A PRIMER on International Arbitration for Board MEMBERS & Local COunsel

            Arbitration is not a new concept, in fact it has been used for centuries, with Plato writing about arbitration amongst the ancient Greeks. As international trade and commerce have grown over the past decades, the frequency of international arbitration proceedings has significantly increased since globalization of cross-border investments and trade has led to increased and ever more complex relationships between businesses, investors, and States. Hence, over the last 50 years or so, the international community has increasingly embraced arbitration, with many recognizing its importance as the primary means of resolving complex transnational disputes. For example, nearly half of the requests for arbitration filed with the International Chamber of Commerce (ICC) International Court of Arbitration since its creation in 1923 were filed in the 1980s with a steady increase in each decade thereafter with records in 2016 and 2017 and beyond.  

            According to the ICC alone, worldwide, 2,282 parties were involved in ICC Arbitration cases from 135 countries in 2018. Newly registered cases in 2018 represented an aggregate value of US$ 36 billion, with an average amount of US$ 45 million in dispute. The aggregate value of all pending disputes before the Court at the end of the year was US$ 203 billion, with an average value of $131 million and a median value of US$ 10 million. With the exception of 2016, which included 135 related small-claim cases arising from a single collective dispute, these statistics represent a new record for ICC Arbitration cases. In addition, for the top 11 international arbitration institutions this number increases to 6,288 in 2018, according to Global Arbitration News. This growth promises to continue through the 2020s, since international arbitration offers many distinct advantages to parties involved in international transactions. Of course, arbitration is not right for every party in every situation and an informed and considered decision need to be made depending upon a party’s particular circumstances and objectives.

            Principally, arbitration offers an international neutral forum for the resolution of a dispute so that neither party to an international transaction need be subject to the national courts of the other party.  Neither side wants to be at a procedural or substantive disadvantage by having to resolve a dispute in the home court of the other party.  Because international arbitration is now so routinely conducted, each party can feel comfortable proceeding in a forum with familiar procedures.

            International arbitration, as domestic arbitration, is conducted on a confidential basis.  Trade secrets, business information, and even the fact that the arbitration is taking place at all may thus, in many instances, be kept private.  This confidentiality can be particularly useful if the parties wish to continue their business relationship during or after the resolution of the particular dispute.  The ability to preserve a good business relationship exists to an even greater extent in international arbitration because many of these arbitrations, particularly those involving parties from civil law jurisdictions, are conducted principally through the submission of written evidence rather than oral testimony.  As a result, the proceedings are likely to be less confrontational since business executives will be subject to less of the intensive and difficult cross-examination that occurs in litigation, or even in domestic arbitration.

            Moreover, international arbitration awards are easier to enforce than foreign court judgments.  The New York Convention  and the Panama Convention  each provide straightforward procedures to enforce international arbitration agreements and foreign arbitral awards; they also limit the ability of the party resisting enforcement to challenge the award.  By contrast, the United States is not a party to any comparable international convention regarding court judgments.

            This summary describes the nature of the legal regime that governs international arbitration, the institutions that are frequently used in international arbitration, the manner in which international arbitrations are conducted, and the enforcement of international arbitration awards.  Although many aspects regarding arbitral law, procedures, and strategy applies to international arbitration as much as to domestic arbitration, this summary focuses on those areas in which international arbitration varies from domestic arbitration and on the different resources that are available to the parties in an international arbitration.

            I.  The Law Governing International Arbitration                               

            Each international arbitration is governed by two legal regimes.  The governing procedural law regulates the manner in which the arbitration is conducted, while the relevant substantive law provides the arbitrators with the legal principles by which they must resolve the dispute.

            The substantive law is often chosen by the parties and expressly stated in the contract, but, if it is not, the arbitrators apply choice-of-law rules to select the proper substantive law.  The applicable substantive law may have no connection at all to the forum in which the arbitration is conducted.

