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A. Other Types of ADR
     Arbitration: 3rd party’s decision binding
     Mediation: 3rd party guides decision-making (not binding)
          o Stepped clauses: Series of more formal dispute resolution process before getting to arb
              (e.g. discussion – mediation – arb); in some states steps are JX (can’t jump steps)
     Technical expertise: For technical (not legal issues), but can decide legal issues
     Adaptation of contracts
          o Doesn’t resolve dispute; part of contract formation; supplies missing terms in contract
          o Doesn’t need full hearing or reasoned award

B. Arbitration vs. Litigation
     Benefits of arbitration:
           o *Predictability
           o *Neutrality: Distrust of judiciary, bias of natl courts
           o Competence
           o Party participation/autonomy: Procedures often shaped by parties
           o Finality: Little risk of award being set aside by courts; no review, grounds for challenge
               very narrow
           o Enforceability: NY Convention
           o Costs: No costly depositions; but arbitrators must be paid
           o Privacy: No open hearings or filings (not same as CF)
     Cons of arb:
           o Hard to anticipate what is req in advance
           o Limited provisional remedies: Coz takes long time to put arb tribunal together
           o Home court adv
           o Prelude to more litigation
           o Tendency to split the diff
           o What if claim is against a 3rd party who isn’t party to the arb agreement?
                     Bringing non-signatories in: Group of companies theory

C. Institutional vs. Ad Hoc Arbitration
     *Institutional arbitration: Proceedings admin by an organization, usually in accordance with its
        own rules of arbitration (e.g., ICC)
            o Advantages
                      Ease of incorporating by reference institution’s rules
                      Arbitrator selection: Legal training, prior experience; no need to negotiate for fee
                               Referee ensures all arbitrator are indp; challenge procedures to remove
                                 arbitrator who isn’t
                      Professional admin: To guide disputants thru process
                      Judicial deference to inst arbitration: Favorable recog in courts
                      Default award: Ability to proceed in absence of defaulting party
     Ad hoc arbitration: No formal admin by any established arbitral agency; parties opted to create
        own procedures for given arbitration (can be by drafting own procedures in contract or by
        reference to UNCITRAL Arbitration Rules, or allowing arbitration tribunal to fashion own rules
        after dispute arisen)
            o Advantages:
                      Flexibility

                    Cost (UNCITRAL has no fees)
                    Speed
           o   Disadvantages:
                    Requires complete cooperation of parties and their reps
                    Can only challenge arbitrator’s indp in court
                    Harder to proceed in absence of defaulting party
                    Any procedural mishaps: Need to turn to state court to resolve
                    Can spend lots of time determining rules

D. Fast-Track Arbitration
     Higher speed, but has risks:
           o Tension with DP (coz parties can’t express themselves fully)
           o Time limits for issuing awards: Arb can lose JX if don’t fulfill within timeframe
           o Not suited for complex disputes

   France:
          o Prunier: Court doesn’t enforce arb clause coz arbitraters not named; slowly erased this
   Germany: Restrictive  Very favorably disposed toward it
   England: Significant judicial control over arb (even now)
   US: Uniform Arb Act, written contract for arb enforceable
   Reason for greater acceptance of arb
          o Judges paid salaries, don’t compete with arb for fees
          o Daunting court dockets
          o Arb more developed

   a. Party Autonomy
          o Limits: Mandatory principles of state law: DP, arbitrability
          o State law: Seat of arb (lex arbitri, curial law), enforcement JX, subst law (contract)
          o Mandatory state norms: Rules of law motivated by public policy that parties can’t change
                   Hall Street (SC 2008): Parties agree to allow appeal after arb; SC says no ok,
                      can’t expand judicial review beyond grounds of FAA
   b. Institutional Rules Other Than State Origin (e.g., ICC, UNCITRAL)
   c. National Law: Lex arbitri, enforcement JX, substantive law
   d. Intl Agreements: e.g., NY Convention
   e. Conflicts Btw Sources
          o i. Party Autonomy vs. Institutional Rules
                   Prelim Award in Case No 2321 in 1974 (ICC): Parties provided Chairman
                      would choose arbitrator; with ICC rules as default; Chairman didn’t choose, so
                      ICC used its default rules to select arbitrator – ok (institutional rules ok)
                           Problem: Parties didn’t want default rules to apply, that’s why they came
                              up with own rules
                   Esofisa v. Society Gas: Must go with party autonomy
          o ii. Party Autonomy vs. State Norms
                   Al Haddad Bros v. M/S Agapi (Del. 1986)
                           Facts: Contract provided for each party to appt 1 arb; failed, and only had
                              sole arb – Court found this appt valid by bringing in English statute
                           NY Convention Art V(1)(d) has 2 ways to constitute tribunal: i) comply
                              with arb agreement, or ii) comply with lex arbitri (British allows 1 arb)

                               But strange result, coz NYC doesn’t really say this; just wants to save arb
                         Sally v. Termarea (Florence, 1978) – Party autonomy trumps
                               S and T each appointed an arb, but arbs didn’t appt 3rd arb; 2 arbs agreed
                                   T liable; T unwilling to pay; S brought suit in Florence
                               Florence court looks to language of agreement to determine that tribunal
                                   didn’t fulfill req of agreement, so it doesn’t enforce award
                      Sally v. Termarea (England, 1979) – Lex arbitri ok
                               Procedural failure inconsequential; England had statute that plugs gap
           o   iii. Institution vs. Institution
                      Hungarian Chamber of Commerce Case (2000)
                               Agreement: Hung Chamber would arb according to ICC rules  Ok will
                                   follow this; can be difficult could ICC is special in 3 ways:
                                       o 1. “Terms of reference”: Created by tribunal setting out ab
                                            clause, identities of parties, claims etc
                                       o 2. ICC has a court
                                       o 3. Scrutiny: After get award, ICC scrutinizes to make sure ok
                      Hamburg Case: When things too messy (like above), no arb agreement

                          PART II: THE ARBITRATION AGREEMENT

A. Variations of Arbitration Agreements
     Compromis: Agreement that submits to arbitration already existing disputes
     Clause compromissoire: Agrement that covers disputes that may arise in future

B. Existence, Validity Scope Issues
     Arbitrability:
           o Broad: Whether dispute can be submitted to arbitration (existence, validity, scope)
           o Narrow: Is this dispute type that lex arbitri recognizes as being resolved by arb
     3 stages of Arb-Lit process:
           o Stage 1: Litigation at outset whether court should hear dispute or arb
           o Stage 2: Arb decide whether to hear dispute or decline JX (can skip Stage 1)
           o Stage 3: Court review of award (set-aside or recognition and enforcement)

C. Means of Enforcing Agreements to Arbitrate
    1. Compel arbitration (specific performance)
          o NY Convention, Art II(3): State will refer parties to arb if there is an arb agreement,
              unless find agreement null/void
          o FAA §4, 206: Same
    2. Stay litigation proceedings
          o FAA §3: If suit brought before US court and it should go to arb, US court has to stay all
    3. ASIs (anti-suit injunction): Issue injunction preventing party from issuing suit in another
    4. Damages: Typically litigation costs
    5. Declaration of refusal to recognize or enforce proceedings commenced in breach of agreement

A. Compelling Reluctant Party to Arbitrate
     Tennessee Imports Inc v. PP Filippi & Prix Italia (Dist Tenn 1990)

            o   Facts: TI brought action against Prix in court for breach of contract; Prix moves to
                dismiss for lack of JX, pointing to arb clause
            o   Court must enforce arb agreement unless finds it null and void – ok here
            o   TI’s claims that shouldn’t go to arb all fail:
                     i. Substantial inconvenience
                     ii. Arb tribunal isn’t a “judicial institution”
                     iii. Unequal bargaining power: Adhesion contract
                     iv. Public policy
                     v. Fraudulent inducement (told lies when signed contract): Need to specifically
                         attack arb clause, can’t just say whole agreement was fraud
                     vi. Noncontractual causes of action outside scope: But here had broad arb clause,
                         so apply touch test (if claim touches on contract, it’ll go to arb)

