International Commercial Arbitration An Asia Pacific Perspective 1st edition by Simon Greenberg , Christopher Kee , Romesh Weeramantry ISBN 0521695708 978-0521695701

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ISBN 10:  0521695708 
ISBN 13: 978-0521695701
Author: Simon Greenberg , Christopher Kee , J. Romesh Weeramantry 

There has been an exponential rise in the use of ICA for resolving international business disputes, yet international arbitration is a scarcely regulated, specialty industry. International Commercial Arbitration: An Asia Pacific Perspective is the first book to explain ICA topic by topic with an Asia Pacific focus. Written for students and practising lawyers alike, this authoritative book covers the principles of ICA thoroughly and comparatively. For each issue it utilises academic writings from Asia, Europe and elsewhere, and draws on examples of legislation, arbitration procedural rules and case law from the major Asian jurisdictions. Each principle is explained with a simple statement before proceeding to more technical, theoretical or comparative content. Real-world scenarios are employed to demonstrate actual application to practice. International Commercial Arbitration is an invaluable resource that provides unique insight into real arbitral practice specific to the Asia Pacific region, within a global context.

International Commercial Arbitration An Asia Pacific Perspective 1st Table of contents:

1 Introduction to international arbitration and its place in the Asia-Pacific

1 Introduction and definition of arbitration

2 A brief history of arbitration

2.1 Ancient history to the birth of modern international law

2.2 Early 20th century: The birth of globalisation and international law

2.3 Post-World War Two: Development of a framework for international arbitration

2.3.1 1958 New York Convention

2.3.2 1965 ICSID Convention

2.3.3 1966 United Nations Commission on International Trade Law (UNCITRAL)

2.3.4 1976 UNCITRAL Arbitration Rules

2.3.5 1985 UNCITRAL Model Law on International Commercial Arbitration

3 Characteristics of arbitration

3.1 Distinction between arbitration and litigation

3.2 Distinction between arbitration and ADR

3.3 Distinction between international arbitration and domestic arbitration

3.4 Key features and overview of arbitration

3.4.1 Arbitration agreement

3.4.2 Arbitrators

3.4.3 Seat of arbitration

3.4.4 Party autonomy and procedure

3.4.5 Finality of outcomes

3.4.6 International enforcement of arbitration agreements and awards

3.4.7 Arbitral institutions

3.5 Sources of international arbitration procedural law and practice

3.5.1 National or domestic sources

3.5.2 International legal sources

3.5.3 Supranational and quasi-legal sources

4 International arbitration in the Asia-Pacific

4.1 The growth of international arbitration in the Asia-Pacific

4.2 Asian culture and international arbitration

4.2.1 Asian social, religious and political cultural diversity

4.2.2 Asian dispute resolution culture

2 Law governing the arbitration and role of the seat

1 Introduction

2 Terminology: Seat or place of arbitration

3 Distinction between the seat of arbitration and venue of hearings

4 Lex arbitri, arbitral procedural law and arbitration rules

4.1 Lex arbitri v arbitral procedural law

4.2 Arbitral procedural law v arbitration rules

4.3 Procedural pyramid

5 Diverging views on link between arbitration proceedings and seat of arbitration

5.1 Traditional view

5.2 Delocalised view

5.2.1 Definition

5.2.2 International relations theory and delocalisation

5.2.3 Delocalisation in practice: Relevant legal provisions

5.2.4 Conclusions on delocalisation

6 Choosing the seat of arbitration

6.1 General principles

6.2 Factors to consider in choosing a seat of arbitration

6.3 Changing the seat of arbitration

7 The Model Law as lex arbitri

7.1 Asia-Pacific and the Model Law

7.2 Mandatory provisions of the Model Law (1985 text)

Article 1 Scope of application

Article 7 Definition and form of arbitration agreement (1985 version)

Article 8(1) Arbitration agreement and substantive claim before court

Articles 11(4) and (5) Appointment of arbitrators

Article 12(1) Grounds for challenge

Article 18 Equal treatment of parties

Article 24(2) and (3) Hearings and written proceedings

Article 34 Application for setting aside as exclusive recourse against arbitral award