            In contrast, although the procedure governing the arbitration may be agreed upon by the parties or determined by the arbitrators, mandatory procedural requirements may be imposed by the procedural law of the country in which the arbitration is held.  Thus, before selecting a site for an international arbitration, a party should consider the national arbitration law of that country and the effect it may have on the proceeding.  Some countries’ laws are not as favorable to arbitration as others; some may provide for greater judicial interference or limit the flexibility of the parties in determining the manner in which the proceeding will be conducted.  Other countries may require that counsel or arbitrators be nationals of the forum country.  In general, the best countries in which to conduct an international arbitration are those that:  (1) severely limit the role of the courts, and (2) provide the parties with the greatest autonomy in fixing the manner in which the arbitration is conducted.

A.  Federal and State Laws

In the United States, the United States Arbitration Act (Pub.L. 68–401, 43 Stat. 883, enacted February 12, 1925) (FAA) governs international arbitrations.  Under the FAA, there is maximum party autonomy, as well as limited judicial interference.  In addition, virtually all of the states have their own statues, most of which are based on the Uniform Arbitration Act (UAA).  A number of states have also recently adopted statues specifically governing international arbitration, some of them modeled on the United Nations Commission on International Trade Law (UNCITRAL) model law, described below.  These new state statutes are intended to foster the state’s use as a forum for international arbitration.  The application of these statutes is unclear, however, since state arbitration laws are pre-empted to the extent that they conflict with the FAA.  Also, it is not always possible to determine whether a particular provision of the state arbitration law does conflict with the FAA.

B.  Other Countries’ Laws

            As the use of international arbitration grew in the 1980s, various countries enacted modern arbitration statues or amended their arbitration codes to provide a more attractive forum for conducting international arbitrations.  These countries include Austria, Belgium, France, Mexico, The Netherlands, Spain, and Switzerland.  In addition, in 1979, England amended its Arbitration Act to permit parties to international arbitrations to agree to opt out of the “stated case” procedure by which questions of law may be referred by arbitrators to courts for decision.  Most of these modern statues provide for limited judicial intervention.  At one extreme, Belgium has completely eliminated the ability of a party to challenge in its courts an arbitral award involving only non-Belgian parties.  The various national statues are more or less detailed from one another.  The Dutch statute, for example, is much more detailed than the Swiss statute.  Virtually all of the modern statues, however, provide few, if any, mandatory procedural rules.  The parties therefore have great autonomy in selecting the manner in which the arbitration is to be conducted.

C.  The UNCITRAL Model Law

           

Several countries have recently enacted a Model Law drafted by the United Nations Commission on International Trade Law (UNCITRAL) and adopted by the United Nations General Assembly in December 1985 (the UNCITRAL Model Law).  The Model Law was drafted over a period of three years by an UNCITRAL working group, consisting of delegates from approximately three dozen countries, in order to promote harmony among international arbitration statues.  The law strives to achieve the twin goals mentioned above of maximum party autonomy and limited judicial interference.  The law also is consistent with the UNCITRAL Arbitration Rules and the New York Convention, each of which the United Nations had previously adopted in order to promote the efficiency of international arbitration.

            In general, the UNCITRAL Model Law has been adopted by countries that did not have either “an up-to-date body of arbitration law” or “sufficient volume of arbitrations over a sufficient period to have permitted the growth of an expertise in putting their laws in practice.”  It has been adopted - at least to a significant degree - by Australia, Bulgaria, Canada (including several of its provinces), Cyprus, Hong Kong, and Nigeria and most recently by Republic of Korea (2016), Qatar (2017), Mongolia (2017), and Fiji (2017).

            The Model Law provides detailed procedures that apply in the event that the parties do not specify what procedures are to be followed.  Its subject matter includes the scope of permissible judicial intervention and arbitrations; stays of legal proceedings and interim measures of protection by a court; the number of manner of appointment of arbitrators and grounds and procedures for challenges; the competence of arbitrators to rule on their own jurisdiction and to order interim measures of protection; the conduct of arbitral proceedings; the nature of decision making by the arbitrators, including determination of the applicable law and the form and content of the award; recourse against the arbitral award; and recognition of arbitral awards, including enforcement procedures and grounds for refusal to recognize and enforce arbitral awards.

