PACIFIC CURRENTS: SOUND PERSPECTIVES ON ADR
ABA DISPUTE RESOLUTION SECTION 2008 CONFERENCE
DIFFERENT PERSPECTIVES IN INTERNATIONAL ARBITRATIONS
Murray Smith, Vancouver, B.C.
Michael J. Bond, Seattle, WA
Peter R. Day, Mercer Island, WA
NORTH AMERICAN BRANCH
THE CHARTERED INSTITUTE OF ARBITRATORS
INTRODUCTION .......................................................................................................................... 2
PART I. APPLICABLE LAWS .................................................................................................... 2
Law Governing the Status of the Parties..................................................................................... 3
Law Governing the Substance of the Dispute............................................................................. 4
(a) No Choice of Law Clause ........................................................................................... 6
(b) Combination of Laws .................................................................................................. 6
(c) Choice of No Law ....................................................................................................... 7
(d) Lex Mercatoria ............................................................................................................ 7
(e) Stabilization Clauses ................................................................................................... 8
(f) Punitive Damages ....................................................................................................... 8
(g) Mandatory Laws ......................................................................................................... 9
The Law Governing the Arbitration Agreement ......................................................................... 9
The Law Governing the Relationship between the Parties and the Arbitrator ......................... 10
ARBITRABILITY ........................................................................................................................ 11
PART II. OVERVIEW OF ESSENTIAL DIFFERENCES BETWEEN CIVIL AND COMMON
LAW TRADITIONS .................................................................................................................... 13
The International Bar Association‟s Rules on the Taking of Evidence in International
Commercial Arbitration ............................................................................................................ 15
Lay Witnesses ....................................................................................................................... 16
Document production............................................................................................................ 16
Experts .................................................................................................................................. 17
PART III. ENFORCEMENT, APPEALS AND APPLICATIONS TO SET ASIDE ................ 20
New York Convention Basics ................................................................................................... 20
Article V Challenges to the Award ........................................................................................... 24
Actions to Set Aside the Award ............................................................................................ 25
Other Article V Challenges ................................................................................................... 26
AUTHORS .................................................................................................................................... 29
This presentation is intended to provide counsel with a basic introduction to the essential
characteristics of the procedural and substantive laws, rules and practices that are involved in an
international commercial arbitration. There are many aspects of an international commercial
arbitration that differ from proceedings in domestic cases. In some cases wholly separate
statutory regimes exist for domestic and international arbitrations. The Province of Ontario, for
example, has a statute for domestic cases separate from the statute for international arbitrations.
This paper is in three parts. Part I will introduce the complex interplay of the various applicable
laws that come into play in every international case. Part II will introduce the essential
differences in the world‟s two most common legal systems and how those differences impact the
procedures at arbitration and the use of lay witnesses, document production and experts. Part III
discusses some of the issues that arise after an arbitration award has been rendered and the victor
seeks to enforce that award at a place where the loser might have assets available to satisfy the
PART I. APPLICABLE LAWS
Arbitrators in international commercial cases must apply the correct law to the various issues for
determination in the course of proceedings. The failure to identify and apply the correct law to
any particular issue may imperil the enforceability of the final award and will constitute a failure
to provide the proper and correct service to the parties. There are as many as seven different
applicable legal systems that must be considered by the arbitrator in the course of the
proceedings. These legal systems are:
1. The law governing the status of the parties;
2. The law governing the arbitration agreement;
3. The law governing the merits of the dispute;
4. The law governing the procedure of the arbitration;
5. The law of the venue of the arbitration;
6. The law in the jurisdiction where the Arbitration Award must be enforced; and
7. The law governing the relationship between the parties and the arbitrator.
1. Law Governing the Status of the Parties
Many issues may be determined on the basis of the law applicable to the status of the parties to
the arbitration. One example would be to determine whether an individual was competent by
reason of age or infirmity to enter into the substantive contract in dispute or the arbitration
agreement itself. Another example is whether a corporate or government party was legally
authorized to enter into the contract. The applicable law will usually be the law of the place
where the contract was entered into in the case of a personal party, or the law of the place where
a corporate party was incorporated. In the case of S.N.E. v. Jock Oil Ltd., the national law in the
jurisdiction where the contract was signed required that contracts for export of petroleum
products have ministerial consent.1 The contract was not signed by the appropriate government
official, and the contract was found to be invalid. In this example, the legality of the contract
depended upon the law of the place where the contract was made, and it was to that law and that
law alone that the arbitrators looked for the answer to the legality question. The law governing
the capacity of the parties was determinative of the validity issue.
It is not always easy to decide which law is applicable to the capacity of the parties. A difficult
question that frequently arises is whether or not a non-signatory to the arbitration agreement may
be made a party to the arbitration. This may occur where a subsidiary of a large corporation
enters into a substantive contract and arbitration agreement, but becomes insolvent or bankrupt
before the dispute goes to arbitration. The claimant may bring an arbitration proceeding under
the arbitration agreement, and name the parent corporation as the respondent. But, the parent
corporation may challenge the jurisdiction of the arbitrator on the basis that the parent
corporation was not a party to the contract or the arbitration agreement. Different national laws
have different rules in matters such as piercing the corporate veil or agency to bind a parent
corporation to the acts of a wholly owned subsidiary corporation.
15 Y.B. Comm. Arb. 384, (1990).
The first step in the arbitration process is to decide whether there is jurisdiction over the parent
corporation. But what law will govern the jurisdiction question? The contract may have been
made in Texas with a choice of law clause in the contract specifying the law of England to
govern disputes under the contract with any arbitration to be held in Mexico City. The parent
corporation and the wholly owned subsidiary may have been incorporated in France. The task of
the arbitrator will be to choose the law to apply to the question of jurisdiction. Arguments can be
made that the law of Texas or England or France should apply. The parent corporation may
object to the law of England for this question, arguing that they cannot be bound by the choice of
law clause in that contract because they were not a signatory to the contract originally. The law
of France may provide that corporate entities are legally bound by the acts of wholly owned
subsidiaries. The law of Texas may provide that a parent corporation is only bound by the acts
of a wholly owned subsidiary if the parent corporation has acted fraudulently to use the
subsidiary to shield its own liability.
In these circumstances the law of Texas is probably the law most closely connected with the
question in issue and should apply. However, an arbitrator could rule that the status of the
corporate party is to be determined according to the laws creating that artificial legal entity and
that, according to the law where the corporation was created, the parent must be held accountable
for all acts of its subsidiaries. Every case is different and requires a logical analysis by the
arbitrator to arrive at a conclusion which is the essential first step in solving the problem, i.e.
what is the applicable law.