B. Parallel Proceedings (concurrent proceedings in court/arb)
     NYC: State must compel arb if there is valid agreement to arb (but sometimes there are other
       factors that weigh in)
     Pepsico v. Officina (SDNY 1996)
            o Facts: Entered into bottling agreements governed by Venezuelan law, but claims settled
                by ICC arb; R terminated contracts, P demanded high payment; R wanted lower payment
                and petitioned Venezuelan courts for lower amount; P file request for ICC arb
            o Holding: Court retains JX for petition, but gives Venezuelan court 60 days to decide
                threshold matter
            o Problem with holding:
                     NYC says US is supposed to decid if there is valid agreement to arb, and if so,
                        court has no choice but to compel arb (not supposed to wait around)
            o Justification:
                     Views national issue as threshold issue
                     Even if Pepsico wins, it has to go to Venezuela court to enforce award; and if V
                        court then decides its unvalid under V law, it’ll refuse to enforce it

C. Waiver of Right to Compel Arbitration
    If have arb agreement: Have right to go to arb, unless delay
    3-prong test: i) Party award of right to arb; ii) Acted in manner inconsistent with exercise of that
       right; iii) Prejudiced opposing party as a result
    Menorah Insurance v. INX Reinsurance (1st Cir. 1995)
           o Facts: Had arb agreement; M told INX it would seek arb, and asked INX to appoint its
                 arb  INX responded it wouldn’t arb  M filed suit, ignored by INX, DJ against INX
                  M sought to enforce judgment  INX moved to dismiss claiming controversy should
                 be arb
           o Holding: INX waived arb when it expressly declined arb

D. Defenses to Resist Motion to Compel Arbitration (i.e., You Don’t Want to Arbitrate)
     1. Container contract nonexistent
     2. No arb agreement came into existence
     3. Existing arb agreement is formally invalid or materially invalid
     4. Disputed issue not within scope of arb agreement
     5. Mandatory law prohibits disputed issue from being arb
     6. Precondition for permissible arb hasn’t been met
     7. Party seeking arb has waived right to arb or estoppel (Menorah)
     8. Parallel proceeding (Pepsico)

A. Definitions
     K-K: If you have dispute as to JX, arb tribunal has JX to decide whether it has JX
            o Negative K-K: Relates to power of court; negative effect of having arb tribunal decide
               whether it has JX is that court not supposed to decide that (at least at first)
     Separability: Agreement to arb is separate from container contract
            o CC invalid doesn’t mean arb agreement is invalid too
            o If want to attack arb agreement, need to attack that specifically
     Purpose: Protects agreements to arb
            o K-K: Prevents ppl from getting into court (insulate arb proceeding from court)
            o Separability: Prevents ppl from arguing that main agreement was invalid to invalidate arb
               agreement (coz most claims are about validity of main agreement)

B. Negative Effects of K-K in US Law
     If challenge JX before US court:
           o Default: Court decides JX
           o Exceptions: a) Procedural defect, or b) “Clear and unmistakable” evidence that parties
               agreed to arb arbitrability, or select institutional rules that contain this language  Arb
               tribunal decides
     First Options v. Kaplan (SC 1995) – “Clear and unmistakable”evidence, court is gatekeeper
           o Courts will defer to arb’s arbitrability decision if parties give “clear and unmistakable”
               evidence that it wanted that
     Howsam v. Dean Witter (SC 2002) – Procedural defect
           o Procedural questions: Presumptively for arb tribunal to decide (not court) (e.g., time,
               limits, notice, estoppel, other conditions precedent to obligation to arbitrate)
           o If saying there is agreement to arb, but didn’t comply with procedural aspects  Arb

C. Separability and Void Ab Initio Doctrine
     Doctrine of separability: (Harbor Assurance)
          o If allege larger container contract invalid (assent, but some req not met)  Arb
          o If allege larger container contract never existed (no assent)  Courts
          o If allege invalidating defect specifically is arb clause itself  Courts
     Prima Paint: To avoid arb need to claim that arb clause itself has defect (hard to prove)

A. Agreement in Writing
     NYC Art II: “Agreement in writing” includes arb clause in a contract or an arb agreement, signed
       by parties or contained in an exchange of letters or telegrams
           o Robobar v. Finncold (Italy 1993)
           o Sphere Drake v. Marine Towing (5th Cir 1994), defined NYC Art II as
                     A) arb clause in contract (which doesn’t have to be signed) or
                     B) arb agreement i) signed by parties or ii) contained in exchange of letters/tele
           o Austria v. Germany: Req met if addressee replies in writing to acknowledge order in
               way that conclusively shows he accepts acknowledge of order with arb clause mentioned
     UNCITRAL Model Law Art 7:
           o Recorded in any form (orally, conduct, or other means)
           o Electronic communications if accessible for subsequent reference
           o Contained in exchange of statements of claim and defense in which existence of an
               agreement is alleged by 1 party and not denied by the other

       Other ways in which arb agreement has been found:
           o Estoppel (Jiangxi v. Sulanser): Arb agreement in writing but not signed; A filed act in
               court; B contested JX of court, invoking arb clause; court declined JX and sent to arb; B
               then contested JX of arb coz of absence of written agreement  Not ok
           o Tacit submission (William v. Guangzhou Shipping): Alleged by 1 side, not denied by
           o Flexible: Modern communication, course of conduct, good faith, previous biz
               relationship (Company of Navigation v. Med. Shipping Co, Swiss 1995)

B. Battle of Forms
     If parties have differing interpretations of arb clause: Find other whether there was common
        intent to arb
            o Nokia: A sends confirmation of order to B providing for forum 1; B sent back changing
                 forum to 2; A sends back replacing forum 2 with arb in ICC  No common intent to arb
            o ITAD: Companies contracted to arb, but each thought arb place was diff  Court found
                 common intent to arb and remand to TC to figure out where

   If there is arb clause, presumption in favor of arb all issues if unclear
   Scope terms:
          o “Arising under,” “arising hereunder”: Narrow, only contractual claims
          o “Related to,” “connected to”: Broad, contractual and non-contractual claims
   No-contest provision: Prohibits parties from contesting agreement in entirety, but doesn’t prohibit
     party from contesting certain provisions contained in agreement  Doesn’t negate arb agreement
     (Ermenegildo Zegna SDNY 1996)

A. Settlement and Removal
     Scenario: 2 agreements, dispute is really about 2nd agreement, but court will apply arb clause from
        1st agreement to 2nd, coz topic is close enough
     Hart Enterprises v. Anhui (SDNY 1995): Settlement agreement (2) inextricably intertwined
        with original agreement (1) so also bound by arb clause
     Becker Autoradio v. BAW (3d Cir. 1978): Distribution agreement expired, is arb clause under
        expired agreement valid? Dispute about extension of agreement is dispute about agreement so arb
        clause applies

   1. Signatory Tries to Bring in Nonsignatory
          o a. Incorporation by reference
          o b. Assumption: Party that participates in arb and later attempts to avoid award on basis of
            status as non-signatory
          o c. Veil-piercing, alter ego
          o d. Estoppel
          o e. Agency (Cosmotek)
   2. Nonsignatory Tries to Compel Signatory to Arb
          o Alternative equitable estoppel: If issues non-signatory brings up is so intertwined with
            contract involving signatories that they should be compelled to arb

A. Split Arbitration Clauses
     Definition: Clause providing that diff institutions have JX over diff issues

       Pupose: Gives corporations chance to see their optiosn before choosing whether to lit/arb (and
       Astra Footwear v. Harwyn (SDNY 1978)
           o Clause: If buyer accused, arb in CC of NY; if seller accused then arb in Beograd
           o Parties have diff interpretations of CC of NY (ICC vs. NYCC)
           o Look to see if there is a dominant intent to arb (in general) or to arb wrt specific org
                    FAA §4: If show unequivocal denial to arb, then can get jury trial on this issue
           o Here: Court doesn’t give jury trial, coz finds there is dominant intent to arb  Ad hoc
       Yugoslav Co. v. PDR Korea (Arb Court 1982)
           o Arb clause states that can arb in China, Poland or Germany
           o Held: Plaintiff can submit arb to any of these 3 places

