Textbook Kabir Duggal - International Arbitration - USP

International Arbitration
Syllabus
University of São Paulo School of Law (“USP”)
Profs. Garro and Duggal (Columbia Law School) with Profs. Yarshell, Carmona, and Forgioni
CORE READING FOR THE COURSE: Gary Born, International Arbitration: Law and Practice
(Third Edition) (Kluwer Arbitration 2021) (“Born”). Specific sections in Born are identified for each
course session as applicable, and other readings are also identified for certain sessions. We
would encourage you to skim through the readings in advance of the classes as it will help the
classroom discussions.
Week 1: August 7 to August 10 (Prof. Duggal)

Introduction to Arbitration: The Players and the Process
Monday, August 7, 2023: Introduction to International Arbitration and the Arbitration Agreement
• Introduction to international arbitration

• Array of applicable laws in international arbitration
• The Arbitration Agreement
• Doctrine of Separability and Kompetenz-Kompetenz
• Pathological clauses
Core Readings: Born, Chapters 1 and 3. PDF - pages 3 to 47
Tuesday, August 8, 2023: Appointment and Challenges of Arbitrators
• Appointment of arbitrators
• Challenges of arbitrators: Standard
• Challenges of arbitrators: Procedure
• Ethical issues for arbitrators
• Soft law instrument: IBA Guidelines on Conflict of Interests
• Case law to see how tribunals have decided challenges
Core Readings: Born, Chapter 7. PDF - pages 49 to 70
Wednesday, August 9, 2023: The Arbitral Process and Evidentiary Framework
• The arbitral lifecycle

• The preliminary conference
• The written submissions and the hearing
• The evidentiary framework
• Soft law instruments: IBA Rules on the Taking of Evidence
Core Readings: Born, Chapters 8-9. PDF - pages 72 to 105
Thursday, August 10, 2023: Non-Signatories, Multi-Party Issues, and Motions Practice
• Non signatories and Multi-Party Issues

• Provisional Measures
• Emergency Arbitration
Core Readings: Born, Chapters 5, 12, and 11. PDF - pages 107 to 135
INTERNATIONAL ARBITRATION – USP
Monday, August 7, 2023: Introduction to International Arbitration and the Arbitration Agreement
• Introduction to international arbitration

• Array of applicable laws in international arbitration
• The Arbitration Agreement
• Doctrine of Separability and Kompetenz-Kompetenz
• Pathological clauses
Core Readings: Born, Chapters 1 and 3
PDF - pages 3 to 47
KluwerArbitration
Document information Chapter 1: Introduction to International Arbitration

International arbitration provides an efficient and effective means of resolving
international disputes – including international commercial, investment and state-to-
Publication state disputes. This Chapter summarizes the legal framework for international
International Arbitration: commercial arbitration, which is addressed in Chapters 2 through 17. It also introduces
Law and Practice (Third investor-state arbitration and state-to-state arbitration, which are discussed in Chapter
Edition) 18.
§1.01 DEFINITION OF INTERNATIONAL ARBITRATION

Bibliographic As discussed below, the United Nations Convention on the Recognition and Enforcement
reference of Foreign Arbitral Awards (“New York Convention”) and most national arbitration statutes
'Chapter 1: Introduction to prescribe an effective “pro-arbitration” regime that ensures the enforceability of
International Arbitration', international arbitration agreements and awards. In general, this legal regime applies
in Gary B. Born , only if the parties have entered into an agreement to resolve their disputes by
International Arbitration: “international arbitration” – as opposed to an agreement for some other form of dispute
Law and Practice (Third resolution (such as expert determination or mediation).
Edition), 3rd edition There is a surprising lack of guidance as to what constitutes an “arbitration agreement.”
(© Kluwer Law Article II(1) of the New York Convention refers to an agreement to arbitrate as “an
International; Kluwer Law agreement in writing under which the parties undertake to submit to arbitration all or any
International 2021) pp. 1 - differences which have arisen or which may arise between them in respect of a defined legal
50 relationship, whether contractual or not.” Similarly, Article 7(1) of the United Nations
Commission on International Trade Law Model Law on International Commercial
Arbitration (“UNCITRAL Model Law”) provides that “[a]n ‘arbitration agreement’ is an
agreement by the parties to submit to arbitration all or certain disputes which have arisen
or which may arise between them in respect of a defined legal relationship, whether
contractual or not.”
These definitions are only minimally useful. They make clear that an arbitration
agreement involves a contractual relationship between parties; that this agreement
deals with disputes, either future or existing; and that these disputes will be submitted
to and resolved by “arbitration.” At the same time, these definitions provide little
guidance in determining precisely what constitutes an “arbitration” agreement, as
distinguished from an agreement concerning other forms of dispute resolution. This has
left national courts, arbitral tribunals and commentators with the task of defining what
P 2 constitutes “arbitration.”
[A] What Is “Arbitration”?

Preliminarily, the label adopted by the parties for a dispute resolution mechanism is not
decisive in defining the true character of that mechanism. (1) Parties are free to call a
forum selection clause or an expert determination mechanism an “agreement to
arbitrate,” but this (mis)label does not alter the mechanism’s true nature. (2) It is still
necessary to examine the substance of a dispute resolution provision to determine,
objectively, whether it constitutes an agreement to arbitrate under applicable law.
Nonetheless, as a practical matter, if the parties’ agreement provides for something
labeled “arbitration,” it is likely that this will be categorized as an arbitration agreement.
There is general agreement on what the term “arbitration” means. With some variations,
virtually all authorities accept that arbitration is – and only is – a process by which
parties consensually submit a dispute to a non-governmental decision-maker, selected
by or for the parties, who renders a binding decision finally resolving that dispute in
accordance with neutral, adjudicative procedures affording the parties an opportunity to
be heard. Most authorities have adopted similar definitions:
“Consistent with the traditional notion of private arbitration, one may define [the
arbitration clause] as an agreement according to which two or more specific or
determinable parties agree in a binding way to submit one or several existing or future
disputes to an arbitral tribunal, to the exclusion of the original competence of state
courts and subject to a (directly or indirectly) determinable legal system.” (3)
“a contractual method of resolving disputes. By their contract the parties agree to entrust
the differences between them to the decision of an arbitrator or panel of arbitrators, to
the exclusion of the Courts, and they bind themselves to accept that decision, once
made, whether or not they think it right.” (4)
“An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of
forum-selection clause that posits not only the situs of suit but also the procedure to be
used in resolving the dispute.” (5)
P 3 Each of the various elements of these definitions of arbitration is important.
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[1] Consensual Means to Resolve Disputes
It is elementary that “arbitration” is a consensual process that requires the agreement of
the parties. Article II of the New York Convention applies only to an “agreement … under
which the parties undertake to submit to arbitration,” while Article 8 of the UNCITRAL
Model Law applies only where there is “an agreement by the parties to submit to
arbitration all or certain disputes.” Similarly, national courts uniformly hold that
“arbitration is a creature that owes its existence to the will of the parties alone,” (6) and
that “[a]rbitration is strictly ‘a matter of consent’ … and thus ‘is a way to resolve those
disputes – but only those disputes – that the parties have agreed to submit to
arbitration.” (7)
[2] Non-Governmental Decision-Maker Selected by or for Parties
Another fundamental attribute of “arbitration” is that it involves the submission of
disputes to a non-governmental decision-maker selected by or for the parties. A defining
characteristic of arbitration is the selection of particular “arbitrators” to resolve a
dispute or defined category of disputes; typically, arbitrators are chosen by the parties
themselves or, in the absence of agreement by the parties, by an arbitral institution
chosen by the parties. (8) In contrast, “arbitration” does not extend to forum selection
agreements, where parties agree to submit their disputes to a specified national court.
(9)
[3] Final and Binding Decision
A third defining characteristic of arbitration is that it produces a binding award that
decides the parties’ dispute in a final manner, subject only to limited grounds for
challenge in national courts. Arbitration does not produce a non-binding, advisory
recommendation, which the parties are free to accept or reject; it also is not merely a
process of negotiation, during which the parties are free to agree (or not) to settle their
P 4 disputes. Instead, arbitration results in a final and binding decision by a third-party
decision-maker – the arbitrator – that can be coercively enforced against the
unsuccessful party or its assets. (10)
[4] Use of Adjudicatory Procedures
Finally, another defining characteristic of “arbitration” is the use of impartial
adjudicative procedures which afford each party the opportunity to present its case.
Forms of dispute resolution that do not provide parties the opportunity to present their
views (such as in valuation, where the decision-maker proceeds with an independent
investigation) do not generally constitute arbitration. (11) Similarly, contractual
provisions that give one party the right to unilaterally decide a particular issue do not
constitute arbitration.
[B] Forum Selection Clauses and National Courts

In practice, international contracts frequently contain “forum selection” or “choice of
court” agreements. These provisions provide either that (a) specified disputes may be
resolved in a specified court, without excluding litigation in other forums (so-called
“jurisdiction” or “prorogation” agreements); or (b) specified disputes must be resolved
exclusively in the specified courts (so-called “exclusive jurisdiction” or “derogation”
agreements). A forum selection clause is not an arbitration agreement, and vice versa:
this is because a forum selection clause provides for resolution of disputes by litigation
in a national court, not by arbitration before a non-governmental arbitrator selected by
or for the parties. (12)
Exclusive Forum Selection Clause:
“The courts of ________ shall have exclusive jurisdiction over all disputes relating to this
P 5 Agreement.”
Non-Exclusive Forum Selection Clause:
“The parties submit to the non-exclusive jurisdiction of the courts of ________ for any
disputes relating to this Agreement.”
Forum selection agreements do not benefit from the protections of the “pro-arbitration”
legal regime established by the New York Convention and contemporary arbitration
legislation. Instead, forum selection agreements are typically subject to national law (or
regional regimes such as the Brussels Regulation in the European Union). The Hague
Convention on Choice of Court Agreements, adopted in 2005, may in the future provide
international standards for enforcing exclusive forum selection agreements. At present,
however, only a limited number of states have ratified the Convention; although the
Convention entered into force in 2015, prospects for its successful implementation
remain unclear. (13)
[C] Other Forms of Alternative Dispute Resolution

Arbitration is only one of many forms of alternative dispute resolution (“ADR”) (i.e.,
mechanisms for resolution of disputes outside of national courts). Other forms of ADR,
which are not “arbitration,” adopt a variety of procedural mechanisms, aimed at different
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types of problems and parties.
[1] Mediation and Conciliation
Arbitration agreements differ fundamentally from agreements for “conciliation,”
“mediation,” early neutral evaluation and the like. These procedures do not provide for a
binding decision to be imposed on the parties; rather, they provide for a non-binding
process that may (or may not) assist the parties in reaching a consensual settlement. (14)
The mediator or conciliator is not empowered to decide the parties’ dispute, but simply
to discuss and negotiate with the parties in an effort to persuade them to reach a
mutually-agreeable resolution of their dispute. This does not constitute “arbitration”
because it does not produce a final third-party decision that resolves the parties’
dispute.
Many leading arbitral institutions have adopted rules of conciliation or mediation. These
include the ICC, AAA, ICDR, ICSID and WIPO. In some jurisdictions, separate legislation has
also been adopted to govern mediation, conciliation and other forms of ADR. (15) These
P 6 legislative regimes differ from those governing international arbitration agreements
and awards (most notably, they lack any provision for the enforcement of third-party
decisions).
[2] Expert Determination
Commercial contracts may also contain provisions for the resolution of certain categories
of disputes by an “expert” selected by or for the parties and authorized to render a
binding decision on an issue. (16) Such provisions can involve accounting (or other
financial) calculations by an accountant; quality assessment by an industry expert; oil
and gas reserve estimates by a geologist; or construction evaluations by an architect or
engineer.
In many national legal systems, an important distinction is drawn between “arbitration”
and binding “expert determination,” “appraisal” or “valuation.” (17) The latter do not
necessarily require the use of adjudicative procedures, which is a defining feature of
arbitration, but instead entail only the decision-maker’s own investigations and use of
existing expertise. Moreover, expert determinations frequently involve narrowly-defined
and circumscribed factual or technical issues, unlike arbitral proceedings, which seek to
resolve broader legal disputes between the parties (e.g., whether a contract or statutory
protection has been breached and what consequences flow from that breach). (18)
[3] Mini-Trials and Neutral Evaluation
Parties sometimes seek to resolve disputes through “mini-trials,” which typically involve
relatively brief presentations of each party’s case to a “judge” or panel of “judges,” who
are authorized to make an advisory decision or otherwise encourage settlement. Like
mediation, the decisions in mini-trials are usually non-binding. Neutral evaluation
involves a similar process, in which a third party hears the parties’ presentations, on
either their dispute or selected issues, and provides a neutral assessment of the
P 7 strengths and weaknesses of each party’s position.
[4] “Baseball” or “Final-Offer” Arbitration

Some forms of ADR narrowly limit the decision-maker’s authority to decide the parties’
dispute. So-called “baseball” arbitration refers to a process where, at the conclusion of
the parties’ submissions, each side provides its “final offer” (or “best offer”) to the
tribunal in a sealed envelope. (19) The tribunal is then authorized only to select one or
the other party’s “offer” to resolve the dispute, rather than making an independent
determination of the “correct” resolution under applicable law. Alternatively, in
“high/low arbitration,” the parties agree on the minimum and maximum amounts that
the arbitrator can award.
[D] “International” Arbitration

The New York Convention (like other international arbitration conventions) applies only
to arbitration agreements that have some “foreign” or “international” element, and not to
purely domestic agreements. (20) The same is true under many national legal regimes,
where “international” or “foreign” arbitration agreements are often subject to legislative
and/or judicial regimes distinct from those applicable to domestic arbitration
agreements. That is true, for example, under the UNCITRAL Model Law, which is limited by
Article 1(3) to “international” matters. (21) In these jurisdictions, domestic arbitration
agreements, arbitral proceedings and awards are often subject to separate, non-
international legal regimes. (22) This is consistent with the purpose of the Convention and
the Model Law, which is to facilitate the international arbitral process, without disturbing
P 8 regulation of domestic arbitration matters.
§1.02 REASONS FOR INTERNATIONAL ARBITRATION

Arbitration is widely regarded as the preferred means of resolving international
commercial disputes. That is true for a number of reasons. In summary, international
arbitration provides a neutral, speedy and expert dispute resolution process, largely
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subject to the parties’ control, in a single, centralized forum, with internationally-
enforceable dispute resolution agreements and decisions. While far from perfect,
international arbitration is rightly regarded as suffering fewer ills than litigation of
international disputes in national courts and as affording parties more practical, efficient
and neutral dispute resolution than available in other forums.
Reasons for International Arbitration
(1) Efficiency and Expedition
(2) Even-handedness
(3) Expertise
(4) Enforceability of Agreements and Awards
(5) Finality of Decisions
(6) Party Autonomy and Procedural Flexibility
(7) Confidentiality or Privacy of Dispute Resolution
(8) Arbitration Involving States and State-Entities
[A] Efficiency and Expedition

It has long been said that arbitration offers a cheaper, quicker means of dispute
resolution than litigation. (23) At the same time, it has become fashionable, at least in
P 9 some circles, to describe arbitration as a slower, costlier alternative. (24) In reality, in
some cases, both international arbitration and international litigation can involve
significant expense and delay, and it is wrong to make sweeping generalizations about
which mechanism is necessarily quicker or cheaper.
Although arbitration is sometimes lauded for its speed and cost-effectiveness, it can
sometimes be an expensive process. This is particularly true in major international
disputes, which may involve longer written submissions, more extensive factual and
expert evidence, and lengthier hearings than international litigation – in part because, in
complex matters, parties often affirmatively want extensive, thorough proceedings.
Moreover, in international arbitration, the parties are required (subject to later
allocation of costs by the tribunal) to pay the fees of the arbitrator(s) and, usually, an
arbitral institution. The parties will also have to pay for renting hearing rooms, travel to
the arbitral situs, lodging and the like.
Nonetheless, in actual practice, the expenses of arbitration will usually pale in
comparison with the costs associated with parallel or multiplicitous proceedings in
national courts. This can be the case where the parties have not agreed upon an exclusive
forum selection clause, or where such a clause is held unenforceable or inapplicable.
Likewise, the expenses of arbitration will typically not approach those associated with
relitigating factual issues in national trial and appellate courts. In addition, arbitration is
less likely to involve costly, scorched-earth discovery or prolonged disputes over service,
evidentiary matters, immunity and other litigation formalities.
International commercial arbitration is also not always speedy. Outside of some
specialized contexts, major commercial disputes can require between 18 and 36 months
to reach a final award, albeit with possibilities for summary dispositions. Procedural
mishaps, challenges to arbitrators and jurisdictional disputes can delay these
timetables, as can crowded diaries of busy arbitrators and counsel. It is possible to
expedite the proceedings, through drafting a “fast-track” arbitration clause or adroit
arbitrator selection and procedural planning, but there are limits to how quickly a major
commercial arbitration realistically can be resolved.
Nonetheless, in many jurisdictions, national court proceedings are also subject to
significant delays. Judicial dockets in many countries are over-burdened and obtaining a
trial date and final decision may take years. Further, as already noted, arbitration rarely
involves the delays inherent in appellate proceedings and the risk that new trial
proceedings will be required.
On balance, international arbitration does not necessarily have dramatic speed and cost
advantages as compared to national court proceedings. Broadly speaking, the absence of
appellate review means that arbitration is usually less slow and less expensive than
litigation – and preferable, in part, for that reason. Nonetheless, there will clearly be
exceptions to this generalization in particular cases, where arbitrators are unusually slow
or particular national courts are especially fast.
Another related objective of international arbitration is to avoid the jurisdictional
disputes, choice-of-law debates and multiplicitous litigation in different national courts
P 10 that attend international litigation. (25) Instead, international arbitration offers a
centralized dispute resolution in a single contractually selected forum. As the U.S.
Supreme Court has put it:
“Much uncertainty and possibly great inconvenience to both parties could
arise if a suit could be maintained in any jurisdiction [where jurisdiction could
be established]. The elimination of all such uncertainties by agreeing in
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advance on a forum acceptable to both parties is an indispensable element in
international trade, commerce and contracting.” (26)
Empirical findings are to the same effect. (27) At the same time, in cases of
pathologically-drafted arbitration agreements, disputes over the validity or scope of the
agreement can lead to uncertainty and expense rivaling that in international litigation –
illustrating the importance of well-negotiated and drafted international arbitration
agreements.
[B] Even-Handedness
One of the central objectives of international arbitration agreements is to provide a
neutral forum for dispute resolution, detached from the parties and their respective
home-state governments. (28) Parties often begin to negotiate dispute resolution
mechanisms with the objective of ensuring that disputes are resolved in the forum they
perceive to be the most favorable to them – often the local courts in that party’s
principal place of business. These courts will be convenient and familiar to the home-
town party; they will also probably be inconvenient and unfamiliar to the counter-party.
However, the characteristics that make one party’s local courts attractive to it will often
make them unacceptable to counter-parties. As a consequence, outside of lending and
similar transactions, it is often impossible for either party to obtain agreement to
dispute resolution in its local courts.
In these circumstances, the reaction is almost always to seek agreement on a suitable
neutral forum – a forum for dispute resolution that does not favor either party, but
affords each the opportunity to present its case to an objective and impartial tribunal.
The result, in most instances, is an agreement to arbitrate (or, less frequently, litigate) in
P 11 a neutral forum. (29) For example, a French and a Mexican company may agree to
arbitrate their disputes in Miami, Spain or England, while a U.S. and a Japanese or
German company might agree to dispute resolution in Switzerland, Canada or Singapore.
Put simply, a party typically does not agree to arbitrate because arbitration is the most
favorable possible forum, but because it is the least unfavorable forum that the party can
obtain in arm’s length negotiations.
[C] Commercial Competence and Expertise

Another essential objective of international arbitration is to provide a competent, expert
dispute resolution process. Arbitration was historically favored by users because it
offered a more expert, experienced means of resolving commercial disputes. (30) This
continues to be the case today, with empirical studies emphasizing the importance of
arbitrators’ commercial expertise in decisions to make use of international arbitration.
(31) In a survey of users, one respondent summarized the issue as follows:
“for a French party, the big advantage is that international commercial
arbitration offers ‘de luxe justice’ … instead of having a $600 million dispute
before the Commercial Court in Paris, where each party has only one hour for
pleading and where you can’t present witnesses and have no discovery; for a
dispute of that importance it may well be worth the costs to get a type of
justice that is more international and more ‘luxurious’; what you get is more
extensive and thorough examination of witness testimony.” (32)
Similarly, in the words of the former President of the French Cour de cassation, explaining
why he admired arbitration: “in many fields you are more professional than we are.” (33)
It is a harsh, but undeniable, fact that many national court systems are ill-equipped to
resolve international commercial disputes. In many states, local courts have little
experience in resolving complex international disputes and face serious challenges in
reliably resolving commercial disputes. Moreover, in some states, basic standards of
judicial integrity, competence and independence are lacking.
Of course, some national judiciaries include talented judges with considerable
international experience. The courts of England, Singapore, Switzerland, New York, Japan
and a few other jurisdictions are able to resolve complex transnational disputes with a
P 12 fairly high degree of reliability. Nevertheless, even in these jurisdictions, local
practices (like the jury trial or split legal profession) may obstruct efficient and objective
dispute resolution. Moreover, in most legal traditions, judges are randomly assigned to
cases, regardless of their experience. Judges are also ordinarily generalists, often without
specialization in complex commercial matters, much less a particular type of transaction
(e.g., M&A, joint ventures) or industry (e.g., oil and gas, insurance).
In contrast, in international arbitration, the parties are able to participate in the
selection of the arbitral tribunal for their dispute. This aspect of the arbitral process is
intended to enable the parties – who have the most intimate knowledge of their
disagreements and the greatest incentive to choose a capable tribunal – to select
arbitrators with the best experience, abilities and availability for their dispute (as
discussed below). Moreover, in most substantial international arbitrations, tribunals
consist of three members (rather than a single trial judge), permitting a mix of legal and
technical experience, as well as extra sets of eyes.
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[D] Enforceability of Agreements and Awards
One of the objectives of contemporary legal regimes for international arbitration is
facilitating the enforcement of arbitration agreements and awards. In particular, both
international arbitration conventions (particularly, the New York Convention, with 168
Contracting States) and arbitration legislation (particularly, the UNCITRAL Model Law)
ensure that international arbitration agreements are more readily, expeditiously
enforced and more broadly interpreted than forum selection clauses. (34) This is
consistently cited as a key benefit of international arbitration. (35)
In contrast, there are only a few regional arrangements that seek to establish effective
international enforcement regimes for forum selection clauses. The most notable is the
Brussels I Regulation in the European Union, which provides for the enforceability of
forum selection agreements designating an EU Member State’s courts, subject to only
limited exceptions. (36) There are also a few industry specific arrangements providing
enforcement mechanisms for international forum selection clauses (such as treaties
governing carriage of goods by sea). (37) In general, however, forum selection agreements
do not benefit from anything comparable to the enforcement mechanism of the New York
P 13 Convention.
Like agreements to arbitrate, international arbitral awards enjoy the protection of the
New York Convention, as well as favorable arbitration legislation in many countries. As
discussed below, these instruments provide a “pro-enforcement” regime, with expedited
recognition procedures and only limited grounds for denying recognition to an arbitral
award. (38)
In contrast, there are again only a few regional arrangements for the enforcement of
foreign court judgments (in particular, the Brussels Regulation), and there is currently no
global counterpart to the New York Convention for foreign judgments. Some major trading
states, including the United States, are party to no bilateral or multilateral agreement on
the enforceability of foreign judgments. In the absence of international treaties, the
recognition of foreign judgments is subject to local law, which often makes it difficult, if
not impossible, to effectively enforce them. (39) As a consequence, there is generally a
significantly greater likelihood that an arbitral award will be enforced abroad (and
thereby conclude the parties’ dispute) than a foreign judgment. Together with the
comparatively greater enforceability of arbitration agreements, the more reliable
enforceability of arbitral awards is one of the basic objectives, and attractions, of
international arbitration.
[E] Finality of Decisions

Another salient feature of international arbitration is the absence, in most cases, of
extensive appellate review of arbitral awards. Judicial review of awards in most
developed countries is narrowly confined to issues of jurisdiction, procedural fairness
and public policy, and highly deferential to the arbitrators’ substantive decisions (as
discussed below). This contrasts markedly with the availability of appellate review of first
instance judgments in national courts, where national laws allow either de novo or fairly
searching review of legal, and often factual, matters.
There are both advantages and disadvantages to the general unavailability of appellate
review of awards. Dispensing with appellate review significantly reduces litigation costs
and delays (particularly when a successful appeal means that the case must be retried in
the first instance court). On the other hand, it also means that a badly wrong arbitral
decision cannot readily be corrected. In general, anecdotal and empirical evidence
indicates that business users prefer the efficiency and finality of arbitral procedures,
even at the expense of appellate rights. (40) There are also some legal systems in which
P 14 the parties have the possibility, by contracting into or out of judicial review, to obtain
a measure of appellate review of the arbitrators’ substantive decisions, or to select a
procedure that includes arbitral appeals.
[F] Party Autonomy and Procedural Flexibility

A further objective, and perceived advantage, of international arbitration is its
facilitation of party autonomy and procedural flexibility. As discussed below,
international arbitration conventions and national laws accord parties broad autonomy
to agree upon the substantive laws and procedures applicable to “their” arbitrations. (41)
In practice, one of the principal reasons for granting the parties procedural autonomy is
to enable them to dispense with the technical formalities of national court proceedings
and instead to tailor the procedures to their particular disputes. Some categories of
disputes call for specialized procedures for presenting expert evidence, “fast track”
procedures where time is of the essence, or mechanisms designed for particular
commercial markets. More generally, parties are typically free to agree upon the
timetable for the arbitral process, the existence and scope of disclosure, the modes for
presentation of fact and expert evidence, the length of the hearing(s) and other matters.
The parties’ ability to adopt flexible procedures is a central attraction of international
arbitration – again, as evidenced by empirical findings. (42)
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[G] Confidentiality and Privacy of Dispute Resolution
Another objective of international arbitration is to provide the possibility of a
confidential, or at least private, dispute resolution mechanism. (43) Most national court
proceedings are not confidential. Hearings and court dockets are open to the public,
competitors, press and regulators in many countries, and parties are often free to
disclose submissions and evidence to the public. Public disclosure can encourage “trial
by press release” and may impede compromises, by hardening positions, aggravating
tensions, or provoking collateral disputes.
In contrast, international arbitration is substantially more private, and often more
confidential, than national court proceedings. Arbitral hearings are virtually always
closed to the press and public, and in practice the parties’ submissions and tribunals’
awards often remain confidential. In many (but not all) jurisdictions, confidentiality
obligations are implied in international arbitration agreements as a matter of law, while
many arbitration institutional arbitration rules impose such duties expressly. (44) In
P 15 general, most international businesses prefer, and actively seek, the privacy and
confidentiality that the arbitral process offers. (45) Confidentiality reduces the risks of
aggravating the parties’ dispute, limits the collateral damage of a dispute and focuses
the parties on an amicable, business-like resolution of their disagreements.
[H] Arbitration Involving States and State-Entities

Finally, arbitration offers particular benefits in cases involving states and state-entities.
Under most legal systems, a state’s agreement to arbitrate constitutes a waiver of state
or sovereign immunity – almost always with regard to enforcement of the parties’
arbitration agreement and resulting awards and sometimes with regard to enforcement
of awards against state assets. (46) Moreover, a neutral international tribunal is often a
more appropriate decision-maker than a national court for disputes between states or
state-entities and private parties. In practice, therefore, commercial contracts between
private parties and foreign states or state-related entities very frequently contain
arbitration provisions. (47)
§1.03 POPULARITY OF INTERNATIONAL ARBITRATION

The aspirations of the arbitral process to accomplish the various objectives described
above lead proponents of international arbitration to proclaim:
“In th[e] realm of international commercial transactions, arbitration has
become the preferred method of dispute resolution. Arbitration is preferred
over judicial methods of dispute resolution because the parties have
considerable freedom and flexibility with regard to choice of arbitrators,
location of the arbitration, procedural rules for the arbitration, and the
substantive law that will govern the relationship and rights of the parties.” (48)
P 16
Equally vigorous are some critics, including those who regard arbitration as “the slower,
more expensive alternative,” (49) or conclude that “arbitration sometimes involves perils
that even surpass the ‘perils of the seas.’” (50)
In fact, the truth about contemporary international commercial arbitration is less clear-
cut and lies somewhere between these extremes: “The more enthusiastic of [its] sponsors
have thought of arbitration as a universal panacea. We doubt whether it will cure corns or
bring general beatitude. Few panaceas work as well as advertised.” (51) At bottom,
international arbitration is much like democracy; it is nowhere close to ideal, but it is
generally and correctly considered a good deal better than the alternatives. (52)
Litigation of complex international disputes in national courts is often distinctly
unappealing – particularly where litigation occurs in courts that have not been selected
in advance for their neutrality, integrity, competence and convenience. Indeed, the risks
of corruption, incompetence or procedural arbitrariness make litigation of commercial
disputes in many national courts an unacceptable option. Despite procedural, choice of
law and other uncertainties, international arbitration often offers the least ineffective
and damaging means to finally settle the disputes that arise when international
transactions go awry.
Dispute resolution mechanisms must fulfill difficult, often thankless, tasks, particularly in
international disputes: parties who are often bent upon (mis)using every procedural and
other opportunity to disadvantage one another simultaneously demand rapid, expert
and objective results at minimal cost. Despite these generally unrealistic expectations,
arbitration has for centuries been perceived as the most effective – if by no means
flawless – means for resolving international commercial disputes. That perception has
not diminished, but rather been strengthened, in recent decades. In the words of one
authority: arbitration is “‘the’ ordinary and normal method of settling disputes of
international trade.” (53)
The enduring popularity of international arbitration as a means of dispute resolution is
reflected by a number of developments. These include steadily increasing caseloads at
7
leading arbitral institutions, with the number of reported cases increasing between two
and ten-fold in the two decades from 1998–2018.
The same preference for, and increasing use of, international commercial arbitration is
reflected in empirical studies on the use of arbitration clauses in international
P 17 commercial agreements. (54) Similarly, the use of arbitration as a means of resolving
new (previously “un-arbitrated”) categories of disputes, including investment treaty
claims, online disputes, class actions, sports disputes, tax disputes, intellectual property
matters and human rights claims, attests to its enduring and increasing popularity.
1998 2003 2008 2013 2018
AAA 385 646 703 1,165 993
AIAC 26 20 47 156 115
CIETAC 678 709 1,230 1,256 2,962
DIS 42 81 122 132 162
HKIAC 240 287 602 463 521
ICC 466 580 663 767 842
JCAA 15 14 12 26 13
KCAB 133 211 262 338 393
LCIA 70 104 215 290 317
LMAA 3,022 2,445 3,567 2,836 2,369
SCC 92 169 176 203 153
SIAC 67 64 99 259 402
VANIAC 49 81 87 108 109
VIAC 45 45 50 56 64
TOTAL 5,389 5,456 7,835 8,055 9,415
P 18
§1.04 CONTEMPORARY INTERNATIONAL ARBITRATION CONVENTIONS

International commercial arbitration is governed by a multi-tier legal regime. That
regime includes (a) international arbitration conventions, particularly the New York
Convention, (b) national arbitration legislation, particularly local enactments of the
UNCITRAL Model Law, (c) institutional arbitration rules, incorporated by parties’
arbitration agreements, and (d) arbitration agreements, given effect by international
arbitration conventions and national arbitration legislation.
8
These various elements of the legal regime for international arbitration, and
representative examples of each of these elements, are summarized in the following
sections.
[A] New York Convention

The first modern international commercial arbitration conventions were the 1923 Geneva
P 19 Protocol on Arbitration Clauses in Commercial Matters (55) and the 1927 Geneva
Convention for the Execution of Foreign Arbitral Awards. (56) The Protocol provided for
the recognition of international commercial arbitration agreements, requiring
Contracting States to refer parties to such agreements to arbitration. The Convention, on
the other hand, provided for the recognition of arbitral awards made in other Contracting
States (subject to a number of exceptions). In part because of the outbreak of World War
II, the Protocol and Convention had limited practical impact.
The Geneva Protocol and Convention were succeeded by the 1958 United Nations
Convention on the Recognition and Enforcement of Foreign Arbitral Awards. (57) Generally
referred to as the “New York Convention,” the Convention is the most significant
contemporary legislative instrument relating to international commercial arbitration. It
provides a universal constitutional charter for the international arbitral process, whose
expansive terms have enabled both national courts and arbitral tribunals to develop
durable, effective means for enforcing international arbitration agreements and awards.
The Convention was adopted – like many national arbitration statutes – to address the
needs of the international business community, and in particular to improve the legal
regime provided for international arbitration by the Geneva Protocol and Geneva
Convention. The Convention was negotiated principally at a three-week conference – the
United Nations Conference on Commercial Arbitration – attended by 45 states in the
spring of 1958. (58) The Conference resulted in a document – the New York Convention – a
radically innovative instrument that created for the first time a comprehensive legal
regime for the international arbitral process.
The Convention is set forth in English, French, Spanish, Russian and Chinese texts, all of
which are equally authentic. The Convention is only a few pages long, with the
instrument’s essential substance contained in five concise provisions (Articles I through
V). Despite its brevity, the Convention is widely regarded as “the cornerstone of current
international commercial arbitration.” (59) In the apt words of the former President of the
International Court of Justice Stephen Schwebel, “It works.” (60)
It is often said that the Convention did not provide a detailed legislative regime for all
aspects of international arbitration (as, for example, the 1985 UNCITRAL Model Law would
later do (61) ). Rather, the Convention’s provisions focused on the recognition and
P 20 enforcement of arbitration agreements and arbitral awards, without specifically
regulating the conduct of the arbitral proceedings or other aspects of the arbitral
process.
A key objective of the Convention was uniformity: the Convention’s drafters sought to
9
establish a single set of international legal standards for the enforcement of arbitration
agreements and awards. (62) In particular, the Convention’s provisions prescribe uniform
international rules that: (a) require national courts to recognize and enforce foreign
arbitral awards (Articles III and IV), subject to a limited number of specified exceptions
(Article V); (b) require national courts to recognize the validity of arbitration agreements,
subject to specified exceptions (Article II); and (c) require national courts to refer parties
to arbitration when they have entered into a valid agreement to arbitrate that is subject
to the Convention (Article II(3)). The permissible exceptions to the obligation to recognize
foreign awards are limited to issues of jurisdiction, procedural regularity and fairness,
compliance with the parties’ arbitration agreement and public policy; they do not
include review by a recognition court of the merits of the arbitrators’ substantive
decision.
The New York Convention made a number of significant improvements in the regime of
the Geneva Protocol and Geneva Convention for international arbitration. Particularly
important were the Convention’s shifting of the burden of proving the invalidity of
arbitral awards to the party resisting enforcement, (63) its recognition of substantial
party autonomy with respect to choice of arbitral procedures and law applicable to the
arbitration agreement, (64) and its abolition of the previous “double exequatur”
requirement (which required that awards be confirmed in the arbitral seat before being
recognized abroad (65) ).
Despite the Convention’s brevity and focus on arbitration agreements and awards, the
significance of its terms can scarcely be exaggerated. The Convention’s provisions
effected a fundamental restructuring of the legal regime for international commercial
arbitration, combining the separate subject matters of the Geneva Protocol and Geneva
Convention into a single instrument which provided a legal framework that covered
international arbitrations from their inception (the arbitration agreement) until their
conclusion (the award). In so doing, the Convention established for the first time a
comprehensive international legal framework for international arbitration agreements,
arbitral proceedings and arbitral awards.
Despite its present significance, the New York Convention initially attracted few
ratifications. Over time, however, states from all regions of the globe reconsidered their
position, and as of March 2021, 168 nations have ratified the Convention. (66) The
Convention’s parties include virtually all major trading states and many Latin American,
African, Asian, Middle Eastern and former socialist states. Over the two decades,
numerous states (including a number in the Middle East and Latin America) have
P 21 overcome traditions of distrust of international arbitration and ratified the
Convention. (67) The Convention has thus realized its drafters’ aspirations and come to
serve as a global charter or constitution for international arbitration.
Article VII of the New York Convention provides that the Convention does not affect the
validity of any bilateral or other multilateral arrangements concerning the recognition
and enforcement of foreign arbitral awards (except the Geneva Protocol and Geneva
Convention, which are terminated as between Contracting States). (68) Article VII(1) also
provides:
“[The Convention] shall not … deprive any interested party of any right he may
have to avail himself of an arbitral award in the manner and to the extent
allowed by the law or treaties of the country where such award is sought to be
relied upon.” (69)
Article VII has been interpreted in a “pro-enforcement” fashion, to permit agreements
and awards to be enforced under either the Convention, or another treaty, or national
law, if more favorable than the Convention. (70)
In virtually all Contracting States, the Convention has been implemented through
national legislation. The practical effect of the Convention is therefore often dependent
on both the content of such national legislation and the interpretations given by national
courts to the Convention and national implementing legislation. (71) In some states, the
Convention may also have direct (or self-executing) effects in national courts, without the
need for implementing legislation. (72)
As noted above, an important aim of the Convention’s drafters was uniformity. The
fulfillment of that aim is dependent upon national legislatures and courts, in different
Contracting States, to adopt uniform interpretations of the Convention. In general,
national courts have risen to this challenge. That process has accelerated in recent
decades, as national court decisions have become increasingly available in foreign
jurisdictions and national courts have increasingly cited authorities from foreign and
P 22 international sources in interpreting the Convention. (73)
[B] Inter-American Convention

In the early years of the 20th century, much of South America turned its back on
international arbitration. Despite this, in 1975 the United States and most South and
Central American nations negotiated, and later ratified, the Inter-American Convention
on International Commercial Arbitration (“Inter-American Convention”), also known as the
“Panama Convention.” (74) Like the New York Convention, the Inter-American Convention
10
provides for the presumptive validity and enforceability of arbitration agreements and
arbitral awards, subject to specified exceptions similar to those in the New York
Convention. (75)
The Inter-American Convention introduces significant innovations, not present in the New
York Convention. It does so by providing (in Article 3) that, where the parties have not
agreed to any institutional arbitration rules, the rules of the Inter-American Commercial
Arbitration Commission (“IACAC”) will govern. In turn, the Commission has adopted rules
that are almost identical to the UNCITRAL Arbitration Rules. The Convention also
introduces provisions (again, in Article 3) regarding the constitution of the arbitral
tribunal and the parties’ freedom to appoint arbitrators of their choosing (regardless of
nationality). Less desirably, the Inter-American Convention departs from the New York
Convention by omitting provisions prohibiting the courts of Contracting States from
entertaining suits brought in breach of an international arbitration agreement. (76)
[C] European Convention

The 1961 European Convention on International Commercial Arbitration entered into
force in 1964, and 31 states are currently party to it. (77) Most European states (but not the
United Kingdom, the Netherlands or Finland) are party to the Convention, while some ten
non-EU states are parties, including Russia, Cuba and Burkina Faso. The Convention
consists of 19 articles and an annex.
The Convention addresses the three principal phases of the international arbitral process
– arbitration agreements, arbitral procedure and awards. With regard to arbitration
agreements, the Convention does not expressly provide for their presumptive validity,
but instead (in Articles V and VI) confirms the arbitrators’ competence-competence and
the authority of national courts to consider jurisdictional objections on an interlocutory
basis. With regard to the arbitral procedure, Articles III-VII of the Convention confirm the
autonomy of the parties and the arbitrators (or arbitral institution) to conduct the
arbitral proceedings. With regard to awards, the Convention is designed to supplement
the New York Convention, dealing in Article IX only with the effects of a judicial decision
P 23 annulling an award in the arbitral seat in other jurisdictions (and not with other
obligations of courts to recognize awards). In practice, the Convention’s impact has been
modest, owing to the limited number of Contracting States, all of whom are also party to
the New York Convention.
§1.05 CONTEMPORARY NATIONAL ARBITRATION LEGISLATION

It is essential to the effective functioning of the arbitral process, and the realization of
the parties’ objectives in agreeing to arbitrate, that national courts give effect to
arbitration agreements and awards, and provide support for the arbitral process. The
enactment of legislation accomplishing these ends has been a major objective – and
achievement – of developed trading states and other jurisdictions over the past 50 years.
(78) These national arbitration statutes generally implement the New York Convention
P 24 (and other international arbitration conventions) and provide the basis for national
court decisions dealing with international arbitration agreements and awards.
Particularly in civil law jurisdictions, arbitration legislation often took the form of a
chapter in the national Code of Civil Procedure (for example, in Germany, France, Italy,
the Netherlands and Austria). In common law jurisdictions, the tendency has been to
enact separate legislation dealing specifically with arbitration (for example, in the
United States, England, Singapore and Australia). The growing popularity of the UNCITRAL
Model Law has made the latter approach of stand-alone arbitration legislation
increasingly common.
As discussed below, in many cases, national arbitration statutes are applicable only to
international (not domestic) arbitrations, or contain separate parts for domestic and
international arbitration. This approach has been adopted to permit “pro-arbitration”
rules in the international context, which may not (for historical or other reasons) be
appropriate for domestic matters. Nevertheless, a number of countries (e.g., England,
Germany and Spain) have adopted the same legislation for both domestic and
international arbitrations (with, however, specific provisions that treat the two fields
differently with regard to particular subjects).
Broadly speaking, there are two categories of arbitration legislation: statutes which are
supportive of the arbitral process (increasingly, but not always, modeled on the
UNCITRAL Model Law) and statutes which are not supportive of the arbitral process.
[A] Supportive National Legislation

Most states in Europe, North America and Asia have adopted legislation that provides
effective support for the arbitral process. In many cases, states have progressively
refined their national arbitration statutes, adopting either amendments or new
legislation to make their arbitration regimes maximally supportive for the international
arbitral process. Thus, over the past 50 years, virtually all developed countries (and many
less developed jurisdictions) have substantially revised or entirely replaced its
international arbitration legislation, in every case, to facilitate the arbitral process and
11
promote the use of international arbitration. (79)
Paralleling the New York Convention, the pillars of modern arbitration statutes are
provisions that affirm the freedom of parties to enter into valid and binding agreements
to arbitrate future commercial disputes, provide mechanisms for the enforcement of
such agreements by national courts (through orders to stay litigation or compel
arbitration), prescribe procedures for confirming or annulling awards and require the
recognition and enforcement of foreign awards. In many cases, arbitration statutes also
authorize limited judicial assistance to the arbitral process; this assistance can include
selecting arbitrators, enforcing a tribunal’s orders for evidence-taking and granting
provisional relief in aid of arbitration. In addition, most modern arbitration legislation
affirms the parties’ autonomy to agree upon arbitral procedures as well as the
substantive law governing the parties’ dispute, while limiting the power of national courts
to intervene in the arbitral process, either when arbitral proceedings are pending or in
reviewing awards.
The central objective of contemporary international arbitration statutes has been to
facilitate international trade and investment by providing more secure means of dispute
resolution. Recognizing that international transactions are subject to unique legal
uncertainties and risks, states have sought to promote the use of arbitration as a way of
mitigating such risks. In the words of the Indian Supreme Court:
“To attract the confidence of the international mercantile community and the
growing volume of India’s trade and commercial relationship with the rest of
the world …, [the] Indian Parliament was persuaded to enact the Arbitration
and Conciliation Act of 1996 in UNCITRAL Model.” (80)
[B] 1985 UNCITRAL Model Law and 2006 Revisions

The 1985 UNCITRAL Model Law is the single most important statutory instrument in the
field of international commercial arbitration. It has been adopted in a substantial (and
growing) number of jurisdictions and has served as a model for legislation in many others.
P 25 Revisions to the Model Law in 2006 sought to improve its legislative framework.
The Model Law was preceded by extensive consultations involving states, the business
and international arbitration community, and regional organizations (e.g., Asian-African
Legal Consultative Committee). These discussions produced the current final draft of the
Model Law, which UNCITRAL approved in a resolution in 1985; the Model Law was
approved by a U.N. General Assembly resolution later the same year. (81)
The Model Law was designed to be implemented by national legislatures, with the
objective of harmonizing the treatment of international commercial arbitration in
different countries. The Law consists of 36 articles, which deal comprehensively with the
international arbitral process. Among other things, the law contains provisions concerning
the enforcement of arbitration agreements (Articles 7–9), appointment of and challenges
to arbitrators (Articles 10–15), jurisdiction of arbitrators (Article 16), provisional measures
(Article 17), conduct of the arbitral proceedings, including language, seat of arbitration
and procedures (Articles 18–26), evidence-taking (Article 27), applicable substantive law
(Article 28), arbitral awards (Articles 29–33), setting aside awards (Article 34), and
recognition and enforcement of foreign awards, including bases for non-recognition
(Articles 35–36).
Under the Model Law, written international arbitration agreements are presumptively
valid and enforceable, subject to limited, specified exceptions. (82) Article 8 of the Law
provides for the enforcement of valid arbitration agreements, regardless of the arbitral
seat, by way of a dismissal or stay of national court litigation. The Law also adopts the
separability presumption (Article 16), and grants arbitrators authority (competence-
competence) to consider their own jurisdiction (also in Article 16).
Article 5 of the Model Law prescribes a principle of judicial non-intervention in arbitral
proceedings. The Law also affirms the parties’ autonomy (subject to due process limits)
with regard to the arbitral procedures (Article 19(1)) and, absent agreement between the
parties, the tribunal’s authority to prescribe such procedures (Article 19(2)). The approach
of the Model Law to the arbitral proceedings is to define a basic set of procedural rules
which – subject to a very limited number of mandatory principles of fairness, due process
and equality of treatment (83) – the parties are free to alter by agreement. The Law also
provides for judicial assistance to the arbitral process in prescribed and limited
respects, including provisional measures, constitution of a tribunal and evidence-taking
(Articles 9, 11–13 and 27).
Article 34 of the Model Law mandates the presumptive validity of international arbitral
awards, subject to a limited, exclusive list of grounds for annulment of awards in the
arbitral seat; these grounds parallel those available under the New York Convention for
non-recognition of an award (i.e., lack or excess of jurisdiction, non-compliance with the
arbitration agreement, due process violations, public policy, nonarbitrability). In a
parallel provision, Articles 35 and 36 of the Model Law require the recognition and
P 26 enforcement of foreign awards (made in arbitral seats located outside the recognizing
state), again on terms identical to those prescribed in the Convention.
12
In 2006, UNCITRAL adopted a limited number of amendments to the 1985 Model Law. (84)
The principal revisions were made to Article 2 (the addition of general interpretative
principles), Article 7 (written form of arbitration agreement), Article 17 (the availability of
and standards for provisional measures from arbitral tribunals and national courts) and
Article 35 (procedures for recognition of awards).
The Model Law does not have independent legal effect and must instead be adopted by
individual national legislatures. Legislation based on the Model Law has been adopted in
over 110 jurisdictions, including Australia, Bahrain, Bermuda, British Virgin Islands,
Brunei, Bulgaria, Canada, Costa Rica, Cyprus, Denmark, Dominican Republic, Fiji,
Germany, Georgia, Hong Kong, India, Ireland, Japan, Malaysia, Mauritius, Mexico,
Montenegro, New Zealand, Nigeria, Norway, Peru, the Russian Federation, Scotland,
Singapore, Spain, Sweden, Tunisia, Turkey and various U.S., Canadian and Australian
states and provinces. (85) At least as important, the Model Law has set the agenda for
reform of arbitration statutes even in countries such as England, France and Switzerland,
where it was not adopted. Moreover, decisions by courts in jurisdictions that have
adopted the Model Law are beginning to produce a reasonably uniform international
body of precedent concerning its meaning. (86)
[C] Less Supportive National Legislation

Some nations regarded international arbitration with a mixture of suspicion and hostility
during much of the 20th century. (87) This hostility arose from a reluctance to compromise
perceived principles of national sovereignty and from doubts concerning the neutrality
and efficacy of international arbitration. Although distrust for international arbitration
has waned substantially in recent decades, it has not entirely disappeared and continues
intermittently to influence legislation and judicial decisions in a few countries.
Historically, some developing countries refused to enforce agreements to arbitrate future
disputes. This was particularly true in Latin America and the Middle East. Some states
took the position that arbitration agreements were an unjustifiable infringement upon
national sovereignty, which was to be vigorously resisted. In many cases, arbitration
agreements were valid only if they concerned an existing (not a future) dispute, which
was the subject of a submission agreement committing the parties to resolve the dispute
P 27 by arbitration.
In 19th century Latin America, the Calvo doctrine declared that foreign nationals were
mandatorily subject to the jurisdiction of local courts, which could not be ousted by
arbitration agreements. The doctrine was incorporated into national legislation, which
not infrequently rendered international arbitration agreements per se invalid. Political
declarations also reflected the hostility of some developing states towards international
arbitration well into the 20th century. (88)
Against this background, arbitration legislation in a few developing states sometimes
does not provide effective enforcement of agreements to arbitrate future disputes; these
agreements are sometimes revocable at will or unenforceable in broad categories of
disputes. (89) Similarly, in a number of states, arbitral awards may be subject to either de
novo judicial review or to similarly rigorous scrutiny on other grounds. (90) Finally, some
national courts have interfered in the international arbitral process – for example, by
purporting to remove arbitrators, to resolve “preliminary” issues, or to enjoin
arbitrations. (91)
Nonetheless, during the last 30 years, a number of states that once distrusted
international arbitration have ratified the New York Convention and/or enacted
legislation supportive of the arbitral process. (92) This includes India, China, Saudi
Arabia, Argentina, Algeria, Bahrain, Brazil, Tunisia, Turkey, Nigeria, Peru, and (at least for
a time) Russia, Ecuador and Venezuela. Although there has been limited practical
experience with the application of arbitration legislation in such states, these statutes
have the potential for providing a more stable framework for international arbitration.
Unfortunately, even where national law may appear to support the international arbitral
process, some national courts have displayed a willingness to hold arbitration
agreements or awards invalid or to interfere with the arbitral process. That is particularly
true when national courts are requested to do so by local parties or state entities.
Moreover, the early years of the 21st century have seen a potential resurgence of
historical ideological opposition to some aspects or applications of the international
arbitral process, with a few states condemning the legitimacy of the process in some
contexts. (93) It remains to be seen whether this trend will continue, although it has thus
P 28 far attracted little interest outside a limited number of states.
§1.06 AD HOC AND INSTITUTIONAL ARBITRATION

International arbitrations may be either “institutional” or “ad hoc.” There are important
differences, both theoretical and practical, between these two forms of arbitration.
Institutional arbitrations are conducted pursuant to institutional arbitration rules, which
have been incorporated by the parties’ arbitration agreement (and which, absent such
incorporation, have no independent legal effect). Institutional arbitrations are conducted
pursuant to institutional rules and in practice are almost always overseen by an
13
appointing authority with responsibility for constituting the arbitral tribunal, fixing the
arbitrators’ compensation and similar matters. In contrast, ad hoc arbitrations are
conducted without the benefit of an appointing authority or (generally) pre-existing
arbitration rules, subject only to the parties’ arbitration agreement and applicable
national arbitration legislation.
[A] Institutional Arbitration

Institutional arbitrations are administered by specialized arbitral institutions. A number
of organizations provide institutional arbitration services for international users,
sometimes tailored to particular commercial or other needs. The best-known
international arbitration institutions are the International Chamber of Commerce (“ICC”),
the Singapore International Arbitration Centre (“SIAC”), the American Arbitration
Association (“AAA”) and its International Centre for Dispute Resolution (“ICDR”), the
London Court of International Arbitration (“LCIA”), the International Centre for Settlement
of Investment Disputes (“ICSID”) and the Permanent Court of Arbitration (“PCA”).
These (and other) arbitral institutions have promulgated sets of procedural rules that
apply where parties have agreed to arbitration pursuant to such rules, typically by
incorporating such rules in their arbitration agreements. These rules set out the basic
procedural framework for arbitral proceedings and typically authorize the arbitral
institution to assist in selecting arbitrators in particular disputes (that is, to serve as the
“appointing authority”), to resolve challenges to arbitrators, to designate the place of
arbitration, to fix the fees payable to the arbitrators and (sometimes) to review the
arbitrators’ awards to reduce the risk of unenforceability. Each institution has a staff, with
the size varying significantly from one institution to another, and a decision-making body.
It is fundamental that arbitral institutions do not themselves arbitrate the merits of the
parties’ dispute. This is the responsibility of the individuals selected by the parties or
institution as arbitrators. In practice, arbitrators are almost never employees of the
arbitral institution, but instead are private persons selected by the parties. If parties
cannot agree upon an arbitrator, most institutional rules provide that the host institution
will act as an “appointing authority,” to choose the arbitrators in the absence of the
P 29 parties’ agreement.
[B] Ad Hoc Arbitration

Ad hoc arbitrations are not conducted under the auspices or supervision of an arbitral
institution. Instead, parties simply agree to arbitrate, without designating any institution
to administer their arbitration. Ad hoc arbitration agreements often select an arbitrator
or arbitrators to resolve the dispute without institutional supervision. The parties will
sometimes also select a pre-existing set of procedural rules designed for ad hoc
arbitrations. For international commercial disputes, UNCITRAL has published a set of
such rules, the UNCITRAL Arbitration Rules, which are discussed below.
In ad hoc arbitrations, parties usually designate an appointing authority to select the
arbitrator(s) if the parties cannot agree and to consider any subsequent challenges to
members of the tribunal. Where the parties fail to select an appointing authority,
arbitration statutes in many states permit national courts to exercise default authority to
appoint arbitrators and consider challenges, but this may be less desirable than having
an experienced appointing authority do so.
[C] Relative Advantages and Disadvantages of Institutional and Ad Hoc Arbitration

Both institutional and ad hoc arbitration have strengths. Institutional arbitration is
conducted under a standing set of procedural rules and supervised by professional staff.
As a practical matter, this reduces the risks of procedural breakdowns, particularly at the
beginning of the arbitral process, and of technical defects in the arbitration proceedings
and award. The institution’s involvement can be particularly constructive in the
appointment of arbitrators, challenges to arbitrators, selection of an arbitral seat and
fixing of arbitrators’ fees, where specialized staff provide better service than ad hoc
decisions by national courts with little experience in such matters. (94) Equally
important, many institutional rules contain provisions that make the arbitral process
more effective. This includes provisions concerning competence-competence,
separability, provisional measures, disclosure, arbitrator impartiality, corrections and
challenges to awards, replacement of arbitrators and costs.
On the other hand, ad hoc arbitration is arguably more flexible and potentially more
confidential than institutional arbitration. Moreover, the growing size and sophistication
of the international arbitration bar and the efficacy of legal regimes for arbitration
arguably reduce the advantages of institutional arbitration. Nonetheless, by a substantial
margin, most users prefer the more predictable character of institutional arbitration, the
benefits of institutional rules and appointment mechanisms and the reduced roles of
P 30 national courts, at least absent unusual circumstances.
[D] UNCITRAL Arbitration Rules

The UNCITRAL Arbitration Rules occupy an important position in contemporary
14
arbitration practice. The objective of the Rules was to create a predictable procedural
framework for international arbitrations which was acceptable to common law, civil law
and other legal systems, as well to capital-importing and exporting interests. (95) The
Rules, which were first promulgated by the U.N. General Assembly in December 1976, were
revised in 2010 and (in minor respects) 2013.
Like most institutional rules, the UNCITRAL Rules prescribe a basic procedural framework
for arbitrations. This includes provisions for initiating an arbitration (Articles 3 and 4),
selection and challenge of arbitrators (Articles 7–16), conduct of the arbitral proceedings
(Articles 17–32), choice of applicable law (Article 35), awards (Articles 33–39) and
arbitration costs (Articles 40–43). The Rules also contain provisions confirming the
separability of the arbitration clause and the tribunal’s power (competence-
competence) to consider jurisdictional objections (Article 23). Under Article 7 of the
Rules, the Secretary-General of the Permanent Court of Arbitration serves a sui generis
function of designating an appointing authority when requested, unless the parties have
agreed to a different appointment mechanism. (96)
Compared to the original Rules, the revised Rules allow for more liberal joinder of parties
and specify that the tribunal’s power includes the authority to grant injunctions and
order the preservation of evidence. In a departure from the approach of most
institutional arbitration rules, the UNCITRAL Rules give the parties the option to waive
recourse against an award (while most other sets of rules provide for such waiver as the
default rule).
[E] Leading International Arbitral Institutions

If institutional arbitration is desired, the parties must choose a particular arbitral
institution and refer to it and its rules in their arbitration clause (often by using an
institution’s model clause). In practice, parties ordinarily rely on one of a few established
institutions. This avoids the uncertainty that comes from inexperienced arbitrator
appointments and administrative efforts.
All leading international arbitral institutions are prepared to, and routinely do,
administer arbitrations seated almost anywhere in the world, and not merely in the place
where the institution itself is located. There is therefore no need to select an institution
headquartered in the parties’ desired arbitral seat (e.g., the LCIA or VIAC can readily
administer an arbitration seated in Paris or New York, while the AAA can administer
arbitrations seated in Singapore or London).
The services rendered by professional arbitration institutions come at a price, which is in
addition to the fees of the arbitrators. Every institution has a fee schedule that specifies
P 31 what that price is. The amounts charged by institutions for particular matters vary
significantly, as does the basis for calculating such fees. For example, some institutions
use hourly charges while others charge based upon a percentage of the amount in
dispute.
[1] International Chamber of Commerce
The International Chamber of Commerce’s (“ICC”) International Court of Arbitration was
established in Paris in 1923 (in parallel with efforts by the international business
community to secure adoption of the Geneva Protocol, the FAA and other legislative
reforms). The ICC is generally described as the world’s leading international arbitration
institution, with less of a national character than any other leading arbitral institution.
The ICC has promulgated a set of ICC Rules of Arbitration (which are periodically revised,
most recently as of 2021) as well as the ICC Mediation Rules, the ICC Rules for Expertise,
the ICC Dispute Board Rules and the ICC Rules for A Pre-Arbitral Referee Procedure
(Emergency Arbitrator Rules in the 2021 Rules of Arbitration). Under the ICC Arbitration
Rules, the ICC (through its International Court of Arbitration (“ICC Court”)) is extensively
involved in the administration of arbitrations. Despite its name, the ICC Court is not a
“court” and does not act as an arbitrator. Rather, the ICC Court is an administrative body
that acts in a supervisory and appointing capacity; it is the arbitrators that the ICC Court
appoints that decide cases, not the ICC Court itself.
Under the 2021 ICC Rules, the ICC Court and its Secretariat are responsible for service of
the initial Request for Arbitration (Article 4); fixing advances on costs of the arbitration
(Article 37); confirming parties’ nominations of arbitrators (Articles 11–13); appointing
arbitrators if the parties are unable to agree upon a presiding arbitrator or sole
arbitrator (Article 13); considering challenges to the arbitrators (Article 14); approving so-
called “Terms of Reference,” which define the issues in the arbitration (Article 23);
reviewing tribunals’ draft awards for formal and other defects (Article 34); and fixing the
arbitrators’ fees (Article 38).
The ICC Rules are similar to the UNCITRAL Rules in providing a broad procedural
framework for arbitral proceedings. As with most institutional rules, only a skeletal
procedural framework is provided, with the parties and arbitrators accorded substantial
freedom to adopt procedures tailored to particular disputes. Unusually, the ICC Rules
require a “Terms of Reference” and procedural timetable to be adopted by the tribunal
at the outset of proceedings and that an award be rendered within six months (absent
extensions, which are freely granted). Also relatively unusually, the ICC Rules provide for
15
the ICC Court to review draft awards before they are finalized.
P 32 The ICC Rules have been extensively revised over the past decade, with the objective
of making the arbitral process more efficient. Under the 2021 Rules, tribunals are
required to conduct a case management conference and granted express authority to
conduct the arbitration efficiently (Articles 22, 24). The 2021 Rules also streamline the
process of constituting the tribunal (Articles 11–13) and provide an “Emergency Arbitrator”
mechanism to deal with interim relief prior to constitution of the tribunal (Article 29). In
addition, the Rules permit joinder of parties and consolidation of disputes (Articles 7–10).
The ICC’s annual caseload was well above 300 cases filed per year during much of the
1990s, increasing to more than 600 cases per year in the following decade, with 946 cases
being filed in 2020. (97) Most of these cases are international disputes, many involving
very substantial sums. The ICC’s caseload includes disputes between parties from around
the world, with parties outside Western Europe being involved in more than 50% of all ICC
cases in many recent years. (98) ICC arbitrations are conducted throughout the world. In
2019, for example, ICC arbitrations were conducted in 62 different countries. (99) The ICC
does not maintain a list of arbitrators and its Secretariat instead selects arbitrators with
the assistance of local “National Committees” in individual countries – often, that of the
arbitral seat.
The ICC’s administrative fees and the fees of the arbitrators are based principally on the
amount in dispute between the parties. The ICC Rules require (in Article 37) that the
parties pay an advance on the costs of the arbitration calculated by the ICC Court. The
advance on costs is equally divided between the claimant and the respondent, although
one party may pay the full amount in order to enable the arbitration to proceed if the
other party defaults.
The ICC Rules have sometimes been criticized as expensive and cumbersome, although
recent amendments reflect concerted efforts to address this concern. (100) Despite
criticism, the ICC remains one of the world’s leading arbitral institutions in the eyes of
many commercial users, particularly in Europe.
[2] Singapore International Arbitral Centre
The Singapore International Arbitration Centre (“SIAC”) was established in 1991, initially
for disputes arising out of construction, shipping, banking and insurance contracts, with a
Southeast Asian focus. More recently, consistent with Singapore’s increasing importance
as an international commercial and financial center, SIAC has seen wider range of
disputes, with parties from all parts of the world. The SIAC has been the fastest growing
arbitral institution in the world over the past five years. In 2020, 1080 new arbitrations
were filed with SIAC, compared with 479 new arbitrations in 2019, 402 new cases in 2018,
452 new filings in 2017, 343 new filings in 2016 and 271 new filings in 2015. (101) Arbitrations
filed in 2018 involved parties from 65 jurisdictions, with the largest number of non-
Singaporean parties coming from India, China, the United States, Malaysia and the
Philippines. (102) The attractiveness of the SIAC as an arbitral institution is also enhanced
by Singapore’s reputation as an arbitration-friendly jurisdiction, where the Singapore
courts have demonstrated a supportive attitude towards international arbitration, and
consistently respects the principle of minimal curial interference in the finality of
P 33 arbitral outcomes.
SIAC-administered proceedings are presumptively governed by the SIAC Rules, which are
based largely on the UNCITRAL Rules and were most recently updated in 2016. Under
Rule 5 of the SIAC Rules, parties may opt to apply the SIAC’s Expedited Procedure to the
proceedings. This is a fast-track arbitration procedure introduced in July 2010, which
requires an award to be rendered within six months of the tribunal’s constitution and
provides that the Registrar may adjust or shorten relevant time limits under the SIAC
Rules. The determination as to whether the procedure applies is left to the discretion of
the President of the SIAC Court. Under Rule 30(2) and Schedule 1, parties also have the
option of applying for urgent interim relief prior to the constitution of an arbitral tribunal
through an emergency arbitrator. The emergency arbitrator provisions were also
introduced in July 2010, making the SIAC the first arbitral institution in Asia to do so. The
SIAC has considerable experience with emergency arbitrator applications. Since 2010,
the institution had seen 94 applications, with emergency arbitrators appointed in all 94
cases. (103)
The SIAC has made a determined, and successful, effort in recent years to
internationalize its procedures, including by appointing a Board of Directors, Secretariat,
Court and President with broad international experience. SIAC arbitrators are appointed
by the President (or Vice-President) of the SIAC Court of Arbitration. Appointments are of
arbitrators from Asia, Europe, the Americas and elsewhere, with Singapore, English, U.S.
and other Asian nationalities being most common.
SIAC recently published the SIAC Investment Arbitration Rules. The Rules provide a
bespoke set of procedures for investment arbitrations, offering an efficient and
pragmatic alternative to the ICSID and UNCITRAL Rules.
[3] London Court of International Arbitration
Founded in 1892, the LCIA is, by many accounts, the second most popular European
16
institution for international commercial arbitration. The LCIA’s annual caseload has
consistently exceeded 300 disputes in recent years, with over 400 cases referred to it in
2020 and 2019. The LCIA has made a largely successful effort in recent years to overcome
perceptions that it is a predominantly English institution. In recent years, fewer than 20%
of the parties in LCIA’s cases have been from the U.K. (104)
The LCIA administers a set of arbitration rules, the LCIA Arbitration Rules, which were
extensively revised in 1998, 2014 and 2020. Although identifiably English in drafting style
and to a lesser extent in procedural approach, the LCIA Rules generally provide a sound
basis for international dispute resolution, particularly for parties desiring common law
procedures (e.g., disclosure, security for costs). Broadly speaking, LCIA arbitrations are
administered in a less comprehensive fashion than ICC cases. Among other things, the
LCIA Rules contain no Terms of Reference procedure and do not provide for institutional
scrutiny of draft awards.
Most LCIA arbitrations are seated in London. Absent contrary agreement by the parties,
London will be selected by the LCIA as the arbitral seat under Article 16(2) of the LCIA
P 34 Rules, unless the arbitral tribunal decides that another arbitral seat is more
appropriate. A particular procedural advantage of the LCIA Rules is their provision for
expedited formation of the tribunal and expedited appointment of replacement
arbitrators. Consistent with many other institutional rules, the LCIA Rules also permit
intervention of third parties in LCIA arbitrations (subject to prescribed conditions) and
consolidation of arbitrations (Articles 22(1)(x), 22A). Unusually, the LCIA publishes
decisions of the LCIA Court on challenges to arbitrators (in a redacted form), providing
enhanced predictability about arbitrator challenges.
The LCIA has made a determined, and somewhat successful, effort in recent years to
overcome perceptions that it is a predominantly English organization. It has appointed
five successive non-English presidents, and its vice-presidents include a number of non-
English practitioners. In recent years, fewer than 20% of the LCIA’s cases on average have
involved any U.K. parties. The LCIA also entered into a partnership with the Dubai
International Financial Centre to establish the DIFC-LCIA Arbitration Centre.
[4] American Arbitration Association and International Centre for Dispute Resolution
The AAA is the leading U.S. arbitral institution, and reportedly handles one of the largest
numbers of arbitral disputes in the world. The primary arbitration rules administered by
the AAA are the AAA Commercial Arbitration Rules; these rules are used in a large number
of domestic U.S. arbitrations. (105)
In recent years, the AAA has taken steps aimed at enhancing its position as an
international arbitral institution. In 1996, the AAA established an International Centre for
Dispute Resolution (“ICDR”), with responsibility for administering international
arbitrations. The ICDR International Dispute Resolution Procedures (“ICDR Rules”), are
applied where parties have agreed to them or have agreed to AAA arbitration in an
“international” dispute, but without specifying a particular set of AAA rules. Where the
parties have agreed to a different set of AAA rules, such as the AAA Rules, that choice will
prevail.
The AAA’s caseload has increased significantly over recent decades. In 1997, it reported a
total caseload of 11,130 cases (under its Commercial Rules), rising to 14,157 in 2009 and
17,620 in 2018. Similar growth is reported in international cases, from 453 international
cases filed in 1999 to 993 new international filings in 2018. (106)
The ICDR Rules are based on the UNCITRAL Rules. Under all versions of AAA/ICDR rules,
the AAA/ICDR administrative staff plays a less significant supervisory role than does the
ICC Secretariat. Among other things, the AAA/ICDR does not receive or serve initial
requests for arbitration; does not require Terms of Reference; and plays a less significant
role in setting the arbitrators’ fees. The AAA/ICDR’s administrative charges are based on
P 35 the amount in dispute. With respect to the arbitrators’ fees, arbitrators fix their own
rates, which are provided for parties to consider when receiving a list of potential
arbitrators. Compensation for arbitrators under the ICDR Rules (Article 38) shall be
reasonable in amount, taking into account “the time spent by the arbitrators, the size and
complexity of the case, and any other relevant circumstances.”
In practice, most ICDR appointments of arbitrators are based on a list procedure, with
names drawn from a list of some 650 names maintained by the ICDR and presented to the
parties for expressions of preference. Although the AAA’s arbitrator selections have
historically been dominated by U.S. practitioners, the ICDR increasingly seeks to appoint
arbitrators with international experience in appropriate international cases.
Nonetheless, some users have found the AAA/ICDR appointment procedures and
selections patchy, with less involvement of experienced international practitioners than
other leading institutions.
[5] International Centre for Settlement of Investment Disputes
The ICSID administers arbitrations and conciliations pursuant to the so-called “ICSID
Convention” or “Washington Convention” of 1965, and has adopted institutional
arbitration rules for investment disputes (the ICSID Arbitration Rules). (107) As discussed
below, ICSID jurisdiction is confined generally to “investment” disputes, involving claims
17
by foreign investors against host states; investment disputes typically arise under
contracts containing ICSID arbitration clauses or pursuant to bilateral investment
treaties (discussed below). ICSID’s caseload has increased significantly over the past
several decades, rising from roughly one case filed per year in the 1970s to about 40 cases
per year in 2018 and 2019. (108)
[6] Permanent Court of Arbitration
The PCA in The Hague, established by the 1899 and 1907 Hague Conventions for the Pacific
Settlement of International Disputes, is focused on international arbitrations involving
states and state-like entities. The PCA consists of three organs: (1) an Administrative
Council, which is comprised of the representatives of Member States that are party to the
Hague Conventions and which serves as the governing body of the PCA; (2) the Members of
the PCA, which is a list of potential arbitrators chosen by the Member States (each
Member State being entitled to appoint up to four individuals); and (3) an International
Bureau, which functions as a registry or secretariat and provides administrative support
to arbitral tribunals conducting arbitrations under the PCA Rules or where the PCA is
registry.
The PCA has promulgated several sets of rules based largely on the UNCITRAL Rules,
P 36 applicable to disputes between both states and (more recently) private parties. (109) A
limited number of state-to-state arbitrations, including several very significant disputes,
have been conducted under the auspices of the PCA. (110) As noted above, the Secretary-
General of the PCA is also designated under the UNCITRAL Rules as the default
mechanism for choosing an appointing authority in the event the parties are unable to
agree upon the choice of arbitrators or appointing authority.
[7] Other International Arbitral Institutions
There are a number of other international arbitral institutions, typically with either a
regional or industry focus. Regional institutions include the Arbitration Institute of the
Stockholm Chamber of Commerce (“SCC”), Asian International Arbitration Centre (“AIAC”)
(formerly the Kuala Lumpur Regional Centre for Arbitration), Cairo Regional Centre for
International Commercial Arbitration (“CRCICA”), China International Economic and Trade
Arbitration Commission (“CIETAC”), Dubai International Arbitration Centre (“DIAC”), Dubai
International Financial Centre-LCIA (“DIFC-LCIA”) Arbitration Centre, Hong Kong
International Arbitration Centre (“HKIAC”), Indian Council of Arbitration (“ICA”), German
Institution of Arbitration (“DIS”), JAMS International, Japan Commercial Arbitration
Association (“JCAA”), Swiss Chambers’ Arbitration Institution, Vienna International Arbitral
Centre (“VIAC”),.
There are also a number of specialized arbitral institutions, dealing with industry specific
matters, such as intellectual property, maritime, commodities, construction, insurance
and labor matters. These include the World Intellectual Property Organization (“WIPO”),
the London Maritime Arbitration Association (“LMAA”), the Court of Arbitration for Sport
(“CAS”), the National Grain and Feed Association (“NGFA”), the AIDA Reinsurance and
Insurance Arbitration Association (“ARIAS”) and similar organizations. In each case, these
institutions have adopted institutional rules and administer arbitrations conducted
pursuant to those rules.
§1.07 ELEMENTS OF INTERNATIONAL ARBITRATION AGREEMENTS

