Arbitration

Arbitration, a form of alternative dispute resolution (ADR), is a way to resolve disputes outside the courts. The dispute will be decided by one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), which renders the "arbitration award". An arbitration award is legally binding on both sides and enforceable in the courts.[1]

Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. In certain countries such as the United States, arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts and may include a waiver of the right to bring a class action claim. Mandatory consumer and employment arbitration should be distinguished from consensual arbitration, particularly commercial arbitration.

Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that one party imposes on the other, in which the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is similar to mediation in that a decision cannot be imposed on the parties. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbiter remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable. By one definition arbitration is binding and non-binding arbitration is therefore technically not arbitration.

Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. There are limited rights of review and appeal of arbitration awards. Arbitration is not the same as: judicial proceedings (although in some jurisdictions, court proceedings are sometimes referred as arbitrations[2]), alternative dispute resolution (ADR)[3], expert determination, mediation (a form of settlement negotiation facilitated by a neutral third party).

Advantages and disadvantages

Parties often seek to resolve disputes through arbitration because of a number of perceived potential advantages over judicial proceedings. Companies often require arbitration with their customers, but prefer the advantages of courts in disputes with competitors:[4]

  • In contrast to litigation, where one cannot "choose the judge",[5] arbitration allows the parties to choose their own tribunal. This is especially useful when the subject matter of the dispute is highly technical: arbitrators with an appropriate degree of expertise (for example, quantity surveying expertise, in the case of a construction dispute, or expertise in commercial property law, in the case of a real estate dispute[6]) can be chosen.
  • Arbitration is often faster than litigation in court.[5]
  • Arbitral proceedings and an arbitral award are generally non-public, and can be made confidential.[7]
  • In arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied.
  • Because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce in other nations than court verdicts.
  • In most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability.

Some of the disadvantages include:

  • Arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees often do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job.
  • If the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case.
  • If the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee
  • There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned.
  • Although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays.
  • In some legal systems, arbitration awards have fewer enforcement options than judgments; although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect.
  • Arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavorable ruling.
  • Discovery may be more limited in arbitration or entirely nonexistent.
  • The potential to generate billings by attorneys may be less than pursuing the dispute through trial.
  • Unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to "confirm" an award.

Arbitrability

By their nature, the subject matter of some disputes is not capable of arbitration. In general, two groups of legal procedures cannot be subjected to arbitration:

  • Procedures which necessarily lead to a determination which the parties to the dispute may not enter into an agreement upon:[8][9] Some court procedures lead to judgments which bind all members of the general public, or public authorities in their capacity as such, or third parties, or which are being conducted in the public interest. For example, until the 1980s, antitrust matters were not arbitrable in the United States.[10] Matters relating to crimes, status and family law are generally not considered to be arbitrable, as the power of the parties to enter into an agreement upon these matters is at least restricted. However, most other disputes that involve private rights between two parties can be resolved using arbitration. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal, but the validity of a patent could not: As patents are subject to a system of public registration, an arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination.
  • Some legal orders exclude or restrict the possibility of arbitration for reasons of the protection of weaker members of the public, e.g. consumers. Examples: German law excludes disputes over the rental of living space from any form of arbitration,[11] while arbitration agreements with consumers are only considered valid if they are signed by either party,[12] and if the signed document does not bear any other content than the arbitration agreement.[13]

Arbitration agreement

Arbitration agreements are generally divided into two types:

  • Agreements which provide that, if a dispute should arise, it will be resolved by arbitration. These will generally be normal contracts, but they contain an arbitration clause
  • Agreements which are signed after a dispute has arisen, agreeing that the dispute should be resolved by arbitration (sometimes called a "submission agreement")

The former is the far more prevalent type of arbitration agreement. Sometimes, legal significance attaches to the type of arbitration agreement. For example, in certain Commonwealth countries (not including England and Wales), it is possible to provide that each party should bear their own costs in a conventional arbitration clause, but not in a submission agreement.

In keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts. Clauses which have been upheld include:

  • "arbitration in London - English law to apply"[14]
  • "suitable arbitration clause"[15]
  • "arbitration, if any, by ICC Rules in London"[16]

The courts have also upheld clauses which specify resolution of disputes other than in accordance with a specific legal system. These include provision indicating:

  • That the arbitrators "must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the principles of practical business"[17]
  • "internationally accepted principles of law governing contractual relations"[18]

Agreements to refer disputes to arbitration generally have a special status in the eyes of the law. For example, in disputes on a contract, a common defence is to plead the contract is void and thus any claim based upon it fails. It follows that if a party successfully claims that a contract is void, then each clause contained within the contract, including the arbitration clause, would be void. However, in most countries, the courts have accepted that:

  1. A contract can only be declared void by a court or other tribunal; and
  2. If the contract (valid or otherwise) contains an arbitration clause, then the proper forum to determine whether the contract is void or not, is the arbitration tribunal.[19]

Arguably, either position is potentially unfair; if a person is made to sign a contract under duress, and the contract contains an arbitration clause highly favourable to the other party, the dispute may still referred to that arbitration tribunal. Conversely a court may be persuaded that the arbitration agreement itself is void having been signed under duress. However, most courts will be reluctant to interfere with the general rule which does allow for commercial expediency; any other solution (where one first had to go to court to decide whether one had to go to arbitration) would be self-defeating.

Comparative law

Nations regulate arbitration through a variety of laws. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England and Jordan[20]). In addition to this, a number of national procedural laws may also contain provisions relating to arbitration.

