.. sation paid by the parties to the arbitrators, which is often also set by institutional rules. It is fundamental that arbitral institutions themselves do not arbitrate the merits of the parties’ dispute. This is the responsibility of the particular individuals selected by the parties or by the institution as arbitrators. Arbitrators virtually never are employees of the arbitral institution, but are qualified private persons selected by the parties or the orbital institution.
The arbitral institution confines itself to the task of an appointing authority, which chooses the arbitrators if the parties cannot agree. 2. Ad Hoc Arbitration Ad hoc arbitration is not conducted under the auspices or supervision of an arbitral institution. Instead, private parties simply select an arbitrator or arbitrators, who resolve the dispute without institutional supervision. The parties will sometimes also select a preexisting set of procedural rules designed to govern ad hoc arbitrations.
The United Nations Commission on International Trade Law (UNCITRAL) has published a commonly used set of such rules. Less frequently, the parties’ arbitration agreement will attempt to set forth the relevant procedural rules or the arbitral panel will independently formulate a special set of procedural rules, tailored to the specific needs of the parties and their dispute. In either ad hoc or institutional arbitration, parties usually will (and certainly should) designate an appointing authority, that will select the arbitrators(s) if the parties cannot agree. Both institutional and ad hoc arbitration have strengths. Institutional arbitration is conducted according to a standing set of procedural rules and supervised, to a greater or lesser extent, by a professional staff. This reduces the risk of procedural breakdowns, particularly at the beginning of the arbitral process, and technical defects in the arbitral award.
Similarly, the institution lends its standing to any award that is rendered, which enhances the likelihood of voluntary compliance and judicial enforcement. On the other hand, ad hob arbitration is typically more flexible and less expensive (since it avoids often substantial institutional fees). Moreover, the growing size and sophistication of the international arbitration bar, and the international legal framework for commercial arbitration, has reduced somewhat the benefits of institutional arbitrations. Nonetheless, many experienced international practitioners prefer the more structured, predictable character of institutional arbitration, at least in the absence of unusual circumstances arguing for an ad hoc approach. (Von Mehren) 3.
Leading Arbitral Institutions Different arbitral institutions typically offer somewhat different products. The three leading international arbitral institutions are the ICC, the AAA, and the LCIA. Each is briefly described below. a. International Chamber of Commerce International Court of Arbitration The ICC’s International Court of Arbitration was historically regarded as the world’s leading international arbitral institution.
In recent years, the ICC’s annual intake of new cases has varied between 300 and 350 filings. For example, in 1991 and 1992, respectively, the ICC received 333 and 337 requests for arbitration. Based in Paris, and founded in 1919, the ICC is a broad-based, non-governmental institution active in international issues affecting businesses. The ICC draws its membership from business organizations and individual companies in more than 100 nations; in approximately 60 nations, National Committees have been organized to coordinate membership. Beginning with a European and North American focus, the ICC now includes participants from Asia, the Middle East, Africa, and elsewhere.
Among other things, the ICC undertakes studies of particular business and legal issues (generally with the objective of promoting world trade and harmonizing international trade practice) and represents the business community’s view in international organizations and other for a. The ICC has issued significant studies on such topics as the extraterritorial application of national laws, force majeure, letter of credit terms, and the like. The ICC also offers a variety of dispute-resolution facilities, including technical experts, conciliation and mediation, and emergency referees. Most important for present purposes, the ICC also offers-under the auspices of its International Court of Arbitration-supervised and binding dispute resolution through arbitration. The International Court of Arbitration was established in 1923. It presently consists of some 60 members, from nearly as many countries.
It meets in plenary session once each month, with smaller administrative committee meetings three times each months. The Court is assisted in these functions by a Secretariat, with its own 32-person legal and administrative staff, including a Secretary General, a General Counsel, and a number of staff attorneys. The International Court of Arbitration has promulgated the ICC Rules of Conciliation and Arbitration, most recently revised in 1975 and in 1988. (Cohn, The current ICC Rules are reproduced at Appendix J.) The Rules govern the conduct of arbitrations under the control of individual arbitral tribunals. The ICC’s International Court of Arbitration is not in fact a court, and it does not itself decide disputes or act as an arbitrator.