As already discussed, international arbitration is almost always consensual: arbitration
generally occurs pursuant to an arbitration agreement between the parties. (111) Parties
are largely free to draft their arbitration agreements in whatever terms they wish and in
practice this freedom is liberally exercised. Like other contractual clauses, the terms of
arbitration agreements are largely a product of the parties’ interests, negotiations and
P 37 drafting skills.
Article 7(1) of the UNCITRAL Model Law provides that “[a]n arbitration agreement may be
in the form of an arbitration clause in a contract or in the form of a separate agreement.”
Using this freedom, parties draft arbitration agreements that are either clauses within
underlying commercial contracts or stand-alone “arbitration agreements,” and that are
either very short, very long, or somewhere in between. National courts have upheld
arbitration clauses that are as brief as “English law – arbitration, if any, London according
ICC Rules,” and “arbitration – Hamburg, Germany.” (112) At the other extreme, arbitration
agreements in large transactions sometimes take the form of separately-executed
documents running to dozens of pages and (purportedly) addressing every procedural
eventuality.
[A] Submission Agreement Versus Arbitration Clause

It is possible for parties to agree to submit a dispute that has already arisen between the
parties to arbitration. The resulting agreement is called a “submission agreement” or
“compromise.” When an existing dispute is submitted to arbitration, the parties’
agreement must define that dispute and will also ordinarily select the arbitrators and
procedures for resolving the dispute. Typically, it is difficult to negotiate a submission
agreement once a dispute has arisen and litigation tactics have been explored. As a
18
consequence, the overwhelming majority of international arbitration agreements take
the form of clauses included in a commercial contract. Arbitration clauses of this
character typically apply to future disputes related to the parties’ contract. The
arbitration clause provides a mechanism for resolving future disputes, which have not yet
arisen (and may, hopefully, never arise).
[B] Critical Elements of International Arbitration Agreements

International arbitration agreements ordinarily address: (a) the agreement to arbitrate;
(b) the scope of disputes submitted to arbitration; (c) the use of an arbitral institution
and its rules; (d) the seat of the arbitration; (e) the method of appointment, number and
qualifications of the arbitrators; (f) the language of the arbitration; and (g) a choice-of-
law clause.
Critical Elements of International Arbitration Agreements
(1) Agreement to Arbitrate
(2) Scope of Disputes Submitted to Arbitration
(3) Institutional Arbitration Rules
(4) Arbitral Seat
P 38 (5) Arbitrators’ Number, Qualifications and Method of Selection
(6) Language of Arbitration
(7) Choice-of-Law Clauses
Other Provisions of International Arbitration Agreements
(1) Allocation of Legal Costs
(2) Interest and Currency of Award
(3) Disclosure or Discovery
(4) Fast-Track or Other Procedures
(5) Multi-Tier Dispute Resolution
(6) State/Sovereign Immunity
(7) Confidentiality
(8) Waiver of Annulment
(9) Multi-Party Provisions
[1] Agreement to Arbitrate
It seems tautological – but not always the case in practice – that any arbitration clause
must set forth the parties’ agreement to arbitrate. As a drafting matter, this means that
arbitration agreements should (and usually do) expressly refer to “arbitration” – and not
to expert determination, mediation, “ADR,” or some other form of dispute resolution.
These other forms of alternative dispute resolution are not categorized as “arbitration”
under many international treaties and arbitration statutes, and will often not qualify for
the “pro-enforcement” safeguards provided by these instruments. Accordingly, a critical
element of any international arbitration agreement is the parties’ undertaking that “all
disputes shall be finally resolved by arbitration ….”
Similarly, most arbitration agreements provide that disputes should be referred to
arbitration for a “binding” or “final” disposition, and not to an advisory recommendation.
In addition, arbitration clauses should treat arbitration as mandatory, and not as a
possible future option, applicable if the parties so agree after a dispute arises. Thus,
arbitration clauses usually (and should) provide that “all disputes shall be finally resolved
by arbitration ….”
[2] Scope of Arbitration Agreement
Critical to any arbitration clause is its “scope” – that is, the categories of disputes that
P 39 will be subject to arbitration. For example, an agreement to arbitrate may provide that
all disputes between the parties, bearing any connection to their contractual relations,
are subject to arbitration. Alternatively, the parties may agree that only contract claims
that arise under the express terms of their agreement (or, more narrowly, particular
provisions of that agreement) will be arbitrated or that particular types of claims are to
be excluded from an otherwise broad arbitration agreement. Alternatively, in the case of
a submission agreement, parties may agree to arbitrate only a single, pre-existing
dispute.
As a general rule, parties draft arbitration clauses broadly, to cover all disputes having
any connection with the parties’ dealings. Doing so avoids the expense arising from
parallel proceedings, where certain contractual disputes are arbitrated and other
contractual, or non-contractual, disputes are litigated. It also avoids the uncertainties
resulting from potentially inconsistent judgments and jurisdictional disputes over the
19
scope of the various proceedings.
There are a handful of formulae that are commonly used to define the scope of
arbitration clauses. These formulae include “any” or “all” disputes: (i) “arising under this
Agreement”; (ii) “arising in connection with this Agreement”; or (iii) ”relating to this
Agreement.” Alternative formulations include: (iv) “all disputes relating to this
Agreement, including any question regarding its existence, validity, breach or
termination”; or (v) “all disputes relating to this Agreement or the subject matter hereof.”
Even where the parties have agreed in principle to a broad arbitration clause, there may
be claims or disputes that one party does not want submitted to arbitration. This can
include matters such as intellectual property rights or payment obligations, which are
sometimes excluded or carved out of the scope of the arbitration clause. It is generally
advisable to avoid efforts to exclude particular types of disputes from arbitration, except
in very unusual circumstances. (113) Such exclusions can lead (undesirably) to parallel
proceedings in both the arbitral forum and national courts, and to jurisdictional disputes
over the application of a clause to particular claims.
[3] Institutional Arbitration Rules
As discussed above, institutional arbitration is conducted pursuant to procedural rules of
a particular arbitral institution. If institutional arbitration is desired, the parties’
arbitration agreement must select and refer to an arbitral institution and its rules. In
general, every arbitral institution provides its own model arbitration clause (see
examples below); parties wishing to invoke the institution’s rules should ordinarily use
this clause as the basis for their agreement, departing from it only with care and for
P 40 considered reasons.
Model UNCITRAL Arbitration Clause
“Any dispute, controversy or claim arising out of or relating to this contract, or the breach,
termination or invalidity thereof, shall be settled by arbitration in accordance with the
UNCITRAL Arbitration Rules.”
Model ICC Arbitration Clause
“All disputes arising out of or in connection with the present contract shall be finally
settled under the Rules of Arbitration of the International Chamber of Commerce by one
or more arbitrators appointed in accordance with the said Rules.”
Model SIAC Arbitration Clause
“Any dispute arising out of or in connection with this contract, including any question
regarding its existence, validity or termination, shall be referred to and finally resolved
by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in
accordance with the Arbitration Rules of the Singapore International Arbitration Centre
(“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by
reference in this clause.”
In cases where the parties do not desire institutional arbitration, they will sometimes
select a pre-existing set of procedural rules designed for ad hoc arbitrations (such as the
UNCITRAL Rules). Arbitration clauses frequently do so by references such as “all disputes
shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules ….”
[4] Seat or Place of Arbitration
Another vital element of any international arbitration agreement is designation of the
“seat” (or “place”) of the arbitration. This is the state where the arbitration has its formal
legal or juridical seat, and where the arbitral award will formally be made. The text of
contractual provisions selecting the arbitral seat is not complex, usually only providing:
“The seat of the arbitration shall be [New York, New York].”
As discussed below, there are a number of legal and practical consequences that follow
from selection of an arbitral seat, making this one of the most important aspects of any
international arbitration agreement. These consequences include the selection of the
procedural law of the arbitration and the national courts responsible for applying that
law, the national courts responsible for issues relating to constitution of the tribunal and
the national courts responsible for (and arbitration law applicable to) annulment of
arbitral awards. (114) All of these issues are of substantial importance to the arbitral
P 41 process in international matters.
[5] Number, Method of Selection and Qualifications of Arbitrators

It is common for arbitration agreements to address the number, means of appointment
and qualifications of the arbitrators. (115) Selection of the arbitrators is one of the most
critical issues in any arbitration. Addressing this issue in the arbitration agreement is
vitally important to the effectiveness of the process.
Arbitration clauses often specify the number of persons who will comprise the tribunal in
the event of future disputes. If the parties do not agree upon the number of arbitrators,
institutional rules generally grant the institution power to do so; otherwise, national
courts will have the power to decide, pursuant to default rules in arbitration legislation.
20
Nonetheless, relying on a judicial or institutional decision regarding the number of
arbitrators can result in delays or disputes. As a consequence, parties often specify the
number of arbitrators (usually one or three) in their arbitration clause. (116)
It is also important for an arbitration clause to include a method for selecting the
arbitrator(s). Some clauses identify a specific individual as arbitrator (e.g., “The
arbitrator shall be Natascha Born.”). The most common provision for selection of the
arbitrator is designation of an “appointing authority,” which will select a sole arbitrator
or presiding arbitrator in the event that the parties cannot do so; in three-person
tribunals, many arbitration clauses permit each party to select a party-nominated
arbitrator, with the appointing authority choosing the presiding arbitrator. Most
institutional rules provide for such a role by the administering institution when parties
agree to arbitrate under the institution’s rules, (117) and no special wording (aside from
adopting the institution’s rules) is necessary to select the institution as the appointing
authority.
[6] Language of Arbitration
Arbitration clauses also frequently specify the language (or languages) of the arbitral
proceedings and award. This is a point of vital importance, which can have a profound
practical effect on the selection of the arbitrators and character of the arbitral
proceedings. (118)
Absent the parties’ agreement, institutional rules usually authorize the tribunal to select
the language (or languages) of the arbitration. This will often be the language of the
underlying contract, although some regional institutional rules provide that the default
language of the arbitration shall be that of the country where the institution is based
(e.g., for CIETAC, Chinese). Even if institutional rules do not address the issue, national law
will ordinarily give the tribunal authority to select a language for the arbitration.
Nonetheless, there is seldom any reason to leave this issue to chance, particularly
P 42 given the simplicity of a provision to the effect that “the language of the arbitration shall
be [English].”
[7] Choice-of-Law Clauses
International arbitration can give rise to tortuous choice-of-law questions. As a
consequence, many arbitration agreements are accompanied by a choice-of-law clause,
specifying the substantive law applicable to the parties’ underlying contract and related
disputes. (119) A common formulation is “This Agreement will be governed by, and all
disputes relating to or arising in connection with this Agreement shall be resolved in
accordance with, the laws of [State X].”
[C] Other Provisions of International Arbitration Agreements

Many arbitration agreements also contain other provisions, in addition to the elements
discussed above. The character of these provisions varies from case to case, depending
on the parties’ interests. The most common additional elements include: (a) legal costs;
(b) interest and currency of the award; (c) disclosure powers of the tribunal; (d) fast-track
or other procedural rules, including so-called escalation clauses; (e) state/sovereign
immunity waivers; (f) confidentiality; and (g) waivers of rights to seek annulment of an
award. (120)
§1.08 OVERVIEW OF CHOICE OF LAW IN INTERNATIONAL COMMERCIAL

ARBITRATION
Choice-of-law issues play an important role in international commercial arbitration. It is
necessary to distinguish between four choice-of-law issues that can arise in connection
with an international arbitration: (a) the substantive law governing the merits of the
parties’ underlying contract and other claims; (b) the law governing the parties’
arbitration agreement; (c) the law applicable to the arbitral proceedings (also called the
“procedural law of the arbitration,” “curial law” or “lex arbitri”); and (d) the conflict of laws
rules applicable to select each of the foregoing laws. Although not common, it is possible
P 43 for each of these four issues to be governed by a different national (or other) law.
Choices of Law in International Arbitration
1. Substantive Law Governing Merits of Parties’ Dispute (including Underlying Contract)
2. Substantive Law Governing Arbitration Agreement
3. Procedural Law Applicable to Arbitral Proceedings
4. Conflict of Laws Rule
Each of the foregoing choice-of-law issues can have a vital influence on international
arbitral proceedings. Different national laws provide different – sometimes dramatically
different – rules applicable at different stages of the arbitral process. Understanding
which national rules will potentially be applicable can therefore be critical.
[A] Law Applicable to Substance of Parties’ Dispute
21
The parties’ underlying dispute will ordinarily (121) be resolved under the rules of
substantive law of a particular national legal system. In the first instance, it will usually
be the arbitrators who determine the substantive law applicable to the parties’ dispute.
As discussed in detail below, international arbitral awards typically give effect to the
parties’ agreements concerning applicable substantive law (“choice-of-law clause”). (122)
The principal exception is where mandatory national laws or public policies override
contractual arrangements.
Where the parties have not agreed upon the substantive law governing their dispute, the
arbitral tribunal must determine which law applies. In so doing, the tribunal will
P 44 sometimes refer to national or international conflict of laws rules. (123) Although the
historical practice was to apply the national conflict of laws rules of the arbitral seat,
more recent practice is diverse. Some tribunals and commentators adhere to the
traditional approach, while others look to the conflicts rules of all states having a
connection with the dispute; alternatively, some authorities adopt either international
conflict of laws rules or a “validation” principle.
[B] Law Applicable to Arbitration Agreement

As discussed elsewhere, arbitration agreements are universally regarded as
presumptively “separable” from the underlying commercial contract in which they
appear. One consequence of this is that the parties’ arbitration agreement may be
governed by a different national law than that of the underlying contract. The governing
law may be chosen by the parties or determined, in the absence of any choice, by
applying conflict of laws rules (which may select different laws for the parties’ arbitration
agreement and underlying contract).
As described below, four alternatives for the law governing an arbitration agreement are
of particular importance: (a) the law chosen by the parties to govern the arbitration
agreement itself; (b) the law of the arbitral seat; (c) the law governing the parties’
underlying contract; and (d) international principles, either applied as a substantive
body of contract law (as in France) or as rules of non-discrimination (as in most U.S.
authority). (124)
[C] Procedural Law Applicable to Arbitral Proceedings

The arbitral proceedings themselves are subject to legal rules, governing both “internal”
procedural matters and “external” relations between the arbitration and national courts.
In most instances, the law governing the arbitral proceeding is the arbitration statute of
the arbitral seat. (125)
Among other things, the law of the arbitral seat typically deals with such issues as the
appointment and qualifications of arbitrators, the qualifications and professional
responsibilities of parties’ legal representatives, the extent of judicial intervention in the
arbitral process, the availability of provisional relief, the procedural conduct of the
arbitration, the form of an award and standards for annulment of an award. Different
national laws take different approaches to these various issues. In some countries,
national law imposes significant limits or requirements on the conduct of the arbitration
and local courts have broad powers to supervise arbitral proceedings. Elsewhere, and in
most developed jurisdictions, local law affords international arbitrators broad freedom
to conduct the arbitral process – subject only to basic requirements of procedural
regularity (“due process” or “natural justice”).
In many jurisdictions, parties are free to select the procedural law of the arbitration (as
discussed below). This includes, in some jurisdictions, the freedom to agree to the
application of a different procedural law than that of the arbitral seat. This occurs only in
very rare cases and should ordinarily be avoided because of the uncertainties it creates,
including as to which national courts may select and remove arbitrators or annul awards.
[D] Choice-of-Law Rules Applicable in International Arbitration

Selecting each of the bodies of law identified in the foregoing three sections – the law
applicable to the merits of the underlying contract, the arbitration agreement and the
arbitral proceedings – ordinarily requires application of conflict of laws rules. In order to
select the substantive law governing the parties’ dispute, for example, the tribunal must
ordinarily apply a conflict of laws system. A tribunal must therefore decide at the outset
what set of conflicts rules to apply to select each of these systems of law. The practice of
tribunals in selecting the law applicable to each of the foregoing issues varies
P 45 significantly. As discussed in greater detail below, approaches include application of:
(a) the arbitral seat’s conflict of laws rules; (b) “international” conflict of laws rules; (c)
successive application of the conflict of laws rules of all interested states; and (d) “direct”
application of substantive law (without any express conflicts analysis).
[E] International Guidelines and Best Practices

In addition to treaties, national law and institutional arbitration rules, there are a
number of international guidelines or codes of best practice regarding the conduct of
international arbitrations. These materials can provide important sources of guidance for
22
both tribunals and parties, making the arbitral process more predictable and
transparent, while not curtailing the parties’ and arbitrators’ ability to tailor arbitral
procedures in particular cases to the individual needs of those cases.
[1] IBA Rules on the Taking of Evidence in International Arbitration
Although not a set of institutional arbitration rules, the International Bar Association’s
“Rules on the Taking of Evidence in International Arbitration” (“IBA Rules” or “IBA Rules on
the Taking of Evidence”) fulfill related functions. The IBA Rules are reportedly used in 77%
of international arbitrations. (126)
In 1983, the IBA adopted the “Supplementary Rules Governing the Presentation and
Reception of Evidence in International Commercial Arbitration.” The Rules attempted to
provide a blend of civil law and common law approaches to the subjects of discovery and
evidentiary presentations in arbitration. The IBA Rules were extensively revised in 1999,
and retitled the “Rules on the Taking of Evidence in International Commercial
Arbitration.” The 1999 IBA Rules established a reasonably-detailed and workable set of
procedures for witness evidence and disclosure requests in international arbitrations.
The 1999 IBA Rules were revised in 2010 and (again) retitled “Rules on the Taking of
Evidence in International Arbitration,” now extending to investor-state and inter-state
arbitrations, as well as international commercial arbitrations. The 2010 IBA Rules attempt
to provide for a more efficient evidence-gathering process than prior versions, by calling
for early involvement of the tribunal and setting forth specific guidelines regarding
electronic documents, witness statements and expert reports. The 2010 IBA Rules also
provide an express requirement of good faith in the taking of evidence, and authorize
arbitral tribunals to consider violations of this obligation in awarding costs.
In 2020, the IBA Rules were revised yet again. Like their predecessors, the 2020 IBA Rules
are not independently binding, but are intended for incorporation into parties’
arbitration agreements or to provide the rationale for tribunals’ procedural rulings. The
2020 IBA Rules contain detailed provisions (discussed below) on witness statements (fact
and expert), witness examination and disclosures.
P 46 The revised 2020 IBA Rules attempt to reflect modern best practices on the conduct of
hearings and arbitral proceedings, including the practices on remote hearings and hybrid
hearings developed by parties and arbitral tribunals during the COVID-19 pandemic. The
revised Rules provide that arbitral tribunals may consult the parties regarding the
treatment of any issues of cybersecurity and data protection, and include new provisions
on remote hearings, including a requirement that the arbitral tribunal consult with the
parties with a view to establishing a remote hearing protocol to conduct such hearings
efficiently, fairly and, to the extent possible, without unintended interruptions.
[2] Prague Rules on the Efficient Conduct of Proceedings in International Arbitration
The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration
(“Prague Rules”) were adopted in December 2018 and are intended to provide an
alternative to the IBA Rules. The drafters of the Prague Rules designed the Rules to
encourage tribunals to take a more active role in arbitral proceedings, consistent with
approaches in some civil law countries.
Unlike the IBA Rules, the Prague Rules discourage any form of document production,
encourage the arbitral tribunal to intervene to a greater extent in determining which
witnesses are cross-examined, and give the tribunal the right to apply legal provisions
not pleaded by the parties. The Prague Rules also provide for the assistance of the
tribunal in achieving an amicable settlement, including the right of the tribunal to act as
mediator. The reception to the Prague Rules has been mixed, and it remains to be seen
whether they will be widely adopted in international arbitrations.
[3] ABA/AAA Code of Ethics, IBA Rules of Ethics and IBA Guidelines on Conflicts of Interest
in International Arbitration
Non-binding international guidelines have been adopted by the IBA and other bar
associations with regard to the ethics of international arbitrators. In 1977, a joint
committee of the American Bar Association (“ABA”) and American Arbitration Association
adopted the ABA/AAA Code of Ethics. The ABA/AAA Code of Ethics was amended in 2004,
principally to impose presumptive duties of independence and impartiality on co-
arbitrators.
In 1987, the IBA adopted “Rules of Ethics for International Arbitrators.” Derived in part
from the ABA/AAA Code, the IBA Rules of Ethics sought to establish ethical standards for
application to international arbitrators. The IBA Rules of Ethics were (and remain)
influential guidelines in international arbitration practice.
In 2004, the IBA published a detailed set of guidelines and accompanying commentary
concerning the impartiality and independence of arbitrators (the “IBA Guidelines on
Conflicts of Interest in International Arbitration”). The Guidelines were (modestly)
amended in 2014. As discussed below, the IBA Guidelines detail circumstances which are
customarily considered to raise potential doubts regarding an arbitrator’s independence
P 47 or impartiality, and supersede the IBA Rules of Ethics in this regard; they also provide
23
for disclosure of such circumstances by arbitrators and prospective arbitrators. (127)
[4] IBA Guidelines on Party Representation in International Arbitration
In 2013, the IBA adopted “Guidelines on Party Representation in International
Arbitration,” which seek to provide guidance regarding the conduct of counsel and other
party representatives in international commercial, investment and other arbitrations.
The Guidelines are not intended to “displace otherwise applicable mandatory laws,
professional or disciplinary rules, or agreed arbitration rules that may be relevant or
applicable to matters of party representation,” and instead purport to be purely
“contractual” in nature and applicable only when adopted by the parties. (128)
The Guidelines are “inspired by the principle that party representatives should act with
integrity and honesty and should not engage in activities designed to produce
unnecessary delay or expense, including tactics aimed at obstructing the arbitration
proceedings.” (129) As discussed below, the Guidelines set forth 27 principles, with
accompanying commentary, regarding the professional conduct of party representatives
in international arbitrations, focusing in particular on conduct during the arbitral
proceedings (including disclosure, witness preparation, submissions to the tribunal, and
similar subjects). (130)
[5] UNCITRAL Notes on Organizing Arbitral Proceedings
In 1996, UNCITRAL published the “UNCITRAL Notes on Organizing Arbitral Proceedings.”
The UNCITRAL Notes are non-binding guidelines for arbitrators and parties which are
designed to identify issues that frequently arise in the course of international
arbitrations. Among other things, the UNCITRAL Notes briefly discuss procedural rules,
communications, written submissions, evidence, witnesses, and hearings. The UNCITRAL
Notes were extensively updated in 2016, with new provisions addressing cost allocation,
joinder and consolidation, and in-house legal costs.
§1.09 INVESTOR-STATE ARBITRATION

Most international arbitrations are international commercial arbitrations, arising from
commercial dealings between private parties. Another significant, if less common,
category of international arbitration involves “investor-state” or “investment” arbitrations,
usually conducted pursuant to the arbitration provisions of a specialized multilateral or
bilateral investment treaty, or, less frequently, pursuant to the arbitration clauses in
state contracts.
Investment arbitrations involve “investment disputes” between foreign investors and host
P 48 states. As discussed in Chapter 18 below, investment disputes usually involve claims of
expropriation without full compensation, unfair or inequitable treatment, or
discriminatory treatment of a foreign investor by a host state. In most cases, investment
arbitrations involve only claims by investors against the host state (and not
counterclaims against the investor).
[A] ICSID Convention

As noted above, the ICSID Convention is a specialized international treaty (with 163
Contracting Parties (as of February 2021) from all regions of the world) designed to
facilitate the settlement of “investment disputes” (i.e., “legal dispute[s] arising directly
out of … investment[s]”). (131) The ICSID Convention provides a stand-alone legal regime
for ICSID arbitration agreements and arbitral awards (which are generally not subject to
the New York Convention or generally-applicable national arbitration legislation).
Arbitrations under the ICSID Convention are administered by ICSID, a specialized arbitral
institution, which has promulgated the ICSID Arbitration Rules (and related conciliation
rules). The ICSID Convention and Arbitration Rules are discussed in greater detail below.
(132)
[B] Bilateral Investment Treaties

Investment arbitrations can also arise under bilateral investment treaties (“BITs”), which
became common during the 1980s and 1990s as a means of encouraging capital
investment in developing markets. More than 2,300 BITs are presently operative, with new
BITs being concluded each year. (133)
As discussed below, most BITs provide significant substantive protections for investments
made by foreign investors, including guarantees against expropriation and denials of fair
and equitable treatment. BITs also frequently contain dispute resolution provisions
which permit foreign investors to require international arbitration (typically referred to
as “investor-state arbitration”) of specified categories of investment disputes with the
host state; (134) these provisions permit investors to require arbitration of investment
disputes in the absence of a traditional contractual arbitration agreement with the host
state (so-called “arbitration without privity”). (135) Unlike ICSID arbitrations, BIT arbitral
awards are often subject to the New York Convention and general national arbitration
legislation. The role of BITs in investor-state arbitration is discussed in Chapter 18 below.
P 49
24
§1.10 STATE-TO-STATE ARBITRATION
An even more specialized category of international arbitration involves “state-to-state” or
“inter-state” arbitrations, also discussed in Chapter 18 below. Inter-state arbitrations
typically involve disputes between two states or state-like entities and often raise issues
of public international law. Many state-to-state arbitrations arise from boundary
disputes (involving either land or maritime boundaries). (136)
Many state-to-state arbitrations are ad hoc and are conducted pursuant to specially-
negotiated procedural rules. Alternatively, some inter-state arbitrations are conducted
pursuant to the PCA’s rules for arbitrations between states (discussed above). Inter-state
arbitration agreements and awards are, in many cases, not subject to enforcement under
the New York Convention, in large part because of reservations limiting the Convention to
“commercial” matters, or national arbitration legislation. Nonetheless, where states or
state entities arbitrate commercial or financial disputes, arbitral awards are in principle
subject to recognition and enforcement under the New York Convention and generally-
P 49 applicable arbitration legislation in many states.
References
1) See Benson Pump Co. v. S. Cent. Pool Supply, Inc., 325 F.Supp.2d 1152, 1155 (D. Nev.
2004) (“[N]o magic words such as ‘arbitrate’ … are required to obtain the benefits of
the FAA…. [I]f the parties have agreed to submit a dispute for a decision by a third
party, they have agreed to arbitration.”); Taylor v. Yielding (1912) 56 Sol Jo 253 (Ch)
(“you cannot make a valuer an arbitrator by calling him so, or vice versa”).
2) See Dynasty Stainless Steel & Metal Indus., Inc. v. Hill Int’l, Inc., 2018 WL 4259776, at *4
(E.D.N.Y.) (“Courts have generally concluded that ‘[n]o magic words such as
“arbitrate” or “binding arbitration” or “final dispute resolution” are needed to
obtain the benefits of the [FAA]’”); Wilky Prop. Holdings plc v. London & Surrey Invs.
Ltd [2011] EWHC 2226, ¶27 (Ch) (English High Ct.) (“The way in which the dispute
resolution process is described or labelled by the parties in their agreement is not
conclusive as to the true character of that process”).
3) Judgment of 21 November 2003, DFT 130 III 66, ¶3.1 (Swiss Fed. Trib.).
4) Methanex Motunui Ltd v. Spellman, [2004] 1 NZLR 95 (Auckland High Ct.).
5) Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (U.S. S.Ct. 1974).
6) Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, ¶51 (Canadian S.Ct.).
See Baytur SA v. Finagro Holding SA [1991] 3 WLR 866, 872 (English Ct. App.) (“nature of
arbitration as a consensual method of settling disputes”).
7) Granite Rock Co. v. Int’l Bhd of Teamsters, 561 U.S. 287, 299 (U.S. S.Ct. 2010) (emphasis
added) (quoting Volt Info. Sciences, Inc. v. Stanford Univ., 389 U.S. 468, 475–76 (U.S.
S.Ct. 1989)); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (U.S. S.Ct. 2002)
(quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (U.S. S.Ct. 1960)).
See Judgment of 8 July 2003, DFT 129 III 675, 679 (Swiss Fed. Trib.) (“The statute does
not define the minimal content of an arbitration agreement. It results from the
purpose of the arbitration agreement that the intent of the parties must be
expressed to submit certain existing or future disputes to an arbitral tribunal, i.e.
not a state court.”).
8) See infra pp. 145–73. See also Jivraj v. Hashwani [2011] UKSC 40 (U.K. S.Ct.). In cases
when no agreement on either the arbitrator(s) or an institutional appointing
authority is possible, national courts can provide a default mechanism for
appointment of arbitrators. See infra p. 154.
9) See infra p. 56 and pp. 83–86.
10) See, e.g., Salt Lake Tribune Publ’g Co., LLC v. Mgt Planning, Inc., 390 F.3d 684, 689
(10th Cir. 2004) (“one feature that must necessarily appertain to a process to render
it an arbitration is that the third party’s decision will settle the dispute”);
Walkinshaw v. Diniz [2000] 2 All ER (Comm) 237 (English High Ct.) (agreement “must
contemplate that the tribunal which carries on the process will make a decision
which is binding on the parties”); Judgment of 17 June 2004, Le Parmentier v. La
Société Miss France, XXX Y.B. Comm. Arb. 119, 123–24 (2005) (Paris Cour d’Appel)
(Uniform Domain Name Resolution Policy dispute resolution proceeding is not
arbitration because it “allows for a recourse to state courts to have the dispute re-
adjudged, both before the administrative proceeding is commenced and after it is
concluded and, … during the proceeding.”).
11) See, e.g., Portland Gen. Elec. Co. v. U.S. Bank Trust Nat’l Ass’n, 218 F.3d 1085, 1090 (9th
Cir. 2000) (“arbitration agreements permit arbitrators to resolve pending disputes
generally through adversary hearings at which evidence is admitted and the
arbitrator plays a quasi-judicial role”); Walkinshaw v. Diniz [2000] 2 All ER (Comm)
237 (English High Ct.) (“It is a characteristic of arbitration that the parties should
have a proper opportunity of presenting their case”).
25
12) See Omni Tech Corp. v. MPC Solutions Sales, LLC, 432 F.3d 797, 799 (7th Cir. 2005)
(“many contracts have venue or forum-selection clauses. These do not call for
arbitration but are routinely enforced”); Sonatrach Petroleum Corp. (BVI) v. Ferrell
Int’l Ltd [2002] 1 All ER (Comm) 627 (English High Ct.) (agreement to arbitrate must
establish the parties’ objective intention to arbitrate rather than refer disputes to
national courts).
13) Hague Convention of 30 June 2005 on Choice of Court Agreements, available at
http://www.hcch.net. See G. Born & P. Rutledge, International Civil Litigation in
United States Courts 507, 525, 1207 (6th ed. 2018).
14) G. Born, International Commercial Arbitration 297–303 (3d ed. 2021). See also Report
of the Secretary General on the Possible Uniform Rules on Certain Issues Concerning
Settlement of Commercial Disputes: Conciliation, Interim Measures of Protection,
Written Form for Arbitration Agreement, U.N. Doc. A/CN.9/WG.II/WP.108, ¶11 (2000).
15) See, e.g., UNCITRAL Model on Law International Commercial Conciliation, in Report of
the United Nations Commission on International Trade Law on Its Thirty-Fifth Session,
U.N. Doc. A/57/17, Annex 1.
16) See G. Born, International Commercial Arbitration 282–97 (3d ed. 2021); C. Freedman &
J. Farrel, Kendall on Expert Determination ¶¶1.1.1–2 (5th ed. 2015).
17) See G. Born, International Commercial Arbitration 284 (3d ed. 2021).
18) See, e.g., Portland Gen. Elec. Co. v. U.S. Bank Trust Nat’l Ass’n, 218 F.3d 1085, 1090 (9th
Cir. 2000) (appraisal provision “did not attempt to usurp the judiciary’s power to
resolve the case as a whole, [but is] typically limited to ministerial determinations
such as the ascertainment of quality or quantity of items, the ascertainment of loss
or damage to property or the ascertainment of the value of property”); Penton
Business Media Holdings, LLC v. Informa plc, 2018 WL 3343495 (Del. Ch.)
(distinguishing expert determination from arbitration); Judgment of 19 February
2015, Case No. 14-13.716 (French Cour de Cassation Civ. 2) (“an [expertise-arbitrage]
agreement drawn up by the insurer, specifying only that the conclusions of this
review will be binding [upon the parties] does not contain any unequivocal waiver
by the insured of the right to have recourse to judicial review” and does not
constitute arbitration agreement).
19) The name is derived from a form of dispute resolution used in fixing the salaries of
professional athletes in the United States. See G. Born, International Commercial
Arbitration 309–10 (3d ed. 2021).
20) As discussed below, by virtue of Article I(1), the New York Convention is applicable
to specified categories of “foreign” or “non-domestic” arbitral awards. See supra pp.
445–49. The Convention does not define expressly the arbitration agreements to
which it applies; it is best interpreted as applying to all “international” arbitration
agreements, wherever they are seated, rather than to purely domestic arbitration
agreements. See G. Born, International Commercial Arbitration 340–47 (3d ed. 2021).
21) Article 1(3) of the Model Law provides: “An arbitration is international if (a) the
parties to an arbitration agreement have, at the time of the conclusion of that
agreement, their places of business in different States; or (b) one of the following
places is situated outside the State in which the parties have their places of
business: (i) the place of arbitration if determined in, or pursuant to, the arbitration
agreement; (ii) any place where a substantial part of the obligations of the
commercial relationship is to be performed or the place with which the subject-
matter of the dispute is most closely connected; or (c) the parties have expressly
agreed that the subject matter of the arbitration agreement relates to more than
one country.” Similar definitions apply in the United States, France, England and
elsewhere. G. Born, International Commercial Arbitration 351–62 (3d ed. 2021).
22) In a number of jurisdictions, arbitration legislation applies to both domestic and
international arbitrations. For example, England, Germany and Hong Kong’s
enactments of the UNCITRAL Model Law deleted provisions limiting the legislation’s
application to “international” arbitrations, extending it to all arbitrations. English
Arbitration Act, 1996, §2; German ZPO, §1025; Hong Kong Arbitration Ordinance, §5.
Even then, such legislation often has specific provisions that treat international and
domestic arbitration differently with regard to particular subjects. See G. Born,
International Commercial Arbitration 131–34 (3d ed. 2021).
23) See G. Born, International Commercial Arbitration 83–87 (3d ed. 2021); UNCITRAL,
Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International
Commercial Arbitration as Amended in 2006 ¶15 (2008) (“the parties to an arbitration
agreement make a conscious decision to exclude court jurisdiction and prefer the
finality and expediency of the arbitral process”); Stipanowich, Rethinking American
Arbitration, 63 Ind. L.J. 425, 438–40 (1987) (“speed and efficiency” of arbitral process).
26
24) Blue Tee Corp. v. Koehring Co., 999 F.2d 633 (2d Cir. 1993) (“This appeal … makes one
wonder about the alleged speed and economy of arbitration in resolving
commercial disputes.”); Croft, Arbitrators Disappoint in Business Disputes, Study
Finds, Fin. Times 7 (4 Oct. 2010) (“Half of the multinational companies using
arbitration to settle business disputes have been disappointed with the
performance of their arbitrator”); Lyons, Arbitration: The Slower, More Expensive
Alternative, Am. Lawyer 107 (Jan./Feb. 1985); Queen Mary, University of London,
International Arbitration Survey: The Evolution of International Arbitration 7–8 (2018)
(“Previous surveys by the School dating as far back as 2006 have shown that users
are most discontent with the ‘cost’ of arbitration. The current survey continues to
confirm this trend as ‘cost’ is yet again the most selected option, and by a
significant margin.”).
25) G. Born, International Commercial Arbitration 73–74 (3d ed. 2021). As discussed below,
international arbitration agreements are typically drafted expansively and given
broad effect, including to preclude the parallel litigation of the same or similar
claims in national courts. This facilitates the parties’ objective of centralizing their
disputes in a single forum for prompt, efficient resolution. See infra pp. 73–79.
26) Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 13–14 (U.S. S.Ct. 1972) (in context of a
forum selection clause). See also Judgment of 15 March 1990, DFT 116 1a 56, 58 (Swiss
Fed. Trib.).
27) See Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Disputes, in C. Drahozal & R. Naimark (eds.), Towards A Science of International
Arbitration: Collected Empirical Research 31, 35 (2005); Queen Mary, University of
London, International Arbitration Survey: The Evolution of International Arbitration 7
(2018).
28) G. Born, International Commercial Arbitration 71–73 (3d ed. 2021). Users of
international arbitration identify neutrality as one of the most important benefits of
the process. Bühring-Uhle, A Survey on Arbitration and Settlement in International
Business Disputes, in C. Drahozal & R. Naimark (eds.), Towards A Science of
International Arbitration: Collected Empirical Research 33 (2005); Queen Mary,
University of London, International Arbitration Survey: The Evolution of International
Arbitration 7 (2018).
29) Sometimes parties will not agree upon any dispute resolution provisions, leaving it
to post-dispute litigation to determine the place (or places) where their dispute will
be resolved. That approach is usually disfavored by commercial parties because it
produces substantial uncertainties and inefficiencies.
30) See G. Born, International Commercial Arbitration 77–80 (3d ed. 2021).
31) Queen Mary, University of London, International Arbitration Survey: The Evolution of
International Arbitration 7 (2018); Naimark & Keer, International Private Commercial
Arbitration – Expectations and Perceptions of Attorneys and Business People, in C.
Drahozal & R. Naimark (eds.), Towards A Science of International Arbitration:
Collected Empirical Research 45, 49 (2005) (expertise as one of several significant
objectives).
32) Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Arbitration: Collected Empirical Research 34 & n.28 (2005).
33) Lazareff, International Arbitration: Towards A Common Procedural Approach, in S.
Frommel & B. Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration 31, 33
(1999).
34) As discussed below, Article II of the New York Convention and Article 8 of the
UNCITRAL Model Law provide for the presumptive validity and enforceability of
international arbitration agreements. See infra pp. 90–94.
International Arbitration 7 (2018); Queen Mary, University of London, Corporate
Choices in International Arbitration Survey: Industry Perspectives 1, 7 (2013). See
Bühring-Uhle, A Survey on Arbitration and Settlement in International Business
Arbitration: Collected Empirical Research 31, 35 (2005) (one of the “two most
significant advantages [of] arbitration as a means of international commercial
dispute resolution [is] … the superiority of its legal framework with treaties like the
New York Convention”).
36) Brussels Regulation (recast) EU Regulation 1215/2012; Brussels I Regulation, EC
Regulation 44/2001, O.J. L 012, 16/01/2001, Art. 23.
37) See, e.g., Warsaw Convention (Convention for the Unification of Certain Rules
Relating to International Carriage by Air), Signed at Warsaw, 12 October 1929, as
Amended at the Hague, 1955, and by Protocol No. 4 of Montreal, 1975, ICAO Doc. 9148.
38) See infra pp. 363–69.
27
39) The Hague Convention on Choice of Court Agreements, which entered into force in
October 2015 and of which the European Union (except Denmark) and Mexico are
parties, prescribes broadly-applicable international standards applicable to the
recognition and enforcement of judgments based on forum selection agreements.
However, even if a significant number of states ratify the Convention, the Convention
is subject to important exceptions and limitations, which will likely detract
materially from its efficacy. At least for the foreseeable future, like arbitration
agreements, arbitral awards will therefore enjoy a substantial “enforceability
premium” as compared to national court judgments.
International Arbitration 8 (2018) (lack of appeal mechanism on merits is eighth least
desirable characteristic of arbitration). See also Bühring-Uhle, A Survey on
Arbitration and Settlement in International Business Disputes, in C. Drahozal & R.
Naimark (eds.), Towards A Science of International Arbitration: Collected Empirical
Research 32, 35 (2005); Shavell, Alternative Dispute Resolution: An Economic Analysis,
24 J. Legal Studies 1, 6 (1995).
41) See infra pp. 294–96; G. Born, International Commercial Arbitration 81–83 (3d ed.
2021).
42) CPR Institute for Dispute Resolution Commission on the Future of Arbitration,
Commercial Arbitration at Its Best: Successful Strategies for Business Users xxiii
(2000) (“Ultimately, many business users regard control over the process – the
flexibility to make arbitration what you want it to be – as the single most important
advantage of binding arbitration and other forms of ADR”); Queen Mary, University of
London, International Arbitration Survey: The Evolution of International Arbitration 7,
8 (2018).
44) See infra pp. 233–39. Even where such obligations exist, they are subject to
exceptions which have the effect that arbitral awards are sometimes made public,
either in enforcement actions or otherwise.
45) Empirical research suggests that confidentiality is a material, but not primary,
motivation for international arbitration agreements. Bühring-Uhle, A Survey on
Arbitration and Settlement in International Business Disputes, in C. Drahozal & R.
Naimark (eds.), Towards A Science of International Arbitration: Collected Empirical
Research 35 (2005) (confidentiality third in list of 11 reasons for arbitration); Queen
Mary, University of London, International Arbitration Survey: The Evolution of
International Arbitration 24 (2018) (“87% of respondents believe that confidentiality
in international commercial arbitration is of importance”).
46) Under some national laws, agreements to arbitrate are regarded as waivers of
foreign state immunity. This is true, for example, under the Foreign Sovereign
Immunities Act, 28 U.S.C. §1605(a)(6), in the United States. Nonetheless, it is prudent
to include express sovereign immunity waivers in commercial contracts with foreign
states and their companies. See G. Born, International Arbitration and Forum
Selection Agreements: Drafting and Enforcing 137 (6th ed. 2021).
47) “Investment contracts” between foreign investors and their host state are discussed
in Chapter 18 below. See infra pp. 491–523.
48) Buchanan, Public Policy and International Commercial Arbitration, 26 Am. Bus. L.J. 511,
512 (1988).
49) Lyons, Arbitration: The Slower, More Expensive Alternative, Am. Law. 107 (Jan./Feb.
1985).
50) In re Canadian Gulf Line, 98 F.2d 711, 714 (2d Cir. 1938) (Learned Hand, J.).
51) Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 987 n.32 (2d Cir. 1942).
52) See Queen Mary, University of London, International Arbitration Survey: The Evolution
of International Arbitration 8 (2018) (“Despite the fact that international arbitration
as a system is not without its flaws, it remains the best available option in the view
of its users”).
53) Lalive, Transnational (or Truly International) Public Policy in Arbitration, in P. Sanders
(ed.), Comparative Arbitration Practice and Public Policy in Arbitration 257, 293 (1987).
54) C. Drahozal & R. Naimark, Towards A Science of International Arbitration: Collected
Empirical Research 59 (2005) (88% of surveyed international joint venture
agreements contain arbitration clauses); Queen Mary, University of London,
International Arbitration Survey: The Evolution of International Arbitration 8 (2018)
(“Consistent with the overwhelming general preference shown for arbitration, when
asked whether they would choose or recommend international arbitration to resolve
cross-border disputes in the future, more than 99% of respondents replied
affirmatively”).
55) Geneva Protocol on Arbitration Clauses in Commercial Matters (“Geneva Protocol”),
27 L.N.T.S. 158 (1924).
56) Geneva Convention on the Execution of Foreign Arbitral Awards (“Geneva
Convention”), 92 L.N.T.S. 302 (1929). See G. Born, International Commercial Arbitration
61–67 (3d ed. 2021).
57) 330 U.N.T.S., No. 4739.
58) Sanders, The History of the New York Convention, in A. van den Berg (ed.), Improving
the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the
New York Convention 11, 12 (1999).
28
59) A. van den Berg, The New York Arbitration Convention of 1958 1 (1981). See also G.
Born, International Commercial Arbitration 98–99 (3d ed. 2021).
60) Schwebel, A Celebration of the United Nations New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, 12 Arb. Int’l 83, 85 (1996).
62) A. van den Berg, The New York Arbitration Convention of 1958 1, 54–55, 168–69, 262–63,
357–58 (1981).
63) See New York Convention, Arts. III-V; see infra pp. 453–56. The shift in the burden of
proof was accomplished by Articles III and V, which required the award-creditor to
present only minimal evidence in support of recognition of an award (in Article III),
while specifying only limited grounds, which needed affirmatively to be proven, that
could result in non-recognition (in Article V). See infra pp. 450–56.
64) See New York Convention, Arts. V(1)(a), 1(d); see supra p. 14 and infra pp. 181–82.
65) See supra pp. 18–21 and infra p. 332 and p. 458.
66) See
https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards/s
tatus2 for a list of states that have ratified the Convention
67) In ratifying the Convention, many states have attached reservations that can
sometimes have consequences in private disputes. These reservations frequently
deal with reciprocity and limiting the Convention’s applicability to disputes arising
from “commercial” relations. See infra pp. 56–57.
68) New York Convention, Arts. VII(1)-(2). See G. Born, International Commercial
Arbitration 117–119, 259, 264–65, 659–60, 712–15 (3d ed. 2021).
69) New York Convention, Arts. VII(1)-(2).
70) See G. Born, International Commercial Arbitration 105, 3227–35, 3741–47 (3d ed. 2021).
72) See Born, The New York Convention: A Self-Executing Treaty, 40 Mich. J. Int’l L. 115
(2018).
73) For representative examples, see GE Energy Power Conversion France SAS, Corp. v.
Outokumpu Stainless USA, LLC, 140 S.Ct. 1637 (U.S. S.Ct. 2020) (citing Peruvian
legislation and international authority); Karaha Bodas Co. v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274 (5th Cir. 2004) (citing
English, Hong Kong, Swedish, and Swiss authorities); Knight & Kinde v. Rainstorm
Pictures Inc. [2014] EWCA Civ 356, ¶¶37, 39–41 (English Ct. App.) (citing English, Swiss,
German and U.S. authority and guidance from arbitral institutions); Fiona Trust &
Holding Corp. v. Privalov [2007] 1 All ER (Comm) 891 (English Ct. App.), aff’d, [2007]
UKHL 40 (House of Lords) (citing U.S. and German authority); Congo v. FG Hemisphere
Assocs. LLC, [2011] HKEC 747 (H.K. Ct. App.) (citing U.S., English and Canadian
authority); MC Aviation Solutions Pty Ltd v. Altain Khuder LLC, [2011] 253 FLR 9
(Victoria Ct. App.) (citing U.S., English, Irish, Canadian, Hong Kong and Singapore
authority).
74) Inter-American Convention on International Commercial Arbitration, signed in
Panama on 30 January 1975. The United States ratified the Convention in 1990. Other
parties include Mexico, Brazil, Argentina, Venezuela, Colombia, Chile, Ecuador, Peru,
Costa Rica, El Salvador, Guatemala, Honduras, Panama, Paraguay and Uruguay.
75) Inter-American Convention, Arts. 1, 4, 5.
76) Compare New York Convention, Art. II(3); see infra pp. 73–79.
77) European Convention on International Commercial Arbitration, 21 April 1961, 484
U.N.T.S. 349. See G. Born, International Commercial Arbitration 120–21 (3d ed. 2021).
79) Important enactments, or revisions, have occurred in Algeria (2008), Andorra (2015),
Australia (1989 and 2010), Austria (2013), Bangladesh (2001), Bahrain (2015), Barbados
(2007), Belgium (2013), Bolivia (1997), Brazil (2015), Bulgaria (1993 and 2007),
Cambodia (2006), Chile (2004), China (1991 and 1994), Colombia (2012), Costa Rica
(1997 and 2011), Croatia (2001), Czechia (1994 and 2012), Cuba (2007), Denmark (2005),
Dominican Republic (2008), Ecuador (1997), El Salvador (2002), England (1996), Egypt
(1994), Finland (1992), France (2011), Germany (1998), Ghana (2010), Greece (1999),
Guatemala (1995), Honduras (2000), Hong Kong (1997 and 2010), Hungary (2014 and
2018), India (1996, 2015 and 2019), Indonesia (1999), Ireland (1998 and 2010), Italy
(2006), Japan (2004), Kenya (1995 and 2000), Malaysia (2006), Mauritius (2008),
Mexico (1993 and 2011), New Zealand (1996 and 2007), Nicaragua (2005), the
Netherlands (1986 and 2015), North Macedonia (2006), Norway (2004), Panama (1999
and 2013), Paraguay (2002), Peru (2008), Poland (2005), Portugal (2012), Qatar (2017),
Russia (2016), Saudi Arabia (2012), Scotland (2010), Singapore (1995 and 2012), South
Korea (2009 and 2016), Spain (2003 and 2011), Sweden (1999), Tanzania (2002),
Thailand (2002), Tunisia (1993), Turkey (2001), the United Arab Emirates (1992 and
2018), Venezuela (1998) and Vietnam (2011).
80) See Konkan Railways Corp. v. Mehul Constr. Co., (2000) 7 SCC 201 (Indian S.Ct.).
81) Model Law on International Commercial Arbitration of the United Nations
Commission on International Trade Law, U.N. Doc. A/RES/40/72 (1985).
82) UNCITRAL Model Law, Arts. 7–8; see infra pp. 59–60 and pp. 90–95. The original Model
Law’s “writing” requirement for arbitration agreements is broadly similar to, but
somewhat less demanding than, Article II of the New York Convention. See UNCITRAL
Model Law, Art. 7(2). The 2006 revisions include options that substantially reduce or
eliminate any writing requirement.
29
83) UNCITRAL Model Law, Art. 18 (“The parties shall be treated with equality and each
party shall be given a full opportunity of presenting his case”). See infra pp. 185–88.
84) UNCITRAL Model Law, 2006 Revisions; Bantekas & Ortolani, Definition and Form of
Arbitration Agreement, in I. Bantekas et al. (eds.), UNCITRAL Model Law on
International Commercial Arbitration: A Commentary 121 (2020); Menon & Chao,
Reforming the Model Law Provisions on Interim Measures of Protection, 2 Asian Int’l
Arb. J. 1 (2006).
85) For an updated list of jurisdictions, see www.uncitral.org.
86) H. Alvarez, N. Kaplan & D. Rivkin, Model Law Decisions: Cases Applying the UNCITRAL
Model Law on International Commercial Arbitration (2003); Case Law on UNCITRAL
Texts (“CLOUT”), http://www.uncitral.org/uncitral/en/case_law.html.
87) See, e.g., Shalakany, Arbitration and the Third World: A Plea for Reassessing Bias Under
the Specter of Neo-Liberalism, 41 Harv. Int’l L.J. 419 (2000); Sornarajah, The Climate of
International Arbitration, 8(2) J. Int’l Arb. 47 (1991).
88) Decision 24 of the Andean Commission Concerning Treatment of Foreign Capital,
Article 51, 10 Int’l Leg. Mat. 15 (1971) (“[No agreement concerning foreign investment
shall] withdraw possible … controversies from the national jurisdiction of the
recipient country”).
89) See infra pp. 90–97; G. Born International Commercial Arbitration 186 et seq. (3d ed.
2021).
90) See infra pp. 394–400; Judgment of 1 August 2002, Electrificadora del Atlántico SA ESP
v. SA ESP, Expediente 21.041 (Colombian Consejo de Estado) (pre-2012 amendments
to Colombian Arbitration Law).
91) See infra pp. 75–76 and pp. 185–87.
92) Alfaro & Guimarey, Who Should Determine Arbitrability? Arbitration in A Changing
Economic and Political Environment, 12 Arb. Int’l 415, 424–26 (1996); Asouzu, The
Adoption of the UNCITRAL Model Law in Nigeria: Implications on the Recognition and
Enforcement of Arbitral Awards, 1999 J. Bus. Law. 185; Grigera Naón, Arbitration and
Latin America: Progress and Setbacks, 21 Arb. Int’l 127, 149–76 (2005).
93) See Venezuela Submits A Notice Under Article 71 of the ICSID Convention, ICSID News
Release (26 Jan. 2012) (Venezuela’s denunciation of ICSID Convention); Denunciation
of the ICSID Convention by Ecuador, ICSID News Release (9 July 2009); Denunciation of
ICSID Convention, ICSID News Release (16 May 2007) (Bolivia); Trade Benefits at Risk
as Ecuador Scraps US Treaty, Reuters (7 May 2007) (Ecuador threatens termination of
BIT with United States).
94) As discussed below, national courts will generally have the power, under most
developed arbitration statutes, to assist the arbitral process by appointing
arbitrators, considering challenges to arbitrators and fixing compensation of
arbitrators (where not otherwise agreed). See infra pp. 152–56, and pp. 173–74; G.
Born, International Commercial Arbitration 1830, 2079–80 (3d ed. 2021).
95) Report of the Secretary General on the Revised Draft Set of Arbitration Rules, U.N. Doc.
A/CN.9/112, Introduction, ¶17 (1975); G. Born, International Commercial Arbitration
192–94 (3d ed. 2021).
96) See infra pp. 152–56. The parties can specify an arbitral institution (like the ICC, SIAC,
AAA or LCIA) or individual as appointing authority (without adopting that
institution’s rules more generally).
97) ICC, ICC Announces Record 2020 Caseloads in Arbitration and ADR, ICC News (12 Jan.
2021).
98) For example, parties to ICC arbitrations filed in 2012 were nationals of 137 different
countries. ICC, 2012 Statistical Report, 24(1) ICC Ct. Bull. 5, 5 (2013).
99) ICC, 2019 Dispute Resolution Statistics (2020); ICC, 2018 Dispute Resolution Statistics
2019:1 ICC Disp. Resol. Bull. 11, 21. The most common seats for ICC arbitrations were
Paris, London, Geneva, Zürich, Singapore, Vienna, Hong Kong, Madrid, São Paulo and
New York.
100) See ICC, Techniques for Controlling Time and Costs in Arbitration (2007).
101) SIAC, SIAC Sets A New Record in 2020, SIAC Press Release (31 March 2021); SIAC, 2019
Annual Report 12 (2020); SIAC, 2018 Annual Report 14 (2019); SIAC, 2017 Annual Report
13 (2018).
102) SIAC, 2018 Annual Report 14–15 (2019).
103) SIAC, 2019 Annual Report 13 (2020).
104) LCIA, Facts and Figures: 2016 – A Robust Caseload (2016). See LCIA, 2019 Annual
Casework Report (2020).
105) Numerous other sets of AAA arbitration rules also exist, in particular for specialized
types of disputes (such as construction, energy, health care, insurance, securities,
labor and intellectual property), and can be selected in the parties’ arbitration
agreement.
106) AAA, 2018 Annual Report & Financial Statements 11 (2019); AAA, 2012 Annual Report,
President’s Letter and Financial Statements 7 (2013); AAA, 2000 Annual Report,
President’s Letter and Financial Statements 8 (2000).
107) Convention on the Settlement of Investment Disputes Between States and Nationals
of Other States, produced at Washington, D.C., 18 March 1965, available at
http://www.worldbank.org/icsid. ICSID is based at the Washington, D.C.
headquarters of the International Bank for Reconstruction and Development (or
“World Bank”).
108) ICSID, The ICSID Caseload – Statistics 8 (1:2020). 39 cases were filed in 2019. Id.
30
109) PCA Optional Rules for Arbitrating Disputes Between Two States; PCA Optional Rules
for Arbitrating Disputes Between Two Parties of Which Only One Is A State. In 2012,
these Rules were consolidated into the 2012 PCA Rules. See also infra p. 49 and p.
526.
110) Among other things, the PCA has administered arbitrations between Sudan and the
Sudan People’s Liberation Movement/Army and between Ethiopia and Eritrea,
available at www.pca-cpa.org.
111) There is a small, but important, category of cases in which international investment
arbitrations may result without a consensual agreement, by virtue of provisions in
international investment protection or other conventions or legislation. This
category of arbitrations (without “privity”) is unusual, however, and underscores the
essential requirement that international arbitration is consensual in character. See
infra p. 49 and pp. 496–500.
113) For examples of exclusions of particular types of issues, see G. Born, International
Arbitration and Forum Selection Agreements: Drafting and Enforcing 39–42 (6th ed.
2021).
114) See infra p. 370 and pp. 374–75.
115) See infra pp. 149–71.
116) The text of provisions designating the number of arbitrators is not complex. For
example, a typical clause would provide: “Any dispute shall be finally resolved
under the [–] Rules by [three]/[one] arbitrator[s] appointed in accordance with the
said Rules.” An alternative provides: “The number of arbitrators shall be
[three]/[one].”
117) See infra pp. 154–55. An institution will also appoint an arbitrator on behalf of a
party which fails to exercise its right under the parties’ arbitration agreement to do
so.
118) See infra pp. 195–96.
119) For a discussion of the drafting of such choice-of-law clauses, see G. Born,
International Arbitration and Forum Selection Agreements: Drafting and Enforcing
163–72 (6th ed. 2021). See infra pp. 43–48 and pp. 67–68.
120) G. Born, International Arbitration and Forum Selection Agreements: Drafting and
Enforcing 95 et seq. (6th ed. 2021).
121) Parties sometimes agree to permit arbitrators to resolve their dispute without
reference to law, that is, ex aequo et bono or as amiable compositeur, see infra pp.
307–08, or by reference to a non-national legal system, see infra pp. 304–06.
122) See infra pp. 293–96; UNCITRAL Model Law, Art. 28(1); 2013 UNCITRAL Rules, Art. 35(1).
123) See infra pp. 285–91.
124) See infra pp. 185–88.
125) See infra pp. 133–36.
126) Queen Mary, University of London, International Arbitration Survey: Improvements
and Innovations in International Arbitration (2015).
127) See infra pp. 159–61.
128) IBA Guidelines on Party Representation, Preamble, ¶8.
129) Id. at Preamble, ¶7.
130) See infra pp. 323–24.
131) ICSID Convention, Art. 25(1). As discussed below, investment disputes are defined as
controversies that arise out of an “investment” and are between a Contracting State
or state entity (but not merely a private entity based in a Contracting State) and a
national of another Contracting State. See infra pp. 502–11.
132) See infra p. 493 and pp. 502–04, and pp. 519–21.
133) See UNCTAD, International Investment Agreements Navigator, available at
investmentpolicyhub.unctad.org/IIA.
134) See infra pp. 496–97.
135) See Paulsson, Arbitration Without Privity, 10 ICSID Rev. 232 (1995). See infra pp. 496–
500.
136) See infra pp. 522–28. Other interstate arbitrations involve sui generis disputes, such
as the France-New Zealand arbitration over the Rainbow Warrior, U.S.-France
arbitrations over air transport issues and arbitrations involving financial claims. See
G. Born, International Arbitration: Cases and Materials 105–06 (2d ed. 2015).
31
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KluwerArbitration
Document information Chapter 3: Formation and Validity of International

