International Commercial Arbitration: An Asia-Pacific Perspective

Author: Simon Greenberg; Christopher Kee; Romesh Weeramantry
Publisher: Cambridge University Press
ISBN: 9780521695701
Published In: January 2011
Format: Paperback
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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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.

This book focuses on the general principles of ICA while drawing on case law and relevant legislation from Australia, China, Hong Kong, India, Indonesia, Japan, Korea (Republic of), Malaysia, New Zealand, the Philippines and Singapore
Equips the reader to deal with many arbitration issues which are not dealt with (or are scarcely dealt with) in the various arbitration statutes
The book succinctly summarises the key features of a complex and evolving area of law and practice while not shying away from the more difficult or contentious issues

Foreword	xv
Preface	xvii
Table of Cases	xix
Table of Statutes	xxxv
1 Introduction to international arbitration and its place in the Asia-Pacific	1
1 Introduction and definition of arbitration	1
2 A brief history of arbitration	3
2.1 Ancient history to the birth of modern international law	3
2.2 Early 20th century: The birth of globalisation and international law	6
2.3 Post-World War Two: Development of a framework for international arbitration	9
2.3.1 1958 New York Convention	9
2.3.2 1965 ICSID Convention	11
2.3.3 1966 United Nations Commission on International Trade Law (UNCITRAL)	14
2.3.4 1976 UNCITRAL Arbitration Rules	14
2.3.5 1985 UNCITRAL Model Law on International Commercial Arbitration	15
3 Characteristics of arbitration	17
3.1 Distinction between arbitration and litigation	18
3.2 Distinction between arbitration and ADR	19
3.3 Distinction between international arbitration and domestic arbitration	20
3.4 Key features and overview of arbitration	21
3.4.1 Arbitration agreement	21
3.4.2 Arbitrators	21
3.4.3 Seat of arbitration	22
3.4.4 Party autonomy and procedure	23
3.4.5 Finality of outcomes	23
3.4.6 International enforcement of arbitration agreements and awards	24
3.4.7 Arbitral institutions	25
3.5 Sources of international arbitration procedural law and practice	28
3.5.1 National or domestic sources	29
3.5.2 International legal sources	30
3.5.3 Supranational and quasi-legal sources	31
4 International arbitration in the Asia-Pacific	33
4.1 The growth of international arbitration in the Asia-Pacific	33
4.2 Asian culture and international arbitration	43
4.2.1 Asian social, religious and political cultural diversity	43
4.2.2 Asian dispute resolution culture	44
2 Law governing the arbitration and role of the seat	54
1 Introduction	54
2 Terminology: Seat or place of arbitration	55
3 Distinction between the seat of arbitration and venue of hearings	55
4 Lex arbitri, arbitral procedural law and arbitration rules	58
4.1 Lex arbitri v arbitral procedural law	60
4.2 Arbitral procedural law v arbitration rules	63
4.3 Procedural pyramid	65
5 Diverging views on link between arbitration proceedings and seat of arbitration	66
5.1 Traditional view	66
5.2 Delocalised view	68
5.2.1 Definition	68
5.2.2 International relations theory and delocalisation	71
5.2.3 Delocalisation in practice: Relevant legal provisions	72
5.2.4 Conclusions on delocalisation	78
6 Choosing the seat of arbitration	80
6.1 General principles	80
6.2 Factors to consider in choosing a seat of arbitration	82
6.3 Changing the seat of arbitration	83
7 The Model Law as lex arbitri	86
7.1 Asia-Pacific and the Model Law	86
7.2 Mandatory provisions of the Model Law (1985 text)	88
3 Applicable substantive law	96
1 Introduction	96
2 Types of conflict of law issues in international arbitration	96
3 Determining the law applicable to the substance of the dispute	100
3.1 Freedom of parties to choose the law	101
3.2 Applicable law where there is no choice of law by the parties	102
3.2.1 Arbitration laws and institutional rules regarding applicable law in the absence of party choice	102
3.2.2 Conflict of laws methodology adopted by international arbitrators	105
3.3 The law applicable to non-contractual claims	113
3.3.1 Characterisation of claims as contractual or not	114
3.3.2 Parties’ choice of law applicable to non-contractual claims	115
3.3.3 Law applicable to torts claims in the absence of choice	116
4 Limitations on choice of law: Mandatory laws and public policy	119
5 Content of the applicable law	126
6 Trade usages	129
7 Non-national rules of law and the lex mercatoria	131
7.1 Choice of the lex mercatoria by the parties	132
7.2 Choice of the lex mercatoria by the arbitral tribunal	134
7.3 Discussion of the lex mercatoria	135
8 Deciding cases without law: Ex aequo et bono and amiable compositeur	138
4 Arbitration agreement	144
1 Introduction	144
2 Arbitration agreement	145
2.1 Is an arbitration agreement necessary?	145
2.2 Types of arbitration agreements	146
2.3 Definition and formal requirements of an arbitration agreement	146
2.3.1 General	146
2.3.2 Incorporation by reference	151
3 Doctrine of separability	155
