Deference in International Commercial Arbitration

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Deference in International Commercial Arbitration

Edited by Franco Ferrari · Friedrich Rosenfeld
Kluwer Law International May 2023

Specifications

ISBN-13
9789403503073
Publisher
Kluwer Law International
Publication
May 2023
Format
Hardback
Jurisdiction
International ? Countri(es) for reference only

Details

Deference in International Commercial Arbitration is a trailblazing book wherein eminent arbitration practitioners and academics offer the first comprehensive and structured analysis of deference in international arbitration. In international arbitration, deference implies that one decision-maker does not make an autonomous assessment but limits its decision-making power out of respect for the decision or authority of another actor. For example, a court exercising post-award review might refrain from reviewing a question of procedure de novo but instead defer to a prior determination made by the arbitral tribunal.

 

What’s in this book:

Drawing on abundant reference to case law from major arbitration hubs, the analysis is organized around the three relationships in which questions of deference arise:

  • public-private relationships in which a State actor (e.g., a court) must decide whether it should pay deference to determinations made by a private actor (e.g., a tribunal or an arbitral institution);
  • public-public relationships in which a State actor (e.g., a court at the place of recognition and enforcement) must decide whether it should pay deference to another State actor (e.g., a court at the seat); and
  • private-private relationships in which a private actor (e.g., an arbitral tribunal) must decide whether it should pay deference to another private actor (e.g., another arbitral tribunal or an arbitral institution).

 

How this will help you:

The book makes a significant contribution to tracing the boundaries of the multiple layers of control over arbitration proceedings. It takes an enormous leap towards instituting the right counterbalance between the different layers of authority and thus meeting a pivotal challenge for the viability of arbitration as a form of dispute resolution.

Table of Contents

Editors

Contributors

Acknowledgements

PART I

Introduction

CHAPTER 1

Deference in International Commercial Arbitration: Setting the Stage

Franco Ferrari & Friedrich Rosenfeld

CHAPTER 2

Theoretical Reflections on the Role of Deference in International

Arbitration

Esmé Shirlow

CHAPTER 3

Legal Forms and Justifications of Deference in International Arbitration

Stavros Brekoulakis & Mihaela Apostol

PART II

Deference in a Public-Private Relationship

CHAPTER 4

Anticipatory Deference: What Will Courts Decide and Not Decide Before

Enforcing an Agreement to Arbitrate?

George A. Bermann

CHAPTER 5

Deference from National Courts to Tribunals on Issues of Jurisdiction at

the Post-award Stage

Dennis Solomon

CHAPTER 6

Deference from National Courts to Tribunals on Issues of Public Policy at

the Post-award Stage

Giuditta Cordero-Moss

CHAPTER 7

Deference from National Courts to Tribunals on Issues of Procedure at

the Post-award Stage

Luke Nottage

CHAPTER 8

Judicial Deference to Decisions of Arbitral Institutions

Rémy Gerbay & Alexander Afnán

CHAPTER 9

Judicial Deference to Decisions of Arbitral Institutions

Ritika Bansal

CHAPTER 10

Deference and Provisional Measures: The Principle of Concurrent Jurisdiction Revisited

Alberto Malatesta

CHAPTER 11

Judicial Deference to Arbitral Tribunals under Section 1782

Linda H. Martin & Kate Apostolova

PART III

Deference in a Public-Public Relationship

CHAPTER 12

Deference from Foreign Enforcement Courts to Decisions of the Courts of the Seat Annulling an Arbitral Award

Emilio Bettoni

CHAPTER 13

Deference from Foreign Enforcement Courts to Decisions of the Courts of the Seat Confirming an Arbitral Award

Weixia Gu

PART IV

Deference in a Private-Private Relationship

CHAPTER 14

Tribunal-to-Tribunal Deference in Unrelated Cases: Where Does Its Future Lie?

Joongi Kim

index

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