United States

The Federal Arbitration Act (FAA) of 1925 established a public policy in favor of arbitration. For the first six decades of its existence, courts did not allow arbitration for "federal statutory claims" through a bright-line "nonarbitrability" doctrine, but in the 1980s the Supreme Court of the United States reversed and began to use the act to require arbitration if included in the contract for federal statutory claims.[21] Although some legal scholars believe that it was originally intended to apply to federal courts only, courts now routinely require arbitration due to the FAA regardless of state statutes or public policy unconscionability determinations by state courts.[21] In consumer law, standard form contracts often include mandatory predispute arbitration clauses which require consumer arbitration. Under these agreements the consumer may waive their right to a lawsuit and a class action. In 2011, one of these clauses was upheld in AT&T Mobility v. Concepcion.[21]

Several arbitration organizations exist, including the American Arbitration Association and JAMS. The National Arbitration Forum also conducts arbitrations, but it no longer conducts consumer arbitrations pursuant to a consent decree entered into in 2009 because of evidence that it had been biased toward, and had incentives that favored, credit card companies over cardholders. The AAA was also asked to exit the business.,[22] but has not done so.

International

History

The United States and Great Britain were pioneers in the use of arbitration to resolve their differences. It was first used in the Jay Treaty of 1795 negotiated by John Jay, and played a major role in the Alabama Claims case of 1872 whereby major tensions regarding British support for the Confederacy during the American Civil War were resolved. At the First International Conference of American States in 1890, a plan for systematic arbitration was developed, but not accepted. The Hague Peace Conference of 1899, saw the major world powers agreed to a system of arbitration and the creation of a Permanent Court of Arbitration. President William Howard Taft was a major advocate. One important use came in the Newfoundland fisheries dispute between the United States and Britain in 1910. In 1911 the United States signed arbitration treaties with France and Britain.[23][24]

Arbitration was widely discussed among diplomats and elites in the 1890-1914 era. The 1895 dispute between the United States and Britain over Venezuela was peacefully resolved through arbitration. Both nations realized that a mechanism was desirable to avoid possible future conflicts. The Olney-Pauncefote Treaty of 1897 was a proposed treaty between the United States and Britain in 1897 that required arbitration of major disputes. The treaty was rejected by the U.S. Senate and never went into effect.[25]

American Secretary of State William Jennings Bryan (1913–1915) worked energetically to promote international arbitration agreements, but his efforts were frustrated by the outbreak of World War I. Bryan negotiated 28 treaties that promised arbitration of disputes before war broke out between the signatory countries and the United States. He made several attempts to negotiate a treaty with Germany, but ultimately was never able to succeed. The agreements, known officially as "Treaties for the Advancement of Peace," set up procedures for conciliation rather than for arbitration.[26] Arbitration treaties were negotiated after the war, but attracted much less attention than the negotiation mechanism created by the League of Nations.

International agreements

By far the most important international instrument on arbitration law is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, usually simply referred to as the "New York Convention". Virtually every significant commercial country is a signatory, and only a handful of countries are not parties to the New York Convention.

Some other relevant international instruments are:

International enforcement

It is often easier to enforce arbitration awards in a foreign country than court judgments. Under the New York Convention 1958, an award issued in a contracting state can generally be freely enforced in any other contracting state, only subject to certain, limited defenses. Only foreign arbitration awards are enforced pursuant to the New York Convention. An arbitral decision is foreign where the award was made in a state other than the state of recognition or where foreign procedural law was used.[28] In most cases, these disputes are settled with no public record of their existence as the loser complies voluntarily,[29] although in 2014 UNCITRAL promulgated a rule for public disclosure of investor-state disputes.[29]

Virtually every significant commercial country in the world is a party to the Convention while relatively few countries have a comprehensive network for cross-border enforcement of judgments their courts. Additionally, the awards not limited to damages. Whereas typically only monetary judgments by national courts are enforceable in the cross-border context, it is theoretically possible (although unusual in practice) to obtain an enforceable order for specific performance in an arbitration proceeding under the New York Convention.

Article V of the New York Convention provides an exhaustive list of grounds on which enforcement can be challenged. These are generally narrowly construed to uphold the pro-enforcement bias of the Convention.

Government disputes

Certain international conventions exist in relation to the enforcement of awards against states.

  • The Washington Convention 1965 relates to settlement of investment disputes between states and citizens of other countries. The Convention created the International Centre for Settlement of Investment Disputes (or ICSID). Compared to other arbitration institutions, relatively few awards have been rendered under ICSID.[30]
  • The Algiers Declaration of 1981 established the Iran-US Claims Tribunal to adjudicate claims of American corporations and individuals in relation to expropriated property during the Islamic revolution in Iran in 1979. The tribunal has not been a notable success, and has even been held by an English court to be void under its own governing law.[31]

Arbitral tribunal

The arbitrators which determine the outcome of the dispute are called the arbitral tribunal. The composition of the arbitral tribunal can vary enormously, with either a sole arbitrator sitting, two or more arbitrators, with or without a chairman or umpire, and various other combinations. In most jurisdictions, an arbitrator enjoys immunity from liability for anything done or omitted whilst acting as arbitrator unless the arbitrator acts in bad faith.

Arbitrations are usually divided into two types: ad hoc arbitrations and administered arbitrations.

In ad hoc arbitrations, the arbitral tribunals are appointed by the parties or by an appointing authority chosen by the parties. After the tribunal has been formed, the appointing authority will normally have no other role and the arbitration will be managed by the tribunal.