3.1 Validity of main contract and arbitration agreement	158
3.2 Law governing main contract and arbitration agreement	159
3.3 Validity of arbitration agreement determined independently of all national laws	163
4 Identifying the parties to an arbitration agreement	164
4.1 Non-signatories	164
4.1.1 Alter ego and group of companies	165
4.1.2 Estoppel	167
4.1.3 Assignment	168
4.2 Capacity	169
5 Defined legal relationship	170
6 Consolidation, joinder and third party notices	172
6.1 Consolidation	174
6.2 Joinder and intervention	175
6.3 Third party notices	178
7 Enforcement of arbitration agreements	179
7.1 Existence of a dispute	180
7.2 Attaching conditions	181
8 Arbitrability	182
8.1 Subjective arbitrability	182
8.2 Objective arbitrability	186
9 Drafting arbitration agreements	189
9.1 Essential elements to include in an arbitration agreement	189
9.1.1 Identity of parties	189
9.1.2 Obligation to arbitrate	189
9.1.3 Subject matter and scope of arbitration	193
9.1.4 Certainty of the seat if designated	193
9.2 Advisable elements to include	194
9.3 Ad hoc or institutional arbitration?	195
9.4 Multi-tiered arbitration agreements	197
9.5 What not to include in an arbitration agreement	198
9.6 Pathological arbitration agreements	199
5 Arbitral jurisdiction	202
1 Introduction	202
2 Overview and summary of jurisdictional objections	203
3 Preliminary issues relating to arbitral jurisdiction	205
3.1 Partial and absolute jurisdictional objections	205
3.2 Jurisdictional objections raised by a party	206
3.3 Arbitral tribunal's ex officio examination of jurisdiction	208
3.4 Appropriate time to decide jurisdiction	209
3.5 Waiver of the right to invoke an arbitration agreement	211
4 Arbitral tribunal's determination of jurisdiction: Competence-competence rule	214
4.1 Introduction to the competence-competence rule	215
4.2 Competence-competence rule and extent of domestic court intervention	218
4.3 Conclusions on competence-competence	228
5 Arbitral institution's examination of jurisdiction	230
5.1 Examples in multi-party arbitrations	231
5.2 Examples in multi-contract arbitrations	233
6 Effects of jurisdictional decisions	233
6.1 Effect of a court or arbitral institution's prima facie examination of jurisdiction	233
6.2 Recourse against an arbitral tribunal's jurisdictional decision	234
6.2.1 Positive jurisdictional decisions	235
6.2.2 Negative jurisdictional decisions	237
6.3 Scope of court review of arbitral tribunal's jurisdictional decisions	240
6.4 Subsidiary orders with negative jurisdictional decisions	242
6 The arbitral tribunal	245
1 Introduction	245
2 Constitution of the arbitral tribunal	246
2.1 Number of arbitrators	246
2.2 Procedure for constituting the arbitral tribunal	250
2.3 Multiparty arbitrations	253
3 Choosing an arbitrator	256
3.1 Qualifications of an international arbitrator	256
3.2 Qualities of an arbitrator	260
3.2.1 Chairpersons and sole arbitrators	261
3.2.2 Party-nominated co-arbitrators	262
3.2.3 Pre-appointment interviews	265
4 Formal appointment of arbitrators	266
5 Obligations of arbitrators	267
5.1 General obligations and potential liability	268
5.2 Disclosure obligations	270
5.2.1 General principles of disclosure	270
5.2.2 IBA Guidelines	271
6 Challenges to arbitrators	273
6.1 Challenges for partiality or lack of independence	274
6.1.1 Impartiality and independence distinguished	274
6.1.2 Procedure	276
6.1.3 Assessment of impartiality and independence by arbitral institutions	280
6.1.4 Assessment of impartiality and independence by domestic courts	282
6.1.5 The standard for party-nominated co-arbitrators	292
6.1.6 Impartiality and arb-med or med-arb	293
6.2 Challenges for misconduct	294
6.2.1 Definition and procedure	294
6.2.2 Arbitral institution decisions on misconduct	297
6.2.3 Court decisions on misconduct	298
7 Resignation and replacement of arbitrators	301
7.1 Resignation of arbitrators	301
7.2 Agreements to replace arbitrators	302
7.3 Replacement of arbitrators	302
7 Procedure and evidence	304
1 Introduction	304
2 Party autonomy	305
2.1 The principle	305
2.2 Limits to party autonomy	306
3 Rules, procedural law and guidelines	308
3.1 Arbitration rules	308
3.1.1 Choice of arbitration rules	308
3.1.2 Differences between institutional and ad hoc arbitration procedure	310
3.1.3 Failure to object to non-compliance with procedural rules	310
3.1.4 Applicable version of rules	311
3.2 IBA Rules of Evidence	312
4 Core procedural rights and duties	313
4.1 Right to present case	313
4.2 Right to equal treatment	315
4.3 Arbitrators' duty to avoid delay and expense	316
5 Balancing common law and civil law procedure	318
6 Arbitral proceedings	322
6.1 Overview of typical procedural steps	322
6.2 Initiating the arbitration	323
6.3 Representation	324
6.4 Preliminary meeting	325
6.5 Terms of reference	326
6.6 Written submissions	326
6.7 Amendment of claims	328
6.8 On-site inspections	329
6.9 Bifurcation and trifurcation	330
6.10 Party default and non-participating parties	330
6.11 Expedited arbitration procedures	332
6.12 Arb-med	333
6.13 Termination of the proceedings	337
7 Evidence	337
7.1 Burden and standard of proof	338
