A Practical Guide to International Arbitration in London (Dispute Resolution Guides)

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Partasides, A. Redfern, M.

Practical Guide to International Arbitration

Hunter This classic text was recently updated, but the latest edition is unavailable online. Concise and well organised, it leads the reader through the different stages of the arbitral process. It is renowned for its direct approach to complex issues and the writing has been praised for its accessible and pedagogical style. Rules of Evidence in International Arbitration: An Annotated Guide is a valuable reference for practitioners, arbitrators and in-house counsel involved in cross-border dispute resolution.

It considers common issues and questions relating to evidentiary procedure, with numerous case-based commentaries. Soft Law in International Arbitration, L.

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Newman and M. Radine This book reviews soft law concerning the organization and general conduct of arbitrations, including an overview of the protocols and guidelines that are often followed by international arbitrators when conducting an arbitration, with respect to such issues as disclosure, ethics and document production.

Bishop and E. Kehoe This book provides an overview of issues concerning advocacy in international arbitration, such as cultural differences, ethical considerations, psychological factors and strategic considerations.

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It is most useful for junior practitioners. Paulsson, N. Rawding, L. Reed This book is useful for assisting in-house counsel and practitioners in drafting fully-informed arbitration clauses. Ashford Although the IBA Rules are soft law, and often looked to merely for inspiration, this book is useful for arbitrations involving difficult questions with respect to evidence. Saidov This book is focused on the CISG, the UPICC and the PECL, and it reviews the legal elements that are necessary to prove damages for international sales, including causation, foreseeability and mitigation, and the burden of proof that must be met to succeed on a damages claim.

Hill While less practical than some other works, this book is nevertheless interesting insofar as it offers a view of international arbitration from the perspective of arbitrators. Kronke, P. Nacimiento, D. Otto, N. Port This work is helpful to both practitioners and academics. Weigand This book provides a concise introduction to international commercial arbitration, with country reports and commentaries by a variety of practitioners and academics on internationally recognized arbitration rules.

Moses This book is not a comprehensive textbook, but it has been very recently updated and provides a concise and to-the-point overview of international commercial arbitration. This uniform law is applicable to many international contractual disputes, and this book provides a good overview of jurisprudence concerning the interpretation of the UNIDROIT Principles by a variety of courts and arbitral tribunals. Caron, L. Caplan Nieuwveld, V. Shannon Third-party funding, whereby a third-party pays for an arbitration in return for a share of any eventual arbitration award, is already changing the balance of power in international arbitration, by allowing poorer claimants with well-founded claims to gain access to arbitral justice.

Some fear it is also open to abuse. In this book, the first on this topic, the authors analyze and assess the legal regime in a variety of countries based upon legislation, judicial opinions, ethics opinions, and practitioner anecdotes describing the state of third-party funding in that jurisdiction. Towards a Uniform International Arbitration Law? Schlaepfer, P. Pinsolle and L. Degos This book, by the International Arbitration Institute, is a collection of essays by leading arbitration practitioners, which concern the issue of whether there are transnational rules applicable to arbitration that are developing.

Theoretical in nature, this book is nevertheless interesting to read for current international arbitration practitioners. Schwarz, C. Konrad It provides an article-by-article commentary, and is useful reading for anyone involved in an arbitration in Vienna. Casey This book provides a good introduction to arbitration practice and procedure in Canada, based on both federal legislation and provincial legislation. El-Ahdab This book analyzes arbitration procedure and practice on a country-by-country basis in Arab States.

Mohtashami While nearly all books on international commercial arbitration also cover LCIA arbitration, this is currently the leading reference book dedicated exclusively to it. Carbonneau This scholarly tome explores issues such as the judicialization of international arbitration, the role of national law and courts, and stare decisis, from the perspective of the eminent professor and arbitrator Thomas Carbonneau.

Besson This book is an updated version of a well-known French treatise on international commercial arbitration.

International Arbitration

Hanotiau This useful book on complex arbitrations provides a comprehensive analysis of the issues arising from multiparty and multicontract disputes, including those involving States and groups of companies. Steingrube Consent is of course the bedrock of international arbitration, for without the consent of the parties to a dispute the arbitrator would not have jurisdiction to decide upon the merits of a case.