2. Law Governing the Substance of the Dispute
When considering the law governing the substance of the dispute, or as referred to by some
writers, the proper law of the contract, it is first important to distinguish this law from the law
governing arbitration procedures, the lex arbitri. The procedural law necessary to make the
arbitration process effective, that provides for challenges to the competence of the arbitrators or
the conduct of the arbitration proceedings, will be governed by the lex arbitri. However, once
the hearing of the merits of the arbitration is under way, the determination of the rights of the
parties will be governed by the substantive applicable law. This is the law that the arbitrator will
apply to decide who is right or wrong in the substantive dispute.
The most critical distinction in an international commercial case is to identify the lex arbitri or
governing procedural law applicable. Most jurisdictions will have an arbitration statute that is
specific to international cases.
The lex arbitri is the arbitration statute in the venue in which the arbitration is conducted. It is to
this statute that the parties will have recourse in seeking judicial assistance to move the
arbitration along or, in some cases, to block or set aside proceedings where there has been a
defect of jurisdiction or arbitral misconduct. The lex arbitri serves to provide the legislative
infrastructure to support the arbitral process.
As the first order of business, the parties and the arbitrators must identify the governing
procedural law. The way to classify an arbitration as international or domestic is usually
articulated in the introductory provisions of the provincial or state statute governing international
While arbitrations involving parties or subject matter from different states will usually be subject
to the international rather than domestic statute, the arbitration agreement may specify that the
domestic arbitration statute shall govern. There is no reason in principle why international
parties cannot choose to have their arbitration governed by a domestic arbitration statute. This is
an expression of the doctrine of party autonomy. The reverse is not necessary true. The
interrelationship of state and federal laws was addressed by the Supreme Court of the United
States in Volt Information Sciences, Inc. v. Stanford University Board of Trustees, where the
Court held that an arbitration agreement providing for arbitration under state law will be
effective to overcome the doctrine of preemption in the Federal Arbitration Act.2 This case dealt
with the interrelationship of state and federal law and recognized the capacity of the parties to
choose their arbitration procedure. However, the case would logically extend to a choice by the
parties to have their arbitration governed by the domestic arbitration statute of the state, even
where the dispute would otherwise come within the definition of an international arbitration.
The typical international arbitration statute recognizes the right of the parties to turn a domestic
arbitration into an international arbitration by agreement.
489 U.S. 468 (1989).
The substantive applicable law is often found in a choice of law clause in the contract. This type
of clause usually reads: “The law governing this contract shall be the law of ___”. The parties
will usually choose the law of an identified jurisdiction such as a state, a province or a country.
(a) No Choice of Law Clause
If the parties do not identify an applicable substantive law, the arbitrator must choose the proper
law. This will be the law that has the closest and most substantial connection to the contract or
dispute, and is determined in accordance with general conflict of laws principles. Article 28 of
the UNCITRAL Model Law provides as follows:
“(1) The arbitral tribunal shall decide the dispute in accordance with the rules of
law designated by the parties as applicable to the substance of the dispute. Any
designation of the law or legal system of a given State shall be construed, unless
otherwise expressed, as directly referring to the substantive law of that State and
not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers applicable.”
(b) Combination of Laws
Sometimes the parties are not able to agree on a single national law, and provide instead for a
combination of laws. For example, in the contract for the building of the channel tunnel from
France to England, the contract provided for contractual disputes to be governed by principles
common to both English law and French law, and in the absence of such common principles, by
general principles of international trade laws that have been applied by national and international
tribunals. Such a combination of laws creates a very onerous task for the arbitration tribunal to
identify the correct governing law and is not recommended. Nevertheless, the arbitrators must
follow the agreement of the parties and strive to identify the applicable principles of law.
In the 1950‟s and 1960‟s there was considerable debate in international circles regarding the
substantive law applicable to disputes involving confiscation of foreign oil concessions by the
governments of Libya and Iran. This group of cases has come to be known as the Great Oil
Arbitrations and involved a search for legal principles that were fair to the host government and
fair to the foreign oil company. Some of the arbitrations involved no choice of law clause, while
others had clauses that linked the laws of the host nation to principles of international law and
general principles of law. Again, this amalgam of national laws and general principles of law
leads to considerable uncertainty that is generally inappropriate to commercial transactions
where the parties must be able to predict the correct result of any particular course of action on
(c) Choice of No Law
The parties may choose to have their dispute decided on the basis of principles of fairness rather
than by the application of a particular law. A contractual provision for this choice is called an
equity clause, and usually provides that the arbitral tribunal may decide as amiable compositeurs
or ex aequo et bono. Article 28(3) of the UNCITRAL Model Law provides that the arbitral
tribunal may only decide a dispute on this basis if the parties have expressly authorized the
tribunal to do so.
Where there is no choice of law in the contract the arbitration tribunal may wish to inquire of the
parties as to whether they choose to have their dispute decided on the basis of equity, or what is
fair and reasonable, before the commencement of the evidentiary hearing.
In deciding the dispute on the basis of equitable principles, the arbitration tribunal must
nevertheless proceed in accordance with generally accepted legal principles while not being
bound by strict laws that may lead to an unfair or inequitable result.
Under this heading it is relevant to consider principles of international law such as pacta sunt
servanda which means generally that the parties are bound by their agreements. Another
accepted principle is that of rebus sic stantibus meaning generally that upon the happening of
unforeseen events the agreement of the parties should be modified to accord with what the
parties would have intended had the event been foreseen.
(d) Lex Mercatoria
Where the parties have made no choice of law or have chosen to have their dispute decided in
accordance with international trade law, the arbitrator may apply what has been termed the lex
mercatoria or the international law of contracts or international trade law. There is a general
understanding of these principles that has been articulated in legal literature such as the article by
Lord Mustill, “The New Lex Mercatoria: The First Twenty-Five Years”.3
(e) Stabilization Clauses
The parties may sometimes seek to freeze the law at the date of the contract, particularly in cases
of contracts with government entities where it is open to the government party to change the law
at its whim. There is some debate internationally as to the validity of stabilization clauses but,
consistent with the principle of party autonomy, the parties should be able to choose whatever
law they desire to determine their disputes. The argument against stabilization clauses is that it
could result in an arbitral tribunal making a decision on the basis of a law that no longer exists.
However, arbitrators must respect the intentions of the parties and there is no reason in principle
to refuse to recognize the applicability of a national law as it existed at the date of the contract.