In administered arbitration, the arbitration will be administered by a professional arbitration institution providing arbitration services, such as the LCIA in London, or the ICC in Paris, or the American Arbitration Association in the United States. Normally the arbitration institution also will be the appointing authority. Arbitration institutions tend to have their own rules and procedures, and may be more formal. They also tend to be more expensive, and, for procedural reasons, slower.[32]

Duties of the tribunal

The duties of a tribunal will be determined by a combination of the provisions of the arbitration agreement and by the procedural laws which apply in the seat of the arbitration. The extent to which the laws of the seat of the arbitration permit "party autonomy" (the ability of the parties to set out their own procedures and regulations) determines the interplay between the two.

However, in almost all countries the tribunal owes several non-derogable duties. These will normally be:

  • to act fairly and impartially between the parties, and to allow each party a reasonable opportunity to put their case and to deal with the case of their opponent (sometimes shortened to: complying with the rules of "natural justice"); and
  • to adopt procedures suitable to the circumstances of the particular case, so as to provide a fair means for resolution of the dispute.[33]

Arbitral awards

Although arbitration awards are characteristically an award of damages against a party, in many jurisdictions tribunals have a range of remedies that can form a part of the award. These may include:

  1. payment of a sum of money (conventional damages)
  2. the making of a "declaration" as to any matter to be determined in the proceedings
  3. in some jurisdictions, the tribunal may have the same power as a court to:
    1. order a party to do or refrain from doing something ("injunctive relief")
    2. to order specific performance of a contract
    3. to order the rectification, setting aside or cancellation of a deed or other document.
  4. In other jurisdictions, however, unless the parties have expressly granted the arbitrators the right to decide such matters, the tribunal's powers may be limited to deciding whether a party is entitled to damages. It may not have the legal authority to order injunctive relief, issue a declaration, or rectify a contract, such powers being reserved to the exclusive jurisdiction of the courts.

Challenge

Generally speaking, by their nature, arbitration proceedings tend not to be subject to appeal, in the ordinary sense of the word. However, in most countries, the court maintains a supervisory role to set aside awards in extreme cases, such as fraud or in the case of some serious legal irregularity on the part of the tribunal. Only domestic arbitral awards are subject to set aside procedure.

In American arbitration law there exists a small but significant body of case law which deals with the power of the courts to intervene where the decision of an arbitrator is in fundamental disaccord with the applicable principles of law or the contract.[34] However, this body of case law has been called into question by recent decisions of the Supreme Court.[35]

Unfortunately there is little agreement amongst the different American judgments and textbooks as to whether such a separate doctrine exists at all, or the circumstances in which it would apply. There does not appear to be any recorded judicial decision in which it has been applied. However, conceptually, to the extent it exists, the doctrine would be an important derogation from the general principle that awards are not subject to review by the courts.

Costs

The overall costs of arbitration can be estimated on the websites of international arbitration institutions, such as that of the ICC,[36] the website of the SIAC [37] and the website of the International Arbitration Attorney Network.[38] The overall cost of administrative and arbitrator fees is, on average, less than 20% of the total cost of international arbitration.[39]

In many legal systems - both common law and civil law - it is normal practice for the courts to award legal costs against a losing party, with the winner becoming entitled to recover an approximation of what it spent in pursuing its claim (or in defense of a claim). The United States is a notable exception to this rule, as except for certain extreme cases, a prevailing party in a US legal proceeding does not become entitled to recoup its legal fees from the losing party.[40]

Like the courts, arbitral tribunals generally have the same power to award costs in relation to the determination of the dispute. In international arbitration as well as domestic arbitrations governed by the laws of countries in which courts may award costs against a losing party, the arbitral tribunal will also determine the portion of the arbitrators' fees that the losing party is required to bear.

Nomenclature

As methods of dispute resolution, arbitration procedure can be varied to suit the needs of the parties. Certain specific "types" of arbitration procedure have developed, particularly in North America.

  • Judicial Arbitration is, usually, not arbitration at all, but merely a court process which refers to itself as arbitration, such as small claims arbitration before the County Courts in the United Kingdom.[2]
  • Online Arbitration is, a form of arbitration that occurs exclusively online. There is currently an assumption that online arbitration is admissible under the New York Convention and the E-Commerce Directive, but this has not been legally verified.[41] Since arbitration is based on a contractual agreement between the parties, an online process without a regulatory framework may generate a significant number of challenges from consumers and other weaker parties if due process cannot be assured.
  • High-Low Arbitration, or Bracketed Arbitration, is an arbitration wherein the parties to the dispute agree in advance the limits within which the arbitral tribunal must render its award. It is only generally useful where liability is not in dispute, and the only issue between the party is the amount of compensation. If the award is lower than the agreed minimum, then the defendant only need pay the lower limit; if the award is higher than the agreed maximum, the claimant will receive the upper limit. If the award falls within the agreed range, then the parties are bound by the actual award amount. Practice varies as to whether the figures may or may not be revealed to the tribunal, or whether the tribunal is even advised of the parties' agreement.
  • Binding Arbitration is a form of arbitration where the decision by the arbitrator is legally binding and enforceable, similar to a court order.
  • Non-Binding Arbitration is a process which is conducted as if it were a conventional arbitration, except that the award issued by the tribunal is not binding on the parties, and they retain their rights to bring a claim before the courts or other arbitration tribunal; the award is in the form of an independent assessment of the merits of the case, designated to facilitate an out-of-court settlement. State law may automatically make a non-binding arbitration binding, if, for example, the non-binding arbitration is court-ordered, and no party requests a trial de novo (as if the arbitration had not been held).[42]
  • Pendulum Arbitration refers to a determination in industrial disputes where an arbitrator has to resolve a claim between a trade union and management by making a determination of which of the two sides has the more reasonable position. The arbitrator must choose only between the two options, and cannot split the difference or select an alternative position. It was initiated in Chile in 1979. This form of arbitration has been increasingly seen in resolving international tax disputes, especially in the context of deciding on the Transfer Pricing margins. This form of arbitration is also known (particularly in the United States) as Baseball Arbitration. It takes its name from a practice which arose in relation to salary arbitration in Major League Baseball.
  • Night Baseball Arbitration is a variation of baseball arbitration where the figures are not revealed to the arbitration tribunal. The arbitrator will determinate the quantum of the claim in the usual way, and the parties agree to accept and be bound by the figure which is closest to the tribunal's award.