            II.  Forums for Conducting International Arbitrations

            A principal consideration in international arbitration is whether the proceeding should take place under the auspices of an international arbitral institution or whether it should be conducted on an ad hoc basis.  This section discusses some of the various arbitration institutions and sets of ad hoc rules that are available.

            A.  Arbitration Institutions

            There are many international arbitration institutions, of which the leading ones are the AAA, the ICC International Court of Arbitration, and the London Court of International Arbitration (LCIA).  These arbitral bodies offer institutional advantages that can facilitate the progress of an arbitration.  In addition to providing facilities and staff, the institutions offer comprehensive rules that provide a framework for the parties, but also grant autonomy to parties to adapt the rules as needed.  Some of the institutions also provide guidance and assistance to arbitrators to ensure that their final award will be enforceable.  Many arbitral institutions, however, charge substantial administrative fees, usually based upon the amount in controversy.

            1.  The American Arbitration Association.  The AAA is known primarily for domestic arbitration but is has handled an increasingly large number of international arbitrations as well.  The  American  Arbitration  Association-International  Centre  for Dispute Resolution^® (AAA-ICDR^®) announced that the ICDR provided alternative  dispute resolution services for 993 international cases, totaling $8.2 billion in claims, filed in 2018. The ICDR’s year-over-year caseload has remained relatively stable, with approximately 1,000 cases filed annually. The international cases filed in 2018 involved parties from 99 countries, and a variety of industries. Approximately 30 percent of the international cases filed with the ICDR in 2018 (294 in total) were multi-party  in  nature. The largest  categories  of international  cases  filed  in  2018 related  to disputes among  commercial  franchises  (272  cases),construction  companies  (113),technology  (58  cases), insurance (43), energy (40), and pharmaceutical/biotechnology (23) industries. To further promote its role in the international arbitration process, the AAA has promulgated International Arbitration Rules, effective March 1, 1991 (AAA Int’l Rules).  The rules are also designed to be used by other arbitral institutions as administering bodies.  According to the AAA,

[t]he overall approach taken is close consultation by the association with the parties in the early stages to organize the proceedings, broad arbitrator authority in the conduct of the arbitration sufficient administrative authority to resolve procedural impasses and institutional diligence to streamline and expedite the arbitration process.

The rules seek to combine the benefits of the ad hoc approach taken by the UNCITRAL Arbitration Rules, to which these new rules bear some similarity, with the efficiency that can be gained through the use of an arbitral institution to administer the arbitration. 

2.  The ICC International Court of Arbitration.  The ICC is the most commonly used institution in the international arbitration field.  Its rules provide for somewhat greater involvement by the institution in the arbitration proceeding than do the rules of most other institutions.  For example, if there is a question of the prima facie validity of the arbitration clause, the ICC will issue a preliminary ruling on that question.  As long as there appears to be an arbitration clause, the ICC will refer the matter to the arbitrators, but, if there does not appear to be a clause governing the dispute, it will refuse to do so.  The ICC also reviews the Terms of Reference, discussed below, which are framed by the parties and the arbitrators in the early stage of the proceedings, and it reviews the final award to make sure it is enforceable. 

3.  The London court of International Arbitration.  With its new rules promulgated in 1985, the LCIA is seeking to challenge the ICC’s predominance.  Its historical roots date back to 1883, while in 1981, the name of the Court was changed to the London Court of International Arbitration, to reflect the nature of its work, which was, by that time, predominantly international. The LCIA remains one of the bigger permanent international arbitration institutions today, with a current reported average of 303 cases per year. Its rules provide for less administrative intervention in the hope of moving the arbitration along more quickly.  Unlike the ICC, which requires most of the payment for its services early in the arbitration, the LCIA spreads the payments out over the course of the arbitration.  Unlike the other institutions, which appoint arbitrators from many different countries, the LCIA tends to appoint English Queen’s Counsels (Q.C.s) as its arbitrators. 