B. Changed Circumstances
     Party can terminate arb agreement after inquiry into whether change has functional impact on
       agreement to arb
           o Derived from NYC Art II(2): Court when seized of mater where parties have agreed to
              arb, must refer parties to arb, unless it finds that arb agreement is null, void, inoperative
              or incapable of being performed
     Example of decisions:
           o Partial Decision of 1992: Provided for arb in Belgrade, but breakup of Yugoslavia made
              it impossible to get to Belgrade  Arb agreement terminated
           o German Decision of 1994: To resist enforcement of award, party argued that arb
              agreement for Belgrade tribunal rendered invalid coz of Yugoslave breakup  Arb
              wasn’t affected by breakup, so still valid

A. Limits on Arbitrability
     Definition: Whether subject matter of dispute can be arb
           o US SC def: Whether dispute is subject to arb
     NYC Art II(1): Arb agreement can only about topic that is arbitrable
           o Art V(2): Inarb can be reason for nonenf of award if JX looking to enf award finds
               subject to be inarb
     Topics that are are nonarb: Atr, securities, IP, embargoes, COGSA, bankruptcy, admin contracts,
       domestic relations, natural resources, immigration, crimes, employment, tax, env, unequal power
     National statutes:
           o French: All rights that one can dispose of freely
           o Italian: All rights except those about personal status, marital, those that can’t be subject
               of compromise
           o Swiss: Any dispute involving economic interests

B. Stage at Which Arbitrability Issue Could Arise
     1. When national court decides whether to enforce agreement to arbitrate
     2. When arbitrator decides own JX
     3. When courts decide whether to set aside award (same JX as where arb was held – lex arbitri)
     4. When courts at place of enforcement decide whether to recognize and enforce award
     MSA v. Company M
            o Facts: Exclusive distributorship with arb clause; contract governed by Swiss law; Belgian
               party starts proceedings in Belgian courts; Swiss object, want arb with Swiss law
            o Issue: Is dispute arbitrable?  Yes, and issue is to be decided under Swiss law
            o Held: Arbitrability of dispute based on diff criteria, based on which stage issue is raised

                      Raised as issue of validity of arb agreement (JX stage – 1,2,): Ascertain whether
                       law of autonomy (governing law of contract) authorizes submission of dispute to
                       arb (here, Swiss law)
                      Raised at recognition/enf stage: Ascertain law of forum (lex arbitri)

C. Arbitrability in Cases
       i. Embargoes
     Diff treatment of embargoes wrt arbitrability:
           o View 1: If hypothetically possible that award will touch on indisposable rights  Do not
                let arb proceedings go forward
                      Fincantiere-Cantieri v. Iraq: Iraq and shipbuilders contract for corvettes, but
                         embargo legislation issued by Italy against Iraq; Italy claims arb clause
                         terminated coz of embargo
           o View 2: Even if possible that award touches on indisposable rights  Allow arb
                proceedings to go forward; parties take risk of non-enf of award by another JX later
           o View 3: Only if contract actually disposes of indisposable rights  Do not let arb
                proceedings go forward (Coveme v. Compagnie Francaise)

       ii. Antitrust
      US: Antitrust claims are arbitrable, provided enforcing courts use 2nd look doctrine
            o 2nd look doctrine: When US courts asked to enforce award, court just needs to determine
                whether tribunal took cognizance of antitrust claims (low std of review)
      EU: Antitrust claims are arbitrable (Eco Swiss)
            o When asked to enforce award, court must determine whether enforcement of award
                violates EU competition law (higher std of review)
            o Refuse to enforce award on grounds of public policy if there is flagrant violation of
                public policy (SNF Case)
      Mitsubishi v. Soler-Chrysler (SC 1985) – ATR claims arbitrable; 2nd look
            o Facts:
                      S in exclusive dist agreement with M & CISA; agreement for Swiss law; M filed
                         for arb before Japan Arb; M sought action in US courts to compel arb; S brought
                         US antitrust counterclaims under Sherman Act
            o Issue: Are claims arising under Sherman Act arbitrable?  Yes
                      No reason to assume arb wouldn’t provide adequate mechanism for resolving atr
                      US courts have opportunity at awards enforcement stage to ensure legit interest
                         in enforcement of antitrust laws have been addressed
                              2nd look test: When asked to enforce award, court just needs to determine
                                  whether tribunal took cognizance of antitrust claims (low std of review)
      Baxter v. Abbott Labs (7th Cir. 2003) – Applies 2nd look
            o Facts: B invested drug and granted M exclusive license; M sublicense to A; O produces
                competitor to drug and is subsequently acquired by B; A commenced arb alleging B’s
                breach of exclusivity term of license
            o B’s arg: If license forbids it from competing, license is unenf coz violates US atr law
            o Court: Applies 2nd look (from Mitsubishi)
                      Defers to arb panels decision, since it took into account US atr laws
                      Other parties can bring atr action: US, FTC, consumers

       iiii. COGSA/ Cargo
      COGSA: Carrier may not lessen its liability below mandatory reqs thru provision in bill of lading
       contract (choice of law, choice of forum – held invalid)

      What about arb clause?
         o Vimar Seguros v. Sky Reefer (SC 1995): COGSA only prohibits substantive lessening
              of liability; clause simply directly arb is ok (claim may be so small cost of lit is

       iv. Other Topics
      Bankrtupcy: Noncore bankruptcy issue should be submitted to arb in accordance with agreement
       (Sonatrach v. Distrigas)
      Securities: A entered into agreement to buy B; dispute; A wanted to arb according to clause, B
       objected that Securities Act makes arb agreement void (Scherk v. Alberto-Culver)
            o Court: Send to arb coz this is intl arb agreement about securities; worry that in intl
               context there is more uncertainty of law and forum which would result in disincentive to
               enter into agreements, so impt to uphold forum selection clauses
      Patents:
            o 35 USC 294:
                    Parties can contract to arb
                    Award by arb only has effect btw parties to arb
                    Parties can agree that if patent which is subject matter of an award is later
                        determined invalid by court, such award can be modified by the court
            o 35 USC 135:
                    Parties can agree to an interference (have to file with PTO) (patent interference:
                        allows party who failed to file patent app on time to challenge inventorship of
                        another party which has a granted or pending patent)

                                  PART III: THE ARBITRATORS

A. Qualifications
     Qualities: Not too zealous; Experience (industry, trained in same method, arb experience)
     Other factors:
           o Same religion, nationality, ethnicity
           o Knowledge of applicable legal rules
           o Language skills
           o Cultural background: CL and civil law divide
           o Stature in arbitration community: Ability to influence other arbs; persuasive
           o Impartial
           o Prior publications and awards: Might show bias

B. More Modern Considerations and Devices – Neutrality, Impartiality, Independence
    Oaths as safeguards of impartiality
    Independence
         o Impartiality: Subjectively indp; can look at prior arbs
         o Neutrality: Objectively indp; no connection parties (social, family, economic)
    US standard
         o Positive Software – Standard: Evident partiality
                  Facts: Arb and lawyer had rep Intel as part of several law firms (never met, each
                     time 30+ lawyers on case)
                  Held: Although there is appearance of partiality, not sufficient here; appearance
                     of partiality must be substantial (“significant compromising relationship”) with
                     reasonable impression of bias

            o   Even if there is appearance of bias: May be cured by disclosure and acceptance by other
            o   Commonwealth Coatings: Arb rendering services that were subject of dispute in arb –
                reasonable impression of bias

C. How to Get the Right Arbitrator
     Arb interviews
     Experience, skills, prior awards, writings

D. Criticism of Arbitrator Pool
     Made up of white male
            o Systematically excludes ppl from other backgrounds
            o Solution: Find ppl from other backgrounds (risk: less experience in arb)
     ICC appt process by natl committees
            o Dominated by certain special interest groups
            o Log-rolling and capture by group that run it for own benefict
            o Not transparent
     Academics vs. Commercial arbitrator: Ivory tower issue? Head in clouds?