Such forms of "Last Offer Arbitration" can also be combined with mediation to create MEDALOA hybrid processes (Mediation followed by Last Offer Arbitration).[43]

History

England

Arbitration in its common law form developed in England; in the Middle Ages, tribunals such as the Courts of the Boroughs, of the Fair and of the Staple arose as the Royal Courts were not designed for trade disputes, and trade with foreigners was otherwise unenforceable.[44] In the mid-16th century, common law courts developed contract law and the Admiralty court became accessible for disputes with foreign merchants, broadening the venues for trade disputes.[44] Courts became suspicious of arbitration; for example, in Kill v. Hollister (1746), an English court ruled that the arbitration agreement could 'oust' courts of law and equity of jurisdiction.[45] Merchants, however, retained provisions to settle disputes among themselves, but tension between the arbitration proceedings and courts eventually resulted in the Common Law Procedure Act 1854 which provided for the appointment of arbitrators and umpires, allowed courts to 'stay proceedings' when a disputant filed a suit despite an agreement to arbitrate, and provided a process for arbitrators to submit questions to a court.[44] Later, the Arbitration Act 1889 was passed, followed by other Arbitration Acts in 1950, 1975, 1979 and 1996. Arbitration Act 1979 in particular limited judicial review for arbitration awards.[44]

United States

Arbitration was common in the early United States, with George Washington serving as an arbiter on an occasion.[44] The United States had a notable difference from England, however, in that unlike England, its courts generally did not enforce executory agreements (binding predispute agreements) to arbitrate.[46] This meant that prior to an award, a claimant could sue in court even if they had contractually agreed to settle disputes by arbitration. After the award, courts reviewed the judgment, but generally deferred to the arbitration,[46] although the practice was not consistent.[45]

The lack of enforcement of predispose agreements led to the Federal Arbitration Act of 1925,[45][46] with New York leading with a state law enforcing predispose agreements.[44] In 1921, the American Bar Association drafted the Federal Arbitration Act based on the New York law, which was passed in 1925 with minor changes.[44] In the next decade, the American Arbitration Association promoted rules and facilitated arbitrations through appointments.[44]

