International Arbitration Checklists - Third Edition
Baker & McKenzie, has one of the world's largest and most successful international arbitration practices. This book, written by members of the International Dispute Resolution Practice Group of Baker & McKenzie and others, provides a practical, experience-based guide to international arbitration. Each chapter begins with a "checklist" of issues to be considered at each stage of arbitration. Topics include drafting arbitration clauses, commencement of the case, staying court proceedings, compelling arbitration, selection of the tribunal, provisional relief, conduct of hearings and enforcement of awards, among many others. Law and practice in each of the world's major arbitration centers is discussed. Appendices provide ready access to arbitration treaties, statutes and rules. This work is a standard reference for in-house counsel and outside practitioners.
PDF of TITLE and TABLE OF CONTENTS
PREFACE TO THE THIRD EDITION
PREFACE TO THE SECOND EDITION
PREFACE TO THE FIRST EDITION
BIOGRAPHIES
GLOSSARY AND WEB LINKS
CHAPTER 1 - THE DISPUTE ARISES—WHAT NEXT?
Arthur W. Rovine, New York
The Terms of the Contract
Interim Measures of Protection
Related Court Proceedings
Dispute Resolution Processes
Negotiation
Mediation
Mini-Trial
Dispute Review Board
Whether to Arbitrate or Litigate
Discovery
Enforcement of Awards
The Submission Agreement
Considering Possible Arbitrators
CHAPTER 2 - OBTAINING INFORMATION
Steve Abraham, London
Preservation of Documents
Identification of Witnesses
Obtaining an Understanding of the Underlying Transaction
Taking Written Statements from Witnesses
Managing Documents through Databases and Intranets
Engaging with Expert Witnesses
Advising on the Merits
Cost and Time Estimates
CHAPTER 3 - COMMENCEMENT OF ARBITRATION
Joaquim de Paiva Muniz, Rio de Janeiro
Salvador Fonseca-Gonzalez, Mexico City
Date of Commencement
Extending Time for Commencement of Arbitral Proceedings
Form of Notice Commencing Arbitral Proceedings
Method of Service of Notice of Arbitration
Commencement of Arbitration
Number of Arbitrators
Place/Seat of Arbitration
Nomination of Party-Appointed Arbitrator or Proposal for the Identity of Sole Arbitrator
CHAPTER 4 - STAYING COURT PROCEEDINGS — COMPELLING ARBITRATION
Vladimir Khvalei, Moscow
Nandakumar Ponniya, Singapore
Staying Court Proceedings under the New York Convention
The Impact of National Law
Non-Convention States
Convention States
Drafting the Arbitration Clause to Minimize the Risk of a Court Accepting Jurisdiction
Waiver of the Arbitration Agreement
Commencing Parallel Arbitration Proceedings
Whether to Contest the Court Proceedings on the Merits
Resisting Enforcement of Judgments Granted Contrary to an Arbitration Agreement
CHAPTER 5 - SELECTION OF THE TRIBUNAL
J. Brian Casey, Toronto
The Number of Arbitrators
Factors to Consider When Appointing an Arbitrator
Independence
Impartiality
Checklist regarding Impartiality and Independence
Personal Characteristics
Integrity
Judgment
Personality and Character
Commitment
Nationality
Checklist regarding Personal Attributes
Where to Look for an Arbitrator
Interviewing a Potential Candidate
Checklist for Interviewing a Potential Arbitrator
Terms of Appointment
Checklist for Terms of Appointment
Challenging Appointment
CHAPTER 6 - PROVISIONAL RELIEF
Grant Hanessian, New York
Jürgen Mark, Dusseldorf
The Need for Provisional Relief
Provisional Relief from National Courts
The Uncertain Situation under U.S. Law
Provisional Relief in a Jurisdiction Other than the Situs of the Arbitration
Provisional Relief from the Arbitral Tribunal
Emergency Arbitrators
Security for Provisional Relief and Arbitration Costs
CHAPTER 7 - CHALLENGES TO JURISDICTION
Jonas Benedictsson, Stefan Bessman, Stockholm
Andrew Aglionby, London and Hong Kong
The Doctrines of Separability and “Kompetenz-Kompetenz”
Challenge Made in the Arbitration or to the Courts?
