International commercial arbitration is the process of resolving business disputes between or among transnational parties through the use of one or more arbitrators rather than through the courts. It requires the agreement of the parties, which is usually given via an arbitration clause that is inserted into the contract or business agreement. The decision is usually binding. This chapter will present the major international arbitral institutions and the resources found on their Web sites. It will also review commercial and private databases that provide primary and secondary sources of arbitration information. Any omissions or errors are solely the responsibility of the author.
II. Overview
As the number of international commercial disputes mushrooms, so too does the use of arbitration to resolve them. The non-judicial nature of arbitration makes it both attractive and effective for several reasons. There may be distrust of a foreign legal system on the part of one or more of the parties involved in the dispute. In addition, litigation in a foreign court can be time-consuming, complicated, and expensive. Further, a decision rendered in a foreign court is potentially unenforceable. On the other hand, arbitral awards have a great degree of international recognition. For example, more than 140 countries have agreed to abide by the terms of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (http://www.jus.uio.no/lm/un.arbitration.recognition.and.enforcement.convention.new.york.1958/), known as the New York Convention.
Another reason for choosing arbitration is that the process is administered by a panel of arbitrators who are agreed upon by both parties. These arbitrators may have specialized competence in the relevant field. Arbitral awards are usually final and binding, which avoids a drawn-out appeals process. In addition, the confidentiality of the arbitration process may appeal to those who do not wish the terms of a settlement to be known. This is the biggest obstacle to researching international commercial arbitration: as its popularity grows, so does its interest to outside parties. However, because many awards are not made public, it can be frustrating to search for information.
There are essentially two kinds of arbitration, ad hoc and institutional. An institutional arbitration is one that is entrusted to one of the major arbitration institutions to handle, while an ad hoc one is conducted independently without such an organization and according to the rules specified by the parties and their attorneys. On its face, ad hoc arbitration may seem to be less expensive and more flexible. However, institutional arbitration provides an independent, neutral set of rules that already exist, and it requires that an institution provide services that are critical to ensuring that the arbitration proceeds smoothly. For example, the International Court of Arbitration (ICA) (http://www.iccwbo.org/court/arbitration/id4400/index.html) decides on the number of arbitrators and their fees, appoints the arbitrators, ensures that the arbitration is being conducted according to International Chamber of Commerce Rules, determines the place of arbitration, sets time limits, and reviews arbitral awards. In addition, an arbitral body will ensure controlled costs, since it will have a pre-determined framework of charges.
Many international agreements, treaties, and conventions facilitate the use of arbitration as a method for resolving disputes. Other agreements address the enforcement of awards. There has been a tremendous increase in arbitration options in the last 50 years. Previously, there were a few countries with well-developed arbitration practices and sympathetic national laws. Interference with arbitration by the courts was a well-founded fear in many countries. Conversely, the necessary actions on the part of the national legal system in compelling witnesses and enforcing judgments were not always available.
One reason for the growth of arbitration is that there are now many arbitral bodies, and parties can select one that is best suited to their needs. Some organizations welcome any type of dispute. In contrast, there are organizations that specialize in particular types of disputes, such as those involving investments or that focus on a particular topic, such as intellectual property. Some arbitral bodies specialize in disputes in particular industries. An example is the American Arbitration Association (AAA) ((http://www.adr.org), which has different sets of special rules governing disputes in different subjects. Another factor in selecting an institution is the nature of the party; one institution may be open only to states or member governments, while another may be available to any entity or individual. The fact that awards are issued by a number of institutions can complicate research.
An arbitral body sets forth a set of arbitration rules that governs the potential arbitration. It may also issue a model arbitration clause that can be incorporated into the contract or business agreement when the transaction is made. Arbitration rules and model clauses are often found on the organization's Web site.
III. International Agreements, Conventions, and Treaties
There are different arbitration treaties and conventions to which a party or nation may adhere. An important development in the spread of international arbitration was the adoption in 1976 of arbitration rules (http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1976Arbitration_rules.html) by the United Nations Commission on International Trade Law. UNCITRAL was established by a resolution of the UN General Assembly in 1966 to promote harmony and unity in international trade. While it does not administer arbitration disputes, its arbitration rules may be used by any public or private entity wishing to arbitrate without the use of an international arbitral institution. In addition, UNCITRAL in 1985 issued a Model Law on International Commercial Arbitration (http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html) that has influenced the national arbitration legislation of more than 50 countries.[FN1] At least six states in the US have based their arbitration laws on the model law (California, Connecticut, Illinois, Louisiana, Oregon and Texas).
The UNCITRAL Web site also has a link to selected arbitration case abstracts. This database is called Case Law - CLOUT (http://www.uncitral.org/uncitral/en/case_law.html). CLOUT stands for Case Law on UNCITRAL Texts; it is intended to be a collection and distribution mechanism for information on court decisions and arbitral awards "relating to the Conventions and Model Laws that emanated from the work of the Commission" in order to promote awareness of the texts and to "facilitate uniform interpretation and application". It covers the UNCITRAL Model Law on International Commercial Arbitration, plus other UNCITRAL model laws and conventions. CLOUT has selected abstracts of decisions and awards from the courts of countries that have enacted legislation based on the Model Law. They are published irregularly and the coverage of arbitral awards is sketchy. The full texts are stored with the Secretariat in the original language and are available upon request and for a fee. The cases are indexed by CLOUT case number, Model Arbitration Law article number, keyword, jurisdiction and date. There is a User's Guide on the CLOUT screen that explains what is covered and how to retrieve documents
Other international agreements relevant to international arbitration concern enforcement of arbitral awards and decisions. There are several mechanisms by which foreign arbitration awards may be enforced. Countries may agree bilaterally to enforce arbitral awards, sometimes through a treaty of friendship, commerce, and navigation or through a bilateral investment treaty (BIT), of which there are now an estimated 2000. Or a multilateral agreement may be implemented. One such is the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html), which limits the grounds upon which arbitral awards may be attacked.[FN2] Over 130 nations have agreed to abide by its terms. There is also a current list of signatories (http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html). Most arbitration attorneys limit the universe of appropriate arbitration venues to those states that are a party to the New York Convention.
