01 to
2712.91
Oklahoma Statute, §12-1861
Oregon Revised Statutes, Oregon International Commercial Arbitration and Conciliation
Act, §§36.450 to 36.558, 36.640
Pennsylvania Consolidated Statutes Annotated, title 42, §§7321.11, 7302(d)(2)
Puerto Rico Dealers Act, 10 L.P.R.A. §278
South Carolina Code Annotated, §§15-48-10, 15-48-80
Texas Civil Practice & Remedies Code Annotated, Arbitration and Conciliation of
International Commercial Disputes, §§171.001 et seq., 171.002, 171.007, 172.055, 172.059,
384
172.083, 172.112, 172.171, 172.173
Texas Revised Civil Statute, Art. 224-1
Utah Code Annotated, §§§78B-11-111, 78-31a-8
Washington Revised Code, §§7.04A.100, 7.05.060, 7.05.120(5), 7.05.140
West Virginia Code, §55-10-12
Uruguay
Uruguay Arbitration Act, Arts. 1, 17
Uruguayan General Code of Procedure, Art. 499
P 4405 Uruguayan Law No. 18.786, Art. 54
Venezuela
Venezuelan Commercial Arbitration Law, Arts. 1, 5, 7, 22, 25, 29, 30-32, 43
Vietnam
Vietnamese Arbitration Law, Art. 16
Yemen
P 4405 Yemeni Arbitration Act, Art. 20
385
Document information Legislative Materials
European Union
Publication European Parliament, Report on the Implementation of the Directive on Mediation in the
International Commercial Member States, Its Impact on Mediation and Its Take-up by the Courts, Resol. No.
Arbitration (Third Edition) 2011/2026(INI)
Certain Aspects of Mediation in Civil and Commercial Matters, EU Directive 2008/52/EC
Consultative Council of European Judges, Opinion No. 22 on the Role of Judicial Assistants
Bibliographic (2019)
reference Draft Report on the Implementation and Review of Council Regulation, (EC) No 44/2001 (27
'Legislative Materials', in April 2010)
Gary B. Born , International
Commercial Arbitration EU Council, Proposal for A Regulation of the European Parliament and of the Council on
(Third Edition), 3rd edition Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial
(© Kluwer Law Matters (Recast), E.C. Doc. 10609/12 (1 June 2012)
International; Kluwer Law EU Decision 2009/26/EC
International 2021) pp.
4407 - 4410 European Commission, Green Paper on the Review of Council Regulation (EC) No. 44/2001
on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial
Matters (2009)
European Commission, Proposal for A Regulation of the European Parliament and of the
Council, E.C. Doc. 2010/0383(COD) (14 Dec. 2010)
European Parliament Committee on Legal Affairs, Draft Report of the Committee of Legal
Affairs of the European Parliament on Review of Council Regulation (EC) No. 44/2001, E.C.
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Harnischfeger Corp. v. Ministry of Roads & Transp., Partial Award in IUSCT Case No. 144-180-
3 of 13 July 1984, 7 Iran–US CTR 90 (1984) 2852, 2862, 2864
Himpurna Cal. Energy Ltd v. PT (Persero) Perusahaan Listruik Negara, Final Award in Ad Hoc
Case of 4 May 1999, XXV Y.B. Comm. Arb. 11 (2000) 996
Himpurna Cal. Energy Ltd v. Indonesia, Final Award of 16 October 1999, XXV Y.B. Comm. Arb.
186 (2000) 2098, 2101
Interim Award in Ad Hoc Case of 9 September 1983, XII Y.B. Comm. Arb. 63 (1987) 1547, 1554,
1568
Interim Award in Ad Hoc Case of 18 November 1983, X Y.B. Comm. Arb. 37 (1985) 331
Kuwait v. Am. Indep. Oil Co., Award in Ad Hoc Case of 24 March 1982, 21 I.L.M. 976 (1982) 1429,
2964, 2965, 2980, 2981, 3358
Larsen v. Haw. Kingdom, Award in Ad Hoc Case of 5 February 2001, 119 I.L.R. 566 (2001) 1344
Lauder v. Czechia, Final Award in Ad Hoc Case of 3 September 2001, 14 WTAM 109 (2001)
2542, 4138
Lena Goldfields Ltd v. USSR, Award in Ad Hoc Case of 3 September 1930, 36 Cornell L.Q. 31
(1950-1951) 2966, 2981
Libyan Am. Oil Co. (LIAMCO) v. Libya, Award in Ad Hoc Case of 12 April 1977, VI Y.B. Comm.
Arb. 90 (1981) 421, 490, 2980, 2981, 3328, 3362,
Link-Trading JSC v. Moldova, Award on Jurisdiction in Ad Hoc Case of 16 February 2001 982,
2382
Mechema Ltd v. SA Mines, Minérais et Métaux, Award in Ad Hoc Case of 3 November 1977, VII
Y.B. Comm. Arb. 77 (1982) 1732, 1739
Methanex Corp. v. U.S., Final Award in Ad Hoc Case on Jurisdiction and Merits of 3 August
2005 2449
Nat’l Grid plc v. Argentina, Ad Hoc Decision on Jurisdiction of 20 June 2006 366
P 4429
Nat’l Iranian Oil Co. v. Israel, Partial Award in Ad Hoc Case of 10 February 2012, discussed in
Scherer & Baizeau, Swiss Federal Supreme Court Confirms NIOC vs. Israel Award: No Review
of French Court Decision to Appoint Arbitrator in Order to Avoid International Denial of
Justice, 31 ASA Bull. 400 (2013) 1357, 1359, 1844
Partial Award in Ad Hoc Case of 2008, XXXIV Y.B. Comm. Arb. 15 (2009) 2644
Partial Award in Ad Hoc Case of 2008, XXXIV Y.B. Comm. Arb. 22 (2009) 2400
Paushok v. Mongolia, Ad Hoc Order on Interim Measures of 2 September 2008 1375, 1376,
2644, 2654, 2663, 2693
Petroleum Dev. (Trucial Coast) Ltd v. Sheikh of Abu Dhabi, Award of 28 August 1951, 1 Int’l &
Comp. L.Q. 247 (1952) 2939, 2980, 2981
Preliminary Award on Jurisdiction in Ad Hoc Case in Geneva of 1992, 12 ASA Bull. 481 (1994)
778
Pugachev v. Russia, Interim Award in UNCITRAL Case of 17 July 2017 1375, 2644, 2663, 2664,
2665
Qatar v. Int’l Marine Oil Co., Award in Ad Hoc Case of June 1953, 20 I.L.R. 534 (1953) 2980,
2981
Radio Corp. of Am. v. China, Award of the Tribunal of 13 April 1935, III U.N. Rep. Int’l Arb.
Awards 1621 (2006) 208
404
Ruler of Qatar v. Int’l Marine Oil Co., 20 I.L.R. 534 (1953) 2939
Sapphire Int’l Petroleums Ltd v. Nat’l Iranian Oil Co., Award in Ad Hoc Case of 15 March 1963,
35 I.L.R. 136 (1967) 1720, 1725, 1732, 1739, 1747, 2848, 2850, 2889, 2979, 2981
Saudi Arabia v. Arabian Am. Oil Co. (Aramco), Award in Ad Hoc Case of 23 August 1958, 27
I.L.R. 117 (1963) 1431, 1725, 2889, 2939, 3327
Société d’Economie Mixte Guineo v. Martin Marietta Aluminium, Inc., Partial Award in Ad Hoc
Case of 12 September 1986 & Final Award in Ad Hoc Case of 31 December 1988, XV Y.B.
Comm. Arb. 11 (1990) 3305
Texaco Overseas Petroleum Co. v. Libya, Preliminary Award on Jurisdiction in Ad Hoc Case of
27 November 1975, IV Y.B. Comm. Arb. 177 (1979) 366, 421, 490, 491, 1161, 1162, 2675, 2964,
2965, 2979, 2980, 2981, 2982, 3328
Trail Smelter Arbitration (U.S.A. v. Canada), Awards of Special Tribunal of 16 April 1938 & 11
March 1941, III R.I.A.A. 1905 (1941) 4107, 4108
Unpublished Award in Ad Hoc Case of 3 March 1999, discussed in de Boisséson, Joinder of
Parties to Arbitral Proceedings, Two Consenting Decisions, in ICC, Complex Arbitrations:
Perspectives on Their Procedural Implications 19 (2003) 1520, 1563
W. Co. of N. Am. v. Oil & Natural Gas Comm’n, Interim Award in Ad Hoc Case of 17 October
1985, XIII Y.B. Comm. Arb. 5 (1988) 1749
Wintershall AG v. Qatar, Partial Award in Ad Hoc Case of 5 February 1988, 28 I.L.M. (1989)
1340, 1444, 1732, 1739, 2257, 2262
Wintershall AG v. Qatar, Final Award in Ad Hoc Case of 31 May 1988, 28 I.L.M. (1989) 1732,
1739, 3399, 3400, 3405, 4149
American and British Claims Arbitration Tribunal
In re S.S. Newchwang (Great Britain v. U.S.A.), Award in American and British Claims
Arbitration Tribunal of 9 December 1921, 16 Am. J. Int’l L. 323 (1922) 4109
Lehigh Valley Railway (U.S.) v. Germany, Award in Mixed Claims Commission of 15 December
1933, 34 Am. J. Int’l L. 154 (1940) 3415
P 4430
American Arbitration Association (AAA)
Anderson v. Check ‘N Go of Cal., Inc., Partial Final Clause Construction Award in AAA Case
No. 11 160 03021 04 of 2005 1627
Award in AAA Case No. 1310-0417-78 of 4 January 1980, VIII Y.B. Comm. Arb. 166 (1983) 2484
Beckman Instruments, Inc. v. Overseas Private Inv. Corp., Award in AAA Case No. 16 199
00209 87G of 20 February 1988, XIV Y.B. Comm. Arb. 73 (1989) 3350
Molfetas v. Stainsafe Inc., Clause Construction Award in AAA Case No. 11 181 00300 06 of
2006 1627
Pollux Marine Agencies v. Dreyfus, Award in AAA Case No. 1569 of 3 August 1981, VIII Y.B.
Comm. Arb. 171 (1983) 423
Revere Copper & Brass v. Overseas Private Inv. Corp., Award in AAA Case No. 16-10-0137 76, 17
I.L.M. 1321 (1978) 777
Tomeldon Co. v. Medco Health Solutions Inc., Clause Construction Award in AAA Case No. 11
193 00546 06 1627
Amsterdam Grain Association
Award in Amsterdam Grain Trade Association Case of 11 January 1982, VIII Y.B. Comm. Arb.
158 (1983) 636, 2909, 2922
Berlin Chamber of Foreign Trade
Award in Berlin Chamber of Foreign Trade Case No. 103/74 of 28 January 1976, IV Y.B. Comm.
Arb. 197 (1979) 2913
Budapest Chamber of Commerce and Industry
Award in Budapest Chamber of Commerce and Industry Case No. VB/96074 of 10 December
1996 2855, 2856
Bulgarian Chamber of Commerce and Industry
Award in Bulgarian Chamber of Commerce and Industry Case No. 88/1972 of 23 June 1973, IV
Y.B. Comm. Arb. 189 (1979) 422, 490, 940, 1491
Award in Bulgarian Chamber of Commerce and Industry Case No. 60/1980 of 1 October 1980,
XII Y.B. Comm. Arb. 84 (1987) 1482, 1575
Award in Bulgarian Chamber of Commerce and Industry Case No. 151 of 3 December 1984, XV
Y.B. Comm. Arb. 63 (1990) 835
405
Cairo Regional Centre for International Commercial Arbitration (CRCICA)
Award in CRCICA Case No. 20/1990 of 22 April 1992, in M. Alam Eldin (ed.), Arbitral Awards of
the Cairo Regional Centre for International Commercial Arbitration (2000) 1501, 2862, 2889,
3350
Award in CRCICA Case No. 40/1992 of 15 December 1995, in M. Alam Eldin (ed.), Arbitral
Awards of the Cairo Regional Centre for International Commercial Arbitration 95 (2000) 1501
Award in CRCICA Case No. 1/1994 of 31 October 1995, discussed in M. Alam Eldin (ed.),
Arbitral Awards of the Cairo Regional Centre for International Commercial Arbitration (2000)
2398
Award in CRCICA Case No. 2/1994 of 25 July 1995, discussed in M. Alam-Eldin (ed.), Arbitral
Awards of the Cairo Regional Centre for International Commercial Arbitration (2000) 1532
P 4431
Award in CRCICA Case No. 53/1994 of 3 July 1995, in M. Alam Eldin (ed.), Arbitral Awards of
the Cairo Regional Centre for International Commercial Arbitration 181 (2000) 2862
Partial Award in CRCICA Case No. 120/1998, in M. Alam Eldin (ed.), Arbitral Awards of the
Cairo Regional Centre for International Commercial Arbitration II 1997-2000 28 (2003) 2850,
2857, 2862, 2892
Chamber of Arbitration of Milan (CAM)
Award in CAM Case of 22 February 2008, described in A Contribution by the ITA Board of
Reporters 2834
Award in CAM Case of 21 September 2016, summarized in A Contribution by the ITA Board of
Reporters 1095
Final Award in CAM Case of 23 September 1997, XXIII Y.B. Comm. Arb. 93 (1998) 1035, 1057,
1068
Final Award in CAM Case of 18 March 1999, XXV Y.B. Comm. Arb. 382 (2000) 1057, 1341
Final Award in CAM Case No. 1115/16 of 10 December 2015, XLI Y.B. Comm. Arb. 303 (2016)
1155, 1732
Final Award in CAM Case No. 1795 of 1 December 1996, XXIV Y.B. Comm. Arb. 196 (1999) 1607,
2992
Final Award in CAM Case No. 7211 of 24 September 2013, XXXIX Y.B. Comm. Arb. 263 (2014)
1155, 2845, 2852
Final Award in CAM Case No. 8416 of 28 November 2017, XLIII Y.B. Comm. Arb. 292 (2018) 511,
521, 549, 940, 1155, 1732, 1741, 3350
Final Award in CAM Case No. 10915 of 14 November 2016, XLII Y.B. Comm. Arb. 280 (2017)
1658, 1661
China International Economic and Trade Arbitration Commission (CIETAC)
Award in Confidential CIETAC Case, cited in J. Tao, Arbitration Law and Practice in China 51
(2d ed. 2008) 1580
Award in CIETAC Case of 2 September 2005, UNILEX (UNIDROIT Principles) 2862
Court of Arbitration for Sport (CAS)
Award in CAS Case No. 98/200 of 20 August 1999, XXV Y.B. Comm. Arb. 393 (2000) 1068
Int’l Triathlon Union v. Pac. Sports Corp. Inc., Award in CAS Case No. 1996/O/161 of 4 August
1999, in M. Reeb (ed.), Digest of CAS Awards II 1998-2000 (2002) 1554
Wigan Athletic AFC v. Heart of Midlothian, Final Award in CAS Case of 30 January 2008, 26
ASA Bull. 513 (2008) 1732, 1741
Czechoslovak Chamber of Commerce
Award in Czechoslovak Chamber of Commerce Case of 9 January 1975, II Y.B. Comm. Arb. 143
(1973) 2845, 2855
Deutsche Institution für Schiedsgerichtsbarkeit (DIS)
Challenge Decision of Arbitral Tribunal in DIS Case No. DIS–SV–217/00, 2003 SchiedsVZ 94
2032
Partial Award in DIS Case No. 438/04 of 25 January 2005, 2005 SchiedsVZ 166 785
P 4432
Dubai International Arbitration Centre (DIFC)
Meydan Group LLC v. Dubai Int’l Arb. Centre, Claim No. ARB-012-2017 (DIFC Ct. First Inst.
2019) 2357, 2358, 1833
French-Venezuelan Mixed Claims Commission
406
Award in Case of the French Company of Venezuelan Railroads in French-Venezuelan Mixed
Claims Commission, cited in K. Ralston, Venezuelan Arbitrations of 1903 367 (1904) 3881
Franco-Tunisian Arbitral Tribunal
Award in Franco-Tunisian Arbitral Tribunal of 2 April 1957, 24 I.L.R. 767 (1957) 1797
Gdynia International Court of Arbitration for Marine and Inland Navigation
Award in International Court of Arbitration for Marine and Inland Navigation at Gdynia of 15
December 1978, X Y.B. Comm. Arb. 89 (1985) 724
Geneva Chamber of Commerce
Award in Geneva Chamber of Commerce Case No. 137 of 24 March 2000, 21 ASA Bull. 781
(2003) 723, 784, 1541, 1566
Decision in Geneva Chamber of Commerce of 25 September 1997, 19 ASA Bull. 745 (2001)
2640, 2646, 2648
German Coffee Association
Final Award in German Coffee Association Case of 19 March 1987, XIX Y.B. Comm. Arb. 44
(1994) 2913
Final Award in German Coffee Association Case of 28 September 1992, XIX Y.B. Comm. Arb.
48 (1994) 835, 2889
German Maritime Arbitration Association
Award in German Maritime Arbitration Association Case of 8 November 2005, XXXI Y.B.
Comm. Arb. 66 (2006) 673, 778
Hamburg Chamber of Commerce
Award in Hamburg Chamber of Commerce Case of 21 March 1996, 1996 R.W. 766 2856
Award in Hamburg Chamber of Commerce Case of 14 July 2006, 2007 SchiedsVZ 55 1006,
3485
Award in Hamburg Chamber of Commerce Case of 5 May 2009, 2010 SchiedsVZ 173 138, 685
Partial Award in Hamburg Chamber of Commerce Case of 21 March 1996, XXII Y.B. Comm.
Arb. 35 (1997) 550, 2856, 2845, 2855
Hamburg Friendly Arbitration
Award in Hamburg Friendly Arbitration Case of 15 January 1976, III Y.B. Comm. Arb. 212 (1978)
707
Award in Hamburg Friendly Arbitration Case of 27 May 2002, XXX Y.B. Comm. Arb. 17 (2005)
303
Final Award in Hamburg Friendly Arbitration Case of 29 December 1998, XXIV Y.B. Comm.
Arb. 13 (1999) 2845
P 4433
Hungarian Chamber of Commerce and Industry
Award in Hungarian Chamber of Commerce and Industry Case of 10 December 1996,
available at cisgw3.law.pace.edu 2648
Hong Kong International Arbitration Centre (HKIAC)
Pointer Inv. H.K. Ltd v. Wisco Am. Co. Ltd, First Partial Award in HKIAC Case No. A14127 &
A14179 of 17 November 2015 2987
International Chamber of Commerce (ICC)
Addendum in ICC Case No. 6653, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection
of ICC Arbitral Awards 1991-1995 (1997) 3406
Addendum in ICC Case No. 10172, 13(1) ICC Ct. Bull. 79 (2002) 3405
Addendum in ICC Case No. 10189, 13(1) ICC Ct. Bull. 81 (2002) 3405
Addendum in ICC Case No. 10386, in Extracts from ICC Addenda and Decisions on the
Correction and Interpretation of Arbitral Awards, 13(1) ICC Ct. Bull. 86 (2002) 3395
Award in ICC Case of 3 November 1977, 1980 Rev. Arb. 560 1741
Award in ICC Case of 27 April 1992, 10(2) Mealey’s Int’l Arb. Rep. E-1, E-7 (1995) 2913
Award in ICC Case No. 953, III Y.B. Comm. Arb. 214 (1978) 565
Award in ICC Case No. 1110, 10 Arb. Int’l 282 (1994) 1078, 1131
Award in ICC Case No. 1350, 102 J.D.I. (Clunet) 931 (1975) 1095
Award in ICC Case No. 1422, 101 J.D.I. (Clunet) 884 (1974); in S. Jarvin & Y. Derains (eds.),
Collection of ICC Arbitral Awards 1974-1985 2848, 2862, 2932
407
Award in ICC Case No. 1434, 103 J.D.I. (Clunet) 978 (1976) 1356, 1359, 1429, 1538, 1554, 1560,
1564, 2943
Award in ICC Case No. 1455, III Y.B. Comm. Arb. 215 (1978) 2947
Final Award in ICC Case No. 1507, cited in S. Jarvin & Y. Derains (eds.), Collection of ICC
Arbitral Awards 1974-1985 215 (1990) 511, 521, 548, 550, 558
Award in ICC Case No. 1512, I Y.B. Comm. Arb. 128 (1976) 2845, 2889
Award in ICC Case No. 1526, 101 J.D.I. (Clunet) 915 (1974) 777, 1161
Award in ICC Case No. 1581, 6(1) ICC Ct. Bull. 14 (1995) 2889, 2932
Award in ICC Case No. 1598, in S. Jarvin & Y. Derains (eds.), Collection of ICC Arbitral Awards
1974-1985 (1990) 2856, 2892, 2938
1974-1985 (1990) 2993
Award in ICC Case No. 1703, “RAKTA” v. Parsons & Whittemore Overseas Co., reprinted in J.
Wetter (ed.), V The International Arbitral Process: Public and Private (1979) 3286
Final Award in ICC Case No. 1704, 105 J.D.I (Clunet) 981 (1978) 1584
1974-1985 (1990) 2859, 2864
Award in ICC Case No. 1912, discussed in Derains, L’Expérience de la Cour d’Arbitrage de la
Chambre de Commerce Internationale en Matière de Propriété Industrielle, 1977 Rev. Arb. 40
1082
P 4434
Award in ICC Case No. 1939, 1973 Rev. Arb. 122 777
Award in ICC Case No. 1955, quoted in Sanders, L’Autonomie de la Clause Compromissoire,
in Hommage à Frederic Eisemann (1978) 2914
Award in ICC Case No. 2048, discussed in Derains, L’Expérience de la Cour d’Arbitrage de la
Chambre de Commerce Internationale en Matière de Propriété Industrielle, 1977 Rev. Arb. 40
1082
1974-1985 (1990) 1447, 1541, 1566
1974-1985 (1990) 1485, 2857, 2889
Award in ICC Case No. 2321, I Y.B. Comm. Arb. 133 (1976) 838
Award in ICC Case No. 2375, 103 J.D.I. (Clunet) 973 (1976) 576, 1560, 1563, 1564, 1590
2232
Award in ICC Case No. 2637, II Y.B. Comm. Arb. 153 (1977) 3362
1974-1985 (1990) 2859
Award in ICC Case No. 2694, cited in S. Jarvin & Y. Derains (eds.), Collection of ICC Arbitral
Awards 1974-1985 (1990) 668
Award in ICC Case No. 2730, 111 J.D.I. (Clunet) 914 (1984) 1024, 2845, 2922, 2926
Award in ICC Case No. 2930, IX Y.B. Comm. Arb 105 (1984) 2834, 2850, 2859, 3362, 3364
Award in ICC Case Nos. 2977, 2978 & 3033, VI Y.B. Comm. Arb. 133 (1981) 2913
Award in ICC Case Nos. 3099 & 3100, VII Y.B. Comm. Arb. 87 (1982) 1744, 2507
408
1974-1985 (1990); IX Y.B. Comm. Arb. 109 (1984) 2859, 2870
1974-1985 (1990) 2864
1974-1985 (1990) 2859, 2864
Award in ICC Case No. 3380, VII Y.B. Comm. Arb. 116 (1982) 1429
1974-1985 (1990) 4149
Award in ICC Case No. 3460, 108 J.D.I. (Clunet) 939 (1981) 835, 1429, 2232
Award in ICC Case No. 3493, IX Y.B. Comm. Arb. 111 (1984) 1591, 1596, 1597, 2986
1974-1985 (1990); VII Y.B. Comm. Arb. 124, 127 (1982) 2643, 2828, 2845, 2850, 2855, 2870
P 4435
Award in ICC Case No. 3572, XIV Y.B. Comm. Arb. 111 (1989) 2845, 2870
1974-1985 (1990) 2864
1974-1985 (1990) 2864
1974-1985 (1990) 2993
Award in ICC Case No. 4237, in Y. Derains & S. Jarvin (eds.), Collection of ICC Arbitral Awards
1974-1985 (1990); X Y.B. Comm. Arb. 52 (1985) 2845, 2859, 2862, 2864, 2943, 2973, 2990, 3362
Award in ICC Case No. 4381, 113 J.D.I. (Clunet) 1102 (1986) 521, 558, 565, 636, 668, 776, 802,
872, 914, 1161
Award in ICC Case No. 4392, 110 J.D.I. (Clunet) 907 (1983); cited in S. Jarvin & Y. Derains
(eds.), Collection of ICC Arbitral Awards 1974-1985 (1990) 663, 800, 1484, 1485
Award in ICC Case No. 4406, 1986 Rev. Arb. 469 764, 1771, 1775
1974-1985 (1990); 112 J.D.I. (Clunet) 973 (1985) 646, 1062, 1068
Award in ICC Case No. 4606, Parker Drilling Co. v. Sonatrach, described in Branson &
Wallace, Awarding Interest in International Commercial Arbitration: Establishing A Uniform
Approach, 28 Va. J. Int’l L. 919 (1988) 3362
Award in ICC Case No. 4650, in S. Jarvin, Y. Derains & J.-J. Arnaldez (eds.), Collection of ICC
Arbitral Awards 1986-1990 (1994) 2859
1986-90 (1994) 779
Arbitral Awards 1986-1990 (1994) 1541, 1593
Award in ICC Case No. 5103, 115 J.D.I. (Clunet) 1206 (1988) 777, 818, 835, 1470, 1555, 1560, 1561,
1562, 2643, 2991, 4167
409
Arbitral Awards 1986-1990 (1994) 1487
Arbitral Awards 1986-1990 (1994) 2857, 2861, 2991
Award in ICC Case No. 5281, 7 ASA Bull. 313 (1989) 1566
Arbitral Awards 1986-1990 (1994) 1469
P 4436
Award in ICC Case No. 5488, discussed in E. Gaillard & J. Savage (eds.), Fouchard Gaillard
Goldman on International Commercial Arbitration (1999) 844
Award in ICC Case No. 5587, discussed in Grigera Naón, Choice-of-Law Problems in
International Commercial Arbitration, 289 Recueil des Cours 9 (2001) 2853
Arbitral Awards 1986-1990 (1994) 2797
1554, 1555, 1557, 1562, 1563, 1568, 1592, 1594, 1607, 1612
Award in ICC Case No. 5754, excerpted in W. Craig, W. Park & J. Paulsson, International
Chamber of Commerce Arbitration (3d ed. 2000) 1429
Award in ICC Case No. 5832, 115 J.D.I. (Clunet) 1198 (1988); cited in J.-J. Arnaldez, Y. Derains
& S. Jarvin (eds.), Collection of ICC Arbitral Awards 1986-1990 (1994) 548, 550, 663, 665, 761,
779, 1536
Award in ICC Case No. 5877, excerpted in Mantilla-Serrano, International Arbitration and
Insolvency Proceedings, 11 Arb. Int’l 51 (1995) 1095
Award in ICC Case No. 5901, quoted in Grigera Naón, Choice-of-Law Problems in
International Commercial Arbitration, 289 Recueil des Cours 9 (2001) 4106, 4151
Award in ICC Case No. 6079, summarized in Hascher, L’Autorité de la Chose Jugée des
Sentences Arbitrales, Travaux du Comité Français du Droit International Privé 2000-2002
(2004) 3415
Award in ICC Case No. 6192, excerpted in Mantilla-Serrano, International Arbitration and
Insolvency Proceedings, 11 Arb. Int’l 51 (1995) 1095
International Commercial Arbitration, 289 Recueil des Cours 9 (2001) 1023, 1577, 4166
Award in ICC Case No. 6281, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of ICC
Arbitral Awards 1991-1995 (1997) 2852, 2857, 2858, 2861
Award in ICC Case No. 6281, XV Y.B. Comm. Arb. 96 (1990) 3362
Award in ICC Case No. 6474, XXV Y.B. Comm. Arb. 279 (2000) 2878
Award in ICC Case No. 6476, 8(1) ICC Ct. Bull. 59 (1997); discussed in Grigera Naón, Choice-of-
Law Problems in International Commercial Arbitration, 289 Recueil des Cours 9 (2001) 566,
2097
P 4437
410
Arbitral Awards 1991-1995 (1997) 1469
Arbitral Awards 1991-1995 (1997) 1541
Arbitral Awards 1991-1995 (1997) 1576
Arbitral Awards 1991-1995 (1997) 1541
Award in ICC Case No. 6840, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection of
ICC Arbitral Awards 1991-1995 (1997) 1021
Award in ICC Case No. 7061, quoted in B. Hanotiau, Complex Arbitrations (2020) 4198
Award in ICC Case No. 7154, 121 J.D.I. (Clunet) 1059 (1994) and in J.-J. Arnaldez, Y. Derains &
D. Hascher (eds.), Collection of ICC Arbitral Awards 1991-1995 (1997) 612, 1483, 1580, 2864
Award in ICC Case No. 7250, 7(1) ICC Ct. Bull. 92 (1996) 2857
International Commercial Arbitration, 289 Recueil des Cours 9 (2001) 566, 668, 670, 776,
1713
Award in ICC Case No. 7375, 11(12) Mealey’s Int’l Arb. Rep. A-1 (1996) 776, 1482, 2848, 2974
Award in ICC Case Nos. 7604 & 7610, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Collection of ICC Arbitral Awards 1996-2000 (2003) 1431, 1544, 1554, 1561, 1562, 1612, 1616
Arbitral Awards 2001-2007 (2009); 129 J.D.I. (Clunet) 1071 (2002) 2987, 4167
P 4438
Award in ICC Case No. 8261, 4 Unif. L. Rev. 170 (1999) 1430, 2974
Award in ICC Case No. 8385, cited in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection
of ICC Arbitral Awards 1996-2000 (2003) 565, 1546, 1553, 1554, 1556, 1557, 1566, 1568, 1607,
1608, 2845, 2852, 2855, 2860, 2917, 2973, 2974
Award in ICC Case No. 8486, XXIV Y.B. Comm. Arb. 162 (1999) 1356, 3351
411
Arbitral Awards 1996-2000 (2003) 2567
Award in ICC Case No. 9163, 2003 Rev. Arb. 227 1095
Award in ICC Case No. 9288 1444
Award in ICC Case No. 9617, mentioned in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Collection of ICC Arbitral Awards 2001-2007 (2009) 1747
Award in the ICC Case No. 9651, UNILEX (UNIDROIT Principles) 2893
Award in ICC Case No. 9759 1445
Award in ICC Case No. 9771, XXIX Y.B. Comm. Arb. 46 (2004) 2851, 2856, 2861
P 4439
Arbitral Awards 2001-2007 (2009) 1469
Award in ICC Case No. 9987, Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious
Affairs, Pakistan, 2(4) Int’l J. Arab Arb. 370 (2010) 560
Award in ICC Case No. 10021, UNILEX (UNIDROIT Principles) 2978, 2979
412
Award in ICC Case No. 10623, 21 ASA Bull. 59 (2003) 1661, 4157, 4174
Arbitral Awards 2001-2007 720 (2009) 1469
Award in ICC Case No. 11195, 1(3) Int’l J. Arab Arb. 453 (2009) 2414
ICC Arbitral Awards 2012-2015 (2019) 3351, 3353, 3364
Award in ICC Case No. 11761, quoted in M. Bühler & T. Webster, Handbook of ICC Arbitration:
Commentary, Precedents, Materials (4th ed. 2018) 490
Award in ICC Case No. 11869, XXXVI Y.B. Comm. Arb. 47 (2011) 556, 612, 637, 818
Award in ICC Case No. 11876, 20 ICC Ct. Bull. 85 (2009) 1095
Award in ICC Case No. 12073, XXXIII Y.B. Comm. Arb. 62 (2008) 1658, 1748, 1749, 2364
Award in ICC Case No. 12111, UNILEX (UNIDROIT Principles) 2966, 2974
Award in ICC Case No. 12127, XXXIII Y.B. Comm. Arb. 82 (2008) 2925
Arbitral Awards 2001-2007 (2009) 1469
Award in ICC Case No. 12193, 1(2) Int’l J. Arab Arb. 449 (2009) 2858
P 4440
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Award in ICC Case No. 13954, XXXV Y.B. Comm. Arb. 218 (2010) 778
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Collection of ICC Arbitral Awards 2012-2015 (2018) 421, 422, 490, 491, 556, 672
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662, 1689
413
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Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Pakistan, Partial
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1982, IX Y.B. Comm. Arb. 131 (1984) 1557, 1559, 1560, 1564, 1565, 1568, 1607, 1616
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Final Award on Jurisdiction in ICC Case No. 10904, XXXI Y.B. Comm. Arb. 95 (2006) 2756
Final Award in ICC Case No. 2073, XXXIII Y.B. Comm. Arb. 63 (2003) 2850
Final Award in ICC Case No. 2637, II Y.B. Comm. Arb. 153 (1977) 3364
Final Award in ICC Case No. 3267, XII Y.B. Comm. Arb. 87 (1987) 4145, 4149, 4150
Final Award in ICC Case No. 3572, XIV Y.B. Comm. Arb. 111 (1989) 511, 556, 636
Final Award in ICC Case No. 3755, 1(2) ICC Ct. Bull. 25 (1990) 2991
Final Award in ICC Case No. 4145, XII Y.B. Comm. Arb. 97 (1987) 2489
Final Award in ICC Case No. 4629, XVIII Y.B. Comm. Arb. 11 (1993) 2938, 3351
Final Award in ICC Case No. 5281, 7 ASA Bull. 313-33 (1989) 722
Final Award in ICC Case No. 5294, XIV Y.B. Comm. Arb. 137 (1989) 511, 549, 548, 550, 835, 1161,
1741, 1747, 2232, 4157, 4174
Final Award in ICC Case No. 5460, XIII Y.B. Comm. Arb. 104 (1988) 1161, 2845, 2855, 2856,
3350, 3362, 3364
Final Award in ICC Case No. 5485, XIV Y.B. Comm. Arb. 156 (1989) 564, 565, 566, 612, 1161,
1354, 1741, 3362
Final Award in ICC Case No. 5622, XIX Y.B. Comm. Arb. 105 (1994) 2489, 2922, 2923, 2924
Final Award in ICC Case No. 5650, XVI Y.B. Comm. Arb. 855 (1991) 2643
Final Award in ICC Case No. 5885, 1(2) ICC Ct. Bull. 23 (1990) 2861, 2862
Final Award in ICC Case No. 5946, XVI Y.B. Comm. Arb. 97 (1991) 1410, 1429, 2918, 2921, 3332,
3335, 4037
Final Award in ICC Case No. 5989, XV Y.B. Comm. Arb. 74 (1990) 1484
Final Award in ICC Case No. 6149, XX Y.B. Comm. Arb. 41 (1995) 996
Final Award in ICC Case No. 6162, cited in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Collection of ICC Arbitral Awards 1991-1995 75 (1997) 521, 549, 558, 612, 665, 1161, 3362
Final Award in ICC Case No. 6197, XXIII Y.B. Comm. Arb. 13 (1998) 2909
Final Award in ICC Case No. 6230, XVII Y.B. Comm. Arb. 164 (1992) 3362
Final Award in ICC Case No. 6248, XIX Y.B. Comm. Arb. 124 (1990) 490
414
Final Award in ICC Case No. 6268, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.), Collection
of ICC Awards 1991-1995 68 (1997); XVI Y.B. Comm. Arb. 119 (1991) 422, 1161, 1531
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Final Award in ICC Case No. 6363, XVII Y.B. Comm. Arb. 186 (1992) 636, 1582, 3351, 4138, 4149,
4198
Final Award in ICC Case No. 6379, XVII Y.B. Comm. Arb. 212 (1992) 511, 556, 560, 636, 648, 650,
1124, 2832, 2889, 2893, 2908, 2913, 2925
Final Award in ICC Case No. 6497, XXIV Y.B. Comm. Arb. 71 (1999) 2450, 2567
P 4442
Final Award in ICC Case Nos. 6515 & 6516, XXIV Y.B. Comm. Arb. 80 (1999) 1127, 1141, 1144,
1161, 1747, 2427
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Final Award in ICC Case No. 6527, XVIII Y.B. Comm. Arb. 44 (1993) 2834, 2845, 2850, 3350,
3351, 3364
Final Award in ICC Case No. 6531, XVII Y.B. Comm. Arb. 221 (1992) 3361
Final Award in ICC Case No. 6752, XVIII Y.B. Comm. Arb. 54 (1993) 511, 556, 560, 3350
Final Award in ICC Case No. 6829, XIX Y.B. Comm. Arb. 167 (1994) 1342, 1484
Final Award in ICC Case No. 6840, cited in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Collection of ICC Arbitral Awards 1991-1995 467 (1997) 560
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Final Award in ICC Case No. 6955, XXIV Y.B. Comm. Arb. 107 (1999) 1430, 3353
Final Award in ICC Case No. 6998, XXI Y.B. Comm. Arb. 54 (1996) 1487, 2726
Final Award in ICC Case No. 7047, 13 ASA Bull. 301 (1995) 779, 2916, 2922, 2924
Final Award in ICC Case No. 7097, in ICC, International Commercial Arbitration in Europe 38
(1993) 1061, 1068
Final Award in ICC Cases No. 7385 & 7402, XVIII Y.B. Comm. Arb. 68 (1993) 3347
Final Award in ICC Case No. 7453, XXII Y.B. Comm. Arb. 107 (1997) 521, 558, 800, 1544
Final Award in ICC Case No. 7536, 11(1) ICC Ct. Bull. 52 (2000); cited in Lew, Commentary on
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2625, 2677
Final Award in ICC Case No. 7626, XXII Y.B. Comm. Arb. 131 (1997) 422, 491, 940, 1491, 1547,
1554, 2553, 2558
Final Award in ICC Case No. 7722, XXXII Y.B. Comm. Arb. 13 (2007) 565
Final Award in ICC Case No. 7828, cited in Lew, Commentary on Interim and Conservatory
Measures in ICC Arbitration Cases, 11(1) ICC Ct. Bull. 23 (2000) 2626
Final Award in ICC Case No. 7895, 11(1) ICC Ct. Bull. 64 (2000) 2490, 2641, 2668
of ICC Arbitral Awards 1996-2000 474 (2003) 2925
Final Award in ICC Case No. 8423, XXVI Y.B. Comm. Arb. 153 (2001) 1068, 1131
415
Final Award in ICC Case No. 8445, XXVI Y.B. Comm. Arb. 167 (2001) 981, 995, 3353
Final Award in ICC Case No. 8486, XXIV Y.B. Comm. Arb. 162 (1999) 2978
Final Award in ICC Case No. 8528, XXV Y.B. Comm. Arb. 341 (2000) 2921, 2922, 2923, 3353
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Final Award in ICC Case No. 8887, discussed in Judgment of 30 September 2013, DFT
4A_232/2013 (Swiss Fed. Trib.) 1410
Final Award in ICC Case No. 8938, XXIV Y.B. Comm. Arb. 174 (1999) 376, 378, 422, 576, 1161,
2889, 2893
Final Award in ICC Case No. 9154, 11(1) ICC Bull. 98 (2000) 2677
Final Award in ICC Case No. 9302, XXVIII Y.B. Comm. Arb. 54 (2003) 576, 2138, 3357
Final Award in ICC Case No. 9324, cited Lew, Commentary on Interim and Conservatory
Measures in ICC Arbitration Cases, 11(1) ICC Ct. Bull. 23 (2000) 2668
Final Award in ICC Case No. 9333, 19 ASA Bull. 757 (2001) 2489
Final Award in ICC Case No. 9466, XXVII Y.B. Comm. Arb. 170 (2002) 3353
Final Award in ICC Case No. 9762, XXIX Y.B. Comm. Arb. 26 (2004) 1342, 1569, 1577, 1620
Final Award in ICC Case No. 9771, XXIX Y.B. Comm. Arb. 46 (2004) 1540, 2832, 2845, 2847
Final Award in ICC Case No. 9797, 18 ASA Bull. 514 (2000) 839, 1501, 1607, 1885, 2966
Final Award in ICC Case 9812, 20(2) ICC Ct. Bull. 69 (2009) 983, 985, 986, 990
Final Award in ICC Case No. 9839, XXIX Y.B. Comm. Arb. 66 (2004) 1566, 1570
Final Award in ICC Case No. 9987, 2(4) Int’l J. Arab Arb. 420 (2010) 1597
Final Award in ICC Case No. 10188, XXVIII Y.B. Comm. Arb. 68 (2003) 3353
Final Award in ICC Case No. 10329, XXIX Y.B. Comm. Arb. 108 (2004) 490, 491, 722, 1532, 2835
Final Award in ICC Case No. 10377, XXXI Y.B. Comm. Arb. 72 (2006) 2834
Final Award in ICC Case No. 10422, 130 J.D.I. (Clunet) 1142 (2003) 2870
Final Award in ICC Case No. 10758, 128 J.D.I. (Clunet) 1171 (2001) 1612, 1562, 1521
Final Award in ICC Case No. 11160, 16(2) ICC Ct. Bull. 99 (2005) 1553, 1562, 1564, 1565
Final Award in ICC Case No. 11490, XXXVII Y.B. Comm. Arb. 167 (2012) 981, 990, 994, 1455
Final Award in ICC Case No. 11670, 22 ASA Bull. 333 (2004) 3350, 3352
Final Award in ICC Case No. 11849, XXXI Y.B. Comm. Arb. 148 (2006) 2834, 2987
Final Award in ICC Case No. 12112, XXXIV Y.B. Comm. Arb. 77 (2009) 2863
Final Award in ICC Case No. 12193, 1(2) Int’l J. Arab Arb. 449 (2009) 1725, 1742, 2857
Final Award in ICC Case No. 12502, XXXIV Y.B. Comm. Arb. 130 (2009) 1458, 1469, 1748
Final Award in ICC Case No. 12745, XXXV Y.B. Comm. Arb. 40 (2010) 1444
Final Award in ICC Case No. 13009, XXXVI Y.B. Comm. Arb. 70 (2011) 2400
Final Award in ICC Case No. 13129, XXXIV Y.B. Comm. Arb. 231 (2010) 2829
Final Award in ICC Case No. 13450, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Final Award in ICC Case No. 13954, XXXV Y. B. Comm. Arb. 218 (2010) 2895, 2920, 2931, 2986
Final Award in ICC Case No. 14046, XXXV Y.B. Comm. Arb. 241 (2010) 548, 549, 566, 1438,
1444, 1478, 1732, 2909, 2911, 2921
Final Award in ICC Case No. 14581, XXXVII Y.B. Comm. Arb. 62 (2012) 2987
of ICC Arbitral Awards 2012-2015 399 (2019) 2863
P 4444
416
of ICC Arbitral Awards 2012-2015 569 (2019) 2870, 2974
of ICC Arbitral Awards 2012-2015 177 (2019) 1169, 2921, 2923
of ICC Arbitral Awards 2012-2015 177 (2019) 1161, 1169
of ICC Arbitral Awards 2012-2015 177 (2019) 1161, 1162, 1169
of ICC Arbitral Awards 2012-2015 205 (2019) 1169, 2892, 2921, 2913
Final Award in ICC Case No. 16369, XXIX Y.B. Comm. Arb. 169, 173 (2014) 940
of ICC Arbitral Awards 2012-2015 569 (2019) 2859, 2869, 2870, 2978
Final Award in ICC Case No. 17020, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Final Award in ICC Case No. 17146, 2015:1 ICC Disp. Resol. Bull. 114 575
Final Award in ICC Case No. 17176, XLI Y.B. Comm. Arb. 86 (2016) 4199
Final Award in ICC Case No. 17185, 2016:2 ICC Disp. Resol. Bull. 80 (2016) 1409
Final Award in ICC Case No. 17768, XLII Y.B. Comm. Arb. 100 (2017) 2909
Final Award in ICC Case No. 17818, Nat’l Bank of Xanadu v. ACME Co., XLIV Y.B. Comm. Arb.
140 565, 612, 856
Final Award in ICC Case No. 18203, XLI Y.B. Comm. Arb. 276 (2013) 1741, 2832, 2844, 2869,
2878, 2889, 2938
Final Award in ICC Case No. 18643, XLIV Y.B. Comm. Arb. 145 (2019) 549, 2849, 4198
Final Award in ICC Case No. 18728, XLIII Y.B. Comm. Arb. 108 (2018) 2979, 2985, 3361
Final Award in ICC Case No. 18769/VRO/AGF of 17 January 2014 261
Final Award in ICC Case No. 18981, XLIII Y.B. Comm. Arb. 108 (2018) 2834, 2979, 2987, 3350,
3361
Final Award in ICC Case No. 19114, XLIII Y.B. Comm. Arb. 235 (2018) 3350
Final Award in ICC Case No. 19127, XLII Y.B. Comm. Arb. 251 (2017) 1144, 1741, 2978
Final Award in ICC Case No. 20686/RD, Arb. Intell. Mat. 511, 521, 556, 636
Final Report on Interim and Partial Awards, 1(2) ICC Ct. Bull. 26 (1990) 2692
Interim Award in ICC Case No. 2521, 103 J.D.I. (Clunet) 997 (1976) 777
Interim Award in ICC Case No. 3879, XI Y.B. Comm. Arb. 127 (1986) 1484
Interim Award in ICC Case No. 4131, IX Y.B. Comm. Arb. 131 (1984) 511, 521, 576, 636, 4198,
4200
Interim Award in ICC Case No. 4145, XII Y.B. Comm. Arb. 97 (1987) 490, 491, 564, 818, 954, 955,
1078, 1448, 2938, 2894
Interim Award in ICC Case No. 4367, XI Y.B. Comm. Arb. 134 (1986) 138, 562, 1169, 1469, 1482,
2938
Interim Award in ICC Case No. 4472, 111 J.D.I. (Clunet) 946 (1984) 549, 835, 1169, 2232
Interim Award in ICC Case No. 4504, 113 J.D.I. (Clunet) 1118 (1986) 385, 521, 548, 550, 854,
1541, 1562, 1565, 1566, 1591, 1592, 1612
Interim Award in ICC Case No. 4695, XI Y.B. Comm. Arb. 149 (1986) 565, 636, 1161, 1732, 1748
Interim Award in ICC Case No. 5029, XII Y.B. Comm. Arb. 113 (1987) 818, 1725, 1732, 1735, 1742,
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P 4445
Interim Award in ICC Case No. 5065, 114 J.D.I. (Clunet) 1039 (1987) 779
Interim Award in ICC Case No. 5314, XX Y.B. Comm. Arb. 35 (1995) 2986
Interim Award in ICC Case No. 5717, 1(2) ICC Ct. Bull. 22 (1990) 2943
Interim Award in ICC Case No. 6097, 4(2) ICC Ct. Bull. 76 (1993) 1080, 1082
Interim Award in ICC Case No. 6149, XX Y.B. Comm. Arb. 41 (1995) 548, 549, 565, 2845, 2855,
2857, 2862, 2977
Interim Award in ICC Case No. 6560, XVII Y.B. Comm. Arb. 226 (1992) 2864
417
Interim Award in ICC Case No. 6610, XIX Y.B. Comm. Arb. 162 (1994) 1560, 1563, 1566
Interim Award in ICC Case No. 6648, XXIII Y.B. Comm. Arb. 30 (1998) 1342
Interim Award in ICC Case No. 7263, XXII Y.B. Comm. Arb. 92 (1997) 422, 490, 777
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Interim Award in ICC Case No. 7544, 11(1) ICC Ct. Bull. 56 (2000) 2625, 2645
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1341, 1427, 1428, 1429, 1438, 1448, 1482, 1487
Interim Award in ICC Case No. 8786, 11(1) ICC Ct. Bull. 81 (2000) 2625, 2645, 2652, 2653, 2640,
2651, 2655
Interim Award in ICC Case No. 8879, 11(1) ICC Ct. Bull. 84 (2000) 2641, 2645, 2670, 2683, 2693
Interim Award in ICC Case No. 8894, 11(1) ICC Ct. Bull. 94 (2000) 2646, 2648, 2652, 2657, 2661,
2675
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Interim Award in ICC Case No. 11061, discussed in Grigera Naón, Choice-of-Law Problems in
International Commercial Arbitration, 289 Recueil des Cours 9 (2001) 2845, 2847, 2855, 2864
Interim Award in ICC Case No. 11333, XXXI Y.B. Comm. Arb. 117 (2006) 1658, 2834, 2852
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ASA Bull. 810 (2003) 2690
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2661, 2673
418
Partial Award in ICC Case No. 4126, in S. Jarvin & Y. Derain (eds.), Collection of ICC Arbitral
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2243
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Partial Award in ICC Case No. 7146, XXVI Y.B. Comm. Arb. 119 (2001) 1068
International Commercial Arbitration, 289 Recueil des Cours 9 (2001); 7(1) ICC Ct. Bull. 89
(1996) 1713, 2832
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Partial Award in ICC Case No. 8420, XXV Y.B. Comm. Arb. 328 (2000) 649, 650, 646, 1483,
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Partial Award in ICC Case No. 8910, 127 J.D.I. (Clunet) 1085 (2000) 646, 1021, 1564, 1615
Partial Award in ICC Case No. 9787, XXVII Y.B. Comm. Arb. 181 (2002) 1021
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Religious Affairs, Pakistan, 2(4) Int’l J. Arab Arb. 337 (2010) 521, 576
Partial Award in ICC Case No. 10021, UNILEX (UNIDROIT Principles) 2986
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(2001) 2979, 2978, 2986
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Ct. Bull. 59 (2003) 1357
419
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Derains & D. Hascher (eds.), Collection of ICC Arbitral Awards 2012-2015 287 (2019) 1161,
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United Parcel Serv. of Am., Inc. v. Canada, Decision on the Place of Arbitration in ICSID Case
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Decision in SCC Case 87/2000, described in Öhrström, Decisions by the SCC Institute
Regarding Challenge of Arbitrators, 2002:1 Stockholm Arb. Rep. 35 2005
Decision in SCC Case 60/2001, described in Öhrström, Decisions by the SCC Institute
Regarding Challenge of Arbitrators, 2002:1 Stockholm Arb. Rep. 35 2008
Decision in SCC Case 148/2003, described in Magnusson & Larsson, Recent Practice of the
Arbitration Institute of the Stockholm Chamber of Commerce: Prima Facie Decisions on
Jurisdiction Challenges of Arbitrators, 2004:2 Stockholm Arb. Rep. 47, 68 2022
Decision in SCC Case 014/2004, discussed in Slaoui, The Rising Issue of “Repeat Arbitrators”:
A Call for Clarification, 25 Arb. Int’l 103 (2009) 2019
Decision in SCC Case 053/2005, described in Jung, SCC Practice: Challenges to Arbitrators,
SCC Board Decisions 2005-2007, 2008:1 Stockholm Arb. Rev. 1 2008
Decision in SCC Case No. 002/2006, described in Jung, SCC Practice: Challenges to
Arbitrators, SCC Board Decisions 2005-2007, 2008:1 Stockholm Arb. Rev. 1 2010
Decision in SCC Case 046/2007, described in Jung, SCC Practice: Challenges to Arbitrators,
SCC Board Decisions 2005-2007, 2008:1 Stockholm Arb. Rev. 1 2007
Decision in SCC Case 45/2008, described in N. Lindström, Challenges to Arbitrators:
Decisions by the SCC Board During 2008-2010 (2011) 2011
P 4472
439
Decision in SCC Case 115/2010, described in F. Mutis Tellez, Arbitrators’ Independence and
Impartiality: A Review of SCC Board Decisions on Challenges to Arbitrators (2010-12) (2013)
2009
Impartiality: A Review of SCC Board Decisions on Challenges to Arbitrators (2010-12) 14
(2013) 2011
Decisions in SCC Case 81/2012, 174/2011, 124/2011, 170/2011 & 174/2011, described in F.
Mutis Tellez, Arbitrators’ Independence and Impartiality: A Review of SCC Board Decisions
on Challenges to Arbitrators (2010-12) 9 (2013) 2008
Impartiality: A Review of SCC Board Decisions on Challenges to Arbitrators (2010-12) (2013)
2011
Decision on Challenge in SCC Case No. 046/2007, described in Jung, SCC Practice:
Challenges to Arbitrators, SCC Board Decisions 2005-2007, 2008:1 Stockholm Arb. Rev. 1
1999
Evrobalt LLC v. Moldova, Award on Emergency Measures in SCC Case No. 2016-082 of 30 May
2016 2644
Final Award in SCC Case No. 158/2011, XXXVIII Y.B. Comm. Arb. 253 (2013) 2909, 2922
Kompozit LLC v. Moldova, Emergency Award on Interim Measures in SCC Case No. 2016-095
of 14 June 2016 2644, 2687
Mohammad Ammar Al-Bahloul v. Tajikistan, Partial Award on Jurisdiction and Liability in
SCC Case No. V064/2008 of 2 September 2009 982
Mohammed Munshi v. Mongolia, Award on Emergency Measures in SCC Case No. 2018-007 of
5 February 2018 2644
Novenergia II – Energy & Environment (SCA), SICAR v. Spain, Procedural Order No. 17 in SCC
Case No. V2015/063 of 9 April 2018 3382
Petrobart Ltd v. Kyrgyzstan, Award in SCC Case No. 126/2003 of 29 March 2005 3059
PJSC E. Sugar BV v. Czechia, Partial Award in SCC Case No. 088/2004 of 27 March 2007 194
Sedelmayer v. Russia, Award in SCC Case of 7 July 1998 982
Stati v. Kazakhstan, Award in SCC Case No. 116/2010 of 19 December 2013 982
SIAC
Award in SIAC Case. No. 6 of 6 February 1998, cited in P. Binder, International Commercial
Arbitration and Mediation in UNCITRAL Model Law Jurisdictions (4th ed. 2019) 3383, 3400
Laos v. Lao Holdings NV, Final Award in SIAC Case No. 143 of 29 June 2014 3125
Society of Maritime Arbitrators
Koch Shipping, Inc. v. Antco Shipping Ltd, Award in SMA Case No. 2219 of 4 March 1986, XII
Y.B. Comm. Arb. 169 (1987) 3347
Map Tankers, Inc. v. MOBIL Ltd, Partial Final Award in SMA Case No. 1510 of 28 November
1980, VII Y.B. Comm. Arb. (1982) 1559
Nagos Compania Maritima v. Del Bene, SACIF, Award in SMA Case No. 2533 of 30 November
1988, 4 Soc. Mar. Arb. 297 (1988) 2638
P 4473
Palm Shipping v. Imbar Maritima, SA, Award in SMA Case No. 2546 of 12 September 1988, 5
Soc. Mar. Arb. 191 (1988) 2638
Spanish–United States Claims Commission
Delgado Case in Spanish-United States Claims Commission of 27 May 1881, in J. Moore (ed.),
International Arbitrations to Which the United States Has Been A Party 2196 (1898) 4151
Case of Danford Knowlton & Co., Award of 31 March 1881, in J. Moore (ed.), International
Arbitrations to Which the United States Has Been A Party 2194 (1898) 4151
Machado Case, Award of 12 July 1880, in J. Moore (ed.), International Arbitrations to Which
the United States Has Been A Party (1898) 4151
Swiss Arbitration Association
Award in SCAI Case No. 25 of 25 January 2016, 34 ASA Bull. 394 (2016) 1095
Award in SCAI Case of 21 December 1998, 17 ASA Bull. 59 (1999) 2680
440
Decision in Arbitration No. 22 of 1972, 12 ASA Bull. 148 (1994) 2676
U.S.–Mexico General Claims Commission
Parker v. United Mexican States, Award in U.S.–Mexico General Claims Commission of 31
March 1926, IV R.I.A.A. 35 (1952) 2484, 2485, 2486, 2507
USSR Chamber of Commerce and Industry
All-Union Foreign Trade Ass’n Sojuznefteexport v. JOC Oil Ltd, Award in USSR Chamber of
Commerce and Industry Case of 9 July 1984, XVIII Y.B. Comm. Arb. 92 (1993) 385, 422, 427,
489, 491, 500, 802, 853, 3775
Award in USSR Chamber of Commerce and Industry Case of 6 October 1977, V Y.B. Comm.
Arb. 209 (1980) 2845, 2855
Award in USSR Chamber of Commerce and Industry in Case No. 229/1996 of 5 June 1997,
UNILEX (UNIDROIT Principles) 2979
Award in USSR Chamber of Commerce and Industry in Case No. 217/2001 of 6 November
2002, UNILEX (UNIDROIT Principles) 2979
Award in USSR Chamber of Commerce and Industry, Case No. 174/2003 of 12 November
2004, UNILEX (UNIDROIT Principles) 2979
USSR Maritime Arbitration Commission
Award in USSR Maritime Arbitration Commission Case No. 82/1981 of 14 February 1984, XIV
Y.B. Comm. Arb. 201 (1989) 2845
Vienna International Arbitration Centre (VIAC)
Interim Award on Jurisdiction in VIAC Case No. SCH-5024 of 5 August 2008, 2(2) Int’l J. Arab
Arb. 341 (2010) 1425
United Nations Dispute Tribunal (UNDT)
Tadonki v. Secretary General of the United Nations, Award in UNDT Case No.
UNDT/NBI/2009/36 of 26 February 2013 3078
Zurich Chamber of Commerce and Industry
Award in Zurich Chamber of Commerce Case No. 188/1991 of 11 February 1993, cited in
Judgment of 1 September 1993, 14 ASA Bull. 623 (Swiss Fed. Trib.) (1996) 1538
P 4474
Award in Zurich Chamber of Commerce Case No. 287/95 of 25 March 1996, 14 ASA Bull. 290
(1996) 835
Award in Zurich Chamber of Commerce Case No. 273/95 of 31 May 1996, XXIII Y.B. Comm.
Arb. 128 (1998) 1480, 1482, 1484
Award in Zurich Chamber of Commerce Case of 7 August 2006, 25 ASA Bull. 755 (2007) 665,
723
Order No. 4 in Zurich Chamber of Commerce Case No. 415 of 20 November 2001, 20 ASA Bull.
467 (2002) 2680, 2681
Order No. 6 in Zurich Chamber of Commerce of 12 November 1991, 13 ASA Bull. 84 (1995)
2680
Preliminary Award in Zurich Chamber of Commerce of 25 November 1994, XXII Y.B. Comm.
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P 4474
441
Document information Index of Cases
Argentina
Publication Judgment of 26 September 1988, Enrique C. Wellbers SAIC AG v. Extraktionstechnik
International Commercial Gesellschaft für Anlagenbau, 1989 La Ley E-302 (Argentine Cámara Nacional de
Arbitration (Third Edition) Apelaciones en lo Comercial) 419, 1158
Judgment of 10 November 1988, Nidera Argentina SA v. Alvarez de Canale, Fallos 311: 2300
(Argentine Corte Suprema de Justicia) 1158
Bibliographic Judgment of 27 August 1999, Camuzzi Argentina SA v. Sodigas Sur SA, La Ley 1999-ED
reference (Argentine Corte Suprema de Justicia de la Nación) 419
'Index of Cases', in Gary B. Judgment of 18 July 2006, Propyme Argentina UTE v. Argentina, Lexis No. 35003862
Born , International (Argentine Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal)
Commercial Arbitration 3550
(Third Edition), 3rd edition
(© Kluwer Law Judgments of 24 August 2006 & 11 March 2008, Cacchione v. Urbaser Argentina SA, CSJN
International; Kluwer Law 18/3/2008, Fallos 329:3399 (Argentine Corte Suprema de Justicia) 1716, 3663
International 2021) pp. 4475 Judgment of 28 October 2009, Harz und Derivate v. Akzo Nobel Coating SA (Argentine
- 4792 Cámara Nacional de Apelaciones en lo Comercial) 1158
Judgment of 4 December 2009, Far E. Shipping Co. v. Arhehpez SA, XXXV Y.B. Comm. Arb. 318
(Mar del Plata Cámara Federal de Apelaciones) (2010) 3161, 3707, 3736, 3957
Judgment of 7 February 2011, Sociedad de Inversiones Inmobiliarias Del Puerto SA v.
Constructora Iberoamericana SA, AR/JUR 7147/2011 (Buenos Aires Cámara Nacional de
Apelaciones en lo Comercial) 3598, 3439
Judgment of 1 March 2011, Smit Int’l Argentina v. Puerto Mariel, Case No. 2553/10 (Argentine
Corte Suprema de Justicia de la Nación) 419
Judgment of 25 February 2013, Wallaby SA v. Despegar.com.ar SA, Unpublished Opinion
(Argentine Corte Federal de Apelaciones) 814, 817, 830
Judgment of 11 July 2013, Case No. 003680/12 (Buenos Aires Cámara Nacional Apelaciones
Comercial) 3649
Judgment of 9 May 2017, COM No. 182/2014/1/RH001 (Argentine Corte Suprema Justicia
Nación) 3649
Judgment of 31 October 2017, Case No. COM 2455/2017 (Buenos Aires Cámara Nacional
Apelaciones Comercial) 3520
Methanex Chile Ltd v. Petrobras Energía SA, [2014] No. 36715/2014 (Argentine Cámara
Nacional de Apelaciones en lo Comercial) 2729, 2745, 2750
Armenia
Judgment of 20 April 2015, Interpipe Ukraine LLC v. Golden Field LLC, XLI Y.B. Comm. Arb.
368 (Armenian S.Ct.) (2016) 4072, 4092
Australia
High Court
Codelfa Constr. Pty Ltd v. State Rail Auth. (NSW), [1982] 149 CLR 337 (Australian High Ct.)
3455
Esso Australia Res. Ltd v. Plowman, XXI Y.B. Comm. Arb. 137 (Australian High Ct. 1995) (1996)
3011, 3012, 3020, 3045
P 4476 Port of Melbourne Auth. v. Anshun Pty Ltd, (1981) 147 CLR 589 (Australian High Ct.) 4104
R v. Watson, [1976] 136 CLR 248 (Australian High Ct.) 1904
Rinehart v. Hancock Prospecting Pty Ltd, [2019] HCA 13 (Australian High Ct.) 416, 684, 1339,
1442, 1524
Tanning Research Lab. Inc. v. O’Brien, (1990) 169 CLR 332 (Australian High Ct.) 1524, 3607,
4009
TCL Air Conditioner (Zhongshan) Co. Ltd v. Judges of Fed. Ct. of Australia, [2013] HCA 5
(Australian High Ct.) 145, 275, 3647, 3725
Timbercorp Fin. Pty Ltd v. Collins, [2016] HCA 44 (Australian High Ct.) 1623
Tomlinson v. Ramsey Food Processing Pty Ltd, (2016) 256 CLR 507 (Australian High Ct.) 4104
Traxys Euro. SA v. Balaji Coke Indus. Pvt Ltd, [2012] FCA 276 (Australian High Ct.) 3149
Westport Ins. Corp. v. Gordian Runoff Ltd, [2011] HCA 37 (Australian High Ct.) 3536
Federal Court
APC Logistics Pty Ltd v. C.J. Nutracon Pty Ltd, [2007] FCA 136, XXXIII Y.B. Comm. Arb. 331
(Australian Fed. Ct.) 853, 1178
442
Aussie Airlines Pty Ltd v. Australian Airlines Pty Ltd, [1996] 65 FCR 215 (Australian Fed. Ct.)
1923
Capic v. Ford Motor Co. of Australia, [2020] FCA 486 (Australian Fed. Ct.) 2435
Casaceli v. Natuzzi SpA, [2012] FCA 691 (Australian Fed. Ct.) 645, 1038, 1071, 1388
Castel Elecs. Pty Ltd v. TCL Air Conditioner (Zhongshan) Co. Ltd, [2012] FCA 1214 (Australian
Fed. Ct.), aff’d, [2014] FCAFC 83 (Australian Fed. Ct.) 3437
Coeclerici Asia (Pte) Ltd v. Gujarat NRE Coke Ltd, [2013] FCA 882 (Australian Fed. Ct.) 1679,
3933
Comandate Marine Corp. v. Pan Australia Shipping Pty Ltd, [2006] FCAFC 192 (Australian
Fed. Ct.) 260, 402, 404, 437, 519, 684, 705, 728, 938, 1058, 1067, 1371, 1379
CPB Contractors Pty Ltd v. Celsus Pty Ltd, [2017] FCA 1620 (Australian Fed. Ct) 903
Dampskibsselskabet Norden AS v. Beach Bldg & Civil Group Pty Ltd, [2012] FCA 696
(Australian Fed. Ct.) 1119, 3789, 4062
Degroma Trading Inc. v. Viva Energy Australia Pty Ltd, [2019] FCA 649 (Australian Fed. Ct.)
418
Dodwell & Co. v. Moss Sec., XIX Y.B. Comm. Arb. 615 (Australian Fed. Ct.) (1990) 1385
Electra Air Conditioning BV v. Seeley Int’l Pty Ltd, [2008] FCAFC 169 (Australian Fed. Ct.)
1178, 1789
Emerald Grain Australia Pty Ltd v. Agrocorp Int’l Pte Ltd, [2014] FCA 414 (Australian Fed. Ct.)
3447, 3535, 3725
ENRC Mktg AG v. OJSC, [2011] FCA 1371 (Australia Fed. Ct.) 2729
ESCO Corp. v. Bradken Res. Pty Ltd, [2011] FCA 905 (Australian Fed. Ct.) 3725, 4083, 4084,
4085, 4086, 4090
Gujarat NRE Coke Ltd v. Coeclerici Asia (Pte) Ltd, [2013] FCAFC 109 (Australian Fed. Ct.) 1678,
2288, 2313, 2333, 2366, 3551, 3577, 3933
Hancock Prospecting Pty Ltd v. Rinehart, [2017] FCAFC 170 (Australian Fed. Ct.) 4, 334, 403,
404, 437, 418, 430, 1442
Hebei Jikai Indus. Group Co. Ltd v. Martin, [2015] FCA 228 (Australian Fed. Ct.) 2300
Hi-Fert Pty Ltd v. Kiukiang Maritime Carriers Inc., [1998] 86 FCR 374 (Australian Fed. Ct.) 679,
109, 115, 166, 1377
Hi-Fert Pty Ltd v. Kiukiang Maritime Carriers Inc., [1998] FCA 1485 (Australian Fed. Ct.) 1178,
1441, 1445, 1450, 1459, 1474, 2722
Hi-Fert Pty Ltd v. Kiukiang Maritime Carriers Inc., 12(7) Mealey’s Int’l Arb. Rep. C-1
P 4477 (Australian Fed. Ct.) (1997) 1067, 1379
Hui v. Esposito Holdings Pty Ltd (No. 2), [2017] FCA 648 (Australian Fed. Ct.) 3541
Hurdsman v. Ekactrm Solutions Pty Ltd, [2018] SASC 112 (S. Australia Sup. Ct.) 299
Hyundai Eng’g & Steel Indus. Co. Ltd v. Alfasi Steel Constr. [2018] FCA 1054 (Australian Fed.
Ct.) 113, 3365, 3725, 4084, 4085, 4083, 4087
Hyundai Eng’g & Steel Indus. Co. Ltd v. Alfasi Steel Constr., XLIV Y.B. Comm. Arb. 451
(Australian Fed. Ct. 2018) (2019) 3725, 4083, 4084, 4085, 4087
Int’l Relief & Dev., Inc. v. Ladu, [2014] FCA 887 (Australian Fed. Ct.) 3844
Kraft Foods Group Brands LLC v. Bega Cheese Ltd, [2018] FCA 549 (Australia Fed. Ct.) 2729
Lightsource Tech. Australia Pty Ltd v. Pointsec Mobile Tech. AB, [2011] ACTSC 59 (Australian
Cap. Terr. Sup. Ct.) 1055
Nexus Energy Corporate Pty Ltd v. Trident Australasia Pty Ltd, [2010] FCA 1328 (Australian
Fed. Ct.) 419
Pan Australia Shipping Pty Ltd (Australia) v. Ship COMANDATE (No. 2) (Liberia), 2006 FCA
1112 (Australian Fed. Ct.) 725
QH Tours Ltd v. Ship Design & Mgt (Aust.) Pty Ltd, (1991) 105 ALR 371 (Australian Fed. Ct.)
1472
Recyclers of Australia Pty Ltd v. Hettinga Equip. Inc., [2000] FCA 547; (2000) 175 ALR 725
(Australian Fed. Ct.) 515, 555, 626, 1067, 1178, 1385, 1388, 1459, 1509
Seeley Int’l Pty Ltd v. Electra Air, [2008] FCA 29 (Australian Fed. Ct.) 257
Sino Dragon Trading Ltd v. Noble Res. Int’l Pte Ltd, [2016] FCA 1131 (Australian Fed. Ct.)
2434, 2435, 3508, 3509, 3725
Sino Dragon Trading Ltd v. Noble Res. Pte Ltd, [2015] FCA 1028 (Australian Fed. Ct.) 2339,
2345, 2350, 2357
443
TCL Air Conditioner (Zhongshan) Co. Ltd v. Castel Elec. Pty Ltd, [2014] FCAFC 83 (Australian
Fed. Ct.) 3437, 3875
Trina Solar (US), Inc. v. Jasmin Solar Pty Ltd, [2017] FCAFC 6 (Australian Fed. Ct.) 1611
Uganda Telecom Ltd v. Hi-Tech Telecom Pty Ltd (No 2), [2011] FCA 206(Australian Fed. Ct.)
113, 826, 3168, 3192, 3505, 3510, 3894, 3893, 3898, 4055
Walter Rau Neusser Oel und Fett AG v. Cross Pac. Trading Ltd, [2005] FCA 1102 (Australian
Fed. Ct. 2005) (2006) 402, 403, 404, 437, 486, 907, 913, 1178, 1427, 1431, 1441, 1442, 1447,
1457, 1459,1488
Winterford v. Pfizer Australia Pty Ltd, [2012] FCA 1199 (Australian Fed. Ct.) 1623
Other Federal Courts
F.J. Bloemen Pty Ltd v. Council of City of the Gold Coast, [1973] AC 115 (Australian Privy
Council) 4136
State and Territory Courts
ACD Tridon Inc. v. Tridon Australia Pty Ltd, XXIX Y.B. Comm. Arb. 533 (N.S.W. Sup. Ct. 2002)
(2004) 903, 1335
AED Oil Ltd v. Puffin FPSO Ltd, [2010] VSCA 37 (Victoria Ct. App.) 2741, 2750, 3328
Age Old Builders Pty Ltd v. Swintons Pty Ltd, [2003] VSC 307 (Victoria Sup. Ct.) 289
Aircraft Support Indus. Pty Ltd v. William Hare UAE LLC, XLI Y.B. Comm. Arb. 372 (N.S.W Sup.
Ct. 2015) (2016) 3748
Aiton Australia Pty Ltd v. Transfield Pty Ltd, [1999] 153 FLR 236 (N.S.W. Sup. Ct.) 294, 303,
983, 3801
Akai Pty Ltd v. People’s Ins. Co. Ltd, [1995] NSWSC 37 (N.S.W. Sup. Ct.) 2941, 3465
Allergan Pharm. Inc. v. Bausch & Lomb Inc., [1985] 7 ATPR 40-636 (N.S.W. Dist. Reg. 1985)
P 4478 1457
Am. Diagnostica Inc. v. Gradipore Ltd, [1998] 44 NSWLR 312 (N.S.W. Sup. Ct.) (1999) 349, 1653,
1657, 1681, 1713, 1724, 1725, 1735, 1737, 1741, 3195, 3239, 3252, 3669, 3922
Australian Granites Ltd v. Eisenwerk Hensel Bayreuth Dipl.-Ing. Burkhardt GmbH, [2001]
1QdR 461 (Queensland Sup. Ct.) 1379
BHP Billiton Ltd v. Oil Basins Ltd, [2006] VSC 402 (Victoria Sup. Ct.) 519
Biakh v. Hyundai Corp., XV Y.B. Comm. Arb. 360 (N.S.W. Sup. Ct. 1988) (1990) 3158
Blanalko Pty Ltd v. Lysaght Bldg Solutions Pty Ltd, [2017] VSC 97 (Victoria Sup. Ct.) 3578
Bliss Corp. Ltd v. Kobe Steel Ltd, Unreported Decision (N.S.W. Sup. Ct. 1987) 2235, 2236
Broken Hill City Council v. Unique Urban Built Ltd, [2018] NSWSC 825 (N.S.W. Sup. Ct.) 836
Cameron Australasia Pty Ltd v. AED Oil Ltd, [2015] VSC 163 (Victoria Sup. Ct.) 3555
Cargill Int’l SA v. Peabody Australia Mining Ltd, [2010] NSWSC 887 (N.S.W. Sup. Ct.) 146,
1653, 1668, 1713, 1724, 1728, 1741
Commonwealth of Australia v. Cockatoo Dockyard Pty Ltd, [1995] 120 FLR 171 (N.S.W. Ct.
App.) 3035, 3043
Corvetina Tech. Ltd v. Clough Eng’g Ltd, [2004] NSWSC 700 (N.S.W. Sup. Ct.) 4055
CTA Int’l Pty Ltd v. Sichuan Changhong Elec. Co. Ltd, [2002] VSC 374 (Victoria Sup. Ct.) 1178,
1185, 1379, 1385
Dalian Huarui Heavy Indus. Int’l Co. Ltd v. Clyde & Co Australia [2020] WASC 132 (W.
Australia Sup. Ct.) 2677, 2701
Du Toit v. Vale, [1993] 9 WAR 138 (W. Australia Sup. Ct.) 2135
Duro Felguera Australia Pty Ltd v. Trans Global Projects Pty Ltd, [2018] WASCA 174 (W.
Australia Ct. App.) 2668, 2729, 2738
Eisenwerk Hensel Bayreuth Dipl.-Ing. Burkhardt GmbH v. Australian Granites Ltd, XXV Y.B.
Comm. Arb. 663 (Queensland Ct. App. 1999) (2000) 1022
Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v. Australian Granites Ltd, [2001] 1 Qd
R 461 (Queensland Ct. App.) 146
Elizabeth Chong Pty Ltd v. Brown, [2011] FMCA 565 (Australian Fed. Mag. Ct.) 995
Enron Australia Fin. Pty Ltd v. Integral Energy Australia, [2002] NSWSC 753 (N.S.W. Sup. Ct.)
1923
Esso Australia Res. Ltd v. Plowman, [1994] 1 VR 4 (Victoria Sup. Ct.) 3020
Ferris v. Plaister, (1994) 34 NSWLR 474 (N.S.W. Ct. App.) 404, 419, 437, 909, 912
Fitzpatrick v. Emerald Grain Pty Ltd, [2017] WASC 206 (W. Australia Sup. Ct.) 844
444
Flint Ink NZ Ltd v. Huhtamaki Australia Pty Ltd, [2014] VSCA 166 (Victoria Ct. App.) 1525
Francis Travel Mktg Pty Ltd v. Virgin Atl. Airways Ltd, [1996] 131 FLR 422 (N.S.W. Ct. App.)
1067
Francis Travel Mktg Pty Ltd v. Virgin Atl. Airways Ltd, [1996] 39 NSWLR 160 (N.S.W. Ct. App.)
1441
Francis Travel Mktg Pty Ltd v. Virgin Atl. Airways Ltd, [1996] NSWSC 104 (N.S.W. Sup. Ct.) 1178
Gas & Fuel Corp. of Victoria v. Wood Hall Ltd, [1978] VR 385 (Victoria Sup. Ct.) 3494
Gascor v. Ellicott, [1997] 1 VR 332 (Victoria Ct. App.) 1895, 1914
Gordian Runoff Ltd v. Underwriting Members of Lloyd’s Syndicates, [2002] NSWSC 1260
(Equity) (N.S.W. Sup. Ct.) 1789, 2076
Gordian Runoff Ltd v. Westport Ins. Corp., [2010] NSWCA 57 (N.S.W. Ct. App.) 3294, 3535
Heart Research Inst. Ltd v. Psiron Ltd, [2002] NSWSC 646 (N.S.W. Sup. Ct.) 285
HIH Cas. & Gen. Ins. Ltd v. Wallace, [2006] NSWSC 1150 (N.S.W. Sup. Ct.) 716, 845
Hooper Bailie Assoc’d Ltd v. Natcon Group Pty Ltd, [1992] 28 NSWLR 194 (N.S.W. Sup. Ct.)
P 4479 985, 989
IBM Australia Ltd v. Nat’l Dist. Serv. Ltd, (1991) 22 NSWLR 466 (N.S.W. Sup. Ct.) 1067, 1472
ICT Pty Ltd v. Sea Containers Ltd, [2002] NSWCA 84 (N.S.W. Ct. App.) 2079
ICT Pty Ltd v. Sea Containers Ltd, [2002] NSWSC 77 (N.S.W. Sup. Ct.) 2018
I-D Foods Corp. v. Hain-Celestial Group Inc., [2006] QCCS 3889 (Québec Super. Ct.) 1841,
1859
IMC Aviation Solutions Pty Ltd v. Altain Khuder LLC, [2011] VSCA 248 (Victoria Ct. App.) 105,
106, 113, 114, 275, 3157, 3710, 3719, 3725, 3734, 3768, 3768, 3769, 3772, 3790, 3798
John Holland Ltd v. Kellogg Brown & Root Ltd, [2015] NSWSC 451 (N.S.W. Sup. Ct.) 938
Judgment of 11 August 2015, Aircraft Support Indus. Pty Ltd v. William Hare UAE LLC, XLI Y.B.
Comm. Arb. 372 (N.S.W. Sup. Ct.) 3901
Kawasaki Heavy Indus., Ltd v. Laing O’Rourke Australia Constr. Pty Ltd, [2017] NSWCA 291
(N.S.W. Ct. App.) 2713, 2738
Ku-ring-gai Council v. Ichor Constr. Pty Ltd, [2019] NSWCA 2 (N.S.W. Ct. App.) 2713, 2738
Lief Invs. Pty Ltd v. Conagra Int’l Fertiliser Co., [1998] NSWSC 481 (N.S.W. Sup. Ct.) 881
Mango Blvd Pty Ltd v. Mio Art Pty Ltd, [2018] QCA 39 (Queensland Ct. App.) 2350, 3495, 3539,
3751
Manningham City Council v. Dura (Australia) Constrs. Pty Ltd, [1999] 3 VR 13 (Victoria Sup.
Ct.) 845
Metrocall Inc. v. Elec. Tracking Sys. Pty Ltd, [2000] NSW IR Comm. 136 (N.S.W. Indus.
Relations Comm’n) 655, 1058
Mond v. Berger, [2004] VSC 150 (Victoria Sup. Ct.) 2181
Montague v. Commonwealth Dev. Corp., XXVI Y.B. Comm. Arb. 744 (Queensland Sup. Ct.
1999) (2001) 3357
Mulgrave Cent. Mill Co. v. Hagglunds Drives P/L, [2001] QSC 040 (Queensland Sup. Ct.) 936
Northbuild Constrs. Pty Ltd v. Discovery Beach Project Pty Ltd, [2009] QCA 345 (Queensland
Sup. Ct.) 270
NSW Racing v. TAB, [2002] NSWSC 742 (N.S.W. Sup. Ct.) 3328
Oil Basins Ltd v. BHP Billiton Ltd, [2007] VSCA 255 (Victoria Ct. App.) 3536, 3294
Origin Energy Res. Ltd v. Benaris Int’l NV, XXX Y.B. Comm. Arb. 371 (Tasmania Sup. Ct. 2002)
(2005) 1457, 1459
Passlow v. Butmac Pty Ltd, [2012] NSWSC 225 (N.S.W. Sup. Ct.) 830, 979, 1470
Pipeline Servs. WA Pty Ltd v. ATCO Gas Australia Pty Ltd, [2014] WASC 10 (W. Australia Sup.
Ct.) 438, 850
PMT Partners Pty Ltd v. Australian Nat’l Parks & Wildlife Serv., [1995] 184 CLR 302
(Australian High Ct.) 936
Quadwest Dev. Pty Ltd v. Thi, [2009] WASC 260 (W. Australia Sup. Ct.) 3454
Raguz v. Sullivan, [2000] NSWCA 240 (N.S.W. Ct. App.) 1660, 1668, 1696, 1739, 2207,3195,
3239, 3669
Re ACN 103 753 484 Pty Ltd, [2011] QSC 64 (Queensland Sup. Ct.) 3776
Resort Condominiums Int’l Inc. v. Bolwell & Resort Condominiums (Australasia) Pty Ltd, XX
Y.B. Comm. Arb. 628, 642 (Queensland Sup. Ct. 1993) (1995) 419, 486, 941, 2693, 2698, 2699,
445
2702, 3168, 3270, 3731, 3751, 3959, 3970
Ridler v. Walter, [2001] TASSC 98 (Tasmania Sup. Ct.) 1819
Rinehart v. Welker, [2012] NSWCA 95 (N.S.W. Ct. App.) 357, 1044, 1122
Rizhao Steel Holding Group Co. v. Koolan Iron Ore Pty Ltd, [2012] 262 FLR 1 (W. Australia Ct.
App.) 1895, 1906, 2078
Rizhao Steel Holding Group Co. v. Koolan Iron Ore Pty Ltd, [2012] WASCA 50 (W. Australia Ct.
P 4480 App.) 1660, 1657, 1741
Robotunits Pty Ltd v. Juergen Karl Mennel, [2015] VSC 268 (Victoria Sup. Ct.) 816, 825
Roy Hill Holdings Pty Ltd v. Samsung C&T Corp., [2015] WASC 458 (W. Australia Sup. Ct.) 438
Sea Containers Ltd v. ICT Pty Ltd, [2002] NSWCA 84 (N.S.W. Ct. App.) 1895, 1906, 1923
Shanghai Foreign Trade Corp. v. Sigma Metallurgical Co., XXII Y.B. Comm. Arb. 609 (N.S.W.
Sup. Ct. 1996) 903, 1488
Sinclair v. Bayly, (1994) 11 BCL 439 (Victoria Sup. Ct.) 2181
Sugar Australia Pty Ltd v. Mackay Sugar Ltd, [2012] QSC 38 (Queensland Sup. Ct.) 3529
TeleMates Pty Ltd v. Standard SoftTel Solutions Pvt Ltd, [2011] 257 FLR 75 (N.S.W. Sup. Ct.)
1858
Thomas Cooke Pty Ltd v. Commonwealth Banking Corp., [1986] 4 BPR 9185 (N.S.W. Sup. Ct.)
292, 294
Timoney Tech. Ltd v. ADI Ltd, [2007] VSC 402 (Victoria Sup. Ct.) 1373
U.S. Healthcare Food Group Pty Ltd v. Faddy Zouky, [2019] QDC 58 (Queensland Dist. Ct.)
438
United Group Rail Servs. Ltd v. Rail Corp. New South Wales, [2009] NSWCA 177 (N.S.W. Ct.
App.) 987, 1441
Wagners Nouvelle Caledonie Sarl v. Vale Inco Nouvelle Caledonie, [2010] QCA 20
(Queensland Ct. App. 146
Wes Trac Pty Ltd v. Eastcoast OTR Tyres Pty Ltd, [2008] NSWSC 894 (Equity) (N.S.W. Sup. Ct.)
1178
WFA v. Hobart City Council, [2000] NSWCA 43 (N.S.W. Ct. App.) 931, 2333, 2349
Yesodei Hatorah College Inc. v. Trustees of the Elwood Talmud Torah Congregation, [2011]
VSC 622 (Victoria Sup. Ct.) 2988, 3550
Zeke Servs. Pty Ltd v. Traffic Techs. Ltd, [2005] QSC 135 (Queensland Sup. Ct.) 289
Austria
Oberster Gerichtshof
Judgment of 17 October 1928, 1929 ZBl 79 (Austrian Oberster Gerichtshof) 2160
Judgment of 7 April 1933, 1934 GH 12 (Austrian Oberster Gerichtshof) 824, 825
Judgment of 2 October 1935, SZ 17/131 (Austrian Oberster Gerichtshof) 4170
Judgment of 11 June 1969, II Y.B. Comm. Arb. 232 (Austrian Oberster Gerichtshof) (1977) 3700
Judgment of 29 January 1970, 1 Ob 252/69 (Austrian Oberster Gerichtshof) 3301
Judgment of 17 November 1971, I Y.B. Comm. Arb. 183 (Austrian Oberster Gerichtshof) (1976)
547, 707, 730, 3703
Judgment of 7 March 1977, 1 Ob 764/76 (Austrian Oberster Gerichtshof) 2112
Judgment of 21 February 1978, 3 Ob 120/77 & Judgment of 27 November 1991, 3 Ob 1091/91
(Austrian Oberster Gerichtshof) 3732
Judgment of 21 February 1978, X Y.B. Comm. Arb. 418 (Austrian Oberster Gerichtshof) (1985)
719, 3317, 3695
Judgment of 24 September 1981, 1982 ÖJZ 77 (Austrian Oberster Gerichtshof) 2333
Judgment of 23 February 1983, 3 Ob 185/82 (Austrian Oberster Gerichtshof) 4025
Judgment of 11 May 1983, X Y.B. Comm. Arb. 421 (Austrian Oberster Gerichtshof) (1985) 4033
Judgment of 31 August 1984, 1 Ob 20/84 (Austrian Oberster Gerichtshof) 759
Judgment of 27 March 1985, 1 Ob 504/85 (Austrian Oberster Gerichtshof) 304
Judgment of 30 October 1985, 3 Ob 89/85 (Austrian Oberster Gerichtshof) 4025
P 4481 Judgment of 28 February 1990, 9 Ob A 38/90 (Austrian Oberster Gerichtshof) 3630
446
Judgment of 6 September 1990, 1991 RdW 327 (Austrian Oberster Gerichtshof) 2333
Judgment of 6 September 1990, 6 Ob 572/90 (Austrian Oberster Gerichtshof) 2298, 3520
Judgment of 22 May 1991, XXI Y.B. Comm. Arb. 521 (Austrian Oberster Gerichtshof) (1996)
3703, 3767
Judgment of 25 June 1992, 7 Ob 545/92 (Austrian Oberster Gerichtshof) 2257
Judgment of 25 June 1992, XXII Y.B. Comm. Arb. 619 (Austrian Oberster Gerichtshof) (1997)
2300, 2313, 3239, 3264, 3268, 3269, 3499, 3502
Judgment of 20 October 1993, Radenska v. Kajo, XXVI Y.B. Comm. Arb. 919 (Austrian
Oberster Gerichtshof) (1999) 3973, 3975, 3976, 3978
Judgment of 22 September 1994, 2 Ob 566/94 (Austrian Oberster Gerichtshof) 520
Judgment of 30 November 1994, XXII Y.B. Comm. Arb. 628 (Austrian Oberster Gerichtshof)
(1997) 838
Judgment of 14 December 1994, 7 Ob 604/94 (Austrian Oberster Gerichtshof) 288
Judgment of 25 January 1995, 3 Ob 453/94 (Austrian Oberster Gerichtshof) 907
Judgment of 17 April 1996, 7 Ob 2097/96z (Austrian Oberster Gerichtshof) 1491
Judgment of 20 March 1997, 2 OB 58/97m (Austrian Oberster Gerichtshof) 864
Judgment of 23 February 1998, XXIV Y.B. Comm. Arb. 919 (Austrian Oberster Gerichtshof)
(1999) 3620, 3978
Judgment of 28 April 1998, XXVI Y.B. Comm. Arb. 221 (Austrian Oberster Gerichtshof) (2001)
1744, 2112, 2119, 2201, 2119, 2182, 2201
Judgment of 5 May 1998, 3 Ob. 2372/96 (Austrian Oberster Gerichtshof) 3620
