Procedural Law in International Arbitration

by Petrochilos, Georgios

• ISBN13: 9780199249480
• ISBN10: 0199249482
• Format: Hardcover
• Copyright: 2004-06-03
• Publisher: Oxford University Press

Summary

This book comprehensively analyses the relevant legislative practice of all major arbitration venues in the world, as well as the arbitral practice of a number of arbitral institutions. The book proposes an analytical model for the determination of the procedural law of international arbitration, as well as a number of 'model' legislative provisions of substantive and private international law.

Author Biography

Georgios Petrochilos was educated in Athens, Strasbourg, and Oxford. He obtained his doctorate from Oxford, where he also taught public and private international law. He currently practises in the fields of international arbitration and international law from the Paris office of Freshfields Bruckhaus Deringer.

Table of Contents

Note on Citation and Tables	xv
Tables of International Treaties and Conventions	xix
Tables of Municipal Legislation	xxxvii
Tables of Authorities	liii
Tables of Arbitral Awards	xcix
Tables of Arbitration Rules	cvii
Tables of Model or Proposed Legislation, Restatements, etc	cxxi
List of Abbreviations and Short Titles	cxxxi
Introduction	1	(1)
The Area of Inquiry: International Commercial Arbitration	6	(9)
The Object of Inquiry	15	(27)
The Elements and Functions of the Lex Fori	15	(3)
Difficulties with the Concept of the Lex Fori in International Arbitration	18	(20)
Why the Lex Arbitri is Potentially Relevant to the Arbitral Procedure	38	(4)
The Purpose and Method of the Inquiry	42	(3)
The Structure and Argument of this Book	45
The Theoretical Thinking on the Law of the Arbitration	1	(1)
Introduction to the Notions	4	(4)
Seat Theories	8	(20)
The Terratorialists	8	(10)
Imputed Choice of Forum: The 1957 Resolution of the Institut de Droit International	18	(10)
Legal Localization	28	(10)
The Procedural Law Criterion	29	(5)
The Legal Continuum Theory	34	(2)
The Displacement of Jurisdiction Criterion	36	(2)
Approaches to Delocalization	38	(14)
Transnational Arbitration	39	(7)
Delocalization by Contract Theory	46	(6)
Concluding Remarks: Desiderata	52
The Law of the Arbitration in National Laws	1	(1)
Localization by Choice of Law: Its Shortcomings and Abandonment	2	(28)
Greece, pre-1999	3	(4)
Germany, pre-1998	7	(3)
France, pre-1981: Deni de Justice?	10	(4)
England, pre-1996: Presumptions Canonized	14	(15)
Conclusions	29	(1)
The Basic Tenets of Modern Arbitration Law	30	(69)
The Concept of the Seat of the Arbitration as the Basis of Functional Jurisdiction	31	(42)
Procedural Autonomy as a Matter of Substantive Law	73	(11)
Exclusion of Setting Aside by Agreement	84	(15)
Supervision and Support at the Seat of an Arbitration	99	(1)
An International Law Requirement	99	(3)
Setting Aside for Procedural Misconduct	102	(18)
Support Jurisdiction	120
Human Rights Law Requirements in International Arbitration	1	(1)
International Law Creates Obligations for States	4	(7)
An Arbitration Agreement is a Waiver of the Right to State-Administered Justice	11	(39)
A Waiver of What?	11	(2)
Formal and Substantive Requirements of Validity	13	(5)
Waiver of the Right to have Recourse to the Courts to Challenge an Arbitral Award	18	(22)
The Implications of Arbitration Costs for the Right of Access to Justice	40	(10)
A Right to a `Fair Arbitration'?	50	(45)
Independence and Impartiality	53	(32)
Party Equality and Due Process	85	(7)
Reasonable Time and Public Hearing	92	(3)
Are Arbitral Tribunals Bound by the ECHR?	95	(18)
Arbitral Tribunals	96	(12)