Also on the ICSID web site are cases (http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ShowHome&pageName=Cases_Home), that is, reports of conciliation commissions or awards rendered by arbitral tribunals in ICSID proceedings.
Finally, you can find investment dispute rules on the site (http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ShowHome&pageName=Rules_Home).
The Bilateral Investment Treaties (http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewBilateral&reqFrom=Main) page on the ICSID Web site provides the names of parties to bilateral investment treaties and a chronological list. The list covers treaties collected by ICSID to date. However, since ICSID relies on governments to send treaty information, the list may not be complete. The information is organized alphabetically by signatory, and may be further searched by selecting two specific States or the year of signature. What is missing are the actual texts of the treaties, which the researcher usually also needs.
The United Nations Conference on Trade and Development (UNCTAD) (http://www.unctad.org/Templates/StartPage.asp?intItemID=2068) has compiled a list of countries and territories (http://www.unctad.org/Templates/Page.asp?intItemID=2344&lang=1)that have concluded BITs up to 1 June 2006. There are also some interesting statistics on the numbers of BITs per region and country. UNCTAD has done more than just compile a list of treaties, however. It has put the full text of all available treaties on its Web site and has made them searchable by country via a link to a search page. (http://www.unctadxi.or____779.aspxg/templates/DocSearch) [It is important to note that a copy of a treaty may not be made available to publishers by the signatories.]
The full text of some BITs may also be found by searching the Internet or commercial sources such as International Legal Materials. In addition, the Web sites of individual countries may include the texts of these treaties. For example, United States bilateral investment treaties are available on the Internet, along with other trade-related agreements, from the US Department of Commerce's Trade Compliance Center (http://tcc.export.gov ).[FN3] In addition, a copy of the 2004 US Model BIT is also reproduced (http://www.ustr.gov/assets/Trade_Sectors/Investment/Model_BIT/asset_upload_file847_6897.pdf).
The International Institute for Sustainable Development (IISD) (http://www.iisd.org/) publishes a free electronic news service that is available on the Internet and by e-mail called Investment Treaty News (http://www.iisd.org/investment/itn/). It reports developments in the negotiations of new investment treaties and on arbitrations that have been brought under existing treaties.
The dispute resolution procedures of the International Chamber of Commerce specifically target international business disputes. ICC arbitrations are confidential and offer the parties the choice of arbitrators, place of arbitration, rules of law, and language of the proceeding. The ICC has several dispute resolution mechanisms. The main ICC Rules of Arbitration (http://www.iccwbo.org/court/arbitration/id4199/index.html) are available in PDF and HTML formats in 13 languages. English and French are the official languages.
Model or Suggested Clauses (http://www.iccwbo.org/court/arbitration/id4114/index.html) for each of the ICC's dispute resolution procedures can be used in contracts and business agreements. The ICC Model Arbitration Clause is available on the Web site in over 35 languages.
The International Court of Arbitration was established in 1923 as the arbitration body of the ICC. Composed of members from 80 countries, it has administered over 13,000 arbitration cases involving parties and arbitrators from more than 170 countries and territories. The ICA oversees the arbitration process and regularly reviews the progress of pending cases. One of the Court's most important functions is to scrutinize and approve all arbitral awards.
The ICA Awards page (http://www.iccwbo.org/court/arbitration/id4096/index.html) lists print sources for redacted extracts of ICC arbitral awards. These are available by subscription. To find out where an award has been published, you can enter the case number in a search box on the Awards page. The ICC International Court of Arbitration Bulletin, (http://www.iccbooks.com/Home/Bulletincategory.aspx) published since 1990, contains previously unpublished extracts from ICC awards with commentaries as well as articles. It is available for subscription. The tables of contents of back issues (http://www.iccbooks.com/Home/BulletinBackIssues.aspx) may be viewed online for free. Also, to find out where an award has been published, you can enter the case number in a search box on the Awards page.
Located in The Hague, the Permanent Court of Arbitration "administers arbitration, conciliation, and fact finding in disputes involving various combinations of states, private parties, and intergovernmental organizations." It was established in 1899 by the Convention for the Pacific Settlement of International Disputes, (http://library2.lawschool.cornell.edu/pca/1899english.htm). The 1899 Convention was revised at the second Hague Peace Conference in 1907 (http://www1.umn.edu/humanrts/instree/hague1-1910.html). The Permanent Court of Arbitration was formed to handle arbitrations exclusively involving states, but since 1992 it has broadened its mandate to include disputes involving states and private parties, as well as disputes involving international organizations. Over one hundred states are parties to one or both of the Conventions. A complete list of Contracting States and Accession Information (http://www.pca-cpa.org/showpage.asp?pag_id=1038) can be found on the Web site.
The site's "Basic Documents" (http://www.pca-cpa.org/showpage.asp?pag_id=1067) page includes links to the conventions, rules, and model clauses, among other items. Its modern rules of procedure are based on the UNCITRAL Arbitration Rules. Different rules may be used depending on the nature of the parties or the nature of the dispute. This reflects the accessibility of the PCA. There are various Optional Rules of Procedure for arbitrating disputes between two states; for disputes between two parties of which only one is a State; for disputes relating to natural resources and the environment; for disputes involving international organizations and states; and for disputes between international organizations and private parties.
Also on the "Basic Documents" page is a link to the PCA's Model Clauses for arbitrating different types of disputes.
Free online access to case and award information is limited. As of this writing, there are less than 3 dozen summaries of Recent and Pending Cases (http://www.pca-cpa.org/showpage.asp?pag_id=1029). However, the PCA, in cooperation with the Hague Justice Portal (http://www.haguejusticeportal.net/ecache/def/5/251.html) is gradually making its historic arbitral awards and related documents available electronically.