Grounds for Challenge
No Valid Agreement
Disputes beyond the Agreement and Arbitrability
CHAPTER 8 - CULTURAL FACTORS AND LANGUAGE
Lawrence W. Newman, New York
Thomas Yates, London
Cultural Factors
Witness and Documentary Evidence
Hearings
Settlement
Communications with Arbitrators
Independence of Arbitrators
Ethics
Remuneration
Costs
Practicalities and Formalities
Language
Conclusion
CHAPTER 9 - PROCEDURAL MATTERS CHECKLIST
Robert B. Davidson, New York
Günter Pickrahn, Frankfurt
Stefan Riegler, Vienna
Procedural Rules in the Absence of Agreement
Terms of Reference
Procedures Applicable Prior to a Hearing
Taking of Discovery
Presentation of Written Evidence
Number of Fact Witnesses
Bifurcation of Proceedings
Procedures Applicable at a Hearing
Location of Hearing and Language
Oral Testimony and Cross-examination
Use of Documents at a Hearing
Inspection of the Subject Matter of the Dispute
Order of Presentation of Proof
Administering of an Oath
Assistance of a National Court
Expert Testimony
Timing of Proceedings
CHAPTER 10 - DISCOVERY AND PRODUCTION OF EVIDENCE
Richard Franklin, Chicago
Teddy Baldwin, Washington D.C.
Types of Discovery
Discovery under Arbitration Rules
Discovery under Rules of Evidence
Role of National Arbitration Laws
The Arbitral Tribunal’s Discretion regarding Discovery
Effect of an Express Arbitration Clause Governing Discovery
Whether to Agree to Discovery
Resolution of Discovery Disputes
Procedures for Producing Documents
CHAPTER 11 - EXPERT EVIDENCE
Eugenio Hernández-Bretón, Caracas
When Expert Evidence Is Needed
Experts Appointed by the Tribunal
Experts Appointed by the Parties
The Scope of the Expert Evidence and the Number of Experts
Selecting and Instructing a Party-appointed Expert
The Expert’s Duties
The Expert’s Written Report
Meetings of Experts
Preparation for the Final Hearing
Expert Evidence at the Final Hearing
CHAPTER 12 - THE ARBITRATION HEARINGS
Lawrence W. Newman, New York
The Number of Hearings
The Method of Presenting Evidence
Time Limits for Questioning Witnesses
Cross-examination
Limitations on Cross-examination and Re-direct Examination
Preparation of Witnesses
The Status of Witnesses
Admissibility of Evidence
Determination of the Weight of Evidence
Practical Arrangements
CHAPTER 13 - POST-HEARING MATTERS
David Zaslowsky, New York
Obtaining the Full Record
Supplementing the Record
Desirability of Post-hearing Memoranda
Arrangements for Post-hearing Memoranda
Oral Argument
Surprises from the Arbitrators
Desirability of Reopening the Hearings
Do Not Waive Any Rights
Stipulations and Other Arrangements concerning the Award
Pursuit of Settlement
Correcting the Award
CHAPTER 14 - THE AWARD
Leigh Duthie, Melbourne
Jo Delaney, Sydney
Reasoned and Unreasoned Awards
The Supervisory Role of the ICC Court and SIAC Registrar
Time Limit for the Award
Dissenting Opinions
Awards for Costs
Awards for Interest
CHAPTER 15 - WRITING THE AWARD—AN ARBITRATOR’S PERSPECTIVE
George A. Bermann, Columbia University School of Law
Partial and Unitary Awards
Completeness of the Award
Content of the Award
Drafting
Reasoning
Dissents and Concurrences
Award by Consent
Miscellaneous Instructions
Correction, Omission, and Clarification
Confidentiality of the Award
CHAPTER 16 - CHALLENGING THE ARBITRATION AWARD
Luis O’Naghten, Miami
Time Limits
The Usual Grounds for a Challenge
Errors and Omissions
Recourse to the Courts
Mistakes of Fact and Law
Lack of Jurisdiction
Due Process and Procedural Irregularity
Effect of a Successful Challenge
CHAPTER 17 - ENFORCEMENT OF AWARDS
Leng Sun Chan, Singapore
Eric Borysewicz, Paris
The International Framework for Enforcement of an Award
Requirements for Enforcement of a Convention Award
Enforcement of Interim Orders
Grounds for Refusing Enforcement of a Convention Award
Limitation Periods
State Immunity
Practical Tips on Enforcement of the Award
CHAPTER 18 - DISPUTE RESOLUTION CLAUSES I: WHETHER TO CHOOSE ARBITRATION
Bruce H. Jackson, Maria Chedid, San Francisco
Enforcement of Awards and Judgments
Neutrality and Quality of Justice
Costs of Arbitration versus Litigation
Speed of Proceedings
Convenience and Flexibility
Ability to Obtain Necessary Information
Privacy and Confidentiality of Proceedings
Availability of Interim Relief
Rights of Appeal and Challenges in Arbitration and Litigation
Conclusion
CHAPTER 19 - DISPUTE RESOLUTION CLAUSES II: HOW TO CHOOSE ARBITRATION
Michael L. Morkin, Kyle R. Olson, Chicago
Scope of Arbitration Clauses