Arbitration Agreements
Publication A central issue in the enforcement of international arbitration agreements concerns the
International Arbitration: standards for formation and validity of such agreements. These standards play an
Law and Practice (Third essential role in ensuring that international arbitration agreements are enforced in an
Edition) effective and efficient manner, and are of substantial practical importance in the arbitral
process.
Bibliographic §3.01 FORMATION OF INTERNATIONAL ARBITRATION AGREEMENTS

reference Arbitration agreements, like other categories of contracts, give rise to questions of
contract formation (particularly issues of consent). It is elementary that an agreement to
'Chapter 3: Formation and arbitrate cannot be recognized or enforced unless it has been validly formed. (1) The
Validity of International formation of arbitration agreements raises several related issues: (a) consent to the
Arbitration Agreements', in agreement to arbitrate; (b) the essential terms required for an arbitration agreement;
Gary B. Born , International and (c) defects in the arbitration agreement (or so-called “pathological” arbitration
Arbitration: Law and clauses).
Practice (Third Edition), 3rd
edition (© Kluwer Law [A] Consent to International Arbitration Agreements
International; Kluwer Law
International 2021) pp. 81 - In order for an arbitration agreement to exist, the parties must have validly consented to
102 that agreement. The question whether parties have validly consented to an arbitration
agreement is governed in most legal systems by generally-applicable principles of
contract law, and specifically, contract formation. (2)
In practice, consent in international commercial transactions is usually evidenced by
P 82 written instruments, typically with the execution of a formal contract with a corporate
officer’s signature. Nonetheless, other modes of establishing consent are also frequently
encountered, including by less formal writings, exchanges of writings (including electronic
or other communications), oral communications and conduct or acquiescence. Note that
there is a distinction between the existence of consent to an arbitration agreement
(evidenced, for example, by oral communications) and the formal validity of the
arbitration agreement (which may require a writing or signature). (3)
In most cases, consent to an arbitration clause will be evidenced by consent to the
parties’ main or underlying contract (containing the arbitration clause); notwithstanding
the separability presumption, a party’s acceptance of the underlying contract will almost
always entail consent to the arbitration clause in that contract. Nonetheless, cases arise
in which one party argues either that: (a) in consenting to the main or underlying contract,
it did not also consent to the arbitration clause (for example, because it was unaware of
the clause or because it indicated non-acceptance of the clause); or (b) while the
underlying contract was never executed, the parties agreed separately to the arbitration
clause (for example, to cover disputes involving conduct in unsuccessful contractual
negotiations). In these instances, courts and arbitral tribunals consider whether the
parties sufficiently manifested their consent to the separable arbitration agreement,
regardless of their consent to the underlying contract.
A party’s commencement of arbitral proceedings, or its participation without protest in
such proceedings, can be the basis for finding valid consent to an arbitration agreement.
Article 16(2) of the UNCITRAL Model Law requires that any objection to a tribunal’s
jurisdiction be raised no later than the statement of defense, failing which the
jurisdictional objection is waived. Other national laws are similar. Under these
authorities, a party’s tacit acceptance of its counter-party’s initiation of arbitration,
through participation in the arbitral proceedings without raising a jurisdictional
objection, can provide the basis for the formation of an agreement to arbitrate. (4) As a
practical matter, waivers of jurisdictional objections frequently occur, providing a valid
basis for subsequent arbitral proceedings and arbitral awards.
[B] Standard of Proof for International Arbitration Agreements

Different approaches have been taken to the standard of proof required to establish the
existence of an arbitration agreement. Some authorities have required a heightened
standard of proof, as compared to other contracts, holding that the parties’ agreement to
arbitrate must be clearly demonstrated or that waiver of access to national courts must
be express. (5) Other authorities have required a relaxed standard of proof, relying on the
pro-arbitration policies of the New York Convention and national arbitration
P 83 legislation. (6) Finally, a few authorities apply the same standard of proof required for
the formation of other types of contracts. (7)
[C] Essential Terms of International Arbitration Agreements
1
In order for a valid international arbitration agreement to be formed, the parties must
reach agreement on a core of essential issues. Absent agreement on these essential
terms, the arbitration agreement will generally be void for indefiniteness or uncertainty.
[1] Agreement to Arbitrate
The essential core of an arbitration agreement is simple: it consists of nothing more than
an obligation to resolve certain disputes with another party by “arbitration” and the right
to demand that such disputes be resolved in this fashion. Thus, the essential terms of an
arbitration agreement are contained in the phrase: “All disputes shall be finally resolved
by arbitration.” (8) Alternatively, though ill-advised, these terms can contain nothing
more than the word “arbitration,” included in a contract, letter, or email, by which the
parties commit to resolve disputes relating to their transaction by arbitration.
[2] Incidental Terms
As discussed above, international arbitration agreements typically do, and should,
contain additional important terms, including the scope of the obligation to arbitrate,
the arbitral seat, institutional rules, language and the like. (9) Nonetheless, failure to
include these terms does not render the arbitration clause indefinite. Rather, in almost
all jurisdictions, national law provides default mechanisms that will give effect to the
parties’ agreement (e.g., by providing for judicial selection of arbitrators and by
authorizing the arbitral tribunal to perform various functions, such as selecting the
arbitral seat and language).
[3] Blank Clauses
Some authorities hold that a so-called “blank clause,” which does not specify either the
arbitral seat or the means of choosing the arbitrators, is indefinite and void. These
authorities reason that a blank clause provides no means for either selecting an arbitral
tribunal (absent agreement by the parties) or the seat (where judicial assistance to
P 84 appoint arbitrators can be sought). Other authorities hold that a blank clause
impliedly authorizes the claimant to designate the arbitral seat, thereby providing the
requisite certainty for the arbitration agreement. (10)
[D] “Pathological” Arbitration Clauses

Although model arbitration clauses are readily available from most arbitral institutions
(or other sources (11) ) in practice, parties not infrequently include so-called
“pathological” arbitration clauses in their contracts. These provisions contain a variety of
defects, which are often argued to render the arbitration agreement invalid. As discussed
below, however, most courts endeavor to give effect to these provisions by either ignoring
or seeking to cure their “pathological” elements. For example, one court cited the
“general principle that Courts should uphold arbitration, by striving to give effect to the
intention of parties to submit disputes to arbitration, and not allow any inconsistencies
or uncertainties in the wording or operation of the arbitration clause to thwart that
intention.” (12)
Potentially “Pathological” Arbitration Clauses
“Jurisdiction. In case of disputes, the parties undertake to submit them to arbitration as
provided for by the Fédération Française de la Publicité. In case of disputes, the Tribunal
de la Seine would have exclusive jurisdiction.”
“The parties may refer any dispute under this agreement to arbitration.”
“Any dispute may be resolved by arbitration under the ICC Rules, applying the UNCITRAL
Arbitration Rules.”
“The arbitration shall be seated in Miami; the seat of the arbitration shall be at the ICC in
Paris.”
[1] Indefinite Arbitration Agreements
Parties frequently draft arbitration agreements that lack specificity (for example,
agreeing on “Arbitration – New York”). National courts and arbitral tribunals generally
P 85 seek to give effect to arbitration agreements lacking specificity, holding that only the
essential requirement of an agreement to arbitrate is required, with incidental terms
either being implied or provided by national law. (13)
[2] Arbitration Agreements Referring to Non-Existent Arbitral Institutions, Arbitration
Rules, or Arbitrators
National courts and arbitral tribunals have also generally upheld arbitration clauses that
refer to non-existent arbitral institutions or appointing authorities (e.g., referring to an
institution that has never existed, such as the “Transnational Arbitration Institute”). Some
authorities have deleted references to non-existent entities as surplusage, while others
have sought to correct or supplement inaccurate references. In the words of one court:
“an agreement on a non-existent arbitration forum is the equivalent of an
agreement to arbitrate which does not specify a forum; since the parties had
2
the intent to arbitrate even in the absence of a properly designated forum.”
(14)
Alternatively, a Swiss arbitral tribunal construed a reference to the “international trade
association organization in Zürich” (there is none) to mean arbitration under the Zürich
Chamber of Commerce International Arbitration Rules. (15)
A related set of problems concerns arbitration clauses that select arbitral institutions
that once existed, but have ceased operations; that select arbitrators who once were
competent, but have since become incapacitated or passed away; or that select
appointing authorities which refuse to fulfill the contemplated functions. Again, most
courts endeavor to preserve the parties’ basic agreement to arbitrate, even if the
particular mechanics that they have chosen to implement this agreement cannot
function or cannot function as intended.
[3] Internally Contradictory Arbitration Agreements
A similar set of issues arises from internally contradictory arbitration provisions. These
can involve clauses that select two different arbitral seats (e.g., “The arbitration shall be
seated in Miami; the seat of the arbitration shall be at the ICC in Paris”), or two different
institutions or mechanisms for selecting arbitrators (e.g., “The arbitration shall be
conducted in accordance with the ICC Rules and under the auspices of the LCIA”), or
agreements that appear to provide for both arbitration and litigation of the same
disputes.
As with indefinite or ambiguous clauses, tribunals and courts have generally found ways
to give effect to these provisions, either by deleting language as surplusage or by
reconciling inconsistent terms through liberal interpretation. In the words of one award,
“when inserting an arbitration clause in their contract the intention of the parties must
P 86 be presumed to have been willing to establish an effective machinery for the
settlement of disputes covered by the arbitration clause.” (16) For example, if an
agreement provides for both arbitration and litigation in a specified court, decisions
have generally construed the forum selection clause narrowly, to apply only to litigation
in support of the arbitration. (17)
[4] “Optional” or Non-Mandatory Arbitration Agreements
Parties sometimes agree to provisions that appear only to treat arbitration as an
optional means of dispute resolution, but not to require mandatory submission of future
disputes to arbitration (e.g., “the parties may elect to submit disputes to arbitration”).
Most courts and arbitral tribunals treat even ambiguously-drafted provisions as
“mandatory,” thereby either obliging parties to submit their disputes to arbitration (and
to refrain from litigation of arbitrable disputes) or granting either party the option to
initiate arbitration (such that, if the option is exercised by either party, both parties are
then bound to arbitrate (18) ). The basis for this conclusion is that it would make little
sense for parties to agree to optional arbitration in an entirely non-mandatory sense,
leaving both parties free to decide after disputes arise whether or not they wish to
arbitrate.
[E] Formal Validity of International Arbitration Agreements

Like other types of contracts, international arbitration agreements are subject to form
requirements. The most significant and prevalent of these is the “writing” or “written
form” requirement, together with related requirements for a “signature” and/or an
P 87 “exchange” of written communications, which is contained in Article II of the New York
Convention. In addition, some national laws purport to impose other form requirements,
including requirements concerning the size and location of type in which the arbitration
clause is printed, the need for separate execution of arbitration agreements, the need for
a selection of arbitrators and the like. (19)
[1] Written Form Requirement: New York Convention
The most universal written form requirement for international arbitration agreements is
imposed by the Convention. As provided in Article II(1), the Convention applies only to
“agreements in writing,” which are then defined by Article II(2) to include “an arbitral
clause in a contract or an arbitration agreement, signed by the parties or contained in an
exchange of letters or telegrams.”
Article II(2) does not merely require that arbitration agreements be in “written” form, but
also that such agreements be either “signed by the parties” or contained in an “exchange
of letters or telegrams.” Under Article II(2), not merely a written record of the parties’
agreement, but also a contract that is signed or contained in an exchange of writings is
required. Article II(2) has generally been held to exclude not just oral agreements, but
also arbitration agreements involving oral or tacit acceptance of written instruments, and
unsigned but orally agreed written contracts. On the other hand, a few courts have held
that Article II(2) is satisfied by tacit acceptance of a written offer containing an
arbitration provision, particularly where performance of contractual obligations is also
accepted. (20)
3
Authorities are divided over the relationship between Articles II(1) and II(2). Some
authorities have held that Article II(2) provides an exhaustive definition of Article II(1)’s
requirement for an agreement in “writing”: only if an agreement satisfies the Article II(2)
definition will it be formally valid under the Convention. In contrast, other authorities
hold that Article II(2) only lists representative examples of written arbitration
agreements and that Article II(1) can also be satisfied by other types of writings (without a
signature or exchange). The latter view is adopted by the 2006 UNCITRAL
Recommendations, discussed below.
[2] Written Form Requirement: National Arbitration Legislation
Most national arbitration legislation imposes some sort of written form requirement on
arbitration agreements. Many statutes parallel Article II(2) of the Convention, although
often modernizing the Convention’s approach by reference to email and other modern
communications; other jurisdictions have taken steps to minimize the role of form
requirements, in some cases eliminating (e.g., France, Sweden) or virtually eliminating
(e.g., England) any written form requirement at all for international arbitration
agreements. (21)
[3] UNCITRAL Model Law, Article 7 (and 2006 Revisions)
The original version of the Model Law contains a writing requirement that was similar to
that of Article II(2) of the Convention. Article 7(2) of the original 1985 Model Law provides:
“The arbitration agreement shall be in writing. An agreement is in writing if it
is contained in a document signed by the parties or in an exchange of letters,
telexes, telegrams or other means of telecommunications which provide a
record of the agreement, or in an exchange of statements of claim and defense
in which the existence of an agreement is alleged by one party and not denied
by another.”
P 88
Like Article II(2), Article 7(2) requires either a signed written contract or an exchange of
written communications that record the arbitration agreement. This excludes oral
agreements and purely tacit acquiescence to one party’s written proposal of an
arbitration agreement. Under Article 7(2), the “writing” requirement is a condition of
contractual validity.
The 2006 Revisions to the Model Law adopt two “Options” for Article 7, which materially
reduce or eliminate any writing requirement. Option II provides that an “arbitration
agreement” is “an agreement to submit to arbitration all or certain disputes which have
arisen or which may arise between them in respect of a defined legal relationship,
whether contractual or not.” The effect of Option II is to eliminate any written form
requirement, leaving only substantive issues of consent; under Option II, either oral or
tacit consent would be sufficient for a valid arbitration agreement.
Option I for Article 7 is less sweeping. It retains the requirement that “[a]n arbitration
agreement shall be in writing,” but then provides a liberalized definition of a “writing”:
“an arbitration agreement is in writing if its content is recorded in any form, whether or
not the arbitration agreement or contract has been concluded orally, by conduct, or by
other means.” This provision eliminates any requirements for an “exchange” of writings or
for “signatures,” and merely requires that there be a written record of the agreement to
arbitrate (even if that agreement is concluded orally or tacitly). For example, Option I
would be satisfied where a party had, in an internal email, recorded the terms of what
had been agreed orally.
[4] Relationship Between New York Convention and National Law
The relationship between the writing requirements in the Convention and national
arbitration legislation is complex. Authorities uniformly hold that Article II of the
Convention prescribes a mandatory “maximum” form requirement, which Contracting
States may not exceed. Thus, if a State purported to impose a heightened form
requirement (e.g., arbitration agreements must be in a separate contract, in capital
letters or in red font), this requirement would be contrary to and superseded by the
Convention’s maximum form requirement.
Authorities are divided as to whether the Convention also prescribes a mandatory
“minimum” form requirement. Some authorities hold that an arbitration agreement is
invalid if it does not comply with Article II’s form requirement – even if it satisfies the
reduced form requirement of national law applicable to the arbitration clause (e.g.,
Article 7 of the 2006 Model Law); these authorities reason that the Convention supersedes
less demanding national form requirements. The weight of authority adopts a different
position, holding that Contracting States are free to adopt less demanding form
requirements (by virtue of Article VII of the Convention). (22) This view is adopted by the
P 89 UNCITRAL Recommendations, discussed below.
[5] 2006 UNCITRAL Recommendations

In 2006, UNCITRAL adopted two “Recommendations” for interpretation of the New York
4
Convention’s writing requirement. (23) The first Recommendation provided that Article
II(2) of the Convention should be interpreted in a non-exhaustive manner, providing
examples of formally valid agreements, but not an exhaustive list of all such agreements.
Thus, under the Recommendation, Article II(1)’s writing requirement can be satisfied by
agreements that do not comply with Article II(2)’s requirements for a signature or
exchange of letters (e.g., by an unsigned written contract recording the parties’
agreement).
2006 UNCITRAL Recommendations
The United Nations Commission on International Trade Law, …
(1) Recommends that article II, paragraph 2, of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, be applied
recognizing that the circumstances described therein are not exhaustive;
(2) Recommends also that article VII, paragraph 1, of the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, should be
applied to allow any interested party to avail itself of rights it may have, under the law or
treaties of the country where an arbitration agreement is sought to be relied upon, to
seek recognition of the validity of such an arbitration agreement.
Under UNCITRAL’s second Recommendation, Article VII(1) of the Convention should be
interpreted to permit application of less demanding national form requirements than
that under Article II of the Convention. Thus, the Convention would not impose a
“minimum” form requirement, but would instead permit Contracting States to adopt
legislation (like the 2006 Revisions to the Model Law) eliminating or relaxing the form
requirement of Article II of the Convention.
[6] Incorporation of Arbitration Agreement
International contracts frequently seek to incorporate arbitration agreements or rules
from other instruments, including other contracts (between the same or different parties),
trade association rules or by-laws, or one party’s standard terms and conditions. For
example, a sales contract may provide “all disputes arising under this contract shall be
resolved by arbitration pursuant to Article XI of the Master Agreement” or “all disputes
shall be resolved pursuant to Articles X to XIII of the [relevant trade association’s rules].”
Provisions incorporating arbitration clauses from other instruments give rise to issues of
P 90 both formal and substantive validity.
The formal validity of incorporated arbitration agreements usually involves
straightforward issues: the “writing” requirements of the Convention and national law are
simply applied to the incorporating instrument (e.g., to determine whether it has a
signature or is an exchange of letters). In addition, some national laws contain provisions
specifically addressing the formal validity of incorporated arbitration agreements. For
example, Article 7(2) of the 1985 Model Law provides: “The reference in a contract to a
document containing an arbitration clause constitutes an arbitration agreement
provided that the contract is in writing and the reference is such as to make that clause
part of the contract.” The provision confirms that the incorporated arbitration provisions
need not separately satisfy requirements for a signature or exchange of letters (although
it must be contained in a “document”).
[F] Substantive Validity of International Arbitration Agreements

An arbitration agreement, like other contracts, also gives rise to issues of substantive
validity. The categories of substantive invalidity of international arbitration agreements
contained in the Convention and most arbitration legislation are limited to cases where
such agreements are invalid on generally-applicable contract law grounds (e.g., mistake,
fraud, unconscionability, waiver). These grounds for challenging the substantive validity
of arbitration agreements are exclusive: they provide exceptions to the presumptive
validity of agreements to arbitrate.
In addition, special rules of unenforceability apply to some categories of disputes. These
rules are reflected in the language of Articles II(1) and V(2)(a) of the Convention, which
provide that certain categories of disputes are “not capable of settlement by
arbitration.” These “nonarbitrability” rules do not concern the existence of validity of the
arbitration agreement, and instead concern its enforceability as applied to certain
categories of disputes; the subject of nonarbitrability is discussed separately below. (24)
[1] “Null and Void,” “Inoperative” or “Incapable of Being Performed”
Article II(3) of the Convention and Article 8(1) of the UNCITRAL Model Law provide that an
arbitration agreement need not be recognized and enforced if it is “null and void,”
“inoperative,” or “incapable of being performed.” Similar provisions exist in other
jurisdictions. (25) These categories of substantive invalidity have been interpreted by
reference to traditional rules of general contract law. The term “null and void” permits
defenses based on unconscionability, fraud, mistake, lack of capacity and illegality. The
term “inoperative” permits defenses based on termination, changed circumstances and
repudiation. The term “incapable of being performed” refers to impossibility and similar
P 92 defenses. (26)
5
Each of these defenses focuses, by reason of the separability presumption, on the
arbitration agreement itself, rather than the underlying contract. For example, in
considering claims of unconscionability, the only relevant question is whether the terms
of the arbitration clause – not the commercial terms of the underlying contract – are
oppressive and unconscionable. Similarly, in considering claims of impossibility, the
relevant question is whether it is possible to perform the agreement to arbitrate – not to
perform the underlying commercial contract. Finally, in considering each of these
defenses, the governing law is that applicable to the agreement to arbitrate, not
necessarily the law applicable to the underlying contract.
[2] Unconscionability and Duress
Basic principles of contract law provide that unconscionable agreements are invalid.
Although formulations of unconscionability vary, unconscionability generally requires
grossly unfair substantive terms of an agreement and a party’s abuse of significantly
stronger bargaining power.
As a consequence of the separability presumption, courts and tribunals almost always
hold that claims that the parties’ underlying contract is unconscionable do not implicate
the validity of the associated arbitration clause. Unconscionability is a ground for
challenging an agreement to arbitrate only in cases where a party challenges the terms of
the arbitration agreement itself (e.g., a grossly unfair seat, biased means of selecting the
arbitral tribunal, grossly one-sided arbitral procedures) and/or the manner in which the
arbitration agreement was negotiated (e.g., undue pressure tactics, deception); (27)
unconscionable commercial terms in the underlying contract (e.g., price) are generally
irrelevant to these inquiries.
Courts are generally skeptical of unconscionability challenges directed at arbitration
agreements in commercial settings. The fact that an arbitration clause was included in a
form contract or general terms and conditions; the fact that there was a disparity of
bargaining power; and the fact that the contract was in a foreign language are virtually
never grounds for finding unconscionability. In rare cases, often involving individuals or
small businesses, courts have found that grossly one-sided arbitration procedures are
invalid as unconscionable (for example, clauses permitting one party to unilaterally
select the arbitrator(s)).
A few courts have held that so-called “asymmetrical” or “non-mutual” arbitration
agreements are void on unconscionability or lack of mutuality grounds. These agreements
provide that one party, but not the other, has the option of requiring arbitration of the
parties’ disputes. The weight of authority takes a contrary view and upholds
asymmetrical arbitration clauses. (28)
Example of Asymmetrical Arbitration Agreement
“The courts of [England] shall have exclusive jurisdiction to resolve all disputes relating
to this Agreement, provided that [Party A] shall have the option of submitting any such
dispute for resolution by arbitration under the UNCITRAL Arbitration Rules.”
The validity of arbitration agreements may also be challenged on the grounds of duress
(or wrongful threat). Duress has generally required the showing of a wrongful act or threat
compelling involuntary submission. In practice, most efforts to meet this standard for
arbitration agreements in commercial settings have failed, although there are exceptions
(particularly in cases involving individuals). Claims of duress must, in principle, be
directed at the agreement to arbitrate itself, as opposed to the underlying contract; in
some instances, however, it is difficult to distinguish between duress directed at the
arbitration clause and duress directed at the underlying contract (e.g., signature of a
contract at gunpoint).
[3] Fraudulent Inducement or Fraud
Fraud and fraudulent inducement are not specifically mentioned as grounds for non-
enforcement of an arbitration agreement in the Convention or most arbitration statutes.
Nonetheless, courts and arbitral tribunals have uniformly concluded that fraud and
fraudulent inducement are bases for holding arbitration agreements invalid or null and
void.
Under the separability presumption, claims that the parties’ underlying contract was
fraudulently induced do not affect the validity of an arbitration clause included in the
contract. The fact that one party may have fraudulently misrepresented the quality of its
goods, services or balance sheet generally does not impeach the parties’ separable
dispute resolution mechanism. (29) As a consequence, only fraud directed at the
agreement to arbitrate itself will impeach that agreement. These circumstances seldom
arise: in practice, it is very unusual that a party will seek to procure an agreement to
arbitrate by fraud.
[4] Impossibility and Frustration
Impossibility and frustration are grounds for challenging the substantive validity of an
arbitration agreement. (30) As with other generally-applicable contract law defenses, the
P 93 relevant issue is whether the separable agreement to arbitrate has been frustrated,
6
not whether the underlying contract has become impossible to perform. Claims of
impossibility or frustration typically arise where an arbitrator, named specifically in the
arbitration agreement, dies or becomes otherwise unable to fulfill his or her mandate;
alternatively, the arbitral institution specified in the parties’ agreement may cease to
exist or be merged into another institution. In both cases, courts have generally been
reluctant to find frustration or impossibility, typically appointing a substitute arbitrator
or holding that another institution (or an ad hoc arbitration can be employed) implement
the parties’ basic agreement to arbitrate.
[5] Illegality
It is elementary in most jurisdictions that an illegal agreement is not enforceable. In most
instances, courts and tribunals rely on the separability presumption to conclude that
claims attacking the legality of the underlying contract do not affect the arbitration
agreement. (31) In rare cases, courts have suggested that some types of illegality of the
underlying contract may also render the associated arbitration agreement invalid: “The
English court would not recognize an agreement between … highwaymen to arbitrate
their differences any more than it would recognize the original agreement to split the
proceeds.” (32) Claims of illegality are also sometimes directed at the parties’ arbitration
agreement itself. These claims ordinarily involve the doctrine of “nonarbitrability,”
discussed below, rather that the illegality or invalidity of the arbitration agreement
itself.
[6] Lack of Capacity
The existence of capacity to conclude an arbitration agreement is a requirement in most
legal systems for the validity of the resulting agreement. Article V(1)(a) of the New York
Convention permits a national court to deny recognition of an award if the parties to the
arbitration agreement “were, under the law applicable to them, under some incapacity.”
(33) Although Article II of the Convention does not refer expressly to incapacity as a
defense, it has been held to incorporate Article V(1)(a)’s reference to a lack of capacity.
Articles 8, 34(2)(a)(i) and 36(1)(a)(i) of the UNCITRAL Model Law contain parallel
provisions.
Neither the Convention nor the Model Law prescribe additional substantive or choice-of-
law rules with regard to capacity. In the absence of legislative guidance, the requirement
that a party have capacity to enter into an arbitration agreement is often identical to
requirements for capacity for other contracts. For example, generally-applicable
P 94 contract defenses going to capacity – such as mental incompetence, minority and
limitations in constitutive corporate documents – apply to arbitration agreements, just
as they do to other acts.
A recurrent issue arises from agreements entered into by states or state-related entities.
In some instances, states attempt to disavow their international arbitration agreements,
citing provisions of national law restricting the power of government entities to conclude
such agreements. Most authorities disfavor such efforts, providing that a state may not
invoke its own law to deny its capacity to have made a binding agreement to arbitrate.
(34)
[7] Termination and Repudiation
An agreement to arbitrate may be challenged on grounds of termination or repudiation.
Like other issues of validity, questions of termination and repudiation must be
considered in the context of the separability presumption. Most courts and tribunals
have held that the termination, expiration, rescission or repudiation of the underlying
contract does not affect the separable arbitration agreement. In the words of a leading
Swiss decision:
“[T]he arbitration agreement does not necessarily share … the outcome of the
main contract…. [T]his also applies where the parties terminate the principal
contract by mutual agreement, but in that case, as a general rule, one should
accept that insofar as the parties have not expressly provided otherwise, they
also intend to retain their arbitration agreement for disputes concerning the
consequences of the termination of the contract.” (35)
Although termination of the underlying contract does not terminate the separable
arbitration clause, it is possible for parties to separately terminate an arbitration
agreement. Doing so typically requires express agreement by both parties, directed
specifically at the agreement to arbitrate (and not the underlying contract).
In some legal systems, an arbitration agreement may also be terminated by a
repudiation, or a repudiatory breach, which is accepted; of course, the repudiation must
involve the arbitration agreement, not the underlying contract. In general, only the
commencement of litigation in deliberate breach of an agreement to arbitrate will
constitute a repudiatory breach; lesser breaches, such as failure to comply with a
tribunal’s procedural directions, will not ordinarily constitute a repudiation of the
arbitration agreement (although it may result in the arbitral tribunal imposing
P 95 procedural sanctions against the non-complying party). (36)
7
[8] Inconvenient Arbitral Seat
An arbitration agreement will sometimes select an arbitral seat that is (or becomes)
highly inconvenient to one party. It is occasionally suggested that this inconvenience
provides sufficient grounds for invalidating the arbitration agreement, including on the
basis of unconscionability or mistake. In practice, national courts and arbitral tribunals
have virtually always rejected such claims (at least outside the consumer context),
frequently questioning whether applicable international or national instruments even
recognize such a basis for challenging the validity of an arbitration agreement. (37) In
contrast, where national hostility or radical political change results in serious doubts
about the impartiality of courts in the arbitral seat, the contractual specification of the
seat is more likely to be invalidated. (38)
§3.02 WAIVER OF RIGHT TO ARBITRATE

It is clear that rights to arbitrate may be waived, just as other contractual rights may be
waived. The Convention does not expressly refer to waiver of the right to arbitrate,
although Article II(3) arguably includes waiver when referring to arbitration agreements
that are “inoperative.” Note, however, that waiver of the right to arbitrate a particular
dispute does not ordinarily result in the invalidity of the underlying arbitration
agreement itself; it instead results in the loss of the right to rely upon the arbitration
agreements as to a particular dispute.
Article 8(1) of the Model Law is more specific, providing for the enforcement of arbitration
agreements by national courts (through a stay of litigation), subject to the requirement
that the party invoking the agreement has requested its enforcement “not later than
when submitting his first statement on the substance of the dispute” in the national court
proceedings. Article 8 establishes a reasonably definite definition of waiver, which
applies regardless of either the intentions of the “waiving” party or prejudice to the “non-
waiving” party. Failure to comply with Article 8(1)’s requirement has frequently been held
to result in the loss of a party’s right to invoke the arbitration agreement with regard to a
particular dispute.
Some legal systems are more reluctant to find the waiver of an arbitration agreement. For
example, the FAA has been interpreted by U.S. courts as disfavoring waivers of a party’s
right to arbitrate. A finding of waiver under the FAA typically requires knowledge of a right
to arbitrate, actions inconsistent with that right (typically, commencement of litigation or
protracted delay) and (less clearly) prejudice to the adverse party. Moreover, the party
seeking to establish waiver under the FAA bears a heavy burden of proof and doubts are
P 96 resolved against finding a waiver.
§3.03 NON-COMPLIANCE WITH PRE-ARBITRATION PROCEDURAL

REQUIREMENTS
Some arbitration agreements set forth procedural requirements that must be satisfied
prior to commencement of arbitral proceedings (sometimes termed “multitier dispute
resolution clauses”). For example, parties may be directed to negotiate for 30 days, or
conciliate, prior to initiating an arbitration.
ICC Model Multitier Clause
In the event of any dispute arising out of or in connection with the present contract, the
parties shall first refer the dispute to proceedings under the ICC Mediation Rules. If the
dispute has not been settled pursuant to the said Rules within [45] days following the
filing of a Request for Mediation or within such other period as the parties may agree in
writing, such dispute shall thereafter be finally settled under the Rules of Arbitration of
the International Chamber of Commerce by one or more arbitrators appointed in
accordance with the said Rules of Arbitration.
If a party fails to comply, or comply fully, with pre-arbitration procedural requirements,
jurisdictional objections sometimes raised to subsequent arbitral proceedings (and
arbitral awards). A few courts hold that the failure to satisfy pre-arbitration procedural
requirements is a jurisdictional defect, permitting annulment and non-recognition of
subsequent awards, because such procedural requirements are conditions precedent to
commencement of arbitral proceedings. The weight of authority holds, however, that non-
compliance with pre-arbitration procedural requirements is non-jurisdictional,
concerning only the “admissibility” of the claimant’s claims, and not affecting the
tribunal’s authority. (39) Other decisions have held that the interpretation and
application of pre-arbitration procedural requirements are matters for the arbitrators,
subject to minimal or no subsequent judicial review. (40)
§3.04 NONARBITRABILITY DOCTRINE

As described above, the New York Convention contains various exceptions to the general
obligation, set forth in Article II, to enforce written arbitration agreements. One of these
exceptions is the so-called “nonarbitrability” doctrine, which provides that certain types
of disputes may not be arbitrated, notwithstanding an otherwise valid arbitration
agreement.
8
[A] Basis for Nonarbitrability Doctrine
Article II(1) of the Convention provides an exception to the presumptive obligation of
P 97 Contracting States to recognize arbitration agreements. Under Article II(1), a state is
not obligated to refer disputes to arbitration if they are not “capable of settlement by
arbitration.” Similarly, Article V(2)(a) provides that an award need not be recognized if
“[t]he subject matter of the difference is not capable of settlement by arbitration under
the law” of the state where recognition is sought. Together, these provisions permit the
assertion of nonarbitrability defenses to both arbitration agreements and awards under
the Convention.
Like the Convention, legislation in most states treats some categories of claims as
incapable of resolution by arbitration. The Model Law is representative, with Article 1(5)
providing that specified types of disputes may be treated as not capable of settlement
by arbitration (or “nonarbitrable”). Virtually all states have provided, by legislation or
judicial decisions, that certain categories of disputes are nonarbitrable: even if the
parties have concluded a valid arbitration agreement, which extends to a dispute, the
agreement will not be enforceable as applied to these “nonarbitrable” matters.
[B] Applications of Nonarbitrability Doctrine

The types of disputes that are nonarbitrable differ from nation to nation. In general,
disputes or claims are deemed “nonarbitrable” because of their public importance or a
perceived need for judicial protections. Among other things, various nations refuse to
permit arbitration of at least some disputes concerning criminal law, labor grievances,
intellectual property, real estate, bankruptcy and domestic relations.
The nonarbitrability doctrine was frequently invoked during the 20th century. National
courts concluded that a variety of claims were nonarbitrable, applying expansive,
sometimes ill-defined, conceptions of public policy. More recently, courts in most
developed jurisdictions have materially narrowed the nonarbitrability doctrine, typically
applying it only where statutory provisions expressly require. (41) In most instances, this
has involved a limited set of “mandatory law” claims, which parties are not free to
contract out of in advance and which fairly clearly require resolution in judicial or other
specialized forums.
[1] Competition and Antitrust Claims
During the mid-20th century, some national courts held antitrust and competition claims
nonarbitrable. More recently, that approach has been rejected by U.S., EU and other
courts; as a consequence, many categories of civil antitrust claims are now arbitrable.
Thus, in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., the U.S. Supreme Court
held that federal antitrust claims were arbitrable, provided that they arose from an
“international” transaction. The Court reasoned that “[t]he utility of the [New York]
Convention in promoting the process of international commercial arbitration depends
upon the willingness of national courts to let go of matters they normally would think of
as their own.” (42) A similar approach has been taken by the European Court of Justice,
P 98 which declared in Eco Swiss China Time Ltd v. Benetton Int’l NV, that an arbitration
agreement could validly be given effect with respect to EU competition claims. (43)
Courts in EU Member States have also held that EU and Member State competition law
claims may validly be the subject of an international arbitration agreement. (44)
[2] Securities Claims
Like competition claims, claims arising from securities regulations were historically
regarded as nonarbitrable in many jurisdictions. In the United States, early decisions
held that private civil claims under U.S. securities laws were nonarbitrable, at least in
domestic transactions. In Scherk v. Alberto-Culver Co., however, the U.S. Supreme Court
held that claims under the securities laws were arbitrable, again provided they arose
from an “international” transaction. The Court reasoned that:
“A parochial refusal by the courts of one country to enforce an international
arbitration agreement would not only frustrate [the Convention’s] purposes,
but would invite unseemly and mutually destructive jockeying by the parties
to secure tactical litigation advantages.” (45)
Approaches in other jurisdictions are mixed, with some states providing that arbitration
agreements are unenforceable as applied to future disputes arising under domestic
securities regulatory legislation; in other jurisdictions, securities claims may be the
subject of a valid agreement to arbitrate.
[3] Bankruptcy
In most jurisdictions, only courts (often specialized courts) have the authority to
commence, administer and conclude bankruptcy cases, including proceedings that
liquidate a bankrupt company, reschedule its debts, operate it under some form of
receivership, or distribute pro rata payments to creditors. Disputes concerning these
“core” bankruptcy functions are almost universally considered nonarbitrable, whether in
domestic or international arbitrations. (46)
9
It is much more controversial whether disputes merely involving a bankrupt entity as a
party (e.g., a dispute arises between the debtor and a counter-party, under a contract
containing an arbitration clause) or raising questions of bankruptcy law (e.g., the
continued effect of a contract), may be resolved in arbitration. Different legislative
regimes reach different conclusions about these types of disputes. In many such cases,
the desirability of a centralized, usually “pro-debtor,” forum for resolving all or most
disputes involving the debtor is weighed against that entity’s pre-existing commitment to
resolve disputes by international arbitration, with different legal systems adopting
different resolutions. The weight of authority supports narrow nonarbitrability rules in
this context, with international arbitration agreements of bankrupt entities often being
P 99 given effect.
[4] Labor and Employment Contracts

Historically, many legal systems treated some labor or employment-related claims as
nonarbitrable. Despite the evolution of the nonarbitrability doctrine in other contexts,
that remains the case in a number of jurisdictions, including England, Belgium, China and
Japan. (47) In contrast, U.S. law affirmatively encourages arbitration of many labor
disputes, while imposing only limited nonarbitrability restrictions on employer-
employee disputes. Thus, §1 of the U.S. FAA excludes from the Act’s coverage agreements
arising from a limited range of employment relations – agreements involving “contracts
of employment of seamen, railroad employees, or any other class of workers engaged in
foreign or interstate commerce.” Consistent with its text, this exclusion has been limited
by U.S. courts exclusively to transportation workers. (48)
[5] Consumer Disputes
As with employment disputes, different legal systems take different approaches towards
the arbitration of “consumer” disputes. (49) U.S. law currently recognizes the validity of
agreements to arbitrate between consumers and businesses and permits the arbitration
of both existing and future consumer disputes, subject to fairly limited restrictions based
on principles of unconscionability and due notice. The FAA has been interpreted as
extending to agreements between consumers and merchants, with the U.S. Supreme
Court repeatedly upholding both the validity of such agreements and the arbitrability of
consumer claims. (50)
In contrast, other jurisdictions forbid or regulate (through statutory provisions)
agreements to arbitrate future consumer disputes. Under the EU’s Unfair Terms in
Consumer Contracts Directive, a provision in a standard form consumer contract is prima
facie invalid if it “requir[es] the consumer to take disputes exclusively to arbitration not
covered by legal provision.” (51) Various EU Member States have implemented this
provision by adopting legislation that deems arbitration clauses in standard form
contracts unfair (and, therefore, invalid) if they require binding arbitration of future
disputes involving claims for less than specified sums (e.g., approximately $10,000).
Legislation in other jurisdictions, including Quebec, Ontario, New Zealand, Japan and
India also provides for the unenforceability of arbitration agreements in specified
P 100 categories of consumer contracts. (52)
[6] Other Nonarbitrable Disputes

Legislation in other states provides for a variety of categories of nonarbitrable disputes,
although these are usually limited in scope and practical importance. Virtually all states
regard criminal matters as nonarbitrable (in the sense that arbitrators may not impose
criminal sanctions, although in deciding civil disputes they may consider allegations of
conduct that would amount to a criminal offense). A few states treat limited issues of
intellectual property law as nonarbitrable (e.g., patent validity), while allowing other civil
disputes over IP rights to be arbitrated (e.g., royalty disputes, infringement claims). Other
states treat disputes arising from trade sanctions or embargoes as nonarbitrable,
although the more frequent approach is to treat such disputes in the same manner as
antitrust disputes.
[C] Choice of Law Governing Nonarbitrability

The law applicable to questions of nonarbitrability is addressed in Article V(2)(a) of the
Convention, which provides that an award need not be recognized in a Contracting State
if “the subject matter of the dispute is not capable of settlement by arbitration under the
law of that country.” The same rule is prescribed by Article 36(1)(b)(i) of the Model Law. As
discussed above, many authorities have applied this rule by analogy to the enforcement
of arbitration agreements, holding that, when a court is requested to refer a dispute to
arbitration, it may apply its own nonarbitrability rules. (53) Other authorities have held
that a jurisdiction’s nonarbitrability rules will apply only if that jurisdiction has a
material connection to the parties’ underlying dispute.
[D] Nonarbitrability Issues in Annulment or Enforcement of Awards

The nonarbitrability doctrine is also relevant at the stage of enforcing arbitral awards. In
particular, as discussed below, awards may be either annulled or denied recognition if
they concern a matter that is nonarbitrable (“not capable of settlement by arbitration”).
10
(54)
Although national courts have held that competition, securities and other mandatory law
claims are arbitrable, they have also suggested that awards dealing with these matters
may be subject to heightened judicial review. In Mitsubishi Motors, for example, the U.S.
Supreme Court held that U.S. courts would take a “second look” at an arbitrator’s
decision applying the antitrust laws at the stage of award enforcement:
“Having permitted the arbitration to go forward, the national courts of the
United States will have the opportunity at the award enforcement stage to
ensure that the legitimate interest in the enforcement of the antitrust laws has
been addressed.” (55)
P 101
The Eco Swiss decision of the ECJ attached the same caveat to the enforcement of an
arbitration agreement with regard to EU competition claims. Similar approaches have
been adopted in other contexts. (56)
The level of judicial review of awards dealing with mandatory law claims has been
relatively limited. Courts have sometimes scrutinized the substance of the arbitrators’
decisions, but typically afforded arbitral tribunals a substantial measure of discretion,
P 102 even in deciding mandatory law claims. (57)
P 102
References
1) Article II of the New York Convention applies only to an “agreement … under which
the parties undertake to submit to arbitration,” while Article 8 of the Model Law
applies only where there is an “arbitration agreement,” defined as requiring “an
agreement by the parties to submit to arbitration all or certain disputes.” These
provisions require the existence of a validly-formed agreement to arbitrate, failing
which there will be nothing for national courts or arbitrators to enforce.
2) G. Born, International Commercial Arbitration 784–85 (3d ed. 2021).
3) Issues of formal validity of the arbitration agreement are discussed below. See infra
pp. 86–90. See also G. Born, International Commercial Arbitration 697 et seq., 783–86
(3d ed. 2021).
5) See id. at 800–02.
6) See id. at 802–04.
7) See id. at 804.
8) See G. Born, International Arbitration and Forum Selection Agreements: Drafting and
Enforcing 36–37 (6th ed. 2021).
9) See supra pp. 35–42.
10) G. Born, International Commercial Arbitration 827–29, 2266 et seq. (3d ed. 2021). Some
national arbitration legislation permits judicial assistance in selecting an arbitral
tribunal even for a blank clause, provided the parties have some connection to the
judicial forum. Id.
11) See, e.g., G. Born, International Arbitration and Forum Selection Agreements: Drafting
and Enforcing (6th ed. 2021); J. Paulsson, N. Rawding & L. Reed, The Freshfields Guide to
Arbitration and ADR: Clauses in International Contracts (3d ed. 2011).
12) Marnell Corrao Assocs. Inc. v. Sensation Yachts Ltd, (2000) 15 PRNZ 608 (Auckland High
Ct.). See also Assoc’d British Ports v. Tata Steel UK Ltd [2017] EWHC 694, ¶29 (Comm)
(English High Ct.) (“To hold that a clause is too uncertain to be enforceable is a last
resort”).
14) Warnes SA v. Harvic Int’l Ltd, 1993 WL 228028 (S.D.N.Y.).
15) Preliminary Award in Zürich Chamber of Commerce Case of 25 November 1994, XXII Y.B.
Comm. Arb. 211 (1997).
16) Preliminary Award in ICC Case No. 2321, I Y.B. Comm. Arb. 133 (1976).
18) See, e.g., Austin v. Owens-Brockway Glass Container Inc., 78 F.3d 875, 880 (4th Cir. 1996)
(agreement that “all disputes … may be referred to arbitration” triggers mandatory
arbitration when dispute is referred to arbitration); Anzen Ltd v. Hermes One Ltd
[2016] UKPC 1, ¶15 (U.K. Privy Council) (“parties are entitled, if they so choose, to
confer a unilateral right to insist on arbitration”); Three Shipping Ltd v. Harebell
Shipping Ltd [2004] All ER (D) 152 (English High Ct.); Thorn Sec. (H.K.) Ltd v. Cheung Fee
Fung Cheung Constr. Co., [2005] 1 HKC 252 (H.K. Ct. App.).
20) See id. at 725.
21) See id. at 750–51. In some states (e.g., Switzerland), written form requirements are a
condition or requirement for contractual validity, while in other jurisdictions (e.g.,
United States, England), arbitration agreements may be valid under general contract
law principles even if the formal requirements for application of national arbitration
legislation are not satisfied.
11
22) See id. at 711–15. See also GE Energy Power Conversion France SAS, Corp. v. Outokumpu
Stainless USA, LLC, 140 S.Ct. 1637, 1645 (U.S. S.Ct. 2020) (“Article II(3) provides that
arbitration agreements must be enforced in certain circumstances, but it does not
prevent the application of domestic laws that are more generous in enforcing
arbitration agreements”).
23) Recommendation Regarding the Interpretation of Article II, ¶2, and Article VII, ¶1, of
the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, U.N.
Doc. A/61/17, Annex II.
25) See, e.g., FAA, 9 U.S.C. §2 (a written arbitration agreement “shall be valid, irrevocable
and enforceable, save upon such grounds as exist at law or in equity for the revocation
of any contract”) (emphasis added); English Arbitration Act, 1996, §7; Singapore
International Arbitration Act, §§3(1), 31(2)(b); Colombian Arbitration Law, Art. 108(1).
27) See id. at 918–32.
28) See id. at 932–37.
29) Prima Paint Corp. v. Flood & Conklin Mfg Co., 388 U.S. 395 (U.S. S.Ct. 1967) (claim that
parties’ underlying contract (containing an arbitration clause) had been fraudulently
induced did not involve challenge to arbitration clause itself; arbitral tribunal,
rather than U.S. court, was competent under FAA to rule upon fraudulent inducement
claim); Fiona Trust & Holding Corp. v. Privalov [2007] UKHL 40 (House of Lords) (“[T]he
doctrine of separability requires direct impeachment of the arbitration agreement
before it can be set aside. This is an exacting test.”).
30) There are references to the impossibility doctrine in Article II(3) of the Convention,
which contemplates non-recognition of arbitration agreements which are “incapable
of being performed,” and Article 8 of the UNCITRAL Model Law, which contains the
same formula. See G. Born, International Commercial Arbitration 946–50 (3d ed. 2021).
31) See, e.g., Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (U.S. S.Ct. 2006) (claim
that underlying contract was void for illegality did not impeach arbitration clause);
Fincantieri-Cantieri Navali Italiani SpA v. Oto Melara SpA, XX Y.B. Comm. Arb. 766 (1995)
(Swiss Fed. Trib.).
32) Soleimany v. Soleimany [1998] QB 785, 797 (English Ct. App.).
35) Judgment of 15 March 1990, Sonatrach v. KCA Drilling Ltd, 1990 Rev. Arb. 921 (Swiss Fed.
Trib.). See also Unionmutual Stock Life Ins. Co. of Am. v. Beneficial Life Ins. Co., 774 F.2d
524, 528–29 (1st Cir. 1985) (“The arbitration clause is separable from the contract and
is not rescinded by … [the defendant]’s attempt to rescind the entire contract based
on … frustration of purpose”); Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d
1263, 1271 (7th Cir. 1976); Nippon Catalyst Pte Ltd v. PT Trans-Pac. Petrochemical
Indotama, [2018] SGHC 126, ¶36 (Singapore High Ct.) (“an arbitration clause can
survive the termination of the main contract”).
37) See id. at 968, 2234–37.
38) See id. at 2238–41.
39) See id. at 1007.
40) See BG Group plc v. Argentina, 572 U.S. 25 (U.S. S.Ct. 2014).
41) See G. Born, International Commercial Arbitration 1045–59, 1133–37 (3d ed. 2021).
42) Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 639 n.21 (U.S.
S.Ct. 1985).
43) Eco Swiss China Time Ltd v. Benetton Int’l NV, Case No. C-126/97, [1999] E.C.R. I-3055
(E.C.J.).
44) See, e.g., Judgment of 18 October 2013, Case No. AAP M 1988/2013 (Madrid Audiencia
Provincial).
45) Scherk v. Alberto-Culver Co., 417 U.S. 506, 515–16 (U.S. S.Ct. 1974).
47) See id. at 1097–103.
48) See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 107 (U.S. S.Ct. 2001) (“As for the
residual exclusion of ‘any other class of workers engaged in foreign or interstate
commerce,’ it would be rational for Congress to ensure that workers in general would
be covered by the FAA, while reserving for itself more specific legislation for
transportation workers”).
49) “Consumer” disputes are defined generally as disputes between a consumer (or non-
merchant) and a merchant or commercial party, sometimes with a limited amount in
controversy.
50) See DirecTV Inc. v Imburgia, 136 S.Ct. 463 (U.S. S.Ct. 2015) (upholding agreement to
arbitrate consumer claims); Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (U.S. S.Ct.
2000) (mobile home financing agreement); Allied-Bruce Terminix Co. v. Dobson, 513
U.S. 265 (U.S. S.Ct. 1995) (consumer contract for pest control).
51) EU Council Directive 93/13/EEC, O.J. L 095, 23/04/1993, Annex 1(q).
53) Id. at 639–57, 1131.
55) Mitsubishi Motors, 473 U.S. at 638.
12
56) These include securities and intellectual property disputes. G. Born, International
Commercial Arbitration 1059–131 (3d ed. 2021).
KluwerArbitration
13
Tuesday, August 8, 2023: Appointment and Challenges of Arbitrators
• Appointment of arbitrators
• Challenges of arbitrators: Standard
• Challenges of arbitrators: Procedure
• Ethical issues for arbitrators
• Soft law instrument: IBA Guidelines on Conflict of Interests
• Case law to see how tribunals have decided challenges
Core Readings: Born, Chapter 7.
PDF - pages 49 to 70
KluwerArbitration
Document information Chapter 7: Selection and Removal of Arbitrators in

Publication One of the characteristic features of international arbitration is the absence of any
International Arbitration: standing “court.” This contrasts markedly with national and international courts, which
Law and Practice (Third have a permanent existence, a pre-existing complement of judges who are assigned
Edition) randomly to cases and generally applicable procedural rules. Rather, for most arbitral
proceedings, a tribunal must be separately constituted by the parties (or otherwise) for
every dispute.
Bibliographic The selection and removal of arbitrators is one of the most important aspects of arbitral
proceedings. As discussed below, the parties’ autonomy to select arbitrators of their own
reference choosing, who they consider appropriate to their particular dispute, is an essential
'Chapter 7: Selection and characteristic of arbitration. That autonomy is recognized, and given effect, by the New
Removal of Arbitrators in York Convention and most national arbitration statutes. When parties are unable to agree
International Arbitration', upon the identities of the arbitrator(s) for their dispute, both institutional rules and
in Gary B. Born , national law provide for selection of the arbitrator(s) by the parties’ agreed arbitral
International Arbitration: institution or a national court.
Law and Practice (Third
Edition), 3rd edition As also discussed below, a critical issue in the selection and removal of arbitrators is the
(© Kluwer Law arbitrators’ independence and impartiality. Most arbitration legislation and institutional
International; Kluwer Law rules require that arbitrators be independent from the parties and impartial. The content
International 2021) pp. 145 of these requirements, and the procedures by which these obligations are enforced, play
- 178 a vital role in the arbitral process.
§7.01 SELECTION OF ARBITRATORS IN INTERNATIONAL ARBITRATION

As with other aspects of the international arbitral process, a defining characteristic of the
selection of the arbitral tribunal is the principle of party autonomy. As discussed below,
the New York Convention, national arbitration legislation and institutional arbitration
rules all accord parties broad autonomy both to agree directly upon the identities of the
arbitrators in “their” arbitration and to agree on indirect procedural mechanisms for
selecting such arbitrators. Utilizing this freedom, many arbitration agreements provide a
procedural mechanism for the selection of the arbitrator(s) – either expressly or by
incorporating institutional rules. The almost universal contractual mechanism for
P 146 selecting an arbitrator is designation of a neutral “appointing authority” – like the ICC,
PCA or SIAC – to choose the arbitrator(s) if the parties cannot agree directly on their
identities. Most institutional rules provide for the institution to automatically play this
role when parties agree to arbitrate under the institution’s rules.
[A] Parties’ Autonomy to Select Arbitrators

The New York Convention and national arbitration legislation guarantee the parties’
autonomy to select the arbitrators who will resolve their dispute (or, alternatively, to
indirectly choose a means by which this selection is to be made on their behalf). The
parties’ autonomy is subject to only a few restrictions (discussed below), directed at
ensuring an impartial and independent tribunal and safeguarding a limited number of
similarly-important public policies.
[1] Parties’ Autonomy to Select Arbitrators Under New York Convention
Article V(1)(d) of the Convention provides that recognition of an award may be refused if
“the composition of the arbitral authority … was not in accordance with the agreement of
the parties, or, failing such agreement, was not in accordance with the law of the country
where the arbitration took place.” Article V(1)(d) requires Contracting States to give effect
to the parties’ agreement on the constitution of the tribunal, without reference to the law
of the arbitral seat. The law of the seat is applicable as a supplementary source if, but
only if, the parties reached no agreement concerning aspects of the constitution of the
tribunal (in Article V(1)(d)’s phrase, “failing such agreement …”). Article V(1)(d) gives effect,
in the context of award recognition, to the parties’ autonomy in selecting the arbitrators.
The provision parallels the Convention’s requirement, in Article II, that Contracting States
enforce agreements to arbitrate – including provisions of arbitration clauses regarding
the selection of arbitrators.
[2] Parties’ Autonomy to Select Arbitrators Under National Arbitration Legislation
Consistent with the Convention, most national arbitration statutes confirm the parties’
autonomy to select “their” arbitrators, either directly or indirectly, subject only to limited
exceptions, including of equality and due process. Article 11(2) of the UNCITRAL Model
Law is representative and provides that “the parties are free to agree on a procedure of
appointing the arbitrator or arbitrators.” In the words of the Explanatory Note on the
Model Law, Article 11 “recognizes the freedom of the parties to determine, by reference to
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an existing set of arbitration rules or by an ad hoc agreement, the procedure to be
followed, subject to the fundamental requirements of fairness and justice.” (1) Other
arbitration legislation confirms the parties’ autonomy to select the tribunal, either
P 147 directly or indirectly. (2)
As discussed below, the parties’ autonomy to select arbitrators in an international
arbitration is subject only to limited exceptions under many arbitration statutes (and
some institutional rules). These exceptions generally concern the impartiality and
independence of the arbitrators, the fairness of the arbitral process and (in some states)
limited requirements regarding the arbitrator’s qualifications. In general, the parties’
autonomy to select the arbitrators will be overridden only in exceptional cases.
[3] Parties’ Autonomy to Select Arbitrators Under Institutional Arbitration Rules
Parties frequently agree to arbitrate pursuant to institutional rules, incorporated by
reference into their arbitration agreement. One of the major reasons for this choice is the
role of an arbitral institution in constituting the tribunal and replacing arbitrators.
Most institutional rules grant parties broad autonomy to select the arbitrators in their
arbitrations. (3) Articles 7 through 10 of the UNCITRAL Rules, Articles 12 through 14 of the
2021 ICC Rules, and Rules 12 through 16 of the 2013 AAA Rules adopt the same general
approach to selection of arbitrators. Under each of these sets of rules, the parties are
permitted to agree directly upon a proposed sole arbitrator; in the case of three-person
tribunals, most rules provide for each party unilaterally to nominate a co-arbitrator and
to mutually agree upon a presiding arbitrator. Under some rules (such as the UNCITRAL
Rules), the two co-arbitrators are also granted the power jointly to select the presiding
arbitrator, while other rules (such as the ICC Rules), permit such an approach if the
parties’ agreement provides for it, but, absent such agreement, provide that the arbitral
institution will select the presiding arbitrator. (4)
[4] Consequences of Failure to Comply with Contractual Appointment Mechanism for
Arbitrators
The corollary of the parties’ autonomy to agree upon an arbitrator, or on mechanisms for
selecting an arbitrator, is that these mechanisms are binding and must be complied with.
If an arbitrator is selected in a manner that does not comply with the parties’ agreed
contractual procedures, then his or her appointment is arguably invalid, subjecting the
arbitrator to removal during the course of the arbitration and exposing his or her awards
P 148 to potential annulment and/or non-recognition.
The removal of an arbitrator selected in violation of the parties’ arbitration agreement is
provided for by most contemporary national arbitration statutes (e.g., Article 12(2) of the
UNCITRAL Model Law). Less consistently, the annulment of an award made by a tribunal
including improperly-selected arbitrators is contemplated by most national arbitration
statutes (including Article 34(2)(a)(iv) of the UNCITRAL Model Law). (5) Consistent with this,
national courts have annulled awards where arbitrators were appointed in violation of
contractual appointment mechanisms. That includes cases where arbitrators were
appointed after the expiry of contractual deadlines, without complying with the terms of
the parties’ arbitration agreement, or where the tribunal had a different number of
members than provided in the arbitration agreement. (6)
[B] Exercise of Parties’ Autonomy to Select Arbitrators

The parties’ autonomy to select “their” arbitrators requires parties to make important
decisions. These include decisions about the number of arbitrators on a tribunal, the
means or method of selecting the arbitrators, qualifications of the arbitrators and other
issues.
[1] Number of Arbitrators
National arbitration statutes explicitly recognize the parties’ autonomy to select the
number of arbitrators. Article 10(1) of the UNCITRAL Model Law is representative,
providing that “the parties are free to determine the number of arbitrators.” Legislation
and judicial decisions in other jurisdictions are to the same effect. (7)
Despite the general principle of party autonomy, some nations have prohibitions against
arbitration by an even number of arbitrators (e.g., France (in domestic arbitrations), the
Netherlands, Belgium, Italy, Portugal, Egypt, Tunisia). (8) In a number of these states,
local legislation or judicial authority essentially converts agreements on even numbers of
arbitrators into agreements on odd numbers of arbitrators, by providing for the
appointment of an additional arbitrator. In other countries, local legislation invalidates
arbitration agreements that specify an even number of arbitrators (rather than
substituting an odd number). The purpose of these restrictions is to avoid deadlocked
tribunals.
[i] Sole Arbitrator
In practice, almost all international commercial arbitration tribunals consist of either
one or three arbitrators. One arbitrator is, in some respects, easier to select than a larger
P 149 number of arbitrators, while he or she generally costs less and can act more quickly
2
than multiple arbitrators. Among other things, multiple arbitrators may find it difficult to
coordinate calendars and to schedule hearings and conclude deliberations, leading to
significant delays. There are also (generally inaccurate) suggestions that a sole arbitrator
is more likely to act “judicially” than arbitrators on a three-person tribunal that includes
party-nominated co-arbitrators. Parties sometimes find these various advantages
decisive and opt for a sole arbitrator; that is particularly true in smaller cases and in
some industrial sectors. Thus, in roughly 35–40% of ICC arbitrations, the parties’
arbitration agreement provides for a sole arbitrator. (9)
[ii] Three-Person Arbitral Tribunal
Despite the advantages of a sole arbitrator, the preferred solution in most reasonably
sized international arbitrations (i.e., disputes in excess of $5 million) is a three-person
tribunal. A tribunal consisting of three arbitrators has the advantage of permitting each
party (in both a two-party and in many multi-party contexts) to select an arbitrator.
Additionally, a three-person tribunal can combine individuals with different expertise
(e.g., legal, business), linguistic and cultural backgrounds; it also provides the benefits of
collegiality, the system of checks and balances, and “extra sets of eyes.”
[iii] Umpire and Two Arbitrators
Some common law jurisdictions, and a few commercial sectors, there has been a
tradition of three-person arbitral tribunals which consisted of two co-arbitrators and an
“umpire.” Under the “umpire” system, arbitrations are conducted by two arbitrators and
an “umpire,” with the former potentially serving as quasi-advocates for their parties in
the final phase of the arbitration. In practice, contemporary commercial parties agree to
arbitration with an umpire very rarely. (10)
[iv] Five-Person (or Larger) Arbitral Tribunals
Parties very occasionally agree to five-person tribunals or, even more rarely, larger
numbers of arbitrators. Such arrangements have sometimes been used in state-to-state
arbitrations, including in the Iran-U.S. Claims Tribunal (with a full tribunal of nine
members) and for various ad hoc tribunals.
In commercial matters, tribunals of five (or more) members are virtually never used. The
ICC, for example, reported its first use of a five-person tribunal in 2018, after some 95
years of experience. This record is unsurprising: it is almost always unwise to select five
(or more) arbitrators for commercial disputes. Simple scheduling tasks (such as finding
consecutive hearing days or opportunities to be heard on short notice) become
cumbersome processes in cases with unusually large tribunals. Likewise, debate and
P 150 decision-making among five members of an ad hoc tribunal is often difficult, while
offering little advantage in terms of increased competence beyond that of a three-person
tribunal. (11)
[v] Default Rules on Number of Arbitrators
It is generally advisable for parties to agree on the number of arbitrators (and, as noted
above, if such an agreement exists, it will be given effect). Nonetheless, parties often do
not do so, neither in their arbitration agreement nor afterwards. In the absence of an
agreement, the number of arbitrators will be selected by a court (in the case of ad hoc
arbitrations) or arbitral institution (in institutional arbitrations). In these circumstances,
national law and institutional rules provide fallback rules regarding the number of
arbitrators.
Different national laws take different approaches to selecting the number of arbitrators
when the parties have not addressed that issue in their agreement. The UNCITRAL Model
Law provides that, absent agreement by the parties, “the number of arbitrators shall be
three.” Similarly, a number of civil law jurisdictions provide for three arbitrators where
the parties have not otherwise agreed. (12) In contrast, many common law jurisdictions
provide for a sole arbitrator as a fallback solution. Under §5 of the U.S. FAA, where the
parties have not agreed upon the number of arbitrators, “the arbitration shall be by a
single arbitrator.” (13)
Like national arbitration statutes, institutional arbitration rules adopt a variety of
differing approaches to selecting the number of arbitrators, when the parties’ agreement
does not do so. Somewhat unusually, Article 7(1) of the UNCITRAL Rules provides that,
where the parties have not otherwise agreed, “three arbitrators shall be appointed.” A
few other institutional rules, such as the CIETAC Rules, contain a presumption in favor of
three arbitrators. (14) In contrast, most institutional rules (including the ICC, SIAC, LCIA
and AAA Rules) provide presumptively for a sole arbitrator, with the arbitral institution
being granted discretion to appoint three arbitrators in appropriate cases. (15) Other
rules do not presumptively provide for one or three arbitrators; the institution will
decide the appropriate number of arbitrators by taking into account the circumstances
of each case. (16)
[2] Procedures for Selecting Arbitrators
As discussed above, there is ordinarily no standing or pre-existing tribunal in
international arbitration: rather, a new tribunal typically must be selected and
3
constituted for each arbitration. As noted above, the freedom to select the arbitral
P 151 tribunal for every dispute is one of the distinguishing features of the arbitral process.
Exercising this freedom wisely is one of the most significant responsibilities of the parties
(and their counsel) to an arbitration.
[i] Selection of Co-Arbitrators by Parties
It is common practice – in both historic and contemporary international arbitration – to
provide for a three-person arbitral tribunal, with each party unilaterally nominating one
co-arbitrator. The role of selecting the co-arbitrator is a delicate, but highly important
one. As discussed below, the co-arbitrator must (in most contexts) be impartial and
independent; yet, at the same time, he or she is designated unilaterally by one of the
parties, in large part for the purpose of assuring that party that it will receive a
sympathetic, or at least informed and objective, hearing. Choosing an individual who is
able to satisfy each of these various requirements can be challenging.
The mechanics of the arbitrator nomination process vary, depending on the applicable
national law, institutional arbitration rules (if any) and terms of the parties’ arbitration
agreement. In practice, a party typically nominates a co-arbitrator by providing written
notice to the opposing party of its designation of a specified individual as co-arbitrator.
Upon the counter-party’s receipt of the notice, and unless otherwise agreed, the
arbitrator’s appointment is generally effected. The proposed arbitrator is, of course, free
to refuse a nomination, in which case the nominating party will generally be permitted to
make an alternative nomination.
Under some institutional rules, a party’s designation of an arbitrator constitutes a
“nomination,” which must be approved or confirmed by the relevant institution. In these
cases, this approval typically occurs only after the institution has received declarations
of independence and availability from the nominee, solicited all parties’ views on the
nominee and conducted an institutional review of the nominee’s independence,
suitability and availability. (17)
[ii] Interview of Prospective Arbitrators
It is common and ordinarily unobjectionable practice for parties, or their counsel, to
contact potential choices for a co-arbitrator, to ascertain their suitability, availability
and interest and, where appropriate, to discuss the selection of a presiding arbitrator.
P 152 This process is sometimes referred to as “interviewing” the co-arbitrator. (18)
The IBA Guidelines on Conflicts of Interest in International Arbitration address the
appropriate scope of contacts between parties and potential co-arbitrators. Among other
things, the Guidelines provide that the arbitrator will not be disqualified by, or be
required to disclose that:
“[he or she has had] an initial contact with the appointing party or an affiliate
of the appointing party (or their counsel) prior to appointment, if this contact
is limited to the arbitrator’s availability and qualifications to serve or to the
names of possible candidates for a chairperson and did not address the
merits or procedural aspects of the dispute.” (19)
Contacts between parties and a prospective co-arbitrators prior to nomination are
important to the arbitral process and, with appropriate safeguards (including disclosure
as to their existence and equal opportunities for both parties to have such contacts), do
not undermine or taint that process. Instead, they serve as a constructive and valuable
form of quality control. Among other things, these communications serve to ensure that a
co-arbitrator has genuine experience with arbitration or a particular substantive field,
does not have relations with an adverse party or law firm, is actually available and
interested in serving, and has the personal and intellectual abilities to function well on a
tribunal. (Despite this, a few jurisdictions presumptively regard “interviews” with co-
arbitrators with disfavor, potentially subjecting co-arbitrators who participate in
interviews to challenge.)
When they occur, it is important to ensure that co-arbitrator’s obligations of impartiality
and independence are not compromised by pre-nomination contacts with the
nominating party. As the IBA Guidelines and IBA Rules of Ethics provide, there may be no
discussion of the merits of the dispute, other than a general description sufficient to
allow the party and prospective co-arbitrator to consider issues of experience and
suitability. In particular, there should be no “pleading” of the case by a party nor any
indications of views by the co-arbitrator. As a rule, parties and co-arbitrators should
conduct themselves as if the other party were present during their discussions.
[iii] Party’s Failure to Select Co-Arbitrator
If a party fails to nominate a co-arbitrator, in accordance with the arbitration agreement,
it may suffer serious consequences. These differ depending on whether the parties’
arbitration agreement incorporates institutional rules, which will then govern, or whether
no rules are adopted, in which case national law in the arbitral seat will generally
provide default rules.
Under most institutional rules, a party’s failure to designate a co-arbitrator within the
4
prescribed time period under the rules (or the parties’ arbitration agreement, if
different) entitles its counter-party to request the appointing authority to appoint an
arbitrator instead of a defaulting party. (20) The loss of the opportunity to nominate a co-
arbitrator is the forfeiture of a significant right on the defaulting party. A co-arbitrator
selected by the arbitral institution may be competent and diligent, but the party’s
ability to select its own preferred co-arbitrator is one of the defining features of this
aspect of the international arbitral process. Losing this right is a very serious matter,
P 153 particularly when a counter-party retains it.
Alternatively, some arbitration agreements provide that, if a party fails to nominate a co-
arbitrator, its counter-party may do so – thus permitting that party to choose both of the
(two) arbitrators, who would in turn often be empowered jointly to select the presiding
arbitrator. This is an even more serious consequence than a party losing its right to
nominate a co-arbitrator, who is then selected by an arbitral institution, or national
court, because it allows the party’s adversary to select a majority of the arbitral tribunal.
Some jurisdictions may not give effect to an arbitration agreement providing that, in the
event a party failed to appoint a co-arbitrator, its counter-party would be entitled to
make the appointment. Common law jurisdictions have typically given effect to such
agreements, notwithstanding the substantial disadvantage it causes for the defaulting
party. A number of civil law authorities reach the same conclusion, at least in recognition
actions. (21) On the other hand, other national laws require that the parties possess equal
or proportional rights in the process of constituting the arbitral tribunal and there is a
serious argument that a mechanism granting one party the right to choose both co-
arbitrators is contrary to those rights. (22)
If neither the parties’ arbitration agreement nor any applicable institutional arbitration
rules address the issue, then national law will address the consequences of a party’s
failure to nominate an arbitrator within the time limits specified in an arbitration
agreement (or by the default rules of national arbitration law). In a few jurisdictions,
these consequences can include forfeiture of the defaulting party’s right to nominate an
arbitrator. For example, §17 of the English Arbitration Act provides that, if a party fails to
nominate a co-arbitrator within the agreed time limits, then (absent contrary agreement)
its counter-party may elect to treat its co-arbitrator as a sole arbitrator. This result is
even more imbalanced than arbitration agreements permitting a party to nominate a
defaulting counter-party’s co-arbitrator, because it effectively allows one party directly
to select the entire arbitral tribunal. (23)
In contrast, in most jurisdictions, a party’s failure to appoint an arbitrator in accordance
with an ad hoc arbitration agreement permits its counter-party to apply for judicial
appointment of the defaulting party’s co-arbitrator. The UNCITRAL Model Law is
representative, providing in Article 11(4) that, if one party fails to nominate a co-
arbitrator, then the other party may apply to local courts in the arbitral seat for a
P 154 substitute appointment. Other arbitration statutes are similar. (24)
[iv] Selection of Sole or Presiding Arbitrator by Parties