E. Tribunal of 1 vs 3
     Adv of 1: Cheaper, hard to agree on the arb, no one to pick up slack on AT
     Adv of 3: More accurate, checking each other, more skills/expertise, more insight from
       interactions, avoid compromise verdicts

A. Rights and Responsibilities of Arbitrators
       i. Commitment Fees
     Arbs can ask for commitment fee before accepting appt; or after if parties ask for sth over and
       above what is req after accepting appt
           o Arbs can’t press for commitment fees (asking ok) (Sea Containers)
     1 party cannot pay entire commitment fee: Leads to appearance of bias
     Solution: Disclose reqs for resolving dispute at outset, so arbs can assess if they’re willing to
           o Institutions (e.g., ICC): Typically do not allow commitment fees
     Norjarl v. Hyundai (London 1990)
           o Facts: Parties wanted arbs to set aside 2 months for arb; after accepting appt, arbs
               requested commitment fee in return for 2 month; H refused to pay fee and moved to
               remove arbs
           o Issue 1: Was request for commitment fee improper?
                    Can ask for commitment fee before accepting appt (not afterwards)
                    Commitment fee: Ok if parties ask for sth over and above what is req after
                       accepting appt
           o Issue 2: Can 1 party pay entire commitment fee sought?
                    No, leads to appearance of bias

        ii. Truncated Tribunals
       Institutional solutions: Provides for what happens when tribunal is truncated (e.g., ICC Art 12)
       Does it matter if arb withdrawing is party appointed?
             o Shouldn’t breach equality, since all arbs supposed to be impartial
             o Is it fair to attach blame to party who appt him?

           o What if remaining 2 arbs unable to agree?
       Do we have to redo proceedings if arbs removed?
           o Problems of delay
           o Depends on stage of proceedings
           o With new tribunal: May have to restart proceedings to rehear evidence and allows arbs to
       Overall:
           o Parties have fundamental right to properly composed tribunal  Courts to decide
                whether withdrawal was legit
           o Withdrawing arb: Subject to discipline + damages
           o Withdrawal doesn’t permit remaining arbs to continue proceedings unless parties agree
                (if continue w/o consent of parties, violate Art 6 ECHR and state CST)
       Multinovic Case
           o Facts: Arb J disagreed with other 2 arbs to refuse request to put on more evidence; J
                resigned but ICC refused to accept resignation; other 2 arbs proceeded to award (signed
                by 2)
           o Held: This is not ok, fund right of parties to properly composed tribunal  Courts to
                decide whether withdrawal was legit
                      Withdrawing arb: Subject to discipline + damages
                      Withdrawal doesn’t permit remaining arbs to continue proceedings unless parties
                         agree (if continue w/o consent of parties, violate Art 6 ECHR and state CST)
       Malecki v. Long (Paris CoA 2005)
           o Facts: Arb resigned over concern of fees, proceeding continued
           o Held: Recognition of award denied coz arbs failed to inform parties of resignation of arb
                and parties had no opportunity to take position on resignation

B. Rights and Responsibilities of Arbitral Institutions
     ICC Art 34: Exclusion of liability in ICC Rules (for arbs and institutions)
     Cubic Defense Systems v. ICC (COA Paris, 1998)
           o Facts: US party claimed ICC shouldn’t have entertained action (reasons below), but
               tribunal went ahead with arb; US sues ICC, seeking return of admin fees and award
           o Causes of action:
                    1. ICC didn’t permit arbs to decide for themselves what should happen, instead
                        usurped arbs fcns  ICC only has admin (not judicial) fcns, so didn’t interfere
                    2. ICC allowed proceedings to be delayed  Both parties had asked for
                        extensions of time (granted); hv to show how acts of ICC were breach of contract
                        with ICC

A. Appointments and Appointing Authorities
     1. Court: Must still possess some essential coherence to trigger assistance from court
          o NIOC v. Israel: If there is link to arb, court can make appt
                  Facts: Lex arbitri not agreed on; French courts had to decide whether they could
                      help appt 2nd arb (not mentioned in agreement)
                  Held: Link to France sufficient (ICC constituted in France and ICC supposed to
                      make appt of 3rd arb)
                             Usually if there is lex arbitri: Any problems with arb agreement, go to
                               them (but here, no lex arbitri)
          o Should courts examine validity and coherence of arb agreement before helping?
                  Yes: Permits parties to then pursue judicial remedies

                       No: Role of arbs to decide if they hv JX (K-K)
                             Other courts may be willing to assist, so no point deciding this issue and
                               setting up issue estoppel and preventing other courts to decide
       2. Parties
            o Sapphire Intl v. NIOC – Arb has K-K
                     Facts: Arb clause states that if party doesn’t appt his arb, other party has right to
                       take case to Swiss court
                     Held: This is private agreement to ask judge to make appt (not real judicial
                       order), so arb should be able to question own JX (has K-K)
            o Elf v. NIOC – Court only deals with issue presented
                     Held: Court only asked to appt, so will appt, but court won’t entertain any other
                       arguments (e.g., there was no arb agreement)
       3. Appointing Authority Not Relied Upon
            o Philips HK v. Hyundai – Go to ICC before going to court (arb clause says so)
                     Facts: Arb clause states that if parties don’t agree on arbs, HKCC will appt, and
                       ICC; HKCC refused to appt, parties go to court
                     Court: Parties didn’t fulfill arb clause coz should go to ICC before going to court
                     Counterarg: HKCC appt should be based on ICC rules (1 appt authority)
                            Unusual to have 2 appt authorities
       4. Appointing Authority Ceased to Exist
            o Gatoil v. NIOC
                     Facts: Arb clause provided for court to appt arbs, but court ceased to exist; its
                       subst court had more restricted arb candidate pool
                     Held: Substitute court is fine (but what if there is significant change in court?)

B. Role of Lists of Arbitrators in Appointment Process
     Types:
            o Closed list: Limited to whoever is on list
            o Open list: More of a suggestion; parties can always go find own arbs
     Encyclopedia Universalis v. Encyclopedia Britannica (SDNY 2003)
            o Facts: Enf in SDNY; didn’t agree on 3rd arb, supposed to choose from BCC list, but BCC
                didn’t upkeep list well
            o Held: Use LCIA list instead, similar to BCC list
            o 2d Cir: Court shouldn’t have told parties what it should do, should have just ruled on
                whether BCC list was ok or not (and not give pointers on how to validly compose

C. Multiparty Arbitration and Selection of Arbitrators
    Main issue: Which parties should appt how many arbs?
    Ways to get equality of parties:
           o Allow courts or institutions to appt all 3
    Siemens v. Dutco (France SC 1992)
           o Facts: 3 companies – 1 arb designated jointly by 2 respondents, 1 arb by plaintiff
           o Held: Each party should have designated 1 arb each (this composure not ok)

A. Challenge Procedure
     Reasons for more challenges: Stricter stds; Misunderstanding of stds in some countries; Strategic
       reasons; More litigious

       Tensions of challenge procedures: Speed; Waste (don’t want to risk vacating award); Indp +
        impartiality, intl uniformity
       Forum in which challenge brought:
           o 1. Courts: No waste, slower
           o 2. Tribunal itself: Rarely want to rule against self, quick, UNCITRAL Art 13: No
                recourse to courts if challenged arb is removed
           o 3. Institution (initially)
                      a. Institution itself: May have institution decide challenge finally
                      b. Refer back to courts: Might have to waiver court supervision – permissible
                          under applicable national law?
                      c. Institution but with recourse to courts later: How much deference should court
                          pay to what institution has decided (technically, de novo)

B. Conclusiveness of Challenge Before Arbitral Institution
     ICC Art 7(4): Decisions of ICC Court as to appt, confirmation, removal and replacement of arbs
       shall be CF
     Disclosure of reasons for removal of arb?
           o Benefits of publishing removal decision (LCIA)
                     Shows public there are stds
                     Incentivize arbs to disclose
                     Deference to institution if awards are reasoned
                     Gives parties/arbs more guidelines so know how to conduct selves
           o Downside to publishing removal decision/ benefits of CF (ICC)
                     Privacy and CF of case may be compromised
                     Make challenges more litigious and tactical
                     May give rise to enforcement problems
     Refineries Case
           o Facts: Arb institution removed arb; Refineries complained about removal
           o Held: Removal was in conformity with ICC Rules; parties may vest any 3rd party with
                power of taking measures necessary for ensuring fair development of arb process until
                arbs render final award
           o Regard institutional rules as constractual and will not intervene if institutional rules had
                been complied with
           o Read as limiting principle to equality of parties: Parties don’t have right to keep
                appointee on tribunal if appointee was removed from tribunal in accordance with parties’