Conditions Precedent to Arbitration (Negotiation, Mediation)
Place of Arbitration and Language
Institutional Rules or Ad Hoc Arbitration
Ex Aequo et Bono
Number of Arbitrators and Selection Process
Discovery
Consolidation
Class or Collective Arbitration
Timing of Proceedings
Confidentiality
Qualifications and Neutrality of Arbitrators
Interim Relief
Limitation on Damages
Attorney’s Fees and Costs
Finality/Appeal
Confirmation or Entry of Judgment Clause
Foreign Sovereign Immunity Waiver
Institutional Clauses
CHAPTER 20 - INVESTOR-STATE ARBITRATION
Grant Hanessian, New York
Edward E. Poulton, London
Kabir A.N. Duggal, New York
International Investment Treaties
The Choice of the Appropriate Arbitral Institution
The ICSID Convention
The ICSID Additional Facility Rules
NAFTA
The Energy Charter Treaty (“ECT”)
Jurisdictional Issues
The Notion of an “Investment”
The Notion of a Foreign “Investor”
Does the “Fork-in-the-Road” Provision Prohibit the Claim?
Other Provisions that Might Impact a Tribunal’s Jurisdiction
Substantive Issues
Fair and Equitable Treatment and Full Protection and Security
No Arbitrary or Discriminatory Treatment
No Expropriation without Compensation
National Treatment and Most-Favored Nation Clause
Umbrella Clauses
APPENDIX 1: Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, 1958
APPENDIX 2: List of Contracting States to the New York Convention
APPENDIX 3: UNCITRAL Model Law on International Commercial Arbitration
APPENDIX 4: UNCITRAL Arbitration Rules
APPENDIX 5: ICC Rules of Arbitration
APPENDIX 6: The LCIA Rules
APPENDIX 7: International Centre for Dispute Resolution International Dispute Resolution Procedures
APPENDIX 8: Arbitration Rules of the Singapore International Arbitration Centre (SIAC) Rules
APPENDIX 9: Hong Kong International Arbitration Centre (HKIAC) Administered Arbitration Rules
APPENDIX 10: Convention on the Settlement of Investment Disputes between States and Nationals of Other States
APPENDIX 11: The IBA Rules on Taking Evidence in International Arbitration
APPENDIX 12: The Baker & McKenzie Comparative Chart of International Arbitration Rules
INDEX
Editors
Grant Hanessian (Editor) is a Partner in the New York office of Baker & McKenzie and head of the firm’s International Arbitration Practice Group in North America. He served as Global Co-Chair of the firm’s International Arbitration Practice Group from 2009 to 2015 and Chair of the Litigation Department of the firm’s New York office from 2003 to 2012. Mr. Hanessian has more than 25 years’ experience as counsel and arbitrator in disputes concerning investment, energy, construction, commodities, financial services, insurance, intellectual property and other matters.
Lawrence W. Newman (Editor) was the Founder, with the late Professor Henry de Vries, of the New York litigation department of Baker & McKenzie LLP, which has as one of its concentrations international litigation and arbitration. Mr. Newman has extensive experience in international arbitration as an advocate and as an arbitrator under the rules of various institutions. He has represented clients as lead counsel in numerous arbitrations of complex business disputes, including those involving international joint ventures, long-term contracts, natural resources (oil, coal, and uranium), banking, securities, shipping, intellectual property, investments, expropriation and insurance coverage.
Kabir Duggal (Assistant Editor) is a Senior Associate in the Baker & McKenzie’s International Arbitration Practice Group in New York focusing on international investment arbitration, international commercial arbitration and public international law matters. Mr. Duggal’s experience includes disputes under numerous bilateral and multilateral investment treaties in South Asia, Latin America, Central Asia, Middle East, Europe and Africa.
Kyle Richard Olson (Assistant Editor) is a Senior Associate in the Chicago Office of the Firm’s Dispute Resolution Practice Group, with an emphasis on international arbitration and general commercial litigation. Mr. Olson routinely represents U.S. and non-U.S.-based clients in international arbitral disputes, and has handled a range of large commercial disputes that have resulted in multi-million dollar awards before the ICC, ICDR and the AAA. Mr. Olson writes frequently on international dispute resolution issues and has authored numerous articles pertaining to international arbitration in particular.