In addition to selecting the co-arbitrators (in the case of a three-person tribunal), parties
will often also jointly participate in selecting the sole or presiding arbitrator. In many
instances, parties are able to agree on the identity of the sole or presiding arbitrator;
although agreement on a sole or presiding arbitrator involves delicate technical and
negotiation considerations, it is the simplest, most direct and (usually) the best means of
selecting an arbitrator. Agreement on the identity of the arbitrator(s) can be reached
either in the parties’ original arbitration clause, before any dispute arises, or in post-
dispute negotiations during the course of the arbitral proceedings. In the latter case
agreement can be sought either in direct contacts between the parties themselves or
indirectly, through discussions between the parties’ legal advisors or party-nominated
arbitrators (in cases involving three-person tribunals). In both cases, arbitral institutions
and national courts will give effect to the parties’ agreement (subject to narrow
exceptions for disqualification for lack of impartiality). (25)
Parties often agree that the presiding arbitrator will be chosen by the co-arbitrators.
Involvement of the co-arbitrators in the process of selecting a presiding arbitrator offers
advantages not present with direct discussions between the parties. Particularly if they
are experienced practitioners, the co-arbitrators will often have had personal experience
with potential candidates for presiding arbitrator, and can offer reassurance to parties
concerned about selecting a competent and impartial individual. (26)
When the co-arbitrators are to select the presiding arbitrator, the parties will ordinarily
have no right to veto the co-arbitrators’ agreement on a chairman. Nonetheless, absent
contrary agreement, co-arbitrators are generally permitted to confer with their
respective nominating parties about suitable presiding arbitrators (to ensure that he or
she has appropriate experience, availability and independence). In general, however, it
is inappropriate for either of the parties independently to “interview” a prospective
presiding arbitrator.
[v] Selection of Sole or Presiding Arbitrator by Appointing Authority
If the parties are unable to agree upon a sole or presiding arbitrator, in many cases, the
5
parties’ arbitration agreement will provide a procedural mechanism for selection of the
presiding or sole arbitrator– either expressly or by incorporating institutional rules. The
almost universal contractual mechanism for selecting an arbitrator is designation of a
neutral “appointing authority” to choose the arbitrator(s) if the parties and/or co-
arbitrators cannot agree. Failure to provide for an appointing authority in an arbitration
agreement can result in the process of constituting the tribunal becoming deadlocked or,
more likely, a national court (or, in dysfunctional cases, multiple national courts)
P 155 designating the arbitrator(s) as a default mechanism
Parties can (and usually do) agree to the use of a particular appointing authority simply
by agreeing to arbitrate under a set of institutional arbitration rules. All leading
institutional rules provide for such a role by the institution when parties agree to
arbitrate under that institution’s rules. Incorporating institutional rules of this character
also automatically incorporates a selection of an appointing authority, which in turn
chooses the sole or presiding arbitrator (if the parties or co-arbitrators are unable to do
so by agreement). As noted above, national arbitration statutes and case law uniformly
give effect to the parties’ autonomy to agree to the designation of an appointing
authority to select the arbitrators. For example, Article 11(3)(a) of the UNCITRAL Model
Law provides for selection of the sole or presiding arbitrator by the parties’ agreed
appointing authority; other authorities are similar. (27)
[vi] Selection of Sole or Presiding Arbitrator by National Courts
Most national arbitration statutes permit the judicial appointment of arbitrators by a
national court, in international arbitrations, but only as a default procedure limited to
cases where the parties have not agreed upon means for selecting the tribunal or where
their agreed means have failed to function successfully. The availability of judicial
appointment of arbitrators as a default mechanism ensures that arbitral proceedings can
be pursued, even in the face of what would otherwise be insurmountable difficulties in
constituting the tribunal. At the same time, unless carefully exercised, the availability of
judicial appointment authority creates risks of disregarding the parties’ procedural
agreement(s), of premature judicial intervention and/or of conflicting appointments of
arbitrators by two or more national courts.
Article 11 of the UNCITRAL Model Law is representative in its treatment of judicial
appointment of arbitrators, albeit with provisions that are more detailed than most other
statutes. Article 11(3) provides for judicial appointment of arbitrators if, in an arbitration
seated within national territory with a three-person tribunal, “a party fails to appoint the
[co-]arbitrator within thirty days of receipt of a request to do so from the other party, or if
the two [co-]arbitrators fail to agree on the third arbitrator within thirty days of their
appointment.” Article 11(4) of the Model Law then goes on to provide for judicial
appointment of an arbitrator if, under the procedure contained in the parties’ arbitration
agreement:
“(a) a party fails to act as required under such procedure, or (b) the parties, or
two arbitrators, are unable to reach an agreement expected of them under
such procedure, or (c) a third party, including an institution, fails to perform
any function entrusted to it under such procedure.”
Judicial appointment is only permitted under the Model Law where the parties not have
“provide[d] other means for securing the appointment” of the arbitrator(s). (28) For
example, the parties may have agreed upon neither institutional rules nor an appointing
authority, or the agreed appointing authority may have gone out of existence or refused
to act, or an arbitrator specified in the parties’ agreement may have refused to act. Other
P 156 arbitration legislation is similar, permitting appointment of arbitrator(s) only where
the parties have not otherwise provided for such appointments or where their agreed
appointment mechanism has failed. (29)
Arbitration legislation generally provides little guidance to courts for choosing
arbitrators in international arbitrations. Article 11(5) of the UNCITRAL Model Law provides
that “in appointing an arbitrator, [the court] shall have due regard to any qualifications
required of the arbitrator by the agreement of the parties and to such considerations as
are likely to secure the appointment of an independent and impartial arbitrator”; the
same provision requires the court to “take into account as well the advisability of
appointing an arbitrator of a nationality other than those of the parties.” In practice,
national courts frequently appoint local practitioners or retired judges, often with
limited international experience – which is one reason that parties typically prefer
institutional arbitration, and experienced appointing authorities, to ad hoc arbitration.
[C] Restrictions on Arbitrators’ Identities

Although the principle of party autonomy is central to international arbitration, there are
limits to the parties’ freedom to select particular arbitrators in individual cases. These
limits can arise from the parties’ arbitration agreement (together with any institutional
rules that the parties have incorporated), international arbitration conventions or
national law. These restrictions typically include constraints concerning the arbitrators’
nationality, qualifications, experience and, most importantly independence and
impartiality, as well as procedural requirements concerning disclosure of possible
6
conflicts of interest affecting the arbitrator’s independence and impartiality.
[1] Requirements for Arbitrators’ Independence and Impartiality
Arbitrators in international arbitrations are subject to important requirements of
independence and impartiality, arising from both national and international sources.
These requirements are fundamental to the arbitral process, which is an adjudicatory
procedure requiring a neutral and objective tribunal.
[i] Requirements for Arbitrators’ Independence and Impartiality Under National Arbitration
Legislation
Most arbitration statutes impose requirements of impartiality on arbitrators. The Model
Law is representative, with Article 12(2) providing that: “An arbitrator may be challenged
only if circumstances exist that give rise to justifiable doubts as to his impartiality or
independence….” Article 12(2) imposes a substantive standard of impartiality and
independence, which all members of the tribunal must satisfy and which provides a basis
for challenging an arbitrator or proposed arbitrator. In addition, Articles 34(2)(a)(iv) and
36(1)(a)(iv) of the Model Law provide for annulment or non-recognition of awards, based
P 157
upon an arbitrator’s lack of independence or impartiality under the law of the arbitral
seat, while Articles 34(2)(b)(ii) and 36(1)(b)(ii) provide for annulment or non-recognition of
the award, based on a violation of the forum’s public policies (which often include at
least minimum standards of impartiality and independence).
Other national arbitration regimes adopt similar standards. One U.S. decision concluded
that an award would be annulled where “a reasonable person would have to conclude
that an arbitrator was partial to one party to the arbitration.” (30) Similarly, the
prevailing standard of impartiality under English law is whether there is a “real
likelihood, in the sense of a real possibility, of bias,” or whether a “fair-minded and
informed observer” would conclude that there was a “real possibility” that the tribunal
was not impartial. (31)
[ii] Requirements for Arbitrators’ Independence and Impartiality Under Institutional
Arbitration Rules
In addition to obligations of independence and impartiality under national law, most
institutional rules impose similar obligations, together with mechanisms for appointing
and challenging arbitrators. Where applicable, these provisions play a central role in the
process of constituting a tribunal, largely (but not entirely) superseding the role of
national courts and legislative standards.
Leading institutional rules adopt broadly similar approaches to the substantive and
procedural aspects of an arbitrator’s independence and impartiality. These rules
typically track the language of the UNCITRAL Model Law and other national arbitration
statutes, usually requiring that arbitrators be either “independent and impartial” or
“impartial.” (32)
Article 12(1) of the UNCITRAL Rules is representative, providing that “[a]ny arbitrator may
be challenged if circumstances exist that give rise to justifiable doubts as to the
arbitrator’s impartiality or independence.” Article 13 of the Rules goes on to provide that
the challenge will be considered by the appointing authority (unless all parties agree on
the challenge or the challenged arbitrator resigns). These provisions establish a largely
stand-alone mechanism whereby objections to arbitrators may be resolved expeditiously
by a contractually-agreed appointing authority, without recourse to national courts,
under prescribed contractual standards of impartiality. (As discussed below, however,
Article 13(3) of the Model Law and some other arbitration statutes permit national courts
to reconsider a challenge to an arbitrator, notwithstanding the parties’ agreement to the
P 158 challenge procedures of institutional rules. (33) )
Likewise, Article 11(1) of the 2021 ICC Rules provides that “every arbitrator must be and
remain impartial and independent of the parties involved in the arbitration.” (34) The
Rules also provide procedures for objections to proposed arbitrators and challenges to
existing arbitrators to be submitted to, and decided by, the ICC Court of Arbitration.
Article 11(4) of the Rules provides that the ICC Court’s decision “shall be final.”
Historically, arbitral institutions did not publish the results, or provide the reasoning, of
challenge decisions made under institutional arbitration rules. Many institutional rules
continue to contain no requirement for a reasoned decision on challenges to arbitrators,
including the ICDR, AAA, Swiss and CIETAC Rules. (35) In contrast, the 2021 ICC Rules
provide that the ICC Court will, upon the request of a party, provide reasons while
deciding on a challenge. (36) Other arbitral institutions have also begun publishing
reasoned challenge decisions. (37)
[iii] Standards of Impartiality and Independence for Co-Arbitrators and Presiding Arbitrator
A recurrent issue is whether co-arbitrators (in a three-person tribunal) are subject to the
same standards of impartiality as a presiding (or sole) arbitrator. Historically, party-
nominated arbitrators in many jurisdictions were presumed (absent contrary agreement)
to have a measure of partiality towards their appointing parties. The practice of partisan
party-nominated co-arbitrators was particularly common in the United States. (38) Thus,
7
until 2003, the AAA Rules provided for presumptively different standards of impartiality
for co-arbitrators and presiding arbitrators (called, tellingly, “neutrals”), while prevailing
U.S. ethical guidelines for arbitrators adopted the same approach. (39)
In contrast, outside the United States, many modern arbitration statutes formally impose
the same standards of independence on both party-nominated co-arbitrators and
presiding (or sole) arbitrators. Article 12 of the Model Law is representative, making no
distinction between party-nominated and presiding (or sole) arbitrators. Other
arbitration legislation is similar (and, as discussed below, most institutional rules adopt
P 159 the same approach). (40)
More recently, practice in the United States has begun to abandon historic presumptions
that party-nominated co-arbitrators need not be impartial. The 2004 AAA/ABA Code of
Ethics for Arbitrators in Commercial Disputes was amended to alter traditional domestic
U.S. approaches and impose duties of impartiality on co-arbitrators. Canon X of the
AAA/ABA Code of Ethics was revised to impose the same ethical obligations on all
arbitrators, including co-arbitrators, unless the parties expressly agreed to the contrary.
At the same time, the AAA amended its domestic Commercial Rules to provide that
(absent express contrary agreement) all arbitrators were required to be independent and
impartial. (41)
Importantly, however, under both the AAA/ABA Code of Ethics and the AAA Commercial
Arbitration Rules, parties are permitted to agree upon the use of “non-neutral” co-
arbitrators. (42) Thus, the revised AAA/ABA Code of Ethics provides, in Canons IX and X,
that parties may, by express agreement, accept “non-neutral” co-arbitrators. Canon IX(B)
declares that “there are certain types of tri-partite arbitration in which it is expected by
all parties that the two arbitrators appointed by the parties may be predisposed toward
the party appointing them,” and then provides a mechanism by which the parties’
expectations and agreement in this regard will be unambiguously ascertained at the
outset. Rule 13(b) of the AAA Rules takes the same approach, permitting parties to agree
to non-neutral co-arbitrators.
Contemporary U.S. practice continues to differ from that in some other jurisdictions. In
particular, some jurisdictions do not permit parties to agree upon “non-neutral” co-
arbitrators, as permitted under the AAA Rules and AAA/ABA Code of Ethics. For example,
some Model Law jurisdictions impose mandatory obligations of independence and
impartiality on all arbitrators regardless of the parties’ contrary agreement. (43)
[iv] IBA Guidelines on Conflicts of Interest
As discussed above, the IBA has adopted two sets of guidelines concerning conflicts of
interest of international commercial arbitrators – the 1987 IBA Rules of Ethics for
International Arbitrators (“IBA Rules of Ethics”) and the 2004 IBA Guidelines on Conflicts
of Interest in International Arbitration, revised in 2014 (“IBA Guidelines”). Neither the IBA
Rules of Ethics nor the IBA Guidelines have the force of law (although they will be
contractually-binding if incorporated by an arbitration clause). (44) The IBA Rules of
Ethics and IBA Guidelines have also not been formally adopted by arbitral institutions,
either as binding rules or advisory guidelines.
The precise role of the IBA Guidelines in national courts and institutional settings
remains ill-defined, as does the legal basis for any such role. In many respects, the IBA
Guidelines have been a source of uncertainty (in contrast to institutional arbitration rules
and the IBA Rules on the Taking of Evidence, which frequently have a reasonably well-
P 160 defined contractual effect).
The IBA Rules of Ethics were adopted in 1987. They set forth general principles regarding
the ethical obligations of international arbitrators, including in particular the arbitrators’
impartiality. The IBA Rules of Ethics set forth nine articles, resting on the “Fundamental
Rule” that “[a]rbitrators shall proceed diligently and efficiently to provide the parties
with a just and effective resolution of their disputes, and shall be and shall remain free
from bias.” (45) The Rules of Ethics elaborate on this basic principle with provisions
regarding substantive standards of impartiality, disclosure, communications with parties
and fees. (46)
The IBA Guidelines elaborated on the IBA Rules of Ethics’ treatment of the arbitrators’
independence and impartiality. Their principal purpose was to remedy what was seen as
the lack of clarity and certainty with respect to arbitrators’ obligations of independence
and impartiality and to reduce the frequency of challenges to arbitrators in international
arbitration. Adopted in 2004, and revised in 2014, the IBA Guidelines consist of two basic
parts. The first part formulates seven “General Standards” of impartiality, together with
explanatory notes; the second part sets out specific types of potential “conflicts” in which
issues of impartiality frequently arise, categorizing such circumstances into forbidden
(“Red”), permitted (“Green”) and other (“Orange”) lists of arguable conflicts of interest.
The Guidelines’ General Standards articulate rules concerning impartiality, disclosure
and waiver, focusing on two related sets of obligations: (a) an obligation for arbitrators
and prospective arbitrators to disclose certain circumstances that might give rise to
doubts concerning their impartiality or independence (General Standard 3); and (b) an
obligation that arbitrators be impartial and independent (General Standard 1).
8
The fundamental “General Standard” of the IBA Guidelines is that:
“[e]very arbitrator shall be impartial and independent of the parties at the time
of accepting an appointment to serve and shall remain until the final award
has been rendered or the proceedings have otherwise finally terminated….”
This principle applies to “every” arbitrator, adopting the same standard for co-
arbitrators and presiding arbitrators.
This basic standard is elaborated upon by the General Standards concerning
disqualification of arbitrators. General Standard 2(a) provides that an arbitrator shall
decline to accept nomination “if he or she has any doubts as to his or her ability to be
impartial or independent.” Additionally, General Standard 2(b) provides that an
arbitrator must withdraw or resign if:
“facts or circumstances exist, or have arisen since the appointment, which,
from the point of view of a reasonable third person having knowledge of the
relevant facts and circumstances, would give rise to justifiable doubts as to the
arbitrator’s impartiality or independence.”
This provision requires withdrawal, or permits disqualification, based on an objective
standard – in particular, disqualification is provided for if a “reasonable” third person
P 161 would have “justifiable doubts” as to the arbitrator’s impartiality or independence.
The heart of the IBA Guidelines is its Red, Orange and Green lists. As discussed above,
these categories elaborate on the general requirements of impartiality and
independence, by providing specific instances of relationships that warrant
disqualification (“Red”), divided into waivable and non-waivable conflicts. The
Guidelines also set forth lists of relationships that raise possible grounds for
disqualification, and which must generally be disclosed to the parties (“Orange”) and
relationships that do not warrant disqualification of an arbitrator, or even disclosure to
the parties (“Green”). Although the IBA Guidelines do not have the force of law, some
courts have relied upon them in decisions regarding removal of arbitrators.
[v] Disclosure Obligations of Arbitrators
An essential aspect of constituting a tribunal is the disclosure by arbitrators of
circumstances which could raise justifiable doubts regarding their impartiality. Most
national laws and institutional rules obligate arbitrators to make such disclosures, both
prior to accepting a nomination and (in the event of new developments) during the
course of the arbitration. As discussed above, the IBA Guidelines impose similar
disclosure obligations.
Many national laws require arbitrators to disclose matters that might compromise their
impartiality prior to accepting appointment. Article 12(1) of the Model Law is
representative, providing: “[w]hen a person is approached in connection with his possible
appointment as an arbitrator, he shall disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence.” Article 12(1) imposes an
objective standard: if facts are “likely to give rise to justifiable doubts” as to the
arbitrator’s impartiality or independence, they must be disclosed. Similarly, Article 12(2)
provides that an arbitrator may be challenged only if circumstances actually do “give rise
to justifiable doubts” as to impartiality and independence. There is, however, a clear
difference between the two standards in Articles 12(1) and 12(2), with the former requiring
a lower threshold of probability (“likely to give rise”) than the latter (“give rise”). (47)
Most institutional rules require arbitrators to disclose circumstances bearing on their
impartiality prior to accepting appointment. Article 11 of the UNCITRAL Rules provides
that:
“When a person is approached in connection with his or her possible
appointment as an arbitrator, he or she shall disclose any circumstances likely
to give rise to justifiable doubts as to his or her impartiality or independence.”
Like Article 12(1) of the Model Law, Article 11 of the UNCITRAL Rules imposes a broader
disclosure standard than the standard required for removal of an arbitrator under Article
12(1). Other institutional rules impose similarly broad disclosure obligations on
P 162 arbitrators and prospective arbitrators. (48)
Both national law and many institutional rules also impose a continuing obligation on
arbitrators to disclose possible conflicts that arise during the arbitral proceedings. For
example, Article 12(1) of the Model Law provides that:
“An arbitrator, from the time of his appointment and throughout the arbitral
proceedings, shall without delay disclose any such circumstances to the
parties unless they have already been informed of them by him.”
Institutional rules contain similar provisions. (49)
The arbitrator’s duty of disclosure plays a central role in international arbitration. Most
contemporary national arbitration statutes, and institutional rules therefore impose
9
express duties of disclosure, both at the time of appointment of an arbitrator and
subsequently, throughout the arbitral process. Compliance with such obligations is
central to the integrity of the arbitral process. Even absent express statutory or
contractual obligations of disclosure, arbitrators should be impliedly obligated to
disclose facts and circumstances which might lead a reasonable observer justifiably to
doubt their independence and impartiality. Courts in a number of jurisdictions have
adopted this approach, imposing a duty of disclosure on arbitrators even absent a
statutory basis for such obligations. (50)
[vi] Grounds for Finding Lack of Impartiality
In practice, a number of specific categories of “conflicts” recurrently arise in assessing an
arbitrator’s impartiality. These various grounds for potential challenge can be considered
independently, or in conjunction with other grounds, as a basis for challenging an
arbitrator’s impartiality.
(a) Judge in Own Cause
It is elementary that a party may not be an arbitrator in its own case (“nemo debet esse
iudex in propria causa”). Even where parties have expressly agreed to arrangements where
one party, or its representative, is to resolve the parties’ future disputes, arbitral
institutions and courts have often refused to give effect to such agreements. The 2014 IBA
P 163 Guidelines provide that “no one is allowed to be his or her own judge” (i.e., there
cannot be identity between an arbitrator and a party), categorizing this as a non-
waivable conflict. (51)
(b) Financial Interest in Dispute
One of the clearest bases for finding a lack of impartiality is the arbitrator’s material
financial interest in the outcome of the arbitration. This includes cases where the
arbitrator would profit financially from his or her own decision or has an ownership or
similar interest in a party to the arbitration. In contrast, in cases involving an arbitrator’s
ownership of a de minimis number of shares of one of the parties, at least where the
shares are publicly-traded and insignificant to the arbitrator’s financial position, courts
have refused to uphold the challenge. (52)
(c) Present Employment by Party
An arbitrator’s present employment by a party – as an employee, officer or director – is a
presumptive basis for finding a lack of independence. Again, such a relationship
effectively amounts to a party being judge of its own cause. It is less clear, however,
whether an arbitrator’s past employment will presumptively sustain a finding of bias. (53)
(d) Prior Involvement in Dispute
Another presumptive basis for finding a lack of independence is an arbitrator’s prior
involvement in the parties’ dispute, either as a corporate officer, lawyer or witness. The
IBA Guidelines provide that an “arbitrator [who] had a prior involvement in the dispute”
is subject to a waivable Red List conflict (in Article 2.1.2).
(e) Ex Parte Contacts During Arbitration
Many institutional rules, as well as the IBA and AAA/ABA codes of arbitrator ethics, forbid
ex parte contacts between an arbitrator and a party concerning the substance of the
arbitration. (54) Even absent such rules, undisclosed ex parte contacts between an
arbitrator and a party during the arbitration concerning the merits of the parties’ dispute
P 164 are presumptively regarded as improper under many national laws.
(f) Family or Personal Relationship with Party

A family relationship between an arbitrator and one of the parties, the parties’ principals
(or lawyers) or a key witness can also sustain a finding of lack of independence. A
personal relationship between an arbitrator and a party, principal or lawyer can also
result in disqualification of an arbitrator.
(g) Business Dealings with Party
If an arbitrator has non-trivial business dealings with a party, a lack of independence will
presumptively be found. Conversely, if the business dealings are insignificant, and
unrelated to the dispute, they are unlikely to constitute grounds for removal.
(h) Current Representation of Party
An arbitrator’s independence is most directly compromised if he or she regularly advises
the party, including on unrelated matters, which is treated as a non-waivable conflict by
the 2014 IBA Guidelines. (55) In contrast, the arbitrator’s current representation of a party
in an unrelated matter, but not as part of a regular, continuing relationship, is treated as
a waivable Red List conflict by the Guidelines. (56)
(i) Prior Representation of Party
10
If an arbitrator has previously provided legal (or similar) services on other matters to one
of the parties, this may provide grounds for finding lack of independence, depending on
the circumstances.
(j) Arbitrator’s Relationship with Counsel to Party
An arbitrator can be challenged based on his or her relationship with counsel for a party
to the arbitration. If an arbitrator personally represents the lawyer for one party, or is
employed at the same law firm as counsel for one party, that will presumptively be
grounds for disqualification.
(k) Recurrent Arbitral Appointments by Same Party or Same Law Firm
If an arbitrator is repeatedly appointed by the same party or lawyer, this may give rise to
justifiable doubts concerning his or her impartiality. The IBA Guidelines (in Article 3.1.3)
generally require disclosure of repeat appointments of an arbitrator by the same party or
an affiliate of the party if they are sufficiently frequent (two or more appointments in the
P 165 past three years), and provide for the possibility of challenges in these circumstances.
(57) Similarly, the guidelines generally require disclosure of multiple repeat
appointments by the same law firm (three or more times within the preceding three
years).
(l) Adversity to One Party
Another possible basis for finding lack of impartiality involves an arbitrator’s current
adverse representation against a party in an unrelated (or related) matter. The IBA
Guidelines provide (in Article 3.1.2) for disclosure, and the possibility of a challenge, in
cases of adverse representation by the arbitrator (or his or her law firm) within the past
three years.
(m) Issue Conflicts
It is sometimes argued that a prospective arbitrator has an “issue conflict” because he or
she has previously expressed a position on a legal issue likely to arise in an arbitration.
Such claims have been particularly common in investment arbitration, where arbitral
awards and submissions are often public and a limited number of common legal issues
are likely to recur. Most authorities have rejected such claims on the basis that lawyers,
judges and arbitrators inevitably encounter and form views on particular issues in the
course of their work.
(n) “Double-Hatting”
A related issue concerns potential conflicts between an arbitrator’s obligations of
independence as an arbitrator, in one case, and his or her role as arbitrator or counsel in
another case, raising similar or identical legal issues. This question is sometimes referred
to as “double-hatting.” Debate over “double-hatting” has been principally in the context
of investment arbitration. The draft ICSID Code of Conduct for Adjudicators in Investor-
State Settlement contains provisions regarding double-hatting (requiring disclosure by
arbitrators of other investment arbitration mandates and either forbidding or requiring
disclosure of double-hatting in certain related matters).
(o) Arbitrators’ Relationship with Witness
An arbitrator’s significant business or personal relationship with a material witness for
P 166 one party can create grounds for questioning his or her impartiality. The IBA Guidelines
include such relationships as required items for disclosure and potential bases for a
challenge. (58)
(p) Law Firm Conflicts
Although the arbitrator himself or herself may not represent, or have previously
represented, one of the parties to the arbitration, colleagues in his or her law firm may
do so, or have done so. In most legal systems, the arbitrator’s law firm’s conflicts will be
relevant to assessing his or her impartiality. In general, courts have been reluctant to
uphold challenges where an arbitrator was not personally involved in representations
that were wholly unrelated to the arbitration.
[2] Nationality of Sole and Presiding Arbitrators
Most institutional rules contain limitations on the nationality of sole and presiding
arbitrators (but generally not on the nationality of co-arbitrators). These limitations are
designed to implement one of the basic objectives of international arbitration, being to
provide an internationally-neutral means of resolving disputes between parties from
different countries.
Article 6(7) of the 2013 UNCITRAL Rules is representative, providing that, in appointing a
sole or presiding arbitrator, the appointing authority shall:
“have regard to such considerations as are likely to secure the appointment of
an independent and impartial arbitrator and shall take into account the
advisability of appointing an arbitrator of a nationality other than the
11
nationalities of the parties.”
Other institutional rules are generally more stringent on the subject of the sole or
presiding arbitrator’s nationality. Article 13(5) of the 2021 ICC Rules provide that, when
the ICC Court selects a sole or presiding arbitrator,
“he or she shall be of a nationality other than those of the parties. However, in
suitable circumstances and provided that none of the parties objects within
the time limit fixed by the Secretariat, the sole arbitrator or the president of
the arbitral tribunal may be chosen from a country of which any of the parties
is a national.” (59)
These restrictions, intended to ensure the tribunal’s neutrality, have been upheld by
national courts. (60)
Many contemporary national arbitration statutes expressly guarantee parties the right to
appoint arbitrators of a foreign nationality, different from that of the arbitral seat. Article
P 167 11(1) of the UNCITRAL Model Law is representative, providing that “[n]o person shall be
precluded by reason of his nationality from acting as an arbitrator, unless otherwise
agreed by the parties.” Other arbitration statutes are comparable. (61)
Arbitration legislation in a (very) few countries imposes nationality or religious
requirements – requiring that arbitrators be of a particular nationality or religion – which
are fundamentally different from those contained in institutional arbitration rules. One
example of such legislation is §3 of the former Saudi Arabian Arbitration Regulation, 1985,
which provided: “The arbitrator shall be a Saudi national or Muslim expatriate from the
free professional section or others.” Similarly, Article 127 of the former Ecuadorian
Organic Law on the Judiciary provided: “[t]o be appointed an arbitrator, a person must be
an Ecuadorian entitled to exercise his rights of citizenship. Foreigners may be appointed
amiable compositeurs.” The requirements imposed by these national laws are typically
applicable regardless whether the parties agree to them and cannot be overridden by
party agreement; they also apply to all arbitrators, regardless of their mechanism of
selection (e.g., co-arbitrators, as well as sole and presiding arbitrators). It is doubtful that
such legislative requirements are consistent with the New York Convention’s requirement,
in Articles II and V(1)(d), that all material terms of arbitration agreements be recognized
and enforced.
[3] Natural Persons and Legal Capacity
In some states, arbitrators must be natural persons (as distinguished from corporations
or other juridical entities), at least in domestic arbitrations. For example, Article 1450 of
the revised French Code of Civil Procedure provides, for domestic arbitration, that “the
mission of arbitrator may only be entrusted to a natural person.” In contrast, most
developed jurisdictions permit juridical persons to serve as arbitrators, although in
practice the appointment of juridical persons as arbitrators is very unusual. In many
countries, it is either expressly or impliedly required that arbitrators have legal capacity.
(62)
[4] Legal Qualifications and Civil Rights
Some national arbitration regimes require that the arbitrators (or, in some cases, the
presiding arbitrator) be legally qualified, at least in domestic arbitrations. In some
states, local law requires that arbitrators be capable of fully exercising their civil rights
(e.g., not having been convicted of serious crimes or declared bankrupt). (63)
[5] Arbitrator Must Not Be National Court Judge
In a number of countries, an active national court judge may not serve as an arbitrator, or
may do so only with specified permissions, in both domestic and international
P 168 arbitrations. (64)
[D] Contractual Limitations on Arbitrators’ Qualifications

It is not uncommon for arbitration agreements to impose contractual requirements of
various types regarding the arbitrators’ qualifications, either directly or through
incorporation of institutional rules containing such requirements. When they exist,
contractual requirements regarding arbitrators’ qualifications typically concern
nationality, language, legal training (e.g., either requiring or prohibiting lawyers) or
background (e.g., experience in a particular commercial field). Depending on the parties’
agreement, these requirements can apply to either all arbitrators or only the sole or
presiding arbitrator.
[1] Contractual Nationality Requirements
It is very common for parties to agree, indirectly, to limitations on the nationality of sole
or presiding arbitrators, often incorporating institutional arbitration rules into their
agreements. As discussed above, these rules often impose either absolute or
presumptive requirements that the sole or presiding arbitrator have a nationality
different from that of the parties. These consensual requirements, designed to ensure the
12
neutrality of the arbitral process, should be given full effect in accordance with their
terms under both the New York Convention and national arbitration legislation.
[2] Contractual Language Requirements
It is also common for arbitration agreements to impose requirements, either directly or
indirectly, concerning the linguistic abilities of arbitrators. In some cases, arbitration
agreements impose additional language requirements, such as requiring the arbitrators
to speak or be fluent in another language (in addition to the language of the arbitration);
these requirements can significantly affect the pool of available arbitrators. In principle,
there is no reason that such requirements will not be given full effect if they are included
in an otherwise valid arbitration agreement.
[3] Expertise and Accreditation Requirements
Unless the parties have so provided in their arbitration agreement, there is no general
requirement under most national arbitration statutes that the arbitrators be experts in
any particular field. It is not uncommon, however, for arbitration agreements to impose
requirements that arbitrators have expertise, experience or qualifications in specific
fields (e.g., insurance, shipping). These sorts of requirements are intended to further one
of the core objectives of international arbitration, being able to provide a tribunal that
has particular commercial or other expertise useful in resolving the parties’ dispute
efficiently and soundly. Again, these sorts of provisions should be enforced in accordance
with the parties’ agreement.
It is often preferable to draft requirements for the arbitrators’ experience by reference to
some objectively-verifiable standard (e.g., “a Certified Public Accountant”) rather than to
subjective formulae (e.g., “having material accounting experience”). This reduces the risk
of disputes, including in annulment and recognition proceedings, as to whether an
P 169 arbitrator satisfies the requirements in the parties’ agreement. Regardless how such
requirements are drafted, parties should be alert to the practical difficulties of
identifying appropriate arbitrators if their agreement imposes excessive requirements
(e.g., “an Uzbek national, experienced in international arbitration and
telecommunications joint venture projects”).
[4] Legal Qualifications
International arbitration agreements sometimes require, directly or by incorporating
institutional arbitration rules, that arbitrators be qualified to practice law. Other
institutional rules or arbitration agreements require that the arbitrators have specified
legal or commercial experience. (65) These sorts of requirements are almost always
superfluous, because in practice parties seldom appoint non-lawyers in international
commercial arbitrations. Where they exist, however, the New York Convention and
national arbitration laws require giving effect to them.
[5] Prohibitions Against Legal Qualification
Conversely, some institutional arbitration rules preclude the selection of arbitrators who
are legally qualified. Again, there is no reason as a general matter to refuse to enforce
arbitration agreements excluding the selection of legally-qualified persons as arbitrators
(save for exceptional cases where a lay arbitrator cannot adequately resolve a complex
dispute). Although such agreements may make little sense, in many cases, there is no
reason why parties should not be free to agree to a non-legally-q ualified tribunal.
§7.02 PROCEDURES FOR CHALLENGING ARBITRATORS

On occasion, a party may become dissatisfied with a sitting arbitrator, typically because
of real or professed doubts about the arbitrator’s impartiality, and will seek to
“challenge” the arbitrator. Challenges can be made against any arbitrator, including
arbitrators who have been selected by an appointing authority, by agreement between
the parties, by another party, or (less commonly) by the challenging party itself.
Challenges can be asserted either in accordance with institutional rules (typically, to the
appointing authority) or national law (to the courts in the arbitral seat).
[A] Institutional Challenges

Most institutional rules contain provisions for dealing with challenges to arbitrators.
Article 13 of the UNCITRAL Rules provides that a party may send notice that it challenges
an arbitrator within a short time period (e.g., fifteen days) from his or her appointment or
of learning of circumstances prompting the challenge. The notice must be sent to the
challenged arbitrator, other members of the tribunal and other parties to the arbitration,
P 170 and must state the reasons for the challenge. If a challenge is made, the non-
challenging party may agree to the challenge or the challenged arbitrator may withdraw
(without in either case thereby accepting the validity of the challenge). If neither the non-
challenging party nor the arbitrator accepts the challenge, Article 13(4) provides that the
challenge will be resolved by any appointing authority selected by the parties.
The same basic structure is followed by other institutional rules. Parties wishing to make
a challenge are required to do so within a short period of time from an arbitrator’s
13
appointment or receiving knowledge of grounds for the challenge. Challenges must be
made in writing, ordinarily to the appointing authority (as well as the tribunal and
opposing parties). The non-challenging party is ordinarily permitted to respond (in
writing) to the challenge and the appointing authority will also ordinarily solicit the views
of the challenged arbitrator; typically, no opportunity is provided for discovery,
evidence-taking or oral submissions to the appointing authority. (66)
The appointing authority will ordinarily resolve the challenge quickly (typically in a
matter of days or (more likely) a few weeks). The authority’s decision is generally
announced without reasons, in a letter or similar communication, and is final and
binding. (67) Historically, only a few arbitral institutions provided for reasoned decisions
on challenges. In response to users’ preferences for greater guidance and predictability,
a number of institutions have begun to publish reasoned challenge decisions. (68) No
avenue of objection or further recourse (within the arbitral institution) is available,
although, as discussed below, there is the possibility of limited judicial review by, or
independent challenges in, national courts in the arbitral seat in some legal systems.
Institutional rules contain broadly similar substantive standards for challenges to an
arbitrator. The principal focus of these standards is on an arbitrator’s impartiality and
independence, but other bases for removal are also prescribed. These include
incapacity, failure to conduct or participate in the arbitral proceedings, and failure to
satisfy the qualifications required by the parties’ arbitration agreement.
Thus, the UNCITRAL Rules provide for challenges to an arbitrator based upon “justifiable
doubts as to the arbitrator’s impartiality or independence” (in Article 12(1)), and also
permit removal of an arbitrator due to the “de jure or de facto impossibility of his or her
performing his or her functions” (in Article 12(3)). Similarly, Article 14(1) of the 2021 ICC
Rules permits challenges to an arbitrator who allegedly lack “impartiality or
independence, or otherwise,” and Article 15(2) provides that an arbitrator may be
removed (on the ICC Court’s own initiative, without a challenge) if “[the] arbitrator is
P 171 prevented de jure or de facto from fulfilling the arbitrator’s functions, or [if] the
arbitrator is not fulfilling those functions in accordance with the Rules or within the
prescribed time limits.” Other institutional rules are similar. (69)
Finally, as discussed below, most institutional rules require that challenges be brought
promptly (or within specified time periods) following discovery of grounds for a
challenge. Failure to comply with these limits will typically result in waiver. (70)
It is unclear whether parties may contractually modify the standards of impartiality and
independence set forth in institutional rules. Some national arbitration statutes arguably
impose mandatory impartiality requirements on arbitrators, but the parties’ freedom to
agree upon the arbitrators’ standards of impartiality and independence is consistent
with the importance of party autonomy to the arbitral process generally and with the
parties’ ability to waive objections to impartiality and independence. (71)
[B] Interlocutory Challenges in National Courts

Institutional challenge mechanisms are not necessarily the exclusive means of seeking to
remove an arbitrator. It is also generally possible to pursue an interlocutory judicial
challenge to an arbitrator in a national court in ad hoc arbitrations; additionally, it is also
possible in some jurisdictions to pursue an interlocutory judicial challenge even in
institutional arbitrations. Moreover, it is generally possible to seek to annul an award on
the grounds that the arbitrator was not independent and impartial. (72)
The Model Law provides for interlocutory judicial removal of arbitrators in both ad hoc
and institutional arbitrations. As noted above, if parties have not agreed upon a
procedure for challenging arbitrators, Article 13(2) provides for challenges to be made in
writing to the tribunal itself, which shall, unless the challenged arbitrator or the other
party agree with the challenge, decide upon the application. In addition, Article 13(3)
provides:
“If a challenge under any procedure agreed upon by the parties or under the
procedure of ¶(2) of this article is not successful, the challenging party may
request, within thirty days after having received notice of the decision
rejecting the challenge, the court … to decide on the challenge, which decision
shall be subject to no appeal; while such request is pending, the arbitral
tribunal, including the challenged arbitrator, may continue the arbitral
proceedings and make an award.”
Article 13(3) permits judicial challenges to arbitrators in both ad hoc arbitrations, where
no contractually-agreed challenge procedure exists, and in institutional arbitrations,
P 172 where the parties have agreed upon a mechanism for resolving challenges. Parties may
not contract out of this provision for interlocutory judicial consideration of challenges.
In other jurisdictions, arbitration legislation generally permits interlocutory judicial
removal of arbitrators sitting in an international arbitration located within national
territory, but only if the parties have not agreed to any institutional challenge
mechanism. Where the parties have agreed upon an institutional challenge procedure,
that procedure is exclusive and national courts have no power to remove an arbitrator.
14
For example, Articles 179 and 180 of the Swiss Law on Private International Law provide
that arbitrators in international arbitrations seated in Switzerland may be removed by
Swiss courts, but only in the absence of contrary agreement by the parties. Legislation in
a number of other jurisdictions is similar. (73)
In contrast to most jurisdictions, U.S. courts generally permit only the most limited
interlocutory judicial challenges of arbitrators (regardless whether or not an institutional
challenge procedure exists). (74) In the words of a leading decision, which reflects the
weight of U.S. authority, “it is well established that a district court cannot entertain an
attack upon the qualifications or partiality of arbitrators until after the conclusion of the
arbitration and the rendition of the award.” (75) The only judicial forum for challenging an
arbitrator’s impartiality, in the United States, is in annulment (“vacatur”) proceedings,
after a final award is made.
[C] Waiver of Right to Object to Arbitrator

As noted above, most institutional rules provide that a party must assert any objections
to an arbitrator, whether based on lack of impartiality or otherwise, promptly after the
arbitrator’s nomination or, alternatively, after a party learns of the basis for a challenge.
Thus, Article 13(1) of the UNCITRAL Rules provides that a challenge must be notified by a
party within 15 days of learning of grounds for the challenge:
“A party that intends to challenge an arbitrator shall send notice of its
challenge within 15 days after it has been notified of the appointment of the
challenged arbitrator, or within 15 days after the circumstances [on which the
challenge is based] became known to that party.”
Similar provisions are contained in other institutional rules. (76) Both arbitral institutions
P 173 and national courts have repeatedly upheld such time limits. (77)
Most arbitration statutes also require that objections to an arbitrator be raised promptly,
failing which they are waived. Article 13(2) of the Model Law provides that (absent
agreement on challenge procedures) challenges must be asserted within a specified time
period (15 days) from learning of the basis for the challenge. Similarly, national courts
have held, outside the context of institutional rules containing requirements for timely
challenges, that a party must make any challenge to an arbitrator in a timely fashion, or
risk waiving the challenge. (78) Although some U.S. courts have required that a party have
actual knowledge of the basis for an arbitrator’s alleged conflict of interest, the weight of
authority is that a party’s failure to raise an objection, notwithstanding constructive
knowledge of an alleged conflict, will waive its rights subsequently to challenge the
arbitrator (or the arbitrator’s award). (79) Consistent with this analysis, a recent U.S.
decision held that:
“[the] party to an arbitration waives an objection to an arbitrator’s conflict of
interest if the party has constructive knowledge of the conflict at the time of
the arbitration hearing but fails to object.” (80)
The rationale underlying these requirements is non-controversial. Parties should not be
permitted to proceed with an arbitration, while retaining secret grounds for objection to
the decision-makers. As one court said, this “Heads I win, tails you lose” approach is
unfair and unseemly. (81) Rather, if a party does not promptly raise a challenge, it will be
deemed to have waived its challenge.
§7.03 REPLACEMENT OF ARBITRATORS

When an arbitrator is removed or resigns, he or she must be replaced. Some arbitration
agreements contain provisions regarding vacancies: the typical approach is that
vacancies will be filled in the same manner the original arbitrator was selected. That is, if
a party-nominated co-arbitrator is removed, then the party that originally nominated
that arbitrator is entitled to nominate a replacement (rather than, for example, the
appointing authority doing so). Conversely, if the presiding arbitrator is removed, then
the appointing authority (or, depending on the parties’ agreement, the parties or co-
arbitrators, acting jointly) will nominate the replacement. Where an arbitration
agreement contains express provisions to this effect, they will be enforced by national
courts.
Institutional rules take a similar approach, providing that vacancies will be filled in the
same manner in which the arbitrator who is being replaced was originally selected. For
example, Article 14(1) of the UNCITRAL Rules provides:
“… in any event where an arbitrator has to be replaced during the course of
the arbitral proceedings, a substitute arbitrator shall be appointed or chosen
P 174 pursuant to the procedure provided for in articles 8 to 11 [of the UNCITRAL
Rules] that was applicable to the appointment or choice of the arbitrator
being replaced.”
The rationale of this approach is obvious: the prospect that a party could be deprived of
an opportunity to select a co-arbitrator, in the event of a successful challenge, would
15
create undesirable incentives for challenges and would cause disproportionate damage
to a party whose nominee was removed (by denying it the opportunity to nominate an
arbitrator, while permitting its counter-party to do so).
National arbitration legislation adopts the same approach. Article 15 of the Model Law
provides:
“Where the mandate of an arbitrator terminates under article 13 or 14 [of the
Model Law, providing for institutional and judicial challenges] or because of
his withdrawal from office for any other reason or because of the revocation of
his mandate by agreement of the parties or in any other case of termination of
his mandate, a substitute arbitrator shall be appointed according to the rules
that were applicable to the appointment of the arbitrator being replaced.”
Other national arbitration statutes are similar. (82) Similarly, even in the absence of
legislative direction, courts have generally reached the sensible conclusion that a
vacancy on the arbitral tribunal should be filled in the same manner as the original
arbitrator, who has resigned, was selected.
The removal and replacement of an arbitrator during the arbitral proceedings also gives
rise to questions about the conduct of the arbitration – and, in particular, whether the
arbitral process must be partially or wholly repeated. This can be a matter of substantial
importance, both in terms of expense and delay and to the course of the tribunal’s
deliberations. Different national arbitration statutes and institutional rules prescribe
different consequences for the replacement of an arbitrator.
Some arbitration statutes are silent on the subject (like the UNCITRAL Model Law),
thereby presumptively leaving to the arbitral tribunal’s discretion the decision whether
or not to repeat previous proceedings. Other legislation addresses the issue expressly,
typically leaving decisions about repeating previous proceedings to the parties’
agreement and/or the tribunal’s discretion. In contrast, however, some statutes
mandatorily require repetition of all prior arbitral proceedings, while others appear to
forbid repeating the proceedings. (83)
Article 15 of the 2013 UNCITRAL Rules provides that, where “an arbitrator is replaced, the
proceedings shall resume at the stage where the arbitrator who was replaced ceased to
perform his or her functions, unless the tribunal decides otherwise.” Similarly, Article
15(4) of the 2021 ICC Rules permits the arbitral tribunal to decide “if and to what extent
prior proceedings shall be repeated” before the reconstituted tribunal. Most other
institutional rules contain comparable provisions. (84) In exercising their discretion to
decide whether or not to repeat prior proceedings, arbitral tribunals have generally
declined to apply categorical rules and have instead taken pragmatic approaches
P 175 towards rehearing evidence and submissions.
§7.04 TRUNCATED TRIBUNALS

There are circumstances in which a three-person tribunal continues an arbitration with
either only two members or with three members, one of whom refuses to participate in
the tribunal’s actions. In these circumstances, the tribunal is referred to as a “truncated
tribunal.”
It very occasionally occurs that one co-arbitrator on a three-person tribunal either
refuses to participate in deliberations, resigns at a critical juncture or is similarly
obstructive; further, where the co-arbitrator resigns, the replacement co-arbitrator
nominated by the same party may either continue to obstruct the proceeding or himself
resign. There have been several well-publicized instances of such behavior in past
decades. (85) This sort of (mis)conduct can bring the arbitral proceedings to a stand-still
and frustrate the arbitration entirely.
Some institutional rules address this problem by expressly permitting “truncated
tribunals” to proceed to an award without the participation of an obstructive co-
arbitrator. Article 15(5) of the 2021 ICC Rules provides a comparatively narrow example of
such a provision:
“Subsequent to the closing of the proceedings, instead of replacing an
arbitrator who has died or been removed by the Court pursuant to Articles
15(1) and 15(2), the Court may decide, when it considers it appropriate, that
the remaining arbitrators shall continue the arbitration. In making such
determination, the Court shall take into account the views of the remaining
arbitrators and of the parties and such other matters that it considers
appropriate in the circumstances.”
Article 15(5) only permits truncated tribunals after the tribunal has formally closed the
proceedings under Article 27 of the ICC Rules (thereby precluding further submissions by
the parties), which is a relatively narrow category of cases. Prior to the close of
proceedings, the solution for obstruction by a co-arbitrator is removal (with the
possibility of the replacement being made by the ICC Court, rather than the party that
nominated the original co-arbitrator). (86)
16
Other institutional rules provide broader possibilities for a truncated tribunal. Article
12(1) of the LCIA Rules provides:
“Where an arbitrator without good cause refuses or persistently fails to
participate in the deliberations of an Arbitral Tribunal, the remaining
arbitrators jointly may give written notice of such refusal or failure to the LCIA
Court, the parties and the absent arbitrator. In exceptional circumstances, the
remaining arbitrators may decide to continue the arbitration (including the
making of any award) notwithstanding the absence of that other arbitrator,
subject to the written approval of the LCIA Court.”
P 176
Similar provisions exist under other institutional rules (but, notably, not the UNCITRAL
Rules). (87) These provisions permit a truncated tribunal to proceed, absent one member,
at any stage of the arbitration, provided that one arbitrator has clearly demonstrated a
refusal to participate in the tribunal’s work.
There is little authority addressing the enforceability of these provisions. In the absence
of statutory provisions addressing the question, there are substantial arguments that
national law should give effect to institutional rules providing for truncated tribunals.
Just as parties are free to agree upon a sole arbitrator or a tribunal of three or five
arbitrators, so they should be free to agree upon a truncated tribunal of two arbitrators in
specified circumstances.
Another issue is presented when the parties have not agreed to institutional rules
providing for a truncated tribunal. In this case, the appointing authority and/or tribunal
must decide, without specific authorization, how to deal with an obstructive arbitrator.
The predominant response has been to permit truncated tribunals, in which two
arbitrators proceed with their mandate, without the participation of the obstructive
arbitrator. (88) Other tribunals have taken similar approaches, concluding that non-
obstructive members of a tribunal have an obligation to continue with the arbitral
proceedings notwithstanding the absence of an obstructive arbitrator. (89)
Despite this almost uniform tendency in awards, national courts are divided in their
treatment of ad hoc awards made by truncated tribunals. Some courts have held that,
where the parties’ arbitration agreement provided for a three-person tribunal, not a two-
person truncated tribunal, an award by a truncated tribunal was invalid (regardless of
the abusive actions of an obstructive arbitrator); in contrast, other courts have correctly
upheld awards by truncated tribunals. (90)
§7.05 ARBITRATORS’ RIGHTS AND DUTIES

National laws seldom expressly address the question of the status of the international
arbitrator and his or her relationship with the parties. The subject has been left almost
entirely to national courts and commentators. For example, the Model Law is silent on
P 177 the status of arbitrators and the relations between arbitrators and parties, containing
no reference to contractual or other forms of legal relations between the arbitrators and
the parties. Other arbitration legislation is similar. (91)
In the absence of guidance from national law (or institutional rules), courts have
formulated alternative theories for defining the arbitrators’ relations with the parties.
The most widely-accepted rationale is contractual: under the contractual theory, the
arbitrators and the parties to an arbitration agreement enter into a separate agreement
pursuant to which the arbitrators undertake to perform specified functions vis-à-vis the
parties in return for remuneration, cooperation and defined immunities. (92)
The contract between the parties and the arbitrators is referred to as the “arbitration
contract” or “arbitrator contract.” Most legal systems have adopted similar approaches to
the substance of the arbitrators’ rights and duties, treating it as a sui generis form of
contract. The arbitrator contract is typically regarded as requiring an arbitrator to
perform the following contractual duties: (a) resolve the parties’ dispute in an
adjudicatory manner; (b) conduct the arbitration in accordance with the arbitration
agreement; (c) maintain the confidentiality of the arbitration; (d) in some contexts,
propose settlement to the parties; and (e) complete the arbitrators’ mandate. These
obligations are enforced through a variety of mechanisms, including civil liability, loss of
entitlement to remuneration, termination of the arbitrators’ mandate and removal, and
prohibitions against further appointments. (93)
At the same time, arbitrators also enjoy important rights and protections by virtue of the
arbitrator contract and applicable law. These include rights to remuneration,
cooperation from the parties in the arbitral proceedings and immunities from liability. In
most instances, these various rights are subject to the parties’ agreement, with the
parties and arbitrator(s) enjoying broad autonomy to structure the arbitrators’ rights and
obligations as they think best.
§7.06 ARBITRATORS’ IMMUNITY

An arbitrator is entitled to various immunities from civil claims by the parties arising out
17
of his or her conduct of the arbitration. The nature and scope of these immunities varies
depending upon the parties’ agreement, any applicable institutional rules and
applicable national law. These immunities are only available to “arbitrators” engaged in
“arbitration,” and not to others (such as mediators or experts in an expert
determination). In some instances, immunity extends to arbitral institutions (as well as to
arbitrators).
Most arbitration regimes provide arbitrators with statutory or common law immunities
from civil claims against them based on the performance of their adjudicative functions.
(One notable exception is the Model Law, which is silent on the subject of arbitrator
immunity.)
A leading example of legislation addressing the issue of arbitrator immunity is the
English Arbitration Act, which provides in §29 that “[a]n arbitrator is not liable for
anything done or omitted in the discharge or purported discharge of his functions as an
arbitrator unless the act or omission is shown to have been in bad faith.” An alternative
approach is that of the Spanish Arbitration Act, which provides that arbitrators who fail to
“faithfully fulfill” their mandate are “liable for the damage and losses they cause by
P 178 reason of bad faith, recklessness or fraud.” (94) Recently-enacted arbitration statutes
have generally provided affirmative grants of arbitrator immunity, sometimes with
exceptions for bad faith or fraudulent actions. (95)
Judicial decisions in many states adopt similar approaches. For example, in the United
States, courts have reasoned that arbitrators should be granted virtually absolute
immunity because of their adjudicative function:
“An arbitrator is a quasi-judicial officer … exercising judicial functions. There is
as much reason in his case for protecting and insuring his impartiality,
independence, and freedom from undue influence, as in the case of a judge or
juror.” (96)
Many national courts historically held that arbitrators were entitled to extremely broad
immunities, extending to negligence, bad faith or intentional misconduct, non-disclosure
of conflicts and similar malfeasance. More recent decisions suggest that the scope of
arbitrator immunity may be somewhat more limited, with some courts denying
arbitrators immunity for failing to issue an award in a timely manner, for excluding co-
arbitrators from deliberations, for failing to make decisions or for fraud or similar
misconduct. Whatever the precise scope of arbitrator immunity, however, most courts
recognize broad immunities, subject to exceptions only for failure to act and fraudulent
misconduct. (97)
Most institutional rules also provide for contractual exclusions of arbitrators’ civil
liability. One significant exception is the UNCITRAL Rules, which are silent on the subject
of arbitrator liability (and immunity). In contrast, the 2021 ICC Rules (in Article 41) provide
broadly that arbitrators and the ICC “shall not be liable to any person for any act or
omission in connection with the arbitration.” Other institutional rules also contain
exclusions of liability, although typically not applying to either deliberate wrongdoing or
(less commonly) gross negligence. (98) Most institutional rules also extend immunity to
P 178 the arbitral institution and its staff.
References
1) UNCITRAL, Explanatory Note on the 1985 Model Law on International Commercial
Arbitration as Amended in 2006 ¶23 (2008).
2) G. Born, International Commercial Arbitration 1778–87 (3d ed. 2021). Section 5 of the
U.S. FAA provides: “If in the [arbitration] agreement provision be made for a method
of naming or appointing an arbitrator or arbitrators … such method shall be
followed….”
3) As discussed below, most institutional rules subject the parties’ autonomy to only
neutral procedural requirements (regarding the timing and form of parties’ actions)
and restrictions designed to ensure the arbitrators’ impartiality and/or
independence and minimal competence. In a few instances, arbitral institutions
place more significant restrictions on the parties’ autonomy (e.g., nationality
limitations or requirements that arbitrators be selected from a pre-existing list or
have specified expertise), but these are exceptions.
4) A few institutional rules take different approaches. For example, the 2020 LCIA Rules
provide (in Article 5(7)) that the LCIA itself (rather than the parties) is responsible for
appointing arbitrators, “albeit taking into account any written agreement or joint
nomination by the parties or nomination by the other candidates or arbitrators.” See
also 2020 LCIA Rules, Art. 7(1) (treating any agreement to appoint an arbitrator as an
agreement to “nominate” an arbitrator and providing that the “LCIA Court shall refuse
to appoint any nominee if it determines that the nominee is not [compliant with
Articles 5(3)-(5)] or is otherwise unsuitable”).
18
5) Arbitration legislation and the Convention also generally provide for the non-
recognition of awards based on violation of the parties’ arbitration agreement
regarding constitution of the tribunal. See, e.g., New York Convention, Art. V(1)(d);
UNCITRAL Model Law, Art. 36(1)(a)(iv).
7) See id. at 1788–92.
8) See id. at 1789–92, 1768–77 (3d ed. 2021).
9) ICC, 2019 Dispute Resolution Statistics 12 (2020) (35% of cases referred to sole
arbitrator); ICC, 2018 Dispute Resolution Statistics, 2019:1 ICC Disp. Resol. Bull. 11, 19
(38% in 2018 and 33% in 2017).
11) See id. at 1797–98.
12) See id. at 1804.
13) Legislation in other common law jurisdictions is similar. Section 15(3) of the English
Arbitration Act, 1996, provides “if there is no agreement as to the number of
arbitrators, the tribunal shall consist of a sole arbitrator.” See G. Born, International
Commercial Arbitration 1805 (3d ed. 2021).
14) 2015 CIETAC Rules, Art. 25(2); 2018 DIS Rules, Art. 10(2).
15) See, e.g., 2021 ICC Rules, Art. 12(2); 2016 SIAC Rules, Rule 9.1; 2021 ICDR Rules, Art. 12;
2013 AAA Rules, Rule 16(a); 2020 LCIA Rules, Art. 5(8); 2012 Swiss Rules, Art. 6(2); 2016
KCAB Rules, Art. 11.
16) See, e.g., 2018 HKIAC Rules, Art. 6(1); 2015 NAI Rules, Art. 12(2); 2018 VIAC Rules, Art.
17(2).
17) See, e.g., 2021 ICC Rules, Art. 13(2). See also 2016 SIAC Rules, Rules 9(3)-(5); 2020 LCIA
Rules, Art. 7(1).
18) That term is a misnomer and mischaracterizes the process, by inaccurately
suggesting an inquiry into the arbitrator’s views on the substance of the dispute or on
the issues which will be raised in the dispute. See G. Born, International Commercial
Arbitration 1813 (3d ed. 2021).
19) See also 1987 IBA Rules of Ethics, Art. 5(1); 2004 AAA/ABA Code of Ethics, Canon III(B).
20) See, e.g., 2013 UNCITRAL Rules, Art. 7(2); 2021 ICC Rules, Art. 12(4); 2020 LCIA Rules, Art.
7(2).
21) See G. Born, International Commercial Arbitration 1818–22 (3d ed. 2021). For discussion
of authorities recognizing awards made by sole arbitrator selected by one party,
following other party’s default in participating in constitution of tribunal, see id. at
1768–77.
22) Id. at 1818–22.
23) English awards, rendered by a sole arbitrator appointed by one party in a default
context, have frequently been resisted in foreign recognition proceedings on the
grounds that they denied the defaulting party an impartial tribunal and/or
opportunity to be heard. Most courts have rejected such challenges in recognition
actions. See id. at 1771–75, 1821–22.
24) Id. at 1822, 1852. See, e.g., U.S. FAA, 9 U.S.C. §5; French Code of Civil Procedure, Art.
1452(2); Swiss Law on Private International Law, Art. 179(2); Japanese Arbitration Law,
Art. 17(2). For discussion on judicial appointment of international arbitrators as
default mechanism, see G. Born, International Commercial Arbitration 1841–50 (3d ed.
2021).
25) G. Born, International Commercial Arbitration 1822–30 (3d ed. 2021). See infra p. 162.
26) In practice, co-arbitrators (or parties) are able to agree on the presiding arbitrator in
a significant number of cases; agreement on a presiding arbitrator is also much more
likely than agreement on a sole arbitrator. See G. Born, International Commercial
Arbitration 1794–96, 1824 (3d ed. 2021).
27) Id. at 1787–88, 1830–40.
28) UNCITRAL Model Law, Art. 11(4) (emphasis added).
30) Morelite Constr. Corp. v. N.Y.C. Dist. Council Carpenters’ Benefit Funds, 748 F.2d 79 (2d
Cir. 1984).
31) See also Porter v. Magill [2002] 2 AC 357, ¶103 (House of Lords) (“The question is
whether the fair-minded and informed observer, having considered the facts, would
conclude that there was a real possibility that the tribunal was biased”); Morrison v.
AWA Group Ltd [2006] EWCA 6 (English Ct. App.); A v. B [2011] EWHC 2345, ¶23 (English
High Ct.) (“whether the impartial objective observer, irrespective of nationality,
would conclude from those facts that there was a real possibility that the arbitrator
was biased”).
5(3).
34) Article 14(1) of the 2021 ICC Rules provides that an arbitrator may be challenged
“whether for an alleged lack of impartiality or independence, or otherwise.”
35) See 2021 ICDR Rules, Art. 15(3); 2013 AAA Rules, Rule 18(c); 2012 Swiss Rules, Art. 11(3);
2015 CIETAC Rules, Art. 32(6).
36) 2021 ICC Rules, App’x II, Art 5.
19
37) See, e.g., 2016 SIAC Rules, Art. 16(4) (“The Court’s decision on any challenge to an
arbitrator … shall be reasoned, unless otherwise agreed by the parties.… Any such
decision on any challenge by the Court shall be final and not subject to appeal.”);
2020 LCIA Rules, Art. 10(6) (“The LCIA Court’s decision shall be made in writing, with
reasons …”).
39) 1977 AAA/ABA Code of Ethics, Canon X.
40) See 2021 ICC Rules, Art. 11; 2016 SIAC Rules, Art. 13(1); 2020 LCIA Rules, Art. 5(3); 2015
CIETAC Rules, Art. 24. See infra pp. 159–61. See also G. Born, International Commercial
Arbitration 1893–1908, 1930–47 (3d ed. 2021).
41) 2013 AAA Rules, Rules 13(b), 18.
42) 2004 AAA/ABA Code of Ethics, Canons IX-X; 2013 AAA Rules, Rule 13(b).
44) Id at 1983–88.
45) 1987 IBA Rules of Ethics, Art. 1.
47) Other arbitration regimes are similar. See G. Born, International Commercial
48) Article 11(2) of the 2021 ICC Rules provides that:
“Before appointment or confirmation, a prospective arbitrator shall sign a
statement of acceptance, availability, impartiality and independence.
The prospective arbitrator shall disclose in writing to the Secretariat any
facts or circumstances which might be of such a nature as to call into
question the arbitrator’s independence in the eyes of the parties, as well as
any circumstances that could give rise to reasonable doubts as to the
arbitrator’s impartiality.” (emphasis added)
See also 2021 ICDR Rules, Art. 14(2); 2020 LCIA Rules, Art. 5(4) (“the
candidate shall sign a written declaration stating: (i) whether there are
any circumstances currently known to the candidate which are likely to
give rise in the mind of any party to any justified doubts as to his or her
impartiality or independence and, if so, specifying in full such
circumstances in the declaration”).
49) See, e.g., 2021 ICC Rules, Art. 11(3) (“An arbitrator shall immediately disclose … any
facts or circumstances … concerning the arbitrator’s impartiality or independence
which may arise during the arbitration”); 2021 ICDR Rules, Art. 14(3) (“If, at any stage
during the arbitration, circumstances arise that may give rise to such doubts, an
arbitrator or party shall promptly disclose such information …”); 2020 LCIA Rules, Art.
5(5) (“Each arbitrator shall assume a continuing duty … to disclose in writing any
circumstances becoming known to that arbitrator”).
50) See, e.g., Halliburton Co. v. Chubb Bermuda Ins. Ltd [2020] UKSC 48 (U.K. S.Ct.). See also
G. Born, International Commercial Arbitration 2043–44 (3d ed. 2021).
51) 2014 IBA Guidelines, Explanation (d) to General Standard 2. The Guidelines explain
that the parties “cannot waive the conflicts of interest” and that this principle
applies when an arbitrator is a party or when an arbitrator is a “legal representative
or employee of an entity that is a party in the arbitration.”
52) G. Born, International Commercial Arbitration 2001 (3d ed. 2021).
53) Id. at 2002–03.
54) See, e.g., 2021 ICDR Rules, Art. 14(6); 2013 AAA Rules, Rule 19; 2020 LCIA Rules, Art. 13(4);
2020 WIPO Rules, Arts. 21, 45; 1987 IBA Rules of Ethics, Art. 5; 2004 AAA/ABA Code of
Ethics, Canon III.
55) 2014 IBA Guidelines, Non-Waivable Red List, ¶1.4.
56) Id. at Waivable Red List, ¶2.3.1. See also G. Born, International Commercial Arbitration
2006–07 (3d ed. 2021).
57) The IBA Guidelines contain an exception for “maritime, sports or commodities
arbitration, to draw arbitrators from a smaller or specialised pool of individuals. If in
such fields it is the custom and practice for parties to frequently appoint the same
arbitrator in different cases, no disclosure of this fact is required, where all parties in
the arbitration should be familiar with such custom and practice.” See IBA
Guidelines, Orange List, ¶3.1.3 note 5. See also G. Born, International Commercial
58) 2014 IBA Guidelines, Orange List, ¶3.4. See also G. Born, International Commercial
59) 2021 ICC Rules, Art. 13(5) (emphasis added).
60) Jivraj v. Hashwani [2011] UKSC 40 (U.K. S.Ct.).
62) Id. at 1875.
63) Id. at 1876.
64) Id. at 1877.
65) Id. at 1876, 1885.
20
66) Id. at 2054–57. One exception to this general approach is the AAA, which does not
provide notice to a proposed or sitting arbitrator if he or she has been challenged
(and instead forbids parties from providing such notice). As a result, the AAA does not
provide challenged arbitrators with an opportunity to comment on the challenge.
Instead, if the challenge is sustained, the AAA simply removes the arbitrator without
notice or explanation of the grounds.
67) 2021 ICC Rules, Art. 11(4); 2020 LCIA Rules, Art. 29(1); 2012 Swiss Rules, Art. 11(3); 2015
CIETAC Rules, Art. 32(6).
69) See, e.g., 2016 SIAC Rules, Rule 14(1); 2021 ICDR Rules, Art. 15(4); 2020 LCIA Rules, Art.
10(1); 2018 HKIAC Rules, Art. 11(6).
71) G. Born, International Commercial Arbitration 2058 (3d ed. 2021).
72) See supra pp. 157–59 and infra pp. 387–90. Also as noted below, if a party seeks to
reserve judicial challenge based on lack of independence until an action to annul a
final award, questions of waiver will arise. See infra pp. 172–73.
73) G. Born, International Commercial Arbitration 2065–79 (3d ed. 2021). See French Code
of Civil Procedure, Arts. 1456, 1506(2); Netherlands Code of Civil Procedure, Art.
1035(2); Belgian Judicial Code, Arts. 1680(1)-(2); Swedish Arbitration Act, §§10–11.
74) See, e.g., Salas v. GE Oil & Gas, 857 F.3d 278, 280 (5th Cir. 2017) (“[T]he FAA limits
‘jurisdiction by the courts to intervene into the arbitral process prior to issuance of
an award.’ … Nor does the FAA authorize a court to hear pre-award ‘disputes over the
qualifications of an arbitrator to serve,’ unless the dispute raises concerns ‘that the
very validity of the agreement [is] at issue’”); UBS Fin. Servs. Inc. v. Padussis, 842 F.3d
336, 340–41 (4th Cir. 2016).
75) Aviall, Inc. v. Ryder Sys., 110 F.3d 892, 895 (2d Cir. 1997). See also In re Sussex, 781 F.3d
1065, 1073 (9th Cir. 2015) (vacating district court’s interlocutory ruling removing
arbitrator).
76) See, e.g., 2021 ICC Rules, Art. 14(2); 2016 SIAC Rules, Rule 15(1); 2021 ICDR Rules, Art.
15(1); 2020 LCIA Rules, Art. 10(3); 2012 PCA Rules, Art. 13(1); 2018 VIAC Rules, Art. 20(2).
77) G. Born, International Commercial Arbitration 2059–61, 2080–87 (3d ed. 2021).
78) Id. at 2080 et seq.
79) Id. at 2082–86.
80) Light-Age, Inc. v. Ashcroft-Smith, 922 F.3d 320, 322 (5th Cir. 2019).
81) AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs. Inc., 139
F.3d 980 (2d Cir. 1999).
83) Id. at 2095.
84) Id. at 2096–97.
85) See, e.g., Himpurna California Energy Ltd v. Indonesia, Final Award in Ad Hoc Case of 16
October 1999, XXV Y.B. Comm. Arb. 186 (2000) (co-arbitrator nominated by Indonesian
state party resigns at critical stage of deliberations); Uiterwyk Corp. v. Iran, Award in
IUSCT Case No. 375-381-1 of 6 July 1988, 19 Iran-US CTR 107 (1988) (Iranian co-arbitrator
refuses to participate in deliberations).
86) 2021 ICC Rules, Art. 15(4).
87) 2021 ICDR Rules, Art. 16(3); 2012 PCA Rules, Art. 12(4); 2020 WIPO Rules, Art. 35(a).
88) This approach has been justified as follows by one chamber of the Iran-U.S. Claims
Tribunal:
“[T]his is in accordance with the established practice of the Tribunal to
continue its work and make awards despite the failure of one arbitrator to
participate. The practice of the Tribunal in this respect is necessary to
prevent disruption and frustration by one Member of the Tribunal’s
performance of its functions and is fully in accordance with recognized
principles of international law.” Uiterwyk Corp. v. Iran, Award in IUSCT Case
No. 375-381-1 of 6 July 1988, 19 Iran-US CTR 107, ¶30 (1988).
90) Id. at 2100–03.
91) Id. at 2107–09. See also Jivraj v. Hashwani [2011] UKSC 40 (U.K. S.Ct.).
92) G. Born, International Commercial Arbitration 2110–12, 2118–26 (3d ed. 2021).
93) Id. at 2129–66.
94) Spanish Arbitration Act, Art. 21(1).
96) Hoosac Tunnel Dock & Elevator Co. v. O’Brien, 137 Mass. 424, 426 (Mass. 1884). See also
Sutcliffe v. Thackrah [1974] 1 All ER 859, 881 (House of Lords) (“Since arbitrators are in
much the same position as judges, in that they carry out more or less the same
functions, the law has for generations recognized that public policy requires that
they too shall be accorded the immunity to which I have referred”).
97) G. Born, International Commercial Arbitration 2175–89 (3d ed. 2021). See, e.g.,
Australian International Arbitration Act, §28; Bermuda International Conciliation and
Arbitration Act, §34.
98) See, e.g., 2021 ICDR Rules, Art. 41; 2020 LCIA Rules, Art. 31; 2017 SCC Rules, Art. 52; 2020
WIPO Rules, Art. 79.
21
KluwerArbitration
22
Wednesday, August 9, 2023: The Arbitral Process and Evidentiary Framework
• The arbitral lifecycle

• The preliminary conference
• The written submissions and the hearing
• The evidentiary framework
• Soft law instruments: IBA Rules on the Taking of Evidence
Core Readings: Born, Chapters 8-9.