Print and online materials are available for purchase or subscription from Kluwer Law International (http://www.kluwerlaw.com). [See the entry below on Kluwer Arbitration Online.] I
International Council for Commercial Arbitration (ICCA) (http://www.arbitration-icca.org/index.htm) houses its editorial staff on PCA premises. The ICCA produces some of the arbitral publications (http://www.arbitration-icca.org/Publications.htm) that are published by Kluwer Law. The ICCA is devoted to promoting international arbitration and other forms of dispute resolution. It holds conferences and congresses for the presentation of papers and the discussion of topics related to international dispute resolution. It publishes, with the help of the PCA, the "International Handbook on Commercial Arbitration" and the ICCA Congress Series. It also participates in the preparation of the UNCITRAL Arbitration Rules, Model Arbitration Law and other documents. It is governed by a council of members from 31 countries.
Established in 1892, the London Court of International Arbitration is one of the oldest and most wide-ranging of the arbitral institutions. Although based in London, it administers arbitrations worldwide, for all parties, and for disputes arising under all types of commercial transactions. It also acts as the appointing authority and administrator in UNCITRAL Rules cases. While the LCIA maintains a set of arbitrators, parties are free to nominate their own arbitrators.
The LCIA Arbitration Rules (http://www.lcia-arbitration.com) are available in 9 languages and can be found by clicking on "Arbitration" on the home page. They are intended for use in the widest range of commercial disputes, both domestic and international and under any system of law and are designed to promote flexibility, efficiency, and cost control. The LCIA also provides recommended arbitration clauses for inclusion in contracts; click on Arbitration on the home page, then on the link under "Clauses."
The LCIA Arbitration Court was created in 1985 and is the final authority for the proper application of the LCIA Rules. Its principal functions are the appointment of tribunals, the determination of challenges to arbitrators, and the control of costs. It is made up of up to 35 members, with membership from the UK restricted to 25%. Click on LCIA on the home page, then on "LCIA Court" on the sidebar for links to different parts of the web site.
Awards are not published. However, in May 2006, the LCIA Court and Board voted to publish the Court's decisions on challenges to arbitrators. Publication will be in the form of abstracts and all challenges will be published. It has not yet been decided whether they will be published in paper or on the web site or both.
Based in Geneva, the WIPO Arbitration and Mediation Center was established in 1994 to offer alternative dispute resolution options for private parties involved in international commercial disputes. Entertainment, technology, and other types of intellectual property disputes are particularly suitable for WIPO arbitration, but all types of international commercial disputes may be brought before the Center. The procedures are open to any person or entity, regardless of nationality or domicile. They may be held anywhere in the world, in any language, and under any law chosen by the parties, and they are confidential.
The Center's Web page is textual, extremely easy to use, and has well-placed FAQs with simple but thorough explanations of how the Center operates and what kinds of disputes are arbitrated. The basic arbitration documents include:
Arbitration Rules (http://arbiter.wipo.int/arbitration/rules/index.html) Available in English, French, German and Spanish.
Expedited Arbitration Rules (http://arbiter.wipo.int/arbitration/expedited-rules/index.html) Available in English, Spanish, and French.
Since the WIPO Arbitration and Mediation Center is so new, there have not yet been many requests for mediation or arbitration. For example, as of this writing there have been only about 100 requests for arbitration, and most were filed after 2002. The Web site gives an overview (http://arbiter.wipo.int/center/caseload.html) of the cases and links to summaries (http://arbiter.wipo.int/arbitration/case-example.html) of selected examples, but no parties are named.
Created in 1966 to facilitate the settlement of investment disputes between member governments and foreign members who are nationals of other member governments, ICSID is an autonomous organization with close ties to the World Bank. It was established under the Convention on the Settlement of International Disputes Between States and Nationals of Other States. (http://icsid.worldbank.org/ICSID/ICSID/RulesMain.jsp). The Convention and other basic documents appear on the Web site in English, Spanish, and French. As of March 25, 2008, 155 countries (http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDDocRH&actionVal=ContractingStates&ReqFrom=Main) had signed the Convention .
All ICSID members are also members of the World Bank, and the expenses of the ICSID Secretariat are funded by the Bank. Dispute costs are borne by the parties involved. Application to the ICSID for arbitration is voluntary, but once the process starts, the parties cannot withdraw. In addition, all member ICSID states are required to recognize and enforce an ICSID arbitral award even if they are not parties to the dispute.
ICSID has issued Rules of Procedure for Arbitration Proceedings (http://icsid.worldbank.org/ICSID/ICSID/RulesMain.jsp). A set of Additional Facility Rules (http://icsid.worldbank.org/ICSID/ICSID/AdditionalFacilityRules.jsp) authorizes the ICSID to administer some proceedings outside the scope of the Convention (such as where either party is not a member) and for disputes that are not strictly investment in nature.
Investment contracts between member states and investors from other states often provide for ICSID arbitration through Model Clauses (http://icsid.worldbank.org/ICSID/FrontServlet?actionVal=ModelClauses&requestType=ICSIDDocRH). Other means of advance consent to ICSID arbitration can be found in investment laws and over 2,000 Bilateral Investment Treaties (http://icsid.worldbank.org/ICSID/FrontServlet?requestType=SearchRH&actionVal=SearchSite&SearchItem=treaties) .
These and other important ICSID publications and documents appear on the ICSID Web site, as does information on arbitral awards and cases. The button ICSID Cases (http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ShowHome&pageName=Cases_Home) leads to pending and concluded cases. Among the information given: case name, case number, subject matter, date of arbitration registration, date of constitution of the tribunal, composition of the tribunal, outcome of the proceeding, and either citations or links to any published decisions made during the process. The same type of information is available for the more than 135 concluded cases, plus links to online full-text decisions for more recent cases. Online Decisions and Awards links to ICSID decisions and awards and in some cases to related national decisions. It is not clear how complete these lists are.
Also available on the Web site is the ICSID Bibliography (http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDBibliographyRH&actionVal=ViewArticleAndBooks), which presents citations on texts related to the Convention, such as where to find translations of the Convention in different languages. It also has an extensive list of books and articles on the ICSID and on investment disputes.