Contributors
Andrew Aglionby, Arbitrator and Mediator at JAMS International in London and Hong Kong
Edward G. Baldwin, Partner at Baker & McKenzie LLP in Washington, D.C.
Jonas Benedictsson, Partner at Baker & McKenzie Advokatbyrå in Stockholm
George A. Bermann, Jean Monnet Professor of EU Law and Walter Gellhorn Professor of Law at Columbia University School of Law
Stefan Bessman, Partner at Baker & McKenzie Advokatbyrå in Stockholm
Eric Borysewicz, Partner at Baker & McKenzie SCP in Paris
J. Brian Casey, Arbitrator at Bay Street Chambers in Toronto
Leng Sun Chan SC, Partner at Baker & McKenzie.Wong & Leow LLC in Singapore
Maria Chedid, Partner at Baker & McKenzie LLP in San Francisco
Robert B. Davidson, Esq., FCIArb, Mediator and Arbitrator at JAMS in New York
Jo Delaney, Special Counsel at Baker & McKenzie LLP in Sydney
Leigh Duthie, Partner at Baker & McKenzie in Melbourne
Salvador Fonseca Gonzalez, Partner at Baker & McKenzie Abogados, S.C. in Mexico City
Richard Franklin, Senior Counsel at Baker & McKenzie LLP in Chicago
Eugenio Hernández-Bretón, Partner at Despacho de Abogados miembro de Baker & McKenzie in Caracas
Bruce H. Jackson, Senior Counsel at Baker & McKenzie LLP in San Francisco
Vladimir Khvalei, Partner at Baker & McKenzie - CIS, Limited in Moscow
Juergen Mark, Partner at Baker & McKenzie in Düsseldorf
Michael Morkin, Partner at Baker & McKenzie LLP in Chicago
Luis O’Naghten, Partner at Baker & McKenzie LLP in Miami
Joaquim de Paiva Muniz, Principal of Trench, Rossi e Watanabe in Rio de Janeiro
Dr. Guenter Pickrahn, Principal of Baker & McKenzie in Frankfurt
Nandakumar (Kumar) Ponniya, Principal of Baker & McKenzie.Wong & Leow LLC in Singapore
Edward E. Poulton, Partner at Baker & McKenzie in London
Stefan Riegler, Principal of Baker & McKenzie in Vienna
Arthur W. Rovine, Arbitrator in New York
Thomas Yates, Senior Associate at Baker & McKenzie in London
David Zaslowsky, Partner at Baker & McKenzie LLP in New York
"Behind the somewhat misleading title of this book lies a true gem. Far from the being a nuts and bolts guide to international arbitration based on bare lists of features, facts, tips and traps, this is a handy practitioner’s compendium of sage advice on critical aspects of international arbitration at all its stages. It is also a companion for the practitioner, both experienced and novice alike. .... Of special interest, given the potential pitfalls and pratfalls that can trap the inexperienced, unwary and unaware, are dedicated chapters on cultural factors, whether to choose arbitration and how to choose it. .... Despite the fact that the book is the product of 25 individual contributors from diverse legal traditions and cultural and linguistic backgrounds, it is a remarkably coherent and integrated work. The editors are to be congratulated for achieving such consistency of approach, depth and treatment. This book should therefore be close to the hearts of all practitioners, both old hands and neophytes."
- Asian Dispute Review
"The format is easy to follow and the editors have managed to put together a thorough and concise publication that will provide the novice or expert alike with the latest information and the answers to many of the complex questions and issues that are raised in international commercial arbitration today. I highly recommend International Arbitration Checklists."
- Luis M. Martinez, Esq. Vice President, International Centre for Dispute Resolution (ICDR) of the American Arbitration Association (AAA)
"International Arbitration Checklists is a gem. It deconstructs every major aspect of international arbitration, meticulously analyzing the key issues in a compact, user-friendly form."
- Gregory P. Joseph is a Fellow of the American College of Trial Lawyers and former Chair of the 60,000-member Section of Litigation of the American Bar Association. He formerly chaired the Litigation Department at Fried, Frank, Harris, Shriver & Jacobson in New York
"International Arbitration Checklists is a very useful desktop reference. The authors, international practitioners and arbitrators, have carefully considered each stage of the arbitration process -- from the moment the dispute arises to the enforcement of the award -- and have identified the questions that commonly arise. The thoughtful discussions that follow the checklists reflect the extensive experience of the authors, and deal not only with legal and procedural questions but also with the matters of ethics, language and culture that are often encountered in international proceedings. The appendix helpfully reproduces in one place the texts of the New York Convention, a list of contracting states, and the most frequently used ad hoc and institutional rules."