Rather, the Court is an administrative committee that acts in a supervisory and appointing capacity under the ICC Rules. The ICC International Court of arbitration’s four most significant functions under the Rules are (a) to appoint arbitrators when the parties are not able to agree on the identity of an arbitrator; (b) to resolve challenges to an arbitrator’s independence or other qualifications; (c) to-replace arbitrators who are prevented from fulfilling their functions or who do not comply with the ICC Rules; (d) to review draft terms of reference (described at infra pp. 80-81) and arbitral awards, prepared by individual ICC arbitral tribunals, for defects and inconsistencies; (e) to fix the arbitrators’ remuneration; and (f) to decide challenges to the prima facie jurisdiction of an arbitral tribunal. Under the ICC Rules, the International Court of Arbitration exercises a more detailed supervisory function over ongoing arbitrations than other leading arbitral institutions. In particular, the ICC’s scrutiny of terms of reference and arbitral awards is unique, as compared to the degree of supervision exercised by most other arbitral institutions, which has been both praised and criticized. On the other hand, as compared to the UNCITRAL, AAA International, and LCIA Rules, the procedural provisions of the ICC Rules are comparatively general and abstract, omitting many of the specific provisions contained in leading alternatives.
Each ICC arbitration is assigned to a particular ICC staff lawyer. Together, with an administrative assistance, the staff attorney handles in the first instance the supervisory and ministerial aspects of the Court of Arbitration’s duties. Among other things, the attorney assigned to a case is responsible for ensuring that notice of the arbitration is received by the respondent, seeing to it that the parties pay their administrative costs, and providing preliminary comments and recommendations to the Court concerning issues such as prima facie jurisdiction, draft awards, or challenges to arbitrators. In appointing arbitrators, the Court typically will request the views of the relevant National Committees of the ICC, although Article 2 (6) permits selection of arbitrators from countries without a national chairman if no party objects. National Committees often maintain lists of potential arbitrators, from which proposals will be made.
Except where a proposed candidate is unqualified or partial, the Court will typically adopt the National Committee’s proposal. While enjoying a first-class reputation, the ICC has sometimes been criticized for selecting arbitrators from a narrow circle of candidates and for having stagnated somewhat in recent years. The ICC is also widely-regarded as charging unusually high administrative fees, in order to support its centralized staff. The ICC’s fees are generally based primarily upon the amount in dispute and the number of arbitrators; the currently applicable table of fees is excerpted in Appendix J. Moreover, the ICC demands substantial advance payments of fees, which are held interest-free until disbursement. Particularly in smaller disputes, the ICC’s fees can be uneconomic. (Wetter) b.
American Arbitration Association The American Arbitration Association, based in New York, was founded in 1926. In terms of caseload and amounts in dispute, the AAA describes itself as the world’s largest arbitral institution. It administers more than 60,000 arbitrations or other forms of alternative dispute resolution each year, with specialized rules for numerous different industries. Outside the United States, however, the AAA is often seen as a national institution, and it has encountered difficulties appealing to non U.S. companies and counsel.
In 1991 and 1992, the AAA had international caseloads of 262 and 204 new filings respectively. In recent years the AAA has sought to broaden its appeal, particularly among non-Americans. Among other things, in 1991, the AAA promulgated a new set of rules designed specifically for international arbitrations (reproduced in Appendix I). The AAA International Arbitration Rules were based on extensive consultations with practicing lawyers and others. The rules were based principally on the UNCITRAL Rules, and were intended to permit a maximum of flexibility and a minimum of administrative supervision. The AAA appoints a case administrators for each arbitration, who can play an important role in early stages of an arbitration; in international cases, the AAA endeavors to appoint administrators with prior international experience.
