Redfern and Hunter on International Arbitration 6th edition by Nigel Blackaby, Constantine Partasides, Alan Redfern, Martin Hunter ISBN 0198714254 978-0198714255
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ISBN 10: 0198714254
ISBN 13: 978-0198714255
Author: Nigel Blackaby, Constantine Partasides, Alan Redfern, Martin Hunter
This leading commentary on international commercial arbitration, now in its sixth edition, is an essential guide for arbitrators, lawyers, and students. Based on the authors’ extensive experience as counsel and arbitrators, it provides an updated explanation of all elements of the law and practice of arbitration.
This text provides an authoritative guide to the international arbitral process, from the drafting of the arbitration agreement to the enforcement of arbitral awards. The sixth edition has been updated to incorporate reference to the latest significant developments in the field such as the new LCIA, ICC and UNCITRAL Rules and new IBA Guidelines. There will also be an increased reference to international arbitral authority and practice from beyond Europe (China, India, and the US).
Following the chronology of an arbitration, the book covers applicable laws, arbitration agreements, the establishment and powers of a tribunal, the conduct of proceedings and the role of domestic courts. In addition, it provides an in-depth examination of the award itself, and comments on the special considerations applying to arbitrations brought under investment treaties. It draws on examples of the rules and practice of arbitration at the International Chamber of Commerce, the London Court of International Arbitration, the American Arbitration Association, the International Centre for Settlement of Investment Disputes and the United Nations Commission on International Trade Law.
Redfern and Hunter on International Arbitration 6th Table of contents:
1. An Overview of International Arbitration
A. Introduction
(a) Dispute resolution—worldwide
(b) What is arbitration?
(c) Conduct of an arbitration
(d) A brief historical note
(e) International rules, treaties, and conventions
(f) Meaning of ‘international’
(g) The meaning of ‘commercial’
(h) Key elements of an international arbitration
(i) Agreement to arbitrate
(j) Need for a dispute
(k) Commencement of an arbitration
(l) Arbitral proceedings
(m) Decision of the tribunal
(n) Enforcement of the award
(o) Summary
B. Why Arbitrate?
(a) Introduction
(b) Main reasons
(c) Additional reasons
(d) Is arbitration perfect?
(e) Summary
C. Alternative Dispute Resolution
(a) What is meant by alternative dispute resolution?
(b) Amiables compositeurs, equity clauses, and decisions ex aequo et bono
D. What Kind of Arbitration?
(a) Introduction
(b) Ad hoc arbitration
(c) Ad hoc arbitration—advantages and disadvantages
(d) Institutional arbitration
(e) Institutional arbitration—advantages and disadvantages
(f) Arbitral institutions
(g) Arbitrations involving a state
E. Sovereign States, Claims Commissions, and Tribunals
F. Regulation of International Arbitration
(a) Introduction
(b) Role of national systems of law
(c) State participation in the arbitral process
(d) Role of international conventions and the Model Law
(e) Practice of international arbitration
G. Summary
2. Agreement to Arbitrate
A. Overview
(a) Introduction
(b) Categories of arbitration agreement
(c) International conventions
(d) International standards
B. Validity of an Arbitration Agreement
(a) Formal validity—need for writing
(b) A defined legal relationship
(c) A subject matter capable of settlement by arbitration
C. Parties to an Arbitration Agreement
(a) Capacity
(b) Third parties to the arbitration agreement
(c) Joinder and intervention
D. Analysis of an Arbitration Agreement
(a) Scope
(b) Basic elements
(c) Separability
(d) Summary
E. Submission Agreements
F. Arbitrability
(a) Introduction
(b) Categories of dispute for which questions of arbitrability arise
(c) Conclusion
G. Confidentiality
(a) Privacy and confidentiality
(b) Confidentiality—classical position
(c) Confidentiality—the current trend
(d) Award
(e) Confidentiality in investor–state arbitrations
(f) Revisions to rules of arbitration
(g) Conclusion
H. Defective Arbitration Clauses
(a) Inconsistency
(b) Uncertainty
(c) Inoperability
I. Waiver of the Right to Arbitrate
J. Multiparty Arbitrations
(a) Introduction
(b) Class arbitrations
(c) Concurrent hearings
(d) Court-ordered consolidation
(e) Consolidation by consent
3. Applicable Laws
A. Overview
(a) Introduction
(b) No legal vacuum
(c) A complex interaction of laws
B. Law Governing the Agreement to Arbitrate
(a) Law of the contract
(b) Law of the seat of the arbitration
(c) Parties’ common intention—a French ‘third way’
(d) Combining several approaches—a Swiss model
C. Law Governing the Arbitration
(a) Introduction
(b) What is the lex arbitri?