(f) Punitive Damages
The choice of law can have significant consequences to the outcome of the arbitration
proceeding. Some jurisdictions such as the United States allow for the award of punitive
damages either generally or specifically such as the availability of treble damages under RICO
legislation and the Sherman Act. A decision by the arbitration tribunal that the applicable
substantive law is the law of California or New York would include the applicability of punitive
damages but not necessarily for arbitrations. This is also a subject of international debate
because the public policy of some countries prohibits an award of punitive damages. This may
become relevant when the arbitration award, wherever made, is sought to be enforced in a
jurisdiction which excludes punitive damages as a matter of public policy.
It is generally accepted that international arbitral tribunals do have the jurisdiction to award
punitive damages. In Mastrobuono et al. v. Shearson Leaman Hutton, Inc. the Supreme Court
upheld an arbitral award of punitive damages notwithstanding a choice of New York law that
allowed courts but not arbitrators to award punitive damages.4 The governing lex arbitri was the
Federal Arbitration Act. The Court ruled that the choice of New York law in the contract in
combination with an arbitration clause was to be interpreted as a choice of New York law in
4 Arbitration International 86 (1988).
514 U.S. 52 (1995).
respect of substantive principles but not including domestic rules limiting the authority of
(g) Mandatory Laws
Arbitrators may have to consider the application of mandatory laws in the place of performance
of the contract, even though the parties have made a choice of substantive law of a different
jurisdiction to govern the resolution of disputes. Examples of mandatory laws may include
competition laws or patent laws. For example, in the case of Mitsubishi v. Solar Chrysler
Plymouth Inc. the Supreme Court of the United States considered the jurisdiction of the arbitral
tribunal to apply the anti-trust laws of the jurisdiction in which the contract was being performed,
even though the contract provided for Swiss law.5 The place of arbitration was Japan. The case
came before the Supreme Court of the United States upon an objection to arbitrators deciding
claims relating to restraint of trade in violation of the Sherman Act. The Supreme Court of the
United States confirmed that arbitrators could rule on claims that contracts were invalid because
they violated mandatory laws in the place of performance. It is now accepted internationally that
arbitrators have a duty to consider the effect of mandatory laws going to the legality of the
contract in dispute. There can also be mandatory rules of international public policy that ought
to be applied by arbitrators no matter what the choice of law by the parties including the general
consensus internationally against upholding contracts that involve bribery or illegal trade.
3. The Law Governing the Arbitration Agreement
While most arbitration agreements are subject to the same law as the contract in which the
arbitration agreement is contained as a clause, the same law does not necessarily apply to both
the main contract and the arbitration contract. Applying conflict of laws rules, a tribunal would
in most cases find that an arbitration clause in a contract is subject to the same choice of law
clause that is found in the contract to govern the substantive dispute between the parties. If,
however, the arbitration agreement is a stand-alone submission agreement or has its own choice
of law clause, the arbitrator must decide what law to apply to answer questions related to the
validity of the language of the arbitration agreement, which parties will be bound by the
arbitration agreement and the scope of the issues that are encompassed by the arbitration
473 U.S. 614 (1985).
agreement. This issue can be critical and may affect the validity of the final award of the
arbitrator because an error in determining the scope of the arbitration contract will go to the
enforceability of the final award under the New York Convention and the arbitration statutes of
England and the United States have differing approaches to questions regarding the scope of
arbitration agreements. Some words of arbitration agreements are considered to be very broad
and cover not only contractual disputes but questions involving torts such as negligence and
statutory causes of action such as breach of anti-trust laws. One English decision suggested that
a clause providing for disputes “under” this contract excludes disputes other than purely
4. The Law Governing the Relationship between the Parties and the Arbitrator
The legal relationship between the arbitrators and the parties has received very little attention in
the literature or in reported decisions of courts. In some jurisdictions, arbitrators have the status
of judges and the arbitrators are immune from being sued for negligence or otherwise. Other
jurisdictions such as England consider that the arbitrators and the parties may have a contractual
This question becomes important when considering whether or not an arbitrator has the right to
sue the parties for outstanding fees or the parties have the right to sue the arbitrator for failing to
show up at the appointed time and place for the arbitration. Arbitrators that are not sure about
their status in relation to the parties, especially when sitting in a foreign jurisdiction, may be well
advised to take out insurance against any potential liability. No one would doubt the obligation
on any arbitrator to act honestly and with due diligence, but the remedy where an arbitrator acts
fraudulently or negligently is not clear. A question that may very well arise in any arbitration is
the obligation on one member of a panel of arbitrators to report misconduct on the part of
another member of the panel. It is not without precedent for a member of an arbitration panel to
have been involved with a lawyer for one of the parties in an intimate relationship during the
course of the arbitration proceedings. A co-arbitrator who fails to disclose such a conflict may
be equally liable. At a minimum, arbitrators should confirm the terms of their appointment in
writing and make provision for such matters as payment terms, especially for cancellation fees.
The arbitrator in an international commercial case will need to closely examine the arbitration
agreement and any procedural rules adopted by the parties to determine whether there is
jurisdiction to decide questions of substantive arbitrability, i.e., whether the nature of the dispute
is within the scope of the arbitration agreement. The general rule was formulated in First
Options of Chicago Inc. v. Kaplan.6 The initial decision as to substantive arbitrability is for the
courts and not the tribunal. However, the court in First Options recognized that the parties could
agree in the arbitration agreement to confer jurisdiction on the tribunal to decide the scope of the
arbitration clause. Arbitration institutions such as the American Arbitration Association also
provide for the tribunal to first decide their own jurisdiction. In the lexicon of international
arbitration law this doctrine is known as competence-competence and refers to the competence
of the arbitral tribunal to decide its own jurisdiction. This jurisdiction is chronological not
hierarchical, as once described by a British Judge. It provides only that the arbitral tribunal shall
have the first say as to arbitrability subject to review by the courts if the ruling of the tribunal is
later challenged. In NetSys Tecnnology Group AB v. Open Text an Ontario court held that in
enacting the International Commercial Arbitration Act the Ontario legislature granted exclusive
authority to the arbitral tribunal to decide the dispute between the parties and the courts should
defer to the tribunal to first decide the scope of the arbitration agreement.7
In practice this issue can cause significant problems. The scope of the arbitration agreement can
extend to the parties covered by the agreement as well as to the disputes caught within the
language of the agreement. While an international arbitration agreement must be in writing, the
scope of the arbitration agreement may be discerned from the dealings between the parties. In
Desputeaux v. Editions Chouette, Inc., the Supreme Court of Canada adopted a liberal approach
to the interpretation of arbitration agreements such that they are deemed to encompass
everything that is closely connected with the agreement.8 The terms of reference of the arbitrator
are primarily defined by the arbitration agreement but may be expanded by the parties and
discerned from the exchange of correspondence between the parties and the arbitrator.