Judgment of 15 September 1998, 1 Ob 317/97t (Austrian Oberster Gerichtshof) 3617
Judgment of 10 December 1998, 7 Ob 221/98w (Austrian Oberster Gerichtshof) 1121
Judgment of 1 September 1999, 2000 ÖJZ 44 (Austrian Oberster Gerichtshof) 3520
Judgment of 16 January 2001, 4 Ob 330/00h (Austrian Oberster Gerichtshof) 1491
Judgment of 3 April 2001, 4 Ob 37/01 (Austrian Oberster Gerichtshof) 759, 931
Judgment of 25 April 2001, 3 Ob 84/01a (Austrian Oberster Gerichtshof) 4004, 4007, 4025
Judgment of 17 May 2001, 7 Ob 67/01f (Austrian Oberster Gerichtshof) 2297, 3500, 3905
Judgment of 22 October 2001, 1 Ob 236/01i (Austrian Oberster Gerichtshof) 3239
Judgment of 17 June 2003, 5 Ob 112/03m (Austrian Oberster Gerichtshof) 1121
Judgment of 2 October 2003, 6 Ob 41/03b (Austrian Oberster Gerichtshof) 2112, 2119
Judgment of 19 February 2004, 2005 SchiedsVZ 54 (Austrian Oberster Gerichtshof) 520
Judgment of 29 June 2004, 3 Ob 22/04p (Austrian Oberster Gerichtshof) 3958
Judgment of 21 January 2005, 3 Ob 221/04b (Austrian Oberster Gerichtshof) 3748
Judgment of 26 January 2005, 3 Ob 221/04b (Austrian Oberster Gerichtshof) 3622, 3630
Judgment of 26 January 2005, XXX Y.B. Comm. Arb. 421 (Austrian Oberster Gerichtshof)
(2005) 3365, 3749, 3767, 3979, 3901, 4005, 4007, 4009, 4016, 4021, 4025, 4036, 4048, 4052,
4054, 4067, 4068
Judgment of 31 March 2005, 3 Ob 35/05a (Austrian Oberster Gerichtshof) 3520
Judgment of 31 March 2005, XXXI Y.B. Comm. Arb. 583 (Austrian Oberster Gerichtshof)
(2006) 3519, 3859
Judgment of 6 June 2005, 2005 JBl 800 (Austrian Oberster Gerichtshof) 2160, 2182
Judgment of 14 June 2005, 2 Ob 136/05x (Austrian Oberster Gerichtshof) 3269
Judgment of 24 August 2005, XXXII Y.B. Comm. Arb. 254 (Austrian Oberster Gerichtshof)
P 4482 (2007) 3767
Judgment of 20 October 2005, 2 Ob 235/05f (Austrian Oberster Gerichtshof) 4170
Judgment of 26 April 2006, 3 Ob 211/05h (Austrian Oberster Gerichtshof) 1590, 3305, 3701,
3702
Judgment of 26 April 2006, XXXII Y.B. Comm. Arb. 259 (Austrian Oberster Gerichtshof) (2007)
3713, 3707, 3865, 3919
Judgment of 22 May 2006, 10 Ob 3/06y (Austrian Oberster Gerichtshof) 925
Judgment of 30 May 2006, 3 Ob 98/06t (Austrian Oberster Gerichtshof) 3326
Judgment of 10 July 2007, 4 Ob 108/07v (Austrian Oberster Gerichtshof) 1121
447
Judgment of 23 October 2007, XXXIII Y.B. Comm. Arb. 354 (Austrian Oberster Gerichtshof)
(2008) 3818, 3925
Judgment of 5 February 2008, 10 Ob 120/07f (Austrian Oberster Gerichtshof) 613, 803, 1442
Judgment of 28 February 2008, 8 Ob 4/08h (Austrian Oberster Gerichtshof) 2183
Judgment of 1 April 2008, 5 Ob 272/07x (Austrian Oberster Gerichtshof) 3496, 3603
Judgment of 20 August 2008, 9 Ob 53/08x (Austrian Oberster Gerichtshof) 3496, 3603, 3647
Judgment of 26 August 2008, 4 Ob 80/08f (Austrian Oberster Gerichtshof) 1474
Judgment of 26 August 2008, XXXIV Y.B. Comm. Arb. 404 (Austrian Oberster Gerichtshof)
(2009) 510
Judgment of 26 August 2008, XXXIV Y.B. Comm. Arb. 404 (Austrian Oberster Gerichtshof)
(2009) 613, 803, 1442, 1443, 1454
Judgment of 3 September 2008, XXXIV Y.B. Comm. Arb. 409 (Austrian Oberster Gerichtshof)
(2009) 3698
Judgment of 30 March 2009, XXXV Y.B. Comm. Arb. 325 (2010) (Austrian Oberster
Gerichtshof) 1427
Judgment of 22 July 2009, 3 Ob 144/09m (Austrian Oberster Gerichtshof) 1111
Judgment of 22 July 2009, LAS v. Jürgen H, XXXV Y.B. Comm. Arb. 328 (Austrian Oberster
Gerichtshof) (2010) 3811, 4051
Judgment of 30 June 2010, 7 Ob 111/10i (Austrian Oberster Gerichtshof) 1736, 2431, 3506
Judgment of 1 September 2010, 3 Ob122/10b (Austrian Oberster Gerichtshof) 3909
Judgment of 1 September 2010, XXXVI Y.B. Comm. Arb. 256 (Austrian Oberster Gerichtshof)
(2011) 3516, 3858
Judgment of 13 April 2011, 3 Ob 154/10h (Austrian Oberster Gerichtshof) 3305
Judgment of 24 August 2011, 3 Ob 65/11x (Austrian Oberster Gerichtshof) 3622
Judgment of 24 August 2011, XXXVIII Y.B. Comm. Arb. 317 (Austrian Oberster Gerichtshof)
(2013) 3695, 3698
Judgment of 8 November 2011, 3 Ob 191/11a (Austrian Oberster Gerichtshof) 1179
Judgment of 18 April 2012, 3 Ob 38/12b (Austrian Oberster Gerichtshof) 3502
Judgment of 19 April 2012, 6 Ob 42/12p (Austrian Oberster Gerichtshof) 1055, 1121
Judgment of 17 June 2013, 2 Ob 112/12b (Austrian Oberster Gerichtshof) 1985, 1987, 2002
Judgment of 17 June 2013, 32 ASA Bull. 400 (2014) (Austrian Oberster Gerichtshof) 1986,
2004
Judgment of 17 February 2014, 4 Ob 197/13v (Austrian Oberster Gerichtshof) 2182
Judgment of 26 June 2014, 6 Ob 84/14t (Austrian Oberster Gerichtshof) 1121
Judgment of 5 August 2014, Case Nos. 18 ONc 2/14k & 18 ONc 1/14p (Austrian Oberster
Gerichtshof) 1898
Judgment of 18 February 2015, 2 Ob 22/14w (Austrian Oberster Gerichtshof) 3612
P 4483 Judgment of 23 June 2015, 18 Cg1/15v (Austrian Oberster Gerichtshof) 939
Judgment of 17 February 2016, XLI Y.B. Comm. Arb. 398 (Austrian Oberster Gerichtshof)
(2016) 3767, 3825, 3831, 3845, 4072
Judgment of 19 April 2016, 18 ONc3/15h (Austrian Oberster Gerichtshof) 1986
Judgment of 28 September 2016, 18 OCg 3/16i (Austrian Oberster Gerichtshof) 3293
Judgment of 1 March 2017, 5 Ob 72/16y (Austrian Oberster Gerichtshof) 1125
Judgment of 1 March 2017, XLII Y.B. Comm. Arb. 348 (Austrian Oberster Gerichtshof) (2017)
1179
Judgment of 29 March 2017, XLII Y.B. Comm. Arb. 351 (Austrian Oberster Gerichtshof) (2017)
3699
Judgment of 7 June 2017, C v. F GmbH, XLIII Y.B. Comm. Arb. 415 (Austrian Oberster
Gerichtshof) (2017) 3550, 4016
Judgment of 7 June 2017, XLIII Y.B. Comm. Arb. 415 (Austrian Oberster Gerichtshof) (2017)
1690, 3863, 3865, 3893, 3905, 4048, 4072
Judgment of 21 December 2017, 6 Ob 104/17p (Austrian Oberster Gerichtshof) 1121
Judgment of 20 March 2018, 18 Ocg 1/17x (Austrian Oberster Gerichtshof) 3617
Lower Courts
Judgment of 21 April 2005, 2006 JBl 731 (Oberlandesgericht Wien) 3782
448
Judgment of 23 January 2006, 6 R 160/05z (Oberlandesgericht Linz) 2835
Judgment of 24 July 2007, 16 Nc 2/07w (Handelsgericht Wien) 1985, 2091
Bahrain
Judgment of 17 November 2003, Action No. 433/2003 (Bahrain Cour de Cassation) 3552
Barbados
Lawler, Matusky & Skeller v. Attorney Gen. of Barbados, [1983] Civ. Case No. 320/1981
(Barbados High Ct.) 3072, 3126
Belgium
Cour de Cassation and Cour Constitutionelle
Judgment of 17 December 1936, Pas. 1936 I 457 (Belgian Cour de Cassation) 51
Judgment of 18 June 1976, Audi NSU v. Adelin Petit SA, 1979 Journal des Tribunaux 626
(Belgian Cour de Cassation) 1123
Judgment of 28 June 1979, Audi-NSU Auto Union AG v. Adelin Petit & Cie, V Y.B. Comm. Arb.
257 (Belgian Cour de Cassation) (1980) 4044, 4062
Judgment of 22 December 1988, Gutbrod Werke GmbH v. Usinorp de Saint-Hubert, 1988
Journal des Tribunaux 458 (Belgian Cour de Cassation) 967, 1039, 1124
Judgment of 5 June 1998, Inter-Arab Inv. Guar. Corp. v. Banque Arabe et Internationale
d’Investissements, XXIV Y.B. Comm. Arb. 603 (Belgian Cour de Cassation) (1999) 3884, 3959
Judgment of 15 October 2004, Colvi NV v. Interdica, XXXI Y.B. Comm. Arb. 587 (Belgian Cour
de Cassation) (2006) 641
Judgment of 16 November 2006, Case No. C.02.0445.F (Belgian Cour de Cassation) 967, 1039,
1123, 1124
Judgment of 16 November 2006, Van Hopplynus Instruments v. Coherent Inc., Case No.
C.02.0445.F (Belgian Cour de Cassation) 642, 644
Judgment of 5 March 2009, Case No. C.08.0028.F (Belgian Cour de Cassation) 3552
P 4484 Judgment of 16 February 2017, Case No. 21/2017 (Belgian Cour Constitutionelle) 3690
Cour d’Appel
Judgment of 14 October 1980, SA Mines, Minérais et Métaux v. Mechema Ltd, VII Y.B. Comm.
Arb. 316 (Brussels Cour d’Appel) (1982) 3239, 3884
Judgment of 4 October 1985, XIV Y.B. Comm. Arb. 618 (Brussels Cour d’Appel) (1989) 641
Judgment of 4 September 1987, JLMB 88/309 (Liege Cour d’Appel) 1470
Judgment of 21 January 1992, Unreported Judgment (Antwerp Cour d’Appel) 2182
Judgment of 15 October 1992, BV Haegens Bouw v. NV Theuma Deurenindustrie, XVIII Y.B.
Comm. Arb. 612 (Brussels Cour d’Appel) (1993) 2943
Judgment of 5 October 1994, Van Hopplynus v. Coherent Inc., XXII Y.B. Comm. Arb. 637
(Brussels Tribunal de Commerce) (1997) 644, 656, 1591, 1055, 4062
Judgment of 24 January 1997, Inter-Arab Inv. Guarantee Corp. v. Banque Arabe et
Internationale d’Investissements, XXII Y.B. Comm. Arb. 643 (Brussels Cour d’Appel) (1997)
1673, 3888, 3867, 3967, 3918, 4047, 4071
Judgment of 29 October 2007, Pologne v. Eureko BV, Case No. 2007/AR/70 (Brussels Cour
d’Appel) 1986, 2010, 2030
Judgment of 29 April 2018, RFC Seraing v. FIFA, 2016/AR/2048 (Brussels Cour d’Appel) 871
Tribunal de Première Instance
Judgment of 27 September 1985, Guinea v. Maritime Int’l Nominees Establishment, 25 I.L.M.
1639 (Antwerp Rechtbank) (1985) 2727
Judgment of 6 December 1988, Nationale pour la Recherche, le Transport et la
Commercialisation des Hydrocarbures v. Ford, Bacon & Davis, Inc., XV Y.B. Comm. Arb. 370
(Brussels Tribunal de Première Instance) (1990) 3687, 3973, 3978
Judgment of 25 October 1995, 116 JT (1997) 394 (Brussels Tribunal de Première Instance)
3875
Judgment of 25 January 1996, Inter-Arab Inv. Guar. Corp. v. Banque Arabe et Int’l
d’Investissements, XXII Y.B. Comm. Arb. 643 (Brussels Tribunal de Première Instance) (1997)
110, 3298, 3963, 3730, 3732, 3740
Judgment of 2 December 2006, Poland v. Eureko BV, Case No. 2006/1542/A (Brussels
Tribunal de Première Instance) 2009
Judgment of 14 December 2006, R.G. 99/11732/A; 2007 J.T. 207 (Brussels Tribunal de
Première Instance) 2018, 2022
449
Judgment of 8 March 2007, 2007 Rev. Arb. 303 (Brussels Tribunal de Première Instance)
3619
Tribunal de Commerce
Judgment of 1 October 1993, Lorraine de Matériel Radio-Électrique v. NV Barco, XX Y.B.
Comm. Arb. 1057 (Kortrijk Tribunal de Commerce) (1995) 1867
Judgment of 20 September 1999, Matermaco SA v. PPM Cranes, Inc., XXV Y.B. Comm. Arb. 673
(Brussels Tribunal de Commerce) (2000) 641, 644
Judgment of 15 May 2014, N-Allo scrl v. Avaya Belgium sprl, described in a Contribution by
the ITA Board of Reporters (Brussels Tribunal de Commerce) 2722, 2741, 2750
Belize
Dunkeld Int’l Inv. Ltd v. Attorney Gen., C.A. No. 24/2011 (Belize Ct. App.) 1415
Bermuda
Christian Mut. Ins. Co. v. Ace Bermuda Ins. Ltd, [2002] Bda LR 56 (Bermuda Ct. App.) 1199,
P 4485 1342
DuPont Scandinavia AB v. Coastal (Bermuda) Ltd, XV Y.B. Comm. Arb. 378 (1990) (Bermuda
Ct. App.) 795
Huawei Tech Inv. Co. Ltd v. Sampoerna Strategic Holdings Ltd, XXXIX Y.B. Comm. Arb. 354
(Bermuda S.Ct. 2014) (2014) 3724
LV Fin. Group Ltd v. IPOC Int’l Growth Fund Ltd, [2006] Bda LR 69 (Bermuda Comm. Ct.) 3177,
3328, 3747
Montpelier Reins. Ltd v. Mfrs Prop. & Cas. Ltd, [2008] Bda LR 24 (Bermuda S.Ct.) 1843, 1844,
1858
Raydon Underwriting Mgt Co. v. N. Am. Fid. & Guar. Ltd, [1994] No. 108 (Bermuda S.Ct.) 1188
Skandia Int’l Ins. Co. v. Al Amana Ins. & Reins. Co. Ltd, [1994] Bda LR 30 (Bermuda S.Ct.) 881,
887, 1180, 1351
Sojuznefteexport v. JOC Oil Ltd, XV Y.B. Comm. Arb. 384 (Bermuda Ct. App. 1989) (1990) 405,
486, 489, 1465, 3710, 3711, 3716, 3734, 3740, 3768, 3778, 3884, 3889
Brazil
Judgment of 20 May 1999, Aiglon Dublin Ltd v. Teka Tecelagem Kuenrich SA, 2000 Revista de
Direito Bancário, do Mercado de Capitais e da Arbitragem 354 (Brazilian Supremo
Tribunal Federal) 923
Judgment of 3 June 2003, Companhia Paranaense de Energia v. UEG Arauncária Ltda, 21
RDBA 421 (Paraná Tribunal de Justiça) (2003) 1416
Judgment of 18 May 2005, L’Aiglon SA v. Textil Uniao SA, XXX Y.B. Comm. Arb. 437 (Brazilian
Superior Tribunal de Justiça) (2005) 866, 3726, 3811, 3812
Judgment of 17 August 2005, XXXII Y.B. Comm. Arb. 271 (Brazilian Superior Tribunal de
Justiça) (2007) 4008, 4025
Judgment of 15 February 2006, Plexus Cotton Ltd v. Santana Têxtil SA, SEC 967 (Brazilian
Superior Tribunal de Justiça) 721
Judgment of 19 April 2006, Union Europeenne de Gymnastique v. Multipole Distribuidora de
Filmes Ltda, SEC 874 (Brazilian Superior Tribunal de Justiça) 3505, 3843
Judgment of 17 May 2006, Oleaginosa Moreno Hermanos SA. Comercial Industrial Financiera
Inmobiliaria y Agropecuaria v. Moinho Paulista Ltda, XXXIII Y.B. Comm. Arb. 371 (Brazilian
Superior Tribunal de Justiça) (2008) 866, 868
Judgment of 3 August 2006, Chaval v. Liebherr, Recurso Especial No. 653.733-RJ
2004/0102276-0 (Brazilian Superior Tribunal de Justiça) 1543
Judgment of 16 August 2006, SEC 833 (Brazilian Superior Tribunal de Justiça) 3832
Judgment of 18 October 2006, XXXVII Y.B. Comm. Arb. 177 (Brazilian Superior Tribunal de
Justiça) (2012) 4041
Judgment of 23 November 2006, First Brands do Brasil Ltda v. Petroplus Produtos
Automotivos SA PPA, SEC 611 (Brazilian Superior Tribunal de Justiça) 3963
Judgment of 16 May 2007, Bouvery Int’l SA v. Valex Exportadora de Café Ltda, XXXIII Y.B.
Comm. Arb. 387 (Brazilian Superior Tribunal de Justiça) (2008) 3732
Judgment of 3 October 2007, SPIE Enertrans SA v. Inepar SA Indústria e Construções, XXXIII
Y.B. Comm. Arb. 397 (Brazilian Superior Tribunal de Justiça) (2008) 3732, 3958
Judgment of 30 January 2008, Inepar Indústria e Construções v. Itiquira Energética SA, XXXIII
Y.B. Comm. Arb. 404 (Brazilian Superior Tribunal de Justiça) (2008) 274
P 4486 Judgment of 9 April 2008, MS Case No. 11308 (Brazilian Superior Tribunal de Justiça) 685
450
Judgment of 9 April 2008, TMC Terminal Multimodal de Coroa Grande SPE SA v. Ministro de
Estado da Ciência e Tecnologia, Case No. 11.308 (2005/0212763-0) (Brazilian Superior
Tribunal de Justiça) 138
Judgment of 17 December 2008, Indutech SpA v. Algocentro Armazéns Geraise Ltda, XXXIV
Y.B. Comm. Arb. 424 (Brazilian Superior Tribunal de Justiça) (2009) 3709
Judgment of 5 March 2009, Indutech SpA v. Algocentro Armazéns Gerais Ltda, XXXIV Y.B.
Judgment of 28 May 2009, Devcot SA v. Ari Giongo, Case No. 3661 (2008/0226863-5)
(Brazilian Superior Tribunal de Justiça) 3505, 3843
Judgment of 28 May 2009, Plexus Cotton Ltd v. Ari Giongo, Case No. 3660 (2008/0218282-4)
(Brazilian Superior Tribunal de Justiça) 3505
Judgment of 28 May 2009, Plexus Cotton Ltd v. Ari Giongo, SEC 3661 (Brazilian Superior
Judgment of 19 August 2009, Atecs Mannesmann GmbH v. Rodrimar SA Transportes
Equipamentos Industriais e Armazés Gerais, XXXV Y.B. Comm. Arb. 330 (Brazilian Superior
Tribunal de Justiça) (2010) 3712, 4073
Judgment of 18 March 2010, Xerox Comercio e Indústria LTDA v. Guimaraes Neto, Case No.
TST-RR-79500-61.2006.5.05.0028 (Trabalho Tribunal Superior) 1098
Judgment of 6 April 2010, FAT Ferroàtlantica SL v. Zeus Mineração Ltda, Case No. 0002546-
67.2010.805.0000-0 (Bahia Tribunal de Justiça) 1416
Judgment of 12 May 2010, Back Serviços Especializados Ltda v. Unibanco União de Bancos
Brasileiros SA, TJSP N. 990.10.090526-0 (Sao Paulo Tribunal de Alçada) 813, 844
Judgment of 2 August 2010, Kanematsu USA Inc. v. Advanced Telecommc’ns Sys. do Brasil
Ltda, XXXVI Y.B. Comm. Arb. 258 (Brazilian Superior Tribunal de Justiça) (2011) 3772
Judgment of 15 September 2010, Ssangyong Corp. v. Eldorado Indústria Plasticas Ltda, Case
No. SEC 826 (Brazilian Superior Tribunal de Justiça) 4034
Judgment of 23 September 2010, Consórcio Empreendedor Corumbá III v. Consórcio
Construtor Centro-Oeste, Case No. 0301553-55.2010.8.19.0001 (Rio de Janeiro Tribunal de
Justiça) 2791
Judgment of 31 March 2011, Schmidt Construções e Incorporações Ltda v. Planalto Tintas
Ltda, Appeal No. 70030670210 (Brazilian Tribunal de Alçada) (2011) 726
Decision of 18 August 2011, F&F Pinho Comércio de Oxigênio v. Linde Gases, SA, TJRJ No.
0169049-90.2007.8.19.0001 (Rio de Janeiro Tribunal de Justiça) 763
Judgment of 19 October 2011, Kia Motors Corp. v. Wash. Armênio Lopes, Case No. 1
(2007/0156979-5) (Brazilian Superior Tribunal de Justiça) 2730
Judgment of 7 December 2011, Itiquira Energética SA v. Inepar SA Indústria e Construções,
XXXVII Y.B. Comm. Arb. 193, 194 (Brazil Superior Tribunal de Justiça) 691
Judgment of 7 February 2012, Legget & Platt do Brazil Ltda v. Probel SA, Case No. 0231370-
33.2011.8.26.0000 (São Paulo Tribunal de Justiça) 3558
Judgment of 18 April 2012, Kanematsu USA Inc. v. ATS Advanced Telecommc’n Sys. do Brasil
Ltd, SEC 885 (Brazilian Superior Tribunal de Justiça) 721
Judgment of 19 April 2012, Energia Sustentável do Brasil SA v. SulAmérica Companhia
Nacional de Seguros SA, Case No. 0304979-49.2011.8.26.0000 (São Paulo Tribunal de
Justiça) 1416
Judgment of 12 June 2012, Itarumã Participações SA v. Participações em Complexos
Bioenergétios SA, Case No. 1.297.974 (2011/0240991-9) (Brazilian Superior Tribunal de
Justiça) 2738
Judgment of 15 August 2012, YPFB Andina SA v. UNIVEN Petroquímica Ltda, XXXVIII Y.B.
P 4487 Comm. Arb. 341 (Brazilian Superior Tribunal de Justiça) (2013) 3696, 3698
Judgment of 19 June 2013, Weil Bros. Cotton Inc. v. Pedro Ivo Freitas, SEC No. 4.213 – EX
2009/0107931-0 (Brazilian Superior Tribunal de Justiça) 3774
Judgment of 16 October 2013, GE Med. Sys. Info. Techs. Inc. v. Paramedics Electromedicina
Comercial Ltd, XXXIX Y.B. Comm. Arb. 677 (Brazilian Superior Tribunal de Justiça) (2014)
1157
Judgment of 12 November 2013, Inepar SA Indústria e Construções v. Itiquira Energética SA,
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Judgment of 20 November 2013, Paladin PM Holmes Brazil Investors LLC v. Molnar
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Judgment of 19 November 2014, Case No. 3892 (Brazilian Superior Tribunal de Justiça) 4073
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Judgment of 13 June 2017, UTC Desenvolvimento Imobiliário SA v. Patri Sete
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Judgment of 29 November 2017, Case No. 13080 (Brazilian Superior Tribunal de Justiça)
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Judgment of 29 November 2017, Ecodiesel Colombia SA v. Dedini SA Indústrias de Base, Case
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Judgment of 9 April 2018, Agravo de Instrumento No. 2237615-16.2017.8.26.0000 (São Paulo
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Pac. China Holdings Ltd v. Grand Pac. Holdings Ltd, XXXVI Y.B. Comm. Arb. 262 (B.V.I. Ct.
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Judgment of 21 April 2016, Qisheng Res. Ltd v. Minera Santa Fe, XLI Y.B. Comm. Arb. 444
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Judgment of 23 June 2017, Hyundai Eng’g & Constr. v. Constructora OAS SA, [2017] 5533-2017
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Beijing Branch of China Pac. Prop. Ins. Corp. v. Beijing COSCO Logistics Co. Ltd, [2009] Min Si
Ta Zi No. 11 (Chinese S.Ct.) 1585
Beijing HKCTS Grand Metropark Hotels Mgt Co. Ltd v. Zhong Yuan Cheng Commercial Inv.
Holdings Co. Ltd, [2019] Zui Gao Fa Min Te No. 3 (Chinese Int’l Comm. Ct.) 413, 484
China Nat’l Tech. Imp. Exp. Corp. v. Swiss Indus. Res. Co. Inc., [1989] Zui Gao Fa Min Te No. 1
(Chinese S.Ct.), cited in Gu, China’s Search for Complete Separability of the Arbitral
Agreement, 3 Asian Int’l Arb. J. 163 (2007) 411
Davis Standard Corp. v. Ningbo Xiecheng Elec. Wire Ltd, [2004] Minsi Tazi No. 13 (Chinese
S.Ct.) 634
ED & F Man (H.K.) Co. v. China Nat’l Sugar & Wines Group Corp., [2003] Min Si Ta Zi No. 3
(Chinese S.Ct.) 4033
First Inv. Corp. v. Mawei Shipbuilding, [2007] Min Si Ta Zi No. 35 (Chinese S.Ct.) 3886, 3891
Gerald Metals Inc. v. Wuhu Smelter & Refinery Co., [2003] Min Si Ta Zi No. 12 (Chinese S.Ct.)
3890, 3901
Glencore Int’l v. Chongqing Mach., [2001] Min Si Ta Zi No. 2 (Chinese S.Ct.) 3779
H.K. Heung Chun Cereals, Oil & Foodstuffs Co., Ltd v. Anhui Cereal, Oil & Food Imp. & Exp.
Corp., [2003] Min Si Ta Zi No. 9 (Chinese S.Ct.) 412
Jiangsu Materials Group Light Indus. & Weaving Co. v. (H.K.) Top-Capital Holdings Ltd, 1998:3
Gazette S. People’s Ct. 109 (Chinese S.Ct.) 1311
Jiangsu Materials Group Light Indus. & Weaving Co. v. H.K. Top-Capital Holdings Ltd, [1998]
Zui Gao Fa Min Te No. 3, at 109-10 (Chinese S.Ct.), cited in Gu, China’s Search for Complete
Separability of the Arbitral Agreement, 3 Asian Int’l Arb. J. 163, 168 411
Judgment of 12 November 2003, XXXI Y.B. Comm. Arb. 620 (Chinese S.Ct.) (2006) 485, 488
Judgment of 10 January 2007, Cosmos Marine Mgt SA v. Tianjin Kaiqiang Trading Ltd, 2006
Min Si Ta Zi No. 34 (Chinese S.Ct.) 3823, 3847
Judgment of 27 February 2008, XXXV Y.B. Comm. Arb. 349 (Chinese S.Ct.) (2010) 3865
Judgment of 10 September 2008, Shin-Etsu Chem. v. Xinmao Science, [2008] Min Si Ta Zi No.
18 (Chinese S.Ct.) 3502
Judgment of 3 August 2009, Concordia Trading BV v. Nantong Gangde Oil Co., Ltd, [2009]
Min Si Ta Zi No. 22 (Chinese S.Ct.) 721, 3780
P 4501 Judgment of 2 September 2009, Wu v. Zhang, [2009] Min Si Ta Zi 33 (Chinese S.Ct.) 4059
Judgment of 8 December 2009, Aiduoladuo Co. v. Zhejiang Zhancheng Constr. Group Co.,
2009 Min Si Ta Zi No. 46 (Chinese S.Ct.) 3841
Judgment of 31 August 2012, Min Si Ta Zi No. 2 (Chinese S.Ct.) 2226
Judgment of 26 February 2013, Wang v. Wu (Chinese S.Ct.), cited in F. Yang, I Foreign-
Related Arbitration in China Commentary and Cases (2013) 412
Judgment of 26 February 2013, Wang v. Wu, [2013] Min Si Ta Zi No. 8 (Chinese S.Ct.) 3453
Judgment of 30 June 2014, Schroeder KG v. Dandong Jun’ao Food Co., Ltd, XLI Y.B. Comm.
Arb. 447 (Chinese S.Ct.) (2016) 3845
Judgment of 18 December 2014, Shanghai Jwell Mach. Co., Ltd v. Retech AG, XL Y.B. Comm.
Arb. 408 (Chinese S.Ct.) (2015) 4092
Judgment of 21 August 2019, Shell China Co. Ltd v. Huili Hohhot Co., Ltd, [2019] Zhi Min Xia
Zhong No. 47 (Chinese S.Ct.) 1068
Luck Treat Ltd v. Zhong Yuan Cheng Commercial Inv. Holdings Co. Ltd, [2019] Zui Gao Fa Min
Te No. 1 (Chinese Int’l Comm. Ct.) 413, 484
Nantong Gangzha Shipbuilding Factory v. IHDA Shipbuilding Servs. BV, [2006] Wuhai
Fashangzi No. 81 (Chinese S.Ct.) 634
Newport Enters. Inc. v. Zhong Yuan Cheng Comm. Inv. Holdings Co. Ltd, [2019] Zui Gao Fa
Min Te No. 2 (Chinese Int’l Comm. Ct.) 413, 384
USA Prods. v. Women Travel, [1997] SPC 35 (Chinese S.Ct.) 4009
Lower Courts
Beijing Chaolaixinsheng Sports & Leisure Co., Ltd v. Beijing Suowangzhixin Inv. Consulting
Co. Ltd, [2013] Er Zhong Min Te Zi No. 10670 (Beijing Interm. People’s
Duferco SA v. Ningbo Arts & Crafts Imp. & Exp. Co., [2008] Yong Zhong Jian Zi No. 4 (Ningbo
Interm. People’s Ct.) 3207
463
Judgment of 28 September 1992, Dongfeng Garments Factory of Kai Feng City v. Henan
Garments Imp. & Exp. (Group) Co. (Zhengzhou Interm. Ct.) 3754
Judgment of 2001, Decision No. 104 (Shenzhen Interm. Ct.) 4045
Judgment of September 2004, XMECZ 154 (Wuxi High Ct.) (2004) 764, 827
Judgment of 12 October 2007, XXXV Y.B. Comm. Arb. 349 (Fujian High Ct.) (2010) 3921
Judgment of 27 February 2008, XXXV Y.B. Comm. Arb. 349 (Fujian High Ct.) 1799, 2102
Judgment of 27 June 2008, XXXIV Y.B. Comm. Arb. 478 (Shandong Provincial Ct.) (2009) 3883
Judgment of 27 June 2008, Hemofarm DD v. Jinan Yongning Pharm. Co., XXXIV Y.B. Comm.
Arb. 478 (Shandong Intermediate People’s Ct.) (2009) 3890
Judgment of 27 November 2015, Siemens Int’l Trade Co. Ltd v. Shanghai Golden Landmark
Co. Ltd, XLI Y.B. Comm. Arb. 450 (Shanghai First Interm. Ct.) (2016) 3811
Judgment of 2 June 2016, Taizhou Haopu Inv. Co., Ltd v. Wicor Holding AG, XLII Y.B. Comm.
Arb. 365 (Jiangsu Province Interm. Ct.) (2017) 3623
Judgment of 29 August 2016, Su Zhi Min Xia Zhong Zi No. 00072 (Jiangsu Higher People’s Ct.)
(2015) 1068
Judgment of 14 October 2016, Civil Procedure Preservation Ruling Regarding Ocean Eleven
Shipping Corp. v. Lao Kaiyuan Mining Sole Co. Ltd, E72 Cai Bao No. 427 (Wuhan Maritime Ct.)
2750
Judgment of 13 January 2017, Hyundai Glovis Co. Ltd v. Zhejiang Qiying Energy Chems. Co.,
P 4502 Ltd, [2015] Zhe Yong Zhong Que Zi No. 3 (Ningbo Interm. Ct.) 3276
Judgment of 11 August 2017, Noble Res. Int’l Pte Ltd v. Shanghai Good Credit Int’l Trade Co.,
Ltd, Hu 01 Xie Wai Ren No. 1 (Shanghai Interm. Ct.) 1785, 1789, 1799, 1801, 3913, 3904, 3913,
3921
Noble Res. Int’l Pte Ltd v. Shanghai Xintai Int’l Trade Co., Ltd, XLII Y.B. Comm. Arb. 376
(Shanghai Ct. First Inst. 2017) (2017) 1687
Shanghai Kejiang IT Co. Ltd v. Fanstang Consultant Co. Ltd, [2014] (Shanghai Interm.
People’s Ct.) 2226
Xiangrung New Energy v. Yunlon Indus., [2012] Zhu Zhong Fa Min Te Zi No. 4 (Zhuzhou
Intermediate People’s Ct.) 412
Zhendong Group v. Yongke Thermal, [2009] Zhe Shao Zhong Que Zi No. 8 (Shaoxing
Intermediate People’s Ct.) 412
Züblin Int’l GmbH v. Wuxi Woke Gen. Eng’g Rubber Co., [2003] Xi Min San Zhong Zi No. 1
(Wuxi Interm. People’s Ct.) 3207
Colombia
Judgment of 21 March 1991, 80 Rev. Cám de Com. de Bogotá 51 (Colombian Corte Suprema
de Justicia) 1872
Judgment of 20 November 1992, Sunward Overseas SA v. Servicios Maritimos Ltda Semar, XX
Y.B. Comm. Arb. 651 (Colombian Corte Suprema de Justicia) (1995) 257
Judgments of 26 January 1999 & 1 March 1999, XXVI Y.B. Comm. Arb. 755 (Colombian Corte
Suprema de Justicia) (2001) 1327
Judgment of 12 July 2017, SC 9909-2017, Case No. 11001-02-03-000-2014-01927-00
(Colombian Corte Suprema de Justicia) 4011
Judgment of 1 August 2002, Electrificadora del Atlantico SA ESP v. Termorio SA ESP,
Expediente No. 21.041 (Colombian Consejo de Estado) 188, 893
Judgment of 22 April 2004, Empresa Colombiana de Vias Ferreas v. Drummond Ltd, XXIX Y.B.
Comm. Arb. 643 (Colombian Consejo de Estado) (2004) 3239
Judgment of 22 April 2004, XXIX Y.B. Comm. Arb. 643, 654-55 (Colombian Consejo de
Estado) (2004) 1658
Judgment of 6 August 2004, García Fernándes Internacional Importaçâo e Exportaçâo SA v.
Prodeco Productos de Colombia SA, Exp. No. 11001-0203-000-2001-0190-01 (Colombian
Corte Constitucional) 4020
Judgment of 13 May 2009 (Colombia Consejo de Estado) 3592
Judgment of 27 July 2011, Petrotesting Colombia SA v. Ross Energy SA, Case No. 11001-0203-
000-2007-01956-00 (Colombian Corte Suprema de Justicia) (2012) 3730, 4011, 4045
Judgment of 19 December 2011, Drummond Ltd v. Instituto Nacional de Concesiones, XXXVII
Y.B. Comm. Arb. 205 (Colombian Corte Suprema de Justicia) (2012) 772, 3187, 4062
Judgment of 12 February 2014, Procilco Ltda v. Instituto Nacional Penitenciario y Carcelario,
Case No. 28951 (Colombian Consejo de Estado) 419, 487
Judgment of 19 March 2014, Constitutionality Challenge to Article 37 of Law 1563 of 2012, C-
464
170/14. Ref. No. D-9777 (Colombia Corte Constitucional) 1574
Judgment of 24 June 2016, HTM LLC v. Fomento de Catalizadores sas, XLI Y.B. Comm. Arb.
454 (Colombian Corte Suprema de Justicia) (2016) 1156
Judgment of 24 June 2016, XLI Y.B. Comm. Arb. 454 (Colombian Corte Suprema de Justicia)
(2016) 3826
Judgment of 7 September 2016, Egesur SA v. Consorcio Pisco, XLII Y.B. Comm. Arb. 370
P 4503 (Colombian Corte Suprema de Justicia) (2017) 4008, 4011
Judgment of 6 September 2017, Unión de Cableoperadores del Centro SA v. Comisión
Nacional de Televisión, Case No. 44248 (Colombian Consejo de Estado) 419, 437, 487
Croatia
Judgment of 29 April 2001, Case No. VTS RH Pž-5168/01 (Croatian High Comm. Ct.) 1016, 1381
Judgment of 27 October 2004, Case No. U-III/669/2003 (Croatian Const. Ct.) 1197
Judgment of 17 April 2007, Hrvatsko Mirovinsko Osiguranje v. EDIS, Case No. XLVII Pž-
6756/04-3 (Croatian High Comm. Ct.) 1381
Judgment of 21 May 2007, Berica v. Grupa Gava, CLOUT Case No. 1070 (Croatian High Comm.
Ct.) 1179
Judgment of 30 May 2008, Case No. Gž 2/08-2 (Croatian S.Ct.) 2397, 2398, 3511, 4018, 4040
Cyprus
Dansk Moller Indus. AS v. Bentex Minerals Co., [2007] 1B CLR 692 (Cyprus S.Ct.) 2472
Intersputnik Int’l Org. of Space Comm’n v. Alrena Inv. Ltd, XLII Y.B. Comm. Arb. 376 (Cypriot
S.Ct. 2017) (2017) 3703, 3725
Judgment of 28 April 1999, Attorney Gen. of Kenya v. Bank für Arbeit und Wirtschaft AG, XXV
Y.B. Comm. Arb. 692 (Cyprus S.Ct.) (2000) 79, 87, 113, 4167
Denmark
Judgment of 16 December 2009, JKM Transp. ApS v. Danish Crown, Case No. 337/2007 (Danish
S.Ct.) 3569
Judgment of 28 January 2016, Taewoong Inc. v. AH Indus. AS, XLI Y.B. Comm. Arb. 755
(Danish S.Ct.) 3612
Dominican Republic
Castillo v. Houston Astros Baseball Club, 0417/2015 (Dominican Repub. Ct. App. 2015) 3665
Ecuador
Judgment of 20 December 2017, CW Travel Holdings NV v. Seitur Agencia de Viajes y Turismo
Cia Ltda, XLIII Y.B. Comm. Arb. 443 (Pichincha Corte Provincial) (2018) 3698, 3706, 3707
Egypt
Judgment of 19 March 1997, Organisme des Antiquités v. G. Silver Night Co., 1997 Rev. Arb.
283 (Cairo Ct. App.) 775
Judgment of 8 January 2002, Case No. 72/117 (Cairo Ct. App.) 3592
Judgment of 3 April 2007, Saudi-Egyptian Co. for Touristic Dev. v. Meridian SA, Case No.
123/119 (Cairo Ct. App.) 3293, 3647
Judgment of 22 January 2008, Egypt for Foreign Trade v. RD Harbottles (Mercantile), 1(1) Int’l
J. Arab Arb. 174 (Egyptian Ct. Cassation) (2009) 4036
Judgment of 25 January 2008, Case No. 810/71 (Egyptian Ct. Cassation) 3439
Judgment of 5 February 2008, Case No. 71/123 (Cairo Ct. App.) 3647
Judgment of 6 May 2008, Case No. 140/124 (Cairo Ct. App.) 3677
Judgment of 7 May 2008, Case No. 76/123 (Cairo Ct. App.) 2790, 3546, 3550
Judgment of 2 July 2008, Case No. 23/125 (Cairo Ct. App.) 3252
P 4504 Judgment of 2 December 2008, Case No. 114/124 (Cairo Ct. App.) 3561
Judgment of 3 March 2009, Case No. 71/124 (Cairo Ct. App.) 3647
Judgment of 5 May 2009, Case No. 112/124 (Cairo Ct. App.) 3589, 3594, 3647, 3655
Judgment of 5 May 2009, Case No. 29/125 (Cairo Ct. App.) 3510, 3853
Judgment of 9 June 2009, Sobhy Hussein Ahmed v. Suez Gulf, 1(3) Int’l J. Arab Arb. 71 (Cairo
Ct. App.) (2009) 1156
Judgment of 8 October 2013, Harbottle v. Egyptian Co. for Int’l Trade, Case No. 9882/80
465
(Egypt Ct. Cassation) 3647
Judgment of 13 February 2014, Case No. 7595/JY81 (Egyptian Ct. Cassation) 3079
Judgment of 4 November 2015, Case No. 66 of 132/n (Cairo Ct. App.) 3569
Judgment of 6 January 2016, Bassem Youssef & Qsoft v. Al Mostakbal CBC, Case Nos. 11, 12,
14/132 (Cairo Ct. App.) 3561, 3647
Judgment of 3 February 2016, Damietta Int’l Ports Co. v. Arab Contractors Co., XLV Y.B.
Comm. Arb. 7 (Cairo Ct. App.) (2020) 3716
Judgment of 19 April 2017, Case No. 15530 (Egyptian Ct. Cassation) 937
Judgment of 6 June 2019, Appeal No. 695 (E. Cairo Misdemeanor App. Ct.) 2166
Judgment of 11 June 2019, Case No. 18116/88 (Egyptian Ct. Cassation) 2005
England
UK Supreme Court/ House of Lords
A. Sanderson & Son v. Armour & Co. [1922] SC 117 (House of Lords) 1380
AES Ust Kamenogorsk Hydropower Plant LLP v. Ust Kamenogorsk Hydropower Plant JSC
[2013] UKSC 35 (U.K. S.Ct.) 1304, 2668
Airbus Indus. GIE v. Patel [1998] 1 Lloyd’s Rep. 631 (House of Lords) 1393
Amin Rasheed Shipping Corp. v. Kuwait Ins. Co. [1983] 2 All ER 884, [1983] AC 50 (House of
Lords) 2947, 2963
Antaios Compania Naviera SA v. Salen Rederierna AB [1985] AC 191 (House of Lords) 153
Arenson v. Casson Beckman Rutley & Co. [1975] 3 All ER 901 (House of Lords) 288, 2179, 2181,
2189
Arnold v. Nat’l Westminster Bank plc [1991] 2 AC 93 (House of Lords) 4103
Attorney-Gen. v. Dean & Canons of Windsor [1860] 8 HLC 369 (Lord Campbell, L.C.) 4186
Bremer Vulkan Schiffbau und Maschinenfabrik v. S. India Shipping Corp. [1981] AC 909
(House of Lords) 281, 376, 405, 406, 943, 1355, 1358, 2113, 2491
Channel Tunnel Group Ltd v. Balfour Beatty Constr. Ltd [1993] AC 334 (House of Lords) 306,
518, 555, 568, 569, 1725, 2723, 2740, 2749, 2751, 2752, 2740, 2961
Compagnie d’Armement Maritime SA v. Compagnie Tunisienne de Navigation [1971] AC 572
(House of Lords) 1741, 2849, 2933, 2943
Coppee-Lavalin SA/NV v. Ken-Ren Chem. & Fertilizers Ltd [1994] 2 All ER 449 (House of
Lords) 2680, 2681
Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Pakistan [2010]
UKSC 46 (U.K. S.Ct.) 4, 110, 275, 1155, 1167, 1178, 1303, 1305, 1517, 1519, 1520, 1525, 1597, 1617,
3156, 3161, 3162, 3194, 3474, 3721, 3723, 3731, 3736, 3737, 3739, 3746, 3753, 3770, 3771, 3788,
3793, 3797, 3798, 3803, 3808, 3814, 3881, 4088
Deutsche Schachtbau und Tiefbohrgesellschaft mbH v. Ras Al Khaimah Nat’l Oil Co. [1990] 1
AC 295 (House of Lords) 2943
Deutsche Schachtbau und Tiefbohr-GmbH v. Shell Int’l Petroleum Co. Ltd [1990] 1 AC 295
P 4505 (House of Lords) 3611
Dimes v. Proprietors of Grand Junction Canal (1852) 3 HL Cas. 759 (House of Lords) 2001
Director Gen. of Fair Trading v. First Commercial Bank plc [2001] UKHL 52 (House of Lords)
1111
Donohue v. Armco Inc. [2001] UKHL 64 (House of Lords) 1393
Dunlop Pneumatic Tyre Co. Ltd v. Selfridge & Co. Ltd [1915] AC 847 (House of Lords) 1518
Enka Insaat Ve Sanayi AS v. OOO Ins. Co. Chubb [2020] UKSC 38 (U.K. S.Ct.) 4, 154, 542, 553,
568, 569, 570, 571, 605, 609, 612, 613, 631, 686, 806, 1142, 1511
Hamlyn & Co. v. Talisker Distillery [1894] AC 202 (House of Lords) 545, 549, 552, 568, 609,
610, 611, 613, 631, 2894
Heyman v. Darwins Ltd [1942] AC 356 (House of Lords) 405, 406, 416, 474, 479, 572, 949,1078,
1490
Hillas & Co. Ltd v. Arcos Ltd [1932] All ER 494 (House of Lords) 986
Hiscox v. Outhwaite (No. 2) [1991] 2 WLR 1321 (House of Lords) 1752, 3194, 3241
Hiscox v. Outhwaite (No. 1) [1991] 3 WLR 297 (House of Lords) 3196
IPCO (Nigeria) Ltd v. Nigerian Nat’l Petroleum Corp. [2017] UKSC 16 (U.K. S.Ct.) 682
James Miller & Partners Ltd v. Whitworth St. Estates (Manchester) Ltd [1970] 1 All ER 796
(House of Lords) 1744
466
Jivraj v. Hashwani [2011] UKSC 40 (U.K. S.Ct.) 4, 1870, 1882, 1887, 2111, 2121, 2122, 2130, 2140,
2483
Jureidini v. Nat’l British & Irish Millers Ins. Co. Ltd [1915] AC 499 (House of Lords) 1303
Kahler v. Midland Bank [1950] AC 24 (House of Lords) 2894
Knauer v. Ministry of Justice [2016] UKSC 9 (U.K. S.Ct.) 4187
Kwik Hoo Tong Handel Maatschappij v. James Finlay & Co. [1927] AC 604 (House of Lords)
2846
Lesotho Highlands Dev. Auth. v. Impregilo SpA [2005] UKHL 43 (House of Lords) 113, 155, 156,
408, 1697, 3326, 3327, 3428, 3588, 3643, 3644, 3670, 3883
Lonrho Ltd v. Shell Petroleum Co. Ltd [1981] 2 All ER 456 (House of Lords) 903
Maxim Nordenfelt Case [1894] AC 535 (House of Lords) 4186, 4187
Miliangos v. George Frank (Textiles) Ltd [1976] AC 443 (House of Lords) 3327
New Brunswick Railway v. British & French Trust Corp. [1939] AC 1 (House of Lords) 4103
Nova (Jersey) Knit Ltd v. Kamgarn Spinnerei GmbH [1977] 1 Lloyd’s Rep. 463 (House of Lords)
1479, 1480, 1620
NV Vulcaan v. AS Ludwig Mowinckels Rederi [1938] 2 All ER 152 (House of Lords) 2846
Outhwaite v. Hiscox [1992] 1 AC 562 (House of Lords) 3205
Paal Wilson & Co. AS v. Partenreederei Hannah Blumenthal [1983] 1 AC 854 (House of Lords)
1358
Pioneer Shipping v. B.T.P. Tioxide [1982] AC 724 (House of Lords) 153, 3643
Porter v. Magill [2002] 2 AC 357 (House of Lords) 1903
Premium Nafta Prods. Ltd v. Fili Shipping Co. [2007] UKHL 40 (House of Lords) 572, 1463,
3007, 3460
Prest v. Petrodel Res. Ltd [2013] UKSC 34 (U.K. S.Ct.) 1545, 1547
R v. Bow St. Metro. Stipendiary Magistrate [1999] 1 All ER 577 (House of Lords) 1903, 2001
R. (on the application of Bashir) v. Secretary of State for the Home Dep’t [2018] UKSC 45
(U.K. S.Ct.) 4187
R. v. Gough [1993] 2 All ER 724, (House of Lords) 1903
Regazzoni v. K.C. Sethia Ltd [1958] AC 301 (House of Lords) 2926
S.C. Ins. Co. v. Assurantie Maatschappij de Zeven Provincien NV [1987] AC 24 (House of Lords)
2948
P 4506 Scott v. Avery [1856] 5 HL Cas 811 (House of Lords) 36, 37
Spiliada Maritime Corp. v. Cansulex [1986] 3 All ER 843 (House of Lords) 2234
Spurrier v. La Cloche [1902] AC 446 (House of Lords) 2847
Sutcliffe v. Thackrah (1974) 1 All ER 859 (House of Lords) 276, 288, 2179, 2181, 2188
Taurus Petroleum Ltd v. State Oil Mktg Co. of Ministry of Oil of Iraq [2018] 1 All ER 1005 (U.K.
S.Ct.) 113
The Eschersheim [1976] 2 Lloyd’s Rep. 1 (House of Lords) 1461
Trendtex Trading Corp. v. Credit Suisse [1982] AC 679 (House of Lords) 2904
Union Transp. plc v. Cont’l Lines SA [1992] 1 WLR 15 (House of Lords) 604, 2897
Ust-Kamenogorsk Hydropower Plant JSC v. AES Ust-Kamenogorsk Hydropower Plant LLP
[2013] UKSC 35 (U.K. S.Ct.) 1142, 1155, 1368, 1372, 1393, 1394, 1395, 2357
Virgin Atl. Airways Ltd v. Zodiac Seats UK Ltd [2013] UKSC 46 (U.K. S.Ct.) 4104
VTB Capital plc v. Nutritek Int’l Corp. [2013] UKSC 5 (U.K. S.Ct.) 1547
W. Tankers Inc. v. RAS Riunione Adriatica di Sicurta [2007] 1 Lloyd’s Rep. 391 (House of
Lords) 1360, 1403, 1404
Walters v. Morgan [1792] 2 Cox Eq. 369 (The Lord Chancellor) 700
Whitworth St. Estates (Manchester) Ltd v. James Miller & Partners Ltd [1970] AC 583 (House
of Lords) 2887, 2936
Wilson & Co. v. Partenreederei Hannah Blumenthal [1982] 3 WLR 1149 (House of Lords) 1355
Court of Appeals
A v. C [2020] EWCA Civ 409 (English Ct. App.) 2576
AB v. CD [2014] EWCA Civ 229 (English Ct. App.) 2668
467
ab-Ji SAL (Lebanon) v. Kout Food Group (Kuwait) [2020] EWCA Civ 6 (English Ct. App.) 406
Adams v. Cape Indus. plc [1990] Ch 433 (English Ct. App.) 1545, 1547, 1566
AES Ust-Kamenogorsk Hydropower Plant LLC v. Ust-Kamenogorsk Hydropower Plant JSC
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Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35 (U.K. S.Ct.) 515, 626, 630, 1155, 1393,
1404
Aggeliki Charis Compania Maritima SA v. Pagnan SpA [1995] 1 Lloyd’s Rep. 87 (English Ct.
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AIG Group (UK) Ltd v. The Ethniki [2000] Lloyd’s Rep. IR 343 (English Ct. App.) 889
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Allen v. Hounga [2012] EWCA Civ 609 (English Ct. App.) 3577
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1480
Amec Civil Eng’g Ltd v. Secretary of State for Transp. [2005] 101 ConLR 26 (English Ct. App.)
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Anglo-Newfoundland & Dev. Corp. v. R [1920] 2 KB 214 (English Ct. App.) 747
Archbolds (Freightage) Ltd v. S. Spanglett Ltd [1961] 1 QB 374 (English Ct. App.) 2903
Ashville Inv. Ltd v. Elmer Contractors Ltd [1988] 3 WLR 867, [1988] QB 488 (English Ct. App.)
153, 405, 474, 916, 1452, 1456, 1457, 1459
ASM Shipping Ltd of India v. TTMI Ltd of England [2007] EWHC 1513 (Comm) (English Ct. App.)
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Astro Vencedor Compania Naviera SA of Panama v. Mabanaft GmbH [1971] 2 All ER 1301
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AT&T Corp. v. Saudi Cable Co. [2000] 2 Lloyd’s Rep. 127 (English Ct. App.) 1499, 1903, 1914,
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Athletic Union of Constantinople v. Nat’l Basketball Ass’n [2002] 1 Lloyd’s Rep. 305 (English
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Attheraces Ltd v. British Horseracing Bd [2007] EWCA Civ 38 (English Ct. App.) 1065
Aughton Ltd v. MF Kent Servs. Ltd [1991] 31 ConLR 60 (English Ct. App.) 889
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Bangladesh Chem. Indus. Corp. v. Henry Stephens Shipping Co. [1981] 2 Lloyd’s Rep. 389
(English Ct. App.) 549, 552
Bank Mellat v. Helliniki Techniki SA [1984] QB 291 (English Ct. App.) 1713, 1745
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Barclays Bank plc v. Ente Nazionale di Previdenza ed Assistenza dei Medici e Degli
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Barnetson v. Framlington Group Ltd [2007] EWCA Civ 502 (English Ct. App.) 3102
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Baytur SA v. Finagro Holding SA [1991] 3 WLR 866, [1991] 4 All ER 129 (English Ct. App.) 275,
810
Birse Constr. Ltd v. St. David Ltd [1999] 1 BLR 57 (English Ct. App.) 795
BLCT Ltd v. J. Sainsbury plc [2003] EWCA Civ 884 (English Ct. App.) 156, 3643
BMBF (No. 12) Ltd v. Harland & Wolff Shipbuilding & Heavy Indus. Ltd [2001] EWCA Civ 862
(English Ct. App.) 2684
Bowman v. Fels [2005] EWCA Civ 226 (English Ct. App.) 2141
Bremer Handelsgesellschaft v. Westzucker [1981] 2 Lloyd’s Rep. 130 (English Ct. App.) 3294
Broda Agro Trade Ltd v. Alfred C Toepfer Int’l GmbH [2010] EWCA Civ 1100 (English Ct. App.)
1178, 1303, 1304, 1305
Bryen & Langley Ltd v. Boston [2005] EWCA Civ 973 (English Ct. App.) 1111
C v. D [2007] EWCA Civ 1282 (English Ct. App.) 518, 553, 557, 563, 570, 571, 569, 1697, 1698,
1704, 1712, 1730, 1737, 1753, 2846, 3203, 3250, 3252
Capital Trust Inv. Ltd v. Radio Design TJ AB [2002] EWCA Civ 135 (English Ct. App.) 437, 1015,
468
1377, 1380, 1532
Caresse Nav. Ltd v. Zurich Assurs. Maroc [2014] EWCA Civ 1366 (English Ct. App.) 882, 889
Cargill Int’l SA Antigua v. Sociedad Ibérica de Molturación SA [1998] 1 Lloyd’s Rep. 489
Cetelem SA v. Roust Holding Ltd [2005] 2 Lloyd’s Rep. 494, [2005] EWCA Civ 618 (English Ct.
App.) 1413, 2617, 2746
Channel Tunnel Group Ltd v. Balfour Beatty Constr. Ltd [1992] 2 Lloyd’s Rep. 7 (English Ct.
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Checkpoint Ltd v. Strathclyde Pension Fund [2003] EWCA Civ 84 (English Ct. App.) 289
Chilton v. Saga Holidays plc [1986] 1 All ER 841 (English Ct. App.) 3524
Christopher Brown Ltd v. Genossenschaft Österreichischer Waldbesitzer
Holzwirtschaftsbetriebe [1953] 1 Lloyd‘s Rep. 495 (English Ct. App.) 1302, 1312
P 4508 City of London v. Sancheti [2008] EWCA 1283 (English Ct. App.) 1524
City of Moscow v. Bankers Trust [2004] EWCA Civ 314 (English Ct. App.) 3016, 3017
Collins (Contractors) Ltd v. Baltic Quay Mgt (1994) Ltd [2004] EWCA Civ 1757 (English Ct.
App.) 1455
Compania Naviera Micro SA v. Shipley Int’l, Inc. [1982] 2 Lloyd’s Rep. 351 (English Ct. App.)
637
Courtney & Fairbairn Ltd v. Tolaini Bros. (Hotels) Ltd [1975] 1 WLR 297 (English Ct. App.) 976
Crestar Ltd v. Carr [1987] 2 FTLR 135 (English Ct. App.) 438, 939, 946
Czarnikow v. Roth, Schmidt & Co. [1922] 2 KB 478 (English Ct. App.) 2846, 3651, 3663
Dalmia Dairy Indus. Ltd v. Nat’l Bank of Pakistan [1978] 2 Lloyd’s Rep. 223 (English Ct. App.)
405, 474
Danae Air Transnat’l SA v. Air Canada [2000] 1 WLR 395 (English Ct. App.) 3655
Dardana Ltd v. Yukos Oil Co. [2002] 1 Lloyd’s Rep. 225 (QB) 3740, 3744, 3745, 3882
Dardana Ltd v. Yukos Oil Co. [2002] EWCA Civ 543 (English Ct. App.) 3710, 3712, 3723, 3731,
3877
David Wilson Homes Ltd v. Survey Servs. Ltd [2001] BLR 267 (English Ct. App.) 270, 292, 297,
301
Deutsche Bank AG v. Asia Pac. Broadband Wireless Commc’ns Inc. [2008] EWCA Civ 1091
(English Ct. App.) 404, 409, 437
Deutsche Schachtbau- und Tiefbohrgesellschaft GmbH v. Ras Al Khaimah Nat’l Oil Co. [1987]
2 All ER 769 (English Ct. App.) 377, 406, 427, 519, 3728, 4016, 4021, 4024, 4025, 4026
Deutsche Schachtbau- und Tiefbohrgesellschaft mbH v. Ras Al Khaimah Nat’l Oil Co. [1987] 2
All ER 769 (English Ct. App.) 427, 2903, 2969
Doleman & Sons v. Ossett Corp. [1912] 3 KB 257 (English Ct. App.) 36, 45, 1382
Dolling-Baker v. Merrett [1991] 2 All ER 890 (English Ct. App.) 3011, 3016
Downing v. Al Tameer Est. [2002] EWCA Civ 721 (English Ct. App.) 795, 903, 938, 944, 1015
Duncan Fox & Co. v. Schrempft & Bonke [1915] 3 KB 355 (English Ct. App.) 2904
Eagle Star Ins. Co. Ltd v. Yuval Ins. Co. Ltd [1978] 1 Lloyd’s Rep. 357 (English Ct. App.) 1015,
2989
Ecuador v. Occidental [2005] EWCA Civ 1116 (English Ct. App.) 596
Ecuador v. Occidental Exploration & Prod. Co. [2006] QB 432 (English Ct. App.) 2728
Elektrim SA v. Vivendi Universal SA [2009] EWCA Civ 677 (English Ct. App.) 1093
Emmott v. Michael Wilson & Partners Ltd [2008] EWCA Civ 184 (English Ct. App.) 3017, 3026,
3043
Empresa Exportadora de Azucar v. Industria Azucarera Nacional SA [1983] 2 Lloyd’s Rep. 171
Enka Insaat Ve Sanayi AS v. OOO Ins. Co. Chubb [2020] EWCA Civ 574 (English Ct. App.) 553,
568, 571, 1393, 2822
ETI Euro Telecom Int’l NV v. Bolivia [2008] EWCA Civ 880 (English Ct. App.) 2727, 2728
Euro. Grain & Shipping Ltd v. Johnston [1982] 3 All ER 989 (English Ct. App.) 3285
Excalibur Ventures v. Tex. Keystone Inc. [2016] EWCA Civ 1144 (English Ct. App.) 1413
Fed. Bulk Carriers Inc. v. C. Itoh & Co. [1989] 1 Lloyd’s Rep. 103 (English Ct. App.) 888
Fidelitas Shipping Co. v. VO Exportchleb [1965] 1 Lloyd’s Rep. 223 (English Ct. App.) 3371,
469
3378, 3379, 4135, 4145
Filatona Trading Ltd v. Navigator Equities Ltd [2020] EWCA Civ 109 (English Ct. App.) 1532
Fillite (Runcorn) Ltd v. Aqua-Lift (1989) 45 BLR 27 (English Ct. App.) 572, 1459, 1472
Fiona Trust & Holding Corp. v. Privalov [2007] 1 All ER (Comm) 891 (English Ct. App.), aff’d,
P 4509 [2007] UKHL 40 (House of Lords) 113, 154, 386, 406, 408, 431, 435, 437, 474, 476, 477, 479,
494, 495, 497, 781, 856, 857, 908, 916, 1079, 1304, 1305, 1306, 1377, 1477, 1439, 1440, 1442,
1447, 1450
Fiona Trust & Holding Corp. v. Privalov [2007] UKHL 40 (House of Lords) 377, 408, 409, 428,
475, 476, 477, 478, 479, 488, 495, 496, 684, 689, 695, 785, 873, 908, 909, 913, 954, 1079, 1155,
1303, 1306, 1431, 1440, 1451, 1453, 1456, 1459, 1462, 1477, 1478, 3454, 3456, 3778
Fisher v. PG Wellfair Ltd [1981] 2 Lloyds Rep 514 (English Ct. App.) 3524
Fortress Value Recovery Fund I LLC v. Blue Skye Special Opportunities Fund LP [2013] EWCA
Civ 367 (English Ct. App.) 1572
Foster v. Driscoll [1929] 1 KB 470 (English Ct. App.) 2926
Fox v. PG Welfare Ltd [1981] 2 Lloyd’s Rep. 514 (English Ct. App.) 2348
France v. Tsurushima Maru (Owners) [1921] 37 TLR 961 (English Ct. App.) 1886
Fulham Football Club (1987) Ltd v. Richards [2011] EWCA Civ 855 (English Ct. App.) 154, 1055,
1121, 1620
Furness Withy Pty Ltd v. Metal Distrib. Ltd [1990] 1 Lloyd’s Rep. 236 (English Ct. App.) 866
Gater Assets Ltd v. Nak Naftogaz Ukrainiy [2007] EWCA Civ 988 (English Ct. App.) 3150, 3433,
3716, 3731, 4004, 4067
Gulf Int’l Ltd v. Groupe Chimique Tunisien [2010] EWCA Civ 66 (English Ct. App.) 1404
Halki Shipping v. Sopex Oil [1998] 1 Lloyd’s Rep. 465 (English Ct. App.) 1377
Halliburton Co. v. Chubb Bermuda Ins. Co. [2018] EWCA Civ 817 (English Ct. App.) 1903, 1914,
1932, 1939, 1986, 2019, 2021, 2029, 2030, 2043
Halpern v. Halpern (Nos. 1 & 2) [2007] EWCA Civ 291 (English Ct. App.) 2969
Harbour Assur. Co. (U.K.) Ltd v. Kansa Gen. Int’l Ins. Co. Ltd [1993] 3 All ER 897 (English Ct.
App.) 82, 153, 913, 911, 3455, 3457, 3460
Harbour Assur. Co. (U.K.) Ltd v. Kansa Gen. Int’l Ins. Co. Ltd [1993] 3 All ER 897 (English Ct.
App.) 387, 406, 475, 1452, 1478
Hashwani v. Jivraj [2010] EWCA Civ 712 (English Ct. App.), rev’d, [2011] UKSC 40 (U.K. S.Ct.)
2120
Hashwani v. Jivraj [2010] EWCA Civ 712 (English Ct. App.), rev’d, [2011] UKSC 40 (U.K. S.Ct.)
2120
Henry Boot Constr. Ltd v. Alstom Combined Cycles Ltd [2005] EWCA Civ 814 (English Ct.
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Ho v. Adelekun [2020] EWCA Civ 517 (English Ct. App.) 4186
Hobbs, Padgett & Co. (Reins.) Ltd v. J.C. Kirkland Ltd [1969] 2 Lloyd’s Rep. 547 (English Ct.
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Hume v. AA Mut. Int’l Ins. Co. Ltd [1996] LRLR 19 (English Ct. App.) 795
Hussmann (Euro.) Ltd v. Ahmed Pharaon [2003] EWCA Civ 266 (English Ct. App.) 3411, 2168,
3386
In re An Arbitration Between Dawdy & Hartcup [1884-85] 15 QB 426 (English Ct. App.) 289
In re Hohenzollern Aktien Gesellschaft für Locomotivbahn & City of London Contract Corp.
[1886] 54 LT 596 (English Ct. App.) 1453
In re Trepca Mines Ltd (No. 2) [1963] Ch. 199 (English Ct. App.) 2904
Int’l Tank & Pipe SAK v. Kuwait Aviation Fuelling [1975] QB 224 (English Ct. App.) 1509
Interbulk Ltd v. Aiden Shipping Co. [1984] 2 Lloyd’s Rep. 66 (English Ct. App.) 2340
IOT Eng’g Projects Ltd v. Dangote Fertilizer Ltd [2014] EWCA Civ 1348 (English Ct. App.) 2722
IPCO (Nigeria) Ltd v. Nigerian Nat’l Petroleum Corp. [2008] EWCA Civ 1157 (English Ct. App.)
105, 113, 3720, 3748, 3901
P 4510 Irvani v. Irvani [2000] 1 Lloyd’s Rep. 412 (English Ct. App.) 3461, 3831, 3859
Ispahani v. Bank Melli Iran [1998] Lloyd’s Rep. 133 (English Ct. App.) 2924
Itochu Corp. v. Blumenthal [2012] EWCA Civ 996 (English Ct. App.) 1805
Janos Paczy v. Händler & Naterman GmbH [1981] 1 Lloyds Rep. 302 (English Ct. App.) 949
Jivraj v. Hashwani [2010] EWCA Civ 712 (English Ct. App.) 973, 2121
470
Joint Stock Asset Mgt Co. Ingosstrakh-Invs. v. BNP Paribas SA [2012] EWCA Civ 644 (English
Ct. App.) 1395
JSC Aeroflot Russian Airlines v. Berezovsky [2013] EWCA Civ 784 (English Ct. App.) 795
Jugoslavenska Oceanska Plovidba v. Castle Inv. Co. [1974] QB 292 (English Ct. App.) 3326
Kabab-ji Sal (Lebanon) v. Kout Food Group (Kuwait) [2020] EWCA Civ 6 (English Ct. App.) 553,
573, 568, 606, 631, 814, 911, 1586, 1607, 1611, 3788
Kalmneft v. Glencore Int’l AG [2002] 1 Lloyd’s Rep. 128 (QB) (English High Ct.) 912
Kanoria v. Guinness [2006] 2 All ER 413 (Comm) (English Ct. App.) 3516, 3723, 3745, 3831,
3838, 3839, 3841, 3858, 3842
Kastner v. Jazon [2004] EWCA Civ 1599 (English Ct. App.) 2613
King v. Brandywine Reins. [2005] EWCA Civ 235 (English Ct. App.) 848
Knight & Kinde v. Rainstorm Pictures Inc. [2014] EWCA Civ 356 (English Ct. App.) 113
KS Norjal AS v. Hyundai Heavy Indus. Co. [1992] 1 QB 863 (English Ct. App.) 2018, 2111, 2118,
2139
KS Norjarl AS v. Hyundai Heavy Indus. Co. [1991] 1 Lloyd’s Rep. 260 (QB) (English High Ct.),
aff’d, [1992] 1 QB 863 (English Ct. App.) 2174
Laertis Shipping Corp. v. Exportadora Espanola de Cementos Portland SA (The Laertis) [1982]
1 Lloyd’s Rep. 613 (English Ct. App.) 2934
Lesotho Highlands Dev. Auth. v. Impregilo SpA [2005] 2 All ER 265 (Comm) (English Ct. App.)
3895
LG Caltex Gas Co. Ltd v. China Nat’l Petroleum Corp. [2001] 1 WLR 1892 (English Ct. App.) 781
LG Caltex Gas Co. v. China Nat’l Petroleum Co. [2001] EWCA Civ 788 (English Ct. App.) 1189,
1308, 1316
Lincoln Nat’l Life Ins. Co. v. Sun Life Assur. Co. of Canada [2004] EWHC 343 (Comm) (English
High Ct.), rev’d on other grounds, [2004] EWCA Civ 1660 (English Ct. App.) 2507
Locabail (UK) Ltd v. Bayfield Props. Ltd [1999] EWCA Civ 3004 (English Ct. App.) 1923
Locabail (U.K.) Ltd v. Bayfield Props. Ltd [2000] QB 451 (English Ct. App.) 1903
Lombard-Knight v. Rainstorm Pictures Inc. [2014] EWCA Civ 356 (English Ct. App.) 3697, 3703,
3711, 3843
London S.S. Owners’ Mutual Ins. Ass’n Ltd v. Spain [2015] EWCA Civ 333 (English Ct. App.)
1036, 1055, 1079, 1125, 1524, 1524
Lovelock Ltd v. Exportles [1968] 1 Lloyd’s Rep. 163 (English Ct. App.) 818
Mackender v. Feldia AG [1967] 2 QB 590 (English Ct. App.) 405
Macmillan Inc. v. Bishopsgate Inv. Trust plc (No 3) [1996] 1 All ER 585 (English Ct. App.) 2932
Mantovani v. Caparelli SpA [1980] 1 Lloyd’s Rep. 375 (English Ct. App.) 1409, 2743
Masefield AG v. Amlin Corp. Member Ltd [2011] EWCA Civ 24 (English Ct. App.) 2904
Maspons y Hermano v. Mildred, Goyeneche & Co. [1882] 9 QBD 530 (English Ct. App.) 1535
Mayer Newman v. Al Ferro Commodities Corp. [1990] 2 Lloyd’s Rep. 290 (English Ct. App.)
367
Midgulf Int’l Ltd v. Groupe Chimiche Tunisien [2010] EWCA Civ 66 (English Ct. App.) 637, 747,
1393
Momodou (Practice Note) [2005] 1 WLR 3442 (English Ct. App.) 3092
P 4511 Monro v. Bognor Urban Dist. Council [1915] 3 KB 167 (English Ct. App.) 857
Morrison v. AWA Group Ltd [2006] EWCA 6 (English Ct. App.) 1903
MRI Trading AG v. Erdenet Mining Corp. LLC [2012] EWHC 1988 (Comm) (English High Ct.),
aff’d, [2013] EWCA Civ 156 (English Ct. App.) 3644
Mut. Shipping Corp. v. Bayshore Shipping Co. [1985] 1 Lloyd’s Rep. 189 (English Ct. App.)
3299, 3386, 3663
N. Reg’l Health Auth. v. Derek Crouch Constr. Co. [1984] 1 QB 644 (English Ct. App.) 2137
Nat’l Ability SA v. Tinna Oils & Chems. Ltd [2009] EWCA Civ 1330 (English Ct. App.) 4091
Nat’l Bank of Greece & Athens SA v. Metliss [1958] AC 509 (English Ct. App.) 1577
Nat’l Coal Bd v. Galley [1958] 1 WLR 16 (English Ct. App.) 1501
Nat’l Navigation Co. v. Endesa Generacion SA [2009] EWCA Civ 1397 (English Ct. App.) 4153,
4160
Naviera Amazonia Peruana SA v. Compania Internacional de Seguros del Peru [1988] 1
471
Lloyd’s Rep. 116 (English Ct. App.) 518, 626, 1712, 1725, 1730, 1731, 1733, 1741, 2822, 3194,
3203, 3241
Nissan (U.K.) Ltd v. Nissan Motor Co. Ltd, Unreported Decision of 31 July 1991 (English Ct.
App.) 1306, 1307
Norsk Hydro ASA v. State Prop. Fund of Ukraine [2002] All ER (D) 269 (English Ct. App.) 3727
NV Handel My J. Smits Imp.-Exp. v. English Exps. (London) Ltd [1955] 2 Lloyd’s Rep. 317
O’Callaghan v. Coral Racing Ltd [1998] All ER (D) 607 (English Ct. App.) 301
Occidental Exploration & Prod. Co. v. Ecuador [2005] EWCA Civ 1116 (English Ct. App.) 3731,
3740, 3779
OT Africa Line Ltd v. MAGIC Sportswear Corp. [2005] EWCA Civ 710 (English Ct. App.) 1408
Owners of the Annefield v. Owners of Cargo Lately Laden on Bd the Annefield [1971] 1 All ER
394 (English Ct. App.) 882
Pearlman v. Keepers & Governors of Harrow Sch. [1978] 3 WLR 736 (English Ct. App.) 3588
Pena Copper Mines Ltd v. Rio Tinto Co. [1911-13] All ER 209 (English Ct. App.) 1360, 1364, 1372,
1393
Philip Alexander Sec. & Futures Ltd v. Bamberger [1996] C.L.C. 1757 (English Ct. App.) 1389,
4158
Pittalis v. Sherefettin [1986] 2 All ER 227 (English Ct. App.) 933
R v. Kepple [2007] EWCA Crim 1339 (English Ct. App.) 3861
R. v. Mulvihill [1990] 1 All ER 436, 441 (English Ct. App.) 1903
Rainstorm Pictures Inc v. Lombard-Knight [2014] EWCA Civ 356 (English Ct. App.) 3074, 3709
Ralli Bros. v. Compañia Naviera Sota y Aznar [1920] 2 KB 287 (English Ct. App.) 638
RBRG Trading (UK) Ltd v. Sinocore Int’l Co. Ltd [2018] EWCA Civ 838 (English Ct. App.) 682
Re Enoch & Zaretsky, Bock & Co. [1910] 1 KB 327 (English Ct. App.) 1797
Rich & Co. AG v. Societa Italiana Impianti SpA [1989] 1 Lloyd’s Rep. 548 (English Ct. App.)
1011
Rotenberg v. Sucafina SA [2012] EWCA Civ 637 (English Ct. App.) 3970
Royal Boskalis Westminster NV v. Mountain [1999] QB 674 (English Ct. App.) 2904, 2912
Salford Estates (No. 2) Ltd v. Altomart Ltd [2014] EWCA Civ 1575 (English Ct. App.) 1088
SAS Institute Inc. v. World Programming Ltd [2020] EWCA Civ 599 (English Ct. App.) 1395
Schifffahrtsgesellschaft Detlev von Appen GmbH v. Voest Alpine Intertrading GmbH [1997] 2
Lloyd’s Rep. 279 (English Ct. App.) 1349, 1409, 1579
SEB Trygg Liv Holding AB v. Manches [2005] EWCA Civ 1237 (English Ct. App.) 1538, 1576
Shah v. Shah [2010] EWCA Civ 1408 (English Ct. App.) 2895
P 4512 Shamil Bank of Bahrain v. Beximco Pharm. Ltd [2004] EWCA Civ 19 (English Ct. App.) 2969
Shashoua v. Sharma [2010] EWCA Civ 15 (English Ct. App.) 1405
Shayler v. Woolf [1946] Ch 320 (English Ct. App.) 1579, 1580
Shuttari v. Solicitors Indem. Fund [2007] EWCA Civ 244 (English Ct. App.) 695
Smith Kline & French Labs. v. Bloch [1983] 2 All ER 72 (Comm) (English Ct. App.) 68
Smith, Coney & Barrett v. Becker, Gray & Co. [1916] 2 Ch 86 (English Ct. App.) 475
Soleh Boneh Int’ Ltd v. Uganda [1993] 2 Lloyd’s Rep. 208 (English Ct. App.) 4085, 4087, 4090
Soleimany v. Soleimany [1998] EWCA Civ 285, 289 (English Ct. App.) 476, 955, 1886, 2926,
3609, 4023, 4028, 4056
Star Shipping AS v. China Nat’l Foreign Trade Transp. Corp. [1993] 2 Lloyd’s Rep. 445
(English Ct. App.) 613, 828, 829, 835, 840, 1657, 1663, 1713, 2206, 2209, 2224, 2243, 2251, 2256
Stati v. Kazakhstan [2018] EWCA Civ 1896 (English Ct. App.) 3425
Stretford v. Football Ass’n Ltd [2007] 2 All ER (Comm) 1 EWCA Civ 238 (English Ct. App.) 695,
870, 3011
Sulamerica Cia Nacional de Seguros SA v. Enesa Engenharia SA [2012] EWCA Civ 638 (English
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1440, 1725, 1745, 2822, 3203, 3785
Sumukan Ltd v. Commonwealth Secretariat [2007] EWCA Civ 1148 (English Ct. App.) 695,
1785, 3547, 3548
Svenska Petroleum Exploration AB v. Lithuania (No. 2) [2006] EWCA Civ 1529 (English Ct.
472
App.) 667, 769, 3819, 4135
Syska (Elektrim SA) v. Vivendi Universal SA [2009] EWCA Civ 677 (English Ct. App.) 952
The Parouth [1982] 2 Lloyd’s Rep. 351 (English Ct. App.) 604, 2897
Thornton v. Shoe Lane Parking Ltd [1971] 2 QB 163 (English Ct. App.) 889
Through Transp. Mut. Ins. Ass’n (Eurasia) Ltd v. New India Assur. Ass’n Co. [2004] EWCA Civ
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Toepfer Int’l GmbH v. Societe Cargill France [1998] 1 Lloyd’s Rep. 379 (English Ct. App.) 2748
Tokumaru Kaiun Co. Ltd v. Petredec Ltd [1994] 1 Lloyd’s Rep. 162 (English Ct. App.) 820
Tracomin SA v. Sudan Oil Seeds [1983] Lloyd’s Rep. 384 (English Ct. App.) 1390, 1393
Transamerican Ocean Contracts Inc. v. Transchemical Rotterdam BV [1978] 1 Lloyd’s Rep.
238 (English Ct. App.) 815
Tritonia Shipping Inc. v. S. Nelson Forest Prods. Corp. [1966] 1 Lloyd’s Rep. 114 (English Ct.
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Tzortzis & Sykias v. Monark Line AB [1968] 1 Lloyd’s Rep. 337 (English Ct. App.) 2846, 2943
Univ. of Reading v. Miller Constr. Ltd [1994] 52 Con. L. Rev. 31 (English Ct. App.) 4178
Virdee v. Virdi [2003] EWCA Civ 41 (English Ct. App.) 1858, 1886
W. Tankers Inc. v. Allianz SpA [2012] EWCA Civ 27 (English Ct. App.) 1403, 3747
Warborough Inv. Ltd v. S. Robinson & Sons (Holdings) Ltd [2003] EWCA Civ 751 (English Ct.
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Wealands v. CLC Contractors Ltd [1999] 2 Lloyd’s Rep. 739 (English Ct. App.) 1478, 1512, 2775,
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Weissfisch v. Weissfisch [2006] EWCA Civ 218 (English Ct. App.) 613
Welex AG v. Rosa Maritime Ltd [2003] 2 Lloyd’s Rep. 509 (English Ct. App.) 1394
Westacre Inv. Inc. v. Jugoimport-SPDR Holding Co. Ltd [1999] 1 All ER 865, [1999]3 All ER 864,
P 4513 [1999]2 Lloyd’s Rep. 65 (Comm) (English Ct. App.) 1125, 3629, 3630, 4071
Westacre Inv. v. Jugoimport-SPDR Holding Co. Ltd [1992] 2 Lloyd’s Rep. 65 (1999) (English Ct.
App.) 1079
Westacre Invs. Inc. v. Jugoimport-SDPR Holding Co. Ltd [2000] QB 288 (English Ct. App) 4029
Willcock v. Pickfords [1979] 1 Lloyd’s Rep. 244 (English Ct. App.) 1302
Woolf v. Collis Removal Serv. [1948] 1 KB 11 (English Ct. App.) 1459, 1469, 1471
Yegiazaryan v. Smagin [2016] EWCA Civ 1290 (English Ct. App.) 848
Yukos Capital v. OJSC Rosneft Oil Co. [2012] EWCA Civ 855 (English Ct. App.) 3697, 3698,
3703,3709, 3979, 3980
Zambia Steel & Bldg Supplies Ltd v. James Clark & Eaton Ltd [1986] 2 Lloyd’s Rep. 225
High Court
A Co. v. X, Y & Z [2020] EWHC 809 (English High Ct.) 3099
A Ltd v. B Ltd [2015] EWHC 137, ¶4 (Comm) (English High Ct.) 3475
A v. B & X [2011] EWHC 2345 (English High Ct.) 1903
A v. B [2006] EWHC 2006, ¶137 (Comm) (English High Ct.) 795
A v. B [2007] 1 Lloyd’s Rep. 237 (QB) (English High Ct.) 1712
A v. B [2007] EWHC 591 (Comm) (English High Ct.) 1697, 1737
A v. B [2010] EWHC 1626 (Comm) (English High Ct.) 3310
A v. B [2010] EWHC 3302 (Comm) (English High Ct.) 1178, 1303, 1305, 1309, 3475, 4090
A v. B [2011] EWHC 2345 (English High Ct.) 1986, 2008, 2010, 2030, 2043, 2067, 2091
A v. B [2016] EWHC 3003 (Comm) (English High Ct.) 1576
A v. B [2020] EWHC 809 (TCC) (English High Ct.) 2453
A v. C [2020] EWCA 409 (QB) (English High Ct.) 2573
A v. OOO ‘Ins. Co. Chubb’ [2019] EWHC 2729 (Comm) (English High Ct.) 1394, 2697, 2746\
A.I. v. M.T. [2013] EWHC 100, ¶33 (Fam) (English High Ct.) 1128
473
AB Bofors-Uva CAV Ltd v. AB Skandia Transp. [1982] 1 Lloyd’s Rep. 410 (Comm) (English High
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AB Int’l HK Holdings Plc Ltd v. AB Clearing Corp. Ltd [2015] EWHC 2196 (Comm) (English High
Ct.) 2746
ABB Attorney Gen. v. Hochtief Airport GmbH [2006] EWHC 388 (Comm) (English High Ct.)
2312, 2341, 2510, 3500, 3523, 3535, 3561, 3581, 3644
ABB Lummus Global Ltd v. Keppel Fels Ltd [1999] 2 Lloyd’s Rep. 24 (QB) (English High Ct.)
1332, 1666, 2229
Abu Dhabi Gas Liquefaction Co. v. E. Bechtel Corp. [1982] 2 Lloyd’s Rep. 425 (QB) (English
High Ct.) 2775
Abuja Int’l Hotels Ltd v. Meridien SAS [2012] EWHC 87 (Comm) (English High Ct.) 519, 563,
3457, 3621
Accentuate Ltd v. Asigra Inc. [2009] EWHC 2655 (Comm) (English High Ct.) 896, 1055, 1058
ACE Capital Ltd v. CMS Energy Corp. [2008] EWHC 1843 (Comm) (English High Ct.) 322, 842
African Fertilisers & Chems. NIG Ltd v. BD Shipsnavo GmbH [2011] EWHC 2452, ¶15 (Comm)
(English High Ct.) 3747
Aggeliki Charis Compania Maritima SA v. Pagnan SpA [1994] 1 Lloyd’s Rep. 168 (QB) (English
P 4514 High Ct.) 1453
Agromet Motorimport Ltd v. Maulden Eng’g Co. [1985] 2 All ER 436 (QB) (English High Ct.)
3152, 4092
AIG Europe SA v. QBE Int’l Ins. Ltd [2001] 2 Lloyd’s Rep. 268 (QB) (English High Ct.) 270, 299
AJA Registrars Ltd v. AJA Euro. Ltd [2020] EWHC 883 (Ch) (English High Ct.) 1389
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Al Hadha Trading Co. v. Tradigrain SA [2002] 2 Lloyd’s Rep. 512 (QB) (English High Ct.) 3386,
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AOOT Kalmneft v. Glencore Int’l AG [2001] 1 Lloyd’s Rep. 128 (QB), [2001] CLC 1805 (Comm)
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B v. J [2020] EWHC 1373 (Ch) (English High Ct.) 1924, 2001, 2004
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Berkeley Burke SIPP Admin. LLP v. Charlton [2017] EWHC 2396 (English High Ct.) 301
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Blackpool Borough Council v. F Parkinson Ltd [1992] 58 BLR 85 (QB) (English High Ct.) 2379
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British Telecommc’ns plc v. SAE Group Inc. [2009] EWHC 252 (TCC) (English High Ct.) 286
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Cameroon Airlines v. Transnet Ltd [2004] EWHC 1829 (Comm) (English High Ct.) 3530
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Chung v. Dry Silver Bulk Co. Ltd [2019] EWHC 1147 (Comm) (English High Ct.) 3461
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Claire & Co. v. Thames Water Utilities Ltd [2005] EWHC 1022 (TCC) (English High Ct.) 2427
Claxton Eng’g Servs. Ltd v. TXM Olaj–És Gázkutató KFT [2010] EWHC 2567 (Comm) (English
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P 4517 Clyde & Co. LLP v. van Winkelhof [2011] EWHC 668 (Comm) (English High Ct.) 1098
CMA CGM SA v. Hyundai Mipo Dockland Ltd [2008] EWHC 2791 (Comm) (English High Ct.)
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Cofely Ltd v. Bingham [2016] EWHC 240 (Comm) (English High Ct.) 1903, 2000, 2017, 2019,
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Commerce & Indus. Ins. Co. of Canada v. Lloyd’s Underwriters at Lloyd’s of London [2002] 1
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Cont’l Enters. Ltd v. Shandong Zhucheng Foreign Trade Group Co. [2005] EWHC 92 (Comm)
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Crest Nicholson (E.) Ltd v. Mr & Mrs Western [2008] EWHC 1325 (English High Ct.) 850
Crowther v. Rayment [2015] EWHC 427 (Ch) (English High Ct.) 1155
Cuflet Chartering v. Carousel Shipping Co. Ltd [2001] 1 All ER 398 (Comm) (English High Ct.)
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Cunliffe-Owen v. Teather & Greenwood [1967] 1 WLR 1421 (Ch) (English High Ct.) 2985
Dadoun v. Biton [2019] EWHC 3441 (Ch) (English High Ct.) 1904
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Daiichi Chuo Kisen Kaisha v. Chubb Seguros Brasil [2020] EWHC 1223 (Comm) (English High
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Dallah Real Estate & Tourism Holding Co. v. Ministry of Religious Affairs, Pakistan [2008]
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Dawes v. Treasure & Son Ltd [2010] EWHC 3218 (TCC) (English High Ct.) 3271, 3371
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Dera Commercial Estate v. Derya Inc. [2018] EWHC 1673 (Comm) (English High Ct.) 1923,
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DHL GBS (U.K.) Ltd v. Fallimento Finmatica SpA [2009] EWHC 291 (Comm) (English High Ct.)
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Diag Human SE v. Czechia [2014] EWHC 1639 (Comm) (English High Ct.) 682, 3358, 3723, 3731,
P 4518 3740, 3753, 3807, 3958
Dowans Holding SA v. Tanzania Elec. Supply Co. [2001] EWHC 1957 (Comm) (English High Ct.)
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Dreymoor Fertilisers Overseas Pte Ltd v. Eurochem Trading GmbH [2018] EWHC 909 (Comm)
Duarte v. Black & Decker Corp. [2007] EWHC 2720 (QB) (English High Ct.) 2904, 2911
Dubai Elec. Co. v. Iran Shipping Lines [1984] 2 Lloyd’s Rep. 380 (QB) (English High Ct.) 2963
Dubai Islamic Bank PJSC v. Paymentech Merchant Servs. Inc. [2000] EWHC 228 (Comm)
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E. Euro. Eng’g Ltd v. Vijay Constr. (Pty) Ltd [2017] EWHC 797 (Comm) (English High Ct.) 4029
Ecom Agroindustrial Corp. Ltd v. Mosharaf Composite Textile Mill Ltd [2013] EWHC 1276
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Econet Wireless Serv. Ltd v. Vee Networks Ltd [2006] EWHC 1568 (Comm) (English High Ct.)
2750, 2752, 2754
Ecuador v. Occidental Exploration & Prod. Co. (No. 2) [2006] EWHC 345 (Comm) (English
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Egiazaryan v. OJSC OEK Fin. [2015] EWHC 3532 (Comm) (English High Ct.) 1529, 1607, 3478
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Egon Oldendorff v. Liberia Corp. [1995] 2 Lloyd’s Rep. 64 (English High Ct.) 549, 604, 637,
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Ekran OAO v. Magneco Metrel UK Ltd [2017] EWHC 2208 (Comm) (English High Ct.) 109, 110
El Nasharty v. J. Sainsbury plc [2003] EWHC 2195 (Comm) (English High Ct.) 918
El Nasharty v. J. Sainsbury plc [2004] 1 Lloyd’s Rep. 309 (English High Ct.) 795, 1179, 1306
EL Nasharty v. J. Sainsbury plc [2007] EWHC 2618 (Comm) (English High Ct.) 386, 409, 872,
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El Nasharty v. J. Sainsbury plc [2008] 1 Lloyd’s Rep. 360 (Comm) (English High Ct.) 3456
