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    International Commercial Arbitration

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    anoopkabra
    1. International commercial arbitration has become increasingly important due to the expansion of global trade and the involvement of state enterprises in commercial transactions. 2. Arbitration is preferred over litigation because it is private, less formal, cheaper, and faster, and allows flexibility and preservation of business relationships. 3. There are several prominent international arbitration institutions that provide rules and administration for arbitration proceedings between parties from different countries.

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    International Commercial Arbitration

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    anoopkabra
    22 views22 pages
    1. International commercial arbitration has become increasingly important due to the expansion of global trade and the involvement of state enterprises in commercial transactions. 2. Arbitration is preferred over litigation because it is private, less formal, cheaper, and faster, and allows flexibility and preservation of business relationships. 3. There are several prominent international arbitration institutions that provide rules and administration for arbitration proceedings between parties from different countries.

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    1. International commercial arbitration has become increasingly important due to the expansion of global trade and the involvement of state enterprises in commercial transactions. 2. Arbitration is preferred over litigation because it is private, less formal, cheaper, and faster, and allows flexibility and preservation of business relationships. 3. There are several prominent international arbitration institutions that provide rules and administration for arbitration proceedings between parties from different countries.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PPT, PDF, TXT or read online from Scribd
    Download as ppt, pdf, or txt
    22 views22 pages

    International Commercial Arbitration

    Uploaded by

    anoopkabra
    1. International commercial arbitration has become increasingly important due to the expansion of global trade and the involvement of state enterprises in commercial transactions. 2. Arbitration is preferred over litigation because it is private, less formal, cheaper, and faster, and allows flexibility and preservation of business relationships. 3. There are several prominent international arbitration institutions that provide rules and administration for arbitration proceedings between parties from different countries.

    Copyright:

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    Download as PPT, PDF, TXT or read online from Scribd
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    of 22

    INTERNATIONAL COMMERCIAL

    ARBITRATION
    Efficiencies resolution of disputes on an
    international basis necessitated by :
    1. Rapid expansion of commercial trade
    between industrialized States and
    developing States.
    2. Growing role of State enterprises in
    commercial transactions.
    ARBITRATION
    • It is the most preferred method because :
    • Proceedings held in private, avoids publicity.
    • It is less formal than courts.
    • Cheaper and speedy than court proceedings.
    • Provides flexibility and mutually acceptable
    means because it is consensual.
    • No complexity of legal rules and building
    precedents.
    • Arbitrators usually chosen by parties
    processing commercial knowledge.
    • Simple justice : intricacies of national
    procedures in national courts and
    possibilities of national biases is avoided.
    • Does not destroy business relationships.
    • Arbitration may be ad hoc or institutional.
    • Developments of international trade have
    made institutional arbitration popular.
    • International Chamber of Commerce
    established a center in Paris (1923)to offer
    facilities to firms of all trades and industries for
    arbitral settlements of international disputes.
    • Similar centers also set up in USA and Soviet
    Union(1933).
    • International multilateral conventions signed in
    Geneva (1923 &1727), Washington.
    • Washington(1956), New York(1958) and
    Geneva (1961) made institutional arbitrations
    more efficient.
    INTERNATIONAL CENTER FOR
    SETTLEMENT OF INVESTMENT
    DISPUTES (1966)
    • Created by the Convention on the
    Settlement of Investment Disputes
    between States and Nationals of the
    States.
    COMPOSITION
    • Arbitrators : single or even number
    depending upon agreement otherwise 3 (one
    by each and third jointly).
    • Majority must be foreigners (other than the
    contracting State).
    • Law applicable : such rules of law as may be
    agreed upon between parties. In the absence
    of agreements, tribunal shall apply law of
    contracting State party to the dispute (host
    State)
    Cont…
    • And such rules of international law as may be
    applicable (Article 38 of ICJ).
    • UN Commission on International Trade Law
    (UNCITRAL) promulgated comprehensive
    arbitration rules (adopted by UNO-1976).
    • These envisage reason to an existing arbitral
    tribunal institution or Secretary General of the
    International Court of Arbitration at The Hague.
    CHOICE OF ARBITRATORS