C. Challenging Arbitrators in Context of Challenging Award (Disclosure)
     Ways to challenge arbitrator:
           o 1. Acting as arb in unrelated case involving 1 party
           o 2. Helped party find lawyer
           o 3. Knew of potential conflict and failed to investigate further
           o 4. Served previously on numerous occasions with another arb, appointed arb
           o 5. Arb and counsel worked together in past
           o 6. Arb didn’t disclose relationship to a party
     Defenses
           o 1. No material interest of intellectual partiality
           o 2. No free standing duty to investigate (but if know of potential conflict, must investigate)
           o 3. Relationship trivial/purely professional
           o 4. Parties could have found out before award rendered and they lost

        o 5. Higher std for arb than judges; slower to interfere in arb award, coz parties chose arb
   State of Qatar Case – French Standard is “reasonable doubt in mind of parties as to indp
    and imp”
        o 3 points brought to challenge:
                 1. Helping party find lawyer: Insufficient ground to challenge arb; no material
                     interest of intellectual partiality
                 2. Acted as arb in unrelated case involving 1 party: Didn’t affect partiality
                           Factors: Efficiency, less time to get up to speed on case? Privileged
                              access: Get more info on entire case, getting info that other party can’t
                 3. Found out info on Qatari law
                           Factors: No opportunity to test reliability of sources; risk of prejudgment;
                              but parties sometimes choose arbs for their specialist knowledge
   Applied Industrial Materials Corp (2d Cir) – US Standard
        o Challenges
                 1. Arb knew of potential conflict and failed to investigate further
                 2. Arb had disclosed that he has no problematic relationships: Continuing duty to
                     disclose/investigate (or give info at time of disclosure and say he will do no more
                     to investigate)
        o Held: Standard is whether reasonable person can conclude that arb was partial to 1 party
                 Disclosure: Where arb award that nontrivial conflict of interest exists, he must
                           Failure to investigate is evidence of partiality
                           No free standing duty to investigate
   Commonwealth Coatings (US SC - plurality)
        o Black: Evident partiality std, impression of bias under Art III of CST
        o White: Substantial interest test, not holding arbs to Art III stds
                 Exceptions: If arb unaware of facts and relationships is trivial
   Marc Rich Case
        o Facts: Arbs A and N served together on 19 arb panels and in 12, N selected A
        o Held: Award ok coz relationship btw N and A purely professional
                 Appt of A was by 2 arbs, not unilaterally by N
                 Although A and N voted same way in almost all cases, most decisions were
                 Service on panel was no secret; parties could have found out before award
                     rendered and they lost
                 Higher std for arb than judges; slower to interfere in arb award, coz parties chose
   Swiss Case
        o Facts: Arbs and counsel sat as co-arbs in another case
        o Held: Parties should have known of this fact (since prior decision reported)
   AT&T Case
        o Facts: Chairman inadvertently didn’t disclose he was nonexecutive director of
            disappointed competitor of 1 of parties who had failed in bid process at issue; also had
            stock in competitor and AT&T; no allegation of actual bias
        o Issue: Was there risk of unconscious bias?  No, directorship held incidental to
            Chairman’s professional life; shareholding was sufficiently small
                 Applied “real danger of bias” test

                             PART IV: THE ARBITRATION PROCESS

A. Sources of Norms
     1. Party autonomy
     2. Institutional rules
     3. Lex arbitri: Control over party autonomy, NYC Art V(1)(e)
     4. Considerations of enforcement: Due process, public policy, mandatory laws

B. Applicable Rules
     1. Lex arbitri
     2. Institutional rules (procedure applicable to arb): ICC Rules, LCIA Rules, UNCITRAL Rules
     3. Arb rules applicable to internal conduct of arb (Union of India)
     4. Substantive law of agreement
           o Governing law of contract
           o Law governing validity
     5. Substantive law of arb agreement
           o Usually same as law governing container contract
           o Compelled by separability doctrine
     6. Choice of law rules to determine substantive law

C. Scope and Relative Importance of Lex Arbitri
     3 types of law in every arb clause: 1) Law to govern commercial bargain; 2) Law to govern arb
       agreement; 3) Law to govern procedures in any arb held under that agreement (lex arbitri)
     Union of India v. McDonnell Douglas Corp (UK 1992) – Law of Lex arb implicitly = Arb
       proceeding procedures
           o Facts: Arb clause provided that arb in accodance with procedure in Indian Arb Act; lex
              arbitri is London
           o Held: Whether arb governed by India or English laws?  Parties chose UK law as law to
              govern arb proceedings (lex arbitri), while importing from Indian Act those provisions of
              Act that are concerned with internet conduct of their arb and which aren’t inconsistent
              with English arbitral procedural law (UK courts have supervisory role)
           o Fact that governing law is Indian law doesn’t mean law governing proceedings is also
              Indian law
                    Express choice of procedural law: Parties didn’t make
                    Implicit choice: Parties agreed to place for arb, strong indication they chose laws
                        of that place to govern procedure of arb

D. Party Discretion, Discretion of Arbitrators, Due Process
     Abati v. Haupl (Italian SC 1987)
           o Procedure: Arb award in favor of H (Arb Court in Vienna); H sought enf in Italy;
               granted; A appealed; SC reversed and remanded
           o CoA: Notice period sufficient coz commercial activities can’t be unilaterally suspended
               coz 1 of 2 states had lots of vacations in August
           o SC: Italian legal notice period is 90 days and all time limits for proceedings before Italian
               courts are suspended btw Aug 1 and Sept 15  Remand to see if A’s opp to defense self
     Firm P (USA) v. Firm F (German) (COA Hamburg 1975)

            o   Facts: F, P subjected dispute to arb; P submitted letter which arb didn’t forward to F; F
                submitted letter of a Germany ministry which contradicted P’s letter, but arb didn’t take
                into consideration F’s letter; award in favor of P
            o   Held: Arb tribunal violated principle of fair hearing (award made w/o opp to F to know
                about P’s letter, and arb tribunal didn’t consider F’s etter)

E. What Belongs to Arbitration Proceedings?
    Hebei v. Polytek Engineering (HK 1998)
          o D’s arg: D didn’t give proper notice of inspection in P’s factory (attending by Chief Arb
              and 3 experts); D wasn’t present, deprived of opp to present case; bias
          o Held: Inspection at factory wasn’t “hearing,” (not occasion for either party to present its
              case); Chief Arb there to ensure propriety of conduct of experts, not to form judgment on
              state of equipment

F. Terms of Reference
     ICC Rules of Arb
           o Art 18 (Terms of Reference), must list:
                     Full names and descriptions of parties
                     Addresses
                     Summary of parties’ claims and relief sought (if possible, amounts claimed or
                     List of issues to be determined
                     Full names, addresses of arbs
                     Place of arb
                     Particulars of applicable procedural rules
           o Art 19: After ToR signed or approved by ICC, no party can make new
               claims/counterclaims which fall outside limits of ToR unless authorized by tribunal
     Purpose: Bring order to incoherent, incomplete set of initial pleadings, to allow tribunals to
       structure future proceedings
     Carte Blanche (Singapore) v. Carte Blanche Intl (SDNY 1988)
           o Facts: CBS has sought leave to amend its pleading and ToR to assert claim for $3.5mil in
               conseq damages; Chairman Piel suggested CBS can do so w/o amending pleadings or
           o Held: Ok, Arbs have power to suspend Rules of Procedure, in which only limitations on
               damages were contained

