Chapter Eighteen: International Arbitration (Preliminary Matters) - CCA Guide to Best Practices in Commercial Arbitration - Fourth Edition
Editor in Chief James M. Gaitis is a long-standing member of the Texas and Montana state bars, and a former longtime member of the Oklahoma state bar, who, since 1990, has specialized in serving as an arbitrator in complex commercial and oil & gas/energy arbitrations. Mr. Gaitis is the former Director (and Principal Research and Teaching Fellow) of the International Dispute Resolution Programme at the Centre for Energy, Petroleum & Mineral Law and Policy (CEPMLP), University of Dundee, Scotland, where he designed and taught classes on international dispute resolution and advocacy in international oil & gas arbitration to LLM students and professionals. In private practice, he served variously as lead trial counsel, in-house counsel, and special counsel for a diverse array of companies, individuals, and other entities involved in the domestic and international oil & gas industries. He is listed on a broad variety of international and domestic arbitration panels, including the AAA National Energy Panel, Construction Panel, Merger & Acquisitions Panels, and Large, Complex Case Panel; the ICDR’s Panel of Arbitrators and the ICDR’s prestigious Energy Arbitrators List; the British Columbia International Commercial Arbitration Centre; and the CPR’s Oil & Gas/Energy Panel and Cross-Border Panel. He frequently serves as a chair, party-appointed arbitrator, emergency arbitrator, and list-appointed arbitrator in cases involving all aspects of the oil & gas industry, as well as in commercial cases relating to such matters as manufacturing, construction lending, engineering, asset sales, business torts, and real property. Many of his arbitrations, which have included claims in excess of $1 billion, have involved Fortune 100 and Oil & Gas Journal Top 50 companies, as well as national oil companies and international oil companies.
A Fellow of the College of Commercial Arbitrators (2004–present) and a Fellow and Chartered Arbitrator of the Chartered Institute of Arbitrators (2003–present), Mr. Gaitis is a frequently invited speaker and lecturer, has testified in district court proceedings as an expert on arbitrator disclosures and ethics, and is the author of numerous articles relating to arbitration law, several of which have been cited repeatedly to the United States Supreme Court, various federal district courts and federal courts of appeal, and various other courts, such as the Supreme Courts of Texas and Puerto Rico. In 2006, 2010, and 2013, he respectively served first as an Editor and then repeatedly as Editor in Chief of the first, second, and third editions of The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration. He also is the Editor of, and a contributing author to, The Leading Practitioners’ Guide to International Oil & Gas Arbitration (Juris 2015) and serves on the Board of Editors of the Journal of World Energy Law & Business (OUP/AIPN). He is a graduate of the University of Notre Dame (BA 1976) and the University of Iowa College of Law (JD 1978), where he served as a Note & Comment Editor on The Iowa Law Review.
Contributors:
Gerald Aksen, New York, New York
Axel Baum, Paris, France
Robert B. Davidson, New York, New York
Sally Harpole, San Francisco, California
Richard H. Kreindler, Frankfort, Germany
Urs M. Laeuchli, San Francisco, California
Lawrence W. Newman, New York, New York
Philip D. O’Neill, Boston, Massachusetts
Elliot E. Polebaum, Washington, DC
Lucy F. Reed, New York, New York
Arbitrators should understand the many characteristics and evolving challenges that distinguish international arbitrations from domestic commercial arbitrations as well as the features they have in common.
I. INTRODUCTION
The term international arbitration can be defined in various ways. For the purposes of this Guide, an international arbitration is an arbitration proceeding with one or more cross-border elements. International elements may include the site of the arbitration, the applicable substantive law, the nationalities of the parties, the likely places of performance or enforcement, or other similar factors that reflect a reasonable relationship with one or more foreign states. See, e.g., 9 U.S.C. § 202.
Although centuries old, international arbitration has become common in the United States only during the past forty-five or so years. Prior to that time, U.S. lawyers and parties were wary of submitting commercial disputes to international arbitration because of their uncertainty about and unfamiliarity with applicable laws and procedures, foreign languages, potential delays, the prospect of high costs, and enforcement challenges. In addition, some agreements to submit future disputes to arbitration were unenforceable in certain jurisdictions in the past, whereas agreements to arbitrate existing disputes were capable of specific enforcement. As a result of various factors ranging from (1) greater reception to and endorsement of international arbitration in a series of Unites States Supreme Court decisions (see, e.g., Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)) to (2) the increased sophistication and numbers of U.S.-based arbitrators and attorneys with international/foreign law and international arbitration backgrounds to (3) the heightened emphasis on international arbitration by U.S.-based arbitral institutions and centers, the conduct of international arbitrations in the United States became increasingly commonplace such that today it is the norm.