Procedural Law in International Arbitration

This book comprehensively analyses the relevant legislative practice of all major arbitration venues in the world, as well as the arbitral practice of a number of arbitral institutions. The book proposes an analytical model for the determination of the procedural law of international arbitration, as well as a number of 'model' legislative provisions of substantive and private international law.

Georgios Petrochilos was educated in Athens, Strasbourg, and Oxford. He obtained his doctorate from Oxford, where he also taught public and private international law. He currently practises in the fields of international arbitration and international law from the Paris office of Freshfields Bruckhaus Deringer.

Note on Citation and Tables

xv

Tables of International Treaties and Conventions

xix

Tables of Municipal Legislation

xxxvii

Tables of Authorities

liii

Tables of Arbitral Awards

xcix

Tables of Arbitration Rules

cvii

Tables of Model or Proposed Legislation, Restatements, etc

cxxi

List of Abbreviations and Short Titles

cxxxi

Introduction

1

(1)

The Area of Inquiry: International Commercial Arbitration

6

(9)

The Object of Inquiry

15

(27)

The Elements and Functions of the Lex Fori

15

(3)

Difficulties with the Concept of the Lex Fori in International Arbitration

18

(20)

Why the Lex Arbitri is Potentially Relevant to the Arbitral Procedure

38

(4)

The Purpose and Method of the Inquiry

42

(3)

The Structure and Argument of this Book

45

The Theoretical Thinking on the Law of the Arbitration

1

(1)

Introduction to the Notions

4

(4)

Seat Theories

8

(20)

The Terratorialists

8

(10)

Imputed Choice of Forum: The 1957 Resolution of the Institut de Droit International

18

(10)

Legal Localization

28

(10)

The Procedural Law Criterion

29

(5)

The Legal Continuum Theory

34

(2)

The Displacement of Jurisdiction Criterion

36

(2)

Approaches to Delocalization

38

(14)

Transnational Arbitration

39

(7)

Delocalization by Contract Theory

46

(6)

Concluding Remarks: Desiderata

52

The Law of the Arbitration in National Laws

1

(1)

Localization by Choice of Law: Its Shortcomings and Abandonment

2

(28)

Greece, pre-1999

3

(4)

Germany, pre-1998

7

(3)

France, pre-1981: Deni de Justice?

10

(4)

England, pre-1996: Presumptions Canonized

14

(15)

Conclusions

29

(1)

The Basic Tenets of Modern Arbitration Law

30

(69)

The Concept of the Seat of the Arbitration as the Basis of Functional Jurisdiction

31

(42)

Procedural Autonomy as a Matter of Substantive Law

73

(11)

Exclusion of Setting Aside by Agreement

84

(15)

Supervision and Support at the Seat of an Arbitration

99

(1)

An International Law Requirement

99

(3)

Setting Aside for Procedural Misconduct

102

(18)

Support Jurisdiction

120

Human Rights Law Requirements in International Arbitration

1

(1)

International Law Creates Obligations for States

4

(7)

An Arbitration Agreement is a Waiver of the Right to State-Administered Justice

11

(39)

A Waiver of What?

11

(2)

Formal and Substantive Requirements of Validity

13

(5)

Waiver of the Right to have Recourse to the Courts to Challenge an Arbitral Award

18

(22)

The Implications of Arbitration Costs for the Right of Access to Justice

40

(10)

A Right to a `Fair Arbitration'?

50

(45)

Independence and Impartiality

53

(32)

Party Equality and Due Process

85

(7)

Reasonable Time and Public Hearing

92

(3)

Are Arbitral Tribunals Bound by the ECHR?

95

(18)

Arbitral Tribunals

96

(12)

Arbitral Institutions

108

(5)

An International Obligation to Supervise and Assist Arbitral Proceedings?

113

(14)

Jurisdiction and Responsibility

115

(3)

Consensual and Statutory Arbitration

118

(9)

Conclusions

127

Procedural Law and Rules in Arbitral Practice

1

(1)

What is `Procedure' and `Procedural Law' in Arbitral Practice?