The LCIA provides services for arbitration, mediation, adjudication and ADR. It is important to note that the institution does not itself resolve disputes. Rather, it provides the necessary support for parties and for the arbitral tribunal throughout the proceedings.

Parties may also resort to the LCIA in ad hoc proceedings. In this case, the institution will act as an appointing authority, and it will assist the parties in the appointment of arbitrators, mediators and experts.

4.  Regional Arbitration Centers.  The Stockholm Chamber of Commerce and the Federal Economic Chamber of Commerce in Vienna are smaller institutions that generally handle East-West arbitrations.  The Stockholm Chamber of Commerce, for example, is frequently used as the arbitration forum in contracts involving the Peoples Republic of China.  Similarly, many regional  arbitration centers have been created during the past decade to promote arbitration involving those areas of the world.  Pacific Rim centers have been created in Vancouver, Hong Kong, Sydney, Melbourne, San Francisco and Los Angeles.  Other new arbitration centers include those in Milan, Quebec, Cairo, and Kuala Lumpur. 

5.  The International Center for the Settlement of Investment Disputes.  ICSID is a specialized tribunal for disputes regarding international investment contracts to which one party is a government.  It was established in Washington, DC, by the World Bank, as a means of encouraging governments to arbitrate disputes.  So far, approximately a dozen arbitrations have been conducted by ICSID.  ICSID’s rules provide that the losing party may seek to have the award annulled by a review committee.  To date, three awards that have been rendered by ICSID tribunals have been annulled, and the annulments have required entirely new arbitrations before additional tribunals.  Unfortunately, this time-consuming and burdensome process has undermined the usefulness of ICSID and the finality of its awards.

B.  Ad Hoc Rules. 

An ad hoc arbitration may in some circumstances be preferable to an arbitration conducted pursuant to the rules of one of the organizations described above.  In an ad hoc  arbitration, parties and arbitrators either develop their own rules in the arbitration agreement or at the time of the arbitration, or they use  standard rules that have been promulgated to assist parties in ad hoc arbitrations.  The most commonly used standard rules are the UNCITRAl Arbitration Rules.  In addition, the Center for Public Resources has recently issued an excellent set of Rules for Non-Administered Arbitration of Business Disputes (CPR Rules).  A number of arbitration institutions, such as the AAA, also offer a hybrid of the institutional and ad hoc approaches by providing a set of procedures for using the UNCITRAL Rules and simultaneously using the institution to act as an appointing authority or provide other necessary functions. 

 IV.  Enforcement of Foreign Arbitral Awards

            Unlike judgments entered in American courts, awards issued by arbitration panels cannot be enforced by the entity that renders them.  Arbitrators have no legal authority themselves to require any particular actions by the losing party.  Although historically most participants in international commercial arbitration - both private parties and states - comply with arbitral awards, some losing parties do not.  In these circumstances, the successful party must seek means external to arbitration to secure enforcement of the award.

 A.  The New York Convention

            The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) (“New York Convention”) provides the legal basis for the enforcement of most international commercial arbitration awards.  The Convention provides for mutual recognition and enforcement of arbitral awards by the contracting states.  By limiting defenses to confirmation of an award, it seeks to eliminate wasteful, duplicative litigation following an arbitration.  The Convention has been ratified or acceded to by over eighty countries.  The United States acceded to the Convention in 1970, when Congress passed the necessary implementing legislation.

            The New York convention applies to awards made in the territory of a state other than the state in which the recognition and enforcement of the award is sought, as well as to “arbitral awards not considered as domestic awards in the state where the recognition and enforcement are sought.”  This last approach takes into account factors such as the law that was applied in the arbitration.  The two-pronged test of applicability of the Convention is the result of a compromise between civil and common law nations.  As a result, the Convention applies to a broader range of arbitral awards than it would have if either of the two approaches had been adopted alone.

