INTERNATIONAL COMMERCIAL ARBITRATION A HANDBOOKPDF电子书下载

CHAPTER 1-SOME PRELIMINARY CONSIDERATIONS 1

Historical overview 1

Arbitration and other means of dispute resolution 2

Choosing between arbitration and court proceedings 2

Alternative Dispute Resolution 5

The significance of the labels "international" and "commercial" 8

Legal significance - "international" character 8

"Commercial" nature 9

Practical significance 9

Important questions and issues 10

Essentials of arbitration 12

CHAPTER 2-APPLICABLE LAWS AND RULES 15

Introduction 15

Capacity 15

The arbitration agreement 16

The arbitration proceedings 17

The dispute 18

Recognition or enforcement of awards 20

International conventions 20

The Geneva Protocol of 1923 21

The Geneva Convention of 1927 21

The New York Convention of 1958 21

The European Convention on International Commercial Arbitration of 1961 21

The Washington Convention of 1965 22

The Moscow Convention of 1972 22

The Panama Convention of 1975 22

Bilateral treaties 23

The UNCITRAL Arbitration Rules and Model Law 23

The Arbitration Rules 23

The Model Law 24

CHAPTER 3-THE ARBITRATION AGREEMENT 27

Prelude 27

Preliminary matters 27

Institutional arbitration 28

Ad hoc arbitration 30

Creating an enforceable arbitration agreement 30

Enforcing the arbitration agreement 31

Agreement for institutional arbitration 32

The number of arbitrators 33

The place (or "seat") of the arbitration 33

The law applicable to the substance of the disputes 36

The language of the arbitration 36

Miscellaneous matters 36

Agreement for ad hoc arbitration 38

Relevant matters 38

Caveats 39

Multi-party arbitration 39

Introduction 39

Chain contracts 40

The Arbitration Agreement 41

Consortium or partnership contracts 44

Privacy 45

Conclusion 46

Tailpiece 46

CHAPTER 4-THE COMMENCEMENT OF THE ARBITRATION AND THE APPOINTMENT OF THE ARBITRAL TRIBUNAL 47

Introduction 47

Applicable rules and law 47

A dispute 48

The commencement of the arbitration 48

Time limits 49

The appointment of the tribunal 51

The number of arbitrators 51

The manner in which the appointment of arbitrators may be made 51

Selecting the arbitrator to be appointed 54

The role of a party-nominated arbitrator 55

The tribunal's fees and expenses 56

Establishing the entitlement to fees and expenses 56

Securing payment of the tribunal's fees and expenses 57

Removal of arbitrators 58

The circumstances in which removal may be appropriate 58

How an application for removal is to be dealt with 59

The consequences of removal 59

CHAPTER 5-THE JURISDICTION, POWERS AND OBLIGATIONS OF THE TRIBUNAL 61

Sources 61

Jurisdiction 62

Introduction 62

The consequences of absence of jurisdiction 63

What is a party to do if it believes that the tribunal lacks jurisdiction? 63

Partial challenge 64

Challenge to the entire jurisdiction 66

The powers of the tribunal 68

Source and purpose 68

Compliance with the tribunal's directions 69

The tribunal's obligations 70

Source and nature 70

The consequences of, and remedies for, breach of obligation 72

CHAPTER 6-THE PROCEEDINGS 75

Introduction 75

The preliminary meeting 77

Form 77

Timing 78

Preparation 78

Items for the agenda 78

After the preliminary meeting 81

Terms of reference 81

Role 81

Contents 82

Drafting 82

The party which refuses to co-operate 83

The written submissions 83

Differences in approach 83

Institutional requirements 84

Time limits 84

Evidence 85

Technical rules of evidence 85

Burden of proof 86

Documents 86

Witnesses 88

Expert witnesses 89

The hearing 90

Representation at hearings 91

Arrangements for hearings 91

The order of proceedings at the hearing 92

Transcripts 92

Failure by one party to participate 92

The arbitration agreement 93

The law applicable to the arbitration proceedings 93

Ex parte hearings 93

CHAPTER 7-AWARDS 95

Introduction 95

Types of award 95

Interim/interlocutory awards 96

Partial awards 96

Final awards 96

Consent awards 96

Default awards 97

Remedies which may be included in an award 97

Order for the payment of money 97

Declaration 98

Specific performance 98

Injunction 98

Rectification 98

Punitive damages 99

Interest 99

Costs 100

Validity of the award 101

Other requirements for enforcement 103

Approval 103

Communication 103

Registration or deposit 103

Consequences of invalidity 103

CHAPTER 8-RECOGNITION OR ENFORCEMENT OF AWARDS 105

After the award 105

Recognition or enforcement 105

Domestic and foreign awards 106

Where to apply for recognition or enforcement 106

Procedure for recognition or enforcement 108

Time limits 109

CHAPTER 9-RESISTING AWARDS 111

The options 111

Appeal pursuant to the rules of the arbitration 111

Challenge in the courts of the country in which the award was made 112

Relevant matters 112

Nature of relief 112

Timing 112

Form 113

Grounds 113

Security pending the outcome of a challenge 113

Resisting recognition or enforcement of a foreign award 114

Introduction 114

Defences under the New York Convention 114

The consequences of successfully resisting an application for the recognition or enforcement of a foreign award 116

State immunity 117

APPENDIX 1-States which have ratified, or acceded to, the New York Convention of 1958 (as at 30 September 1998) 119

APPENDIX 2-States which have based their arbitration laws on the UNCITRAL Model Law 123

APPENDIX 3-Comparative table of international arbitration rules 124

APPENDIX 4-Model arbitration clauses recommended by the AAA, the ICC andtheLCIA 131

APPENDIX 5-UNCITRAL Model Arbitration Clause 133

APPENDIX 6-Draft ad hoc arbitration clause 135

Index 139