Alternative Dispute Resolution in a Nutshell by Jacqueline Nolan-Haley

Author:Jacqueline Nolan-Haley
Language: eng
Format: epub
ISBN: 9780314285324
Publisher: West Academic
Published: 2014-09-15T00:00:00+00:00

X. INTERNATIONAL COMMERCIAL ARBITRATION

Arbitration is a favored method of resolving international commercial disputes for the same reason that it is appealing on the domestic front: speed, cost advantages, privacy, expertise of the decision-maker and procedural flexibility. At the international level, arbitration has additional advantages that include avoiding the unknown in a foreign courtroom and obtaining jurisdiction over foreign parties. In practice, however, international arbitration may be more expensive and protracted than domestic arbitration. Moreover, lawyers representing clients in international arbitration must adapt to the challenge of divergences in ethical practices.

Parties may participate in administered arbitration where they seek administrative assistance from organizations such as the American Arbitration Association (AAA), the International Chamber of Commerce (ICC), and the London Court of International Arbitration, all of which provide detailed rules for arbitration proceedings. Or they may prefer to conduct the arbitration themselves on an “ad hoc” basis. More recently, specialized forums for resolving disputes through arbitration have been established. The International Center for Settlement of Investment Disputes (ICSID) was established to provide foreign investors with a forum for resolving investment disputes. With the growth of Bilateral Investment Treaties (BITS) there has been a significant increase in arbitrations conducted under ICSID.

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International arbitration law in the United States is governed by both state and federal statutes. At the federal level, the FAA applies to contracts involving interstate and foreign commerce, as well as maritime transactions. Chapter 2 of the FAA has provisions that implement the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the “New York Convention.” This significant international agreement to which the United States is a party, provides for the recognition of arbitration agreements and for the enforcement of foreign arbitral awards. Article III provides:

Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

At the state level, every state has enacted its own arbitration statute that applies to intrastate arbitrations. In recent years, a number of states have enacted laws specifically governing international arbitration in an effort to create a hospitable climate for international commerce and trade. Many of these statutes are much more detailed than the FAA and include provisions for such items as jurisdiction, 237

choice-of-law, grounds for challenging the arbitrators, and arbitrator appointment procedure. Some states have drafted their statutes in accordance with the UNCITRAL Model Law on International Commercial Arbitration.

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ARBITRATION BIBLIOGRAPHY

J.J. Barcelo III, Who Decides the Arbitrator’s Jurisdiction? Separability and Competence—Competence in Transnational Perspective, 36 Vand. J. Transnat’l L. 1115 (2003).

T. Carbonneau, Cases and Materials on Arbitration Law and Practice, 6th edition (2012).

L. Cooper, D. Nolan & R. Bales, ADR in the Workplace, 2nd edition (2005).

F. Elkouri et al.

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