UPDATE: International Commercial Arbitration

By Charles Bjork

Charles Bjork is an International and Foreign Law Reference Librarian at the Georgetown University Law Library in Washington, D.C. He has a B.A. from the University of Illinois and a J.D. from Northwestern University School of Law. Prior to entering the field of law librarianship, he spent nearly two decades in private law practice in Chicago. After obtaining his M.S.L.I.S. from the University of Illinois in 2013, he began his career as a librarian specializing in foreign, comparative, and international law research at Georgetown in 2014. He also serves as an adjunct professor at the Georgetown Law Center, where he co-teaches the for-credit course Research Skills in International and Comparative Law.

NOTE: Since investor-state arbitration is covered in a separate GlobaLex article (see Hernando Otero, UPDATE: International Arbitration Between Foreign Investors and Host States (Investor-State Arbitration), GlobaLex, March/April 2022), this article focuses exclusively on international commercial arbitration between private parties.

NOTE: This article is a complete re-write of the previous version.

Published September/October 2022

(Previously updated by Susan Gualtier in April 2017)

See the Archive Version!

1. Introduction

International commercial arbitration is a means of resolving disputes arising out of transnational commercial transactions. It is 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. Arbitral awards entered in prior disputes 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 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 also may be found on the websites of individual arbitral institutions.

The International Council for Commercial Arbitration (ICCA), a professional membership organization for practitioners in the field, provides some free content on its website, including ICCA’s Guide to the Interpretation of the New York Convention (available for download in multiple languages) and a series of topical reports published by ICCA. Other ICCA publications, described elsewhere in this guide, are available for purchase in print. Subscribers to the Kluwer Arbitration platform may access all ICCA publications online.

3. Subscription-Based Platforms That Focus on International Commercial Arbitration

In recent years, as publishers continue to migrate legacy print sources online, subscription-based platforms that focus on international arbitration have proliferated. Each of the platforms described below covers both international commercial arbitration (between private parties) and investor-state arbitration. Platforms that focus primarily or exclusively on investor-state arbitration are not included.

4. Primary Sources of Arbitration Law

4.1. Treaties

Two categories of treaties are relevant to international commercial arbitration research. The first category includes treaties that govern the arbitration process and the recognition and enforcement of foreign arbitral awards. The most important of these is the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, usually referred to as the New York Convention. This category also includes many regional treaties, such as the Arab Convention on Commercial Arbitration, the European Convention on International Commercial Arbitration, and the Inter-American Convention on International Commercial Arbitration (a.k.a. the Panama Convention).

The second category of treaties includes those that govern the underlying commercial transactions from which disputes arise. The most important of these treaties is the 1980 Convention on Contracts for the International Sale of Goods, usually referred to as the CISG Convention. Most of the treaties that fall into this second category were drafted under the auspices of the United Nations Commission on International Trade Law (UNCITRAL).

The following free online resources are particularly helpful in researching treaties that are relevant to international commercial arbitration research. In addition to the treaty texts, these resources also provide regularly updated information about the treaty’s status and ratification, as well as links to drafting histories and related documentation.

Subscription-based arbitration platforms, such as Jus Mundi and Kluwer Arbitration, also are good sources for accessing the texts of treaties pertaining to international commercial arbitration, as well as court decisions and arbitral decisions that have applied and interpreted these treaties. Kluwer Arbitration also offers many secondary sources that discuss and analyze relevant treaties, particularly the New York Convention.

The following print resources include treaty texts and bibliographies: International Arbitration Treaties (Loukas Mistelis, et al, eds., 3d ed., 2011-), International Commercial Arbitration (Eric Bergsten and Clive M. Schmitthoff, eds., 1974-), and the World Arbitration Reporter: International Encyclopaedia of Arbitration Law and Practice (Loukas Mistelis and Laurence Shore, eds., 2d ed., 2010-).

4.2. National Laws

Individual countries have enacted legislation governing both domestic and international arbitration. Many countries have enacted legislation based on the UNCITRAL Model Law on International Commercial Arbitration, adopted in 1985 and amended in 2006. UNCITRAL maintains a regularly updated status table, which lists all of the national and sub-national jurisdictions that have enacted legislation based on its Model Law.

Peter Binder’s International Commercial Arbitration and Mediation in UNCITRAL Model Jurisdictions (4th ed., 2019) provides an article-by-article analysis of the UNCITRAL Model Law along with an overview of its adoption in more than 100 jurisdictions. In addition, it includes a series of comparative charts showing which countries have enacted various provisions of the Model Law. Also available on Kluwer Arbitration.