- Louis Epstein, Senior Vice President and General Counsel, Tranammo (formerly Transammonia, Inc.)
Editors
Grant Hanessian (Editor) is a Partner in the New York office of Baker & McKenzie and head of the firm’s International Arbitration Practice Group in North America. He served as Global Co-Chair of the firm’s International Arbitration Practice Group from 2009 to 2015 and Chair of the Litigation Department of the firm’s New York office from 2003 to 2012. Mr. Hanessian has more than 25 years’ experience as counsel and arbitrator in disputes concerning investment, energy, construction, commodities, financial services, insurance, intellectual property and other matters.
Lawrence W. Newman (Editor) was the Founder, with the late Professor Henry de Vries, of the New York litigation department of Baker & McKenzie LLP, which has as one of its concentrations international litigation and arbitration. Mr. Newman has extensive experience in international arbitration as an advocate and as an arbitrator under the rules of various institutions. He has represented clients as lead counsel in numerous arbitrations of complex business disputes, including those involving international joint ventures, long-term contracts, natural resources (oil, coal, and uranium), banking, securities, shipping, intellectual property, investments, expropriation and insurance coverage.
Kabir Duggal (Assistant Editor) is a Senior Associate in the Baker & McKenzie’s International Arbitration Practice Group in New York focusing on international investment arbitration, international commercial arbitration and public international law matters. Mr. Duggal’s experience includes disputes under numerous bilateral and multilateral investment treaties in South Asia, Latin America, Central Asia, Middle East, Europe and Africa.
Kyle Richard Olson (Assistant Editor) is a Senior Associate in the Chicago Office of the Firm’s Dispute Resolution Practice Group, with an emphasis on international arbitration and general commercial litigation. Mr. Olson routinely represents U.S. and non-U.S.-based clients in international arbitral disputes, and has handled a range of large commercial disputes that have resulted in multi-million dollar awards before the ICC, ICDR and the AAA. Mr. Olson writes frequently on international dispute resolution issues and has authored numerous articles pertaining to international arbitration in particular.
Contributors
Andrew Aglionby, Arbitrator and Mediator at JAMS International in London and Hong Kong
Edward G. Baldwin, Partner at Baker & McKenzie LLP in Washington, D.C.
Jonas Benedictsson, Partner at Baker & McKenzie Advokatbyrå in Stockholm
George A. Bermann, Jean Monnet Professor of EU Law and Walter Gellhorn Professor of Law at Columbia University School of Law
Stefan Bessman, Partner at Baker & McKenzie Advokatbyrå in Stockholm
Eric Borysewicz, Partner at Baker & McKenzie SCP in Paris
J. Brian Casey, Arbitrator at Bay Street Chambers in Toronto
Leng Sun Chan SC, Partner at Baker & McKenzie.Wong & Leow LLC in Singapore
Maria Chedid, Partner at Baker & McKenzie LLP in San Francisco
Robert B. Davidson, Esq., FCIArb, Mediator and Arbitrator at JAMS in New York
Jo Delaney, Special Counsel at Baker & McKenzie LLP in Sydney
Leigh Duthie, Partner at Baker & McKenzie in Melbourne
Salvador Fonseca Gonzalez, Partner at Baker & McKenzie Abogados, S.C. in Mexico City
Richard Franklin, Senior Counsel at Baker & McKenzie LLP in Chicago
Eugenio Hernández-Bretón, Partner at Despacho de Abogados miembro de Baker & McKenzie in Caracas
Bruce H. Jackson, Senior Counsel at Baker & McKenzie LLP in San Francisco
Vladimir Khvalei, Partner at Baker & McKenzie - CIS, Limited in Moscow
Juergen Mark, Partner at Baker & McKenzie in Düsseldorf
Michael Morkin, Partner at Baker & McKenzie LLP in Chicago
Luis O’Naghten, Partner at Baker & McKenzie LLP in Miami
Joaquim de Paiva Muniz, Principal of Trench, Rossi e Watanabe in Rio de Janeiro
Dr. Guenter Pickrahn, Principal of Baker & McKenzie in Frankfurt
Nandakumar (Kumar) Ponniya, Principal of Baker & McKenzie.Wong & Leow LLC in Singapore
Edward E. Poulton, Partner at Baker & McKenzie in London
Stefan Riegler, Principal of Baker & McKenzie in Vienna
Arthur W. Rovine, Arbitrator in New York
Thomas Yates, Senior Associate at Baker & McKenzie in London
David Zaslowsky, Partner at Baker & McKenzie LLP in New York
"Behind the somewhat misleading title of this book lies a true gem. Far from the being a nuts and bolts guide to international arbitration based on bare lists of features, facts, tips and traps, this is a handy practitioner’s compendium of sage advice on critical aspects of international arbitration at all its stages. It is also a companion for the practitioner, both experienced and novice alike. .... Of special interest, given the potential pitfalls and pratfalls that can trap the inexperienced, unwary and unaware, are dedicated chapters on cultural factors, whether to choose arbitration and how to choose it. .... Despite the fact that the book is the product of 25 individual contributors from diverse legal traditions and cultural and linguistic backgrounds, it is a remarkably coherent and integrated work. The editors are to be congratulated for achieving such consistency of approach, depth and treatment. This book should therefore be close to the hearts of all practitioners, both old hands and neophytes."
