Arbitration of International Business Disputes Studies in Law and Practice

by Park, William W.

• ISBN13: 9780199657131
• ISBN10: 0199657130
• Edition: 2nd
• Format: Hardcover
• Copyright: 2012-11-17
• Publisher: Oxford University Press

Summary

Arbitration of International Business Disputes2nd edition is a fully revised and updated anthology of essays by Rusty Park, a leading scholar in international arbitration and a sought-after arbitrator for both commercial and investment treaty cases. This collection focuses on controversial questions in arbitration of trade, financial, and investment disputes. The essays address some of the most interesting topics in cross-border business dispute resolution, many of which have endured over several decades and remain subject to radically different views. Examples include the proper role of judicial review, the allocation of jurisdictional tasks, evolution of arbitration's statutory and treaty framework, free trade and bilateral investment agreements, and the balance between fixed rules and arbitral discretion. The book is structured around three themes: arbitration's legal framework; the conduct of arbitral proceedings; and a comparison of arbitration in specific fields such as finance, intellectual property, and taxation. In each of these areas, analysis includes the tensions between fairness and efficiency, and the accurate application of substantive law as well as the implications of mandatory procedural norms. Augmented by more than a dozen new contributions and a revised introduction, this 2nd edition retains all of its earlier practical and scholarly relevance, and includes a Foreword by V. V. (Johnny) Veeder QC.

Author Biography

William W. (Rusty) Park is Professor of Law at Boston University, respected Arbitrator, and President of the London Court of International Arbitration. His practice and teaching focus on international financial and commercial transactions.

He was previously Director of Banking Law Studies at Boston University and has held visiting academic appointments at the universities of Cambridge, Dijon, Hong Kong, Auckland and Geneva, as well as the Fletcher School of Law and Diplomacy. He has served as arbitrator in ICC, AAA, LCIA, ICSID, IACAC, UNCITRAL and ad hoc proceedings, and arbitrates in French as well as English. He was appointed to the Panel of Arbitrators for the International Centre for Settlement of Investment Disputes in 2008.

Park has published widely and is also General Editor of Arbitration International, the Official Journal of the London Court of International Arbitration (LCIA).

Table of Contents

I. The Nature of International Business Arbitration
1. Change and Continuity: The Maturing of Arbitration
2. Arbitrator Integrity
3. Arbitration and Accuracy
4. The Politics of Arbitration
5. Arbitration s Procedural Matrix
II. Legal Framework: Courts, Statutes and Treaties
A. Arbitral Jurisdiction
1. Who Decides What? A Comment on Lesotho Highlands
2. The Arbitrability Dicta in First Options
3. The Contours of Arbitral Jurisdiction
4. Private Adjudicators and the Public Interest
5. The Arbitrator s Jurisdiction to Determine Jurisdiction
6. Non-Signatories and International Contracts
B. Judicial Supervision
1. Quis Custodiet Ipsos Custodes?
2. Why Courts Review Arbitral Awards
3. The Arbitral Situs and Lex Loci Arbitri
4. Saving the FAA
C. The Effect of Annulment
1. What is to be Done with Annulled Awards?
2. Duty and Discretion in International Arbitration
D. The Architecture of Arbitration
1. The Interaction of Courts and Arbitrators in England
2. Amending the Federal Arbitration Act
3. National Constraints on International Arbitration
4. The International Currency of Awards
5. Convention Violations and Investment Claims
6. Treaty Obligations and National Law
E. The Contractual Context
1. A Cautionary Tale About Hometown Justice
2. The Arbitration Clause: Drafting Considerations
III. Arbitral Proceedings: Establishing the Facts and Applying the Law
A. Counterpoise Between Fairness and Efficiency
1. Arbitration s Discontents: Of Elephants and Pornography
2. The Value of Rules and the Risks of Discretion
3. Two Faces of Progress
4. The Four Musketeers of Arbitral Duty
B. Substantive Norms
1. National Law and Commercial Justice
2. Neutrality, Predictability and Economic Cooperation
3. Lex Mercatoria
4. Rules and Standards in Private International Law
5. The Uses of Comparative Law in Arbitration
6. Framing the Case on Quantum
C. Procedural Norms
1. The Procedural Soft Law of International Arbitration
2. Procedural Default Rules Revisited
IV. Selected Issues for Further Study
A. Financial Transactions
1. Arbitration in Banking and Finance
2. Mass Claims and Dormant Swiss Accounts
B. Intellectual Property
1. Betting the Family Jewels: Intellectual Property
C. Taxation
1. Arbitrability and Tax
D. Investment Arbitration
1. The Challenge of Sovereignty
2. The New Face of Investment Arbitration
3. Legal Issues in the Third World s Economic Development
E. Comparing Arbitration and Court Selection
1. The Hague Choice of Court Convention
2. Bridging the Gap in Forum Selection
3. When and Why Arbitration Matters
Index