Electrosteel Castings Ltd v. Scan-Trans Shipping & Chartering Sdn Bhd [2002] EWHC 1993
Elektrim SA v. Vivendi Universal SA [2007] EWHC 11 (Comm) (English High Ct.) 944, 3523,
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Elektrim SA v. Vivendi Universal SA [2007] EWHC 571 (Comm) (English High Ct.) 251, 1394,
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Emirates Trading Agency LLC v. Prime Mineral Exp. Ltd [2014] EWHC 2014 (Comm) (English
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Emirates Trading Agency LLC v. Sociedade De Fomento Indus. Pvt Ltd [2015] EWHC 1452
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Emmott v. Michael Wilson & Partners Ltd [2018] EWCA Civ 51 (English High Ct.) 2754
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Entico Corp. Ltd v. U.N. Educ. Scientific & Cultural Ass’n [2008] EWHC 531 (Comm) (English
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ET Plus SA v. Jean-Paul Welter [2005] EWHC 2115 (Comm) (English High Ct.) 154, 1054, 1065,
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Etablissements Georges et Paul Levy v. Adderley Navigation Co. Panama, SA [1980] 2 Lloyd’s
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Ethiopian Oilseeds & Pulses Exp. Corp. v. Rio del Mar Foods Inc. [1990] 1 Lloyd’s Rep. 86 (QB)
Euroil Ltd v. Cameroon Offshore Petroleum Sarl [2014] EWHC 12 (Comm) (English High Ct.)
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Evison Holdings Ltd v. Int’l Co. Finvision Holdings [2019] EWHC 3057 (Comm) (English High
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Excalibur Ventures LLC v. Tex. Keystone Inc. [2014] EWHC 3436 (English High Ct.), aff’d,
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Excomm Ltd v. Ahmed Abdul-Qawi [1985] 1 Lloyd’s Rep. (English High Ct.) 747, 854
Exeter City AFC Ltd v. Football Conference Ltd [2004] EWHC 831 (Ch) (English High Ct.) 1472
Exmek Pharm. SAC v. Alkem Labs. Ltd [2015] EWHC 3158 (Comm) (English High Ct.) 814, 973,
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Fed. Ins. Co. v. Transam. Occidental Life Ins. Co. [1999] 2 Lloyd’s Rep. 286 (QB) (English High
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Fence Gate Ltd v. NEL Constr. Ltd [2001] EWHC 456 (TCC) (English High Ct.) 3342, 3343
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Filatona Trading Ltd v. Navigator Equities Ltd [2019] EWHC 173 (Comm) (English High Ct.) 781
Film Fin. Inc. v. Royal Bank of Scotland [2007] EWHC 195 (Comm) (English High Ct.) 154
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Fleetwood Wanderers Ltd v. AFC Flyde Ltd [2018] EWHC 3318 (Comm) (English High Ct.) 3524
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1480, 1512
Flight Training Int’l v. Int’l Fore Training Equip. [2004] EWHC 721 (Comm) (English High Ct.)
299, 301
Forwood & Co. v. Watney [1880] LJQB 447 (QB) (English High Ct.) 1454
P 4520 Fowler v. Merrill Lynch, X Y.B. Comm. Arb. 499 (English High Ct.) 279, 904
Frota Oceanica Brasileira SA v. S.S. Mut. Underwriting Ass’n (Bermuda) Ltd [1995] 2 Lloyd’s
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Gannet Shipping v. Eastrade Commodities [2001] EWHC 483 (QB) (English High Ct.) 3371,
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Gater Assets Ltd v. Nak Naftogaz Ukrainy [2007] EWCA Civ 988 (English High Ct.) 106, 3724
Gatoil Int’l Inc. v. Nat’l Iranian Oil Co., XVII Y.B. Comm. Arb. 587 (English High Ct. 1988)
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Gbangbola v. Smith & Sheriff Ltd [1998] 1 TCLR 136 (QB) (English High Ct.) 2332, 2477, 3516
GEC Alsthom Metro Cammell Ltd v. Firema Consortium [1996] Folio No. 2624 (Comm)
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Gerald Metals SA v. Timis [2016] EWHC 2327 (Ch) (English High Ct.) 155, 2735, 2739, 2756
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GigSky APS v. Vodafone Roaming Serv. Sarl [2015] EWHC 4047 (Comm) (English High Ct.)
2617, 2668
Glencore Agric. BV v. Conqueror Holdings Ltd [2017] EWHC 2893 (Comm) (English High Ct.)
3503
Glencot Dev. & Design Co. v. Ben Barrett & Son (Contractors) Ltd [2001] BLR 207 (QB)
Global Maritime Inv. Cyprus Ltd v. Gorgonia di Navigazione Srl [2014] EWHC 706 (Comm)
Goel v. Amega Ltd [2010] EWHC 2454 (TCC) (English High Ct.) 2752
Gold Reserve Inc. v. Venezuela [2016] EWHC 153 (Comm) (English High Ct.) 3365
Golden Ocean Group Ltd v. Humpuss Intermoda Transportasi [2013] EWHC 1240 (Comm)
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GPF GP Sarl v. Poland [2018] EWHC 409 (Comm) (English High Ct.) 1309, 3475, 3478, 3587
GPFGP Sarl v. Poland [2018] Bus LR 1203 (English High Ct.) 1178
Grindrod Shipping Pte Ltd v. Hyundai Merchant Marine Co. Ltd [2018] EWHC 1284 (Comm)
Groundshire Ltd v. VHF Constr. plc [2001] BLR 395 (QB) (English High Ct.) 3524
Guangzhou Dockyards Co. Ltd v. ENE Aegiali I [2010] EWHC 2826 (Comm) (English High Ct.)
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Guidant LLC v. Swiss Re Int’l SE [2016] EWHC 1201 (Comm) (English High Ct.) 2775
H v. L [2017] EWHC 137 (Comm) (English High Ct.) 251, 1932, 1939, 2021
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Halifax Fin. Servs. Ltd v. Intuitive Sys. Ltd [1999] 1 All ER 303 (Comm) (English High Ct.) 976
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P 4521 Halpern v. Halpern [2006] EWHC 603 (Comm) (English High Ct.) 549, 1663, 1713, 2206, 2969
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Hashwani v. Jivraj [2015] EWHC 998 (Comm) (English High Ct.) 943, 1015
Hassneh Ins. Co. of Israel v. Mew [1993] 2 Lloyd’s Rep. 243 (QB) (English High Ct.) 3015, 3016,
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Hayter v. Nelson Home Ins. Co. [1990] 2 Lloyd’s Rep. 265 (QB) (English High Ct.) 367, 685
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Pine Top Ins. Co. Ltd v. Unione Italiana Anglo Saxon Reins. Co. Ltd [1987] 1 Lloyd’s Rep. 476
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PT Putrabali Adyamulia v. Societe Est Epices [2003] EWHC 3089 (Comm) (English High Ct.)
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484
PT Transportasi Gas Indonesia v. ConocoPhillips (Grissik) Ltd [2016] EWHC 2834 (Comm)
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Re One Blackfriars v. Nygate [2020] EWHC 845 (Ch) (English High Ct.) 2435
Re Pering & Keymer [1835] 3 Ad. & E. 245 (KB) (English High Ct.) 3312
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Re Q’s Estate [1999] 1 Lloyd’s Rep. 931 (QB) (English High Ct.) 2745
Re Vocam Euro. Ltd [1998] BCC 396 (Ch) (English High Ct.) 1055, 1121
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Reliance Indus. Ltd v. India [2018] EWHC 822 (Comm) (English High Ct.) 3494, 3498, 3528,
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Rena K [1979] QB 377 (QB) (English High Ct.) 1376, 2722
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Ritter v. Hoag [2003] ABQB 978 (QB) (English High Ct.) 2697
RJ & L Ltd v. HB [2018] EWHC 2833 (Comm) (English High Ct.) 2341, 3494, 3513, 3536
Rosseel NV v. Oriental Commercial & Shipping (U.K.) Ltd [1991] 2 Lloyd’s Rep. 625 (Comm)
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Russell v. Pellegrini [1856] 6 El. & Bl. 1020 (English Q.B.) 36
Russell v. Russell (1880) 14 Ch.D. 471 (Ch) (English High Ct.) 3015
Rustal Trading Ltd v. Gill & Duffus SA [2000] 1 Lloyd’s Rep. 14 (QB) (English High Ct.) 1903,
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Rustal v. Gill & Duffus [2001] 1 Lloyd’s Rep. 14 (Comm) (English High Ct.) 2084
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Sabbagh v. Khoury [2014] EWHC 3233 (Comm) (English High Ct.) 109, 679, 707, 1303, 1307,
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Sanghi Polyesters (India) Ltd v. Int’l Inv. (KCFC) (Kuwait) [2000] 1 Lloyd’s Rep. 480 (QB)
P 4528 (English High Ct.) 156, 2961, 3643
Sanhe Hope Full Grain Oil Foods Prod. Co. v. Toepfer Int’l Asia Pte [2007] EWHC 2784 (Comm)
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1393
Serbia v. Imagesat Int’l BV [2009] EWHC 2853 (Comm) (English High Ct.) 867, 1128
Shagang South-Asia (H.K.) Trading Co. Ltd v. Daewoo Logistics [2015] EWHC 194 (Comm)
(English High Ct.) 1697, 1741, 1745, 2224, 2227, 2232
Shashoua v. Sharma [2009] EWHC 957 (Comm) (English High Ct.) 1404, 1660, 1697, 2227, 2231,
2232, 3194, 3198, 3203, 3250, 3252, 3257, 3341
Sheffield United Football Club Ltd v. W. Ham United Football Club plc [2008] EWHC 2855
Shell Egypt W. Manzala GmbH v. Dana Gas Egypt Ltd [2009] EWHC 2097 (Comm) (English
High Ct.) 3644, 3670
Shell Int’l Petroleum Co. Ltd v. Coral Oil Co. Ltd [1999] 1 Lloyd’s Rep. 72 (English High Ct.)
282, 842
Sheltam Rail Co. (Proprietary) Ltd v. Mirambo Holdings Ltd [2008] EWHC 829 (Comm)
Shepherd Constr. Ltd v. Mecright Ltd [2000] BLR 489 (TCC) (English High Ct.) 1488
Shuttari v. Solicitors Indem. Fund [2004] EWHC 1537 (Ch) (English High Ct.) 3512, 3520
Sierra Fishing Co. v. Farran [2015] EWHC 140 (Comm) (English High Ct.) 1903, 2001, 2004
Silver Dry Bulk Co. Ltd v. Homer Hulbert Maritime Co. Ltd [2017] EWHC 44 (English High Ct.)
1155, 1304, 1842, 1851, 1860
Sim Swee Joo Shipping Sdn Bhd v. Shirlstar Container Transp. Ltd [1994] CLC 188 (QB)
Sinocore Int’l Co. Ltd v. RBRG Trading (UK) Ltd [2017] EWHC 251 (Comm) (English High Ct.)
3745, 4029, 4048, 4056, 4068
Siporex Trade SA v. Comdel Commodities Ltd [1986] 2 Lloyd’s Rep. 428, 437 (QB) (English
High Ct.) 2697
Smith v. British Boxing Board of Control Ltd [2015] 4 WLUK 112 (English High Ct.) 1903
Sodzawiczny v. Ruhan [2018] EWHC 1908 (Comm) (English High Ct.) 1371
Soletanche Bachy France SAS v. Aqaba Container Terminal (Pvt) Co. [2019] EWHC 362
Sonact Group Ltd v. Premuda SpA [2018] EWHC 3820 (Comm) (English High Ct.) 874
Sonatrach Petroleum Corp. (BVI) v. Ferrell Int’l Ltd [2002] 1 All ER 627 (Comm) (English High
Ct.) 437, 542, 555, 563, 569, 814, 826, 1423, 1484, 2963
Sonatrach v. Statoil [2014] EWHC 875 (Comm) (English High Ct.) 2197, 3515
Soteriou v. Ultrachem [2004] EWHC 983 (QB) (English High Ct.) 4136
Sovarex SA v. Romero Alvarez SA [2011] EWHC 1661 (Comm) (English High Ct.) 3731
Spliethoff’s Bevrachtingskantoor BV v. Bank of China Ltd [2015] EWHC 999 (Comm) (English
High Ct.) 1390
ST Shipping & Transport Pte Ltd v. Space Shipping Ltd [2017] EWHC 2808 (Comm) (English
High Ct.) 3644
St. George’s Inv. Co. v. Gemini Consulting Ltd [2004] EWHC 2353 (Ch) (English High Ct.) 289,
3525
Starlight Shipping Co. v. Tai Ping Ins. Co. [2007] EWHC 1893 (QB) (English High Ct.) 1409, 1394
Stati v. Kazakhstan [2015] EWHC 2542 (Comm) (English High Ct.) 3736
Stati v. Kazakhstan [2019] EWHC 1715 (Comm) (English High Ct.) 113
Stellar Shipping Co. LLC v. Hudson Shipping Lines [2010] EWHC 2985 (Comm) (English High
Ct.) 1574, 1575
Stemcor UK Ltd v. Global Steel Holdings Ltd [2015] EWHC 363 (Comm) (English High Ct.) 154
Sterling v. Rand [2019] EWHC 2560 (Ch) (English High Ct.) 56, 3747
Stockman Interhold SA v. Arricano Real Estate plc [2017] EWHC 2909 (Comm) (English High
Ct.) 3612
Succula Ltd v. Harland & Wolff [1980] 2 Lloyd’s Rep. 381 (QB) (English High Ct.) 1934
Sumitomo Heavy Indus. Ltd v. Oil & Natural Gas Comm’n [1994] 1 Lloyd’s Rep. 45 (QB)
486
Sun Life Assurance Co. of Canada v. CX Reins. Co. Ltd [2004] Lloyd’s Rep. IR 86 (QB) (English
High Ct.) 901
Surefire Sys. v. Guardian ECL Euro. Ltd [2005] EWHC 1860 (QB) (English High Ct.) 3644
P 4529 Sutherland & Co. v. Hannevig Bros. Ltd [1921] 1 KB 336 (KB) (English High Ct.) 3386
Svenska Petroleum Exploration AB v. Lithuania [2005] EWHC 2437 (Comm) (English High Ct.)
409, 536, 559, 569, 3744, 4136
Swiss Bank Corp. v. Novorossiysk Shipping [1995] 1 Lloyd’s Rep. 202 (QB) (English High Ct.)
815, 820, 825
Symbion Power LLC v. Venco Imtiaz Constr. [2017] EWHC 348 (TCC) (English High Ct.) 1932,
1946, 3017, 3900
T v. V [2017] EWHC 565 (Comm) (English High Ct.) 1903
Tame Shipping Ltd v. Easy Navigation Ltd [2004] EWHC 1862 (Comm) (English High Ct.) 3291
Tamil Nadu Elec. Bd v. ST-CMS Elec. Co. Ltd [2008] 1 Lloyd’s Rep. 93(English High Ct.) 901
Tamil Nadu Elec. Bd v. St-CMS Elec. Co. Pvt Ltd [2007] EWHC 1713 (Comm) (English High Ct.)
638
Taylor v. Yielding [1912] 56 Sol Jo 253 (Ch) (English High Ct.) 271
Teekay Tankers Ltd v. STX Offshore & Shipbuilding Co. Ltd [2017] EWHC 253 (Comm) (English
High Ct.) 3017
Telia Sonera AB v. Hilcourt Docklands Ltd [2003] EWHC 3353 (English High Ct.) 3330
Terna Bahrain Co. WLL v. Shamsi [2012] EWHC 3283 (Comm) (English High Ct.) 2358, 3491,
3498, 3530, 3538, 3539, 3543, 3867
P 4531 Tesco (Ireland) Ltd v. Moffett [2015] NIQB 68 (Comm) (English High Ct.) 3846, 3934
Thai-Euro. Tapioca Serv. Ltd v. Seine Navigation Co. [1989] 2 Lloyd’s Rep. 506 (QB) (English
High Ct.) 944
Thames Valley Power Ltd v. Total Gas & Power Ltd [2005] EWHC 2208 (QB) (English High Ct.)
1377
The Rena K [1979] QB 377 (QB) (English High Ct.) 115, 166, 679
Three Shipping Ltd v. Harebell Shipping Ltd [2004] All ER (D) 152 (QB) (English High Ct.) 846
Threlfall v. Fanshawe [1850] 19 LJQB 344 (English Q.B.) 2144
Through Transp. Mut. Ins. Ass’n (Eurasia) Ltd v. New India Assur. Co. Ltd [2005] EWHC 455
Thyssen Canada Ltd v. Mariana Maritime SA [2005] 1 Lloyd’s Rep. 640 (QB) (English High Ct.)
3630
Times Trading Corp. v. Nat’l Bank of Fujairah (Dubai Branch) [2020] EWHC 1078 (Comm)
Toangyuaan Int’l v. Uni-Clan Ltd, XXVI Y.B. Comm. Arb. 886 (QB) (English High Ct. 2001)
(2001) 1690
Toepfer Int’l GmbH v. Societe Cargill France [1997] 2 Lloyd’s Rep. 98 (QB) (English High Ct.)
1394
Tokumaru Kaiun Co. Ltd v. Petredec Ltd, Unreported Judgment (QB) (English High Ct. 1995)
848
Tongyan (U.S.A.) Int’l v. Uni-Clan Ltd, XXVI Y.B. Comm. Arb. 886 (English High Ct. 2001)
(2001) 3551, 3553, 3910, 4079
Tonicstar Ltd v. Am. Home Assur. Co. [2004] EWHC 1234 (QB) (English High Ct.) 559, 2249
Top Shop Estates v. Danino [1985] 1 EGLR 9 (QB) (English High Ct.) 3525
Torch Offshore LLC v. Cable Shipping Inc. [2004] EWHC 787 (Comm) (English High Ct.) 3386,
3402
Tote Bookmakers Ltd v. Dev. & Prop. Holding Co. [1985] 2 All ER 555 (Ch) (English High Ct.)
933
Town Ctr Sec. plc v. Leeds City Council, 1 Arb. & Disp. Resol. L.J. 54 (English High Ct. 1985)
2171
Tracomin SA v. Gibbs Nathaniel (Canada) Ltd [1985] 1 Lloyd’s Rep. 586 (QB) (English High
Ct.) 1797
Trave Schifffahrtsgesellschaft mbH & Co. KG v. Ninemia Maritime Corp. [1986] QB 802 (QB)
Travelers Cas. & Sur. Co. of Euro. Ltd v. Sun Life Assur. Co. [2004] EWHC 1704 (Comm)
487
Travelers Ins. Co. Ltd v. Countrywide Surveyors Ltd [2010] EWHC 2455 (TCC) (English High Ct.)
2573
Trygg Hansa Ins. Co. Ltd v. Equitas [1998] 2 Lloyd’s Rep. 439 (QB) (English High Ct.) 889
TTMI Sarl v. Statoil ASA [2011] EWHC 1150 (Comm) (English High Ct.) 699, 748, 753
U&M Mining Zambia Ltd v. Konkola Copper Mines plc [2013] EWHC 260 (Comm) (English High
Ct.) 1394, 1712, 2749, 2752
U.R. Power GmbH v. Kuok Oils & Grains Pte Ltd [2009] EWHC 1940 (Comm) (English High Ct.)
409, 431, 3498
Ultraframe (U.K.) v. Fielding [2005] EWHC 1638 (Ch) (English High Ct.) 3092
Ulysses Compania Naviera SA v. Huntingdon Petroleum Servs. [1990] 1 Lloyd’s Rep. 160 (QB)
(English High Ct.) 1440, 1461, 1469, 1471
UMS Holding Ltd v. Great Station Props. [2017] EWHC 2473 (Comm) (English High Ct.) 3027,
3499, 3500, 3515, 3519, 3535, 3561
Union Marine Classification Servs. v. Comoros [2015] EWHC 508 (Comm) (English High Ct.)
3386
Union of India v. McDonnell Douglas Corp. [1993] 2 Lloyd’s Rep. 48 (Comm) (English High Ct.)
569, 630, 1667, 1669, 1693, 1726, 1731, 1733, 1736, 1738, 1743, 1745, 1750, 3203, 3241
Uttam Galva Steels Ltd v. Gunvor Singapore Pte Ltd [2018] EWHC 1098 (Comm) (English High
Ct.) 3487
Vale do Rio Doce Navegacao SA v. Shanghai Bao Steel Ocean Shipping Co. [2000] EWHC 205,
2 All ER 70 (Comm) (English High Ct.) 1304, 2358
Vee Networks Ltd v. Econet Wireless Int’l Ltd [2004] EWHC 2909 (Comm) (English High Ct.)
1167, 1189, 1306, 1308, 1332, 3487, 3539, 3540, 3589
Vee Networks Ltd v. Econet Wireless Int’l Ltd [2005] 1 Lloyd’s Rep. 192 (QB) (English High Ct.)
154, 409, 437, 3528
Veritas Shipping Corp. v. Anglo-Canadian Cement Ltd [1966] 1 Lloyd’s Rep. 76 (QB) (English
High Ct.) 1796, 2002, 2004
Villa Denizcilik Sanayi ve Ticaret AS v. Longen SA [1998] 1 Lloyd’s Rep. 195 (QB) (English High
Ct.) 944
VTB Commodities Trading DAC v. JSC Antipinsky Refinery [2019] EWHC 3292 (Comm) (English
High Ct.) 1440, 2231
W Ltd v. M Sdn Bhd [2016] EWHC 422 (Comm) (English High Ct.) 1979, 1986, 1987, 2007, 2031,
2032
W. of England Ship Owners Mut. Protection & Indem. Assoc. v. Hellenic Indus. Dev. Bank SA
[1999] Lloyd’s Rep. 95 (Comm) (English High Ct.) 2997, 3456
W. Tankers Inc. v. Allianz SpA [2011] EWHC 829 (Comm) (English High Ct.) 1403
W. Tankers Inc. v. Allianz SpA [2012] EWHC 854 (Comm) (English High Ct.) 1403
W. Tankers Inc. v. Ras Riunione Adriatica di Sicurta [2005] 2 Lloyd’s Rep. 257 (QB) (English
High Ct.) 901, 1402, 1403, 1404
W. Tankers Inc. v. Ras Riunione Adriatica di Sicurta SpA [2005] EWHC 454 (Comm) (English
High Ct.) 1403, 1522, 1580, 1584
W. Tankers Inc. v. RAS Riunione Adriatica Sicurta Spa [2007] EWHC 2184 (Comm) (English
High Ct.) 1403
Wah & Ying v. Grant Thornton Int’l Ltd [2012] EWHC 3198 (Ch) (English High Ct.) 976, 978,
3463
Walkinshaw v. Diniz [2000] 2 All ER (Comm) 237 (QB) (English High Ct.) 297, 280, 289, 292,
297, 301, 854, 1423, 1484
Webb v. Lewis Silkin LLP [2015] EWHC 687 (Comm) (English High Ct.) 695
Weldon Plant Ltd v. Comm’ner for New Towns [2001] 1 All ER 264 (Comm) (English High Ct.)
3531
Westacre Inv. Inc. v. Jugoimport-SDPR Holding Co. Ltd [1998] 4 All ER 570 (QB) (English High
Ct.) 376, 386, 406, 427, 438, 475, 476, 902, 954, 956, 3425, 3626, 4028, 4029, 4056, 4068
Westfal-Larsen Co. AS v. Ikerigi Compania Naviera SA [1983] 1 All ER 382 (QB) (English High
Ct.) 846
Westland Helicopters Ltd v. Al-Hejailan [2004] EWHC 1625 (Comm) (English High Ct.) 2426,
3517, 3599, 3858
Westminster Bldg Co. Ltd v. Beckingham [2004] BLR 163 (TCC) (English High Ct.) 1487
488
Westminster Chem. & Produce Ltd v. Eichholz & Loeser [1954] 1 Lloyd’s Rep. 99 (QB) (English
High Ct.) 867
P 4532 Wicketts & Sterndale v. Brine Builders [2002] CILL 1805 (QB) (English High Ct.) 2079
Wilky Prop. Holdings plc v. London & Surrey Invs. Ltd [2011] EWHC 2226 (Ch) (English High
Ct.) 270, 286, 294
World Pride Shipping Ltd v. Daiichi Chuo Kisen Kaisha [1984] 2 Lloyd’s Rep. 489 (QB) (English
High Ct.) 1394
World Trade Corp. v. C. Czarnikow Sugar Ltd [2004] EWHC 2332 (Comm) (English High Ct.)
3402
X Ltd v. Y Ltd [2005] EWHC 769 (TCC) (English High Ct.) 1456
X v. Y [2018] EWHC 741 (Comm) (English High Ct.) 3386
XL Ins. Ltd v. Owens Corning [2000] 2 Lloyd’s Rep. 500 (QB) (English High Ct.) 515, 569, 570,
576, 613, 626, 630, 662, 1394, 1744, 1746
XL Ins. Ltd v. Toyota Motor Sales USA Inc., Unreported Judgment (QB) (English High Ct.)
1824, 1827, 1828, 1841, 1850, 1851, 1859, 2014
Xstrata Coal Queensland Pty Ltd v. Benxi Iron & Steel (Group) Int’l Econ. & Trading Co. Ltd
[2016] EWHC 2022 (Comm) 3386
Youell v. La Reunion Aerienne [2008] EWHC 2493 (Comm) (English High Ct.) 1404
Zavod Ekran OAO v. Magneco Metrel UK Ltd [2017] EWHC 2208 (Comm) (English High Ct.)
3504, 3848
Zermalt Holdings SA v. Nu-Life Upholstery Repairs Ltd [1984] 2 EGLR 14 (QB) (English High
Ct.) 2341, 3530
Zim Integrated Shipping Serv. Ltd v. Euro. Container KS [2013] EWHC 3581 (Comm) (English
High Ct.) 2751
Privy Council (and other territories)
Anzen Ltd v. Hermes One Ltd [2016] UKPC 1 (U.K. Privy Council) 848, 850, 933, 1355, 1371
Assoc’d Elec. & Gas Ins. Servs. Ltd v. Euro. Reins. Co. of Zurich [2003] UKPC 11 (Bermuda
Privy Council) 3016, 3026, 4111, 4135, 4136
Bay Hotel & Resort Ltd v. Cavalier Constr. Co. Ltd [2001] UKPC 34 (Turks & Caicos Islands
Privy Council) 1725, 1731, 1733, 1745, 2775, 3294, 3299
Cukurova Holding AS v. Sonera Holding BV [2015] 2 All ER 1061 (U.K. Privy Council) 3870
Cukurova Holding v. Sonera Holding, XXXIX Y.B. Comm. Arb. 516 (U.K. Privy Council 2014)
3724
Sans Souci Ltd v. VRL Serv. Ltd [2012] UKPC 6 (Jamaica) 3379
Vita Food Prods. Inc. v. Unus Shipping Co. Ltd [1939] AC 277, 290 (English Privy Council) 2887,
2937
Others
Anon. (1468) YB, 8 Edw 4, fo 1, pl 1 3378, 3379
Ansell v. Evans [1796] 7 TR 1 (English K.B.) 700
Brooke v. Mitchell [1840] 6 M&W 473 (English Ct. Exch. Cham.) 3378, 3379, 3385
Cook v. Songate [1588] 4 Leon 31 (English K.B.) 34
Doe d Davy v. Haddon [1783] 3 Doug K.B. 310 (English K.B.) 4135
Doley v. Pitstow [1755] 96 ER 859 (English K.B.) 38
Elliott v. Chevall [1699] 125 ER 284 (English Common Pleas) 38
Esposito v. Bowden [1843-60] All ER 39 (English Ct. Exch. Cham.) 2904
Foss v. Harbottle [1843] 67 ER 189 (English Vice-Ch. Ct.) 1594
Kill v. Hollister [1746] 95 ER 532 (English K.B.) 36
P 4533 Re Shaw & Sims [1851] 17 LTOS 160 (English Bail Ct.) 38, 1881, 2299
Re Tandy & Tandy (1841) 9 Dowl 1044 (English QB Prac. Ct.) 3379
Richardson v. Mellish [1824] 2 Bing. 228, [1824-34] All ER 258 (English Ct. Common Pleas)
2902, 3611, 4023, 4024
Tinplate Co. v. Hughes [1891] 60 LJQB 640 (English K.B.) 747
Waldridge v. Kennison [1794] 1 Esp 143 (English K.B.) 2556
Ward v. Dean [1832] 3 B & Ad 234 (English K.B.) 3385
Vynior v. Wilde [1609] 77 Eng. Rep. 595 (English K.B.) 34, 676
489
Estonia
Judgment of 28 February 2007, Case No. 2-06-9525 (Tallinn Dist. Ct.) 3558
Ethiopia
Consta JV v. Chemin de Fer Djibouto – Ethiopien, Case No. 2013-32 (Ethiopian S.Ct.) 4072
France
French Cour de Cassation
Creighton v. Ministère des Finances de l’Etat du Qatar, 15(9) Int’l Arb. Rep. A-1 (2000) (French
Cour de Cassation Civ. 1) 90
Excelsior Film TV v. UGC-PH, 1999 Rev. Arb. 255 (French Cour de Cassation Civ. 1) 4045
Judgment of 10 July 1843, Cie l’Alliance v. Prunier, 1843 Dalloz 561 (French Cour de Cassation
Civ.) 39, 40, 676, 1780
Judgment of 18 April 1865, D.P., I, (1865) (French Cour de Cassation Req.) 663
Judgment of 17 May 1927, Pélissier du Besset v. Algiers Land & Warehouse Co., 1927 Bull. Civ.
No. 77 (French Cour de Cassation Civ. 1) 361
Judgment of 27 July 1937, 1938 Dalloz 25 (French Cour de Cassation Civ.) 240, 3169
Judgment of 9 November 1945, 1946:1 Gaz. Pal. 22 (French Cour de Cassation Soc.) 3308
Judgment of 22 February 1949, Caulliez-Tibergien v. Caulliez-Hannart, JCP G 1949 II (French
Cour de Cassation Com.) 1201
Judgment of 28 November 1950, Tissot v. Neff, 1950 Bull. Civ. No. 316, 154 (French Cour de
Cassation) 1049
Judgment of 11 October 1954, 1982 Dalloz 388 (French Cour de Cassation) 1049, 1465, 1469
Judgment of 29 January 1960, 1960 Rev. Arb. 121 (French Cour de Cassation Civ. 2) 2160, 2183
Judgment of 7 May 1963, Ets Raymond Gosset v. Carapelli, 91 J.D.I. (Clunet) 82 (1964) (French
Cour de Cassation Civ. 1) 148, 376, 378, 399, 480, 632, 954
Judgment of 28 May 1963, JCP 1964, II, 13347 (French Cour de Cassation Civ. 1) 664
Judgment of 2 May 1966, Trésor Public v. Galakis, 1966 Rev. Arb. 99 (French Cour de
Cassation Civ. 1) 773
Judgment of 22 November 1966, Gerstlé v. Merry Hull, 94 J.D.I. (Clunet) 631 (French Cour de
Cassation Civ. 1) (1967) 3296, 3656
Judgment of 25 November 1966, Mines D’orbagnoux v. Fly Tox, 1967 Dalloz 359 (French Cour
de Cassation Civ. 2) 480, 939, 946, 1490
Judgment of 2 May 1967, 1967 Bull. Civ. No. 207 (French Cour de Cassation Civ. 2) 1457
Judgment of 13 April 1972, Ury v. Galeries Lafayette, 1975 Rev. Arb. 235 (French Cour de
Cassation Civ. 2) 916, 1905, 1939, 2004, 2042, 2123
Judgment of 4 July 1972, Hecht v. Buisman’s, 99 J.D.I. (Clunet) 843 (French Cour de Cassation
P 4534 Civ. 1) (1972) 149, 337, 378, 3467
Judgment of 20 February 1974, 1975 Rev. Arb. 238 (French Cour de Cassation Civ. 2) 2004
Judgment of 16 June 1976, Krebs v. Stern, 1977 Rev. Arb. 269 (French Cour de Cassation Civ. 1)
1465, 1469, 3315, 3388
Judgment of 22 November 1977, 1978 Rev. Arb. 461 (French Cour de Cassation Com.) 1573
Judgment of 13 March 1978, Hertzian v. Electronska Indus., 1979 Rev. Arb. 339, 340-41
(French Cour de Cassation) 1445
Judgment of 31 March 1978, 1979 Rev. Arb. 457 (French Cour de Cassation Civ. 2) 916
Judgment of 6 June 1978, British Leyland v. Richard, 1979 Rev. Arb. 230 (French Cour de
Judgment of 19 June 1979, 1979 Rev. Arb. 487 (French Cour de Cassation Civ. 1) 1748
Judgment of 9 July 1979, 1980 Rev. Arb. 78 (French Cour de Cassation Civ. 3) 2685
Judgment of 18 March 1980, Compagnie d’Armement Maritime v. Compagnie Tunisienne de
Navigation, 1980 Rev. Arb. 476 (French Cour de Cassation Civ. 1) 2822, 3869
Judgment of 28 January 1981, 1982 Rev. Arb. 485 (French Cour de Cassation Civ. 2) 3534
Judgment of 10 March 1981, Arkhbaieff v. Entreprise Roumaine d’Etat pour le Commerce
Extérieur Arpimex, 1981 Bull. Civ. No. 8 (French Cour de Cassation Civ. 1) 2482, 2487
Judgment of 30 September 1981, Case No. 80-13.177 (French Cour de Cassation Civ. 2) 2991,
2994, 3593
Judgment of 9 December 1981, 1982 Rev. Arb. 183 (French Cour de Cassation Civ. 1) 2995
490
Judgment of 25 May 1983, Maatschappij voor Industriele Research en Ontwikkeling BV v.
Lievremont, XII Y.B. Comm. Arb. 480 (French Cour de Cassation Civ. 1) (1987) 3239
Judgment of 14 December 1983, Epoux Convert v. Droga, 1984 Rev. Arb. 483 (French Cour de
Judgment of 9 October 1984, 1986 Rev. Arb. 267 (French Cour de Cassation Com.) 310
Judgment of 9 October 1984, Pabalk Ticaret Ltd Sirketi v. Norsolor SA, XI Y.B. Comm. Arb.
484 (French Cour de Cassation Civ. 1) (1986) 3975, 3976
Judgment of 9 October 1984, SECAR v. Shopping Décor, 1986 Rev. Arb. 263 (French Cour de
Judgment of 3 January 1985, 1986 Rev. Arb. 267 (French Cour de Cassation Com.) 284
Judgment of 12 February 1985, 1986 Rev. Arb. 47 (French Cour de Cassation Soc.) 644, 1098
Judgment of 25 February 1986, Société Confex v. Ets Dahan, XII Y.B. Comm. Arb. 484 (French
Cour de Cassation Com.) (1987) 725, 726
Judgment of 18 November 1986, Atlantic Triton v. Guinée, 1987 Rev. Arb. 315 (French Cour de
Cassation Civ. 1) 2638, 2743
Judgment of 25 November 1986, 1987 Rev. Arb. 321 (French Cour de Cassation Civ. 1) 2638
Judgment of 20 January 1987, Bomar Oil NV v. Entreprise Tunisienne d’Activités Pétrolières,
1987 Rev. Arb. 482 (Paris Cour d’Appel), rev’d on other grounds, Judgment of 11 October
1989, 1990 Rev. Arb. 134 (French Cour de Cassation Civ. 1) 662, 663
Judgment of 6 January 1987, S. Pac. Props. Ltd v. République Arabe d’Egypte, 26 I.L.M. 1004
(French Cour de Cassation Civ. 1) (1987) 1207, 3445, 3475
Judgment of 15 July 1987, 1990 Rev. Arb. 627 (French Cour de Cassation Com.) 725
Judgment of 7 October 1987, Opinter France v. Sarl Dacomex, 1987 Rev. Arb. 479 (French
Cour de Cassation Civ. 2) 2068, 2090
Judgment of 14 October 1987, Ampafrance v. Wasteels, 1988 Rev. Arb. 288 (French Cour de
P 4535 Cassation Civ. 2) 1532
Judgment of 8 March 1988, Sofidif v. OIAETI, 1989 Rev. Arb. 481 (French Cour de Cassation
Civ. 1) 1690, 2305, 3264, 3265, 3554, 3555, 4034
Judgment of 8 March 1988, Thinet v. Labrely, 1989 Rev. Arb. 473 (French Cour de Cassation
Civ. 1) 1086
Judgment of 10 May 1988, 1988 Rev. Arb. 639 (French Cour de Cassation) 1490
Judgment of 6 December 1988, Navimpex Centrala Navala v. Wiking Trader, 1989 Rev. Arb.
641 (French Cour de Cassation Civ. 1) 480, 3455
Judgment of 28 June 1989, Eurodif v. Iran, 1989 Rev. Arb. 653 (French Cour de Cassation Civ.
1) 1204, 2746
Judgment of 11 October 1989, Bomar Oil NV v. Enterprise Tunisienne d’Activites Pétrolières,
XV Y.B. Comm. Arb. 447 (French Cour de Cassation Civ. 1) (1990) 879
Judgment of 22 November 1989, Philipp Bros. v. Drexel Burnham Lambert, 1990 Rev. Arb. 142
(French Cour de Cassation Civ. 2) 150
Judgment of 10 July 1990, L et B Cassia Associes v. Pia Invs. Ltd, 1990 Rev. Arb. 857 (French
Judgment of 14 November 1990, Graine d’Elite Clause v. Gérin, 1991 Rev. Arb. 75 (French Cour
de Cassation Civ. 2) 1922
Judgment of 5 February 1991, Almira Films v. Pierrel, 1991 Rev. Arb. 625 (French Cour de
Cassation Civ. 1) 1086, 1087, 3497, 3615
Judgment of 5 March 1991, Pepratx v. Fichou, 1992 Rev. Arb. 66 (French Cour de Cassation
Com.) 1480, 1486
Judgment of 19 March 1991, 1992 Rev. Crit. Dr. Int’l Priv. 108 (French Cour de Cassation Civ.
1) 4092
Judgment of 26 March 1991, Comité Populaire de la Municipalité d’El Mergeb v. Dalico
Contractors, 1991 Rev. Arb. 456 (French Cour de Cassation Civ. 1) 400
Judgment of 11 June 1991, Orri v. des Lubrifiants Elf Aquitaine, 1992 Rev. Arb. 73 (French Cour
de Cassation Civ. 1) 1548, 1560
Judgment of 22 October 1991, Compania Valenciana de Cementos Portland v. Primary Coal
Inc., 1992 Rev. Arb. 457 (French Cour de Cassation Civ. 1) 2842, 2995
491
Judgment of 19 November 1991, TRH Graphics v. Offset Aubin, 1992 Rev. Arb. 462 (French
Judgment of 7 January 1992, BKMI v. Dutco, 119 J.D.I. (Clunet) 707 (French Cour de Cassation
Civ. 1) 927, 2812, 2813
Judgment of 15 January 1992, Brunet v. Artige, 1992 Rev. Arb. 646 (French Cour de Cassation
Civ. 1) 818, 977
Judgment of 4 February 1992, Saret v. SBBM, 1992 Rev. Arb. 663 (French Cour de Cassation
Com.) 1087
Judgment of 3 March 1992, Sonetex v. Charphil, 1993 Rev. Arb. 273 (French Cour de Cassation
Civ. 1) 516
Judgment of 25 May 1992, 1993 Rev. Arb. 91 (French Cour de Cassation 1) 3413, 4068
Judgment of 10 March 1993, Polish Ocean Line v. Jolasry, 1993 Rev. Arb. 276 (French Cour de
Judgment of 11 May 1993, 1997 Rev. Arb. 599 (French Cour de Cassation Com.) 1518
Judgment of 9 November 1993, Bomar Oil NV v. Enter. Tunisienne d’Activités Pétrolières, XX
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Judgment of 20 December 1993, Municipalité de Khoms el Mergeb v. Dalico, 1994 Rev. Arb.
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Judgment of 23 February 1994, Andre v. Multitrade, 1994 Rev. Arb. 683 (French Cour de
Judgment of 23 March 1994, Hilmarton v. OTV, 1994 Rev. Arb. 327 (French Cour de Cassation
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Judgment of 23 March 1994, Omnium de Traitement et de Valorisation, 1994 Rev. Arb. 327
Judgment of 6 April 1994, 1995 Rev. Arb. 263 (French Cour de Cassation Civ. 1) 3672
Judgment of 15 June 1994, Communauté Urbaine de Casablanca v. Degrémont, 1995 Rev. Arb.
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Judgment of 15 June 1994, Sonidep v. Sigmoil, 1995 Rev. Arb. 88 (French Cour de Cassation
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Judgment of 10 May 1995, Coprodag v. Dame Bohin, 1995 Rev. Arb. 617 (French Cour de
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Judgment of 10 May 1995, Laiguede v. Ahsen Inox, 1995 Rev. Arb. 605 (French Cour de
Judgment of 6 July 1995, Recape v. CSF, 2005 Rev. Arb. 801 (French Cour de Cassation Civ. 1)
1204
Judgment of 19 December 1995, Westman Int’l Ltd v. Euro. Gaz Turbines, 1996 Rev. Arb. 49
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Judgment of 6 March 1996, Farhat Trading Co. v. Daewoo, 1997 Rev. Arb. 69 (French Cour de
Cassation Civ. 1) 1454, 3554, 3555
Judgment of 14 May 1996, Sigma Corp. v. Tecni-Ciné-Phot, 1997 Rev. Arb. 535 (French Cour de
Judgment of 10 June 1997, Omnium de Traitement et de Valorisation v. Hilmarton, 1997 Rev.
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Judgment of 11 June 1997, Case No. 94-19003 (French Cour de Cassation Civ. 2) 3598
Judgment of 3 July 1996, Castel Frères v. Roger, 2000 Rev. Arb. 511 (French Cour de
Judgment of 18 December 1996, Spedidam v. Adami, 1997 Rev. Arb. 361 (French Cour de
Judgment of 17 June 1997, Thomson CSF v. Groupement Sanitec Megco, 1998 Rev. Arb. 414
Judgment of 21 May 1997, Renault v. V 2000, 1997 Rev. Arb. 537 (French Cour de Cassation
Civ. 1) 361, 510, 516, 574, 689
Judgment of 3 June 1997, LexisNexis JurisClasseur No. 95-17.603 (French Cour de Cassation
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Judgment of 3 June 1997, Prodexport I, 1998 Rev. Arb. 537 (French Cour de Cassation Civ. 1)
890
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Judgment of 16 December 1997, Van Luijk v. Duval, 1999 Rev. Arb. 253 (French Cour de
Judgment of 24 March 1998, Excelsior Film TV v. UGC-PH, 1999 Rev. Arb. 255 (French Cour de
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Judgment of 19 May 1998, 1999 Rev. Arb. 601 (French Cour de Cassation Civ. 1) 3550
Judgment of 24 June 1998, Coprodag v. Dame Bohin, Unreported Decision (French Cour de
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Judgment of 6 October 1998, 1998 Bull. Civ. I No. 268 (French Cour de Cassation Civ. 1) 3892,
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Judgment of 5 January 1999, Gallay v. Fabricated Metals, 2001 Rev. Arb. 805 (French Cour de
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Judgment of 5 January 1999, Zanzi v. de Coninck, 1999 Rev. Arb. 260 (French Cour de
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Judgment of 16 February 1999, Chateau Tour Saint Christophe v. Asthom, and Judgment of 4
May 1999, Picquet v. Sacinter, 1999 Rev. Arb. 290 (French Cour de Cassation Soc.) 1098
Judgment of 16 March 1999, Qatar v. Creighton Ltd, XXV Y.B. Comm. Arb. 443 (French Cour
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Judgment of 11 May 1999, 1999 Rev. Arb. 811 (French Cour de Cassation Civ. 1) 3537, 3655,
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Judgment of 8 February 2000, 2000 Rev. Arb. 280 (French Cour de Cassation Civ. 1) 1580
Judgment of 8 February 2000, 2000 RTD Com. 596 (French Cour de Cassation Civ. 1) 1576,
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Judgment of 21 March 2000, 2001 Rev. Arb. 805 (French Cour de Cassation Civ. 1) 3611, 3615,
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Judgment of 6 June 2000, Creighton Ltd v. Qatar, 2001 Rev. Arb. 114 (French Cour de
Judgment of 14 June 2000, XXVI Y.B. Comm. Arb. 270 (French Cour de Cassation Civ. 1) (2001)
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Judgment of 6 July 2000, Polyclinique des Fleurs v. Peyrin, 2001 Rev. Arb. 749 (French Cour
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Judgment of 17 October 2000, 2000 Rev. Arb. 648 (French Cour de Cassation Civ. 1) 3978
Judgment of 20 December 2000, Prodexport II, 2003 Rev. Arb. 1341 (French Cour de
Judgment of 15 February 2001, Halbout v. Epoux Hanin, 2001 Rev. Arb. 135 (French Cour de
Judgment of 20 February 2001, Cubic Défense Sys. Inc. v. Chambre de Commerce
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Judgment of 14 June 2001, SA Compagnie Commerciale André v. SA Tradigrain France, 2001
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Judgment of 26 June 2001, Am. Bureau of Shipping v. Copropriété Maritime Jules Verne, 2001
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Judgment of 9 October 2001, SA Kis France v. Lopez-Alberdi, 2002 Rev. Arb. 347 (French Cour
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Judgment of 6 December 2001, Fremarc v. ITM Enters., 2003 Rev. Arb. 1231 (French Cour de
Judgment of 31 January 2002, 2002:2 Gaz. Pal. 303 (French Cour de Cassation Civ. 2) 925
Judgment of 31 January 2002, 2003:2 Cahiers de l’Arbitrage 303 (French Cour de Cassation)
1880
Judgment of 18 October 2001, Noat v. Boccaccio, 2002 Rev. Arb. 899 (French Cour de
Judgment of 20 December 2001, Cornu v. Thevenot ès Qual, 2002 Rev. Arb. 715 (French Cour
P 4538 Judgment of 7 March 2002, 2002 Rev. Arb. 214 (French Cour de Cassation Civ. 2) 2741
Judgment of 4 April 2002, Barbot CM v. Bouygues Bâtiment, 2003 Rev. Arb. 103 (French Cour
de Cassation Civ. 2) 400, 912
493
Judgment of 21 November 2002, Gromelle v. Institut International des Techniques
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Judgment of 14 February 2003, Poiré v. Tripier, 2003 Rev. Arb. 403 (French Cour de Cassation
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Judgment of 18 December 2003, 22 ASA Bull. 796 (French Cour de Cassation Civ. 2) (2004)
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Judgment of 30 March 2004, Rado v. Painewebber, 2005 Rev. Arb. 116 (French Cour de
Judgment of 30 March 2004, Uni-Kod v. Ouralkali, 2005 Rev. Arb. 959 (French Cour de
Cassation Civ. 1) 516, 633, 689, 1098, 3465
Judgment of 2 June 2004, Gaussin v. Alstom Power Turbomachines, 2004 Rev. Arb. 593
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Judgment of 30 June 2004, ABC Int’l Bank plc v. BAII Recouvrement, 2004 Rev. Arb. 738
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Judgment of 28 June 2005, Taiphoon Ltd v. Bobinet, 2005 Rev. Arb. 799 (French Cour de
Cassation Soc.) 1098
Judgment of 6 July 2005, Golshani v. Gouvernement de la République Islamique d’Iran, 2005
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Judgment of 25 October 2005, Case No. D. 2005.3052 (French Cour de Cassation Com.) 400
Judgment of 25 October 2005, Omenex v. Hugon, 2005 Rev. Arb. 1098 (French Cour de
Judgment of 31 January 2006, Intercafco v. Dafci, 2006 Rev. Arb. 285 (French Cour de
Judgment of 25 April 2006, Tripette et Renaud SA v. DMN BV, 2008 Rev. Arb. 299 (French Cour
Judgment of 7 June 2006, 133 J.D.I. (Clunet) 1384 (French Cour de Cassation Civ. 1) 689
Judgment of 7 June 2006, Copropriété Maritime Jules Verne v. Am. Bureau of Shipping, 2007
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Judgment of 21 November 2006, Groupama Transports v. MS Regine Hans, XXXII Y.B. Comm.
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Judgment of 23 January 2007, COFIEF v. Alix, 2007 Rev. Arb. 136 (French Cour de Cassation
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Judgment of 29 June 2007, PT Putrabali Adyamulia v. Est Epices, 24 Arb. Int’l 293, (2008) 1658
Judgment of 29 June 2007, PT Putrabali Adyamulia v. Rena Holding, 2007 Rev. Arb. 507
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Judgment of 14 November 2007, SIAL v. Vinexpo, 2007 Rev. Arb. 931 (French Cour de
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Judgment of 11 July 2006, Nat’l Broadcasting Co. v. Bernadaux, 1996 Rev. Arb. 981 (French
Judgment of 11 July 2006, PT Andhika Lines v. AXA, 2006 Rev. Arb. 979 (French Cour de
Judgment of 12 December 2007, Prodim v. Lafarge, 2008 Rev. Arb. 679 (French Cour de
Judgment of 9 January 2008, HGL SAS v. Spanghero SA, XXXIII Y.B. Comm. Arb. 478 (French
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Judgment of 5 March 2008, Congo v. Qwinzy, 2009 Rev. Arb. 401 (French Cour de Cassation
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Judgment of 4 June 2008, SNF SAS v. Cytec Indus. BV, XXXIII Y.B. Comm. Arb. 489 (French
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Judgment of 4 June 2008, SNF v. Cytec, 2008 Rev. Arb. 473 (French Cour de Cassation Civ. 1)
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Judgment of 9 October 2008, 2009 Rev. Arb. 360, 362 (French Cour de Cassation Civ. 1) 3445
Judgment of 22 October 2008, Système U Centrale Régionale sud v. M. Jacques Médard,
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Judgment of 25 November 2008, Sté Les Pains du Sud v. Sté Spa Tagliavini, 2008 Rev. Arb.
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Judgment of 25 November 2008, Tagliavini v. Les Pains du Sud, 2008 Rev. Arb. 681 (French
Judgment of 11 February 2009, Laviosa v. Afitex, 2009 Rev. Arb. 155 (French Cour de
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Judgment of 8 April 2009, Corema v. Gefu Kuchenboss GmbH, 2009 Rev. Arb. 434 (French
Judgment of 8 April 2009, Gefu Kuchenboss GmbH und Co. KG v. Corema, 2009 Rev. Arb. 434
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Judgment of 11 March 2009, Case No. 08-12149 (French Cour de Cassation Civ. 1) 293
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Judgment of 6 May 2009, MJA v. INCOME, XXXV Y.B. Comm. Arb. 353 (French Cour de
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Judgment of 6 May 2009, XXXV Y.B. Comm. Arb. 353 (French Cour de Cassation Civ. 1) (2010)
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Judgment of 4 June 2009, Inéos Euro. Holding Ltd v. UOP NV, 2009 Rev. Arb. 652 (French Cour
Judgment of 4 June 2009, Naphtachimie v. UOP NV, Case No. 08-13983 (French Cour de
Judgment of 8 July 2009, Case No. 08-17.984 (French Cour de Cassation Civ. 1) 3387
Judgment of 8 July 2009, Case No. 08-17661 (French Cour de Cassation Civ. 1) 3533
Judgment of 8 July 2009, D’Etudes et Représentations Navales et Industrielles v. Air Sea
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Judgment of 8 July 2009, D’Études et Représentations Navales et Industrielles v. Air Sea
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Judgment of 8 July 2009, Marocaine de Loisirs v. France Quick, 2010 Rev. Arb. 681 (French
Judgment of 14 October 2009, 12 J.D.I. (Clunet) 40 (French Cour de Cassation Civ.) 1402
Judgment of 12 November 2009, St. Germaine v. Trioplast AB, 2009 Rev. Arb. 929 (French
Judgment of 12 November 2009, Trioplast SMS v. St. Germaine, Case No. 1120 (French Cour
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Judgment of 3 February 2010, Merial v. Klocke Verpackung Serv. GmbH, 2010 Rev. Arb. 93
Judgment of 3 February 2010, SNDA v. Dipeyre, 2010 Rev. Arb. 181 (French Cour de Cassation
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Judgment of 16 February 2010, Neervoort v. Holesco, 2010 Rev. Arb. 503 (French Cour de
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Judgment of 25 February 2010, Guichard v. AGPM, 2011 Rev. Arb. 139 (French Cour de
Judgment of 17 March 2010, Komatsu Asia & Pacitif PTE Ltd v. Pac. Auto, 2010 Rev. Arb. 385
Judgment of 17 March 2010, Pac. Auto v. KAL, 2010 Rev. Arb. 385 (French Cour de Cassation
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Judgment of 12 May 2010, El Assidi v. Nest, 2010 Rev. Arb. 391 (French Cour de Cassation Civ.
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Judgment of 9 June 2010, Evekas v. Macifila, 2010 Rev. Arb. 396 (French Cour de Cassation
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Judgment of 23 June 2010, Malicorp v. République Arabe d’Egypte, 2011 Rev. Arb. 446
Judgment of 23 June 2010, Top Bagage Int’l v. Wistar Enter. Ltd, 2011 Rev. Arb. 448 (French
Judgment of 8 July 2010, Doga v. HTC Sweden AB, Case No. 09-67013 (French Cour de
Judgment of 8 July 2010, Doga v. HTC, 2010 Rev. Arb. 680 (French Cour de Cassation Civ. 1)
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Judgment of 8 July 2010, La Société Doga v. HTC Sweden AB, 2010 Rev. Arb. 513 (French Cour
de Cassation Civ. 1) 1457, 1465, 1469
Judgment of 8 July 2010, Marocaine de Loisirs MDL v. France Quick AS, 2010 Dalloz 2933
Judgment of 6 October 2010, Blonde Génétique v. SCEA Plante Moulet, 2010 Rev. Arb. 971
Judgment of 6 October 2010, Fondation Albert Abela Family Found. v. Joseph Abela Family
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3479, 3648
P 4541 Judgment of 20 October 2010, 29 ASA Bull. 195 (French Cour de Cassation Civ. 1) 2042
Judgment of 20 October 2010, Case No. 09-68997 (French Cour de Cassation Civ. 1) 2019,
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Judgment of 20 October 2010, Somoclest Bâtiment v. DV Constr. AS, Case No. 09-68997
Judgment of 1 November 2010, Tecnimont SpA v. J&P Avax SA, 2010 Rev. Arb. 824 (French
Judgment of 4 November 2010, 2010 Rev. Arb. 976 (French Cour de Cassation Civ. 1) 1204
Judgment of 17 November 2010, 2011 Rev. Arb. 943 (French Cour de Cassation Civ. 1) 2111,
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Judgment of 15 December 2010, Générale Motors France v. Champs de Mars Automobile AS,
2011 Rev. Arb. 435 (French Cour de Cassation Civ. 1) 270, 287
Judgment of 26 January 2011, INSERM v. Fondation Letten F. Saugstad, 09-10.198, 2011 Bull.
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Judgment of 26 January 2011, Janin v. Encore Orthopedics, 2011 Rev. Arb. 283 (French Cour
de Cassation Civ. 1) 361, 1205, 1457
Judgment of 18 May 2011, LABM Caraïbes v. GTT, 2011 Rev. Arb. 583 (French Cour de
Judgment of 29 June 2011, Overseas Mining Inv. Ltd v. Commercial Caribbean Niquel, 2011
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Judgment of 12 October 2011, 2012 Rev. Arb. 91, 93 (French Cour de cassation Civ. 1) 2990
Judgment of 12 October 2011, Case No. 09-72.439 (French Cour de Cassation Civ. 1) 3180,
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Judgment of 12 October 2011, Case No. 10-14.687 (French Cour de Cassation Civ. 1) 3592
Judgment of 26 October 2011, 2011 Dalloz 2736 (French Cour de Cassation Civ. 1) 1512
Judgment of 30 November 2011, Conseil v. Serant, 2012 Rev. Arb. 433 (French Cour de
Cassation Soc.) 1098
Judgment of 30 November 2011, Deloitte Conseil v. Serant, 2012 Rev. Arb. 333 (French Cour
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Judgment of 26 September 2012, Ms “X” v. Banque Privée Edmond de Rothschild, Case No. 11-
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Judgment of 7 November 2012, Amplitude SA v. Oebe TH Thotou, Case No. 11-25891 (French
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Judgment of 13 March 2013, Carrefour v. Coop Atlantique, 2013 Rev. Arb. 735 (French Cour de
Judgment of 28 March 2013, Sté Emirates Telecommc’ns Corp. v. Sté Planor Afrique, 2013
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Judgment of 11 September 2013, Case No. 11-17.201 (French Cour de Cassation Civ. 1) 3397
Judgment of 15 January 2014, Azran v. Schirer, 2014 Rev. Arb. 222 (French Cour de Cassation
Civ. 1) 293
Judgment of 29 January 2014, Pourvoi No. 12-29086 (French Cour de Cassation Civ. 1) 1203
Judgment of 12 February 2014, M. Schneider Schaltgerätebau und Elektroinstallationen v.
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Judgment of 14 May 2014, Sté Hautbois v. GAEC de la Berhaudière, Case No. 13-15.827
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Judgment of 5 November 2014, Yukos Capital v. Otkrytoye Aktsionernoye Obshestvo
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Judgment of 12 December 2014, Proximmo v. Arnal-Lafon-Cayrou, Case No. 12-27004, JCP G
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Judgment of 25 June 2014, Tecnimont SpA v. J&P Avax, 2014 Dalloz 1985 (French Cour de
Judgment of 18 December 2014, Case No. 14-11085 (French Cour de Cassation Civ. 1) 2005
Judgment of 19 February 2015, Case No. 14-13.716 (French Cour de Cassation Civ. 2) 287
Judgment of 18 March 2015, Marriott Int’l Hotels Inc. v. Fakhri, 2015 Rev. Arb. 1110 (French
Judgment of 25 March 2015, ICH v. Crédit Suisse, Case No. 13-27264 (French Cour de
Judgment of 25 March 2015, Pourvoi No. 13-17372 (French Cour de Cassation Civ. 1) 1203
Judgment of 8 July 2015, Ryanair Ltd v. Syndicat Mixte des Aéroports de Charente, Case No.
797 FS-P+B+R+I, Pourvoi No. N 13-25.846 (French Cour de Cassation Civ. 1) 3725
Judgment of 17 November 2015, Carrefour Proximité France v. Perin Borkowiak, 2016 Rev.
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Judgment of 2 December 2015, Case No. 14-25.147 (French Cour de Cassation Civ. 1) 2994,
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Judgment of 16 December 2015, Case No. D14-26.279 (French Cour de Cassation), aff’d,
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Judgment of 30 June 2016, Groupe Bernard Tapie v. CDR Créances, 2016 Rev. Arb. 1123
Judgment of 9 July 2016, Pourvoi No. 13-17.495 (French Cour de Cassation Civ. 1) 1204
Judgment of 13 July 2016, MJA v. Airbus Helicopters, 2016 Rev. Arb. 861 (French Cour de
Judgment of 13 July 2016, Pourvoi No. 15-21.345 (French Cour de Cassation Civ. 1) 1204
Judgment of 9 November 2016, Pourvoi No. 15-27.341 (French Cour de Cassation Civ. 1) 1205
Judgment of 20 April 2017, Inthemix v. Dia France, 2018 Rev. Arb. 619 (French Cour de
Judgment of 20 April 2017, Noiraix-Pey, Harvey v. Dia France, 2017 Rev. Arb. 764 (French Cour
Judgment of 4 May 2017, Case No. 15/29.158 (French Cour de Cassation Civ. 1) 3565
Judgment of 4 May 2017, Groupe Antoine Tabet v. Ministre de l’Economie, des Finances et du
Budget de la République du Congo, 2017 Rev. Arb. 770 (French Cour de Cassation Civ. 1)
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Judgment of 1 June 2017, EGPC v. NATGAS, XLII Y.B. Comm. Arb. 382 (French Cour de
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Judgment of 1 June 2017, XLII Y.B. Comm. Arb. 382 (French Cour de Cassation Civ. 1) (2017)
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Judgment of 13 September 2017, 2018 Rev. Arb. 225 (French Cour de Cassation Civ. 1) 3401
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Judgment of 11 January 2018, Estoup v. Courtoux, 2018 Rev. Arb. 294 (French Cour de
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Judgment of 5 September 2018, Pourvoi No. 17-13.837 (French Cour de Cassation Civ. 1) 1205
Judgment of 14 November 2018, Mazroui Trading & Gen. Serv. v. Constr. Mécaniques de
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Judgment of 19 December 2018, Pourvoi No. 17-28.951 (French Cour de Cassation Civ. 1)
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Judgment of 3 October 2019, Saad Buzwair Auto. Co. v. Audi Volkswagen Middle E. Fze LLC,
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Judgment of 19 December 2019, Pourvoi No. 16-18.349 (French Cour de Cassation Civ. 1) 1206
French Cour d’Appel
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Clair v. Beradi, VII Y.B. Comm. Arb. 319 (Paris Cour d’Appel) (1982) 3988
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Euro. Gas Turbines SA v. Westman Int’l Ltd, XX Y.B. Comm. Arb. 198 (Paris Cour d’Appel)
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Fieldworks-INC v. Erim, SA, [1996] Case Nos. 96/3603, 96/3703, 96/3998 (Versailles Cour
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Judgment of 9 December 1955, Goldschmidt v. Viz et Zoon, 1956 Dalloz 217 (Paris Cour
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Judgment of 10 April 1957, Myrtoon S.S. v. Agent Judiciaire du Tresor, JCP G 1957 (Paris Cour
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Judgment of 29 January 1958, 1958 Rev. Arb. 123 (Nancy Cour d’Appel) 3298
Judgment of 4 November 1958, Mesny v. Courtheoux, 1964 Rev. Arb. 126 (Paris Cour d’Appel)
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Judgment of 29 September 1959, Goldschmidt v. Cottaropoulos, 88 J.D.I. (Clunet) 168 (Aix-
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Judgment of 15 May 1961, Jean Tardits et Cie v. Jydsk Andels Foderstof Forretning, 89 J.D.I.
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Judgment of 27 March 1962, Compagnie Marchande de Tunisie v. Costa de Marfil, JPC G 1963
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Judgment of 13 June 1963, 1964 Rev. Arb. 125 (Paris Cour d’Appel) 1577
Judgment of 21 February 1964, Meulemans et Cie v. Robert, 92 J.D.I. (Clunet) 113 (Paris Cour
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Judgment of 27 February 1964, Union Commerciale des Produits Alimentaires v. SOCOMEX,
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Judgment of 20 June 1969, Impex v. Malteria Adriatica, 1969 Rev. Arb. 95 (Paris Cour d’Appel)
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Judgment of 25 January 1972, Aguero v. Laporte, 1973 Rev. Arb. 158 (Paris Cour d’Appel) 632,
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Judgment of 9 March 1972, Lefrère René v. Les Pétroles Pursan, 1972 RTD Com 344 (Paris Cour
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P 4544 Judgment of 25 September 1972, 1973 Rev. Arb. 164 (Angers Cour d’Appel) 936
Judgment of 18 June 1974, OCPC v. Wilhelm Diefenbacher KG, 1975 Rev. Arb. 179 (Paris Cour
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Judgment of 24 March 1977, 1978 Rev. Arb. 31 (Paris Cour d’Appel) 2160, 2183
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Judgment of 16 March 1978, Inex Film & Inter-Exp. v. Universal Pictures, 1978 Rev. Arb. 501
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Judgment of 15 November 1979, 1980 Rev. Arb. 513 (Paris Cour d’Appel) 3907, 3931
Judgment of 21 February 1980, Gen. Nat’l Maritime Transp. Co. v. Götaverken Arendal AB, VI
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Judgment of 28 February 1980, Compagnie Financière Mocupie v. Inveko France, 1980 Rev.
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Judgment of 9 December 1980, 20 I.L.M. 887 (Paris Cour d’Appel) (1981) 1752, 3254
Judgment of 23 July 1981, Coakley v. Sté Michel Reverdy, 1982 Rev. Arb. 303 (Reims Cour
d’Appel) 2023, 3869, 3932, 3940
Judgment of 11 December 1981, Bureau de Recherches Géologiques et Minières v. Patina Int’l
NV, 1982 Rev. Arb. 311 (Paris Cour d’Appel) 1049, 1465, 1469
Judgment of 22 January 1982, Appareils Dragon v. Construimport, 1982 Rev. Arb. 91 (Paris
Cour d’Appel) 3315
Judgment of 29 October 1982, Raoul Duval v. Gen. Cocoa, Case No. I 12239 (Paris Cour
d’Appel) 3592
Judgment of 18 January 1983, Sporprom Serv. BV v. Polyfrance Immo, 1984 Rev. Arb. 87
Judgment of 18 March 1983, Quémener et Fils v. Van Dijk France, 1983 Rev. Arb. 491 (Paris
Cour d’Appel) 810, 858, 1486
Judgment of 25 March 1983, Sorvia v. Weinstein Int’l Disc Corp., 1984 Rev. Arb. 363 (Paris
Judgment of 19 May 1983, 1993 Rev. Arb. 645 (Paris Cour d’Appel) 2917
Judgment of 9 June 1983, Iro-Holding v. Setilex, 1983 Rev. Arb. 497 (Paris Cour d’Appel) 3615,
3623, 4139, 4148
Judgment of 21 October 1983, Isover-Saint-Gobain v. Dow Chem. France, 1984 Rev. Arb. 98
Judgment of 13 December 1983, Frankenthal v. SA Leysens et Mayer, LEXISNEXIS
JurisClasseur No. JurisData: 1983-030696 (Paris Cour d’Appel) 2952
Judgment of 17 January 1984, Bloch et Fils v. Delatrae Mockfjaerd, 1984 Rev. Arb. 498 (Paris
Cour d’Appel) 3316, 3915
Judgment of 15 March 1984, Soubaigne v. Limmereds Skogar, 1985 Rev. Arb. 285 (Paris Cour
d’Appel) 2991, 2992, 3524
Judgment of 12 July 1984, X Y.B. Comm. Arb. 113 (Paris Cour d’Appel) (1985), aff’d, Judgment
of 6 January 1987, S. Pac. Props. Ltd v. République Arabe d’Egypte, 26 I.L.M. 1004 (1987)
Judgment of 26 October 1984, Guinée v. Atlantic Triton, XI Y.B. Comm. Arb. 215 (Rennes Cour
d’Appel) (1986) 2727
Judgment of 13 November 1984, SEEE v. Yugoslavia, 1985 Rev. Arb. 115 (Rouen Cour d’Appel)
3959, 3988
Judgment of 15 January 1985, Opinter France v. Dacomex, 1986 Rev. Arb. 87 (Paris Cour
d’Appel), aff’d, Judgment of 7 October 1987, 1987 Rev. Arb. 479 (French Cour de Cassation
P 4545 Civ. 1) 3171
Judgment of 14 February 1985, 1987 Rev. Arb. 325 (Paris Cour d’Appel) 3276
Judgment of 14 February 1985, Tovomon v. Amatex, 1987 Rev. Arb. 325 (Paris Cour d’Appel)
834, 1856
Judgment of 12 March 1985, Intrafor Cofor v. Gagnant, 1985 Rev. Arb. 299 (Paris Cour
d’Appel) 3606, 4010
Judgment of 26 April 1985, 1985 Rev. Arb. 311 (Paris Cour d’Appel) 2193, 2463, 2531
Judgment of 15 May 1985, Raffineries de Pétrole d’Homs et de Banias v. Chambre de
Commerce Internationale, 1985 Rev. Arb. 141 (Paris Cour d’Appel) 1498, 1831, 1849, 1858,
2300, 2301, 2365, 3499
Judgment of 27 September 1985, OPATI v. Larsen, Inc., Case No. L 8169 (Paris Cour d’Appel)
853
Judgment of 18 February 1986, Aïta v. Ojjeh, 1986 Rev. Arb. 583 (Paris Cour d’Appel) 3022,
3026
Judgment of 4 March 1986, 1987 Rev. Arb. 167 (Paris Cour d’Appel) 1490
Judgment of 11 March 1986, Compagnie d’Assurance la Zürich v. Bureau Central Français,
499
1986:1 Gaz. Pal. 298 (Paris Cour d’Appel) 1445
Judgment of 7 May 1986, Saint-Wandrille Fertilizer Co. v. Trans Agric. Inv. Co., 1986 Rev. Arb.
565 (Rouen Cour d’Appel) 2618
Judgment of 14 May 1986, Industrial Phosphoric Acid & Fertilizer Co. v. Indus. Fertilizer Trade,
Judgment of 26 November 1986, Sponsor AB v. Lestrade, 1988 Rev. Arb. 153 (Pau Cour
d’Appel) 1560, 1608
Judgment of 19 December 1986, OIAETI v. Sofidif, 1987 Rev. Arb. 359 (Paris Cour d’Appel)
1520, 2774, 2775
1987 Rev. Arb. 482, 485 (Paris Cour d’Appel) 106, 257, 701, 711, 730, 750
Judgment of 19 March 1987, Kis France v. ABS, 1987 Rev. Arb. 498 (Paris Cour d’Appel) 867
Judgment of 28 April 1987, 1991 Rev. Arb. 345 (Paris Cour d’Appel) 3439, 3901, 3598
Judgment of 26 May 1987, Baraudon v. GAN-Vie, 1987 Rev. Arb. 509 (Paris Cour d’Appel) 3173
Judgment of 7 July 1987, 1988 Rev. Arb. 649 (Paris Cour d’Appel) 1388
Judgment of 7 July 1987, Pia Inv. Ltd v. Cassia, 1988 Rev. Arb. 649 (Paris Cour d’Appel) 3173,
3179, 3182, 3184
Judgment of 18 November 1987, Chambre Arbitrale de Paris v. Guinée, 1988 Rev. Arb. 657
Judgment of 27 November 1987, C.C.M. Sulzer v. Somagec, 1989 Rev. Arb. 63 (Paris Cour
d’Appel) 2330, 3496, 3831
Judgment of 9 December 1987, G.I.E. Acadi v. Thomson-Answare, 1988 Rev. Arb. 573 (Paris
Cour d’Appel) 1021, 1485, 1486
Judgment of 12 January 1988, SA Replor v. Sarl Ploemeloise de Financement, 1988 Rev. Arb.
691 (Paris Cour d’Appel) 867
Judgment of 20 January 1988, 1990 Rev. Arb. 651 (Paris Cour d’Appel) 2746
Judgment of 11 February 1988, Gas del Estudo v. Ecofisa, 1989 Rev. Arb. 683 (Paris Cour
d’Appel) 3548, 3921
Judgment of 26 February 1988, Pia Inv. Ltd v. Cassia, 1990 Rev. Arb. 851 (Paris Cour d’Appel)
854
Judgment of 10 March 1988, Crocodile Tourist Project Co. v. Aubert, 1989 Rev. Arb. 269 (Paris
Cour d’Appel) 2994, 3514, 3578, 3589, 3593
Judgment of 20 April 1988, Clark Internationale Finance v. Sud Matériel Service, 1988 Rev.
P 4546 Arb. 570 (Paris Cour d’Appel) 378
Judgments of 18 November 1987 & 4 May 1988, Chambre Arbitrale de Paris v. Guinée, 1988
Rev. Arb. 657, 657 (Paris Cour d’Appel) 1927, 2330
Judgment of 6 May 1988, Unijet SA v. Sarl Int’l Bus. Relations Ltd, 1989 Rev. Arb. 83 (Paris
Cour d’Appel) 2987, 2992, 2993
Judgment of 16 June 1988, Swiss Oil Corp. v. Petrogab, 1989 Rev. Arb. 309 (Paris Cour
d’Appel) 1207, 2966, 3475, 3870
Judgment of 28 June 1988, Total Chine v. E.M.H., 1989 Rev. Arb. 328 (Paris Cour d’Appel)
3554, 3578, 3918
Judgment of 30 November 1988, Korsnas Marma v. Durand-Auzias, 1989 Rev. Arb. 691 (Paris
Judgment of 16 February 1989, Almira Films v. Pierrel, 1989 Rev. Arb. 711 (Paris Cour d’Appel)
1036, 2900
Judgment of 14 March 1989, Murgue Seigle v. Coflexip, 1991 Rev. Arb. 345 (Paris Cour
d’Appel) 361
Judgment of 23 March 1989, Clause France v. Coopérative Agricole de l’Aunis, 1990 Rev. Arb.
Judgment of 18 April 1989, 1990 Rev. Arb. 915 (Paris Cour d’Appel) 1484
Judgment of 2 June 1989, 1991 Rev. Arb. 87 (Paris Cour d’Appel) 1905, 2060, 2085
Judgment of 2 June 1989, Gemanco v. Arabe des Engrais Phosphates et Azotes, 1991 Rev. Arb.
Judgment of 2 June 1989, Gemanco v. Arabe des Engrais Phosphates et Azotes, 1991 Rev. Arb.
87, 87 (Paris Cour d’Appel) 1892
500
Judgment of 31 October 1989, Kis France SA & KIS Photo Indus. SA v. Société Générale, XVI
Judgment of 28 November 1989, 1990 Rev. Arb. 675 (Paris Cour d’Appel) 1542
Judgment of 12 December 1989, 1990 Rev. Arb. 863 (Paris Cour d’Appel) 3672
Judgment of 19 January 1990, Immoplan v. Mercure, 1991 Rev. Arb. 125 (Paris Cour d’Appel)
2330, 3506, 3514, 3580
Judgment of 24 January 1990, LexisNexis JurisClasseur No. JurisData: 1990-042395 (Poitiers
Judgment of 7 March 1990, OIAETI v. COGEMA, 1991 Rev. Arb. 326 (Versailles Cour d’Appel)
2767, 2775, 2816, 3916
Judgment of 5 April 1990, Courrèges Design v. André Courrèges, 1992 Rev. Arb. 110 (Paris Cour
d’Appel) 3615
1990 Judgment of 6 April 1990, Philipp Bros. v. Icco, 1990 Rev. Arb. 880 (Paris Cour d’Appel)
1782, 1849, 2301, 3569
Judgment of 25 May 1990, Fougerolle v. Procofrance, 1990 Rev. Arb. 892 (Paris Cour d’Appel)
2330, 3527, 3840
Judgment of 21 June 1990, Compagnie Honeywell Bull SA v. Computacion Bull de Venezuela
CA, 1991 Rev. Arb. 96 (Paris Cour d’Appel) 1486, 2198, 3507
Judgment of 10 July 1990, Pia Invs. v. Cassia, 1990 Rev. Arb. 851 (Paris Cour d’Appel) 3460
XVII Y.B. Comm. Arb. 488 (Versailles Cour d’Appel) (1992) 714
P 4547 Judgment of 7 February 1991, 1992 Rev. Arb. 634 (Paris Cour d’Appel) 3871
Judgment of 26 March 1991, Municipalité de Khoms El Mergeb v. Dalico, 1991 Rev. Arb. 456
(Paris Cour d’Appel) 665, 3497
Judgment of 29 March 1991, Ganz v. Nationale des Chemins de Fer Tunisiens, 1991 Rev. Arb.
478 (Paris Cour d’Appel) 1036, 1043, 1049, 4060
Judgment of 18 April 1991, MORS v. Supermarket Sys., 1995 Rev. Arb. 448 (Paris Cour
d’Appel) 2330, 3514
Judgment of 19 April 1991, Parfums Stem France v. CFFD, 1991 Rev. Arb. 669 (Paris Cour
d’Appel) 2988, 2993
Judgment of 22 May 1991, Bompard v. Consorts C., 1996 Rev. Arb. 475 (Paris Cour d’Appel)
2160, 2183
Judgment of 23 May 1991, 1991 Rev. Arb. 661 (Paris Cour d’Appel) 3672
Judgment of 28 June 1991, Kuwait Foreign Trading Contracting & Inv. Co. v. ECORI Estero SpA,
1992 Rev. Arb. 568, 570-71 (Paris Cour d’Appel) 2033
Judgment of 4 July 1991, XIX Y.B. Comm. Arb. 859 (Lyon Cour d’Appel) (1994) 1867
1991 Judgment of 3 October 1991, Capital Rice Co. Ltd v. Michel Come Sarl, 1992 Rev. Arb. 675
(Versailles Cour d’Appel) 818, 833
Judgment of 15 October 1991, Affichage Giraudy v. Consorts Judlin, 1991 Rev. Arb. 643 (Paris
Judgment of 24 October 1991, 1993 Rev. Arb. 123 (Paris Cour d’Appel) 3505
Judgment of 14 November 1991, Consorts Legrand v. Euro. Country Hotel Ltd, 1994 Rev. Arb.
544 (Paris Cour d’Appel) 689, 823
Judgment of 29 November 1991, Dist. Chardonnet v. Fiat Auto France, 1993 Rev. Arb. 617
Judgment of 17 December 1991, Gatoil v. Nat’l Iranian Oil Co., 1993 Rev. Arb. 281 (Paris Cour
d’Appel) 148, 510, 773, 775, 1509
Judgment of 30 January 1992, Sifca v. Continaf BV, 1993 Rev. Arb. 123 (Paris Cour d’Appel)
304
Judgment of 3 March 1992, Europe Immobilière v. Ofer, 1993 Rev. Arb. 123 (Paris Cour
d’Appel) 273
Judgment of 24 March 1992, Pelfanian v. Nurit, 1993 Rev. Arb. 299 (Paris Cour d’Appel) 2121
Judgment of 9 April 1992, Annahold BV v. L’Oréal, 1996 Rev. Arb. 483 (Paris Cour d’Appel)
916, 2003
501
Judgment of 29 May 1992, Epoux Rouny v. Holding RC, 1996 Rev. Arb. 408 (Paris Cour
d’Appel) 2131, 2184
Judgment of 2 July 1992, Raoul Duval v. Merkuria Sucden, 1996 Rev. Arb. 410 (Paris Cour
d’Appel) 2001, 2042, 3564
Judgment of 9 July 1992, Norbert Beyrard France v. Côte d’Ivoire, 1994 Rev. Arb. 133 (Paris
Judgment of 12 January 1993, Côte d’Ivoire v. Norbert Beyrard, 1994 Rev. Arb. 685 (Paris Cour
d’Appel) 1086, 3650
Judgment of 12 February 1993, Unichips Finanziara v. Gesnouin, 1993 Rev. Arb. 276 (Paris
Cour d’Appel) 3152, 3977, 3880
Judgment of 19 May 1993, Labinal v. Mors et Westland Aerospace, 1993 Rev. Arb. 645 (Paris
P 4548 Cour d’Appel) 1035, 1036, 1049, 1065, 1472, 2925
Judgment of 10 June 1993, Compagnie Aeroflot v. AGF, 1995 Rev. Arb. 447 (Paris Cour
d’Appel) 2372, 3521, 3524, 3529
Judgment of 25 June 1993, Schönenberger Systemtechnik GmbH v. SA Vens, 1993 Rev. Arb.
Judgment of 13 September 1993, XX Y.B. Comm. Arb. 656 (Grenoble Cour d’Appel) (1995)
1098
Judgment of 30 September 1993, Euro Gas Turbines SA v. Westman Int’l Ltd, XX Y.B. Comm.
Arb. 198 (Paris Cour d’Appel) (1995) 615, 2925, 2927, 2929, 3606, 3612, 3615, 3627
Judgment of 14 October 1993, Aplix v. Velcro, 1994 Rev. Arb. 164 (Paris Cour d’Appel) 1036,
1049, 1065, 3649
Judgment of 14 October 1993, Ben Nasser v. BNP, 1994 Rev. Arb. 380 (Paris Cour d’Appel)
2022
Judgment of 24 February 1994, Ministry of Public Works v. Bec Frères, XXII Y.B. Comm. Arb.
682 (Paris Cour d’Appel) (1997) 400, 574, 613, 775, 1681, 1774, 1799, 2015, 2075, 3922, 3925,
3929, 3973
Judgment of 3 March 1994, Mobil N. Sea Ltd v. Cie Française d’Entreprises Métalliques, JCP G
1995, II (Paris Cour d’Appel) 2874, 2998
Judgment of 24 March 1994, Deko v. Dingler, 1994 Rev. Arb. 515 (Paris Cour d’Appel) 834,
1080
Judgment of 25 March 1994, Sardisud v. Technip, 1994 Rev. Arb. 391 (Paris Cour d’Appel)
3173, 3174
Judgment of 7 April 1994, Lechevalier v. Croisière Loisir et Commc’n Int’l, 1996 Rev. Arb. 61
Judgment of 7 July 1994, Uzinexport-Imp. Romanian Co. v. Attock Cement Co., 1995 Rev. Arb.
Judgment of 14 September 1994, 1995 Rev. Arb. 447 (Paris Cour d’Appel) 3505
Judgment of 27 October 1994, Lebanese Traders Distribs. & Consultants v. Reynolds, 1994
Rev. Arb. 709 (Paris Cour d’Appel) 3606, 3610, 3649, 4027
Judgment of 7 December 1994, V 2000 v. Project XJ 220 ITD, 1996 Rev. Arb. 245 (Paris Cour
d’Appel), aff’d, Judgment of 21 May 1997, 1997 Rev. Arb. 537 (French Cour de Cassation Civ. 1)
337, 689, 823, 829, 1036, 1110, 1205, 1529, 1600, 3548, 4169
Judgment of 6 April 1995, Thyssen Stahlunion v. Maaden, 1995 Rev. Arb. 448 (Paris Cour
d’Appel) 2339, 3530, 3533
Judgment of 7 July 1995, 1996 Rev. Arb. 270 (Paris Cour d’Appel) 3172
Judgment of 20 September 1995, Matra Hachette v. Reteitalia, 1996 Rev. Arb. 87 (Paris Cour
d’Appel) 1036
502
Judgment of 22 September 1995, Dubois et Vanderwalle v. Boots Frites BV, 1996 Rev. Arb. 101
(Paris Cour d’Appel) 3149, 3194, 3198, 3239, 3316, 3915
Judgment of 26 October 1995, Nationale des Chemins de Fer Tunisiens v. J.M. Voith AG, 1997
Rev. Arb. 553 (Paris Cour d’Appel) 1194, 1207
