Arbitration of International Disputes in New York
All in all, this book is the equivalent of a triple-threat backfield player in American football,
the one who can run, pass and even punt.
---from the foreword by Hon. Charles N. Brower.
Arbitration of International Disputes in New York by Dr. Peter Bekker is the first, and most up-to-date, book about international arbitration in New York written by a single author with a dual background as a law professor and a practitioner. The book celebrates New York as a leading hub for international arbitration.
It is designed to serve as both an introductory source-book and a toolkit for crafting arbitration clauses that are meant to be enforceable and supportive of arbitration of international business disputes in New York. It is intended to be of practical value to practicing lawyers, including attorneys, in-house corporate counsel, and adjudicators (arbitrators and judges), interested or involved in international arbitration and related proceedings in New York. It is not designed to be an all-encompassing treatise describing federal or New York arbitration law in exhaustive detail.
The first part of the book, comprising ten compact chapters, describes the salient points of international arbitration in New York, presented in a sequence to facilitate readers’ ease of understanding. The discussion of topics has been condensed and deliberately kept straightforward so as not to confuse the reader for whom this book may be an initial introduction to international arbitration. The book includes extensive references to the leading cases and literature sources.
The second part is dedicated to contractual arbitration clauses for use in the arbitration of international disputes in New York. It includes a brief discussion of various clause elements (divided into core/highly-recommended/facultative categories) as well as defective clauses, and provides an explanation of their shortcomings, along with suggested language designed to make them effective, the objective being to help the reader avoid common mistakes in drafting that could threaten to make an arbitration clause ineffective or even unenforceable in practice.
PDF OF TITLE PAGE AND T.O.C.s
CONTENTS
Summary Contents
Detailed Contents
Foreword by Hon. Charles N. Brower
Preface
About the Author
About the Book
Abbreviations
1. Finding Sources: New York and Federal Arbitration Law
2. The U.S. Federal Arbitration Act and New York Arbitration
2.1 The FAA: U.S. federal law of arbitration with a treaty twist
2.2 Scope of application of the FAA and international arbitration treaties
2.3 Core principles guiding U.S. arbitration law
3. The Arbitration Agreement as the Consent Instrument
3.1 Formal requirements for arbitration agreements
3.2 The separability doctrine and challenges to contract formation
3.3 Choice of law issues
4. Constitution of the Arbitral Tribunal
4.1 Composition of the arbitral tribunal and arbitrator selection issues
4.2 Removal and replacement of arbitrators
4.3 Fees and expenses of arbitrators; third-party funding
4.4 Liability and immunity of arbitrators
5. Jurisdiction of the Arbitral Tribunal
5.1 Competence to determine jurisdiction and “arbitrability” issues
5.2 Scope of arbitral jurisdiction
5.3 Arbitral authority to indicate interim protective measures
6. Proceedings before the Arbitral Tribunal
6.1 Commencement of arbitration
6.2 General procedural principles applicable to arbitral proceedings
6.3 Multi-party issues: joinder and consolidation
6.4 Written submissions and oral hearings
6.5 Non-appearance and default by one of the parties
6.6 Evidence and discovery in international arbitration
6.7 Confidentiality and privacy in international arbitration
7. Making of the Arbitral Award and Closure of the Arbitral Proceedings
7.1 Form, content, and effect of the arbitral award
7.2 Arbitral relief: available remedies
7.3 Award of interest
7.4 Award of attorneys’ fees
8. The Role of New York Courts in International Arbitration
8.1 Jurisdiction of New York federal and state courts
8.2 Filing arbitration-related motions and venue selection
8.3 Initial court proceedings: staying litigation and compelling arbitration
8.4 Preliminary court rulings on points of jurisdiction and law
8.5 Court-ordered interim protective measures
8.6 Obtaining evidence and other court assistance in aid of arbitration
9. Challenging an Arbitral Award in New York Courts
9.1 Procedure for challenging (vacating) an arbitral award
9.2 Grounds for challenging (vacating) an arbitral award
9.3 Correction or modification of an arbitral award
10. Confirmation and Enforcement of Arbitral Awards in New York Courts
10.1 Enforcement of domestic awards in New York
10.2 Enforcement of nondomestic (international) and foreign awards in New York
11. Arbitration Clauses: Samples and Defects
11.1 Introduction
11.2 Core provisions
11.3 Highly-recommended provisions
11.4 Facultative provisions
11.5 The importance of a collectible award
11.6 Defective arbitration clauses: avoiding common errors in drafting
Appendices
1. New York Convention
2. List of States Parties to the New York Convention
3. Panama Convention
4. List of States Parties to the Panama Convention
5. U.S. Federal Arbitration Act
6. U.S. Federal Rules of Civil Procedure, Rule 26
7. New York Civil Practice Law and Rules
8. Rules of the Commercial Division of the Supreme Court of New York, Section 202.70
9. Outline of an Early Case Assessment Memorandum
Table of Cases
Bibliography
Index
Dr. Peter (Pieter) Bekker is an international arbitration practitioner and professor. He has been a member of the Bar of the State of New York since 1992, and is also a member of the Bar of the Supreme Court of the United States. He is one of the 70 Founding Members of The International Arbitration Club of New York, a not-for-profit association and forum for discussion comprising approximately 140 international arbitration practitioners and scholars mostly based in New York.