Article 35 Recognition and enforcement

3 Applicable substantive law

1 Introduction

2 Types of conflict of law issues in international arbitration

3 Determining the law applicable to the substance of the dispute

3.1 Freedom of parties to choose the law

3.2 Applicable law where there is no choice of law by the parties

3.2.1 Arbitration laws and institutional rules regarding applicable law in the absence of party choi

3.2.1.1 ‘Conflict of laws rules’ and ‘direct’ approaches

3.2.1.2 Requiring the application of the substantive law of seat of arbitration

3.2.1.3 Requiring the application of the conflict of laws rules of the seat of arbitration

3.2.1.4 Requiring the application of the law with the closest connection to the dispute

3.2.2 Conflict of laws methodology adopted by international arbitrators

3.2.2.1 Absence of court interference in arbitral tribunals conflict of laws decisions

3.2.2.2 Substantive law of the seat of arbitration

3.2.2.3 Conflict of laws rules of the seat of arbitration

3.2.2.4 Cumulative application of the conflict of laws rules connected to the dispute

3.2.2.5 General principles of private international law

3.2.2.6 Law with the closest connection to the dispute

3.2.2.7 Implied intent

3.2.2.8 Selecting a set of conflict of laws rules

3.2.2.9 Conclusions on methods adopted by international arbitrators; a preferred approach

3.3 The law applicable to non-contractual claims

3.3.1 Characterisation of claims as contractual or not

3.3.2 Parties’ choice of law applicable to non-contractual claims

3.3.3 Law applicable to torts claims in the absence of choice

4 Limitations on choice of law: Mandatory laws and public policy

5 Content of the applicable law

6 Trade usages

7 Non-national rules of law and the lex mercatoria

7.1 Choice of the lex mercatoria by the parties

7.2 Choice of the lex mercatoria by the arbitral tribunal

7.3 Discussion of the lex mercatoria

8 Deciding cases without law: Ex aequo et bono and amiable compositeur

4 Arbitration agreement

1 Introduction

2 Arbitration agreement

2.1 Is an arbitration agreement necessary?

2.2 Types of arbitration agreements

2.3 Definition and formal requirements of an arbitration agreement

2.3.1 General

2.3.2 Incorporation by reference

3 Doctrine of separability

3.1 Validity of main contract and arbitration agreement

3.2 Law governing main contract and arbitration agreement

3.3 Validity of arbitration agreement determined independently of all national laws

4 Identifying the parties to an arbitration agreement

4.1 Non-signatories

4.1.1 Alter ego and group of companies

4.1.2 Estoppel

4.1.3 Assignment

4.2 Capacity

5 Defined legal relationship

6 Consolidation, joinder and third party notices

6.1 Consolidation

6.2 Joinder and intervention

6.3 Third party notices

7 Enforcement of arbitration agreements

7.1 Existence of a dispute

7.2 Attaching conditions

8 Arbitrability

8.1 Subjective arbitrability

8.2 Objective arbitrability

9 Drafting arbitration agreements

9.1 Essential elements to include in an arbitration agreement

9.1.1 Identity of parties

9.1.2 Obligation to arbitrate

9.1.3 Subject matter and scope of arbitration

9.1.4 Certainty of the seat if designated

9.2 Advisable elements to include

9.3 Ad hoc or institutional arbitration?

9.4 Multi-tiered arbitration agreements

9.5 What not to include in an arbitration agreement

9.6 Pathological arbitration agreements

5 Arbitral jurisdiction

1 Introduction

2 Overview and summary of jurisdictional objections

3 Preliminary issues relating to arbitral jurisdiction

3.1 Partial and absolute jurisdictional objections

3.2 Jurisdictional objections raised by a party

3.3 Arbitral tribunal’s ex officio examination of jurisdiction

3.4 Appropriate time to decide jurisdiction

3.5 Waiver of the right to invoke an arbitration agreement

4 Arbitral tribunal’s determination of jurisdiction: Competence-competence rule

