INTERNATIONAL ARBITRATION AND THE COURTS

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1 INTERNATIONAL ARBITRATION AND THE COURTS Devin Bray Heather L. Bray Editors JURIS

2 Questions About This Publication For assistance with shipments, billing or other customer service matters, please call our Customer Services Department at: To obtain a copy of this book, call our Sales Department: Fax: Toll Free Order Line: (United States & Canada) See our webpage about this book: COPYRIGHT 2015 JurisNet, LLC All rights reserved. No part of this publication may be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems without permission in writing from the publisher. Printed in the United States of America. ISBN JurisNet, LLC 71 New Street Huntington, New York USA

3 Summary Table of Contents About the Editors... xiii About the Authors... xv Foreword... xxi Chapter 1 Arbitration and the Role of Law Sir Anthony Evans... 1 Chapter 2 Shattering the Barrier of Inarbitrability Thomas E. Carbonneau Chapter 3 Arbitrating Arbitrability Alan Scott Rau Chapter 4 The Arbitrator's Mission and the Application of Law in International Commercial Arbitration W. Laurence Craig Chapter 5 Court Litigation over Arbitration Agreements: Is it Time for a New Default Rule? Jack Graves Chapter 6 Judicial Assistance by German Courts in Aid of International Arbitration Reinmar Wolff Chapter 7 The Extraterritorial Reach of 28 U.S.C in Aid of Foreign and International Litigation and Arbitration Tyler B. Robinson iii

4 iv INTERNATIONAL ARBITRATION AND THE COURTS Chapter 8 Two to Tango: Domestic Grounds for Vacatur Under the New York Convention Harout Jack Samra Chapter 9 The UK Supreme Court Speaks to International Arbitration: Learning from the Dallah Case George A. Bermann Chapter 10 Sovereign Immunity as a Barrier to the Enforcement of Investor-State Arbitral Awards: The Re-Politicization of International Investment Disputes Andrea K. Bjorklund INDEX

5 Table of Contents Chapter 1 Arbitration and the Role of Law Sir Anthony Evans... 1 I. The Law in Dubai and the DIFC... 8 II. The Law in Bermuda III. Enforcement IV. Concluding Remarks Chapter 2 Shattering the Barrier of Inarbitrability Thomas E. Carbonneau I. The Barriers to Arbitrability II. Widening the Arbitrability of Statutory Claims III. Internationalism and Arbitrability IV. Toward a Rule of Universal Arbitrability V. Mandatory Law and Arbitrability VI. Conclusion Chapter 3 Arbitrating Arbitrability Alan Scott Rau I. The Gateway Issue II. The Question of Timing III. The Allocation of Decisionmaking Power IV. On the Clear and Unmistakable : This Is All One Big Overblown Latke V. The Dilemma of Institutional Rules A. Thai-Lao Lignite v

6 vi INTERNATIONAL ARBITRATION AND THE COURTS B. Schneider v. Kingdom of Thailand VI. The Lesson to be Drawn Chapter 4 The Arbitrator's Mission and the Application of Law in International Commercial Arbitration W. Laurence Craig I. Introduction II. The Nature of Arbitration A. Commerce and the Spirit of Arbitration B. Choice of Arbitrator by the Parties C. Different Arbitrations, Different Expectations III. Application of Law and its Limits A. Choice of Law B. No Judicial Reviewability of Arbitral Errors of Fact or Law C. Some Reflections on the Arbitrator as Amiable Compositeur D. Manifest Disregard of the Law IV. Constraints on the Arbitrator's Mission A. Duty to Respect Public Policy Truly International Public Policy? Bribery and Corruption Laws of Mandatory Application (Lois de Police)182 B. Duty to Render an Enforceable Award C. Duty to Render Reasoned Awards D. Culture, Conscience and Expectation of the Parties Chapter 5 Court Litigation over Arbitration Agreements: Is it Time for a New Default Rule? Jack Graves I. Introduction II. Litigation Over Arbitration Agreements and Negative Competence-Competence

7 TABLE OF CONTENTS vii A. The Basic Problem and an Array of Possible Solutions A Strong Version of Negative Competence- Competence An Absolute(?) Version of Contractual Competence-Competence A Flexible Version of Negative Competence- Competence The Lack of a Clear Standard under the UNCITRAL Model Law An Option for Early Court Determination of Jurisdiction B. The Basic Problem Jurisdiction Brussels I Style C. The New York Convention and Article II(3) III. Addressing the Problem Through Article II(3) of the New York Convention A. Possible Solutions to the Problem B. Means for Bringing Any Solution About IV. Arbitration as a Default in International Commerce A. Arbitration as the Default B. A Small, Though Significant, Step Beyond the Status Quo A Significant, and Perhaps Controversial, Presumption of Consent The Panama Convention and a Bare Bones Arbitration Agreement A Pre-existing Template for a Default Legal Regime V. Conclusion Chapter 6 Judicial Assistance by German Courts in Aid of International Arbitration Reinmar Wolff I. Introduction: Challenges of Accessing Evidence Abroad II. Common Approaches: An International Comparison