514 U.S. 938 (1995).
1 B.L.R. (3d) 307(1999).
1 S.C.R. 178 (2002).
A frequent objection taken by parties named in a Notice of Arbitration will be that they were not
a signatory to the arbitration agreement. This situation often arises with a parent corporation that
is brought into the arbitration because the subsidiary that signed the arbitration agreement is
insolvent. Some arbitrators will defer to the courts on a challenge to jurisdiction by a non-
signatory party on the authority of First Options of Chicago Inc. v. Kaplan Corporation while
others will accept the jurisdiction to decide the question themselves. The correct answer to the
jurisdictional question will be found in the language of the arbitration agreement, the governing
rules of any arbitral institution and the applicable statute in the jurisdiction in which the
arbitration is being conducted. All sources of law must be considered.
The term arbitrability is used to describe different things in different countries. In the United
States the Courts will use the term arbitrability is often used to refer to whether or not particular
issues are covered by the arbitration agreement but in most places the term is meant to refer to
the question of whether or not a particular type of dispute is capable of being settled by the
arbitration process at all as opposed to whether or not the parties intended a particular type of
dispute to be covered by their agreement.
The question of arbitrability involves public policy limitations or arbitration as a method of
dispute resolution. For example, most jurisdictions prohibit questions of matrimonial law or
criminal law from being resolved in private proceedings. Ultimately an arbitration award would
not be enforceable under the New York Convention if the subject matter of the dispute is not
arbitrable in the jurisdiction where the arbitration takes place or the place where enforcement of
the arbitration award is sought.
It is fairly easy to identify most issues that are reserved to the courts, whether it be bankruptcy
law or human rights law. There are, however, some issues that require an examination of public
policy statements in the jurisdiction where the arbitration is being held. The complex question of
whether or not securities law, patent and copyright law and competition law are arbitrable is not
so easy to determine. An arbitrator would not have the power to declare the existence of a
patent, but would be entitled to award damages for violation of a patent once its existence under
the governing law has been established. Likewise, the arbitrator must accept the applicable
competition laws and has no power to exempt a party from the application of those laws. But at
the same time it is generally open to the arbitral tribunal to find that there has been a violation of
the applicable competition law and award a remedy for that violation. This is an example of
where the distinction between the proper law of the contract and the lex arbitri is critical. The
arbitrator would decide whether there has been a violation of the applicable substantive
competition law as a matter of determining the proper law governing the substance of the
dispute, but would look to the lex abitri to decide whether a remedy may be granted for such
Most jurisdictions and notably the United States now allow arbitrators to rule on questions of
securities law and copyright law, but only to the extent that those laws were followed. There
may be unique rules in a particular jurisdiction that prohibit arbitration in respect of sovereignty
over natural resources or employment issues. It is incumbent upon the arbitrator to correctly
identify the applicable law to decide those questions.
PART II. OVERVIEW OF ESSENTIAL DIFFERENCES BETWEEN CIVIL AND
COMMON LAW TRADITIONS.
To understand the differences between international and domestic cases, one must understand the
essential differences between the world‟s two most commonly encountered legal traditions.
There are, of course, other traditions by which commercial parties govern their relations and
resolve disputes, and these would include traditions found in indigenous communities, traditional
Chinese, Sharia, and others. But as a result of the colonial domination of most of the world by
western European countries, there are two prevalent traditions whose legal systems serve as the
context for this discussion of how the arbitration of a dispute that arises from an international
contract proceeds. These are the common law and civil law traditions.
The common law tradition arose in England and spread throughout its empire where the common
law was imported into places like India, Pakistan, Australia, Canada, Singapore, parts of Africa
and the Caribbean and, of course, the United States. The civil law tradition arose from Roman
law; it was codified in France and Germany and adopted by most all the other European nations
and then exported to where ever the French, Germans, Dutch, Belgians, Spanish and Portuguese
held colonies. So, for example, Mexico, most of Central and South America, Indonesia, and
parts of the Middle East and Africa, have a significant civil law tradition; and in the early 1900‟s
Japan, China and Korea adopted the German Civil Code in whole or part.
The essential difference between these two traditions arises from two very different conceptions
of the role of the courts where civil disputes are resolved, the relationship of the people to the
courts, and the role of lawyers, all of which is far beyond the limits of this presentation. One
writer simplifies the distinction as follows: in the common law tradition the process is all about
the finding the facts, while in the civil law tradition the process is all about finding the law. 9 As
a practical matter the training of judges is very different. In the common law tradition, the
judges usually come from the ranks of senior lawyers who have practiced in the courts for many
years. In the civil law tradition, a lawyer begins training as a judge in law school and typically
does not have any actual experience as a practicing lawyer.10
In international commercial arbitration the arbitrators, like common law judges, usually are
lawyers with significant practical experience. But the process and evidence tends toward a civil
law tradition in some respects. The ways that these differences are manifested in an international
commercial arbitration are demonstrated in two contexts described here: procedure and evidence.
The arbitration of a claim that is wholly derived from a U.S. contract between U.S. companies
proceeds more or less like a civil law suit with the following characteristics:
1. The claim is commenced by filing a statement of claim with an arbitral institution setting
for the facts and basis for the claim.
2. After the arbitrators are selected, the parties engage in discovery by means of the
production of records and taking of depositions of all the parties and lay and expert
3. The parties and counsel appear on a date certain and the arbitration is conducted in which
the parties and their witnesses are examined and cross examined, the lawyers submit
briefing of the legal points, and the arbitrators make a decision.
JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION (2nd ed. 1995).
Id. at 101.
In contrast to this simplified description of the common lawyer‟s experience, in the purest civil
law tradition, the similarities end after the statement of claim is filed with the arbitral institution.
There is nothing resembling what we would call discovery, i.e., no wholesale demand for
production of records is permitted, no depositions are allowed; and the “hearing” may consist
only of the argument of lawyers based on the written record that has been submitted, and that
record would not include statements of the parties themselves who are thought to be too close to
the dispute to be permitted to testify.
This characterization of the civil law tradition is made for emphasis as the practices and
procedures have begun to harmonize as a consequence of exposure to other traditions. Civil
lawyers have learned about discovery and cross examination, while common lawyers now often
seek limits to discovery and wrestle with witness statements.
Evidentiary questions fall under the rubric of the lex arbitri. The arbitration statutes in most
jurisdictions in turn leave evidentiary questions to the sole discretion of the arbitrator. The
UNCITRAL Model Law gives the arbitrator broad discretion to decide the procedure on
hearings. Article 19 provides that the arbitral tribunal may conduct the arbitration in such
manner as it considers appropriate, including the admissibility, relevance, materiality and weight
of any evidence. The rules of most arbitral institutions such as the American Arbitration
Association also confer a broad discretion on the arbitrators to decide evidentiary questions.