The following print resources include the full texts or bibliographies of national arbitration laws:

Subscribers to Kluwer Arbitration may access the full texts of national laws governing arbitration in dozens of jurisdictions. For some non-English speaking jurisdictions, Kluwer provides full-text English translations of the relevant laws. For other jurisdictions, laws are only available in the language of the jurisdiction. Brill’s subscription-based Foreign Law Guide provides citations or direct links (when available) to national laws governing arbitration in the language of the jurisdiction. Select “Arbitration & Mediation” under the heading “Laws by Subject.” Then select the desired jurisdiction.

Getting the Deal Through (GTDT), available online by subscription, offers detailed summaries of national laws governing arbitration and other aspects of dispute resolution written by local practitioners in more than 40 jurisdictions worldwide. Each jurisdiction-specific summary follows a standard topical outline using a question-and-answer format. GTDT’s online platform includes a comparative tool that enables users to easily compare arbitration practices in two or more jurisdictions.

For those without access to subscription-based resources, the American Society of International Law’s includes a list of links to national arbitration laws that are freely available online.

Depending on which country’s substantive law the contracting parties have agreed to govern the underlying transaction(s), you may also need to locate statutes, cases, and other sources of national law. The Foreign Law Guide and the country profiles on GlobaLex can help you locate a jurisdiction’s national laws in print, in commercial databases, and on the free web.

4.3. Arbitration Rules

Procedural rules issued by arbitral institutions usually are freely available for download in PDF format from each arbitral institution's web site. An individual institution’s rules also may be available in print, either from the institution itself or as part of a larger work describing the institution’s practices or comparing the practices of multiple arbitral institutions.

Some subscription-based legal research platforms provide access to arbitration rules issued by multiple arbitral institutions. Jus Mundi and Kluwer Arbitration offer the most comprehensive coverage, with current and (sometimes) superseded rules issued by dozens of arbitral institutions throughout the world. Westlaw’s coverage is narrower in focus, with rules issued by two dozen of the most prominent arbitral institutions.

The law firm of Baker & McKenzie offers a Comparative Chart of International Arbitration Rules, which enables users to compare rules issued by 16 leading arbitral institutions on more than a dozen substantive issues. The comparative tool is freely available online.

The following print resources are available to assist researchers in finding and comparing the rules of different arbitral institutions:

4.4. Arbitral Awards

Unlike domestic litigation proceedings, which usually are accessible to the public, most international commercial arbitration proceedings are subject to confidentiality provisions set forth in arbitration agreements. As a result, most decisions, awards, and other documents relating to international arbitration proceedings are not published, unless all parties to the dispute consent to their disclosure. Even when all parties do consent, the names of the parties may be redacted.

To complicate matters further, no electronic or print sources provide comprehensive coverage of all publicly disclosed arbitral awards and decisions entered in transnational commercial disputes. Consequently, researchers often must consult multiple sources. Even when they do, they may not be able to locate the full text of the decision or award they are seeking if the parties did not consent to its disclosure.

The following subscription-based arbitration law platforms offer online access to selected arbitral decisions and awards:

In addition to the subscription-based resources described above, the following free electronic resources also provide access to selected arbitral awards and decisions:

Some arbitral institutions selectively publish awards and decisions entered in proceedings involving transnational commercial disputes when the parties have consented to disclosure. These may be posted on the arbitral institution’s website, but they are subject to being taken offline without notice. A few of the most prominent arbitral institutions publish selected awards and decisions in print in a series of bound volumes. These bound volumes may be available for purchase from the arbitral institution or from a commercial publisher. Alternatively, the arbitral institution may no longer publish these materials in print and instead license the content to one or more subscription-based arbitration platforms.

Compilations of arbitral awards and decisions published by commercial publishers tend to be highly selective, often focusing on arbitrations administered by a single arbitral institution or on disputes within a particular industry or geographic region. With the proliferation of online platforms that focus on international arbitration, many of these print compilations have ceased publication or migrated online to subscription-based arbitration platforms. Selected arbitral awards and decisions continue to be published in arbitration yearbooks, which are discussed in Section 5.2 below.

5. Secondary Sources

5.1. 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 that focus on arbitration in specific countries or regions, or on arbitration in specific industries, are widely available.

Redfern and Hunter on International Arbitration, now in its 6th 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. Also available on Kluwer Arbitration.