With151 members (http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm), the World Trade Organization is a global institution that deals with the rules of trade between nations. Its objective is to "help trade flow smoothly, freely, fairly and predictably." To do this, it has formulated agreements that result from negotiations among members. The recent Uruguay Round negotiations (1986-1994) resulted in about 60 agreements (http://www.wto.org/english/docs_e/legal_e/legal_e.htm). One of the WTO's tasks is to settle trade disputes; it has administered arbitrations since its creation in 1995. The main agreement for settling disputes that resulted from the Uruguay Round is the Dispute Settlement Understanding (http://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm), which is the responsibility of the Dispute Settlement Body.
On the WTO Web site is a section called Understanding the WTO: Settling Disputes (http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm), which describes clearly and in detail the WTO dispute resolution process and which makes a good starting point for WTO research. According to the explanation, a dispute arises when one country adopts a trade policy or takes an action that one or more fellow WTO members considers in violation of the WTO agreements. A third group of countries can declare that they have an interest in the case. Dispute settlement procedures under the WTO follow a fixed set of timetables that are described here. A case should normally not take more than about a year. If it is appealed, the time may be extended to 15 months. In addition, rulings are automatically adopted unless the country that wants to block the ruling persuades all other WTO members to share its view. If a country continues to break an agreement, then some kind of penalty, such as trade sanctions, can be imposed.
"Understanding the WTO: Settling Disputes is" divided into three sections. The first is subtitled "a unique contribution" (http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm), and it explains the dispute settlement process. The second, "the panel process" (http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp2_e.htm), presents a diagram of the process. Finally, there is a "case study" (http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp3_e.htm), a detailed look at how the timetable worked in an actual dispute. The breakdown of links to these pages can be found on the left sidebar of the screen subtitled "A unique contribution", under "Settling Disputes."
The Dispute Settlement Gateway screen (http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm) gives the user different options for finding actual cases and arbitrations and related official documents.
There is a list of cases by year and case number, where short descriptions are given (http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm). Click on a case number to go to a screen that has options for viewing or downloading the related documents. You can also view a preview, or abstract, of the case.
It is also possible to browse cases and rulings by subject (http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm). Click on a subject to be taken to a list of cases; click on the case number to get to viewing and downloading options.
If you want to know the kinds of disputes a particular country has been involved in, go to the Disputes rulings by country page (http://www.wto.org/english/tratop_e/dispu_e/distabase_wto_members1_e.htm). Not only do you get a breakdown by country, but you also get links to the different documents such as panel reports and appellate body reports that are currently available on the Web site. Not every ruling is accompanied by a full-text document.
One of the older arbitral bodies, the Arbitration Institute of the SCC was established in 1917 and was recognized in the 1970's by the US and USSR as a neutral center for the resolution of East-West trade disputes. It has since expanded to arbitrate disputes in over 40 countries. Its Arbitration Rules (http://www.sccinstitute.com/uk/Rules) are available in 6 languages. It has also issued Model Clauses (http://www.sccinstitute.com/uk/Model_Clauses), which can be linked to from the Rules page.
Extracts from awards and decisions as well as articles are published in the "Stockholm Arbitration Report. " A cumulative index (http://www.sccinstitute.com/_upload/shared_files/sar-index.pdf) for 1999-2003 to the SAR can be downloaded in pdf format.
The American Arbitration Association is a private, nonprofit organization that was founded in 1926 and that is now one of the world's leading dispute resolution bodies. It has offices in the United States and Europe (http://www.adr.org/Offices) and 62 cooperative agreements with arbitral institutions in 43 countries. It has administered 2 million arbitrations, mediations, and other out-of-court settlements. Its 8000 arbitrators represent 40 languages. Its are numerous; they include labor, construction, energy, domain name disputes, and international disputes. The AAA Web site has information for each of the focus areas, which may include subject-specific arbitration rules and procedures.
For international commercial arbitration, see the page for the International Centre for Dispute Resolution (ICDR) (http://www.adr.org/International). The ICDR has developed several categories of arbitration and mediation rules and procedures. It also provides services for cases administered under the UNCITRAL Arbitration Rules. See "Procedures for Cases under the UNCITRAL Arbitration Rules" (http://www.adr.org/sp.asp?id=22091).
Created in 1984 due to the growing importance of sports on the world stage, the Court of Arbitration for Sport seeks to facilitate the arbitration or mediation of sports-related disputes by means of procedural rules that have been specifically adapted to the sports world. It has nearly 300 arbitrators who are legal and sports experts from 87 countries and who administer about 200 cases a year. Based in Lausanne, Switzerland, the CAS hears disputes of either a commercial or disciplinary nature. Cases may be referred to the CAS by athletes, sports federations, organizers of sports events, sponsors or television companies. The CAS has developed several types of procedures: 1) ordinary arbitration procedures for disputes resulting from contractual relations or torts; 2) appeals arbitration procedures for disputes resulting from decisions of sports organizations; and 3) a consultation procedure where the CAS is asked to issue an advisory opinion on legal issues related to sports. This opinion is not an award and is not binding. The CAS also establishes non-permanent tribunals for major events like the Olympics, for which it develops special rules (http://www.tas-cas.org/adhoc-rules) .
The Code of Arbitration for Sport (http://www.tas-cas.org/statutes) governs the organization and arbitration procedures of the CAS. There are standard clauses (http://www.tas-cas.org/clause-templates) for ordinary and appeals arbitaration procedures.
Based in New York, the CPR Institute is a resource for lawyers seeking arbitrators and mediators, the latest alternative dispute resolution (ADR) case decisions, and practitioner-oriented material like practice guidelines and publications. The Web site links to CPR Clauses, Rules and Procedures [select from home page].
Established in 1986, the NAF has a roster of 1500 neutral arbitrators made up of former judges and experienced attorneys. Its Web site has an Arbitration Code of Procedure (click on the tab labeled Programs and Rules and then on Code of Procedure in the drop-down menu). For sample clauses, click on the Publications tab on the home page and select "Drafting Mediation/Arbitration Clauses" in the drop-down menu.