Questions remain, however, regarding where the arbitrator must look in the event the arbitration
law governing the proceedings, or the rules chosen by the parties do not describe the powers of
the arbitral tribunal regarding evidentiary issues. If there is a broad discretion given to the
tribunal, the tribunal should consider the available sources to find principles to guide rulings on
A. The International Bar Association’s Rules on the Taking of Evidence in
International Commercial Arbitration
Recognizing the need for a common set of rules governing the process and evidence used in
international commercial arbitration where the parties, their counsel or the arbitrators may come
from different legal traditions, the International Bar Association‟s Arbitration and ADR
Committee in June 1999 adopted a set of Rules on the Taking of Evidence in International
Commercial Arbitration. The committee was composed of lawyers and arbitrators from the
common law and civil law traditions. While the common law tradition of calling witnesses to
testify before the tribunal is preserved, the civil law tradition limiting what we know as pre-
hearing discovery also is preserved.
In any event, one of the key features of international commercial arbitration is “party autonomy”,
which means that the parties are free to choose whatever process, including the scope of
discovery, that they want. Absent agreement, the parties will be limited by typical practice,
which the IBA rules describe.
1. Lay Witnesses
The IBA rules do not provide for depositions, interrogatories or requests for admission. Instead,
the parties are required to submit in advance of the hearing copies of the documents on which the
party relies and detailed witness statements. Consistent with international practice IBA Rule
Article 4 (5) sets forth the content of a witness statement, which shall contain:
(a) the full name and address of the witness, his or her present and past relationship (if any)
with any of the Parties, and a description of his or her background, qualifications, training
and experience, if such a description may be relevant and material to the dispute or to the
contents of the statement;
(b) a full and detailed description of the facts, and the source of the witness‟s information as
to those facts, sufficient to serve as that witness‟s evidence in the matter in dispute;
(c) an affirmation of the truth of the statement; and
(d) the signature of the witness and its date and place.
At the hearing, the witness statement may serve as the witness‟s direct testimony, and after
introducing the witness and confirming the truth of his or her witness statement, the witness then
becomes subject to cross examination by opposing counsel or questions from the tribunal. IBA
Rule Article 8 (3).
2. Document Production
Document production is also very limited in international commercial arbitration. In the extreme
case, a business person from a civil law country would never expect that his or her business
records would be made available for examination under any circumstances even in the event of
litigation and even as to records that we would not ordinarily consider as protected by the
attorney client privilege. Under Swiss law, for example, production of ordinary business records
in the absence of a court order may be a criminal offense.
Under IBA Rules Article 3 (3) a request to produce documents shall contain:
(a) (i) a description of a requested document sufficient to identify it, or (ii) a description in
sufficient detail (including subject matter) of a narrow and specific requested category of
documents that are reasonably believed to exist;
(b) a description of how the documents requested are relevant and material to the outcome of
the case; and
(c) a statement that the documents requested are not in the possession, custody or control of
the requesting Part, and of the reasons why that party assume the documents requested to
be in the possession, custody or control of the other Party.
A U.S. practitioner would immediately complain that it is not reasonable to describe in detail the
contents of a document that he or she has never seen and argue that under typical U.S. civil rules
one may seek production of documents that are not relevant so long as they might lead to the
discovery of documents that might be relevant (FED. R. CIV. PRO. 26) and this demonstrates one
of the differences in international practice. In an international arbitration a request to see “your
entire contract file and all associated correspondence, notes, memoranda and email” is very
likely to be refused. However, a request, for example, for “the notes or memoranda that Mr.
Purchasing Manager made on or about January 14, 2003 when Ms. Buyer confirmed the
purchase by telephone call between Ms. Buyer and Mr. Purchasing manager” is much more
likely to be productive.
Like domestic arbitrations, the parties or the tribunal may rely on expert testimony, but in
international cases, a greater emphasis is applied to ensure that the expert testimony is reliable
and not simply an advocate for one side or the other. I submit that a higher standard of practice
is applied when expert witnesses are called to testify in an international arbitration.
The Chartered Institute of Arbitrators has published a Protocol for the Use of Party-Appointed
Expert Witnesses in International Arbitration which should be applied in any international case
where expert witnesses are used. The full protocol is available at http://www.arbitrators.org/;
and several key elements are set forth here.
First, the parties shall not offer expert witness testimony without the permission of the arbitral
tribunal; and the expert‟s opinion must be “independent, objective, unbiased and uninfluenced by
the pressures of the dispute resolution process or by any party.”
Second, an expert‟s report should:
(a) contain the full name and address, background, qualifications, training and experience of
(b) state any past or present relationship with any of the Parties, the Arbitral Tribunal,
counsel or other representatives of the Parties, other witnesses and any other person or
entity involved in the Arbitration;
(c) contain a statement setting out all instructions the expert has received from the appointing
Party and the basis of remuneration of the expert;
(d) only address the issue or issues in respect of which the Arbitral Tribunal has given
permission for expert evidence to be adduced.
(e) state which facts, matters and documents, including any assumed facts or other
assumptions, have been considered in reaching the opinion;
(f) state which facts, matters and documents, including any assumed facts or other
assumptions, the opinion is based upon;
(g) state the opinion(s) and conclusion(s) that have been reached and a description of the
method, evidence and information used in reaching the opinion(s) and conclusion(s);
(h) state which matters the expert has been unable to reach an opinion on;
(i) state which matters (if any) are outside the expert‟s area of expertise;
(j) be as brief as is reasonably possible;
(k) not contain copious extracts from other documents;
(l) adequately reference all documents and sources relied upon;
(m) not annex more than is reasonably necessary to support the opinion;
(n) contain a declaration in the form set out below; and
(o) be signed by the expert and state its date and place.
Third, the experts for both sides may be required to meet and confer to determine if there are any
issues about which they agree, and so advise the arbitral tribunal.
Fourth, the expert‟s statement must set forth the following assertions:
(a) I understand that my duty in giving evidence in this arbitration is to assist the arbitral
tribunal decide the issues in respect of which expert evidence is adduced. I have
complied with, and will continue to comply with, that duty.
(b) I confirm that I am independent of the party which has appointed me.
(c) I confirm that this is my independent, objective, unbiased opinion which has not been
influenced by the pressures of the dispute resolution process or by any party to the
(d) I confirm that all matters upon which I have expressed an opinion are within my area of
(e) I confirm that I have referred to all matters which I regard as relevant to the opinions I
have expressed and have drawn to the attention of the arbitral tribunal all matters, of
which I am aware, which might adversely effect my opinion;
(f) I confirm that, at the time of providing this written opinion, I consider it to be complete
and accurate and constitute my true, professional opinion.