In contrast to the ICC, however, the AAA has a less substantial administrative/legal staff and it plays a much less significant on-going supervisory role in the conduct of arbitrations. In particular, there is no decision as to prima facie jurisdiction by the AAA and no review of terms of reference, draft awards, or other decisions by arbitrators. Parties are free to mutually agree upon arbitrators, or methods of selecting arbitrators, in AAA arbitrations. If the parties cannot agree, the AAA will act as appointing authority. After consultation with the parties, the AAA will select an arbitrator, typically from existing lists of prospective arbitrators maintained by the AAA. Particularly in international cases, every effort is made to identify an arbitrator with appropriate experience.
The AAA also recently revised its fee schedule. Under the revision, a small advance payment (filing fee) to the AAA is required. Subsequent payments are based on the number of days of hearings (currently $150-200 per hearing day), plus processing fees payable periodically (currently $150-200 for each 90 days). The fees for the arbitrators are left to agreement between the parties and tribunal. They are generally based on hourly or daily rates, rather than on the ICC’s percentage of the amount in dispute. c.
London Court of International Arbitration The London Court of International Arbitrations is, by a fairly substantial margin, the second most popular European arbitration institution. Founded in 1892, and conscious of its claim to be the world’s oldest existing arbitral institution, the LCIA historically had a distinctly English focus. In recent years, that has changed somewhat, in part through a conscious effort commenced in 1985 to broaden its caseload and clientele. In 1993, the LCIA selected its first non-English president-Dr. Karl-Heinz Bckstiegel-and it now limits the number of English members of its Arbitration Court. Although the LCIA is formally independent, it is sponsored by the London-based Chartered Institute of Arbitrators, the Chamber of Commerce and Industry, and the Corporation of the City of London. The Chartered Institute provides training programs for arbitrators and maintains more than 30 panels of arbitrators with particular specialties.
More than 6,000 individuals are listed as qualified arbitrators by the Chartered Institute of Arbitrators. LCIA arbitrators are frequently drawn from these lists. Historically, in international commercial arbitrations, senior English lawyers (and particularly Queen’s Counsel and other barristers) constituted the majority of LCIA appointments. In recent years, however, the LCIA’s effort to internationalize its focus has been reflected in more diverse appointments. Like the ICC and AAA, the LCIA does not itself function as an arbitral tribunal, but instead administers a set of arbitration rules (reproduced in Appendix K) and appoints arbitrators.
As with the AAA, the LCIA does not maintain a legal and administrative staff comparable to that of the ICC. Rather, the President is more closely involved in selecting arbitrators, who are then not subjected to the same sort of step-by-step oversight that occurs under the ICC rules. Likewise, there is no LCIA review of draft awards or terms of reference. The LCIA’s caseload is substantially smaller than that of either the ICC or the AAA and it has more limited resources for promoting its services than either of those competitors. In 1992, it had a new case intake of approximately 60 cases.
The LCIA’s approach to administrative fees is similar to that of the AAA, with periodic payments during the course of the arbitration, based on tasks actually performed, rather than the ICC’s requirement of substantial advance payments based largely upon the amount in dispute. d. Other Arbitral Institutions In addition to the AAA, ICC, and LCIA, numerous small arbitral institutions exist. Among the better known are the International Center for the Settlement of Investment Disputes (ICSID), the Inter-American Commercial Arbitration Commission (IACAC), the Arbitration Institute of the Stockholm Chamber of Commerce, the Arbitral Center of the Federal Economic Chamber in Vienna, the Hong Kong International Arbitration Center, the German Arbitration Institute, the Cairo Regional Center and the Regional Center for Arbitration at Kuala Lumpur. An Introduction to International Treaties and Conventions Concerning International Commercial Arbitration Industrialized trading nations have long sought to establish a stable, predictable legal environment in which international commercial arbitration can occur. Because national arbitration laws have varied, and still vary, considerably, substantial uncertainties often attend the enforcement of international Arbitral agreements and awards.