A part of the Chamber of Commerce of Milan, Italy, the Chamber of National and International Arbitration of Milan administers proceedings for both national and international arbitrations. It specializes in disputes in the handicraft field. See its Arbitration Rules (http://www.camera-arbitrale.it/show.jsp?page=169943) and Model Arbitration Clause (http://www.camera-arbitrale.it/show.jsp?page=169947). The web site is in English and Italian.
The Inter-American Commercial Arbitration Commission administers a system for settlement, by arbitration or conciliation, of international commercial disputes throughout the western hemisphere. To promote its system, the Commission works to obtain the ratification of the member countries of the Inter-American Convention on International Commercial Arbitraton (http://www.oas.org/juridico/English/sigs/b-35.html) and the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (http://www.jus.uio.no/lm/un.arbitration.recognition.and.enforcement.convention.new.york.1958/). IACAC's Rules of Procedure (http://www.sice.oas.org/dispute/comarb/iacac/rop_e.asp) are substantially similar to the UNCITRAL Arbitration Rules (http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1976Arbitration_rules.html).
Established in 1985, ACICA aims to support and facilitate international arbitrations and to promote Sydney and Australia as a venue for international commercial arbitration. Its web site has arbitration clauses (http://www.acica.org.au/arbitration_clauses.html) and arbitration rules (http://www.acica.org.au/arbitration_rules.html).
CPR was founded in 1979 as the center for Public Resources from a coalition of corporation general counsel to identify and apply alternative solutions to disputes. Today it is a membership-based nonprofit alliance of global corporations, law firms, scholars, and public institutions with a panel of arbitrators that has mediated thousands of cases worldwide. Approximately 4000 operating companties have pledged (http://www.cpradr.org/Landing.asp?M=11.0) to explore alternatives to litigations with other members. CPR Clauses, Rules and Procedures (http://www.cpradr.org/Landing.asp?M=9.0) can be found on the web site.
The Commercial Arbitration and Mediation Center for the Americas provides commercial parties in the Americas with a forum for the resolution of private commercial disputes and is designed to be consistent with the North American Free Trade Agreement (NAFTA). It is the joint creation of the AAA, the British Columbia International Commercial Arbitration Centre, the Mexico City National Chamber of Commerce, and the Quebec National and International Commercial Arbitration Centre, and it is governed by representatives from each group. Its Arbitration Rules and Model Clause (http://www.adr.org/sp.asp?id=22092) are found on the American Arbitration Association's Web site.
Headquartered in Strasbourg with departments throughout Europe, the European Court of Arbitration is a private organization that specializes in swift, affordable arbitrations. It is an open body, with regulations and compromise clauses applicable to anyone. In addition, unlike most arbitral institutions, there is no designated list of arbitrators; parties select their own. The Web site as of this date is available in several languages in varying degrees of comprehensiveness. The English version has many links that refer only to an email address. Its Arbitation Rules (http://cour-europe-arbitrage.org/pdf_documents.htm) are available in French and Spanish and its clauses ( http://cour-europe-arbitrage.org/pdf_documents.htm) in English.
OHADA is currently made up of 17 African nations. Most information on the Web site is in either English, French, Spanish or Portuguese. The following full text is available in English:
OHADA Case Law (http://www.ohada.com/jurisprudence.phph) has a search page that is in French. The site has over 1700 case, and it seems as though free registration will give access to them.
D. Gulf Cooperation Council (GCC) Commercial Arbitration Centre(http://www.gcac.biz/en/news/news.php?newsid=222) The Commercial Arbitration Centre was created in 1993 to settle trade disputes with each other and with foreigners. The site is in Arabic and English and includes Arbitration Rules (http://www.gcac.biz/en/rules.php).
The Hong Kong International Arbitration Centre was established in 1985 for purposes of dispute resolution in Asia. It is independent of the Hong Kong government. Its Web site has Recommended Arbitration and Mediation Clauses (http://www.hkiac.org/HKIAC/HKIAC_English/main.html; select "Recommended Clauses" on left sidebar) and Arbitration Rules (http://www.hkiac.org/HKIAC/HKIAC_English/main.html; select "Rules" on left sidebar").
This web page has links to model clauses, arbitral institutions, and other information on ADR. There is also a discussion forum.
VI. Internet Domain Name Disputes
With the rapid rise of Internet use and the subsequent increase in disputes over domain names, the Internet Corporation for Assigned Names and Numbers (ICANN) (http://www.icann.org/), the organization responsible for the management of the generic top level domains, was in need of a dispute resolution mechanism. In answer to this need, the World Intellectual Property Organization studied the problem and eventually published a report (http://www.wipo.int/amc/en/processes/process1/report/index.html) containing recommendations dealing with domain name issues. Based on the report's recommendations, ICANN adopted the Uniform Domain Name Dispute Resolution Policy (UDRP) (www.icann.org/udrp/udrp-policy-24oct99.htm). The UDRP went into effect on December 1, 1999, for all ICANN-accredited registrars of Internet domain names. Under the UDRP, there are three approved providers of domain name dispute resolution:
A. WIPO is a leading ICANN-accredited domain name dispute resolution provider (http://arbiter.wipo.int/domains/index.html). As of the end of 2001, some 60 percent of all the cases filed under the UDRP were filed with WIPO. In addition, a growing number of registrars of country code top-level domains (http://arbiter.wipo.int/domains/cctld/index.html) have designated WIPO as a dispute resolution service provider.
For concise background information on how and why domain name disputes arise, see the FAQ (http://arbiter.wipo.int/center/faq/domains.html) on the WIPO Web site. The WIPO domain name disputes pages have a lot of information, including the full text of decided cases. There is a listing of case numbers by year (http://arbiter.wipo.int/domains/cases/all.html) which links to a page that gives the disputed domain name and case status (pending, terminated, or decided). If the status is "decided", there is a link to the decision. Or you can go directly to a) just the decisions (http://arbiter.wipo.int/domains/decisions/index.html) or b) a search page (http://arbiter.wipo.int/domains/search/index.html).