- Asian Dispute Review
"The format is easy to follow and the editors have managed to put together a thorough and concise publication that will provide the novice or expert alike with the latest information and the answers to many of the complex questions and issues that are raised in international commercial arbitration today. I highly recommend International Arbitration Checklists."
- Luis M. Martinez, Esq. Vice President, International Centre for Dispute Resolution (ICDR) of the American Arbitration Association (AAA)
"International Arbitration Checklists is a gem. It deconstructs every major aspect of international arbitration, meticulously analyzing the key issues in a compact, user-friendly form."
- Gregory P. Joseph is a Fellow of the American College of Trial Lawyers and former Chair of the 60,000-member Section of Litigation of the American Bar Association. He formerly chaired the Litigation Department at Fried, Frank, Harris, Shriver & Jacobson in New York
"International Arbitration Checklists is a very useful desktop reference. The authors, international practitioners and arbitrators, have carefully considered each stage of the arbitration process -- from the moment the dispute arises to the enforcement of the award -- and have identified the questions that commonly arise. The thoughtful discussions that follow the checklists reflect the extensive experience of the authors, and deal not only with legal and procedural questions but also with the matters of ethics, language and culture that are often encountered in international proceedings. The appendix helpfully reproduces in one place the texts of the New York Convention, a list of contracting states, and the most frequently used ad hoc and institutional rules."
- Louis Epstein, Senior Vice President and General Counsel, Tranammo (formerly Transammonia, Inc.)
PDF of TITLE and TABLE OF CONTENTS
PREFACE TO THE THIRD EDITION
PREFACE TO THE SECOND EDITION
PREFACE TO THE FIRST EDITION
BIOGRAPHIES
GLOSSARY AND WEB LINKS
CHAPTER 1 - THE DISPUTE ARISES—WHAT NEXT?
Arthur W. Rovine, New York
The Terms of the Contract
Interim Measures of Protection
Related Court Proceedings
Dispute Resolution Processes
Negotiation
Mediation
Mini-Trial
Dispute Review Board
Whether to Arbitrate or Litigate
Discovery
Enforcement of Awards
The Submission Agreement
Considering Possible Arbitrators
CHAPTER 2 - OBTAINING INFORMATION
Steve Abraham, London
Preservation of Documents
Identification of Witnesses
Obtaining an Understanding of the Underlying Transaction
Taking Written Statements from Witnesses
Managing Documents through Databases and Intranets
Engaging with Expert Witnesses
Advising on the Merits
Cost and Time Estimates
CHAPTER 3 - COMMENCEMENT OF ARBITRATION
Joaquim de Paiva Muniz, Rio de Janeiro
Salvador Fonseca-Gonzalez, Mexico City
Date of Commencement
Extending Time for Commencement of Arbitral Proceedings
Form of Notice Commencing Arbitral Proceedings
Method of Service of Notice of Arbitration
Commencement of Arbitration
Number of Arbitrators
Place/Seat of Arbitration
Nomination of Party-Appointed Arbitrator or Proposal for the Identity of Sole Arbitrator
CHAPTER 4 - STAYING COURT PROCEEDINGS — COMPELLING ARBITRATION
Vladimir Khvalei, Moscow
Nandakumar Ponniya, Singapore
Staying Court Proceedings under the New York Convention
The Impact of National Law
Non-Convention States
Convention States
Drafting the Arbitration Clause to Minimize the Risk of a Court Accepting Jurisdiction
Waiver of the Arbitration Agreement
Commencing Parallel Arbitration Proceedings
Whether to Contest the Court Proceedings on the Merits
Resisting Enforcement of Judgments Granted Contrary to an Arbitration Agreement
CHAPTER 5 - SELECTION OF THE TRIBUNAL
J. Brian Casey, Toronto
The Number of Arbitrators
Factors to Consider When Appointing an Arbitrator
