Research Guide on International Commercial and Investment Arbitration

International Foreign Legal Research

Spring 2018

Under the Guidance of Miss Marci Hoffman

Niyati Ahuja

Master of Laws

Spring 2018

1
Table of Contents

S. No. Section Head Page Number(s)

I. Introduction 4-6

A. Scope

B. Research Strategy

C. Recommended Approach for Researchers New

to the Topic

D. Major Problems Encountered

II. Introduction to Consolidation of Multiple 7-8

Proceedings in International Arbitration

III. Locating Secondary Resources 9-25

General Background Sources

A. Finding Tools and Search terms

B. Bibliographies

C. Research Guides

D. Books, Periodicals/Yearbooks, and Articles

E. Electronic Sources

IV. Locating Primary Resources 25-36

A. Treaties, Declarations, Resolutions, and

Conventions

B. Institutional Arbitration Rules

C. Cases and Judicial Opinions

V. Conclusion 36-37

2
 A. Availability/ Usefulness of Sources

B. Unmet Research Needs

VI. Additional Advice 37-38

3
I. Introduction

This research guide is an introduction to research on consolidation of multiple arbitration

proceedings in international arbitration, but would also provide guidance on researching

international arbitration related topics. There is a vast pool of data on the issues in consolidation

of arbitration proceedings, however it is scattered all over the web, journals and other research

sources. There are various aspects covered under the aforementioned area including national

policy issues, party autonomy issues and procedural difficulties in consolidation of international

arbitration proceedings. At the same time, this guide is not restrictive to the specific topic, but

will be helpful in research complex topics in international arbitration. The aim of this guide is

also to provide the users with credible information and to enable users to translate relevant laws

and case law into English. However, we must not forget that every researcher needs to begin

with narrowing down the aim of his research and finalizing the outcome or result he wants out of

his research. The most fruitful research is one where there is a definitive outcome in the

researcher’s mind to achieve.

A. Scope

1. Time period of materials covered: The research guide intends to provide sources ranging from

the formulation of the concept of arbitration to the most recent developments in arbitration laws.

Areas covered: International Investment and Commercial arbitration with examples for domestic

arbitration in India and the United States.

2. Language limitations:

4
 A vast portion of literature and case laws is conveniently available under the umbrella of

arbitration. It is rare to face a language limitation, however, this guide provides tools for

translation of domestic case law into English, if needed.

3. Target audience:

This research guide aims to provide guidance to international arbitration practitioners,

international investors and commercial participants, organizations, researchers, and students

interested in arbitration law. Even though it has been written to cater to the needs of novice

researchers on this topic, an understanding of the topic before beginning research is advisable.

B. Research Strategy

The research strategy I used to conduct my research on a specific topic i.e. consolidation of

multiple proceedings in arbitration was:

Step 1: Consult the library catalogue to find out any available books to understand the topic in

depth.

Step 2: Delineate the areas included and excluded in the research.

Step 3: Download ‘zotero’ or software of the like to manage bibliographic data and related

research materials.

Step 4: Locate the various existing secondary sources, both electronic and print for research

related to arbitration.

Step 5: Locate the national legislation relevant to arbitration. Understand whether case law is

considered as primary source or secondary and include it in the research accordingly.

5
C. Recommended Approach for Researchers New to the Topic

Step 1: Begin with understanding the topic and area you want to research in. Explain the topic

and demarcate the areas to be covered under research. Note the problems faced.

Step 3: Before you start the research, you may refer to a research guide to take into account all

resources and tools which may help in your area

Step 2: Locate secondary sources.

Step 3: Locate primary sources for the limited country specific research you want to conduct.

Step 4: Try finding the solutions throughout your research and note it down for perusal in future.

D. Major Problems Encountered

1. One of the major problems every researcher faces is filtering the relevant data from the pile of

seemingly relevant information they come across. Organization of the data for more effective

and efficient data analysis can be done by the use of a variety of software available, e.g., zotero,

endnote, refworks, etc.

2. Another problem is finding documents in an understandable language, however, since

international arbitration involves a vast number of agreements between different nations, it is

often that the proceedings and awards are in English.

3. Since this is a considerably new topic, it might be hard to find a plethora of literature. However,

the research methodology shall remain to be useful in the future when more research and

analysis has been conducted on the same.

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II. INTRODUCTION TO CONSOLIDATION OF MULTIPLE PROCEEDINGS IN

INTERNATIONAL ARBITRATION

Consolidation is a procedural mechanism allowing for two or more claims to be united into one

single procedure concerning all related parties and disputes.1 The most appropriate search terms

for researching this topic would be ‘consolidation’, ‘multi party’, ‘parallel proceedings’, ‘multi-

contract disputes’, ‘joinder’, amongst others.

Consolidation of proceedings could be conducted in various instances:

1. multiple parties to the same contract;

2. the same parties in multiple layers of a project;

3. the same parties to multiple contracts; and

4. multiple parties involved in multiple contracts and different projects.

This topic shall also include research on the numerous challenges to consolidation:

(i) lack of the parties’ consent;

(ii) non-participation in the appointment of the arbitral tribunal;

(iii) potential infringements of a party’s substantive rights;

(iv) allocation of arbitral fees and other costs; and

(v) general lack of efficiency.