Gary Born’s International Commercial Arbitration (3d ed., 2021) 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 several international arbitration treaties, domestic statutes, and arbitration rules. Also available on Kluwer Arbitration.

Domke on Commercial Arbitration (3d ed., 2012-) 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 several different arbitration rules. It is available as a continually updated loose-leaf service or on Westlaw.

The American Law Institute has completed its Proposed Final Draft of the Restatement of the Law Third: The U.S. Law of International Commercial and Invest0r-State Arbitration. The Restatement covers the basic principles of U.S. international arbitration law; federal preemption of state law; the enforcement of arbitration agreements; the role of the judiciary in international arbitral proceedings in the U.S.; recourse from, and enforcement of, international arbitral awards rendered in the United States; the judicial role in international arbitral proceedings abroad; the enforcement of international arbitral awards rendered abroad; and the preclusive effect of international arbitral awards, among other topics. The Proposed Final Draft of the Restatement, as well as prior Tentative Drafts, are available for purchase on the ALI website. The drafts also are available on Lexis, Westlaw, and HeinOnline.

5.2. 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 and ADR is a relatively new publication covering recent trends in international commercial arbitration, as well as sports controversies and investor-state conflicts. Available in print and on HeinOnline. 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 LexisNexis, and the Czech and Central European Yearbook of Arbitration, available in print and in full text from the publication’s website.

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

5.3. Law Journals

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

5.4. Practice Guides

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

Redfern and Hunter on International Arbitration, discussed in Section 5.1 above, is one of the leading texts on international arbitration and is geared toward practitioners and arbitrators. The text covers both practice and theory and draws upon past arbitral awards for illustration.

The Practitioner’s Handbook on International Commercial Arbitration (Frank-Bernd Weigand and Antje Baumann, eds., 3d ed., 2019) offers practitioner-written overviews of arbitration law and practice in 13 major jurisdictions (including Brazil, China, England, France, Germany, Switzerland, and the U.S.), plus commentaries on the arbitration rules of leading arbitral institutions (ICC, ICDR, LCIA, and UNCITRAL) and on the New York Convention.

Handbook of ICC Arbitration: Commentary and Materials (Thomas H. Webster and Michael Bühler, 5th ed., 2021). This guide to the arbitration rules of the International Chamber of Commerce (ICC), one of the world’s leading arbitral institutions, explains the core principles behind each of the ICC’s procedural rule and provides guidance on their application in specific contexts. Also available on Westlaw.

Handbook of UNCITRAL Arbitration (Thomas H. Webster, 3d ed., 2019). This practical guide to the UNCITRAL Arbitration Rules offers rule-by-rule commentary and analysis, as well as support materials employed in both international commercial arbitrations and investor-state arbitrations.

International Commercial Arbitration Practice: 21st Century Perspectives (Horatio A. Grigera Naón and Paul E. Mason, 2d ed., 2021). Par I describe how arbitrations are conducted in common law, civil law, and sharia law systems. Part II examines how arbitration practices vary by region, while Part III focuses on different approaches to arbitration within specific industries. Part IV discusses recent trends, and Part V examines the impact of technological changes. Also available on Lexis.

Getting the Deal Through: Arbitration, described in Section 4.2 above, offers practitioner-written guides to national laws governing arbitration and other aspects of dispute resolution in more than 40 jurisdictions worldwide. These guides are designed as quick reference tools for attorneys and follow a standardized question and answer format.

Global Arbitration Review, a subscription-based platform covering both international commercial arbitration and investor-state arbitration, provides access to topical practice guides that focus on various aspects of the arbitration process (advocacy, evidence, challenging and enforcing awards, etc.). It also published guides to arbitrating disputes that arise in specific types of industries (construction, mining, etc.), annual reviews of arbitration law and practices in multiple geographic regions (Asia, Europe, the Middle East, and Africa, etc.), and annual surveys profiling leading practitioners in the field.

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.

Global Arbitration Review includes a News & Analysis component that tracks the latest developments in international arbitration. Updated every business day. Subscribers may set up email alerts.

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 Kluwer Arbitration Blog, published by Wolters Kluwer Law and Business, offers articles and commentary on international commercial arbitration and investor-state arbitration written by leading practitioners in the field. Free to access.

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

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.

6. Selective List of Arbitral Institutions

Listed below are some of the most prominent arbitral institutions that facilitate international commercial arbitrations. Information on procedural rules, arbitrators, and other aspects of the arbitration process can be found on each institution’s website.

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

7. Further Reading