Dr. Bekker is an experienced arbitrator, a longstanding member of the Panel of International Arbitrators (Neutrals) of the American Arbitration Association’s International Centre for Dispute Resolution (ICDR) as well as a member of other rosters of arbitrators across the globe, including that of the Permanent Court of Arbitration (PCA), the world’s oldest multilateral arbitration institution seated at the Peace Palace in The Hague, The Netherlands, his native country.
Dr. Bekker was educated and has practiced, in both Europe and the United States, in civil law, common law, and public international law. He obtained basic and doctoral law degrees from the University of Leiden in The Netherlands and a Master of Laws degree from Harvard Law School. Following his graduation from Harvard, he worked as a legal officer in the Registry of the International Court of Justice.
He is the author of various books on legal topics and of more than 100 articles and notes addressing aspects of international dispute resolution.
All in all, this book is the equivalent of a triple-threat backfield player in American football, the one who can run, pass and even punt. It combines straightforward, detailed, and complete substantive instruction, including specific “don’ts” with the many “dos,” with the convenience of accompanying texts of the relevant treaties, laws, and regulations, as well as extensive guides to further research sources if sought by any user.
Having myself contributed to various volumes dealing with specific aspects of international arbitration, as well as having benefited from numerous other such publications, I am compelled to recommend the present volume authored by Dr. Bekker most highly as setting a standard for all other writers in the field to emulate. I thus compliment my longtime friend and colleague on his sterling, indeed incomparable creation, and I urge everyone involved in international commercial arbitration in the State of New York to acquire and use it.
—from the foreword: by Hon. Charles N. Brower, Arbitrator Member, Twenty Essex Chambers; Judge of the Iran-United States Claims Tribunal (since 1983); Judge ad hoc of the International Court of Justice in three cases (2014-2022)
With enviable (and unusual) economy, Dr. Bekker has created a manual that can act as a guide for both novice and seasoned practitioners in the international arbitration arena. And members of that particular bar would do well to make copies available to federal judges throughout the country to provide context and guidance in addressing arbitral issues that inevitably make their way into the courts.
— Hon. Richard J. Holwell (ret.), United States District Judge, Southern District of New York (2003-2012); Founding Partner, Holwell Shuster & Goldberg LLP
Decades ago, when Sir Robert Jennings was President and Eduardo Valencia-Ospina was Registrar of the International Court of Justice, they shared high regard for a promising young Dutch member of the staff of the Court, Peter Bekker. That promise has been validated over the years by Bekker’s subsequent career, most recently by this book, a lucid and searching survey of the arbitration law and practice of the State of New York.
—Hon. Stephen M. Schwebel, U.S. Judge of the International Court of Justice (1981-2000) and its President (1997-2000)
The author’s intellectual rigor and his devotion to public international law are both in full display in this book, which draws upon his vast experience in the law and practice of international arbitration. It will be an invaluable tool for all those interested in international commercial arbitration in the State of New York.
—Horacio Gutierrez, Senior Executive Vice President, General Counsel and Chief Compliance Officer, The Walt Disney Company, former Chief Legal Officer, Spotify; former General Counsel, Microsoft
Other than its dedication to my father, what I most appreciate about Dr. Bekker's book is that it strikes just the right balance between providing the level of information and sources necessary to understand the complex issues that can arise in New York international arbitrations and remaining concise and user-friendly enough to be of real practical use to practitioners, students and judges alike. It is destined to become not only a go-to “sourcebook,” as the author suggests, but also an invaluable source in its own right on New York international arbitration. Goed gedaan, Dr. Bekker!
—Robert H. Smit, Adjunct Professor of Law, Columbia Law School; former partner and Chair of Simpson Thacher & Bartlett LLP International Arbitration and Litigation Practice
Given New York’s prominence in international business, the thoroughly researched Arbitration of International Disputes in New York presents clearly and concisely both the theoretical foundation and practical application of arbitration law in New York and stands alone as an essential guide for any stakeholder transacting business in New York or applying New York law. Bekker’s mastery of international arbitration law is undeniable and permeates this unprecedented and much-needed volume for local, national, and international arbitration practitioners.