Draetta This book explores what can go wrong over the course of an international arbitration if the wrong legal counsel is selected. Howell The book looks at e-discovery in the context of international arbitration and provides guidance with respect to e-disclosure from both common law and civil perspectives.

Savage This famous treatise is becoming outdated, but it is nevertheless frequently relied upon in the field of international arbitration, and it was formerly the leading book on the subject. Choong This long-overdue book provides article-by-article guidance on the SIAC Rules of Arbitration, and it is written by leading practitioners of international arbitration. Kaplan This book reviews ICDR arbitration practice, electronic discovery in international arbitration, arbitrator disclosure standards, and provides commentaries on a number of ICDR arbitral awards.

Whitesell Not all arbitrations can wait until a final award in order for there to be relief. Ong This useful book reviews interim measures that can be granted in support of arbitration before many different State courts, from Argentina to Vietnam. Born Gary Born is a leading arbitrator and practitioner who deserves praise for drafting another clear and authoritative work concerning international arbitration. Savage This fairly recent publication provides a practical yet exhaustive overview of international arbitration and mediation, although given its paucity of references it is more useful for in-house counsel than practicing attorneys.

Moore This eclectic book offers a good view of contemporary issues in international arbitration, but is too diverse to be of use on a regular basis.

Making International Arbitration Suitable for the 21st Century

See Question Does the applicable law recognise the separability of arbitration agreements? Breach of an arbitration agreement. What remedies are available where a party starts court proceedings in breach of an arbitration agreement or initiates arbitration in breach of a valid jurisdiction clause? Court proceedings in breach of an arbitration agreement A party can apply to court for a stay of the court proceedings section 9, Arbitration Act.

The court must grant the stay, unless the arbitration agreement is null and void, inoperative or incapable of being performed. Arbitration in breach of a valid jurisdiction clause A party can challenge the jurisdiction of the tribunal, either by application to the tribunal itself section 30, Arbitration Act or by application to court section 32, Arbitration Act. In either case, the challenge should be made before substantive steps are taken in the arbitral proceedings sections 31 and 73, Arbitration Act. Will the local courts grant an injunction to restrain proceedings started overseas in breach of an arbitration agreement?

Courts have the power to grant anti-suit injunctions section 37, Senior Courts Act However, anti-suit injunctions are an equitable form of relief and will not be granted in favour of an arbitration, if there are strong reasons not to do so. Are there any legal requirements relating to the number, qualifications and characteristics of arbitrators?

Must an arbitrator be a national of, or licensed to practice in your jurisdiction to serve as an arbitrator there? Other than impartiality see Question 16 , there are no requirements under the Arbitration Act relating to the qualifications and characteristics of arbitrators. It is not necessary for an arbitrator to be a national of, or licensed to practise in, England.

As far as the number of arbitrators is concerned, certain provisions apply in default of agreement between the parties including where the parties have agreed on an even number of arbitrators, that an additional arbitrator will be appointed as chairman sections , Arbitration Act. There is a requirement for arbitrators to act fairly and impartially between the parties section 33 1 , Arbitration Act.

Section 1 a also states that "the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense". The IBA Guidelines on Conflicts of Interest in International Arbitration provide a non-exhaustive list of circumstances in which appointments should be declined or disclosures made in order to protect against bias.

These are arranged based on a "traffic light" system from red to green based on their significance. However, the IBA Guidelines only apply where the parties have so agreed or the tribunal has adopted them. The Court of Appeal has confirmed that the test to be applied by the courts which are not bound by the IBA Guidelines in respect of impartiality is an objective one: would a fair-minded and informed observer, having considered all the facts, conclude that there was a real possibility that the tribunal was biased?

The Arbitration Act is silent as to an arbitrator's duty of disclosure. This case concerned a London-seated arbitration claim relating to indemnification in respect of settlements following the Deepwater Horizon explosion. The applicant sought the removal of one of the three appointed arbitrators, on the basis that there were "justifiable doubts as to his impartiality", citing the fact that he had been appointed as an arbitrator in two other disputes arising out of the Deepwater Horizon explosion and had not disclosed the fact of those overlapping appointments.