(g) I confirm that if, subsequently, I consider this opinion requires any correction,
modification or qualification I will notify the parties to this arbitration and the arbitral
The interest in seeking a higher standard of practice in international cases cuts across the
common and civil law traditions. For example, in England and Wales the Civil Procedure rules
provide that the duty of an expert to the court “overrides any obligation to the person from whom
he has received instructions or by whom his is paid,” and in the Italian penal code experts who
give false opinions may be imprisoned from two to six years. 11
Geoffrey M. Beresford Hartwell, Sighted Justice: the Ethical and Practical role of the Expert
and its Implication for the Structure of Jurisprudence, in The International Institute of Forensic
Studies, Expert Evidence: Causation, Proof and Presentation (2-5 July 2002).
Part III. ENFORCEMENT, APPEALS AND APPLICATIONS TO SET ASIDE
In contrast to court judgments, arbitration awards are enforceable world wide in accordance with
the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Known as the
“New York Convention”, the United Nations General Assembly adopted it in 1958, and the
United States acceded to it in 1970.12 The New York Convention is now recognized in 142
countries, with the Convention‟s ratification and entry into force by the Marshall Islands on
March 21, 2007.13 The U.S. Supreme Court acknowledged the Convention‟s role in international
trade in Scherk v. Alberto-Culver Co.:14
… the goal of the [New York] Convention, and the principle purpose underlying
American adoption and implementation of it, was to encourage the recognition
and enforcement of commercial arbitration agreements in international contracts
and to unify the standards by which agreement to arbitrate are observed and
arbitral awards are enforced in the signatory countries.15
Generally speaking, the New York Convention permits a party to seek enforcement of an
international arbitration award anywhere that assets can be located.16 There is no similar
mechanism for the international enforcement of domestic court judgments. In this increasingly
global era of capital movement, the world wide enforcement of arbitral awards may be
international arbitration‟s most attractive feature.
A. New York Convention Basics
The New York Convention is implemented in the United States by federal statute. 17 In the
Americas, another similar treaty, the 1975 Inter-American Convention on International
Commercial Arbitration, known as the “Panama Convention” provides for the enforcement of
9 U.S.C. §§ 201-208.
A list of all States adopting the New York Convention is published at
417 U.S. 506 (1974).
Id., at 520 n. 15.
Like many things international, U.S. law may make enforcement a bit more difficult without in
personam jurisdiction. A full discussion of this issue by the International Commercial Disputes
Resolution Committee of the Association of the Bar of the City of New York is available at
9 U.S.C. §§ 201-208.
arbitration awards among most of the American countries.18 What follows here are the basics of
the New York Convention.
The New York Convention is a 5 page treaty in which the key elements are set forth in a mere 2
pages text and, as the great 20th Century architect Ludwig Mies van der Rohe once observed,
less is truly more.
Article I provides that the Convention applies to the recognition and enforcement of arbitral
awards made in another State party to the Convention.19 The New York Convention permits
States to agree to only two possible reservations upon ratification; these are, in essence,
exceptions to its application: 1) a requirement of reciprocity and 2) that the Convention shall
apply only to arbitrations arising from legal relationships “which are considered as commercial
under the national law of the State making such declaration.” Reciprocity is a logical condition –
what‟s good for you is good for me – but whether the dispute arises from a “commercial
relation” may be more esoteric. The commercial reservation has not caused practical problems
as the courts have tended to interpret the scope of the term “commercial” broadly.20 In one odd
case, the Supreme Court of Tunisia refused to enforce an ICC award under a contract in which
architects undertook to design an urbanization plan for a resort on the grounds that the contract
was not by its nature “commercial” according to Tunisian law.21
Article II requires each Contracting State to recognize agreements in which the parties agreed to
submit their disputes to arbitration, but the agreement must be in writing and signed by the
parties or be contained in “an exchange of letters or telegrams.” Whether an exchange of email
which did not exist in 1958 is the equivalent of an exchange of letters or a telegram, seems like a
logical but as yet un-established extension of the Convention criteria. And it requires domestic
courts to refer a disputed matter to arbitration unless the court finds the “agreement is null and
void, inoperative or incapable of being performed.”
9 U.S.C. §§ 300-307.
State party refers to nation state.
Albert Jan van den Berg, Why Are Some Awards Not Enforceable?, ICCA PROCEEDINGS, 17TH
ICCA CONFERENCE, BEIJING, 16-18 MAY 2004, at 35.
Taie Haddad and Hans Barrett v. Societe d’Investissement Kal, Cour de Cassation 10
November 1993, reported in YB COMM. ARB. XXIII (1998) pp. 770-773.
Article III requires Contracting States to recognize and enforce arbitral awards in accordance
with local procedure and the Convention‟s criteria, but in no event can the terms or conditions
for enforcement of an international award be more onerous than for the enforcement of domestic
Article IV provides that to obtain recognition and enforcement, a party must file an authenticated
original or certified copy of the award and the original or certified copy of the arbitration
agreement, which has been translated into the language of the country where enforcement is
Article V is the crux of the Convention; it sets forth the only grounds on which recognition and
enforcement of an arbitral award may be refused. The validity of the award is presumed and the
burden of proof seems to be on the party resisting enforcement. 22 The grounds for refusal under
the Convention are:
1. The parties to the agreement were, under the law applicable to them, under some
incapacity, or the agreement is not valid under the law to which the parties have
subjected it or the law of the country where the award was made; or
2. The party against whom the award is invoked was not given proper notice of the
appointment of the arbitrators or the proceedings or was otherwise unable to
present his case; or
3. The award deals with matters not within the scope of the arbitration agreement,
provided that if those matters can be separated, then partial enforcement of the
award that is within the scope of the parties‟ agreement may occur; or
4. The composition of the arbitral tribunal or its procedure was not in accordance
with the agreement of the parties or, absent such agreement, not in accordance
with the law of the country where the arbitration took place; or
5. The award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the country in which or under the law of
which the award was made; or
R. Doak Bishop and Elaine Martin, Enforcement of Foreign Arbitral Awards, available at
6. The subject matter of the difference is not capable of settlement by arbitration
under the law of the country where enforcement is sought; or
7. Recognition or enforcement of the award would be contrary to the public policy
of the country where enforcement is sought.