(c) The content of the lex arbitri
(d) Procedural rules and the lex arbitri
(e) Seat theory
(f) Is the lex arbitri a procedural law?
(g) Choice of another procedural law
(h) Where an award is made
(i) Delocalisation
(j) Seat theory and the lex arbitri
D. Law Applicable to the Substance
(a) Introduction
(b) Autonomy of the parties
(c) National law
(d) Mandatory law
(e) Public international law and general principles of law
(f) Concurrent laws, combined laws, and the tronc commun doctrine
(g) Transnational law (including the lex mercatoria, the UNIDROIT Principles, trade usages, and Shari’ah)
(h) Equity and good conscience
E. Conflict Rules and the Search for the Applicable Law
(a) Introduction
(b) Implied or tacit choice
(c) Choice of forum as choice of law
(d) Conflict rules
(e) Does an international arbitral tribunal have a lex fori?
(f) International conventions, rules of arbitration, and national laws
(g) Conclusion
F. Other Applicable Rules and Guidelines
(a) Ethical rules
(b) Guidelines
4. Establishment and Organisation of an Arbitral Tribunal
A. Background
(a) Introduction
(b) Commencement of an arbitration
(c) Commencement of an arbitration under institutional rules
(d) Commencement of an ad hoc arbitration under the applicable law
(e) Selecting an arbitral tribunal
(f) Emergency arbitrators
(g) Sole arbitrators and multi-arbitrator tribunals
B. Appointment of Arbitrators
(a) Introduction
C. Qualities Required in International Arbitrators
(a) Introduction
(b) Restrictions imposed by the contract
(c) Restrictions imposed by the applicable law
(d) Professional qualifications
(e) Language
(f) Experience and outlook
(g) Availability
(h) Nationality
(i) Education and training
(j) Interviewing prospective arbitrators
D. Independence and Impartiality of Arbitrators
(a) Introduction
(b) Disclosure
E. Challenge and Replacement of Arbitrators
(a) Introduction
(b) Grounds for challenge
(c) Procedure for challenge
(d) Principal bases for challenge
(e) Waiver
(f) Conclusion on challenges
(g) Filling a vacancy
(h) Truncated tribunals
(i) Procedure following the filling of a vacancy
(j) Insuring against a vacancy
F. Organisation of the Arbitral Tribunal
(a) Introduction
(b) Meetings and hearings
(c) Administrative aspects
(d) Role of an arbitral secretary
G. Fees and Expenses of the Arbitral Tribunal
(a) Introduction
(b) Who fixes fees?
(c) Methods of assessing fees
(d) Negotiating arbitrators’ fees
(e) Commitment or cancellation fees
(f) Expenses of the arbitral tribunal
(g) Securing payment of the fees and expenses of the arbitral tribunal
5. Powers, Duties, and Jurisdiction of an Arbitral Tribunal
A. Background
(a) Introduction
(b) Practical considerations
B. Powers of Arbitrators
(a) Introduction
(b) Sources of arbitrators’ powers
(c) Common powers of arbitral tribunals
(d) Supporting powers of the courts
C. Duties of Arbitrators
(a) Introduction
(b) Duties imposed by the parties
(c) Duties imposed by law
(d) Ethical duties
D. Jurisdiction
(a) Introduction
(b) Challenges to jurisdiction
(c) Autonomy (or separability) of the arbitration clause
(d) Court control
(e) Procedural aspects of resolving issues of jurisdiction
(f) Options open to the respondent
(g) International agreements on the jurisdiction of national courts
6. Conduct of the Proceedings
A. Overview
(a) Introduction
(b) Party autonomy
(c) Limitations on party autonomy
(d) International practice
(e) Procedural structure of a typical international arbitration
B. Expedited Procedures
(a) Introduction
(b) Expedited formation
(c) Fast-track procedures
(d) Early, or summary, determinations
C. Preliminary Steps
(a) Introduction
(b) Preliminary issues
D. Written Submissions
(a) Introduction
(b) Terminology
(c) Time and length limits
E. Collecting Evidence
(a) Introduction
(b) Categories of evidence
(c) Documentary evidence
(d) Fact witness evidence
(e) Experts
(f) Inspection of the subject matter of the dispute
F. Hearings
(a) Introduction
(b) Organisation of hearings
(c) Procedure at hearings
(d) Default hearings
G. Proceedings after the Hearing
(a) Introduction
(b) Post-hearing briefs
(c) Introduction of new evidence
7. Role of National Courts during the Proceedings
A. Introduction
(a) Increasing independence of arbitration
(b) Limitations on independence
(c) ‘A relay race’
B. At the Beginning of the Arbitration
(a) Enforcing the arbitration agreement
(b) Establishing the arbitral tribunal
(c) Challenges to jurisdiction
C. During the Arbitral Proceedings
(a) Interim measures—powers of the arbitral tribunal
(b) Interim measures—powers of the competent court