See also

Notes

  1. ^ O'Sullivan, Arthur; Sheffrin, Steven M. (2003). Economics: Principles in Action. Upper Saddle River, New Jersey: Pearson Prentice Hall. p. 324. ISBN 978-0-13-063085-8.
  2. ^ a b In the United Kingdom, small claims in the county court are dealt with by a procedure called "small claims arbitration", although the proceedings are held in front of a district judge, paid for by the state. In Russia, the courts dealing with commercial disputes are referred to as the Supreme Court of Arbitration of the Russian Federation, although it is not an arbitral tribunal in the true sense of the word.
  3. ^ Although all attempts to determine disputes outside of the courts are "alternative dispute resolution" in the literal sense, ADR in the technical legal sense, is the process whereby an attempt is made to reach a common middle ground through an independent mediator as a basis for a binding settlement. In direct contrast, arbitration is an adversarial process to determine a winner and a loser in relation to the rights and wrongs of a dispute.
  4. ^ Hernández, Gabrielle Orum (2017-10-09). "Can Arbitration Solve Tech Sector's Litigation Cost Concerns". Legaltech News.
  5. ^ a b "The Supreme Court's retired, but hardly retiring, Ian Binnie". The Globe and Mail. Toronto. 15 June 2012.
  6. ^ See for example the arbitration service offered by Falcon Chambers, the specialist property barristers chambers - www.falcon-chambersarbitration.com.
  7. ^ Cologne, Prof. Dr. Klaus Peter Berger, LL.M., University of. "Principle XIII.5.1 - Confidentiality - Trans-Lex.org". www.trans-lex.org.
  8. ^ Cf. e.g. Section 1030 subsection 1 of the German Zivilprozessordnung.
  9. ^ Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 268 (1 April 2011), Supreme Court (NSW, Australia)
  10. ^ Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)
  11. ^ Section 1030 subsection 2 Zivilprozessordnung
  12. ^ To be correct: certain form, as defined by statute, of an electronic signature using a chip card and a PIN code is also sufficient
  13. ^ Section 1031 subesction 5 of the Zivilprozessordnung. The restriction does not apply to notarized agreements, as it is presumed that the notary public will have well informed the consumer about the content and its implications.
  14. ^ Swiss Bank Corporation v Novrissiysk Shipping [1995] 1 Lloyd's Rep 202
  15. ^ Hobbs Padgett & Co v J C Kirkland (1969) 113 SJ 832
  16. ^ Mangistaumunaigaz Oil Production v United Kingdom World Trade [1995] 1 Lloyd's Rep 617
  17. ^ Norske Atlas Insurance Co v London General Insurance Co (1927) 28 Lloyds List Rep 104
  18. ^ Deutsche Schachtbau v R'As al-Khaimah National Oil Co [1990] 1 AC 295
  19. ^ For example, under English law see Heyman v Darwins Ltd. [1942] AC 356
  20. ^ Tariq Hammouri, Dima A. Khleifat, and Qais A. Mahafzah, Arbitration and Mediation in the Southern Mediterranean Countries: Jordan, Kluwer Law International, Wolters Kluwer - Netherlands, Volume 2, Number 1, January 2007, pp. 69-88.
  21. ^ a b c Horton D. (2012). Federal Arbitration Act Preemption, Purposivism, and State Public Policy. Forthcoming in Georgetown Law Journal.
  22. ^ Berner, Robert (2009-07-19). "Big Arbitration Firm Pulls Out of Credit Card Business". Business Week. Retrieved 3 March 2013.
  23. ^ John P. Campbell, "Taft, Roosevelt, and the Arbitration Treaties of 1911," Journal of American History (1966) 53#2 pp: 279-298 in JSTOR.
  24. ^ Bruce W. Jentleson and Thomas G Paterson, eds. Encyclopedia of U.S. Foreign Relations (1997) 1: pp 87-88
  25. ^ Nelson M. Blake, "The Olney-Pauncefote Treaty of 1897," American Historical Review, (1945) 50#2 pp. 228-243 in JSTOR
  26. ^ Genevieve Forbes Herrick; John Origen Herrick (2005) [1925]. The Life of William Jennings Bryan. Kessinger Publishing. p. 280. ISBN 9781419140396.
  27. ^ Cordero-Moss, Giuditta (2014). International Commercial Contracts.
  28. ^ Article 1 of the 1958 New York Convention
  29. ^ a b Argen, Robert (2015-01-01). "Ending Blind Spot Justice: Broadening the Transparency Trend in International Arbitration". Rochester, NY: Social Science Research Network. SSRN 2393188.
  30. ^ Tupman, "Case Studies in the Jurisdiction of the International Centre for Settlement of Investment Disputes" (1986) 35 ICLQ 813
  31. ^ Dallal v Bank Mellat [1986] 1 QB 441
  32. ^ For example, all arbitral awards issued by the ICC have to be reviewed internally before being handed down, which helps certainty and improves the quality of awards, but leads to delay and expense.
  33. ^ For example, in England these are codified in section 33 of the Arbitration Act 1996
  34. ^ The expression appears in the majority judgment in the U.S. Supreme Court decision in Wilko v Swan 346 US 427 (1953)
  35. ^ "Guide to Arbitration in New York" (PDF). CMS Legal. Retrieved 8 May 2012.
  36. ^ "Cost calculator - ICC - International Chamber of Commerce".
  37. ^ "Singapore International Arbitration Centre". www.siac.org.sg.
  38. ^ "International Arbitration - International Arbitration Information". International Arbitration Attorney Network.
  39. ^ "Full Arbitration Cost Calculators".
  40. ^ "Arbitration in New York" (PDF). CMS Legal. Retrieved 10 May 2012.
  41. ^ R. Morek "The Regulatory Framework for Online Dispute Resolution: A Critical View" (2006) 38 Tol. L. Rev. 165.
  42. ^ E.g., Section 44.103, Florida Statutes.
  43. ^ http://www.altenburger.ch/uploads/tx_altenburger/jl_2007_The_Interaction_Between_Arbitration_and_Mediation.pdf.
  44. ^ a b c d e f g h Noussia, Dr Kyriaki (2010-01-01). "The History, Importance and Modern Use of Arbitration". Confidentiality in International Commercial Arbitration. Springer Berlin Heidelberg. pp. 11–17. doi:10.1007/978-3-642-10224-0_2. ISBN 9783642102233.
  45. ^ a b c "Judicial Enforcement of Pre-Dispute Arbitration Agreements: Back to the Future". ResearchGate. Retrieved 2016-03-21.
  46. ^ a b c "State regulation of arbitration proceedings: judicial review of Arbitration Awards by State Courts". ResearchGate. Retrieved 2016-03-21.

References

International arbitration

  • Blackaby, Nigel; Lindsey, David; Spinillo, Alessandro (2003) International Arbitration in Latin America Kluwer
  • Born, Gary (2009) International Commercial Arbitration Kluwer
  • Buhring-Uhle, Christian and Kirchhof, Gabriele Lars (2006) Arbitration and Mediation in International Business 2nd Ed.
  • Craig, W. Laurence; Park, William W.; Paulsson, January (2001) International Chamber of Commerce Arbitration Oxford University Press
  • David, R. (1985) Arbitration in International Trade
  • Dezalay, Yves and Garth, Bryant G. (1998) Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order
  • Dugan, Christopher; Wallace, Jr., Don; Rubins, Noah (2005) Investor-State Arbitration Oxford University Press
  • Lew, Julian; Mistelis, Loukas; Kroell, Stefan (2003) Comparative International Commercial Arbitration
  • The Permanent Court of Arbitration (2000) International Alternative Dispute Resolution: Past, Present and Future
  • PWC (2008) International Arbitration: Corporate Attitudes and Practices
  • Redfern, A. and Hunter, M. (2004) Law and Practice of International Commercial Arbitration 4th Ed.
  • Schreuer, Christoph H. (2001) The ICSID Convention: A Commentary Cambridge University Press – (International Centre for Settlement of Investment Disputes)
  • Stuyt, Alexander, ed. Survey of International Arbitrations: 1794–1970 (1990)
  • Nuwan Weerasrkara Sri Lankan Arbitrator
  • Varady, Tibor; Barcelo, John J.; Von Mehren, Arthur Taylor (2006) International Commercial Arbitration 3rd Ed.