Until very recently, the great majority of case law did not support consolidation, absent specific

contractual authorization.2 This trend now seems to have been broken, with a number of

arbitration rules enlarging consolidation rules (such as the Swiss Rules and the ICC Rules) and

1
Efficiency at all cost – arbitration and consolidation? By Lara Pair (LP Legal)
(http://arbitrationblog.kluwerarbitration.com/2014/03/14/efficiency-at-all-cost-arbitration-and-consolidation/)
2
Connecticut General Life Ins. Co. v. Unicover Managers, Inc., 210 F.3d 771 at 773 [7th Cir. 2000]

7
 arbitral decisions, most notably the PCA tribunal decision in Guaracachi America Inc & Rurelec

Plc vs Bolivia3. The decision highlights the ability of investors to maximize the strategic value

and impact of their claims by bringing claims in a single unified proceeding where possible.

Tribunals in Plama Consortium Limited v. Republic of Bulgaria4 and Liman Caspian Oil BV and

NCL Dutch Investment BV v. Republic of Kazakhstan5 adopted a more claimant friendly pre-

emptive view.

National laws of the seat of the arbitration may provide that the court is entitled to order

consolidation of connected arbitral proceedings; for example, the California Code of Civil

Procedure6 states that a party to an arbitration agreement may petition the court to consolidate

separate arbitration proceedings, and the court may order consolidation of separate arbitration

proceedings in certain specific cases mentioned therein. This is a useful and effective approach

where all parties agree to arbitration with the same seat but do not necessarily consent to the

joinder/consolidation. Certain courts may also be willing take a more pragmatic approach, as the

English Court of Appeal did when it decided to exercise its power to appoint an arbitrator by

appointing the same arbitrator in two parallel cases.7

III. LOCATING SECONDARY RESOURCES

3
Guaracachi America, Inc. and Rurelec PLC v. The Plurinational State of Bolivia, UNCITRAL, PCA Case No.
2011-17
4
ICSID Case No. ARB/03/24
5
ICSID Case No. ARB/07/14
6
Section 1281.3
7
Abu Dhabi Gas Liquefaction Co Ltd v Eastern Bechtel Corp [1982] 2 Lloyd’s Rep 425, CA

8
 A secondary source can be used for three different purposes: it might educate you about the law,

it might direct you to the primary law, or it might serve as persuasive authority.8 You can

use Secondary Sources as a gateway to Primary Law.  Not only do secondary sources include

footnotes and annotations that can lead you directly to relevant cases, legal databases include

mechanisms for linking sources by topic, known as headnotes (Lexis) and key numbers

(Westlaw). Secondary sources often explain legal principles more thoroughly than a single case

or statute, so using them can help you save time. Secondary sources also help you avoid

unnecessary research, since you are tapping into work that someone else has already done on an

issue.9

There is a plethora of arbitration related material available. The challenge is to skim through the

data and find an article relevant and useful to your research.

We tend to use google as the most viable option for conducting research. A tip to users would be

to use the advanced google search10 option every time you begin your research. Further, it would

make a researcher’s job easier to use the following operators in their google searches:

 site: the site you want to find the information on, e.g. site:globalarbitrationreview.com

 “ ” put quotation marks around the terms you’re using to find the exact phrase “consolidation of

arbitral proceedings”

- using the dash or subtraction sign will exclude the words following it from the search, e.g.,

consolidation of arbitral proceeding - joinder

 ~ the tilde allows you include related words in your search, e.g., consolidation~

 .. putting two periods or dots between numbers will allow you to search a date range file type

arbitration 2017..2018
8
https://library.law.yale.edu/secondary-sources
9
https://guides.library.harvard.edu/law/researchstrategy/secondarysources
10
https://www.google.com/advanced_search

9
 : this helps you find a specific type of file (great for image searches)

 intitle: this will only show results with the following word or words in the title, e.g.,

intitle:consolidation international arbitration

 the asterisk replaces itself with common terms in your search

General Background Sources

1. Finding Tools and Search Terms Bibliographies: A bibliography is a comprehensive list of

published materials about a particular subject.  Bibliographies provide time-saving alternatives to

searching library catalogs and journal databases for relevant books and journal articles. Most

bibliographies are freely accessible through databases like trans-lex.org which contains a large

bibliography on transnational commercial law and all information is free of charge and the likes.

 Pechota Bibliography on Arbitration - Second Edition

The bibliography will prove to be an invaluable tool to anyone who seeks information on any

subject relating to commercial arbitration worldwide. This work will be useful both as a guide to

books and articles on specific topics and as a source of bibliographical information on the law

and practice of commercial arbitration in particular countries. It is a country-by-country and

geographical bibliography which contains bibliographies of publications that appear in English

and their native language from over 136 countries. It is available in print and accessible through

the subscription database arbitration law11 published by Juris Net.

 The 1958 New York Convention:  A Bibliography 

11
https://tinyurl.com/ybk3xzjs

10
 This bibliography is updated as of September 2017 and will be further updated on a regular

basis. It currently contains around 900 references. It is freely accessible online12 and consists of

references to general arbitration books and books on the convention as well as articles on the

recognition and enforcement of arbitral awards in specific countries and regions.