B. Another provider approved by ICANN is the Asian Domain Name Dispute Resolution Centre (ADNDRC) (http://www.adndrc.org/adndrc/). Disputes handled by the ADNDRC are governed by the Uniform Domain Name Dispute Resolution Policy Rules (UDRP Rules) (http://www.icann.org/dndr/udrp/uniform-rules.htm) as well as the ANDRC Domain Name Dispute Resolution Centre Supplemental Rules (http://www.adndrc.org/adndrc/hk_supplemental_rules.html), which were adopted by the ADNDRC and took effect as of 28 February, 2002. It should be noted that these provisions apply to disputes involving .com, .net and .org domain names. Domain names involving .biz and . name have slightly modified Dispute Resolution Policies.
C. National Arbitration Forum (NAF) (http://www.arb-forum.com) is the foremost provider of domain name dispute resolution in North America. The Web site's Domain Name Disputes page (http://domains.adrforum.com) provides links to procedures and rules relating to various types of domain name disputes. As of January 1, 2006, New Supplemental Rules went into effect (http://domains.adrforum.com/main.aspx?itemID=631&hideBar=False&navID=237&news=26). It also links to a search page (http://www.arb-forum.com/domains/decisions.asp) that allows searching of dispute proceedings and decisions by full text, case number, name, domain type, date, parties, status, and rule. The scope of this database is not described.
Also available on the NAF Web site is a monthly newsletter called Domain News (http://www.adrforum.com/main.aspx?itemID=302&hideBar=False&navID=150&news=4) that has recent rulings and information. It can be emailed with free registration or viewed on the Web site. Issues date back to January 2004. There are abstracts of rulings, some of which link to the full text.
VII. National Arbitration Statutes
An important component to a successful arbitration is a statute receptive to arbitration in the country of the site of the arbitration. A distinction is often made in a nation's laws between domestic arbitrations, in which states tend to maintain a firmer hand through the court systems, and international arbitration, in which actors engaging sophisticated commercial transactions are freer to agree upon their own rules. Another recent trend is the conscious repositioning of countries through adoption of new or amendment of existing arbitration laws that remove impediments to the arbitration process, in an effort to attract more global business. Most statutes since 1980 have also included "trade usage" as a permissible source of arbitration law, again in an effort to attract global business on its own terms.
What follows is an alphabetical listing of national arbitration laws available free on the Internet that the author has been able to locate. [In English, unless otherwise indicated.]
Algeria (http://lexalgeria.free.fr/proviii.htm) In French.
Antigua (http://www.laws.gov.ag/acts/; select "A" under #4- Laws or Acts of Parliament in Alphabetical Order, then scroll down and click on "Arbitration Act.")
Argentina (http://www.sice.oas.org/DISPUTE/COMARB/argentina/libro6.asp) In Spanish.
Australia (http://www.austlii.edu.au/auegis/cth/consol_act/iaa1974276/)
Chile (http://www.camsantiago.com/; scroll down to Ley de Arbitraje Comercial Internacional", see links for text in Spanish (espanol) and English (ingles)).
China (http://www.cietac.org.cn/english/laws/laws_5.htm)
Colombia (http://www.sice.oas.org/DISPUTE/COMARB/Colombia/D1818I.asp) In Spanish.
Costa Rica (http://www.latinlaws.com/costarica.html; select Arbitraje) In Spanish.
Cote d'Ivoire (http://www.lemediateur.ci/inst.htm). In French.
Croatia (http://hgk.biznet.hr/hgk/tekst.php?page=tekst&id=245; select text from right sidebar)
Cyprus (http://www.neocleous.biz/gr/download/busop_ccica.htm; scroll down to Appendix 1)
Denmark (http://www.retsinfo.dk/_GETDOCI_/ACCN/A19720018130REGL) LBK Nr. 726 of 10/24/1986 and LOV Nr. 553 of 6/24/2005. In Danish.
Dominican Republic (http://www.geocities.com/CapitolHill/Senate/8569/ley5087.htm) In Spanish.
Ecuador (http://www.sice.oas.org/DISPUTE/COMARB/Ecuador/larbymed.asp). In Spanish.
El Salvador (http://www.latinlaws.com/legislacion/modules/mylinks/visit.php?cid=155; select El Salvador, Arbitraje, Ley de Mediacion, Concilliacion y Arbiraje) In Spanish.
Egypt (http://www.jus.uio.no/lm/egypt.l_arbitrage.civile.et.commerciale.loi/doc.html) In French.
Estonia (http://www.globalarbitrationmediation.com/estonia_arbitration.shtml)
Finland (http://www.finlex.fi/pdf/saadkaan/E9920967.PDF)
France ( http://www.legifrance.org/initRechCodeArticle.do; in box labeled "Nom du code", select "Code de procedure civile" from the drop-down menu; on the same page enter arbitrage in the box labeled "Par mot ou expression"' then click on "Rechercher"). In English and French.
Germany (http://www.dis-arb.de/materialien/) In English, German, French, Spanish and Russian.
Guatemala (http://www.sice.oas.org/DISPUTE/COMARB/Guatemala/arbitra1.asp) In Spanish.
Japan (http://www.kantei.go.jp/foreign/policy/sihou/law032004_e.html)
Jersey (http://www.jerseylegalinfo.je/Law/LawsInForce/alphabetical.aspx?Alpha=A&Page=3) Scroll down for links to Arbitration (International Investment Disputes ) Order 1979 and Arbitration Law 1998.
Malaysia (http://eurasialegalnetwork.com/library; click on Arbitration Act of 2005 under Malaysia - New Legislation)
Malta (http://docs.justice.gov.mt/lom/legislation/english/leg/vol_11/chapt387.pdf)
Mauritania (http://www.glin.gov; enter Mauritania arbitration into search box; select "Loi no. 2000-06 portant Code de L'Arbitrage"; click on Full Text 1). In French.
Mexico (http://www.sice.oas.org/DISPUTE/COMARB/Mexico/codcos.asp) In Spanish.
New Zealand (http://www.legislation.govt.nz) Select "Browse acts"; then select "A" from drop-down menu "View titles of current acts beginning with"; scroll down to Arbitration Act 1996.