Judgment of 27 October 1995, 1996 Rev. Arb. 274 (Paris Cour d’Appel) 2731, 2746
Judgment of 1 December 1995, Ministère de l’Agriculture d’Irak v. Hochtief, 1996 Rev. Arb.
P 4549 456 (Paris Cour d’Appel) 843, 1484
Judgment of 12 January 1996, Qatar v. Creighton Ltd, 1996 Rev. Arb. 428 (Paris Cour d’Appel)
3952
Judgment of 24 January 1996, Harper Robinson v. Internationale de Maint. et de Réalisations
Industrielles, 1997 Rev. Arb. 83 (Grenoble Cour d’Appel) 833
Judgment of 16 February 1996, Vocatrade v. Kenkko House, 1997 Rev. Arb. 244 (Paris Cour
d’Appel) 3516, 3858
Judgment of 11 April 1996, OIP v. Pyramide, 1996 Rev. Arb. 467 (Paris Cour d’Appel) 1455
Judgment of 13 June 1996, Kuwait Foreign Trading Contracting & Inv. v. Icori Estero SpA, 1997
Rev. Arb. 251 (Paris Cour d’Appel) 775
Judgment of 3 October 1996, Logic Groupe Concept v. Logi Concept, 1997 Rev. Arb. 429
(Grenoble Cour d’Appel) 1205
Judgment of 31 October 1996, Lepesqueur v. Educinvest, 1997 Rev. Arb. 249 (Paris Cour
d’Appel) 3873
Judgment of 12 December 1996, 1998 Rev. Arb. 699 (Paris Cour d’Appel) 2060, 3570
Judgment of 12 December 1996, Commercial Agraria Hermanos Lucena v. Transgrain France,
Judgment of 19 December 1996, Qualiconsult v. Groupe Lincoln, 1998 Rev. Arb. 121 (Paris
Cour d’Appel) 1358, 2111, 2118, 3341
Judgment of 14 January 1997, 1997 Rev. Arb. 395 (Paris Cour d’Appel) 3977, 3978
Judgment of 14 January 1997, Egypt v. Chromalloy Aeroservs., Inc., XXII Y.B. Comm. Arb. 691
Judgment of 21 January 1997, Nu Swift plc v. White Knight, 1997 Rev. Arb. 428 (Paris Cour
d’Appel) 2506, 2522
Judgment of 24 June 1997, Highlight Commc’ns Int’l AG v. Europex, 1997 Rev. Arb. 588 (Paris
Judgment of 1 July 1997, Agence Transcongolaise des Communications – Chemin de fer
Congo Océan v. Compagnie Minière de l’Ogooue, XXIV Y.B. Comm. Arb. 281 (Paris Cour
d’Appel) (1999) 2101, 3865
Judgment of 28 October 1997, Procédés de Préfabrication pour le Béton v. Libye, 1998 Rev.
Arb. 399 (Paris Cour d’Appel) 1657, 1660, 1661, 2232, 3194, 3198, 3217, 3239
Judgment of 4 November 1997, Taurus Films GmbH v. Les Film du Jeudi, 2000 Rev. Arb. 280
Judgment of 25 November 1997, VRV v. Pharmachim, 1998 Rev. Arb. 684 (Paris Cour d’Appel)
3530
Judgment of 19 May 1998, Torno SpA v. Kagumai Gumi Co. Ltd, 1999 Rev. Arb. 601 (Paris Cour
d’Appel) 3545
Judgment of 11 June 1998, Ferring AB v. Debiopharm, 2002 Rev. Arb. 149 (Paris Cour d’Appel)
1591
Judgment of 10 September 1998, SA Thomson CSF v. Brunner, 2001 Rev. Arb. 559 (Paris Cour
d’Appel) 3152
Judgment of 8 October 1998, Akzo Nobel Co. v. SA Elf Atochem, 1999 Rev. Arb. 58 (Versailles
Judgment of 8 October 1998, Sam v. Perrin, 1999 Rev. Arb. 350 (Paris Cour d’Appel) 400
Judgment of 28 October 1998, 1999 Rev. Arb. 368 (Rouen Cour d’Appel) 2001
P 4550 Judgment of 3 December 1998, 1999 Rev. Arb. 601 (Paris Cour d’Appel) 3520
503
Judgment of 19 January 1999, CIC Int’l Ltd v. Ministre de la Défense de la République
d’Allemagne, 1999 Rev. Arb. 601 (Paris Cour d’Appel) 867
Judgment of 1 July 1999, 1999 Rev. Arb. 834 (Paris Cour d’Appel) 3506, 3521
Judgment of 1 July 1999, Brasoil v. GMRA, XXIV Y.B. Comm. Arb. 296 (Paris Cour d’Appel)
(1999) 2342, 3168, 3169, 3175, 3177, 3179, 3971
Judgment of 7 October 1999, Russanglia v. Delom, 2000 Rev. Arb. 288 (Paris Cour d’Appel)
1537, 1538, 1560, 1879
Judgment of 28 October 1999, SA Fretal v. SA ITM Enterprises, 2000 Rev. Arb. 299 (Paris Cour
d’Appel) 293, 2019
Judgment of 9 November 1999, Syndicat des Coproprietaires du 35. Rue Jouvent v. Halpern,
Judgment of 23 November 1999, Glencore Grain Rotterdam v. Afric, 2000 Rev. Arb. 501 (Paris
Judgment of 25 November 1999, SA Burkinabe des Ciments et Matériaux v. Société des
Ciments d’Abidjan, 2001 Rev. Arb. 165 (Paris Cour d’Appel) 510, 516, 575, 3465
Judgment of 14 December 1999, Sopip v. Banco Arabe Español, 2000 Rev. Arb. 471 (Paris Cour
d’Appel) 2994, 2995, 3534, 3593
Judgment of 22 March 2000, 2000 RJDA 685 (Paris Cour d’Appel) 780
Judgments of 20 April 2000 & 15 June 2000, 2001 Rev. Arb. 805 (Paris Cour d’Appel) 3619
Judgment of 29 June 2000, 2000 Dalloz 1390 (Versailles Cour d’Appel) 2748
Judgment of 2 October 2000, 2001 Gaz. Pal. 16-17 (Paris Cour d’Appel) 3649
Judgment of 16 November 2000, SA Fleury Michon v. Pac. Dunlop Ltd, 2001 Rev. Arb. 731
Judgment of 14 December 2000, Lapeyre v. Sauvage, 2001 Rev. Arb. 805 (Paris Cour d’Appel)
3886
Judgment of 21 December 2000, Mutuelle Fraternelle d’Assurances v. Chetouane, 2001 Rev.
Judgment of 29 March 2001, 17(6) Mealey’s Int’l Arb. Rep. A-1 (2002) (Paris Cour d’Appel)
1864
Judgment of 23 May 2001, SCM Port-Royal v. Pebay, 2003 Rev. Arb. 405 (Paris Cour d’Appel)
2638
Judgment of 31 May 2001, UNI-KOD Sarl v. Ouralkali, XXVI Y.B. Comm. Arb. 1136 (Paris Cour
d’Appel) 887, 1479, 1490
Judgment of 7 June 2001, SA Hellafranca v. SA Natalys, 2001 Rev. Arb. 605 (Paris Cour
d’Appel) 1021, 1023, 2638, 2741
Judgment of 14 June 2001, Andre v. Tradigrain, 2001 Rev. Arb. 773 (Paris Cour d’Appel) 3615,
3626
Judgment of 28 June 2001, Golshani v. Iran, 2002 Rev. Arb. 163 (Paris Cour d’Appel) 3239
Judgment of 17 January 2002, SA Omenex v. Hugon, 2002 Rev. Arb. 392 (Paris Cour d’Appel)
337
Judgment of 17 January 2002, SA Peinture Normandie v. SA Olin Lanctuit, 2002 Rev. Arb. 202
Judgment of 7 February 2002, SA Alfac v. Irmac Importacão, Comércia e Industria Ltd, 2002
Rev. Arb. 413 (Paris Cour d’Appel) 815, 833, 892, 1430, 3458
Judgment of 11 April 2002, ABC Int’l v. Diverseylever Ltd, 2003 Rev. Arb. 143 (Paris Cour
d’Appel) 3174
Judgment of 11 April 2002, SA JDA Software France v. SA Kiabi, 2003 Rev. Arb. 1252 (Paris
P 4551 Judgment of 6 May 2002, Case No. 2000/06316 (Lyon Cour d’Appel) 293
Judgment of 4 June 2002, SA Alstom Power Turbomachs. v. Masson ès Qual., 2003 Rev. Arb.
134 (Besançon Cour d’Appel) 1478, 1512
Judgment of 20 June 2002, Ordatech v. W. Mgt, 2002 Rev. Arb. 976 (Paris Cour d’Appel) 3456
Judgment of 27 June 2002, Comecim v. Theobroma, 2003 Rev. Arb. 428 (Paris Cour d’Appel)
891
Judgment of 12 September 2002, Macron v. Cartonnages de Pamfou, 2003 Rev. Arb. 173
504
Judgment of 4 December 2002, Am. Bureau of Shipping v. Shipping Co-ownership Jules Verne,
Case No. 2001/17293 (Paris Cour d’Appel) 714
Judgment of 16 January 2003, Intelcam v. SA France Télécom, 2003 Rev. Arb. 246 (Paris Cour
d’Appel) 3497
Judgment of 29 April 2003, Nationale des Pétroles du Congo v. Total Fina Elf E & P Congo, 21
ASA Bull. 662 (2003) (Paris Cour d’Appel) 266, 301
Judgment of 19 June 2003, République Arabe de Syrie v. Papillon Group Corp., 2004 Rev. Arb.
Judgment of 26 June 2003, Baba Ould Ahmed Miske v. AVC Shipping, 2006 Rev. Arb. 143
Judgment of 10 September 2003, Quille v. SQ CEE Euro Idolation, 2004 Rev. Arb. 623 (Paris
Cour d’Appel) 400
Judgment of 23 October 2003, Kocak Ilac Fabrikasi AS v. SA Labs. Besins Int’l, 2006 Rev. Arb.
Judgment of 28 November 2003, JCP G 2003 (Paris Cour d’Appel) 1905
Judgment of 15 January 2004, Centrale Fotovista v. Vanoverbeke, 2004 Rev. Arb. 908 (Paris
Judgment of 22 January 2004, Nat’l Cie for Fishing & Marketing v. Foster Wheeler Trading Co.
AG, 2004 Rev. Arb. 647 (Paris Cour d’Appel) 2510, 3022
Judgment of 4 March 2004, Nihon Plast Co. v. Takata-Petri AG, 2005 Rev. Arb. 143 (Paris Cour
d’Appel) 984, 989, 1006, 3464, 3485, 3802
Judgment of 18 March 2004, Case Nos. 2001/18372, 2001/18379, 2001/18382 (Paris Cour
d’Appel) 3700
Judgment of 18 March 2004, Sarl Synergie v. SC Conect SA, 2004 Rev. Arb. 917 (Paris Cour
d’Appel) 3811
Judgment of 10 June 2004, Bargues Agro Indus. SA v. Young Pecan Cie, XXX Y.B. Comm. Arb.
499 (Paris Cour d’Appel) (2005) 94, 574, 662, 670, 1910, 2027, 3461
Judgment of 17 June 2004, Le Parmentier v. La Société Miss France, XXX Y.B. Comm. Arb. 119
(Paris Cour d’Appel) (2005) 266, 279, 300, 301
Judgment of 17 June 2004, Le Parmentier v. Miss France, 2006 Rev. Arb. 161 (Paris Cour
d’Appel) 3254, 3217
Judgment of 7 October 2004, Otor Participations v. Carlyle Holdings, 2005 Rev. Arb. 737
P 4552 Judgment of 14 November 2004, 2005 Rev. Arb. 751 (Paris Cour d’Appel) 3665
Judgment of 18 November 2004, SA Thalès Air Défence v. GIE Euromissile, 2005 Rev. Arb. 751
(Paris Cour d’Appel) 1050, 1065, 1069, 2428, 3612, 3621, 3626, 3615, 3620, 3625, 4051, 4056
Judgment of 24 February 2005, Sidermetal v. Arcelor Int’l Exp., 2005 Rev. Arb. 787 (Paris Cour
d’Appel) 574
Judgment of 30 June 2005, Pilliod v. Econosto, 2006 Rev. Arb. 687 (Paris Cour d’Appel) 3579
Judgment of 29 September 2005, Direction Générale de l’Aviation Civile de l’Emirat de Dubai
v. Int’l Bechtel, 2006 Rev. Arb. 695 (Paris Cour d’Appel) 3152
Judgment of 29 September 2005, XXXI Y.B. Comm. Arb. 629 (Paris Cour d’Appel) (2006) 3977
Judgment of 10 November 2005, 2006 RTD Com. 305 (Paris Cour d’Appel) 3915
Judgment of 2 March 2006, Case No. 04/05773 (Versailles Cour d’Appel) 293
Judgment of 23 March 2006, SNF SAS v. Cytec Indus. BV, XXXII Y.B. Comm. Arb. 282, (2007)
Judgment of 23 March 2006, SNF v. Cytec, 2007 Rev. Arb. 100 (Paris Cour d’Appel) 1050, 1066
505
Judgment of 23 March 2006, XXXII Y.B. Comm. Arb. 282 (Paris Cour d’Appel) (2007) 3898,
4051, 4056
Judgment of 30 May 2006, Paprec Réseau v. SA Interseroh, 2007 Rev. Arb. 837 (Paris Cour
d’Appel) 3194
Judgment of 15 June 2006, Legal Dep’t of the Ministry of Justice of Iraq v. Fincantieri, XXXI
Judgment of 15 June 2006, Djibouti v. Contecna Inspection SA, 2006 Rev. Arb. 864 (Paris Cour
d’Appel) 775
Judgment of 15 June 2006, Gabon v. Prodoil Gabon SA, 2006 Rev. Arb. 1002 (Paris Cour
d’Appel) 3521
Judgment of 15 June 2006, Legal Dep’t of the Ministry of Justice of Iraq v. Fincantieri, 2007
Rev. Arb. 87 (Paris Cour d’Appel) 1083, 1206, 1391
Judgment of 16 November 2006, Empresa de Telecomunicaciones de Cuba SA v. SA
Telefónica Antillana, Case No. 04/24238 (Paris Cour d’Appel) 3916
Judgment of 13 September 2007, 2008 Rev. Arb. 313 (Paris Cour d’Appel) 3276, 3871
Judgment of 4 December 2007, SA Generali Assurances IARD v. Lydie X, RG 07/00019 (Agen
Cour d’Appel) 293
Judgment of 6 December 2007, Aimery de Y. v. Trioplast, Case No. 06/4016 (Paris Cour
d’Appel) 4027
Judgment of 10 January 2008, XXXIII Y.B. Comm. Arb. 480 (Paris Cour d’Appel) (2008) 3859
Judgment of 17 January 2008, Jeanniot v. Système U Nord-Ouest SA, 2008 Rev. Arb. 162
Judgment of 17 January 2008, SA SDMS Int’l v. Cameroon Telecommc’ns, 2008 Rev. Arb. 162
Judgment of 17 January 2008, SA SDMS Int’l v. Cameroon Telecommc’ns – Camtel, XXXIII Y.B.
Comm. Arb. 484 (2008) (Paris Cour d’Appel) 2990
Judgment of 31 January 2008, Thimonnier v. Inner Mongolia Yili Indus. Group Co., 2008 Rev.
P 4553 Arb. 487 (Paris Cour d’Appel) 3487, 3877
Judgment of 7 February 2008, Française de Rentes et de Financements Créditrente v.
Compagnie Générale de Garantie SA, 2008 Rev. Arb. 501 (Paris Cour d’Appel) 2351, 3542
Judgment of 28 February 2008, Hidravlika DOO v. SA Diebolt, 2008 Rev. Arb. 167 (Paris Cour
d’Appel) 1080, 3543
Judgment of 28 February 2008, RG No. 05/10577 (Paris Cour d’Appel) 1127
Judgment of 20 March 2008, Jacquetin v. SA Intercaves, 2008 Rev. Arb. 341 (Paris Cour
d’Appel) 1035,1036, 1050
Judgment of 27 March 2008, Socomep v. Jouault, 2008 Rev. Arb. 342 (Paris Cour d’Appel)
3624
Judgment of 10 April 2008, SAS C22 v. John K. King & Sons Ltd, 2008 Rev. Arb. 342 (Paris Cour
d’Appel) 2060, 3955
Judgment of 15 May 2008, Sztulman v. Le Forestier, Case No. 06/17874 (Paris Cour d’Appel)
3550
Judgment of 16 May 2008, Carrefour v. Coop. Atlantique, Case No. RG 07/18210 (Paris Cour
d’Appel) 2731
Judgment of 9 October 2008, Merial v. Klocke Verpackungs – Service GmbH, 2009 Rev. Arb.
Judgment of 24 October 2008, Cniec Shaanxi Corp. v. Compagnie des Métaux France –
Commet France, Case No. RG 08/05967 (Paris Cour d’Appel) 2731
Judgment of 27 November 2008, Case No. 07/11672 (Paris Cour d’Appel) 3656, 3700
Judgment of 18 December 2008, Sarl Bratex v. Dane Indus. Inc., 2009 Rev. Arb. 233 (Paris
Judgment of 22 January 2009, SNF sas v. Chambre de Commerce Internationale, XXXIV Y.B.
Comm. Arb. 263 (2009) (Paris Cour d’Appel) 2127, 2128, 2185, 2187
Judgment of 29 January 2009, Case No. 08/03690 (Poitiers Cour d’Appel) 2068
Judgment of 12 February 2009, J. & P. Avax v. Tecnimont, 2009 Rev. Arb. 186 (Paris Cour
d’Appel) 2042, 2051
506
Judgment of 26 March 2009, Papillon Group Corp. v. République Arabe de Syrieet, 2010 Rev.
Judgment of 9 April 2009, Van Meensel v. Petroval Pte Ltd, 2009 Rev. Arb. 436 (Paris Cour
d’Appel) 3274
Judgment of 15 October 2009, OAO Npo Saturn v. Unimpex Entreprises Ltd, 2009 Rev. Arb.
Judgment of 22 October 2009, Globale Re AG v. Liquidators of ICD (Paris Cour d’Appel) 2351
Judgment of 22 October 2009, Globale re AG v. Liquidators of ICD, 25(3) Mealey’s Int’l Arb.
Rep. 25 (2010) (Paris Cour d’Appel) 3543
Judgment of 22 October 2009, Globale Re AG v. Liquidators of ICD, Case No. 08/13030 (Paris
Judgment of 22 October 2009, Linde AG v. Halyvourgiki AE, 2010 Rev. Arb. 124 (Paris Cour
d’Appel) 3621, 3625, 3626
Judgment of 5 November 2009, Riverstone Ins. Ltd v. Brouard & Daude-Brouard, 2009 Rev.
Judgment of 19 November 2009, Caisse Fédérale du Crédit Mutuel Nord Europe v. Banque
Delubac, 2011 Rev. Arb. 152 (Paris Cour d’Appel) 3316
Judgment of 26 November 2009, 2(4) Int’l J. Arab Arb. 131 (Paris Cour d’Appel) (2010) 3627
P 4554 Judgment of 26 November 2009, Case No. 08/11583 (Paris Cour d’Appel) 3519
Judgment of 26 November 2009, M.Z. Films v. News Films Int’l LLC, Case No. 08/14161 (Paris
Judgment of 26 November 2009, Sarah A. v. Moussa R., 2(4) Int’l J. Arab Arb. 131 (Paris Cour
d’Appel) (2010) 3619, 4084
Judgment of 3 December 2009, Engel Austria v. Don Trade, 2010 Rev. Arb. 112 (Paris Cour
d’Appel) 3530
Judgment of 8 December 2009, Benladen v. Mohammed Benladen Sarl, 2(2) Int’l J. Arab Arb.
235 (Paris Cour d’Appel) (2010) 1621
Judgment of 8 December 2009, Lebanon v. KSA, 2(2) Int’l J. Arab Arb. 235 (2010) (Paris Cour
d’Appel) 1204
Judgment of 17 December 2009, Czechia v. Nreka, 2010 Rev. Arb. 178 (Paris Cour d’Appel)
3594
Judgment of 17 December 2009, Fichtner GmbH v. Lksur, Case No. 08/16276 (Paris Cour
d’Appel) 3502, 3516, 3527
Judgment of 17 December 2009, Gothaer Finanzholding AG v. Liquidators of ICD, 25(3)
Mealey’s Int’l Arb. Rep. 26 (2010) (Paris Cour d’Appel) 3564, 3592, 3621
Judgment of 25 February 2010, Fédération Française d’Études et de Sports Sous-Marins v.
Cutner & Assocs. PC, Case No. 08/22780 (Paris Cour d’Appel) 3701, 4071
Judgment of 25 March 2010, Commercial Caribbean Niquel v. Overseas Mining Invs. Ltd, 2011
Rev. Arb. 442 (Paris Cour d’Appel) 3529, 3540
Judgment of 27 May 2010, M. Cohen v. Total Outremer SA, Case No. 09/08191 (Paris Cour
d’Appel) 3583
Judgment of 18 June 2010, Case No. 10/101500 (Paris Cour d’Appel) 2731, 2746
Judgment of 24 June 2010, Inforad Ltd v. Tes Elec. Solutions, 2010 Rev. Arb. 675 (Paris Cour
d’Appel) 3621, 3445. 3648
Judgment of 1 July 2010, Thalès v. Brunner Sociedad Civil de Administraçao Ltda, 2010 Rev.
Judgment of 9 September 2010, Marriott Int’l Hotels Inc. v. JNAH Dev. SA, Case No. 09/13550
Judgment of 4 November 2010, Case No. 09/1745 (Paris Cour d’Appel) 3606
Judgment of 18 November 2010, Région de Kaliningrad v. Lituanie, XXXVI Y.B. Comm. Arb.
270 (Paris Cour d’Appel) (2011) 3586
Judgment of 18 November 2010, République de Guinée Équatoriale v. SA Bank Guinea
Équatorial, 2010 Rev. Arb. 980 (Paris Cour d’Appel) 510, 661, 670
Judgment of 18 November 2010, XXXVI Y.B. Comm. Arb. 270 (Paris Cour d’Appel) (2011) 3720
Judgment of 17 February 2011, Gouv’t du Pakistan, Min. Affaires Religieuses v. Sté Dallah
Real Estate & Tourism Holding Co., XXXVI Y.B. Comm. Arb. 590 (Paris Cour d’Appel) (2011)
507
1542, 1597
Judgment of 17 February 2011, Pakistan – Ministère des Affaires Religieuses v. Dallah Real
Estate & Tourism Holding Co., Case No. 09/28533 (Paris Cour d’Appel) 3803, 4088
Judgment of 10 March 2011, Nykcool AB v. Dole France, Case No. 09/21413 (Paris Cour
d’Appel) 3566
Judgment of 10 March 2011, Tesco v. Neoelectra, 2011 Rev. Arb. 569 (Paris Cour d’Appel)
3564, 3565
Judgment of 29 March 2011, Jean Pierre G. v. Expanso Investissements, Case No. 10/01240
(Bordeaux Cour d’Appel) 1455
Judgment of 7 April 2011, 2011 Rev. Arb. 747 (Paris Cour d’Appel) 400, 510, 516, 558, 574, 575,
P 4555 632, 817, 833, 1087
Judgment of 7 April 2011, Fitzpatrick Equatorial Guinea Ltd v. Guinée Équatoriale, 2011 Rev.
Judgment of 5 May 2011, 2011 Rev. Arb. 1093 (Paris Cour d’Appel) 4139, 4143
Judgment of 5 May 2011, Sarl Kosa France Holding v. SAS Rhodia Opérations, 2011 Rev. Arb.
Judgment of 2 November 2011, Avax v. Tecnimont SpA AS, 2012 Rev. Arb. 112 (Reims Cour
d’Appel) 2008, 3564
Judgment of 2 November 2011, J. & P. Avax v. Tecnimont SpA AS, 2012 Rev. Arb. 112 (Reims
Judgment of 2 November 2011, S.A.J. v. Tecnimont SpA AS, 2012 Rev. Arb. 112 (Reims Cour
d’Appel) 3487
Judgment of 24 November 2011, EGPC v. NATGAS, 2012 Rev. Arb. 134 (Paris Cour d’Appel)
661, 3497, 3606
Judgment of 24 November 2011, Egyptian Gen. Petroleum Corp. v. Nat’l Gas Co., 2012 Rev.
Judgment of 10 January 2012, Serant v. SA Deloitte, 2012 Rev. Arb. 337 (Paris Cour d’Appel)
1098, 3459
Judgment of 10 January 2012, Sharikat al Ikarat Wal Abnieh SAL v. Butel SAL, 2012 Rev. Arb.
409 (Paris Cour d’Appel) 3487, 3520, 3521
Judgment of 21 February 2012, Cameroun v. SPRL Projet Pilote Garoube, 2012 Rev. Arb. 587
Judgment of 21 February 2012, Case No. 10/15837 (Paris Cour d’Appel) 293
Judgment of 23 May 2012, Case No. 11/21520 (Paris Cour d’Appel) 1512
Judgment of 12 June 2012, Congo v. Comm’n Imp. Exp. SA, 2012 Rev. Arb. 811 (Paris Cour
d’Appel) 3475
Judgment of 10 January 2013, DFT 4A_146/2012 (Swiss Fed. Trib.) 1818, 1844, 2080
Judgment of 15 January 2013, Sibirskiy Cement v. Ciments Français, 2013 Rev. Arb. 779 (Paris
Judgment of 15 January 2013, Tomskneft v. Yukos Capital, Case No. 11/03911 (Paris Cour
d’Appel) 3841, 3846
Judgment of 19 February 2013, République Démocratique Populaire du Lao v. Thai Lao
Lignite Co., 2013 Rev. Arb. 299 (Paris Cour d’Appel) 3890, 3892, 3977
Judgment of 23 January 2014, Baptista et Cie v. Sarl MJM France, 2014 Rev. Arb. 225 (Aix-en
Judgment of 11 February 2014, Pezzullo Molini Pastifici Mangimifici v. F.lli Polisi, 2014 Rev.
Judgment of 4 March 2014, Gulf Leaders for Mgt Serv. Holding Co. v. SA Crédit Foncier de
France, 2014 Rev. Arb. 955 (Paris Cour d’Appel) 3650
Judgment of 3 April 2014, Sarl Farmex Tech. v. République d’Arménie, Foreign Fin. Projects
Mgt Ctr of Ministry of Fin., 2015 Rev. Arb. 110 (Paris Cour d’Appel) 3661, 3663
Judgment of 7 October 2014, Sabatino v. Animated Ventures, 2014 Rev. Arb. 1024 (Paris Cour
d’Appel) 361
Judgment of 14 October 2014, Congo v. Commisimpex, 2014 Rev. Arb. 1030 (Paris Cour
d’Appel) 3650
P 4556 Judgment of 17 February 2015, Case No. 13/13278 (Paris Cour d’Appel) 2166, 3627, 3630
508
Judgment of 10 March 2015, Mme Ch. Fiquet v. Subway Int’l, 2015 Rev. Arb. 626 (Paris Cour
d’Appel) 689
Judgment of 14 April 2015, République Hellénique v. Bombardier Inc., 2016 Rev. Arb. 556
Judgment of 26 May 2015, No. 15/06910 (Paris Cour d’Appel) 1731
Judgment of 23 June 2015, Case No. 14/14277 (Paris Cour d’Appel) 3521
Judgment of 15 September 2015, Monte Carlo Aviation Corp. v. SA Dassault Aviation, 2015
Judgment of 25 February 2016, Magistry v. Knight, 2017 Rev. Arb. 618 (Paris Cour d’Appel)
1204
Judgment of 15 March 2016, Madagascar v. SA Cebelec, Case No. 14/19164 (Paris Cour
d’Appel) (2016) 2348
Judgment of 15 March 2016, Scana Volda v. SAS Comptoir des Pêches d’Europe du Nord, 2016
Judgment of 12 April 2016, 2016 Rev. Arb. 1205 (Paris Cour d’Appel) 2731, 2746
Judgment of 12 April 2016, J&P Avax SA v. Tecnimont SpA, 2017 Rev. Arb. 949 (Paris Cour
d’Appel) 1905
Judgment of 30 June 2016, Case No. 15/03050 (Versailles Cour d’Appel) 293
Judgment of 8 November 2016, République d’Irak v. M.A.N., 2016 Rev. Arb. 1213 (Paris Cour
d’Appel) 3502, 3527, 3624
Judgment of 21 February 2017, Belokon v. Kirghizistan, 2017 Rev. Arb. 917 (Paris Cour
d’Appel) 2926
Judgment of 21 February 2017, Kirghizistan v. Belokon, 2017 Rev. Arb. 915 (Paris Cour
d’Appel) 3610, 3650
Judgment of 21 March 2017, Ministère Yéménite du Pétrole et des Minerais v. Alkor Petroo
Ltd, 2018 Rev. Arb. 587 (Paris Cour d’Appel) 2060, 2085, 3445
Judgment of 25 April 2017, Case No. 15/01040 (Paris Cour d’Appel) 3627
Judgment of 16 May 2017, Congo v. Customs & Tax Consultancy LLC, 2018 Rev. Arb. 248
Judgment of 15 June 2017, 2018 Rev. Arb. 648 (Paris Cour d’Appel) 2731, 2746
Judgment of 19 September 2017, 2018 Rev. Arb. 632 (Paris Cour d’Appel) 2668, 2731, 2746
Judgment of 17 October 2017, Guillouart v. SASU Nov Brandt Euro. France, 2017 Rev. Arb.
P 4557 1266 (Paris Cour d’Appel) 401 , 480, 1202
Judgment of 15 November 2017, Case No. 17/02388 (Angers Cour d’Appel) 284
Judgment of 28 November 2017, M. Sheikh Mohamed Bin Issa Al Jaber v. M. Sheikh Salah
Inbrahim Al-Hejailan, 2018 Rev. Arb. 289 (Paris Cour d’Appel) 2060, 2085
Judgment of 17 December 2017, Guillouart v. SASU Nov Brandt Euro. France, 2017 Rev. Arb.
Judgment of 16 January 2018, MK Group v. Sarl, Onix, Case No. RG 15/21703 (Paris Cour
d’Appel) 4041
Judgment of 27 March 2018, Saad Buzwair Automotive Co. v. Audi Volkswagen Middle E. Fze
LLC, 2019 Rev. Arb. 522 (Paris Cour d’Appel) 1905, 2007, 2042
Judgment of 29 May 2018, Elcir v. SA Bouygues Bâtiment Ile de France, 2018 Rev. Arb. 528
(Paris Cour d’Appel) 361, 362, 1785, 2042, 3564
Judgment of 29 May 2018, Saad Buzwair Automotive Co. v. Audi Volkswagen Middle E. FZE
LLC, Case No. 16/09386 (Paris Cour d’Appel) 1785
Judgment of 11 September 2018, Case No. 16/19913 (Paris Cour d’Appel) 401
Judgment of 18 December 2018, New Euro. Corporate Advisory Ltd v. Innova 5/LP-ès Qualités
de Liquidateur de la Société Twelve Hornbeams Sarl, 2018 Rev. Arb. 847 (Paris Cour d’Appel)
575
Judgment of 20 December 2018, Cameroun v. SPRL Projet Pilote Garoubé, 2019 Rev. Arb. 472
Judgment of 20 December 2018, Case No. 16/25484 (Paris Cour d’Appel) 3627, 3630
509
Judgment of 22 January 2019, Sarl DGM Autos v. Martinez, 2019 Rev. Arb. 296 (Paris Cour
d’Appel) 401, 480, 3454
Judgment of 29 January 2019, Venezuela v. Rusoro Mining Ltd, 2019 Rev. Arb. 300 (Paris Cour
d’Appel) 1207, 3464, 3475
Judgment of 2 April 2019, Case No. 16/24358 (Paris Cour d’Appel) 4025
Judgment of 2 April 2019, Ryan v. Pologne, 2019 Rev. Arb. 304 (Paris Cour d’Appel) 1207,
2333, 3479, 3527
Judgment of 2 April 2019, Schooner Capital LLC v. Atl. Inv. Partners LLC, Case No. 16/24358
Judgment of 28 May 2019, Case No. 17/03659 (Paris Cour d’Appel) 3627, 3630
Judgment of 28 May 2019, Alstom Transp. SA v. Alexander Bros Ltd, 2019 Rev. Arb. 629 (Paris
Cour d’Appel) (2019) 2927
Judgment of 6 June 2019, No. 18/27939 (Paris Cour d’Appel) 2774
Judgment of 10 September 2019, Case No. 17/10639 (Paris Cour d’Appel) 3599
Judgment of 18 November 2019, Moeuf BTP Transports Sarl v. BCA Expertise sas (Limoges
Cour d’Appel) 284
Judgment of 25 February 2020, Prakash Steelage Ltd v. Uzuc SA (Paris Cour d’Appel) 2995
Merial sas v. Klocke, 2009 Rev. Arb. 352 (Paris Cour d’Appel) 3036
Planor Afrique SA v. Emirates Télécommcations Corp., 2012 Rev. Arb. 569 (Paris Cour
d’Appel) 2330
French Tribunal de Grande Instance
Judgment of 17 October 1956, Kohorn v. Dimitrov, JCP G 1956 II (Seine Tribunal Civ.) 1154,
1201
Judgment of 9 October 1970, II Y.B. Comm. Arb. 244 (Strasbourg Tribunal de Grande
Instance) (1977) 3959
Judgment of 27 September 1978, Case No. 482/77 (Reims Tribunal de Grande Instance) 2183,
2188
Judgment of 1 February 1979, Techniques de l’Ingénieur v. Sofel, 1980 Rev. Arb. 97 (Paris
Tribunal de Grande Instance) 843, 1430
Judgments of 11 August 1983, 20 September 1983 & 30 December 1983, 1985 Rev. Arb. 81
(Paris Tribunal de Grande Instance) 1848
Judgment of 28 March 1984, Raffineries de Pétrole d’Homs et de Banias v. Chambre de
Commerce Internationale, 1985 Rev. Arb. 141 (Paris Tribunal de Grande Instance) 1782,
1833, 1849, 2122, 2124, 2127
Judgment of 30 May 1986, Guinée v. Chambre Arbitrale de Paris, 1987 Rev. Arb. 371 (Paris
Tribunal de Grande Instance) 1856
Judgments of 22 May 1987 & 23 June 1987, Transportacion Maritima Mexicana SA v. Alsthom,
1988 Rev. Arb. 699 (Paris Tribunal de Grande Instance) 1841
Judgment of 15 January 1988, 1988 Rev. Arb. 316 (Paris Tribunal de Grande Instance) 2002
P 4558
Judgment of 23 June 1988, 1988 Rev. Arb. 657 (Paris Tribunal de Grande Instance) 2068,
2089, 2128, 2301
Judgment of 23 June 1988, République de Guinée v. MM. R et O, 1988 Rev. Arb. 657 (Paris
Judgment of 28 October 1988, Drexel Burnham Lambert Ltd v. Philipp Bros., 1990 Rev. Arb.
497 (Paris Tribunal de Grande Instance) 1879
Judgment of 13 December 1988, Asland v. Euro. Energy Corp., 1990 Rev. Arb. 521 (Paris
Judgment of 21 September 1989, La Belle Créole SA v. Gemtel P’ship, 1990 Rev. Arb. 176
(Paris Tribunal de Grande Instance) 2068
Judgment of 13 June 1990, 1996 Rev. Arb. 475 (Paris Tribunal de Grande Instance), aff’d,
Judgment of 22 May 1991, Bompard v. Consorts C., 1996 Rev. Arb. 475 (Paris Cour d’Appel)
2111, 2183
Judgment of 18 January 1991, Chérifienne des Pétroles v. Mannesmann Industria Ibérica, 1996
Rev. Arb. 503 (Paris Tribunal de Grande Instance) 1833, 1849
Judgments of 24 February 1992 & 15 April 1992, Ikori Estero SpA v. Kuwait Foreign Trading
510
Contracting & Inv. Co., 1994 Rev. Arb. 556 (Paris Tribunal de Grande Instance) 1848, 1850,
1851, 1854
Judgment of 9 December 1992, Bompard v. Consorts C., 1996 Rev. Arb. 475 (Paris Tribunal de
Grande Instance) 2135
Judgment of 12 May 1993, 1996 Rev. Arb. 411 (Paris Tribunal de Grande Instance) 2136
Judgment of 15 February 1995, 1996 Rev. Arb. 503 (Paris Tribunal de Grande Instance) 2360
Judgment of 10 January 1996, Nat’l Iranian Oil Cie (NIOC) v. Israel, 2002 Rev. Arb. 427 (Paris
Tribunal de Grande Instance) 834, 2231
Judgment of 29 October 1996, Unreported Judgment (Paris Tribunal de Grande Instance)
2068, 2089
Judgment of 20 October 1997, Boulois v. UNESCO, 1997 Rev. Arb. 575 (Paris Tribunal de
Grande Instance) 1848, 1852
Judgment of 9 April 1998, Fertalge Euromade v. SA Kaltenbach Thuring, 2002 Rev. Arb. 993
(Beauvais Tribunal de Grande Instance) 2400
Judgment of 26 November 1998, République de Tanzanie v. DTT, 1999 Rev. Arb. 131 (Paris
Judgment of 13 July 1999, Pangee v. Francefert, 1999 Rev. Arb. 623 (Paris Tribunal de Grande
Instance) 823, 843
Judgment of 9 May 2001, Soufflet Négoce v. Tradco Interoceanic Commodities, 2004 Rev.
Arb. 113 (Paris Tribunal de Grande Instance) 293
Judgment of 10 October 2007, 2007 Dalloz 2916 (Paris Tribunal de Grande Instance) 1501
Judgment of 22 January 2010, Samsung Elec. Co. v. Jaffe, Case No. 10-50604 (Paris Tribunal
de Grande Instance) 1857
Judgment of 29 March 2010, Equatorial Guinea v. Fitzpatrick Equatorial Guinea, Case No. 10-
52825 (Paris Tribunal de Grande Instance) 1205, 1415
Judgment of 16 May 2012, Maximov v. Novolipetsky Steel Mill, Case No. 12/1281 (Paris
Other
Judgment of 17 May 2010, INSERM v. Fondation Letten F. Saugstad, 2010 Rev. Arb. 275
P 4559 (French Tribunal des Conflits) 773
Judgment of 9 November 2016, Fosmax LNG v. TCM FR, 2017 Rev. Arb. 179 (French Conseil
d’Etat) 774, 1050, 3499, 3593
Judgment of 9 July 2019, Case No. 18 334 000 654 (Paris Tribunal Correctionnel) 2167
Order of 22 February 1999, Bleustein v. True N., 2003 Rev. Arb. 189 (Paris Tribunal de
Commerce), rev’d on other grounds, Judgment of 17 September 1999, 2003 Rev. Arb. 194
Finland
Judgment of 27 February 1989, XVI Y.B. Comm. Arb. 536 (Finnish S.Ct.) (1991) 3620, 4034
Judgment of 9 September 1992, Case No. S91/1064 (Finnish S.Ct.) 3883
Judgment of 3 April 2003, KKO 2003:60 (Finnish S.Ct.) 949
Judgment of 26 June 2003, Case No. S 02/3757 (Helsinki Ct. App.) 3529
Judgment of 31 January 2005, 2005 Korkeimman Oikeuden Ratkaisut Kommentein 101
(Finnish S.Ct.) 2007, 2112, 2131, 2135, 2160, 2182
Judgment of 2 July 2008, Werfen Austria v. Polar Electro, Case No. KKO 2008:77 (Finnish S.Ct.)
3532
Germany
Bundesgerichtshof and Bundesverfassungsgericht
Judgment of 14 May 1952, II ZR 276/51 (German Bundesgerichtshof) 3616, 3630
Judgment of 25 June 1952, 1952 NJW 1296 (German Bundesgerichtshof) 288, 293
Judgment of 6 October 1954, 15 BGHZ 12 (German Bundesgerichtshof) 2112, 2160, 2182
Judgment of 3 March 1955, 1955 BB 552 (German Bundesgerichtshof) 1143, 1214
Judgment of 30 January 1957, 23 BGHZ 198 (German Bundesgerichtshof) 385, 427, 1584
Judgment of 28 February 1957, 24 BGHZ 15 (German Bundesgerichtshof) 1087
Judgment of 22 May 1957, 1958 ZZP 427 (German Bundesgerichtshof) 2693, 2698
Judgment of 28 April 1960, 1960 NJW 1296 (German Bundesgerichtshof) 3548
Judgment of 9 June 1960, 1960 NJW 1721 (German Bundesgerichtshof) 2949
511
Judgment of 23 May 1960, 1960 NJW 1462 (German Bundesgerichtshof) 288
Judgment of 25 October 1962, 1963 NJW 203 (German Bundesgerichtshof) 876, 1621
Judgment of 23 August 1963, 1 AZR 469/62 (German Bundesarbeitsgericht) 138
Judgment of 28 November 1963, 1964 NJW 591 (German Bundesgerichtshof) 542, 554, 1487
Judgments of 14 October 1964 & 6 March 1969, II Y.B. Comm. Arb. 235 (German
Bundesgerichtshof) (1977) 3864
Judgment of 24 November 1965, 1965 NJW 300 (German Bundesgerichtshof) 1465, 1469
Judgment of 20 May 1966, KZR 10/64 (German Bundesgerichtshof) 3616
Judgment of 25 October 1966, KZR 7/65 (German Bundesgerichtshof) 3616
Judgment of 5 December 1966, 1967 RIW/AWD 108 (German Bundesgerichtshof) 2837
Judgment of 23 February 1967, 1967 NJW 1039 (German Bundesgerichtshof) 856, 914
Judgment of 22 May 1967, 48 BGHZ 35 (German Bundesgerichtshof) 866
Judgment of 20 May 1968, 55 BGHZ 191 (German Bundesgerichtshof) 1586
Judgment of 19 December 1968, 51 BGHZ 255 (German Bundesgerichtshof) 916, 1879
Judgment of 27 February 1969, 1969 NJW 978 (German Bundesgerichtshof) 3620
P 4560 Judgment of 27 February 1969, KZR 3/68 (German Bundesgerichtshof) 3616
Judgment of 6 March 1969, II Y.B. Comm. Arb. 235 (German Bundesgerichtshof) (1977) 1880,
3789, 3864, 3942
Judgment of 26 June 1969, 1969 NJW 2093 (German Bundesgerichtshof) 3725, 3963, 3964
Judgment of 27 February 1970, 6 Arb. Int’l 79 (1990) (German Bundesgerichtshof) 389, 426,
483, 946, 949
Judgment of 27 February 1970, 6 Arb. Int’l 79 (German Bundesgerichtshof) (1990) 74, 387,
389, 426, 428, 1478
Judgment of 25 May 1970, II Y.B. Comm. Arb. 237 (German Bundesgerichtshof) (1977) 714, 725
Judgment of 10 December 1970, 1971 BB 369 (German Bundesgerichtshof) 1439, 1471
Judgment of 7 January 1971, 1971 NJW 986 (German Bundesgerichtshof) 552
Judgment of 31 May 1972, KZR 43/71 (German Bundesgerichtshof) 3616
Judgment of 22 September 1977, 1978 NJW 212 (German Bundesgerichtshof) 876
Judgment of 22 September 1977, 69 BGHZ 260 (German Bundesgerichtshof) 949
Judgment of 2 February 1978, 71 BGHZ 162 (German Bundesgerichtshof) 1605
Judgment of 2 March 1978, 1978 NJW 1585 (German Bundesgerichtshof) 1621
Judgment of 28 May 1979, 1979 NJW 2567 (German Bundesgerichtshof) 389, 1477, 1621
Judgment of 18 December 1975, 1976 NJW 852 (German Bundesgerichtshof) 925
Judgment of 3 July 1975, 1976 NJW 109 (German Bundesgerichtshof) 251, 273, 277, 2131
Judgment of 12 February 1976, II Y.B. Comm. Arb. 242 (German Bundesgerichtshof) (1977)
554, 891, 3239, 3899
Judgment of 5 May 1977, 1977 NJW 1397 (German Bundesgerichtshof) 1143, 1214
Judgment of 4 July 1977, 1977 DB 1786 (German Bundesgerichtshof) 301
Judgment of 8 November 1981, Compagnia Italiana di Assicurazioni v. Schwarzmeer und
Ostsee Versicherungs-Aktiengesellschaft, 1982 NJW 1224 (German Bundesgerichtshof) 3170,
3961
Judgment of 2 December 1982, 1983 NJW 1267 (German Bundesgerichtshof) 819, 839, 858
Judgment of 29 September 1983, 1983 WM 1207 (German Bundesgerichtshof) 3397
Judgment of 3 November 1983, LM §38 ZPO Nr. 23 (German Bundesgerichtshof) 1487
Judgment of 25 October 1983, KZR 27/82 (German Bundesgerichtshof) 3616
Judgment of 10 May 1984, 1984 NJW 2763 (German Bundesgerichtshof) 552, 3151, 3158
512
Judgment of 11 July 1985, 1986 NJW 2765 (German Bundesgerichtshof) 943
Judgment of 26 September 1985, 1986 NJW 1436 (German Bundesgerichtshof) 2994, 3522,
3593, 3665, 3759
Judgment of 26 June 1986, III ZR 200/85 (German Bundesgerichtshof) 890
Judgment of 15 May 1986, XII Y.B. Comm. Arb. 489 (German Bundesgerichtshof) (1987) 1880,
2347, 3864, 3874, 3949, 3952, 4011, 4044
Judgment of 3 December 1986, 1987 NJW 651 (German Bundesgerichtshof) 427, 1047
Judgment of 2 April 1987, 1987 NJW-RR 1194 (German Bundesgerichtshof) 1021
Judgment of 26 March 1987, XIII Y.B. Comm. Arb. 471 (German Bundesgerichtshof) (1988)
3959
Judgment of 12 November 1987, 1988 NJW 1215 (German Bundesgerichtshof) 1087, 1469, 1471
P 4561 Judgment of 14 April 1988, 1988 NJW 3090 (German Bundesgerichtshof) 3316
Judgment of 14 April 1988, XV Y.B. Comm. Arb. 450 (German Bundesgerichtshof) (1990) 3725,
3854, 3868, 3905, 3915, 3964
Judgment of 26 May 1988, 1988 NJW-RR 1526 (German Bundesgerichtshof) 1143, 1214
Judgment of 26 January 1989, 1989 NJW 1477 (German Bundesgerichtshof) 927, 937, 1879
Judgment of 18 January 1990, 110 BGHZ 104-108; XVII Y.B. Comm. Arb. 503 (German
Bundesgerichtshof) (1992) 2198, 3719, 3825, 3857, 3870, 4007, 4011, 4021, 4047, 4049
Judgment of 26 April 1990, XXI Y.B. Comm. Arb. 532 (German Bundesgerichtshof) (1996)
3880, 3932
Judgment of 12 July 1990, 1990 NJW 3210 (German Bundesgerichtshof) 4026, 4079
Judgment of 12 November 1990, 1991 NJW-RR 423 (German Bundesgerichtshof) 1621, 3827
Judgment of 26 February 1991, XI ZR 349/89 (German Bundesgerichtshof) 1076
Judgment of 23 May 1991, III ZR 144/90 (German Bundesgerichtshof) 483, 484, 494, 946
Judgment of 20 June 1991, III ZR 172/90 (German Bundesgerichtshof) 925
Judgment of 6 June 1991, 1991 NJW 2215 (German Bundesgerichtshof) 389, 1076
Judgment of 10 October 1991, XIX Y.B. Comm. Arb. 200 (German Bundesgerichtshof) 925, 927,
937, 1886
Judgment of 14 May 1992, 1992 NJW 2299 (German Bundesgerichtshof) 3514, 3854
Judgment of 4 June 1992, 1992 WM 1451 (German Bundesgerichtshof) 3332
Judgment of 2 July 1992, 1993 NJW-RR 444 (German Bundesgerichtshof) 3521, 3528
Judgment of 4 November 1992, 120 BGHZ 108 (German Bundesgerichtshof) 937, 950
Judgment of 21 September 1993, 1993 NJW-RR 1519 (German Bundesgerichtshof) 1076
Judgment of 20 January 1994, 125 BGHZ 7 (German Bundesgerichtshof) 833, 838
Judgment of 4 July 1996, III ZR 14/95 (German Bundesgerichtshof) 1344
Judgment of 3 July 1997, 1997 NJW-RR 1289 (German Bundesgerichtshof) 4079
Judgment of 2 October 1997, 1998 NJW 371 (German Bundesgerichtshof) 1580, 1621
Judgment of 23 April 1998, XXIV Y.B. Comm. Arb. 928 (German Bundesgerichtshof) (1999)
668, 769
Judgment of 24 September 1998, 1999 NJW 282 (German Bundesgerichtshof) 927, 937, 950
Judgment of 18 November 1998, VIII ZR 344/97 (German Bundesgerichtshof) 984
Judgment of 4 March 1999, 141 BGHZ 90 (German Bundesgerichtshof) 2037
Judgment of 3 April 2000, II ZR 373/98 (German Bundesgerichtshof) 137, 685
Judgment of 17 August 2000, III ZB 43/99; XXVI Y.B. Comm. Arb. 771 (German
Bundesgerichtshof) (2001) 3699, 3700, 3704, 3705, 3710
Judgment of 14 September 2000, III ZR 33/00 (German Bundesgerichtshof) 949, 1178
Judgment of 14 September 2000, XXVII Y.B. Comm. Arb. 265 (German Bundesgerichtshof)
(2002) 526
Judgment of 2 November 2000, 2001 NJW 373 (German Bundesgerichtshof) 4068
Judgment of 2 November 2000, 2001 NJW 374 (German Bundesgerichtshof) 3412
Judgment of 2 November 2000, 2001 WM 104 (German Bundesgerichtshof) 3275, 3613, 3677
513
Judgment of 2 November 2000, III ZB 55/99 (German Bundesgerichtshof) 3616, 3630
Judgment of 1 February 2001, XXIX Y.B. Comm. Arb. 700 (German Bundesgerichtshof) (2004)
1880, 1917, 3864, 3940, 3944, 3945, 3954, 4046
Judgment of 10 May 2001, XXVIII Y.B. Comm. Arb. 247 (German Bundesgerichtshof) (2003)
1332
P 4562 Judgment of 17 September 2001, 2001 DStR 1853 (German Bundesgerichtshof) 1548
Judgment of 4 October 2001, III ZR 281/00; 2002 NJW-RR 387 (German Bundesgerichtshof)
1178, 1439
Judgment of 6 June 2002, 2003 SchiedsVZ 39 (German Bundesgerichtshof) 1193, 1195, 1217,
1331, 3183, 3477
Judgment of 30 January 2003, III ZB 06/02 (German Bundesgerichtshof) 833, 937, 3511, 3857,
3889
Judgment of 27 March 2003, 2003 SchiedsVZ 133 (German Bundesgerichtshof) 3679
Judgment of 27 March 2003, III ZB 83/02 (German Bundesgerichtshof) 1197, 3814
Judgment of 23 October 2003, III ZB 29/03 (German Bundesgerichtshof) 3472, 3622
Judgment of 25 September 2003, 2004 NJW-RR 1504 (German Bundesgerichtshof) 1548, 3744
Judgment of 20 November 2003, 2004 ZInsO 88 (German Bundesgerichtshof) 1086
Judgment of 27 May 2004, 2004 NJW 2226 (German Bundesgerichtshof) 293, 314, 2131, 3169
Judgment of 27 May 2004, III ZB 53/03 (German Bundesgerichtshof) 3164
Judgment of 19 July 2004, II ZR 65/03; 2004 SchiedsVZ 259 (German Bundesgerichtshof) 785,
1037, 1178
Judgment of 13 December 2004, 2005 DStR 340 (German Bundesgerichtshof) 1548
Judgment of 13 January 2005, 2005 NJW 1125 (German Bundesgerichtshof) 877, 1171, 1214,
1215, 1512
Judgment of 13 January 2005, III ZR 265/03 (German Bundesgerichtshof) 1216
Judgment of 21 September 2005, XXXI Y.B. Comm. Arb. 679 (German Bundesgerichtshof)
(2006) 542, 663, 713, 725, 3744, 3783
Judgment of 14 November 2005, 2006 DStR 808 (German Bundesgerichtshof) 1548
Judgment of 12 January 2006, 2006 SchiedsVZ 101 (German Bundesgerichtshof) 785
Judgment of 12 January 2006, III ZR 214/05 (German Bundesgerichtshof) 843, 1178, 1373
Judgment of 18 January 2007, III ZB 35/06 (German Bundesgerichtshof) 1191
Judgment of 25 January 2007, VII ZR 105/06 (German Bundesgerichtshof) 843, 1178
Judgment of 23 February 2006, 2006 SchiedsVZ 161 (German Bundesgerichtshof) 1214
Judgment of 1 March 2007, 2007 NZBau 298 (German Bundesgerichtshof) 1879
Judgment of 1 March 2007, III ZR 164/06 (German Bundesgerichtshof) 1178
Judgment of 21 May 2007, XXXIV Y.B. Comm. Arb. 504 (German Bundesgerichtshof) (2009)
3921
Judgment of 31 May 2007, 2007 SchiedsVZ 215 (German Bundesgerichtshof) 1486, 1487
Judgment of 31 May 2007, III ZR 22/06 (German Bundesgerichtshof) 1178, 1373
Judgment of 16 July 2007, 2008 DnotZ 213 (German Bundesgerichtshof) 1548
Judgment of 17 April 2008, 2008 NJW-RR 1083 (German Bundesgerichtshof) 3879
Judgment of 21 May 2008, 2008 SchiedsVZ 195 (German Bundesgerichtshof) 1799, 2102, 3920
Judgment of 30 October 2008, 2009 SchiedsVZ 66 (German Bundesgerichtshof) 3616, 3832
Judgment of 30 October 2008, III ZB 17/08 (German Bundesgerichtshof) 3603, 3608, 3617
Judgment of 29 October 2008, XII ZR 165/06 (German Bundesgerichtshof) 390, 984
Judgment of 27 November 2008, 2009 HmbSchRZ 5 (German Bundesgerichtshof) 390, 391,
405, 483
Judgment of 10 December 2008, 2008 DnotZ 542 (German Bundesgerichtshof) 1548
P 4563 Judgment of 13 January 2009, XI ZR 66/08 (German Bundesgerichtshof) 1178, 4114
514
Judgment of 15 January 2009, III ZB 83/07 (German Bundesgerichtshof) 3864, 3874, 4046
Judgment of 30 April 2009, III ZB 91/07 (German Bundesgerichtshof) 1431
Judgment of 2 July 2009, 2009 SchiedsVZ 285 (German Bundesgerichtshof) 3158
Judgment of 23 November 2009, XXXVI Y.B. Comm. Arb. 273 (German Bundesgerichtshof)
(2011) 3814
Judgment of 9 March 2010, 2010 RIW 391 (German Bundesgerichtshof) 1076
Judgment of 8 June 2010, 2011 SchiedsVZ 46 (German Bundesgerichtshof) 753, 1077
Judgment of 30 September 2010, III ZB 69/09 (German Bundesgerichtshof) 3783
Judgment of 30 September 2010, XXXVI Y.B. Comm. Arb. 282 (German Bundesgerichtshof)
(2011) 731, 3163
Judgment of 16 December 2010, 2010 SchiedsVZ 105 (German Bundesgerichtshof) 3157
Judgment of 16 December 2010, XXXVI Y.B. Comm. Arb. 273 (German Bundesgerichtshof)
(2011) 3679, 3772
Judgment of 16 December 2010, III ZB 100/09 (German Bundesgerichtshof) 3703, 3808, 3814
Judgment of 25 January 2011, XI ZR 350/08 (German Bundesgerichtshof) 763
Judgment of 14 July 2011, 2011 NJW 2977 (German Bundesgerichtshof) 1857
Judgment of 30 November 2011, 2012 NJOZ 1207 (German Bundesgerichtshof) 3239
Judgment of 9 January 2013, 2013 GRUR Int 494 (German Bundesverfassungsgericht) 3332
Judgment of 23 April 2013, 2013 SchiedsVZ 229 (German Bundesgerichtshof) 3152
Judgment of 28 January 2014, 2014 SchiedsVZ 98 (German Bundesgerichtshof) (2014) 4044
Judgment of 5 May 2014, III ZR 371/12 (German Bundesgerichtshof) 390, 483
Judgment of 8 May 2014, 2014 SchiedsVZ 151 (German Bundesgerichtshof) 4025
Judgment of 8 May 2014, III ZR 371/12 (German Bundesgerichtshof) 1566, 1605, 1611, 1612
Judgment of 8 May 2014, XXXIX Y.B. Comm. Arb. 401 (German Bundesgerichtshof) 714
Judgment of 24 July 2014, 2014 NJW 3652 (German Bundesgerichtshof) 684, 954, 1189, 1198,
1216, 1315
Judgment of 24 July 2014, III ZB 83/13 (German Bundesgerichtshof) 1214, 1216, 1217
Judgment of 11 December 2014, 2016 SchiedsVZ 41 (German Bundesgerichtshof) 2075
Judgment of 16 December 2015, I ZB 109/14 (German Bundesgerichtshof) 3617
Judgment of 14 January 2016, 2016 NJW-RR 703 (German Bundesgerichtshof) 993, 979
Judgment of 14 January 2016, I ZB 8/15 (German Bundesgerichtshof) 3616
Judgment of 10 March 2016, I ZB 99/14 & I ZB 100/14 (German Bundesgerichtshof) 2092
Judgment of 21 April 2016, Case No. I ZB 7/15 (German Bundesgerichtshof) 3487
Judgment of 7 July 2016, 2017 SchiedsVZ 107 (German Bundesgerichtshof) 1021
Judgment of 7 June 2016, 2016 SchiedsVZ 218 (German Bundesgerichtshof) 685, 922, 2003
Judgment of 7 June 2016, 210 BGHZ 292 (German Bundesgerichtshof) 2203
Judgment of 9 August 2016, I ZB 1/15; 2017 SchiedsVZ 103 (German Bundesgerichtshof) 390,
P 4564 483, 952, 1214
Judgment of 6 October 2016, 2018 SchiedsVZ 53 (German Bundesgerichtshof) 4044
Judgment of 6 October 2016, I ZB 13/15 (German Bundesgerichtshof) 3616
Judgment of 6 October 2016, Liquidator of Walter-Bau AG v. Thailand, XLIII Y.B. Comm. Arb.
446 (German Bundesgerichtshof) (2018) 4010
Judgment of 2 March 2017, 2017 SchiedsVZ 200 (German Bundesgerichtshof) 2172
Judgment of 2 March 2017, XLIII Y.B. Comm. Arb. 452 (German Bundesgerichtshof) (2018)
4010
515
Judgment of 16 March 2017, 2017 ZEV 416 (German Bundesgerichtshof) 1127
Judgment of 6 April 2017, I ZB 32/16 (German Bundesgerichtshof) 1120
Judgment of 2 May 2017, 2017 SchiedsVZ 317 (German Bundesgerichtshof) 1981, 2060, 2452,
3564
Judgment of 2 May 2017, I ZB 1/16 (German Bundesgerichtshof) 1918, 2036
Judgment of 11 May 2017, I ZB 63/16 (German Bundesgerichtshof) 390, 483
Judgment of 11 May 2017, I ZB 75/16 (German Bundesgerichtshof) 1214
Judgment of 22 June 2017, 2018 NJOZ 1239 (German Bundesgerichtshof) 3332
Judgment of 29 June 2017, I ZB 60/16 (German Bundesgerichtshof) 390, 483
Judgment of 9 May 2018, I ZB 77/17 (German Bundesgerichtshof) 1214
Judgment of 31 October 2018, 2018 BeckRS 31390 (German Bundesgerichtshof) 1439
Judgment of 31 October 2018, I ZB 17/18 (German Bundesgerichtshof) 390, 483
Judgment of 14 February 2019, I ZB 33/18 (German Bundesgerichtshof) 3647
Judgment of 28 March 2019, 2019 BeckRS 8071 (German Bundesgerichtshof) 1439, 1481,
1482, 1486
Judgment of 19 September 2019, BGH – I ZB 4/19 (German Bundesgerichtshof) 2682
Judgment of 6 February 2020, I ZB 44/19 (German Bundesgerichtshof) 821
Oberlandesgericht
Judgment of 24 May 1909, 1910 Zeitschrift für Rechtspflege in Bayern 43
(Oberlandesgericht Nürnberg) 386, 388
Judgment of 11 January 1912, 13 Sächsisches Archiv 148 (1912) (Oberlandesgericht Dresden)
378, 386, 388
Judgment of 12 December 1918, 1919 Leipziger Zeitschrift für Deutsches Recht 501
(Oberlandesgericht Marienwerder) 378, 388
Judgment of 21 June 1921, 1921 Hanseatische Gerichtszeitung 191 (Oberlandesgericht
Hamburg) 388
Judgment of 6 February 1924, 1924 JW 1182 (Kammergericht Berlin) 388
Judgment of 28 February 1929, 1929 JW 2617 (Kammergericht Berlin) 388
Judgment of 18 November 1948, 1949 NJW 510 (Oberlandesgericht Frankfurt) 923
Judgment of 14 December 1956, 1957 NJW 1035 (Oberlandesgericht Bremen) 4112
Judgment of 20 January 1971, 1971 NJW 943 (Oberlandesgericht Zweibrücken) 288
Judgment of 8 November 1971, II Y.B. Comm. Arb. 238 (Oberlandesgericht Düsseldorf) (1977)
725
Judgment of 13 March 1973, II Y.B. Comm. Arb. 239 (Oberlandesgericht Karlsruhe) (1977) 845
Judgment of 3 April 1975, II Y.B. Comm. Arb. 241 (Hanseatisches Oberlandesgericht
P 4565 Hamburg) (1977) 2012, 3516, 3842, 3858, 3866, 4044
Judgment of 10 June 1976, IV Y.B. Comm. Arb. 258 (Oberlandesgericht Köln) (1979) 3864,
3878, 3939, 4044
Judgment of 27 July 1978, IV Y.B. Comm. Arb. 266 (Oberlandesgericht Hamburg) (1979) 752,
3832, 3838, 3931, 4047
Judgment of 22 September 1978, V Y.B. Comm. Arb. 262 (Oberlandesgericht Hamburg)
(1980) 779, 874
Judgment of 2 November 1983, XIV Y.B. Comm. Arb. 629 (Oberlandesgericht Hamm) (1989)
328, 3740, 3874, 3877, 4034, 4062
Judgment of 24 September 1985, 1986 NJW 2202 (Oberlandesgericht Frankfurt am Main)
1462
Judgment of 25 March 1987, 1988 NJW 653 (Oberlandesgericht Hamm) 1391
Judgment of 26 January 1989, XVII Y.B. Comm. Arb. 491 (Oberlandesgericht Hamburg) (1992)
3874, 4046
Judgment of 17 February 1989, XV Y.B. Comm. Arb. 455 (Oberlandesgericht Hamburg) (1990)
923, 931, 1439, 1451, 2252, 2236, 2243, 3910, 3941, 3942
Judgment of 7 April 1989, 1990 RIW 585 (Oberlandesgericht München) 555, 1509
516
Judgment of 29 June 1989, 6 U (Kart) 115/88 (Oberlandesgericht Frankfurt am Main) 3616
Judgment of 29 June 1989, XVI Y.B. Comm. Arb. 546 (Oberlandesgericht Frankfurt am Main)
(1991) 3865, 4046, 4049
Judgment of 8 February 1991, 1991 NJW-RR 602 (Oberlandesgericht München) 1427, 1439
Judgment of 16 December 1992, XXI Y.B. Comm. Arb. 535 (Oberlandesgericht Köln) (1996)
714, 717, 725, 734, 867, 3471, 3511, 3856, 3860
Judgment of 6 July 1994, XXII Y.B. Comm. Arb. 702 (Oberlandesgericht Hamm) (1997) 3943
Judgment of 15 November 1994, XXII Y.B. Comm. Arb. 707 (Oberlandesgericht Hamm) (1997)
716, 819, 833, 2244
Judgment of 5 December 1994, 13 ASA Bull. 247 (Oberlandesgericht Dresden) (1995) 1482
Judgment of 5 December 1994, XXII Y.B. Comm. Arb. 266 (Oberlandesgericht Dresden) (1997)
834, 971
Judgment of 8 March 1995, 1996 NJW-RR 1532 (Oberlandesgericht München) 891
Judgment of 17 November 1995, 1996 RIW 239 (Oberlandesgericht Düsseldorf) 1509
Judgment of 10 January 1996, Re the Enforcement of An English Anti-Suit Injunction, 3 VA
11/95, [1997] I.L.Pr. 320 (Oberlandesgericht Düsseldorf) 1401
Judgment of 29 February 1996, 1996 OLGR Bremen 139 (Oberlandesgericht Bremen) 1448
Judgment of 13 February 1997, 1998 NJW-RR 198 (Oberlandesgericht München) 1593
Judgment of 26 June 1997, 1997 RIW 962 (Oberlandesgericht Hamm) 3848
Judgment of 12 March 1998, XXIX Y.B. Comm. Arb. 663 (Oberlandesgericht Hamburg) (2004)
390, 483, 483, 3774, 3789, 4029, 4030, 4084
Judgment of 4 September 1998, 14 Sch 01/98 (Oberlandesgericht Hamburg) 3176, 3555
Judgment of 4 September 1998, 2000 NJW-RR 806 (Oberlandesgericht Hamburg) 1193, 1217
Judgment of 30 July 1998, XXV Y.B. Comm. Arb. 714 (Oberlandesgericht Hamburg) (2000)
730, 734, 752, 923, 2432, 3516, 3812, 3842, 3850, 3858, 3883, 3887, 3918
Judgment of 20 October 1998, XXIX Y.B. Comm. Arb. 673 (Oberlandesgericht Dresden) (2004)
1817, 3905, 4049, 4067
Judgment of 17 September 1998, XXIV Y.B. Comm. Arb. 645 (Bayerisches Oberstes
Landesgericht) (1999) 626, 3783
Judgment of 16 September 1998, 1999 NJW-RR 1085 (Bayerisches Oberstes Landesgericht)
823
Judgment of 16 September 1998, 4 Z SchH 02/98 (Bayerisches Oberstes Landesgericht)
P 4566 1843, 1853
Judgment of 25 September 1998, 11 Sch 01/98 (Oberlandesgericht Dresden) 1087
Judgment of 13 January 1999, 11 Sch 06/98 (Oberlandesgericht Dresden) 4018, 4035
Judgment of 13 January 1999, XXIX Y.B. Comm. Arb. 679 (Oberlandesgericht Dresden) (2004)
887, 890, 3789, 3783
Judgment of 10 February 1999, RPS 2/1999, Supp. 11 Betriebsberater 38/1999
(Oberlandesgericht Hamm) 1215
Judgment of 24 February 1999, 4 Z Sch 17/98 (Bayerisches Oberstes Landesgericht) 3555,
3564
Judgment of 12 May 1999, 23 Sch 01/98 (Oberlandesgericht Frankfurt) 3164
Judgment of 14 May 1999, 1 Sch 02/99 (Oberlandesgericht Hamburg) 937, 3802
Judgment of 4 June 1999, 4 Z SchH 01/99 (Bayerisches Oberstes Landesgericht) 1859
Judgment of 24 June 1999, 16 Sch 01/99 (Schleswig-Holsteinisches Oberlandesgericht) 1216,
3523, 3573, 3804, 3861, 3874, 3888, 3889, 3898, 3918, 3953, 3954
Judgment of 27 June 1999, 4 Z Sch 31/99 (Bayerisches Oberstes Landesgericht) 4077
Judgment of 28 June 1999, 3 Sch 01/99 (Oberlandesgericht Frankfurt) 3273
Judgment of 2 September 1999, XXIX Y.B. Comm. Arb. 697 (Oberlandesgericht Brandenburg)
(2004) 3620, 4025, 4034, 4047
Judgment of 9 September 1999, 1999 BayobLGZ 255 (Bayerisches Oberstes Landesgericht)
1569
Judgment of 29 September 1999, 4 Z Sch 02/99 (Bayerisches Oberstes Landesgericht) 2417,
2472
Judgment of 30 September 1999, 2 Sch 04/99 (Oberlandesgericht Bremen) 3888, 3889
Judgment of 30 September 1999, XXXI Y.B. Comm. Arb. 640 (Oberlandesgericht Bremen)
517
(2006) 1687, 2506, 3299, 3808, 3851, 3859, 3870, 3882, 3888, 3889, 3904, 3917, 3918, 3923,
3926, 4038
Judgment of 15 October 1999, XXVI Y.B. Comm. Arb. 328 (Kammergericht Berlin) (2001) 834
Judgment of 15 October 1999, 28 Sch 17/99 (Kammergericht Berlin) 1198
Judgment of 18 October 1999, XXIX Y.B. Comm. Arb. 700 (Oberlandesgericht Stuttgart)
(2004) 1819, 3192, 3194, 3863, 3938, 3940, 3944, 3945, 4046
Judgments of 18 October 1999 & 1 February 2001, XXIX Y.B. Comm. Arb. 700
(Oberlandesgericht Stuttgart; German Bundesgerichtshof) (2004) 3938
Judgment of 28 October 1999, XXV Y.B. Comm. Arb. 717 (Oberlandesgericht Rostock) (2000)
3963, 3698, 3988
Judgment of 28 October 1999, 1 Sch 03/99 (Oberlandesgericht Rostock) 3964
Judgment of 24 November 1999, 4 Sch 03/99 (Oberlandesgericht Thüringen) 2668
Judgment of 15 December 1999, 4 Z Sch 23/99 (Bayerisches Oberstes Landesgericht) 2448,
2995, 3493, 3536, 3561, 3594, 3647
Judgment of 22 December 1999, 9 Sch 15/99 (Oberlandesgericht Köln) 3568
Judgment of 15 February 2000, XXIX Y.B. Comm. Arb. 715 (Oberlandesgericht Köln) (2004)
3888
Judgment of 28 February 2000, 4 Z SchH 13/99 (Bayerisches Oberstes Landesgericht) 948
Judgment of 16 March 2000, 4 Z Sch 50/99 (Bayerisches Oberstes Landesgericht) 3846,
3504
Judgment of 22 March 2000, 28 Sch 24/99 (Kammergericht Berlin) 1911, 2086
Judgment of 23 March 2000, 2000 IPRspr Nr 184 (Oberlandesgericht Düsseldorf) 3239, 3252
Judgment of 23 March 2000, 6 Sch 02/99 (Oberlandesgericht Düsseldorf) 2268
Judgment of 23 March 2000, XXVI Y.B. Comm. Arb. 329 (2001) (Oberlandesgericht
Düsseldorf) 829, 2233
Judgment of 30 March 2000, XXXI Y.B. Comm. Arb. 652 (Oberlandesgericht Schleswig)
(2006) 711, 718, 752, 874, 887, 890, 1590, 3725, 3770, 3767, 3781, 3789, 3796, 3808, 3810, 3814,
P 4567 4011, 4054
Judgment of 12 April 2000, 4 Z Sch 02/00 (Bayerisches Oberstes Landesgericht) 3751
Judgment of 17 April 2000, 10 Sch 01/00 (1) (Oberlandesgericht Naumburg) 301, 3682
Judgment of 20 June 2000, 4 Z SchH 12/99 (Bayerisches Oberstes Landesgericht) 1843
Judgment of 26 June 2000, 8 SchH 01/00 (Brandenburgisches Oberlandesgericht) 2233,
2268
Judgment of 20 July 2000, 9 Sch 06/00 (Oberlandesgericht Köln) 3164, 3171
Judgment of 11 August 2000, 4 Z Sch 05/00 (Bayerisches Oberstes Landesgericht) 3706
Judgment of 14 September 2000, 9 SchH 30/00 (Oberlandesgericht Köln) 2054, 2057, 2060,
2081, 2085
Judgment of 29 September 2000, 2001 Zeitschrift für Sport und Recht 247
(Oberlandesgericht Hamburg) 855
Judgment of 19 October 2000, 16 Sch 01/00 (Oberlandesgericht Schleswig) 1479, 1481
Judgment of 25 October 2000, 11 Sch 02/00 (Oberlandesgericht Dresden) 3512
Judgment of 26 October 2000, 2011 NJW-RR 711 (Oberlandesgericht Celle) 2744
Judgment of 11 December 2000, 11 SchH 01/00 (Oberlandesgericht Dresden) 3373, 3384
Judgment of 20 February 2001, 11 SchH 02/00 (Oberlandesgericht Dresden) 815, 839
Judgment of 20 February 2001, XXVIII Y.B. Comm. Arb. 261 (Oberlandesgericht Dresden)
(2003) 3934
Judgment of 23 February 2001, 2001 NJOZ 734 (Bayerisches Oberstes Landesgericht) 1859
Judgment of 28 February 2001, 11 Sch 01/01 (Oberlandesgericht Dresden) 1780, 2054, 2057
Judgment of 8 June 2001, 11 Sch 01/01 (Hanseatisches Oberlandesgericht Hamburg) 2995,
3539, 3594, 3647, 3655
Judgment of 14 September 2000, XXVIII Y.B. Comm. Arb. 254 (Oberlandesgericht Köln)
(2003) 3569
Judgment of 14 September 2001, 10 Sch 04/01 (Oberlandesgericht Karlsruhe) 3603, 3612,
3617, 3647
Judgment of 2 October 2001, 8 Sch 03/01 (Oberlandesgericht Celle) 2398
518
Judgment of 25 October 2001, 2002 DStR 557 (Bayerisches Oberstes Landesgericht) 1621
Judgment of 8 November 2001, 6 Sch 04/01 (Hanseatisches Oberlandesgericht Hamburg)
3505
Judgment of 22 November 2001, XXIX Y.B. Comm. Arb. 732 (Oberlandesgericht Rostock)
(2004) 3790
Judgment of 6 December 2001, XXIX Y.B. Comm. Arb. 742 (Oberlandesgericht Stuttgart)
(2004) 941, 3867, 3870, 3888, 3889, 3899, 3910
Judgment of 19 December 2001, 10 SchH 03/01 (Oberlandesgericht Naumburg) 1895, 1911,
2004, 2036
Judgment of 19 December 2001, 2003 SchiedsVZ 134 (Oberlandesgericht Naumburg) 1887,
1895, 2036, 2037
Judgment of 20 December 2001, 1 Sch 13/01 (Oberlandesgericht Stuttgart) 3373, 3384, 3488,
3582
Judgment of 20 December 2001, 1 Sch 16/01 (Oberlandesgericht Stuttgart) 1343
Judgment of 20 December 2001, XXIX Y.B. Comm. Arb. 742 (Oberlandesgericht Stuttgart)
(2004) 3810
Judgment of 10 January 2002, 2 Sch 4/01 (Oberlandesgericht Bremen) 1198
Judgment of 16 January 2002, 4 Z SchH 09/01 (Bayerisches Oberstes Landesgericht) 1843,
1852
Judgment of 23 January 2002, 1 Sch 21/01 (Oberlandesgericht Stuttgart) 3168
Judgment of 21 February 2002, 10 Sch 08/01 (Oberlandesgericht Naumburg) 1343, 2431,
3506
Judgment of 6 May 2002, 2003 SchiedsVZ 185 (Kammergericht Berlin) 904
Judgment of 13 May 2002, 2002 NJW-RR 1437 (Bayerisches Oberstes Landesgericht) 1843,
P 4568 1854
Judgment of 27 May 2002, 23 Sch 06/02 (Kammergericht Berlin) 3622, 3650, 4005
Judgment of 4 June 2002, 1 Sch 22/01 (Oberlandesgericht Stuttgart) 3407, 3657
Judgment of 26 June 2002, 23/29 Sch 16/01 (Kammergericht Berlin) 1843
Judgment of 13 June 2002, XXIX Y.B. Comm. Arb. 747 (Brandenburgisches
Oberlandesgericht) (2004) 3770
Judgment of 15 July 2002, 6 Sch 05/02 (Oberlandesgericht Düsseldorf) 3616
Judgment of 16 July 2002, 1 Sch 08/02 (Oberlandesgericht Stuttgart) 2351, 3612, 3647
Judgment of 16 July 2002, 2003 SchiedsVZ 84 (Oberlandesgericht Stuttgart) 866, 1859, 3543,
3570, 3616, 3569, 3616, 3630
Judgment of 22 July 2002, 17 SchH 13/01 (Oberlandesgericht Hamm) 2004
Judgment of 30 August 2002, 11 Sch 01/02 (Oberlandesgericht Hamburg) 3409
Judgment of 30 August 2002, 11 Sch 02/00 (Hanseatisches Oberlandesgericht Hamburg)
1193, 1331, 3183, 3435
Judgment of 7 October 2002, 2003 NJW-RR 354 (Bayerisches Oberstes Landesgericht) 1178,
1215
Judgment of 29 October 2002, 2003 SchiedsVZ 92 (Saarländisches Oberlandesgericht) 3533
Judgment of 29 October 2002, 4 Sch 02/02 (Saarländisches Oberlandesgericht) 2103
Judgment of 22 November 2002, XXIX Y.B. Comm. Arb. 754 (Bayerisches Oberstes
Landesgericht) (2004) 3959, 3962, 3963, 3967, 4088
Judgment of 26 November 2002, 9 Sch 19/02 (Oberlandesgericht Köln) 2405
Judgment of 12 December 2002, XXIX Y.B. Comm. Arb. 761 (Bayerisches Oberstes
Landesgericht) (2004) 730, 3782
Judgment of 24 January 2003, 11 Sch 06/01 (Oberlandesgericht Hamburg) 2232
Judgment of 24 January 2003, 11 Sch 06/01 (Hanseatisches Oberlandesgericht) 603, 604
Judgment of 24 January 2003, 2003 SchiedsVZ 284 (Oberlandesgericht Hamburg) 252
Judgment of 24 January 2003, XXX Y.B. Comm. Arb. 509 (Hanseatisches Oberlandesgericht
Hamburg) (2005) 559, 820, 825, 890, 3458, 3973
Judgment of 30 January 2003, XXXII Y.B. Comm. Arb. 303 (Oberlandesgericht Düsseldorf)
(2007) 841
Judgment of 11 March 2003, 6 SchH 03/02 (Hanseatisches Oberlandesgericht Hamburg)
2011
519
Judgment of 14 March 2003, 20 Sch 01/02 (Oberlandesgericht Frankfurt) 3273
Judgment of 11 April 2003, 9 SchH 27/02 (Oberlandesgericht Köln) 2092
Judgment of 13 May 2003, 2003 Monatsschrift für Deutsches Recht 1132 (Bayerisches
Oberstes Landesgericht) 3168
Judgment of 13 May 2003, 4 Z Sch 35/02 (Bayerisches Oberstes Landesgericht) 3682
Judgment of 3 June 2003, 9 Sch 06/03 (Oberlandesgericht Köln) 3178
Judgment of 10 July 2003, 26 Sch 01/03 (Oberlandesgericht Frankfurt) 3519, 3561, 3870
Judgment of 4 September 2003, 8 Sch 11/02; XXX Y.B. Comm. Arb. 528 (Oberlandesgericht
Celle) (2005) 672, 778, 724, 730, 1536, 1197, 1343, 3711, 3769, 3770, 3778, 3798
Judgment of 18 September 2003, 17 SchH 07/03 (Oberlandesgericht Hamm) 2092
Judgment of 18 September 2003, XXX Y.B. Comm. Arb. 536 (Oberlandesgericht Celle) (2005)
725, 3781, 3796, 3798
Judgment of 5 October 2004, 2004 SchiedsVZ 316 (Bayerisches Oberstes Landesgericht)
2257, 2360
Judgment of 8 November 2004, XXXIII Y.B. Comm. Arb. 500 (Thüringer Oberlandesgericht)
P 4569 (2008) 4044, 4047
Judgment of 20 November 2003, XXIX Y.B. Comm. Arb. 771 (Bayerisches Oberstes
Landesgericht) (2004) 4008, 4039, 4044
Judgment of 2 December 2003, 29 Sch 2/03 (Oberlandesgericht Hamm) 4078
Judgment of 27 February 2004, 2004 SchiedsVZ 161 (Oberlandesgericht Düsseldorf) 1486
Judgment of 2 April 2004, 9 Sch (H) 22/03 (Oberlandesgericht Köln) 1924, 2017
Judgment of 23 April 2004, 2005 SchiedsVZ 163 (Oberlandesgericht Köln) 4033
Judgment of 23 April 2004, XXX Y.B. Comm. Arb. (Oberlandesgericht Köln) (2005) 3764, 3832,
3855, 3860, 3870, 3926
Judgment of 17 May 2004, 2005 SchiedsVZ 311 (Oberlandesgericht Frankfurt) 3384, 3385
Judgment of 28 June 2004, 11 SchH 01/04 (Hanseatisches Oberlandesgericht Hamburg)
2005
Judgment of 21 July 2004, 2006 Wirtschaft und Wettbewerb 281 (Dusseldorf
Oberlandesgericht) 3619
Judgment of 21 July 2004, VI-Sch (Kart) 3616
Judgment of 21 July 2004, XXXII Y.B. Comm. Arb. 315 (Oberlandesgericht Düsseldorf) (2007)
4005, 4033, 4049, 4054
Judgment of 25 August 2004, 2004 SchiedsVZ 319 (Bayerisches Oberstes Landesgericht)
3610, 3611, 3616, 3622, 3647
Judgment of 23 September 2004, K Trading Co. v. Bayerischen Motoren Werke AG, XXX Y.B.
Comm. Arb. 568 (Bayerisches Oberstes Landgericht) (2005) 733, 734, 752, 3316
Judgment of 23 September 2004, XXX Y.B. Comm. Arb. 568 (Bayerisches Oberstes
Landesgericht) (2005) 1590, 3874, 3915, 3931, 4054
Judgment of 26 October 2004, XXX Y.B. Comm. Arb. 574 (Oberlandesgericht Köln) (2005)
3789, 3799
Judgment of 19 January 2005, XXXI Y.B. Comm. Arb. 663 (Oberlandesgericht Düsseldorf)
(2006) 3159, 3167
Judgment of 27 January 2005, 2005 SchiedsVZ 159 (Oberlandesgericht Dresden) 2011
Judgment of 15 March 2005, 11 Sch 19/05 (Oberlandesgericht Dresden) 2383, 3506, 3846,
3847
Judgment of 20 April 2005, 11 Sch 01/05 (Oberlandesgericht Dresden) 3616, 3617, 4005
Judgment of 20 May 2005, 10 Sch 01/05 (Oberlandesgericht Naumburg) 845, 3164, 3459,
3798
Judgment of 20 May 2005, 2006 SchiedsVZ 103 (Oberlandesgericht Naumburg) 300, 301,
3169
Judgment of 20 June 2005, 2006 SchiedsVZ 223 (Oberlandesgericht Oldenburg) 822
Judgment of 22 June 2005, 2005 SchiedsVZ 308 (Oberlandesgericht München) 3194, 3550,
3897
Judgment of 22 June 2005, 34 Sch 10/05 (Oberlandesgericht München) 3592
Judgment of 12 July 2005, 2006 SchiedsVZ 55 (Oberlandesgericht Hamburg) 2081, 2085
Judgment of 12 July 2005, 9 SchH 01/05 (Oberlandesgericht Hamburg) 2011, 2036, 2090
520
Judgment of 13 July 2005, 2006 NJOZ 4360 (Oberlandesgericht Frankfurt) 3158
Judgment of 26 July 2005, 31 Wx 50/05 (Oberlandesgericht München) 3274
Judgment of 28 July 2005, 2 Sch 4/05 (Oberlandesgericht Koblenz) 3774, 3886
Judgment of 28 July 2005, XXXI Y.B. Comm. Arb. 673 (Oberlandesgericht Koblenz) (2006)
390, 483, 484, 939, 940, 946, 3779, 3789, 3810, 3812
Judgment of 27 September 2005, 24 ASA Bull. 153 (Oberlandesgericht Hamm) (2006) 866,
2927
Judgment of 27 September 2005, XXXI Y.B. Comm. Arb. 685 (Oberlandesgericht Hamm)
(2006) 817, 834, 3810, 3814, 3879, 4029
Judgment of 6 October 2005, XXXII Y.B. Comm. Arb. 322 (Oberlandesgericht Celle) (2007)
3719
P 4570 Judgment of 10 November 2005, 2 Sch 2/2005 (Oberlandesgericht Bremen) 3617
Judgment of 24 November 2005, 2006 SchiedsVZ 219 (Oberlandesgericht Frankfurt am
Main) 3514
Judgment of 28 November 2005, XXXI Y.B. Comm. Arb. 722 (Oberlandesgericht München)
(2006) 3855, 3870, 4044, 4078
Judgment of 20 December 2005, 26 Sch 29/05 (Oberlandesgericht Frankfurt am Main) 3682
Judgment of 15 March 2006, 34 Sch 06/05, XXXIV Y.B. Comm. Arb. 499 (Oberlandesgericht
München) (2009) 3703, 3920, 3921, 3934
Judgment of 26 March 2006, XXXII Y.B. Comm. Arb. 342 (Oberlandesgericht Karlsruhe)
(2007) 3879, 3917
Judgment of 6 February 2006, 34 SchH 10/05 (Oberlandesgericht München) 2066
Judgment of 27 March 2006, 9 Sch 02/05 (Oberlandesgericht Karlsruhe) 3814
Judgment of 15 May 2006, 2006 NJOZ 2836 (Oberlandesgericht Stuttgart) 785
Judgment of 17 May 2006, 2006 IHR 166 (Oberlandesgericht München) 967, 1125
Judgment of 18 May 2006, XXXII Y.B. Comm. Arb. 347 (Kammergericht Berlin) (2007) 3808
Judgment of 17 May 2006, 7 U 1781/06 (Oberlandesgericht München) 1039, 2900
Judgment of 24 May 2006, 2007 SchiedsVZ 53 (Oberlandesgericht Bremen) 1917
Judgment of 30 May 2006, 9 SchH 3/05 (Oberlandesgericht Oldenburg) 3539, 3677
Judgment of 7 June 2006, 11 Sch 02/06 (Oberlandesgericht Dresden) 3472, 3622
Judgment of 26 June 2006, 26 Sch 28/05 (Oberlandesgericht Frankfurt) 721
Judgment of 26 June 2006, XXXII Y.B. Comm. Arb. 351 (Oberlandesgericht Frankfurt) (2007)
864, 3769, 3808, 4164
Judgment of 28 June 2006, 34 SchH 11/05, Principle 1 (Oberlandesgericht München) 2360
Judgment of 29 June 2006, 2006 OLGR 650 (Oberlandesgericht Bremen) 3192
Judgment of 3 July 2006, 2006 SchiedsVZ 281 (Oberlandesgericht Karlsruhe) 3163, 4078
Judgment of 3 July 2006, 9 Sch 01/06 (Oberlandesgericht Karlsruhe) 3814
Judgment of 4 July 2006, 10 Sch 02/06 (Oberlandesgericht Karlsruhe) 2005
Judgment of 5 July 2006, 34 SchH 05/06 (Oberlandesgericht München) 1924, 2006
Judgment of 7 August 2006, 2006 SchiedsVZ 286 (Oberlandesgericht München) 270
Judgment of 10 August 2006, 20 Sch 07/04 (Berlin Kammergericht) 3230, 3705
Judgment of 25 September 2006, 2006 OLGR München 906 (Oberlandesgericht München)
1439
Judgment of 25 September 2006, 34 Sch 12/06 (Oberlandesgericht München) 1490
Judgment of 24 October 2006, 2007 SchiedsVZ 217 (Oberlandesgericht Frankfurt) 815
Judgment of 20 November 2006, Case No. 6 Sch 05/06 (Hanseatisches Oberlandesgericht)
3712
Judgment of 14 December 2006, 8 Sch 14/05 (Oberlandesgericht Celle) 714, 749
Judgment of 14 December 2006, Case No. 8 Sch 14/05 (Oberlandesgericht Celle) 3706
Judgment of 14 December 2006, XXXII Y.B. Comm. Arb. 372 (Oberlandesgericht Celle) (2007)
855, 3798, 3848
Judgment of 20 December 2006, 34 Sch 16/06 (Oberlandesgericht München) 3397, 3409,
3520, 3571, 3630
521
Judgment of 22 January 2007, 34 Sch 18/06 (Oberlandesgericht München) 4005
Judgment of 31 January 2007, XXXIII Y.B. Comm. Arb. 510 (Oberlandesgericht Dresden)
(2008) 3975
Judgment of 4 April 2007, 1 U 232/06 (Oberlandesgericht Karlsruhe) 684
Judgment of 10 May 2007, 2007 SchiedsVZ 278 (Oberlandesgericht Frankfurt) 3184, 3269
Judgment of 10 May 2007, 26 Sch 20/06 (Oberlandesgericht Frankfurt) 3183, 3184, 3677
P 4571 Judgment of 31 May 2007, 2007 IPRspr Nr 218 (Oberlandesgericht Celle) 1214
Judgment of 31 May 2007, 8 Sch 06/06 (Oberlandesgericht Celle) 3517, 3862, 3940
Judgment of 31 May 2007, XXXIII Y.B. Comm. Arb. 524 (Oberlandesgericht Celle) (2008) 3079,
3844, 3926, 4025
Judgment of 3 May 2007, 2007 DStR 1880 (Oberlandesgericht Koblenz) 1621
Judgment of 7 June 2007, 2008 SchiedsVZ 200 (Kammergericht Berlin) 1852
Judgment of 20 July 2007, 26 Sch 3/06 (Oberlandesgericht Frankfurt am Main) 390, 483
Judgment of 14 September 2007, 9 Sch 02/07 (Oberlandesgericht Karlsruhe) 3814, 3892
Judgment of 8 August 2007, 2008 SchiedsVZ 44 (Thüringer Oberlandesgericht) 4025
Judgment of 8 August 2007, 4 Sch 03/06 (Oberlandesgericht Jena) 3616
Judgment of 14 September 2007, XXXIII Y.B. Comm. Arb. 541 (Oberlandesgericht Karlsruhe)
(2008) 3931, 3889
Judgment of 18 September 2007, 1 Sch 04/06 (Oberlandesgericht Rostock) 3561
Judgment of 18 October 2007, 26 Sch 1/07 (Oberlandesgericht Frankfurt) 714, 749, 3809,
3814
3814
3814
Judgment of 20 October 2007, 2011 BeckRS 25398 (Oberlandesgericht Frankfurt am Main)
3872
Judgment of 3 January 2008, 2008 SchiedsVZ 102 (Oberlandesgericht München) 1917, 1923
Judgment of 10 January 2008, 2008 SchiedsVZ 199 (Oberlandesgericht Frankfurt) 2008, 2029
Judgment of 10 January 2008, 26 Sch 21/07 (Oberlandesgericht Frankfurt) 2000, 2005
Judgment of 12 February 2008, 2008 34 SchH 006/07 (Oberlandesgericht München) 390
Judgment of 12 February 2008, 2008 OLGR München 430 (Oberlandesgericht München) 1477
Judgment of 13 March 2008, 16 Sch 04/07 (Oberlandesgericht Schleswig-Holstein) 270
Judgment of 9 April 2008, 2008 DStR 1976 (Oberlandesgericht Naumburg) 1548