5

(18)

No Need to Characterize an Issue as Procedural

6

(1)

The Parties may Vary the Law of the Arbitration and Arbitration Rules

7

(9)

An International Arbitral Tribunal must Strive to Apply Generally Accepted Procedural Principles

16

(7)

A Survey of Arbitration Rules

23

(45)

Rules of National Institutions for Foreign Trade

25

(13)

Universal Rules

38

(27)

Conclusions

65

(3)

Overview of Arbitration Practice with Particular Reference to ICC Practice

68

(50)

Choice of Procedural Law in Arbitration Agreements

68

(21)

The Practice of Arbitral Tribunals

89

(29)

General Principles of Arbitral Procedure

118

(1)

The Need for Statements of Good Practice

119

(6)

Certain Procedural Principles Applicable in International Arbitration

125

Arbitrations Involving a State or an International Organization

1

(1)

Introduction

2

(7)

The Iran-United States Claims Tribunal

9

(41)

The International Law Foundations of the Tribunal

11

(4)

The Netherlands has no International Responsibility for the Acts of the Tribunal

15

(7)

The Algiers Declarations and the Jurisprudence of the Tribunal

22

(28)

Foreign Investment Treaty Arbitration

50

(26)

Arbitration under Bilateral Investment Treaties

52

(8)

Arbitration under Multilateral Investment Agreements

60

(3)

ICSID Arbitration in Particular

63

(13)

Arbitrations between Private Parties and International Organizations

76

(43)

Arbitration before ad hoc and other Non-Permanent Arbitral Tribunals

77

(37)

Particular Arrangements: Standing International Tribunals

114

(5)

States as Arbitrating Parties

119

(58)

Arbitral Practice

120

(30)

Who Needs Internationalization of Arbitral Proceedings?

150

(9)

Literature Survey

159

(5)

As a Rule, an Arbitration Agreement with a Private Party will Constitute a State's Consent to the Jurisdiction of the Courts

164

(8)

Principles of Interpretation of Arbitration Agreements

172

(5)

Conclusions

177

Enforceability of Awards Annulled in their State of Origin

1

(1)

Article V(1)(e) within the General Convention Framework

4

(21)

The Text and its History: Does `May' Mean what it Says?

6

(8)

Article V(1)(e) in Context

14

(11)

The Case Law

25

(25)

The French Paradigm: Discounting Annulment Exclusively through Article VII

25

(20)

A Discretionary Standard: The United States Chromalloy Case

45

(5)

The Proper Limits for Discounting Annulment

50

(18)

Correlating Articles V and VII of the Convention

51

(4)

Grounds for Exercising Discretion to Enforce

55

(13)

Policy Considerations: The Case for Restraint

68

(18)

The Principles Involved

69

(7)

Corrective Mechanisms

76

(5)

Finality at All Cost?

81

(5)

Conclusions

86

A Nexus Between an Award and a Municipal Law? International and A-National Awards in the New York Convention

1

(1)

Some Clarifications

1

(7)

Foreign and Non-Domestic Awards

8

(59)

Legislative History

8

(20)

Analysis: Article I(1) as a Single-Purpose Vehicle

28

(23)

Non-Domestic Awards

51

(14)

Conclusions

65

(2)

Awards of the Iran-United States Claim Tribunal

67

(20)

The Issues

67

(6)

The Approach of the Courts

73

(10)

Some Distinctions and a Postscript on Nomenclature

83

(4)

A-National and Stateless Awards

87

(18)

The Enforcement of A-National and Homeless Awards in Practice

90

(10)

An Award by Any Other Name

100

(5)

Conclusions

105

What Does the Future Hold?

1

(388)

Bibliography

389

(34)

Index

423

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Procedural Law in International Arbitration

Summary

Author Biography

Table of Contents

Supplemental Materials