International Commercial Arbitration: A Primer for U.S. Litigators

• Author: David W. Rivkin and Christopher K. Tahbaz
• Pages: 215-230

215

The struct ure of international arbitr ation provides the greatest level of f lexibil ity

available to a litigator. As a result, part ies should take maximum advantage of

this inherent flexibility.1

Except for requiring that each party have an opportu nity to present its case,

there are al most no limits to the procedures avai lable. At each stage of the arbitra-

tion, it is importa nt to seek to struct ure the proceeding to fit the strengths of

one’s case and to avoid any weaknesse s. Parties or counsel who fai l to make maxi-

mum use of this f lexibility, and instead simply conduct international arbitration

in th e manner in whic h they ar e used to co nductin g domesti c litig ation or ar bitra-

tion, are wast ing a valuable opportunit y and hurting their c ases.

HINTE RN ATI ON A L A RB IT RAT IO N RULE S

Many arbitration rules and institutions are available to parties in international

arbitration. The pa rties often decide which set of ru les will govern the arbitr ation

at the time of the drafting of the contract, but too often they do so without ful ly

understand ing the rules and how the arbitration would be conducted. The more

that parties con sider the matters discussed i n this chapter while d rafting the con-

tract, when there i s not already a dispute between t he parties, the more smoothly

a case wil l proceed.

1. For a list of pro cedures that may aid in ta king maxi mum advantage of the eff iciencies

and fle xibility in herent in internation al arbitration, see Debevoi se & Plimpton LLP’s

Protocol to Promote Ef ficiency in Inter national Arbitrat ion, http://www.debevoise.com

/ar b it r at i on p ro toc ol .

CHAPTER 14

International Commercial

Arbitration: A Primer for

U.S. Li ti gator s

David W. Rivkin and Christopher K. Tahbaz

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216 CHAPTER 14

The principal international arbitration institutions are the International

Chamber of Commerce’s Internationa l Court of Arbitration (ICC), the America n

Arbitration Association (AA A), and the London Court of International Arbitra-

tion (LCIA). These institutions routi nely conduct international arbitrations

around the world, and they have available to them to appoint as arbitrators

skilled practitioners from around the world. In add ition, there are ma ny other

national and reg ional arbitration institutions with their own sets of rules. In

North America, these include the I nternational Institute for Conflict Prevention

& Resolution (CPR) and the Inter-American Commercial Arbitration Commis-

sion. The World Bank Group in Washington includes the International Centre

for Settlement of Investment Disputes, which is devoted exclusively to arbitra-

tions between investors and sovereign states. In Europe, major inst itutions

include the Stock holm Chamber of Commerce, the Swiss Chambers of Com-

merce, the German Arbitration Institute, the Netherlands Arbitration Institute,

and the Chamber of Commerce of the Russian Federation in Moscow. Some of

the principal institutions in Asia i nclude the Singapore International Arbitration

Centre, the Hong Kong Inter national Arbitration Centre, and t he Chinese Inter-

national Economic Trade and A rbitration Commission, a s well as various inst itu-

tions in Aust ralia.

Parties to inter national arbitration also frequently use the UNCITRAL Arbi-

tration Rules, which were promulgated by the United Nations Commission on

International Trade Law (UNCITRA L). These rules are known as ad hoc rules,

because they do not provide for the i nvolvement of institutions such as those

above. As a result, the parties or the arbitrators must undertake more of the

administrative work. Moreover, if parties select the UNCITR AL Rules, they

should also spec ify an arbitration i nstitution to choose the sole arbitr ator or chair

of the arbitral tribunal if they are unable to agree on one. The UNCITRAL Rules

are particularly useful in deal ing with a foreign sovereign, which may not want

to submit to a national i nstitution or system of rules ot her than its own.

The first step for any party or counsel at the beginni ng of an international

arbitration is nat urally to review the rules governing the arbitration. The rules

provide a general f ramework for conducting the arbitrat ion—for example, how

the initia l pleadings are to be prepared and submitted, how the arbitrators will

be selected, how to handle potential challenges to the arbitrators or language of

the arbitration, a nd other matters. However, most of the rules are purposely

silent with res pect to the conducting of the proceed ings between the fi ling of the

initia l pleadings and the select ion of the arbitrators at t he commencement of the

case and the f inal award at its conclusion. The ru les provide litt le guidance on

many of the detailed procedures that must be undertaken to obtain such an

award. The inst itutional and ad hoc rules leave this gap deliberately, so that the

parties can take advantage of the flexibility of international arbitration proce-

dures and tai lor the procedures to the particu lar dispute. Nevertheless, it means

that practitioners may need to look elsewhere for guidance on how to conduct

the arbitration.

In recent years, two excel lent sources to assist in determin ing the procedures

have become available. In 1996, UNCITRAL adopted t he UNCITRA L Notes on

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