KluwerArbitration
Document information Chapter 8: Procedural Issues in International Arbitration

As discussed above, parties agree to arbitrate with the objective of obtaining fair, neutral
procedures which are efficient and tailored to their particular dispute, without reference
Publication to the formalities of procedural rules applicable in national courts. The principal means
International Arbitration: of pursuing these objectives are through the substantial autonomy that parties enjoy,
Law and Practice (Third under the New York Convention and national arbitration legislation, to agree upon
Edition) arbitral procedures, and the broad discretion that arbitrators are granted by the same
sources to prescribe arbitral procedures.
Procedures in International Arbitration
Bibliographic (1) Parties’ Procedural Autonomy
reference (2) Arbitrators’ Procedural Discretion (Absent Contrary Agreement by Parties)
'Chapter 8: Procedural
Issues in International (3) Judicial Non-Interference in Arbitral Proceedings
Arbitration', in Gary B. Born
, International Arbitration: (4) Principle of Limited Mandatory Procedural Requirements of Arbitral Seat
Law and Practice (Third (a) Opportunity to Be Heard
Edition), 3rd edition
(© Kluwer Law (b) Equality of Treatment
International; Kluwer Law
International 2021) pp. 179 - §8.01 APPLICABLE PROCEDURAL LAW IN INTERNATIONAL ARBITRATION
212 As discussed above, arbitral proceedings are subject to the procedural law of the
arbitration. An arbitration’s procedural law is distinguished from the law governing the
parties’ underlying contract and the law governing the arbitration clause, and thus may
P 180 be different from both of these laws. The procedural law of an arbitration is almost
always the arbitration legislation of the arbitral seat; for example, if an arbitration is
seated in Austria, its procedural law will almost always be the Austrian version of the
UNCITRAL Model Law (and Austrian court decisions interpreting the Law). In general, the
procedural law of the arbitration will provide rules governing the external relationship
between the arbitral process and the courts of the seat (e.g., concerning annulment,
selection of arbitrators) and the internal conduct of the arbitration (e.g., requiring equal
treatment).
P 181 As also discussed above, there are rare exceptions where the parties attempt to agree
upon a foreign procedural law. This virtually never occurs in practice and, when it does,
there may be important respects in which the courts of the seat will not give effect to the
choice of a foreign procedural law (e. g., by refusing to permit parties to contract out of
the authority of local courts to annul awards or remove arbitrators). (1)
§8.02 PARTIES’ PROCEDURAL AUTONOMY IN INTERNATIONAL ARBITRATION

One of the fundamental characteristics of international arbitration is the parties’
freedom to agree upon the arbitral procedure. This principle is acknowledged in the New
York Convention and other international arbitration conventions; it is guaranteed by
arbitration statutes in virtually all jurisdictions; it is contained in and facilitated by the
rules of most arbitral institutions; and it is of fundamental practical importance. The
parties’ procedural autonomy is qualified only by the mandatory requirements of
applicable national law and, under most arbitration statutes, these requirements are
very limited in scope.
[A] Parties’ Procedural Autonomy Under New York Convention

The New York Convention gives effect to the central role of the parties’ autonomy to
fashion the arbitral procedure, and provides for the non-recognition of awards following
proceedings that did not follow the parties’ agreed procedures. Thus, Article V(1)(d)
permits non-recognition of an award if “[t]he composition of the arbitral authority or the
arbitral procedure was not in accordance with the agreement of the parties, or, failing
such agreement, was not in accordance with the law of the country where the arbitration
took place.” Article V(1)(d) recognizes the parties’ autonomy to agree upon the arbitral
procedures, including procedures different from the default procedures prescribed by
the laws of the seat: where the parties have made such an agreement, Article V(1)(d)
requires that their agreement be followed, notwithstanding contrary procedural rules in
the seat.
Even more directly, and applicable outside the recognition context, Article II of the
Convention requires courts to recognize valid arbitration agreements and refer the
parties to arbitration pursuant to such agreements. As discussed above, this obligation
under Article II extends to all material terms of an agreement to arbitrate – including
agreements regarding the arbitral seat, number of arbitrators and arbitral procedures. (2)
This obligation is arguably subject to a limited exception where the parties’ procedural
1
agreement violates mandatory national public policies guaranteeing an opportunity to
be heard or equality of treatment; any such mandatory law limitations are, however,
construed narrowly.
[B] Parties’ Procedural Autonomy Under National Arbitration Legislation

Arbitration legislation in most states implements the Convention by guaranteeing parties
the freedom to agree on the procedural rules governing the conduct of the arbitration
(subject to limited mandatory restrictions of national law). The UNCITRAL Model Law is
representative, providing, in Article 19(1), that “[s]ubject to the provisions of this Law, the
parties are free to agree on the procedure to be followed by the arbitral tribunal in
conducting the proceedings.” More specifically, the parties’ freedom to agree on matters
relating to the presentation of their cases and the taking of evidence is recognized in
Articles 18, 19(1) and 24(1) of the Model Law.
Other arbitration regimes are similar in according broad procedural autonomy. (3) For
example, a U.S. court observed that “[p]arties may choose to be governed by whatever
rules they wish regarding how an arbitration itself will be conducted,” (4) while another
remarked, more colorfully, that even procedures such as “flipping a coin, or, for that
matter, arm wrestling” are enforceable. (5) For their part, English authorities have upheld
sui generis procedural mechanisms, such as selecting arbitrators by drawing names by
lot. (6)
[C] Parties’ Procedural Autonomy Under Institutional Rules

One element of the parties’ procedural autonomy is the freedom to agree to arbitration
pursuant to institutional rules. This is explicit in many arbitration statutes, which make
specific reference to institutional arbitration. For example, the Model Law provides that,
“where a provision of this Law … leaves the parties free to determine a certain issue, such
freedom includes the right of the parties to authorize a third party, including an
institution, to make that determination.” (7) Consistent with this, in practice a substantial
proportion of international arbitrations are conducted under institutional rules of some
sort.
Most institutional rules parallel and complement the procedural provisions of the Model
Law and other arbitration legislation. The rules of most arbitral institutions permit
parties, by agreement, to adopt such procedures as they choose. For example, Article 19
of the 2021 ICC Rules provides:
“The proceedings before the arbitral tribunal shall be governed by the Rules,
and, where the Rules are silent, by any rules which the parties or, failing them,
P 182 the arbitral tribunal may settle on, whether or not reference is thereby
made to the rules of procedure of a national law to be applied to the
arbitration.” (8)
§8.03 ARBITRATORS’ PROCEDURAL DISCRETION IN INTERNATIONAL

ARBITRATION
Although most arbitration laws permit the parties to agree upon the arbitral procedures,
subject only to minimal due process requirements, parties in practice often do not agree
in advance on detailed procedural rules. Instead, arbitration agreements ordinarily
provide simply for arbitration pursuant to a set of institutional rules, which supply only a
broad procedural framework. Filling in the considerable gaps in this framework is left to
the parties’ subsequent agreement or, if they cannot agree, the tribunal. The arbitrators’
discretion to determine the arbitral procedure, in the absence of agreement by the
parties on such matters, is another foundation of the international arbitral process.
[A] Arbitrators’ Procedural Discretion Under New York Convention

The New York Convention makes no direct reference to the tribunal’s authority to conduct
the proceedings, only indirectly acknowledging such powers in Articles V(1)(b) and V(1)(d).
At the same time, Article II(3) of the Convention requires giving effect to the parties’
agreement to arbitrate, an essential element of which is either express or implied
authorization to the arbitrators to conduct the arbitral proceedings as they deem best
(absent contrary agreement by the parties on specific matters). (In contrast, but to the
same effect, Article IV(4)(d) of the European Convention provides that, where the parties
have not agreed upon arbitral procedures, the tribunal may “establish directly or by
reference to the rules and statutes of a permanent arbitral institution the rules of
procedure to be followed by the arbitrators.”)
[B] Arbitrators’ Procedural Discretion Under National Arbitration Legislation

Consistent with the New York Convention, most national arbitration statutes provide
tribunals with substantial discretion to establish the arbitral procedures in the absence
of agreement between the parties, subject only to general due process requirements. For
example, Article 19(2) of the Model Law provides that, where the parties have not agreed
upon arbitral procedures, “the arbitral tribunal may … conduct the arbitration in such a
manner as it considers appropriate.” Article 24(1) is similar, providing “[s]ubject to any
2
contrary agreement by the parties, the arbitral tribunal shall decide whether to hold an
P 183 oral hearing for the presentation of evidence or for oral argument….”
UNCITRAL Model Law, Articles 18, 19
18. Equal Treatment of Parties
The parties shall be treated with equality and each party shall be given a full opportunity
of presenting his case.
19. Determination of Rules of Procedure
(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to
be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law,
conduct the arbitration in such manner as it considers appropriate. The power conferred
upon the arbitral tribunal includes the power to determine the admissibility, relevance,
materiality and weight of any evidence.
Although the FAA does not expressly address the subject, U.S. courts uniformly hold that
arbitrators possess broad powers to determine arbitral procedures (absent agreement on
such matters by the parties). As one U.S. court held:
“Unless a mode of conducting the proceedings has been prescribed by the
arbitration agreement … arbitrators have a general discretion as to the mode
of conducting the proceedings and are not bound by formal rules of procedure
and evidence, and the standard of review of arbitration procedures is merely
whether a party to an arbitration has been denied a fundamentally fair
hearing.” (9)
Other states take similar approaches. (10) In practice, the arbitrators’ broad procedural
discretion is of fundamental importance, as the arbitral tribunal is left to decide virtually
all aspects of the arbitral procedure that have not been agreed by the parties, subject
only to extremely limited judicial review.
[C] Arbitrators’ Procedural Discretion Under Institutional Rules

Most institutional rules parallel the procedural approach of the Convention and Model
Law. With no material exceptions, these rules confirm the arbitrators’ authority to
determine the arbitral procedures, subject only to limited mandatory protections of
procedural fairness.
Article 17(1) of the UNCITRAL Rules provides:
“Subject to these Rules, the arbitral tribunal may conduct the arbitration in
such manner as it considers appropriate, provided that the parties are
treated with equality and that at an appropriate stage of the proceedings
each party is given a reasonable opportunity of presenting its case.”
P 184
Similar provisions are contained in other rules. (11) For example, Article 14(2) of the LCIA
Rules provides: “The Arbitral Tribunal shall have the widest discretion to discharge [its]
general duties, subject to the mandatory provisions of any applicable law or any rules of
law the Arbitral Tribunal may decide to be applicable.”
The arbitrators’ procedural discretion under institutional rules is not unlimited. Rather,
as with most national laws, institutional regimes subject the arbitrators’ procedural
authority to overarching obligations to treat the parties equally and to give them
reasonable opportunities to present their cases. Thus, Article 17(1) of the UNCITRAL Rules
requires that “the parties [be] treated with equality and that at an appropriate stage of
the proceedings each party is given a reasonable opportunity of presenting its case.”
Similarly, the ICC and LCIA Rules require that each party be afforded a “reasonable
opportunity to present its case” and “reasonable opportunity of putting its case and
dealing with that of its opponent(s).” (12) As discussed below, national law (and,
indirectly, the New York Convention) imposes similar due process requirements on the
tribunal’s exercise of its procedural discretion. (13)
Unlike other institutional rules, the ICC Rules expressly provide (in Article 19) that the
tribunal may determine procedural rules “whether or not reference is thereby made to
the rules of procedure of a national law to be applied to the arbitration.” This proviso
affirms the meaning implicit in other institutional rules and ad hoc arbitration
agreements: arbitrators are free, but not obliged, to adopt procedural rules used in
domestic litigations in national legal systems. This rejects the archaic view, adopted by
some early authorities, that arbitrators are bound to apply the civil procedure rules of
the arbitral seat, either mandatorily or because the parties are deemed to have
impliedly selected those rules by agreeing to arbitrate in the seat.
In practice, tribunals rarely expressly adopt national procedural rules, instead either
fashioning ad hoc procedural rules or adopting international procedural rules (such as
the IBA Rules on the Taking of Evidence or, less frequently, the Prague Rules on the
3
Efficient Conduct of Proceedings in International Arbitration (14) ). It is only in unusual
cases that an international arbitral tribunal will adopt wholesale the civil procedure
code of a national legal system; indeed, one of the reasons parties agree to international
arbitration is precisely to avoid this approach.
§8.04 MANDATORY PROCEDURAL REQUIREMENTS IN ARBITRAL

PROCEEDINGS
The parties’ freedom to agree upon the arbitral procedures, and the tribunal’s discretion
to adopt such procedures (absent contrary agreement), are subject to the mandatory
requirements of applicable national law. In most cases, mandatory law imposes only very
P 185 general, albeit important, guarantees of procedural fairness and regularity.
[A] Mandatory Procedural Requirements Under New York Convention

The New York Convention indirectly recognizes and gives effect to mandatory
requirements of procedural fairness and regularity of the arbitral proceedings. It does so
by permitting awards to be denied recognition if basic international requirements of
procedural fairness have not been satisfied, while also leaving scope for application of
non-discriminatory rules of mandatory national law to deny recognition.
Thus, Article V(1)(b) of the Convention permits non-recognition of an award where “[t]he
party against whom the award is invoked was not given proper notice of the appointment
of the arbitrator or of the arbitration proceedings or was otherwise unable to present his
case.” Article V(2)(b) is also potentially applicable in cases of serious procedural
unfairness, permitting non-recognition of awards for violations of local public policy,
including procedural public policies (sometimes termed “international procedural
public policy”). (15)
As discussed below, Articles V(1)(b) and V(2)(b) have been interpreted to afford the
parties and arbitrators broad freedom to establish the arbitral procedures. Nonetheless,
these provisions permit national courts to deny recognition to awards that are based on
unfair, arbitrary or unbalanced procedures, applying either a uniform international
standard of procedural fairness under Article V(1)(b) or procedural protections
guaranteed by mandatory national law under Article V(2)(b). Both of these provisions
provide limited grounds on which either the parties’ procedural agreements, or a
tribunal’s procedural orders, can be overridden by national law in recognition
proceedings.
[B] Mandatory Procedural Requirements Under National Arbitration Legislation

Consistent with the Convention, most legal systems do not impose significant mandatory
limitations on the freedom of the parties or tribunal to conduct an arbitration: within
very deferential mandatory limits, parties are free to agree to arbitral procedures that
suit their interests, and arbitrators are empowered to prescribe arbitral procedures when
the parties have made no agreement. Nevertheless, legislation and/or judicial decisions
in many jurisdictions require that arbitral proceedings seated on local territory satisfy
minimal standards of procedural fairness and equality; these standards are variously
referred to as requiring “due process,” “natural justice,” or “procedural regularity.”
The UNCITRAL Model Law is illustrative of this basic, mandatory requirement of
procedural fairness. Article 18 of the Model Law requires that “[t]he parties shall be
treated with equality and each party shall be given a full opportunity of presenting his
P 186 case”; the Model Law also makes clear, in Article 19(1), that this is a mandatory
provision for locally-seated arbitrations, which overrides contrary agreement by the
parties (or actions by a tribunal). Other national arbitration regimes are similar. (16)
Every jurisdiction has its own national standard of “due process” or “natural justice” which
is mandatorily applicable to arbitrations with their seats in local territory. Both in verbal
formulation and in specific application, these standards differ from state to state. There
are also divergences in procedural formalities (e.g., oaths, transcripts) in different legal
systems. (17)
For the most part, however, there are only limited differences in the standards of due
process which are applied to the international arbitral process in developed
jurisdictions. That is in part because of the very deferential approach which is taken in
most legal systems to the parties’ procedural autonomy in international arbitrations. It is
also in part because of the steps towards “convergence” that have occurred with regard
to litigation procedures in developed jurisdictions over the past decade. (18)
Thus, in most jurisdictions, mandatory national law imposes only limited restrictions on
the parties’ autonomy to agree upon arbitral procedures. In general, only agreements to
egregiously unfair, unconscionable or wholly arbitrary procedures will be held
unenforceable. As one U.S. decision, which adopted a particularly robust view of the
parties’ autonomy, put it:
Short of authorizing trial by battle or ordeal or, more doubtfully, by a panel of three
monkeys, parties can stipulate to whatever procedures they want to govern the
arbitration of their disputes; parties are as free to specify idiosyncratic terms of
4
arbitration as they are to specify any other terms in their contract. (19) Only somewhat
less expansively, the 1996 English Arbitration Act provides: “the parties should be free to
agree how their disputes are resolved, subject only to such safeguards as are necessary in
the public interest.” (20)
There is an important distinction between the application of mandatory law limits to the
parties’ procedural agreements and to the arbitral tribunal’s procedural directions.
Although it is of course possible for parties’ procedural agreements to be unconscionably
one-sided, courts are very reluctant to reach such a conclusion in cases involving
commercial parties. National courts are also highly deferential, but somewhat less so, to
procedural directions made by arbitral tribunals, in the absence of the parties’ consent
to those directions. Although the parties’ arbitration agreement will ordinarily grant the
arbitrators broad procedural discretion, this is not intended to be, and cannot be
regarded as, unlimited. A tribunal’s imposition of unfair or arbitrary procedures, over a
P 187 party’s objection, is very different from a party’s informed acceptance of such
procedures, either for reasons of its own or in return for other benefits.
§8.05 LIMITED GROUNDS FOR INTERLOCUTORY JUDICIAL REVIEW OF

ARBITRATORS’ PROCEDURAL DECISIONS
In addition to addressing the content of the procedures that are used in international
arbitrations, the New York Convention, arbitration legislation and institutional rules all
adopt a basic principle of judicial non-interference in the conduct of the arbitral
proceedings. This principle ensures that an arbitration can proceed, pursuant to the
parties’ agreement or under the tribunal’s direction, without delays and second-guessing
resulting from interlocutory judicial review of procedural decisions. In practice, such
judicial interference virtually never occurs, with the procedural conduct of the
arbitration instead being left almost entirely to the parties and the arbitrators.
[A] Principle of Judicial Non-Interference in Arbitral Proceedings

Nothing in the New York Convention provides expressly that national courts shall not
entertain interlocutory procedural applications concerning ongoing international
arbitrations (e.g., to dispute a tribunal’s procedural timetable or evidentiary rulings).
Nonetheless, Article II(3) of the Convention provides that national courts shall “refer the
parties to arbitration” after ascertaining the existence of a valid arbitration agreement,
without providing for any further judicial role in the arbitral proceedings. At the same
time that neither Article II(3) nor any other part of the Convention provides for judicial
involvement in monitoring or overseeing the procedures used in the arbitration, Article V
defines the role of national courts with exclusive reference to recognition and
enforcement of awards (not interlocutory procedural rulings).
As discussed above, Article II(3) is a mandatory provision, requiring that national courts
either dismiss or stay claims that are subject to a valid arbitration agreement and refer
the parties to arbitration. The only exception to this principle involves interlocutory
judicial decisions on jurisdictional challenges to arbitration agreements, which are
contemplated by Article II. The effect of this requirement is to forbid the courts of
Contracting States from supervising the ongoing procedural conduct of arbitrations:
absent contrary agreement by the parties, Article II(3) requires that courts simply “refer
the parties to arbitration,” with any subsequent judicial involvement limited to
annulment or recognition proceedings. (21)
Arbitration statutes and judicial decisions in most jurisdictions even more emphatically
adopt the principle of judicial non-interference. Article 5 of the Model Law provides “[i]n
matters governed by this Law, no court shall intervene except where so provided in this
Law.” The Model Law then sets forth limited circumstances involving judicial support for
the arbitral process (e.g., resolving jurisdictional objections, assisting in constitution of
the tribunal, provisional relief, award annulment), but not permitting judicial supervision
P 188 of procedural decisions through interlocutory appeals or otherwise. In the words of one
court, asked to review interim decisions by a tribunal:
“It is premature, in effect, at this stage of proceedings, to ask the Superior
Court of Quebec to intervene on questions that can eventually, and only, be
remitted to it after a final arbitral award has been made …. The Quebec
Superior Court is not clothed with the power to examine [these questions] at
this moment, but only once the final arbitral decision has been rendered.” (22)
Arbitration legislation in other jurisdictions is similar, either excluding judicial
supervision of arbitral procedures, (23) or omitting any provision for interlocutory judicial
review or supervision of arbitrators’ procedural rulings. (24)
In the United States, the text of the FAA does not expressly provide for judicial non-
interference in arbitral proceedings. Nonetheless, U.S. courts have repeatedly held that
judicial intervention in a pending arbitration, to correct procedural errors or evidentiary
rulings, is improper: “[n]othing in the [FAA] contemplates interference by the court in an
ongoing arbitration proceeding.” (25) Decisions in other jurisdictions are similar. (26) In
practice, as already noted, national courts virtually never intervene in the procedural
conduct of international arbitrations.
5
[B] Limited Grounds for Judicial Intervention or Assistance
There are limited grounds for judicial intervention or assistance in ongoing international
arbitral proceedings. As discussed elsewhere, these are: (a) jurisdictional objections (e.g.,
to the existence, validity or scope of an arbitration agreement); (b) challenges to
arbitrators; (c) provisional measures in aid of arbitral proceedings; (d) assistance in
taking of evidence for use in arbitral proceedings; (e) annulment of awards; and (f)
recognition of awards. (27) As noted above, Article 5 of the UNCITRAL Model Law
contemplates judicial intervention and/or assistance in these instances, as do other
arbitration statutes. In each of these instances, judicial intervention or assistance is
intended to facilitate the arbitral process (by providing limited support or supervision).
In a few instances, national courts have issued so-called “anti-arbitration” injunctions or
orders, forbidding the conduct of international arbitral proceedings. Such orders
P 189 contravene the principle of judicial non-interference and there is substantial doubt
whether they are consistent with the New York Convention or most national arbitration
regimes. (28)
§8.06 ARBITRATORS’ EXERCISE OF PROCEDURAL AUTHORITY IN

INTERNATIONAL ARBITRATION
As discussed above, the procedural conduct of international arbitrations is largely in the
hands of the parties and tribunal. In practice, parties frequently reach agreement on only
the broad outlines of the arbitral process (typically, by agreeing to institutional rules)
and on a few specific issues (e.g., how witness testimony will be adduced). As a
consequence, many aspects of the arbitral process will be subject to the tribunal’s
directions, with the arbitrators exercising the discretion granted under national law and
institutional rules. This is a characteristic feature of arbitration, distinguishing it from
national court litigation where pre-existing and relatively fixed, formal procedural rules
apply generally to all cases.
[A] No General Procedural Code for International Arbitrations

In most international arbitrations, there is no pre-existing or generally-applicable code
of procedural rules. As discussed above, it is well-settled that arbitrators are not
generally required to apply domestic civil procedure rules in international arbitrations.
Further, in ad hoc arbitrations, there will often be no procedural rules of any sort
incorporated into the parties’ arbitration agreement. As a practical matter, the tribunal
and the parties will ordinarily have full discretion to establish the arbitral procedures on
a case-by-case basis (subject only to very limited restrictions of mandatory law in the
arbitral seat).
In institutional settings, most institutions have promulgated rules, which apply to
arbitrations where the parties have adopted those rules in their arbitration agreement.
In addition, the UNCITRAL Rules are available to parties who desire an essentially ad hoc
arbitration, but supplemented by a skeletal procedural framework and an appointing
authority. These rules give structure and predictability to the arbitral process by
providing a general procedural framework for the arbitration, but they leave the
overwhelming bulk of issues relating to the arbitral process for resolution by the parties
and tribunal.
Most institutional rules do not provide a detailed procedural timetable for the arbitral
procedure (e.g., timing and nature of written submissions, presentation of evidence,
organization of hearings). Rather, institutional rules establish the broad outline of a
procedural framework, with only key events identified (e.g., the request for arbitration,
the hearing, the award). Within that framework, the parties and tribunal are left to work
P 190 out the details of arbitral procedures in particular cases as they see fit.
[B] Arbitral Tribunals’ Exercise of Discretion over Arbitral Procedures

One of the reasons that tribunals are afforded broad discretion over the arbitral
procedures is to tailor those procedures to the needs of particular cases, disputes and
parties. The objective of any arbitral procedure should be to allow the parties the
opportunity to present the relevant facts (through documentary, witness and other
evidence) in the most reliable, efficient and fair manner. This objective is affirmed in
leading arbitration regimes, including the UNCITRAL Model Law (Articles 18 and 19).
A tribunal’s selection of one approach to procedural matters, rather than another, will be
influenced significantly by the need for evidentiary inquiry in particular cases, the
parties’ backgrounds and desires, the applicable law and the nature of the dispute.
These factors can produce procedures ranging from: (a) extensive discovery, oral
depositions and witness testimony with broad cross-examination, to (b) no disclosure
and written witness statements with limited (or no) cross-examination by parties’
counsel, to (c) “documents only” arbitrations, with no oral proceedings. Although these
procedures differ radically, each is capable of being fair and efficient in the
circumstances of particular cases.
In a matter involving modest amounts in dispute, where defined legal issues
6
predominate, limited (or no) disclosure and limited witness testimony may be
appropriate. Conversely, in a matter involving substantial amounts in dispute, with
complex factual issues, extensive disclosure and witness examination will often be
appropriate. Similarly, in cases where one party is in possession of evidence required by
its counter-party (e.g., fraud claims), disclosure will be more appropriate than in other
matters. One of the benefits of arbitration is its ability to permit procedures to be
tailored to the needs of each specific case.
In practice, many intangible factors affect a tribunal’s exercise of its procedural
discretion. Opposing counsel’s willingness to work together, and their preferences,
dramatically impact the arbitral process. Similarly, the characteristics of the arbitrators
– age, temperament, intelligence, time commitments and background – influence their
procedural preferences.
One factor that affects the tribunal’s procedural decisions is the legal training and
experience of the arbitrators – whether they have common law, civil law, Islamic or other
backgrounds. Although generalizations are overly-simplistic, arbitrators with civil law
backgrounds (e.g., Continental Europe, Japan, Korea, China) often adopt somewhat more
“inquisitorial” procedures, with the tribunal being primarily responsible for identifying
issues and eliciting evidence. Under this approach, there will be less scope for
adversarial procedures – such as party-initiated discovery, depositions, lengthy oral
hearings, counsel-controlled witness examination and the like – than is familiar to
common law lawyers. In contrast, arbitrators from common law jurisdictions (e.g., United
States, England and the former Commonwealth) will often adopt “adversarial” procedures
with each party having relative freedom to present its own version of the facts and law.
(29)
Nonetheless, as a practical matter, the importance of the differences between civil and
common law backgrounds is sometimes exaggerated. There is no fixed procedural
P 191 formula for either “common law” or “civil law” arbitrations, with arbitrations in the
United States, England and other common law jurisdictions varying widely among
themselves in procedural approaches, as is the case with arbitrations in Continental
Europe, which also follow no set “civil law” pattern. Further, civil law procedures are
frequently no less “adversarial” than common law procedures, while common law
arbitrators are often at least as “inquisitorial” as their civil law counterparts (for
example, in questioning witnesses or counsel).
At the same time, efforts to bridge differences between traditional common and civil law
procedures have been at least partially successful. These efforts are reflected in the
development of internationally-accepted guidelines, such as the IBA Rules on the Taking
of Evidence and the IBA Guidelines on Conflicts of Interest. Equally important, if less
visible, has been the development of a body of customarily used and internationally-
neutral procedures, frequently used as starting points in international commercial
arbitrations, which blend aspects of common law, civil law and other traditions. The use
of “witness-conferencing” to hear expert testimony or “Redfern Schedules” to resolve
disclosure disputes are good examples.
There is – and should be – no “standard” or “usual” procedural approach in international
arbitration, whether common law, civil law or something else. Every case has its own
needs and dynamics, which produce its own procedural approach. That is one of the
objectives of arbitration – to permit efficient, internationally-neutral and expert
procedures tailored to particular parties’ needs and specific disputes.
§8.07 MAJOR PROCEDURAL STEPS IN INTERNATIONAL ARBITRAL PRACTICE

Most international arbitrations involve a number of procedural steps, which are
summarized below. The descriptions are only general. As noted above, there is no
“average” or “typical” international arbitration, and many individual arbitrations omit
some (or many) such steps or adopt sui generis approaches that differ from common
practices. Nonetheless, as a benchmark, the following descriptions are a useful starting
point in describing the actual practice of international arbitration.
[A] Notice of Arbitration or Request for Arbitration

The first procedural step in most arbitrations is the filing of a “request for arbitration” or
“notice of arbitration.” This serves the same basic functions as a civil complaint, writ or
claim form under national litigation rules – that is, “to inform the respondent … that
arbitral proceedings have been started and that a particular claim will be submitted for
arbitration” and to “apprise the respondent of the general context of the claim asserted
against him.” (30)
In practice, the required contents of a request for arbitration vary depending on the
parties’ arbitration agreement, applicable institutional rules and national law. These
sources may require that a request for arbitration (or notice of arbitration) include
P 192 specified information. Typically, only skeletal information is required, including the
parties’ identities, specification of the arbitration agreement, a summary of the dispute
or claims and (sometimes) nomination of an arbitrator. (31) As a practical matter, parties
sometimes include more detailed allegations about their claims, but this is usually
7
optional, for tactical reasons, not mandatory.
Ordinarily, the request for arbitration must be delivered to the respondent to commence
the arbitration. In general, requirements for the service of process which apply in
national court litigations do not apply to international arbitrations. In some institutional
arbitrations (e.g., ICC), the institution is responsible for delivering the request for
arbitration to the respondent.
[B] Reply and Counterclaims

National law generally does not address the procedures relating to replies to a request
for arbitration or the assertion of counterclaims, instead leaving this to the arbitration
agreement or the arbitrators’ procedural discretion. Under most institutional rules, the
respondent will be afforded an opportunity, within a time limit, to reply to the request
for arbitration and assert counterclaims. The time for replying is ordinarily short: Article 5
of the 2021 ICC Rules grants 30 days, as does Article 3 of the 2021 ICDR Rules, while Rule
4(1) of the 2016 SIAC Rules allows for 14 days. These deadlines are often extended, either
by agreement between the parties or leave of the institution.
[C] Constitution of Arbitral Tribunal and Challenges

The constitution of the tribunal is a critical procedural step at the outset of any
arbitration. There are a variety of mechanisms for appointing arbitrators, in both
institutional rules and arbitration agreements. These mechanisms are discussed in
Chapter 7 above.
[D] Presiding Arbitrator’s Procedural Authority

In three (or five) person tribunals, one of the arbitrators will be the “presiding arbitrator,”
also called the “president” or “chair.” The presiding arbitrator plays a significant role in
the arbitral process – particularly in speaking for the tribunal, ruling on procedural
matters during hearings, overseeing the tribunal’s deliberations, (often) holding a
decisive vote and drafting the award.
Some arbitration statutes and institutional rules grant the presiding arbitrator specific
authority – generally in terms of a decisive vote in case of deadlocks on the tribunal. (32)
The parties are generally permitted to agree to grant the presiding arbitrator broader
authority (for example, to rule independently on certain procedural matters). The
P 194 presiding arbitrator also possesses a degree of inherent authority, by virtue of his or
her role in leading deliberations and speaking for the tribunal (both at hearings and
otherwise).
8
[E] Written Communications with Arbitral Tribunal During Proceedings
A tribunal will usually take care at the outset to organize communications made during
the arbitration. This includes providing a circulation list for all communications (with
addresses and email addresses) and giving directions regarding submissions (e.g.,
number of copies, mode of transmission). These steps are ministerial, but they can
prevent disputes as to whether particular documents were or were not properly sent.
After a tribunal is appointed, the parties and their representatives are generally obliged
to refrain from ex parte communications about the substance of the case with the
arbitrators. This is impliedly required by most national arbitration regimes, by virtue of
their requirements regarding the impartiality of the tribunal. The prohibition on ex parte
communications is made express in ethical standards for international arbitrators. Thus,
the IBA Rules of Ethics, in Article 5(3), provide: “[t]hroughout the arbitral proceedings, an
arbitrator should avoid any unilateral communications regarding the case with any party
or its representatives.” Exceptions are made for scheduling or similar logistical issues or,
unusually, where the adverse parties have specifically consented.
[F] Jurisdictional Objections

As discussed above, disputes often arise over the validity or scope of arbitration
agreements. Although national courts sometimes resolve such disputes, the tribunal itself
also often addresses questions of jurisdiction. The timing of such jurisdictional
proceedings is discussed in detail in Chapter 2 above. (33) National law in the arbitral
seat will sometimes regulate the timing of both the consideration of jurisdictional issues
by national courts and the making of a jurisdictional award by the arbitrators. Most
national laws and institutional rules leave the timing of a jurisdictional award to the
9
tribunal’s discretion, sometimes with a presumption in favor of interlocutory resolution of
jurisdictional challenges. (34)
[G] Language of Arbitration

Many arbitration agreements specify the language of the proceedings (and, less
frequently, the award). Absent such agreement, most institutional rules authorize the
P 195 tribunal to select a language (or languages) for the arbitration. (35) Arbitrators will
often select the language of the underlying contract to govern the arbitral proceedings.
There are exceptions, however, where institutional rules dictate a default language. (36)
The language of the arbitral proceedings is an issue of substantial practical importance.
Among other things, the language of the arbitration affects the choice (and performance)
of counsel and arbitrators, the effectiveness of witness testimony, and similar matters.
[H] Initial Procedural Conference

Tribunals usually conduct a preliminary conference with the parties and counsel. The
purpose of the conference is to discuss and establish the procedural timetable and rules
for the arbitration, and to introduce the arbitrators, parties and counsel personally. In
practice, tribunals increasingly dispense with physical meetings, in favor of video or
telephone conferences.
[I] Procedural Timetable and Time Limits

It is customary for the tribunal to establish a procedural timetable at the outset of the
arbitration. For the most part, arbitration statutes do not address the contents of
procedural timetables, which are left to the parties’ agreement or, absent agreement, the
tribunal’s directions. The most significant exceptions to this are, in some states, statutory
time limits for a final award (which must be complied with in order to avoid annulment of
the award). (37)
Similarly, in practice, few arbitration agreements deal with procedural timetables.
Exceptions are so-called “fast-track” provisions (fixing a highly-expedited timetable for
written submissions, hearing and award) and provisions specifying initial steps in the
arbitral process. Alternatively, some arbitration agreements impose deadlines, either for
making an award, holding a hearing or taking other steps. Most institutional rules contain
time limits for the parties’ initial pleadings, such as replies and counterclaims, but do
not specify the timing of any further submissions. Instead, institutional rules usually
authorize tribunals to set time limits for written submissions, production of evidence and
other subjects.
Some institutional rules require that awards be rendered within a particular time period.
For example, under the 2021 ICC Rules, an award is required within six months of the
Terms of Reference (subject to extensions). (38) The 2021 ICDR Rules, in contrast, require
that an award be made “as quickly as possible,” and, unless otherwise agreed, no later
than 60 days of the close of hearings. (39) Most other institutional rules impose no time
P 196 limit for the issuance of an award.
Arbitrators will generally draw up a timetable for the arbitration at an early stage in the
proceedings. This typically occurs at or in conjunction with an initial conference with the
parties, where procedural matters can be discussed and calendars consulted. The
timetable will ordinarily set out a schedule pursuant to which the parties must make
written submissions, file evidence and present their cases at a hearing (all discussed
below). It will also address issues such as the availability and form of disclosure (as well
as timing issues), expert evidence, post-hearing submissions and the like.
In establishing a timetable, it is essential that the tribunal consider the parties’
preferences, the nature of the claims and expected evidence. This involves a balance
between complying with the parties’ preferences as to how the case should proceed and
judging the extent to which those preferences make sense. This may also entail discussion
between the tribunal and the parties, including (the relatively rare cases) where the
parties desire to adopt a procedural approach and timetable that the arbitrators
consider inappropriate.
[J] Bifurcation or Other Segmentation of Proceedings

The efficient organization of the arbitration sometimes occurs by identifying preliminary
or “cut-across” issues, whose prompt resolution will avoid unnecessary expense. Typical
examples are jurisdictional issues, choice-of-law questions and separation of liability
and damages. It is, for example, common for tribunals to request a separate briefing on
jurisdiction, and to hear evidence and oral submissions, before issuing an interim award
confined to jurisdiction.
If the parties do not agree on whether or not to bifurcate the issues in a case, the tribunal
will be responsible for deciding whether to do so. Bifurcating a case requires particular
care, to avoid ambiguity or confusion about definitional issues (e.g., what exactly is
included in a “liability” or a “damages” phase?).
10
[K] ICC Terms of Reference
The ICC Rules formalize the process of case management through a relatively unusual
“Terms of Reference” mechanism and a mandatory requirement for a procedural
timetable. Under Article 23 of the 2021 ICC Rules, the tribunal is required to prepare a
document entitled “Terms of Reference.” The Terms of Reference usually contain a variety
of formal details (e.g., identities and addresses of parties, legal representatives), as well
as “a summary of the parties’ respective claims,” a “definition of the issues to be
determined,” and “particulars of the applicable procedural rules.”
The Terms of Reference are typically reviewed in draft form by the parties (almost always
based on a proposal from the tribunal); this can occur without actual meetings, with
comments exchanged by emails, or in conjunction with an initial procedural meeting. The
parties and arbitrator(s) must sign the Terms of Reference, which is then submitted to the
P 197 ICC. The ICC Rules also require (in Article 24) the tribunal to convene a case
management conference to consult the parties on procedural measures that may be
adopted, and to establish a “procedural timetable” when completing the Terms of
Reference or soon thereafter. This provision is intended to require the tribunal to address
issues of scheduling, case management and the like at the outset of the case, rather than
leaving this entirely to the tribunal’s discretion. (40)
[L] Advance on Costs or Deposits

Once a tribunal is in place, the parties are generally required to advance security
towards the fees of the arbitrators. Most institutional rules contain provisions for
payment of an advance on costs, (41) and arbitrators often have the power under national
law to require payment of an advance even absent an express provision to that effect.
The amount of the advance is based on the expected total amount of fees and expenses
of the arbitrators (sometimes deposited in phases, as the arbitration progresses). If the
parties do not pay the advance, the arbitration will not go forward; if one party fails to
make payment, the other may do so on its behalf (so the arbitration will proceed,
hopefully to an award in its favor). (42)
[M] Introduction of New Claims and Defenses

Most national laws and institutional rules contemplate liberal amendments to the
parties’ initial claims and defenses. Article 22 of the UNCITRAL Rules is illustrative:
“During the course of the arbitral proceedings, a party may amend or
supplement its claim or defence, including a counterclaim or a claim for the
purpose of a set-off, unless the arbitral tribunal considers it inappropriate to
allow such amendment or supplement having regard to the delay in making it
or prejudice to other parties or any other circumstances.”
Other institutional rules are to the same effect. (43) The decision whether to permit an
amendment is a matter for the tribunal’s discretion (subject to annulment only in cases
where a party is denied an opportunity to be heard). (44) Of course, an amendment (or
counterclaim) may only be permitted if it is within the scope of the arbitration
agreement.
[N] Disclosure or Discovery

As discussed in Chapter 9 below, “discovery” or “disclosure” plays an important role in
international arbitration. In practice, although generalizations are difficult, a measure of
document discovery is available in many contemporary international arbitrations, either
pursuant to voluntary agreement or by order of the tribunal. At the same time, in many
P 198 senses, the very term “discovery” can be misleading in the context of international
arbitration: discovery in international arbitration is usually materially less extensive
than in common law litigation.
There is no automatic right to disclosure in international arbitration. Rather, parties must
seek leave from the tribunal to obtain procedural orders providing for disclosure.
Ordinarily, this should be done in conjunction with establishing the initial procedural
timetable for the case (given the potential impact of disclosure on other aspects of the
timetable). The timing and format for any disclosure will be set forth in advance in
procedural orders from the tribunal (or, less frequently, agreement(s) between the
parties). The tribunal’s orders will usually establish a procedure for the parties to make
requests for disclosure and to respond to such requests (with either production or
objections), and for the tribunal to rule on the requests and order disclosure.
A tribunal must also decide when the parties may seek disclosure. This requires
considering whether the parties have sufficiently defined the issues (so the tribunal can
assess the relevance and materiality of requests), as well as whether the parties will have
sufficient time to digest materials which are disclosed and incorporate them into their
submissions. Frequently, tribunals will provide for disclosure requests and objections to
be made immediately following the parties’ submission of reasonably detailed
statements of their claims and defenses. This permits requests for disclosure to focus on
relevant issues, while allowing the parties to review materials produced in disclosure
11
before the oral evidentiary hearing.
Finally, as discussed below, it is possible under some national laws for either the parties,
or the tribunal, to seek judicial assistance in obtaining coercive discovery. Depending on
national law, such court-ordered disclosure can be obtained from other parties or (less
frequently) non-party witnesses. A party’s efforts to obtain court-ordered disclosure can
have a serious impact on the timetable of the arbitration: court proceedings may be
time-consuming, and tribunals will be concerned about delaying the arbitration pending
such litigation.
[O] Written Submissions

During most international arbitrations, the parties will file further written submissions
with the tribunal, in addition to the request for arbitration, answer/counterclaims and
any defense to counterclaims. Some institutional rules (such as the UNCITRAL Rules)
provide specifically for further submissions (e.g., a statement of claim and defense). (45)
Written submissions are usually filed prior to the evidentiary hearing, but may also be
filed after the hearing (so-called “post-hearing written submissions”). Further written
submissions will typically elaborate on the factual allegations and legal arguments
contained in the parties’ initial request for arbitration and answer, and will ordinarily
attach evidence (e.g., documents, written witness statements) and/or legal materials
P 199 (e.g., copies of judicial or arbitral decisions and statutes). As one experienced
advocate has described, “the phase of written advocacy is increasingly important [in
arbitration], and much can be done at this stage to affect the outcome.” (46)
As a practical matter, the content, form and timing of written submissions vary. In some
arbitrations (particularly smaller ones), written submissions are brief, informal
documents submitted shortly before the evidentiary hearing; most of the parties’
submissions will be oral, made at the hearing itself. In other arbitrations (typically larger
disputes), written submissions will require several months to prepare and will be
hundreds of pages long (not including exhibits, which may entail thousands of additional
pages). The timetables adopted for the arbitration will obviously vary substantially,
depending on whether the written submissions fall closer to one end of this spectrum or
the other.
[P] Documentary Evidence

In general, international arbitration relies more heavily on documentary evidence than
oral testimony. Indeed, it is sometimes said that documentary evidence is “preferred,” or
of superior weight, to witness evidence in international arbitrations:
“Probably the most outstanding characteristic of [international arbitral
practice] is the extent to which reliance is placed in it upon the written word
…. It may be said that evidence in written form is the rule and direct oral
evidence the exception.” (47)
In practical terms, each party will typically submit, to adverse parties and the tribunal,
documents on which it intends to rely in support of its case. Often, many relevant
documents are attached to the parties’ initial written submission in the case (typically in
accordance with procedural directions to this effect from the tribunal). Other documents
will be attached as exhibits to particular witness statements or submitted apart from any
pleading or statement.
[Q] Written Witness Statements

It is common for witness testimony in international arbitrations to be submitted in the
first instance by written witness statements (comparable to “affidavits” in common law
practice). These are statements, which are signed and attested, containing the witness’s
direct testimony on the issues as to which the party proffering that witness wishes to rely.
The statements are submitted at a designated time before any oral hearing (to adverse
parties and the tribunal).
Witness statements were historically unknown in many civil law systems. Despite this, the
UNCITRAL Rules expressly provided for written witness statements (in Article 27(2)).
Similarly, the IBA Rules on the Taking of Evidence (and some institutional rules) also
P 200 provide for witness statements (including acknowledgement that counsel may
interview witnesses in preparation for testimony). (48) As discussed below, this reflects
the overwhelming practice in contemporary international arbitrations.
The IBA Rules provide useful criteria for the approach to be taken in witness statements.
They require that a statement provide “a full and detailed description of the facts, and
the source of the witness’s information as to those facts, sufficient to serve as that
witness’s evidence in the matter in dispute.” (49) It is rare for a witness statement which
ignores these principles to be struck from evidence; it is even rarer, however, that such a
statement will advance a party’s case.
[R] Evidentiary Hearings and Time Limits
12
Oral hearings are mandatory in virtually all international arbitrations (save where the
parties agree otherwise). Conducting an oral hearing is required by many institutional
rules (50) and some national laws (51) (unless the parties’ arbitration agreement excludes
oral hearings or neither party requests a hearing). A tribunal’s failure to hear oral
evidence, when requested by a party to do so, would invite annulment of the award for
failure to afford an opportunity to be heard. Consequently, if a party requests a hearing,
it will almost invariably be granted. This does not mean that a party may request a
separate hearing on every issue to arise in a case. Rather, a tribunal may make many
procedural decisions based on written submissions (or telephonic “hearings”) or may
consider multiple (or all) disputed substantive issues at a single hearing.
Most arbitrations of any consequence will involve at least one main evidentiary hearing,
and perhaps also shorter hearings, at which particular witnesses or issues are heard.
Hearings can last anywhere from a few hours, for one or two witnesses, to many months,
for dozens (or even hundreds) of fact and expert witnesses on multiple issues.
In practice, hearings are typically conducted in law firm offices, hotel conference rooms
or specialized centers catering to the arbitration community. An evidentiary hearing in
even medium-sized arbitrations involves substantial logistical effort. Facilities must be
provided for a hearing room to accommodate many people (often, three arbitrators,
several stenographers, two teams of lawyers (of two to two dozen), translator(s) and
witnesses), as well as “break-out” rooms for the tribunal, parties and (sometimes)
witnesses. The hearing room must be equipped with audio-visual capabilities
(microphones, projectors, screens, video equipment and the like).
The central event at most hearings will be the presentation of evidence, and, in
particular, witness examination. In addition, there will typically be presentations at the
P 201 evidentiary hearing from parties’ counsel, often organized as “openings” or “closings.”
There will also be not-infrequent procedural issues that arise (regarding issues ranging
from time-tabling, to admissibility of evidence, to objections to witness examination
questions).
Prior to the hearing, and after consultation with the parties, the tribunal will typically
issue procedural directions for organization of the hearing. The directions will fix the
length of the hearings (usually based on earlier reservations in the arbitrators’ and
counsels’ diaries), the order of oral submissions, the order of witnesses and (ordinarily)
the estimated time for counsels’ oral statements and witness examination. The
evidentiary portion of the hearing will usually be divided, between the two parties’
witnesses, based on equal sharing of available time. It is essential that the identities of
the witnesses who will testify be known in advance, to avoid surprise and permit proper
preparation.
The allocation of time at the hearing is often a controversial issue. On the one hand, both
parties will be anxious to be afforded the maximum opportunity to present their case,
and will be suspicious about their counter-party’s efforts to disadvantage them, to
intrude upon “their” time, or (sometimes) delay the proceedings. On the other hand, the
tribunal will be mindful that time is the scarcest resource in arbitral proceedings.
Determining how much time to allocate for the hearing, and how that time should be
divided between the parties, is one of the tribunal’s most challenging procedural tasks.
Legal traditions differ in their approaches to hearing time. Many common law traditions
permit, in effect, virtually unlimited time for counsel to present their cases; in contrast,
civil law traditions impose strict limits on the parties’ time to present their cases.
International arbitral tribunals usually do not adopt either approach and instead adopt
a model that permits meaningful witness examination and advocacy, while also imposing
time limits and forcing the parties to manage their time wisely. An illustration of a
“normal time” allocation from the Iran-U.S. Claims Tribunal, which is similar to that in
many other contexts, is instructive:
“Introduction by the Chairman 9:30
Claimant’s First Round Presentation 1½ hour maximum
Respondent’s First Round Presentation Lunch 1½ hour maximum
Questions by Arbitrators 15:00
Rebuttal Presentation by Claimant 45 minutes maximum
Rebuttal Presentation by Respondent 45 minutes maximum
Further Questions by Arbitrators, if any” (52)
The basis of the timetable is that each party is allocated equal amounts of time, which is
P 202 planned in advance and which it is free to utilize as it chooses (within general limits).
As a consequence of technological advances and the COVID-19 pandemic, evidentiary
hearings have frequently been conducted “remotely,” by telephonic- or video-
conference, in recent years. Courts, arbitral tribunals and commentators generally agree
that remote hearings can provide parties with an adequate opportunity to be heard. (53)
Indeed, most arbitration legislation and institutional rules refer only to “hearings” or
“oral hearings,” as opposed to “in-person” or “physical” hearings. (54) Parties can make
13
“oral” submissions, and be “heard” and seen, by video-conference as well as in person.
More fundamentally, in most cases, the essential attributes of a traditional in-person
hearing – real time interaction with the tribunal, witnesses and parties, with both visual
and audio connections – are provided by a remote hearing. A “remote hearing” can, in
every meaningful sense, be a “hearing.”
The fact that remote hearings can provide parties an adequate opportunity to be heard
does not mean that every remote hearing in fact does so. There may be circumstances,
involving arbitrators, counsel, or witnesses without access to adequate or reliable
telecommunications, extreme time zone differences, or exceptional needs for in-person
presence that would make a remote hearing unsatisfactory. In general, however, such
cases would be exceptions to the general rule that parties can be heard by video-
conference essentially as well as in person. (55)
[S] Transcripts and Minutes

As with domestic litigations, it is essential that some record be kept of evidentiary
hearings in international arbitration. In cases with common law tribunals, verbatim
stenographic records of hearings are often taken. Civil law tribunals were historically less
likely to provide for stenographic records, but would prepare written minutes
summarizing the proceedings.
The strong tendency in contemporary international arbitration is to provide for verbatim
transcripts of significant evidentiary hearings, save where the size of the case does not
justify the cost. Court reporters or stenographers from common law jurisdictions, as well
as specialized services elsewhere, routinely attend arbitral proceedings and record the
witness examination, just as in common law litigation. A transcript will be circulated to
the parties for correction shortly after the hearing, and a corrected final version can be
relied on in any post-hearing submissions. In many cases, the tribunal’s award will quote
testimony and cite the transcript. In smaller cases, a tape-recording may be taken, which
P 203 may subsequently be reviewed or (infrequently) transcribed at lower cost.
[T] Fact Witnesses

The central event in most evidentiary hearings is the examination of the witnesses –
usually direct, cross and redirect. As with other aspects of arbitral procedure, there is
wide diversity in approaches towards witness testimony.
In some legal systems, interested parties and corporate officers are not permitted to
present testimony in judicial proceedings. That position is very different from common
law evidentiary rules, where testimony by interested parties is admissible, but subject to
impeachment as to credibility. Parties to international arbitrations sometimes rely on
domestic legal rules to argue against the admission of testimony from “interested”
witnesses, contending that such evidence is inherently unreliable.
Despite this, arbitral tribunals virtually always refuse to exclude testimony from
“interested” parties or their employees. (56) Tribunals invariably hold that parties are
entitled to the opportunity to prove their case, including with testimony from the parties
themselves or their representatives. They also permit adverse parties a full opportunity
to challenge the reliability of such testimony, taking such challenges into account in
weighing the evidence.
In dealing with witness testimony, tribunals use care to avoid “surprise” or “ambush”
testimony. In principle, parties are required to provide written witness statements or to
identify witnesses and the substance of their testimony before the hearing. Parties are
not permitted, save in exceptional circumstances, to adduce testimony from a
previously-unidentified witness, during the evidentiary hearing, and significant direct
testimony not mentioned in a witness statement is viewed with caution. (57)
The manner in which evidence is presented at a hearing depends significantly on the
legal backgrounds of the tribunal and counsel for the parties. For example, if opposing
counsel and the chairman are English lawyers, the hearing may be run much like an
English High Court action, complete with barristers, English-style pleadings and
disclosure of documents. Conversely, a tribunal of retired German judges will tend to
conduct hearings involving German counsel along the lines of a German litigation. On the
other hand, if a multinational tribunal and legal advisers of different nationalities are
involved, as is often the case, departures from particular national legal customs are
almost inevitable.
Although every arbitration is unique, the following procedure for witness testimony
(derived from the IBA Rules on the Taking of Evidence) is common. Under this approach,
each party is free to nominate whatever witnesses it wishes to support its case. Only
exceptionally will the tribunal direct that a particular witness be made available by one
of the parties or authorize the parties to request that their adversary produce designated
witnesses. (58)
As discussed above, parties will frequently submit written witness statements (often
attached to their written submissions) setting forth the direct testimony of the witnesses
on whom they rely. If a witness who submitted a statement refuses to testify at the oral
P 204 hearing, the tribunal will usually disregard the statement. This is provided for
14
expressly by the IBA Rules, (59) and is common in practice. If a witness has a compelling
excuse (e.g., illness), then the tribunal may choose to admit the witness statement –
although its credibility will be affected by the lack of cross-examination.
The tribunal has full control over the conduct of witness examination at the hearing. (60)
Where a common law approach is followed, counsel presumptively conducts the (direct
and cross) examinations and the tribunal adds follow-up questions. In civil law
jurisdictions, examination was historically the responsibility of the arbitrators (although
counsel would also often follow-up with questions). In most contemporary arbitrations,
the tribunal will presumptively permit the parties’ attorneys to conduct the direct and
cross-examinations, with occasional interjections and follow-up questions by the
tribunal. Tribunals with a civil law orientation tend to impose greater limits on cross-
examination, in terms of length, scope and counsel’s “control” of a witness. Nevertheless,
tribunals with a common-law focus also impose time limits on cross (and direct)
examination (to expedite proceedings).
In contemporary practice, counsel for the party producing a witness who has submitted a
witness statement will typically conduct a brief direct examination, limited to
confirmation of the statement. In some cases, this “direct” examination will be conducted
by the presiding arbitrator. Tribunals ordinarily disfavor lengthy direct examination, on
the grounds that such matters should have been included in the witness’s written
statement and may encourage ambush testimony. Exceptions will be permitted, but only
for good reason (such as recently-occurring events). (61)
Following direct examination, opposing counsel will have the opportunity for cross-
examination, which is often relatively detailed and in many respects the central event in
the hearing. Cross-examination is sometimes limited to matters addressed in the
witness’s statement, but more frequently may address any matter relevant to the
dispute. In practice, tribunals tend to be reasonably firm in enforcing time limits on
cross-examination and other scheduled events during the hearing.
At any stage in the process of examination, the arbitrators may intervene with their own
questions. In some cases, arbitrators will tend to hold their queries until the parties’
counsel have finished their examination. When the tribunal puts questions to a witness,
counsel will generally be permitted to ask follow-up queries arising out of the tribunal’s
questions.
[U] Expert Witnesses

Expert testimony can be presented through experts appointed by each party and/or by
the tribunal. Most arbitration statutes and institutional rules expressly permit the
P 205 appointment of experts by both the parties and the tribunal. (62)
In practice, different arbitral tribunals take different approaches to the subject of expert
evidence. Tribunals with a common law tenor will ordinarily allow the parties to present
“their” expert witnesses, consistent with the adversarial traditions of common law
systems. In contrast, civil law tribunals tend to be more skeptical about the benefits of
party-nominated experts. Instead, some civil law practitioners, particularly more
traditionally-minded ones, incline towards the use of only tribunal-appointed experts,
which the tribunal will select and instruct. In general, however, tribunals permit parties
to provide “their” own expert testimony if that is the course desired by one or both
parties; a contrary approach would risk denying one or both parties an opportunity to be
heard.
[V] Witness-Conferencing
Various procedural innovations have been suggested to improve the quality of witness
examination in contemporary international arbitration practice. One such innovation is
“witness-conferencing,” where two or more witnesses are simultaneously examined
concerning the same set of issues or events. The purpose of witness-conferencing is to
confront two or more witnesses with potentially-contradictory testimony in order to
identify areas of agreement, force concessions and evaluate the credibility of differing
contentions.
Witness-conferencing requires careful preparation and firm control of both witnesses and
counsel by the tribunal but, properly-implemented, can effectively expose evasions and
inaccuracies. At the same time, witness-conferencing seldom genuinely saves time. On
the contrary, witness-conferencing can take more time, because it is often best used in
addition to, rather than instead of, traditional cross-examination. This enables cross-
examination to identify key areas of disagreement, which can then be focused on in a
witness conference. (63)
[W] Post-Hearing Written Submissions

It is common in many international arbitrations for there to be post-hearing written
submissions. These submissions will be prepared after the transcript of the evidentiary
hearing has been circulated, and will provide a final summation of each party’s position
on the complete evidentiary record. Post-hearing briefs are often submitted
simultaneously, although some tribunals prefer a sequential process (to avoid “ships
15
passing in the night”).
[X] Closing of Arbitral Proceedings

It is important for the tribunal to make an unequivocal close to the submission of
evidence and legal argument by the parties. This gives the parties notice of the date
beyond which they will not be permitted to further argue their case, ensuring that they
focus their energies when the opportunity is available. It also ensures that there will be a
P 206 definite end to the arbitral process, after which the award will be rendered.
Some institutional rules expressly provide for the tribunal to close the proceedings.
Article 27 of the 2021 ICC Rules provides that the tribunal will declare the proceedings
closed “[a]s soon as possible after the last hearing concerning matters to be decided in
an award or the filing of the last authorized submissions concerning such matters,
whichever is later.” Even absent such provisions, experienced tribunals will notify the
parties in advance of a date after which new evidence will not be permitted (a “cut-off”
date) and a date after which no further submissions of any sort will be permitted (“closing
of the proceedings”).
[Y] Ex Parte Proceedings and Default Awards