            The Convention provides that any member state may, at the time of its signing, ratification of, or accession to the Convention, declare that it will apply the Convention only to the recognition and enforcement of awards made in the territory of another Contracting State, or to differences arising out of legal relationships “considered as commercial under the national law of the State making such declaration.”  The United States adopted both reservations.  As a result, a United States court would enforce an arbitral award rendered in Switzerland, a signatory of the New York Convention, but not one rendered in Brazil, which has not ratified or acceded to the Convention.  The “commercial” limitation prevents recognition and enforcement of an arbitration award concerning, for example, an ancillary agreement relating to services in connection with a sale of goods, if under some nations’ domestic law such an agreement is not considered commercial.

            In establishing a prima facie case for enforcement under the Convention, the proponent of an award is required only to supply the original, or a certified copy, of the award and the arbitral agreement.  The burden of proving the invalidity of the award rests upon the defendant.  He may raise one of five grounds for the refusal of enforcement.  These grounds are detailed in Article V of the Convention:  (1) absence of valid arbitration agreement; (2) lack of a fair opportunity to be heard; (3) the award exceeds the submission to arbitration; (4) improper composition of the arbitral tribunal or improper arbitral procedure; or (5) the award has not yet become binding or has been stayed.

            American courts have generally been quite reluctant to overturn an award on the basis of any of the Article V defenses.  As the Supreme Court has noted:

            The goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.

Thus, courts have been careful to take into account the strong public policy favoring arbitration and to adopt standards and define defenses in a manner that can be uniformly applied on an international scale.  They have therefore construed narrowly any defenses to the enforcement or recognition of an award.

            Courts may refuse to enforce an award if the subject matter of the arbitration is not capable of settlement by arbitration under the law of the country in which enforcement is sought, or if it would be contrary to the public policy of that country.  In general, however, “[e]enforcement of foreign arbitral awards may be denied on this basis only where enforcement would violate the foreign state’s most basic notions of morality and justice.”

            B.  The Panama Convention

            The 1975 Inter-American Convention on International Commercial Arbitration, also known as the “Panama Convention“, is a significant multilateral agreement of which not all in the arbitration community are aware.

            The Convention was open to signature by all 35 Members of the Organization of American States (OAS) and entered into force on 16 June 1976.

            The Panama convention may also be used as a legal basis for enforcing an arbitral award rendered within the Western Hemisphere.  The Convention has been ratified by Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, the United States, Uruguay, and Venezuela.  Some Latin American countries, however,  have not ratified either the Panama Convention or the New York Convention.

  

            The Panama Convention is essentially a regional carbon copy of the New York Convention.  The principal difference between the two conventions is that the Panama Convention does not distinguish between foreign and domestic awards, and it is applicable to any arbitral decision with respect to a commercial transaction.  In addition, the Panama Convention provides that, if the parties do not select procedural rules for the arbitration, the Rules of the Inter-American Commercial Arbitration Commission shall automatically apply.  Most importantly, Article 5 of the Panama Convention allocates the burden of proof in the same manner and provides for the same defenses as Article V of the New York Convention.  The two Conventions, however, contain different procedures for the enforcement of the award.

            The United States implementing legislation provides that, if both the New York and Panama Conventions may apply, the Panama Convention shall be the one that governs.  In all other cases, however, the New York Convention governs.

            C.  State Law

            Arbitral awards may also be enforced in state courts.  Generally, states that have substantial contacts with international transactions and sophisticated commercial activities tend to be more hospitable to the enforcement of arbitration awards than states that do not have such connections.  Thus, it is important for a party to review state law since it may play a significant role with respect to the arbitration clause of the agreement. 

           

©  2017-2020 Juliette Passer, Esq.

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