International Arbitration 2016

The International Arbitration guide provides expert legal commentary on the key issues for businesses involved in International Arbitration. The guide covers the important developments in the most significant jurisdictions.

Last Updated October 21, 2016


Contributing Editor

Paul Friedland has been global head of the White & Case International Arbitration Practice Group since 2002. He has served as counsel and arbitrator in numerous international arbitrations, both commercial and investor/state. Mr. Friedland’s leadership positions include: American Arbitration Association (Executive Committee, 2011-14; Chair of Law Committee, 2008-14; Chair of Subcommittee on ICDR Rules revision, 2013-14), International Bar Association (Arbitration Committee Co-Chair, 2014-15), Singapore International Arbitration Centre (Court member, since 2013), and London Court of International Arbitration (Court member, 2006-10).

Assisted by

Damien Nyer is a senior associate in White & Case’s New York office where his practice focuses on international arbitration. Mr. Nyer has experience representing governments, international organisations and private parties in commercial, construction and investor/state arbitrations. He is the current Co-Chair of Young ICCA (International Council for Commercial Arbitration) and acted the Secretary of the International Bar Association’s Taskforce on International Arbitration Clauses.

The international arbitration practice at White & Case is widely recognised as preeminent in its field. With more than 150 arbitration lawyers globally, White & Case has the largest international arbitration practice in the world. Our lawyers are based in the key arbitral centers of New York, Washington, DC, London, Paris, Stockholm and Singapore, and we have significant on-the-ground arbitration capability in Mexico City, Miami, Frankfurt, Warsaw, Moscow, Hong Kong, Tokyo and beyond.

Introduction 

International arbitration has emerged as the default method for resolving transnational disputes. In spite of its inherent international nature, the practice of international arbitration remains influenced by developments in domestic law and practice around the globe.

This guide features information about the law and practice of international arbitration from practitioners in jurisdictions around the world. Each chapter provides information about the current issues affecting international arbitration in a particular country and addresses topics such as the legal requirements of a valid arbitration agreement, the authority and obligations of arbitrators, the governing law and procedure, preliminary and interim relief, the rules of evidence and the enforcement of arbitral awards.

This introduction discusses current global trends in the field, including the spread of international arbitration, the multiplication of arbitral institutions and rules, the emergence of new seats of arbitration, and certain ongoing efforts at self-regulation.

Prevalence of International Arbitration

International arbitration is now the preferred method of resolving transnational business disputes. The popularity of arbitration among businesses was recently confirmed in a survey conducted by Queen Mary, University of London. A majority of the large corporations surveyed identified international arbitration as their chosen mechanism for dispute resolution. While this popularity is not limited to one sector, disputes in the construction and energy industries are today mostly resolved through arbitration.

In 2014, international arbitration made global headlines when a tribunal seated in The Hague ordered Russia to pay more than USD50 billion to former majority shareholders in the defunct oil group Yukos – the largest international arbitration award ever rendered. Academic interest in the field also continues to grow, with ever more dedicated research institutes, educational programs and student-led organizations.

The once secretive world of international arbitration is now very much in the public eye. This is especially true for investor-State arbitration, which has become a highly political topic in the ongoing negotiations over the Trans-Pacific Partnership (TPP), the Transatlantic Trade and Investment Partnership (TTIP) and the Canada/E.U. Comprehensive Economic and Trade Agreement (CETA). A recent string of negative pieces in leading newspapers has arbitration practitioners concerned about an emerging “backlash” against investment arbitration.

Multiplication of Arbitral Institutions and Modernization of Institutional Rules

In a market that was once dominated by a few leading “global” arbitral institutions, such as the International Chamber of Commerce (ICC), the International Centre for Dispute Resolution of the American Arbitration Association (ICDR), and the London Court of International Arbitration (LCIA), the past decade has seen the emergence of credible competitors in several regional institutions, including the Singapore International Arbitration Centre (SIAC) and the Hong Kong International Arbitration Centre (HKIAC). At the same time, the established global institutions have sought to consolidate their reach. In the past few years, for example, the ICC has opened case administering offices in Hong Kong and New York.

As the market is becoming more competitive, arbitral institutions have sought to differentiate themselves through the adoption of modern and innovative arbitration rules. Over the past few years, several institutions have thus reformed their rules, starting with the ICC in 2012, SIAC and HKIAC in 2013, and the ICDR and LCIA in 2014. Among the major innovations are the introduction of mechanisms to facilitate the joinder of non-parties and the consolidation of parallel arbitral proceedings, an increased emphasis on controlling costs and delays (whether through aspirational statements of intention or expedited procedures for small claims), and the possibility of obtaining the swift appointment of an “emergency arbitrator” to order provisional measures pending appointment of a full tribunal.

Emergence of New Seats

A few cities, including Paris, London, Geneva and New York, have historically been the preferred seats for international arbitrations and remain the most widely-used locales today. The emergence of economic powerhouses elsewhere in the world over the past decade has created opportunities for other venues, however. Singapore and Hong Kong are now the destinations of choice for disputes with an Asian element. Dubai is attracting an ever increasing share of Middle East-related disputes. For Africa-related disputes, Mauritius has taken a series of measures to promote itself as an arbitral venue (including the adoption of a new legislation, the launch of a new international arbitration centre in collaboration with LCIA and the conclusion of a host country agreement with the Permanent Court of Arbitration in The Hague). There are also signs that countries long considered inhospitable to arbitration, such as India, are becoming serious about reforming their laws and turning themselves into arbitration venues.

Soft Law and Self-Regulation

A further trend in the practice of international arbitration has been the multiplication of “soft law” instruments. Professional associations, such as the International Bar Association (IBA), have been at the forefront of this effort to self-regulate the field. The most successful such instrument remains the IBA Rules on the Taking of Evidence in International Arbitration, which are regularly adopted (if only for guidance) by parties and cited to by counsel and arbitrators.

The past year has seen a flurry of activity in this field. The IBA has released Guidelines on Party Representation in International Arbitration, which provide a framework for counsel to identify appropriate conduct and behavior in international arbitration. In 2014, the IBA also adopted revised Guidelines on Conflicts of Interest in International Arbitration, with a view to promoting common standards in assessing arbitrators’ conflicts of interest and ensuring independence and impartiality in arbitral decision-making. The Guidelines provide guidance by categorizing various common factual situations into three lists – Red, Orange and Green – each entailing a certain treatment and type of disclosure. The Guidelines also address key debates that have engaged the international arbitration community, including the steady growth in the use of third-party funding in international arbitration.

Recent Trends in Investment Arbitration

As mentioned, the legitimacy of investor-State arbitration is coming under increased scrutiny, with several states having expressed their skepticism toward the existing system. One aspect that has fuelled concern and controversy is the fact that arbitral proceedings are ordinarily conducted away from the public spotlight. 2014 saw attempts to address this challenge, as UNCITRAL released new Rules on Transparency in Treaty-Based Investor-State Arbitration. The Rules will, when applicable, make investor-State arbitrations open and accessible to the public. In a related development, the UN Convention on Transparency in Treaty-Based Investor-State Arbitration (also known as the Mauritius Convention on Transparency), which opened for signature in March 2015, provides for the State parties’ consent to apply the UNCITRAL Rules on Transparency retroactively to investment treaties signed before 1 April 2014.