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International Arbitration and Private International Law

International Arbitration and Private International Law

Author: George A. Bermann
Publisher: Brill Nijhoff
ISBN: 9789004348257
Published In: June 2017
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

HKD 285.95

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No field of legal scholarship or practice operates in the world of private international law as continuously and pervasively as does international arbitration, commercial and investment alike.

Arbitration’s dependence on private international law manifests itself throughout the life-cycle of arbitration, from the crafting of an enforceable arbitration agreement, through the entire arbitral process, to the time an award comes before a national court for annulment or for recognition and enforcement. Thus international arbitration provides both arbitral tribunals and courts with constant challenges.

Courts may come to the task already equipped with longstanding private international law assumptions, but international arbitrators must largely find their own way through the private international law thicket.

Arbitrators and courts take guidance in their private international law inquiries from multiple sources: party agreement, institutional rules, treaties, the national law of competing jurisdictions and an abundance of “soft law”, some of which may even be regarded as expressing an international standard. In a world of this sort, private international law resourcefulness is fundamental.

Chapter I. International commercial arbitration as a private international law enterprise

A. Introduction

1. Private international law as a prism for viewing international arbitration

2. International arbitration as a prism for viewing private international law

B. International arbitration as a distinctive private international law enterprise

1. Arbitration’s dual foundation

2. International arbitration as an international enterprise

3. A word of caution

Chapter II. Arbitral jurisdiction and the arbitration agreement

A. Introduction: personal and subject matter jurisdiction in the arbitration setting

1. Personal jurisdiction

2. Subject matter jurisdiction

B. Jurisdiction by consent: the arbitration agreement

1. Contract law foundations of the agreement to arbitrate

2. Non-contract law requirements of the agreement to arbitrate

C. Jurisdiction to determine arbitral jurisdiction

1. Kompetenz-Kompetenz

2. The principle of separability

3. Choice of law in Kompetenz-Kompetenz and separability

Chapter III. Choice of law governing the arbitration agreement

A. Introduction

B. Choice of law approaches

1. The concurrent choice of law authority of courts and tribunals

2. The arbitration agreement and the main contract

C. Multiplicity in the choice of law governing the arbitration agreement

1. “Party autonomy approach” to choice of law governing the arbitration agreement

2. A “general choice of law approach” to the law governing the arbitration agreement

3. An “arbitration-specific approach” to the choice of law governing the arbitration agreement

4. A validation approach

D. General attitudes toward arbitration

1. Liberal construction of agreements to arbitrate

2. Extension of agreements to arbitrate to nonsignatories

E. Jurisdiction and arbitrability

1. Non-arbitrability in general

2. The law governing non-arbitrability

3. Arbitrability standards across jurisdictions

Chapter IV. The lex arbitri and the arbitral seat

A. Introduction

B. Differences between arbitral seat and litigation forum

C. The role of the seat in “hosting” an arbitration

1. Regulating the conduct of arbitration : the lex arbitri

2. “Supervising” an arbitration

3. Supporting the arbitral process

D. Determining the seat of an arbitration

E. Delocalization

1. The territorial theory of arbitration

2. The pluralistic theory of arbitration

3. The autonomy theory of arbitration

4. The reality of delocalization

Chapter V. Parallel litigation and arbitration

A. Introduction : parallel litigation and parallel jurisdiction

B. Basic parallel litigation questions

1. When should litigation be stayed on lis pendens grounds on the basis of the pendency of an arbitration on the matter?

2. When should arbitration be stayed on lis pendens on the basis of the pendency of national court litigation on the matter?

3. When is it appropriate for a court not only to enforce an agreement to arbitrate with respect to a particular claim, but also to reinforce such an order with an injunction forbidding a party to maintain litigation of that claim?

4. When is it appropriate for a court not only to deny enforcement of an agreement to arbitrate with respect to a particular claim, but also to reinforce such an order with an injunction barring a party from pursuing that claim through arbitration?

Chapter VI. Choice of substantive law

A. Introduction

B. Comparing choice of law in litigation and arbitration

C. Party agreement on choice of law

1. Party autonomy in choice of applicable law

2. “Renvoi”

3. Scope of the parties’ choice

D. Choice of law in the absence of party agreement

1. Choice via rules of procedure and the lex arbitri

2. La voie directe and la voie indirecte

E. Non-State law

1. Non-State law in general

2. UNIDROIT Principles

3. Unwritten non-State law

4. Religious law

F. Characterization of the law: substantive or procedural?

G. Error in choice of law

H. Ascertaining the content of foreign law

Chapter VII. Limits to party autonomy in choice of law

A. Introduction

B. Disregarding the parties’ choice of law

1. Validity of the choice of law clause

2. Lack of reasonable relationship to the parties or transaction

3. Mandatory rules of law

4. Public policy

Chapter VIII. The award

A. Introduction

B. What is an award?

1. Partial awards

2. Interim measures

3. Emergency arbitrator rulings

C. Majority awards and dissents

D. The form of awards

E. Forms of relief

F. The preclusive effect of arbitral awards

1. Preclusive effect of arbitral awards in subsequent arbitration

2. Preclusive effect of arbitral awards in subsequent litigation

G. The precedential value of awards

1. Judicial precedent in arbitration

2. Arbitral precedent in arbitration

3. Precedent on arbitration-specific issues

Chapter IX. Annulment of awards

A. Introduction

B. The nature of annulment

1. The rationale for judicial review

2. Jurisdiction and governing law

C. Annulment grounds

D. Choice of law applicable to the grounds for annulment

1. Designation of the applicable law

2. Silence as to the applicable law

3. Review of the merits

E. Party Autonomy to vary the standards for annulment

1. Party autonomy to limit judicial review

2. Party autonomy to expand judicial review

F. Preclusive effect of prior determinations on grounds for annulment

G. Recognition and enforcement of annulled awards

1. The case against recognition and enforcement of annulled awards

2. The case for recognition and enforcement of annulled awards

Chapter X. Recognition and enforcement of arbitral awards

A. Introduction

B. Recognition and enforcement of judgments and arbitral awards

1. Commonalities between recognition and enforcement of awards and judgments

2. Differences between recognition and enforcement of awards and judgments

C. Recognition and enforcement under the New York Convention

1. State autonomy in implementing the Convention

2. Grounds for denying recognition and enforcement and their choice of law

3. Preclusive effect of prior determinations on Convention grounds

D. Judgment recognition as an alternative to award recognition

1. Enforcing a judgment at the seat confirming the award

2. Enforcing foreign enforcement judgments

Index; About the Author; Biographical note; Principal publications.

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