Independence
Impartiality
Checklist regarding Impartiality and Independence
Personal Characteristics
Integrity
Judgment
Personality and Character
Commitment
Nationality
Checklist regarding Personal Attributes
Where to Look for an Arbitrator
Interviewing a Potential Candidate
Checklist for Interviewing a Potential Arbitrator
Terms of Appointment
Checklist for Terms of Appointment
Challenging Appointment
CHAPTER 6 - PROVISIONAL RELIEF
Grant Hanessian, New York
Jürgen Mark, Dusseldorf
The Need for Provisional Relief
Provisional Relief from National Courts
The Uncertain Situation under U.S. Law
Provisional Relief in a Jurisdiction Other than the Situs of the Arbitration
Provisional Relief from the Arbitral Tribunal
Emergency Arbitrators
Security for Provisional Relief and Arbitration Costs
CHAPTER 7 - CHALLENGES TO JURISDICTION
Jonas Benedictsson, Stefan Bessman, Stockholm
Andrew Aglionby, London and Hong Kong
The Doctrines of Separability and “Kompetenz-Kompetenz”
Challenge Made in the Arbitration or to the Courts?
Grounds for Challenge
No Valid Agreement
Disputes beyond the Agreement and Arbitrability
CHAPTER 8 - CULTURAL FACTORS AND LANGUAGE
Lawrence W. Newman, New York
Thomas Yates, London
Cultural Factors
Witness and Documentary Evidence
Hearings
Settlement
Communications with Arbitrators
Independence of Arbitrators
Ethics
Remuneration
Costs
Practicalities and Formalities
Language
Conclusion
CHAPTER 9 - PROCEDURAL MATTERS CHECKLIST
Robert B. Davidson, New York
Günter Pickrahn, Frankfurt
Stefan Riegler, Vienna
Procedural Rules in the Absence of Agreement
Terms of Reference
Procedures Applicable Prior to a Hearing
Taking of Discovery
Presentation of Written Evidence
Number of Fact Witnesses
Bifurcation of Proceedings
Procedures Applicable at a Hearing
Location of Hearing and Language
Oral Testimony and Cross-examination
Use of Documents at a Hearing
Inspection of the Subject Matter of the Dispute
Order of Presentation of Proof
Administering of an Oath
Assistance of a National Court
Expert Testimony
Timing of Proceedings
CHAPTER 10 - DISCOVERY AND PRODUCTION OF EVIDENCE
Richard Franklin, Chicago
Teddy Baldwin, Washington D.C.
Types of Discovery
Discovery under Arbitration Rules
Discovery under Rules of Evidence
Role of National Arbitration Laws
The Arbitral Tribunal’s Discretion regarding Discovery
Effect of an Express Arbitration Clause Governing Discovery
Whether to Agree to Discovery
Resolution of Discovery Disputes
Procedures for Producing Documents
CHAPTER 11 - EXPERT EVIDENCE
Eugenio Hernández-Bretón, Caracas
When Expert Evidence Is Needed
Experts Appointed by the Tribunal
Experts Appointed by the Parties
The Scope of the Expert Evidence and the Number of Experts
Selecting and Instructing a Party-appointed Expert
The Expert’s Duties
The Expert’s Written Report
Meetings of Experts
Preparation for the Final Hearing
Expert Evidence at the Final Hearing
CHAPTER 12 - THE ARBITRATION HEARINGS
Lawrence W. Newman, New York
The Number of Hearings
The Method of Presenting Evidence
Time Limits for Questioning Witnesses
Cross-examination
Limitations on Cross-examination and Re-direct Examination
Preparation of Witnesses
The Status of Witnesses
Admissibility of Evidence
Determination of the Weight of Evidence
Practical Arrangements
CHAPTER 13 - POST-HEARING MATTERS
David Zaslowsky, New York
Obtaining the Full Record
Supplementing the Record
Desirability of Post-hearing Memoranda
Arrangements for Post-hearing Memoranda
Oral Argument
Surprises from the Arbitrators
Desirability of Reopening the Hearings
Do Not Waive Any Rights
Stipulations and Other Arrangements concerning the Award
Pursuit of Settlement
Correcting the Award
CHAPTER 14 - THE AWARD
Leigh Duthie, Melbourne
Jo Delaney, Sydney
Reasoned and Unreasoned Awards