Nicaragua (http://www.latinlaws.com/nicaragua.html; select Arbitraje) In Spanish.
North Korea (http://www.novexcn.com/dprk_extern_econom_arbitra.html)
Norway (http://www.lovdata.no/all/nl-19670608-003.html) In Norwegian.
Panama (http://www.glin.gov/search.action; enter Panama arbitration into search box; go to second screen and select General System of Mediation and Settlement Arbitration) In Spanish.
Paraguay (http://www.latinlaws.com/paraguay.html; select Arbitraje) In Spanish.
Peru (http://www.latinlaws.com/peru.html; select Arbitraje) In Spanish.
Portugal (http://www.port-chambers.com/eng/arbit_arbit.htm#null) Select "Voluntary Arbitration Law". Amended by Decree-Law 38/2003 of March 8 (text not available).
Kluwer's Internet database covers both primary and secondary resources. Users can elect to subscribe to some or all the materials. KluwerArbitration.com brings together the documents of many of the institutions described above, such as the ICC/ICCA, the ICSID, the PCA, and the WIPO Arbitration and Mediation Center. Searching is free and results in citations, but one needs a subscription to retrieve the full text of these documents.
The Web site is well-designed and easy to use. A search page (http://www.kluwerarbitration.com/arbitration/Search.aspx) allows searching by organization, type of document (e.g., award, rules, conventions, etc.), author, parties, country, and more.
case law (http://www.kluwerarbitration.com/arbitration/toc.aspx?topic=Case%20Law)
Case Law is divided into Court Decisions (http://www.kluwerarbitration.com/arbitration/arb/caselaw/courtdecisions/) and Awards (http://www.kluwerarbitration.com/arbitration/toc.aspx?type=AWARDS). Court decisions are subdived by aribitration conventions, such as decisions applying the 1958 New York Convention. These are futher subdivided by country. For those decisions and awards for which the full text is not available, summaries are provided.
To find the arbitration legislation, decisions, awards, and institutions of a particular country that are on the Kluwer site, select Countries (http://www.kluwerarbitration.com/arbitration/arb/country/) on the sidebar. An added feature is a list of Bilateral Investment Treaties (http://www.kluwerarbitration.com/arbitration/Bits.aspx) by country; however, the full text of the treaties is not reproduced.
Another sidebar button, Commentary (http://www.kluwerarbitration.com/arbitration/arb/commentary/), brings up commentary found in several treatises as well as bibliographic citations to secondary materials.
Kluwer Arbitration Online also gives subscribers access to citations included in the Milan Bibliography (http://www.kluwerarbitration.com/arbitration/toc.aspx?type=Commentary%20-%20Bibliographic%20section&subtype=Milan+Bibliography), a bibliographic database of thousands of books and articles on arbitration that was compiled by the Documentation Center on Arbitration of the Chamber of National and International Arbitration of Milan These citations are indexed by author, title, source, publisher, edition, and keywords.
Produced by Juris Publishing, ArbitrationLaw Online covers primary and secondary arbitration material. However the web site no longer has descriptions of what is offered. You must contact Customer Service for details.
C.WESTLAW Arbitration Databases
WESTLAW (www.westlaw.com) covers a wide range of international arbitration materials, including those of international and national arbitration organizations and tribunals. Dates of coverage and comprehensiveness of the information vary depending on the database, but overall, coverage is good. WESTLAW combines a great deal of this material, which allows for comprehensive searching. For example, International Commercial Arbitration - All (database identifier ICA-ALL) combines many of the WESTLAW materials on international commercial arbitration in one database.
The WESTLAW Database Directory (http://directory.westlaw.com/) lists what is available. Click on WESTLAW International - International Practice Areas - International Commercial Arbitration. Among the databases listed are Awards and case law, Conventions, Institutions, Model Laws, Model Clauses, Rules, and a very helpful category, Materials by Location. Click for a description of each category and database to determine what it covers. For example, ICSID-AWARDS is a file of ICSID arbitration awards as published in several publications from May 1982. The ICC International Court of Arbitration Awards database (ICC-AWARDS) goes back a long way, to 1975, but consists only of abstracts and commentary on the arbitral awards.
There are also different categories of materials. International Commercial Arbitration – Institutions (database identifier ICA-INST) includes the legislation, rules, model clauses, award and decisions of several prominent arbitral institutions, including the London Court of International Arbitration, the Hong Kong International Arbitration Center, the China International Economic Trade and Arbitration Commission, the China Maritime Arbitration Commission, the Singapore International Arbitration Centre, the Stockholm Chamber of Commerce, the International Arbitral Centre-Vienna, the International Chamber of Commerce, the Institute of Arbitrators & Mediators Australia, the United Nations Commission on International Trade Law and the International Centre of the Settlement of Investment Disputes.
WESTLAW also has an International Commercial Arbitration – Legislation database (identifier ICA-LEGIS), which includes the laws of a number of countries, as well as individual legislation databases for Australia, China, France, Germany, the Netherlands, Singapore, Sweden, Switzerland, and the United Kingdom.
Historical arbitration rules for some institutions can be found in International Commercial Arbitration - Historical Rules (identifier ICA-HRULES). Separate files are also available for various countries and arbitral institutions, which draw from several sources to provide decisions and other materials.
Finally, a group of WESTLAW databases produced by Barry Appleton and Appleton & Associates International Lawyers provide coverage of ICSID and investor-state arbitiration awards, digest-commentaries and case summaries on investment-related awards, and news of investor-state litigation and arbitration.
D. LEXIS Arbitration Databases
For international arbitration materials on LEXIS (http://www.lexis.com), the Directory (http://w3.nexis.com/sources/) can be searched by selecting "Legal" as the topic and by entering "arbitration" in the description field. The resulting links include international commercial arbitration files, many of which are in the INTLAW and ADR libraries.
They include:
WTO Dispute Settlement file (library: ITRADE; file name WTODS), which has dispute settlement reports of the WTO which are public and have been made available to Lexis. They date from 1996 and include panel reports, appellate body reports and arbitrators' reports and mutually acceptable solutions.
