International Commercial Arbitration

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Unit 1:

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Unit 1:

Front 2

International Commercial Arbitration.

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-Blend of Civ Pro and Contracts.
-business transaction
-two parties, not from the same country.
-substance 'might' lead to a dispute.
-concerns with Neutrality are at the forefront.
-sometimes agreement cuz want to avoid lit in fed ct.

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Agreement says:

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Place, law + arbitrator

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Red Mango v. Pink Berry example:

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Two companies with different countries competing with the same products:
-They have an arbitration agreement.
-they both consent.
-want to avoid homefield advantage.
-there is no international court system.

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ICC

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International Chamber of Commerce:
-Makes the rules of arbitration.
-Biggest Institutional arbitration service.
-Very International.

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TOR

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Terms of Reference, article 18 of the UCC.

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UNCITRAL

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Model rules to serve as a model for countries considering arbitration. Not adopted by everyone. Significant step forward in the development of a unified form of international arbitration.

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Who can be an arbitrator?

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The major concern is Neutrality so it will generally be someone from a neutral country. Switzerland, Canada, etc. US citizens would probably not be very neutral most of the time.

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AAA

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American Arbitration Association. Lower rent. US based arbitration association.

AAA Commercial Arbitration rules.

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FAA

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Body of US arbitration law.

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CIETAC

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HAndle all of the Chinese arbitration. All companies that want to do business in China use CIETAC.

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DIS

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German arbitration Commission. Not just for germany too.

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HKIAC

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Hong Kong arbitration.

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LCIA

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London court of International Arbitration:
-Commercial arbitration association in London.
-Administers the LCIA "rules".
-Rules set out powers like discovery, security and legal costs (unlike other groups).

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WPO

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world intellectual property association.

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ICSID

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International Convention for the settlement of investment disputes. You need to be a state party. States can sue on behalf of citizens. (Hot topic).

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NAFTA

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North American Treaty organization. Less 2 do with arbitration. More 2 do with Transactional law.

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TBA

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Conflicts of interest and ethics rules.

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New York Convention

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Arbitration Treaty. UN convention on the recognition of arbitral awards. Adopted by many countries, but not by the latin american countries. Makes foreign awards easier to enforce than foreign judgments.

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Geneva Convention

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Arbitration Treaty. Europe essentially.

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Panama Convention

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Arbitration Treaty. Ended up adopting a lot of the things that were adopted by the Geneva Convention and the NY treaty.

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Washington Convention

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The 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States, known as the Washington Convention, provides conciliation and arbitration rules for disputes between its member states and foreign investors from other member states. It also established the International Centre for the Settlement of Investment Disputes (ICSID) to oversee the application of the rules.

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Arbitration

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is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. Arbitration in the United States and in other countries often includes alternative dispute resolution (ADR), a category that more commonly refers to mediation (a form of settlement negotiation facilitated by a neutral third party). It is more helpful, however, simply to classify arbitration as a form of binding dispute resolution, equivalent to litigation in the courts, and entirely distinct from the various forms of non-binding dispute resolution, such as negotiation, mediation, or non-binding determinations by experts. Arbitration is, today, most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions.

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Arbitration Advantages:

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-Subjectmatter Technical, expert arbitrators.
-Faster than court.
-Arbitration is cheaper and more flexible.
-Proceedings and awards are secret.
-NY convention = awards are cheaper to enforce.
-limited avenues for appeals.

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Arbitration Disadvantages:

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-Consumers and employees often don't know that they are subj to arbitration.
-If it is mandatory binding pre dispute, individual gives up his right to access the court.
-Need to pay arbitrators (extra $$$).
-Attorneys fees usually not available.
-Incentive in favor of parties with money. (more arbitration $$$).
-Erroneous decisions hard to overturn.

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Arbitration Disadvantages II:

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-Multiple arbitrators juggling schedules for hearing dates can lead to delays. (although usually speedier).
-Awards have fewer enforcement remedies than judgments.
-Generally unable to enforce interlocutory measures against a party.
-Rule of applicable law is not binding, arbitrators not subject to overturn on appeal.
-Large corporations may exert inappropriate influence in consumer disputes.

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Arbitration or Litigation

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-Predictability: Just one place not a race to courts in dif nations.
-Competence: Specialized expetise of arbitrators.
-Party Participation:
-Finality: Little risk of being set aside. Esp in US.
-Enforceability: (NY convention = ETEnf)
-Costs: (to some extent). Can be as high as arbitration.
-Privacy: (up to a point). No open hearings, but filings and oth litig.

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Arbitration Disadvantages (Gruson):

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-Panels = slow selection.
-Not all court have provisional remedies.
-Barest maintenance of status quo.
-Litigation to avoid arb sometimes.
-splitting the dif, rather than finding who is right.

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Ad Hoc Arbitration:

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When you don't use an arbitration service (Like ICC or AAA).

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UNIT 2

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UNIT 2

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On the Authority of Arbitration Tribunals.

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Variations of the arbitration agreement.

US approach:

French Approach:

Judicial Review:

Front 32

Tennessee Imports Inc. v. PP Filipi & Prix Italia SRL.

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F:agent of comp under Arb Cont. acted as tho comp not und arb cont.
-Strong Presumption in Favor of Arbitration.
-Unlisted Jurisdiction in Martindale-Hubble digest not a prob.
-Agent (Filipi) was held to be liable in part, even though not part of contract.

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Mennorah Insurance Corp. LTD. v. INX reinsurance corp.

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-Arbitration can be explicitly and implicitly waived.
-You can't allow default judgment of arbitration and then demand "arbitration!" when the P tries to enforce.

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Texaco Overseas Petroleum Co. & California Asiatic Oil Co. v. The Government of the Lybian Arab Republic.

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-Sole arbitrator can rule on his own competence.
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American Bureau of Shipping v. Jules Verne Et Al.

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-Arbitrators can rule on the existence of an arbitration agreement.
-Arbitrators can not make decisions as to non-parties to arbitration.

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Sujuzneftextport (SNE) (USSR) v. Joc Oil, LTD. (Bermuda).

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Separability: