International Commercial Arbitration

 

By Susan Gualtier

 

Susan Gualtier is the Foreign, Comparative, and International Law Librarian at Louisiana State University’s Paul M. Hebert Law Center Library. She has a B.A. from Yale University and a J.D. from the Georgetown University Law Center, and has practiced law as a commercial litigator in New York, NY, and Washington, DC. Susan has worked on international commercial arbitrations as an intern and then as an independent contract attorney for an in-house legal department in Florence, Italy. She has continued to pursue her interest in alternative dispute resolution through academic coursework, continuing legal education, and professional activities. In 2011, she obtained her M.L.I.S. from the University of Wisconsin, Milwaukee and began her career as a law librarian. Besides ADR, her academic interests include legal history, women’s human rights, customary and religious laws, and mixed legal systems.

 

Published November/December 2014

 

 

NOTE: Since investor-state arbitration had already been covered on Globalex , this article focused on all aspects of international commercial arbitration

 

1. Introduction

International commercial arbitration is a means of resolving disputes arising under international commercial contracts.  It is used as an alternative to litigation and is controlled primarily by the terms previously agreed upon by the contracting parties, rather than by national legislation or procedural rules.  Most contracts contain a dispute resolution clause specifying that any disputes arising under the contract will be handled through arbitration rather than litigation.  The parties can specify the forum, procedural rules, and governing law at the time of the contract.

 

Arbitration can be either “institutional” or “ ad hoc .” The terms of the contract will dictate the type of arbitration.  If the parties have agreed to have an arbitral institution administer the dispute, it is an institutional arbitration.  If the parties have set up their own rules for arbitration, it is an ad hoc arbitration.  Ad hoc arbitrations are conducted independently by the parties, who are responsible for deciding on the forum, the number of arbitrators, the procedure that will be followed, and all other aspects of administering the arbitration.

 

The types of law that are applied in arbitration include international treaties and national laws, both procedural and substantive, as well as the procedural rules of the relevant arbitral institution. Previous arbitral awards carry persuasive authority, but are not binding. Scholarly commentary, or “doctrine,” may also be applied.

 

2. Research Guides

There are many helpful research guides published by university libraries and professional organizations on the topic of international arbitration.

 

The International Council for Commercial Arbitration provides a wealth of information on its website, including a collection of full-text journal articles and extensive lists of links to arbitration treaties and conventions, national arbitration laws, arbitral institutions, and professional organizations.  Although membership is required to access portions of the site, the majority of the information is publicly available.

 

The following guides provide helpful overviews of the mechanics of and reasons for arbitration, as well as links and citations to relevant primary and secondary sources. Overviews and links may also be found on individual arbitral institutions’ websites.

 

 

3. Primary Sources of Arbitration Law

 

3.1 Treaties

International commercial arbitration treaties have been collected in a number of resources.  The Electronic Information  System for International Law (EISIL) maintains a section on International Commercial Arbitration   containing links to the texts of several major treaties and other resources on international arbitration, including the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the European Convention on International Commercial Arbitration, the Inter-American Convention on International Commercial Arbitration, and the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards. ASIL’s Electronic Resource Guide to International Commercial Arbitration also contains a section on International Agreements, Conventions, and Treaties that includes links to the texts of a number of treaties, including regional multilateral and bilateral investment treaties. The International Council for Commercial Arbitration provides links to regional and international arbitration treaties.

 

Print resources containing treaty texts and bibliographies include International Arbitration Treaties ( Loukas Mistelis, et al, eds., 3 rd ed., 2010-), International Commercial Arbitration (Eric Bergsten, ed., 1980-), and the World Arbitration Reporter: International Encyclopaedia of Arbitration Law and Practice ( Loukas Mistelis and Laurence Shore, eds., 2010-).

 

The texts of most multilateral treaties can be found in commercial databases, such as Westlaw and Lexis, or on treaty depositary websites. See An Introduction to Sources for Treaty Research ” by Mark Engsberg and Mary Beth Chappell, for further information on locating treaty information.

 

3.2 National Laws

Individual countries have legislation governing both domestic and international arbitration. The International Council for Commercial Arbitration provides a list of national arbitration laws on its website. ASIL’s Electronic Resource Guide to International Commercial Arbitration also includes a list of links to all of the national arbitration statutes that are available on the free web.

 

A number of print resources include the texts or bibliographies of national arbitration laws, including International Commercial Arbitration (Eric Bergsten and Clive M. Schmitthoff, eds., 2008-); the International Handbook on Commercial Arbitration: National Reports, Basic Legal Texts (Peter Sanders, et al, eds., 2002-); National Arbitration Laws (Loukis Mistelis et al, eds., 2nd ed., 2010-); and the World Arbitration Reporter: International Encyclopaedia of Arbitration Law and Practice ( Loukas Mistelis and Laurence Shore, eds., 2010-).

 

Getting the Deal Through , available in print, by online subscription, or through Bloomberg Law, offers guides to arbitration in nearly fifty different countries, written by local practitioners. Each chapter includes a brief listing of the national laws relating both to domestic and foreign arbitral proceedings and to recognition and enforcement of awards.

 

Depending on which country’s substantive law the contracting parties have agreed to apply, you will also need to locate statutes, cases, and other sources of national law.  Research guides and other sources, such as the Foreign Law Guide and the country profiles on GlobaLex, provide assistance with locating a country’s national laws in print, in commercial databases, and on the free web.

 

3.3 Arbitration Rules

Arbitration rules are generally available on the relevant arbitral institution's web site. Individual institutions’ rules may also be available in print, either from the institution itself or as part of a larger work discussing the particular institution and its process. The rules of some of the key international arbitral institutions are also available through subscription databases such as WestlawNext and Lexis Advance.

 

A number of print resources have also been created to assist researchers with finding and comparing the rules of different arbitral institutions. The World Arbitration Reporter: International Encyclopaedia of Arbitration Law and Practice ( Loukas Mistelis and Laurence Shore, eds., 2010-), contains the texts of various arbitration rules, as well as their history and background. Comparison of International Arbitration Rules (John J. Kerr, et al, 3rd ed., 2008), offers side-by-side comparisons of provisions from the International Chamber of Commerce, the American Arbitration Association/International Center for Dispute Resolution, the London Court of International Arbitration, the Stockholm Chamber of Commerce, the International Center for Settlement of Investment Disputes, the United Nations Commission on International Trade Law (UNCITRAL), and the International Institute for Conflict Prevention and Resolution. The comparison is presented in chart format, with the provisions arranged by topic. International Arbitration Rules: A Comparative Guide (Bridget Wheeler, 2000) discusses the rules of different arbitral institutions at each stage of the arbitration process.

 

3.4 Arbitral Awards

Unlike litigation proceedings, commercial arbitration proceedings are usually confidential.  Decisions, awards, and other documents relating to arbitration proceedings are generally not published, and there is no centralized database or publication for researching arbitration proceedings.

 

An increasing number of arbitral awards, however, can be found in commercial databases.  Kluwer Arbitration and Juris’s Arbitration Law Online are both specialized databases offering collections of arbitral awards texts and summaries. WestlawNext and Lexis Advance both have arbitration sections containing both domestic and international arbitration awards.  In WestlawNext, this section can be accessed through the Arbitration Materials link on the main page, which Lexis Advance requires browsing through the topical headings for International Law, Dispute Resolution, and Arbitration and Mediation. Both platforms offer an online tutorial to assist users with retrieving arbitration materials. HeinOnline’s Foreign and International Law Resources Database also contains some arbitral awards, as well as related secondary sources and commentary. Reports of International Arbitral Awards (RIAA), available in print, in HeinOnline, and on the United Nations website, publishes arbitration decisions; however, it is limited to disputes between state parties and does not consider disputes involving private individuals or entities.

Pace Law School’s CISG Database is available on the free web, and integrates arbitral awards into its case law database.  Awards can be found by searching the case law database directly, or by browsing the section entitled “Legal Materials Organized by CISG Articles.”

 

Some arbitral institutions publish their decisions on their websites or in print volumes. Publishing of these decisions is not always comprehensive. Arbitral awards and related commentary can also be found in international arbitration law yearbooks and journals, such as the ones listed below.

 

4. Secondary Sources

 

4.1.      Books, Treatises, and Encyclopedias

International commercial arbitration is a burgeoning topic, and numerous books, treatises, encyclopedias, and other resources have been published both on international commercial arbitration generally and on specific aspects of international commercial arbitration. Books and other resources can also be found on arbitration in specific countries or regions and on arbitration in specific industries.

 

Redfern and Hunter on International Arbitration , now in its 5 th edition, is widely regarded as one of the leading texts on the law and practice of international arbitration.  Though geared toward practitioners and arbitrators, this source covers both the theory and practice of international arbitration, contains extensive discussion of each aspect of the arbitration process, and draws upon awards from arbitral institutions around the world to illustrate its discussions.  Most of the material contained in the print resource is also available online through Kluwer Arbitration.

 

Gary Born’s International Commercial Arbitration : Commentary and Materials (2d ed.) is another well-known treatise in international arbitration.  It provides an extensive overview of the international arbitration process and major arbitral institutions, as well as the texts of a number of international arbitration treaties, domestic statutes, and arbitration rules. International Commercial Arbitration : Commentary and Materials is also available online through Kluwer Arbitration.

 

The American Law Institute is currently in the process of drafting the Restatement of the Law Third: The U.S. Law of International Commercial Arbitration. The project will restate the American law of international commercial arbitration and is expected to cover, among other topics, arbitration agreements, judicial conduct and the judicial role in international arbitral proceedings in the United States, arbitral awards, recourse from and enforcement of international arbitral awards rendered in the United States, the judicial role in international arbitral proceedings abroad, enforcement of international arbitral awards rendered abroad, the preclusive effect of international arbitral awards, and ICSID Convention arbitration.  Tentative drafts of the Restatement are available for purchase on the ALI website .

 

Domke on Commercial Arbitration is a treatise covering all aspects of commercial arbitration, both foreign and domestic. In addition to scholarly commentary, Domke on Commercial Arbitration contains the texts of a number of different arbitration rules. It is available as a continually updated loose-leaf service or online through WestlawNext.

 

4.2.      Arbitration Law Yearbooks

Yearbooks are annual publications intended to provide the reader with updates to the law that have occurred over the course of the past year.  Arbitration law yearbooks may contain articles on new developments in the law of international arbitration, case notes or texts of arbitral decisions, new legislation and treaties, and other information.

 

One of the most prominent publications, the International Council for Commercial Arbitration’s Yearbook: Commercial Arbitration is available both in print and by online subscription through Kluwer Arbitration. It includes information on arbitral awards from the International Chamber of Commerce and several other arbitral institutions, as well as ad hoc awards made under UNCITRAL rules. The Yearbook on International Arbitration is a relatively new publication covering recent trends in international commercial arbitration, as well as sports controversies and investor-state conflicts. The AAA Yearbook on Arbitration and the Law , published by the American Arbitration Association, focuses primarily on United States arbitration and national laws but also covers international arbitration topics.

 

Some yearbooks focus exclusively on developments in international arbitration as they related to a particular country or region.  Examples include the Austrian Yearbook on International Arbitration, available in print or online through Kluwer Arbitration, the Croatian Arbitration Yearbook , available in print or online through Lexis Academic, and the Czech and Central European Yearbook of Arbitration , also available in print.

Yearbooks dealing with international law in general may also contain information on international arbitration. These can be found in print or in a variety of commercial databases, including Lexis Advance, WestlawNext, and HeinOnline.

 

4.3.      Law Journals

Scholarly journal articles on international commercial arbitration can be found using commercial databases and indexes, such as WestlawNext, Lexis Advance, HeinOnline, and the Index to Foreign Legal Periodicals.  There are a number of journals dealing specifically with arbitration.  The following are a few examples.

 

 

4.4.          Practice Guides

There are many international arbitration resources that take a practical approach to the topic and that are therefore well-suited to attorneys and judges who find themselves involved in international arbitration proceedings.

 

Redfern and Hunter on International Arbitration , discussed above, is one of the leading texts on international arbitration, and it is geared toward practitioners and arbitrators. The text covers both practice and theory, and draws upon past arbitral awards for illustration.

 

Peter Ashford’s Handbook of International Commercial Arbitration , 2d ed., provides an up-to-date discussion of each stage of the arbitration process, and comes with a CD-ROM containing sample filings, correspondence, and other documents to assist practitioners with the arbitration process.

 

Getting the Deal Through , described above under “National Laws,” offers guides to arbitration in nearly fifty different countries, written by local practitioners, as well as guides to arbitration under a number of specific international and regional arbitral institutions. These guides are designed as quick reference sources for practicing attorneys, and are written in a “frequently asked questions” format.

 

International Arbitration and Mediation: A Practical Guide , by Michael McIlwrath and John Savage, contains detailed, straightforward discussions of each step of the arbitration process, as well as the mechanics of negotiating and drafting an international dispute resolution agreement. Emphasis is placed on early case assessment and cost analysis, as well as alternatives to arbitration, such as mediation and arb-med. The book includes model dispute resolution clauses and arbitration documents, as well as an extensive bibliography of both general and specialized arbitration treatises and materials and a list of websites and other online resources on arbitration. International Arbitration and Mediation: A Practical Guide is available in print and online through Kluwer Arbitration.

 

4.5.          Newsletters and Related Publications

One way to stay current on arbitral decisions and developments in arbitration law is by following newsletters, newsfeeds, blogs, and other similar publications. Many such publications are available, whether in print or electronic format.

 

Mealey's International Arbitration Report , available in print and online through LexisNexis, is a monthly bulletin covering arbitration and related litigation in international and domestic courts world-wide. The Report contains articles, news stories, case summaries, attorney listings, and full-text court documents relating to international arbitration.

 

The Kluwer Arbitration Blog is published by Wolters Kluwer Law and Business and is available on the free web. The blog publishes articles on international commercial arbitration, written by experts in the field. Transnational Dispute Management (TDM) is an online, peer-reviewed journal covering international arbitration law topics. While a subscription is necessary to access most of the content, there are news posts that can be accessed without a subscription.

 

International Dispute Negotiation is a podcast series hosted by the International Institute for Conflict Prevention and Resolution (CPR Institute.) The podcasts discuss how professionals from different countries and backgrounds approach dispute resolution, as well as the risks involved in dispute resolution and ways of mitigating and managing those risks.

 

The internet contains innumerable blog posts, news feeds, law firm newsletters, and other sources of arbitration news.  General business news sources also frequently publish information on international arbitration proceedings and related topics.

 

5.               List of Arbitral Institutions

The following are a few of the major arbitral institutions in the area of international commercial arbitration.  Information on procedural rules, arbitrators, and other aspects of the arbitration process can be found on each institution’s website.

 

·        American Arbitration Association  

·        European Court of Arbitration

·        International Chamber of Commerce (ICC): International Court of Arbitration

·        International Institute for Conflict Prevention and Resolution (CPR)

·        JAMS International

·        London Court of International Arbitration

·        Permanent Court of Arbitration

·        United Nations Commission on International Trade Law (UNCITRAL)  

·        World Intellectual Property Organization (WIPO) Arbitration and Mediation Center  

 

Lists of national, regional, and specialized arbitral institutions can be found on a number of sites, including the following:

 

·        International Council for Commercial Arbitration, Related Links (International and Regional Arbitral and ADR Institutions)

 

6.              Further Reading

 

·        Marci Hoffman & Mary Rumsey, International Commercial Arbitration, in International and Foreign Legal Research: A Coursebook 315 (2d ed. 2012).

 

·        Stacie Strong , Research and Practice in International Commercial Arbitration: Sources and Strategies (2009).

 

·        Stacie Strong, Research in International Commercial Arbitration: Special Skills, Special Sources , 29 Am. Rev. Int’l Arb. 119 (2009). (available on SSRN )  

 

·        Anthony S. Winer, Mary Ann E. Archer, & Lyonette Louis-Jacques, Judicial and Arbitral Decisions, in International Law Legal Research 127 (2013).