The court held that the arbitrator should have disclosed these circumstances, clarifying that an arbitrator's duty of disclosure extends not only to circumstances that a fair-minded and informed observer would conclude give rise to a real possibility of bias, but also to circumstances that merely might give rise to such a conclusion.

The court nevertheless held that the arbitrator's overlapping appointments did not give rise to apparent bias, as such practice was seen as commonplace, with arbitrators being trusted to approach each case with an open mind. Further, the court gave weight to the finding that the arbitrator's non-disclosure was accidental and that he had acted appropriately when concerns were raised. However, this decision may still make future arbitrator challenges more likely, particularly bearing in mind the court's confirmation that an arbitrator's failure to disclose will be relevant in determining whether apparent bias exists.

Appointment of arbitrators There is a default mechanism for the appointment of arbitrators sections , Arbitration Act , which includes the following:. If the tribunal is to consist of a sole arbitrator, the parties will jointly appoint the arbitrator no later than 28 days after service by one of the parties of a request to do so. If the tribunal is to consist of three arbitrators, each party will appoint one arbitrator no later than 14 days after service by one of the parties of a request to do so, and the two so appointed will forthwith appoint a third arbitrator as chairman.

Removal of arbitrators A court can remove an arbitrator on certain specified grounds, including justifiable doubts about his impartiality and a failure to properly conduct the proceedings section 24, Arbitration Act. Where the arbitral institution also has power to remove an arbitrator, a court will not exercise its power until the applicant has exhausted any available recourse to that institution. There have been two recent instances in which the court has exercised its power to remove an arbitrator, on the basis that justifiable doubts as to his impartiality existed:.

In Cofely Ltd v Bingham and another [] EWHC Comm , Cofely Ltd, the arbitrator acted as adjudicator or arbitrator on a number of occasions over the previous three years, in proceedings where Knowles the claimant in the arbitration was a party or provided representation. In the circumstances, the court held that there were justifiable doubts about the arbitrator's independence and impartiality. In Sierra Fishing Company and others v Farran and others [] EWHC Comm , the claimants objected to the appointment of the sole arbitrator on the grounds that he had a social and commercial relationship with the first and second defendants and had failed to disclose that he was related to the first defendant's legal counsel.

In making an order that he should be removed, the court observed that the arbitrator had made arguments on behalf of the first and second defendants that they had not advanced and had acted as if he had "descended into the arena and taken up the battle" on behalf of the defendants, such that he had ultimately lost the necessary objectivity required to determine the merits of the claim. Removal can also be sought on the basis that the arbitrator does not possess the qualifications required by the arbitration agreement.

The Court of Appeal recently overturned a Commercial Court decision to remove an arbitrator, on grounds that he did not meet the requirement of having "not less than ten years' experience of insurance and reinsurance". The court preferred a wider construction of the term "experience" and held that the arbitrator's experience of the law of insurance and reinsurance satisfied the requirement Allianz Insurance Plc and another v Tonicstar Ltd [] EWCA Civ The LCIA publishes anonymised decisions on arbitrator challenges and has recently published decisions dating back to on an online database.

Procedure Commencement of arbitral proceedings. Does the law provide default rules governing the commencement of arbitral proceedings? There are default rules governing commencement of arbitral proceedings section 14, Arbitration Act , including:. Where the arbitrator is named or designated in the arbitration agreement, arbitral proceedings are commenced when one party serves a notice requiring them to submit the matter to the person so named or designated. Where the arbitrator or arbitrators are to be appointed by the parties, arbitral proceedings are commenced when one party serves on the other party notice requiring them to appoint an arbitrator or to agree to the appointment of an arbitrator.

The courts will however give effect to applicable institutional rules in determining whether proceedings have been validly commenced. For example, in the context of the requirement in Article 1. A defective arbitration notice may have potentially significant consequences where purported commencement takes place hard up against the date of the expiry of a statutory or contractual limitation period. Applicable rules and powers. What procedural rules are arbitrators bound by? Can the parties determine the procedural rules that apply?