External links

Abyei

The Abyei Area (Arabic: أبيي‎) is an area of 10,546 km2 or 4,072 sq mi in Sudan accorded "special administrative status" by the 2004 Protocol on the Resolution of the Abyei Conflict (Abyei Protocol) in the Comprehensive Peace Agreement (CPA) that ended the Second Sudanese Civil War. The capital of Abyei Area is Abyei Town. Under the terms of the Abyei Protocol, the Abyei Area was declared, on an interim basis, to be simultaneously part of the states of West Kordofan (Sudan) and Northern Bahr el Ghazal (South Sudan).

In contrast to the borders of the former district, the Abyei Protocol defined the Abyei Area as "the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905". In 2005, a multinational border commission established this to be those portions of Kordofan south of 10°22′30″ N. However, following continued disputes that erupted into violence and threatened the CPA, an international arbitration process redrew Abyei's boundaries in 2009 to make it significantly smaller, extending no further north than 10°10′00" N. This revised border has now been endorsed by all parties to the dispute.

Alabama Claims

The Alabama Claims were a series of demands for damages sought by the government of the United States from the United Kingdom in 1869, for the attacks upon Union merchant ships by Confederate Navy commerce raiders built in British shipyards during the American Civil War. The claims focused chiefly on the most famous of these raiders, the CSS Alabama, which took more than sixty prizes before she was sunk off the French coast in 1864.

After international arbitration endorsed the American position in 1872, Britain settled the matter by paying the United States $15.5 million, ending the dispute and leading to a treaty that restored friendly relations between Britain and the United States. That international arbitration established a precedent, and the case aroused interest in codifying public international law.

Alaska boundary dispute

The Alaska boundary dispute was a territorial dispute between the United States and the United Kingdom, which then controlled Canada's foreign relations. It was resolved by arbitration in 1903. The dispute existed between the Russian Empire and Britain since 1821, and was inherited by the United States as a consequence of the Alaska Purchase in 1867. The final resolution favored the American position, and Canada did not get an all-Canadian outlet from the Yukon gold fields to the sea. The disappointment and anger in Canada was directed less at the United States, and more at the British government for betraying Canadian interests in favour of healthier Anglo-American relations.

Alternative dispute resolution

Alternative dispute resolution (ADR; known in some countries, such as India, as external dispute resolution) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with the help of a third party.

Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; this means that attendance is compulsory, not that settlement must be reached through mediation). Additionally, parties to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition disputes.The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes.

Amapá

Amapá (Portuguese pronunciation: [ɐmɐˈpa]) is a state located in the northern region of Brazil. It is the second least populous state and the eighteenth largest by area. Located in the far northern part of the country, Amapá is bordered clockwise by French Guiana to the north, the Atlantic Ocean to the east, Pará to the south and west, and Suriname to the northwest. The capital and largest city is Macapá.

In the colonial period the region was called Portuguese Guiana and was part of Portugal's State of Brazil. Later, the region was distinguished from the other Guianas. Amapá was once part of Pará, but became a separate territory in 1943, and a state in 1990.The dominant feature of the region, and 90 percent of its total area, is the Amazon Rainforest. Unexplored forests occupy 70 percent of Amapá, and Tumucumaque Mountains National Park, established in 2002, is the largest tropical forest park in the world. The estuary of the River Oiapoque, once considered the northernmost point of Brazil, is along the Atlantic Ocean coast at the north of the state.

American Arbitration Association

The American Arbitration Association (AAA) is a not-for-profit organization in the field of alternative dispute resolution, providing services to individuals and organizations who wish to resolve conflicts out of court, and one of several arbitration organizations that administers arbitration proceedings. The AAA also administers mediation through Mediation.org and other forms of alternative dispute resolution. It is headquartered in New York City, with regional offices in Atlanta, Boston, Charlotte, Chicago, Dallas, Denver, Detroit, East Providence, Rhode Island, Fresno, Houston, Los Angeles, Miami, Minneapolis, New York City, Philadelphia, Phoenix, San Antonio, San Diego, San Francisco, Seattle, Somerset, New Jersey and Washington, DC.

The International Centre for Dispute Resolution (ICDR), established in 1996 by the AAA, administers international arbitration proceedings initiated under the institution's rules. ICDR currently (as of 2018) has offices in New York City, Mexico City, Singapore, and Bahrain.

The AAA provides services and online tools for Employer's General Counsel to create contracts of adhesion during all stages of hiring, employment, and post-employment favorable to those clients. They provide information demonstrating economic incentive for their Corporate clients to do so. They provide no information whatsoever for those to be brought under those contracts of adhesion. At the time of dispute they administer the selection of "neutral" arbitrators. They provide further information regarding the possibly legal destruction of documents and minimum retention of mandatory records according to the "Sedona Principles" of eDiscovery.