(c) Measures relating to the attendance of witnesses
(d) Measures related to the preservation of evidence
(e) Measures related to documentary disclosure
(f) Measures aimed at preserving the status quo
(g) Interim relief in respect of parallel proceedings
D. At the End of the Arbitration
(a) Judicial control of the proceedings and the award
E. Conclusion
8. Arbitration under Investment Treaties
A. Introduction
B. Jurisdictional Issues
(a) Existence of an applicable treaty
(b) Protected investors
(c) Protected investments
(d) Consent and conditions to access investment treaty arbitration
(e) Bilateral investment treaties and contractual dispute resolution clauses
(f) Parallel claims before local courts
C. Law Applicable to the Substance of the Dispute
D. Merits of the Dispute
(a) No expropriation without prompt, adequate, and effective compensation
(b) ‘Fair and equitable treatment’ and the international minimum standard
(c) Full protection and security
(d) No arbitrary or discriminatory measures impairing the investment
(e) National and ‘most favoured nation’ treatment
(f) Free transfer of funds related to investments
(g) Observance of specific investment undertakings
E. Measures of Compensation under Bilateral Investment Treaties
(a) Expropriation remedies
(b) Compensation for other treaty breaches
(c) Moral damages
(d) Interest
(e) Costs and attorneys’ fees
9. Award
A. Introduction
(a) Destination of an international arbitration—the award
(b) Definition of an award
(c) Which rulings/orders have the status of an award?
(d) Rendering an internationally enforceable award
B. Categories of Award
(a) Partial awards
(b) Foreign and domestic awards
(c) Default awards
(d) Additional awards
(e) Consent awards and termination of proceedings without an award
C. Remedies
(a) Monetary compensation
(b) Punitive damages and other penalties
(c) Specific performance
(d) Restitution
(e) Injunctions
(f) Declaratory relief
(g) Rectification
(h) Filling gaps and adaptation of contracts
(i) Interest
(j) Costs
(k) Requirements imposed by national law
D. Deliberations and Decisions of the Tribunal
(a) Introduction
(b) Tribunal psychology
(c) Bargaining process
(d) Majority voting
(e) Concurring and dissenting opinions
E. Form and Content of Awards
(a) Generally
(b) Form of the award
(c) Contents of the award
(d) Time limits
(e) Notification of awards
(f) Registration or deposit of awards
F. Effect of Awards
(a) Res judicata
(b) Existing disputes
(c) Subsequent disputes
(d) Effect of award on third parties
G. Proceedings after the Award
(a) Under national law
(b) Under rules of arbitration
(c) Review procedures other than by national courts
(d) Review of the award by way of settlement
(e) Publication of awards
10. Challenge of Arbitral Awards
A. Introduction
(a) Purpose of challenge
(b) Preconditions to challenge
(c) Time limits for challenge
B. Methods of Challenge
(a) Internal challenge
(b) Correction and interpretation of awards; additional awards; remission of awards
(c) Recourse to the courts
C. Grounds for Challenge
(a) Grounds under the Model Law
(b) Adjudicability
(c) Procedural grounds
(d) Substantive grounds
D. Effects of Challenge
E. State Responsibility for Wrongful Setting Aside
11. Recognition and Enforcement of Arbitral Awards
A. Background
(a) Introduction
(b) Performance of awards
(c) General principles governing recognition and enforcement
(d) Difference between recognition and enforcement
(e) Place of recognition and enforcement
(f) Methods of recognition and enforcement
(g) Time limits
(h) Consequences of refusal of recognition or enforcement
(i) Role of the international conventions
B. Enforcement under the New York Convention
(a) Introduction
(b) Refusal of recognition and enforcement
(c) Grounds for refusal
(d) First ground for refusal—incapacity; invalid arbitration agreement
(e) Second ground—no proper notice of appointment of arbitrator or of the proceedings; lack of due process
(f) Third ground—jurisdictional issues
(g) Fourth ground—composition of tribunal or procedure not in accordance with arbitration agreement or the relevant law
(h) Fifth ground—award suspended, or set aside
(i) Arbitrability
(j) Public policy
(k) Other grounds
C. Enforcement under the ICSID Convention
D. Enforcement under Regional Conventions
(a) Moscow Convention
(b) Panama Convention
(c) Middle Eastern and North African Conventions
(d) Other regional conventions
E. Defence of State Immunity
(a) Jurisdictional immunity
(b) Immunity from execution
Index
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