 Consolidated Bibliography of recent writings related to the work of UNCITRAL

The UNCITRAL Secretariat prepares yearly a Bibliography of recent writings related to the

work of UNCITRAL. This document is available in the Commission Sessions' pages or in

a Consolidated Yearly Bibliography page13. The individual entries of the Bibliography are also

searchable in the UNCITRAL On-line Public Access Catalogue (OPAC). This is freely

accessible online through the UNCITRAL website.

2. Research guides: These include information on locating treaties, awards, national laws, and other

information.  Includes both print and electronic sources, including databases. Some of these

guides are freely accessible online through university library catalogues, e.g Columbia

University Arthur W. Diamond Law Library Guide to International Commercial Arbitration,

Cornell University Law Library International Commercial Arbitration Research Guide,

Georgetown Law Library International Commercial Arbitration Research Guide, Harvard Law

School Library International Commercial Arbitration Research Guide, University of Washington

Gallagher Law Library International Arbitration Research, Yale University Lillian Goldman Law

Library and some are available in print.

12
http://newyorkconvention1958.org/pdf/NYC1958-Bibliography-130709.pdf
13
http://www.uncitral.org/uncitral/en/publications/bibliography.html

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 International Commercial Arbitration: Boalt Research Guide14

 International Arbitration between Foreign Investors and Host States by Hernando Otero and

Omar García-Bolívar; Hauser Global Law School Program, New York University School of

Law, March 2017

 The International Council for Commercial Arbitration15 provides a wealth of information on its

website, including a collection of full-text journal articles and extensive lists of links to

arbitration treaties and conventions, national arbitration laws, arbitral institutions, and

professional organizations. Although membership is required to access portions of the site, the

majority of the information is publicly available.

 WTO/GATT Research16: This guide presents the essential sources for researching the former

GATT and the current system under the Uruguay Round agreements and the World Trade

Organization.

 ERG(Electronic Resource Guide) on International Commercial Arbitration by Gloria Miccioli17:

The narrative format of the ERG is complemented and augmented by EISIL (Electronic

Information System for International Law), a free online database that organizes and provides

links to, and useful information on, web resources from the full spectrum of international law.

B. Books, Periodicals, Yearbooks, and Articles

14
http://libguides.law.berkeley.edu/c.php?g=326736
15
http://www.arbitration-icca.org/
16
http://nyulaw.libguides.com/wto_gatt
17
https://www.asil.org/sites/default/files/ERG_ARB.pdf

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1. Books

 The American Influence on International Commercial Arbitration – Doctrinal Developments and

Discovery Methods by Pedro J. Martinez18 – Fraga

American common law discovery precepts are analyzed through the prism of the fundamental

precepts of party-autonomy, predictability, uniformity, and transparency of spender, which the

author contends to be the rudimentary tenets of both the American common law procedural

rubric and the very principles that international commercial arbitration seeks not only to preserve

but to enhance. Therefore, as the author asserts, the discovery process endemic to American

common law comports more closely with international commercial arbitration both procedurally

and theoretically than with those of the "taking of evidence" methodology commonly used in

international commercial arbitrations held under the auspices of arbitral institutional bodies.

 The Doctrine of Res Judicata Before International Commercial Arbitral Tribunals19 by Silja

Schaffstein

This book offers an incisive cross-jurisdictional analysis of how court and arbitral decisions can

impact on each other while setting out a full survey of applicable case law.It identifies a series of

guidelines to support the treatment of res judicata issues in international commercial arbitration

 International Arbitration Discourse and Practices in Asia20 by Vijay K. Bhatia, Marizio Gotti,

Azirah Hashim, Philip Koh, and Sundra Rajoo

18
Cambridge University Press; 1 edition (March 30, 2009)

19
Oxford International Arbitration Series; 24 May 2016
20
Routledge; 1 edition (August 4, 2017)

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 This volume offers a variety of perspectives on this important international dispute resolution

practice in Asia. Essentially interdisciplinary in approach, it brings together specialists in law,

international commercial arbitration and discourse analysis. The contributing authors include

practitioners as well as academics. Together they explore the interrelations between discourses

and practices in the field of arbitration in Asia. The authors focus particularly on arbitration

norms and practices as they are influenced by local juridical, cultural and linguistic factors.

 The coordination of multiple proceedings in investment treaty arbitration21 by Hanno Wehland

The first work to comprehensively address the issues arising in the context of multiple

proceedings before investment treaty tribunals and propose a systematic approach to applicable

coordination mechanisms. It dissects the widely-recognized uncertainty about the coordination

mechanisms investment treaty tribunals should apply when faced with multiple arbitral

proceedings or proceedings in the domestic courts of a host state

 UNCITRAL 2012 Digest of Case Law on the UNCITRAL Model Law on International

Commercial Arbitration22 by United Nations

In light of the large number of cases collected in CLOUT on the Model Law, the Commission

requested a tool specifically designed to present selected information on the interpretation of the

Model Law in a clear, concise and objective manner. This request originated the Digest of case

law on the Model Law.