8 viii INTERNATIONAL ARBITRATION AND THE COURTS A. Potential Approaches B. Article 27 of the UNCITRAL Model Law C. Adoption of Article 27 of the UNCITRAL Model Law and Creation of Similar Rules Switzerland France D. Jurisdictions Granting Judicial Assistance for International Arbitration England United States E. Conclusion III. Judicial Assistance from German Courts under Section 1050 of the ZPO A. Concept of Section 1050 of the ZPO B. Scope of Judicial Acts Covered by Section 1050 of the ZPO Taking Evidence Other Judicial Acts In Particular: Applications for Preliminary Judgments Admissibility of the Requested Act under the Laws of Civil Procedure No Empowerment of the Arbitral Tribunal to Carry Out the Judicial Acts IV. Prerequisites for Judicial Assistance A. Motion Entitlement to File the Motion Form and Content of the Motion Exclusion or Limitation of the Motion by the Parties to Arbitration B. Competent Court C. Legal Examination by the Court Formal Criteria Substantive Criteria D. Deciding the Motion Procedure for Deciding Motions Court Decision, Remedies and Costs

9 TABLE OF CONTENTS ix V. The Procedure for Taking Evidence A. Principle: German Civil Procedure B. Particularity: The Arbitral Tribunal s Right to Participate C. Introduction of Evidence Taken in the Arbitration Proceedings VI. Conclusion Chapter 7 The Extraterritorial Reach of 28 U.S.C in Aid of Foreign and International Litigation and Arbitration Tyler B. Robinson I. Introduction II. The Prevailing View That Section 1782 Does Not Authorize Discovery Of Documents Located Abroad III. A Lone Dissenting Voice That Others Have Declined to Follow IV. A Critical Review of the Existing Debate A. The Plain Language of Section B. The Limitations of the Secondary Sources of Statutory Intent C. The Policy Objectives of Section V. Extraterritorial Witness Discovery Under Section A. The Federal Rules Applied to Witnesses Abroad B. The Federal Rules Applied to Witnesses under Section C. The Extraterritorial Reach of Section 1782 to Obtain Oral Testimony from Non-Party Foreign Witnesses D. The Extraterritorial Reach of Section 1782 to Obtain a Statement From a Non-Party Foreign Witness VI. Conclusion

10 x INTERNATIONAL ARBITRATION AND THE COURTS Chapter 8 Two to Tango: Domestic Grounds for Vacatur Under the New York Convention Harout Jack Samra I. Introduction II. The FAA and the New York Convention A. The Provisions of the FAA B. The Provisions of the New York Convention C. Federal Arbitration Policy III. Article V and the Second Circuit in Yusuf IV. The Eleventh Circuit in Industrial Risk Insurers V. Revisiting Article V(1)(e) VI. Conclusion Chapter 9 The UK Supreme Court Speaks to International Arbitration: Learning from the Dallah Case George A. Bermann I. Introduction II. The Facts III. The State as Non-Signatory of the Arbitration Agreement IV. The Role of the Court of Enforcement A. Ancillary Issues Partial Awards Estoppel for Failure to Seek Annulment Parallel Annulment Proceedings B. Levels of Inquiry and Deference Levels of Jurisdictional Review Deference to the Arbitrators V. Conclusion

11 TABLE OF CONTENTS xi Chapter 10 Sovereign Immunity as a Barrier to the Enforcement of Investor- State Arbitral Awards: The Re-Politicization of International Investment Disputes Andrea K. Bjorklund I. Enforcement of Investor-State Arbitral Awards A. Execution of Awards under the ICSID Convention B. Execution of Awards under the New York Convention II. Municipal State Immunity Laws A. Establishing Jurisdiction Over States for Enforcement Purposes B. Establishing Jurisdiction Over State Assets Waiver of Execution Immunity Commercial Assets III. Solutions Or More Problems? A. Changes in International Law B. Changes in Municipal Law C. Changes in Investors Strategies D. Home State Assistance E. Multilateral Pressure IV. A Re-politicization of Investment Disputes? V. Conclusion INDEX

THE PRACTICE OF INTERNATIONAL LITIGATION

THE PRACTICE OF INTERNATIONAL LITIGATION Second Edition Lawrence W. Newman and Michael Burrows JURIS Questions About This Publication For assistance with shipments, billing or other customer service matters,