Arbitral Institutions	108	(5)
An International Obligation to Supervise and Assist Arbitral Proceedings?	113	(14)
Jurisdiction and Responsibility	115	(3)
Consensual and Statutory Arbitration	118	(9)
Conclusions	127
Procedural Law and Rules in Arbitral Practice	1	(1)
What is `Procedure' and `Procedural Law' in Arbitral Practice?	5	(18)
No Need to Characterize an Issue as Procedural	6	(1)
The Parties may Vary the Law of the Arbitration and Arbitration Rules	7	(9)
An International Arbitral Tribunal must Strive to Apply Generally Accepted Procedural Principles	16	(7)
A Survey of Arbitration Rules	23	(45)
Rules of National Institutions for Foreign Trade	25	(13)
Universal Rules	38	(27)
Conclusions	65	(3)
Overview of Arbitration Practice with Particular Reference to ICC Practice	68	(50)
Choice of Procedural Law in Arbitration Agreements	68	(21)
The Practice of Arbitral Tribunals	89	(29)
General Principles of Arbitral Procedure	118	(1)
The Need for Statements of Good Practice	119	(6)
Certain Procedural Principles Applicable in International Arbitration	125
Arbitrations Involving a State or an International Organization	1	(1)
Introduction	2	(7)
The Iran-United States Claims Tribunal	9	(41)
The International Law Foundations of the Tribunal	11	(4)
The Netherlands has no International Responsibility for the Acts of the Tribunal	15	(7)
The Algiers Declarations and the Jurisprudence of the Tribunal	22	(28)
Foreign Investment Treaty Arbitration	50	(26)
Arbitration under Bilateral Investment Treaties	52	(8)
Arbitration under Multilateral Investment Agreements	60	(3)
ICSID Arbitration in Particular	63	(13)
Arbitrations between Private Parties and International Organizations	76	(43)
Arbitration before ad hoc and other Non-Permanent Arbitral Tribunals	77	(37)
Particular Arrangements: Standing International Tribunals	114	(5)
States as Arbitrating Parties	119	(58)
Arbitral Practice	120	(30)
Who Needs Internationalization of Arbitral Proceedings?	150	(9)
Literature Survey	159	(5)
As a Rule, an Arbitration Agreement with a Private Party will Constitute a State's Consent to the Jurisdiction of the Courts	164	(8)
Principles of Interpretation of Arbitration Agreements	172	(5)
Conclusions	177
Enforceability of Awards Annulled in their State of Origin	1	(1)
Article V(1)(e) within the General Convention Framework	4	(21)
The Text and its History: Does `May' Mean what it Says?	6	(8)
Article V(1)(e) in Context	14	(11)
The Case Law	25	(25)
The French Paradigm: Discounting Annulment Exclusively through Article VII	25	(20)
A Discretionary Standard: The United States Chromalloy Case	45	(5)
The Proper Limits for Discounting Annulment	50	(18)
Correlating Articles V and VII of the Convention	51	(4)
Grounds for Exercising Discretion to Enforce	55	(13)
Policy Considerations: The Case for Restraint	68	(18)
The Principles Involved	69	(7)
Corrective Mechanisms	76	(5)
Finality at All Cost?	81	(5)
Conclusions	86
A Nexus Between an Award and a Municipal Law? International and A-National Awards in the New York Convention	1	(1)
Some Clarifications	1	(7)
Foreign and Non-Domestic Awards	8	(59)
Legislative History	8	(20)
Analysis: Article I(1) as a Single-Purpose Vehicle	28	(23)
Non-Domestic Awards	51	(14)
Conclusions	65	(2)
Awards of the Iran-United States Claim Tribunal	67	(20)
The Issues	67	(6)
The Approach of the Courts	73	(10)
Some Distinctions and a Postscript on Nomenclature	83	(4)
A-National and Stateless Awards	87	(18)
The Enforcement of A-National and Homeless Awards in Practice	90	(10)
An Award by Any Other Name	100	(5)
Conclusions	105
What Does the Future Hold?	1	(388)
Bibliography	389	(34)
Index	423