4.1 Introduction to the competence-competence rule

4.2 Competence-competence rule and extent of domestic court intervention

4.3 Conclusions on competence-competence

5 Arbitral institution’s examination of jurisdiction

5.1 Examples in multi-party arbitrations

5.2 Examples in multi-contract arbitrations

6 Effects of jurisdictional decisions

6.1 Effect of a court or arbitral institution’s prima facie examination of jurisdiction

6.2 Recourse against an arbitral tribunal’s jurisdictional decision

6.2.1 Positive jurisdictional decisions

6.2.2 Negative jurisdictional decisions

6.3 Scope of court review of arbitral tribunal’s jurisdictional decisions

6.4 Subsidiary orders with negative jurisdictional decisions

6 The arbitral tribunal

1 Introduction

2 Constitution of the arbitral tribunal

2.1 Number of arbitrators

2.2 Procedure for constituting the arbitral tribunal

2.3 Multiparty arbitrations

3 Choosing an arbitrator

3.1 Qualifications of an international arbitrator

3.2 Qualities of an arbitrator

3.2.1 Chairpersons and sole arbitrators

3.2.2 Party-nominated co-arbitrators

3.2.3 Pre-appointment interviews

4 Formal appointment of arbitrators

5 Obligations of arbitrators

5.1 General obligations and potential liability

5.2 Disclosure obligations

5.2.1 General principles of disclosure

5.2.2 IBA Guidelines

6 Challenges to arbitrators

6.1 Challenges for partiality or lack of independence

6.1.1 Impartiality and independence distinguished

6.1.2 Procedure

6.1.3 Assessment of impartiality and independence by arbitral institutions

6.1.4 Assessment of impartiality and independence by domestic courts

6.1.4.1 The different tests used by domestic courts

6.1.4.2 Selected court decisions on partiality and lack of independence

6.1.4.3 Inappropriateness of using the same bias test for judges and arbitrators

6.1.5 The standard for party-nominated co-arbitrators

6.1.6 Impartiality and arb-med or med-arb

6.2 Challenges for misconduct

6.2.1 Definition and procedure

6.2.2 Arbitral institution decisions on misconduct

6.2.3 Court decisions on misconduct

7 Resignation and replacement of arbitrators

7.1 Resignation of arbitrators

7.2 Agreements to replace arbitrators

7.3 Replacement of arbitrators

7 Procedure and evidence

1 Introduction

2 Party autonomy

2.1 The principle

2.2 Limits to party autonomy

3 Rules, procedural law and guidelines

3.1 Arbitration rules

3.1.1 Choice of arbitration rules

3.1.2 Differences between institutional and ad hoc arbitration procedure

3.1.3 Failure to object to non-compliance with procedural rules

3.1.4 Applicable version of rules

3.2 IBA Rules of Evidence

4 Core procedural rights and duties

4.1 Right to present case

4.2 Right to equal treatment

4.3 Arbitrators’ duty to avoid delay and expense

5 Balancing common law and civil law procedure

6 Arbitral proceedings

6.1 Overview of typical procedural steps

6.2 Initiating the arbitration

6.3 Representation

6.4 Preliminary meeting

6.5 Terms of reference

6.6 Written submissions

6.7 Amendment of claims

6.8 On-site inspections

6.9 Bifurcation and trifurcation

6.10 Party default and non-participating parties

6.11 Expedited arbitration procedures

6.12 Arb-med

6.13 Termination of the proceedings

7 Evidence

7.1 Burden and standard of proof

7.2 Documentary evidence

7.2.1 Document production – Domestic court practice

7.2.2 Document production – Arbitral practice

7.2.3 Court assistance in document production

7.2.4 IBA Rules of Evidence and document production

7.3 Witness evidence

7.3.1 Witness evidence generally

7.3.2 IBA Rules of Evidence and witnesses

7.4 Expert evidence

7.4.1 Party-appointed experts

7.4.2 Tribunal-appointed experts

7.4.3 Witness conferencing

8 Hearings

9 Interim measures

9.1 Tribunal-ordered interim measures

9.1.1 National laws

9.1.2 Arbitral rules

9.1.3 Ex parte preliminary orders