Arbitral tribunal

An arbitral tribunal (or arbitration tribunal) is a panel of one or more adjudicators which is convened and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole arbitrator, or there may be two or more arbitrators, which might include either a chairman or an umpire. Members selected to serve on the tribunal are typically professionals with expertise in law and mediation, although some scholars have suggested that the ideal composition of an arbitral tribunal should include at least one economist, particularly in cases that involve questions of asset or damages valuation.The parties to a dispute are usually free to determine the number and composition of the arbitral tribunal. In some legal systems, an arbitration clause which provides for two arbitrators (or any other even number) is understood to imply that the appointed arbitrators will select an additional arbitrator as a chairman of the tribunal, to avoid deadlock arising. Different legal systems differ as to how many arbitrators should constitute the tribunal if there is no agreement.Arbitral tribunals are usually constituted (appointed) in two types of proceedings:

ad hoc arbitration proceedings are those in which the arbitrators are appointed by the parties without a supervising institution, relying instead on the procedural law and courts of the place of arbitration to resolve any differences over the appointment, replacement, or authority of any or all of the arbitrators; and

institutional arbitration proceedings are those in which the arbitrators are appointed under the supervision of professional bodies providing arbitration services, such as the American Arbitration Association (which conducts international proceedings through its New York-based division, the ICDR), the LCIA in London or the ICC in Paris. Although these (and many other) institutions are headquartered in their respective cities, they are capable of supervising the appointment of arbitral tribunals in nearly any country, avoiding the need for the parties to involve local courts and procedures in the event of disagreement over the appointment, replacement, or authority of any or all of the arbitrators.Permanent tribunals tend to have their own rules and procedures, and tend to be much more formal. They also tend to be more expensive, and, for procedural reasons, slower.

Arbitration Committee

An Arbitration Committee is a binding dispute resolution panel of editors, used on several projects of the Wikimedia Foundation. The first project to use an arbitration committee, and the most widely covered of these, is the English Wikipedia, the first project where such a structure was used, and this is the committee mainly covered in this article. Each of Wikimedia's projects are editorially autonomous and independent. Therefore, over time some other Wikimedia projects have established arbitration committees, while others have not. Arbitration committees, where they exist, are established by a project's editors, and are usually elected by their community in annual elections. As well as serious disputes, they often address misconduct by administrators, access to various advanced tools, and a range of "real world" issues related to harmful conduct, when these arise in the context of a Wikipedia project.

Arbitration committees generally have the authority to impose binding sanctions, and also to determine which users have access to special permissions.

The first such committee was created by Jimmy Wales on December 4, 2003, as an extension of the decision-making power he formerly held as owner of the site. The committee acts as a court of last resort (described in the media variously as 'quasi-judicial' or a Wikipedian 'High/Supreme Court', though the Committee states that it is not, nor pretends to be, a court of law in the formal sense) for disputes among editors. It has decided several hundred cases in its history. Members of the Committee are appointed by Wales either in person or email following advisory elections; Wales generally chooses to appoint arbitrators who were among those who received the most votes.The Committee has been examined by academics researching dispute resolution, and also reported in public media in connection with various case decisions and Wikipedia-related controversies.

Australian Industrial Relations Commission

The Australian Industrial Relations Commission (AIRC), known from 1956 to 1973 as the Commonwealth Conciliation and Arbitration Commission and from 1973 to 1988 as the Australian Conciliation and Arbitration Commission, was a tribunal with powers under the Workplace Relations Act 1996 (and equivalent earlier legislation) that existed from 1956 until 2010. It was the central institution of Australian labour law. The AIRC replaced a previous system of industrial courts, which broadly speaking, was engaged in the same functions, but with superior independence and powers.

CAN bus

A Controller Area Network (CAN bus) is a robust vehicle bus standard designed to allow microcontrollers and devices to communicate with each other in applications without a host computer. It is a message-based protocol, designed originally for multiplex electrical wiring within automobiles to save on copper, but is also used in many other contexts.

Church of Scientology editing on Wikipedia

A series of incidents in 2009 led to Church of Scientology-owned networks being banned from making edits to Wikipedia articles relating to Scientology. The Church of Scientology has long had a controversial history on the Internet, and has initiated campaigns to manipulate material and remove information critical of itself from the web. From early in Wikipedia's history, conflict arose within the topic of Scientology on the website. Disputes began in earnest in 2005, with users disagreeing about whether or not to describe Scientology as an abusive cult or religion. By 2006, disagreements concerning the topic of Scientology on Wikipedia had grown more specific. Wikipedia user and Scientology critic David Gerard commented to The Daily Telegraph in 2006 that some articles were neutral due to a requirement to reference stated facts.Revelations from software produced by Virgil Griffith in 2007 called WikiScanner made public the nature of edits on Wikipedia which were able to be traced directly back to Church of Scientology-controlled computers. CBS News and The Independent reported that edits by the Church of Scientology were made in attempts to remove criticism from the main article on the topic. The Times and Forbes noted that Scientologist computers were used to remove links between the Church of Scientology and a former anti-cult organization, since taken over by Scientology, the Cult Awareness Network. Der Spiegel reported that Wikiscanner revealed Scientology computers were used to promote Scientology's critical view of psychiatry, including adding links to the Scientology-founded Citizens Commission on Human Rights (CCHR) and to websites of other groups affiliated with Scientology.In January 2009, The Register reported on a case involving Scientology before Wikipedia's Arbitration Committee. The Arbitration Committee on Wikipedia is composed of a group of volunteers elected by the editing community to resolve especially difficult conflicts. Wikipedia administrators presented evidence during the case that Scientology-controlled computers were used to promote the organization, using multiple user accounts. One user going by the pseudonym "COFS" admitted this pattern of editing, and stated the edits from Scientology computers would continue. In May 2009, the Arbitration Committee decided to restrict editing from IP addresses belonging to the Church of Scientology, to prevent biased edits by editors within Church of Scientology-administered networks. The decision accorded Scientology-controlled IP addresses the same blockable status as open proxies on the site. A large number of Scientology critics were banned as well. The committee concluded that both sides had "gamed policy" and resorted to "battlefield tactics", with articles on living persons being the "worst casualties".Arbitration Committee member Roger Davies wrote the majority of the decision, and commented to The New York Times that due to the controversial nature of the case, the decision was crafted so as not to focus directly upon any particular individual. Wikipedia media contact Dan Rosenthal emphasized in a statement to ABC News that it was generally accepted procedure on the site to ban users that had violated policy intended to prevent them from promoting propaganda. Wikimedia Foundation spokesman and head of communications Jay Walsh said to Bloomberg BusinessWeek the Arbitration decision was intended to help restore Scientology-related articles to an acceptable state on the site. Wikimedia Germany spokesperson Catrin Schoneville stated to Computerwoche that the decision impacted the English Wikipedia, and noted it was unclear whether a similar ruling might be applied to the German Wikipedia. Statements from Scientology spokeswoman Karin Pouw labelled the Arbitration ruling as a routine matter, and maintained there were still "gross inaccuracies" on the Scientology article. In a statement to CNN, Pouw denied the presence of an organized campaign by the Church of Scientology to manipulate Wikipedia. Scientology representative Tommy Davis emphasized to the St. Petersburg Times that users critical of the organization were also banned, and similarly denied that Scientology leadership arranged a campaign to manipulate entries on Wikipedia.

