International arbitration and private international law / George A. Bermann.
2017
K7690 .B47 2017 (Map It)
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Details
Author
Title
International arbitration and private international law / George A. Bermann.
Uniform Title
Recueil des cours. 381.
Published
Leiden : Brill : Nijhoff, 2017.
Copyright
©2017
Call Number
K7690 .B47 2017
ISBN
9789004348257 (paperback)
9004348255 (paperback)
9004348255 (paperback)
Description
644 pages ; 18 cm.
System Control No.
(OCoLC)982969217
Summary
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.0Courts 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.
Note
"Full text of the General Course published in January 2017 in the Recueil des cours, Volume 381"--Page 2.
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.0Courts 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.
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.0Courts 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.
Bibliography, etc. Note
Includes bibliographical references and index.
Available in Other Form
Record Appears in
Table of Contents
Index
633
About the Author
640
Biographical note
640
Principal publications
641
ch. I
International commercial arbitration as a private international law enterprise
17
A.
Introduction
17
1.
Private international law as a prism for viewing international arbitration
18
2.
International arbitration as a prism for viewing private international law
20
B.
International arbitration as a distinctive private international law enterprise
23
1.
Arbitration's dual foundation
23
1.1.
Party autonomy and arbitral legitimacy
24
1.2.
State regulation of arbitration
34
2.
International arbitration as an international enterprise
42
2.1.
Arbitration's international pedigree
42
2.2.
Arbitration: cosmopolitanism and consensus
49
2.3.
a-national arbitration challenge
52
2.4.
International arbitration as an arena for non-State actors and "soft law"
58
2.4.1.
Non-State actors
59
2.4.1 (a)
institutions
59
2.4.1 (b)
Professional associations
65
2.4.2.
"Soft law"
66
3.
word of caution
72
ch. II
Arbitral jurisdiction and the arbitration agreement
73
A.
Introduction: personal and subject matter jurisdiction in the arbitration setting
73
1.
Personal jurisdiction
73
2.
Subject matter jurisdiction
77
B.
Jurisdiction by consent: the arbitration agreement
80
1.
Contract law foundations of the agreement to arbitrate
80
2.
Non-contract law requirements of the agreement to arbitrate
85
C.
Jurisdiction to determine arbitral jurisdiction
90
1.
Kompetenz-Kompetenz
90
1.1.
Kompetenz-Kompetenz and its rationale
91
1.2.
Kompetenz-Kompetenz and the allocation of jurisdictional authority
95
1.3.
Positive and negative Kompetenz-Kompetenz
96
1.4.
"Gateway" and "non-gateway" issues
101
1.5.
Jurisdiction and admissibility
111
2.
principle of separability
115
2.1.
Separability and its rationale
116
2.2.
Separability and Kompetenz-Kompetenz
122
3.
Choice of law in Kompetenz-Kompetenz and separability
124
ch. III
Choice of law governing the arbitration agreement
129
A.
Introduction
129
B.
Choice of law approaches
130
1.
concurrent choice of law authority of courts and tribunals
133
2.
arbitration agreement and the main contract
134
C.
Multiplicity in the choice of law governing the arbitration agreement
135
1.
"Party autonomy approach" to choice of law governing the arbitration agreement
141
1.1.
Express choice in the arbitration agreement
142
1.2.
General contractual choice of law clause
144
2.
"general choice of law approach" to the law governing the arbitration agreement
150
3.
"arbitration-specific approach" to the choice of law governing the arbitration agreement
153
3.1.
"arbitration-specific approach" and its rationale
153
3.2.
Choice of law principles under an "arbitration-specific approach"
155
4.
validation approach
159
D.
General attitudes toward arbitration
164
1.
Liberal construction of agreements to arbitrate
164
2.
Extension of agreements to arbitrate to non-signatories
173
E.
Jurisdiction and arbitrability
177
1.
Non-arbitrability in general
177
2.
law governing non-arbitrability
184
3.
Arbitrability standards across jurisdictions
189
ch. IV
lex arbitri and the arbitral seat
197
A.
Introduction
197
B.
Differences between arbitral seat and litigation forum
197
C.
role of the seat in "hosting" an arbitration
215
1.
Regulating the conduct of arbitration: the lex arbitri
216
2.
"Supervising" an arbitration
223
3.
Supporting the arbitral process
232
D.
Determining the seat of an arbitration
239
E.
Delocalization
247
1.
territorial theory of arbitration
249
2.
pluralistic theory of arbitration
251
3.
autonomy theory of arbitration
252
4.
reality of delocalization
255
ch. V
Parallel litigation and arbitration
257
A.
Introduction: parallel litigation and parallel jurisdiction
257
B.
Basic parallel litigation questions
261
1.
When should litigation be stayed on lis pendens grounds on the basis of the pendency of an arbitration on the matter?
261
2.
When should arbitration be stayed on lis pendens grounds on the basis of the pendency of national court litigation on the matter?
271
2.1.
Declining arbitral jurisdiction on lis pendens grounds
271
2.2.
Enforceability of the arbitration agreement
273
2.3.
Unenforceability of the arbitration agreement
274
2.4.
Discretionary stays of arbitration
280
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?
284
3.1.
issuance of anti-suit injunctions by national courts, common and civil
284
3.2.
Arguments for and against anti-suit injunctions in aid of arbitration
289
3.3.
Anti-suit injunctions issued by arbitrators
293
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?