9.2 Court assistance

10 Security for costs

11 Privacy and confidentiality

8 The award: Content and form

1 Introduction

2 Deliberations and decision-making

3 Content, form and effect of arbitral awards

3.1 Formalities

3.2 Reasons for the award

3.3 Signature, place and date

3.4 Time limits

3.5 Drafting an arbitral award

3.6 Scrutiny of the draft award

3.7 Finality

3.8 Notification or deposit of award

4 Definition of an arbitral award

5 Types of awards

5.1 Final awards

5.2 Partial awards

5.3 Interim or provisional awards, orders or measures

5.4 Consent awards

5.5 Default awards

5.6 Domestic, non-domestic, foreign and international awards

5.7 Majority decisions, separate and dissenting opinions

6 Costs

6.1 Costs of the arbitration v parties’ costs

6.2 Payment of costs: By which party and in what proportion?

6.3 Sealed offers

6.4 Arbitrators’ fees

6.5 Taxation of costs

7 Correction and interpretation of awards

9 The award: Challenge and enforcement

1 Introduction

2 Finality of awards

3 Challenging awards

3.1 State control over awards at the seat of arbitration

3.2 Setting aside awards

3.2.1 Setting aside at seat of arbitration

3.2.2 Setting aside foreign awards

3.2.3 Model Law setting aside grounds and their exclusivity

3.2.4 Elaboration or qualification of Article 34 grounds

3.2.5 Failure to make a timely objection

3.2.6 Setting aside jurisdictional decisions

3.3 Time limits

3.4 Consequences of challenge

4 Recognition of awards

5 Enforcement of New York Convention awards

5.1 Implementation of the New York Convention

5.2 Enforcement at the seat of arbitration

5.3 Bilateral and multilateral enforcement agreements

5.4 Application of the New York Convention

5.4.1 Scope

5.4.2 Reciprocity reservation

5.4.3 Commercial reservation

5.4.4 Documents required for enforcement

5.5 Temporal issues

5.5.1 Retroactivity of New York Convention

5.5.2 Time limits

5.5.3 Delays in enforcement

6 Enforcement refusal grounds

6.1 Overlap of the New York Convention with Articles 34, 35 and 36 of the Model Law

6.2 Article V(1) of the New York Convention

6.2.1 Party incapacity or agreement invalidity

6.2.2 Violation of due process

6.2.3 Excess of jurisdiction

6.2.4 Irregularity in procedure or composition of arbitral tribunal

6.2.5 Award not yet binding or set aside

6.3 Article V(2) of the New York Convention

6.3.1 Arbitrability

6.3.2 Public policy

6.4 Adjournment of enforcement proceedings (New York Convention Article VI)

7 Non-New York Convention enforcement

8 Execution of awards

9 Other enforcement issues

9.1 Forum non conveniens

9.2 State responsibility for illegal court interference with award

9.3 State immunity

10 Investment treaty arbitration

1 Introduction

2 International investment law

3 Investment treaties

4 The International Centre for Settlement of Investment Disputes (ICSID)

4.1 Background and structure of ICSID

4.2 ICSID jurisdiction

4.3 Requirement of an ‘investment’

4.4 Nationality

4.5 Choice of law

4.6 Consent to ICSID arbitration

4.7 Additional facility

5 Assessment of the ICSID Convention

5.1 Advantages

5.2 Disadvantages

5.3 Innovative features

5.3.1 Exclusion of diplomatic protection and investor’s direct rights

5.3.2 ICSID’s self-contained procedure

5.3.3 Exhaustion of domestic remedies not required

6 Substantive rights and protections under investment treaties

6.1 Expropriation

6.2 Fair and equitable treatment

6.3 Full protection and security

6.4 Arbitrary or discriminatory treatment

6.5 National treatment

6.6 Most favoured nation treatment

6.7 Umbrella clauses

7 Remedies

7.1 Compensation for expropriation

7.2 Compensation for non-expropriatory treaty breaches

7.3 Costs

7.4 Interest

8 Annulment of ICSID awards

9 Enforcement of ICSID awards

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Simon Greenberg,Christopher Kee,Romesh Weeramantry,International Commercial