—Nancy M. Thevenin, General Counsel, United States Council for International Business; Principal and Founder, Thevenin Arbitration & ADR
Peter Bekker’s book, Arbitration of International Disputes in New York, provides helpful insights into the theory and practice of international arbitration in one of the world’s leading arbitral jurisdictions. It is structured in a clear and concise manner, addressing the principal stages of a standard proceeding. It will prove highly useful for students, counsel and arbitrators working in the field.”
—Professor Anne Marie Whitesell, PhD, Georgetown University; former Secretary General, ICC International Court of Arbitration (2001-2007)
Dr. Peter (Pieter) Bekker is an international arbitration practitioner and professor. He has been a member of the Bar of the State of New York since 1992, and is also a member of the Bar of the Supreme Court of the United States. He is one of the 70 Founding Members of The International Arbitration Club of New York, a not-for-profit association and forum for discussion comprising approximately 140 international arbitration practitioners and scholars mostly based in New York.
Dr. Bekker is an experienced arbitrator, a longstanding member of the Panel of International Arbitrators (Neutrals) of the American Arbitration Association’s International Centre for Dispute Resolution (ICDR) as well as a member of other rosters of arbitrators across the globe, including that of the Permanent Court of Arbitration (PCA), the world’s oldest multilateral arbitration institution seated at the Peace Palace in The Hague, The Netherlands, his native country.
Dr. Bekker was educated and has practiced, in both Europe and the United States, in civil law, common law, and public international law. He obtained basic and doctoral law degrees from the University of Leiden in The Netherlands and a Master of Laws degree from Harvard Law School. Following his graduation from Harvard, he worked as a legal officer in the Registry of the International Court of Justice.
He is the author of various books on legal topics and of more than 100 articles and notes addressing aspects of international dispute resolution.
All in all, this book is the equivalent of a triple-threat backfield player in American football, the one who can run, pass and even punt. It combines straightforward, detailed, and complete substantive instruction, including specific “don’ts” with the many “dos,” with the convenience of accompanying texts of the relevant treaties, laws, and regulations, as well as extensive guides to further research sources if sought by any user.
Having myself contributed to various volumes dealing with specific aspects of international arbitration, as well as having benefited from numerous other such publications, I am compelled to recommend the present volume authored by Dr. Bekker most highly as setting a standard for all other writers in the field to emulate. I thus compliment my longtime friend and colleague on his sterling, indeed incomparable creation, and I urge everyone involved in international commercial arbitration in the State of New York to acquire and use it.
—from the foreword: by Hon. Charles N. Brower, Arbitrator Member, Twenty Essex Chambers; Judge of the Iran-United States Claims Tribunal (since 1983); Judge ad hoc of the International Court of Justice in three cases (2014-2022)
With enviable (and unusual) economy, Dr. Bekker has created a manual that can act as a guide for both novice and seasoned practitioners in the international arbitration arena. And members of that particular bar would do well to make copies available to federal judges throughout the country to provide context and guidance in addressing arbitral issues that inevitably make their way into the courts.
— Hon. Richard J. Holwell (ret.), United States District Judge, Southern District of New York (2003-2012); Founding Partner, Holwell Shuster & Goldberg LLP
Decades ago, when Sir Robert Jennings was President and Eduardo Valencia-Ospina was Registrar of the International Court of Justice, they shared high regard for a promising young Dutch member of the staff of the Court, Peter Bekker. That promise has been validated over the years by Bekker’s subsequent career, most recently by this book, a lucid and searching survey of the arbitration law and practice of the State of New York.
—Hon. Stephen M. Schwebel, U.S. Judge of the International Court of Justice (1981-2000) and its President (1997-2000)
The author’s intellectual rigor and his devotion to public international law are both in full display in this book, which draws upon his vast experience in the law and practice of international arbitration. It will be an invaluable tool for all those interested in international commercial arbitration in the State of New York.
—Horacio Gutierrez, Senior Executive Vice President, General Counsel and Chief Compliance Officer, The Walt Disney Company, former Chief Legal Officer, Spotify; former General Counsel, Microsoft
Other than its dedication to my father, what I most appreciate about Dr. Bekker's book is that it strikes just the right balance between providing the level of information and sources necessary to understand the complex issues that can arise in New York international arbitrations and remaining concise and user-friendly enough to be of real practical use to practitioners, students and judges alike. It is destined to become not only a go-to “sourcebook,” as the author suggests, but also an invaluable source in its own right on New York international arbitration. Goed gedaan, Dr. Bekker!