7.2 Documentary evidence	339
7.2.1 Document production – Domestic court practice	340
7.2.2 Document production – Arbitral practice	341
7.2.3 Court assistance in document production	342
7.2.4 IBA Rules of Evidence and document production	343
7.3 Witness evidence	346
7.3.1 Witness evidence generally	346
7.3.2 IBA Rules of Evidence and witnesses	348
7.4 Expert evidence	350
7.4.1 Party-appointed experts	350
7.4.2 Tribunal-appointed experts	351
7.4.3 Witness conferencing	352
8 Hearings	354
9 Interim measures	357
9.1 Tribunal-ordered interim measures	357
9.1.1 National laws	358
9.1.2 Arbitral rules	361
9.1.3 Ex parte preliminary orders	361
9.2 Court assistance	363
10 Security for costs	369
11 Privacy and confidentiality	371
8 The award: Content and form	379
1 Introduction	379
2 Deliberations and decision-making	379
3 Content, form and effect of arbitral awards	382
3.1 Formalities	382
3.2 Reasons for the award	383
3.3 Signature, place and date	386
3.4 Time limits	386
3.5 Drafting an arbitral award	388
3.6 Scrutiny of the draft award	389
3.7 Finality	390
3.8 Notification or deposit of award	392
4 Definition of an arbitral award	392
5 Types of awards	395
5.1 Final awards	395
5.2 Partial awards	396
5.3 Interim or provisional awards, orders or measures	396
5.4 Consent awards	398
5.5 Default awards	399
5.6 Domestic, non-domestic, foreign and international awards	400
5.7 Majority decisions, separate or dissenting opinions	401
6 Costs	403
6.1 Costs of the arbitration v parties’ costs	404
6.2 Payment of costs: By which party and in what proportion?	404
6.3 Sealed offers	406
6.4 Arbitrators’ fees	407
6.5 Taxation of costs	408
7 Correction and interpretation of awards	409
9 The award: Challenge and enforcement	411
1 Introduction	411
2 Finality of awards	412
3 Challenging awards	415
3.1 State control over awards at seat of arbitration	415
3.2 Setting aside awards	417
3.2.1 Setting aside at seat of arbitration	417
3.2.2 Setting aside foreign awards	418
3.2.3 Model Law setting aside grounds and their exclusivity	419
3.2.4 Elaboration or qualification of Article 34 grounds	422
3.2.5 Failure to make a timely objection	424
3.2.6 Setting aside jurisdictional decisions	424
3.3 Time limits	425
3.4 Consequences of challenge	426
4 Recognition of awards	427
5 Enforcement of New York Convention awards	427
5.1 Implementation of the New York Convention	431
5.2 Enforcement at the seat of arbitration	436
5.3 Bilateral and multilateral enforcement agreements	436
5.4 Application of the New York Convention	437
5.4.1 Scope	437
5.4.2 Reciprocity reservation	440
5.4.3 Commercial reservation	441
5.4.4 Documents required for enforcement	443
5.5 Temporal issues	444
5.5.1 Retroactivity of New York Convention	444
5.5.2 Time limits	444
5.5.3 Delays in enforcement	445
6 Enforcement refusal grounds	447
6.1 Overlap of the New York Convention with Articles 34, 35 and 36 of the Model Law	450
6.2 Article V(1) of the New York Convention	451
6.2.1 Party incapacity or agreement invalidity	451
6.2.2 Violation of due process	453
6.2.3 Excess of jurisdiction	455
6.2.4 Irregularity in procedure or composition of arbitral tribunal	457
6.2.5 Award not yet binding or set aside	459
6.3 Article V(2) of the New York Convention	461
6.3.1 Arbitrability	461
6.3.2 Public policy	461
6.4 Adjournment of enforcement proceedings (New York Convention Article VI)	467
7 Non-New York Convention enforcement	468
8 Execution of awards	470
9 Other enforcement issues	471
9.1 Forum non conveniens	471
9.2 State responsibility for illegal court interference with award	471
9.3 State immunity	473
10 Investment treaty arbitration	477
1 Introduction	477
2 International investment law	478
3 Investment treaties	479
4 The International Centre for Settlement of Investment Disputes (ICSID)	482
4.1 Background and structure of ICSID	482
4.2 ICSID jurisdiction	483
4.3 Requirement of an ‘investment’	483
4.4 Nationality	485
4.5 Choice of law	486
4.6 Consent to ICSID arbitration	487
4.7 Additional facility	488
5 Assessment of the ICSID Convention	488
5.1 Advantages	489
5.2 Disadvantages	489
5.3 Innovative features	491
5.3.1 Exclusion of diplomatic protection and investor's direct rights	491
5.3.2 ICSID's self-contained procedure	492
5.3.3 Exhaustion of domestic remedies not required	493
6 Substantive rights and protections under investment treaties	493
6.1 Expropriation	494
6.2 Fair and equitable treatment	495
6.3 Full protection and security	496
6.4 Arbitrary or discriminatory treatment	496
6.5 National treatment	497
6.6 Most favoured nation treatment	498
6.7 Umbrella clauses	499
7 Remedies	500
7.1 Compensation for expropriation	500
7.2 Compensation for non-expropriatory treaty breaches	500
7.3 Costs	501
7.4 Interest	501
8 Annulment of ICSID awards	502
9 Enforcement of ICSID awards	503
Appendix 1 Asia-Pacific arbitral institutions at a glance	505
Appendix 2 Selected arbitral institutions	512
Appendix 3 List of UNCITRAL Model Law countries	514
Appendix 4 List of parties to the New York Convention 1958	515
Appendix 5 Selected list of Asia-Pacific arbitration legislation and instruments	517
Glossary	518
Index	527