21
Oxford International Arbitration Series; 16 August 2013

22
http://www.uncitral.org/pdf/english/clout/MAL-digest-2012-e.pdf

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 International Arbitration Court Decisions by Stephen Bond23 and Frédéric Bachand

Covering more than twenty different jurisdictions, the decisions are commented on by

distinguished arbitrators, lawyers, justices and other legal professionals. The practitioner is

presented with several points of view in the "Observations", making this volume a welcome

addition to any legal library.

 World Arbitration Reporter to research the history and development of international arbitration in

the assigned nation. This resource also provides translations of major domestic legislation with

accompanying commentary. It is available both in print, and electronically via subscription

database arbitration law published by Juris Net.

2. Periodicals/Yearbooks

A yearbook is a type of a book published annually to record, highlight, and commemorate

events and developments in the past year. The term also refers to a book of statistics or facts

published annually.

For arbitration, the following most referred to yearbooks are:

 ICCA Yearbook Commercial Arbitration

A major source of information concerning international arbitration jurisprudence.

Published under the guidance of the General Editor, Professor Dr. van den Berg, and with

the assistance of the Permanent Court of Arbitration, the Yearbook provides an annual

update on key developments including: institutional and ad hoc arbitral awards, court

23
JurisNet, LLC; 3rd edition (April 1, 2011)

15
 decisions on arbitration from around the world, court decisions on major multilateral

arbitration conventions, commentary on the court decisions on the New York Convention

1958,updates on developments in arbitration law and practice, an investment treaty awards

and decisions digest and a bibliography of the latest texts.

 The Baker McKenzie International Arbitration Yearbook

The Yearbook comprises reports on arbitration from key jurisdictions around the globe. Leading

lawyers of Baker McKenzie’s International Arbitration Practice Group, a division of the Firm’s

Global Dispute Resolution Practice Group, report on recent developments in national laws

relating to arbitration, set out key features of their local institutions, and address current arbitral

trends in the jurisdictions in which they practice. The aim of this Yearbook is to highlight the

more important developments in international arbitration, without aspiring to be an exhaustive

case reporter or a textbook to arbitration in the broad sense.

 Penn State Yearbook on Arbitration and Mediation

The Yearbook on Arbitration and Mediation, a student-edited journal at Penn State, covers

domestic and international developments in arbitration and mediation by publishing scholarly

and professional articles, thorough summaries of leading cases, legislative analysis and other

assessments. 

 AAA Yearbook on Arbitration & the Law

This yearbook provides a compilation of the most significant arbitration-related cases, and adds

important commentary and interpretation.  Many of the cases included in this edition of the

16
 Yearbook relate to issues that arise with regular frequency in any given year, but despite the

frequency with which they are litigated, they remain fundamental to the development of

arbitration law and continue to shape the practice of arbitrators and parties to arbitration

proceedings. These cases address disputes regarding the formation of contracts and arbitration

agreements, the preemption of the Federal Arbitration Act over state arbitration laws and state

court decisions, arbitrator authority, ethics and arbitrator disclosure.  

The Yearbook also covers matters in depth that reflect issues that address novel or evolving

issues, including class actions and arbitration, the applicability of res judicata and collateral

estoppel in arbitration, and discovery related issues which continue to remain unsettled in many

respects. 

3. Articles

 Indexes: A legal index is a compilation of law review and law-related articles organized by

author, title, or subject. When you have some good search terms, such as the name of a case or

the popular name of a statute, indexes can be a useful tool for finding highly relevant law review

articles quickly. For example,

 Index to Foreign Legal Periodicals (IFLP) - The Index to Foreign Legal Periodicals (IFLP)

database indexes articles as well as book reviews from more than 500 legal journals published

worldwide, including journals, essay collections, festschrifts, and congress reports.  Access to

full-text articles is available for more than 100 journals.

 Index to Legal Periodicals (ILP): The Index to Legal Periodicals and Books indexes over 1000

leading legal journals, yearbooks, institutes, bar association journals, university publications and

17
 law reviews, and government publications from the United States, Puerto Rico, Great Britain,

Ireland, Canada, Australia, and New Zealand. The database also indexes some 1,400

monographs per year. In addition, there is the Index to Legal Periodicals Retrospective that

indexes over 500 legal periodicals back to 1918.

Please note that while searching, give preference to ‘international commercial arbitration’ and

‘parallel proceeding’ or ‘multi party’ as separate search fields. The system may give results only

pertaining to mergers and acquisitions if ‘consolidation’, ‘international arbitration’ and

‘commercial’ are chosen as separate search terms’. Since there isn’t much data available yet on

this topic, the research must filter the articles pertaining to parallel proceedings and multi-party

disputes.

 Consolidation Of Multiple Arbitration Proceeding Consolidation of Arbitral Proceedings and

International Commercial Arbitration by Chiu, Julie C.; Journal of International Arbitration, Vol.