—Robert H. Smit, Adjunct Professor of Law, Columbia Law School; former partner and Chair of Simpson Thacher & Bartlett LLP International Arbitration and Litigation Practice
Given New York’s prominence in international business, the thoroughly researched Arbitration of International Disputes in New York presents clearly and concisely both the theoretical foundation and practical application of arbitration law in New York and stands alone as an essential guide for any stakeholder transacting business in New York or applying New York law. Bekker’s mastery of international arbitration law is undeniable and permeates this unprecedented and much-needed volume for local, national, and international arbitration practitioners.
—Nancy M. Thevenin, General Counsel, United States Council for International Business; Principal and Founder, Thevenin Arbitration & ADR
Peter Bekker’s book, Arbitration of International Disputes in New York, provides helpful insights into the theory and practice of international arbitration in one of the world’s leading arbitral jurisdictions. It is structured in a clear and concise manner, addressing the principal stages of a standard proceeding. It will prove highly useful for students, counsel and arbitrators working in the field.”
—Professor Anne Marie Whitesell, PhD, Georgetown University; former Secretary General, ICC International Court of Arbitration (2001-2007)
PDF OF TITLE PAGE AND T.O.C.s
CONTENTS
Summary Contents
Detailed Contents
Foreword by Hon. Charles N. Brower
Preface
About the Author
About the Book
Abbreviations
1. Finding Sources: New York and Federal Arbitration Law
2. The U.S. Federal Arbitration Act and New York Arbitration
2.1 The FAA: U.S. federal law of arbitration with a treaty twist
2.2 Scope of application of the FAA and international arbitration treaties
2.3 Core principles guiding U.S. arbitration law
3. The Arbitration Agreement as the Consent Instrument
3.1 Formal requirements for arbitration agreements
3.2 The separability doctrine and challenges to contract formation
3.3 Choice of law issues
4. Constitution of the Arbitral Tribunal
4.1 Composition of the arbitral tribunal and arbitrator selection issues
4.2 Removal and replacement of arbitrators
4.3 Fees and expenses of arbitrators; third-party funding
4.4 Liability and immunity of arbitrators
5. Jurisdiction of the Arbitral Tribunal
5.1 Competence to determine jurisdiction and “arbitrability” issues
5.2 Scope of arbitral jurisdiction
5.3 Arbitral authority to indicate interim protective measures
6. Proceedings before the Arbitral Tribunal
6.1 Commencement of arbitration
6.2 General procedural principles applicable to arbitral proceedings
6.3 Multi-party issues: joinder and consolidation
6.4 Written submissions and oral hearings
6.5 Non-appearance and default by one of the parties
6.6 Evidence and discovery in international arbitration
6.7 Confidentiality and privacy in international arbitration
7. Making of the Arbitral Award and Closure of the Arbitral Proceedings
7.1 Form, content, and effect of the arbitral award
7.2 Arbitral relief: available remedies
7.3 Award of interest
7.4 Award of attorneys’ fees
8. The Role of New York Courts in International Arbitration
8.1 Jurisdiction of New York federal and state courts
8.2 Filing arbitration-related motions and venue selection
8.3 Initial court proceedings: staying litigation and compelling arbitration
8.4 Preliminary court rulings on points of jurisdiction and law
8.5 Court-ordered interim protective measures
8.6 Obtaining evidence and other court assistance in aid of arbitration
9. Challenging an Arbitral Award in New York Courts
9.1 Procedure for challenging (vacating) an arbitral award
9.2 Grounds for challenging (vacating) an arbitral award
9.3 Correction or modification of an arbitral award
10. Confirmation and Enforcement of Arbitral Awards in New York Courts
10.1 Enforcement of domestic awards in New York
10.2 Enforcement of nondomestic (international) and foreign awards in New York
11. Arbitration Clauses: Samples and Defects
11.1 Introduction
11.2 Core provisions
11.3 Highly-recommended provisions
11.4 Facultative provisions
11.5 The importance of a collectible award
11.6 Defective arbitration clauses: avoiding common errors in drafting
Appendices
1. New York Convention
2. List of States Parties to the New York Convention
3. Panama Convention
4. List of States Parties to the Panama Convention
5. U.S. Federal Arbitration Act
6. U.S. Federal Rules of Civil Procedure, Rule 26
7. New York Civil Practice Law and Rules
8. Rules of the Commercial Division of the Supreme Court of New York, Section 202.70
9. Outline of an Early Case Assessment Memorandum
Table of Cases
Bibliography
Index