Twilight Issues in International Arbitration

Author: George Bermann
Publisher: Kluwer Law International
ISBN: 9789403517469
Published In: April 2023
Format: Hardback
Jurisdiction: Netherlands ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents

Details

Twilight Issues in International Arbitration brings together the most frequently recurring issues of arbitral practice and procedure that arbitral tribunals regularly confront. There are many issues of arbitral practice that remain largely unaddressed, or poorly addressed, in the sources to which tribunals and counsel conventionally turn for procedural guidance: the arbitration agreement, the lex arbitri, and rules of procedure. Such “twilight” issues under consideration are the ones for which a tribunal finds little guidance in the parties’ arbitration agreement, the arbitration law of the seat, or even the procedural rules the parties may have adopted.

The issues ably covered by the author include, among others, the following:

Is a non-signatory bound by or entitled to invoke an arbitration agreement?
When may res judicata or collateral estoppel subject?
Should a tribunal issue an anti-suit injunction?
When may a tribunal treat as mandatory a law other than the chosen one?
On what basis may a witness invoke testimonial privilege?
When may a tribunal sanction counsel for what it considers misconduct?
By what standards is a determination of corruption to be made?
How should a tribunal determine the interest rate applicable to an award?
On what basis are costs to be allocated?

Examining the guidance that normative sources may provide—national law, the simple exercise of good judgment, or “international standards” derived fromsoft law, arbitral jurisprudence, international law, and scholarly and professional commentary—the analysis clearly shows how, when conventional sources of legal guidance are unavailing, decisions on important matters of arbitral practice and procedure are best made. The book will be of significant relevance and value to all stakeholders in the international arbitral process, whether commercial or investor-state.

Foreword

Acknowledgments

Part I: Normative and Non-normative Sources

Introduction

Normative Sources for Twilight Issues

Matching Twilight Issues with National Law

The Exercise of Arbitrator Good Judgment

Part II: International Standards as a Normative Source

Introduction

“Soft Law” as Source of International Standards

Arbitral Jurisprudence as Source of International Standards

International Law as Source of International Standards