7, pp. 53-76 (Accessible via Kluwer Law International Library)

18
 The Consolidation Dilemma: Is There Finally a Pragmatic Solution? By B Ted Howes and

Allison M Stowell24 (Accessible via subscription database HeinOnline and Freely accessibly

online through Mayer Brown website)

 Matthew D. Schwartz, Multiparty Disputes and Consolidated Arbitrations: An Oxymoron or the

Solution to a Continuing Dilemma, 22 Case W. Res. J. Int'l L. 341 (2015) 25 (Freely accessible

via ScholarlyCommons)

 Multi-Party Arbitrations – A Practical Guide26 by Kate Corby and Zelander Gray (Baker

McKenzie) (Freely accessible via global arbitration news)

 Problems Raised by Complex Arbitrations Involving Multiple Contracts - Parties - Issues

Journal of International Arbitration, Vol. 18, Issue 3 (June 2001), pp. 251-360

Hanotiau, Bernard (Accessible via subscription database Heinonline)

 Consolidation of Arbitration Proceedings27 by Timothy Froese and Sierra Bilyk (Accessible

freely via ADR Institute of Canada website)

 All Join in or Not - How Well Does International Arbitration Cater for Disputes involving

Multiple Parties or Related Claims28 (Accessible via subscription database KluwerArb)

 Indian Arbitration Law – Existing and Proposed29 by G.K. Kawatra and S.L. Khurana

(Accessible via Foreign Law Guide-Arbitration & Mediation)

C. Electronic Sources

24
Journal of The Dispute Resolution Section of the International Bar Association, Vol. 10, No. 1
25
Available at: http://scholarlycommons.law.case.edu/jil/vol22/iss2/10
26
https://globalarbitrationnews.com/multi-party-arbitrations-a-practical-guide-20150928/
27
http://adric.ca/adr-perspectives/consolidation-of-arbitration-proceedings/
28
“All join in” or not? How well does international arbitration cater for disputes involving multiple parties or related
claims?' (2009) 27 ASA Bulletin, Issue 1, pp. 3–25

29
Journal of International Arbitration 23, 3 (1995): 5

19
1. The ‘www.newyorkconvention.org’ website gives free access to information regarding the New

York Convention in general, its history, its interpretation and application by the courts, a

bibliography, and other relevant matters such as a "draft" for a revised Convention. However, it

must be noted that sources like UNCITRAL and ICC hold more authority. This website may be

referred to while conducting research as it provides easy-to-use tools to find case law on how the

courts have interpreted and applied the New York Convention's provisions. The tools consist of

Consolidated Lists and a Commentary.  This information is provided in association with

the International Council for Commercial Arbitration and kluwerarbitration.com.

2. KluwerArbitration.com is the world's leading online subscription resource for international

arbitration research. It contains a wealth of commentary from expert authors and an extensive

collection of primary source materials. As a subscriber, you gain access to exclusive materials

including ICC cases and awards. Most information is full-text, but in some cases only summaries

or citations are available.

20
3. Arbitration Law is a subscription database consisting a large collection of secondary sources on

international and domestic arbitration and dispute resolution published by Juris Net. Includes

many journals, monographs, practice guides and looseleaf publications in PDF format. The

content can be searched by keyword, jurisdiction, etc. or the titles can be browsed.

4. Trans-Lex.org contains a comprehensive digest of principles and rules of transnational

commercial law. The digest provides access to precedent-authorities needed to ascertain the

disputed meaning of key legal terms in transnational disputes and provides thousands of full text

references (arbitral awards, court decisions, law review articles, domestic laws, conventions,

model laws, international restatements etc.). Searching is available and all information is free of

charge.

5. Oxford Legal Research Library: International Commercial Arbitration

Collection includes treatises that cover key arbitral bodies and jurisdictions as well as key

reference works looking at specific areas of international arbitration practice.  All titles are

Oxford texts and treatises. Links to other Oxford databases, such as International Commercial

Law. 

6. WorldTradeLaw.net offers both a free resource library of current trade news and resources, as

well as a subscription service (the DSC Service), which provides summary and analysis of all

WTO reports and arbitrations; a current keyword index; a database of dispute settlement tables

and statistics; and a user-friendly search tool for WTO cases, legal texts, and other documents.

7. ICC Digital Library is a highly priced subscription database. The bulletin, supplement to bulletin,

dossiers, awards, doctrines, global developments, procedural decisions, statistical reports need

you to subscribe to the library. However, the commission reports and enforcement guide for 79

countries is freely available. An issue with the enforcement guide is that it isn’t frequently

21
 updated to take into account any change in domestic legislation.

8. Transnational Dispute Management is a global transnational dispute management portal

and it aims to provide updates on new developments, insights and comments, as well as

national legislation and case law. The primary focus is international commercial

arbitration. In particular, see the current newsletter (and complete archive) and the

"Knowledgebank" which provides access to primary materials.It is a subscription

database.

9. Full Text Sources

Some resources which are mostly used to find detailed analysis of any topic in a wide range of

areas are:

 WestlawNext : The International Commercial Arbitration subscription provides easy,

immediate access to global, regional and national legal materials covering approximately 170

22
 databases of commercial arbitration information, including cases, statutes, journals, law

reviews and more.Under all contents on homepage, choose the international material head to

explore arbitration related documents including cases, journals, treatises, court documents,

court documents. Moreover, you may choose practical law and opt for the international

arbitration head which has a variety of topics and resources on the diverse areas in

international arbitration.

 HeinOnline: HeinOnline is a subscription database which bridges the gap in historical

research by providing comprehensive coverage from inception of more than 2,500 law-

related periodicals. It has a vast range of International arbitration journals available from

1985 to 2018 and access to database of U.S. International Trade, U.S. Treaties and

Agreements Library, U.S. Treaties and Agreements Library, United Nations Law Collection

United Nations Law Collection, and World Treaty Library World Treaty Library. It includes

reports of international arbitration awards and judicial decisions.