As one might imagine, each of these grounds has provided fertile ground for litigation. Although
a full discussion of each issue is beyond the scope of this paper, a brief discussion of the key
Articles III and V of the New York Convention are implemented in the United States by Section
207 of the Federal Arbitration Act,23 which provides that a court “shall confirm” awards subject
to the Convention “unless it finds one of the grounds for refusal” specified in the Convention to
exist. An application for confirmation of the award must be made within three years after the
award is made, which means “decided” and not when it becomes “final”.24
Article VI provides that an application for enforcement may be adjourned if an application to set
aside the award is pending in the country where the award was made, and the Court may require
the posting of suitable security in the event an enforcement proceeding is adjourned.
It may be necessary to seek recognition and enforcement of the award in multiple jurisdictions
unrelated to the underlying transactions in order to find assets sufficient to satisfy the award.
The case of Karaha Bodas Co. v. Perusahaan Pertiambangan Minyak Dan Gas Bumi Negara; et
al., provides a primer of the problems which may present themselves in enforcing an arbitral
award, and provides a review of many of the issues which may arise under Article V of the New
Karaha Bodas Co. (“KBC”), a Cayman Islands company, signed a Joint Operation Contract and
an Energy Sales Contract with Perusahaan, a government-owned Indonesian company, and with
PLN to develop electricity from geothermal sources. The project was delayed by government
order, and ultimately KBC instituted two arbitrations with “the site” in Geneva under the
9 U.S.C. § 207.
Seetransport Wiking Trader Schiffarhtsgesellschaft MBH & Co. v. Nivimpex Centrala Navala,
989 F.2d 572, 581 (2nd Cir. 1993).
364 F.3rd 274 (5th Cir. 2004).
arbitration clause in both contracts. KBC nominated one arbitrator, and, pursuant to the terms of
the arbitration clause, when Pertamina did not timely nominate an arbitrator ICSID, an
international arbitration organization, selected a second arbitrator. Also as provided in the
arbitration clauses the two arbitrators selected an internationally prominent arbitrator as chair.
The arbitral tribunal consolidated the two cases into one arbitration, held a hearing and issued an
award in favor of KBC. KBC subsequently sought to enforce the award in Hong Kong, Canada
and the United States.
In the United States case, the District Court “slowed the proceedings” while Pertamina brought
an action in Switzerland to set aside the award. (If an action to set aside the award is pending,
Article VI of the New York Convention permits a court before which a recognition and
enforcement proceeding is brought, “if it considers it proper, [to] adjourn the decision on the
enforcement of the award … .”) That suit to set aside was dismissed by the Swiss courts, and the
District Court recognized the award and issued a summary judgment enforcing it. The case was
then appealed to the Fifth Circuit Court of Appeals.
Pertamina then sought and obtained a judgment setting aside the award in the Indonesian courts.
Thereafter, it moved in the District Court to vacate the summary judgment due to 1) newly
discovered evidence from the Canadian enforcement action, 2) the Indonesian judgment setting
aside the award, and 3) partial satisfaction of the award due to a political risk insurance payment.
It also sought additional discovery in the District Court
The District Court denied the motion, and the Court of Appeals upheld the District Court‟s
B. Article V Challenges to the Award
The Court of Appeals opinion makes clear that the U.S. court can refuse to enforce the award
only for the grounds set forth in Article V of the New York Convention. The Court's opinion
deals with these grounds in two parts; the first examining the effect of the actions to set aside the
award in Switzerland and Indonesia, the second examining whether the constituting of the
arbitral tribunal and its actions provided a basis for refusal on the other Article V grounds raised
As the Court stated,
“Courts of primary jurisdiction, usually the courts of the country of the arbitral
situs, have much broader discretion to set aside an award. While courts of a
primary jurisdiction country may apply their own domestic law in evaluating a
request to annul or set aside an arbitral award, courts in countries of secondary
jurisdiction may refuse enforcement only on the grounds specified in Article V."
C. Actions to Set Aside the Award
Article V.1.(e) of the New York Convention permits non-recognition of an award if it “has been
set aside or suspended by a competent authority of the country in which, or under the law of
which, that award was made.” Noting that the parties had chosen Switzerland as the seat, the
court adopted the strong presumption that Swiss arbitration law was the lex arbitri, and that
Swiss courts exercised primary jurisdiction.
The Court of Appeals had little difficulty denying Pertamina‟s attempt to defeat enforcement of
the award as a result of the Indonesian court‟s setting aside the arbitral award. Pertamina had
acknowledged in numerous pleadings that Swiss arbitration law applied and first sought to set
aside the award in Switzerland. Only when the Swiss action failed, did Pertamina resort to
Indonesian courts. This permitted the Court of Appeals to rely on an estoppel theory. (The court
discussed with skepticism jurisprudence suggesting the possibility of more than one country‟s
having primary jurisdiction, but even if that were possible, based on the record of the case, it
dismissed the argument that Indonesia had jurisdiction to set aside the award.)
It should be noted that the language of Article V appears to be permissive ("may refuse
enforcement") when the award has been set aside in the seat. There are several cases where a
court in another jurisdiction has recognized and enforced an award notwithstanding the fact that
it was set aside at the seat. It seems most likely that this situation would occur where questions
of arbitrability or public policy are substantially different in the two jurisdictions.
D. Other Article V Challenges
In reviewing the other challenges to the award, the court stated,
“The court may not refuse to enforce an arbitral award solely on the ground that
the arbitrator may have made a mistake of law or fact. „Absent extraordinary
circumstances, a confirming court is not to reconsider an arbitrator's findings.‟
The party defending against enforcement of the arbitral award bears the burden of
proof. Defenses to enforcement under the New York Convention are construed
narrowly, 'to encourage the recognition and enforcement of commercial
arbitration agreements and international contracts.‟ ” [citations omitted]
The issues and the court‟s opinions are summarized below:
1. (b) The party against whom the award is invoked was not given proper notice
of the appointment of the arbitrator or of the arbitration proceedings or was
otherwise unable to present his case; ... .
Pertamina sought both additional discovery and additional proceedings to determine whether or
not KBC had political risk insurance and available project financing. While this could have a
material effect on the actual damages suffered, the Court held that since the Pertamina's counsel
had raised the issue and not followed through at the hearing and, at the conclusion of the hearing,
had not sought to preserve the issue, this did not rise to the level of inability to present its case.
1.(d) The composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was not
in accordance with the law of the country where the arbitration took place; ... .
Here the court referred to the arbitration clause and found that when Pertamina failed to appoint
an arbitrator within the time limit provided, the provisions of the clause were followed.
The more interesting challenge under this ground is related to the joinder of arbitrations
instituted under separate contracts. Joinder is not addressed in the arbitration agreement and is
not expressly provided for in the UNCITRAL rules. The Court of Appeals referred to the
decision of the tribunal that the arbitration clauses in the two contracts were nearly identical, that
the contracts were inextricably linked in one business transaction, and that the Swiss doctrine of
“connexity” permitted the consolidation. As the Court pointed out, this doctrine is not available
in all jurisdictions but deferred to the tribunal's decision.