    • Rules permit parties to participate in


    selection of sole or third arbitrator. If no
    consensus, either party to ask Secretary
    General to designate one.
    • AUTHORITY OF AWARD
    Building on the parties- no appeal or other
    remedy expect ;
    1. Revision (in case of newly discovered
    relevant facts).
    1. Amendments (in case of improper
    constitution of the tribunal, manifest
    excess of power by tribunal corruption,
    serious departure from a fundamental
    rule of procedure or failure to state
    reasons for the award) as contained in
    the rules.
    • Each contracting State is obliged to
    enforce arbitral obligations imposed by the
    award subject to Sovereign immunity.
    The Court of Arbitration of the International
    Chamber of Commerce
    • ICC(1919) a body uniting businessmen.
    • It set up Court of Arbitration(1922) in
    Paris.
    • Proceedings take place all around the
    world.
    • The function is to provide for settlements
    by arbitration of business disputes of an
    international character in accordance with
    ICC rules.
    Arbitration Clause proposed in
    rules
    • All disputes arising in connection with the
    persons contracts shall be finally settled
    under the rules of conciliation and
    arbitration of the ICC by one or more
    arbitrations appointed in accordance with
    the said rules.
    • The single or third arbitrator is nominated
    by a National Committee of ICC.
    Cont…
    • Any interest of arbitrator to be disclosed.
    • Court of Arbitration alone to judge grounds
    of challenge.
    • Parties free to determine the law to be
    applied by the arbitrator. If no indication,
    arbitrators to apply the law which he
    deems appropriate.
    Problems of International Arbitration

    • Developing countries and investors from


    industrialized nations negotiate special
    types of development agreements.
    NEED FOR :

    • Carefully chosen arbitration procedure.


    • Inclusion of an arbitration clause
    anticipating legal consequences.
    • Recognized arbitration rules.
    • Satisfaction of needs of the parties.
    • Basic understanding of the attitudes of
    developing countries towards arbitrations.
    PROBLEMS

    • Asian, African and Middle Eastern


    countries hesitate to enforce awards of
    foreign arbitral tribunals or to accept
    applications of foreign law to negotiations
    of conflicts involving a State entity. They
    prefer internal arbitration with misgivings.
    They adhere to CALVO DOCTRINE
    (requiring parties to submit to the local
    jurisdiction and application of local law).
    CONT…
    • Developing countries do not wish to see
    their disputed commercial relations
    determined by Western arbitral bodies
    outside their countries.
    • Foreign investors may avoid resolution of
    any dispute in the courts of a developing
    country where nationalist sentiments may
    militate against just and impartial decision.
    Cont…
    • Even countries recognizing validity of
    arbitration agreements under International
    Chamber of Commerce Rules often insist
    upon application of their own substantive
    law.
    • Principles of private international law are
    somewhat biased in favor of Western
    industrialized nations.
    Cont…
    • Arbitration not that less expensive : ICC
    proceedings based on a graduated
    percentage of the arbitrage of the
    disputes.
    • Unwilling States may halt arbitration
    proceedings at many stages.
    FUTURE PROSPECTS

    • Classic solution would be to agree to


    arbitration in a third country under
    internationally recognized rules.
    • Application of legal principles in a judicial
    manner is the strength of international
    arbitration.
    • Arbitration is an effective means of settling
    disputes between States which cannot be
    resolved by diplomatic means.
    Cont…
    • It has been placed on an equal footing with
    judicial settlements in the UN Charter.
    • Convention on Recognition and Enforcements of
    Foreign Arbitral Awards(1958), International
    Chamber of Commerce, World Bank’s
    International Center for the Settlement of
    International Disputes, UN commission on
    International Trade Law (UNCITRAL) have all
    provided growing popularity to international
    commercial arbitration.

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