Does the law provide any default rules governing procedure? Subject to the right of the parties to agree any matters, it is for the tribunal to decide all procedural and evidential matters section 34, Arbitration Act. Default rules Certain default rules apply in the absence of an agreement to the contrary between the parties, such as the tribunal's power to order security for costs and to direct that a witness be examined on oath section 38, Arbitration Act.

Evidence and disclosure. If there is no express agreement, can the arbitrator order disclosure of documents and attendance of witnesses factual or expert? The tribunal can order disclosure of documents and attendance of witnesses sections 34, 43 and 44, Arbitration Act. The tribunal has the power to order disclosure of documents by the parties section 34 2 d , Arbitration Act. A party can with permission from the tribunal or the agreement of the other parties apply to court for an order requiring the attendance of a witness in the UK to give oral testimony or to produce documents section 43 1 , Arbitration Act.

The following principles are relevant to the production of documents:. It is a fundamental requirement that there is clear identification of the documents required so that the recipient of a summons has no doubts about what to provide Tajik Aluminium Plant v Hydro Aluminium AS and others [] 1 WLR The key consideration is whether the documents are necessary for the fair disposal of the matter or to save costs.

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  5. Any application for a witness summons must comply with Civil Procedure Rule In particular, it must show that the dispute cannot be disposed of adequately, unless the witness attends to give evidence. A court has the same power to make orders in support of arbitral proceedings as it has in legal proceedings in respect of certain matters, including taking evidence from witnesses outside the jurisdiction section 44 2 a , Arbitration Act.

    However, it appears that the court will only exercise such powers against third parties in exceptional circumstances; the powers primarily relate to parties to the arbitration. The proper approach when seeking evidence or documents from third parties outside the jurisdiction is usually to apply to the court for a letter of request addressed to the court of the jurisdiction in which the evidence will be taken DTEK Trading SA v Morozov [] EWHC 94 Comm.

    The court will only make such an order if or to the extent that the tribunal, and any arbitral institution, has no power or is unable for the time being to act effectively. There may be a contractual right for one party to obtain documents from a third party who is not involved in the arbitration.

    Use of arbitration and recent trends

    Evidence How, in practice, does the scope of disclosure in arbitrations compare with disclosure in domestic court litigation? Can the parties set the rules on disclosure by agreement? Scope of disclosure It is for the tribunal to decide all procedural and evidential matters subject to the right of the parties to agree any matter — see below , including whether and which documents will be disclosed and at what stage section 34, Arbitration Act.

    The Civil Procedural Rules which apply to English litigation give the courts significant flexibility in determining the scope of disclosure. The "standard disclosure" order, however, requires parties to disclose documents on which they rely, as well as documents that support another party's case or adversely affect either their own or another party's case.

    By contrast, the IBA Rules on the Taking of Evidence in International Arbitration, which are commonly adopted in English arbitrations, require parties to produce the documents available to them on which they rely, and allow parties to submit requests for other parties to produce specified documents. Validity of parties' agreement as to rules of disclosure The tribunal's discretion to decide all procedural and evidential matters is subject to the right of the parties "to agree any matter" section 34, Arbitration Act.

    The parties can accordingly agree on the rules of disclosure, thereby restricting or excluding the general discretion of the tribunal. Confidentiality Is arbitration confidential? If so, what is the scope of that confidentiality and who is subject to the obligation parties, arbitrators, institutions and so on? In contrast with English litigation where statements of case and certain other documents can be accessed by non-parties, hearings are usually public and judgments are usually published , arbitral proceedings generally have a greater degree of confidentiality.

    This emphasis on confidentiality is often seen as a key incentive for parties to choose arbitration. Although the Arbitration Act is silent on the issue of confidentiality, case law imposes duties of confidentiality on the parties and the arbitrators in relation to the arbitration hearing, as well as to documents disclosed or generated in the arbitration Emmott v Michael Wilson and Partners [] EWCA Civ There are a number of exceptions to this general principle of confidentiality, including where disclosure of documents:.