G. Language Issues
     Parties choose language; if fail to do so, arbs decide
           o Factors to look at: Language of contract, arbs, witnesses, counsel, client, evidence,
                parties, operational language
     Initial language issue: If parties don’t choose lang and arbs decide, solution doesn’t arise soon
       enough, coz there is always communication before arb tribunal is constituted
           o Institutional arb: Institution may have rules about language used
           o Language of contract (or arb agreement)
           o Language of lex arbitri
     NZ v. I (Basel, 1989) – Can’t refuse to enforce award due to early language
           o Facts: 1st invitation to participate in arb was in Romanian, then 5 days before start
                proceedings, given in understandable language
           o Issue: Can arb’s choice of lang give rise to non-enf?  No

            o   Held: Art V of NYC gives grounds for refusing to enf award; fact that invitation to arb
                was drafted in language of lex arbitri (language parties didn’t understand) is not a ground

H. Action or Inaction in Connection with Presentation of Case that Amounts to Waiver
    Minmetals v. Ferco Steel (London 1999) – Waive objection not raised in arb
           o Facts: Arbs relied on award btw B and C to make findings in case btw A and B; A didn’t
               object till enf stage
           o Held: If you didn’t raise objection in arb, then waived right to make objection (can’t hide
               objection till enf/recog stage)

A. Applicable Substantive Law to Container Contract
     Choice of law: Identifying law that will resolve a particular issue
     UNCITRAL Art 28: Parties can choose applicable law, but if don’t arbs shall apply law
       determined by conflict of law rules it considers applicable
           o Arbs can only decide as amiable compositeur if parties expressly authorized
           o Arbs can’t decide based o national law if parties expressly authorized amiable
           o Arbs shall take into account usages of trade applicable to transaction

B. Role of Lex Mercatoria
     Lex mercatoria: General principles of obligations generally applicable to intl commerce
     Norsolor (France) v. Pabalk Ticaret Sirketi (Turkey) – Relying on lex mercatoria is not
        same as amiable compositeurs
            o Facts: Arbs used lex mercatoria, used word “equity” to decide liability and damages; N
               challenged award on basis arbs violated ICC Rule 13 by acting as “amiable
               compositeurs” w/o authorization
            o Held: Arbs idn’t violate Art 13
                    Principles of good faith, “equity” are part of lex mercatoria, and arbs assessed
                       parties’ actions in light of these principles

C. Interpreting Choice of Law Rules and Role of Lex Arbitri
     Mozambique v. Netherlands (London 1992)
           o Facts: :Arb shall take place in Switzerland; law applicable known in England”
           o Variations of “law applicable known in England”
                    1. Substantive law
                    2. Procedural law
                    3. Choice of rule of conflict of laws
                    4. Choice of law to determine validity and effect of arb clause
           o Held: Phrase refers to substantive law
           o How to determine if party had agreed to substantive law? Use law of lex arbitri (other
               options: law allegedly chosen by parties, general principles of law)

D. Applicable Law in Absence of Party Choice
     Seller (Korea) v. Buyer (Jordan) (Interim Award 1990)
           o Facts: No express choice of law; Jordan Law No 35 says that these disputes can’t be arb;
               so if find that Jordan subst law applies, this case can’t go to arb
           o Held: Look at conflict of law rules in all JX closely connected to contract (Korea, Jordan,
               Iraq): All either point to law of seller or law where contract was signed to be subst law

E. Mandatory Law
    Should arbs consider mandatory law? (E.g., parties choose law to apply, but contract involves
      some other law, and that other law says parties can’t contract out of it – what should arb do?)
    Why should arb ignore mandatory law?
          o Arb’s authority comes from will of parties
    Why should arb consider mandatory law?
          o Duty of arb to render enforceable award
          o Depends on where you want to enforce award
    Principal (Italy) v. Distributor (Belgium) – Arb ignored mandatory law
          o Facts: Agreement provided for ICC arb; Italian governing law; Belgian mandatory law
          o Held: Arb disregarded Belgian mandatory law provision and applied Italian law
                   Common intention of party to intl contract can’t be disregarded

A. Discovery
     28 USC 1782: “District court of district in which person resides or is found may order him to give
       his testimony or produce docs etc for use in proceeding in a foreign or intl tribunal”
     Pre-Intel: Arb tribunal NOT “foreign or intl tribunal” under §1782
            o NBC v. Bear Stearns (2d Cir 1999)
                     Reasoning: Language unclear; LH intended to cover govt/intergotv arb tribunals
                         only; policy: Arb useful coz of efficiency + low cost, at odds w/ broad discovery
            o Technostroyexport: Arb tribunal IS “foreign or intl tribunal” under §1782, but didn’t
                grant discovery here, coz party didn’t make effort to obtain ruling from arbs, instead went
                directly to court
     Intel
     Post-Intel: Arb tribunal IS foreign or intl tribunal
            o In re Roz Trading (ND Georgia, 2006)
                     3 factors from Intel (SC) applies here to show arb tribunal falls under §1782:
                              1. Intel extended 1782 to DG of Competition which is not private
                                  tribunal, and has adj authority under public law
                              2. Dictim in Intel: Term tribunal includes arb tribunal
                              3. SC characterized DG as “first-instance decisionmaker” constituted to
                                  hear disputes, weigh evidence, issue rulings” and whose rulings are
                                  reviewable and enforceable by courts
                     Parties don’t hv to go to arb tribunal to ask for 1782, can go directly to courts
            o In re Oxus Gold (DNJ)
                     Held: Arb conducted by UNCITRAL (body operating under UN), so not created
                         exclusively by private parties and is a “tribunal” within meaning of 1782
     Problems with 1782:
            o Divergence btw domestic and intl arbs (should amend FAA to prevent disconnect)
            o Giving parties power traditionally reserved for arbs
                     Might be denial of DP
                     Hard to carve out categories before know what evidence is
                     Can craft specific doc requests if know that docs exist from another source
                     Parties to intl arb might be entitled to broader discovery than parties to domestic
            o Parties in intl arb can use any district court; parties in domestic arb can only use TC
                where arb proceeding pending – forum shopping, multiple proceedings seeking discovery
            o Potential to undermine parties’ contracting provisions

                      Allowing parties recourse to courts circumvents parties’ expectations in agreing
                       to arb
            o   At odds with judicial assistance rendered by foreign countries – No “exhaustion” req

B. Experts
     Paklito Investment v. Klockner East Asia (HK 1993)
           o Facts: Cargo of steel underweight; P brought claims against D seller; CIETAC notified
              Ds it would appoint own experts; D refused to accept appt of these experts since 1.5yrs
              elapsed since steel delivered, and stated they wouldn’t accepte results of any
              investigation; experts found steel defective; D wanted to submit reply, but CIETAC
              rendered award in P’s favor and didn’t respond to further requests by D to submit more
              evidence or have hearing
           o Held: Serious procedural irregulatiry here; tribunal relied on reports and D didn’t have
              chance to confront them

C. Evidence – IBA Rules on Takig Evidence
Art 2: Consultation on evidentiary issues may iaddress, scope, timing and manner of taking of evidence
including: Prep and submission of Witness Statements and Expert Reports; oral testimony; production of
Docs; level of CF

Art 3 (Docs): Each party shall submit to Arb Tribunal and Other Parties all Docs available to it on which
it relies
      Any Party may submit to AT and to Other Parties a Request to Product
      Request to Produce shall contain: Description of requested Doc; desciption in detail of specific
          requested category of Docs; statement of how Docs requested are relevant to case; statement that
          Docs requested are not already in possession of requesting Party and why it is not unreasonably
          burdensome for Party to produce
      Within time period stated by AT: Other Party shall produce the doc
      If have objection to Request to Produce, shall state objection in writing to AT and other Parties w/
      Parties can request AT To rule on objection
      Exceptional circumstances: If there is CF issue and AT shouldn’t look at doc, AT can appt expert
          to look at doc and report on objection
      Any doc submitted shall be kept CF by AT and All Parties
      Involuntary witness: Party can ask AT to try to obtain testmimony

Art 4 (Witnesses of Fact): Within time ordered by AT, each Party shall ID witnesses on whose testimony
it plans to rely
      Witness Statement contains: Name+address of witness background, training, experience; full
         description of facts; statement as to language Witness Statement was originally in; affirmation of
         truth; signature of witness
      Parties can submit additional Witness Statements (or revised one) within AT’s given timeframe,
         provided it only responds to matters in another Party’s Witness Statements, Expert Reports, or
         other submission

