International Arbitration (Preliminary Matters) - Chapter 12 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition
Gerald Aksen, Esq., Independent Arbitrator and Mediator, New York, New York
Axel H. Baum, Esq., Counsel, Hughes Hubbard & Reed, Paris, France
Richard H. Kreindler, Esq., Partner, Sherman & Sterling, Frankfurt, Germany
Lawrence W. Newman, Esq., Of Counsel, Baker & McKenzie, New York, New York
Lucy F. Reed, Esq., Partner, Freshfields Bruckhaus Deringer, New York, New York
Arbitrators should understand the many characteristics and potential challenges that distinguish international arbitrations from domestic commercial arbitrations as well as the features they have in common.
International arbitration can be defined in various ways. For purposes of this Guide, an international arbitration is defined as a proceeding with one or more cross-border elements. International elements may include the site of arbitration, the applicable substantive law, the nationalities of the parties, the likely places of enforcement, or other similar components.
Although centuries old, international arbitration has become common in the United States only during the past forty 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, potentially long delays, and the prospect of high costs. In addition, most agreements to submit future disputes to arbitration were unenforceable. Only agreements to arbitrate existing disputes were capable of specific enforcement.