The Supervisory Role of the ICC Court and SIAC Registrar
Time Limit for the Award
Dissenting Opinions
Awards for Costs
Awards for Interest
CHAPTER 15 - WRITING THE AWARD—AN ARBITRATOR’S PERSPECTIVE
George A. Bermann, Columbia University School of Law
Partial and Unitary Awards
Completeness of the Award
Content of the Award
Drafting
Reasoning
Dissents and Concurrences
Award by Consent
Miscellaneous Instructions
Correction, Omission, and Clarification
Confidentiality of the Award
CHAPTER 16 - CHALLENGING THE ARBITRATION AWARD
Luis O’Naghten, Miami
Time Limits
The Usual Grounds for a Challenge
Errors and Omissions
Recourse to the Courts
Mistakes of Fact and Law
Lack of Jurisdiction
Due Process and Procedural Irregularity
Effect of a Successful Challenge
CHAPTER 17 - ENFORCEMENT OF AWARDS
Leng Sun Chan, Singapore
Eric Borysewicz, Paris
The International Framework for Enforcement of an Award
Requirements for Enforcement of a Convention Award
Enforcement of Interim Orders
Grounds for Refusing Enforcement of a Convention Award
Limitation Periods
State Immunity
Practical Tips on Enforcement of the Award
CHAPTER 18 - DISPUTE RESOLUTION CLAUSES I: WHETHER TO CHOOSE ARBITRATION
Bruce H. Jackson, Maria Chedid, San Francisco
Enforcement of Awards and Judgments
Neutrality and Quality of Justice
Costs of Arbitration versus Litigation
Speed of Proceedings
Convenience and Flexibility
Ability to Obtain Necessary Information
Privacy and Confidentiality of Proceedings
Availability of Interim Relief
Rights of Appeal and Challenges in Arbitration and Litigation
Conclusion
CHAPTER 19 - DISPUTE RESOLUTION CLAUSES II: HOW TO CHOOSE ARBITRATION
Michael L. Morkin, Kyle R. Olson, Chicago
Scope of Arbitration Clauses
Conditions Precedent to Arbitration (Negotiation, Mediation)
Place of Arbitration and Language
Institutional Rules or Ad Hoc Arbitration
Ex Aequo et Bono
Number of Arbitrators and Selection Process
Discovery
Consolidation
Class or Collective Arbitration
Timing of Proceedings
Confidentiality
Qualifications and Neutrality of Arbitrators
Interim Relief
Limitation on Damages
Attorney’s Fees and Costs
Finality/Appeal
Confirmation or Entry of Judgment Clause
Foreign Sovereign Immunity Waiver
Institutional Clauses
CHAPTER 20 - INVESTOR-STATE ARBITRATION
Grant Hanessian, New York
Edward E. Poulton, London
Kabir A.N. Duggal, New York
International Investment Treaties
The Choice of the Appropriate Arbitral Institution
The ICSID Convention
The ICSID Additional Facility Rules
NAFTA
The Energy Charter Treaty (“ECT”)
Jurisdictional Issues
The Notion of an “Investment”
The Notion of a Foreign “Investor”
Does the “Fork-in-the-Road” Provision Prohibit the Claim?
Other Provisions that Might Impact a Tribunal’s Jurisdiction
Substantive Issues
Fair and Equitable Treatment and Full Protection and Security
No Arbitrary or Discriminatory Treatment
No Expropriation without Compensation
National Treatment and Most-Favored Nation Clause
Umbrella Clauses
APPENDIX 1: Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, 1958
APPENDIX 2: List of Contracting States to the New York Convention
APPENDIX 3: UNCITRAL Model Law on International Commercial Arbitration
APPENDIX 4: UNCITRAL Arbitration Rules
APPENDIX 5: ICC Rules of Arbitration
APPENDIX 6: The LCIA Rules
APPENDIX 7: International Centre for Dispute Resolution International Dispute Resolution Procedures
APPENDIX 8: Arbitration Rules of the Singapore International Arbitration Centre (SIAC) Rules
APPENDIX 9: Hong Kong International Arbitration Centre (HKIAC) Administered Arbitration Rules
APPENDIX 10: Convention on the Settlement of Investment Disputes between States and Nationals of Other States
APPENDIX 11: The IBA Rules on Taking Evidence in International Arbitration
APPENDIX 12: The Baker & McKenzie Comparative Chart of International Arbitration Rules
INDEX