    Has been agreed by the parties to the arbitration. Is reasonably necessary for the establishment or protection of a party's legal rights. Is necessary in the public interest or in the interests of justice. If there is a threatened breach of confidentiality, the tribunal if it has been granted the required power or the court can order injunctive relief. It is not a pre-requisite for this type of remedy that the threatened breach can cause any prejudice to the party.

    Courts and arbitration Will a local court intervene to assist arbitration proceedings seated in its jurisdiction? A court is only permitted to intervene in arbitration proceedings to the extent expressly permitted by the Arbitration Act section 1 c , Arbitration Act , for example to:. Order a party to comply with a peremptory order made by the tribunal see section 42, Arbitration Act. Require the attendance of a witness to give testimony or to produce documents or other material evidence see section 43, Arbitration Act. Grant an interim injunction with regard to specified matters under section 44 2 of the Arbitration Act, including in relation to the preservation of evidence and the sale of any goods subject of the proceedings.

    Determine a question of law arising in the course of the proceedings see section 45, Arbitration Act. The parties can agree to exclude sections 42, 44 and 45 of the Arbitration Act but cannot agree to exclude section As a general principle, the court will only intervene when it is satisfied that the applicant has exhausted any available arbitral process. Even then, the intervention will be designed to cause minimum interference with the progress of the arbitration. What is the risk of a local court intervening to frustrate an arbitration seated in its jurisdiction? Can a party delay proceedings by frequent court applications?

    Risk of court intervention The risk of the English courts intervening to frustrate arbitral proceedings is low because they are supportive of arbitration. The court's powers to intervene are designed to support rather than displace the arbitral process and are also expressly limited by the Arbitration Act see Question Delaying proceedings The Arbitration Act also limits the extent to which parties can delay arbitral proceedings by making applications to the court.

    A mandatory stay of court proceedings commenced in breach of an arbitration agreement will be granted in favour of arbitral proceedings, unless the court is satisfied that the arbitration agreement is null and void, inoperative or incapable of having effect section 9 4 , Arbitration Act see, for example, Associated British Ports v Tata Steel UK Ltd [] EWHC Ch. In certain cases, arbitral proceedings can continue, and an award can be made, pending a determination by the court section 32 4 , Arbitration Act.

    Insolvency What is the effect on the arbitration of pending insolvency of one or more of the parties to the arbitration? A winding up order, or the appointment of provisional liquidators, in relation to a party to arbitration results in an automatic stay of that arbitration except with leave of the court and subject to any terms that may be imposed section 2 , Insolvency Act The court also has the discretion to order a stay in the event of a voluntary winding up.

    The court also has the discretion to order a stay, where a foreign court has ordered a winding up.

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    No legal process can be continued against a company in administration without permission from the court or consent from the administrators paragraph 43 6 of Schedule B1, Insolvency Act. A stay under these provisions does not render the arbitration null or void, unless the party subject to insolvency proceedings is being dissolved as there cannot be a valid award where one of the parties has ceased to exist Baytur SA v Finagro Holdings SA [] QB Remedies Bunni and Pierre M.

    An Interview with the President. Abstract Statistical Report. Introductory Note. Timothy Martin. Books Received. Abstract Introduction and Overview. Mediation Rules. Mediation Guidance Notes. ICC Mediation Clauses. Abstract Does Business Need Mediation? By Eric Borysewicz. ICC Arbitration News. Introductory Note Jason Fry. Serge Lazareff. Les Incoterms dans les sentences arbitrales de la Chambre de commerce internationale Par Emmanuel Jolivet.

    Abstract Rapport statistique Les Incoterms dans les sentences arbitrales de la Chambre de commerce internationale - Introduction Emmanuel Jolivet. Robert Briner. Note on Personal and Arbitral Tribunal Expenses. Fabrizio Marrella. Arbitrage CCI : statistiques sur dix ans. Avertissement Jason Fry. Introductory Note Anne Marie Whitesell.

    Avertissement Anne Marie Whitesell.