To reduce these uncertainties, major trading nations have entered into international treaties and conventions designed to facilitate the transnational enforcement of arbitration awards and agreements. International agreements concerning commercial arbitration originally took the form of bilateral treaties. Later, multilateral conventions sought to facilitate international arbitration by encouraging the recognition of arbitration agreements and awards. The first such modern convention was the Montevideo Convention, signed in 1889 by various Latin American states. Like other early efforts in the field, the Montevideo Convention attracted few signatories and had little practical impact. 1. Geneva Protocol of 1923 & Geneva Convention of 1927 In 1923, at the behest of the International Chamber of Commerce, the Geneva Protocol of 1923 was adopted under the auspices of the League of Nations.
The Protocol was ultimately ratified by the United Kingdom, Germany, France, Japan, India, Brazil, and about a dozen other nations. Although the United States did not ratify the Protocol, the nations that did represented a very significant portion of the international trading community at the time. The Protocol’s primary focus was to require the enforcement of arbitration agreements (with respect to both existing and future disputes). In Addition, the Protocol also sought to facilitate the enforceability of Arbitral awards, although it addressed only the enforcement of awards within the state where they were made. The Protocol was augmented by the Geneva Convention for the Execution of Foreign Arbitral Awards of 1927. The Geneva Convention expanded the enforceability of arbitration awards rendered pursuant to arbitration agreements subject to the Geneva Protocol.
It did so by requiring the enforcement of such awards within any contracting state (rather than only within the state where they were made). The Geneva Protocol and Convention were major early steps towards an effective international framework for commercial arbitration. Nevertheless, in substantive terms, both agreements were subject to significant limitations on their scope, and the Convention was not widely ratified. More important, because of an apparent dearth of international commercial arbitrations at the time, neither agreement received much practical application nor had much practical effect. 2.
The New York Convention The successor to the Geneva Protocol and the Geneva Convention was the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Often referred to as the New York Convention, the treaty is by far the most significant contemporary international agreement relating to commercial arbitration. The Convention is reproduced in Appendix B. The Convention was signed in 1958 in New York after lengthy negotiations under U.N. auspices.
The Convention is widely regarded as the most important Convention in the field of arbitration and the cornerstone of current international commercial arbitration. It is set forth in English, French, Spanish, Russian, and Chinese texts, all of which are equally authentic. The Convention was designed 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 nations. (Scherk) In broad outline, the Convention: (a) requires national courts to recognize and enforce foreign Arbitral awards, subject to specified exceptions. (b) not with standing the Convention’s more limited title, requires national courts to recognize the validity of arbitration agreements (subject to specified exceptions), and (c) requires national courts to refer parties to arbitration when they have entered into a valid agreement to arbitrate that is subject to the Conventions. The New York Convention made significant improvements in the regime of the Geneva Convention of 1927.
Particularly important was its shifting of the burden of proving the validity of Arbitral awards and agreements. In the words of the President of the U.N. Conference on the Convention: It was already apparent that the document represented an improvement on the Geneva Convention of 1927. It gave a wider definition of the awards to which the Convention applied; it reduced and simplified the requirements with which the party seeking recognition or enforcement of an award would have to comply; it placed the burden of proof on the party against whom recognition or enforcement was invoked; it gave the parties greater freedom in the choice of the Arbitral authority and of the arbitration procedure, it gave the authority before which the award was sought to be relied upon the right to order the party opposing the enforcement to give suitable security. Equally important to the Convention’s success was timeliness, becoming available in the 1960s and 1970’s, as world trade began significantly to expand.
Despite its contemporary significance, the New York Convention initially attracted relatively few signatories. The Convention was drafted at the United Nations Conference on Commercial Arbitration held in New York in 1958. Twenty-six of the forty-five countries participating in the Conference ratified the Convention, but the United States did not, nor did it do so for some time. Many other nations, including the United Kingdom, Sweden, and most Latin American and African states, also failed to ratify the Convention for some time thereafter. In 1970, however, the United States reconsidered its position and acceded to the Convention.
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