'This publication provides an excellent advanced introduction to key concepts as well as more controversial topics in international commercial arbitration... All legal practitioners in Australia dealing with cross-border business - surely by now a large proportion of practitioners - should have a copy. It is also the perfect textbook for the many advanced courses in international commercial arbitration now provided by Australian universities and arbitral institutions. Australian Law Journal

'… the authors Greenberg, Kee and Weeramantry of International Commercial Arbitration: An Asia Paciﬁc Perspective are to be congratulated on the publication of their excellent text, which is an outstanding introduction to the field of international commercial arbitration … It goes without saying, anyone who is interested in or practises in the area, should have a copy in their library'. Alex Baykitch, The ACICA News

'A third merit of the book is that it is highly readable and therefore attractive to lawyers who are experienced in international commerce but neophytes to arbitration, and to students who are taking their first steps into international commercial arbitration … Whilst aimed particularly at an Asia-Pacific readership, this book is an invaluable addition to the bookshelves of all who are interested in international commercial arbitration, wherever in the world they may practise or study.. Asian Dispute Review

'… while there are several practitioners' guides to specific Asia-Pacific jurisdictions, no single book addresses the region in a subject by subject text book style. This is what the authors have set out to achieve, and if I may say so, have done so most efficiently … In summary, this is a major work. I confidently expect that it will become an authoritative text on international commercial arbitration in the Asia-Pacific region, and that like other renowned works there will be future editions to come.' Australasian Dispute Resolution Journal

'This is a unique book. … There are other books which have covered the arbitration laws of Asia‐Pacific countries, but this is the first book to approach international commercial arbitration on a thematic, rather than a country by country, basis. In short, ideal for students and indispensable for practitioners (at least to know what your opponent and the Tribunal will be reading).' Michael Hwang, Transnational Dispute Management

'After reading all 504 pages plus appendices of the work, I was perplexed. Why did I enjoy this book when I was already familiar with its basic subject matter …? The answer was that the book, … is a unique contribution to the field of international commercial arbitration; not merely Asia-Pacific regional commercial arbitration. … International Commercial Arbitration: An Asia-Pacific Perspective will now be one of those often cited books.' Khory McCormick, Proctor

'There are many international commercial arbitration textbooks on the market, catering to readers of all levels, serving a variety of purposes. This volume, the latest entry into this rather crowded market, stands out because of its rather ambitious scope and theme … What distinguishes this book from other comparable publications is the in-depths discussions of each subject.' Arbitration