Judgment of 17 April 2008, XXXIV Y.B. Comm. Arb. 510 (Kammergericht Berlin) (2009) 3732
Judgment of 7 May 2008, 34 Sch 8/07 (Oberlandesgericht Muenchen) 3630
Judgment of 30 May 2008, 11 Sch 09/07 (Oberlandesgericht Hamburg) 3410, 3412, 3759,
3860
Judgment of 16 June 2008, I-9 U 17/08 (Oberlandesgericht Düsseldorf) 1076
Judgment of 26 June 2008, 26 SchH 02/08 (Oberlandesgericht Frankfurt) 1917
Judgment of 6 August 2008, 11 Sch 02/08 (Oberlandesgericht Dresden) 3940
Judgment of 6 August 2008, 2008 SchiedsVZ 309 (Oberlandesgericht Dresden) 2011, 2031
Judgment of 6 August 2008, XXXIV Y.B. Comm. Arb. 522 (Oberlandesgericht Dresden) (2008)
2036, 3854, 3931, 3963
Judgment of 19 August 2008, 2009 NJW-RR 417 (Oberlandesgericht München) 779
Judgment of 16 October 2008, XXXIV Y.B. Comm. Arb. 527 (Oberlandesgericht Frankfurt )
(2009) 3759, 3957, 3964
Judgment of 17 October 2008, 2008 SchiedsVZ 307 (Oberlandesgericht München) 2257, 2260
Judgment of 24 October 2008, XXXIV Y.B. Comm. Arb. 533 (Oberlandesgericht Frankfurt)
(2009) 3357
Judgment of 30 October 2008, 2009 MDR 465 (Oberlandesgericht Bremen) 1171, 1214
522
Judgment of 21 November 2008, 19 Sch 12/08 (Oberlandesgericht Köln) 3453, 3488, 3519,
3525, 3617
Judgment of 28 November 2008, XXXIV Y.B. Comm. Arb. 536 (Oberlandesgericht Hamm)
(2009) 3517, 3856, 3859
Judgment of 28 November 2008, 25 Sch 09/08 (Oberlandesgericht Hamm) 3940, 3963, 4048
P 4572
Judgment of 19 January 2009, 34 Sch 04/08 (Oberlandesgericht München) 3814
Judgment of 18 February 2009, 11 Sch 07/08 (Oberlandesgericht Dresden) 483, 552, 3874
Judgment of 27 February 2009, 34 Sch 19/08 (Oberlandesgericht München) 3714
Judgment of 27 March 2009, 10 Sch 8/08 (Oberlandesgericht Karlsruhe) 3519
Judgment of 18 June 2009, XXXIV Y.B. Comm. Arb. 510 (Kammergericht Berlin) (2009) 4046
Judgment of 22 June 2009, 34 Sch 26/08 (Oberlandesgericht München) 2397, 3511, 3857,
3913, 4076
Judgment of 22 June 2009, XXXV Y.B. Comm. Arb. 371 (Oberlandesgericht München) (2010)
3616, 3856, 3909
Judgment of 27 August 2009, 26 SchH 03/09 (Oberlandesgericht Frankfurt) 814, 815, 3561,
3798, 3865, 3870
Judgment of 1 September 2009, 34 Sch 14/09 (Oberlandesgericht München) 3713
Judgment of 7 September 2009, 26 Sch 13/09 (Oberlandesgericht Frankfurt am Main) 3505,
3841, 3842
Judgment of 5 October 2009, 34 Sch 12/09 (Oberlandesgericht München) 3493, 3507, 3531,
3533, 3536, 3850
Judgment of 12 October 2009, 26 SchH 03/09 (Oberlandesgericht Frankfurt) 3706
Judgment of 12 October 2009, XXXV Y.B. Comm. Arb. 377 (Oberlandesgericht Frankfurt)
(2010) 748, 1880, 3769, 3945, 3950, 4048
Judgment of 12 October 2009, 34 Sch 13/09 (Oberlandesgericht München) 714
Judgment of 12 October 2009, 34 Sch 20/08 (Oberlandesgericht München) 3708, 3769, 3814
Judgment of 12 October 2009, XXXV Y.B. Comm. Arb. 383 (Oberlandesgericht München)
(2010) 726, 856, 3704
Judgment of 29 October 2009, 26 Sch 12/09 (Oberlandesgericht Frankfurt am Main) 3624,
3943
Judgment of 29 October 2009, 34 Sch 15/09 (Oberlandesgericht München) 3519, 4078
Judgment of 23 November 2009, 34 Sch 13/09 (Oberlandesgericht München) 724
Judgment of 15 December 2008, 2009 SchiedsVZ 237 (Oberlandesgericht Thüringen) 1859
Judgment of 15 December 2009, 34 Sch 14/09 (Oberlandesgericht München) 3706
Judgment of 15 December 2009, I-4 Sch 10/09 (Oberlandesgericht Düsseldorf) 3298, 3510,
3616, 3853, 3869, 3872, 3917
Judgment of 29 January 2010, 34 SchH 11/09 (Oberlandesgericht München) 1884, 1888
Judgment of 3 February 2010, 2010 SchiedsVZ 336 (Oberlandesgericht München) 2228
Judgment of 3 February 2010, 2011 NJOZ 727 (Oberlandesgericht München) 3194
Judgment of 19 April 2010, 6 SchH 02/09 (Oberlandesgericht Hamburg) 843
Judgment of 7 July 2010, 2010 SchiedsVZ 225 (Kammergericht Berlin) 2009
Judgment of 9 August 2010, 11 Sch 01/10 (Oberlandesgericht Brandenburg) 833
Judgment of 12 August 2010, 2011 SchiedsVZ (Kammergericht Berlin) 2001
Judgment of 17 August 2010, 34 SchH 008/10 (Oberlandesgericht München) 1924
Judgment of 23 September 2010, 2011 DStR 1243 (Oberlandesgericht Köln) 1439, 1481
Judgment of 23 November 2010, 2010 SchiedsVZ 50 (Oberlandesgericht München) 754
Judgment of 17 December 2010, 2011 SchiedsVZ 107 (Oberlandesgericht München) 2092
Judgment of 17 December 2010, 34 SchH 6/10 (Oberlandesgericht München) 2138
Judgment of 30 July 2010, 1 Sch 03/10 (Oberlandesgericht Stuttgart) 3533
P 4573 Judgment of 30 July 2010, 2011 SchiedsVZ 49 (Oberlandesgericht Stuttgart) 3869
523
Judgment of 13 January 2011, XXXVII Y.B. Comm. Arb. 220 (Thüringer Oberlandesgericht)
(2012) 3784
Judgment of 17 February 2011, 26 Sch 13/10 (Oberlandesgericht Frankfurt) 3550
Judgment of 4 March 2011, XXXVII Y.B. Comm. Arb. 226 (Oberlandesgericht Naumburg)
(2012) 3869
Judgment of 14 March 2011, 2011 SchiedsVZ 159 (Oberlandesgericht München) 2475
Judgment of 14 March 2011, 34 Sch 08/10 (Oberlandesgericht München) 2991
Judgment of 12 April 2011, 2011 SchiedsVZ 230 (Oberlandesgericht München) 2482
Judgment of 12 April 2011, 34 Sch 28/10 (Oberlandesgericht München) 3493
Judgment of 30 May 2011, 2012 SchiedsVZ 47 (Oberlandesgericht Saarbrücken) 3616, 3647,
4054
Judgment of 30 May 2011, 4 Sch 3/10 (Oberlandesgericht Saarbrücken) 3695, 3774
Judgment of 28 June 2011, 2012 SchiedsVZ 161 (Oberlandesgericht Köln) 3885, 4053
Judgment of 5 July 2011, 34 Sch 09/11 (Oberlandesgericht München) 3493
Judgment of 11 July 2011, 2011 SchiedsVZ 377 (Oberlandesgericht München) 3647
Judgment of 11 July 2011, 34 Sch 15/10 (Oberlandesgericht München) 3809
Judgment of 30 August 2011, 34 SchH 8/11 (Oberlandesgericht München) 1439, 1481
Judgment of 14 November 2011, 34 Sch 10/11 (Oberlandesgericht München) 3493
Judgment of 6 March 2012, Case No. 34 Sch 3/10 (Oberlandesgericht München) 3630
Judgment of 4 June 2012, 20 Sch 10/11 (Kammergericht Berlin) 3630
Judgment of 4 June 2012, 2013 SchiedsVZ 112 (Kammergericht Berlin) 3616
Judgment of 4 January 2012, 2012 SchiedsVZ 101 (Oberlandesgericht Karlsruhe) 3156, 3194,
4044
Judgment of 31 January 2012, XLI Y.B. Comm. Arb. 465 (Oberlandesgericht Koblenz) (2016)
3708, 3769
Judgment of 3 February 2012, XLI Y.B. Comm. Arb. 468 (Oberlandesgericht Hamburg) (2016)
4048
Judgment of 13 February 2012, 26 SchH 15/11 (Oberlandesgericht Frankfurt) 1986, 2009,
2086
Judgment of 29 March 2012, 2012 SchiedsVZ 159 (Oberlandesgericht München) 390, 484
Judgment of 4 July 2012, 2013 SchiedsVZ 112 (Kammergericht Berlin) 3814
Judgment of 27 November 2012, 2013 NJOZ 271 (Oberlandesgericht Koblenz) 3316
Judgment of 21 December 2012, 6 Sch 19/12 (Oberlandesgericht Hamburg) 390, 484
Judgment of 17 January 2013, 20 SchH 9/12 (Kammergericht Berlin) 2092
Judgment of 17 January 2013, 2013 SchiedsVZ 341 (Oberlandesgericht Frankfurt) 3183
Judgment of 13 May 2013, 34 Sch 13/12 (Oberlandesgericht München) 2081
Judgment of 28 June 2013, 2013 SchiedsVZ 291 (Oberlandesgericht München) 2004, 2054,
2057
Judgment of 9 July 2013, 2014 SchiedsVZ 38 (Oberlandesgericht Hamm) 887
Judgment of 10 July 2013, 34 SchH 8/12 (Oberlandesgericht München) 2009, 2010, 2016,
2026, 2036, 2037, 2060, 2066, 2081
Judgment of 20 November 2013, XL Y.B. Comm. Arb. 422 (Oberlandesgericht Thüringer)
(2015) 3940
Judgment of 16 January 2014, 2014 SchiedsVZ 206 (Oberlandesgericht Frankfurt) 3850
Judgment of 16 January 2014, XLI Y.B. Comm. Arb. 480 (Oberlandesgericht Frankfurt) (2016)
P 4574 1686, 1732
Judgment of 21 February 2014, XL Y.B. Comm. Arb. 425 (Oberlandesgericht Köln) (2015) 3700,
3809
Judgment of 26 February 2014, 2014 SchiedsVZ 203 (Oberlandesgericht Köln) 3909
524
Judgment of 26 February 2014, XLI Y.B. Comm. Arb. 484 (Oberlandesgericht Köln) (2016)
1690, 3913, 3929
Judgment of 27 February 2014, 26 Sch 16/13 (Oberlandesgericht Frankfurt am Main) 3617
Judgment of 4 March 2014, 34 Sch 19/13 (Oberlandesgericht München) 2172
Judgment of 11 April 2014, 26 Sch 13/13 (Oberlandesgericht Frankfurt am Main) 3617
Judgment of 16 June 2014, 2014 SchiedsVZ 257 (Oberlandesgericht München) 2028, 2081
Judgment of 7 July 2014, 2014 SchiedsVZ 262 (Oberlandesgericht München) 1047
Judgment of 22 July 2014, 2015 NJOZ 636 (Oberlandesgericht Düsseldorf) 3706
Judgment of 25 September 2014, 26 Sch 27/13 (Oberlandesgericht Frankfurt am Main) 3616
Judgment of 6 October 2014, 2015 BeckRS 10334 (Oberlandesgericht Köln) 3706, 3767
Judgment of 27 October 2014, 19 SchH 17/14 (Oberlandesgericht Köln) 2089
Judgment of 18 December 2014, 26 Sch 3/13 (Oberlandesgericht Frankfurt) 3493
Judgment of 18 December 2014, 34 SchH 3/14 (Oberlandesgericht München) 1217, 2127, 2360
Judgment of 12 January 2015, 2015 BeckRS 100156 (Oberlandesgericht München) 3814
Judgment of 12 January 2015, 34 Sch 17/13 (Oberlandesgericht München) 3321, 3809, 3810
Judgment of 15 January 2015, 2015 SchiedsVZ 40 (Oberlandesgericht München) 4049
Judgment of 15 January 2015, U 1110/14 (Oberlandesgericht München) 871
Judgment of 16 January 2015, 19 Sch 13/14 (Oberlandesgericht Köln) 2172
Judgment of 26 February 2015, 2014 SchiedsVZ 203 (Oberlandesgericht Köln) 3934
Judgment of 25 March 2015, Case Nos. 26 SchH 7/12, 26 Sch 1/13 (Oberlandesgericht
Frankfurt) 3630
Judgment of 4 July 2016, 34 Sch 29/15 (Oberlandesgericht München) 2333, 3493
Judgment of 4 July 2016, 2016 NJOZ 1483 (Oberlandesgericht München) 3388
Judgment of 5 August 2015, 2016 BeckRS 8809 (Oberlandesgericht Hamm) 1485
Judgment of 30 October 2015, 19 Sch 23/14 (Oberlandesgericht Köln) 3769
Judgment of 23 December 2015, 34 SchH 10/15 (Oberlandesgericht München) 288, 301
Judgment of 12 January 2016, 2016 SchiedsVZ 167 (Oberlandesgericht Wien) 2160
Judgment of 29 January 2016, 4 Sch 4/15 (Oberlandesgericht Düsseldorf) 3517, 3862
Judgment of 24 July 2015, 2016 SchiedsVZ 43 (Brandenburg Oberlandesgericht) 3696, 3697,
3708, 3761, 4071
Judgment of 22 September 2016, 34 SchH 14/15 (Oberlandesgericht München) 2016, 2066
Judgment of 23 September 2016, 19 Sch 9/16 (Oberlandesgericht Köln) 3617
Judgment of 31 October 2016, 8 Sch 1/16 (Oberlandesgericht Hamm) 2171
Judgment of 17 November 2016, 34 SchH 13/16 (Oberlandesgericht München) 1924
Judgment of 24 November 2016, 34 SchH 5/16 (Oberlandesgericht München) 1215
Judgment of 2 February 2017, 2017 SchiedsVZ 150 (Oberlandesgericht Frankfurt am Main)
293, 314, 1949, 1952, 2001, 2002
P 4575 Judgment of 2 February 2017, 2018 NJOZ 584 (Oberlandesgericht Frankfurt) 3401
Judgment of 3 January 2018, 2018 BeckRS 3303 (Oberlandesgericht Frankfurt am Main) 3871
Judgment of 22 January 2018, 26 SchH 10/17 (Oberlandesgericht Frankfurt am Main) 2333,
3493
Judgment of 12 February 2018, 13 SchH 2/17 (Kammergericht Berlin) 2060, 2081
Judgment of 6 June 2018, 26 Sch 3/18 (Oberlandesgericht Frankfurt am Main) 3617
Judgment of 8 June 2018, 10 Sch 12/13 (Oberlandesgericht Karlsruhe) 1911
Judgment of 18 June 2018, 2018 BeckRS 42747 (Oberlandesgericht Karlsruhe) 1481, 1482,
1486
Judgment of 18 June 2018, 2019 NJOZ 144 (Oberlandesgericht München) 1481, 1486
525
Judgment of 8 October 2018, 11 Sch 1/17 (Brandenburgisches Oberlandesgericht) 3769
Judgment of 24 January 2019, 26 Sch 2/18 (Oberlandesgericht Frankfurt am Main) 1923,
1924, 2009
Judgment of 24 January 2019, 26 Sch 8/18 (Oberlandesgericht Frankfurt am Main) 2036,
3616, 3627, 3647
Judgment of 25 February 2019, 2019 BeckRS 2887 (Oberlandesgericht Frankfurt am Main)
1481, 1486
Judgment of 7 February 2019, 12 Sch 5/18 (Kammergericht Berlin) 4005, 4036
Judgment of 13 February 2019, 34 SchH 2/18 (Oberlandesgericht München) 2086
Judgment of 14 March 2019, 26 Sch 10/18 (Oberlandesgericht Frankfurt) 3612, 3616
Judgment of 26 June 2019, 2019 SchiedsVZ 283 (Oberlandesgericht München) 2092
Judgment of 3 July 2019, 34 SchH 13/17 (Oberlandesgericht München) 1171
Judgment of 25 November 2019, 2019 BeckRS 38848 (Oberlandesgericht Hamm) 4048
Landgericht
Judgment of 8 June 1967, II Y.B. Comm. Arb. 234 (Landgericht Bremen) (1977) 723, 3276, 3872,
3959, 3964
Judgment of 19 December 1967, II Y.B. Comm. Arb. 235 (Landgericht Hamburg) (1977) 722, 723
Judgment of 23 October 1972, II Y.B. Comm. Arb. 239 (Landgericht Heidelberg) (1977) 1504
Judgment of 16 March 1977, III Y.B. Comm. Arb. 274 (Landgericht Hamburg) (1978) 483, 761
Judgment of 20 April 1977, IV Y.B. Comm. Arb. 261 (Landgericht Hamburg) (1979) 1465, 1470
Judgment of 11 January 1978, IV Y.B. Comm. Arb. 262 (Landgericht Zweibrücken) (1979) 723,
1740, 3593, 3781, 3796, 3841, 3865, 3872, 4024, 4071
Judgment of 20 June 1978, V Y.B. Comm. Arb. 260 (Landgericht München) (1980) 3898
Judgment of 20 January 1983, XII Y.B. Comm. Arb. 486 (Landgericht Bremen) (1987) 3516,
3858, 3841, 4034
Judgment of 10 December 1985, XII Y.B. Comm. Arb. 487 (Landgericht Hamburg) (1987) 3941
Judgment of 29 January 1986, 5 O 203/82 (Landgericht Essen) 1391
Judgment of 27 July 1990, 1991 RIW 419 (Landgericht Hamburg) 3770
Judgment of 2 April 1992, 1992 NJW 3107 (Landgericht Kassel) 542
Judgment of 12 January 1993, 1994 RIW 778 (Landgericht Frankfurt) 2949
Judgment of 4 November 1993, 1994 NJW-RR 425 (Landgericht Mönchengladbach) 1439
Judgment of 8 February 1995, 1996 NJW-RR 500 (Landgericht Giessen) 1047
Judgment of 19 June 1997, 1997 RIW 873 (Landgericht Hamburg) 543
Judgment of 18 September 1997, XXV Y.B. Comm. Arb. 710 (Landgericht Hamburg) (2000)
2995, 3883, 3894, 3897, 3898, 4039
Judgment of 27 June 2002, 2 OH 1728/01 (Landgericht München II) 2027
Judgment of 3 August 2004, 1HK O 1181/04/1 (Landgericht Regensburg) 2640
Judgment of 19 January 2009, XXXV Y.B. Comm. Arb. 362 (Landgericht München) (2010) 3769
P 4576
Judgment of 2 September 2010, 2011 NJW-RR 162 (Landgericht München) 928
Judgment of 15 January 2013, 2013 BeckRS 5902 (Landgericht Köln) 2160
Judgment of 14 July 2014, 2015 BeckRS 2546 (Landgericht Berlin) 2127
Judgment of 24 June 2015, Kinve Solar Power Co., Ltd v. Sun Value GmbH, XLI Y.B. Comm.
Arb. 393 (Landesgericht Ried im Innkreis) (2016) 3825, 3858, 4004, 4005
Judgment of 3 December 2015, 2016 SchiedsVZ 111 (Landgericht Saarbrücken) 1457
Judgment of 13 September 2017, 2017 NZKart 604 (Landgericht Dortmund) 1439, 1459, 1469
Judgment of 6 February 2018, 105 C 100/17 (Amtsgericht Bonn) 1014
Reichsgericht
Judgment of 30 April 1890, 1890 JW 202 (German Reichsgericht) 388, 483
Judgment of 17 January 1891, 27 RGZ 378 (German Reichsgericht) 378, 379, 388
Judgment of 18 May 1904, 58 RGZ 152 (German Reichsgericht) 379, 388
Judgment of 29 November 1904, RGZ 59 (German Reichsgericht) 2122
526
Judgment of 8 February 1907, RGZ 65 (German Reichsgericht) 2182
Judgment of 17 April 1914, 1914 JW 772 (German Reichsgericht) 388
Judgment of 26 March 1926, 1926 Leipziger Zeitschrift für Deutsches Recht 543 (German
Reichsgericht) 388
Judgment of 9 July 1932, RGZ 137 (German Reichsgericht) 1087
Judgment of 12 January 1934, 1934 Hanseatische Rechts-und Gerichtszeitschrift 113
(German Reichsgericht) 388
Greece
Judgment of 1968, Case No. 1193/1968, I Y.B. Comm. Arb. 186 (Greek S.Ct.) (1976) 3740
Judgment of 1973, I Y.B. Comm. Arb. 186 (Greek S.Ct.) (1976) 3695
Judgment No. 3894 of 1976, XIV Y.B. Comm. Arb. 634 (Athens Ct. App.) (1989) 773, 775
Judgment of 14 January 1977, Agrimpex SA v. J. F. Braun & Sons, Inc., IV Y.B. Comm. Arb. 269
(Greek S.Ct.) (1979) 707, 761, 3780, 3810
Judgment No. 426 of 1982, XIV Y.B. Comm. Arb. 636 (Patras Ct. App.) (1989) 3843
Judgment No. 6886 of 1984, XIV Y.B. Comm. Arb. 637 (Athens Ct. App.) (1989) 4007, 4024,
4047
Judgment of 20 March 1997, ANC Maritime Co. v. W. of England Shipowners Mut. Protection &
Indem. Ass’n Ltd, XXIII Y.B. Comm. Arb. 654 (Greek S.Ct.) (1998) 708, 711
Judgment No. 7195 of 2007, XXXIV Y.B. Comm. Arb. 545 (Athens Ct. App.) (2009) 888
Judgment of 23 January 2012 (Greek S.Ct.) 4037
Judgment of 23 January 2012, Decision No. 102/2012 (Greek S.Ct.) 3748
Judgment of 26 January 2012, Case No. 30/2012 (Piraeus Ct. App.) 4037
Judgment of 7 February 2017, Case No. 390/2017 (Greek S.Ct.) 2198, 2199
Hong Kong
Court of Final Appeal
Astro Nusantara Int’l BV v. PT First Media TBK, [2018] HKCFA 12 (H.K. Ct. Fin. App.) 3156
Buton v. Rainbow Joy Shipping Ltd Inc., [2008] HKCFA 30 (H.K. Ct. Fin. App.) 1491
First Laser Ltd v. Fujian Enters. Co. Ltd, [2012] HKCFA 52 (H.K. Ct. Fin. App.) 2903, 2941
Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, [2009] 12
P 4577 HKCFAR 84 (H.K. Ct. Fin. App.) 3724, 3740, 3744, 4044, 4071
Karamchand Rochiram v. Lilaram Gidumal, [1950] 34 HKLR 97 (H.K. Ct. Fin. App.) 1906
Pac. Int’l Lines Pte Ltd v. Tsinlien Metals & Minerals Co. Ltd, XVIII Y.B. Comm. Arb. 180 (H.K.
Ct. Fin. App. 1992) (1993) 1185
Paquito Lima Buton v. Rainbow Joy Shipping Ltd Inc., [2008] HKCFA 30 (H.K. Ct. Fin. App.)
1103
Ryder Indus. Ltd v. Chan Shui Woo, [2015] HKCFA 85 (H.K. Ct. Fin. App.) 2903
Siegfried Adalbert Unruh v. Hans-Joerg Seeberger, [2007] HKCFA 10 (H.K. Ct. Fin. App.) 2904
Unruh v. Seeberger, [2007] 2 HKLRD 414 (H.K. Ct. Fin. App.) 3098
Winnie Lo v. HKSAR, [2012] FACC 2/2011 (H.K. Ct. Fin. App.) 3099
Court of Appeal, High Court (from 1997)/Court of Appeal, Supreme Court (until 1997)
“Lady Muriel” v. Transorient Shipping Ltd, [1995] HKCA 615 (H.K. Ct. App.) 2750, 2751
“Triple V” Inc. v. Star (Universal) Co., [1995] 3 HKC 129 (H.K. Ct. App.) 1843
A v. Eton Props. Ltd, [2009] 4 HKLRD 254 (H.K. Ct. App.) 2748
APEX Tech Inv. Ltd v. Chuang’s Dev. (China) Ltd, [1996] 2 HKC 293 (H.K. Ct. App.) 3525
Astro Nusantara Int’l BV v. PT Ayunda Prima Mitra, [2015] HCCT 45/2010, [2016] HKCA 595,
XLII Y.B. Comm. Arb. 390 (H.K. Ct. App.) 1678, 3724, 3814, 3933
China Merchant Heavy Indus. Co. Ltd v. JGC Corp., [2001] HKCA 248, [2001] 3 HKC 580 (H.K. Ct.
App.) 969, 1009, 1332, 1370
China Ocean Shipping Co. v. Mitrans Shipping Co., [1995] 3 HKC 123 (H.K. Ct. App.) 1548
China Prop. Dev. (Holdings) Ltd v. Mandecly Ltd, [2016] CACV 92 & 93/2015 (H.K. Ct. App.)
3529, 3581
Congo v. FG Hemisphere Assocs. LLC, [2011] HKEC 747 (H.K. Ct. App.) 113
Gao Haiyan v. Keeneye Holdings Ltd, [2012] 1 HKLRD 627 (H.K. Ct. App.) 3570
527
Grand Pac. Holdings Ltd v. Pac. China Holdings Ltd, [2012] 4 HKLRD 1 (H.K. Ct. App.) 113,
3437, 3499, 3724
Grandeur Elec. Co. Ltd v. Cheung Kee Fung Cheung Constr. Co. Ltd, [2006] HKCA 305 (H.K. Ct.
App.) 849, 968
Haiyan v. Keeneye Holdings Ltd, [2012] 1 HKLRD 627 (H.K. Ct. App.) 3827, 3879
Hebei Imp. & Exp. Corp v. Polytek Eng’g Co., [1999] 2 HKCFAR 111 (H.K. Ct. App.) 3603
Hebei Imp. & Exp. Corp. v. Polytek Eng’g Co., XXIV Y.B. Comm. Arb. 652 (H.K. Ct. App. 1999)
(1999) 105, 113, 1354, 2903, 3610, 3611, 3731, 3744, 3877, 3934, 3940, 3944, 3945, 4005, 4007,
4008, 4012, 4013, 4016, 4020, 4044
Hummingbird Music Ltd v. Dino Acconci, [2010] HKLRD 587 (H.K. Ct. App.) 2904
Inc. Owners of Tak Tai Bldg v. Leung Yau Bldg Ltd, [2005] HKCA 87 (H.K. Ct. App.) 1191
Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, [2008]
121 HKC 2003 (H.K. Ct. App.) 3517, 3862
Kenon Eng’g Ltd v. Nippon Kokan Koji KK, [2004] HKCA 101 (H.K. Ct. App.) 301, 819
Kenon Eng’g Ltd v. Nippon Kokan Koji KK, [2004] HKCUI 512 (H.K. Ct. App.) 1156, 3476
Lee v. Kelly McKenzie Ltd, [2004] HKCA 218 (H.K. Ct. App.) 1548
Logy Enter. Ltd v. Haikou City Bonded Area Wansen Prods. Trading Co., XXIII Y.B. Comm. Arb.
660 (H.K. Ct. App. 1997) (1998) 2002, 2182, 3940, 3941, 3943, 4047
New Sound Indus. Ltd v. Meliga (H.K.) Ltd, [2005] HKCU 66 (H.K. Ct. App.) 1180, 1184
New Sound Indus. Ltd v. Meliga Ltd, [2005] HKCA 7 (H.K. Ct. App.) 1369, 1371
Pac. China Holdings Ltd (in liquidation) v. Grand Pac. Holdings Ltd, [2012] HKCA 200 (H.K. Ct.
P 4578 App.) 2927
Pac. China Holdings Ltd v. Grand Pac. Holdings Ltd, [2012] 4 HKLRD 1 (H.K. Ct. App.) 3647,
3538, 3544, 2426, 3541, 3512, 3519, 3539
PC “Triple V” Inc. v. Start (Universal) Co. Ltd, [1995] 3 HKC 129 (H.K. Ct. App.) 1184
PCCW Global Ltd v. Interactive Commc’ns Serv. Ltd, [2006] HKCA 434 (H.K. Ct. App.) 843, 849,
1183, 1186
Polytek Eng’g Co. v. Hebei Imp. & Exp. Corp., XXIII Y.B. Comm. Arb. 666 (H.K. Ct. App. 1998)
(1998) 3543, 3195, 2351
Tai Hing Cotton Mill Ltd v. Glencore Grain Rotterdam BV, [1995] HKCA 626 (H.K. Ct. App.) 366,
367, 1371, 1378
The “Lady Muriel” v. Transorient Shipping Ltd, [1995] HKCA 615 (H.K. Ct. App.) 2713, 2729
Thorn Sec. (H.K.) Ltd v. Cheung Fee Fung Cheung Constr. Co., [2005] 1 HKC 252 (H.K. Ct. App.)
846, 1179, 1183, 1184
Tiong Huat Rubber Factory v. Wah-Chang Int’l Co., XVII Y.B. Comm. Arb. 516 (H.K. Ct. App.
1991) (1992) 3888
Tronic Int’l Pte Ltd v. Topco Scientific Co. Ltd, CACV 235/2013 (H.K. Ct. App.) 3578, 3647
Xiamen Xingjingdi Group Ltd v. Eton Props. Ltd, [2009] 4 HKLRD 353 (H.K. Ct. App.) 3724
Xiamen Xinjingdi Group Ltd v. Eton Props. Ltd, [2011] 1 HKLRD 781 (H.K. Ct. App.) 3740
Xiamen Xinjingdi Group Ltd v. Eton Props. Ltd, [2012] HCLL 13/2011 (H.K. High Ct.) 3764
Court of First Instance, High Court (from 1997)/High Court, Supreme Court (until 1997)
“Triple V” Inc. v. Star (Universal) Co., [1995] 3 HKC 129 (H.K. Ct. First Inst.), aff’d, [1995] HKCA
617 (H.K. Ct. App.) 739
A v. R, [2009] 3 HKLRD 389 (H.K. Ct. First Inst.) 3425, 3582, 3626
A v. R, [2010] 3 HKC 67 (H.K. Ct. First Inst.) 4025
Aggressive Constr. Co. v. Data-Form Eng’g Ltd, [2009] HKCFI 854, [2009] HKCU 1533 (H.K. Ct.
First Inst.) 938, 943, 1371
Ananda Non-Ferrous Metals Ltd v. China Res. Metal & Minerals Co., [1993] 2 HKLR 348 (H.K.
Ct. First Inst.) 349
Arjowiggins HKK2 Ltd v. Shandong Chenming Paper Holdings Ltd, [2018] HKCFI 93 (H.K. Ct.
First Inst) 1395
Arta Props. Ltd v. Li Fu Yat Tso, [1998] HKCU 721 (H.K. Ct. First Inst.) 844
Astel-Peiniger Joint Venture v. Argos Eng’g & Heavy Indus. Co. Ltd, [1994] HKCFI 276, [1994] 3
HKC 328, XX Y.B. Comm. Arb. 288 (H.K. Ct. First Inst.) 740, 891, 990, 1543
Attorney-Gen. v. Vianini Lavori SpA, [1991] HKCFI 221 (H.K. Ct. First Inst.) 868, 1025
Beyond the Network Ltd v. Vectone Ltd, [2005] HKCFI 1187 (H.K. Ct. First Inst.) 844
528
Bio-Chem Tech. (HK) Ltd v. Rich Leaf Int’l (HK) Ltd, [2017] HKCFI 2048 (H.K. Ct. First Inst.)
1443
Brunswick Bowling & Billiards Corp. v. Shanghai Zhonglu Indus. Co. Ltd, [2009] HKCFI 94
(H.K. Ct. First Inst.) 1191, 2297, 2298, 2342, 3439, 3525, 3550, 3546, 3594
Celment v. Primequine Corp. Ltd, [1999] HKCFI 1472 (H.K. Ct. First Inst.) 260
Chee Cheung Hing & Co. Ltd v. Zhong Rong Int’l (Group) Ltd, [2016] HKEC 656 (H.K. Ct. First
Inst.) 1184
Chen Hongqing v. Mi Jingtian, [2017] HKCFI 1148 (H.K. Ct. First Inst.) 2750
Chimbusco Int’l Petroleum (Singapore) Pte Ltd v. Fully Best Trading Ltd, [2015] HKCFI 2196
P 4579 (H.K. Ct. First Inst.) 1378, 1443, 1455
China Nanhai Oil Joint Serv. Corp. Shenzhen Branch v. Gee Tai Holdings Co. Ltd [1994] HKCFI
215 (H.K. Ct. First Inst.) 733, 734, 753, 1197, 1354, 1590, 3435, 3724, 3811, 3906, 3920, 3934, 4054
China Ocean Shipping Co. v. Mitrans Maritime Panama SA, XX Y.B. Comm. Arb. 282 (H.K. Ct.
First Inst. 1993) (1995) 1358
China Ocean Shipping Co. v. Whistler Int’l Ltd, [1999] HKCFI 693 (H.K. Ct. First Inst.) 2357
China State Constr. Eng’g Corp., Guangdong Branch v. Madiford Ltd, [1992] HKCFI 160 (H.K.
Chok Yick Interior Design & Eng’g Co. Ltd v. Fortune World Enters. Ltd, [2010] HKCFI 84 (H.K.
Chongqing Mach. Imp. & Exp. Co. Ltd v. Yiu (Tin Lee Ship Builders & Trading Co.), XXX Y.B.
Comm. Arb. 169 (H.K. Ct. First Inst. 2001) (2005) 3504, 3555
Chung Siu Hong Celment v. Primequine Corp. Ltd, [1999] HKCFI 1472 (H.K. Ct. First Inst.) 684,
836
Co. A v. Co. B, [2018] HKCU 3575 (H.K. Ct. First Inst.) 2627, 2713, 2722, 2734, 2737, 2738, 2741,
2750
Comtec Components Ltd v. Interquip Ltd, [1998] HKCFI 803 (H.K. Ct. First Inst.) 938, 948, 2268
Cont’l Corp. (No. 2) v. Vincenzo Fedele, [1964] HKLR 213 (H.K. Ct. First Inst.) 823
Cont’l Mark Ltd v. Verkehrs-Club de Schweiz, [2001] HKCFI 863 (H.K. Ct. First Inst.), aff’d,
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Credit Agricole Indosuez v. Shanghai Erfangji Co., [2002] HKCFI 94 (H.K. Ct. First Inst.) 2901
Crete Maritime Corp. v. Emirates Shipping Line, [2017] HKCFI 110 (H.K. Ct. First Inst.) 2722
Daily Win Eng’g Ltd v. Owners of Greenwood Terrace, XXX Y.B. Comm. Arb. 168 (H.K. Ct. First
Inst. 2001) (2005) 1369
Dana Shipping & Trading SA v. Sino Channel Asia Ltd, [2016] HCCT 1676 (H.K. Ct. First Inst.)
3724, 4103
Ever Judger Holding Co. Ltd v. Kroman Celik Sanayii Anonim Sirketi, [2015] HKC 246 (H.K. Ct.
First Inst.) 2730
Ever Judger Holding Co. v. Kroman Celik Sanayii Anonim Sirketi, [2015] HKCFI 602 (H.K. Ct.
First Inst.) 1395
F & D Bldg Servs. Eng’g Co. Ltd v. Chevalier (E & M Contracting), [2001] 3 HKCFI 824 (H.K. Ct.
First Inst.) 368, 1370, 1378
FG Hemisphere Assocs. v. Congo, [2008] HKCFI 906 (H.K. Ct. First Inst.) 110, 3733
Fuang Sang Trading Ltd v. Kai Sun Sea Prod. & Food Co. Ltd, [1992] 1 HKLR 40 (H.K. High Ct.)
1171
Fung Sang Trading Ltd v. Kai Sun Sea Prod. & Food Co. Ltd, XVII Y.B. Comm. Arb. 289 (H.K.
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Fung Sang Trading Ltd v. Kai Sun Sea Prods. & Food Co. Ltd, [1991] HKCFI 190 (H.K. Ct. First
Inst.) 1167, 1339, 1860, 2380
Fung Sang Trading Ltd v. Kai Sun Sea Prods. & Food Co. Ltd, [1992] 1 HKLR 40 (H.K. High Ct.)
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Fung v. Henry Wai & Co., [2018] HKCFI 31 (H.K. Ct. First Inst.) 1127
Fustar Chem. Ltd v. Sinochem Liaoning H.K. Ltd, [1996] 2 HKC 407 (H.K. Ct. First Inst.) 938,
943, 1179, 1184, 2380
Gao Haiyan v. Keeneye Holdings Ltd, [2011] HKEC 514 (H.K. Ct. First Inst.) 2012
Gay Constr. Pty v. Caledonian Techmore (Bldgs) Ltd, [1994] 2 HKC 562 (H.K. Ct. First Inst.)
P 4580 740, 887
Getwick Eng’rs Ltd v. Pilecon Eng’g Ltd, [2002] 1020 HKCU 1 (H.K. Ct. First Inst.) 366, 368, 1371
529
Giorgio Armani SpA v. Elan Clothes Co. Ltd, [2019] HKCFI 530 (H.K. Ct. First Inst.) 1443, 1444
Glencore Int’l AG v. Bright China Int’l Ltd, [1998] HKCFI 878 (H.K. Ct. First Inst.) 1378
Gong Ben Hai v. H.K. Int’l Arb. Centre, [2014] HCMP 325/2014 (H.K. High Ct.) 1907
Gong Benhai v. H.K. Int’l Arb. Centre, [2015] 2 HKLRD 537 (H.K. Ct. First Inst.) 2185
Good Year Prof’l Serv. Co. v. Penta-Ocean Constr. Co., [2002] HKCFI 786 (H.K. Ct. First Inst.)
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Gossip Daily Ltd v. Next Media Magazines Ltd, [2018] HKCFI 1951 (H.K. Ct. First Inst.) 1183
Guangdong Agric. Co. v. Conagra Int’l (Far E.) Ltd, [1992] HKCFI 247 (H.K. Ct. First Inst.) 1454,
1455
Guangdong Agric. Co. v. Conagra Int’l (Far E.) Ltd, [1993] HKLR 113 (H.K. Ct. First Inst.) 306,
367, 849, 882, 887, 3698, 3703, 3874
Guangdong Overseas Shenzhen Co. Ltd v. Yao Shun Group Int’l Ltd, [1998] HKEC 904 (H.K. Ct.
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H. Small Ltd v. Goldroyce Garment Ltd, [1994] 2 HKC 526 (H.K. Ct. First Inst.) 725
Hercules Data Comm Co. Ltd v. Koywa Commc’ns Ltd, [2001] HKCFI 71 (H.K. Ct. First Inst.) 990
Hissan Trading Co. Ltd v. Orkin Shipping Corp., [1992] HKCFI 286 (H.K. Ct. First Inst.) 738
Hoo Cheong Bldg Constr. Co. v. Jade Union Inv. Ltd, [2004] HKCFI 21 (H.K. Ct. First Inst.) 1373
ICC Chem. v. Zhuhai Minerals, [1996] 2 HKC 64, 66 (H.K. Ct. First Inst.) 1184
In re Mech-Power H.K.-China Ltd, [1996] HKCFI 307 (H.K. Ct. First Inst.) 1373
Inc. Owners of Hamden Court v. Mega Miles Constr. Co. Ltd, [2015] HKCFI 928 (H.K. Ct. First
Inst.) 416
Inc. Owners of Wing Fai Bldg, Shui Wo Street v. Golden Rise (HK) Project Co. Ltd, [2016] HKC
1492 (H.K. Ct. First Inst.) 849
J.E. Taylor Co. v. Brown, [1990] 1 HKLR 285, 290 (H.K. High Ct.) 1895, 1914
J.J. Agro Indus. (P) Ltd v. Texuna Int’l Ltd, XVIII Y.B. Comm. Arb. 396 (H.K. Ct. First Inst. 1992)
(1993) 3748, 3749, 4037
JE Taylor Co. v. Brown, [1990] 1 HKLR 285, 290 (H.K. High Ct.) 1906
Jiangxi Provincial Metal & Minerals Imp. & Exp. Corp. v. Sulanser Co., [1995] HKCFI 449 (H.K.
Jiangxi Provincial Metal & Minerals Imp. & Exp. Corp. v. Sulanser Co. [1995] 2 HKC 373 (H.K.
Ct. First Inst) 722, 739, 1586, 3799
Joong & Shipping Co. v. Choi Chong-sick, XX Y.B. Comm. Arb. 284 (H.K. High Ct. 1994) (1995)
366
Jung Science Info. Tech. Co. Ltd v. ZTE Corp., [2008] 4 HKLRD 776 (H.K. High Ct.) 2564
Jung Science Info. Tech. Co. v. ZTE Corp., [2008] HKCFI 606 (H.K. Ct. First Inst.) 1923, 2009,
2029
Kaiser (M&E) Decoration Eng’g Co. v. Johnson Controls H.K. Ltd, [2018] HKCFI 1500 (H.K. Ct.
First Inst.) 486
Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXVIII
Y.B. Comm. Arb. 574 (H.K. Ct. First Inst. 2003) 3523, 3687, 3861, 3916
Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, [2003]
HKCFI 390 (H.K. Ct. First Inst.) 1653,1660, 1732, 1739, 2507, 2510
Karaha Bodas Co. LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXXIV
Y.B. Comm. Arb. 577 (H.K. Ct. Fin. App. 2008) (2009) 110
Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, XXVIII Y.B.
P 4581 Comm. Arb. 752 (H.K. Ct. First Inst.) (2003) 3239, 3245, 3257, 3258, 4157
Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, [2003] 4
HKC 488 (H.K. Ct. First Inst.) 1740, 1755
Katran Shipping Co. Ltd v. Kenven Transp. Ltd, [1992] 1 HKC 538 (H.K. Ct. First Inst.) 2630,
2729
Katran Shipping Co. v. Kenven Transp. Ltd, XVIII Y.B. Comm. Arb. 175 (H.K. Ct. First Inst. 1992)
(1993) 349
KB v. S, [2015] HCCT 13/2015 (H.K. Ct. First Inst.) 3724
KB v. S, [2015] HKCFI 1787 (H.K. Ct. First Inst.) 3874
KB v. S, [2016] 2 HKC 325 (H.K. Ct. First Inst.) 3433, 3437
Kenon Eng’g Ltd v. Nippon Kokan Koji KK, [2003] HKCFI 568 (H.K. Ct. First Inst.) 1196
530
Klöckner Pentaplast GmbH & Co. KG v. Advance Tech. (H.K.) Co., [2011] HKEC 941; [2011]
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Kolinker Indus. Equip. Ltd v. Longhill Indus. Ltd, [2004] HKDC 65 (H.K. Dist. Ct.) 1381
Lasmos Ltd v. S.W. PacifiCare Bauxite (HK) Ltd, [2018] HKCFI 426 (H.K. Ct. First Inst.) 1088
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Lee Thai Lai v. Wong Chung Kai, [2003] HKCFI 263 (H.K. Ct. First Inst.) 1548
Leung Kwok Hung v. Johnson Controls H.K. Ltd, [2018] HKCFI 1500 (H.K. Ct. First Inst.) 1378
Leung Kwok Tim t/a Tim Yip Eng’g Co. v. Builders Fed. (H.K.) Ltd, [2001] HKCFI 823 (H.K. Ct.
First Inst.) 368
Leviathan Shipping Co. Ltd v. Sky Sailing Overseas Co. Ltd, [1998] 4 HKC 347 (H.K. Ct. First
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Lin Meng v. Chen Shu Quan, [2012] HKCFI 328; [2012] HCA 1900/2011 (H.K. Ct. First Inst.) 939,
938, 1378, 1414, 1415
Lin v. Chen, [2012] 2 HKLRD 547 (H.K. First Inst.) 416, 3455
Liu Man Wai v. Chevalier Ltd, [2002] HKCFI 399 (H.K. Ct. First Inst.) 1373
Louis Dreyfus Trading Ltd v. Bonarich Int’l (Group) Ltd, [1997] 3 HKC 597 (H.K. Ct. First Inst.)
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Lucky-Goldstar Int’l (H.K.) Ltd v. Ng Moo Kee Eng’g Ltd, [1993] HKCFI 14 (H.K. Ct. First Inst.)
1844
Lucky-Goldstar Int’l (HK) Ltd v. Ng Moo Kee Eng’g Ltd, [1994] Arb. & Disp. Resol. L.J. 49 (H.K.
Ct. First Inst.) 832, 828, 813, 827
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1181, 1184
Nanjing Cereals, Oils Foodstuffs Imp. & Exp. Corp. v. Luckmate Commodities Trading Ltd, XXI
Y.B. Comm. Arb. 542 (H.K. Ct. First Inst. 1994) (1996) 3858, 3859
Nationale d’Opérations Pétrolières de la Côte d’Ivoire Holding v. Keen Lloyd Res. Ltd, [2001]
HKCFI 173; XXIX Y.B. Comm. Arb. 776 (H.K. Ct. First Inst. 2001) (2004) 3724, 3744, 3966, 3963,
3965, 3968, 3965, 3733
Neo Intelligence Holdings Ltd v. Giant Crown Indus. Ltd, [2017] HKCFI 2088 (H.K. Ct. First
Inst.) 1371, 1378
Ng Fung Hong v. ABC, [1998] 1 HKC 213 (H.K. Ct. First Inst.) 3195
Ng Kin Kenneth v. HK Football Ass’n Ltd, [1994] 1 HKC 734 (H.K. Ct. First Inst.) 739
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OCBC Wing Hang Bank Ltd v. Kai Sen Shipping Co. Ltd, [2020] HKCFI 375 (H.K. Ct. First
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Oonc Line Ltd v. Sino-Am. Trade Advancement Co., [1994] HKCU 35 (H.K. Ct. First Inst.) 739
Oonc Lines Ltd v. Sino-Am. Trade Advancement Co. Ltd, [1994] HKCFI 193 (H.K. Ct. First Inst.)
738, 1860
P&O Nedlloyd Ltd v. Wah Hing Seafreight (China) Co. Ltd, [1999] HKCU 1412 (H.K. Ct. First
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P.T. Wearwel Int’l v. Vf Asia Ltd, [1994] 3 HKC 344 (H.K. Ct. First Inst.) 738, 881
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Pac. China Holdings Ltd v. Grand Pac. Holdings Ltd, [2011] 4 HKLRD 188 (H.K. Ct. First Inst.)
3436, 3498, 3545, 3529, 2339, 2342, 3931, 3746, 3540
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(H.K. Ct. First Inst.) 1180, 1183, 1371
Pac. Int’l Lines Pte Ltd v. Tsinlien Metals & Minerals Co., [1992] HKCFI 225; XVIII Y.B. Comm.
Arb. 180 (H.K. Ct. First Inst. 1992) (1993) 738, 1181, 1183, 1184
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531
Paladin Agric. Ltd v. Excelsior Hotel (H.K.) Ltd, [2001] HKCFI 1271; [2001] 2 HKC 215 (H.K. Ct.
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1854
Polytec Overseas Ltd v. Grand Dragon Int’l Holdings Co. Ltd, [2017] HKCFI 604 (H.K. Ct. First
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Prema Birkdale Horticulture (Macau) Ltd v. Venetian Orient Ltd, [2009] HKCFI 657 et seq.
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Qinhuangdao Tongda Enter. Dev. Co. v. Million Basic Co., XIX Y.B. Comm. Arb. 675 (H.K. Ct.
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Safond Shipping Sdn Bhd v. E. Asia Sawmill Corp., [1993] HKCFI 151 (H.K. Ct. First Inst.) 1357,
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Shandong Hongri Acron Chem. JSC v. Petrochina Int’l (H.K.) Corp., [2011] HKCFI 53 (H.K. Ct.
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Shenzhen City Tong Ying Foreign Trade Corp. Ltd v. Alps Co. Ltd, XXX Y.B. Comm. Arb. 170
P 4583 (H.K. Ct. First Inst. 2001) (2005) 3555, 3915
Shenzhen Nan Da Indus. & Trade United Co. v. FM Int’l Ltd, XVIII Y.B. Comm. Arb. 377 (H.K Ct.
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Tommy C.P. Sze. & Co. v. Li & Fung (Trading) Ltd, [2002] HKCFI 682 (H.K. Ct. First Inst.) 366,
849, 938, 969, 1009, 1025
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532
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(H.K. Ct. First Inst.) (2009) 3439, 3598, 3748, 3813, 3901
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Zhejiang Province Garment Imp. & Exp. Co. v. Siemssen & Co. (H.K.) Trading Ltd, XVIII Y.B.
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Other
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366, 367, 881, 891, 990
Owners of Sincere House v. Sincere Co. Ltd, [2005] HKCU 625 (H.K. Lands Tribunal) 366, 368
P 4584
Hungary
Judgment of 5 May 1998, 1999 BH 128 (Hungarian S.Ct.) 3557
Judgment of 7 October 2002, 2003 BH 127 (Hungarian S.Ct.) 3494
Judgment of 11 September 2006, 2007 BH 193 (Hungarian S.Ct.) 3585, 3617
Judgment of 19 November 2014, XLIV Y.B. Comm. Arb. 549 (Hungarian S.Ct.) (2019) 4027, 4072
India
Supreme Court
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3239, 3241, 3246, 3249, 3252, 3720
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234 (Indian S.Ct.) 1023, 1754, 2298, 2729, 2741, 2750, 2751, 2877
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2000
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1524, 1559
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1732
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Giriraj Garg v. Coal India Ltd, [2019] SCC 212 (Indian S.Ct.) 881
P 4585 Gora Lal v. India, (2003) 12 SCC 459 (Indian S.Ct.) 3561
Great Offshore Ltd v. Iranian Offshore Eng’g & Constr. Co., (2008) 14 SCC 240 (Indian S.Ct.)
711, 740, 2345, 2347
Himangni Enters. v. Kamaljeet Singh Ahluwalia, Civil Appeal No. 16850/2017 (Indian S.Ct.)
1128
Hindustan Constr. Co. Ltd v. India, 2019 SCC Online SC 1520 (Indian S.Ct. 2019) 4083
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Judgment of 3 January 2019, Gov’t of Haryana PWD Haryana (B&R) Branch v. MS G.F. Toll
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Judgment of 31 January 2006, Shin Satellite Public Co. Ltd v. Jain Studios Ltd, [2006] 2 SCC
628 (Indian S.Ct.) 3665
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Mehta v. Mehta, XXV Y.B. Comm. Arb. 721 (Indian S.Ct. 1999) (2000) 3158, 3227
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1791, 1690
MMTC v. Sterlite Indus. (India) Ltd, [1996] IXAD SC 25 (Indian S.Ct.) 813
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MS Caravel Shipping Servs. Ltd v. MS Premier Sea Food Exim Ltd, [2018] SC 1252 (Indian
S.Ct.) 855
MS Emaar MGF Land Ltd v. Singh, Review Petition Nos. 2629 & 2630 of 2018 (Indian S.Ct.)
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MS Indtel Tech. Servs. Pvt Ltd v. W.S. Atkins Rail Ltd, [2008] 10 SCC 308 (Indian S.Ct.) 271,
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Nat’l Ins. Co. Ltd v. Boghara Polyfab (P) Ltd, (2009) 1 SCC 267 (Indian S.Ct.) 1860
Nat’l Thermal Power Corp. v. Singer Co., (1992) 3 SCR 106; XVIII Y.B. Comm. Arb. 403, 408
(Indian S.Ct. 1992) (1993) 535, 519, 524, 548, 555, 602, 626, 1732, 1741, 1752, 1754, 2901, 3201,
3241, 3244, 3861
P 4586 Nathani Steels Ltd v. Assoc’d Constr., (1995) Supp 3 SCC 324 (Indian S.Ct.) 3272
NBCC Ltd v. JG Eng’g Pvt Ltd, (2010) 2 SCC 385 (Indian S.Ct.) 3552
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Oil & Natural Gas Comm’n v. W. Co. of N. Am., (1987) 1 SCR 1024 (Indian S.Ct.) 2234
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P.E.C. Ltd v. Austbulk Shipping Sdn Bhd, AIR 2019 SC 105 (Indian S.Ct. 2019) 3724
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Perkins Eastman Architects DPC v. HSCC (India) Ltd, Arb. Application No. 32/2019 (Indian
S.Ct.) 3941, 2000, 2002
Pricol Ltd v. Johnson Controls Enters. Ltd, [2015] 4 SCC 177 (Indian S.Ct.) 817, 834
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1016
Radhakrishnan v. Maestro Eng’rs, (2009) 3 SCALE 403 (Indian S.Ct.) 1414
Radhakrishnan v. MS Maestro Eng’rs, Civil Appeal No. 7019/2009 (Indian S.Ct.) 1126
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Renusagar Power Co. v. Gen. Elec. Co. & Int’l Chamber of Commerce, X Y.B. Comm. Arb. 431
(Indian S.Ct. 1984) (1985) 1447
Reva Elec. Car Co. Pvt Ltd v. Green Mobil, (2012) 2 SC 739 (Indian S.Ct.) 414
RM Inv. & Trading Co. Pvt Ltd (India) v. Boeing Co., 1994 AIR 1136 (Indian S.Ct.) 328, 329, 338
S.N. Prasad v. Monnet Fin. Ltd, (2010) 1 SCC 320 (Indian S.Ct.) 1573
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Sasan Power Ltd v. N. Am. Coal Corp. India Pvt Ltd, (2016) 10 SCC 813 (Indian S.Ct.) 414, 486
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Shah v. Rishabh Enters., [2018] 15 SCC 678 (Indian S.Ct.) 2781
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Shashoua v. Mukesh Sharma, XLIII Y.B. Comm. Arb. 832 (Indian S.Ct. 2017) (2018) 1653, 1669
Shin Etsu Chem. Co. Ltd v. MS Aksh Optifibre Ltd, Civil Appeal No. 5048/2005 (Indian S.Ct.)
1180, 1185, 1318, 1326, 1379, 3425
Shin Satellite Public Co. v. Jain Studios Ltd, [2006] 2 SCC 628 (Indian S.Ct.) 2224
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Shriram EPC Ltd v. Rioglass Solar, AIR 2018 SC 4539 (Indian S.Ct.) 3716
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Svenska Handelsbanken v. Indian Charge Chrome Ltd, XXI Y.B. Comm. Arb. 557 (Indian S.Ct.
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TRF Ltd v. Energo Eng’g Projects Ltd, Civil Appeal No. 5306/2017 (Indian S.Ct.) 2000, 2002
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Venture Global Eng’g v. Satyam Computer Servs. Ltd, [2008] INSC 40 (Indian S.Ct.) 1754,
3202, 3245
Vijay Karia v. Prysmian Cavi e Sistemi Srl, Civil Appeal No. 1544/2020 (Indian S.Ct. 2020)
3724, 3731, 3744, 3753, 3883
Visa Int’l Ltd v. Cont’l Res. (U.S.A.) Ltd, (2009) 2 SCC 55 (Indian S.Ct.) 1860
VO Tractor Exp., Moscow v. MS Tarapore & Co., [1970] 3 SCR 53 (Indian S.Ct.) 2234
World Sport Group Ltd v. MSM Satellite Pte Ltd, Civil Appeal No. 895/2014 (Indian S.Ct.
535
2014) 1414
Young Achievers v. IMS Learning Res. Pvt Ltd, (2013) 10 SCC 535 (Indian S.Ct.) 415
Court of Appeal
Transocean Shipping Agency Ltd v. Black Sea Shipping, XXIII Y.B. Comm. Arb. 713 (Indian Ct.
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High Court
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Addhar Mercantile Private Ltd v. Shree Jagdamba Agrico Exp. Pvt Ltd, [2014] Arb.
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2092
Aircon Beibars FZE v. Heligo Charters Pvt Ltd, Comm. Arb. Pet. 269/2017 (Bombay High Ct.
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Ambuja Neotia Holdings Pvt Ltd v. MS Planet M Retail Ltd, AP No. 9/2015 (Calcutta High Ct.)
1128
Armada (Singapore) Pte Ltd v. Ashapura Minechem Ltd, [2015] SCC OnLine Bom. 4783
(Bombay High Ct.) 3819
Athappan v. Secretariat of Ct., 1236/2008 (Madras High Ct. 2008) 905
Bhushan Steel Ltd v. Singapore Int’l Arb. Centre, [2010] INDLHC 3007 (Delhi High Ct.) 2358,
3245
Brawn Labs. Ltd v. Fittydent Int’l GmbH, (2000) DLT 204 (Delhi High Ct.) 413
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Indonesia
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Judgment of 27 August 2002, Perusahaan Pertambangan Minyak Dan Gas Bumi Negara v.
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Judgment of 9 September 2008, Pertamina v. Karaha Bodas, Case No. 444 PK/Pdt/2007
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Judgment of 26 April 2010, Bungo Raya Nusantara v. Jambi Res., Case No. 64
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Judgment of 9 June 2010, Pertamina v. PT Lirik Petroleum, Case No. 904 K/Pdt.Sus/2009
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Judgment of 27 December 2012, Harvey Nichols & Co. Ltd v. PT Hamparan Nusantara, Case
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Judgment of 18 July 2016, PT Indiratex Spindo v. Everseason Enters. Ltd, Case No. 219
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International Courts
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European Court of Justice
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International Court of Justice and Permanent Court of International Justice
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Case Concerning Application of the International Convention on the Elimination of All Forms
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Case Concerning Avena & Other Mexican Nationals (Mexico v. USA), Order of 5 February
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Case Concerning Certain Norwegian Loans, Separate Opinion of Judge Sir Hersch
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Case Concerning Elettronica Sicula SpA (ELSI) (U.S.A.), Judgment of 20 July 1989, [1989] I.C.J.
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Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.
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Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906
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Case Concerning the Factory Chorzów, PCIJ Series A, No. 9 (P.C.I.J. 1928) 3399
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Frontier Dispute Between Burkina Faso and Mali, [1986] I.C.J. Rep. 554 (I.C.J.) 2557
Interpretation of Judgments 6 & 7 Concerning Case of Factory at Chorzow, Dissenting
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Joint Dissenting Opinion in Case Concerning Application of the International Convention on
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Maritime Delimitation & Territorial Questions Between Qatar & Bahrain, Dissenting Opinion
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Polish Postal Serv. in Danzig, PCIJ Series B, No. 11 (P.C.I.J. 1925) 4109
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International Criminal Tribunal for the Former Yugoslavia
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International Criminal Tribunal for Rwanda
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U.N. Mechanism for International Criminal Tribunals
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Ireland
BAM Building Ltd v. UCD Prop. Dev. Co., [2016] IEHC 582 (Dublin High Ct.) 367
Barnmore Demolition & Civil Eng’g Ltd v. Alandale Logistics Ltd, [2010] No. 5910P (Dublin
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540
Brostrom Tankers AB v. Factorias Vulcano SA, XXX Y.B. Comm. Arb. 591 (Dublin High Ct.
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Euro Petroleum Trading Ltd v. Transpetroleum Int’l Ltd, 2002 Int’l Arb. L. Rev. N-1 (Dublin
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Fyffes plc v. DCC plc, [2005] IEHC 477 (Dublin High Ct.), rev’d on other grounds, [2007] IESC
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Goshawk Dedicated Ltd v. Life Receivables Ireland Ltd, [2008] ILPr 50 (Dublin High Ct.) 1403
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Moohan v. S. & R. Motors [Donegal] Ltd, [2009] IEHC 391 (Dublin High Ct.) 3677
O’Leary Trading as O’Leary Lissarda v. Ryan, [2015] IEHC 820 (Dublin High Ct.) 3500
O’Rourke v. Lunde, 104 A.3d 92 (Vt. 2014) 3667
Osmond Ireland on Farm Business v. McFarland, [2010] IEHC 295 (Dublin High Ct.) 2729
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Snoddy v. Mavroudis, [2013] IEHC 285 (Dublin High Ct.) 3434
Israel
Ahisamach Workers Moshav Coop. Sett. Ltd v. Atura Inv. Ltd, Unpublished Decision (Israeli
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Alia – The Royal Airlines plc v. Tiulei Hagalil Transp., XL Y.B. Comm. Arb. 444 (Tel-Aviv-Yafo
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Atura Indus. Ltd v. Mirabu Indus. Ltd, [2008] Case No. 6248/07 (Jerusalem Dist. Ct.) 3726
Darie Eng’g Ltd v. Alstom Int’l SAS, XXXIX Y.B. Comm. Arb. 413 (Tel Aviv Dist. Ct. 2013) (2014)
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Elbex Video Inc. v. Tyco Bldg Servs. Pte Ltd, Case No. 141/2011 (Israeli S.Ct. 2011) 738
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Epis SA v. Medibar Ltd, XXXI Y.B. Comm. Arb. 786 (Jerusalem Dist. Ct. 2004) (2006) 3570, 3732,
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Hadad v. Dadon, Case No. 1030/15 (Israeli S.Ct. 2015) 1586
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Judgment of 10 August 2017, Case No. 22-ц/796/7347/2017 (Kiev Ct. App.) 3460
Judgment of 15 April 2012, Vuance Ltd v. Dep’t of Material Provisions of Ministry of Internal
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Judgment of 17 March 2010, Pickholz v. Sohachesky, C.A. 10854/07 (Israeli S.Ct.) 3158
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Judgment of 23 November 2004, XXXI Y.B. Comm. Arb. 786 (Jerusalem Dist. Ct.) (2006) 2086
Judgment of 3 March 2008, Atura Indus. Ltd v. Mirabu Indus. Ltd, Case No. 6248/07
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Netanya Municipality v. Netanya Inalienable Assets Ltd, PD 40(3) 29 (Israeli Ct. App. 1986)
954
Proneuron Biotechs. v. Teva Pharm., XXXV Y.B. Comm. Arb. 407 (Israeli S.Ct.) (2010) 968
Tyco Bldg Servs. v. Elbex Video Ltd, XXXV Y.B. Comm. Arb. 409 (Israeli S.Ct. 2010) (2010) 486,
785
Vioans Ltd v. Ukraine Ministry of Material Provisions, XXXVII Y.B. Comm. Arb. 250 (Israeli
Cent. Mag. Ct.) (2012) 3912
Vuance Ltd v. Dep’t of Material Provisions of the Ministry of Internal Affairs of Ukraine, Case
541
No. 12254-11-08 (Israeli Cent. Dist. Ct. 2012) 3864
Zeevi Holding Ltd v. Bulgaria, XXXIV Y.B. Comm. Arb. 632, 635 (Jerusalem Dist. Ct. 2009)
(2009) 110, 3719, 3740
Italy
Italian Corte di Cassazione
Judgment of 27 March 1954, 45 Rev. Critique de Droit Int’l Privé 511 (Italian Corte di
Cassazione) (1956) 547
Judgment of 22 October 1970, 1970 Giustizia Civile Mass. 1103 (Italian Corte di Cassazione)
936
Judgment of 13 December 1971, Ditta Augusto Miserocchi v. SpA Paolo Agnesi, I Y.B. Comm.
Arb. 190 (Italian Corte di Cassazione) (1976) 723
Judgment of 20 January 1977, IV Y.B. Comm. Arb. 279 (Italian Corte di Cassazione) (1979)
3848, 3855
Judgment of 12 May 1977, Scherk Enter. AG v. Société des Grandes Marques, IV Y.B. Comm.
Judgment of 17 April 1978, Menaguale v. Intercommerce, IV Y.B. Comm. Arb. 282 (Italian
Corte di Cassazione) (1979) 821, 825, 1879
Judgment of 18 May 1978, Atlas Gen. Timbers SpA v. Agenzia Concordia Line SpA, V Y.B.
P 4595 Comm. Arb. 267 (Italian Corte di Cassazione) (1980) 719
Judgment of 18 September 1978, Gaetano Butera v. Pietro e Romano Pagnan, IV Y.B. Comm.
Arb. 296 (Italian Corte di Cassazione) (1979) 726, 3808
Judgment of 27 April 1979, VI Y.B. Comm. Arb. 229 (Italian Corte di Cassazione) (1981) 644
Judgment of 11 September 1979, VI Y.B. Comm. Arb. 230 (Italian Corte di Cassazione) (1981)
1580
Judgment of 24 October 1979, 1979 Giustizia Civile Mass. 2444 (Italian Corte di Cassazione)
1446
Judgment of 14 February 1980, VIII Y.B. Comm. Arb. 378 (Italian Corte di Cassazione) (1983)
904
Judgment of 15 April 1980, Lanificio Walter Banci sas v. Bobbie Brooks Inc., VI Y.B. Comm.
Judgment of 15 April 1980, Official Receiver in the Bankr. of Lanificio Walter Banci sas v.
Bobbie Brooks Inc., VI Y.B. Comm. Arb. 233 (Italian Corte di Cassazione) (1981) 706
Judgment of 26 May 1981, Livio v. Prodexport, VII Y.B. Comm. Arb. 345 (Italian Corte di
Cassazione) (1982) 3707
Judgment of 2 July 1981, 1981 Foro It., Rep. Voce Arbitrato No. 61 (Italian Corte di
Cassazione) 418, 485
Judgment of 28 January 1982, IX Y.B. Comm. Arb. 423 (Italian Corte di Cassazione) (1984)
3856
Judgment of 8 February 1982, IX Y.B. Comm. Arb. 418 (Italian Corte di Cassazione) (1984)
3909, 3554, 3918
Judgment of 15 December 1982, Commerce & Navigation Ltd v. Rocco Giuseppe e Figli snc, X
Y.B. Comm. Arb. 464, 465 (Italian Corte di Cassazione) (1985) 3170, 3785
Judgment of 27 June 1983, X Y.B. Comm. Arb. 470 (Italian Corte di Cassazione) (1985) 3845
Judgment of 21 November 1983, X Y.B. Comm. Arb. 478 (Italian Corte di Cassazione) (1985)
814, 815, 820, 821
Judgment of 30 July 1984, Coltellerie Italiane Zoppis v. Arthur Salm Inc., XI Y.B. Comm. Arb.
519 (Italian Corte di Cassazione) (1986) 923, 3732
Judgment of 27 January 1986, XII Y.B. Comm. Arb. 496 (Italian Corte di Cassazione) (1987)
3845, 3848, 3855
Judgment of 12 February 1987, Jassica SA v. Ditta Gioacchino Polojaz, XVII Y.B. Comm. Arb.
525 (Italian Corte di Cassazione) (1992) 3707
Judgment of 3 April 1987, XVII Y.B. Comm. Arb. 529 (Italian Corte di Cassazione) (1992) 3299,
3848, 3856, 4067
Judgment of 16 November 1987, XVI Y.B. Comm. Arb. 585 (Italian Corte di Cassazione) (1991)
1465, 1470
Judgment of 19 November 1987, XIV Y.B. Comm. Arb. 675 (Italian Corte di Cassazione) (1989)
3823, 3855, 4072
Judgment of 8 August 1990, XVII Y.B. Comm. Arb. 545 (Italian Corte di Cassazione) (1992)
1374, 3276, 3788, 3872
542
Judgment of 25 January 1991, XVII Y.B. Comm. Arb. 554 (Italian Corte di Cassazione) (1992)
726
Judgment of 28 March 1991, Universal Peace Shipping Enters. SA v. Montedipe SpA, XVII Y.B.
Comm. Arb. 562 (Italian Corte di Cassazione) (1992) 726
Judgment of 19 December 1991, XVIII Y.B. Comm. Arb. 419 (Italian Corte di Cassazione)
(1993) 3712
Judgment of 15 January 1992, Agracommerz AG v. Privilegiata Fabbrica Maraschino Excelsior
Girolamo Luxardo SpA, XVIII Y.B. Comm. Arb. 427 (Italian Corte di Cassazione) (1993) 258,
3170, 3717
Judgment of 22 February 1992, XVIII Y.B. Comm. Arb. 433 (Italian Corte di Cassazione) (1993)
P 4596 3732, 3823, 3844, 3943, 4005
Judgment of 11 July 1992, Vicerè Livio v. Prodexport, XXII Y.B. Comm. Arb. 715 (Italian Corte
di Cassazione) (1997) 764, 874, 891, 923, 924, 2002, 3823, 3826, 3935, 3941, 3941, 3945, 3950,
3953, 4072, 4031
Judgment of 7 August 1992, No. 9380, XIX Y.B. Comm. Arb. 680 (Italian Corte di Cassazione)
(1994) 2745
Judgment of 15 October 1992, Agrò di Reolfi Piera v. Ro Koproduct oour Produktiva, XX Y.B.
Judgment of 10 November 1992, XIX Y.B. Comm. Arb. 687 (Italian Corte di Cassazione) (1994)
3958
Judgment of 16 November 1992, XIX Y.B. Comm. Arb. 694 (Italian Corte di Cassazione) (1994)
4005
Judgment of 28 October 1993, XX Y.B. Comm. Arb. 739 (Italian Corte di Cassazione) (1993)
726, 939
Judgment of 17 May 1995, XXIII Y.B. Comm. Arb. 719 (Italian Corte di Cassazione) 969
Judgment of 7 June 1995, Walter Thosti Boswau Bauaktiengesellschaft v. Costruire Coop. Srl,
XXII Y.B. Comm. Arb. 727 (Italian Corte di Cassazione) (1997) 3695, 3721, 3725, 3726, 3732,
4062
Judgment of 20 September 1995, Srl Campomarzio Impianti v. Lampart Veypary Gepyar,
XXIV Y.B. Comm. Arb. 698 (Italian Corte di Cassazione) (1995) 3702
Judgment of 20 September 1995, XXIV Y.B. Comm. 698 (Italian Corte di Cassazione) (1999)
3706, 3707
Judgment of 9 May 1996, Arabe des Engrais Phosphates et Azotes v. Gemanco Srl, XXII Y.B.
Comm. Arb. 737 (Italian Corte di Cassazione) (1997) 565, 775, 3768, 3793
Judgment of 8 July 1996, 18 ASA Bull. 384 (Italian Corte di Cassazione) (2000) 1325, 4167,
4169
Judgment of 23 April 1997, Dalmine SpA v. M&M Sheet Metal Forming Mach. AG, XXIV Y.B.
Comm. Arb. 709 (Italian Corte di Cassazione) (1999) 668, 672, 766, 3768, 3769, 3817, 3819,
3823, 3842, 3860
Judgment of 28 July 1998, Glencore Int’l AG v. Soc. Comm. Alluminio Nord, 1998 Foro It., Rep.
Voce Arbitrato No. 68 (Italian Corte di Cassazione) 1446
Judgment of 21 January 2000, De Maio Giuseppe e Fratelli snc v. Interskins Ltd, XXVII Y.B.
Comm. Arb. 492 (Italian Corte di Cassazione) (2002) 3778, 3823
Judgment of 10 March 2000, Krauss Maffei Verfahrenstechnik GmbH v. Bristol Myers Squibb,
XXVI Y.B. Comm. Arb. 816, 820 (Italian Corte di Cassazione) (2001) 559, 801, 1322, 1446
Judgment of 4 May 2000, XXVI Y.B. Comm. Arb. 277 (Italian Corte di Cassazione) (2001) 887
Judgment of 13 October 2000, XXVI Y.B. Comm. Arb. 1141 (Italian Corte di Cassazione) (2001)
346, 363, 364
Judgment of 16 November 2000, Conceria Madera Srl v. Fortstar Leather Ltd, XXVII Y.B.
Judgment of 22 December 2000, Granitalia v. Agenzia Maritima Sorrentina, XXVII Y.B. Comm.
Judgment of 7 February 2001, XXXII Y.B. Comm. Arb. 390 (Italian Corte di Cassazione) (2007)
3912, 4112
Judgment of 8 April 2004, XXXI Y.B. Comm. Arb. 802 (Italian Corte di Cassazione) (2006)
848, 849, 3608, 3649, 3789, 3927, 4027
Judgment of 23 July 2004, Nigi Agricoltura Srl v. Inter Eltra Kommerz und Produktion GmbH,
P 4597 XXXV Y.B. Comm. Arb. 412 (Italian Corte di Cassazione) (2010) 1790, 3926
Judgment of 30 May 2006, XXXII Y.B. Comm. Arb. 406 (Italian Corte di Cassazione) (2007)
3821, 3906, 3932
543
Judgment of 12 January 2007, Pakistan v. Rizzani De Eccher SpA, XXXIII Y.B. Comm. Arb. 600,
604-05 (Italian Corte di Cassazione) (2008) 4158
Judgment of 17 January 2007, P.J. v. Fimez, Case No. 1183 (Italian Corte di Cassazione) 3332
Judgment of 25 May 2007, Aliman v. Meridiana, 2007 Rivista Del l’Arbitrato 601 (Italian
Corte di Cassazione) 1484
Judgment of 14 June 2007, Rudston Prods. Ltd v. Conceria F. Buongiorno, XXXIV Y.B. Comm.
Arb. 639 (Italian Corte di Cassazione) (2009) 722, 730, 3789
Judgment of 12 December 2007, Pakistan v. Rizzania De Eccher SpA, XXXIII Y.B. Comm. Arb.
600 (Italian Corte di Cassazione) (2008) 3778
Judgment of 8 October 2008, Globaltrade Italiana v. E. Point Trading Ltd, XXXIV Y.B. Comm.
Arb. 644 (Italian Corte di Cassazione) (2009) 114, 117, 3706, 3707
Judgment of 19 May 2009, Louis Dreyfus Commodities Italia v. Cereal Mangimi, XXXIV Y.B.
Comm. Arb. 649 (Italian Corte di Cassazione) (2009) 760, 801, 879, 888, 1446, 1483
Judgment of 23 July 2009, Microware v. Indicia Diagnostics, XXXV Y.B. Comm. Arb. 48 (Italian
Corte di Cassazione) (2010) 3706, 3708
Judgment of 16 June 2011, Del Medico v. Soc. Iberprotein, Case No. 13231 (Italian Corte di
Cassazione) 750
Judgment of 19 August 2015, Hotel Columbus Srl v. Ordine Equestre del Santo Sepolcro di
Gerusalemme, Case No. 16901/15 (Italian Corte di Cassazione) 4137
Judgment of 1 September 2015, Case No. 17393 (Italian Corte di Cassazione) 417, 485
Judgment of 24 November 2015, XLI Y.B. Comm. Arb. 50 (Italian Corte di Cassazione) (2016)
1083
Judgment of 14 October 2016, Vittoria Indus. Nord Am. Inc. v. Northwave, Case No. 20880
(Italian Corte di Cassazione) 750
Judgment of 5 July 2017, 2017 LSK 144931 (Italian Corte di Cassazione) 3332
Judgment of 18 September 2017, Bridgestone Euro. NV/SA v. Srl Futura Enter., XLIII Y.B.
Comm. Arb. 481(Italian Corte di Cassazione) (2018) 3798
Judgment of 26 June 2019, Case No. 17159 (Italian Corte di Cassazione) 364
Louis Dreyfus Commodities Italia v. Cereal Mangimi, XXXIV Y.B. Comm. Arb. 649 (Italian
Corte di Cassazione 2008) (2009) 749, 780
Corte di Appello
Judgment of 13 December 1974, Ditte Frey, Milota v. Ditte F. Cuccaro e Figli, I Y.B. Comm. Arb.
193 (Naples Corte di Appello) (1976) 726
Judgment of 20 February 1975, Carters (Merchants) Ltd v. Ferraro, IV Y.B. Comm. Arb. 275
(Naples Corte di Appello) (1979) 328, 3695, 3696, 3726, 3848, 3959, 4072
Judgment of 21 May 1976, III Y.B. Comm. Arb. 277 (Venice Corte di Appello) (1978) 1773, 1774,
1789, 1799, 3928
Judgment of 22 October 1976, SA Tradax Exp. v. SpA Carapelli, III Y.B. Comm. Arb. 279
(Florence Corte di Appello) (1978) 1055, 1079, 1470, 4047, 4062
Judgment of 3 May 1977, IV Y.B. Comm. Arb. 284 (Milan Corte di Appello) (1979) 3750
Judgment of 8 October 1977, Bobbie Brooks, Inc. v. Banci, IV Y.B. Comm. Arb. 289 (Florence
Corte di Appello) (1979) 3789, 3904, 3298, 3959
Judgment of 13 February 1978, VI Y.B. Comm. Arb. 228 (Naples Corte di Appello) (1981) 909,
P 4598 3789
Judgment of 13 April 1978, Rederi Aktiebolaget Sally v. Srl Termarea, IV Y.B. Comm. Arb. 294
(Florence Corte di Appello) (1979) 1772, 1789, 1799, 3920, 3921, 3929, 3930
Judgment of 26 April 1980, ECC 183 (Genoa Corte di Appello) (1981) 105
Judgment of 26 April 1980, VII Y.B. Comm. Arb. 340 (Venice Corte di Appello) (1982) 417, 520
Judgment of 30 April 1980, V Y.B. Comm. Arb. 342 (Genoa Pretore) (1980) 1097
Judgment of 2 May 1980, Efxinos Shipping Co. v. Rawi Shipping Lines Ltd, VIII Y.B. Comm.
Arb. 381 (Genoa Corte di Appello) (1983) 1880, 3298, 3865, 3942
Judgment of 27 December 1980, VIII Y.B. Comm. Arb. 383 (Brescia Corte di Appello) (1983)
3855
Judgment of 14 January 1981, VIII Y.B. Comm. Arb. 386 (Trento Corte di Appello) (1983) 3798,
3891, 3901
Judgment of 26 March 1981, Dimitrios Varverakis v. Compania de Navigacion Artico SA
(Panama), X Y.B. Comm. Arb. 455 (Savona Corte di Appello) (1985) 730
Judgment of 13 October 1981, VIII Y.B. Comm. Arb. 390 (Milan Corte di Appello) (1983) 3781,
544
3796, 4072
Judgment of 17 November 1981, André & Cie. SA v. Molino e Pastificio di Ponte San Giovanni
SpA, X Y.B. Comm. Arb. 458 (Perugia Corte di Appello) (1985) 4031
Judgment of 18 May 1982, Bauer & Graubmann OGH v. Fratelli Cerrone Alfredo e Raffaele, X
Y.B. Comm. Arb. 461 (Naples Corte di Appello) (1985) 3832, 3856
Judgment of 4 December 1982, XXII Y.B. Comm. Arb. 725 (Milan Corte di Appello) (1997) 3649
Judgment of 10 April 1985, XI Y.B. Comm. Arb. 510 (Brescia Corte di Appello) (1986) 4031
Judgment of 3 June 1988, XV Y.B. Comm. Arb. 498 (Florence Corte di Appello) (1990) 106,
3721
Judgment of 30 November 1989, XXI Y.B. Comm. Arb. 571 (Bari Corte di Appello) (1996) 3170,
3781, 3796
Judgment of 3 February 1990, Della Sanara Kustvaart-Bevrachting & Overslagbedrijf BV v.
Fallimento Cap. Giovanni Coppola Srl, XVII Y.B. Comm. Arb. 542 (Genoa Corte di Appello)
(1992) 533, 603, 604, 815, 821, 823, 1677, 3788, 3925
Judgment of 4 October 1991, XVIII Y.B. Comm. Arb. 415 (Milan Corte di Appello) (1993) 3219,
3846
Judgment of 29 November 1991, XXI Y.B. Comm. Arb. 587 (Florence Corte di Appello) (1996)
3707
Judgment of 21 December 1991, SpA Coveme v. Compagnie Française des Isolants, XVIII Y.B.
Comm. Arb. 422 (Bologna Corte di Appello) (1993) 418, 485, 1065
Judgment of 4 December 1992, Allsop Automatic Inc. v. Tecnoski snc, XXII Y.B. Comm. Arb.
725 (Milan Corte di Appello) (1997) 4011
Judgment of 4 February 1993, XIX Y.B. Comm. Arb. 700 (Bologna Corte di Appello) (1994)
3706
Judgment of 2 November 1993, Arabe des Engrais Phosphates et Azotes v. Gemanco Srl, XXII
Y.B. Comm. Arb. 737 (Bari Corte di Appello) (1997) 3818
Judgment of 7 May 1994, Fincantieri-Cantieri Navali Italiani SpA v. Ministry of Defence,
Armement & Supply Directorate of Irak, XXI Y.B. Comm. Arb. 594 (Genoa Corte di Appello)
(1996) 638, 644, 645, 957, 959, 108
Judgment of 24 March 1998, Virgilio De Agostini v. Milloil SpA, XXV Y.B. Comm. Arb. 739
(Italian Corte di Appello) (2000) 1660, 1669
Judgment of 24 March 1998, XXV Y.B. Comm. Arb. 739 (Milan Corte di Appello) (2000) 3195,
3198
Judgment of 2 July 1999, Tema-Frugoli SpA v. Hubei Space Quarry Indus. Co., XXVI Y.B.
P 4599 Comm. Arb. 807 (Milan Corte di Appello) (2001) 4038, 4179
Judgment of 15 October 2001, 37 Riv. Dir. Int’l Priv. Proc. 1021 (Venice Corte di Appello)
(2002) 3332
Judgment of 13 September 2002, Lorenzini v. Madaus, 2003 Corr. Giur. 1626 (Milan Corte di
Appello) 337
Judgment of 13 September 2002, 2004 Rev. Arb. 105 (Milan Corte di Appello) 1036
Judgment of 30 January 2006, Tessuti a Pelo FG SpA v. Chargeurs Wool Pty Ltd, Unreported
Decision (Italian Corte di Appello) 4047
Judgment of 21 March 2006, Nuovo Pignone v. Schlumberger, Unreported Decision
(Florence Corte di Appello) 3622
Judgment of 5 July 2006, Terra Armata Srl v. Tensacciai SpA, 25 ASA Bull. 618 (Milan Corte di
Appello) (2007) 1036
Judgment of 21 July 2006, Terra Armata v. Tensacciai, Unreported Decision (Milan Corte di
Appello) 3622
Judgment of 15 January 2008, Third Millennium Co. SRL v. Guess Inc., XXXVI Y.B. Comm. Arb.
296 (Florence Corte di Appello) (2011) 3455
Judgment of 15 January 2008, XXXVI Y.B. Comm. Arb. 296 (Florence Corte di Appello) (2011)
3907, 3914
Judgment of 29 April 2009, CG Impianti v. Bmaab & Son Int’l Contracting Co., XXXV Y.B.
Comm. Arb. 415 (Milan Corte di Appello) (2010) 3496, 3604, 3656, 3740, 4077
Judgment of 27 February 2019, XLIV Y.B. Comm. Arb. 562 (Rome Corte di Appello) (2019)
3913
Judgment of 10 October 2019, Case No. 1474 (Brescia Corte di Appello) 418
Rederi Aktiebolaget Sally v. Srl Termarea, IV Y.B. Comm. Arb. 294 (Florence Corte di
Appello) (1979) 1786
545
Italian Tribunales
Judgment of 22 March 1976, II Y.B. Comm. Arb. 248 (Milan Tribunale) (1977) 1470
Judgment of 30 June 1976, IV Y.B. Comm. Arb. 277 (Naples Tribunale) (1979) 4062
Judgment of 22 April 1985, Pama Industrie SpA v. Shultz Steel Co., XII Y.B. Comm. Arb. 494
(Verona Tribunale) (1987) 2745
Judgment of 18 July 1987, XVII Y.B. Comm. Arb. 534 (Bologna Tribunale) (1992) 645, 1059,
1061, 1064
Judgment of 8 January 1990, XVII Y.B. Comm. Arb. 539 (Milan Tribunale) (1992) 342
Judgment of 13 February 1991, Adda Officine Elettromeccaniche e Meccaniche v. Alsthom
Atlantique SA, XXI Y.B. Comm. Arb. 580 (Lodi Tribunale) (1996) 1085
Sopac Italiana SpA v. Bukama GmbH, II Y.B. Comm. Arb. 248 (Milan Tribunale 1976) (1977)
1386
Ivory Coast
Toyota Servs. Afrique v. Promotion de Représentation Automobiles, Case No. 97/317 (Côte
d’Ivoire S.Ct. 1997) 2723
Japan
Judgment of 24 July 1917, Oriental Hotel Ltd v. A.D. Larande, Horitsu Shinbun No. 1298
(Osaka App. Cham.) 1732
Judgment of 5 August 1936, Cont’l Ins. Co. v. Fuji Shokai, IV Y.B. Comm. Arb. 115 (Tokyo High
Ct.) (1979) 409
Judgment of 10 April 1953, Compañia de Transportes del Mar SA v. Mataichi KK (Tokyo Dist.
P 4600 Ct.) 410
Judgment of 22 April 1973, Texaco Overseas Tankship Ltd v. Okada Shipping Co., X Y.B.
Comm. Arb. 483 (Osaka Dist. Ct.) (1985) 3844
Judgment of 22 April 1973, X Y.B. Comm. Arb. 483 (Osaka Dist. Ct.) (1985) 3846
Judgment of 17 October 1973, Koji Sato v. Ikeuchi Kenchiku Seisaku KK, 301 Hanrei Taimuzu
227 (Tokyo Dist. Ct.) 410
Judgment of 15 July 1975, Kokusan Kinzoku Kogyo KK v. Guard-Life Corp., IV Y.B. Comm. Arb.
115 (Japanese S.Ct.) (1979) 410, 426, 485
Judgment of 3 May 1980, Ameroido Nihon KK v. Drew Chem. Corp., VIII Y.B. Comm. Arb. 394
(Yokohama Dist. Ct.) (1983) 409, 485, 727, 848, 849, 1465,1470
Judgment of 27 January 1994, XX Y.B. Comm. Arb. 742 (Tokyo High Ct.) (1995) 3698, 3941, 3943
Judgment of 20 May 1994, XX Y.B. Comm. Arb. 745 (Tokyo High Ct.) (1995) 1509
Judgment of 30 May 1994, XX Y.B. Comm. Arb. 745 (Tokyo High Ct.) (1995) 410, 535, 547, 548,
550, 848, 849, 909, 1503
Judgment of 11 July 1997, 51 Minshu (6) 2573 (Japanese S.Ct.) 4037
Judgment of 25 August 1999, Heisei 10 (wa) 3851 (Yokohama Dist. Ct.) 409
Judgment of 25 August 1999, XXVII Y.B. Comm. Arb. 515 (Yokohama Dist. Ct.) (2002) 4017
Judgment of 25 August 1999, Zhong Guo Hua Gong Jian She Qing Dao Gong v. Color Chem.
Indus. KK, XXVII Y.B. Comm. Arb. 515 (Yokohama Dist. Ct.) (2002) 4048
Judgment of 21 October 2005, Taiyo Ink Mfg Ltd v. Tamura Kaken Ltd, Hanrei Jiho No. 1926-
127 (Tokyo Dist. Ct.) 409, 437
Judgment of 26 February 2006, Taiyo Ink Mfg Ltd v. Tamura Kaken Ltd, Case No. LEX/DB
28110611 (Tokyo High Ct.) 410
Judgment of 28 February 2006, Taiyo Ink Mfg Ltd v. Tamura Kaken Ltd (Tokyo Intellectual
Prop. High Ct.), cited in G. Bell (ed.), The UNCITRAL Model Law and Asian Arbitration Laws:
Implementation and Comparisons 82 (2018) 410
Judgment of 28 August 2007, 1991 Hanrei Jiho No. 89 (Tokyo Dist. Ct.) 555
