International Commercial Arbitration

by Van Den Berg, Albert Jan

• ISBN13: 9789041122193
• ISBN10: 9041122192
• Format: Paperback
• Copyright: 2003-12-01
• Publisher: Kluwer Law Intl

Summary

The collected papers in ICCA Congress Series no. 11, as reflected in its title, address important contemporary questions in international commercial arbitration. Included are contributions written by participants in the UNCITRAL Working Group on Arbitration and Conciliation on its current work on the requirement of a written form for an arbitration agreement, interim measures of protection and UNCITRAL's Model Law on International Commercial Conciliation. Further contributions give leading practitioners' views on illegality in the formation and performance of contracts or in the conduct of the arbitration, examining questions on how the arbitral tribunal should deal with these vexed issues and how forgery and fraud may be detected. The factors that lead to acceptance by parties of the decisions of arbitrators are dealt with in contributions on the psychological aspects of dispute resolution. The volume concludes with a series of articles on arbitration under investment treaties written by experienced arbitrators and practitioners, with special emphasis on ICSID and NAFTA and the emerging issues of transparency, accountability and review.Contains lengthy articles on the ongoing work of UNCITRAL on proposed amendments to the UNCITRAL Model Law on International Commercial Arbitration and the recently adopted Model Law on International Commercial ConciliationDetails the current thinking on the requirement of an arbitration agreement in writing and how this can be accommodated by the UNCITRAL Model Law and the 1958 New York ConventionAddresses the granting of interim measures by arbitral tribunals and their enforcement by national and foreign courtsAnalyzes issues raised by illegality in the formation and performance of contracts and in the conduct arbitrations and provides a systematic overview of the answers given by legislation, arbitrators and courtsProvides insight into the attitudes of arbitrators and parties regarding dispute settlement processesAddresses the changing public perception of arbitration under investment treaties

Table of Contents

PREFACE
Albert Jan van den Berg, General Editor	v
TABLE OF CONTENTS	vii
ADDRESSES
Karen Gough
Welcome Address	1	(2)
Fali S. Nariman
Welcome Address Opening Ceremony	3	(4)
Opening Address	7	(2)
Tribute to Sir Michael Kerr	9	(2)
Tjaco T. van den Hout
Luncheon Address: The Influence of International Commercial Arbitration on the Permanent Court of Arbitration	11	(8)
CONTEMPORARY QUESTIONS
The Requirement of a Written Form for an Arbitration Agreement
Toby Landau
The Requirement of a Written Form for an Arbitration Agreement: When "Written" Means "Oral"	19	(63)
Interim Measures of Protection
Donald Francis Donovan
The Scope and Enforceability of Provisional Measures in International Commercial Arbitration: A Survey of Jurisdictions, the Work of UNCITRAL and Proposals for Moving Forward	82	(68)
Jacomijn van Haersolte-van Hof
Interim Measures of Protection - A European and Continental Perspective	150	(13)
Cecil O.D. Branson, Q.C.
The Enforcement of Interim Measures of Protection "Awards"	163	(16)
Christopher R. Drahozal
Party Autonomy and Interim Measures in International Commercial Arbitration	179	(11)
Do We Need a Model Law of Conciliation?
Shavit Matias
Developing Mechanisms for the Resolution of International Disputes: The UNCITRAL Model Law on International Commercial Conciliation	190	(19)
Aspects of Illegality in the Formation and Performance of Contracts
Richard H. Kreindler
Aspects of Illegality in the Formation and Performance of Contracts	209	(52)
Illegality in the Conduct of Arbitration
Bernard Hanotiau
Misdeeds, Wrongful Conduct and Illegality in Arbitral Proceedings	261	(27)
Karen Mills
Corruption and Other Illegality in the Formation and Performance of Contracts and in the Conduct of Arbitration Relating Thereto	288	(12)
Christoph Liebscher
The Challenge of Awards on the Basis of Criminal Acts	300	(14)
The Detection of Forgery and Fraud
Peter V. Tytell
The Detection of Forgery and Fraud	314
THE PSYCHOLOGICAL ASPECTS OF DISPUTE RESOLUTION
Shari Seidman Diamond
Psychological Aspects of Dispute Resolution: Issues for International Arbitration	327	(16)
Anne Marie Whitesell
The Psychological Aspects of Dispute Resolution	343	(5)
Teresa Giovannin
The Psychological Aspects of Dispute Resolution; Commentary	348	(7)
ARBITRATION UNDER INVESTMENT TREATIES
Nigel Blackaby
Public Interest and Investment Treaty Arbitration	355	(11)
Dr. Karl-Heinz Böckstiegel
The Role of the Arbitrators in Investment Treaty Arbitration	366	(10)
Pierre Lalive
Some Objections to Jurisdiction in Investor-State Arbitration	376	(16)
Guillermo Aguilar Alvarez and William W. Park
The New Face of Investment Arbitration; Capital Exporters as Host States under NAFTA Chapter 11	392	(34)
Shuji Yanase
Bilateral Investment Treaties of Japan and Resolution of Disputes with Respect to Foreign Direct Investment	426	(18)
David A.R. Williams
Challenging Investment Treaty Arbitration Awards - Issues Concerning the Forum Arising from the Metalclad Case	444	(27)
POSTSCRIPT
V.V. Veeder
Postscript	471	(10)
List of Participants	481	(30)
List of ICCA Officers and Members	511