Art 5 (Party Appointed Experts): Within time ordered by AT, each Party shall ID such an expert and
submit Expert Report
     Expert Report contains: Name+address, expertise; expert’s instructions; statement of indp from
        Parties; statement of facts he is basing opinion on; expert opinion; affirmation; signature

       Each Party can submit revised/add’t Expert Reports so long as these revisions/additions respond
        only to matters contained in another Party’s Witness’ Statements, Expert Reports, other

Art 6 (Tribunal Appointed Experts): At can appt experts to report to it on specific issues
     Before accepting appt, Expert shall submit to AT and Parties qualifications, indp,
     Parties shall tell AT whether they have objections to Expert (can only object after appt if new info
        comes to light)
     Expert can request Party to provide him with access to Docs, machinery, systems processes etc
     Parties and reps have right to attend any inspection
     Disagreement btw Party and Expert shall be decided by AT
     Expert Report: Same as above
     Party can respond to Expert Report
     Shall be present at Hearing, AT may question Tribunbal-Appointed Expert

Art 7 (Inspection): AT may inspect/req inspection of any site, property, Docs

Art 8 (Evidentiary Hearing)
     Oral testimony: Claimant present witnesses first
     Direct exam  Any other Party can question witness  Re-direct

Art 9 (Admissibility and Assessment of Evidence)
     AT shall exclude from evidence due to:
           o A. Lack of sufficient relevance to case
           o B. Legal impediment or privilege
           o C. Unreasonable burden to produce
           o D. Loss or destruction of Docs likely to have occurred
           o E. Grounds for CF is compelling
           o F. Special political or institutional sensitivity
           o G. Considerations of procedural economy
     Can make arranagements to permit evidence subject to CF protection
     If Party fails to produce evidence w/o good reason, can infer that doc is adverse to party

A. Confidentiality of Arbitration Proceedings and of Award
     CF obligations subject to certain exceptions: 1) compulsion of law; 2) where interests of party
       require it; 3) for purpose of legal proceedings related to arb; 4) protect legal right
     Default: No CF flows from arb agreement (but parties can agree otherwise) though hearings are
       private (Esso v. Plowman, Bulgarian Foreign Trade Bank v. AI Trade Finance)
           o Cf: Testimony used in 1st arb proceedings can’t be used in 2nd arb proceedings coz there
                is implied duty of CF (Ali Shipping, LCIA Rules)
     Law governing CF: Lex arbitri (or if parties agreed to another law to govern)
     CF vs. Privacy (right of access to proceedings = none)
     Pros and Cons of CF
           o Pro: Others won’t want to arb; hide causes of action from other claimants; keep info from
                markets (protect securities)
           o Con: Transparency, development of practice, precedents, warn ppl of dangerous products

B. Confidentiality of Court Decisions Relating to An Arbitration Award

       Such court decisions are CF, and parties don’t need to show that if info was made public it would
        be detrimental, otherwise undermines whole arb system of CF (Dept of Economic Policy of
        Moscow v. Bankers Trust)

   Form of award: UNCITRAL:
          o 1. Award made in writing, signed by arb or arbs; signature of majority members of arb
            tribunal enough
          o 2. State reasons upon which award is based
          o 3. State date and place of arb; award shall be deemed to have been made at that place
   Types of awards
          o Final award: Settles all claims on merits
          o Partial award: Settle some claims on merits
          o Interim award: Settle claim on merit but not effiectively enf (e.g., decide liability, but not
          o Interlocutory award: Settle procedural claims

A. Reasoned Award
     Pros and Cons of reasoned award
           o Pros: AT discipline, right result, tell parties what to do in future, enables scrutiny and
                review, review before enf JX
           o Cons: Speed, cost, don’t want “bad” report out there, lets AT split baby and do rough
                justice, better for party with weaker case
     If award insufficiently reasoned, should it be challenged? Probably won’t change result, but
       useful to have reasons; also might get new AT
     Govt of Guinea v. MINE
           o Held: Reasoned award must enable reader to follow reasoning of AT on points of law and
                fact; adequacy is not ground to challenge award
     Bay Hotel v. Cavalier Construction
           o Facts: Award was conclusory in nature
           o Held: AT sided with expert who side that under AAA rules this is “reasoned”

B. Award Written by Someone Else
     Delegation: Can’t delegate decisionmaking; but can appoint expert/clerk to help but arb still must
      exercise some indp judgment
     Sacheri v. Robotto (Italy 1989) – Can’t delegate legal reasoning to someone else
          o Facts: Arbs who weren’t legally trained delegated a lawyer to draw up award
          o Issue: Whether Italian procedural law allows arbs to delegate expert to decide legal issues
              essential to decisionmaking process
          o Held: Can’t delegate to 3rd person to assess legal issues; appt of arb is personal and duties
              (decisionmaking) can’t be delegated

C. Intervention After Award Issued
     Institutional scrutiny:
           o ICC Art 27: Before signing award, arb tribunal shall submit draft to ICC; ICC may lay
               down modifications to form of award, and also may draw tribunal’s attention to points of
     Correction, interpretation and additional award  Can only correct if: Clerical error
           o Dempsey Pipe v. T Metals

                       Facts: Arb tried to portray everything as clerical error, but it was more
                        reinterpretation of previous calculations  Not clerical error
                       Not clerical mistake if you intended to write what you wrote at the time

D. Deposit, Authentication, Certification
     Deposit: Some countries require party to deposit award with court at place of arb
            o Trend is to abandon depositing award (Art 31 UNCITRAL dropped req)
     Authentication: Formality by which signature thereon is attested to be genuine
     Certification: Copy is attested to be true copy of original
     Art IV of NYC: Formal req for demand of recog/enfo: Application has to supply “the duly
       authenticated original award, or a duly certified copy”
     How flexible are courts in recognizing docs that haven’t been authenticated/certified?
            o Award not authenticated by all arbs so Italian court refused to enforce (Shuurmans)
            o Award not authenticated, but Swiss court still enforced coz was just technicality (R v. A)

                                     PART V: ENFORCEMENT

A. Confirmation by Courts of Seat of Arbitration
       i. Consequences of Confirmation
     Confirmation in lex arbitri: Get arb award + court judgment (instead of just arb award)  Both
       arb award + court judgment are separate causes of action to enforce award
           o NYC: Confirmation is not required (Oriental Commercial Case)
           o COSID v. Steel Authority (India 1985): Held, even though court gave judgment, both
               original award still enforceable (can choose which to enf)
           o Seetransport Viking v. Navimpex (2d Cir 1994)
     If court refuses to enforce award/judgment, can’t ask them to enforce the other – no 2nd bite of
       apple (Frateli Dmiano v. August Topfer, Italy 1991)

        ii. Preclusive Effects
       Preclusive effects: Moment award rendered, can’t relitigate in another AT or national courts
       Even partial awards have preclusive effects (Mexican Construction Case)

B. Parallel Proceedings
     Arbs do diff things:
            o Stay arb (Pepsico)
            o Continue both arb and court (Sumitomo v. Parakopi); even if have same issue before
                court and arb, doesn’t divest arb of power to decide issue (Renusagar Power v. GE);
                unless there are “serious reasons” to stay arb (Formanto)
     Reasons to go to national court instead of arb
            o Arbitrability
            o Injunctive relief
            o Hv parties who aren’t parties to arb agreement

   2 JX:
          o Setting aside JX: Lex arbitri (primary JX) – NYC doesn’t apply, unless state chooses to
            make it apply (e.g., thru UNCITRAL Art 34); look at domestic grounds
          o Enf JX (secondary JX) – NYC Art V applies
   UNCITRAL Art 34: Grounds for setting aside

           o    1. Incapacity or agreement invalid under law to which parties hv subjected it or under law
                of this state
           o 2. Not given proper notice of appt of arb or arb proceedings or otherwise unable to
                present case
           o 3. Award beyond scope of dispute
           o 4. Composition of AT/procedure not in accordance with agreement, unless such
                agreement conflicted with NYC
           o 5. Subject not arbitrable
           o 6. Award in conflict with public policy of this state
      Tendency: For UNCITRAL/NYC setting aside grounds to apply to domestic setting aside stds as
       they relate to intl awards rendered in that JX
           o Definition of intl award: Varies in each JX
      After award set aside, can restart arb