Judgment of 28 July 2009, 1304 Hanrei Taimuzu 292 (Tokyo Dist. Ct.) (2009) 3824, 3836, 3838,
3854, 3874
Judgment of 22 June 2011, 2116 Hanrei Jiho 64 (Tokyo High Ct.) 981
Judgment of 12 December 2017, 2016 (Kyo) No. 43 (Japanese S.Ct.) 2037, 2052
Jordan
Judgment of 7 November 2007, Case No. 1242/2007 (Jordanian S.Ct.) 3556, 3570
Judgment of 10 June 2008, Case No. 206/2008 (Amman Ct. App.) 3079, 3526, 3557, 3647
Judgment of 4 March 2009, Case No. 218/2008 (Amman Ct. App.) 3179
546
Judgment of 2 February 2016, 8(2) Int’l J. Arab Arb. 65 (2016) (Jordanian Ct. Cassation) 418,
487
Kenya
Apa Ins. Co. Ltd v. Chrysanthus Barnabas Okemo, Misc. Application No. 241/2005 (Nairobi
High Ct. 2005) 3543, 3604, 3647, 4078
Assumption Sisters of Nairobi Registered Trustee v. Standard Kebathi, Civil Case No.
497/2004 (Nairobi High Ct.) 1199, 3472
Blue Ltd v. Jaribu Credit Traders Ltd, Civil Case No. 157/2008 (Nairobi High Ct.) 402, 403,
405, 437, 2729
Galgalo v. Musikali Kombo, Civil Case No. 382/2006 (Kenyan High Ct.) 949, 1371
Glencore Grain Ltd v. TSS Grain Millers Ltd, XXXIV Y.B. Comm. Arb. 666 (Mombasa High Ct.
P 4601 2002) (2009) 3706, 3844, 4033
Governors Balloon Safaris Ltd v. Skyship Co. Ltd, Civil Case No. 461/2008 (Nairobi High Ct.)
1379, 1386
ICEA Lion Life Assur. Co. Ltd v. Jomo Kenyatta Univ. of Agric. & Tech., Civil Suit No. 121/2017
(Nairobi High Ct.) 1379
Karanja v. Ndegwa, Civil Case No. 908/2006 (Nairobi High Ct. 2007) 1179
Kenya Oil Co. v. Kenya Petroleum Refineries Ltd, Civil Case No. 782 (Nairobi High Ct. 2009)
366
Kenya Shell Ltd v. Kobil Petroleum Ltd, Civil Application No. 57/2006 (Nairobi Ct. App.)
3437
M-Link Commc’ns Co. v. Commc’n Comm’n of Kenya, Civil Case No. 2071/2000 (Milimani
Comm) (Nairobi High Ct. 2005) 1860
Mugoya Constr. & Eng’g Ltd v. Nat’l Social Sec. Fund Bd of Trustees, Civil Suit No. 59/2005
(Nairobi High Ct.) 948, 1379
Mvungu v. Bruno Rosiello, Misc. Civil Case No. 264/2006 (Nairobi High Ct.) 1358, 1843, 1860
Obuga v. Kenyatta, Civil Case No. 1159/2006 (Nairobi High Ct. 2006) 1179
OJSC Zarubezhstroy Tech. v. Gibb Africa Ltd, XLII Y.B. Comm. Arb. 421 (Nairobi High Ct. 2017)
(2017) 3724, 4017
Oyugi v. Law Soc’y of Kenya, Civil Case No. 482/2004 (Nairobi High Ct. 2005) 1058
Pamela Akora Imenje v. Akora ITC Int’l Ltd, Civil Case No. 368/2005 (Nairobi High Ct. 2007)
1016
Santack Enters. Ltd v. Kenya Bldg Soc’y Ltd, Civil Case No. 298 of 2007 (Nairobi High Ct.)
2729
Sebhan Enters. Ltd v. Westmont Power (Kenya) Ltd, Civil Case No. 239/2005 (Nairobi High
Ct. 2006) 1196
Siginon Maritime Ltd v. Gitutho Assocs., Misc. Civil Application 719/2004 (Mombasa High Ct.
2005) 3550, 3556, 3677
Structural Constr. Co. v. Int’l Islamic Relief, Misc. Case No. 596/2005 (Nairobi High Ct. 2006)
3510, 3854
Tanzanian Nat’l Roads Agency v. Kundan Singh Constr. Ltd, XXXIX Y.B. Comm. Arb. 431
(Kenyan High Ct. 2013) (2014) 4039
Tracer Ltd v. SGS Kenya Ltd, XLIV Y.B. Comm. Arb. 1 (Kenyan High Ct. 2017) (2019) 1677, 1678,
1702
Kuwait
Judgment of 21 November 1988, XXII Y.B. Comm. Arb. 748 (Kuwaiti S. App. Ct.) (1997) 3715,
3717
Liechtenstein
Judgment of 7 June 2013, 2014 SchiedsVZ 34 (Liechtenstein Fürstlicher Oberster
Gerichtshof) 3699
Lithuania
Judgment of 20 October 2008, AB Svenska Petroleum Exploration v. Lithuania, Case No. 3K-
3-510/2008 (Lithuanian S.Ct.) 3882
Judgment of 27 June 2014, L.B. v. State Prop. Fund of Lithuania, Civil Case No. 3K-3-363/2014
(Lithuania S.Ct.) 4137
Judgment of 27 June 2014, XXXIV Y.B. Comm. Arb. 434 (Lithuanian S.Ct.) (2014) 4046, 4072
Judgment of 25 September 2015, XLI Y.B. Comm. Arb. 507 (Lithuanian S.Ct.) (2016) 4035
547
P 4602 Judgment of 23 October 2015, XLI Y.B. Comm. Arb. 510 (Lithuanian S.Ct.) (2016) 4011
Luxembourg
Judgment of 7 June 1993, XX Y.B. Comm. Arb. 1067 (Luxembourg Tribunal d’Arrondissement)
(1995) 1867
Judgment of 24 November 1993, Kersa Holding Co. Luxembourg v. Infancourtage, XXI Y.B.
Comm. Arb. 617 (Luxembourg Cour Supérieure de Justice) (1996) 3239, 3607, 3740, 3980,
4020, 4011, 4012, 4013, 4033, 4045, 4073
Judgment of 28 January 1999, Sovereign Participations Int’l SA v. Chadmore Dev. Ltd, XXIV
Y.B. Comm. Arb. 714 (Luxembourg Cour d’Appel) (1999) 3730
Judgment of 28 January 1999, XXIV Y.B. Comm. Arb. 714 (Luxembourg Cour d’Appel) (1999)
372, 3726, 3732, 3740, 3760, 3980, 4072, 4084
Judgment of 26 July 2005, XXXIX Y.B. Comm. Arb. 443 (Luxembourg Cour d’Appel) (2014)
3980
Judgment of 14 March 2012 XLI Y.B. Comm. Arb. 730 (Luxembourg Cour d’Appel) (2016) 1155
Judgment of 18 December 2013, XL Y.B. Comm. Arb. 457 (Luxembourg Cour d’Appel) (2015)
3980
Judgment of 25 June 2015, XLII Y.B. Comm. Arb. 425 (Luxembourg Cour d’Appel) (2017) 4090
Judgment of 27 April 2017, PEMEX v. Corporacion Mexicana de Mantenimiento Integral S de
RL de CV, XLII Y.B. Comm. Arb. 433 (Luxembourg Cour d’Appel) (2017) 3974, 3980, 4072
Judgment of 27 April 2017, XLII Y.B. Comm. Arb. 428 (Luxembourg Cour d’Appel) (2017) 4038
Judgment of 27 April 2017, XLII Y.B. Comm. Arb. 433 (Luxembourg Cour d’Appel) (2017) 3988
Macau
Judgment of 13 March 2014, XLIV Y.B. Comm. Arb. 582 (Macau Tribunal de Segunda
Instância da Região Administrativa Especial) (2019) 4077, 4048
Judgment of 8 May 2014, XLIV Y.B. Comm. Arb. 587 (Macau Tribunal de Segunda Instância
da Região Administrativa Especial) (2019) 4011
Malaysia
Agrovenus LLP v. Pac. Inter-Link Sdn Bhd, [2014] 3 MLJ 648 (Malaysian Ct. App.) 3778
Arch Reins. Ltd v. Akay Holdings Sdn Bhd, [2019] 1 CLJ 305 (Malaysian Fed. Ct.) 1127
Best Ltd v. ACE Jerneh Ins., [2015] MLJU 256 (Malaysian Ct. App.) 881
CMS Energy SDN RHB v. Poson Corp., [2008] MLJ 561 (Malaysian High Ct.) 1378
Coneff Corp. Sdn Bhd v. Vivocom Enter. Sdn Bhd, [2019] MLJU 1666 (Malaysian High Ct.) 2573
Harris Adacom Corp. v. Perkom Sdn Bhd, [1994] 3 MLJ 504 (Kuala Lumpur High Ct.)XXII Y.B.
Comm. Arb. 753 (Kuala Lumpur High Ct. 1993) (1997) 1584, 4026
India v. Cairn Energy India Pty Ltd, [2009] Rayuan Sivil No. W-02-333-2009 (Malaysian S.Ct.)
3239
India v. Cairn Energy India Pty Ltd, [2010] Rayuan Civil No. 02(f)–7–2010(W) (Malaysian S.Ct.)
1713, 3589
Judgment of 15 August 2016, Press Metal Sarawak Sdn Bhd v. Etiqa Takaful Bhd, XLII Y.B.
Comm. Arb. 733 (Malaysian Fed. Ct.) (2017) 1156
Judgment of 17 August 2017, Thai-Lao Lignite Co., Ltd v. Laos, XLIII Y.B. Comm. Arb. 836
(Malaysian Fed. Ct.) (2018) 1332
Kausar Corp. Sdn Bhd v. Majlis Amanah Rakyat, [2009] 1 LNS 1766 (Malaysian High Ct.) 4019
Kerajaan Republik Demokratik Rakyat Laos v. Hongsa Lignitwe Co. Ltd, Case No. D-24NCC
(ARB)-7-2010 (Malaysian Trial Ct. 2012) 2767, 2816
P 4603 Laos v. Hongsa Lignitwe Co., [2012] D-24NCC (ARB)-7-2010 (Malaysian Trial Ct.) 3550
Lombard Commodities Ltd v. Alami Vegetable Oil Prods. Sdn Bhd, [2010] 1 CLJ 137
(Malaysian S.Ct.) 3239
Majlis Perbandaran Seremban v. Maraputra Sdn Bhd, [2018] MYCA 193 (Malaysian High Ct.)
936
Malaysia v. Nurhima Kiram Fornan, Originating Summons No. BKI-24NCvC-190/12-2019
(HC2) (Malaysian High Ct.) 1415
Malaysia v. Zublin Muhibbah Joint Venture, [1990] 3 MLJ 125 (Malaysian High Ct.) 3069
MCIS Ins. Bhd v. Assoc’d Cover Sdn Bhd, [2001] 2 MLJ 561 (Kuala Lumpur High Ct.) 3268
Press Metal Sarawak Sdn Bhd v. Etiqa Takaful Bhd, [2016] 5 MLJ 417; XLII Y.B. Comm. Arb. 773
(Malaysian Fed. Ct. 2016) (2017) 1378, 1444, 1458
548
R Kathiravelu all Ramasamy v. Am. Home Ins. Co. Malaysia, [2009] 1 MLJ 572 (Malaysian Ct.
App.) 844
Sarawak Shell v. PPES Oil & Gas, (1998) Arb. & Disp. Resol. L.J. 356 (Kuala Lumpur Ct. App.)
1079
Thai-Lao Lignite Co. Ltd v. Laos, XLIII Y.B. Comm. Arb. 836 (Malaysian Fed. Ct.) (2018) 1332,
1653, 1666, 1735
Thai-Lao Lignite v. Laos, (2015) C.A. No. 02(f)-91-12/2015 (Malaysian Fed. Ct.) 3584
Tindak Murni Sdn Bhd v. Juang Setia Sdn Bhd, [2020] MLJU 232 (Malaysian Fed. Ct.) 1378
TLC Pan Afric Impex (U) Ltd v. Bank plc, [2008] UGCommC 18 (Comm) (Kampala High Ct.)
2729
Usahasama SPNB-LTAT Sdn Bhd v. ABI Constr. Sdn Bhd, [2016] 4 MLRH 511 (Malaysian High
Ct.) 3485
Marshall Islands
Boreta Ltd v. Constant Fin. Ltd, XLIII Y.B. Comm. Arb. 519 (Marshall Islands High Ct. 2012)
(2018) 4083
Mauritius
Judgment of 28 March 2014, XXXIX Y.B. Comm. Arb. 447 (Mauritius S.Ct.) (2014) 3725
Judgment of 31 May 2019, State Trading Corp. v. Betamax Ltd, SCJ 154 (Mauritius S.Ct.) (2019)
3622
Mexico
Teléfonos de México, SA de CV, Amparo en Revision 759/2003 (Mexican Corte Suprema de
Justícia) 1735
Judgment of 24 February 1977, IV Y.B. Comm. Arb. 301 (Mexican Corte Suprema de Justicia)
(1979) 2384
Judgment of 24 February 1977, Presse Office SA v. Centro Editorial Hoy SA, IV Y.B. Comm. Arb.
301 (Mexican Tribunal Superior de Justicia) (1979) 3843
Judgment of 1 August 1977, IV Y.B. Comm. Arb. 302 (Mexican Tribunal Superior de Justicia)
(1979) 3505, 3695, 3843
Judgment of 12 June 2001 (Mexican Juzgado Vigésimo Quinto de lo Civil en el Distrito
Federal) 3570
Judgment of 30 June 2004, Teléfonos de México v. Sociedad Anónima de Capital Variable,
Amparo en Revision 759/2003 (Mexican Suprema Corte de Justicia) 2333
Judgment of 1 July 2004, Desarrollos Empresariales SA de CV v. Grupo Radio Centro SA de CV,
P 4604 Case No. R.C. 222/2004 (Décimo Segundo Tribunal Colegiado en Materia Civil) 1179
Judgment of 19 May 2005, Serv. Admin. de Emergencia SA de CV v. ADT Sec. Servs. SA de CV,
Case No. R.C. 14/2005 (Tercer Tribunal Colegiado en Materia Civil) 1179
Judgment of 11 January 2006, Case No. 51/2005 (Mexican Corte Suprema de Justicia) 1162
Judgment of 11 January 2006, Tesis Jurisprudencial 25/2006, Contradicción de Tesis
51/2005-PS (Mexican Nación Suprema Corte de Justicia) 1179
Judgment of 16 December 2009, Pemex Exploración v. Corp. Mexicana de Mantenimiento
Integral SA de CV, Case No. SAP M 10840/2009 (Mexican Juzgado Noveno de Distrito en
Materia Civil en el Distrito Federal) 1199
Judgment of 5 September 2016, Case No. 410/2016-I (Mexican Tribunal Civil del Séptimo
Distrito Federal) (2016) 2723, 2742, 2751
Moldavia
Judgment of 20 January 2011, Srl “Donteh-Plus” v. Srl “Domotehnica-Nord,” XLII Y.B. Comm.
Arb. 437 (Moldavian S.Ct.) (2017) 3504, 3842, 3844, 3852
Judgment of 3 February 2011, Srl “Svet Construct” v. Mironiac, XLII Y.B. Comm. Arb. 439
(Moldavian S.Ct.) (2017) 3818?
Judgment of 22 June 2016, Landmaschinen Vertrieb GmbH v. Srl “Agrogled,” XLII Y.B. Comm.
Arb. 444 (Moldavian S.Ct.) (2017) 3740
Morocco
Judgment of 21 June 1983, Office Nat’l du Thé et du Sucre v. Philippines Sugar Co. Ltd, XXI
Y.B. Comm. Arb. 627 (Casablanca Cour d’Appel) (1996) 708, 710, 717, 775, 3471
Judgment of 16 June 2016, Decision No. 250/1 (Moroccan Cour de Cassation) 2995, 3593
Netherlands
Hoge Raad (Supreme Court)
549
Judgment of 21 February 1913, Offermeijer v. Portheine, 1913 Nederlandse Jurisprudentie
584 (Netherlands Hoge Raad) 3451
Judgment of 6 December 1963, 1964 Neder. Juris. No. 43 (Netherlands Hoge Raad) 486, 954
Judgment of 7 November 1975, Européenne d’Etudes et d’Enterprise v. Yugoslavia, I Y.B.
Comm. Arb. 195 (Netherlands Hoge Raad) (1976) 3725
Judgment of 22 December 1992, Princess Juliana Int’l Airport NV v. Istituto Nazionale di
Credito per il Lavoro Italiano all’Estero SpA, XXII Y.B. Comm. Arb. 768 (Netherlands
Gemeenschappelijk Hof van Justitie) (1997) 903, 1011
Judgment of 24 October 1997, Princess Juliana Int’l Airport NV v. Mediocredito Toscano SpA,
1997 RvdW 202 (Netherlands Hoge Raad) 4033
Judgment of 20 January 2006, Case No. LJN:AU4523 (Netherlands Hoge Raad) 694, 695, 800,
1528, 1566
Judgment of 29 June 2007, Case No. LJN:AV7405 (Netherlands Hoge Raad) 1923
Judgment of 29 June 2007, Case No. R06/005HR (Netherlands Hoge Raad) 2122, 2372, 2483,
3525, 3863
Judgment of 5 December 2008, Bursa Büyüksehir Belediyesi v. Güris Insaat VE Mühendislik
AS, Case No. C07/166HR (Netherlands Hoge Raad) 3286
Judgment of 24 April 2009, Case No. ECLI:NL:HR:2009:BH3137 (Netherlands Hoge Raad) 3623
Judgment of 8 January 2010, Case No. 08/02129 (Netherlands Hoge Raad) 3561
Judgment of 25 June 2010, Yukos Capital Sarl v. OJSC Rosneft Oil Co., XXXV Y.B. Comm. Arb.
P 4605 423 (Netherlands Hoge Raad) (2010) 3717
Judgment of 26 November 2010, Silver Lining Fin. v. Perstorp Waspik, 2011 NJ 55
(Netherlands Hoge Raad) 1121
Judgment of 24 December 2010, Vasting Holding BV v. Scanproduct Ltd, Case No.
ECLI:NL:HR:2010:BO4929 (Netherlands Hoge Raad) 3850
Judgment of 24 December 2010, XXXVI Y.B. Comm. Arb. 304 (Netherlands Hoge Raad) (2011)
3682
Judgment of 31 March 2017, Nelux Holdings Int’l NV v. U.S., Case No. 16/02825 (Netherlands
Hoge Raad) 4147
Judgments of 27 January 2017 & 31 March 2017, XLII Y.B. Comm. Arb. 452, (Netherlands Hoge
Raad) (2017) 3716
Judgment of 24 November 2017, XLIII Y.B. Comm. Arb. 529 (Netherlands Hoge Raad) (2017)
3726, 3979
Gerechtshof (Courts of Appeal)
Judgment of 18 January 1967, 1967 Neder. Juris., No. 90 (Arnhem Gerechtshof) 486
Judgment of 8 September 1972, Européenne d’Etudes et d’Entreprises v. Yugoslavia, I Y.B.
Comm. Arb. 197 (Hague Gerechtshof) (1976) 3206
Judgment of 16 July 1992, G.W.L. Kersten v. Commerciale Raoul-Duval, XIX Y.B. Comm. Arb.
708 (Amsterdam Gerechtshof) (1994) 3516, 3858
Judgment of 4 August 1993, Owerri Commercial Inc. v. Dielle Srl, XIX Y.B. Comm. Arb. 703
(Hague Gerechtshof) (1994) 520, 542, 550, 554, 561, 563
Judgment of 28 October 1994, XX Y.B. Comm. Arb. 750 (’s-Hertogenbosch Gerechtshof) (1995)
3789, 3804, 4084
Judgment of 14 July 1995, XXI Y.B. Comm. Arb. 643(’s-Hertogenbosch Gerechtshof) (1996)
923, 4038
Judgment of 28 April 1998, Rice Trading (Guyana) Ltd v. Nidera Handelscompagnie BV, XXIII
Y.B. Comm. Arb. 731 (Hague Gerechtshof) (1998) 3857, 3875, 3878
Judgment of 24 March 2005, Mktg Displays Int’l Inc. v. VR Van Raalte Reclame BV, XXXI Y.B.
Comm. Arb. 808 (Hague Gerechtshof) (2006) 1069, 3623, 4052, 4056
Judgment of 28 April 2009, Yukos Capital Sarl v. OAO Rosneft, XXXIV Y.B. Comm. Arb. 703
(Amsterdam Gerechtshof) (2009) 3152, 3257, 3744, 3979, 4031
Judgment of 8 April 2014, N. River Shipping Co. v. Kompas Overseas Inc., Case No.
200.107.628/01 (Amsterdam Gerechtshof) 4048
Judgments of 24 June 2014 & 1 May 2015, XLI Y.B. Comm. Arb. 518 (Amsterdam Gerechtshof;
Netherlands Hoge Raad) (2016) 3716
Judgment of July 2015, Case No. ECLI:NL:GHAMS:2015:3006 (Amsterdam Ct. App) 1067
Judgment of 21 July 2015, Case No. ECLI:NL:GHAMS:2015:3006 (Amsterdam Ct. App.) 1066
Judgment of 27 September 2016, XLII Y.B. Comm. Arb. 461 (Amsterdam Gerechtshof) (2017)
550
3979
Judgment of 21 February 2017, Diag Human SE v. Czechia, XLIII Y.B. Comm. Arb. 523
(Amsterdam Gerechtshof) (2018) 4071
Judgments of 29 March 2016, 27 January 2017 & 31 March 2017, Nelux Holdings Int’l NV v.
U.S., Case No. 16/02825 (Amsterdam Gerechtshof & Netherlands Hoge Raad) 4137
Judgment of 18 April 2017, Case No. ECLI:NL:GHARL:2017:3283 (Arnhem-Leeuwarden
Gerechtshof) 3561
Judgment of 17 November 2017, Maximov v. OJSC “Novolipetsky Metallurgichesky
P 4606 Kombinat,” XXXVII Y.B. Comm. Arb. 274 (Amsterdam Gerechtshof) (2012) 3979
Judgment of 17 April 2018, Dunav Re A.D.O. Beograd v. Dutch Marine Ins. BV, XLIII Y.B.
Comm. Arb. 535 (Amsterdam Gerechtshof) (2018) 3699, 3700, 3859, 3869, 3883, 4084
Judgment of 9 October 2018, Serena Equity Ltd v. Fincantieri SpA, XLIV Y.B. Comm. Arb. 607
(Amsterdam Gerechtshof) (2019) 4030
Judgment of 6 November 2018, Ascom Group SA v. Kazakhstan, XLIV Y.B. Comm. Arb. 614
(Amsterdam Gerechtshof) (2019) 3504, 3848, 4083, 4085
Judgment of 11 June 2019, Russia v. Everest Estate LLC, XLIV Y.B. Comm. Arb. 633 (Hague
Gerechtshof) (2019) 4085
Judgment of 22 October 2019, Bariven SA v. Wells Ultimate Serv. LLC, Case No.
200.244.714/01 (Hague Gerechtshof) 3612
Judgment of 18 February 2020, Case No. 200.197.079/01 (Hague Gerechtshof) 4, 2197
(Arrondissements-)Rechtbank (Court of First Instance)
Bariven SA v. Wells Ultimate Serv. LLC, Case No. 200-244-714 (Hague Rechtbank) (2019) 912
Judgment of 5 November 1952, 1953 Neder. Juris. No. 327 (Amsterdam
Arrondissementsrechtbank) 486
Judgment of 19 December 1952, 1953 Neder. Juris. No. 328 (Amsterdam
Arrondissementsrechtbank) 486
Judgment of 26 June 1970, Israel Chem. & Phosphates Ltd v. NV Algemene Oliehandel, I Y.B.
Comm. Arb. 195 (Rotterdam Rechtbank) (1976) 727, 887
Judgment of 26 April 1973, IV Y.B. Comm. Arb. 305 (Hague Rechtbank) (1979) 753, 3721, 3730,
3737, 3738, 3740, 3811, 4076
Judgment of 18 August 1982, N. Am. Soccer League Mktg, Inc. v. Admiral Int’l Mktg & Trading
BV, X Y.B. Comm. Arb. 490 (Dordrecht Rechtbank) 3781
Judgment of 12 July 1984, SPP (Middle E.) Ltd v. Egypt, X Y.B. Comm. Arb. 487 (Amsterdam
Rechtbank) (1985) 1597, 3687, 3700, 3720, 3737, 3738, 3799, 3964, 3966, 4071, 4084
Judgment of 22 November 1984, Palm & Vegetable Oils Sdn Bhd v. Algemene Oliehandel Int’l
BV, XI Y.B. Comm. Arb. 521 (Utrecht Rechtbank) (1986) 3695
Judgment of 22 November 1984, XI Y.B. Comm. Arb., 521 (Utrecht Rechtbank) (1986) 3738
Judgment of 21 December 1990, NV Carbomet v. Gans Transp. BV, XXI Y.B. Comm. Arb. 632,
(Rotterdam Rechtbank) (1990) 708, 710, 3471
Judgment of 24 November 1994, XXI Y.B. Comm. Arb. 635 (Rotterdam Rechtbank) (1996) 535,
547, 602, 644, 2012, 3240, 3298, 3526, 3826, 3869, 3950, 4063
Judgment of 28 September 1995, XXII Y.B. Comm. Arb. 762 (Rotterdam
Arrondissementsrechtbank) (1997) 549, 562
Judgment of 3 September 1996, Tianjin Stationary & Sporting Goods Imp. & Exp. Corp. v.
Verisport BV, XXII Y.B. Comm. Arb. 766 (Zutphen Arrondissementsrechtbank) (1997) 3940,
3943, 3945
Judgment of 2 October 1997, Rice Trading (Guyana) Ltd v. Nidera Handelscompagnie BV,
XXIII Y.B. Comm. Arb. 731 (Rotterdam Arrondissementsrechtbank) (1998) 3516, 3839, 3857
Judgment of 11 November 1998, XXIV Y.B. Comm. Arb. 724 (Zutphen
Arrondissementsrechtbank) (1999) 836, 3877, 3700
Judgment of 21 September 1999, Indonesia v. Himpurna Cal. Energy Ltd (Bermuda), XXV Y.B.
Comm. Arb. 469 (Hague Arrondissementsrechtbank) (2000) 4174, 4157
Judgment of 19 July 2000, XXVI Y.B. Comm. Arb. 827 (Almelo Arrondissementsrechtbank)
P 4607 (2001) 3813, 3789
Judgment of 27 August 2002, Goldtron Ltd v. Media Most BV, XXVIII Y.B. Comm. Arb. 814
(Amsterdam Rechtbank) (2003) 3831, 3863, 3864, 3866, 3915, 3921, 3939, 4044, 4045
Judgment of 23 July 2003, (2004) 65 TvA 171 (Amsterdam Rechtbank) 2785
Judgment of 27 May 2004, Mktg Displays Int’l Inc. v. VR Van Raalte Reclame BV, XXXI Y.B.
Comm. Arb. 808 (Hague Rechtbank) (2006) 4031
551
Judgment of 18 October 2004, Telekom Malaysia Berhad v. Ghana, 23 ASA Bull. 186 (Hague
Rechtbank) (2005) 1986
2004 Judgments of 18 October 2004 & 5 November 2004, Telekom Malaysia Berhad v.
Ghana, 23 ASA Bull. 186 (Hague Rechtbank) (2005) 2023
Judgment of 18 April 2007, DBM Blending BV v. WRT Beheers BV (Amsterdam Rechtbank),
described in A Contribution by the ITA Board of Reporters 2990
Judgment of 18 June 2009, XXXIV Y.B. Comm. Arb. 715 (Amsterdam Voorzieningenrechtbank)
(2009) 3554, 3699, 3700, 3703, 3845, 3865, 3869
Judgment of 29 July 2009, XXXIV Y.B. Comm. Arb. 722 (Rotterdam Rechtbank) (2009) 912
Judgment of 18 May 2011, Case No. ECLI:NL:RBROT:2011:BQ5670 (Rotterdam Rechtbank)
3451
Judgment of 28 October 2011, Case No. 123983/KG RK 2011-474 (Almelo Rechtbank) 4033
Judgment of 28 February 2011 & 20 December 2011, Catz Int’l BV v. Gilan Trading KFT, XXXVII
Y.B. Comm. Arb. 271 (Rotterdam Rechtbank; Hague Gerechtshof) (2012) 3767
Judgments of 28 February 2011 & 20 December 2011, Catz Int’l BV v. Gilan Trading KFT,
XXXVII Y.B. Comm. Arb. 271 (Rotterdam Ct. First Inst.; Hague Gerechtshof) (2012) 3785, 3845,
3872
Judgment of 2 May 2012, Ecuador v. Chevron Corp., Case Nos. 11-402 & 11-2813 (Hague
Rechtbank) 3587, 3156
Judgment of 26 July 2012, Nova Shipping Ltd v. Med Marine AS, Case No. 505950/KG RK 11-
3695 (Amsterdam Rechtbank) 4046
Judgment of 22 January 2015, Econet Wireless Ltd v. Bharti Airtel Nigeria BV, XL Y.B. Comm.
Arb. 471 (Amsterdam Rechtbank) (2015) 4083
Judgment of 5 November 2016, Çukurova Holding AS v. Sonera Holding BV, XLII Y.B. Comm.
Arb. 473 (Aruba Joint Ct. Just.) (2017) 3887
Judgment of 19 April 2017, XLII Y.B. Comm. Arb. 469 (Gelderland Rechtbank) (2017) 1373
Judgment of 30 January 2019, Va. Huntington Ingalls Inc. v. Ministry of Defense of Venezuela,
XLIV Y.B. Comm. Arb. 638 (Bonaire, Sint Eustatius & Saba Gerecht in Eerste Aanleg) (2019)
3899
New Zealand
Supreme Court
Carr v. Allan, [2014], XL Y.B. Comm. Arb. 671 NZSC 75 (N.Z. S.Ct. 2014) (2015) (N.Z. S.Ct.) 416,
1156, 1735
Carr v. Gallaway Cook Allan, [2014] NZSC 75 (N.Z. S.Ct.) 3429, 3434, 3725, 3672
Gen. Distrib. Ltd v. Casata Ltd, [2006] 2 NZLR 721 (N.Z. S.Ct.) 2477
Judgment of 20 June 2014, XL Y.B. Comm. Arb. 671 (N.Z. S.Ct.) 912
Zürich Australian Ins. Ltd v. Cognition Educ. Ltd, [2014] NZSC 188 (N.Z. S.Ct.) 366, 1379
Court of Appeal
Amaltal Corp. Ltd v. Maruha (N.Z.) Corp. Ltd, [2004] 2 NZLR 614 (Wellington Ct. App.) 3437
P 4608 Banks v. Grey Dist. Council, [2004] 2 NZLR 19 (Wellington Ct. App.) 1958
Bidois v. Leef, [2015] NZCA 176 (Wellington Ct. App.) 322
CBI NZ Ltd v. Badger Chiyoda, [1989] 2 NZLR 669 (Wellington Ct. App.) 4008
Downer Constr. (NZ) v. Silverfield Dev. Ltd, [2008] 2 NZLR 591 (Wellington Ct. App.) 1199
Gallaway Cook Allan v. Carr, (2013) NZCA 11 (Wellington Ct. App.) 135, 971, 3674
Gold & Res. Dev. (N.Z.) Ltd v. Doug Hood Ltd, [2000] 3 NZLR 318 (Wellington Ct. App.) 3645,
3670
Hi-Gene Ltd v. Swisher Hygiene Franchise Corp., [2010] NZCA 359 (Wellington Ct. App.) 3751
Methanex Motunui Ltd v. Spellman, [2004] 3 NZLR 454 (Wellington Ct. App.) 2392, 3494,
3526, 3665, 3690
New Zealand Basing Ltd v. Brown, [2016] NZCA 525 (Wellington Ct. App.) 2901
Ngāti Hurungaterangi v. Ngāti Wahiao, [2017] NZCA 429 (Wellington Ct. App.) 3536, 3561
Roose Indus. Ltd v. Ready Mixed Concrete Ltd, [1974] 2 NZLR 246 (Wellington Ct. App.) 322,
825
Todd Petroleum Mining Co. Ltd v. Shell Co. Ltd, [2014] NZCA 507 (Wellington Ct. App.) 4, 3407
High Court
A’s Co. v. Dagger, Case No. M1482-SD00 (Auckland High Ct. 2003) 2428
552
Acorn Farms Ltd v. Schnuriger, [2003] 3 NZLR 121 (Hamilton High Ct.) 307
Aitken v. Ishimaru Ltd, [2007] NZHC 1133 (Auckland High Ct.) 849
Amaltal Corp. v. Maruha (N.Z.) Corp., [2002] NZLR LEXIS 158 (Auckland High Ct.) 4027
Attorney Gen. v. Mobil Oil N.Z., Ltd, [1989] 2 NZLR 649 (Wellington High Ct.) 113
Attorney-Gen. v. Tozer (No. 3), CIV 2003-404-5945 (Auckland High Ct. 2003) 3494, 3514
Carter Holt Harvey Ltd v. Genesis Power Ltd, [2006] 3 NZLR 794 (Wellington High Ct.) 4178
Clarence Holdings Ltd v. Prendos Ltd, [2000] DCR 404 (Auckland Dist. Ct.) 486, 1485
Coromandel Land Trust Ltd v. Milk T Invs. Ltd, [2009] CIV-2009-419-000232 (Hamilton High
Ct.) 3513, 3855, 3860
Danone Asia Pac. Holdings Pte Ltd v. Fonterra Co-operative Group Ltd, [2014] NZHC 1681
(Auckland High Ct.) 1371, 1387, 1389
Downer Constr. (N.Z.) Ltd v. Silverfield Devs. Ltd, CIV-2004-404-4488 (Auckland High Ct.
2004) 3472
Fletcher Constr. NZ & S. Pac. Ltd v. Kiwi Co-op. Dairies Ltd, Case No. CP 7/98 (Auckland High
Ct. 1998) 366
Gen. Distribs. Ltd v. Melanesian Mission Trust Bd, Case No. CIV-2008-404-4436 (Auckland
High Ct.) 3178
Hitex Plastering Ltd v. Santa Barbara Homes Ltd, [2002] 3 NZLR 695 (Wellington High Ct.)
1819
Ironsands Invs. Ltd v. Toward Indus. Ltd, CIV 2010-404-004879 (Auckland High Ct. 2010) 3683
Lindow v. Barton McGill Marine Ltd, Case No. CP13-SD/02 (Auckland High Ct. 2002) 2679
Makan Distiller Ltd v. Natural Sugars (N.Z.) Ltd, [2015] NZHC 1111 (Wellington High Ct.) 3725
Marnell Corrao Assocs. Inc. v. Sensation Yachts Ltd, [2000] 15 PRNZ 608 (Auckland High Ct.)
815, 840
Methanex Motunui Ltd v. Spellman, [2004] 1 NZLR 95 (Auckland High Ct.) 270, 273, 278, 297,
3434, 3627
Motunui Ltd v. Methanex Spellman, [2004] 1 NZLR 95 (Auckland High Ct.) 292
N.Z. v. Mobil Oil N.Z. Ltd, XIII Y.B. Comm. Arb. 638 (Wellington High Ct. 1987) (1988) 1067
New Zealand v. Mobil Oil New Zealand Ltd, XIII Y.B. Comm. Arb. 638 (Wellington High Ct.
1987) (1988) 1472
NH3 Refrigeration Ltd v. Refrigeration Eng’g Co. Ltd, [2018] NZHC 316 (Auckland High Ct.)
P 4609 3645
On Line Int’l Ltd v. On Line Ltd, [2000] HC Christchurch CP2/00 (Christchurch High Ct.) 1387
Pathak v. Tourism Transp. Ltd, [2002] 3 NZLR 681 (Auckland High Ct.) 1379, 2713, 2741, 2750
Pickens v. Templeton, [1994] 2 NZLR 718 (Christchurch High Ct.) 285, 292, 294, 2181
Plumley v. Ellis, [1997] 2 NZLR 579 (Auckland High Ct.) 2598
Prop. People Ltd v. Housing NZ Ltd, [1999] 14 PRNZ 66 (Auckland High Ct.) 1016
Seaview HP Ltd v. NZ Tube Ltd, [2018] NZHC 1611 (Wellington High Ct.) 3387, 3645
Sensation Yachts Ltd v. Darby Maritime Ltd, Case No. CIV 2005 404 1908 (Auckland High Ct.
2005) 2713, 2750
Trustees of Rotoaira Forest Trust v. Attorney-Gen., [1998] 3 NZLR 89 (Auckland High Ct.) 3500
Trustees of Rotoaira Forest Trust v. Attorney-Gen., [1999] 2 NZLR 452 (Comm) (Auckland High
Ct.) 2336, 3494, 3533, 3540
Weatherhead v. Deka NZ Ltd, [1997] 10 PRNZ 625 (Gisborne High Ct.) 2358
Other
NZ Bldg Trades Union v. NZ Federated Furniture, [1991] 1 ERNZ 331 (Wellington Labour Ct.)
4102
Yawata Ltd v. Powell, [2000] DCR 334 (Wellington Dist. Ct.) 1178
Nigeria
Agro-Allied Dev. Enters. Ltd v. United Shipping Trading Co. Inc., XLI Y.B. Comm. Arb. 531
(Lagos Ct. App. 2010) (2016) 4048
Ebokan v. Ekwenibe & Sons Trading Co., [2001] 2 NWLR 32 (Lagos Ct. App.) 2198, 3713
Gobowen Exploration & Prod. Ltd v. Axxis Petroconsultants Ltd, Suit No
FHC/L/CS/1661/2013 (Nigeria Fed. High Ct.) 1987, 2002, 2006
Nigerian Nat’l Petroleum Corp. v. Clifco Nigeria Ltd, Suit No. SC.233/2003 (Nigerian S.Ct.
553
2011) 1591
Ogunwale v. Syria, [2002] 9 NWLR (Part 771) 127 (Lagos Ct. App.) 1860
Ras Pal Gazi Constr. Co. v. Fed. Capital Dev. Auth., 10 NWLR 559 (Nigerian S.Ct. 2001) 4079
Northern Ireland
Dollingstown Football Club v. Irish Football Ass’n, [2011] NIQB 66 (N. Ireland High Ct.) 3644,
3670
E v. C, [2018] 1 WLUK 108 (N. Ireland Lands Trib.) 3016
Norway
Judgment of 16 August 1999, Charterer v. Shipowner, XXVII Y.B. Comm. Arb. 519 (Hålogaland
Ct. App.) (2002) 711, 729
Judgment of 10 July 2002, Pulsarr Indus. Research BV v. Nils H. Nilsen AS, XXVIII Y.B. Comm.
Arb. 821 (Vardo Enforcement Ct.) (2003) 3299, 3700, 3701, 3727, 3751, 3870
Oman
Judgment of 19 October 1998, Case No. 2/98 (Omani Ct. First Inst.) 3590
Pakistan
China Nat’l Mach. Imp. & Exp. Corp. v. Tufail Chem. Indus. (Pakistani S.Ct. 2005) 1756
Cummins Sales & Serv. Ltd v. Cummins Middle E., FZE 2013 CLD 291 (Pakistani High Ct.) 1379
Fal Oil Co. Ltd v. Pakistan State Oil Co. Ltd, Case No. PLD Sindh 427 (Sindh High Ct. 2014)
P 4610 420
Messrs. Eckhardt & Co. v. Hanif, PLD 1993 SC 42 (Pakistan S.Ct. 1993) 94
Metro. Steel Corp. Ltd v. Macsteel Int’l U.K. Ltd, XXXII Y.B. Comm. Arb. 449 (Pakistani High
Ct. 2006) 753
Rupali Polyester Ltd v. Dr. Nael G. Bunnis Malek Muhammed Qayyum, XLVI PLD 525 (Lahore
High Ct. 1994) 1756, 3202, 3246, 3255
SGS v. Pakistan, 19 Arb. Int’l 182 (Pakistani S.Ct. 2002) (2003) 1415
Taisei Corp. v. A. M. Constr. Co., C.R. No. 691/2012, PLD 2012 Lahore 475 (Lahore High Ct.)
1757
Panama
Judgment of 14 February 2005, Greenhow Assocs. Ltd v. Refineria Panama SA, Case No. 824-
03 (Panamanian Corte Suprema de Justicia) 685
Judgment of 27 May 2015, Violeta SA v. Food Source SA, Case No. 868-13 (Panamanian Corte
Suprema de Justicia) 1542
Judgment of 3 March 2016, Varela v. Sanchiz, XLIV Y.B. Comm. Arb. 646 (Panamanian Corte
Suprema de Justicia) (2019) 3740
Paraguay
Judgment of 6 June 2018, Taller RC de Crispín Ruffinelli v, Secretaría Nacional del Ambiente,
AI No. 49 (Asunción Tribunal de Apelación) 954, 1079
Judgment of 19 October 2019, Banco Familiar SAECA v. Azucarera Iturbe SA, Case No.
PY/JUR/443/2018 (Asunción Tribunal de Apelación) 3515
Peru
Judgment of 19 October 2009, Consorcio Sainco Valsala v. Electroperú SA, Case No. 410-
2009 (Lima Corte Superior) 3683
Judgment of 28 April 2011, Stemcor UK Ltd v. Guiceve SAS, XXXIX Y.B. Comm. Arb. 467 (Lima
Corte Superior de Justicia) 3696, 4060
Judgment of 16 October 2011, Ministerio de Transportes y Comunicaciones v. Rudy Alberto
Zapana Morales, Case No. Exp. 00045-2011 (Lima Corte Superior de Justicia) 3439, 3598
Judgment of 19 October 2016, Energia Eolica SA v. Montealto Peru, Case. No. 0045-2016-0
(Lima Corte Superior de Justicia) 1617
Judgment of 5 March 2018, Trade SA v. Metalyck SAC, XLIV Y.B. Comm. Arb. 650 (Lima Corte
Superior de Justicia) (2019) 3762, 4008, 4010, 4011, 4072
Philippines
Cargill Philippines, Inc. v. San Fernando Regala Trading, Inc., [2011] PHSC 108 (Philippines
S.Ct.) 419
Gonzales v. Climax Mining Ltd, [2007] PHSC 2 (Philippines S.Ct.) 420
Koppel, Inc. v. Makati Rotary Club Found. Inc., [2013] PHSC 674 (Philippines S.Ct.) 419
Luzon Hydro Corp. v. Transfield Philippines Inc., XXXII Y.B. Comm. Arb. 456 (Manila Ct. App.
554
2006) (2007) 4026
Nat’l Union Fire Ins. Co. v. Stolt-Nielson Philippines, Inc., XXVII Y.B. Comm. Arb. 524
(Philippines S.Ct. 1990) (2002) 887
Transfield Philippines Inc. v. Luzon Hydro Corp., [2006] No. 146717 (Philippines S.Ct.) 2742,
2751
Tuna Processing, Inc. v. Philippine Kingford, Inc., XLII Y.B. Comm. Arb. 553 (Philippines S.Ct.
P 4611 2012) (2017) 3740
Poland
Judgment of 30 October 2008, II CSK 263/2008 (Polish S.Ct.) 694
Judgment of 18 June 2010, V CSK 434/09 (Polish S.Ct.) 925, 1880
Judgment of 9 September 2010, Case No. I CSK 535/09 (Polish S.Ct.) 2006, 3564
Judgment of 28 January 2011, Case No. I CSK 231/10 (Polish S.Ct.) 3173, 3178
Judgment of 13 September 2012, XLIV Y.B. Comm. Arb. 656 (Polish S.Ct.) (2019) 3811, 3813
Portugal
Judgment of 9 October 2003, XXXII Y.B. Comm. Arb. 474 (Portuguese Supremo Tribunal de
Justiça) (2007) 4017, 4019
Judgment of 2 February 2006, Case No. 05B3766 (Portuguese Supremo Tribunal de Justiça)
(2006) 3505, 3843
Judgment of 1 August 2008, Wall Street Institute de Portugal – Centro Inglês, SA v. Centro de
Inglês Santa Bárbara, Lda, Diário da República, 2d Série, No. 148 (Portuguese Const. Ct.)
926
Judgment of 27 November 2008, Case No. 08B3522 (Portuguese Supremo Tribunal de
Justiça) 416, 418
Judgment of 16 January 2014, XXXIV Y.B. Comm. Arb. 477 (Lisbon Tribunal da Relação)
(2014) 4006, 4007
Judgment of 23 October 2014, XLII Y.B. Comm. Arb. 484 (Portuguese Supremo Tribunal de
Justiça) (2017) 4007, 4013
Judgment of 25 November 2014, Case No. 245/14 6YRPRT (Porto Tribunais da Relação) 3561
Judgment of 24 March 2015, Demandantes v. Demandada, Processo 1361/14.0YRLSB.L 1-1
(Lisbon Tribunais da Relação) 1951, 1985, 1986
Judgment of 30 August 2016, Case No. 13580/16 (Portuguese Acórdão do Tribunal Central
Administrativo Sul) 1985
Judgment of 16 February 2017, Case No. 20011/16.3BCLSB (Portuguese Acórdão do Tribunal
Central Administrativo Sul) 1985
Judgment of 4 March 2017, XLII Y.B. Comm. Arb. 488 (Portuguese Supremo Tribunal de
Justiça) (2017) 3721
Judgment of 14 March 2017, XLII Y.B. Comm. Arb. 488 (Portuguese Supremo Tribunal de
Justiça) (2017) 3725, 4007, 4013
Judgment of 16 October 2018, Lda, Case No. 2258/16.4T8CBR.C1.S1 (Portuguese Supremo
Judgment of 15 January 2019, Case No. 28/14.3TBOHP (Portuguese Supremo Tribunal de
Justiça) 1540
Qatar
Judgment of 31 October 2018, Case No. 1650/2018, 11(1) Int’l J. Arab Arb. 201 (Doha Crim. Ct.)
(2019) 2166
Romania
Judgment of 16 February 1985, XIV Y.B. Comm. Arb. 689 (Romanian S.Ct.) (1989) 4025
Judgment of 2 December 2009, XLII Y.B. Comm. Arb. 492 (Romanian S.Ct.) (2017) 3940, 3953,
4072
Judgment of 11 June 2013, XLII Y.B. Comm. Arb. 553 (Romanian S.Ct.) (2017) 3726
Judgment of 7 June 2018, Case No. 47 (Bucharest Ct. App.) 2632, 2710
P 4612 Judgment of 25 July 2019, Case No. 76 (Bucharest Ct. App.) 2619, 2632, 2710
Russia
Judgment of 13 December 1994, CLOUT Case No. 147 (Moscow City Ct.) 1193, 1332
Judgment of 10 February 1995, CLOUT Case No. 148; XXII Y.B. Comm. Arb. 294 (Moscow City
Ct.) (1997) 1014, 1343, 3488, 3647
555
Judgment of 18 September 1995, CLOUT Case No. 149 (Moscow City Ct.) 3618
Judgment of 18 September 1995, XXII Y.B. Comm. Arb. 295 (Moscow City Ct.) (1997) 3618
Judgment of 31 October 1995, Kotraco, Inc. v. V/O Rosvneshtorg, XXIII Y.B. Comm. Arb. 735
(Moscow Dist. Ct.) (1998) 3764, 4008, 4039
Judgment of 24 May 1996, XXIII Y.B. Comm. Arb. 738 (Moscow Dist. Ct.) (1998) 3914
Judgment of 21 April 1997, IMP Group Ltd v. Aeorimp, XXIII Y.B. Comm. Arb. 745 (Moscow Dist.
Ct.) (1998) 3726
Judgment of 24 November 1999, CLOUT Case 637 (Russian S. Arbitrazh Ct.) 734, 739
Judgment of 16 December 1999, XXV Y.B. Comm. Arb. 761 (Russian S.Ct.) (2000) 3884
Judgment of 4 February 2000, Case No. 5-Γ00-4 (Russian S. Ct.) 2698, 3181
Judgment of 2 April 2002, Swiss Cargill Int’l SA v. Russian CJSC Neftekhimeksport, Case No.
5-Г02-23 (Russian S.Ct. 2002) 1006, 3485
Judgment of 18 July 2002, Quality Steel Inc. v. OAO Bummash, Case No. 43-G02-2 (Russian
S.Ct.) 2252, 3854, 3510, 3910, 3854
Judgment of 6 August 2002, Case No. N9772/01 (Russian S. Arbitrazh Ct.) 3617
Judgment of 17 February 2003, United World v. Krasny Yakor, Case No. A43-10716/02-27-
10isp (Volgo-Vyatsky Fed. Arbitrazh Ct.) 4080
Judgment of 15 December 2003, Forever Maritime Ltd v. State Unitary Enter. Foreign Trade
Enter. Mashioimport, Case No. 3253/04 (Moscow Fed. Arbitrazh Ct.) 2385
Judgment of 8 January 2004, XXXII Y.B. Comm. Arb. 480 (Moscow Fed. Arbitrazh Ct.) (2004)
4072
Judgment of 22 June 2004, Forever Maritime Ltd v. Vneshneeconomicheskoe Ob’edinenie
Machineimport, Case No. 3253/04 (Russian S. Arbitrazh Ct.) 3823, 3841
Judgment of 7 October 2004, Case No. A56-23577/04 (Russian N.W. Dist. Fed. Arbitrazh Ct.)
2001
Judgment of 1 November 2004, AO Slovenska Konsolidachna, AS v. KB SR Yakimanka, Case
No. KG-A40/9998-04 (Moscow Fed. Arbitrazh Ct.) 4031
Judgment of 9 December 2004, Dana Feed AS v. OOO Arctic Salmon, XXXIII Y.B. Comm. Arb.
658, (N.W. Fed. Arbitrazh Ct.) (2008) 3817
Judgment of 16 December 2004, Case No. KG-A40-10867-04 (Russian Moscow Dist. Fed. Arb.
Ct.) 1880, 3941
Judgment of 22 February 2005, XXXIII Y.B. Comm. Arb. 666 (Russian S. Arbitrazh Ct.) (2008)
3846
Judgment of 29 September 2005, XXXIII Y.B. Comm. Arb. 683 (Russian S. Arbitrazh Ct.) (2008)
3496, 3604
Judgment of 12 October 2005, Quality Steel v. Bummash, Case No. F09-2110/05-C6 (Urals
Fed. Arbitrazh Ct.) 4038
Judgment of 9 March 2006, N.K. Belavia v. O.J.S.C. Aviakompaniya Sibir, Case No. 04-
786/2006 (W. Siberian Dist. Fed. Arb. Ct.) 1127
Judgment of 19 September 2006, Joy Lud Distribs. Int’l Inc. v. OJSC Moscow Oil Refinery
Plant, Case No. 5243/06 (Russian S. Arbitrazh Ct.) 4037
Judgment of 18 May 2007, Case Nos. A40-4577/07-8-46 & A40-4582/07-8-47 (Moscow Fed.
P 4613 Arbitrazh Ct.) 2426, 3513, 3517, 3548
Judgment of 26 July 2007, Yukos Capital v. Rosneft, Case No. KG-A40/6616-07 (Moscow Dist.
Fed. Arb. Ct.) 2027
Judgment of 22 February 2008, Alloys Trading Ltd v. AvangardTorgRos LLC, Case No. A56-
44076/2007 (N.W. Fed. Arbitrazh Ct.) 1127
Judgment of 4 May 2008, Case No. A09-3310/07-34 (Russian Cent. Dist. Fed. Arbitrazh Ct.)
2002
Judgment of 24 June 2009, A40-27854/09 (Russian Ct. App. Arbitrazh) 819
Judgment of 27 August 2009, Capital Group LLC v. Eric van Egeraat Assoc’d Architects BV,
XXXV Y.B. Comm. Arb. 427 (Moscow Fed. Arbitrazh Ct.) (2010) 1458, 2010, 2081, 2085
Judgment of 27 August 2009, XXXV Y.B. Comm. Arb. 427 (Moscow Fed. Arbitrazh Ct.) (2009)
3940
Judgment of 22 September 2009, Hebenstreit-Rapido GmbH v. OAO “Konditerskaya Fabrika
‘Saratovskaya”, Case No. VAS-5604/2009 (Russian S. Arbitrazh Ct.) 3726
Judgment of 2 February 2010, Lugana Handelsgesellschaft GmbH v. OAO Ryazan Metal
Ceramics Instrumentation Plant, XXXV Y.B. Comm. Arb. 429 (Russian S. Arbitrazh Ct.) (2010)
556
723, 4035
Judgment of 20 April 2010, Case No. A56-29770/2009, 5 (Russian S. Arbitrazh Ct.), aff’d,
Judgment of 22 September 2010, Case No. A56-29770/2009 (Russian Arbitrazh Ct. App.) 1581
Judgment of 20 April 2010, Edimax Ltd v. Chigirinsky, Case No. 17095/09 (Russian S.
Arbitrazh Ct.) 2750
Judgment of 20 April 2010, ProdOpt v. FIRST SA, Case No. A40-19/09-OT-13 (Russian S.
Arbitrazh Ct.) 2731
Judgment of 20 May 2010, ALUR v. Capital NN, Case No. 43-29903/2008-15-845 (Russian S.
Arbitrazh Ct.) 3840
Judgment of 20 May 2010, Case No. 43-29903/2008-15-845 (Russian S. Arbitrazh Ct.) 3502,
3513
Judgment of 8 July 2010, XXXV Y.B. Comm. Arb. 435 (Tomsk Fed. Arbitrazh Ct.) (2010) 3919
Judgment of 26 July 2010, Case No. VAS-7815/10 (Russian S. Comm. Ct.) 1725
Judgment of 3 August 2010, Case No. VAS-8786/10 (Russian S. Arbitrazh Ct.) 4040
Judgment of 13 September 2010, Stena RoRo AB v. OJSC Baltiysky Zavod, XXXVII Y.B. Comm.
Arb. 285 (Russian S. Arbitrazh Ct.) (2012) 3778, 4080
Judgment of 22 September 2010, Case No. A56-29770/2009 (Russian Arbitrazh Ct. App.) 1581
Judgment of 5 October 2010, AB Living Design v. Sokos Hotels St. Petersburg, XXXVI Y.B.
Comm. Arb. 317 (Russian S. Arbitrazh Ct.) (2011) 2702, 3174, 3682, 3958
Judgment of 12 November 2010, Case No. A40-51459/10-63-440 (Moscow Fed. Arbitrazh Ct.)
3847
Judgment of 10 March 2011, Odfjell SE v. OAO N. Mach. Bldg Enter., Case No. A05-
10560/2010; XXXVI Y.B. Comm. Arb. 322 (N.W. Fed. Arbitrazh Ct.) (2011) 3799, 3846, 4039
Judgment of 26 May 2011, Odfjell SE v. OAO PO Sevmash, Case No. VAS-4369/11 (Russian S.
Arbitrazh Ct.) 3893, 4072
Judgment of 26 May 2011, Russian Gazette No. 5498 (Russian Const. Ct.) 1127
Judgment of 20 July 2011, Ciments Français v. Holding Co. Sibirskiy Cement OJSC, XXXVI Y.B.
Comm. Arb. 325 (Kemerovskaya Fed. Arbitrazh Ct.) (2011) 3975
Judgment of 27 July 2011, Case No. VAS-7301/11 (Russian S. Arbitrazh Ct.) 819
Judgment of 5 December 2011, Ciments Francais v. OAO Holding Co. Siberian Cement, Case
No. A27-782/2011 (W. Siberia Fed. Arbitrazh Ct.) 4038
Judgment of 23 December 2011, Case No. A40-56769/07-23-401 (Russian S. Arbitrazh Ct.)
P 4614 1520, 1573
Judgment of 24 January 2012, Mabofi Holdings Ltd v. RosGas AG, Case No. A40-65888/11-
8/553 (Moscow Fed. Arbitrazh Ct.) 3785
Judgment of 19 June 2012, N A40-49223/11-112-401 (Russian S. Arbitrazh Ct.) 937
Judgment of 3 March 2015, Case No. А41-60951/13 (Russian S.Ct.) 1127
Judgment of 8 June 2015, JKX Oil & Gas plc v. Ukraine, XL Y.B. Comm. Arb. 492 (Pechersk
Dist. Ct.) (2015) 3846, 3912
Judgment of 7 October 2015, Latvijas Tilti v. Indus. Ass’n “Vozrozhdenie,” XLII Y.B. Comm.
Arb. 776 (Russian Comm. Ct.) (2017) 3274
Judgment of 11 December 2015, XLI Y.B. Comm. Arb. 550 (Moscow Fed. Arbitrazh Ct.) (2016)
4038
Judgment of 4 May 2016, Nevskaya Concession Co. v. Gov. of St Petersburg, Case No. A56-
9227/2015 (Russian S. Arbitrazh Ct.) 893
Judgment of 22 July 2016, A40-243862/2015 (Moscow Fed. Comm. Ct.) 3647
Judgment of 12 July 2017, Redius-T LLC v. GSE Krass LLC, XLIII Y.B. Comm. Arb. 542, 544
(Russian S.Ct.) (2018) 3776
Judgment of 29 August 2017, PJSC Tatneft v. Ukraine, XLIII Y.B. Comm. Arb. 538 (Moscow Dist.
Arbitrazh Ct.) (2018) 4042
Judgment of 28 February 2018, XLIV Y.B. Comm. Arb. 660 (Russian S.Ct.) (2019) 3762, 4034
Judgment of 8 February 2018, Dredging & Maritime Mgt SA v. AO Injtransstroy, XLV Y.B.
Comm. Arb. 1 (Moscow Arbitrazh Ct.) (2020) 819, 893, 3657, 4008, 4034
Judgment of 31 October 2018, Inv. Co. Pulkovskaya LLC v. Hohtif Dev. Russland LLC, Case No.
A56-23769/2013 (St. Petersburg Comm. Ct.) 3240
Judgment of 16 January 2019, Banwell Int’l Ltd v. OAO Rosshelf, XLIV Y.B. Comm. Arb. 664
(Moscow Dist. Arbitrazh Ct.) (2019) 4040
557
Lugana Handelsgesellschaft v. Ryazan Plant of Metal-Ceramic Equip., Ruling of the
Presidium in Case No. 13211/09 of 2010 (Russian S.Ct.) 723
Serbia
Judgment of 1 October 2008, Case No. Prev. 350/08 (Serbian S.Ct.) 1192
Judgment of 29 December 2008, Case No. 807/2008(3) (Belgrade Ct. App.) 3753
Judgment of 25 March 2010, Case No. 175/2010(1) (Belgrade Ct. App.) 3751
Singapore
Court of Appeal
ABC v. XYZ Co. Ltd, [2003] 3 SLR(R) 546, ¶9 (Singapore Ct. App.) 3676
AJT v. AJU, [2011] SGCA 41 (Singapore Ct. App.) 3437, 3603, 3606, 3608, 3618, 3619, 3622,
4019, 4033, 4056
AKN v. ALC, [2015] 3 SLR 488 (Singapore Ct. App.) 3428, 3437, 3440, 3448, 3529, 3689
BBA v BAZ, [2020] SGCA 53 (Singapore Ct. App.) 3456
BLC v. BLB, [2014] SGCA 40 (Singapore Ct. App.) 3437, 3577
China Mach. New Energy Corp. v. Jaguar Energy Guatemala LLC, [2020] SGCA 12 (Singapore
Ct. App.) 2292, 2339, 2342, 2345, 2346, 2563, 3514
CRW Joint Operation v. PT Perusahaan Gas Negara (Persero) TBK, [2011] SGCA 3 (Singapore
Ct. App.) 3438, 3598
Dyna-Jet Pte Ltd v. Wilson Taylor Asia Pac. Pte Ltd, [2017] SGCA 32 (Singapore Ct. App.) 936,
P 4615 943, 1427
HSBC Institutional Trust Servs. (Singapore) Ltd v. Toshin Dev. Singapore Pte Ltd, [2012] SGCA
48 (Singapore Ct. App.) 988
Insigma Tech. Co. Ltd v. Alstom Tech. Ltd, [2009] SGCA 24 (Singapore Ct. App.) 364, 830, 841,
1174, 1427
Int’l Research Corp. plc v. Lufthansa Sys. Asia Pac. Ltd, [2013] SGCA 55 (Singapore Ct. App.)
881
Int’l Research Corp. plc v. Lufthansa Sys. Asia Pac. Pte Ltd, [2013] SGCA 55 (Singapore Ct.
App.) 883, 1526
L Capital Jones Ltd v. Maniach Pte Ltd, [2017] SGCA 3 (Singapore Ct. App.) 1121
Larsen Oil & Gas Pte Ltd v. Petroprod Ltd, [2011] SGCA 21 (Singapore Ct. App.) 4, 1044, 1088,
1443, 1451, 1474
Maldives Airports Co. Ltd v. GMR Malé Int’l Airport Pte Ltd, [2013] SGCA 16 (Singapore Ct. Ap.)
2741, 2750
Marty Ltd v. Hualon Corp (Malaysia) Sdn Bhd, [2018] SGCA 63 (Singapore Ct. App.) 405, 943,
3776
Metalform Asia Pte Ltd v. Holland Leedon Pte Ltd, [2007] 2 SLR 268 (Singapore Ct. App.) 289
NCC Int’l AB v. Alliance Concrete Singapore Pte Ltd, [2008] SGCA 5 (Singapore Ct. App.) 2357,
2713, 2731
Otech Pakistan Pvt Ltd v. Clough Eng’g Ltd, [2006] SGCA 46 (Singapore Ct. App.) 2904, 3098
Philippines v. Maler Found., [2013] SGCA 66 (Singapore Ct. App.) 2903
Prometheus Marine Pte Ltd v. King, [2017] SGCA 61 (Singapore Ct. App.) 3724
PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA, [2006] SGCA 41; [2006] 1 SLR 197;
[2006] 1 SLR(R) 597 (Singapore Ct. App.) 1191, 1196, 2430, 3183, 3507, 3605, 3612, 3623, 3850,
4016
PT First Media TBK v. Astro Nusantara Int’l BV, [2013] SGCA 57 (Singapore Ct. App.) 2794,
2803, 2800, 2805, 2804, 3489, 3676, 3991, 3678, 3680, 3737
PT First Media TBK v. Astro Nusantara Int’l BV, [2014] 1 SLR 372 (Singapore Ct. App.) 3156,
3434, 3814
PT Garuda Indonesia v. Birgen Air, [2002] 5 LRC 560; [2002] 1 SLR 393 (Singapore Ct. App.)
1661, 1666, 1668, 2224, 2229, 2239, 3195, 3198, 3239, 3252, 3256
PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Op., [2015] SGCA 30 (Singapore Ct.
App.) 4, 974, 2640, 2701, 3261, 3172
PT Prima Int’l Dev. v. Kempinski Hotels SA, [2012] SGCA 35 (Singapore Ct. App.) 3580, 3581
R1 Int’l Pte Ltd v. Lonstroff AG, [2014] SGCA 56 (Singapore Ct. App.) 2668
Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Servs. (Pte) Ltd, [2019] 2 SLR 131
(Singapore Ct. App.) 4, 1198
558
Rals Int’l Pte Ltd v. Cassa di Risparmio di Parma e Piacenza SpA, [2016] SGCA 53; [2016] 5
SLR 455 (Singapore Ct. App.) (Singapore Ct. App.) 1443, 1578
Rex Int’l Holding Ltd v. Gulf Hibiscus Ltd, [2019] SGCA 56 (Singapore Ct. App.) 1378
Royal Bank of Scotland NV v. TT Int’l Ltd, [2015] SGCA 50 (Singapore Ct. App.) 4102, 4103,
4104
Sim Chay Koon v. NTUC Income Ins. Co-op. Ltd, [2015] 2 SLR 871 (Singapore Ct. App.) 1156
Soh Beng Tee & Co. Pte Ltd v. Fairmont Dev. Pte Ltd, [2007] SGCA 28 (Singapore Ct. App.)
1490, 2335, 2339, 2340, 2345, 2350, 2482, 2571, 3531, 3539
ST Group Co. Ltd v. Sanum Inv. Ltd, [2019] SGCA 65 (Singapore Ct. App.) 974, 979, 2224, 2232,
2252, 2253, 2254, 3550, 3553, 3724, 3909, 3911
Star-Trans Far E. Pty Ltd v. Norske-tech Ltd, [1996] 2 SGCA 35 (Singapore Ct. App.) 882
Sumito v. Antig Inv. Pte Ltd, [2009] SGCA 41 (Singapore Ct. App.) 71, 137, 367
P 4616 Swift-Fortune Ltd v. Magnifica Marine SA, (2007) 1 SLR 629 (Singapore Ct. App.) 2741, 2750
Swissbourgh Diamond Mines (Pty) Ltd v. Lesotho, [2018] SGCA 81 (Singapore Ct. App.) 3434
Tan Poh Leng Stanley v. Tang Boon Jek Jeffrey, [2001] 3 SLR 237 (Singapore Ct. App.) 3267,
3268
Tjong Very Sumito v. Antig Inv. Pte Ltd, [2009] 4 SLR(R) 732 (Singapore Ct. App.) 882, 1378,
1351, 1443, 1451, 1454, 2877, 2901
Tomolugen Holding Ltd v. Silica Investors Ltd, [2016] 1 SLR 373; [2015] SGCA 57(Singapore Ct.
App.) 1037, 1056, 1121, 1156, 1173, 1180, 1367, 1369, 1370, 1371, 1378, 1472
Wilson Taylor Asia Pac. Pte Ltd v. Dyna-Jet Pte Ltd, [2017] 2 SLR 362 (Singapore Ct. App.)
1156
Woh Hup Pte Ltd v. Lian Teck Constr. Pte Ltd, [2005] SGCA 26 (Singapore Ct. App.) 2571
High Court
A Co. v. D, [2018] SGHCR 9 (Singapore High Ct.) 1593
AAY v. AAZ, [2009] SGHC 142 (Singapore High Ct.) 3043
AAY v. AAZ, [2011] 1 SLR 1093 (Singapore High Ct.) 943, 3018
ABC Co. v. XYZ Co. Ltd, [2003] 3 SLR 546 (Singapore High Ct.) 3434, 3647
ADG v. ADI, [2014] SGHC 73 (Singapore High Ct.) 3648
AJT v. AJU, [2010] 4 SLR 649 (Singapore High Ct.) 3612, 3683
ALC v. ALF, [2010] SGHC 231 (Singapore High Ct.) 2571
Aloe Vera of Am. Inc. v. Asianic Food (S) Pte Ltd, [2006] SGHC 78, [2006] 3 SLR 174, XXXII Y.B.
Comm. Arb. 489 (Singapore High Ct.) 627, 1156, 1518, 1530, 1617, 2904, 3156, 3425, 3710, 3719,
3721, 3724, 3727, 3751, 3753, 3790, 3799, 3802, 3888
AMX v. AXX, [2015] SGHC 283, [2016] 1 SLR 549 (Singapore High Ct.) 3525, 3530, 3539
AQU v. AQV, [2015] SGHC 26 (Singapore High Ct.) 3521
AQZ v. ARA, [2015] 2 SLR 972, SGHC 49 (Singapore High Ct.) 1799, 1801, 3183, 3472, 3476
ASG v. ASH, [2016] 5 SLR (Singapore High Ct.) 3583
Astro Nusantara Int’l BV v. PT Ayunda Prima Mitra, [2012] SGHC 212, [2013] SGCA 57
(Singapore High Ct.) 3153, 3220, 3488, 3489, 3676, 3678, 3680, 3814, 3913
AZT v. AZY, [2012] SGHC 116 (Singapore High Ct.) 3018
BAZ v. BBA, [2018] SGHC 275 (Singapore High Ct.) 1678
BC Andaman Co v. Xie Ning Yun, [2017] SGHC 64 (Singapore High Ct.) 1395
BCY v. BCZ, [2016] SGHC 249, [2017] 3 SLR 357 (Singapore High Ct.) 416, 403, 431, 437, 515,
542, 571, 606, 613, 626, 3785, 3788
Beijing Sinozonto Mining Inv. Co. Ltd v. Goldenray Consortium (Singapore) Pte Ltd, [2013]
SGHC 248, XXXIX Y.B. Comm. Arb. 489 (Singapore High Ct.) 2927, 3731, 3767, 3883, 4004,
4016, 4047
BMO v. BMP, [2017] 3 SLR 267 (Singapore High Ct.) 559
BNA v. BNB, [2019] SGHC 142 (Singapore High Ct.) 238, 511, 515, 519, 572, 616, 626, 840, 3195,
3198
Bovis Land Lease Pte Ltd v. Jay-Tech Marine & Projects Pte Ltd, [2005] SGHC 91 (Singapore
High Ct.) 1501
BVY v. BCY, [2016] SGHC 249 (Singapore High Ct.) 851
BXH v. BXI, [2019] SGHC 141 (Singapore High Ct.) 437, 941
559
Car & Cars Pte Ltd v. Volkswagen AG, [2009] SGHC 233 (Singapore High Ct.) 1500
Cassa di Risparmio di Parma e Piacenza SpA v. Rals Int’l Pte Ltd, [2016] 1 SLR 79 (Singapore
High Ct.) 1524
China Mach. New Energy Corp. v. Jaguar Energy Guatemala LLC, [2018] SGHC 101 (Singapore
P 4617 High Ct.) 1355, 1358, 2563
Coal & Oil LLC v. GHCL Ltd, [2015] SGHC 65 (Singapore High Ct.) 3915
Concordia Agritrading Pte Ltd v. Cornelder Hoogewerff, [1999] SGHC 269 (Singapore High Ct.)
881, 886
Coop Int’l Pte Ltd v. Ebel SA, [1998] SGHC 425 (Singapore High Ct.) 1369, 1370, 1378, 1488
Dalian Hualiang Enter. Group Co. v. Louis Dreyfus Asia Pte Ltd, [2005] SGHC 161 (Singapore
High Ct.) 1382
Denmark Skibstekniske Konsulenter AS I Likvidation v. Ultrapolis 3000 Invs. Ltd, [2010]
SGHC 108 (Singapore High Ct.) 890, 3610, 3699, 3710, 3768
Dermajaya Props. Sdn Bhd v. Premium Props. Sdn Bhd, [2002] 2 SLR 164 (Singapore High
Ct.) 2642
Dongwoo Mann+Hummel Co. Ltd v. Mann & Hummel GmbH, [2008] 3 SLR 871 (Singapore
High Ct.) 2508, 2511, 3550, 3595
Doshion Ltd v. Sembawang Eng’rs & Constructors Pte Ltd, [2011] SGHC 46 (Singapore High
Ct.) 1487
Dyna-Jet Ltd v. Wilson Ltd, [2016] SGHC 238 (Singapore High Ct.) 903, 905, 938
Econ Piling Pte Ltd v. NCC Int’l AB, [2007] SGHC 17 (Singapore High Ct.) 882
Evergreat Constr. Co. v. Presscrete Eng’g Ltd, [2005] SGHC 224 (Singapore High Ct.) 289
FirstLink Inv. Corp. Ltd v. GT Payment Pte Ltd, [2014] SGHCR 12 (Singapore High Ct.) 117, 547,
549, 557, 572, 602, 613, 614, 679, 1745
Five Ocean Corp. v. Cingler Ship Pte Ltd, [2015] SGHC 311 (Singapore High Ct.) 2741, 2750
Front Carriers Ltd v. Atl. & Orient Shipping Corp., [2006] SGHC 127 (Singapore High Ct.) 2713
Front Row Inv. Holdings (Singapore) Pte Ltd v. Daimler S.E. Asia Pte Ltd, [2010] SGHC 80
(Singapore High Ct.) 3508, 3874
Galsworthy Ltd v. Glory Wealth Shipping Pte Ltd, XXXVI Y.B. Comm. Arb. 329 (Singapore High
Ct. 2010) (2011) 3904, 3930
GD Midea Air Conditioning Equip. Co. Ltd v. Tornado Consumer Goods Ltd, [2017] SGHC 193
(Singapore High Ct.) 3580, 3598
Gulf Hibiscus Ltd v. Rex Int’l Holding Ltd, [2017] SGHC 210 (Singapore High Ct.) 1378
Hainan Mach. Imp. & Exp. Corp. v. Donald & McArthy Pte Ltd, [1996] 1 SLR 34 (Singapore
High Ct.) 3724, 3727, 3872, 4020, 4039, 4071
Hainan Mach. Imp. & Exp. Corp. v. Donald & McArthy Pte Ltd, XXII Y.B. Comm. Arb. 771
(Singapore High Ct. 1995) (1997) 106, 1745, 2943, 3276, 3520, 3537, 3914, 3925, 3926, 3934
Heartronics Corp. v. EPI Life Pte Ltd, [2017] SGHCR 17 (Singapore High Ct.) 306, 903, 938, 943,
1457
HKL Group Co. Ltd v. Rizq Int’l Holdings Pte Ltd, [2013] SGHCR 5 (Singapore High Ct.) 815,
830, 840, 892
Holland Leedon Pte Ltd v. Metalform Asia Pte Ltd, [2010] SGHC 280 (Singapore High Ct.)
3670
Insigma Tech. Co. Ltd v. Alstom Tech. Ltd, [2008] SGHC 134 (Singapore High Ct.) 1199, 3472
Int’l Coal Pte Ltd v. Kristle Trading Ltd, [2008] SGHC 182 (Singapore High Ct.) 3026
Int’l Research Corp. plc v. Lufthansa Sys. Asia Pac. Pte Ltd, [2012] SGHC 226 (Singapore High
Ct.) 882, 985, 989, 990, 1191, 4153
Int’l Research Corp. plc v. Lufthansa Sys. Asia Pac. Pte Ltd, [2014] 1 SLR 130 (Singapore High
Ct.) 3485
Jiangsu Overseas Group Co. Ltd v. Concord Energy Pte Ltd, [2016] SGHC 153 (Singapore High
Ct.) 3460, 3472
Jurong Eng’g Ltd v. Black & Veatch Singapore Pte Ltd, [2004] 1 SLR(R) 333 (Singapore High
P 4618 Ct.) 1500
JVL Agro Indus. Ltd v. Agritrade Int’l Pte Ltd, [2016] 4 SLR 0768 (Singapore High Ct.) 3437,
3530, 3581
K.V.C. Rice Intertrade Co. Ltd v. Asian Mineral Res. Pte Ltd, [2017] SGHC 32 (Singapore High
Ct.) 531, 2268
560
Kiyue Co. v. Aquagen Int’l Pte Ltd, [2003] 3 SLR 130 (Singapore High Ct.) 3273
Law Soc’y of Singapore v. Kurubalan s/o Manickam Rengaraju, [2013] SGHC 135 (Singapore
High Ct.) 3099
Lesotho v. Swissbourgh Diamond Mines (Pty) Ltd, [2017] SGHC 195 (Singapore High Ct.) 3580,
3584, 3744, 3745
Ling Kong Henry v. Tanglin Club, [2018] 5 SLR 871 (Singapore High Ct.) 1007, 1378, 2342
Luzon Hydro Corp. v. Transfield Philippines Inc., [2004] SGHC 204 (Singapore High Ct.) 2449
Malini Ventura v. Knight Capital Pte Ltd, [2015] 5 SLR 707 (Singapore High Ct.) 1156, 1180,
2668
Man Diesel & Turbo SE v. I.M. Skaugen Marine Servs. Pte Ltd, [2018] SGHC 132 (Singapore
High Ct.) 1751
Mancon (BVI) Inv. Holdings v. Heng Holdings SEA, [2000] 3 SLR 220 (Singapore High Ct.) 882
Manuchar Steel H.K. Ltd v. Star Pac. Line Pte Ltd, [2014] SGHC 181 (Singapore High Ct.) 1565
Maybank Kim Eng Sec. Pte Ltd v. Lim Keng Yong, [2016] SGHC 68 (Singapore High Ct.) 1371
Mitsui Eng’g & Shipbuilding Co. v. Easton Graham Rush, [2004] 2 SLR(R) 14 (Singapore High
Ct.) 2076, 2182
Myanma Yaung Chi Oo Co. v. Win Win Nu, [2003] 2 SLR 547 (Singapore High Ct.) 3010, 3018
Newspeed Int’l Ltd v. Citus Trading Pte Ltd, [2003] 3 SLR(R) 1; XXVIII Y.B. Comm. Arb. 829
(Singapore High Ct. 2001) (2003) 3156, 3435
Nippon Catalyst Pte Ltd v. PT Trans-Pacific Petrochemical Indotama, [2018] SGHC 126
(Singapore High Ct.) 941
Oei Hong Leong v. Goldman Sachs Int’l, [2014] 3 SLR 1217 (Singapore High Ct.) 1156
Philippines v. Philippine Int’l Air Terminals Co., Inc., [2006] SGHC 206 (Singapore High Ct.)
2430, 3507, 3647, 3850
PT Central Investindo v. Franciscus Wongso, [2014] SGHC 190 (Singapore High Ct.) 2000
PT Garuda Indonesia v. Birgen Air, [2001] SGHC 262 (Singapore High Ct.) 1666
PT Perusahaan Gas Negara (Persero) TBK v. CRW Joint Operation, [2010] SGHC 202
(Singapore High Ct.), aff’d, [2011] SGCA 3 (Singapore Ct. App.) 3584, 3647
PT Tri-MG Intra Asia Airlines v. Norse Air Charter Ltd, [2009] SGHC 13 (Singapore High Ct.)
843
PT Tugu Pratama Indonesia v. Magma Nusantara Ltd, [2003] SGHC 204 (Singapore High Ct.)
270, 292, 297, 1173, 1199, 1200, 3472
Pukuafu Indad v. Newmont Indonesia Ltd, [2012] SGHC 187 (Singapore High Ct.) 3325, 3595
Quanzhou Sanhong Trading Ltd v. ADM Asia-Pac. Trading Pte Ltd, [2017] SGHC 199
(Singapore High Ct.) 3648, 3589, 3889, 3895
R1 Int’l Pte Ltd v. Lonstroff AG, [2014] No. 69 (Singapore High Ct.) 2741, 2713, 2750
Rakna Arakshaka Lanka Ltd v. Avant Garde Maritime Servs. Pvt Ltd, [2018] SGHC 78
Re Sanpete Builders Pte Ltd, [1989] SLR 164 (Singapore High Ct.) 1373
Rockeby Biomed Ltd v. Alpha Advisory Pte Ltd, [2011] SGHC 155 (Singapore High Ct.) 3605
Sanum Invs. Ltd v. ST Group Co., Ltd, [2018] SGHC 141 (Singapore High Ct.) 1657, 1660
Sembawang Eng’rs & Constructors Pte Ltd v. Covec (Singapore) Pte Ltd, [2008] SGHC 229
P 4619 (Singapore High Ct.) 2347, 2358
Shanghai Constr. (Group) Gen. Co. Singapore Branch v. Tan Poo Seng, [2012] SGHCR 10
Siraj v. Chung, [2003] SGHC 64 (Singapore High Ct.) 2313, 2342, 2345
Tan Eng Chuan v. United Overseas Ins. Ltd, [2009] SGHC 193 (Singapore High Ct.) 2092, 3384
Tan Poh Leng Stanley v. Tang Boon Jek Jeffrey, [2000] SGHC 260 (Singapore High Ct.), rev’d
on other grounds, [2001] 3 SLR 237 (Singapore Ct. App.) 1198, 3267, 3268, 3384, 3411
Tan v. Tang, [2001] 1 SLR 624 (Singapore High Ct.) 3582
The Titan Unity, [2014] SGHCR 4 (Singapore High Ct.) 1586
Ting Kang Chung John v. Teo Hee Lai Bldg Constrs. Pte Ltd, [2010] SGHC 20 (Singapore High
Ct.) 2092
TMT Co. Ltd v. Royal Bank of Scotland plc, [2017] SGHC 21 (Singapore High Ct.) 819, 833, 839,
936
Triulzi Cesare Srl v. Xinyi Group (Glass) Co. Ltd, [2014] SGHC 220 (Singapore High Ct.) 3500,
561
3744
Triulzi Cesare Srl v. Xinyi Group (Glass) Co. Ltd, [2015] 1 SLR 114 (Singapore High Ct.) 2342,
3860
Turner (E. Asia) Pte Ltd v. Builders Fed. (H.K.) Ltd, [1988] SLR 532 (Singapore High Ct.) 1923,
1958, 3071, 3126
V.C. Rice Intertrade Co. Ltd v. Asian Mineral Res. Ltd, [2017] SGHC 32 (Singapore High Ct.)
827, 1370
Vanol Far E. Mktg Pte Ltd v. Hin Leong Trading Pte Ltd, [1996] SGHC 108 (Singapore High Ct.)
3383, 3384
Vanol Far E. Mktg Pte Ltd v. Hin Leong Trading Pte Ltd, [1997] 3 SLR 484 (Singapore High Ct.)
394, 2384
VV v. VW, [2008] 2 SLR 929 (Singapore High Ct.) 3267, 3531, 3624, 4039, 4040
WSG Nimbus Pte Ltd v. Bd of Control for Cricket in Sri Lanka, [2002] 3 SLR 603 (Singapore
High Ct.) 849, 1389, 1395, 1396
Yee Hong Pte Ltd v. Powen Elec. Eng’g Pte Ltd, [2005] SGHC 114 (Singapore High Ct.) 1906
Scotland
Arb. Application No. 1/2013, [2014] CSOH 83 (Scottish Session Ct.) 290
Arb. Application No. 3 of 2011, [2011] CSOH 164 (Scottish Ct. Sess.) 2347, 2358, 2421, 2483
Bradford v. McLeod, [1986] SLT 244 (Scottish High Ct. Justiciary) 1904
Goodwins Jardine & Co. v. Brand & Son, [1905] F 995 (Scottish Ct. Session) 888
Clark v. Argyle Consulting Ltd, [2010] CSOH 154 (Scottish Session Ct.) 301
MacDonald Estates plc v. Nat’l Car Parks Ltd, [2009] CSIH 79 (Scottish Ct. Session) 280
N. Lanarkshire Council v. Stewart & Shields Ltd, [2017] CSOH 76 (Scottish High Ct.) 3010
Orkney Islands Council v. Charles Brand Ltd, [2002] SLT 100 (Scottish Ct. Sess.) 1455
South Africa
BTR Indus. S. Africa (Pty) Ltd v. Metal & Allied Workers’ Union, [1992] (3) SA 673 (S. African
App. Div.) 1904
Cape Pac. Ltd v. Lubner Controlling Inv. Pty Ltd, [1995] (4) SA 790 (AD) (S. African S.Ct.) 1545
Laconian Maritime Enter. Ltd v. Agromai Lineas Ltd, XIV Y.B. Comm. Arb. 693 (S. African S.Ct.
1985) (1989) 3239
Lufuno Mphaphuli & Assoc. (Pty) Ltd v. Andrews, [2009] ZACC 6 (S. African Const. Ct.) 82, 275,
P 4620 810, 1891, 1927, 2288, 2300, 2327, 3007
Parry v. Astral Operations Ltd, [2005] ZALC 15 (S. African Labour Ct.) 2901
Phoenix Shipping Corp. v. DHL Global Forwarding SA (Pty) Ltd, XXXVII Y.B. Comm. Arb. 290
(S. African High Ct.) (2012) 3815
Rebah Constr. CC v. Renkie Bldg Constr. CC, [2008] (3) SA 475 (T) (S. African High Ct.) 2470
Shoprite Checkers (Pty) Ltd v. Comm’n for Conciliation Mediation & Arbitration, [2006] ZALC
56 (S. African Labour Ct.) 3325
Tuesday Indus. Ltd v. Condor Indus. Ltd, [1978] (4) SA 379 (S. Gauteng High Ct.) 2360
Vedanta Res. Holdings Ltd v. ZCCM Inv. Holdings plc, [2019] ZAGPJHC 250 (S. Gauteng High
Ct.) 1368, 1369, 1396
South Korea
Judgment of 12 April 1984, Case No. 83Kahap7051 (Seoul Dist. Ct.) 4039
Judgment of 10 April 1990, Kukje Sangsa Co. v. GKN Int’l Trading (London) Ltd, XVII Y.B.
Comm. Arb. 568 (S. Korean S.Ct.) (1992) 550, 667, 3817, 3846
Judgment of 14 February 1995, Adviso NV v. Korea Overseas Constr. Corp., XXI Y.B. Comm.
Arb. 612 (S. Korean S.Ct.) (1996) 3703, 3799, 4008, 4015, 4039
Judgment of 14 March 1995, Case No. 94Na11868 (Seoul High Ct.) 4033
Judgment of 25 February 1997, Livestock Prods. Mktg v. Hwa-Kyung Indus. Co., Case No. 96
Da24385 (S. Korean S.Ct.) 3789
Judgment of 19 January 2001, 97 Da 21604 (S. Korean S.Ct.) 1548
Judgment of 5 December 2003, Case No. 2003Na5513 (Seoul High Ct.) 4025, 4026
Judgment of 12 November 2004, 2002 Da 66892 (S. Korean S.Ct.) 1548
Judgment of 10 December 2004, Case No. 2004Da20180 (S. Korean S.Ct.) 3702
Judgment of 26 July 2007, Iran Shipping Lines v. KTC Korea Co. Ltd, XLIII Y.B. Comm. Arb. 484
562
(Seoul W. Dist. Ct. App.) (2018) 3781
Judgments of 22 September 2006 & 26 July 2007, Islamic Repub. of Iran Shipping Lines v. KTC
Korea Co. Ltd, XLIII Y.B. Comm. Arb. 484 (Seoul W. Dist. Ct.) (2018) 3711
Judgment of 11 January 2008, Mann Hummel GmbH v. Dongwoo Co. Ltd, XLIII Y.B. Comm.
Arb. 488 (Seoul High Ct.) (2018) 3825, 3831, 3858
Judgment of 11 September 2008, 2007 Da 90982 (S. Korean S.Ct.) 1548
Judgment of 6 November 2008, Chemex Co. Ltd v. Dongnam Oil & Fats Co. Ltd, XLIII Y.B.
Comm. Arb. 493 (Seoul High Ct.) (2018) 3785, 4015
Judgment of 28 May 2009, Donghae Pulp Co. v. Majestic Woodchips Inc., Case No.
2006Da20290; XXXVII Y.B. Comm. Arb. 259 (S. Korean S.Ct.) (2012) 4015, 4024, 4049, 4068
Judgment of 9 July 2010, Hyundai Heavy Indus. Co. v. Int’l Petroleum Inv. Co. Int’l, Case No.
2009 Gahap136849 (Seoul Cent. Dist. Ct.) 4025
Judgment of 15 July 2010, XLIII Y.B. Comm. Arb. 497 (Seoul W. Dist. Ct.) (2018) 3696, 3698
Judgment of 18 November 2010, A v. E Co. Ltd, XLIII Y.B. Comm. Arb. 502 (Seoul Cent. Dist.
Ct.) (2018) 3740, 4035, 4011, 4015
Judgment of 17 July 2011, N. China Shipping Co. Ltd v. Glory Wealth Shipping PTE Co. Ltd,
XLIII Y.B. Comm. Arb. 505 (Seoul Central Dist. Ct.) (2018) 3699
Judgment of 1 January 2013, NDS v. KT Skylife, Case No. 2012 Gahap 15979 (Seoul S. Dist. Ct.)
4077
Judgment of 16 August 2013, LSF-KDIC Inv. Co., Ltd v. Korea Resol. & Collection Corp., Case
No. 2012Na88930; XLIII Y.B. Comm. Arb. 508 ((Seoul High Ct. & S. Korean S.Ct.) (2018) 1739,
P 4621 3746
Judgment of 29 October 2015, LSF-KDIC Inv. Co. Ltd v. Korea Resol. & Collection Corp., Case
No. 2013 Da 74868; XLIII Y.B. Comm. Arb. 508 (S. Korean S.Ct.) 548, 602, 3785
Slovenia
Judgment of 27 May 2014, Decision No. CPG 1/2014 (Slovenian S.Ct.) 3841, 3846
Spain
Supreme Court
Judgment of 8 October 1981, 1984 Revista de la Corte Española de Arbitraje I 158 (Spanish
Tribunal Supremo) 3827, 4076
Judgment of 3 March 1982, Holargos Shipping Corp. v. Hierros Ardes SA, IX Y.B. Comm. Arb.
435 (Spanish Tribunal Supremo) (1984) 3839, 3841, 3842, 3856
Judgment of 24 March 1982, Cominco France SA v. Soquiber SL, VIII Y.B. Comm. Arb. 408
(Spanish Tribunal Supremo) (1983) 3239, 3732, 3823
Judgment of 3 June 1982, XI Y.B. Comm. Arb. 527 (Spanish Tribunal Supremo) (1986) 1774,
3929
Judgment of 14 January 1983, XI Y.B. Comm. Arb. 523 (Spanish Tribunal Supremo) (1986)
3732, 3750, 3811, 3812, 3869, 3923, 3935
Judgment of 17 June 1983, XI Y.B. Comm. Arb. 525 (Spanish Tribunal Supremo) (1986) 3826
Judgment of 4 October 1983, XI Y.B. Comm. Arb. 528 (Spanish Tribunal Supremo) (1986) 3727
Judgment of 10 February 1984, X Y.B. Comm. Arb. 493 (Spanish Tribunal Supremo) (1985)
3726, 3788, 3785, 3842, 3872, 3929
Judgment of 26 April 1984, Mundial Grain Distribs. Co., Inc. v. Atlántica Canarias SA, XVI Y.B.
Comm. Arb. 599 (Spanish Tribunal Supremo) (1991) 1691, 3935
Judgment of 7 October 1986, XIV Y.B. Comm. Arb. 708 (Spanish Tribunal Supremo) (1989)
3841, 3842
Judgment of 23 June 1990, STS 394/1990 (Spanish Tribunal Supremo) 4190
Judgment of 10 February 1992, STS 104/1992 (Spanish Tribunal Supremo) 4190
Judgment of 12 November 1992, Case No. STS 8380/1992 (Spanish Tribunal Supremo) 3559
Judgment of 28 March 1994, ABC v. C. Española, SA, 1994 Rev. Arb. 752 (Spanish Tribunal
Supremo) 3657
Judgment of 16 April 1996, XXVII Y.B. Comm. Arb. 528 (Spanish Tribunal Supremo) (2002)
3789
Judgment of 17 February 1998, Case No. ATS 1332/1998, Legal Ground No. 4 (Spanish
Tribunal Supremo) 543
Judgment of 5 May 1998, XXVII Y.B. Comm. Arb 540 (Spanish Tribunal Supremo) (2002) 3725
Judgment of 14 July 1998, Thyssen Haniel Logistic Int’l GmbH v. Barna Consignataria SL, XXVI
563
Y.B. Comm. Arb. 851 (Spanish Tribunal Supremo) (2001) 855
Judgment of 6 October 1998, Delta Cereales España SL v. Barredo Hermanos SA, XXVI Y.B.
Comm. Arb. 854 (Spanish Tribunal Supremo) (2001) 801
Judgment of 28 March 2000, Kil Mgt AS v. García Carrión, SA, XXXII Y.B. Comm. Arb. 518
Judgment of 11 April 2000, Union Generale de Cinema, SA v. XYX Desarrollos, SA, XXXII Y.B.
P 4622 Comm. Arb. 525, 531 (Spanish Tribunal Supremo) (2007) 3877
Judgment of 31 July 2000, XXXII Y.B. Comm. Arb. 532 (Spanish Tribunal Supremo) (2007)
3822, 3831, 3874, 3925
Judgment of 14 October 2003, XXXII Y.B. Comm. Arb. 540 (Spanish Tribunal Supremo) (2005)
3511, 3710, 3856, 3877
Judgment of 20 February 2001, Consmaremma – Consorzio tra Produttori Agricola v.
Hermanos Escot Madrid SA, XXVI Y.B. Comm. Arb. 858 (Spanish Tribunal Supremo) (2001)
858
Judgment of 20 March 2001, XXXI Y.B. Comm. Arb. 821 (Spanish Tribunal Supremo) (2006)
4038, 4089
Judgment of 23 July 2001, XXXI Y.B. Comm. Arb. 825 (Spanish Tribunal Supremo) (2006) 524,
635, 1689
Judgment of 13 November 2001, Centrotex SA v. Agencia Gestora de Negocios SA, XXXI Y.B.
Comm. Arb. 834, 841 (Spanish Tribunal Supremo) (2006) 859, 923
Judgment of 13 November 2001, Miller Imp. Corp. v. Alabastres Alfredo, SL (Spanish Tribunal
Supremo) 3333
Judgment of 8 October 2002, XXXII Y.B. Comm. Arb. 555 (Spanish Tribunal Supremo) (2007)
2742, 2750
Judgment of 14 January 2003, Glencore Grain Ltd v. Sociedad Ibérica de Molturación, SA, XXX
Y.B. Comm. Arb. 605 (Spanish Tribunal Supremo) (2005) 3778
Judgment of 14 January 2003, XXX Y.B. Comm. Arb. 605 (Spanish Tribunal Supremo) (2005)
3696, 3709
Judgment of 4 March 2003, XXXII Y.B. Comm. Arb. 571 (Spanish Tribunal Supremo) (2007)
3894, 4044
Judgment of 1 April 2003, XXXII Y.B. Comm. Arb. 582, 587 (Spanish Tribunal Supremo) (2007)
3696
Judgment of 7 October 2003, XXX Y.B. Comm. Arb. 617 (Spanish Tribunal Supremo) (2005)
3696, 3705, 3732, 3935, 3950
Judgment of 14 October 2003, Fashion Ribbon Co. v. Iberband, SL, XXX Y.B. Comm. Arb. 627
Judgment of 14 October 2003, XXX Y.B. Comm. Arb. 627 (Spanish Tribunal Supremo) (2005)
804
Judgment of 27 January 2004, XXXII Y.B. Comm. Arb. 597 (Spanish Tribunal Supremo) (2007)
3913, 4076
Judgment of 3 February 2004, XXXII Y.B. Comm. Arb. 603 (Spanish Tribunal Supremo) (2007)
3823
Judgment of 6 April 2004, Case No. ATS 4640/2004 (Spanish Tribunal Supremo) 3647
Judgment of 20 July 2004, XXXI Y.B. Comm. Arb. 846 (Spanish Tribunal Supremo) (2006)
3161, 3732, 3958, 3962, 3968, 4027
Judgment of 26 May 2005, Interactive Television, SA v. Satcom Nederland BV y Banco de
Bilbao Vizcaya, SA, Case No. 404/2005 (Spanish Tribunal Supremo) 1573
Judgment of 31 May 2005, XXXII Y.B. Comm. Arb. 608 (Spanish Tribunal Supremo) (2007)
871, 890, 3710, 3768, 3789
Judgment of 31 May 2005, Pueblo Film Distrib. Hungary KFT v. Laurenfilm SA, Case No. ATS
6700/2005 (Spanish Tribunal Supremo) 881
Judgment of 26 September 2006, Vans Inc. v. Brabson, ATS 12603/2006 (Spanish Tribunal
Supremo) (2008) 3761
Judgment of 17 December 2014, Case No. 40/2014 (Spanish Tribunal Supremo) 3434
Judgment of 2 September 2015, Case No. 61/2015 (Spanish Tribunal Supremo) 3569
Judgment of 13 October 2016, AC 2016, 1799 (Madrid Tribunal Superior de Justicia) 3690
Judgment of 15 February 2017, Estudio 2000 SA v. Puma, Case No. 102/2017 (Spanish
Tribunal Supremo) 3533
Judgment of 15 February 2017, Marcos v. Puma SE, XLII Y.B. Comm. Arb. 783 (Spanish
564
P 4623 Tribunal Supremo) (2017) 2159
Judgment of 15 February 2017, Puma SE v. Ramallo García, Case No. 102/2017 (Spanish
Tribunal Supremo) 2161, 2165
Judgment of 6 July 2020, Case No. 3133/2017 (Spanish Tribunal Supremo) 2836, 2978
Provincial Courts
Judgment of 12 June 1991, Bahia Indus. SA v. Eintacar-Eimar SA, XVIII Y.B. Comm. Arb. 616
(Cádiz Audiencia Provincial) (1993) 2713
Judgment of 24 September 2002, Case No. SAP M 10897/2002 (Madrid Audiencia Provincial)
1784
Judgment of 18 October 2003, Case No. AAP M 1988/2013 (Madrid Audiencia Provincial)
1035, 1066