 Legal Scholarship Network (LSN) helps you browse their e-library for free to find research

papers on relevant topics published in a wide range of journals.

23
 JSTOR : JSTOR is a highly selective subscription based digital library of academic content in

many formats and disciplines. The collections include top peer-reviewed scholarly journals as

well as respected literary journals, academic monographs, research reports from trusted

institutes, and primary sources.

24
  Lexis Advance Research: Lexis Advance is not the strongest resource for international law

research, but it does provide access to U.S. cases addressing international law issues, a lot of

articles covering international and comparative law, and a number of good secondary

sources. Steps to be followed to find a specific topic while conducting research

Step 1: Go to browse.

Step 2: Under topics, choose international law.

Step 3: Choose dispute resolution and under actions for dispute resolution, choose arbitration

and mediation.

Step 4: Opt for general overview.

IV. LOCATING PRIMARY RESOURCES

Primary legal sources include:

 Case law

25
 Legislation (as passed by state legislatures), 

 Treaties and Conventions

Major Sources of Pertinent Legal Instruments

A. Treaties, Agreements, Declarations and Resolutions

In the sphere of arbitration, there exist multilateral treaties and conventions that countries may

choose to be a party to and further ratify them. Further, Bilateral Investment Treaties(BITs)

generally govern investments and disputes arising from investments between two states or an

investor and state. These treaties draw out the dispute settlement clause which shall govern the

administration of arbitration, if so chosen by the parties. Access to the text of all treaties and

conventions is free, however access to further information may need subscription to database like

HeinOnline. The treaties can be found on United Nations Treaty Collection30 which helps access

information and text of multilateral treaties deposited with the Secretary General, World Treaty

Library31 via HeinOnline, United Nations Treaty Series Index via HeinOnline, official gazettes of

countries, department of state websites, and the Flare Index to Treaties which helps conduct free

text search and status of treaties. The researcher might need to use more than one source for

research on the legal citation, status, reservations, declaration, legislative history, and

commentary.

30
https://treaties.un.org/Pages/ParticipationStatus.aspx?clang=_en
31
https://heinonline-org.libproxy.berkeley.edu/HOL/Index?collection=weaties

26
 To be more specific, the major conventions which transformed arbitration are:

 New York Convention, or the United Nations Convention on the Recognition and Enforcement

of Foreign Arbitral Awards, in 1958

 European Convention on International Commercial Arbitration,1961

 International Center for the Settlement of Investment Disputes (“ICSID”) Convention or

“Washington Convention”, 1965

 Inter-American Convention on International Commercial Arbitration or the “Panama

Convention,1975.

B. Arbitration Rules

Rules of Arbitration are used all around the world to resolve disputes. They define and regulate

the management of cases submitted for administration under any specific center’s rules.

These rules assure parties of a neutral framework for the resolution of cross-border disputes. The

only resource to compile an extensive array of commentary and analysis on rules by international

arbitral institutions, written by leading arbitration authorities along with the full text of each set

27
of rules is ‘Arbitration Rules: International Institutions-Third Edition’32 which is available in

print and accessible electronically via the subscription database Arbitration Law published by

Juris Net. 33

The rules promulgated by several institutes can be found on the organization websites. The

relevant institutes are International Chamber of Commerce, International Court of Arbitration,

Permanent Court of Arbitration, London Court of International Arbitration, World Intellectual

Property Organization, International Centre for Settlement of Investment Disputes, World Trade

Organization, American Arbitration Association, National Arbitration Forum, Chamber of

Arbitration of Milan, Inter-American Commercial Arbitration Commission, Australian Centre

for International Commercial Arbitration, CPR: International Institute for Conflict Prevention

and Resolution, CIETAC: China International Economic and Trade Arbitration Commission ,

CAMCA: Commercial Arbitration and Mediation Center of the Americas , European Center for

Arbitration and Mediation, OHADA: Organization for the Harmonization of Business Law in

Africa, Hong Kong International Arbitration Centre, NAFTA private dispute resolution, OSCE

Court of Conciliation and Arbitration, Singapore International Arbitration Centre, ICANN:

Internet Corporation for Assigned Names and Numbers, Dispute Resolution Options, Court of

Arbitration for Sport, EHF Court of Arbitration (European Handball Federation).

A comparison between clauses in different arbitral rules can be easily drawn out on KluwerArb

under its practice tools. For instance, a comparison of joinder and consolidation provisions may

be conveniently processed using that tool.

International Joinder Provision Consolidation Provision

32
Authors: Loukas Mistelis, Laurence Shore, John Ribeiro, Editors; Hans Smit, Founding Editor

33
http://www.jurispub.com/Arbitration-Rules-International-Institutions-Third-Edition-PDF-eBook.html

28
Rules

Art 22.1(ix) and 22.1(x) – subject to approval

by LCIA where:(i) all the parties consent; or(ii)

Art 22.1(viii) – only on multiple LCIA arbitrations have been

LCIA Rules application by a party and commenced under the same/compatible

2014 requires the consent of the arbitration agreement(s) between the same

applicant and the new party. parties; and no tribunal has been appointed or

the tribunal appointed is composed of the same

arbitrators.