Although it is almost always a bad idea, parties sometimes boycott arbitration
proceedings. Such maneuvers are usually regretted in the end, after a default award is
made and enforcement efforts begin. A sensible alternative to defaulting, in most cases,
is to proceed under protest while expressly recording objections to the tribunal’s
jurisdiction (including its competence-competence) or impartiality and/or seeking
immediate judicial recourse. Nonetheless, parties sometimes take an alternative course
and simply default in the arbitration.
Most arbitration statutes provide for the possibility of default proceedings. Article 25 of
the UNCITRAL Model Law provides:
“Unless otherwise agreed by the parties, if, without sufficient cause, … (b) the
respondent fails to communicate his statement of defense [within the relevant
time period], the arbitral tribunal shall continue the proceedings without
treating such failure in itself as an admission of the claimant’s allegations.”
Other legislation is similar. (64) In practice, tribunals frequently make default awards
and national courts routinely reject annulment and non-recognition defenses to default
awards. (65)
Most institutional rules also provide that arbitral proceeding may go forward, without the
defaulting party’s presence, to a default award. For example, the UNCITRAL Rules provide
that, if the claimant fails to communicate its claim in due time, the tribunal shall
terminate the arbitration; if the respondent fails to defend, the tribunal “shall order that
the proceedings continue.” (66) The ICC Rules similarly provide for the appointment of an
arbitrator on behalf of the defaulting party and: “If any of the parties, although duly
summoned, fails to appear without valid excuse, the arbitral tribunal shall have the
power to proceed with the hearing.” (67)
Even without express authorization by national law or institutional rules, a tribunal has
the inherent authority to conduct proceedings in the absence of one party and to make a
P 207 default award. Doing so is an essential element of adjudicatory power and is necessary
to ensure an effective arbitral process which one party cannot frustrate through a refusal
to participate.
If a party defaults, the tribunal will ordinarily proceed with the arbitration on an ex parte
basis, ensuring that the defaulting party receives notice of steps in the proceedings.
Importantly, however, a tribunal is not a court, empowered to issue a default judgment
predicated simply on one party’s non-participation. Rather, the tribunal is responsible
for assessing the issues presented to it; a party’s non-participation does not abrogate
that obligation. (68) A tribunal will therefore usually direct the claimant to make written
submissions, present evidence, and, where appropriate, appear at a hearing with its
witnesses. The tribunal will also, without substituting itself for the defaulting party,
generally seek to satisfy itself that the claimant’s claims are well-founded and thereafter
render a reasoned award, setting forth the facts and basis for its decision.
[Z] Deliberations of Arbitrators

After all submissions are completed, the tribunal will retire to deliberate, reach a
decision and make an award. The arbitrators are generally required by mandatory law –
and certainly by custom and contractual intention – to “deliberate” together in a
collegial way in order to reach their final decision. (69) Under most legal systems, arbitral
deliberations are confidential, not to be revealed by the arbitrators to either the parties
or others. (70)
As a practical matter, in multi-member tribunals, the arbitrators’ deliberations can be a
complicated, sometimes slow process. Initially, the tribunal must establish a procedure
for its deliberations, deciding how they wish to go about deciding the substantive issues.
16
The process of establishing the procedures for deliberations is often informal, with the
arbitrators cooperating together, making and changing their thinking as discussions
unfold. In some instances, particularly where the tribunal has failed to establish
collegiate working relations, procedures will be relatively formal. In principle, the
presiding arbitrator will determine the format and timetable for deliberations.
In many cases, the tribunal will reach a unanimous award. Sometimes, all three
arbitrators will agree from the outset on the outcome and analysis and, often with little
debate, the presiding arbitrator can draft the award. In other cases, consensus will be
achieved only after protracted discussion (in which one arbitrator is persuaded to
abandon initial thoughts or in which the tribunal gradually clarifies issues to reach a
common position). In some deliberations, there is a substantial amount of what might
look like “negotiation,” in which different issues are resolved through give-and-take; this
sometimes derives from a purely objective assessment of the merits of different issues
P 208 and sometimes from other factors (including personal egos, partisanship and the like).
The nature of the deliberations among the arbitrators in difficult cases can be affected
by the provisions of the applicable procedural law (or terms of the arbitration
agreement). In some circumstances, a majority award is required (meaning that the
chairman must “win” the vote of at least one of the co-arbitrators), while in many cases
the chairman is able, if necessary, to make an award independently. (71) In the latter
case, the chairman’s influence in the deliberations is much more substantial.
In any event, most presiding arbitrators will want to produce a unanimous award. This
may require substantial patience, listening carefully to the views of one (or two)
unconvinced co-arbitrator(s). Nevertheless, this is an essential part of a chairman’s
function – to ensure that the tribunal has fairly considered all sides of the parties’ cases
before reaching a decision.
[AA] Making and Notification of Award

The final step in most arbitrations is the making and notification of the award. In virtually
all cases, the award is a formal instrument, signed by the members of the tribunal,
reciting the procedural history, facts, legal arguments and conclusions. In practice, many
awards in international arbitration compare favorably to judicial opinions in national
courts; they include discussions of the parties’ positions and the tribunal’s factual and
legal analysis. Depending on the case, an award may range from 10 or 20 pages to several
hundred pages.
As discussed below, the formal aspects of awards are generally regulated by national law
(in the seat), any applicable institutional rules and (rarely) the arbitration agreement. In
most jurisdictions, and under most institutional rules, awards need only be written,
reasoned, signed and dated, and indicate the place of arbitration. (72) This typically
means that multiple, identical copies of the award will be prepared, signed and dated by
the tribunal. In some jurisdictions, further formalities are required, such as depositing
the award with a court. (73)
Some institutional rules impose further requirements, like the ICC Rules (in Articles 34
and 35), which require that awards be scrutinized by the ICC Court. Some institutional
rules also provide that the award will be notified to the parties by the arbitral institution,
rather than the tribunal – which will circulate executed copies of the award to the
parties. As discussed below, arbitration statutes and institutional rules often prescribe
time limits for correcting errors in an award, seeking interpretations or commencing
P 209 actions to annul the award. (74)
§8.08 EVIDENTIARY RULES AND BURDEN OF PROOF

Some legal systems are characterized by detailed rules of evidence and admissibility.
These rules are sometimes invoked in international arbitration; like courts in litigation,
arbitral tribunals must resolve a considerable range of evidentiary issues, often during
the disclosure or discovery process and witness hearing. These issues include the
admissibility and weight of evidence, the relevance of certain lines of questioning,
privilege claims and the like.
In general, arbitration statutes grant arbitrators broad authority to decide these
evidentiary issues. For example, Article 19(2) of the Model Law provides that “[t]he power
conferred upon the arbitral tribunal includes the power to determine the admissibility,
relevance, materiality and weight of any evidence.” Other legislation is similar, and, even
in the absence of statutory provisions to this effect, national courts affirm the tribunal’s
inherently broad evidentiary discretion. (75)
Institutional rules also typically contain general provisions confirming that the tribunal
has control over the arbitral procedure or that the tribunal has the power to determine
the admissibility and weight of evidence. (76) Similarly, the IBA Rules on the Taking of
Evidence provide that “[t]he Arbitral Tribunal shall determine the admissibility,
relevance, materiality and weight of evidence.” (77) Again, even in the absence of such
provisions, tribunals clearly have broad implied authority to resolve issues of
admissibility and weight of the evidence.
17
In practice, tribunals typically do not apply strict rules of evidence, particularly rules of
evidence applicable in domestic litigations. As mentioned above, one of the hallmarks of
international arbitration is the freedom from procedural and evidentiary technicalities.
(78) As one court put it: “The arbitrators appear to have accepted hearsay evidence as
they were entitled to do. If parties wish to rely on such technical objections, they should
not include arbitration clauses in their contracts.” (79) On the other hand, although not
obliged to do so, tribunals are also free to apply evidentiary rules applicable in national
courts (subject to general due process constraints).
Issues of burden of proof frequently arise in arbitration, as in domestic litigation. There is
little authority on the allocation of burdens of proof in arbitral contexts. As one
commentator concludes, “[i]nternational arbitration conventions, national arbitration
laws, compromis, arbitration rules and even the decisions of arbitral tribunals are almost
uniformly silent on the subject of the standard of proof.” (80) Nevertheless, a few
institutional rules address the issue, at least at an abstract level, providing that each
P 210 party bears the burden of providing the facts necessary to its claims or defenses. (81)
This is consistent with arbitral awards and commentary, which cite the general rule of
actori incumbit probatio: each party bears the burden of proving the facts relied on in
support of its case. (82)
In some legal systems, certain allegations require more convincing evidence than others;
the same approach is adopted in international arbitration. For example, allegations of
wrongdoing, particularly serious wrongdoing such as criminal acts, fraud, and the like,
require more convincing evidence than other facts. The Iran-U.S. Claims Tribunal
summarized this approach with regard to bribery: “if reasonable doubts remain, such an
allegation cannot be deemed to be established.” (83) Other awards are to the same
effect. (84)
§8.09 COSTS OF ARBITRATION

International arbitral tribunals generally possess the authority to award the prevailing
party the costs of the arbitration, including its legal costs. In practice, this authority is
frequently exercised; awards of costs can involve substantial financial amounts (not
infrequently involving fees exceeding $10 million) and can have significant tactical
importance.
Many arbitration statutes are silent on the topic of awards of legal costs. For example, the
Model Law, like legislation in the U.S., Switzerland and elsewhere, does not expressly
address the costs of legal representation. (85) Nonetheless, most courts and tribunals
give effect to the parties’ agreement with regard to awards of legal costs. That is true
where the parties agree that the arbitrators shall have the power to make such awards, as
well as where they exclude such awards. (86)
Most institutional rules expressly grant tribunals the power to award the costs of legal
representation; in addition, arbitration agreements sometimes specifically address the
issue. (87) For example, the UNCITRAL Rules provide the tribunal with the authority to “fix
the costs of arbitration” in its award. (88) Article 40 defines the costs of arbitration to
P 211 include the “legal and other costs incurred by the parties in relation to the
arbitration,” but only “to the extent that the arbitral tribunal determines that the amount
of such costs is reasonable.” The UNCITRAL Rules also provide, in Article 42, that “the
costs of the arbitration shall in principle be borne by the unsuccessful party” and that
“the arbitral tribunal may apportion each of such costs between the parties if it
determines that apportionment is reasonable, taking into account the circumstances of
the case.” These provisions grant arbitrators broad discretion with regard to awards of
legal costs, starting from the principle that the prevailing party will be entitled to its
costs.
The 2021 ICC Rules provide, in Article 38(4), that the final award “shall fix the costs of the
arbitration and decide which of the parties shall bear them or in what proportion they
shall be borne by the parties.” The “costs of the arbitration” are defined to include “the
fees and expenses of the arbitrators and the ICC administrative expenses fixed by the
Court, … as well as the fees and expenses of any experts appointed by the arbitral
tribunal and the reasonable legal and other costs incurred by the parties for the
arbitration.” (89)
Unlike the UNCITRAL Rules, the ICC Rules do not prescribe standards for awarding legal
costs, leaving this to the tribunal’s discretion and applicable law. Under Article 38 of the
2021 ICC Rules, the arbitrators’ fees and expenses are fixed by the ICC Court (rather than
the arbitrators), while the allocation of liability for such fees and expenses between the
parties is made by the arbitrators.
The overriding theme of these institutional rules is to grant the tribunal broad powers to
award legal costs; the exercise of these powers is left largely to the arbitrators, with
general references to the degree of a party’s success on its claims and the
reasonableness of a party’s expenses. Most institutional rules also confirm the
arbitrators’ authority to “apportion” legal costs, allowing awards of less than 100% of a
party’s costs.
Even where applicable institutional rules do not expressly grant the tribunal power to
18
award legal costs, the arbitration agreement should be interpreted to impliedly grant
such authority. An implied agreement granting the arbitrators power to award the costs of
the arbitration, including legal costs, is an inherent aspect of the tribunal’s authority
(absent contrary agreement). That position is adopted by the overwhelming weight of
authority. (90)
In order to fulfill its mandate with regard to an award of costs, a tribunal will almost
always direct the parties to make submissions regarding their legal expenses. Such
submissions will usually be written, often consisting principally of documents
(substantiating cost claims); parties are usually reluctant to submit invoices from their
lawyers, for fear of waiving privilege or disclosing confidential information, but
statements from in-house personnel or lawyers’ attestations can provide adequate
alternative proof.
Tribunals frequently permit the parties to make comments on their adversary’s cost
P 212 claims, typically by challenging the reasonableness of such claims. Such comments are
often only in writing, with little or no opportunity for oral submission. The tribunal’s
decision with regard to costs will typically be included in either its final award or,
alternatively, in a separate award on costs, made after the final award dealing with the
merits. As a practical matter, arbitrators in international cases routinely award the costs
of legal representation, usually without detailed substantive or choice-of-law analysis.
Most awards either rely exclusively on grants of discretion (or other standards) pursuant
to applicable institutional rules, or simply award a “reasonable” or “appropriate”
amount. (91)
Where the parties’ agreement addresses legal costs, tribunals will virtually always give
effect to its terms. More frequently, the parties will not have addressed legal costs, or will
have simply granted the tribunal discretion to make an award of legal costs. In exercising
their discretion, tribunals have often awarded some of the costs of legal representation
to the “prevailing party.” In doing so, arbitrators take into account the extent to which
that party recovered what it initially claimed, the extent to which each party’s position
was substantively reasonable, the extent to which a party’s conduct needlessly
P 212 complicated the proceedings and similar factors. (92)
References
1) See supra p. 135.
2) See supra p. 59.
4) UHC Mgt Co. v. Computer Sciences Corp., 148 F.3d 992, 995 (8th Cir. 1998).
5) Team Design v. Gottlieb, 104 S.W.3d 512 (Tenn. Ct. App. 2002).
6) Re Shaw & Sims (1851) 17 LTOS 160 (English Bail Court).
7) UNCITRAL Model Law, Art. 2(d). Judicial authorities are to the same effect. G. Born,
8) See also 2020 LCIA Rules, Art. 14(4) (“parties may agree on joint proposals for the
conduct of their arbitration for consideration by the Arbitral Tribunal”).
9) In re Arbitration Between U.S. Turnkey Exploration, Inc. & PSI, Inc., 577 So.2d 1131, 1135
(La. App. 1991).
11) See, e.g., 2021 ICC Rules, Art. 22(4); 2021 ICDR Rules, Art. 22(1).
12) See, e.g., 2021 ICC Rules, Art. 22(4); 2020 LCIA Rules, Art. 14(1)(i).
14) See supra pp. 45–46, 182 and infra pp. 219–21.
15) Mantilla-Serrano, Towards A Transnational Procedural Public Policy, 20 Arb. Int’l 333
(2004); Schwarz & Ortner, Procedural Ordre Public and the Internationalization of
Public Policy in Arbitration, in C. Klausegger et al. (eds.), 2008 Austrian Arb. Y.B. 133.
16) Article 182(3) of the Swiss Law on Private International Law provides, in mandatory
terms, that: “Whatever procedure is chosen [by the parties or tribunal], the arbitral
tribunal shall assure equal treatment of the parties and the right of the parties to be
heard in an adversarial procedure.” See G. Born, International Commercial Arbitration
2326 (3d ed. 2021).
18) See, e.g., 2020 IBA Rules on the Taking of Evidence; 2004 ALI/UNIDROIT Principles of
Transnational Civil Procedure; infra pp. 221–22. Compare 2018 Prague Rules on the
Efficient Conduct of Proceedings.
19) Baravati v. Josephthal, Lyon & Ross, 28 F.3d 704, 709 (7th Cir. 1994). See also B. Berger
& F. Kellerhals, International and Domestic Arbitration in Switzerland ¶1094 (3d ed.
2015) (parties cannot generally waive right to fair hearing and equal treatment, but
can waive minimum requirement of due process in specified circumstances). See
infra pp. 468–69.
20) English Arbitration Act, 1996, §1(b).
19
22) Compagnie Nationale Air France v. Libyan Arab Airlines, [2000] R.J.Q. 717 (Québec
Super. Ct.).
23) English Arbitration Act, 1996, §1(c) (“in matters governed by this Part the court should
not intervene except as provided by this Part”).
24) See, e.g., French Code of Civil Procedure, Arts. 1464–1476, 1509; Swiss Law on Private
International Law, Arts. 180–187; Belgian Judicial Code, Arts. 1699–1709; Chinese
Arbitration Law, Arts. 39–48; Peruvian Arbitration Law, Art. 3.
25) Stanton v. Paine Webber Jackson & Curtis, Inc., 685 F.Supp. 1241, 1242 (S.D. Fla. 1988).
27) See supra pp. 54–55, 171–72 and infra pp. 225–30, 255–60, 363–441443–90.
28) See G. Born, International Commercial Arbitration 1410–21, 2356–61, 4152–54, 4173–77
(3d ed. 2021).
29) Id. at 2367–75.
30) Report of the Secretary-General on Preliminary Draft Set of Arbitration Rules for
Optional Use in Ad Hoc Arbitration Relating to International Trade, U.N. Doc. A/CN.9/97,
VI UNCITRAL Y.B. 163, 167 (1975).
31) See 2013 UNCITRAL Rules, Art. 3; 2021 ICC Rules, Art. 4(3); 2016 SIAC Rules, Art. 3; 2021
ICDR Rules, Art. 2(3); 2020 LCIA Rules, Art. 1; 2018 HKIAC Rules, Art. 4(1); 2016 KCAB
Rules, Art. 8(3).
32) UNCITRAL Model Law, Art. 29; Swiss Law on Private International Law, Art. 189(2);
Japanese Arbitration Law, Art. 37(3). See also G. Born, International Commercial
34) See supra p. 54, 187–88; G. Born, International Commercial Arbitration 1334–37, 2396–97
(3d ed. 2021).
35) See, e.g., 2013 UNCITRAL Rules, Art. 19(1); 2021 ICC Rules, Art. 20; 2020 LCIA Rules, Art.
17(4); 2021 ICDR Rules, Art. 20; 2018 HKIAC Rules, Art. 15(1); 2017 SCC Rules, Art. 26(1).
36) 2018 Romanian Chamber of Commerce and Industry Rules, Art. 89(1) (Romanian); 2019
Hungarian Chamber of Commerce Court of Arbitration Rules, Art. 4(1) (Hungarian,
English or German); 2019 Polish Chamber of Commerce Arbitration Rules, §21 (Polish),
2015 CIETAC Rules, Art. 81(1) (Chinese).
38) 2021 ICC Rules, Art. 31(1).
39) 2021 ICDR Rules, Art. 33(1).
41) See, e.g., 2013 UNCITRAL Rules, Art. 43; 2021 ICC Rules, Art. 37; 2020 LCIA Rules, Art. 24.
42) See, e.g., 2021 ICC Rules, Art. 37(5); 2021 ICDR Rules, Art. 39(4). Under the ICC Rules, a
party that has already paid in full its share of the advance on costs fixed by the Court
may, in accordance with Article 37(5) of the Rules, pay the unpaid portion of the
advance owed by the defaulting party by posting a bank guarantee. 2021 ICC Rules,
App’x III, Art. 1(7).
43) See, e.g., 2021 ICDR Rules, Art. 10; 2020 LCIA Rules, Art. 22(1)(i).
44) G. Born, International Commercial Arbitration 2425–28, 3499–3503, 3836–39 (3d ed.
2021).
45) UNCITRAL Rules, Art. 25 (providing for further submissions after 45-day period).
46) Crawford, Advocacy Before the International Court of Justice and Other International
Tribunals in State-to-State Cases, in R. Bishop & E. Kehoe (eds.), The Art of Advocacy in
International Arbitration 303, 319 (2d ed. 2010).
47) D. Sandifer, Evidence Before International Tribunals 197 (1975).
48) See 2020 IBA Rules on the Taking of Evidence, Art. 4(3); 2016 SIAC Rules, Art. 25(4);
2020 LCIA Rules, Arts. 20(3), (6); 2017 SCC Rules, Art. 33(2); 2018 Prague Rules on the
Efficient Conduct of Proceedings, Arts. 5(3)-(8).
49) 2020 IBA Rules on the Taking of Evidence, Art. 4(5)(b).
19(1).
51) Article 24(1) of the UNCITRAL Model Law provides: “unless the parties have agreed
that no hearings shall be held, the arbitral tribunal shall hold such hearings at an
appropriate stage of the proceedings, if so requested by a party.” See G. Born,
52) Memorandum from Prof. K.-H. Böckstiegel to Mr. M.K. Eshragh, Agent of the Government
of the Islamic Republic of Iran, and Mr. J.R. Crook, Agent of the Government of the
United States, 26 May 1987, quoted in Holtzmann, Streamlining Arbitral Proceedings:
Some Techniques of the Iran-U.S. Claims Tribunal, 11 Arb. Int’l 39, 47 (1995).
53) See, e.g., Judgment of 23 July 2020, 18 ONc 3/20s (Austrian Oberster Gerichtshof);
Landesbank Baden-Württemberg v. Spain, Decision on the Second Proposal to
Disqualify All Members of the Tribunal in ICSID Case No. ARB/15/45 of 15 December
2020, ¶142; G. Born, International Commercial Arbitration 2432–37 (3d ed. 2021).
54) See, e.g., UNCITRAL Model Law, Art. 24(1); 2013 UNCITRAL Rules, Art. 17(3); 2021 ICC
Rules, Art. 26; 2016 SIAC Rules, Art. 24(1); 2020 LCIA Rules, Art. 19(2); 2015 CIETAC Rules,
Art. 35; 2017 SCC Rules, Art. 32(2); 2018 VIAC Rules, Art. 30; Netherlands Code of Civil
Procedure, Art. 1038b.
57) See id. at 2419–20, 2446–48.
58) See id. at 2375–78, 2455–62.
20
59) 2020 IBA Rules on the Taking of Evidence, Arts. 4(7)-(8).
60) See G. Born, International Commercial Arbitration 2309–18, 2456 (3d ed. 2021).
61) See id. at 2458.
62) See id. at 2448–51. Article 26(1) of the UNCITRAL Model Law authorizes an arbitral
tribunal to appoint “one or more experts to report to it on specific issues to be
determined by the arbitral tribunal,” while Article 23(1) guarantees the parties’
general right to submit evidence. Many national laws and institutional rules are
similar. See also UNCITRAL Rules, Arts. 17(3), 27; 2021 ICC Rules, Art. 25(3); 2021 ICDR
Rules, Art. 28; 2020 LCIA Rules, Art. 21; 2020 IBA Rules on the Taking of Evidence, Art.
5(1).
64) See id. at 2469–72.
65) See id. at 2469–72, 3276–77, 3537, 3871–73.
66) UNCITRAL Rules, Art. 30(1). Article 30(2) provides: “If a party, duly notified under these
Rules, fails to appear at a hearing, without showing sufficient cause for such failure,
the arbitral tribunal may proceed with the arbitration.”
67) 2021 ICC Rules, Art. 26(2). See also 2016 SIAC Rules, Arts. 20(8)-(9); 2021 ICDR Rules,
Arts. 32(1)-(2); 2020 LCIA Rules, Art. 15(8); 2013 AAA Rules, Rule 31; 2018 HKIAC Rules,
Art. 26(2); 2017 SCC Rules, Art. 35; 2019 JCAA Rules, Rule 52(2).
68) See, e.g., UNCITRAL Model Law, Art. 25(c) (“the arbitral tribunal may continue the
proceedings and make the award on the evidence before it”).
69) See G. Born, International Commercial Arbitration 2472–76 (3d ed. 2021). For annulment
and non-recognition of awards based on inadequate deliberations, see id. at 3653–54.
70) See id. at 2148–51, 2472, 3036–39.
71) See infra pp. 347–48; G. Born, International Commercial Arbitration 2191–93, 2474,
3300–04 (3d ed. 2021).
72) See infra pp. 338–40; G. Born, International Commercial Arbitration 2476–77, 3313–21
(3d ed. 2021).
73) See infra p. 353; G. Born, International Commercial Arbitration 2476–77, 3313–21 (3d ed.
2021). Non-compliance with these formalities may result in annulment of the award,
id. at 3462–63, or impede recognition, id. at 4076.
76) See, e.g., 2013 UNCITRAL Rules, Art. 27(4) (“The arbitral tribunal shall determine the
admissibility, relevance, materiality and weight of the evidence offered”); 2021 ICC
Rules, Arts. 22, 24; 2020 LCIA Rules, Art. 22(1)(vi).
77) 2020 IBA Rules on the Taking of Evidence, Art. 9(1).
79) Petroleum Separating Co. v. Interamerican Refining Corp., 296 F.2d 124 (2d Cir. 1961).
80) Pietrowski, Evidence in International Arbitration, 22 Arb. Int’l 373, 374, 379 (2006). See
also Amaral, Burden of Proof and Adverse Inferences in International Arbitration:
Proposal for An Inference Chart, 35 J. Int’l Arb. 1 (2018); M. Kazazi, Burden of Proof and
Related Issues: A Study on Evidence Before International Tribunals passim (1996).
81) See, e.g., 2013 UNCITRAL Rules, Art. 27(1) (“Each party shall have the burden of proving
the facts relied on to support its claim or defense”); 2012 Swiss Rules, Art. 24(1); 2015
CIETAC Rules, Art. 41(1); 2018 HKIAC Rules, Art. 22(1).
82) See, e.g., D. Sandifer, Evidence Before International Tribunals 127 (1975). In general,
although there is little discussion of the issue, the burden of proof appears to be (or
assumed to be) a “balance of probabilities” or “more likely than not” standard. See G.
83) Oil Field of Texas, Inc. v. Iran, Award in IUSCT Case No. 258-43-1 of October 8, 1986, 12
Iran-US CTR 308, ¶25 (1986).
85) A number of states that have adopted the Model Law have added provisions
regarding awards of the costs of arbitration. See G. Born, International Commercial
86) One limited exception is England, where parties are precluded from agreeing, prior
to the dispute arising, that one party pay “the whole or part of the costs of the
arbitration in any event,” regardless of the outcome. G. Born, International
Commercial Arbitration 3341 (3d ed. 2021).
87) Virtually all arbitration regimes give effect to the provisions of institutional rules and
arbitration agreements concerning the tribunal’s power to make an award of legal
costs and the amount of such award. See G. Born, International Commercial Arbitration
2477–78, 3346–49 (3d ed. 2021).
88) 1976 UNCITRAL Rules, Art. 38; 2010 UNCITRAL Rules, Art. 40.
89) 2021 ICC Rules, Art. 38(1). The ICC Rules authorize tribunals to take the parties’
procedural conduct into account in awarding costs: “[i]n making decisions as to costs,
the arbitral tribunal may take into account such circumstances as it considers
relevant, including the extent to which each party has conducted the arbitration in
an expeditious and cost-effective manner.” 2021 ICC Rules, Art. 38(5).
91) See id. at 3350–55.
92) See id.
21
KluwerArbitration
22
KluwerArbitration
Document information Chapter 9: Disclosure and Evidence-Taking in

Publication The arbitral tribunal’s power to require the parties to produce documentary or other
International Arbitration: materials, relevant to resolving the matters in dispute, is a critical aspect of the arbitral
Law and Practice (Third process. The existence and scope of disclosure are issues which arise in many
Edition) international arbitrations, with parties often disagreeing over both the existence and
proper exercise of disclosure authority.
Bibliographic §9.01 AUTHORITY OF ARBITRAL TRIBUNALS OVER DISCLOSURE AND

EVIDENCE-TAKING
reference
'Chapter 9: Disclosure and Virtually all decisions about disclosure in international arbitration are made in the
Evidence-Taking in arbitration itself, by the parties or tribunal, as distinguished from national courts. (This
International Arbitration', reflects the general principle of judicial non-interference, as discussed in Chapter 8
in Gary B. Born , above.) As with other aspects of evidence-taking, disclosure in international arbitration is
International Arbitration: governed in the first instance by the procedural law of the arbitration and the arbitration
Law and Practice (Third agreement (including any applicable institutional arbitration rules). These sources define
Edition), 3rd edition the extent and scope of the arbitral tribunal’s power to order disclosure.
(© Kluwer Law Typically, national law gives effect to the parties’ agreements regarding disclosure and,
International; Kluwer Law in the absence of agreement, recognizes the arbitrators’ inherent authority to order the
International 2021) pp. 213 - parties to disclose evidentiary materials. Less frequently, even absent agreement by the
230 parties, arbitrators are authorized by national law to request third parties to provide
disclosure and, in some instances, obtain judicial assistance in enforcing such requests.
Of equal importance, as a practical matter, a tribunal’s actual exercise of its disclosure
authority depends on a range of factors (including the circumstances and needs of
particular cases, the backgrounds of the arbitrators and parties, the arbitration
agreement and the law and practice of the seat).
Questions about the scope of the arbitrators’ authority arise in two contexts. First, they
may arise in the arbitral proceeding, when the parties make or resist requests for
tribunal-ordered disclosure; in these circumstances, decisions about the scope of
disclosure will be made by the tribunal. Second, as discussed below, a tribunal can
P 214 generally only coercively enforce its disclosure orders by seeking the assistance of
national courts, particularly vis-à-vis third parties; in such enforcement actions, the
extent of the tribunal’s disclosure authority can also arise before a national court.
[A] Arbitral Tribunals’ Disclosure Authority Under National Arbitration Legislation

The arbitral tribunal’s power to order disclosure is defined in the first instance by the
procedural law of the arbitration (virtually always, the law of the arbitral seat). Most
national arbitration legislation recognizes the parties’ autonomy to agree upon the
existence, scope and timing of disclosure (as an aspect of the parties’ general procedural
autonomy); in practice, parties not infrequently agree upon the scope and manner of
disclosure, either in their original arbitration agreement or subsequent discussions.
Where the parties do not agree upon the scope of disclosure, most national arbitration
legislation recognizes the inherent power of arbitral tribunals to order disclosure by the
parties to the arbitration, including the power to determine the scope and procedures for
such disclosure.
[1] UNCITRAL Model Law
The UNCITRAL Model Law does not deal specifically with the subject of disclosure.
Instead, Article 19(1)’s general recognition of the parties’ procedural autonomy applies to
disclosure, just as to other procedural matters. (1) Where the parties’ agreement
addresses issues of disclosure, directly or by incorporating institutional rules, Article 19(1)
requires giving effect to that agreement.
In the absence of any agreement, Articles 19(2) and 27 of the Model Law grant tribunals
broad authority with respect to evaluating evidence (2) and “taking evidence,” (3) but
make no specific reference to “disclosure.” However, the Model Law’s drafting history
leaves no question that a tribunal’s powers include the authority to order disclosure by
the parties. (4) Nothing in the Model Law limits the scope of disclosure that a tribunal is
entitled to order from the parties, with this being left to the arbitrators’ procedural
P 215 discretion.
[2] Other National Legislation

The general approach in most civil law jurisdictions to disclosure parallels the Model
Law. As discussed above, most civil law jurisdictions give effect to agreements by parties
regarding procedural matters. (5) This rule extends to matters of disclosure,
notwithstanding the fact that disclosure was historically almost unknown in domestic
1
civil law litigation systems.
Where no agreement exists, civil law arbitration statutes do not ordinarily address the
subject of disclosure. For example, the Swiss Law on Private International Law is largely
silent on matters of disclosure, only providing generally that the tribunal has authority
over the arbitral procedure and the power to seek judicial assistance in evidence-taking
from national courts. (6) Other civil law arbitration statutes are more explicit than the
Model Law in authorizing the arbitrators to exercise disclosure powers. For example, the
French Code of Civil Procedure expressly authorizes arbitrators to order the parties to
produce evidentiary materials (without addressing disclosure by non-parties). (7) Other
civil law statutes are similar (either expressly or impliedly authorizing orders that the
parties disclose evidentiary materials). (8)
Legislation in common law jurisdictions is often more specific in its treatment of
disclosure in arbitral proceedings. The U.S. FAA expressly addresses the arbitrators’
powers, in U.S.-seated arbitrations, with regard to both parties and non-parties. Section 7
authorizes arbitrators, in a “proper case,” to “summon in writing any person to attend
before them or any of them as a witness and in a proper case to bring with him or them
any book, record, document or paper which shall be deemed material as evidence in the
case,” and to seek judicial assistance if their disclosure orders are not complied with.
Additionally, U.S. state law frequently provides parties to locally-seated arbitrations with
the authority to request the attendance of witnesses and production of documents (for
example, in §17 of the Revised Uniform Arbitration Act or §7505 of the N.Y. C.P.L.R.).
The English Arbitration Act is even more detailed with regard to disclosure than the FAA.
It provides in §34(2)(d) that a tribunal has the power to determine “whether any and if so
which documents or classes of documents should be disclosed between and produced by
the parties and at what stage.” There is no question but that this provision grants
tribunals broad powers to order disclosure by parties to an arbitration. Where the parties
P 216 have agreed to particular disclosure provisions, the Act’s general respect for party
autonomy requires giving effect to such agreements. (9) Other common law arbitration
legislation is similar. (10)
[3] Arbitral Tribunals’ Implied Disclosure Authority
Even in the absence of statutory grants of disclosure powers, most national arbitration
regimes afford tribunals broad inherent authority over the fact-finding process, which
includes authority to order parties to the arbitration to make disclosure. This is
consistent with the historically broad discretion of arbitrators with regard to procedural
and evidence-taking matters, and with the arbitrators’ mandate to resolve disputes in
the manner they deem expedient and just. (11) In principle, the only limitations under
most national laws on the disclosure powers of international arbitral tribunals are those
imposed by the arbitration agreement or principles of equality and due process. That is
true even if applicable arbitration legislation is silent on the subject of disclosure: the
arbitrators’ authority is inherent as part of their overall mandate.
In practice, Arbitral tribunals have repeatedly exercised the authority to order
disclosure, virtually never even questioning whether such power exists. One award
addressed the issue as follows:
“[W]hile the ICC Rules do not contain any provision dealing with ‘discovery’
properly speaking, it is enough to recall here that according to article 4(1) [of
the 1975 ICC Rules], ‘[t]he arbitrator shall proceed within as short a time as
possible to establish the facts of the case by all appropriate measures.’ This
provision allows the arbitrators to ask the parties to produce the documents
in their possession or control, which in their view are relevant to the case.” (12)
Consistent with this, virtually no reported arbitral awards deny the existence of an
arbitrator’s authority to order the parties to disclose materials relevant to the dispute.
[4] Arbitral Tribunals Not Limited to Disclosure and Evidence-Taking Authority of Local
Courts
There are sometimes suggestions that the disclosure or other evidence-taking powers of
tribunals should be limited to those of local courts in the arbitral seat under domestic
rules of civil procedure. Almost all authorities have rejected such arguments. As
discussed above, the procedural law of the arbitration is prescribed by the arbitration
legislation of the arbitral seat, which ordinarily gives effect to the parties’ procedural
autonomy and grants broad procedural discretion to the tribunal, rather than by
domestic court procedures. This principle applies specifically to the disclosure powers of
tribunals – which are not limited by the powers granted to local courts by domestic rules
P 217 of civil procedure. As one commentator has observed, “[d]iscovery which is ordered by
international arbitral tribunals is very different from the discovery ordered by national
courts.” (13)
[B] Arbitral Tribunals’ Disclosure Authority Under Institutional Arbitration Rules

Most institutional rules provide arbitrators, in language of varying degrees of clarity, with
express authority to order disclosure by the parties. Where parties have agreed to
2
arbitrate pursuant to these rules, there is little question regarding the tribunal’s
authority to order disclosure in accordance with them. In practice, tribunals virtually
never conclude that they lack authority to order disclosure under leading institutional
rules, although the scope of the disclosure that is ordered may be very limited.
[1] LCIA Rules
Among leading institutional rules, the 2020 LCIA Rules are most explicit in their treatment
of disclosure. Articles 22(1)(iii) and 22(1)(iv) of the LCIA Rules empower the tribunal “to
conduct such enquiries as may appear to the Arbitral Tribunal to be necessary or
expedient … [and] to order any party to make any documents, goods, samples, property,
site or thing under its control available for inspection by the Arbitral Tribunal, any other
party, any expert to such party, and any expert to the Tribunal.” (14) Article 22(1)(v) goes
on to provide the tribunal with specific powers to order the disclosure of documents: “to
order any party to produce to the Arbitral Tribunal and to other parties documents or
copies of documents in their possession, custody or power which the Arbitral Tribunal
decides to be relevant.” (15)
These provisions grant an LCIA tribunal broad authority to order the parties to the
arbitration (but not non-parties) to make disclosure to one another. They do not address
the procedures by which disclosure is to be ordered, including whether the parties may
make disclosure requests, instead leaving this to the arbitrators’ discretion.
[2] UNCITRAL Rules
The UNCITRAL Rules also confirm the tribunal’s disclosure authority. Article 27(3) of the
Rules permits the tribunal to order the production of “documents, exhibits or other
evidence.” This provision is directed towards the arbitrators’ powers, and does not
expressly provide the parties with the right to request (much less compel) disclosure by
their counter-parties.
However, there is nothing in the UNCITRAL Rules that precludes a tribunal from ordering
discovery of relevant documents, if that is what the tribunal concludes is most
P 218 appropriate. Thus, as the practice of the Iran-U.S. Claims Tribunal confirms, a tribunal
may order discovery of all “relevant” or “material” documents. (16) Nor is there anything
in Article 27(3) that would prevent a tribunal from providing for the parties to make
disclosure requests to one another, with the tribunal granting or denying such requests.
Applying procedural rules modeled on Article 27(3) (formerly Article 24(3) of the 1976
UNCITRAL Rules), the Iran–U.S. Claims Tribunal not infrequently adopted such an
approach, ordering parties to produce documents requested by a counter-party. (17)
[3] ICC Rules
Other institutional rules are less explicit, but nonetheless clearly authorize tribunals to
order disclosure. Article 25(1) of the 2021 ICC Rules is representative, providing that “[t]he
Arbitral Tribunal shall proceed within as short a time as possible to establish the facts of
the case by all appropriate means,” while Article 25(4) provides that the tribunal “may
summon any party to provide additional evidence.” This language does not expressly
empower arbitrators to order disclosure, but in practice ICC tribunals almost uniformly
hold such authority is implicit. (18) Similarly, as with the UNCITRAL Rules, it is clear that
the tribunal’s authority over the evidence-taking and disclosure processes extends to
permitting the parties to make requests for disclosure from their counter-parties, upon
which the tribunal may base its disclosure orders. (19)
[C] Arbitral Tribunals’ Disclosure Powers Generally Limited to Parties

The disclosure powers of the tribunal in international arbitration are ordinarily limited to
the parties to the arbitration and do not extend to non-parties. This limitation is in
substantial part a result of the consensual nature of arbitration. In principle, the powers
conferred by an arbitration agreement (and any institutional rules it incorporates)
extend only to the parties to that agreement. Accordingly, the tribunal will generally lack
authority to order third parties to provide disclosure in the arbitration, just as it will
generally lack the power to grant provisional measures or final relief against non-parties
P 219 to the arbitration.
Nonetheless, there are exceptions to this general rule. As discussed below, there are
instances in which national law grants arbitrators power to take evidence from non-
parties with the judicial assistance from national courts. The UNCITRAL Model Law, the
FAA in the United States and the Swiss Law on Private International Law are leading
examples of this approach. Under these statutes, tribunals have the power to order
disclosure from third parties and, if refused, the parties or the arbitrators may seek
judicial enforcement of the tribunal’s orders. (20)
[D] Arbitral Tribunals’ Exercise of Discretion to Order Disclosure and Structure

Evidence-Taking
As discussed above, arbitration statutes and institutional rules almost universally permit
arbitral tribunals to order the parties to the arbitration to make disclosure of documents
and other materials as part of the evidence-taking process. At the same time, national
3
law and institutional rules provide virtually no guidelines regarding the scope or use of a
tribunal’s disclosure authority. Rather, as a practical matter, scope and procedures for
disclosure in an international arbitration depend on the parties’ agreement and the
tribunal’s exercise of its discretion, largely unconstrained by national law limitations.
Preliminarily, in international arbitration, disclosure not infrequently proceeds with a
measure of agreement, reached between the parties in their arbitration agreement or
during the arbitral proceedings. Arbitration agreements sometimes address the subjects
of disclosure or evidence-taking, for example, by forbidding any disclosure or by
providing for disclosure in accordance with a set of standards (e.g., IBA Rules on the
Taking of Evidence in International Arbitration, Prague Rules on the Efficient Conduct of
Proceedings in International Arbitration, U.S. Federal Rules of Civil Procedure). Even if no
such provision is included in the parties’ agreement to arbitrate, the parties may agree
to use the IBA Rules on the Taking of Evidence before decisions are made by the tribunal
as to disclosure. The parties’ agreement may, for example, select the IBA Rules (together
with a timetable for disclosure requests and responses), define the scope and character
of disclosure by reference to a national law or establish a tailor-made set of procedures
(including standards for disclosure and a timetable for implementation).
Where no agreement between the parties is reached, the arbitrators are required to
decide whether disclosure is appropriate and, if so, what its scope should be and when
and how it should proceed. The tribunal will generally do so after hearing from the
parties what legal and factual issues the case presents, why disclosure is necessary (or
P 220 not) and how each would prefer any disclosure be structured. In practice, the tribunal’s
decisions will usually be issued in procedural orders defining the scope, mechanisms and
timetable of disclosure.
[1] Availability and Scope of Disclosure: Civil Law Versus Common Law
A tribunal’s approach to disclosure (like other aspects of evidence-taking) will inevitably
be significantly influenced by the legal training and experience of its members. In
particular, there historically have been, and still remain, important differences between
civil law and common law approaches to disclosure. (21)
In most civil law jurisdictions, inquisitorial traditions do not provide for party-initiated
(or other) disclosure. Evidence-taking is largely controlled by the court and the parties
have virtually no rights to demand relevant materials from one another or from
witnesses; equally, civil law courts seldom order parties to produce materials which they
had not voluntarily proffered as evidence. Consequently, a tribunal composed entirely of
civil lawyers, particularly civil lawyers with limited international experience, will not
infrequently be reluctant to order disclosure and sceptical about the benefits of such a
procedure.
On the other hand, common law practitioners have historically viewed a broad, party-
initiated disclosure process as an almost inevitable feature of dispute resolution and are
often reluctant to deny either party the use of that right. Thus, a tribunal of three English
or U.S.-trained arbitrators will, in all likelihood, assume that the parties should be
permitted to exchange disclosure requests and that some substantial measure of
document disclosure is essential to a fair and reliable proceeding.
Despite these generalizations, the importance of the differences between civil and
common law backgrounds to the disclosure process is often exaggerated. While
influenced by their legal training, experienced arbitrators in cases with parties of diverse
nationalities will usually seek to arrive at procedural decisions that are “international,”
rather than replicating parochial procedural rules in local courts. Moreover, individual
characteristics of the arbitrators – age, experience, temperament, intelligence, time
commitments – influence their procedural preferences. Also important are the identities
and procedural preferences of counsel to the parties: where both parties’ counsel have
similar expectations and legal backgrounds, this will significantly influence the tribunal’s
procedural decisions.
As a practical matter, the specifics of the parties’ dispute also significantly affect the
availability and nature of disclosure. Indeed, one of the advantages of arbitration is the
possibility of tailoring procedures to a specific set of factual and legal issues to provide
an efficient and accurate fact-finding mechanism. In cases where one party alone has
access to essential factual materials (e.g., a licensee’s sales of a product, the
value/profitability of a business in a post-M&A dispute), disclosure may be particularly
appropriate. On the other hand, where a party seeks to conduct a fishing expedition into
its adversary’s files in order to challenge a witness’s credibility, disclosure will usually be
inappropriate.
The foregoing considerations make it impossible to identify a single “standard” approach
to disclosure in international arbitration. Nevertheless, there is an emerging consensus
P 221 that a measure of document disclosure is desirable in most commercial disputes.
Justice is almost always best served by a degree of transparency, which brings the
relevant facts before the arbitrators; justice, as well as efficiency, is also best served by
ensuring disclosure of the relevant facts sufficiently in advance of the hearing so that the
parties can prepare their cases in light of these facts. This consensus is reflected in the
IBA Rules on the Taking of Evidence (discussed below), as well as in the weight of
4
contemporary arbitral practice. (22)
[2] No Automatic Right of Parties to Request Disclosure
As discussed above, even where disclosure is permitted, institutional rules and national
law generally do not grant the parties any automatic right to make disclosure demands
on other parties (or non-parties) as a matter of course. As a practical matter, disclosure
instead generally occurs only if provided for by the tribunal, usually as part of its initial
procedural timetable for the arbitration; if disclosure is contemplated, that timetable
will provide the parties with specified opportunities to make requests for disclosure (but
not a general, unqualified right to seek discovery). This reflects the practice in
international arbitration for the tribunal to retain reasonably close control over the
proceedings (as distinguished from the party-directed procedures in some common law
jurisdictions).
[3] Commonly-Used Procedural Frameworks for Document Disclosure
Although generalizations are risky, the IBA Rules on the Taking of Evidence set forth a
relatively frequently-used, and sensible, procedure for tribunal-ordered document
disclosure in international arbitration, which seeks to bridge differences between
different legal traditions. Under this procedure, each party will disclose in advance all of
the documents on which it intends to rely in support of its case (usually, but not
invariably, appended to its principal written submission). Thereafter, under Article 3 of
the IBA Rules, each party will be permitted (on or by a date fixed by the tribunal) to
request that specified documents or categories of documents be disclosed by its
adversary. The parties’ document requests are required to detail the relevance and
materiality of the requested documents, by reference to the parties’ submissions
regarding their claims and defenses.
The parties will then typically be allowed a specified time period (generally, a few weeks)
to respond to the document requests, either by producing the requested documents or
setting forth reasons for refusing to do so, including objections on grounds of
immateriality, privilege or burdensomeness. (23) These objections are sometimes
ordered to be presented in the form of a table (occasionally termed a “Redfern
Schedule,” after the arbitrator credited with introducing this mechanism to the
international arbitral process, or the “Stern Schedule,” after the arbitrator identified with
proposed variations to the mechanism) listing categories of documents that are
requested and the objections to production. The requesting party is often permitted a
P 222 brief period of time in which to respond to objections (often also in tabular form).
If a party’s discovery requests are not voluntarily complied with by the adverse party, an
application requesting an order compelling disclosure can be made to the tribunal. The
tribunal will typically encourage the parties to comply voluntarily with one another’s
requests; if its encouragement is not heeded, the tribunal will make an order either
granting or denying the parties’ requests and providing summary explanations for the
tribunal’s rulings. (24)
[4] Scope of Disclosure
One of the most significant issues to arise if disclosure is permitted in an arbitration is
the scope or extent of the materials that must be produced by a party. Although
disclosure in international arbitration is common, the scope of such disclosure continues
to differ significantly from its counterpart in common law courts. As one U.S. court
succinctly put it:
“The fundamental differences between the fact-finding process of a judicial
tribunal and those of a panel of arbitrators demonstrate the need of pretrial
discovery in the one and its superfluity and utter incompatibility in the other.”
(25)
These comments are in fact overbroad. There are cases where disclosure is not
“incompatible” with the arbitral process, but instead essential. Equally, there are many
cases where, for precisely this reason, arbitrators order a considerable measure of
disclosure. Nonetheless, as a practical matter, arbitral tribunals are often reluctant to
order disclosure as readily, or to the same extent, as in many common law litigations.
Rather, in ordering disclosure, arbitrators typically require only production of reasonably
well-identified documents or categories of documents that are material to disputed
issues. Tribunals do not typically require broader document discovery (absent agreement
to this effect by the parties), and sometimes order even more limited disclosure. These
limitations are reflected in the IBA Rules on the Taking of Evidence.
The basic standard established under the IBA Rules is that parties will be required to
produce documents in their possession, custody or control that are relevant and material
to issues in dispute between the parties in the arbitration. According to Article 3(7) of the
2020 IBA Rules:
“The Arbitral Tribunal may order the Party to whom such Request is addressed
to produce any requested Document in its possession, custody or control as to
5
which the Arbitral Tribunal determines that (i) the issues that the requesting
Party wishes to prove are relevant to the case and material to its outcome; (ii)
none of the reasons none of the reasons for objection set forth in Articles 9.2 or
9.3 applies.”
In practice, tribunals generally exercise their disclosure powers consistently with the IBA
Rules. Tribunals are usually unwilling to permit “fishing expeditions” aimed at identifying
possible claims or sources of further inquiry, rather than at adducing evidence in support
P 223 of existing claims. Instead, in most instances, disclosure is ordered only of documents
that are “relevant and material” to issues that are decisive to the “outcome of the case.”
(26)
[5] Privilege
Most national litigation systems recognize various sorts of privilege. Issues of privilege
and related matters often arise in international arbitrations when disclosure is ordered.
These can include traditional testimonial privileges or rules of confidentiality (such as
attorney-client privileges, doctor-patient privileges or state secrets), as well as the
admissibility of settlement communications and communications between counsel. (27)
There is limited authority concerning the treatment of privileges in international
arbitration. Arbitration statutes are uniformly silent regarding the treatment of issues of
privilege. Neither the Model Law, nor any other arbitration legislation, addresses the
subject. The same is true of many institutional rules, including the UNCITRAL, ICC, SIAC,
ICDR, LCIA and ICSID Rules. Nonetheless, tribunals almost uniformly recognize parties’
rights to rely on evidentiary privileges. This is consistent with the general principle that,
unless otherwise agreed, the tribunal in an international arbitration will give effect to the
parties’ legal rights under applicable law. Similarly, national courts have generally
assumed that otherwise-applicable privileges are unaffected either by the parties’
agreement to arbitrate or the fact that it is the tribunal (rather than a court) that has
ordered disclosure. (28)
Assuming that privileges can, in principle, be asserted in international arbitration, the
question arises as to what law governs the existence and scope of a privilege. (29)
Potentially applicable laws include the procedural law of the arbitration, the law
governing the parties’ arbitration agreement and the law most closely connected to the
allegedly privileged communication.
The conflict of laws principles developed in the context of international litigation should,
in principle, be relevant in international arbitral proceedings. This litigation has usually
concerned the privileges associated with legal advisers. In the United States, courts have
looked to the center of gravity of communications, often applying the law of the
jurisdiction in which the lawyer whose communications are at issue is qualified. (30)
Other authorities have looked to the jurisdiction with which communications have their
P 224 “closest connection,” often applying the law of the place where the communication was
made or the client is located. (31) In contrast, a few tribunals have adopted a different
approach, applying the most protective privilege standard applicable to either party to
both parties on the apparent theory of equality of treatment. (32)
[6] Electronic Disclosure
An increasingly common issue in international arbitration is “electronic disclosure” of
emails and other electronic documents (or “e-discovery”). As in national court litigations,
electronic disclosure raises important questions of cost, practicality and timing. In
general, arbitral tribunals have been willing to order, and efficiently manage, the
disclosure of electronic documents as part of their broader mandate of ascertaining the
facts at issue in the arbitration.
[E] Sanctions for Failure to Comply with Disclosure and Other Orders
Parties sometimes fail to comply with an arbitral tribunal’s disclosure orders (for
example, by refusing to produce requested documents). When this occurs, the question
arises as to what sanctions, if any, a tribunal may impose.
In many jurisdictions, arbitrators lack the power to impose criminal or quasi-criminal
sanctions (e. g., civil contempt, monetary fines) like those which may be imposed by a
national court in domestic litigation. Nothing in the Model Law or other leading common
law or civil law arbitration legislation empowers arbitrators to impose fines or other
penalties on either parties or non-parties to an arbitration; there are few exceptions to
this approach (Belgium being most notable). In the absence of such legislation,
commentary and awards frequently observe that arbitrators lack coercive authority. (33)
Despite this, a number of courts have upheld the authority of tribunals to impose
monetary sanctions on a party for its refusal to comply with disclosure orders; it is
difficult to see why, if the parties’ arbitration agreement permits such sanctions, tribunals
should not be free to impose them. (34)
It is possible, but unusual, for arbitrators to seek enforcement of their disclosure orders
in national courts. (As discussed below, many national laws authorize the tribunal and/or
the parties to seek judicial assistance in obtaining disclosure of evidentiary materials
6
that have not been voluntarily produced to the tribunal. (35) ) In general, however, the
delays and uncertainty that arise from applications to national courts ordinarily make
this an unattractive option.
Rather than impose sanctions or seek judicial enforcement of disclosure orders,
arbitrators are more likely to draw adverse inferences from a party’s refusal to produce
P 225 requested documents or witnesses. This authority is recognized in some institutional
rules, as well as the IBA Rules. (36) The tribunal’s power to draw adverse inferences is also
well-recognized in arbitral authority and national court decisions. (37) There are cases
where national courts have concluded that a tribunal exceeded its authority in drawing
adverse inferences, but this is rare.
§9.02 ROLE OF NATIONAL COURTS IN OBTAINING EVIDENCE FOR USE IN

INTERNATIONAL ARBITRATIONS
As discussed above, most disclosure in international arbitration occurs within the context
of the arbitration, between the parties and under the control of the tribunal.
Nevertheless, there are instances in which the tribunal (or, more rarely, the parties) may
seek the assistance of a national court in obtaining disclosure for use in the arbitration.
This is particularly likely where disclosure is sought from non-parties to the arbitration,
but may also be available against parties. Judicial assistance of this sort is available only
when provided for by national law and, as a practical matter, is infrequently sought.
[A] National Arbitration Legislation

Arbitration legislation in many jurisdictions provides that a tribunal may obtain the
assistance of a national court in taking evidence. These legislative provisions are broadly
similar to statutes providing for judicial assistance in granting provisional relief
(discussed below). (38)
[1] UNCITRAL Model Law
Article 27 of the Model Law is representative of arbitration statutes providing for judicial
assistance in evidence-taking. Article 27 provides:
“The arbitral tribunal or a party with the approval of the arbitral tribunal may
request from a competent court of this State assistance in taking evidence.
The court may execute the request within its competence and according to its
rules on taking evidence.”
P 226
The Model Law provides for the tribunal, or a party “with the approval of the arbitral
tribunal,” to seek judicial assistance in evidence-taking. Importantly, Article 27 does not
permit a party – acting without the tribunal’s approval – to seek judicial assistance in
taking evidence. Rather, as with other aspects of the arbitral procedure, the arbitrators
retain control over applications for judicial assistance. It also appears that Article 27 is
available only for tribunals seated within national territory (and not in foreign-seated
arbitrations).
It is generally accepted that the tribunal enjoys broad discretion over evidence-taking
and determining whether particular items are, or are not, evidence. The purpose of
Article 27 of the Model Law is to enable tribunals to seek assistance from courts in
enforcing a disclosure order (not to disable tribunals from ordering and receiving the
production of evidence). The drafting history of the Model Law underscores this point by
explaining that a court “may take the evidence itself … or it may order that the evidence
be provided directly to the arbitral tribunal, in which case the involvement of the court is
limited to exerting compulsion.” (39)
[2] Other National Arbitration Legislation
Likewise, Article 184(2) of the Swiss Law on Private International Law provides that
arbitral tribunals seated in Switzerland may seek the assistance of Swiss courts in taking
evidence:
“If the assistance of state judiciary authorities is necessary for the taking of
evidence, the Arbitral Tribunal or a party with the consent of the Arbitral
Tribunal, may request the assistance of the state judge at the seat of the
Arbitral Tribunal; the judge shall apply his own law.”
Swedish law is similar, with §26 of the Swedish Arbitration Act granting parties to an
arbitration seated in Sweden the right, with the approval of the arbitrators, to seek the
assistance of local courts in sworn witness testimony or the production of documents (“as
evidence”). Other arbitration legislation is comparable. (40)
[3] United States
The FAA adopts a somewhat different approach to court-ordered discovery than the
Model Law. Section 7 of the FAA grants a tribunal seated in the United States authority to
7
order testimony and document production, including by third parties, in certain
circumstances. At the same time, §7 also provides for judicial assistance in taking
evidence at the request of one of the parties to the arbitration (as distinguished from the
arbitrators). If the arbitrators’ orders are not complied with, §7 authorizes the tribunal to
seek judicial assistance in compelling compliance.
U.S. courts have adopted divergent approaches to the scope of judicial assistance in
ordering “discovery” under §7. Some lower courts have held that §7 does not permit a
P 227 tribunal to obtain judicial assistance in obtaining pre-hearing “discovery” from third
parties (whether document disclosure or depositions), but instead only permits a
tribunal to require the production of “evidence” at an evidentiary hearing. (41) Other U.S.
courts appear to have held that §7 allows an arbitrator, in principle, to obtain judicial
assistance to compel third parties to provide pre-hearing discovery, but have limited the
scope of such assistance, requiring either showings of need or materiality. (42) In one
court’s words:
“However great a respect we owe the arbitrators, it is a fact that when the
statute [§7 of the FAA] imposed upon the District Court the duty to determine
whether or not to compel the attendance of a witness and his production of
papers, it imposed upon the Court the duty to determine whether or not the
proposed evidence is material.” (43)
Some U.S. courts have been reluctant to second-guess arbitrators’ determinations
concerning materiality, and have enforced what appear to be fairly broad pre-hearing
disclosure orders issued by arbitrators pursuant to §7, including orders requiring
disclosure from third parties. (44)
Section 7 of the FAA is the leading exception to the general rule that parties (as
distinguished from an arbitral tribunal) cannot independently obtain judicial assistance
from national courts in taking evidence for use in an international arbitration. Applying
the FAA, a number of U.S. courts have held that §7 permits court-ordered discovery at the
request of a party in “exceptional circumstances.” (45) These courts have generally
required a fairly compelling need for particular evidence, that otherwise will likely be
unavailable, in an arbitration, as well as a showing that the tribunal itself is unable to
take or safeguard the evidence.
Nonetheless, a few lower U.S. courts have found what appear to be fairly routine requests
for pre-arbitration disclosure by parties to the arbitration to be sufficiently “exceptional”
to grant relief. These decisions have typically placed emphasis on the absence of any
P 228 delay to the arbitral process resulting from court-ordered disclosure. (46) Despite the
foregoing decisions, some U.S. courts have refused requests by parties for court-ordered
disclosure in aid of arbitration. (47) They have generally cited the concerns identified
above regarding judicial assistance to parties (rather than the arbitrators).
In addition to the FAA, state law in the United States often provides local courts with
authority to order disclosure in connection with locally-seated arbitrations. For example,
§7505 of the N.Y. C.P.L.R. authorizes arbitrators and parties to arbitrations seated in New
York to issue subpoenas demanding the testimony of witnesses or production of
documents; enforcement of the subpoena is, in principle, available in New York courts.
Similar authority exists under §17 of the Revised Uniform Arbitration Act.
[B] Judicial Assistance in Evidence-Taking in “Foreign” Arbitrations

[1] Section 1782
In addition to §7 of the FAA, 28 U.S.C. §1782 grants U.S. courts the power to order discovery
“for use in a proceeding in a foreign or international tribunal.” (48) Section 1782 was
designed principally to provide U.S. judicial assistance in connection with foreign judicial
proceedings. Nevertheless, the provision has been relied upon by some U.S. district
courts for court-ordered discovery in aid of foreign arbitrations. This has raised
significant interpretative issues under §1782, focusing on the provision’s applicability in
the context of international arbitration.
First, there is controversy as to whether an arbitral tribunal may be regarded as a “foreign
or international tribunal” within the meaning of §1782. The plain language of §1782 would
certainly indicate that the provision extends to arbitral “tribunal[s].” Nevertheless, a
number of U.S. courts initially rejected this conclusion, reasoning:
“[T]he fact that the term ‘foreign or international tribunals’ is broad enough to
include both state-sponsored and private tribunals fails to mandate a
conclusion that the term, as used in §1782, does include both…. [W]e are
confident that a significant congressional expansion of American judicial
assistance to international arbitral panels [sic] created exclusively by private
parties would not have been lightly undertaken by Congress without at least a
mention of this legislative intention.” (49)
P 229
On the other hand, a number of more recent U.S. judicial decisions have generally
8
concluded that §1782 does apply to international arbitral proceedings (particularly
investor-state arbitral proceedings). (50)
Second, assuming that §1782 applies in principle to arbitral tribunals, application of the
provision then presents the question of who may seek judicial assistance from a U.S.
court. As noted above, §1782 is by its terms available to both foreign “tribunals” and
“interested person[s]” in such foreign proceedings.
Despite the provision’s expansive text, §1782 should generally not be interpreted to grant
discovery applications by a party to foreign arbitral proceedings, but rather by the
tribunal itself. Except in rare cases, party-initiated discovery in U.S. courts under §1782
could delay and complicate arbitral proceedings, and would be contrary to the parties’
commitment, in their arbitration agreement, to forego dispute resolution mechanisms
outside the arbitral process. These risks are particularly serious where a U.S. court is
asked – without the approval of the tribunal – to “assist” a foreign arbitration. Only in
exceptional cases (where no tribunal has been constituted and where urgent assistance
by a U.S. court is critical to prevent irreparable harm) should a party’s request for
judicial assistance under §1782 in aid of a foreign arbitration be granted.
Third, §1782 is limited to providing U.S. judicial assistance in connection with
proceedings before a “foreign or international” tribunal. Although the matter is not
settled, it is unclear whether this definition would encompass an arbitral tribunal sitting
in the United States; rather, §1782 is arguably likely limited to providing assistance to
tribunals sitting abroad.
[2] Other National Arbitration Legislation
Some arbitration legislation provides for judicial assistance by local courts only to
arbitrations seated locally, not to “foreign” arbitrations. That is true of the UNCITRAL
Model Law (Articles 1(2), 27) and the Swiss Law on Private International Law (Articles
176(1), 184(2)). Other states adopt a more liberal approach. The judicial assistance
authorized by §43 of the English Arbitration Act, 1996, is in general available only in aid of
arbitrations conducted in England, Wales or Northern Ireland, and only as to witnesses
located in the United Kingdom. (51) Nonetheless, §2(3) of the Arbitration Act provides for
the possibility of discretionary judicial assistance in aid of a foreign-seated arbitration.
The most liberal approach to the provision of judicial assistance in aid of a foreign
arbitration is that of the United States. In several decisions, U.S. courts have ordered
P 230 discovery in aid of foreign arbitrations under §7 of the FAA. (52) As discussed above,
judicial assistance in aid of foreign arbitrations has generally been ordered by U.S. courts
under §7 only in “exceptional circumstances,” comparable to those justifying court-
ordered provisional measures. Similarly, as already discussed, a number of U.S. courts
have permitted the use of §1782 in connection with “foreign” arbitrations, seated outside
the United States.
[C] Inapplicability of Hague Evidence Convention to Evidence-Taking in

A leading mechanism for obtaining judicial assistance in taking evidence for use in
litigations in national courts is the Convention on the Taking of Evidence Abroad in Civil
or Commercial Matters (“Hague Evidence Convention”). (53) It is sometimes suggested
that the Convention is available in aid of international arbitral proceedings. The text of
the Convention provides little support for such suggestions. (54) In practice, the
Convention is virtually never raised, much less used, in international arbitral
P 230 proceedings.
References
2) UNCITRAL Model Law, Art. 19(2) (“The arbitral tribunal may, subject to the provisions
of this Law, conduct the arbitration in such a manner as it considers appropriate. The
power conferred upon the arbitral tribunal includes the power to determine the
admissibility, relevance, materiality and weight of any evidence.”).
3) Id. at Art. 27 (“The arbitral tribunal or a party with the approval of the arbitral
tribunal may request from a competent court of this State assistance in taking
evidence. The court may execute the request within its competence and according to
its rules on taking evidence.”). See infra p. 255.
4) See Report of the Secretary-General on the Analytical Commentary on Draft Text of A
Model Law on International Commercial Arbitration, U.N. Doc. A/CN.9/264, Art. 19, ¶6,
XVI Y.B. UNCITRAL 104 (1985).
9
6) Swiss Law on Private International Law, Arts. 182(2), 184. The same is true for German
and Austrian law. German ZPO, §1042; Austrian ZPO, §594. The right to seek judicial
assistance in obtaining evidence implies a power to order disclosure of evidence by
the parties. See, e.g., Swiss Law on Private International Law, Art. 184(2) (“If the
assistance of state judiciary authorities is necessary for the taking of evidence, the
arbitral tribunal or a party with the consent of the arbitral tribunal may request the
assistance of the state judge at the seat of the arbitral tribunal; the judge shall apply
his own law”).
7) French Code of Civil Procedure, Art. 1467(3) (“If a party is in possession of an item of
evidence, the arbitral tribunal may enjoin that party to produce it, determine the
manner in which it is to be produced and, if necessary, attach penalties to such
injunction”).
8) See, e.g., Belgian Judicial Code, §1700(4) (“If a party holds a piece of evidence, the
arbitral tribunal may enjoin it to disclose the evidence …”); Japanese Arbitration Law,
Art. 32(3) (“hearings for the purpose of … inspection of goods, other property or
documents”).
9) English Arbitration Act, 1996, §§1(b), 34(1).
12) Order in ICC Case No. 5542, in D. Hascher (ed.), Collection of Procedural Decisions in ICC
Arbitration 1993–1996 62, 64–65 (1997). See G. Born, International Commercial
13) Order in ICC Case No. 5542, in D. Hascher (ed.), Collection of Procedural Decisions in ICC
Arbitration 1993–1996 62 (1997).
14) 2020 LCIA Rules, Art. 22(1)(iii)-(iv).
15) Id. at Art. 22(1)(v).
16) D. Caron & L. Caplan, The UNCITRAL Arbitration Rules: A Commentary 567 (2d ed. 2013)
(“Rather than a standard of possibly relevant, the party requesting the production
must establish the materiality of the documents to a claim or defense”).
17) See, e.g., INA Corp. v. Iran, Award in IUSCT Case No. 184-161-1 of 13 August 1985, 8 Iran-
US CTR 373, 382 (1985).
19) See, e.g., Order in ICC Case No. 13225, excerpted in ICC, Decisions on ICC Arbitration
Procedure (2003–04) 97 (2010) (“The parties shall … as the case may be, request the
production of specific documents or witness testimony of documents/witnesses over
which it has no control”); Order in ICC Case No. 12761, excerpted in id. at 72 (“On the
condition that they are identified in detail, the Arbitral Tribunal may order the
Parties to produce those relevant documents which are within their [possession] and
which have not been presented. The Arbitral Tribunal will exercise this power on its
own authority or on petition of a party.”); Order in ICC Case No. 12296, excerpted in id.
at 45 (“each Party shall submit to the Arbitral Tribunal and to the other Party any
Request to Produce Documents”). See also D. Caron & L. Caplan, The UNCITRAL
Arbitration Rules: A Commentary 587–600 (2d ed. 2013) (miscellaneous disclosure
orders).
20) Under the IBA Rules on the Taking of Evidence, a party seeking disclosure from third
parties may request the tribunal to exercise whatever powers it may have under
relevant national law. 2020 IBA Rules on the Taking of Evidence, Art. 3(9) (“If a Party
wishes to obtain the production of documents from a person or organisation who is
not a Party to the arbitration and from whom the Party cannot obtain the documents
on its own, the Party may, within the time ordered by the Arbitral Tribunal, ask it to
take whatever steps are legally available to obtain the requested documents. … The
Arbitral Tribunal shall decide on this request and shall take the necessary steps if in
its discretion it determines that the documents would be relevant and material.”).
22) See id. at 2532–40.
23) 2020 IBA Rules on the Taking of Evidence, Arts. 3(4)-(5), 9(2)-(3).
25) Commercial Solvents Corp. v. Louisiana Liquid Fertilizer Co., 20 F.R.D. 359 (S.D.N.Y. 1957).
26) Documents need only be prima facie relevant and material to resolution of the
parties’ dispute – in the sense that they appear likely to contain information
material to resolving what appear to be disputed issues. At the stage of document
disclosure it is impossible to be certain that particular documents will in fact
contain relevant information, or that this information will be material: the most that
can be done is make prima facie judgments of likely materiality. See G. Born,
27) See id. at 2549–62.
28) See id. at 2553–54.
29) Although most developed states recognize the existence of privileges, there are
significant differences in the nature and scope of privileges in different legal
systems. In particular, there are differences in the categories of privilege that are
recognized, the treatment of waiver of privileges, the persons entitled to invoke
privileges (e.g., in-house counsel) and the scope of privileges. As a consequence,
choice-of-law disputes frequently arise regarding the existence and contents of
privileges in international arbitration.
10
30) G. Born & P. Rutledge, International Civil Litigation in United States Courts 994–95 (6th
ed. 2018).
31) Id. at 2558–61.
32) Investment arbitrations can raise particular issues of privilege concerning the effects
of “state secrets” or similar claims to governmental secrecy.
34) See, e.g., Superadio Ltd P’ship v. Winstar Radio Prods., LLC, 844 N.E.2d 246 (Mass. 2006)
(“The [provisions of the AAA Rules granting arbitrators’ remedial and discovery
authority], construed together, and supported by the broad arbitration provision in
the agreement and the absence of any limiting language prohibiting a monetary
sanction for discovery violations, authorized the panel to resolve discovery dispute
by imposing monetary sanctions”).
36) See 2020 IBA Rules on the Taking of Evidence, Arts. 9(6), 9(7) (“If a Party fails without
satisfactory explanation to make available any other relevant evidence, including
testimony, sought by one Party to which the Party to whom the request was
addressed has not objected in due time or fails to make available any evidence,
including testimony, ordered by the Arbitral Tribunal to be produced, the Arbitral
Tribunal may infer that such evidence would be adverse to the interests of that
Party”).
37) See, e.g., Award in ICC Case No. 15248, in J.-J. Arnaldez, Y. Derains & D. Hascher (eds.),
Collection of ICC Arbitral Awards 2012–2015 135, 139 (2018); Final Award in ICC Case No.
6497, XXIV Y.B. Comm. Arb. 71, 75–79 (1999); INA Corp. v. Iran, Award in IUSCT Case No.
184-161-1 of 13 August 1985, 8 Iran-US CTR 373, 382 (1985); Forsythe Int’l, SA v. Gibbs Oil
Co., 915 F.2d 1017, 1023 n.8 (5th Cir. 1990). See also G. Born, International Commercial
39) Report of the Secretary-General on the Analytical Commentary on Draft Text of A Model
Law on International Commercial Arbitration, U.N. Doc. A/CN.9/264 (1985).
41) See, e.g., Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145,
1160 (11th Cir. 2019) (“we conclude that 9 U.S.C. §7 does not permit pre-hearing
depositions and discovery from non-parties”); CVS Health Corp. v. Vividus, LLC, 878
F.3d 703 (9th Cir. 2017) (“the FAA does not grant arbitrators the power to compel the
production of documents from third parties outside of a hearing”). See G. Born,
42) See, e.g., COMSAT Corp. v. Nat’l Science Found., 190 F.3d 269, 271 (4th Cir. 1999) (Section
7 “does not authorize an arbitrator to subpoena third parties during pre-hearing
discovery, absent a showing of special need or hardship”); G. Born, International
43) Oceanic Transp. Corp. of Monrovia v. Alcoa Steamship Co., 129 F.Supp. 160 (S.D.N.Y.
1954).
45) See, e.g., In re Deiulemar Compagnia di Navigazione SpA v. MV Allegra, 198 F.3d 473,
479–81 (4th Cir. 1999) (extraordinary circumstances before permitting court-ordered
pre-hearing discovery); COMSAT Corp., 190 F.3d at 278.
46) See, e.g., Int’l Ass’n of Heat & Frost Insulators & Asbestos Workers v. Leona Lee Corp.,
434 F.2d 192 (5th Cir. 1970) (apparently not requiring any showing of exceptional
circumstance); Bigge Crane & Rigging Co. v. Docutel Corp., 371 F.Supp. 240 (E.D.N.Y.
1973) (relying principally on size of claim, minimal cost of court-ordered discovery
and absence of any showing that arbitration would be delayed).
47) See, e.g., Nat’l Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999)
(“Section 7 explicitly confers authority only upon arbitrators; by necessary
implication, the parties to an arbitration may not employ this provision to subpoena
documents or witnesses”) (emphasis added); Suarez-Valdez v. Shearson Lehman/Am.
Express, Inc., 858 F.2d 648 (11th Cir. 1988).
48) 28 U.S.C. §1782 (“The district court of the district in which a person resides or is found
may order him to give his testimony or statement or to produce a document or other
thing for use in a proceeding in a foreign or international tribunal. The order may be
made pursuant to a letter rogatory issued, or request made, by a foreign or
international tribunal or upon the application of any interested person and may
direct that the testimony or statement be given, or the document or other thing be
produced, before a person appointed by the court.”).
49) Nat’l Broadcasting Co., 165 F.3d 184.
51) English Arbitration Act, 1996, §43(3).
52) See, e.g., In re Deiulemar Compagnia di Navigazione SpA v. MV Allegra, 198 F.3d 473 (4th
Cir. 1999) (permitting discovery in aid of a foreign arbitration in “exceptional
circumstances”); Commercial Solvents Corp. v. Louisiana Liquid Fertilizer Co., 20 F.R.D.
359 (S.D.N.Y. 1957) (state court will not grant examinations before trial in arbitration
proceedings except under “extraordinary circumstances”); In re Compañía Chilena de
Navegacion, 2004 WL 1084243, at *3 (E.D.N.Y.) (observing that one of the “exceptional
circumstances” in which discovery has been deemed proper is where a foreign vessel
is about to leave port”).
11
53) Under the Convention, a “judicial authority” in one Contracting State may send a
“letter of request” to the Central Authority of another Contracting State, seeking
assistance in obtaining evidence. The receiving state is, in general, obliged to assist
the requesting judicial authority. See G. Born & P. Rutledge, International Civil
Litigation in United States Courts 1024–25 (6th ed. 2018).
54) Article I(2) of the Convention provides that “A Letter [of Request] shall not be used to
obtain evidence which is not intended for use in judicial proceedings, commenced or
contemplated.” (emphasis added) Despite the arbitrators’ adjudicatory powers and
responsibilities, it is difficult to describe an arbitral tribunal as “judicial authority.”
It is equally difficult to conceive that the Convention’s drafters contemplated that
arbitral tribunals would be permitted to directly send letters of request to foreign
Central Authorities or courts.
KluwerArbitration
12
Thursday, August 10, 2023: Non-Signatories, Multi-Party Issues, and Motions Practice
• Non signatories and Multi-Party Issues

• Provisional Measures
• Emergency Arbitration
Core Readings: Born, Chapters 5, 12, and 11.