Judgment of 23 December 2004, Can Taulina SL v. TotalFinaElf Espana, Case No. JUR
2005/33719 (Madrid Audiencia Provincial) 1037, 1476, 2910
Judgment of 4 March 2005, Asociacion Europea de Arbitraje de Derecho v. Juan Ramon, Case
No. AAP M 1798/2005 (Madrid Audiencia Provincial) 3711
Judgment of 4 March 2005, Case No. AAP M 1798/2005 (Madrid Audiencia Provincial) 3772
Judgment of 29 July 2005, Sogecable SA v. Auna Telecomunicaciones SA, SAP M 9531/2005
(Madrid Audiencia Provincial) 1876
Judgment of 20 January 2006, Sofía v. Tintorería Paris, Case No. SAP M 877/2006, Legal
Ground No. 2 (Madrid Audiencia Provincial) 3647
Judgment of 2 February 2006, Case No. AC 15/2006 (Asturias Audiencia Provincial) 1179
Judgment of 22 March 2006, Uniprex SA v. Grupo Radio Blanca, Case No. SAP M 2572/2006,
Legal Ground No. 2 (Madrid Audiencia Provincial) 3437, 3556, 3604, 3618
Judgment of 27 June 2006, Case No. SAP C 1594/2006 (A Coruña Audiencia Provincial) 3513
Judgment of 20 July 2006, Marti Corell Lux SL v. Dario, Case No. AAP V 216/2006 (Valencia
Audiencia Provincial) 3711
Judgment of 5 October 2006, Andrés v. Díez Carrillo SL, AAP IB 659/2006 (Palma de Mallorca
Audiencia Provincial) 801, 1179, 1381
Judgment of 16 October 2006, Case No. SAP M 16582/2006 (Madrid Audiencia Provincial)
3612
Judgment of 2 February 2007, Jaral Decoración, SL v. Peñasco Rodilla, SL, Case No. SAP M
1255/2007 (Madrid Audiencia Provincial) 3439, 3440, 3577, 3578, 3586, 3595, 3598
Judgment of 30 April 2007, Case No. SAP M 240/2007, Legal Ground Nos. 2 (Madrid
Judgment of 13 June 2007, Rostock Proyectos, SL v. Técnicas Reunidas, SA, SAP M 10195/2007
(Madrid Corte Provincial) 1909
Judgment of 18 January 2008, FINDESCO SLU v. Letitia, Case No. SAP B 1657/2008
(Barcelona Audiencia Provincial) 3546
Judgment of 25 January 2008, Egson Construcciones SA (Ecosa) v. Canteras y Construcciones
SA, Case No. SAP M 1439/2008 (Madrid Audiencia Provincial) 3522
Judgment of 13 February 2008, Case No. AAP M 1837/2008 (Madrid Audiencia Provincial)
3772
Judgment of 13 February 2008, Case No. SAP M 2227/2008 (Madrid Audiencia Provincial)
3541
Judgment of 5 May 2008, Skoda Power SA v. Abener Energia-El Sauz SA, No. 221/2008, 3
(2009) (Madrid Audiencia Provincial) 2036
Judgment of 15 September 2008, JUR 2008, 382560 (Madrid Audiencia Provincial) 3690
Judgment of 27 October 2008, Urbaser v. Babcock, Case No. SAP M 14661/2008 (Madrid
P 4624 Audiencia Provincial) 3532, 3580
Judgment of 29 April 2009, Licensing Projects SL v. Pirelli & C. SpA, XXXV Y.B. Comm. Arb. 452
(Barcelona Audiencia Provincial) (2010) 767
Judgment of 28 May 2009, Proindein SA v. Eguskitzu SL, Case No. SAP SS 490/2009
(Gipuzkoa Audiencia Provincial) 3459, 3540
Judgment of 5 June 2009, Gasolinera San Isidro v. Compañia Española Distribuidora de
Petróleos, Case No. SAP M 10841/2009 (Madrid Audiencia Provincial) 419
Judgment of 13 July 2009, ERG Petroleos v. Realesser, Case No. 289/2009 (Madrid Audiencia
Provincial) 1199, 3683
Judgment of 8 October 2009, Case No. SAP MU 1645/2009 (Murcia Audiencia Provincial)
565
3548
Judgment of 16 December 2009, JUR 2009, 193855 (Madrid Audiencia Provincial) 3690
Judgment of 12 February 2010, T.D.N. SA v. Tokio Marine Euro. Ins., Case No. SAP M
2047/2010 (Madrid Audiencia Provincial) 3439, 3598
Judgment of 15 April 2010, Antonia & Roman v. Maria, Case No. SAP M 6918/2010 (Madrid
Judgment of 22 November 2010, Carmen Colom Patriomonial SL v. Arquitectura e
Interiorismo SL, Case No. SAP IB 2170/2010 (Palma de Mallorca Audiencia Provincial) 2989,
3592
Judgment of 26 November 2010, Case No. SAP M 17907/2010 (Madrid Audiencia Provincial)
3630
Judgment of 10 June 2011, Case No. 200/2011 (Madrid Audiencia Provincial) 2161, 3533
Judgment of 30 June 2011, Sociedad de Valores, SA v. Banco Santander SA, Case No. 3/2009
(Madrid Audiencia Provincial) 1895, 1911, 2000, 2008, 2029
Judgment of 10 December 2012, Hostelería Valdeolmillos SA v. Caja de Ahorros Pensiones
Barcelona, Case No. SAP O 3569/2012 (Oviedo Audiencia Provincial) 419
Judgment of 17 December 2012, Case No. SAP VA 1793/2012 (Valladolid Audiencia
Provincial) 3458
Judgment of 18 October 2013, Camimalaga v. DAF Vehiculos Industriales, SA, 2013 Arbitraje
437 (Madrid Audiencia Provincial) 936
Judgment of 1 February 2019, AAP M 70/2019 (Madrid Audiencia Provincial) 4018
Other Courts
Judgment of 28 May 2002 (Barcelona Juzgado de Primera Instancia), cited in López de
Argumedo Piñeiro & Menéndez de la Cuesta Lamas, La Intervención Judicial en el Arbitraje:
Análisis de Jurisprudencia Española Reciente, 2010:8 Spanish Arb. Rev. 53, 1179
Judgment of 2 November 2005, Clínica Columbia SA v. RMN San Antonio SL, Case No. AJM BI
67/2005 (Bilbao Juzgado de lo Mercantil) 1179
Judgment of 11 June 2007, Pavan SRL v. Leng d’Or, SA, AJPII 6/2007 (Rubí Juzgado de
Primera Instancia) 4164
Judgment of 11 June 2007, XXXV Y.B. Comm. Arb. 444 (Spanish Juzgado de Primera Instancia
e Instrucción) (2010) 3905
Judgment of 17 November 2011, XXXVII Y.B. Comm. Arb. 297 (Catalonia Tribunal Superior de
Justícia) (2012) 3958
Judgment of 13 March 2012, Diques y Astilleros Nacionales CA v. Raytheon Anschutz GmbH,
2012 Arbitraje 854, 856 (Madrid Tribunal Superior de Justicia) 775
Judgment of 8 May 2012, Catleiva SL v. Herseca Inmobiliaria SL, Case No. STSJ CV 3915/2012
(Valencia Community Tribunal Superior de Justicia) 983, 3463, 3801
Judgment of 25 September 2012, Case No. STSJ PV 1232/2012, Legal Ground No. 6 (Basque
P 4625 Country Trib. Superior de Justicia) 3558, 3565, 3566
Judgment of 2 November 2012, Case No. STSJ 13404/2011 (Andalucía Tribunal Superior de
Justicia) 3460
Judgment of 6 March 2013, Case No. STSJ CAT 5343/2013 (Catalonia Tribunal Superior de
Justicia) 3458
Judgment of 4 April 2013, STSJ CAT 5322/2013 (Catalonia Tribunal Superior de Justicia) 3458
Judgment of 6 February 2014, 8(1) Arbitraje: Revista de Arbitraje Comercial y de
Inversiones 189 (Catalonia Tribunal Superior de Justiça) (2015) 419
Judgment of 19 February 2014, XLI Y.B. Comm. Arb. 553 (Catalunya Tribunal Superior de
Justicia) (2016) 3702, 3848, 3872, 4071
Judgment of 18 September 2014, Case No. 51/2014 (Madrid Tribunal Superior de Justicia)
3519
Judgment of 16 October 2014, Mediterranean Shipping Co., SA v. Fruta Del Pacífico, SA, XLI
Y.B. Comm. Arb. 560 (Catalonia Tribunal Superior de Justícia) (2016) 1677, 1680, 4006
Judgment of 16 October 2014, XLI Y.B. Comm. Arb. 560 (Catalonia Tribunal Superior de
Justicia) (2016) 3926
Judgment of 28 October 2014, Allied Chem. Carriers LLC v. Azucarera del Guadalfeo SA, ATSJ
AND 161/2014 (Granada Tribunal Superior de Justicia) 3698
Judgment of 16 December 2014, No. 68/2014 (Madrid Tribunal Superior de Justicia) 1540
Judgment of 7 January 2015, Bimecks Lon v. Celesa Celulosa de Levante, SA, XLII Y.B. Comm.
Arb. 507 (Catalonia Tribunal Superior de Justícia) (2017) 4072
566
Judgment of 28 January 2015, Case No. 13/2015 (Madrid Tribunal Superior de Justicia) 3622
Judgment of 19 March 2015, Ecoagrícola SA v. Unión Invivo-Unión de Cooperatives Agricoles,
Case No. SAP C 737/2015 (Coruña Audiencia Provincial) 419
Judgment of 21 April 2015, STSJ M 4055/2015 (Madrid Tribunal Superior de Justícia) 4018
Judgment of 16 July 2015, Princess Holding BV v. Dosefes, SA, XLII Y.B. Comm. Arb. 510
(Catalonia Tribunal Superior de Justicia) (2017) 3761
Judgment of 6 October 2015, Consultores Integrales de Telecomunicacion Consulintel SL v.
Telefónica Investigación y Desarrollo, Case No. 14/2015 (Madrid Tribunal Superior de
Justicia) 1986
Judgment of 14 December 2015, Hochtief Solutions, AG v. Equip Tecnic Santandreu, SA, XLII
Y.B. Comm. Arb. 512 (Catalonia Tribunal Superior de Justicia) (2017) 3761
Judgment of 17 December 2015, Cárnicas 7 Hermanos SA v. Compañía Española de Seguros
de Crédito a la Exportación SA, Case No. 11/2015 (Madrid Tribunal Superior de Justicia)
1986
Judgment of 6 May 2016, Elbana di Navigazione SpA v. Biotrading 2007 SLNE, XLII Y.B.
Comm. Arb. 514 (Catalunya Tribunal Superior de Justicia) (2017) 3783
Judgment of 19 May 2016, Premiere Entm’t Group, LLC v. Savor Ediciones SA, XLII Y.B. Comm.
Arb. 517 (Catalunya Tribunal Superior de Justicia) (2017) 3726, 3761
Judgment of 28 September 2016, Orange Middle E. & Africa, SA v. Equatorial Guinea, XLIII
Y.B. Comm. Arb. 557 (Madrid Tribunal Superior de Justícia) (2018) 4071
Judgment of 28 September 2016, XLIII Y.B. Comm. Arb. 555 (Madrid Tribunal Superior de
Justícia) (2018) 4071
Judgment of 19 December 2016, UGF Merchant – Banca per le Imprese v. ROS ROCA Group,
SL, XLIII Y.B. Comm. Arb. 706 (Catalonia Tribunal Superior de Justícia) (2018) 3725, 4006,
4016
Judgment of 18 January 2017, STSJ M 104/2017 (Madrid Tribunal Superior de Justicia) 3267
Judgment of 14 February 2017, IDAC v. GECI España, SA, XLIII Y.B. Comm. Arb. 571 (Madrid
P 4626 Tribunal Superior de Justícia) (2018) 3962
Judgment of 4 April 2017, Case Nos. 43/2016 & 63/2016 (Madrid Tribunal Superior de
Justicia) 3625
Judgment of 11 July 2017, STSJ M 8076/2017 (Madrid Tribunal Superior de Justícia) 4038
Judgment of 26 September 2017, STSJ M 10082/2017 (Madrid Tribunal Superior de Justícia)
4021
Judgment of 18 April 2018, Funkwerk ES Iberia, SL v. Bintec Elmeg GmbH, XLIV Y.B. Comm.
Arb. 673 (Madrid Tribunal Superior de Justicia) (2019) 3702
Sweden
Supreme Court
Judgment of 3 October 1936, AB Norrköpings Trikåfabrik v. AB Per Persson, 1936 NJA 521
(Swedish S.Ct.) 418, 485, 912, 920
Judgment of 24 March 1976, Hermansson v. AB Asfalbelaeggnigar, 1976 NJA 125 (Swedish
S.Ct.) 485, 500
Judgment of 13 August 1979, Götaverken v. GMTC, VI Y.B. Comm. Arb. 237 (Swedish S.Ct.)
(1981) 3882, 3883, 3886, 3965, 3764, 3962, 3988
Judgment of 6 March 1986, Kvarnabo Timber AB v. Cordes GmbH & Co, 1986 NJA C26, C27
(Swedish S.Ct.) 3922
Judgment of 15 October 1997, MS “EMJA” Braack Schifffahrts KG v. Wartsila Diesel Aktiebolag,
XXIV Y.B. Comm. Arb. 317 (Swedish S.Ct.) (1999) 1577, 1579
Judgment of 27 October 2000, Bulgarian Foreign Trade Bank, Ltd v. A.I. Trade Fin., Inc., XXVI
Y.B. Comm. Arb. 291 (Swedish S.Ct.) (2001) 520, 552, 558
Judgment of 23 October 2002, Grizila v. Letth, 2002 NJA C51 (Swedish S.Ct.) 4033, 4034
Judgment of 18 December 2002, Lettland v. SwemBalt AB, 2002 NJA C62 (Swedish S.Ct.) 4047
Judgment of 19 November 2007, Jilken v. Ericsson AB, 2007:5 Stockholm Int’l Arb. Rev. 167
(Swedish S.Ct.) 1987
Judgment of 2008, Soyak Int’l Constr. & Inv. Inc. v. Hobér, Kraus & Melis, Case No. O 4227-06
(Swedish S.Ct.) 2168, 2173
Judgment of 9 June 2010, Case No. T 156-09 (Swedish S.Ct.) 1912, 1914, 2018, 2019
Judgment of 12 November 2010, 2010 NJA 57 (Swedish S.Ct.) 2214
Judgment of 12 November 2010, RosInvestCo. UK Ltd v. Russia, Case No. Ö 2301-09 (Swedish
567
S.Ct.) 1310, 1661, 1668, 1732, 1739, 3267
Judgment of 12 November 2010, RosInvestCo UK Ltd v. Russia, 2010 NJA 508; XXXVI Y.B.
Comm. Arb. 334 (Swedish S.Ct.) (2011) 1309, 3183, 3197
Judgment of 23 November 2012, Case No. T 4982-11 (Swedish S.Ct.) 1056
Judgment of 14 June 2013, Case No. Ö 2104-12 (Swedish S.Ct.) 3571
Judgment of 20 March 2019, Belgorkhimprom v. Koca Inșaat Sanayi Ihracat Anonim Șirketi,
Case No. T5437-17 (Swedish S.Ct.) 113, 1310
Court of Appeal
Jilken v. Ericsson, Case No. T 6875-04 (Svea Ct. App.) 2008
Judgment of 30 March 1999, 14(4) Mealey’s Int’l Arb. Rep. A-1 (Svea Ct. App.) (1999) 3011
Judgment of 21 March 2001, XXVII Y.B. Comm. Arb. 551, 552 (Svea Ct. App.) (2002) 3892
Judgment of 7 September 2001, XXVII Y.B. Comm. Arb. 554 (Svea Ct. App.) (2002) 3789, 3799
Judgment of 16 May 2002, Case No. T4496-01 (Svea Ct. App.) 1573, 1575
Judgment of 15 May 2003, Czechia v. CME Czech Repub. BV, Case No. T 8735-01 (Svea Ct.
P 4627 App.) 1335, 1557, 2473, 2995, 3312, 3534, 4139
Judgment of 20 February 2004, Arkhangelskoe Geologodobychnoe Predpriyatie v. Archangel
Diamond Corp., Case No. T-2277-04 (Svea Ct. App.) 645
Judgment of 17 December 2004, Ukraine v. Norsk Hydro ASA, Case No. T 3108-06 (Svea Ct.
App.) 418
Judgment of 28 February 2005, Titan Corp. v. Alcatel CIT, SA, XXX Y.B. Comm. Arb. 139 (Svea
Ct. App.) (2005) 3197, 3241
Judgment of 4 May 2005, Latvian v. JSC Latvigas Gaze, Case No. T 6730-03 (Svea Ct. App.)
3622
Judgment of 15 November 2005, Arkhangelskoe Geologodobychnoe Predpriyatie v.
Archangel Diamond Corp., Case No. T-2277-04 (Svea Ct. App. 2005) 1036, 1043, 1056, 1127,
3600
Judgment of 10 December 2008, Korsnäs Aktiebolag v. AB Fortum Värme Samägt med
Stockholms stad, Case No. T 10321-06 (Svea Ct. App.) 1987
Judgment of 21 January 2011, Case No. T 2375-08 (Svea Ct. App.) 1121
Judgment of 9 March 2011, Case No. Ö 8181-10 (Svea Ct. App.) 2507, 2508, 2510, 2574
Judgment of 10 April 2013, Case No. T 2484-11 (Svea Ct. App.) 1986, 1987
Judgment of 11 April 2014, Case No. T 245-11, T 344-11 (Svea Ct. App.) 3663
Judgment of 8 July 2014, Case No. T 1459-13 (Svea Ct. App.) 3507
Judgment of 20 March 2015, Case No. T 8043-13 (Svea Ct. App) 1094
Judgment of 25 June 2015, Case No. T 2289-14 (Svea Ct. App.) 3577, 3585
Judgment of 25 August 2016, AFO Entreprenader AB v. Infratek Sverige AB, Case No. T 391-16
(Svea Ct. App.) 3599
Judgment of 9 December 2016, Case No. T 2675-14 (Svea Ct. App.) 3463, 3603
Judgment of 28 August 2017, Case Nos. T 756-16 & T 4427-16 (Svea Ct. App.) 3578
Judgment of 31 October 2017, Case No. T 6247-15 (Svea Ct. App.) 1483, 3439
Judgment of 22 February 2019, Case Nos. T 8538-17 & T 12033-17 (Svea Ct. App.) 1043, 2352,
3487
City Court
Judgment of 21 June 2004, Case No. A 7145-04 (Stockholm Dist. Ct.) 2019
Sri Lanka
Kiran Atapattu v. Janashakthi Gen. Ins. Co. Ltd, [2013] SC Appeal 30-31/2005 (Sri Lanka
S.Ct.) 3612
Switzerland
Swiss Federal Tribunal
Judgment of 22 October 1881, DFT 7 I 705 (Swiss Fed. Trib.) 391
Judgment of 31 January 1907, DFT 33 I 143 (Swiss Fed. Trib.) 2000
Judgment of 26 October 1907, DFT 33 II 648 (Swiss Fed. Trib.) 1086
Judgment of 5 March 1915, DFT 41 II 310 (Swiss Fed. Trib.) 391
Judgment of 28 May 1915, Jörg v. Jörg, DFT 41 II 534 (Swiss Fed. Trib.) 241, 385, 550
568
Judgment of 2 October 1931, DFT 57 I 295 (Swiss Fed. Trib.) 535, 547, 602, 1349, 1371, 1373
Judgment of 7 October 1933, DFT 59 I 177 (Swiss Fed. Trib.) 1081
Judgment of 7 October 1933, Tobler v. Justizkommission des Kantons Schwyz, DFT 59 I 177
(Swiss Fed. Trib.) 241, 385, 391, 427, 481, 550
P 4628 Judgment of 6 November 1936, DFT 62 I 230 (Swiss Fed. Trib.) 391, 481
Judgment of 28 January 1938, DFT 64 I 39 (Swiss Fed. Trib.) 391, 481
Judgment of 17 March 1939, DFT 65 I 19 (Swiss Fed. Trib.) 482
Judgment of 22 November 1950, DFT 76 I 338 (Swiss Fed. Trib.) 890, 1531
Judgment of 7 July 1962, DFT 88 I 100 (Swiss Fed. Trib.) 393, 482, 912, 1462
Judgment of 26 October 1966, DFT 92 I 271 (Swiss Fed. Trib.) 2000, 2005, 2041
Judgment of 29 December 1967, DFT 93 III 84 (Swiss Fed. Trib.) 1087
Judgment of 17 March 1976, DFT 102 Ia 493 (Swiss Fed. Trib.) 1465, 1469, 1807
Judgment of 5 May 1976, V Y.B. Comm. Arb. 217 (Swiss Fed. Trib.) (1980) 668
Judgment of 8 February 1978, Chrome Res. SA v. Léopold Lazarus Ltd, XI Y.B. Comm. Arb. 538
(Swiss Fed. Trib.) (1986) 3617, 3837, 3863, 3866, 3861, 3868, 3877, 3909, 4026, 4043
Judgment of 19 June 1980, DFT 106 Ia 142 (Swiss Fed. Trib.) 3229
Judgment of 26 November 1980, 1982 SJ 613 (Swiss Fed. Trib.) 3537
Judgment of 11 November 1981, DFT 107 Ia 155 (Swiss Fed. Trib.) 1879
Judgment of 26 February 1982, IX Y.B. Comm. Arb. 436 (Swiss Fed. Trib.) (1984) 1733
Judgment of 26 February 1982, Joseph Mueller AG v. Bergesen, IX Y.B. Comm. Arb. 437 (Swiss
Fed. Trib.) (1984) 1686, 3722, 3725, 3732, 3737, 3738, 3903, 3923, 3924, 3959, 3962
Judgment of 10 May 1982, DFT 108 Ia 197 (Swiss Fed. Trib.) 1356, 1358, 2075
Judgment of 18 February 1983, DFT 109 Ia 81 (Swiss Fed. Trib.) 1358
Judgment of 7 February 1984, DFT 110 II 54 (Swiss Fed. Trib.) 114, 117
Judgment of 7 February 1984, Tradax Exp. SA v. Amoco Iran Oil Co., DFT 110 II 54 (Swiss Fed.
Trib.) (1986) 106, 257, 658, 701
Judgment of 14 March 1984, XI Y.B. Comm. Arb. 536 (Swiss Fed. Trib.) (1986) 3719, 3725
Judgment of 16 April 1984, 1986 Rev. Arb. 596 (Swiss Fed. Trib.) 837, 948, 1832, 1849
Judgment of 6 November 1984, DFT 110 II 342 (Swiss Fed. Trib.) 1605
Judgment of 14 March 1985, DFT 111 Ia 72 (Swiss Fed. Trib.) 2041, 2160, 3570
Judgment of 22 May 1985, DFT 111 II 62 (Swiss Fed. Trib.) 1021
Judgment of 5 November 1985, Tracomin SA v. Sudan Oil Seeds Co., XII Y.B. Comm. Arb. 511
(Swiss Fed. Trib.) (1987) 723, 725, 726, 730, 731, 746, 863
Judgment of 15 May 1986, XII Y.B. Comm. Arb. 489 (Swiss Fed. Trib.) (1987) 3944
Judgment of 9 December 1986, DFT 112 Ia 350 (Swiss Fed. Trib.) 2290
Judgment of 19 January 1987, DFT 113 Ia 172 (Swiss Fed. Trib.) 3229
Judgment of 26 January 1987, XV Y.B. Comm. Arb. 505 (Swiss Fed. Trib.) 1482
Judgment of 7 June 1988, DFT 114 II 131 (Swiss Fed. Trib.) 4188
Judgment of 19 July 1988, XVI Y.B. Comm. Arb. 180 (Swiss Fed. Trib.) (1991) 1533
Judgment of 12 January 1989, XV Y.B. Comm. Arb. 509 (Swiss Fed. Trib.) (1990) 730, 3516,
3537, 3822, 3842, 3858, 3863, 3868, 3872, 3878, 3940, 3944, 3949, 3950, 3955, 4024
Judgment of 7 April 1989, DFT 115 II 105 (Swiss Fed. Trib.) 4024
Judgment of 20 December 1989, Ivan Milutinovic PIM v. Deutsche Babcock AG, DFT 117 Ia 166
(Swiss Fed. Trib.) 2155
Judgment of 6 February 1990, DFT 116 II 80 (Swiss Fed. Trib.) 3580
Judgment of 15 March 1990, Sonatrach v. K.C.A. Drilling Ltd, DFT 116 Ia 56; 1990 Rev. Arb. 921
(Swiss Fed. Trib.) 74, 392, 688, 694, 695, 784, 801, 815, 825, 939, 941, 1438, 1451, 1456, 1477,
1478, 1486, 1490
Judgment of 17 April 1990, 11 ASA Bull. 253 (Swiss Fed. Trib.) (1993) 2900
Judgment of 17 April 1990, XIX Y.B. Comm. Arb. 214 (Swiss Fed. Trib.) (1994) 2925
Judgment of 17 May 1990, 8 ASA Bull. 286 (Swiss Fed. Trib.) (1990) 3173
P 4629 Judgment of 21 August 1990, DFT 116 II 373 (Swiss Fed. Trib.) 3296, 3656, 3869
569
Judgment of 14 November 1990, DFT 116 II 634 (Swiss Fed. Trib.) 2991, 2994, 3593, 3650
Judgment of 19 December 1990, DFT 116 II 639 (Swiss Fed. Trib.) 3513, 3516, 3520, 3662, 3669
Judgment of 20 December 1990, DFT 116 Ia 485 (Swiss Fed. Trib.) 1906, 1927
Judgment of 7 February 1991, 9 ASA Bull. 269 (1991) (Swiss Fed. Trib.) 833
Judgment of 9 April 1991, DFT 117 II 94 (Swiss Fed. Trib.) 1086, 1582
Judgment of 30 April 1991, DFT 117 Ia 166 (Swiss Fed. Trib.) 2102, 3533
Judgment of 1 July 1991, 9 ASA Bull. 415 (Swiss Fed. Trib.) (1991) 3850
Judgment of 1 July 1991, DFT 117 II 346 (Swiss Fed. Trib.) 3850, 3551, 3552, 3922, 3545
Judgment of 14 November 1991, XVII Y.B. Comm. Arb. 279 (Swiss Fed. Trib.) 3478
Judgment of 26 November 1991, DFT 117 IA 365 (Swiss Fed. Trib.) 270, 293, 297
Judgment of 11 March 1992, 1993 Rev. Arb. 115 (Swiss Fed. Trib.) 3413
Judgment of 28 April 1992, XVIII Y.B. Comm. Arb. 143 (Swiss Fed. Trib.) (1993) 1472, 1064,
1065, 2910, 3478, 3479
Judgment of 30 April 1992, DFT 4P.273/1991 (Swiss Fed. Trib.) 3578
Judgment of 23 June 1992, DFT 118 II 353 (Swiss Fed. Trib.) 644, 650, 954, 959, 960, 1035, 1043,
1046, 1047, 1083, 1465, 4060
Judgment of 23 June 1992, Fincantieri-Cantieri Navali Italiani SpA v. Oto Melara SpA, XX Y.B.
Comm. Arb. 766 (Swiss Fed. Trib.) (1995) 4062
Judgment of 18 August 1992, DFT 118 II 359 (Swiss Fed. Trib.) 1918, 1944, 2069, 2089
Judgment of 13 October 1992, 11 ASA Bull. 68 (Swiss Fed. Trib.) (1993) 671
Judgment of 22 December 1992, 14 ASA Bull. 646 (Swiss Fed. Trib.) (1996) 1525, 1532, 1533
Judgment of 2 February 1993, DFT 119 II 380 (Swiss Fed. Trib.) 393
Judgment of 15 March 1993, DFT 119 II 271 (Swiss Fed. Trib.) 1046
Judgment of 2 September 1993, Nat’l Power Corp. v. Westinghouse, DFT 119 II 380 (Swiss Fed.
Trib.) 377, 378, 482, 644, 1079, 1213, 2910, 3476
Judgment of 7 September 1993, DFT 119 II 386 (Swiss Fed. Trib.) 1735, 2348, 3496, 3524, 3543
Judgment of 9 September 1993, DFT 119 II 391 (Swiss Fed. Trib.) 863
Judgment of 16 January 1994, 13 ASA Bull. 503 (Swiss Fed. Trib.) (1995) 1147
Judgment of 19 April 1994, DFT 120 II 155 (Swiss Fed. Trib.) 866, 1070, 1533
Judgment of 19 April 1994, U.A.E. v. Westland Helicopters Ltd, DFT 120 II 155 (Swiss Fed. Trib.)
1211, 4139, 4148, 4153, 4158
Judgment of 19 April 1994, Westland Helicopters Ltd v. Arab British Helicopter Co., DFT
4A_120 II 155 (Swiss Fed. Trib.) 3606
Judgment of 19 April 1994, Westland Helicopters Ltd v. Arab British Helicopter Co., DFT
4A_120 II 172 (Swiss Fed. Trib.) 3578, 3579
Judgment of 30 June 1994, Hitachi Ltd v. SMS Schloemann Siemag AG, 15 ASA Bull. 99 (Swiss
Fed. Trib.) 1784, 2069, 2089, 3549, 3569
Judgment of 30 June 1994, 15 ASA Bull. 99 (Swiss Fed. Trib.) (1997) 2060, 2081
Judgment of 30 December 1994, 13 ASA Bull. 217 (Swiss Fed. Trib.) 2331, 2342, 2347, 3496,
3502, 3825
Judgment of 9 January 1995, Inter Maritime Mgt SA v. Russin & Vecchi, XXII Y.B. Comm. Arb.
P 4630 789 (Swiss Fed. Trib.) 3365, 3608, 3699, 3963, 3964, 4024, 4026, 4071
Judgment of 16 January 1995, Compagnie de Navigation et Transports SA v. Mediterranean
Shipping Co. SA, XXI Y.B. Comm. Arb. 690 (Swiss Fed. Trib.) (1996) 151, 727, 730, 733, 746, 752,
757, 1210, 1211, 1212, 1586, 1590
Judgment of 16 January 1995, DFT 121 III 38 (Swiss Fed. Trib.) 731
Judgment of 16 January 1995, XXI Y.B. Comm. Arb. 690 (Swiss Fed. Trib.) (1996) 860
Judgment of 21 March 1995, Ins. Co. v. Reins. Co., XXII Y.B. Comm. Arb. 800 (Swiss Fed. Trib.)
(1997) 511, 515, 523, 533, 534, 539, 603, 604, 711, 716, 1509
Judgment of 17 August 1995, 14 ASA Bull. 673 (Swiss Fed. Trib.) (1996) 1008, 1213, 3915
Judgment of 20 December 1995, 14 ASA Bull. 508 (1996) (Swiss Fed. Trib.) 942
570
Judgment of 20 December 1995, DFT 121 III 495 (1995) (Swiss Fed. Trib.) 482, 768, 873, 1155,
1209, 1390, 1431, 1456, 1485, 1490
Judgment of 29 January 1996, 14 ASA Bull. 496 (Swiss Fed. Trib.) (1996) 1547, 1566
Judgment of 22 March 1996, DFT 122 I 57 (Swiss Fed. Trib.) 4188
Judgment of 29 April 1996, 14 ASA Bull. 527 (Swiss Fed. Trib.) (1996) 151, 1147, 1210, 1211
Judgment of 6 September 1996, 15 ASA Bull. 291 (Swiss Fed. Trib.) (1997) 392, 2522, 2524
Judgment of 1 November 1996, DFT 122 III 492 (Swiss Fed. Trib.) 2360
Judgment of 24 March 1997, 15 ASA Bull. 316 (1997) (Swiss Fed. Trib.) 2229, 3194
Judgment of 19 December 1997, Compañia Minera Condesa SA v. BRGM-Pérou SAS, DFT 124 III
83 (Swiss Fed. Trib.) 1390, 4148, 4154, 4158
Judgment of 9 February 1998, 16 ASA Bull. 634 (Swiss Fed. Trib.) (1998) 1906, 2060, 2081,
3569
Judgment of 9 June 1998, 16 ASA Bull. 653 (Swiss Fed. Trib.) (1998) 481, 1577, 3519
Judgment of 13 November 1998, XXV Y.B. Comm. Arb. 511 (Swiss Fed. Trib.) (2000) 1065, 1069,
1083, 2929, 3622
Judgment of 22 February 1999, 17 ASA Bull. 537 (Swiss Fed. Trib.) (1999) 3648
Judgment of 11 May 1999, 18 ASA Bull. 323 (Swiss Fed. Trib.) (2000) 3630, 3631
Judgment of 11 May 1999, DFT 125 III 312 (Swiss Fed. Trib.) 4188
Judgment of 13 November 1999, 17 ASA Bull. 529 (Swiss Fed. Trib.) (1999) 2900
Judgment of 8 December 1999, 18 ASA Bull. 546 (Swiss Fed. Trib.) (2000) 839, 1532
Judgment of 3 October 2000, DFT 4P.60/2000 (Swiss Fed. Trib.) 251
Judgment of 3 October 2000, Nejapa Power Co. v. CEL, 19 ASA Bull. 796 (Swiss Fed. Trib.)
1423, 1476, 3584
Judgment of 2 November 2000, DFT 126 III 524 (Swiss Fed. Trib.) 3378, 3387, 3402, 3407
Judgment of 7 February 2001, DFT 4P.230/2000 (Swiss Fed. Trib.) 887
Judgment of 28 March 2001, 19 ASA Bull. 807 (Swiss Fed. Trib.) (2001) 2920
Judgment of 14 May 2001, Fomento de Construcciones y Contratas SA v. Colon Container
Terminal SA, DFT 127 III 279 (Swiss Fed. Trib.) 1390, 4139, 4148, 4154, 4171, 4172
Judgment of 7 August 2001, 20 ASA Bull. 88 (Swiss Fed. Trib.) (2002) 1580
P 4631 Judgment of 7 August 2001, DFT 4P.124/2001 (Swiss Fed. Trib.) 752
Judgment of 7 August 2001, Nortrop Speditions- und Schifffahrtsgesellschaft, Hamburg v.
Transrail AG, St. Gallen, 20 ASA Bull. 293 (2002) (Swiss Fed. Trib.) 1021
Judgment of 10 September 2001, DFT 127 III 576 (Swiss Fed. Trib.) 3514
Judgment of 15 October 2001, DFT 4P.188/2001 (Swiss Fed. Trib.) 2002
Judgment of 16 October 2001, 2002 Rev. Arb. 753 (Swiss Fed. Trib.) 392, 768, 1582, 1583
Judgment of 16 October 2001, DFT 128 III 50 (Swiss Fed. Trib.) 694, 752, 801, 866, 1155
Judgment of 18 December 2001, LUKoil-Permnefteorgsintez, LLC v. MIR Müteahhitlik ve
Ticaret A.S., 20 ASA Bull. 482 (Swiss Fed. Trib.) (2002) 1580, 1565
Judgment of 19 December 2001, DFT 4P.114/2001 (Swiss Fed. Trib.) 3598
Judgment of 1 February 2002, 20 ASA Bull. 337 (Swiss Fed. Trib.) (2002) 1069, 3622
Judgment of 3 April 2002, DFT 128 II 191 (Swiss Fed. Trib.) 4106, 4137, 4139
571
Judgment of 31 May 2002, DFT 4P.102/2001 (Swiss Fed. Trib.) 3769
Judgment of 31 May 2002, XXVIII Y.B. Comm. Arb. 835 (Swiss Fed. Trib.) (2003) 3790, 3793
Judgment of 24 June 2002, 21 ASA Bull. 131 (Swiss Fed. Trib.) (2003) 363
Judgment of 26 November 2002, DFT 4P_129/2002 (Swiss Fed. Trib.) 1782, 3267
Judgment of 10 December 2002, 21 ASA Bull. 585 (Swiss Fed. Trib.) (2003) 2335
Judgment of 12 March 2003, DFT 4P.2/2003 (Swiss Fed. Trib.) 944, 945, 2300, 3500, 3903
Judgment of 19 May 2003, 22 ASA Bull. 344 (Swiss Fed. Trib.) (2004) 1438, 1523, 1576, 1591
Judgment of 19 May 2003, DFT 4C.40/2003 (Swiss Fed. Trib.) 1081
Judgment of 27 May 2003, XXIX Y.B. Comm. Arb. 206 (Swiss Fed. Trib.) (2004) 1924, 4016
Judgment of 10 June 2003, 21 ASA Bull. 829 (Swiss Fed. Trib.) (2003) 2060, 2081, 3569
Judgment of 4 July 2003, DFT 4P.137/2002 (Swiss Fed. Trib.) 768
Judgment of 8 July 2003, DFT 129 III 675 (Swiss Fed. Trib.) 269, 271, 275, 555, 644, 688, 694,
784, 801, 810, 815, 817, 822, 833,1438
Judgment of 16 October 2003, 22 ASA Bull. 364 (Swiss Fed. Trib.) (2004) 516, 612, 613, 632,
644, 1518, 1529, 1542, 1547, 1566, 1605, 1605
Judgment of 16 October 2003, DFT 129 III 727 (Swiss Fed. Trib.) 688
Judgment of 16 October 2003, DFT 4P.115/2003 (Swiss Fed. Trib.) 392, 752
Judgment of 21 November 2003, DFT 130 III 66 (Swiss Fed. Trib.) 273, 277, 688, 784, 815, 822,
833, 971, 1358, 1427
Judgment of 8 December 2003, XXIX Y.B. Comm. Arb. 834 (Swiss Fed. Trib.) (2003) 3702, 3712,
3725, 3958, 4001, 4007, 4009, 4045, 4046
Judgment of 9 December 2003, DFT 130 III 125 (Swiss Fed. Trib.) 3387
Judgment of 16 March 2004, 22 ASA Bull. 770 (Swiss Fed. Trib.) 3551, 3552
Judgment of 2 June 2004, DFT 4P.64/2004 (Swiss Fed. Trib.) 3496
Judgment of 6 October 2004, DFT 130 III 755 (Swiss Fed. Trib.) 3183, 3397
P 4632 Judgment of 18 October 2004, 23 ASA Bull. 164 (Swiss Fed. Trib.) (2005) 2912, 2921
Judgment of 12 January 2005, DFT 131 III 164 (Swiss Fed. Trib.) 3369, 3387, 3397
Judgment of 4 February 2005, DFT 131 III 173 (Swiss Fed. Trib.) 3669
Judgment of 10 October 2005, 4C.146/2005 (Swiss Fed. Trib.) 3649
Judgment of 10 November 2005, DFT 4P_154/2005 (Swiss Fed. Trib.) 3288
Judgment of 3 January 2006, 24 ASA Bull. 748 (Swiss Fed. Trib.) 3738, 3844
Judgment of 8 March 2006, 4P.278/2005 (Swiss Fed. Trib.) 2910
Judgment of 8 March 2006, DFT 132 III 389 (Swiss Fed. Trib.) 1065, 1069, 1354, 2926, 3621,
3606, 3617
Judgment of 8 March 2006, DFT 4P.278/2005 (Swiss Fed. Trib.) 2928, 4049
Judgment of 4 August 2006, DFT 4P.105/2006 (Swiss Fed. Trib.) 2025, 2060, 2081, 3569
Judgment of 26 October 2006, DFT 133 III 61 (Swiss Fed. Trib.) 688
Judgment of 7 November 2006, 25 ASA Bull. 166 (Swiss Fed. Trib.) (2007) 3563, 3564
Judgment of 24 November 2006, DFT 4C.327/2005 (Swiss Fed. Trib.) 1547
Judgment of 22 March 2007, DFT 133 III 235 (Swiss Fed. Trib.) 931, 3536, 3669
Judgment of 28 March 2007, DFT 4A_2/2007 (Swiss Fed. Trib.) 2300, 3500, 3903
Judgment of 6 June 2007, 26 ASA Bull. 87 (Swiss Fed. Trib.) (2008) 977, 985, 993, 995, 3463
Judgment of 20 July 2007, DFT 4A_137/2007 (Swiss Fed. Trib.) 3158
572
Judgment of 22 January 2008, 26 ASA Bull. 549 (Swiss Fed. Trib.) (2008) 1427, 1428, 1429,
1438
Judgment of 29 February 2008, 26 ASA Bull. 376 (Swiss Fed. Trib.) (2008) 1428, 1438, 1458,
1486
Judgment of 14 March 2008, DFT 134 III 186 (Swiss Fed. Trib.) 3413
Judgment of 20 March 2008, DFT 4A_506/2007 (Swiss Fed. Trib.) 1981, 2085
Judgment of 14 August 2008, DFT 4A_234/2008 (Swiss Fed. Trib.) 3630
Judgment of 19 August 2008, DFT 4A_128/2008 (Swiss Fed. Trib.) 516, 565, 612, 1518, 1523,
1531, 1542, 1565, 1573, 1574, 1580, 1611
Judgment of 21 August 2008, DFT 4A_194/2008 (Swiss Fed. Trib.) 1573, 1574, 1575
Judgment of 23 September 2008, DFT 4A_176/2008 (Swiss Fed. Trib.) 2081, 2085
Judgment of 6 October 2008, DFT 5A_201/2008 (Swiss Fed. Trib.) 2026
Judgment of 28 October 2008, DFT 4A_294/2008 (Swiss Fed. Trib.) 3492, 3526
Judgment of 29 October 2008, DFT 130 III 312 (Swiss Fed. Trib.) 3168, 3176, 3179
Judgment of 17 November 2008, DFT 4A_438/2008 (Swiss Fed. Trib.) 285
Judgment of 5 December 2008, DFT 4A_376/2008 (Swiss Fed. Trib.) 937
Judgment of 5 December 2008, 27 ASA Bull. 762 (2009) (Swiss Fed. Trib.) 1430, 1431, 1437,
P 4633 1508, 2232, 2776, 2781
Judgment of 5 December 2008, DFT 4A_376/2008 (Swiss Fed. Trib.) 817, 828, 833, 834, 841,
973, 1527, 1542, 1543, 1606, 1849, 3477
Judgment of 9 December 2008, XXXIV Y.B. Comm Arb. 810 (Swiss Fed. Trib.) 3719, 3725, 3732,
3734, 3737, 3738, 3740, 3963, 3964, 3967
Judgment of 9 February 2009, DFT 4A_400/2008 (Swiss Fed. Trib.) 3532
Judgment of 19 February 2009, 27 ASA Bull. 801 (Swiss Fed. Trib.) (2009) 2335, 3864
Judgment of 31 March 2009, Vivendi SA v. Deutsche Telekom AG, DFT 4A_428/2008 (Swiss
Fed. Trib.) 668, 1093, 2931
Judgment of 31 May 2009, 28 ASA Bull. 104 (Swiss Fed. Trib.) (2010) 952, 1085
Judgment of 9 June 2009, DFT 4A_94/2009 (Swiss Fed. Trib.) 1213
Judgment of 6 October 2009, 27 ASA Bull. 789 (Swiss Fed. Trib.) (2009) 1906, 1927
Judgment of 6 October 2009, Thales v. Frontier AG Berne, DFT 4A_596/2008 (Swiss Fed. Trib.)
3413
Judgment of 6 October 2009, XXXV Y.B. Comm. Arb. 610 (Swiss Fed. Trib.) (2010) 3630
Judgment of 6 November 2009, DFT 4A_358/2009 (Swiss Fed. Trib.) 1429, 1488
Judgment of 8 December 2009, DFT 136 III 107 (Swiss Fed. Trib.) 1086, 1121, 1622
Judgment of 16 December 2009, 29 ASA Bull. 457 (Swiss Fed. Trib.) (2011) 3648
Judgment of 16 December 2009, 4A_240/2009 (Swiss Fed. Trib.) 2995
Judgment of 16 December 2009, DFT 4A_240/2009 (Swiss Fed. Trib.) 2994, 2995,3532, 3593
Judgment of 6 January 2010, DFT 4A_260/2009 (Swiss Fed. Trib.) 3605, 3650
Judgment of 11 January 2010, 28 ASA Bull. 540 (Swiss Fed. Trib.) (2010) 1986, 2019, 2081
Judgment of 20 January 2010, DFT 4A_548/2009 (Swiss Fed. Trib.) 3476
573
Judgment of 10 February 2010, DFT 4A_612/2009 (Swiss Fed. Trib.) 2327, 3011, 3495
Judgment of 11 February 2010, DFT 4A_444/2009 (Swiss Fed. Trib.) 1213, 1409
Judgment of 15 February 2010, DFT 4A_464/2009 (Swiss Fed. Trib.) 3579, 3580, 3668, 3669
Judgment of 5 March 2010, DFT 4A_524/2009 (Swiss Fed. Trib.) 3584
Judgment of 13 April 2010, BGE 136 III 200 (Swiss Fed. Trib.) 2698, 3181
Judgment of 13 April 2010, Club Atlético de Madrid SAD v. Sport Lisboa e Benfica – Futebol
SAD, XXXV Y.B. Comm. Arb. 614 (Swiss Fed. Trib.) 3617
Judgment of 13 April 2010, DFT 136 III 200 (Swiss Fed. Trib.) 2702
Judgment of 13 April 2010, DFT 4A_490/2009 (Swiss Fed. Trib.) 2605, 2666, 3168, 3175, 3176,
3623, 3624, 4106, 4139, 4148
Judgment of 3 May 2010, DFT 4A_456/2009 (Swiss Fed. Trib.) 3476
Judgment of 26 May 2010, DFT 4A_433/2009 (Swiss Fed. Trib.) 3583, 3823
P 4634 Judgment of 10 June 2010, 28 ASA Bull. 520 (Swiss Fed. Trib.) (2010) 2022
Judgment of 10 June 2010, DFT 4A_458/2009 (Swiss Fed. Trib.) 1986, 2004, 2015
Judgment of 10 June 2010, Mutu v. Chelsea Football Club Ltd, 28 ASA Bull. 520 (Swiss Fed.
Trib.) (2010) 1986, 2022
Judgment of 22 June 2010, DFT 4A_162/2010 (Swiss Fed. Trib.) 2001, 3564
Judgment of 28 July 2010, DFT 4A_233/2010 (Swiss Fed. Trib.) 110, 3158
Judgment of 28 July 2010, XXXVI Y.B. Comm. Arb. 337 (Swiss Fed. Trib.) (2011) 3611, 3732,
3740, 3761, 3874, 3904, 3931, 3938, 3939, 3940, 3943, 3944, 3945, 3949, 3955, 4006, 4016,
4024, 4045
Judgment of 28 July 2010, XXXVI Y.B. Comm. Arb. 834 (2011) 3863, 3909
Judgment of 28 July 2010, XXXVI Y.B. Comm. Arb. 337 (Swiss Fed. Trib.) (2011) 3920
Judgment of 28 September 2010, DFT 4A_144/2010 (Swiss Fed. Trib.) 3414
Judgment of 4 October 2010, Case No. 4A 124/2010 (Swiss Fed. Trib.) 3704
Judgment of 4 October 2010, XXXVI Y.B. Comm. Arb. 340 (Swiss Fed. Trib.) (2011) 1501, 3699,
3703, 3712, 3721, 3925, 3934, 3912
Judgment of 29 October 2010, Belmonte v. Comitato Olimpico Nazionale Italiano, 29 ASA
Bull. 80 (Swiss Fed. Trib.) (2011) 1932
Judgment of 29 October 2010, DFT 4A_234/2010 (Swiss Fed. Trib.) 1918, 1924, 2007, 2010,
2085, 2122, 3564
Judgment of 10 November 2010, DFT 4A_391/2010 (Swiss Fed. Trib.) 2173, 3175, 3176, 3178,
3179
Judgment of 10 November 2010, XXXVI Y.B. Comm. Arb. 604 (Swiss Fed. Trib.) (2011) 2400
Judgment of 3 January 2011, 29 ASA Bull. 688 (Swiss Fed. Trib.) 4077
Judgment of 3 January 2011, DFT 4A_386/2010 (Swiss Fed. Trib.) 1213, 1346, 1438, 3921
Judgment of 7 January 2011, 30 ASA Bull. 618 (Swiss Fed. Trib.) 3885
Judgment of 7 January 2011, DFT 137 III 85 (Swiss Fed. Trib.) 2331
Judgment of 7 January 2011, DFT 4A_440/2010 (Swiss Fed. Trib.) 2347, 2432, 3532, 3578, 3598,
4045
574
Judgment of 1 March 2011, DFT 4A_514/2010 (Swiss Fed. Trib.) 783, 871, 2090, 3178, 3661,
3662
P 4635 Judgment of 21 March 2011, DFT 4A_574/2010 (Swiss Fed. Trib.) 944
Judgment of 6 April 2011, DFT 4A_614/2010 (Swiss Fed. Trib.) 3175, 3176
Judgment of 19 April 2011, DFT 4A_44/2011 (Swiss Fed. Trib.) 516, 612, 1542, 1570, 1580
Judgment of 16 May 2011, 2011 ASA Bull. 643 (Swiss Fed. Trib.) 990, 3463
Judgment of 16 May 2011, 4A_46/2011 (Swiss Fed. Trib.) 996
Judgment of 16 May 2011, DFT 4A_46/2011 (Swiss Fed. Trib.) 993, 3536, 3582
Judgment of 14 June 2011, DFT 4A_617/2010 (Swiss Fed. Trib.) 3520, 3527
Judgment of 20 September 2011, 30 ASA Bull. 449 (Swiss Fed. Trib.) (2012) 1438, 1456,
14771478
Judgment of 10 October 2011, XXXVII Y.B. Comm. Arb. 300, 303 (Swiss Fed. Trib.) (2012) 3726
Judgment of 7 November 2011, DFT 138 III 29 (Swiss Fed. Trib.) 784, 801, 688, 3458
Judgment of 7 November 2011, DFT 4A_246/2011 (Swiss Fed. Trib.) 273, 815, 817, 971, 1857
Judgment of 9 December 2011, DFT 4A_631/2011 (Swiss Fed. Trib.) 3648, 3662
Judgment of 4 January 2012, DFT 4A_238/2011 (Swiss Fed. Trib.) 685, 138, 3662, 3669
Judgment of 27 March 2012, DFT 138 III 322 (Swiss Fed. Trib.) 3621
Judgment of 5 April 2012, DFT 138 III 304 (Swiss Fed. Trib.) 1415
Judgment of 30 April 2012, DFT 4A_763/2012 (Swiss Fed. Trib.) 3414
Judgment of 2 May 2012, DFT 4A_14/2012 (Swiss Fed. Trib.) 3371, 3572, 3573, 3689, 4189
Judgment of 18 June 2012, DFT 4A_488/2011 (Swiss Fed. Trib.) 984, 989, 3802
Judgment of 27 June 2012, DFT 4A_54/2012 (Swiss Fed. Trib.) 1910, 2015, 2090, 3573
Judgment of 2 July 2012, DFT 5A_754 2011 (Swiss Fed. Trib.) (2012) 119, 257, 3700, 3701
Judgment of 2 July 2012, XXXVII Y.B. Comm. Arb. 305 (Swiss Fed. Trib.) (2012) 3700, 3701, 3720
Judgment of 6 August 2012, 30 ASA Bull. 864 (Swiss Fed. Trib.) (2012) 151, 1428, 1438, 1458,
1479
Judgment of 6 August 2012, DFT 4A_119/2012 (Swiss Fed. Trib.) 1210, 1211, 1380
Judgment of 9 October 2012, DFT 4A_110/2012 (Swiss Fed. Trib.) 2041, 2081, 3532, 4197
Judgment of 16 October 2012, 31 ASA Bull. 354 (Swiss Fed. Trib.) (2013) 1086, 1094, 1096
575
Judgment of 16 October 2012, DFT 138 III 714 (Swiss Fed. Trib.) 3465, 3486, 3817
Judgment of 16 October 2012, DFT 4A_50/2012 (Swiss Fed. Trib.) 671, 768, 769, 952
Judgment of 17 January 2013, DFT 4A_244/2012 (Swiss Fed. Trib.) 273, 801, 803, 818, 3527,
P 4636 3612, 3617
Judgment of 23 April 2013, DFT 4A_672/2012 (Swiss Fed. Trib.) 3508, 3648, 3829
Judgment of 13 November 2013, 32 ASA Bull. 89 (Swiss Fed. Trib.) (2014) 1785, 1799, 1944,
2086, 3548, 3556
Judgment of 19 November 2013, 32 ASA Bull. 586 (Swiss Fed. Trib.) (2014) 2173
Judgment of 19 November 2013, 4A_254/2013 (Swiss Fed. Trib.) 1699
Judgment of 28 January 2014, DFT 140 III 75 (Swiss Fed. Trib.) 2120, 2125
P 4637 Judgment of 7 July 2014, DFT 4A_124/2014 (Swiss Fed. Trib.) 516, 612
Judgment of 28 August 2014, DTF 4A_6/2014 (Swiss Fed. Trib.) 3264, 3268
Judgment of 2 September 2014, 33 ASA Bull. 614 (Swiss Fed. Trib.) 2015
Judgment of 25 September 2014, XLI Y.B. Comm. Arb. 564 (Swiss Fed. Trib.) (2016) 4005,
4045, 4048, 4083
Judgment of 14 January 2015, 34 ASA Bull. 936 (Swiss Fed. Trib.) (2016) 2011, 2066
Judgment of 29 January 2015, 4A_532/2014 (Swiss Fed. Trib.) 3612
Judgment of 26 February 2015, XLI Y.B. Comm. Arb. 567 (Swiss Fed. Trib.) (2015) 3825, 4054,
4038
Judgment of 30 April 2015, 4A_623/2014 (Swiss Fed. Trib.) 1700
Judgment of 21 May 2015, DFT 4A_709/2014 (Swiss Fed. Trib.) 2144, 2145, 2198
Judgment of 29 May 2015, DFT 4A_633/2014 (Swiss Fed. Trib.) 4106, 4139, 4141, 4148
576
Judgment of 28 January 2016, DTF 4A_222/2015 (Swiss Fed. Trib.) 3264
Judgment of 4 February 2016, XLI Y.B. Comm. Arb. 573 (Swiss Fed. Trib.) (2016) 3813
Judgment of 18 February 2016, DFT 4A_84/2015 (Swiss Fed. Trib.) 392, 393, 482, 784, 912,
1537, 1611
Judgment of 16 March 2016, BGE 142 III 296 (Swiss Fed. Trib.) 990
Judgment of 16 March 2016, DFT 4A_628/2015 (Swiss Fed. Trib.) 984, 989, 993, 3464, 3802
Judgment of September 7, 2016, 4A_386/2015 (Swiss Fed. Trib.) 1986
Judgment of 26 October 2016, DFT 4A_536/2016 & DFT 4A_540/2016 (Swiss Fed. Trib.) 3332,
3366
Judgment of 2 December 2016, DFT 4A_522/2016 (Swiss Fed. Trib.) 3295, 3655
Judgment of 16 February 2017, DFT 4A_473/2016 (Swiss Fed. Trib.) 784, 1429, 1537
Judgment of 8 March 2017, Case No. 4A 40/2017 (Swiss Fed. Trib.) 2994, 2995, 3593
Judgment of 30 May 2017, DFT 4A 532/2016 (2017) (Swiss Fed. Trib.) 2339
Judgment of 28 August 2017, DFT 4A_277/2017 (Swiss Fed. Trib.) 2450, 3520
Judgment of 24 November 2017, 36 ASA Bull. 434 (2018) (Swiss Fed. Trib.) 2015
Judgment of 12 March 2018, DFT 4A_450/2017 (Swiss Fed. Trib.) (2018) 2335
Judgment of 9 April 2018, XLIV Y.B. Comm. Arb. 677 (Swiss Fed. Trib.) (2019) 3844
P 4638 Judgment of 30 April 2018, 37 ASA Bull. 694 (Swiss Fed. Trib.) 2081, 2085
Judgment of 28 November 2018, DFT 4A_338/2018 (Swiss Fed. Trib.) 2482, 2477, 3356
577
Judgment of 17 April 2019, DFT 4A_646/2018 (Swiss Fed. Trib.) 746, 757, 1542, 1605
Judgment of 27 May 2019, DFT 4A_663/2018 (Swiss Fed. Trib.) 1986, 2004, 2010, 2031
Judgment of 31 July 2019, DFT 4A_74/2019 (Swiss Fed. Trib.) 2342, 2432, 2483, 3492
Judgment of 26 February of 2015, DFT 4A_374/2014 (Swiss Fed. Trib.) 4139, 4148
Court of Appeal
Judgment of 27 April 1931, Entscheidungen des Appellationsgerichts des Kantons Basel-
Stadt 13 (Basel-Stadt Appellationsgericht) 391
Judgment of 6 September 1968, I Y.B. Comm. Arb. 200 (Basel-Stadt Appellationsgericht)
(1976) 3907, 3916, 3931, 3959
Judgment of 2 January 1984, 3 ASA Bull. 19 (Basel-Stadt Appellationsgericht) (1985) 481
Judgment of 1 February 1989, 1991 BJM 31 (Basel-Stadt Zivilgericht) 3332
Judgment of 27 February 1989, XVII Y.B. Comm. Arb. 581 (Basel-Stadt Appellationsgericht)
(1992) 3511, 3730, 3844, 3848, 3856
Judgment of 16 February 1993, Brega Oil Mktg Co. v. Techint Compagnie, 13 ASA Bull. 57
(Vaud Trib. Cantonal) (1995) 3341, 3343
Judgment of 15 March 1999, 20 ASA Bull. 373 (Zürich Kassationsgericht) (2002) 990
Judgment of 13 May 2005, République et Canton de Genève, 24 ASA Bull. 128 (Geneva Cour
d’Appel) (2006) 1211
District Court
Judgment of 3 October 1913, (1915) Blätter für Zürcherische Rechtsprechung 21 (Obergericht
Zürich) 391
Judgment of 6 June 1967, I Y.B. Comm. Arb. 199 (Geneva Trib.) (1976) 723, 725, 726,3794
Judgment of 3 June 1971, IV Y.B. Comm. Arb. 309 (Obergericht Basel-Landschaft) (1979) 723,
3190, 3192, 3853, 3865, 3941
P 4639 Judgment of 2 December 1980, ZR 84/1985 (Obergericht Zürich) 3719
Judgment of 8 October 1981, 1(3) ASA Bull. 27 (Jura Tribunal) (1983) 1086
Judgment of 9 July 1986, 5 ASA Bull. 203 (Valais Kantonsgericht) (1987) 1086
Judgment of 26 January 1987 (Obergericht Zürich), reported in Blessing & Steinmann,
Handelt der Schiedsgerichtshof der IHK bei der Amtsenthebung Eines Schiedsrichters als
Verwaltungs: Oder Rechtsprechungsorgan?, 5 ASA Bull. 6 (1987) 2127
Judgment of 28 July 1988, 7 ASA Bull. 304 (Zürich Bezirksgericht Bülach) (1989) 1480
Judgment of 27 February 1989, XVII Y.B. Comm. Arb. 581 (Obergericht Basel) (1992) 716, 875
Judgment of 20 October 1989, 1991 RSDIE 368 (Zug Kantonsgericht) 2705, 2750
Judgment of 20 April 1990, XVII Y.B. Comm. Arb. 584 (Zürich Handelsgericht) (1992) 3703
Judgment of 19 June 1990, XX Y.B. Comm. Arb. 762 (Tessin Camera die Esecuzione e
Fallimenti) (1995) 3863, 3877, 4016, 4045, 4047
Judgment of 7 February 1991, 9 ASA Bull. 155 (1991) (Geneva Cour de Justice) 2233
Judgment of 25 August 1992, ZR 91/92 No. 23 (Obergericht Zürich) 890
578
Judgment of 30 March 1993, Nokia Maillefer SA v. Mazzer, XXI Y.B. Comm. Arb. 681
(Obergericht Vaud) (1993) 800, 819, 851
Judgment of 30 August 1993, 11 ASA Bull. 531 (Obergericht Zürich) (1993) 890
Judgment of 26 May 1994, XXIII Y.B. Comm. Arb. 754 (Affoltern am Albis Bezirksgericht)
(1998) 547, 1779, 1823, 3564, 3568, 3617, 3864, 3878, 3939, 4043
Judgment of 5 July 1994, DIETF Ltd v. RF AG, XXI Y.B. Comm. Arb. 685 (Obergericht Basel-
Landschaft) (1996) 708, 709, 711, 712, 725, 3471
Judgment of 8 February 1995, 14 ASA Bull. 695 (Valais Tribunal) (1996) 301
Judgment of 27 February 1998, 18 ASA Bull. 363 (Obergericht Zug) (2000) 3699, 3705, 3706
Judgment of 15 April 1999, XXVI Y.B. Comm. Arb. 863 (Geneva Tribunal) (2001) 3697, 3699,
3701, 3701, 3703 3703, 3721, 3732, 3704
Judgment of 23 October 2001, 2002 ZR 101 (Zürich Handelsgericht) 2697
Judgment of 14 February 2003, XXIX Y.B. Comm. Arb. 819 (Zürich Bezirksgericht) (2004) 2384,
3732
Judgments of 14 February 2003 & 17 July 2003, XXIX Y.B. Comm. Arb. 819 (Zürich
Bezirksgericht; Obergericht Zürich) 3700, 3701, 3710, 3741, 3888, 3959, 4062
Judgment of 19 November 2004, 23 ASA Bull. 540 (Zürich Tribunal) (2005) 1211
Judgment of 2 May 2005, 23 ASA Bull. 728 (Geneva Tribunal de Première Instance) 1145,
1147, 1415, 1417, 2400
Judgment of 18 June 2008, 27 ASA Bull. 161 (2009) (Geneva Tribunal) 824, 2229
Judgment of 20 October 2009, 109 ZR 77 (2010) (Zürich Handelsgericht) 1155
Judgment of 27 October 2015, Swisslex Doc. No. 101 (Fribourg Tribunal Cantonal) 1011
Judgment of 26 February 2019, Case No. PG180005-O/U (Obergericht Zürich) 1209
Syria
Judgment of 26 July 2016, 9(2) Int’l J. Arab Arb. 169 (2017) (Syrian Ct. Cassation) 417, 419, 487
Judgment of 31 March 1988, Fougerollem SA v. Ministry of Defense of Syria, XV Y.B. Comm.
Arb. 515 (Damascus Admin. Trib.) (1990) 3754, 3790, 3817, 4080
Tanzania
Judgment of 8 June 2005, City Water Servs. Ltd v. Dar es Salaam Water & Sewerage Auth.,
P 4640 Misc. Civil Case No. 20/2005 (Tanzania High Ct.) 2754
Tunisia
Judgment of 22 March 1976, III Y.B. Comm. Arb. 283 (Tunis Ct. First Inst.) (1978) 575, 670
Judgment of 17 October 1987, BEC-GTAF v. Etat Tunisien, 1988 Rev. Arb. 732 (Tunis Tribunal
First Inst.) 775
Judgment of 17 October 1987, BEC-GTAF v. Etat Tunisien, 1988 Rev. Arb. 732 (Tunis Tribunal
First Inst.) 775
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Taylor v. Standard Gas & Elec. Co., 306 U.S. 307 (U.S. S.Ct. 1939) 1551
The Anaconda v. Am. Sugar Refining Co., 322 U.S. 42 (U.S. S.Ct. 1944) 2718
Tumey v. Ohio, 273 U.S. 510 (U.S. S.Ct. 1927) 1328
U.S. v. Bestfoods, 524 U.S. 51 (U.S. S.Ct. 1998) 1550
U.S. v. Farragut, 89 U.S. 406 (U.S. S.Ct. 1874) 3634
U.S. v. Gaudin, 515 U.S. 506 (U.S. S.Ct. 1995) 4185
U.S. v. Kubrick, 444 U.S. 111 (U.S. S.Ct. 1979) 2999
U.S. v. Little Lake Misere Land Co., 412 U.S. 580 (U.S. S.Ct. 1973) 577
U.S. v. Salerno, 505 U.S. 317 (U.S. S.Ct. 1992) 2454
U.S. v. Scophony Corp. of Am., 333 U.S. 795 (U.S. S.Ct. 1948) 1550
United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (U.S. S.Ct. 1966) 2762
United Paperworkers Int’l Union, AFL-CIO v. Misco Inc., 484 U.S. 29 (U.S. S.Ct. 1987) 2902,
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United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (U.S. S.Ct. 1960)
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Vasquez v. Hillery, 474 U.S. 254 (U.S. S.Ct. 1986) 4184
Vimar Seguros y Reaseguros, SA v. MV Sky Reefer, 515 U.S. 528 (U.S. S.Ct. 1995) 281, 651, 967,
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Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (U.S. S.Ct. 1988) 3843
Volt Info. Sciences, Inc. v. Stanford Univ., 489 U.S. 468 (U.S. S.Ct. 1989) 163, 182, 186, 261,
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Court of Appeals
187 Concourse Assocs. v. Fishman, 399 F.3d 524 (2d Cir. 2005) 868
21st Fin. Servs., LLC v. Manchester Fin. Bank, 747 F.3d 331 (5th Cir. 2014) 3504
A & G Coal Corp. v. Integrity Coal Sales, Inc., 565 F.App’x 41 (2d Cir. 2014) 3444
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A.D. v. Credit One Bank NA, 885 F.3d 1054, 1059-60 (7th Cir. 2018) 1519, 1522, 1525
A.G. Edwards & Sons, Inc. v. McCollough, 967 F.2d 1401 (9th Cir. 1992) 3297, 3631
AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d
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584
Abbott Labs. v. Takeda Pharm. Co., 476 F.3d 421 (7th Cir. 2007) 282
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Abram Landau Real Estate v. Bevona, 123 F.3d 69 (2d Cir. 1997) 808, 1477
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Acands, Inc. v. Travelers Cas. & Sur. Co., 435 F.3d 252 (3d Cir. 2006) 3620
Accenture LLP v. Spreng, 647 F.3d 72, 77 (2d Cir. 2011) 3178
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883, 886, 890
Acevedo Maldonado v. PPG Indus., Inc., 514 F.2d 614 (1st Cir. 1975) 1282, 1466
Ackermann v. Levine, 788 F.2d 830, 841 (2d Cir. 1986) 3605, 4001
Acosta v. Master Maint. & Constr. Inc., 452 F.3d 373 (5th Cir. 2006) 4117
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Adams v. Suozzi, 433 F.3d 220 (2d Cir. 2005) 441, 450, 457, 462
Adkins v. Labor Ready, Inc., 303 F.3d 496 (4th Cir. 2002) 793
Admart AG v. Birch Found., Inc., 457 F.3d 302 (3d Cir. 2005) 3886
Admart AG v. Stephen & Mary Birch Found., Inc., 457 F.3d 302 (3d Cir. 2006) 106, 109, 2070,
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Advanced Bodycare Solutions v. Thione, 524 F.3d 1235 (11th Cir. 2008) 278, 299, 300, 312
Advest, Inc. v. McCarthy, 914 F.2d 6 (1st Cir. 1990) 3638
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1081
Affymax v. Ortho-McNeil-Janssen Pharm., Inc., 660 F.3d 281 (7th Cir. 2011) 3594, 3896
Agathos v. Starlite Motel, 977 F.2d 1500 (3d Cir. 1992) 857
AGCO Corp. v. Anglin, 216 F.3d 589 (7th Cir. 2000) 866, 3580
Aggarao v. MOL Ship Mgt Co., 675 F.3d 355, 370 (4th Cir. 2012) 107, 172, 327, 370, 592, 593, 652,
899, 900, 963, 967, 1038, 1075, 2718, 2719, 2733, 2746, 3756, 4050
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Agility Public Warehousing Co. K.S.C., Inc. v. Supreme Foodservice GmbH, 495 F.App’x 149
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AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 508 F.3d 995 (11th Cir. 2007) 3389
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Ainsworth v. Skurnick, 960 F.2d 939 (11th Cir. 1992) 3640
Air Line Pilots Ass’n Int’l v. Trans States Airlines, LLC, 638 F.3d 572 (8th Cir. 2011) 4125, 4133
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Akpele v. Pac. Life Ins. Co., 646 F.App’x 908 (11th Cir. 2016) 3522, 3860
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Al Rushaid v. Nat’l Oilwell Varco, Inc., 2014 U.S. App. LEXIS 12569 (5th Cir.) 1018, 1020
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Albemarle Corp. v. United Steel Workers, 703 F.3d 821 (5th Cir. 2013) 3613
Alberts v. Royal Caribbean Cruises, Ltd, 834 F.3d 1202 (11th Cir. 2016) 354, 355
Albertson’s, Inc. v. United Food & Commercial Workers Union, 157 F.3d 758 (9th Cir. 1998)
1100
Alejandre v. Telefonica Larga Distancia, de Puerto Rico, Inc., 183 F.3d 1277 (11th Cir. 1999)
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Alford v. Dean Witter Reynolds, 939 F.2d 229 (5th Cir. 1991) 1100
Alford v. Dean Witter Reynolds, 975 F.2d 1161 (5th Cir. 1992) 1382, 1383
Al-Harbi v. Citibank NA, 85 F.3d 680 (D.C. Cir. 1996) 1917, 2011, 2031, 2039, 2052, 3565, 3566
Ali v. J.P. Morgan Chase Bank, NA, 647 F.App’x 783 (9th Cir. 2016) 3457
AlixPartners, LLP v. Brewington, 836 F.3d 543 (6th Cir. 2016) 2773, 2774, 2778
Allegaert v. Perot, 548 F.2d 432 (2d Cir. 1977) 1051
Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965, 969-70 (3d Cir. 1979) 4183
Allen v. Lloyd’s of London, 94 F.3d 923 (4th Cir. 1996) 1072, 1075, 1076, 4051
Allen v. Regions Bank, 389 F.App’x 441 (5th Cir. 2010) 446, 447
Allendale Mutual Ins. Co. v. Bull Data Sys., Inc., 10 F.3d 425 (7th Cir. 1993) 1398
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Allianz Global Risk U.S. Ins. Co. v. Gen. Elec. Co., 2012 WL 689957 (9th Cir.) 1584
Allstate Settlement Corp. v. Rapid Settlement, 559 F.3d 164 (3d Cir. 2009) 1543
Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd, 385 F.2d 158, 159 (2d Cir. 1967) 1079, 1467
P 4648 Alvarez-Mauras v. Banco Popular of Puerto Rico, 919 F.3d 617 (1st Cir. 2019) 1472
Am. Bakery & Confectionery Workers v. Nat’l Biscuit Co., 378 F.2d 918 (3d Cir. 1967) 3813
Am. Brokerage Network v. Am. Gen. Life Ins. Co., 744 Fed.Appx. 388 (9th Cir. 2018) 1917
Am. Bureau of Shipping v. Tencara Shipyard SpA, 170 F.3d 349 (2d Cir. 1999) 1571, 1587, 1588
Am. Centennial Ins. Co. v. Nat’l Cas. Co., 951 F.2d 107 (6th Cir. 1991) 2773, 2774, 2793
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Am. Express Fin. Advisors v. Thorley, 147 F.3d 229 (2d Cir. 1998) 2732
Am. Fed’n of Television & Radio Artists v. WJBK-TV (New World Commc’ns of Detroit, Inc.),
164 F.3d 1004 (6th Cir. 1999) 2503, 2576, 2577, 2578
Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533 (5th Cir. 2003) 877
Am. Heritage Life Ins. Co. v. Orr, 294 F.3d 702 (5th Cir. 2002) 695
Am. Home Assur. Co. v. Vecco Concrete Constr. Co., 629 F.2d 961 (4th Cir. 1980) 1387
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Am. Sugar Refining Co. v. The Anaconda, 138 F.2d 765 (5th Cir. 1943), aff’d, 322 U.S. 42 (U.S.
S.Ct. 1944) 1022
Amalgamated Meat Cutters & Butcher Workmen, Local Union 540 v. Great W. Food Co., 712
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Ambraco, Inc. v. Bossclip BV, 570 F.3d 233 (5th Cir. 2009) 1118
America’s Favorite Chicken Co. v. Cajun Enters., 130 F.3d 180 (5th Cir. 1997) 2952, 2954
Amerix Corp. v. Jones, 457 F.App’x 287 (4th Cir. 2011) 3588
Ameser v. Nordstrom, Inc., 442 F.App’x 967 (5th Cir. 2011) 2039
Amicizia Societa Navegazione v. Chilean Nitrate & Iodine Sales Corp., 274 F.2d 805 (2d Cir.
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Anderman/Smith Operating Co. v. Tenn. Gas Pipeline Co., 918 F.2d 1215 (5th Cir. 1990) 3323,
3329, 3376, 3589
586
Andermann v. Sprint Spectrum LP, 785 F.3d 1157 (7th Cir. 2015) 1532, 1579
Anders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024 (11th Cir. 2003) 1247
Anderson v. Beland, 672 F.3d 113 (2d Cir. 2011) 4122
Anderson v. Norfolk & W. Railway Co., 773 F.2d 880 (7th Cir. 1985) 3375
Andersons, Inc. v. Horton Farms, Inc., 166 F.3d 308 (6th Cir. 1998) 1900
Andros Compania Maritima SA v. Marc Rich & Co., 579 F.2d 691 (2d Cir. 1978) 1898, 1921, 2019,
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ANR Coal Co. v. Cogentrix of N.C., Inc., 173 F.3d 493 (4th Cir. 1999) 1898, 1900, 2039, 3549
Ansari v. Qwest Commc’ns Corp., 414 F.3d 1214 (10th Cir. 2005) 2270
Answers in Genesis of Ky. Inc. v. Creation Ministries, 556 F.3d 459 (6th Cir. 2009) 109, 115, 166,
679, 1361, 1367, 1376, 1397, 1398, 1400
Anthony v. Affiliated Computer Serv. Inc., 621 F.App’x 49 (2d Cir. 2015) 1100
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Apache Bohai Corp. LDC v. Texaco China BV, 480 F.3d 397 (5th Cir. 2007) 1293, 3596
Apex Fountain Sales v. Kleinfeld, 818 F.2d 1089 (3d Cir. 1987) 3533
Apex Plumbing Supply, Inc. v. U.S. Supply Co., 142 F.3d 188 (4th Cir. 1998) 3235
Apollo Computer v. Berg, 886 F.2d 469 (1st Cir. 1989) 1263, 1584
Apparel Art Int’l, Inc. v. Amertex Enters. Ltd, 48 F.3d 576 (1st Cir. 1995) 4116
Appel Corp. v. Katz, 217 F.App’x 3 (2d Cir. 2007) 3551, 3552
Apperson v. Fleet Carrier Corp., 879 F.2d 1344 (6th Cir. 1989) 1898, 1916, 2083, 2094
Applied Energetics, Inc. v. NewOak Capital Mkts, LLC, 645 F.3d 522 (2d Cir. 2011) 583
Applied Indus. Materials Corp. v. Ovalar Makine Ticaret ve Sanayai AS, 492 F.3d 132 (2d Cir.
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Aramark Facility Servs. v. Serv. Employees Int’l Union, 530 F.3d 817 (9th Cir. 2008) 3619
Arangure v. Whitaker, 911 F.3d 333 (6th Cir. 2018) 4103
Arciniaga v. Gen. Motors Corp., 460 F.3d 231 (2d Cir. 2006) 686
Argentina v. AWG Group Ltd, 894 F.3d 327 (D.C. Cir. 2018) 2001, 3565
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Ario v. Underwriting Members of Syndicate 53 at Lloyds, 618 F.3d 277 (3d Cir. 2010) 110, 587,
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Armada Coal Exp., Inc. v. Interbulk, Ltd, 726 F.2d 1566 (11th Cir. 1984) 1468
Armstrong v. LaSalle Bank Nat’l Ass’n, 552 F.3d 613 (7th Cir. 2009) 281
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Arnold v. Homeaway, Inc., 890 F.3d 546, 550 (5th Cir. 2018) 444, 452, 458, 465, 1263, 3461,
3480
Arrants v. Buck, 130 F.3d 636 (4th Cir. 1997) 793
Arriba Ltd v. Petroleos Mexicanos, 962 F.2d 528 (5th Cir. 1992) 1532
Arrigo v. Blue Fish Commodities, Inc., 408 F.App’x 480 (2d Cir. 2011) 397, 446
Arrowhead Global Solutions, Inc. v. Datapath, Inc., 166 F.App’x 39, 41 (4th Cir. 2006) 2615,
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ARW Exploration Corp. v. Aguirre, 45 F.3d 1455 (10th Cir. 1995) 1479, 1550, 3638
AS Siljestad v. Hideca Trading, Inc., 678 F.2d 391 (2d Cir. 1982) 3408
Ashbey v. Archstone Prop. Mgt, 785 F.3d 1320 (9th Cir. 2015) 1100
Asignacion v. Rickmers Genoa Schifffahrtsgesellschaft mbH & Cie KG, 783 F.3d 1010 (5th Cir.
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Aspic Eng’g & Constr. Co. v. ECC Centcom Constructors LLC, 913 F.3d 1162 (9th Cir. 2019) 3579,
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Asplundh Tree Expert Co. v. Bates, 71 F.3d 592 (6th Cir. 1995) 1573
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Assoc’d Brick Mason Contractors, Inc. v. Harrington, 820 F.2d 31 (2d Cir. 1987) 1479
Astra Oil Co. v. Rover Navigation Ltd, 344 F.3d 276 (2d Cir. 2003) 1565, 1575, 1587
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Austern v. Chicago Bd of Options Exch., 898 F.2d 882 (2d Cir. 1990) 2180, 2185
Austin v. Owens-Brockway Glass Container Inc., 78 F.3d 875 (4th Cir. 1996) 847, 1503
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Autoridad de Energia Elec. de Puerto Rico v. Vitol SA, 859 F.3d 140 (1st Cir. 2017) 953
P 4650 AVC Nederland BV v. Atrium Inv. P’ship, 740 F.2d 148 (2d Cir. 1984) 2951
Aviall, Inc. v. Ryder Sys., 110 F.3d 892 (2d Cir. 1997) 2070
Avic Int’l USA, Inc. v. Tang Energy Group, Ltd, 614 F.App’x 218 (5th Cir. 2015) 1846
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3947
Avis Rent-A-Car Sys., Inc. v. Garage Employees Union, Local 272, 791 F.2d 22 (2d Cir. 1986)
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Bacashihua v. USPS, 859 F.2d 402 (6th Cir. 1988) 3690
Baesler v. Cont’l Grain Co., 900 F.2d 1193 (8th Cir. 1990) 2773, 2793
Bahamas Sales Assoc., LLC v. Byers, 701 F.3d 1335 (11th Cir. 2012) 1456
Bailey v. Bicknell Minerals, Inc., 819 F.2d 690 (7th Cir. 1987) 940
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Banc One Acceptance Corp. v. Hill, 367 F.3d 426 (5th Cir. 2004) 931
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Bank of Am., NA v. UMB Fin. Servs., Inc., 618 F.3d 906 (8th Cir. 2010) 580
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Barclays Bank, SA v. Tsakos, 543 A.2d 802 (D.C. Cir. 1988) 2719
Barclays Capital Inc. v. Urquidi, 786 F.App’x 970 (11th Cir. 2019) 3441
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Barranco v. 3D Sys. Corp., 734 F.App’x 885 (4th Cir. 2018) 3375, 3389
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Battaglia v. McKendry, 233 F.3d 720 (3d Cir. 2000) 1460, 1480
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456, 816, 831, 1363, 2272, 2275, 2276, 2277
Baumann v. Finish Line, Inc., 421 F.App’x 632 (7th Cir. 2011) 885
Bautista v. Star Cruises, 396 F.3d 1289 (11th Cir. 2005) 107, 108, 178, 326, 327, 336, 337, 539,
592, 593, 899, 900, 901, 919, 1101, 1361, 3186, 3752, 3793,3795, 4060
Baxter Int’l, Inc. v. Abbott Labs., 315 F.3d 829 (7th Cir. 2003) 1061, 1069, 1134, 1336, 3621,
3642, 4030, 4051
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3723
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BBS Norwalk One v. Raccolta, Inc., 117 F.3d 674 (2d Cir. 1997) 4126
Bd of Trustees of the City of Delray Beach Police & Firefighters Retirement Sys. v. Citigroup
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Bear, Stearns Co. v. Bennett, 938 F.2d 31 (2d Cir. 1991) 2265, 2279
Bechtel Do Brasil Construcoes Ltda v. UEG Araucaria Ltda, 638 F.3d 150 (2d Cir. 2011) 322,
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Bell Aerospace Co. v. Local 516, Int’l Union, United Auto., Aerospace & Agric. Implement
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Bensadoun v. Jobe-Riat, 316 F.3d 171 (2d Cir. 2003) 1288
Bergesen v. Joseph Muller Corp., 710 F.2d 928 (2d Cir. 1983) 106, 344, 346, 353, 356, 359, 3190,
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Bess v. Check Express, 294 F.3d 1298 (11th Cir. 2002) 448, 953, 1247, 1253
Bethea v. Levi Strauss & Co., 916 F.2d 453 (8th Cir. 1990) 3868
P 4652 Beumer Corp. v. ProEnergy Servs., LLC, 899 F.3d 564 (8th Cir. 2018) 2994, 2995, 3592, 3594
Bhatia v. Johnson, 818 F.2d 418 (5th Cir. 1987) 1249
Bhd of Locomotive Eng’rs & Trainmen v. Long Island R.R. Co., 340 F.App’x 727 (2d Cir. 2009)
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Bhd of Locomotive Eng’rs & Trainmen v. Union Pac. Railroad Co., 500 F.3d 591 (7th Cir. 2007)
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Bhd of Locomotive Eng’rs v. Springfield Terminal Railway Co., 210 F.3d 18 (1st Cir. 2000)
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Bhd of Maint. of Way Employees v. Burlington N. R.R. Co., 24 F.3d 937 (7th Cir. 1994) 4131,
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Biller v. Toyota Motor Corp., 668 F.3d 655 (9th Cir. 2012) 3536, 3636
BiotechPharma, LLC v. Ludwig & Robinson, plc, 98 A.3d 986 (D.C. 2014) 886
Bird v. Shearson Lehman/Am. Express, Inc., 926 F.2d 116 (2d Cir. 1991) 1099
Black Box Corp. v. Markham, 127 F.App’x 22 (3d Cir. 2005) 3812
Blair v. Scott Specialty Gases, 283 F.3d 595 (3d Cir. 2002) 917
Blaustein v. Huete, 434 F.App’x 304 (5th Cir. 2010) 805
Blaustein v. Huete, 449 F.App’x 347 (5th Cir. 2012) 1587
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Blue Tee Corp. v. Koehring Co., 999 F.2d 633 (2d Cir. 1993) 84
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BNSF Railway Co. v. Alstom Transp., Inc., 777 F.3d 785 (5th Cir. 2015) 3578, 3591
Boardman v. Pac. Seafood Group, 822 F.3d 1011 (9th Cir. 2016) 1433, 2671
Boatland, Inc. v. Brunswick Corp., 558 F.2d 818 (6th Cir. 1977) 2954
Bolden v. FedEx Ground Package Sys., Inc., 60 So.3d 679 (4th Cir. 2011) 1464
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Bonny v. Soc’y of Lloyd’s, 3 F.3d 156 (7th Cir. 1993) 1072, 1075, 1076, 4051
Booker v. Robert Half Int’l, Inc., 413 F.3d 77 (D.C. Cir. 2005) 928, 970
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Bowles Fin. Group v. Stifel Nicolaus & Co., 22 F.3d 1010 (10th Cir. 1994) 2293
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BP Oil Int’l Ltd v. Empresa Estatal Petroleos de Ecuador, 332 F.3d 333 (5th Cir. 2003) 2835
BPS Guard Servs., Inc. v. NLRB, 942 F.2d 519 (8th Cir. 1991) 4183
Brabham v. A.G. Edwards & Sons, Inc., 376 F.3d 377 (5th Cir. 2004) 3639, 3655
Bradford v. Rockwell Semiconductor Sys., 238 F.3d 549 (4th Cir. 2001) 925, 926
Braggs v. Jones, 614 F.App’x 901 (9th Cir. 2015) 2009
Branch v. Ottinger, 2012 WL 2527023 (11th Cir.) 1287
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P 4653 Brantley v. Repub. Mortg. Ins. Co., 424 F.3d 392 (4th Cir. 2005) 1570
Brennan v. CIGNA Corp., 282 F.App’x 132 (3d Cir. 2008) 3454
Brennan v. King, 139 F.3d 258 (1st Cir. 1998) 300
Brennan v. Opus Bank, 796 F.3d 1125 (9th Cir. 2015) 517, 584, 586, 629, 1263, 1265
Bridas SAPIC v. Turkmenistan, 345 F.3d 347 (5th Cir. 2003) 576, 1244, 1345, 1519, 1521, 1525,
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Bridas SAPIC v. Turkmenistan, 447 F.3d 411 (5th Cir. 2006) 517, 576, 584, 629, 1549, 1550, 1552,
1555
590
Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996 (9th Cir. 2010) 453, 455,
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Brittania-U Nigeria, Ltd v. Chevron USA, Inc., 866 F.3d 709 (5th Cir. 2017) 352, 354, 1382
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Burch v. P.J. Cheese, 861 F.3d 1338 (11th Cir. 2017) 793
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Campbell v. Gen. Dynamics Gov’t Sys. Corp., 407 F.3d 546 (1st Cir. 2005) 1101, 1106
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P 4654 1250
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Cariaga v. Local No. 1184 Laborers Int’l Union of N. Am., 154 F.3d 1072 (9th Cir. 1998) 884
CarMax Auto Superstores, Inc. v. Sibley, 767 F.App’x 462 (4th Cir. 2019) 3457
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Carter v. Rent-A-Ctr Inc., 2019 WL 1615835 (9th Cir.) 922
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Cat Charter, LLC v. Schurtenberger, 646 F.3d 836 (11th Cir. 2011) 3297, 3536, 3549
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P 4655 Chameleon Dental Prods., Inc. v. Jackson, 925 F.2d 223 (7th Cir. 1991) 3323
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1272
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Chavarria v. Ralphs Grocery Co., 733 F.3d 916 (9th Cir. 2013) 927, 928, 930
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Chevron Corp. v. Ecuador, 795 F.3d 200 (D.C. Cir. 2015) 1239, 3891, 4041
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Coady v. Ashcraft & Gerel, 223 F.3d 1 (1st Cir. 2000) 3587
P 4656 Coastal (Bermuda) Ltd v. E.W. Saybolt & Co., 761 F.2d 198 (5th Cir. 1985) 1387
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Cobb v. Lewis, 488 F.2d 41 (5th Cir. 1974) 1051, 1061
Coffee Beanery, Ltd v. WW LLC, 300 F.App’x 415 (6th Cir. 2008) 3636
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1479
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593
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Consol. Coal Co. v. UMW, Dist. 12, 213 F.3d 404 (7th Cir. 2000) 4133
Consol. Grain & Barge Co. v. Madgett, 928 F.2d 816 (8th Cir. 1991) 976
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1919
P 4657 Consorcio Ecuatoriano de Telecomunicaciones SA, 685 F.3d 987 (11th Cir. 2012) 2587
Consorcio Rive, SA de CV (Mexico) v. Briggs of Cancun, Inc., 82 F.App’x 359 (5th Cir. 2003)
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Freeman v. Pittsburgh Glass Works, 709 F.3d 240 (3d Cir. 2013) 1900, 1901
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Gregory v. Electro-Mechanical Corp., 83 F.3d 382 (11th Cir. 1996) 1466
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Grimes v. BNSF Railway Co., 746 F.3d 184 (5th Cir. 2014) 4115
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Hammes v. AAMCO Transmissions, Inc., 33 F.3d 774 (7th Cir. 1994) 1019
Hamstein Cumberland v. Williams, 532 F.App’x 538 (5th Cir. 2013) 2490
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Harrison v. McBride, 428 F.3d 652 (7th Cir. 2005) 1926
Harrison v. Nissan Motor Corp., 111 F.3d 343 (3d Cir. 1997) 300
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Hill v. Gateway 2000, Inc., 105 F.3d 1147 (7th Cir. 1997) 869, 870
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Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir. 2003) 926, 972
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Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007 (6th Cir. 2003) 2270
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Mobil Oil Corp. v. Indep. Oil Workers Union, 679 F.2d 299 (3d Cir. 1982) 3581
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Monegasque de Reassurances SAM v. Nak Naftogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002)
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Monfared v. St. Luke’s Univ. Health Network, 767 F.App’x 377 (3d Cir. 2019) 588, 3792
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N.W. Nat’l Ins. Co. v. Donovan, 916 F.2d 372 (7th Cir. 1990) 950
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Olson v. Bemis Co., 800 F.3d 296 (7th Cir. 2015) 1487
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Document information Acknowledgments to Third Edition