Art 10 – on request by a party, the tribunal can

consolidate pending ICC arbitrations where:(i)

Art 7.1 – on request by a party
the parties agree; or(ii) all claims are made
ICC Rules and only permitted prior to the
under the same arbitration agreement; or
2012 confirmation/appointment of
(iii) it is with the same parties, in connection
any arbitrator.
with the same legal relationship, and the ICC

finds the arbitration agreements compatible.

29
 Apart from this tool, one can refer to Comparison of International Arbitration Rules34 by

Simpson Thacher & Bartlett LLP to contextualize the assigned regulations and is accessible both

in print and electronically on the subscription database arbitrationlaw.com published by Juris

Net35. Next, consult the website of the particular institution which you are researching (i.e.

ICC36,ICSID37 etc).

C. Cases and Judicial Opinions

Since not all arbitral awards are published in the public domain, it might be hard to find specific

awards. However, court proceedings for any suits filed related to the enforcement of arbitral

awards or challenge to awards may not be confidential and can be easily located.

 ICC Dispute Resolution Library

This International Chamber of Commerce database includes extracts from selected arbitral

awards issued in proceedings administered by the ICC's International Court of Arbitration from

1990 onward. The access to awards needs a subscription to this resource. The extracts are

arranged by ICC case number.  Descriptions of the parties are provided, but their names are

omitted.  Click on "Awards" to browse by subject or on "Bulletins" to browse chronologically. 

Or search by keyword.

34
Freely available on google books : https://books.google.com/books?
hl=en&lr=&id=bMDNAwAAQBAJ&oi=fnd&pg=PA99&dq=Comparison+of+International+Arbitration+Rules&ots
=eZE35e6Re8&sig=g28ZjXf7Nvkvz5SxURAh4qoxr_Q#v=onepage&q=Comparison%20of%20International
%20Arbitration%20Rules&f=false
35
https://arbitrationlaw-com.libproxy.berkeley.edu/books/comparison-international-arbitration-rules-fourth-edition
36
https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/
37
https://icsid.worldbank.org/en/Pages/icsiddocs/ICSID-Convention-Arbitration-Rules.aspx

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 Kluwer Arbitration

Kluwer Arbitration provides selective coverage of arbitral awards and court decisions on

matters of law pertaining to international commercial arbitration, including arbitrability, validity,

annulment, and enforcement.  It is a subscription database and It also offers a separate tool that

can be used to search or browse for court decisions concerning the enforcement of awards under

the New York Convention.

New York Convention Decisions Tool

To access the tool, click on the link on the rights side of the homepage.  Enter keywords to

search.  Use the filters to limit searches by article of the New York Convention, by topic, by

jurisdiction, by court or by time period.  Note that court decisions retrieved by the tool are

limited to those published in the Yearbook Commercial Arbitration.

 Transnational Dispute Management (TDM)

To access arbitral awards and court decisions, click on the "Legal and Regulatory Docs" tab on

the main menu.  On the following page, click on the "Search" button.  Then scroll down to access

the Advanced Search template.  Select "International Commercial Arbitration Awards" or

"Cases" as the Category. You may limit searches by date and by country. It is a subscription

database.

 Westlaw is a subscription database which offers the following resources:  

International Arbitration Awards

This database has arbitral decisions awards issued under the rules of several major arbitral

institutions, including the ICC, the LCIA, and the PCA.  Coverage is selective, and the dates of

31
 coverage vary by arbitral institution. The database also includes decisions and awards issued in

investor-state disputes and in certain types of trade disputes.

Arbitral Awards & Court Decisions 

To search by keyword, click on the white triangle to the left of the search box and select

"Awards" or "Court Decisions" as the Content Type. Click on "Advanced Options" to limit your

search by court, by arbitral institution, by party name or by date, if desired. 

 Case Law on UNCITRAL Texts (CLOUT): Based on a decision by the United Nations

Commission on International Trade Law (“UNCITRAL”) at its twenty-first session in 1988,1 the

Secretariat has established a system for collecting and disseminating information on court

decisions and arbitral awards relating to Conventions and Model Laws that have emanated from

the work of the Commission. It is a freely accessible source but doesn’t publish case laws for all

countries.

 International Arbitration Case Law (IACL): It is a private, freely accessible, not-for-profit

academic endeavor which aims at disseminating important decisions relevant to legal

practitioners and scholars in the field of international arbitration and dispute resolution. Its

objective is to summarize, edit, and coordinate the publication of decisions rendered by arbitral

tribunals, international tribunals and national courts in matters of international arbitration and

related legal issues; at the early stage of this project the main focus will be on international

investment arbitration.

32
 Investor-state law guide

Another extremely helpful subscription database is this guide. Investor-State LawGuide enables

you to utilize a methodical approach when researching investment treaty arbitration

jurisprudence and provides an efficient means to improve the comprehensiveness of your

research. The picture below represents the wide range of functions that this database enables one

to perform.

You can search the topic as by subject which is available in an alphabetical order or search by

specific issues and subjects. Taking an example for consolidating investor-state disputes, search

‘j’ to look up joinder of claims under two BITs and two sets of arbitral rules (ICSID and

UNCITRAL).