KluwerArbitration
Document information Chapter 5: International Arbitration Agreements: Non-

Signatory Issues
Publication As discussed above, international arbitration is fundamentally consensual. As a
International Arbitration: consequence, an arbitration agreement binds (and benefits) only the agreement’s
Law and Practice (Third parties, and not others. Presumptively, and in most instances, the parties to an
Edition) arbitration agreement are its formal signatories. Nonetheless, there are circumstances in
which non-signatories may be held to be parties to – and consequently both bound and
benefited by – an arbitration agreement.
Bibliographic §5.01 NON-SIGNATORIES TO ARBITRATION AGREEMENTS
reference As already noted, the parties to an arbitration agreement are usually its formal
'Chapter 5: International signatories. Conversely, it is also clear that entities that have not formally executed an
Arbitration Agreements: arbitration agreement, or the underlying contract containing an arbitration clause, may
Non-Signatory Issues', in be bound by the agreement to arbitrate. As one court explained:
Gary B. Born , International
Arbitration: Law and “Arbitration is consensual by nature…. It does not follow, however, that … an
Practice (Third Edition), 3rd obligation to arbitrate attaches only to one who has personally signed the
edition (© Kluwer Law written arbitration provision…. A non-signatory party may be bound to an
International; Kluwer Law arbitration agreement if so dictated by the ‘ordinary principles of contract
International 2021) pp. 113 - and agency.’” (1)
121
A variety of legal theories have been invoked under different legal systems to bind
entities that have not executed an arbitration agreement. These include alter ego,
agency (actual and apparent), “group of companies,” estoppel, legal succession, third
party beneficiary, implied consent, guarantor, ratification, assignment and assumption
theories. In each instance, non-signatories of a contract can be bound by, and may
P 114 invoke, the contract’s arbitration clause.
Bases for Subjecting Non-Signatory to Arbitration Agreement
1. Agency
2. Alter Ego and Veil-Piercing
3. “Group of Companies”
4. Succession (Merger Business Combination)
5. Assignment or Transfer
6. Estoppel
7. Corporate Officers and Directors
8. Implied Consent
[A] Agency
The simplest circumstance in which a non-signatory is bound by an arbitration agreement
is when an agent executes a contract for its principal. It is well-settled, in most legal
systems, that one party (an “agent”) may in certain circumstances legally bind another
party (a “principal”) by its acts. Among other things, an agent may enter into contracts,
including arbitration agreements, which will be legally binding on its principal, although
not necessarily on the agent. For the most part, general principles of agency law have
been applied in the specific context of international arbitration agreements. In the words
of one court, “[the] theories under which non-signatories may be bound to the arbitration
agreements of others … arise out of common law principles of contract and agency law.”
(2)
Closely related to agency is the doctrine of ostensible or apparent authority. Under this
doctrine, a party may be bound by another entity’s acts, even where those acts were
unauthorized, if the putative principal created the appearance of authorization, leading
a counter-party reasonably to believe that an agency relationship existed. The theory of
apparent authority can bind the “apparent” principal to a contract (including an
arbitration agreement) entered into putatively on its behalf by the “apparent” agent.
[B] Alter Ego and Veil-Piercing

Many authorities hold that a party who has not assented to a contract containing an
arbitration clause may nonetheless be bound by the clause if that party is an “alter ego”
of an entity that did execute, or was otherwise a party to, the agreement. The alter ego
P 115 doctrine is referred to in German as “Durchgriff,” in French as “levée du voile social,” in
Spanish as “levantamiento del velo societario,” and in some English language contexts as
“veil-piercing” or “lifting the corporate veil.”
1
Definitions of “alter ego” vary widely and are applied in a number of different contexts. In
the context of arbitration agreements, demonstrating an “alter ego” relationship in most
legal systems requires convincing evidence that one entity dominated the day-to-day
actions of another and that it exercised this power to work fraud or other injustice on a
third party or to evade statutory or other obligations. (3) The alter ego doctrine differs
from principles of agency, in that the parties’ intentions are not decisive; rather, the
doctrine rests on overriding considerations of fairness and equity, which mandate
disregarding an entity’s separate legal identity in specified circumstances. Courts are
circumspect in applying the alter ego doctrine; an alter ego relationship may generally
be found only in exceptional cases, where the corporate form is abused to evade
mandatory legal obligations or frustrate legitimate third party rights.
[C] “Group of Companies” Doctrine

A significant, but controversial, basis for binding non-signatories to an arbitration
agreement is the “group of companies” doctrine. Under this principle, non-signatories of
a contract may be deemed parties to the associated arbitration clause based on factors
which are roughly comparable to those relevant to alter ego analysis. In particular, where
a company is part of a corporate group, is subject to the control of (or controls) a
corporate affiliate that has executed a contract, and is involved in the negotiation or
performance of that contract, then it may in some circumstances invoke or be subjected
to an arbitration clause contained in that contract, notwithstanding the fact that it has
not executed the contract. (4)
A seminal group of companies decision is the Dow Chemical award. There, an arbitral
tribunal concluded that “irrespective of the distinct juridical identity of each of its
members, a group of companies constitutes one and the same economic reality,” and
that the arbitration clause bound all of the companies in a corporate group, which:
“by virtue of their role in the conclusion, performance, or termination of the
contracts containing said clauses, and in accordance with the mutual
intention of all parties to the proceedings, appear to have been veritable
parties to these contracts or to have been principally concerned by them and
the disputes to which they may give rise.” (5)
P 116 Other awards (and, in a few cases, court decisions) have adopted similar conclusions.
In contrast, a number of national courts have rejected the group of companies doctrine,
albeit often with limited analysis. One English court held that “the group of companies
doctrine … forms no part of English law,” (6) and other courts have annulled awards which
relied on the group of companies doctrine to hold a non-signatory party bound by an
arbitration agreement. (7)
[D] Succession
An entity that does not execute an arbitration agreement may become a party thereto by
way of legal succession. The most common means of such succession is by a company’s
merger or combination with the original party to an agreement. In many states, the
consequence of a “merger” between two companies is that the “surviving” entity will be
the owner of all the assets and liabilities (including contract rights and obligations) of the
previously-existing entities. When such a combination occurs, most national laws provide
that the surviving entity succeeds by operation of law as a party to the contracts,
including the arbitration agreements, of the previously-existing entities. Thus, if A and B
enter into a contract, containing an arbitration clause, and B later merges into C, then C
ordinarily becomes a party to both the contract and the arbitration agreement, by
operation of law.
[E] Assignment or Transfer

Contracts are frequently transferred from one party to another by way of assignment,
novation or assumption. Some early decisions suggested that arbitration agreements
were not capable of being transferred, apparently on the theory that they were
“personal” obligations, which were binding upon only the original parties. (8) These
decisions have been superseded, and it is now universally accepted that parties have the
contractual autonomy to transfer or assign arbitration agreements, just as they have the
power to transfer other types of contracts.
In principle, the assignment of a contract should have the effect of conveying the
arbitration clause associated with the underlying contract to the assignee (at least
absent a contractual or legal prohibition that renders the assignment ineffective). (9)
Thus, in many jurisdictions, there is a presumption of “automatic” assignment of the
P 117 arbitration clause together with the underlying contract. (10)
There are often contractual limits on assignment in commercial agreements that may
forbid one party from assigning the underlying contract, either absolutely or without its
counter-party’s consent. If the assignment of the underlying contract and the arbitration
clause are in violation of a contractual restriction, then the putative assignee arguably
has no rights or obligations under the arbitration clause (since the contract and
2
arbitration clause were arguably never assigned). (11)
[F] Estoppel
A number of authorities have recognized estoppel or related doctrines as a basis for
either permitting a non-signatory to invoke an arbitration agreement or holding that a
non-signatory is bound by an arbitration agreement. These authorities have held that,
where a non-signatory claims or exercises rights as a party under a contract, which
contains an arbitration clause, the non-signatory will typically be estopped from denying
that it is a party to the arbitration clause. As one U.S. court put it: “In short, [plaintiff]
cannot have it both ways. It cannot rely on the contract when it works to its advantage
and ignore it when it works to its disadvantage.” (12) Similarly, where a party invokes an
arbitration clause in national court proceedings, claiming rights under that clause, it will
ordinarily be estopped from subsequently denying that it is bound by the arbitration
agreement in other proceedings. (13)
Some U.S. courts have gone further, adopting a theory of “equitable estoppel” and
holding that a party that receives a “direct benefit” under a contract is estopped from
denying that it is a party to the contract’s arbitration clause. (14) Outside the United
States, some courts are more reluctant to apply estoppel principles broadly in the
context of arbitration agreements.
[G] Corporate Officers and Directors

Some national courts have permitted the officers and directors of a corporate party to
invoke the arbitration clause in that party’s underlying commercial contracts,
notwithstanding the fact that individual officers and directors are not parties to the
underlying contract under ordinary contractual principles; for example, if Company A and
P 118 Company B conclude an arbitration agreement, then the Chief Executive Officer of
Company B may be permitted to invoke the agreement if he or she is sued personally by
Company A. (15) Decisions in a few other jurisdictions adopt similar reasoning. (16)
These decisions are not unanimously followed. One U.S. court rejected them on the
following grounds:
“[C]ourts must not offer contracts to arbitrate to parties who failed to
negotiate them before trouble arrives. To do so frustrates the ability of
persons to settle their affairs against a predictable backdrop of legal rules –
the cardinal principle to all dispute resolution.” (17)
[H] Implied Consent

Under most developed legal systems, an entity may become a party to a contract,
including an arbitration agreement, impliedly – typically, either by conduct or non-
explicit declarations, as well as by express agreement or formal execution of an
agreement. (18) The fundamental question in the context of implied consent is whether
the parties’ objective intention was that a particular entity be a party to the arbitration
agreement.
For example, where a party conducts itself as if it were a party to a commercial contract,
by playing a substantial role in negotiations and/or performance of the contract, it may
be found to have impliedly consented to be bound by the contract. (19) On the other
hand, merely incidental involvement in negotiations or performance has been
consistently held to be insufficient to constitute implied consent. (20)
Implied consent to be bound by the arbitration clause in one contract can also be
inferred from a party’s conclusion of a related agreement. (21) There are also instances in
which a party’s conduct after a dispute arises evidences its implied consent to an
P 119 arbitration clause; a classic example is where a non-signatory party affirmatively
invokes an arbitration clause or fails to object when another party invokes the clause
against it. (22)
§5.02 FORMAL VALIDITY AND NON-SIGNATORIES

Application of an arbitration agreement to a non-signatory raises questions of formal
requirements, under many legal regimes, for a “written” arbitration agreement. Those
authorities which have addressed the issue have adopted a variety of means of satisfying
or avoiding applicable form requirements in non-signatory contexts.
There is no rule forbidding an agreement from being signed by one entity on behalf of
another entity (most obviously, in the case of agency relations). For example, although
Article II(2) of the New York Convention requires an arbitration agreement that is “signed
by the parties,” it is clear that a “party’s” signature can be provided by another entity on
its behalf (most obviously, an agent, alter ego or merger partner). To the same effect, one
may also reason that the “writing” requirement of the Convention and most national laws
can be satisfied by the existence of a written arbitration agreement, which is consented
to by a non-signatory via an “exchange” of writings (e.g., guarantees, assignments, agency
agreements, other written communications). More broadly, some authorities have held
that form requirements apply only to the initial arbitration agreement itself and not to
3
extra-contractual mechanisms by which an entity may succeed to or assume a party’s
obligations and rights under that agreement (e.g., by merger, group of companies
doctrine, alter ego theory); this reduces the relevance of form requirements in non-
signatory contexts to a very small set of cases. (23)
§5.03 CHOICE OF LAW GOVERNING NON-SIGNATORY ISSUES

The choice of law governing non-signatory issues is poorly-defined. Some authorities have
held that non-signatory issues are governed by the law governing the existence and
P 120 substantive validity of the arbitration agreement. (24)
In many instances, however, courts and tribunals have not applied the law governing the
substantive validity of the arbitration agreement to non-signatory issues. Instead, a
number of courts and tribunals have applied international principles to claims made
under the group of companies, estoppel and alter ego doctrines. In other contexts,
involving issues of agency, assignment, merger and guarantee/ratification, courts and
tribunals have generally applied national law to non-signatory issues – typically applying
a national law chosen to govern the agency, assignment, succession or guarantee
relationship itself, rather than the law governing the substantive validity of the
arbitration agreement.
§5.04 ALLOCATION OF COMPETENCE TO DECIDE NON-SIGNATORY ISSUES

Determining the identities of the parties to an arbitration agreement gives rise to
questions concerning the allocation of jurisdictional competence between courts and
arbitrators. Consistent with the competence-competence doctrine, arbitral tribunals
have almost uniformly concluded that arbitrators have the authority to consider whether
the arbitration agreement was binding on particular entities (under Article 16 of the
Model Law and equivalent provisions in other arbitration statutes (25) ). Similarly, most
courts have applied generally-applicable principles of national law to the allocation of
competence between courts and tribunals to decide non-signatory issues. (26) In
practice, arbitral tribunals frequently consider and resolve claims that non-signatories
are subject to their jurisdiction, hearing evidence and argument in the same manner that
other jurisdictional and substantive issues are considered.
§5.05 NON-SIGNATORY ISSUES AND INSTITUTIONAL ARBITRATION RULES

Non-signatory issues often arise in the course of institutional arbitrations, particularly at
the outset of arbitral proceedings. Some institutional rules contain provisions regarding
selection of arbitrators in multiparty cases (27) or consolidation and intervention, (28)
which can affect the handling of non-signatory issues. Moreover, some institutional rules
contain provisions regarding institutional review of prima facie jurisdiction, which can
also affect the handling of non-signatory issues. (29) For the most part, however, it is the
arbitral tribunal, rather than the arbitral institution, that has the authority to address
P 120 non-signatory issues in institutional arbitrations, as well as in ad hoc arbitrations.
References
1) Thomson-CSF, SA v. Am. Arb. Ass’n, 64 F.3d 773, 776 (2d Cir. 1995). See also GE Energy
Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637,
1643 (U.S. S.Ct. 2020) (“arbitration agreements may be enforced by nonsignatories
through ‘assumption, piercing the corporate veil, alter ego, incorporation by
reference, third-party beneficiary theories, waiver and estoppel’”).
2) Thomson-CSF SA, 64 F.3d at 776. See G. Born, International Commercial Arbitration 780–
81, 1531–37 (3d ed. 2021).
3) See G. Born, International Commercial Arbitration 1545 et seq. (3d ed. 2021). In the
United States, overcoming the presumption of separateness requires showing: (a) the
domination and control of a corporate affiliate, including disregard of corporate
formalities, such that it has no separate identity or existence; and (b) fraudulent or
collusive misuse of that control, or equivalent misconduct, to the injury of other
parties.
4) Id. at 1558–68.
5) Dow Chem. France v. ISOVER St. Gobain, Interim Award in ICC Case No. 4131 of 23
September 1982, IX Y.B. Comm. Arb. 131, 136 (1984).
6) Peterson Farms Inc. v. C&M Farming Ltd [2004] 2 Lloyd’s Rep. 603, ¶62 (QB) (English
High Ct.).
7) Judgment of 20 January 2006, Case No. LJN:AU4523, ¶4.5 (Netherlands Hoge Raad)
(affirming annulment of arbitral award binding non-signatory affiliates). See G. Born,
8) See, e.g., Cottage Club Estates Ltd v. Woodside Estates Co. (Amersham) Ltd [1928] 2 KB
463 (English High Ct.).
4
10) See, e.g., Andermann v. Sprint Spectrum LP, 785 F.3d 1157 (7th Cir. 2015) (arbitration
agreement invoked by agent of assignee); Asset Allocation & Mgt Co. v. W. Employers
Ins. Co., 892 F.2d 566, 574 (7th Cir. 1989) (arbitration agreement may be invoked
against assignee); Star-Kist Foods, Inc. v. Diakan Hope, SA, 423 F.Supp. 1220, 1222–23
(C.D. Cal. 1976); Judgment of 9 May 2001, 20 ASA Bull. 80 (Swiss Fed. Trib.) (2002).
11) See, e.g., Judgment of 16 October 2001, 2002 Rev. Arb. 753 (Swiss Fed. Trib.). In some
jurisdictions, however, an assignment in breach of a contractual prohibition is
presumptively not invalid, even if it is wrongful, but rather is effective while giving
rise to a damages claim for breach of the anti-assignment provision. See, e.g., Bel-Ray
Co., Inc. v. Chemrite (Pty) Ltd, 181 F.3d 435 (3d Cir. 1999) (following “general rule that
contractual provisions limiting or prohibiting assignment operate only to limit a
party’s right to assign the contract, but not their power to do so, unless the parties
manifest an intent to the contrary with specificity”; assignment in violation of
contractual provision ordinarily “remains valid and enforceable against both the
assignor and the assignee”).
12) Tepper Realty Co. v. Mosaic Tile Co., 259 F.Supp. 688, 692 (S.D.N.Y. 1966).
14) See, e.g., Am. Bureau of Shipping v. Tencara Shipyard SpA, 170 F.3d 349, 353 (2d Cir.
1999) (“A party is estopped from denying its obligation to arbitrate when it receives a
‘direct benefit’ from a contract containing an arbitration clause”). See also G. Born,
15) See, e.g., Hirschfeld Prod. Inc. v. Mirvish, 88 N.Y.2d 1054 (N.Y. 1996); Pritzker v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110 (3d Cir. 1993) (company can only act
through employees and officers, and “an arbitration agreement would be of little
value if it did not extend to them”).
16) See G. Born, International Commercial Arbitration 1591–94 (3d ed. 2021). Examples
include France, Canada and Germany.
17) Westmoreland v. Sadoux, 299 F.3d 462, 467 (5th Cir. 2002). This principle has also
apparently been rejected in Singapore.
19) See, e.g., Judgment of 7 April 2014, DFT 4A_450/2013, ¶3.5.6.1 (Swiss Fed. Trib.) (“a third
party involving itself in the performance of the contract containing the arbitration
agreement is deemed to have adhered to the clause by conclusive acts if it is
possible to infer from its involvement its willingness to be bound by the arbitration
clause”).
20) See, e.g., Air Line Pilots Ass’n Int’l v. US Airways Group Inc., 609 F.3d 338, 347 (4th Cir.
2010) (declining to imply agreement to arbitrate where party did not show “clear
intent” to do so by participating, or expressing willingness to participate, in
arbitration).
21) See, e.g., Chloro Controls India Pte Ltd v. Severn Trent Water Purification Inc., (2013) 1
SCC 641, ¶¶68–69 (Indian S.Ct.) (“where the parties execute different agreements but
all with one primary object in mind, the Court would normally hold the parties to the
bargain of arbitration and not encourage its avoidance”).
22) See, e.g., Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d 362, 368 (2d Cir. 2003) (“if a
party participates in arbitration proceedings without making a timely objection to
the submission of the dispute to arbitration, that party may be found to have waived
its right to object to the arbitration”); Thomson-CSF, SA v. Am. Arb. Ass’n, 64 F.3d 773,
776–77 (2d Cir. 1995) (“In the absence of a signature, a party may be bound by an
arbitration clause if its subsequent conduct indicates that it is assuming the
obligation to arbitrate”); Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1105 (2d
Cir. 1991) (party’s “active and voluntary participation in arbitration,” coupled with its
lack of objection to arbitration, “manifested a clear intent to arbitrate the dispute”).
23) See Judgment of 16 October 2003, 22 ASA Bull. 364, 386 (Swiss Fed. Trib.) (2004) (“[T]his
formal [writing] requirement only applies to the arbitration agreement itself, that is
to the agreement … by which the initial parties have reciprocally expressed their
common will to submit the dispute to arbitration. As to the question of the subjective
scope of an arbitration agreement formally valid [under this writing requirement] the
issue is to determine which are the parties which are bound by the agreement and
eventually determine if one or several third parties which are not mentioned therein
nevertheless enter into its scope ratione personae….”). See also GE Energy Power
Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637, 1648
(U.S. S.Ct. 2020).
24) See, e.g., Kabab-Ji SAL v. Kout Food Group [2020] EWCA Civ 6, ¶10 (English Ct. App.). See
G. Born, International Commercial Arbitration 1606–16 (3d ed. 2021).
25) See supra pp. 62–65; G. Born, International Commercial Arbitration 1616–19 (3d ed.
2021).
26) See supra pp. 69–70; G. Born, International Commercial Arbitration 1169 et seq., 1616–19
(3d ed. 2021).
27) See, e.g., 2021 ICC Rules, Arts. 12(6)-(8); 2020 LCIA Rules, Arts. 8(1)-(2).
28) See, e.g., 2021 ICC Rules, at Arts. 7–10; 2020 LCIA Rules, Arts. 22(7)-(8).
29) See, e.g., 2021 ICC Rules, Arts. 6(3)-(7); 2006 ICSID Rules, Rule 6(1)(b).
5
KluwerArbitration
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KluwerArbitration
Document information Chapter 11: Provisional Measures in International

Arbitration
Publication Provisional measures play a significant role in international arbitration. Provisional
International Arbitration: measures (also referred to as conservatory, protective or interim relief) involve awards or
Law and Practice (Third orders issued for the purpose of protecting a party from damage during the course of the
Edition) arbitral process. Most often, provisional measures are “intended to preserve a factual or
legal situation so as to safeguard rights the recognition of which is sought from the
[tribunal] having jurisdiction as to the substance of the case.” (1) As discussed below,
provisional measures are potentially available from either an arbitral tribunal or a
Bibliographic national court.
reference
'Chapter 11: Provisional §11.01 ARBITRATORS’ AUTHORITY TO ORDER PROVISIONAL RELIEF
Measures in International The New York Convention does not expressly address the subject of provisional measures.
Arbitration', in Gary B. Born Instead, the availability of provisional measures in international arbitration is dealt with
, International Arbitration: principally by national arbitration legislation and the parties’ arbitration agreement. In
Law and Practice (Third practice, as discussed below, arbitral tribunals generally possess broad authority to
Edition), 3rd edition order provisional measures, which arbitrators exercise relatively frequently.
(© Kluwer Law
International; Kluwer Law [A] Effect of National Arbitration Legislation on Arbitrators’ Authority to Order
International 2021) pp. 243
- 264 Provisional Measures
National arbitration legislation has a significant impact on the availability of provisional
relief from international arbitral tribunals. An arbitrator will seldom grant provisional
relief unless satisfied that the law applicable to the arbitration (typically, the arbitration
legislation of the arbitral seat) allows the tribunal to do so. Likewise, tribunal-ordered
provisional relief will often not be enforceable in a national court unless the law(s)
P 244 governing the arbitral proceedings permits such relief.
Historically, national law frequently denied arbitrators the power to order interim
measures, notwithstanding the well-settled authority of other international tribunals to
order such relief. (2) This was the case, for example, in Switzerland, where the 1969
Cantonal Concordat reserved the power to issue provisional relief to Swiss courts
(although arbitrators were permitted to recommend interim relief). (3) Legislation in
other states imposed similar prohibitions against tribunal-granted provisional measures.
(4)
Over the past several decades, most jurisdictions rejected prohibitions against
provisional measures by arbitral tribunals. Instead, they adopted legislation that
confirms the arbitrators’ power to issue provisional relief (provided this is consistent with
the parties’ arbitration agreement); this power is subject to limits, which vary from
jurisdiction to jurisdiction. Most national legal systems also provide that the parties will
be presumed, absent contrary indication, to have authorized the arbitrators to grant
provisional measures.
Although historic limitations on arbitrators’ power have been removed in most states,
some nations continue to impose mandatory prohibitions that forbid arbitrators from
ordering provisional relief. That remains the case, for example, in Italy, China, and
Thailand, where local law provides that the granting of provisional measures is reserved
to local courts, which are authorized to issue provisional relief in aid of arbitration. (5)
The UNCITRAL Model Law is a leading example of the trend towards arbitral authority to
grant interim relief. Article 17 of the Law, as adopted in 1985, provides:
“Unless otherwise agreed by the parties, the arbitral tribunal may, at the
request of a party, order any party to take such interim measure of protection
as the arbitral tribunal may consider necessary in respect of the subject-
matter of the dispute.”
While the original text of Article 17 placed arguably material restrictions on a tribunal’s
powers to order interim relief (i.e., such relief must be “necessary” and “in respect of the
subject-matter of the dispute”), it expressly confirms the power of a tribunal to order a
significant range of provisional measures (provided the parties’ arbitration agreement is
P 245 not to the contrary).
Article 17 of the Model Law was extensively revised in 2006. Among other things, Article
17(1) was amended to provide: “Unless otherwise agreed by the parties, the arbitral
tribunal may, at the request of a party, grant interim measures.” This formulation
confirms the expansive scope of Article 17, by omitting the provision’s original language
that interim measures may be granted where a tribunal considers them “necessary” and
“in respect of the subject-matter of the dispute.” Article 17 also presumes that the parties
intended to confer the power to order specified “interim measures of protection” on the
1
tribunal and effectively requires evidence of a contrary agreement to deny a tribunal
such power.
In the United States, the FAA is silent on arbitrators’ powers to order provisional
measures. Although some early U.S. decisions held that arbitrators lacked authority to
issue provisional relief, more recent U.S. lower court decisions have consistently held
that arbitrators may issue provisional relief (absent contrary agreement). (6) U.S. courts
generally hold that the parties’ agreement that the arbitrators have the power to grant
interim measures will be implied, absent contrary indication. As one U.S. decision
reasoned: “in general …, in the absence of an agreement or statute to the contrary, an
arbitrator has inherent authority to order a party to provide security while the arbitration
is continuing.” (7)
Many other jurisdictions have taken courses similar to that under the Model Law and FAA.
Most such national laws rest on the premise that the arbitrators’ authority to grant
provisional measures will be implied and that an express agreement is required to
withdraw such power. (8)
[B] Law Applicable to Arbitrators’ Authority to Order Provisional Measures

In many cases, the law applicable to the tribunal’s power to grant provisional measures
will be the procedural law of the arbitration, typically the arbitration legislation of the
arbitral seat. Most rulings by arbitral tribunals look to the law of the seat as defining the
arbitrators’ power to grant provisional relief, as do most national courts. (9) Likewise,
arbitration statutes that address the issue of the tribunal’s power to grant provisional
measures are generally applicable (and only applicable) in arbitrations seated within
national territory. (10) As a practical matter, where the law of the seat forbids arbitrators
P 246 from ordering provisional measures, they will ordinarily not do so.
[C] Effect of Institutional Arbitration Rules on Authority of Arbitrators to Order

Provisional Relief
Many institutional rules address the power of the arbitrators to grant provisional
measures. For the most part, these rules specifically provide arbitrators power to grant
provisional measures, usually in relatively broad terms.
The UNCITRAL Rules are representative. Article 26 of the 1976 UNCITRAL Rules grants a
tribunal the power to issue “interim measures” which it deems “necessary in respect of
the subject matter of the dispute, including measures for the conservation of the goods
forming the subject matter of the dispute.” This provision grants arbitrators broad powers
to order provisional measures which they deem necessary, although imposing a
requirement that such measures be “in respect of the subject-matter of the dispute.” The
2013 UNCITRAL Rules provide more broadly that tribunals may issue interim relief and
that “[a]n interim measure is any temporary measure by which, at any time prior to the
issuance of the award by which the dispute is finally decided, the arbitral tribunal orders
a party, for example and without limitation,” to preserve the status quo, to refrain from
actions that cause imminent harm or to preserve assets to satisfy an award.
More expansively than the original UNCITRAL Rules, Article 28 of the 2021 ICC Rules grants
a tribunal authority to order “any interim or conservatory measure it deems
appropriate,” absent contrary agreement. To the same end, Article 25(1) of the 2020 LCIA
Rules authorizes an LCIA tribunal to order various provisional measures (including
security for claims, preservation of property, and any other relief which could be made in
a final award), subject to contrary agreement by the parties. The LCIA Rules also
(unusually) grant the arbitrators authority to order security for a party’s claim to recover
its legal costs.
[D] Limitations on Arbitrators’ Authority to Order Provisional Relief

Although most jurisdictions now recognize the power of arbitral tribunals to order
provisional measures, there are significant limitations on this power. These limitations
arise in part from the nature of the arbitral process, which is a contractual mechanism
between particular parties, and which requires constitution of a tribunal for each dispute
that arises; these limitations also arise from the terms of some national arbitration
statutes.
[1] Arbitrators’ Authority Limited to Parties
First, an arbitral tribunal’s powers to grant provisional relief are virtually always limited
to the parties to the arbitration. As a consequence, an arbitrator generally can (and will)
order provisional measures only against the parties to the arbitration. They will not have
the power to order, for example, attachment or preservation of property held by a third
P 247 party. (11)
[2] Arbitrators’ Lack of Enforcement Authority

Second, an arbitral tribunal ordinarily lacks the authority directly to enforce its
provisional measures. Rather, as with final awards, such enforcement is the responsibility
of national courts, at the application of a party. This is evident, for example, in the
2
language of Article 183(2) of the Swiss Law on Private International Law, which provides:
“If the party so ordered [by the arbitral tribunal to take specified provisional
measures] does not comply therewith voluntarily, the arbitral tribunal may
request the assistance of the competent court.”
[3] Limitations on Arbitrators’ Authority
Third, arbitration legislation also sometimes limits a tribunal’s power to grant provisional
measures. For example, as noted above, the original text of Article 17 of the 1985
UNCITRAL Model Law grants arbitral tribunals the power to issue provisional measures
which they “consider necessary in respect of the subject matter of the dispute.” It is
sometimes said that this language limits the arbitrators’ authority to grant provisional
measures to the particular objects that are in dispute in an arbitration (e.g., disputed
goods in a sale of goods case). (12) Similarly, the English Arbitration Act provides
tribunals power to grant provisional measures “in relation to any property which is the
subject of the proceedings or as to which a question arises in the proceedings.” (13) Other
arbitration statutes are comparable. (14)
[4] No Interim Relief Until Tribunal Is Constituted
Fourth, a tribunal cannot issue provisional measures until it has been constituted. This is
implied by arbitration legislation limiting the power to grant provisional measures to
“arbitral tribunals.” In any case, until a tribunal has been constituted, it has no powers
P 248 and cannot issue provisional measures. Institutional rules impose similar
requirements, while also often providing for an “Emergency Arbitrator” or “referee” to
issue interim relief prior to constitution of a full tribunal. (15)
[E] Arbitrators’ Exercise of Authority to Order Provisional Relief

Most national laws do not address the standards that arbitrators apply in considering
whether to order provisional measures. That was true under Article 17 of the original
UNCITRAL Model Law and most other arbitration legislation. (16) The 2006 revisions to the
Model Law adopt an alternative approach, with revised Article 17A providing that a party
seeking interim measures must satisfy the tribunal that specified conditions exist
(irreparable harm, outweighing possible injury to other parties; reasonable prospect of
success on the merits); as discussed below, these requirements parallel those applied in
practice by arbitral tribunals.
Institutional rules also typically do not contain meaningful standards for the grant of
provisional measures, usually providing only that a tribunal may issue the provisional
relief that it “deems necessary” or “appropriate.” (17) These formulations merely confirm
the tribunal’s broad authority to grant provisional relief, and do not establish standards
for when that authority should be exercised. A few sets of institutional rules provide
guidance in this regard. (18)
In practice, most tribunals require showings of: (a) serious or irreparable harm; (b)
urgency; and (c) no prejudgment of the merits, while some tribunals also require the
claimant to establish a prima facie case on the merits. Most tribunals also look to the
nature of the specific provisional measures that are requested, and the relative injury to
be suffered by each party, in deciding whether to grant such measures. In particular,
some provisional measures (e.g., preserving the status quo or ordering performance of a
contract) will typically require strong showings of serious injury, urgency and a prima facie
case, while other provisional measures (e.g., preservation of evidence, confidentiality)
are unlikely to demand the same showings.
[1] “Irreparable” or “Serious” Injury
First, tribunals frequently require that a party seeking provisional measures demonstrate
that it may suffer either “irreparable” or “serious” injury unless provisional relief is
P 249 granted. In the words of one award, “the Arbitral Tribunal may only order provisional
measures, if the requesting party has substantiated the threat of a not easily reparable
prejudice.” (19) Some authorities suggest that “irreparable” harm is required for a grant of
provisional measures. As the tribunal in an often-cited ICSID award observed, “a
provisional measure is necessary where the actions of a party ‘are capable of causing or
of threatening irreparable prejudice to the rights invoked.’” (20) In contrast, other
authorities require only a showing of “serious” or “substantial” harm, without requiring
that the injury be “irreparable.” (21) In reality, most decisions which state that damage
must be “irreparable” do not appear to apply this formula, but instead require that there
be a material risk of serious damage to the plaintiff.
[2] Urgency
Second, many authorities declare that interim relief requires a showing of “urgency.” That
is, the tribunal must be persuaded that immediate (or at least prompt) action is
necessary in order to prevent serious damage to the claimant. This requirement has been
formulated as follows: “The Arbitral Tribunal agrees that the criterion of urgency is
satisfied when … ‘a question cannot await the outcome of the award on the merits. This is
in line with ICJ practice.’” (22) The 2006 revisions to the Model Law and the UNCITRAL
3
Rules omit any express reference to “urgency,” instead requiring that a party satisfy the
tribunal that “[h]arm not adequately reparable by an award of damages is likely to
result.” (23)
As with the requirement of “irreparable” harm, the “urgency” requirement is not
interpreted mechanically. Tribunals typically do not delay granting provisional measures
until dire consequences are only days away, but rather take a realistic view of the risk
that serious damage will occur prior to the end of the proceedings. (24) As one award
explained, “[a] measure is urgent where action prejudicial to the rights of either party is
P 250 likely to be taken before such final decision is taken.” (25)
[3] No Prejudgment of Merits

Third, it is often said that provisional measures must not “prejudge the merits” of the
underlying dispute. As a practical matter, tribunals do not adopt any uniform approach
to this requirement, although some awards hold that it precludes issuance of interim
relief in the same terms as the final relief sought by a party. (26)
[4] Prima Facie Case or Probability of Success on Merits
Fourth, some tribunals have held that the party requesting provisional measures must
demonstrate a prima facie case on the merits of its claim (or, in other formulations, a
probability of prevailing on its claim). (27) As formulated by one award, the tribunal
should undertake an “appreciation, although on a provisional basis, of the respective
arguments of the parties.” (28) At the same time, other awards have refused to consider
whether a party has stated a prima facie case, saying that this conflicts with the
requirement that provisional measures not prejudge the merits of the tribunal’s final
award. (29)
[5] Jurisdiction
It is also sometimes said that a tribunal requires jurisdiction in order to be able to issue
provisional measures. In fact, most authorities correctly hold that a tribunal is able to
issue provisional measures notwithstanding the existence of a jurisdictional challenge.
Thus, tribunals have not infrequently ordered provisional relief notwithstanding an
unresolved (and therefore possibly well-founded) jurisdictional challenge. According to
one commentary:
“[it is a] well-settled position in international adjudication … that an
international tribunal may decide on provisional measures prior to
establishing its jurisdiction over the dispute if it appears that there is, prima
facie, a basis for asserting such jurisdiction.” (30)
[6] Tribunal’s “Discretion” Regarding Type of Provisional Measures
Assuming that the general criteria for granting provisional measures are satisfied, then
P 251 tribunals often say that they have substantial discretion in selecting and ordering
appropriate provisional relief. According to one commentator, “arbitral tribunals have
very wide discretion in determining the appropriate measure.” (31) Despite this, the
granting of provisional measures is not a purely “discretionary” exercise, but must
instead conform to principled standards and the evidentiary record. (32) Although the
standards applicable to the granting of provisional measures continue to develop, it is
wrong to treat the subject as a matter of discretion, and not of legal right.
[7] Categories of Provisional Measures in International Arbitration
In practice, a wide variety of provisional measures are encountered in international
arbitration. These include: (a) maintaining the status quo; (b) taking action, or not taking
action, that would cause harm; (c) preserving assets; (d) preserving evidence or providing
for inspection of property; (e) preventing aggravation of the dispute; (f) performing
contractual obligations; (g) providing security for underlying claims; (h) providing security
for costs; (i) providing payment of advance on costs or deposit; (j) complying with
confidentiality obligations; (k) providing interim payment; and (l) antisuit orders. (33)
[8] Burden of Proof
Although the party seeking provisional measures almost always bears the burden of
proof, the standards of proof that tribunals require often varies, depending on the
character of the relief sought: more onerous and intrusive relief (e.g., providing security
or performing a contract) often requires a stronger showing than less onerous relief (e.g.,
preserving evidence, complying with confidentiality obligations); tribunals also often
inquire into the balance of hardships between the parties resulting from provisional
measures (or from refusal to grant such measures). (34)
[9] Ex Parte Provisional Measures
The 2006 revisions to the UNCITRAL Model Law permit ex parte provisional measures in
limited circumstances. The amendments (to Article 17B of the Law) provide for
“preliminary orders” that may be applied for “without notice to any other party.” Article
17B and 17C provide that ex parte preliminary orders may be issued where the arbitrators
4
P 252 conclude that “prior disclosure of the request for the interim measure to the party
against whom it is directed risks frustrating the purpose of the measure.” (35) It is
doubtful that these provisions have much practical attraction; Article 17C provides that
ex parte orders are not enforceable, which leaves them without practical importance in
the vast majority of cases. Most institutional rules expressly or impliedly exclude the
possibility of ex parte interim relief. (36)
[F] Specialized Institutional Arbitration Rules for Expedited Action

Some arbitral institutions have adopted specialized rules that seek to provide a non-
judicial mechanism for obtaining urgently-needed provisional relief at the outset of
arbitral proceedings. The ICC Rules for a Pre-Arbitral Referee Procedure were an early
example of such efforts, but required that the parties agree in writing to the use of a
specialized procedure; in practice, this seldom occurred. (37)
A more effective approach was taken by subsequent innovations which included, as part
of generally-applicable institutional rules, an “emergency arbitrator” mechanism. This
approach was originally adopted by the Netherlands Arbitration Institute’s Rules and the
ICDR Rules, and subsequently incorporated by the ICC, SIAC and other arbitral
institutions. Each of these sets of rules provides for the appointment, in cases of urgency
at the outset of an arbitration, of a sole “emergency arbitrator” to resolve requests for
provisional measures prior to constitution of the arbitral tribunal. (38) As soon as the
tribunal is constituted, the emergency arbitrator responsible for considering initial
requests for provisional measures ceases to play any further role in the proceedings.
§11.02 JUDICIAL ENFORCEMENT OF PROVISIONAL MEASURES ORDERED BY

ARBITRATORS
Many arbitration statutes do not expressly address the judicial enforceability of tribunal-
ordered provisional measures, leaving enforcement of such measures to general statutory
provisions regarding arbitral awards. That was the case with the original text of the 1985
Model Law, as well as most other arbitration statutes. (39) Under such legislation, the
enforcement of tribunal-ordered provisional relief gave rise to significant uncertainties.
As a result, some jurisdictions have enacted specialized legislation providing for judicial
enforcement of tribunal-ordered provisional measures, including many Model Law
P 253 jurisdictions. (40) Likewise, the Model Law was revised in 2006 along similar lines (in
Article 17) to permit specialized enforcement of “orders” of provisional relief.
[A] Status of Provisional Measures as “Final” Awards

A significant question with regard to the enforceability of tribunal-ordered “provisional”
measures is whether such decisions can qualify for enforcement as “awards” under the
provisions of the New York Convention and national arbitration statutes. Some
authorities hold that only “final” awards can be recognized and enforced under the
Convention and most arbitration legislation, and that “provisional” measures are not
“final.” In the words of one decision:
“whilst it is true that a valid interlocutory order is in one sense ‘binding’ on the
parties to the arbitration agreement … an interlocutory order which may be
rescinded, suspended, varied or reopened by the tribunal which pronounced
it is not ‘final’ and binding on the parties.” (41)
In contrast, a number of recent authorities hold that the grant of provisional measures
finally disposes of the request for such measures and that judicial enforcement of such
measures is important to the arbitral process. In the United States, the FAA provides no
express guidance as to the enforceability of arbitral decisions granting provisional
measures, but a number of courts have held that decisions granting provisional measures
are “final” awards and subject to enforcement. According to one U.S. decision:
“[An order of provisional measures should be enforced because] such an award
is not ‘interim’ in the sense of being an ‘intermediate’ step toward a further
end. Rather, it is an end in itself, for its very purpose is to clarify the parties’
rights in the ‘interim’ period pending a final decision on the merits.” (42)
The better view is that provisional measures should be enforceable as arbitral awards
under generally-applicable provisions for the enforcement of awards. Provisional
measures are “final” in that they dispose of a request for relief pending conclusion of the
arbitration. Orders granting provisional relief are meant to be complied with, and to be
enforceable; they are in this respect different from interlocutory decisions that merely
decide certain subsidiary legal issues (e.g., choice of law, liability) or establish
procedural timetables. It is also important to the efficacy of the arbitral process for
national courts to be able to enforce provisional measures. If this possibility does not
exist, then parties will be more willing to refuse to comply with provisional measures,
P 254 resulting in precisely the harm that such measures were meant to foreclose.
[B] Specialized National Arbitration Legislation Permitting Enforcement of

Provisional Measures
5
Given the uncertainty concerning the enforceability of provisional measures, some states
have adopted legislation that authorizes judicial enforcement of tribunal-ordered
provisional measures, outside the context of final awards. These statutes typically
provide for enforcement of tribunal-ordered provisional measures by courts in the
arbitral seat (as opposed to other states). These provisions materially enhance the
enforceability of provisional measures ordered by tribunals, but do not deal with
enforcement abroad.
One of the first such provisions was Article 183(2) of the Swiss Law on Private International
Law, which provides that, if a party does not comply with tribunal-ordered provisional
measures, “the arbitral tribunal may request the assistance of the competent court.”
Similarly, the German version of the UNCITRAL Model Law provides:
“the court may, at the request of a party, permit enforcement of a measure …
unless application for a corresponding interim measure has already been
made to a court.” (43)
The German legislation also provides for judicial review of interim measures ordered by a
tribunal, as well as judicially-ordered damages for unjustified grants of provisional relief
(against the party that requested such relief). Legislation in a number of other
jurisdictions is similar. (44)
The 2006 revisions to the Model Law adopted a specialized enforcement regime for
provisional measures issued by arbitral tribunals. Article 17H(1) provides that “[a]n
interim measure issued by an arbitral tribunal shall be recognized as binding and, unless
otherwise provided by the arbitral tribunal, enforced upon application to the competent
court.” (45) The provision states that enforcement may be sought “irrespective of the
country in which it was issued,” permitting provisional measures to be enforced outside
the arbitral seat. The enforceability of provisional measures under Article 17H is subject
to exceptions (in particular those applicable to the recognition and enforcement of final
awards). (46)
Some recently-amended arbitration laws also include specific provisions for the
enforcement of interim measures by emergency arbitrators. (47) Notably, the Article
1043(b) of the Netherlands Code of Civil Procedure provides that such interim measures
are enforced as awards (unless the arbitrator decides to issue them in a different form).
P 257
§11.03 PROVISIONAL MEASURES ORDERED BY NATIONAL COURTS IN AID OF

ARBITRATION
An arbitral tribunal is not the only source of provisional relief in connection with an
international arbitration: in addition, national courts generally possess concurrent
authority to grant provisional measures in connection with arbitral proceedings. In some
instances, national courts are the only realistic source of provisional relief.
As noted above, until the tribunal is in place, there is no prospect of obtaining
provisional relief from it. Efforts by a number of arbitral institutions to provide pre-
arbitral mechanisms for non-judicial emergency relief have begun to address this, but
numerous ad hoc and other arbitrations continue not to offer such avenues for interim
relief in the arbitral process. In addition, where attachments and other provisional
measures binding third parties are concerned, arbitrators can virtually never provide
effective relief. As a consequence, parties who require urgent provisional relief at the
outset of a dispute must often seek the assistance of national courts.
Arbitration legislation generally provides national courts with concurrent power to order
provisional measures in aid of an international arbitration (absent agreement to the
contrary). The existence of concurrent jurisdiction, shared by arbitral tribunals and
national courts, is an exception to the general principles of arbitral exclusivity and
judicial non-interference in the arbitral process. Concurrent jurisdiction in this field is
nonetheless well-recognized and is essential to the efficacy of the arbitral process. (48)
[A] Effect of New York Convention on Authority of National Courts to Grant

Provisional Relief in Aid of International Arbitration
The New York Convention contains nothing dealing expressly with provisional relief
(whether granted by a tribunal or court). This silence has contributed to divergent
interpretations of the Convention as it affects court-ordered provisional measures in
connection with arbitral proceedings. A few U.S. courts have interpreted Article II(3) of
the Convention as forbidding national courts from ordering provisional measures in
connection with an international arbitration. In contrast, most other U.S. and all non-U.S.
decisions and commentary have refused to adopt that reading of Article II(3).
[1] Judicial Decisions Holding That Article II(3) Forbids Court-Ordered Provisional Measures
The first decision suggesting that Article II(3) forbids court-ordered provisional relief in
aid of arbitration was McCreary Tire & Rubber Co. v. CEAT, SpA. (49) In McCreary, a U.S.
Court of Appeals held that a request for court-ordered attachment of assets, putatively in
6
aid of an international arbitration, should be denied. The court concluded that
McCreary’s judicial action for provisional relief was designed to frustrate (“bypass”) the
parties’ arbitration agreement and, therefore, that the Convention precluded the request
for attachment:
“The Convention forbids the courts of a Contracting State from entertaining a
suit which violates an agreement to arbitrate …. Permitting a continued resort
to foreign attachment in breach of the agreement is inconsistent with [the]
purpose [of the Convention].” (50)
McCreary was followed, and its holding substantially extended, in a few subsequent U.S.
cases. In particular, the New York Court of Appeals held in Cooper v. Ateliers de la
Motobecane, (51) that the Convention foreclosed an attachment action that was
apparently part of an effort to circumvent arbitration. Among other things, the court
declared broadly that “[t]he purpose and policy of the Convention will be best carried
out by restricting prearbitration judicial action to determining whether arbitration
should be compelled.” (52)
[2] Judicial Decisions Holding That Article II(3) Permits Court-Ordered Provisional Measures
Other U.S. courts have refused, correctly, to follow the broad rationale stated in Cooper.
Instead, they have concluded that Article II(3) does not forbid court-ordered provisional
relief in aid of arbitration. In Carolina Power & Light Co. v. Uranex, (53) the District Court
declared that it did “not find the reasoning of McCreary convincing,” and that:
“nothing in the text of the New York Convention itself suggests that it
precludes prejudgment attachment…. There is no indication in either the text
or the apparent policies of the Convention that resort to prejudgment
attachment was to be precluded.” (54)
The decisive weight of other U.S. authority follows Uranex and rejects Cooper’s apparent
interpretation of the Convention. (55) Indeed, some U.S. decisions bluntly (but correctly)
describe the more extreme Cooper interpretation of Article II(3) as “facially absurd.” (56)
Judicial decisions from all developed jurisdictions other than the United States reject the
notion that the Convention imposes a blanket prohibition on court-ordered provisional
measures. As Lord Mustill put it, writing in the House of Lords:
“I am unable to agree with those decisions in the United States (there has
been no citation of authority on this point from any other foreign source) which
form one side of a division of authority as yet unresolved by the [U.S.]
Supreme Court. These decisions are to the effect that interim measures must
necessarily be in conflict with the obligations assumed by the subscribing
nations to the … Convention, because they “bypass the agreed upon method of
settling disputes”: see McCreary Tire & Rubber Co. v. CEAT …. I prefer the view
that when properly used such measures serve to reinforce the agreed method,
not to bypass it.” (57)
The weight of authority is correct in rejecting the McCreary/Cooper view that the
Convention precludes court-ordered provisional measures in aid of arbitration. (58)
[B] Effect of National Arbitration Legislation on Authority of National Courts to

Grant Provisional Relief in Aid of International Arbitration
The concurrent jurisdiction of national courts and arbitral tribunals to issue provisional
measures is confirmed by most national arbitration statutes. Although a few statutes
have been to the contrary (reserving provisional measures to national courts alone (59) ),
the overwhelming approach of national arbitration legislation and judicial authority is
that both tribunals and courts may (absent contrary agreement) issue provisional
measures in connection with an international arbitration.
The UNCITRAL Model Law is a representative example. Article 17 of the 1985 Model Law
provides tribunals the power to order provisional relief (as discussed above), while
Article 9 provides that parties do not (ordinarily) violate their agreement to arbitrate
simply by seeking provisional measures from a court. The Model Law thereby
contemplates that both tribunals and courts will have concurrent power to order
provisional measures in connection with international arbitrations (unless otherwise
agreed). Article 17J of the 2006 Model Law revisions goes further, providing that a court
“shall have the same power of issuing an interim measure in relation to arbitration
proceedings” as exists with regard to judicial proceedings. Likewise, the Swiss Law on
Private International Law recognizes (albeit less expressly) the concurrent powers of
national courts and tribunals to order provisional measures, unless otherwise agreed;
legislation in other jurisdictions is similar. (60)
Even where legislation does not provide for concurrent jurisdiction to order provisional
measures, courts have reached this result. In the United States, §8 of the FAA only grants
courts the power to order provisional measures with regard to a narrow category of
maritime disputes. Nonetheless, apart from the McCreary/Cooper line of decisions in the
context of the New York Convention, the overwhelming weight of authority under the FAA
P 258
7
P 258 concludes that federal courts possess jurisdiction to issue provisional measures
(absent contrary agreement by the parties) to protect the parties and the arbitral
process. (61)
In some jurisdictions, national law limits the circumstances in which court-ordered
provisional measures may be ordered in connection with a dispute that is subject to
arbitration. Under §44 of the English Arbitration Act, 1996, for example, an English court is
granted power to order provisional measures in aid of arbitration in cases of urgency only
in specified circumstances where the tribunal is unable to act (e.g., preservation of
evidence or assets); if the case if not one of urgency, the court may grant provisional
measures only with the “permission” of the tribunal or agreement by the parties. (62) In
one recent decision, an English court declined to grant interim relief where the
applicable LCIA Rules permitted the applicant to seek such relief from an emergency
arbitrator. (63) Alternatively, some legislation permits national courts to grant
provisional measures only if the applicant demonstrates that an application to the
arbitral tribunal for similar measures would prejudice its rights, (64) or “only insofar as
the arbitral tribunal has not yet been constituted.” (65)
In many jurisdictions, a party is free to seek provisional measures from either the arbitral
tribunal or a court (as a corollary of the principle of concurrent jurisdiction). Most
arbitration statutes – including the 1985 and 2006 Model Law – simply provide for
concurrent jurisdiction without requiring a party to seek provisional measures in one
forum, rather than another. Absent contrary agreement, parties arbitrating pursuant to
such legislation are free to seek provisional measures from either the tribunal or a court.
Other legislation as noted above, requires parties to seek provisional relief in a preferred
forum. For example, the English Arbitration act and the U.S. Revised Uniform Arbitration
Act provide that a court may only grant provisional measures if the tribunal has no power
to make the order required or if the tribunal lacks the power (at the time) to act
effectively. (66) Some courts have applied such provisions to deny applications for court-
ordered interim relief where the parties could have, or can, seek similar relief from an
P 259 emergency arbitrator under applicable institutional rules. (67)
[C] Effect of Institutional Rules on Authority of National Courts to Grant Provisional

Relief in Aid of International Arbitration
Most institutional rules provide that parties may seek provisional measures in aid of
arbitration in a national court, at least in specified circumstances. For example, Article
26(9) of the 2013 UNCITRAL Rules provides that “a request for interim measures addressed
by any party to a judicial authority shall not be deemed incompatible with the
agreement to arbitrate, or as a waiver of that agreement.” This provision has been
interpreted as permitting parties to apply to national courts for provisional measures
without material qualifications (such as, for example, permitting applications for court-
ordered provisional measures only before the tribunal has been formed). (68)
Similarly, Article 28(2) of the 2021 ICC Rules provides that parties may seek provisional
measures from a national court either “[b]efore the file is transmitted to the arbitral
tribunal,” or “in appropriate circumstances even thereafter.” The 2020 LCIA Rules also
permit (in Article 25(3)) applications for provisional measures in national courts,
providing that parties may seek provisional relief from national courts “before the
formation of the Arbitral Tribunal” and “after the formation of the Arbitral Tribunal, in
exceptional cases and with the Arbitral Tribunal’s authorisation, until the final award.” In
contrast to the UNCITRAL Rules, these provisions make it plain that the tribunal is the
preferred forum for provisional measure applications once it is constituted.
[D] Application for Court-Ordered Provisional Measures Does Not Ordinarily Waive
Right to Arbitrate
Most arbitration legislation provides that an application for court-ordered provisional
measures does not generally waive rights under an arbitration agreement. This is a
corollary to the principle of concurrent jurisdiction to grant provisional measures.
As noted above, Article 9 of the Model Law provides that, as a general rule, parties do not
violate an agreement to arbitrate simply by seeking court-ordered provisional measures.
Similar provisions exist in other statutes. (69) Likewise, most institutional rules provide
that a request for court-ordered provisional measures does not independently constitute
a waiver of rights under an arbitration agreement. (70)
This does not mean that no request for court-ordered provisional measures can
constitute a waiver of a right to arbitrate. Rather, it means that, where the parties have
simply agreed to arbitrate (without excluding court-ordered provisional measures), an
application for court-ordered provisional measures is not necessarily a waiver of the
right to arbitrate. Nonetheless, if the parties have agreed to exclude court-ordered
provisional measures or if a party seeks court-ordered provisional measures in an effort
to circumvent an arbitration clause, a parties’ application for court-ordered
P 260 provisional relief may well be contrary to its agreement to arbitrate and may be deemed
a waiver of its arbitration rights.
8
[E] Choice of Law Applicable to Court-Ordered Provisional Measures
Assuming that a court has the power to issue provisional measures in connection with an
arbitration, the question arises what law will apply to requests for such relief. National
courts will virtually always apply their own law to the availability and form of court-
ordered provisional measures. In particular, the relief requested in aid of arbitration
must be a category of relief available under the law of the judicial forum.
The foregoing conclusion is made explicit in Article 183(2) of the Swiss Law on Private
International Law, which provides that “the court shall apply its own law” to requests for
court-ordered provisional measures. The 2006 revisions to the UNCITRAL Model Law are
similar (in Article 17J). Courts in other jurisdictions take the same approach, applying
local law to requests for court-ordered provisional relief. (71)
In principle, most courts apply generally-applicable local standards for prejudgment
relief to requests for court-ordered provisional measures in aid of arbitration. (72)
Nevertheless, some courts have suggested that special requirements apply to requests
for court-ordered provisional measures in aid of arbitration, given the special
characteristics of international arbitration and the possibility of relief from the tribunal.
Thus, some authorities hold that court-ordered provisional relief will not be granted
unless it is absolutely necessary to protect the arbitral process. (73) To the same effect,
the Hong Kong Arbitration Ordinance has been interpreted as disfavoring requests for
court-ordered provisional measures if the tribunal has been constituted and could
provide relief. (74) These prudential restraints reflect sound policy, to avoid judicial
P 261 interference with the arbitral process.
§11.04 APPROPRIATE NATIONAL COURT TO GRANT PRE-AWARD PROVISIONAL

