International Arbitration (Preliminary Matters) - Chapter 12 - The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition

Author(s):

Gerald Aksen

Axel H. Baum

Richard Kreindler

Lawrence W. Newman

Lucy F. Reed

Page Count:

16 pages

Media Description:

PDF from "The College of Commercial Arbitrators Guide to Best Practices in Commercial Arbitration - 2nd Edition"

Published:

October, 2010

Jurisdictions:

International,

United States

Practice Areas:

Authority of the Arbitral Tribunal,

Right to Decide on Jurisdiction,

Arbitrators and Arbitral Tribunals,

Capacity and Qualifications of Arbitrators,

Arbitrability

Author Detail:

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

PDF193.16 KB

$40.00

Description:

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.

I. INTRODUCTION

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.

In terms of the heightening of awareness and acceptance of international arbitration as a viable cross-border dispute resolution mechanism, the defining event was the advent of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). After a notable delay, the United States ratified the New York Convention in 1970, and Congress implemented the convention through the enactment of Chapter 2 of the FAA. The New York Convention, now with more than 143 signatory countries, has two major aims: (1) the enforcement of international arbitration agreements and (2) the recognition and enforcement of foreign arbitral awards. The convention also applies less frequently to arbitral awards that are not considered domestic awards in the state where their recognition and enforcement are sought. The New York Convention generally provides that when the court of a contracting state "is seized of an action" involving an international commercial dispute with respect to which the parties have made a written agreement to arbitrate, the court shall, upon the request of one of the parties, "refer the parties to arbitration" unless it finds that the agreement is "null and void, inoperative or incapable of being performed."

Table of Contents:

I. INTRODUCTION II. APPOINTMENT PROCESS A. Initial Communication Regarding Possible Appointment B. Arbitrators’ Determination of Willingness, Suitability, Fitness, and Availability to Serve C. Arbitrator Disclosures 1. IBA Disclosure Guidelines 2. Due Diligence in Determining Disclosures 3. Challenges to Appointment 4. Arbitrators’ Terms of Engagement 5. Changes in Status in the Course of the Proceeding III. DETERMINING JURISDICTION AND ARBITRABILITY A. Challenges to Arbitrators’ Jurisdiction B. Challenges to Arbitrability of a Party’s Claims C. Formalizing Arbitrators’ Decisions on Jurisdictional, Arbitrability, and Competence Issues