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Good Faith in International Commercial Arbitration: Its Application by Arbitral Tribunals to the Parties’ Contract and the Arbitration Agreement

Good Faith in International Commercial Arbitration: Its Application by Arbitral Tribunals to the Parties’ Contract and the Arbitration Agreement

Author: Sabrina Pearson-Wenger
Publisher: Kluwer Law International
ISBN: 9789403507385
Published In: July 2024
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

List Price: HKD 2,001.13

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Description
Contents

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Good Faith in International Commercial Arbitration is the first of its kind to study in depth the available international arbitral awards that have applied good faith, thus providing detailed guidance on how this notion is (and can be) applied by tribunals in international commercial arbitration. By doing so, this book addresses the uncertainties surrounding the application of good faith by arbitral tribunals, which has created an unwelcome unpredictability with respect to the application of this notion. Moreover, the author proposes a set of deeply informed guidelines for the future application of good faith by arbitral tribunals to both the parties’ contract and the arbitration agreement.

What’s in this book:

This book furnishes a comprehensive description of the role and scope of good faith under governing laws in key jurisdictions (England, New York, Switzerland, France, Germany, China, Singapore, Hong Kong, Australia, and Canada) as well as under the CISG, the UNIDROIT Principles, and other uniform law and soft law instruments. It examines how good faith has been applied by arbitrators to the parties’ contract and elucidates the source and role of good faith concerning the following issues surrounding the arbitration agreement:

formal validity of the arbitration agreement
incorporation of the arbitration agreement by reference
interpretation of the arbitration agreement
capacity and power of the parties to arbitrate
extension of an arbitration agreement to a non-signatory party
pre-arbitration requirements to negotiate or mediate, and
performance of the arbitration agreement

Proposed guidelines for applying good faith to the parties’ contract and to the various issues surrounding the arbitration agreement, along with figures summarizing the content of the obligations to negotiate or mediate in good faith prior to resorting to arbitration and the obligation to arbitrate in good faith.

How this will help you:

This book will be highly appreciated as it analyses the role and scope of good faith under the most popular governing national and non-national laws and provides not only invaluable insight into how good faith is applied by arbitral tribunals to the parties’ contract in international commercial arbitration but also guidance on how good faith should be applied to this contract. Arbitrators, as well as users of arbitration, will welcome the clarity on how good faith is applied to the various issues surrounding the arbitration agreement and, in particular, to the pre-arbitration requirements to negotiate or mediate in addition to the performance of the arbitration agreement.

List of Abbreviations

Foreword

Preface

Acknowledgements

PART I: Setting the Scene: The Application of Good Faith by Arbitrators in International Commercial Arbitration

CHAPTER 1. What Is Good Faith?

CHAPTER 2. Frequent Recourse to Good Faith by Arbitral Tribunals in Order to ‘Do Justice’

CHAPTER 3. Objections to the Recourse to Good Faith by Arbitral Tribunals

CHAPTER 4. Uncertainties Surrounding the Application of Good Faith by Arbitral Tribunals

PART II: The Historical Origins of Good Faith

CHAPTER 5. Bona Fides in Roman Law

CHAPTER 6. Bona Fides in the Medieval Ius Commune and Lex Mercatoria (5th–16th Centuries)

CHAPTER 7. Good Faith in the Early Modern Period (17th–20th Centuries)

CHAPTER 8. Conclusion

PART III: Good Faith under National and Non-national Law

CHAPTER 9. The Role and Content of Good Faith under National Law

CHAPTER 10. The Role and Content of Good Faith under Non-national Law

CHAPTER 11. Conclusion

PART IV: Good Faith and Its Application by Arbitral Tribunals to the Parties’ Contract

CHAPTER 12. Application of Good Faith on the Basis of an Express Contractual Provision

CHAPTER 13. Application of Good Faith on the Basis of a National Law

CHAPTER 14. Application of Good Faith on the Basis of a Non-national Law

CHAPTER 15. Application of Good Faith When Arbitrators Are Endowed with the Power to Rule Ex Aequo Et Bono or as an Amiable Compositeur

PART V: Good Faith and the Arbitration Agreement

CHAPTER 16. Good Faith and the Validity and Interpretation of the Arbitration Agreement

CHAPTER 17. Good Faith and the Parties to the Arbitration Agreement

CHAPTER 18. Good Faith and the Performance of Pre-arbitration Requirements

CHAPTER 19. Good Faith and the Performance of the Arbitration Agreement

PART VI: General Conclusion

CHAPTER 20. Influence of an Arbitrator’s Legal Background

CHAPTER 21. Role of Good Faith in Arbitrations Involving State Parties

CHAPTER 22. Specific Uncertainties Arising in Connection with the Application of Good Faith to the Parties’ Contract

CHAPTER 23. Specific Uncertainties Arising in Connection with the Application of Good Faith to the Arbitration Agreement

Appendices

Bibliography

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