301
ch. VI
Choice of substantive law
309
A.
Introduction
309
B.
Comparing choice of law in litigation and arbitration
315
C.
Party agreement on choice of law
319
1.
Party autonomy in choice of applicable law
319
2.
"Renvoi"
323
3.
Scope of the parties' choice
324
D.
Choice of law in the absence of party agreement
329
1.
Choice via rules of procedure and the lex arbitri
330
2.
La voie directe and la voie indirecte
337
2.1.
Operation of la voie indirecte
343
2.2.
Operation of la voie directe
348
E.
Non-State law
351
1.
Non-State law in general
351
2.
UNIDROIT Principles
358
3.
Unwritten non-State law
361
3.1.
General principles of law
361
3.2.
Lex mercatoria
362
3.3.
Trade usages
364
4.
Religious law
364
F.
Characterization of the law: substantive or procedural?
366
G.
Error in choice of law
368
H.
Ascertaining the content of foreign law
372
ch. VII
Limits to party autonomy in choice of law
378
A.
Introduction
378
B.
Disregarding the parties' choice of law
381
1.
Validity of the choice of law clause
381
1.1.
Law chosen by the parties
382
1.2.
otherwise applicable law
384
1.3.
Law of the "forum"
385
2.
Lack of reasonable relationship to the parties or transaction
388
3.
Mandatory rules of law
392
3.1.
Mandatory rules of the law chosen by the parties
394
3.2.
Mandatory rules of the law of the seat
396
3.3.
Mandatory rules of law of a third jurisdiction
399
3.1.1.
interface between the choice of law and arbitration clauses
403
3.1.2.
Determining the content of mandatory rules
412
4.
Public policy
414
4.1.
Domestic and international public policy
416
4.2.
Transnational public policy
419
ch. VIII
award
427
A.
Introduction
427
B.
What is an award?
429
1.
Partial awards
430
2.
Interim measures
436
3.
Emergency arbitrator rulings
440
C.
Majority awards and dissents
444
D.
form of awards
450
E.
Forms of relief
452
F.
preclusive effect of arbitral awards
456
1.
Preclusive effect of arbitral awards in subsequent arbitration
457
1.1.
Entitlement of an award to recognition in later arbitral proceedings
458
1.2.
Additional claim preclusion requirements
460
1.3.
Choice of law on claim preclusion requirements
461
1.4.
international standard for claim preclusion in arbitration
464
1.5.
problem of collateral estoppel in arbitration
467
2.
Preclusive effect of arbitral awards in subsequent litigation
470
2.1.
Entitlement of an award to recognition in national court
471
2.2.
Additional claim preclusion requirements
472
G.
precedential value of awards
479
1.
Judicial precedent in arbitration
479
2.
Arbitral precedent in arbitration
483
3.
Precedent on arbitration-specific issues
485
ch. IX
Annulment of awards
487
A.
Introduction
487
B.
nature of annulment
490
1.
rationale for judicial review
490
2.
Jurisdiction and governing law
493
C.
Annulment grounds
500
D.
Choice of law applicable to the grounds for annulment
502
1.
Designation of the applicable law
502
1.1.
Invalid or inexistent arbitration agreement
502
1.2.
Non-arbitrability and violation of public policy
504
1.3.
Composition of arbitral authority and arbitral procedure
509
2.
Silence as to the applicable law
510
2.1.
right to be heard
510
2.2.
Excess of arbitral authority
512
3.
Review of the merits
515
E.
Party Autonomy to vary the standards for annulment
519
1.
Party autonomy to limit judicial review
521
2.
Party autonomy to expand judicial review
525
F.
Preclusive effect of prior determinations on grounds for annulment
527
G.
Recognition and enforcement of annulled awards
533
1.
case against recognition and enforcement of annulled awards
533
2.
case for recognition and enforcement of annulled awards
538
ch. X
Recognition and enforcement of arbitral awards
551
A.
Introduction
551
B.
Recognition and enforcement of judgments and arbitral awards
553
1.
Commonalities between recognition and enforcement of awards and judgments
555
2.
Differences between recognition and enforcement of awards and judgments
558
C.
Recognition and enforcement under the New York Convention
562
1.
State autonomy in implementing the Convention
562
2.
Grounds for denying recognition and enforcement and their choice of law
564
2.1.
Designation by the Convention of the applicable law
568
2.1.1.
law governing non-arbitrability
570
2.1.2.
Public policy
572
2.1.3.
Incapacity
582
2.1.4.
Invalidity of the arbitration agreement
584
2.1.5.
Composition of the arbitral tribunal, and arbitral procedure
592
2.2.
Silence of the Convention as to applicable law
595
2.2.1.
Violation of the right to be heard
596
2.2.2.
Award beyond the scope of arbitral authority
601
2.3.
Additional choice of law issues under the Convention
602
2.3.1.
Burden of proof
602
2.3.2.
Binding awards
604
2.3.3.
Waiver
609
3.
Preclusive effect of prior determinations on Convention grounds
613
3.1.
Effect of annulment decision on decision to recognize or enforce
615
3.2.
Successive enforcement judgments
618
3.3.
Effect of ruling on challenges by the arbitral tribunal
621
D.
Judgment recognition as an alternative to award recognition
622
1.
Enforcing a judgment at the seat confirming the award
623
2.
Enforcing foreign enforcement judgments
627