A. Domestic and Foreign Awards
     NYC Art I(1): Award is foreign if 1) award made in territory of State other than State where
      recog/enf of such award sought, or 2) award is not considered as domestic award in State where
      recog/enf sought
     Domestic or foreign
          o Domestic = Setting aside court = Can look at Art V + own domestic grounds for setting
              aside (more leeway to set aside) (e.g., FAA §10 in US)
          o Foreign = Enf/recog court = Must ONLY look at Art V grounds for not enf
     Only lex arbitri (law of procedural arb) can set aside award (Intl Std Electric Corp. v. Bridas;
      Croatian Company v. Swiss Company)
     Exception: India (each time have Indian party, need to opt out of Indian JX to be clear)
          o Reference to Indian Arb Act gives Indian courts JX to set aside (award becomes domestic
              Indian award) (ONGC v. Western Co.)
          o Subjecting contract to Indian substantive law gives Indian courts JX to set aside (award
              becomes domestic Indian award) (Natl Thermal Power v. Singer Co)
          o Anything that mentions India (e.g., Indian Companies Act) can give Indian courts JX
              (Venture Global where LCIA arb in London, Michigan law applies to contract, and
              comply with Indian Companies Act)

C. Grounds for Setting Aside
     FAA §10 (applies in US): Std is very very high (hard to set aside) – Spector v. Torenberg
          o 1. Award procured by corruption, fraud, undue means
          o 2. Evident partiality or corruption of arbs
          o 3. Arbs guilty of misconduct in refusing to postpone hearing, or in refusing to hear
              evidence pertinent and material to controversy; or other misbehavior by which rights of
              any party prejudiced
          o 4. Arbs exceeded their powers, or so imperfectly executed them that a mutual, final,
              definite award on subject matter subjected not made
          o 5. When award is vacated, and time within which agreement req award to be made has
              not expired court may, direct a rehearing by arbs

A. Awards Subject to NYC
     2 types: (Art I(1))
          o 1. Awards made in territory of state other than state where R/E of such awards sought

            o  2. Awards not considered domestic awards in state where their R/E are sought (i.e. even
               those rendered in your JX can still be considered foreign)
                    In US: Generally award made in US is an intl award (unless there are really
                       ZERO ties to the US) (Bergesen v. Muller – Agreement entirely btw US parties
                       = domestic, unless relationship involves any foreign aspect)
       Awards not subject to NYC
          o Awards producing only obligatory effects (Decision of 8 Oct 1981)
          o Partial awards
                    Puerto Rico Maritime v. Star Lines: Award must be final (e.g., can’t just deal
                       with liability, and not damages)
                    WTB v. CREI: If 2 partial awards joint together to become full award, need to
                       submit both awards to get enf

B. Arguments to Resist Enforcement – Usually Won’t Work (Parsons v. Soc. Gen), track Art V
     1. Public policy: Only where enf would violate forum’s most basic notions of morality and justice
     2. Nonarbitrability: Mere fact that issue of natl interest may figure into contract not enough
     3. Inadequate opp to present defense
     4. Arb exceeded JX: Court won’t 2nd guess arb’s interpretation of agreement
     5. Manifest disregard: Refused to review award

C. Procedural Grounds Under NYC for Refusing R/E
     Art V(1): Procedural grounds to refuse R/E (permissive, not mandatory to refuse R/E)
          o 1. Validity of agreement and standard of review (American Construction Machinery v.
               Mechanized Construction)
          o 2. Notice of appt of arb and waivability (Danish Buyer v. German Seller: German
               wasn’t given name of arbs, court won’t enf)
          o 3. Outside scope of parties’ submission to arb (Management & Tech Consultants v.
               Parsons-Jurden: Arb clause says “any dispute referred to arb: so very broad)
          o 4. Improper composition of AT or procedure (China Nanhai Oil v. Gee Tai Holdings)
          o 5. Award not yet binding on parties, or has been set aside, or suspended by judicial
               authority of country that made award (see below Art V(1)(e))
     Differs from Art V(2) grounds:
          o 1. Subject matter not arbitrable in enforcing JX
          o 2. R/E would be contrary to public policy of enforcing JX

   Art V(1)(e): “Award not yet becoming binding on parties, or has been set aside or suspended by a
     competent authority of country in which, or under law of which, that award was made”
          o Setting aside only constitutes grounds for refusal of enforce if took place in state which,
            or under law which award was made (Company A v. Company B)
   French standard – doesn’t consider standard used in setting aside JX at all
          o 1. Absence or invalidity or arb agreement
          o 2. Irregularities in appt of arbs
          o 3. Arbs exceeded authority conferred upon them
          o 4. Violation of DP
          o 5. Violation of intl public policy
   US standard
          o Termorio v. Electranta: Court refuses to enforce award after it has been set aside in lex
            arbitri (public policey has to be repugnant to what is decent/just in enf state; also this is

                very Colombian dispute, no reason to apply US public policy if all parties are
            o   Chromalloy Aeroservices v. Egypt: US is very pro-arb; just coz lex arbitri sets aside
                award doesn’t mean US has to follow

   Anti-suit injunction: Prevent other party from pursuing legal proceedings
   Anti-anti-suit injunction: Prevent other party from bringing anti-suit injunction
   Karaha Bodas v. Perusahaan – High std to get anti-suit injunction
          o Std for getting ASI: Show that foreign litigation is vexatious or pressive and result in
            inequitable hardship and frustrate speedy justice and result in duplicitious litigation in US
          o Std for getting ASI for contractual breach: Much lower std (easier to get; e.g., if arb
            clause agreed to arb in X, then courts likely to issue ASI to say can’t arb elsewhere

A. Standard of Review - Jurisdiction
     Courts may review JX on legal basis freely, but on facts it may do so only if there was some due
       process issue  When looking at JX at R/E/setting aside stage, courts may apply higher level of
       scrutiny (Transport En Handelsmaatshappij v. Maran Coal)
     French standard of review
           o Arb not commenced: Can challenge JX of arb (but court will only stop arb if agreement is
               manifestly null)
           o Arb commenced Court won’t entertain JX challenge to arb
           o R/E/Setting aside: De novo std
     E.g., Arab Republic v. Southern Pacific Properties
           o Fact: Minister of Tourism signed agreement, ICC held this sufficient to bind Egypt
           o Held: Minister only gave approval in his capacity as head of a branch; Egypt wasn’t party
               to any arb agreements (de novo std)

B. Standard of Review – Merits
     Standard of review of arb award is very narrow: Can’t 2nd guess arb’s construction of parties’
           o Fertilizer Corp of India v. IDI: Even though contract expressly excluded CQ damages
               and arbs rendered CQ damages; held that arbs didn’t exceed authority coz they had
               “colorable justification”

C. Manifest Disregard of the Law
      i. US Court as Enforcing Court (NYC Applies)
    Foreign arb awards only vulnerable to attack on grounds listed in Art V of NYC; manifest
      disregard must therefore rise to level of public policy within Art V context for it to attack award
           o Brandeis Intsel v. Calabrian Chemicals: Example where didn’t rise to public policy

        ii. US Court as Court of Lex Arbitri (Domestic Law Applies)
       Manifest disregard may refer to FAA §10 grounds collectively, rather than adding to them (or
        could be shorthand for §10(a)(3) or (a)(4)
             o Definition: Arb is award of applicable law but deliberately doesn’t apply it

D. Review Under Art V(2)(b) – Public Policy
     Violation of forum state’s most basic notions of morality and justice (Parsons)

E. Estoppel
     Even if Art V ground for refusing to enforce applies; estoppel can override
     China Nanhai Oil v. Gee Tai
            o Facts: Award challenged on basis that AT improperly constituted
            o Held: Party resisting enf estopped from raising this issue at enf proceeding coz failed to
              raise earlier – so even though ground for refusing enforce applies, court still enforces

F. Judicial Review by Contract
     Parties cannot agree to avoid judicial review (Kyocera II)
     Parties cannot agree to expanded scope of judicial review above what is permitted under FAA
        (Hall Street)