33
 International Centre for Settlement of Investment Disputes (ICSID)38: The organization

maintains a freely accessible case law database identifiable by exhaustive procedural and

substantive topics. 

 International Courts Data39: This web-site provides a portal for students and scholars

interested in the empirical study of international courts.  Most importantly, the site provides

access to datasets collected by various scholars. This includes data on compliance, judicial

dissents, biographical information on judges, case-law citations, background information on

judgments, sentencing by criminal courts, reservations made by states to the jurisdiction of

courts, and so on. Even though the source is freely accessible, it links the researcher to some

sources which need subscription.

38
https://icsid.worldbank.org/en/Pages/cases/AdvancedSearch.aspx
39
http://faculty.georgetown.edu/ev42/ICdata_files/Page550.htm

34
 World Arbitration Reporter to research the history and development of international

arbitration in the assigned nation. This resource also provides translations of major domestic

legislation with accompanying commentary. It is a Six Volume, nearly 8,000 page highly

respected treatise and detailed reference work which provides unparalleled guidance to one of

today's most complex and diverse areas of legal practice, international arbitration. It provides

arbitration users, practitioners and scholars a true encyclopedia of international arbitration law

and practice. It is available in print and accessible via a subscription database arbitration law

database published by Juris Net.

TRANSLATING NATIONAL LEGISLATION AND CASE LAWS

Another challenge faced during conducting the research could be to find national laws and case

law only in their native language. To overcome this hurdle, you can refer to translation tools

available on subscription and free usage. Some databases may contain full translations,

summaries or citations. For example, to search translations in journal articles on Westlaw, prefix

the author and journal name with the operator ‘TRANSLAT! /S (APPENDI! ANNEX)’.

Some other reliable sources for translated versions of laws/ and case law would be:

1. KluwerArb40

2. ArbitrationLaw.com41

3. Foreign Law Guide

4. Investment Laws of the World (1972-present) Contains the text - in English, French, or

Spanish - of investment laws and regulations for over 170 countries providing the best

coverage

40
http://www.kluwerarbitration.com.libproxy.berkeley.edu/
41
https://arbitrationlaw-com.libproxy.berkeley.edu/

35
 5. The World Arbitration Reporter: International Encyclopaedia of Arbitration Law and

Practice (2010-present).

6. Library of Congress(LOC)42 : Provides translation of national legislations in English.

However, it is only for 10-12 countries and not exhaustive.

V. CONCLUSION

A. Availability/Usefulness of Sources

There is no dearth of the number of resources available to conduct research on arbitration topics.

The most useful electronic sources in my research were kluwerarbitration.com and westlaw.com.

It must be kept in mind to narrow down your topic by first carrying out a preliminary research.

The narrowing down helps you to focus on specific aspects in your research rather than being

lost in the source. It is also important to check various resources for additional information or

analysis and not restrict oneself to the resource which in your opinion provides you the

information you need. There are always developments which are recorded in different resources

earlier than the other, and hence one must be mindful of that fact.

B. Unmet Research Needs

The difficulty I faced in my research was mostly gaining information about the developments

which are not in public domain yet. As a wide majority of arbitral proceedings and awards are

chosen to be kept confidential by the parties, it may be difficult to find exhaustive data and

accurate statistics. For instance, during my discussions with a well-known practitioner, I learnt

about the first consolidation of proceedings being carried out by ICDR, however, the proceeding

or award are not searchable as they were required to be confidential. The developments on
42
http://www.loc.gov/law/find/pdfs/2012-007612_RPT_website.pdf

36
 SIAC’s proposal on consolidation of arbitral proceedings under different institutional rules have

not been published yet as they are still in the process of drafting the rules taking into account

feedback.

VI. ADDITIONAL ADVICE

Search for books and articles on your topic using library catalogs, indexes and other databases.

Make note of the bibliographic information and the relevant pages so as to use it in your further

research. Note any citations to international and foreign laws, including case law. Note other

references to other articles, books, and other materials and consult these sources as well.

International law exists in the world of international politics. Consult newspapers and other non-

legal sources to get context, and current and future developments in international arbitration law

both on institutional and national levels. Always make sure the webpage or database you consult

has data up to date or recently modified. Since the legal sphere is one which is constantly

developing and nothing remains static, it is important to make sure your research does not

provide obsolete or material not applicable any more. It is also advisable to always use the

‘advanced search’ to get a more specific result out of your search.

In topics of research in arbitration, especially in the up and coming areas, it always helps to refer

to freely accessibly blogs and newsletters, e.g. Kluwer Arbitration Blog43, italaw newsletters44,

International Economic Law and Policy Blog45 as well as to discuss with seasoned practitioners.

In my research, I attended various conferences and received answers or perspectives to a lot of

aspects of my research which I further incorporated in formulating a better research strategy and
43
http://arbitrationblog.kluwerarbitration.com/
44
https://www.italaw.com/newsletters
45
http://worldtradelaw.typepad.com/ielpblog/

37
an in-depth analysis. Moreover, the major authorities in International Arbitration have YouTube

videos, interviews and conferences which could be a good source of information or a way to gain

knowledge about the new developments to incorporate in your research.

38