WIPO Arbitration and Mediation Center Administrative Panel Domain Decisions with regard to domain disputes are in the CYBRLAW-WIPODD file and date from 2000.
Selected awards are published in International Legal Materials (file name ILM in the INTLAW library).
Also found in INTLAW are Basic Documents of International Law, which includes arbitration (file BDIEL).
Publications of the American Arbitration Association and the CPR Institute for Dispute Resolution are found in the ADR library.
International Arbitration: Mealey's Litigation Report with news and analysis in the ADR library.
This commercial database has two parts. There is no charge to search an index of World Trade Organization reports and arbitrations and to get abbreviated versions of the reports. Also free are articles on trade law and selected amicus submissions in WTO disputes.
Subscribers will get the Dispute Commentary Service, which summarizes and analyzes WTO Panel and Appellate Body reports and WTO arbitrations. There are also links to the full text. In addition, WorldTradeLaw.net offers full text searching, a keyword index, and a table of disputes that is sortable by date, dispute name, panelist, AB member, or subject.
F.
F.Additional Resources
Juris International (http://www.jurisint.org/) is a collaborative effort to enhance access to international trade law information for the benefit of developing countries. A trilingual collection of international legal agreements, model contracts and information on dispute resolution centers, it was launched by the International Trade Centre UNCTAD/WTO (http://www.intracen.org/), the University of Montreal (http://www.umontreal.ca; Canada) and the University of Nancy (France) (http://www.nancy-universite.fr/). It links to descriptions of 175 arbitration and mediation centres (http://www.jurisint.org/en/ctr/index.html) around the world. Some entries link to the full text of rules and model clauses. In English, Spanish, and French.
The focus of the National Center for Technology and Dispute Resolution (NCTDR) (http://www.odr.info) is online dispute resolution (ODR). Its web site has links to research materials, news of events, and a list, with links, of providers of online dispute resolution. It also has a blog on ODR news.
IBA Rules on the Taking of Evidence in International Commercial Arbitration (http://www.ibanet.org/images/downloads/IBA%20Rules%20on%20the%20Taking%20of%20Evidence%20in%20International%20Arbitration%201999.pdf). Produced by the Arbitration Committee of the International Bar Association, these rules were adopted by the IBA Council on 1 June 1999. They provide mechanisms for the presentation of documents, witnesses, expert witnesses, and inspections, as well as the conduct of evidentiary hearings.
The Transnational Law Database (http://www.tldb.net) from the Center for Transnational Law at Muenster University is a valuable resource for arbitration research. It is organized by almost 80 transnational law principles, with references to doctrinal writing, arbitral decisions, and national laws relating to those principles. It is also possible to search the site and participate in an online discussion group.
A good source for valuable documents in this subject area is the International Dispute Settlement section (http://www.eisil.org/index.php?sid=493164135&t=sub_pages&cat=788) of ASIL's EISIL (Electronic Information System for International Law) (http://www.eisil.org/).
e-Dispute is an electronic arbitration/dispute resolution system whose development has been funded by the European Union (http://ec.europa.eu/research/headlines/news/article_06_01_23_en.html). It is designed to overcome problems of jurisdictions and to help resolve transnational and multi-lingual disputes. It allows parties to put their case before an independent online arbitrator, who will review the case and set up a meeting between the parties via chatrooms and video conferences, at which possible agreements can be reached. e-Dispute has been tested at the European Court of Arbitration and the Emilia-Romagna Chamber of Commerce with further trials to be scheduled. However , the web site has not been updated since 2006.
IX. Blogs
For names and links of blogs on alternative dispute resolution, including a few on international commercial arbitration, go to the World Directory of Alternative Dispute Resolution Blogs (http://www.adrblogs.com/index.html). This web site sorts the blogs alphabetically, by country, and by category. It is produced and maintained by Diane Levin, a mediator, trainer, consultant, and attorney based in the Greater Boston area.
The blog Opinio Juris (http://www.opiniojuris.org) discusses arbitration among its many other topics. To see posts from the last 5 or 6 months, go to the home page and scroll down to "Categories" on the left sidebar, then click on "International Courts and Dispute Resolution."
The National Arbitration Forum Blog (http://arbitration-forum.blogspot.com/) reports on news, events, and perspectives about alternative dispute resolution.
ArbitralWomen (http://www.arbitralwomen.org/) is a group of professional women from all over the world who are active in arbitration and alternative dispute resolution internationally. The web site is about and by ARBITRALWOMEN but is open to everyone both to search for appropriate and qualified dispute resolution practitioners and to benefit from the ideas and information offered
FOOTNOTES
FN1 - Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus, Bermuda, Bulgaria, Cambodia, Canada, Chile, Croatia, Cyprus, Denmark, Egypt, Estonia, Germany, Greece, Guatemala, Hong Kong Special Administrative Region of China, Hungary, India, Iran, Ireland, Japan, Jordan, Kenya, Lithuania, Macau Special Administrative Region of China, Madagascar, Malta, Mexico, New Zealand, Nicaragua, Nigeria, Norway, Oman, Paraguay, Peru, the Philippines, Poland, Republic of Korea, the Russian Federation, Scotland, Singapore, Spain, Sri Lanka, Thailand, Tunisia, Turkey, Uganda, Ukraine, Zambia and Zimbabwe.
FN2 - Under Article V, a court must recognize or enforce the award except in these situations: incapacity of the party; invalidity of the agreement; a party‘s lack of notice or other inability to present his or her case; an award outside the submission; an improperly constituted tribunal or a procedure which is illegal or outside the parties‘ agreement; a subject which cannot be arbitrated under national law; and a case in which recognition or enforcement would violate public policy.
FN3 - The print looseleaf publication Investment Promotion and Protection Treaties, compiled by the ICSID and published by Oceana, aims to have as complete a set of bilateral investment treaties as is possible. However, it is not always possible for ICSID to get a copy from a signatory so not all treaties from all countries will be found in the publication.