2. (b) The recognition or enforcement of the award would be contrary to the
public policy of that country.
Pertamina asserted that the award was contrary to public policy because it violated the
international law abuse of rights doctrine, and because the District Court‟s decision held
Pertamina liable for complying with Indonesian law. The Court of Appeals pointed out that “the
public policy defense is to be „construed narrowly to be applied only where enforcement would
violate the forum state‟s most basic notions of morality and justice.‟ ” [citation omitted] The
court stated that the abuse of rights doctrine is “not established in American law” and that the
record did not support the argument that enforcing the award penalized obedience to a
Consideration of enforcement issues should begin when drafting the arbitration clause. In this
stage, selection of the seat of the arbitration is especially significant. While often thought of in
terms of convenience, facilities, and accessibility, barring agreement to the contrary the choice of
seat is also normally the choice of the lex arbitri. This not only can determine the extent to
which the courts of the seat may become involved before, during, and after the arbitral process,
for good or for ill, but may also dramatically affect the nature of the arbitration itself, and its
subsequent enforcement in other jurisdictions.
In the KBC vs. Pertamina case, had the seat been other than Switzerland the tribunal might not
have consolidated the two cases, requiring two separate arbitrations with potentially inconsistent
awards. On the other hand, had the tribunal consolidated the two cases without any legal basis to
do so under the lex arbitri of a different seat, the losing party may have had a better chance of
contesting enforcement in another jurisdiction. As discussed above, a similar situation could
arise where a non-signatory to the arbitration agree (e.g., parent corporation) is joined to an
Another issue to consider if enforcement is likely to be sought in a jurisdiction with a less
developed legal system is the selection of a recognized arbitration organization to administer the
arbitration, as opposed to an ad hoc arbitration. This may lend credibility to an award for a local
judiciary, both in terms of administration of the arbitration (and other services such as a review
of the award by the ICC), as well as the history and status of the organization.
While many courts are familiar with the concept of the seat and lex arbitri, there is a risk that if
none of the arbitral proceeding actually took place in the seat (which is permitted by most
commonly-use rules and the UNCITRAL Model Law), a less experienced court could find that
“the law of the country where the arbitration took place,” i.e, where the hearing was held, was
the lex arbitri, possibly with serious consequences. In the KBC vs. Pertamina case, the hearing
was held in Paris. If the hearing had been held in Jakarta, would the Indonesian court‟s setting
aside of the award have been more likely to be the basis for a refusal to enforce the award in
In no small part, HBC was successful in obtaining enforcement of the award in the U.S. because
the arbitration clauses were sufficient to form the basis for an arbitration which was subsequently
upheld by the courts. In particular, the clauses used fairly standard language with respect to
selecting the arbitrators, providing for default selection of arbitrators by a recognized arbitral
organization, choosing established arbitration rules (the UNCITRAL Rules) and choosing a seat,
the law of which was favorable to international arbitration.
While the arbitral Tribunal made some decisions which were contested (consolidating two
arbitrations, limiting discovery, and not permitting Pertamina to furnish additional evidence on a
matter which could affect the amount of damages) and which could have provided prima facia
grounds for non-recognition under the New York Convention, the tribunal provided a sufficient
record on which the U.S. court could sustain the award.
Although the Court of Appeals upheld the District Court‟s recognition of the award pursuant to
the New York Convention (i.e., a success for KBC), the time and cost involved in one
arbitration, and six court proceedings in five countries, do not seem to represent a victory for
cost-effective and timely dispute resolution.
Given an award of over $250 million dollars, arbitration was probably successful for KBC,
notwithstanding the cost and time involved, since it is likely that in the absence of an arbitration
clause more litigation with less certainty as to the outcome in multiple jurisdictions would have
been the alternative.
The provisions for judicial review of an arbitration award will typically be different under the
domestic and international arbitration statutes of the state in which the arbitration is being
conducted. In Ontario there is no provision for appeal of an international arbitration award
whether for error of law or error of fact. There is only a right to have the award set aside under
Article 34 for what are in essence the jurisdictional errors defined in Article 5 of the New York
Convention. For a domestic award there is an appeal available under s. 45 of the Domestic Act
with leave of the court for an error in law if there is no provision in the arbitration agreement for
appeal and a broader right of appeal for error of law or fact if the parties have designated a right
of appeal on those grounds in the arbitration agreement.
MURRAY SMITH is an experienced practitioner in the field of international
arbitration law. With thirty years at the bar he has conducted numerous
commercial cases both as counsel and arbitrator. His academic credentials
include a Masters Degree in International Business Law from the London School
of Economics with a focus on international arbitration law issues. Mr. Smith
collaborated with Martin Hunter and Allan Redfern in writing the second edition
of the leading text “Law and Practice of International Commercial Arbitration”
and is a frequent lecturer on the subject of international arbitration practice. Mr.
Smith is also an English Barrister and door tenant at Essex Court Chambers in
London. As an arbitrator in complex commercial cases Mr. Smith recognizes the
fundamental importance of due process and equal treatment of the parties while
maintaining rigorous procedural oversight and strict confidentiality. As Chairman
of the North American Branch of the Chartered Institute of Arbitrators he has
actively promoted the highest professional and ethical standards for arbitrators in
international cases. He can be reached at firstname.lastname@example.org.
MICHAEL J. BOND is an attorney and arbitrator with offices in Seattle. He
obtained his JD from Gonzaga University School of Law in Spokane, Washington
in 1978, he studied Public International Law at The Hague Academy of
International Law in the Netherlands in 2003, he completed an LLM in
Sustainable International Development at the University of Washington School of
Law in 2004, and he is a Fellow in the Chartered Institute of Arbitrators. Mr.
Bond has spoken and written about the issues in international arbitration, most
recently in “The Americanization of Carlos Calvo” MEALEY‟S INTERNATIONAL
ARBITRATION REPORTS, August 2007. Mr. Bond can be reached at
PETER R. DAY is an attorney and arbitrator with offices on Mercer Island,
Washington. He completed his undergraduate degree in Economics at Yale
University in 1966, he obtained his JD from the University of San Francisco in
1969, he studied at the University of Saar, Germany, he obtained a graduate
degree as a Fulbright Scholar from the University of Grenoble, France in 1976,
and Mr. Day is reasonably fluent in English, French and German. Mr. Day spent
25 years in the legal department of The Boeing Aircraft Company including a
position as Chief Counsel of Boeing Computer Services. Mr. Day is a Fellow in
the Chartered Institute of Arbitrators, and he can be reached at