Court of Arbitration for Sport

The Court of Arbitration for Sport (CAS; French: Tribunal arbitral du sport, TAS) is an international quasi-judicial body established to settle disputes related to sport through arbitration. Its headquarters are in Lausanne (Switzerland) and its courts are located in New York City, Sydney and Lausanne. Temporary courts are established in current Olympic host cities.

Financial Industry Regulatory Authority

In the United States, the Financial Industry Regulatory Authority, Inc. (FINRA) is a private corporation that acts as a self-regulatory organization (SRO). FINRA is the successor to the National Association of Securities Dealers, Inc. (NASD) and the member regulation, enforcement, and arbitration operations of the New York Stock Exchange. It is a non-governmental organization that regulates member brokerage firms and exchange markets. The government agency which acts as the ultimate regulator of the securities industry, including FINRA, is the Securities and Exchange Commission.

International Centre for Settlement of Investment Disputes

The International Centre for Settlement of Investment Disputes (ICSID) is an international arbitration institution established in 1966 for legal dispute resolution and conciliation between international investors. The ICSID is part of and funded by the World Bank Group, headquartered in Washington, D.C., in the United States. It is an autonomous, multilateral specialized institution to encourage international flow of investment and mitigate non-commercial risks by a treaty drafted by the International Bank for Reconstruction and Development's executive directors and signed by member countries. As of May 2016, 153 contracting member states agreed to enforce and uphold arbitral awards in accordance with the ICSID Convention.

The center performs advisory activities and maintains several publications.

International arbitration

International arbitration is arbitration between companies or individuals in different states, usually by including a provision for future disputes in a contract.The predominant system of rules is the UNCITRAL Arbitration Rules, as well as the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New York Convention"). The International Centre for the Settlement of Investment Disputes (ICSID) also handles arbitration, but it is particularly focused on investor-state dispute settlement and hears relatively few cases.

The New York Convention was drafted under the auspices of the United Nations and has been ratified by more than 150 countries, including most major countries involved in significant international trade and economic transactions. The New York Convention requires the states that have ratified it to recognize and enforce international arbitration agreements and foreign arbitral awards issued in other contracting states, subject to certain limited exceptions. These provisions of the New York Convention, together with the large number of contracting states, have created an international legal regime that significantly favors the enforcement of international arbitration agreements and awards. It was preceded by the 1927 Convention on the Execution of Foreign Arbitral Awards in Geneva.

Major League Baseball transactions

Major League Baseball transactions are changes made to the roster of a major league team during or after the season. They may include waiving, releasing, and trading players, as well as assigning players to minor league teams.

Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) is an intergovernmental organization located at The Hague in the Netherlands. The PCA is not a court in the traditional sense but provides services of arbitral tribunal to resolve disputes that arise out of international agreements between member states, international organizations or private parties. The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade. The PCA is constituted through two separate multilateral conventions with a combined membership of 121 states. The organization is not a United Nations agency,

but the PCA is an official United Nations Observer.The Peace Palace was built from 1907 to 1913 for the PCA in The Hague. In addition, the building houses the Hague Academy of International Law, Peace Palace Library and the International Court of Justice.

Philippines v. China

Philippines v. China (PCA case number 2013–19), also known as the South China Sea Arbitration, was an arbitration case brought by the Republic of the Philippines against the People's Republic of China under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) concerning certain issues in the South China Sea including the legality of China's Nine-dash line.On 19 February 2013, China declared that it would not participate in the arbitration.

On 7 December 2014, a white paper was published by China to elaborate its position. On 29 October 2015, the arbitral tribunal ruled that it has jurisdiction over the case, taking up seven of the 15 submissions made by the Philippines.On 12 July 2016, the tribunal ruled in favor of the Philippines. It clarified that it would not "...rule on any question of sovereignty over land territory and would not delimit any maritime boundary between the Parties". The tribunal also ruled that China has "no historical rights" based on the "nine-dash line" map. China has rejected the ruling, as has Taiwan.

Second Vienna Award

The Second Vienna Award, also known as the Second Vienna Diktat was the second of two territorial disputes arbitrated by Nazi Germany and Fascist Italy. Rendered on 30 August 1940, it assigned the territory of Northern Transylvania (including all of Maramureș and part of Crișana) from Romania to Hungary.. Romania was in this way forced by the Axis Powers to cede a part of Transylvania to Hungary.

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