[A] Historical Development of International Arbitration Between States

[B] Historical Development of Commercial Arbitration

[C] Development of Contemporary Legal Framework for International Arbitration

§1.02 OBJECTIVES OF INTERNATIONAL COMMERCIAL ARBITRATION

[A] Contractual Forum Selection in International Transactions

[B] Objectives of International Arbitration Agreements

§1.03 INCREASING USE OF INTERNATIONAL COMMERCIAL ARBITRATION

§1.04 OVERVIEW OF CONTEMPORARY LEGAL FRAMEWORK FOR

[A] International Arbitration Conventions

[B] Overview of National Arbitration Legislation

[D] Overview of International Guidelines and Soft Law

[E] Overview of Elements of International Arbitration Agreements

[F] Overview of Choice of Law in International Commercial Arbitration

§1.05 THEORIES OF INTERNATIONAL ARBITRATION

[A] Leading Theories of Arbitration

[B] Future Directions: The Jurisprudential Character of International Arbitration

§1.06 OVERVIEW OF SOURCES OF INFORMATION ABOUT INTERNATIONAL

[A] ICCA Yearbook of Commercial Arbitration and ICC Handbooks

[B] Mealey’s International Arbitration Report

[C] Journal du Droit International

[D] Revue de l’Arbitrage

[E] Arbitration International

[F] ASA Bulletin

[G] Collections of ICC Arbitral Awards

[H] International Legal Materials

[I] Fouchard Gaillard Goldman on International Commercial Arbitration

[J] Redfern and Hunter on International Arbitration

[K] Commentary on International Chamber of Commerce Arbitration

[L] Commentary on New York Convention

[M] Guide to the UNCITRAL Model Law on International Commercial Arbitration

[N] Domke on Commercial Arbitration

[O] Awards of Iran–United States Claims Tribunal (1942)

[P] International Arbitration Law Databases

[Q] Kluwer Arbitration and Kluwer Arbitration Blog

[R] Global Arbitration Review

[S] Transnational Dispute Management and OGEMID

[T] Swedish Arbitration Portal (1950)

[U] ALI Restatement of U.S. Law of International Commercial and Investor-State

[V] Swiss Arbitration Platform

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