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Home
Know-how
Commercial Arbitration

Commercial Arbitration

Commercial Arbitration: The art and science of but-for analysis

Richard Caldwell and Bennet Berger
The Brattle Group Inc

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Infrastructure

1. Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
2. Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
3. Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
4. What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
5. Can foreign arbitral providers operate in your jurisdiction?
6. Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?

Agreement to arbitrate

7. What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
8. Are any types of dispute non-arbitrable? If so, which?
9. Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
10. Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
11. Is the "group of companies doctrine" recognised in your jurisdiction?
12. Are arbitration clauses considered separable from the main contract?
13. Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal's jurisdiction and competence?
14. Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
15. Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
16. What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

Commencing the arbitration

17. How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

Choice of law

18. How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

Appointing the tribunal

19. Does the law of your jurisdiction place any limitations in respect of a party's choice of arbitrator?
20. Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
21. How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
22. Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
23. Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

Challenges to arbitrators

24. On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

Interim relief

25. What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?
26. Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

Procedure

27. Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?
28. What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
29. What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?
30. Will the courts in your jurisdiction play any role in the obtaining of evidence?
31. What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
32. Is it mandatory to have a final hearing on the merits?
33. If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

Award

34. Can the tribunal decide by majority?
35. Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
36. Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
37. What, if any, are the legal and formal requirements for a valid and enforceable award?
38. What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

Costs and interest

39. Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?
40. Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

Challenging awards

41. Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
42. Are there any other bases on which an award may be challenged, and if so what?
43. Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

Enforcement in your jurisdiction

44. Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
45. What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
46. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Further considerations

47. To what extent are arbitral proceedings in your jurisdiction confidential?
48. What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
49. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
50. Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
51. Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?

Contributing Editor
Oliver Marsden
Freshfields Bruckhaus Deringer

Jurisdictions
Algeria
Bennani & Associes
Australia
DLA Piper
Bahrain
Zeenat Al Mansoori & Associates
Brazil
Cleary Gottlieb Steen & Hamilton
Canada
Woods LLP
China
DaHui Lawyers
Ecuador
Ferrere
Egypt
Zulficar & Partners
France
Gide Loyrette Nouel
Germany
Freshfields Bruckhaus Deringer
Guatemala
Consortium Legal
Hong Kong
Fangda Partners
Hungary
DLA Piper
India
LexArbitri
Indonesia
Makarim & Taira S.
Japan
Paul Hastings LLP
Jordan
Obeidat Lawyers
Kenya
TripleOKlaw Advocates
Lithuania
Motieka & Audzevičius
Luxembourg
Loyens & Loeff
Malaysia
SKRINE
Mexico
García Barragán Abogados SC
Nigeria
AELEX
Panama
Britton & Iglesias
Philippines
SyCip Salazar Hernandez & Gatmaitan
Poland
Łaszczuk & Partners
Portugal
Cuatrecasas
Qatar
K&L Gates LLP
Romania
Zamfirescu Racoti Vasile & Partners
Russia
EPAM Law offices
Saudi Arabia
Serbia
Schoenherr
Singapore
Norton Rose Fulbright
Slovakia
Allen & Overy
South Korea
Shin & Kim
Spain
Cuatrecasas
Sweden
Norburg & Scherp (Stockholm)
Switzerland
AZHA Avocats Attorneys-at-Law
Turkey
Moroğlu Arseven
Ukraine
Asters
United Arab Emirates
Alem & Associates
United Kingdom
Freshfields Bruckhaus Deringer
USA
Quinn Emanuel Urquhart & Sullivan LLP

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