MEASURES IN AID OF INTERNATIONAL ARBITRATION
Assuming that the parties’ agreement does not exclude court-ordered provisional
measures in aid of an international arbitration, the question arises as to which national
court(s) have jurisdiction to grant such measures. In particular, should jurisdiction be
limited to the courts of the arbitral seat, or should provisional measures also be
available in other courts?
In some cases, parties agree upon a contractual forum for provisional measures in aid of
arbitration. When this occurs, most national courts give effect to the parties’ choice-of-
forum agreement. It is, however, often unwise for parties to limit themselves to a single
contractual forum for provisional measures: there may be instances where immediate
applications for provisional measures in the place of the expected wrongful actions are
required. As a consequence, the vast majority of contracts are silent about the
appropriate judicial forum for court-ordered provisional relief.
P 262 In most states, courts have statutory authority to issue provisional measures in aid of
arbitrations with their seat within national territory. That is, if an international
arbitration is seated in State A, then the courts of State A will ordinarily have the power
to order provisional measures in relation to the arbitration. This is the case under the
2006 revisions of the Model Law, as well as under a few other arbitration statutes. (75)
As a practical matter, however, the courts of the arbitral seat may not be in a position to
grant effective provisional relief. Particularly where attachment or similar remedies are
sought, only the jurisdiction where the defendant’s assets are located may be able to
grant meaningful remedies. That is because security measures often have only territorial
effect and, even when they purport to apply extraterritorially, enforcement may be
difficult or impossible. In those circumstances, according exclusive jurisdiction to courts
in the seat may not be warranted.
In part for these reasons, some courts have concluded that they have the power to order
provisional relief in connection with foreign arbitrations (absent contrary agreement).
Thus, a number of U.S. courts have granted provisional measures in aid of arbitrations
seated abroad. (76) Similarly, prior to the enactment of the English Arbitration Act, 1996,
the House of Lords concluded that English courts have the power to grant provisional
measures in connection with a non-English arbitration (but that this power should be
used sparingly). (77) That decision was statutorily confirmed by §2(3)(b) of the 1996 Act,
providing English courts with discretionary authority to grant provisional measures in aid
of foreign-seated arbitrations. (78) Other courts have also affirmed their inherent
authority to issue provisional measures in aid of foreign arbitrations. (79)
These results are consistent with Articles 1(2) and 9 of the Model Law, which provide that
an arbitration agreement does not preclude a party from applying to “a court” for
provisional measures, without suggesting that “a” court is only a court in the arbitral seat.
Judicial decisions in Model Law jurisdictions affirm this result. (80) The 2006 revisions of
the Model Law make the point even more explicit. (81)
In contrast, other statutes appear to deny local courts the power to grant provisional
measures in connection with foreign arbitrations. Indian decisions initially adopted this
view, then subsequently held that interim relief may be granted in aid of a foreign
arbitration, and most recently held that the Indian Arbitration and Conciliation Act’s
provisions authorizing court-ordered provisional measures applies only to arbitrations
9
seated in India. (82) In turn, that decision was legislatively overruled, (83) with Indian
courts now exercising authority to issue provisional measures in aid of foreign-seated
arbitrations.
Even if a national court has the power to issue provisional measures in aid of a foreign
arbitration, there are strong reasons for exercising such authority with circumspection.
When a court in State A issues provisional measures in connection with an arbitration
seated in State B, it runs a double risk of interfering in (a) the arbitral proceedings, and
P 263 (b) the (limited) supervisory jurisdiction of the courts in the seat. For example, the
English House of Lords declared, in Channel Tunnel Group Ltd v. Balfour Beatty
Construction Ltd, that “the court should bear constantly in mind that English law, like
French law, is a stranger to this Belgian arbitration,” and the court therefore “should be
very cautious in its approach both to the existence and to the exercise of supervisory and
supportive measures, lest it cut across the grain of the chosen curial law.” (84) Other courts
have also demonstrated caution in granting provisional measures in aid of foreign
P 264 arbitrations. (85)
P 264
References
1) Van Uden Maritime BV v. Kommanditgesellschaft in Firma Deco-Line, Case No. C-391/95,
[1998] E.C.R. I-7091, 7133 (E.C.J.).
2) See S. Rosenne, Provisional Measures in International Law: The International Court of
Justice and The International Tribunal of the Law of the Sea (2005). As discussed below,
Article 47 of the ICSID Convention authorizes ICSID tribunals to order provisional
measures. See infra pp. 498–501.
3) Swiss Cantonal Concordat, Art. 26(1) (“The public judicial authorities alone have
jurisdiction to make provisional orders”).
4) See G. Born, International Commercial Arbitration 2610–11 (3d ed. 2021) (Argentina,
Austria, Greece, Italy, Spain).
5) Chinese Arbitration Law, Art. 68; Italian Code of Civil Procedure, Art. 818 (“The
arbitrators may not grant attachment or other interim measures of protection”); Thai
Arbitration Act, §16 (arbitrators lack authority to order interim relief). See also
Hemofarn DD v. Jinan Yongning Pharm. Co., [2008] Minsi Tazi 11 (Chinese S.Ct.) (award
that dealt with property preservation interim measure applications which only court
has jurisdiction to hear under Chinese law violated public policy because it
impinged on judicial sovereignty of Chinese courts); Judgment of 25 July 2019, Case
No. 76 (Bucharest Ct. App.) (annulling emergency arbitrator decision for asserted
violation of mandatory Romanian law providing for exclusive jurisdiction of national
courts to grant interim measures before registration of arbitration).
6) See, e.g., Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 902 (2d Cir. 2015); Toyo
Tire Holdings of Ams. Inc. v. Cont’l Tire N. Am., Inc., 609 F.3d 975 (9th Cir. 2010); Pac.
Reins. Mgt Corp. v. Ohio Reins. Corp., 935 F.2d 1019, 1022–23 (9th Cir. 1991) (“Temporary
equitable relief in arbitration may be essential to preserve assets or enforce
performance which, if not preserved or enforced, may render a final award
meaningless”); Certain Underwriters at Lloyd’s, London v. Argonaut Ins. Co., 264
F.Supp.2d 926, 937 (N.D. Cal. 2003) (“There is no question that an arbitration panel has
the authority to require escrow to serve as security for an ultimate answer [which]
may be either derived explicitly from the arbitration agreement or implicitly from
the panel’s power to ensure the parties receive the benefit of their bargain”).
7) Charles Constr. Co. v. Derderian, 586 N.E.2d 992, 994 (Mass. 1992).
9) See id. at 2639–42.
10) See, e.g., UNCITRAL Model Law, Arts. 1(2), 17; English Arbitration Act, 1996, §§2(1), 38(3)-
(4); Swiss Law on Private International Law, Arts. 176(1), 183; Japanese Arbitration Law,
Arts. 1, 24.
12) The better view is that this requirement does not limit a tribunal’s power to
particular items whose ownership is in dispute. Instead, Article 17 can readily be
interpreted as extending to preservation of contractual rights or of the equilibrium
between the parties (e.g., the maintenance of a contractual relationship for licensing
intellectual property or purchase/sale of goods); where the parties’ dispute concerns
the continued existence or nature of their contractual relationship, then provisional
measures preserving all or aspects of that relationship are properly regarded as
being “in respect of the subject matter of the dispute.” See id. at 2629–31.
13) English Arbitration Act, 1996, §38(4). The Act also permits parties by agreement to
grant the arbitrators broader power to order provisional measures. English
Arbitration Act, 1996, §38(1).
10
14) Swedish Arbitration Act, §25(4) (“interim measures to secure the claim”); Indian
Arbitration and Conciliation Act, Art. 17(1) (same); Japanese Arbitration Law, Art. 24(1)
(“necessary in respect of the subject matter of the dispute”) (emphasis added);
Indonesian Arbitration Law, Art. 32 (arbitral tribunals not authorized to order security
for costs). See also French Code of Civil Procedure, Art. 1468 (only courts may order
conservatory attachments and judicial security); Netherlands Code of Civil
Procedure, Art. 1043b (arbitral tribunal cannot order attachment of assets). See G.
15) See, e.g., 2013 UNCITRAL Rules, Art. 26(1); 2021 ICC Rules, Art. 29; 2016 SIAC Rules, Art.
30(2) & Sched. 1; 2021 ICDR Rules, Art. 7(5); 2013 AAA Rules, Rule 38; 2020 LCIA Rules,
Art. 9B; infra pp. 251–53.
17) See, e.g., 2021 ICC Rules, Art. 28(1); 2016 SIAC Rules, Art. 27; 2021 ICDR Rules, Art. 27(1).
See also 2006 ICSID Rules, Art. 47 (“if [the tribunal] considers that the circumstances
so require”).
18) See, e.g., 2013 UNCITRAL Rules, Art. 26(3) (“The party requesting an interim measure …
shall satisfy the arbitral tribunal that: (a) Harm not adequately reparable by an
award of damages is likely to result if the measure is not ordered, and such harm
substantially outweighs the harm that is likely to result to the party against whom the
measure is directed if the measure is granted; and (b) There is a reasonable
possibility that the requesting party will succeed on the merits of the claim. The
determination on this possibility shall not affect the discretion of the arbitral
tribunal in making any subsequent determination.”); 2019 JCAA Rules, Art. 71(2)
(same).
19) Interim Award in ICC Case No. 8786, 11(1) ICC Ct. Bull. 81, 83–84 (2000). See also Interim
Award in ICC Case No. 17191, XLII Y.B. Comm. Arb. 82 (2017) (denying request; tribunal
not convinced that continued use of licensed trademarks cause irreparable harm
that could not be remedied by compensatory damages). See also G. Born,
20) Tokios Tokelés v. Ukraine, Procedural Order No. 3 in ICSID Case No. ARB/02/18 of 18
January 2005, ¶8. See also Rizzani de Eccher SpA v. Kuwait, Decision on Provisional
Measures in ICSID Case No. ARB/17/8 of 23 November 2017, ¶103.
21) UNCITRAL Model Law, 2006 Revisions, Art. 17A(1)(a).
22) Burlington Res. Inc. v. Ecuador, Procedural Order No. 1 in ICSID Case No. ARB/08/5 of 29
June 2009, ¶73. See also García Armas v. Venezuela, Procedural Order No. 9 in PCA Case
No. 2016-08 of 20 June 2018, ¶191; Partial Award in Unidentified ICC Case, in Schwartz,
The Practices and Experience of the ICC Court, in ICC, Conservatory and Provisional
Measures in International Arbitration 45, 60 (1993).
23) UNCITRAL Model Law, 2006 Revisions, Art. 17A; 2013 UNCITRAL Rules, Art. 26(3)(a).
25) Tokios Tokelés v. Ukraine, Procedural Order No. 3 in ICSID Case No. ARB/02/18 of 18
January 2005, ¶8 (emphasis added) (quoting Case Concerning Passage Through the
Great Belt (Finland v. Denmark), Request for the Indication of Provisional Measures of
July 29, 1991, ¶23).
27) UNCITRAL Model Law, 2006 Revisions, Art. 17A(1)(b); G. Born, International Commercial
28) Partial Award in Unidentified ICC Case, in Schwartz, The Practices and Experience of the
ICC Court, in ICC, Conservatory and Provisional Measures in International Arbitration 45,
60 (1993).
29) See, e.g., Travis Coal Restructured Holdings LLC v. Essar Global Ltd, Final Award in ICC
Case No. 18724 of 7 March 2014; Partial Award in ICC Case No. 8113, 11(1) ICC Ct. Bull. 65
(2000) (“granting of the measure requested by Claimant implies a pre-judgment of
the dispute”).
30) Shihata & Parra, The Experience of the International Centre for Settlement of
Investment Disputes, 14 ICSID Rev. 299, 326 (1999). See also D. Caron & L. Caplan, The
UNCITRAL Arbitration Rules: A Commentary 523 (2d ed. 2013).
31) Yesilirmak, Interim and Conservatory Measures in ICC Arbitral Practice, 11(1) ICC Ct.
Bull. 31, 33 (2000).
32) Some tribunals, particularly in investor-state arbitrations, have used proportionality
analyses in determining whether provisional measures protect the right in a manner
that does not unnecessarily burden the respondent. See, e.g., Paushok v. Mongolia,
Order on Interim Measures in Ad Hoc (UNCITRAL) Case of 2 September 2008, ¶¶79 et
seq.
33) See G. Born, International Commercial Arbitration 2666–89 (3d ed. 2021); Y. Derains &
E. Schwartz, A Guide to the ICC Rules of Arbitration 296–97 (2005).
35) UNCITRAL Model Law, 2006 Revisions, Art. 17B(2).
36) 2006 ICSID Rules, Rule 39(4); Y. Derains & E. Schwartz, A Guide to the ICC Rules of
Arbitration 299 (2005).
38) 2021 ICC Rules, Art. 29 & App’x V; 2014 2013 SIAC Rules, Art. 30(2) & Sched. 1; 2021 ICDR
Rules, Art. 7 (“Emergency Measures of Protection,” involving appointment of special
“emergency arbitrator”); 2020 LCIA Rules, Art. 9B; 2015 NAI Rules, Art. 36; 2017 SCC
Rules, App’x II, Art. 1(2).
11
39) The FAA in the United States and the Code of Civil Procedure in France are prime
examples. See G. Born, International Commercial Arbitration 2704–11 (3d ed. 2021).
40) See, e.g., English Arbitration Act, 1996, §44(2); German ZPO, §1041(2); Singapore
International Arbitration Act, §12(1); Hong Kong Arbitration Ordinance, §61; Indian
Arbitration and Conciliation Act, Art. 9; Argentine Arbitration Act, Art. 56. See also G.
41) Resort Condos. Int’l Inc. v. Bolwell, (1993) 18 ALR 655 (Queensland Sup. Ct.).
42) S. Seas Nav. Ltd v. Petroleos Mexicanos of Mexico City, 606 F.Supp. 692 (S.D.N.Y. 1985)
(“if an arbitral award of equitable relief based upon a finding of irreparable harm is
to have any meaning at all, the parties must be capable of enforcing or vacating it at
the time it is made”). See also Metallgesellschaft AG v. MV Capitan Constante, 790, F.2d
280, 282 83 (2d Cir. 1986).
43) German ZPO, §1041(2).
45) UNCITRAL Model Law, 2006 Revisions, Art. 17H(1).
47) See, e.g., Singapore International Arbitration Act, §§2(1), 12(6); Hong Kong Arbitration
Ordinance, §22B; New Zealand Arbitration Act, Art. 2(1); Malaysian Arbitration Act, Art.
2(1); Fijian International Arbitration Act, Art. 2; Bolivian Conciliation and Arbitration
Law, Arts. 67–71.
49) McCreary Tire & Rubber Co. v. CEAT SpA, 501 F.2d 1032 (3d Cir. 1974).
50) Id. at 1038.
51) Cooper v. Ateliers de la Motobecane, SA, 442 N.E.2d 1239 (N.Y. 1982).
52) Id. at 1243.
53) Carolina Power & Light Co. v. Uranex, 451 F.Supp. 1044 (N.D. Calif. 1977).
54) Uranex, 451 F.Supp. at 1051–52.
55) See, e.g., Stemcor USA Inc. v. CIA Siderurgica do Para Cosipar, 895 F.3d 375, 380 & n.2
(5th Cir. 2018) (finding “subject matter jurisdiction under the Convention [for a federal
court] to order state-law provisional remedies”); Benihana, Inc. v. Benihana of Tokyo,
LLC, 784 F.3d 887, 894–95 (2d Cir. 2015); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d
822, 826 (2d Cir. 1990) (“We hold that entertaining an application for a preliminary
injunction in aid of arbitration is consistent with the court’s powers pursuant to [the
Convention]”); Deutsche Mexico Holdings Sarl v. Accendo Banco, SA, 2019 WL 5257995,
at *6 (S.D.N.Y.) (“that an arbitration has already begun and the parties have
appeared therein does not prevent a court from entertaining a request for interim
relief”).
56) Filanto SpA v. Chilewich Int’l Corp., 789 F.Supp. 1229 (S.D.N.Y. 1992), appeal dismissed,
984 F.2d 58 (2d Cir. 1993).
57) Channel Tunnel Group Ltd v. Balfour Beatty Constr. Ltd [1993] AC 334, 354 (House of
Lords).
58) A different analysis is required where an arbitration agreement forbids court-
ordered provisional measures. In those instances, Article II requires giving effect to
the prohibitions on court-ordered provisional relief.
59) See supra pp. 243–46 (Italy, Thailand, China).
60) See Swiss Law on Private International Law, Arts. 183, 185.
61) See, e.g., Benihana Inc. v. Benihana of Tokyo LLC, 784 F.3d 887, 894–95 (2d Cir. 2015)
(“Where the parties have agreed to arbitrate a dispute, a district court has
jurisdiction to issue a preliminary injunction to preserve the status quo pending
arbitration”); Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262 (5th Cir. 2012);
Toyo Tire Holdings of Am., Inc. v. Cont’l Tire N. Am., Inc., 609 F.3d 975, 981 (9th Cir. 2010)
(“district court may issue interim injunctive relief on arbitrable claims if interim
relief is necessary to preserve the status quo and the meaningfulness of the
arbitration process – provided, of course, that the requirements for granting interim
relief are otherwise satisfied”). See G. Born, International Commercial Arbitration
2731–33 (3d ed. 2021).
62) See English Arbitration Act, 1996, §44.
63) See Gerald Metals SA v. Timis [2016] EWHC 2327 (Ch) (English High Ct.) (English courts
lack power to order provisional measures where emergency arbitration is available
under LCIA Rules).
64) Ohio Revised Code, Annotated §2712.36. See also Revised Uniform Arbitration Act,
§8(b) (2000) (“After an arbitrator is appointed and is authorized and able to act: … (2)
a party to an arbitration proceeding may move the court for a provisional remedy
only if the matter is urgent and the arbitrator is not able to act timely or the
arbitrator cannot provide an adequate remedy”).
65) French Code of Civil Procedure, Art. 1449(1).
66) See English Arbitration Act, 1996, §44; Revised Uniform Arbitration Act, §8(b) (2000);
Ohio Revised Code, Annotated §2712.36.
67) See Gerald Metals SA v. Timis [2016] EWHC 2327 (Ch) (English High Ct.) (English courts
lack power to order provisional measures where emergency arbitration is available
under LCIA Rules).
12
69) See, e.g., German ZPO, §1033; Netherlands Code of Civil Procedure, Arts. 1022a-c;
Swedish Arbitration Act, §25; Hong Kong Arbitration Ordinance, §21; Japanese
Arbitration Law, Art. 14.
70) See 2013 UNCITRAL Rules, Art. 26(9); 2021 ICC Rules, Art. 28(2); 2013 AAA Rules, Rule
37(c); 2020 LCIA Rules, Art. 25(3); 2018 AIAC Arbitration Rules, Art. 26(9); 2018 DIS Rules,
Art. 25(3); 2017 SCC Rules, Art. 37(5); 2020 WIPO Rules, Art. 48(d).
71) See, e.g., Stemcor USA Inc. v. CIA Siderurgica do Para Cosipar, 927 F.3d 906, 911 (5th Cir.
2019) (Louisiana’s attachment statute permits attachment in aid of arbitration); SCL
Basilisk AG v. Agribusiness United Savannah Logistics LLC, 875 F.3d 609, 620 (11th Cir.
2017) (“[Georgia statute] confirms that a court’s grant of interim relief, utilizing
existing state remedies, is not inconsistent with submitting a merits determination to
an arbitrator”); Cetelem SA v. Roust Holdings Ltd [2005] EWCA Civ 618 (English Ct.
App.); A v. OOO ‘Ins. Co. Chubb’ [2019] EWHC 2729 (Comm) (English High Ct.); Co. 1 v. Co.
2 [2017] EWHC 2319 (QB) (English High Ct.).
72) For example, many U.S. courts apply generally-applicable standards for granting
provisional relief in federal courts. See, e.g., Benihana, Inc. v. Benihana of Tokyo, LLC,
784 F.3d 887 (2d Cir. 2015); Deutsche Mexico Holdings Sarl v. Accendo Banco, SA, 2019
WL 5257995 (S.D.N.Y.); Espiritu Santo Holdings, LP v. L1bero Partners, LP, 2019 WL
2240204 (S.D.N.Y.); Leber v. Citigroup, Inc., 2019 WL 1331313 (S.D.N.Y.); Merrill Lynch,
Pierce, Fenner & Smith, Inc. v. Kramer, 816 F.Supp. 1242 (N.D. Ohio 1992) (granting
preliminary injunction in aid of arbitration, applying generally-applicable
preliminary injunction standards, forbidding disclosure of trade secrets and
solicitation of clients). Compare authorities cited in following two footnotes.
73) See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1053 (4th
Cir. 1985) (“where a dispute is subject to mandatory arbitration under the [FAA], a
district court has the discretion to grant a preliminary injunction to preserve the
status quo pending the arbitration of the parties’ dispute if the enjoined conduct
would render that process a ‘hollow formality’”).
74) See, e.g., Co. A v. Co. B, [2018] HKCU 3575 (H.K. Ct. First Inst.) (Hong Kong courts may
order interim measures in aid of international arbitration, but power will be used
“sparingly”); Leviathan Shipping Co. Ltd v. Sky Sailing Overseas Co. Ltd, [1998] HKC 347
(H.K. Ct. First Inst.).
75) See UNCITRAL Model Law, 2006 Revisions, Art. 17J; Swiss Law on Private International
Law, Arts. 176(1), 183(2).
76) See, e.g., Application of Deiulemar Compagnia di Navigazione SpA v. MV Allegra, 198
F.3d 473 (4th Cir. 1999) (inspection of vessel, located in United States, ordered in aid
of arbitration seated in London); Espiritu Santo Holdings, LP v. L1bero Partners, LP,
2019 WL 2240204, at *13 (S.D.N.Y.); Beluga Chartering GmbH v. Korea Logistics Sys., Inc.,
589 F.Supp.2d 325 (S.D.N.Y. 2008) (denying motion to vacate attachment pending
arbitration in London); Tampimex Oil Ltd v. Latina Trading Corp., 558 F.Supp. 1201
(S.D.N.Y. 1983) (granting attachment of New York bank account in aid of arbitration in
London).
77) Channel Tunnel Group Ltd v. Balfour Beatty Constr. Ltd [1993] AC 334 (House of Lords).
78) See English Arbitration Act, 1996, §2(3)(b) (English courts may exercise power to order
provisional measures in aid of foreign-seated arbitration except where
“inappropriate”). See also Petrochemical Logistics Ltd v. PSB Alpha AG [2020] EWHC
975 (Comm) (English High Ct.) (declining to continue injunction related to Swiss-
seated arbitration for insufficient connection to England); U&M Mining Zambia Ltd v.
Konkola Copper Mines plc [2013] EWHC 260 (Comm) (English High Ct.) (rejecting
argument that courts at arbitral seat have exclusive jurisdiction to grant interim
measures in aid of arbitration).
79) Judgment of 20 October 1989, 1991 RSDIE 368 (Zug Kantonsgericht) (Swiss courts can
order provisional measures even if the seat of the arbitration is abroad); “Lady
Muriel” v. Transorient Shipping Ltd, [1995] HKCA 615 (H.K. Ct. App.) (granting provisional
relief in aid of foreign arbitration based on presence of assets in Hong Kong); Chen
Hongqing v. Mi Jingtian, [2017] HKCFI 1148 (H.K. Ct. First Inst.).
80) See, e.g., Nearctic Nickel Mines Inc. v. Canadian Royalties Inc., [2012] No. 500-09-
021110-101 (Québec Cour d’Appel); African Mixing Tech. Ltd v. Canamix Processing Sys.
Ltd, [2014] No. 2130 (B.C. Sup. Ct.); TLC Multimedia Inc. v. Core Curriculum Tech., Inc.,
[1998] B.C.J. No. 1656 (B.C. Sup. Ct.) (court has power under Article 9 of Model Law to
grant provisional measures in aid of foreign arbitration); Silver Standard Res. Inc. v.
JSC Geolog, (1998) 168 D.L.R.4th 309 (B.C. Ct. App.) (same); Judgment of 15 May 2014, N-
Allo scrl v. Avaya Belgium sprl, described in A Contribution by the ITA Board of
Reporters (Brussels Tribunal de Commerce); R1 Int’l Pte Ltd v. Lonstroff AG, [2014] No.
69 (Singapore High Ct.).
81) UNCITRAL Model Law, 2006 Revisions, Art. 17J (“irrespective of whether their place is
in the territory of this State”).
82) Indian Arbitration and Conciliation Act, Art. 9. Compare Marriott Int’l Inc. v. Ansal
Hotels Ltd, XXVI Y.B. Comm. Arb. 788 (2001) (Delhi High Ct. 2000) (“the Court has no
jurisdiction to entertain such a petition for grant of interim measures in relation to
an arbitration being held outside India”) with Bhatia Int’l v. Bulk Trading SA, (2002) 4
SCC 105 (Indian S.Ct.) (Indian courts can provide judicial assistance in aid of
arbitration seated outside India) with Bharat Aluminium, Co. v. Kaiser Aluminium Tech.
Servs., Inc., (2012) 9 SCC 552 (Indian S.Ct.).
13
83) See Indian Arbitration and Conciliation (Amendment) Act, 2015; Indian Arbitration
and Conciliation Act, §§9, 17.
84) Channel Tunnel Group Ltd v. Balfour Beatty Constr. Ltd [1993] AC 334, 358 (House of
Lords) (emphasis added).
85) See, e.g., Sabbagh v. Khoury [2019] EWCA Civ 1219 (English Ct. App.); Petrochemical
Logistics Ltd v. PSB Alpha AG [2020] EWHC 975 (Comm) (English High Ct.) (declining to
continue injunction related to Swiss-seated arbitration for insufficient connection to
England); Co. 1 v. Co. 2 [2017] EWHC 2319 (QB) (English High Ct.) (“The court has power
to refuse to exercise any power granted by §44 if the fact that the seat of the
arbitration is outside England and Wales … makes it inappropriate to do so”). See
also G. Born, International Commercial Arbitration 2751–54 (3d ed. 2021).
KluwerArbitration
14
KluwerArbitration
Document information Chapter 12: Multi-Party and Multi-Contract Issues in

Publication International commercial disputes frequently involve either multiple parties or multiple
International Arbitration: contracts. (1) These proceedings raise a number of complex procedural issues in
Law and Practice (Third international arbitration.
Edition)
§12.01 CONSOLIDATION, JOINDER AND INTERVENTION: GENERAL
CONSIDERATIONS
Bibliographic In national court litigations, a variety of mechanisms exist for consolidating arguably
reference separate disputes between the same or different parties into a single proceeding, or for
'Chapter 12: Multi-Party and permitting intervention, joinder or “vouching in” of additional parties into an ongoing
Multi-Contract Issues in proceeding. For example, if A, B and C enter into related contracts (A with B and B with C),
International Arbitration', separate actions between A versus B and B versus C can often be consolidated into a
in Gary B. Born , single action; alternatively, C can either intervene in, or be joined in, an existing action
International Arbitration: between A and B. In each of these instances, there is generally no requirement that all
Law and Practice (Third parties consent to such consolidation, joinder or intervention. Rather, typically based
Edition), 3rd edition only on considerations of fairness and efficiency, courts have broad discretion to order
(© Kluwer Law consolidation or joinder or to permit intervention.
International; Kluwer Law Consolidating separate international arbitrations, and permitting joinder or intervention
International 2021) pp. 265 of additional parties into an international arbitration, can provide some obvious
- 278 advantages. As with litigations, a single arbitration can in some circumstances be more
efficient than two or more separate arbitrations. A single proceeding permits the same
P 266 savings of overall legal fees, arbitrators’ fees, witnesses’ time, preparation efforts and
other expenses that exist in litigation. Further, a consolidated arbitration reduces the
risk of inconsistent results in two or more separate proceedings. (2)
On the other hand, consolidation, joinder and intervention in arbitration also have
disadvantages, which may outweigh their perceived benefits or favor one party at the
expense of another. Although “[l]ack of chronological coordination, potentially conflicting
findings and the possibility of diverging judgments may cast disfavor upon arbitration,”
care must be taken to ensure that “the remedy [is not] worse than the evil.” (3)
First, consolidating arbitrations or permitting joinder can raise significant problems with
respect to the appointment of arbitrators. Many arbitrations involve three-person
tribunals, with each party nominating one member of the tribunal, and the two party-
nominated arbitrators agreeing upon a third arbitrator. If there are three (or more)
parties to the arbitration, who have distinct interests, this model often does not work. (4)
Second, parties frequently have expectations that their arbitral proceedings will be
confidential; as discussed above, (5) some national laws and institutional rules require
such treatment, absent contrary agreement. The joinder of additional parties into an
existing dispute between two (or more) parties entails an obvious, albeit limited, loss of
confidentiality, raising concerns not present in national court litigations.
Third, although multi-party arbitral proceedings may be more efficient as a general
matter, the savings in cost and time will not always be distributed evenly among the
parties. In particular instances, some parties’ arbitration costs may actually increase
because of consolidation or joinder, even though other parties’ legal costs (or total legal
costs) are decreased. Moreover, a multi-party arbitration may well take longer than a
P 267 simple two-party proceeding, thus potentially delaying enforcement of a party’s rights.
§12.02 CONSOLIDATION, JOINDER AND INTERVENTION UNDER NATIONAL

ARBITRATION LEGISLATION
As discussed below, consolidation and joinder/intervention in international arbitration
are generally possible only where all parties have agreed to such a result, typically in
their original arbitration agreement. In instances where such an agreement exists, the
New York Convention and national law ordinarily permit consolidation, joinder and/or
intervention, notwithstanding subsequent objections of a party. Where the parties have
not consented, however, national law generally does not permit consolidation or
joinder/intervention – either through orders of an arbitral tribunal or a national court.
As discussed below, a few states diverge from this approach by permitting non-
consensual consolidation or joinder/intervention, citing considerations of efficiency and
fairness. These jurisdictions are exceptions to the general recognition of the parties’
autonomy (and the approaches they adopt should be seen as contrary to the New York
Convention).
[A] Consolidation and Joinder/Intervention Pursuant to Parties’ Arbitration
1
Agreement
In almost all cases, the approach taken by national law is that consolidation and
joinder/intervention may be ordered by an arbitral tribunal, institution or a national
court, but only pursuant to the parties’ agreement. If the parties have not so agreed, both
the tribunal and local courts will lack the authority to order either consolidation or
joinder/intervention.
The Model Law is silent on the subjects of consolidation and joinder/intervention. In the
absence of specific statutory provisions, consolidation and joinder/intervention are
subject to the Model Law’s basic requirement (in Article 8) that arbitration agreements
be recognized and enforced. That is, consolidation and joinder/intervention are both
permitted and required – as an element of the parties’ agreement to arbitrate – where
that is what the parties have agreed, but are not otherwise either required or permitted.
In adopting the Model Law, some states have included amendments specifically
addressing consolidation, generally providing either courts or tribunals the power (where
the parties have so agreed) to consolidate arbitrations. These statutory provisions vary,
with a few providing the tribunal, (6) but the majority providing local courts, (7) with the
power to order consolidation. Some statutes only allow for joinder or intervention, and
not consolidation. (8) The essential condition for consolidation or joinder/intervention
under virtually all of these statutes is the parties’ agreement to such actions. For
example, British Columbia legislation provides for consolidation of arbitral proceedings
by the arbitral tribunal “[i]f the parties to 2 or more arbitration agreements have agreed,
in their respective arbitration agreements or otherwise, to consolidate the arbitrations
arising out of those arbitration agreements.” (9)
Similarly, the English Arbitration Act modified the UNCITRAL Model Law to include
provisions regarding consolidation. Section 35 of the Act provides that “[t]he parties are
P 268 free to agree” upon the consolidation of arbitral proceedings or that concurrent
hearings shall be held, but that “[u]nless the parties agree to confer such power on the
tribunal, the tribunal has no power to order consolidation of proceedings or concurrent
hearings.”
Like the original Model Law, the FAA’s text does not address consolidation or
joinder/intervention. Historically, some U.S. courts held that the FAA contains an implied
grant of authority permitting courts to order the consolidation of separate arbitrations –
even if the parties had not agreed to allow court-ordered consolidation. The seminal
decision was Compania Espanola de Petroleos, SA v. Nereus Shipping, (10) where the
Second Circuit ordered three parties to participate in a consolidated arbitration. The
court reasoned: “we think the liberal purposes of the [FAA] clearly require that this Act be
interpreted so as to permit and even to encourage the consolidation of arbitration
proceedings in proper cases.” (11) The court did not rely on the existence of any
agreement on consolidation in reaching this conclusion, and instead cited only interests
of efficiency. After Nereus, a number of U.S. court decisions ordered consolidation in the
absence of either an agreement authorizing consolidation or even a common arbitration
agreement binding all the parties. (12)
Despite these decisions, the overwhelming weight of U.S. precedent, including in the
Second Circuit, now rejects the stated reasoning in Nereus, instead holding that the FAA
does not authorize the consolidation of multiple arbitrations in the absence of the
parties’ agreement to such consolidation; rather, the FAA gives effect to the parties’
procedural autonomy to structure the arbitration as they think best. (13) As the Second
Circuit later held in Government of the United Kingdom v. Boeing Co.:
“‘A court is not permitted to interfere with private arbitration arrangements in
order to impose its own view of speed and economy. This is the case even
where the result would be the possibly inefficient maintenance of separate
proceedings.’ (quoting Am. Centennial Ins. Co. v. Nat’l Cas. Co., 951 F.2d 107, 108
(6th Cir. 1991))…. If contracting parties wish to have all disputes that arise from
the same factual situation arbitrated in a single proceeding, they can simply
provide for consolidated arbitration in the arbitration clauses to which they
are a party.” (14)
The rationale of this and other recent U.S. decisions is that the FAA provides for
recognition of agreements to arbitrate – including agreements with regard to
consolidated or non-consolidated arbitrations. Under this view, the FAA provides that
courts (and arbitral tribunals) may not order the consolidation of arbitrations unless this
is what the parties have agreed. Almost all subsequent U.S. decisions have reached the
P 269 same conclusion. (15)
An important corollary of holding that the FAA forbids court-ordered consolidation if the
arbitration agreement does not so provide is that the same principle requires
consolidation if all the parties have so agreed. Several U.S. courts have concluded in
particular cases that, if the parties agree upon consolidation, judicial orders for
consolidation are required. (16)
The general approach taken by national law in most jurisdictions to issues of
consolidation and joinder/intervention parallels that which should apply under the New
2
York Convention. As discussed above, Article II of the Convention requires giving effect to
all material terms of arbitration agreements – a requirement that extends to agreements
regarding consolidation and joinder/intervention. (17) Consequently, where the parties
have not agreed to permit consolidation, the Convention forbids court-ordered
consolidation; conversely, where the parties have agreed to consolidation, the
Convention requires Contracting States to respect that agreement.
[B] Nature of Agreement Required for Consolidation and Joinder/Intervention

In most cases, the parties’ arbitration agreement will not expressly address consolidation
or joinder/intervention: it will neither expressly preclude nor expressly authorize
consolidation. That is particularly true of ad hoc arbitration agreements, but also applies
to agreements incorporating institutional rules that do not address issues of
consolidation or joinder/intervention. Accordingly, in many cases, there will not be any
express statement of intentions by the parties regarding consolidation and
joinder/intervention.
There is no reason, however, that agreement to consolidation (or joinder/intervention)
cannot be implied. For example, a number of U.S. courts have held that an agreement to
consolidation can be implied – where the parties’ contract is silent – from contractual
provisions and structure, as well as from considerations of efficiency. (18) In one court’s
words:
“[a court has] no power to order … consolidation if the parties’ contract does
not authorize it … [b]ut in deciding whether the contract does authorize it the
court may resort to the usual methods of contract interpretation.” (19)
An implied agreement to consolidation arguably exists where three (or more) parties
agree to the same arbitration agreement contained in the same underlying contract. In
these circumstances, there is a substantial argument that the parties impliedly accepted
the possibility of consolidation of arbitrations under their multi-party arbitration
P 270 agreement and/or joinder of other contracting parties into such arbitrations. This
implied agreement would neither require nor forbid consolidation in all cases, but would
instead leave the decision of whether to consolidate two (or more) arbitrations to the
tribunal’s judgment in particular cases, taking into account efficiency, fairness and the
like.
A more difficult question arises when three (or more) parties agree to parallel arbitration
agreements in related (but different) underlying contracts. The better view in these
circumstances is that agreement to substantially similar dispute resolution provisions
(i.e., the same institutional rules, seat and number of arbitrators) implies acceptance of a
consolidated arbitration with joinder and intervention rights as among parties to the
relevant arbitration agreements. (20)
On the other hand, where the parties have entered into contracts containing different
dispute resolution provisions (e.g., ICC Rules in one arbitration clause and SIAC Rules in
another; Singapore seat in one clause and New York in another), there will be little basis
for concluding that they impliedly consented to consolidation or joinder/intervention. On
the contrary, by selecting divergent procedures, seats and/or appointing authorities, the
parties expressed their preference for incompatible dispute resolution mechanisms,
which ordinarily do not admit the possibility of mandatory consolidation. Likewise, where
the parties have entered into different contracts, some of which contain no dispute
resolution provisions, it is difficult to imply any agreement to consolidation, joinder or
intervention. (21)
[C] Consolidation and Joinder/Intervention Under National Law in Absence of

Parties’ Agreement
A few arbitration statutes provide for consolidation of arbitrations even absent the
parties’ affirmative agreement (express or implied). Article 1046(1) of the Netherlands
Code of Civil Procedure provides, among other things:
“In respect of arbitral proceedings pending in the Netherlands, a party may
P 271 request that a third person designated to that end by the parties order
consolidation with other arbitral proceedings pending within or outside the
Netherlands, unless the parties have agreed otherwise. In the absence of a
third person designated to that end by the parties, the provisional relief judge
of the district court of Amsterdam may be requested to order consolidation of
arbitral proceedings pending in the Netherlands with other arbitral
proceedings pending in the Netherlands, unless the parties have agreed
otherwise.”
Although the Netherlands Code provides for consolidation in the absence of affirmative
agreement, it does not permit consolidation where the parties’ agreement excludes this.
Similar legislation has been adopted in New Zealand and several Australian states. (22)
Notably, under most such statutes, parties may agree to exclude the possibility of
consolidation, with the statutory consolidation power constituting a default rule that the
parties are at liberty to alter.
3
Some U.S. state arbitration statutes provide for court-ordered consolidation of related
arbitrations, (23) in one case even where the parties’ agreement excludes consolidation.
(24) In 2000, the Uniform Arbitration Act was revised to include a statutory consolidation
provision granting courts in the arbitral seat power to order consolidation (even absent
agreement by the parties) in specified circumstances. (25) Some U.S. courts have relied
on such authority to consolidate arbitrations (without the parties’ agreement). To the
extent that state law consolidation rules provided for consolidation notwithstanding the
parties’ contrary agreement, they would be preempted by the FAA (and contrary to the
New York Convention), which requires enforcement of the parties’ arbitration agreement
in accordance with its terms.
§12.03 CONSOLIDATION, JOINDER AND INTERVENTION UNDER

INSTITUTIONAL ARBITRATION RULES
As noted above, most arbitration agreements are silent on consolidation and
joinder/intervention. In unusual cases, an agreement will contemplate multi-party
arbitration and include specially-drafted provisions for commencing arbitration,
appointing arbitrators, consolidation and/or joinder and the like. Nevertheless, as a
practical matter, it is rare to find tailor-made contractual provisions dealing with
consolidation, intervention or joinder. The vast majority of modern institutional rules
address these issues, particularly in recent revisions; this includes the 2021 ICC, 2016
SIAC, 2021 ICDR, 2020 LCIA, 2012 Swiss, 2018 HKIAC, 2015 CIETAC, 2019 JCAA, 2018 VIAC, 2017
SCC and 2020 WIPO Rules. Some institutional rules do not provide for consolidation,
intervention or joinder. For example, the 2010 and 2013 UNCITRAL Rules contain
provisions only on joinder; the 1976 UNCITRAL Rules are silent on the subject, as are the
P 272 2013 AAA Rules.
[A] Joinder and Consolidation Under ICC Rules

Those institutional rules which do address the subject of consolidation generally permit
the arbitral tribunal (or institution) to consolidate arbitrations in limited circumstances.
Article 4(6) of the 1998 ICC Rules provided that the ICC Court may “consolidate” two ICC
arbitrations if a party commences an ICC arbitration “in connection with a legal
relationship in respect of which arbitration proceedings between the same parties are
already pending under [the ICC Arbitration] Rules.” This provision was limited, permitting
consolidation only if two (or more) arbitrations were proceeding under the ICC Rules, in
connection with the “same parties” and if the arbitrations arose from the same “legal
relationship.” (26)
In contrast, the 2021 ICC Rules contain detailed provisions on multi-party issues. Article 7
of the 2021 ICC Rules allows a party to join an additional party before the appointment of
any arbitrator, provided that the additional party is party to the arbitration agreement
pursuant to which the arbitration is being conducted. Article 7 also allows additional
parties to be joined if: (a) all parties including the additional party agree, or (b) the
arbitral tribunal makes an order under Article 7(5). (27) Similarly, Article 10 of the 2021
Rules permits more liberal consolidation of separate arbitrations; in particular, the ICC is
authorized to consolidate two or more separate ICC arbitrations if: (a) there is an
agreement of the parties to that effect, (b) all of the claims in the arbitrations are made
under the same arbitration agreement or agreements, or (c) the claims are made under
different arbitration agreements, but “the arbitrations are between the same parties, the
disputes in the arbitrations arise in connection with the same legal relationship, and the
Court finds the arbitration agreements to be compatible.” (28) These provisions permit
relatively liberal consolidation of arbitrations brought under a single ICC arbitration
P 273 agreement(s) or under multiple, but compatible, ICC arbitration agreements; they do
not permit consolidation of ICC arbitrations and non-ICC arbitrations.
[B] Joinder Under SIAC Rules

The 2016 SIAC Rules include a number of provisions dealing with joinder and
consolidation. They address joinder in much more detail than earlier versions of the
Rules, opening the door to intervention by non-parties to an arbitration. Under Rule 7 of
the 2016 SIAC Rules, an application for joinder may made to either the SIAC Court (when
the arbitral tribunal has not yet been constituted) or the tribunal. In either case,
additional parties can be joined to an arbitration when either (a) the additional party to
be joined is prima facie bound by the arbitration agreement, or (b) all parties, including
the additional party to be joined, have consented to the joinder.
Rule 8 of the 2016 SIAC Rules also added expansive provisions on consolidation. Prior to
the constitution of the arbitral tribunal, consolidation is permitted by the SIAC Court
under Rule 8(1) in three situations: (a) if all parties agree to consolidation; (b) if all claims
made in the arbitrations fall under the same arbitration agreement; or (c) if the
arbitration agreements are “compatible,” and either (i) the disputes in the arbitrations
concern the same legal relationship(s), (ii) the disputes arise out of contracts consisting
of a principal contract and its ancillary contract(s), or (iii) the disputes arise out of the
same transaction or series of transactions.
After the constitution of the arbitral tribunal, requests for consolidation must be made to
4
that tribunal. Under Rule 8(7) of the 2016 Rules, the tribunal may consolidate two or more
arbitrations pending under the SIAC Rules into a single SIAC arbitration when:
“(a) all parties to the arbitrations agree to consolidation; (b) all the claims in
the arbitrations are made under the same arbitration agreement, the same
arbitral tribunal has been appointed in each of the arbitrations or no arbitral
tribunal has been constituted in the other arbitration(s); or, (c) the arbitration
agreements are compatible, the same arbitral tribunal has been appointed in
each of the arbitrations or no arbitral tribunal has been constituted in the
other arbitration(s) and the disputes arise out of (i) the same legal
relationship(s); (ii) contracts consisting of a principal contract and its ancillary
contracts; or (iii) the same transaction or series of transactions.”
[C] Joinder and Consolidation Under ICDR Rules

Article 9 of the 2021 ICDR Rules provides for a “consolidation arbitrator,” who decides
whether or not to consolidate arbitrations, as well as on the constitution of the tribunal in
the consolidated arbitration. The consolidation arbitrator shall “consult the parties and
… take into account all relevant circumstances” in deciding whether to consolidate. (29)
The consolidation arbitrator may be appointed under conditions similar to those in
Articles 10(a)-10(c) of the ICC Rules, and the parties are free to agree on the procedure of
P 274 his/her appointment; if no agreement is reached, he/ she will be chosen by the
AAA/ICDR. Article 8 permits joinder only if all parties, including the additional party
agree.
[D] Joinder and Consolidation Under LCIA Rules

In 2020, the LCIA Rules were revised to include provisions dealing with consolidation.
Articles 22(7) and 22(8) of the 2020 LCIA Rules permit consolidation of LCIA arbitrations by
either an arbitral tribunal or the LCIA Court in three circumstances. First, the arbitral
tribunal, with the approval of the LCIA Court, may consolidate LCIA arbitrations where all
parties have agreed to consolidation. (30) Second, consolidation may also be ordered
under the LCIA Rules by an arbitral tribunal without the parties’ specific agreement if two
or more LCIA arbitration (i) involve the same parties or arise out of the same transaction
or series of related transactions, (ii) are based on the same or compatible arbitration
agreements, and (iii) are conducted by the same arbitrators or where no arbitral tribunal
has been formed yet. (31) Third, the 2020 LCIA Rules also allow the LCIA Court to
consolidate proceedings in circumstances where the parties so agree in writing or no
tribunal has been constituted. (32)
Article 22(1)(x) on joinder provides that a tribunal may, unless otherwise agreed, “allow
one or more third persons to be joined in the arbitration as a party provided any such
third person and the applicant party have consented to such joinder in writing following
the Commencement Date or (if earlier) in the Arbitration Agreement; and thereafter to
make a single final award, or separate awards, in respect of all parties so implicated in
the arbitration.” This provision permits joinder of a party even when only one of the
existing parties to the arbitration (the applicant) and the party to be joined agree to such
joinder; the consent of other parties to the existing arbitration is not required.
[E] Joinder and Consolidation Under Swiss Rules of International Arbitration

Under the 2012 Swiss Rules of International Arbitration, the Swiss Chambers’ Arbitration
Institution has unusually broad discretion with respect to consolidation and
joinder/intervention. The Institution may refer a new case to a tribunal which has
previously been constituted for arbitral proceedings under the Swiss Rules (Article 4(1)).
The parties are deemed to have given their consent to consolidation in advance by
submitting the dispute to the Swiss Rules. While the institution has wide discretion when
deciding whether to consolidate proceedings, it is required to consider (a) the
relationship between the cases, and (b) the progress already made in the existing
proceedings. Article 4(1) of the Swiss Rules provides that the parties to a “new”
arbitration shall be deemed to have waived their right to participate in selection of the
tribunal (being required to accept the tribunal in the existing arbitration into which their
P 275 arbitration is consolidated).
The Swiss Rules also contain a broad provision regarding joinder/intervention. In effect,
Article 4(2) of the Swiss Rules grants the tribunal far-reaching discretion, “after consulting
with all of the parties, including the person or persons to be joined, taking into account
all relevant circumstances,” to order joinder or intervention of a third party into an
existing arbitration. A forced joinder of a third party under this provision raises issues
with regard to consent to the arbitration agreement, which must be resolved in
accordance with general rules applicable for the determination of the parties to an
arbitration clause.
[F] Joinder and Consolidation Under HKIAC Rules

Article 28(1) of the 2018 HKIAC Rules allows the HKIAC to consolidate arbitrations after
receiving a party’s Request for Consolidation and consulting with the parties and any
confirmed arbitrators. One of three conditions must be met: (a) “the parties agree to
5
consolidate”; or (b) “all of the claims in the arbitration are made under the same
arbitration agreement”; or (c) although the claims are made under multiple arbitration
agreements, the HKIAC finds that the arbitration agreements are compatible, there is a
common question of law or fact arising in all of the arbitrations, and the “rights to relief
claimed are in respect of, or arise out of, the same transaction or a series of related
transactions.” Notably, under Article 28(1)(c), consolidation is permitted even if the
parties to the arbitrations to be consolidated are not the same.
The joinder provisions in Article 27 are also more expansive than most institutional rules.
Under Article 27(1), if a tribunal has already been constituted, the tribunal decides
whether or not joinder of a new party will be allowed. First, joinder will be permitted
when it is determined that the additional party is prima facie bound by an arbitration
agreement under the HKIAC Rules and, secondly, when all parties, including the
additional party, agree. Under Articles 27(4) and (13), if the tribunal has not been
constituted, the HKIAC is permitted to join an additional party; furthermore, the HKIAC is
authorized to remove any arbitrators already appointed and appoint a new tribunal,
which, as a practical matter, makes joinder more practicable in many cases.
§12.04 CONSOLIDATION AND JOINDER/INTERVENTION: SELECTION OF

ARBITRAL TRIBUNAL(S)
One of the most complex aspects of consolidation and joinder/intervention in arbitration
involves the selection of the arbitral tribunal. In particular, the selection of a three-
person arbitral tribunal presents difficult questions when different arbitrations, involving
multiple parties, are consolidated or when new parties are joined in, or intervene in, an
existing arbitration.
A representative problem arises where a respondent joins additional parties to an
arbitration. In this case, the tribunal will (sometimes) already have been selected by the
(pre-existing) parties, and the new counterclaim-respondents or additional respondents
may have had no role in choosing any of the arbitrators. The same issues can arise when a
“new” arbitration involving parties B and C (without a tribunal) is consolidated with an
P 276 existing arbitration between parties A and B (with a tribunal), where A and B have
already selected the arbitrators in the existing arbitration, without C having had any
participation in the choice.
As these examples suggest, the selection of a tribunal in multi-party cases raises
important due process concerns. As discussed above, many jurisdictions require that the
parties be treated equally in the arbitral proceedings; this principle applies with
particular force to the parties’ participation in the constitution of the tribunal. It is,
however, difficult to ensure equality of treatment in selecting arbitrators in cases
involving consolidation or joinder/intervention.
The principle of equality of treatment was applied in Siemens AG and BKMI
Industrieanlagen GmbH v. Dutco Construction Co., (33) where the French Cour de Cassation
annulled an award made in a three-party arbitration in which the two “respondents” had
each claimed the right to appoint a separate arbitrator. The respondents had made a
joint appointment, but only under protest. In annulling the resulting award, the Cour de
Cassation reasoned that “the principle of the equality of the parties in the designation of
arbitrators is a matter of public policy; it can be waived only after the dispute has
arisen.” (34) The court apparently held that, if one party is entitled under the parties’
agreement to nominate a co-arbitrator, but the other parties are not, this constitutes
unequal treatment of the parties, which violates principles of procedural public policy.
Under this standard, it will ordinarily not be acceptable to consolidate arbitrations, or to
join a party to an existing arbitration, if that entails denying one party its right to appoint
an arbitrator (and to participate in selection of a presiding arbitrator), while the other
party (or parties) retain(s) that right; in each case, one party is denied an equal
opportunity to participate in selection of the tribunal, at best (where institutional rules
so provide) on the basis of an advance waiver. Under the rationale of the Dutco decision,
such advance waivers are unenforceable. (35)
In part as a reaction to the Dutco decision, most institutional rules have adopted
provisions dealing with appointment of arbitrators in multi-party cases. Thus, Article 10
of the 1998 ICC Rules was amended to provide that, in multi-party cases involving a three-
person tribunal, the claimants shall jointly nominate a co-arbitrator, and the
respondents shall then do the same. If any such joint nominations are not possible, the
ICC Court was then authorized by Article 10(2) to “appoint each member of the Arbitral
Tribunal” – giving the ICC, rather than the parties, authority to appoint all the arbitrators.
Later versions of the ICC Rules have not significantly changed this approach. Under
Article 12(6) of the 2021 ICC Rules, co-claimants and co-respondents are required to
jointly nominate co-arbitrators and the ICC Court retains the discretion to appoint the
P 277 entire tribunal where either the co-claimants or co-respondents are unable to agree
upon a joint nomination. Article 12(7) provides for a similar procedure where an
additional party is joined to the arbitration (requiring that party’s agreement with the
nomination of either the co-claimants or co-respondents).
Similarly, Article 8(1) of the 2020 LCIA Rules provides that, in multi-party cases, “the LCIA
6
Court shall appoint the Arbitral Tribunal without regard to any party’s entitlement or
nomination.” The only exception is where all parties agree to treat the multiple parties as
“represent[ing] collectively two separate ‘sides,’” each of which may nominate an
arbitrator. (36) Other institutional rules, including the SIAC, ICDR and HKIAC Rules, are
broadly similar in their approaches to the appointment of arbitrators in multi-party
cases. (37)
§12.05 MULTI-CONTRACT ISSUES IN INTERNATIONAL ARBITRAL

PROCEEDINGS
In practice, arbitral proceedings frequently involve multiple contracts, as well as
multiple parties. These proceedings raise less complicated procedural issues than multi-
party arbitrations. They also raise issues of interpretation of the arbitration agreement(s),
particularly as to questions of scope (e.g., does an arbitration clause in one contract
extend to disputes under other contracts); these issues are discussed above. (38)
A threshold procedural issue concerns whether an arbitral institution will accept a
request for arbitration involving claims under more than a single contract. This issue is
particularly acute where the institution, like the ICC, SCC or ICSID, must perform a
preliminary prima facie jurisdiction review. (39) Even where the arbitral institution
permits a multi-contract arbitration to proceed, however, the arbitral tribunal will be
required to determine (subject to possible subsequent judicial review) whether the scope
of the parties’ arbitration agreement(s) permits the proposed multi-contract arbitration.
P 277
References
1) Empirical evidence indicates that a significant number of international arbitrations
involve multi-p arty disputes, with roughly one-third of all ICC arbitrations involving
multiple parties. Furthermore, 17% of all multi-party cases in 2019 involved both
multiple claimants and multiple respondents. See ICC, ICC Dispute Resolution 2019
Statistics (2020); G. Born, International Commercial Arbitration 2761 (3d ed. 2021).
2) For example, one party to a tripartite dispute may be found liable to another party
in one arbitration, while in a second arbitration the same party may be denied
recovery from a different party on a theory inconsistent with the rationale of the first
proceeding. That result is unlikely in a consolidated arbitration.
3) Bernini, Overview of the Issues, in ICC, Multiparty Arbitration 161, 163 (1991).
4) All the members of the tribunal could be appointed by the appointing authority.
However, this would deny each party the opportunity to participate directly in
selecting the tribunal. That is a significant change in customary practice, which not
all parties may desire.
6) See, e.g., Irish Arbitration Act, §16 (“The arbitral tribunal shall not order the
consolidation of proceedings or concurrent hearings unless the parties agree to the
making of such an order”); Australian International Arbitration Act, §24; Peruvian
Arbitration Law, §39(4).
7) See, e.g., Hong Kong Arbitration Ordinance, Sched. 2, §2; Bermuda International
Conciliation and Arbitration Act, §9; New Zealand Arbitration Act, Sched. 2, §2.
8) See, e.g., United Arab Emirates Federal Arbitration Act, §22 (“The Arbitral Tribunal
may authorise the joinder or intervention of a third party into the arbitration dispute
whether upon request of a party or upon request of the joining party, provided that
he is a party to the Arbitration Agreement after giving all Parties including the third
party the opportunity to hear their statements”).
9) British Columbia International Commercial Arbitration Act, §27(2) (emphasis added).
Most other arbitration legislation which deals expressly with the subject of
consolidation or joinder/intervention is similar. See G. Born, International
10) Compañía Española de Petroleos, SA v. Nereus Shipping, 527 F.2d 966 (2d Cir. 1975).
11) Id. at 975 (emphasis added).
13) See, e.g., Champ v. Siegel Trading Co., 55 F.3d 269 (7th Cir. 1995) (no consolidation of
arbitration without consolidation provision in arbitration agreement); Am. Centennial
Ins. Co. v. Nat’l Cas. Co., 951 F.2d 107 (6th Cir. 1991) (“a district court is without power to
consolidate arbitration proceedings, over the objection of a party to the arbitration
agreement, when the agreement is silent regarding consolidation”). See G. Born,
14) U.K. v. Boeing Co., 998 F.2d 68, 73–74 (2d. Cir. 1993) (emphasis added).
16) See, e.g., Conn. Gen. Life Ins. Co. v. Sun Life Assur. Co. of Canada, 210 F.3d 771, 775 (7th
Cir. 2000) (interpreting arbitration agreement to permit court-ordered
consolidation); Protective Life Ins. Corp. v. Lincoln Nat’l Life Ins. Corp., 873 F.2d 281
(11th Cir. 1989) (“the sole question for the district court is whether there is a written
agreement among the parties providing for consolidated arbitration”).
7
17) See supra p. 59.
19) Conn. Gen. Life Ins. Co., 210 F.3d 771.
20) This view is not free from doubt, because the parties also can be assumed to have
impliedly expected that their arbitral proceedings with one another would be
confidential and that they would be able to participate in selection of the tribunal in
such proceedings (in accordance with customary practice). Nevertheless, where all
the parties are involved in the same transaction, with interrelated contractual
obligations, their agreement to identical dispute resolution provisions can fairly be
interpreted as impliedly accepting consolidation and/or joinder or intervention by
other parties to such dispute resolution provisions. That conclusion is supported by
the parties’ general obligation to resolve their disputes by arbitration in good faith,
which can be interpreted as including cooperation in an efficient dispute resolution
process that avoids the risks of inconsistent decisions.
21) If an agency, alter ego, guarantor or similar relationship permits treating a non-
signatory as party to the arbitration agreement in one contract, then there will be
arguable grounds for permitting or ordering joinder/intervention or consolidation.
See supra pp. 114–19. That is because all “parties” (including non-signatories) have
acceded to the same arbitration agreement. Absent such circumstances, however,
the parties who are sought to be joined will not even be party to the arbitration
agreement, much less able to require (or be subject to) joinder or consolidation in
relation to arbitral proceedings under such agreement.
22) See, e.g., New Zealand Arbitration Act, §6(2), Sched. 2, Art. 2 (in relation to domestic
arbitration); New South Wales Commercial Arbitration Act, §27C.
23) See, e.g., California Code of Civil Procedure §1281.3(1)-(3).
24) See Massachusetts General Laws Annotated, C. 251, §2A (“A party aggrieved by the
failure or refusal of another to agree to consolidate one arbitration proceeding with
another or others, for which the method of appointment of the arbitrator or
arbitrators is the same, or to sever one arbitration proceeding from another or
others, may apply to the superior court for an order for such consolidation or such
severance. The court shall proceed summarily to the determination of the issue so
raised …. No provision in any arbitration agreement shall bar or prevent action by the
court under this section.”) (emphasis added).
25) Revised Uniform Arbitration Act, §10(a) (2000).
26) As interpreted by the ICC Court, the 1998 ICC Rules almost entirely prohibited joinder
or intervention of an additional party in an existing arbitration (save where the
parties agree separately thereto). Thus, institutional practice accorded the claimant
in an ICC arbitration freedom to structure “its” arbitration as it chooses, naming (or
not naming) the other parties to the arbitration that it thinks fit (provided that they
are parties to the arbitration agreement). Historically, this meant that the parties
named as respondents could not join additional parties as co-respondents, nor
implead additional parties as claimants or counter-claim respondents; it also meant
that other parties could not intervene in the arbitration if they had not been named
in the request for arbitration. See Y. Derains & E. Schwartz, A Guide to the ICC Rules of
27) Article 7(5) of the 2021 ICC Rules provides “Any Request for Joinder made after the
confirmation or appointment of any arbitrator shall be decided by the arbitral
tribunal once constituted and shall be subject to the additional party accepting the
constitution of the arbitral tribunal and agreeing to the Terms of Reference, where
applicable. In deciding on such a Request for Joinder, the arbitral tribunal shall take
into account all relevant circumstances, which may include whether the arbitral
tribunal has prima facie jurisdiction over the additional party, the timing of the
Request for Joinder, possible conflicts of interests and the impact of the joinder on
the arbitral procedure. Any decision to join an additional party is without prejudice
to the arbitral tribunal’s decision as to its jurisdiction with respect to that party.”
28) Article 8 of the 2021 ICC Rules allows for cross-claims between multiple parties
(“made by any party against any other party”), which also includes claims made by
co-parties in the same role, such as one respondent against another respondent.
Similarly, Article 9 confirms that claims under multiple contracts may be asserted in
a single arbitration (regardless whether they are asserted under a single arbitration
agreement or multiple arbitration agreements).
29) 2021 ICDR Rules, Art. 9(3).
30) Id. at Art. 22(7)(i).
31) Id. at Art. 22(7)(ii).
32) Id. at Art. 22(8).
33) Judgment of 7 January 1992, Sociétés BKMI et Siemens v. Société Dutco, 119 J.D.I.
(Clunet) 707 (1992) (French Cour de Cassation Civ. 1e), Note, Jarrosson.
34) Id. at 708.
35) On the other hand, parties arguably can be expected to have anticipated that
consolidation or joinder may result in the loss of the party’s opportunity to nominate
an arbitrator and in an appointing or national court appointing all the arbitrators.
Further, there is a substantial argument that the Dutco rationale, and particularly its
invalidation of advance waivers of rights to participate in constituting the arbitral
tribunal, cannot be reconciled with the effect given to the parties’ agreed arbitral
procedures under Articles II and V(1)(d) of the New York Convention.
8
36) 2020 LCIA Rules, Art. 8(1). The LCIA Rules parallel the ICC Rules, but make it more
likely that the LCIA will appoint all the members of the tribunal, without regard to the
parties’ nominations.
37) See, e.g., 2016 SIAC Rules, Rule 12(2) (“Where there are more than two parties in the
arbitration, and three arbitrators are to be appointed, the Claimant(s) shall jointly
nominate one arbitrator and the Respondent(s) shall jointly nominate one arbitrator.
… In the absence of both such joint nominations having been made within 28 days of
the date of commencement of the arbitration or within the period otherwise agreed
by the parties or set by the Registrar, the President shall appoint all three arbitrators
and shall designate one of them to be the presiding arbitrator.”); 2021 ICDR Rules, Art.
13(5); 2018 HKIAC Rules, Art. 8(2); 2019 JCAA Rules, Art. 29; 2017 SCC Rules, Art. 17(5).
Some rules also contain provisions that empower the appointing authority to revoke
appointments already made, and therefore enable consolidation at later stages. See,
e.g., 2021 ICDR Rules, Art. 9(6); 2018 HKIAC Rules, Art. 28(8); 2012 Swiss Rules, Art. 5(3).
39) In most cases, arbitral institutions will inquire whether the relevant agreements all
involve the parties to the arbitration, relate to a single transaction and do not
contain irreconcilable dispute resolution provisions. For example, where different
contracts contain provisions for ICC arbitration and national court jurisdiction,
provisions for arbitration in Geneva (in English) and Paris (in French), the ICC has
refused to permit an attempted multi-contract arbitration to proceed. Whitesell &
Silva-Romero, Multiparty and Multicontract Arbitration: Recent ICC Experience, in ICC,
Complex Arbitrations 7, 14–18.
KluwerArbitration
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International Arbitration

Week 1: August 7 to August 10 (Prof. Duggal)

• Introduction to international arbitration

Core Readings: Born, Chapters 1 and 3. PDF - pages 3 to 47

Tuesday, August 8, 2023: Appointment and Challenges of Arbitrators

Core Readings: Born, Chapter 7. PDF - pages 49 to 70

Wednesday, August 9, 2023: The Arbitral Process and Evidentiary Framework

• The arbitral lifecycle

Core Readings: Born, Chapters 8-9. PDF - pages 72 to 105

• Non signatories and Multi-Party Issues

• Introduction to international arbitration

Core Readings: Born, Chapters 1 and 3

Document information Chapter 1: Introduction to International Arbitration

§1.01 DEFINITION OF INTERNATIONAL ARBITRATION

[A] What Is “Arbitration”?

[B] Forum Selection Clauses and National Courts

[C] Other Forms of Alternative Dispute Resolution

[4] “Baseball” or “Final-Offer” Arbitration

[D] “International” Arbitration

§1.02 REASONS FOR INTERNATIONAL ARBITRATION

[A] Efficiency and Expedition

[C] Commercial Competence and Expertise

[E] Finality of Decisions

[F] Party Autonomy and Procedural Flexibility

[H] Arbitration Involving States and State-Entities

§1.03 POPULARITY OF INTERNATIONAL ARBITRATION

§1.04 CONTEMPORARY INTERNATIONAL ARBITRATION CONVENTIONS

[A] New York Convention

[B] Inter-American Convention

[C] European Convention

§1.05 CONTEMPORARY NATIONAL ARBITRATION LEGISLATION

[A] Supportive National Legislation

[B] 1985 UNCITRAL Model Law and 2006 Revisions

[C] Less Supportive National Legislation

§1.06 AD HOC AND INSTITUTIONAL ARBITRATION

[A] Institutional Arbitration

[B] Ad Hoc Arbitration

[C] Relative Advantages and Disadvantages of Institutional and Ad Hoc Arbitration

[D] UNCITRAL Arbitration Rules

[E] Leading International Arbitral Institutions

§1.07 ELEMENTS OF INTERNATIONAL ARBITRATION AGREEMENTS

[A] Submission Agreement Versus Arbitration Clause

[B] Critical Elements of International Arbitration Agreements

[5] Number, Method of Selection and Qualifications of Arbitrators

[C] Other Provisions of International Arbitration Agreements

§1.08 OVERVIEW OF CHOICE OF LAW IN INTERNATIONAL COMMERCIAL

[A] Law Applicable to Substance of Parties’ Dispute

[B] Law Applicable to Arbitration Agreement

[C] Procedural Law Applicable to Arbitral Proceedings

[D] Choice-of-Law Rules Applicable in International Arbitration

[E] International Guidelines and Best Practices

§1.09 INVESTOR-STATE ARBITRATION

[A] ICSID Convention

[B] Bilateral Investment Treaties

Document information Chapter 3: Formation and Validity of International

Bibliographic §3.01 FORMATION OF INTERNATIONAL ARBITRATION AGREEMENTS

[B] Standard of Proof for International Arbitration Agreements

[C] Essential Terms of International Arbitration Agreements

[D] “Pathological” Arbitration Clauses

[E] Formal Validity of International Arbitration Agreements

[5] 2006 UNCITRAL Recommendations

[F] Substantive Validity of International Arbitration Agreements

§3.02 WAIVER OF RIGHT TO ARBITRATE