International Arbitration 10x10
100 Facts an in-house counsel needs to know
Zusammenfassung
Arbitration is the dispute resolution mechanism of choice for most cross-border disputes. Arbitration is a complicated, multi-layered area of law. A transnational practice has developed, impacted by civil and common law features. At the same time, it is possible to explain 10 x 10 key concepts of international arbitration accurately and understandably on two pages each. This is the concept, the promise of this book.
The book explains 100 facts about arbitration proceedings that
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every in-house lawyer must know
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every outside counsel needs to communicate in a nutshell to his or her clients.
The authors are partners and senior associates of Baker McKenzie‘s German arbitration group, unanimously ranked top tier by all international reference guides. This book is aimed at in-house counsel and attorneys who need a straight-forward, no-frills explanation of the core concepts of international arbitration.
Schlagworte
- I–6 Titelei/Inhaltsverzeichnis I–6
- 8–31 I. An introduction to International Arbitration and other ADR methods (Annette Keilmann) 8–31
- 8–12 1. Talking about arbitration requires knowledge of some terms 8–12
- 12–14 2. Cooperative negotiating is not “friendlier” than competitive negotiating 12–14
- 14–16 3. Mediation is a well-established method for solving economic disputes 14–16
- 16–18 4. Dispute adjudication boards are a viable option for major projects 16–18
- 18–20 5. Adjudication is usually linked to international arbitration 18–20
- 20–22 6. International arbitration is neither amicable nor non-binding 20–22
- 22–24 7. Arbitration does not take place in a legal vacuum 22–24
- 24–26 8. Mediation and international arbitration can be intertwined 24–26
- 26–28 9. Money laundering, bribery and corruption cases pose ethical challenges in arbitration 26–28
- 28–31 10. International arbitration offers significant advantages 28–31
- 32–53 II. The Arbitration Agreement (Tobias Höfling) 32–53
- 32–34 1. No arbitration without consent to arbitrate 32–34
- 34–36 2. Objective arbitrability – not every kind of dispute can be submitted to arbitration 34–36
- 36–38 3. In dubio pro arbitrare? – Consent is a grey area 36–38
- 38–40 4. Don’t reinvent the wheel (or don’t draft, just copy) 38–40
- 40–42 5. Institutional arbitration is preferable to ad hoc arbitration 40–42
- 42–44 6. Choosing a good arbitration institution is important 42–44
- 44–46 7. Multi-tier clauses – arbitration might only be the last resort 44–46
- 46–48 8. Complex transactions require complex precautions – multi-contract and multi-party situations 46–48
- 48–50 9. Terminating a contract leaves the arbitration clause unaffected 48–50
- 50–53 10. Arbitration agreements in standard terms may be void or subject to specific legal requirements for validity 50–53
- 54–75 III. The Arbitral Tribunal (Max Oehm) 54–75
- 54–56 1. Disputes may be referred to sole arbitrators or to tribunals 54–56
- 56–58 2. The end does not justify the means (or the importance of following the appointment procedure) 56–58
- 58–60 3. An appointing authority can be important for the performance of the arbitration agreement 58–60
- 60–62 4. Your best friend might not be your best arbitrator 60–62
- 62–64 5. Justice must not only be done, but be seen to be done 62–64
- 64–66 6. Challenge an arbitrator only if absolutely necessary 64–66
- 66–68 7. Appointment of arbitrators in multi-party disputes is difficult at best 66–68
- 68–70 8. “Because I say so!” – Arbitrators have great discretion in running the proceedings 68–70
- 70–72 9. The liability of arbitrators is usually limited 70–72
- 72–75 10. Emergency arbitrator: sometimes a ruling is required before the arbitration starts 72–75
- 76–97 IV. The Arbitral Proceedings (Heiko Haller) 76–97
- 76–78 1. There are seven common steps in arbitral proceedings 76–78
- 78–80 2. The terms of reference provide a guiding hand 78–80
- 80–82 3. Bifurcating proceedings can save costs for the parties 80–82
- 82–84 4. Written submissions have to comply with formal and material requirements 82–84
- 84–86 5. Objections to the jurisdiction have to be raised quickly 84–86
- 86–88 6. Set-off defenses are admissible in arbitral proceedings if the underlying claim is covered by the arbitration agreement 86–88
- 88–90 7. Culture has an impact – the “Americanization” of proceedings 88–90
- 90–92 8. The seat of arbitration is paramount to the success of the proceedings, but hearings can be held elsewhere 90–92
- 92–94 9. Opening statements can make a difference 92–94
- 94–97 10. Confidentiality should not be assumed 94–97
- 98–119 V. Taking of evidence (Ragnar Harbst) 98–119
- 98–100 1. Parties and tribunals often rely on the IBA Rules on the Taking of Evidence in International Arbitration 98–100
- 100–102 2. Document production can be a blessing and a curse 100–102
- 102–104 3. Document production in practice – the Redfern Schedule 102–104
- 104–106 4. Direct testimony is often replaced by witness statements 104–106
- 106–108 5. Cross-examination is the standard 106–108
- 108–110 6. Re-examination is not always advisable 108–110
- 110–112 7. Familiarizing and preparing the witness: there are ethical and legal limitations 110–112
- 112–114 8. Golden rules for the witness during cross-examination 112–114
- 114–116 9. There are different ways of producing expert witness evidence 114–116
- 116–119 10. Witness conferencing – expert witnesses might find themselves in the hot tub 116–119
- 120–141 VI. Psychology in International Arbitration (Jörg Risse) 120–141
- 120–122 1. The three secrets of success: organization, organization, organization 120–122
- 122–124 2. Arbitration is a marathon, not a sprint competition 122–124
- 124–126 3. Choosing the right counsel – experience in arbitration makes the difference 124–126
- 126–128 4. Guerilla tactics in inter national arbitration: not all is fair in love and war 126–128
- 128–130 5. Presentation is key: how structuring submissions and evidence can influence the tribunal 128–130
- 130–132 6. The psychology of persuasion – a winning strategy should consider how the human brain works 130–132
- 132–134 7. The 30/70 rule makes complete winning difficult 132–134
- 134–136 8. Culture affects arbitral proceedings 134–136
- 136–138 9. There exist rules to be observed when arbitrators are trying to facilitate settlement 136–138
- 138–141 10. Calderbank offers can encourage settlement 138–141
- 142–163 VII. Interim measures and other interactions between Courts and the Arbitral Tribunal (Maximilian Sattler) 142–163
- 142–144 1. Arbitral tribunals have jurisdiction to decide on interim measures during the proceedings 142–144
- 144–146 2. Enforceability of interim measures ordered by an arbitral tribunal depends on domestic procedural law 144–146
- 146–148 3. Arbitration does not bar recourse to courts for interim measures 146–148
- 148–150 4. Anti-arbitration injunctions are rare – but some jurisdictions still allow them 148–150
- 150–152 5. Anti-suit injunctions are increasingly recognized in several jurisdictions 150–152
- 152–154 6. Some jurisdictions allow for court review of the validity of the arbitration agreement prior to commencement of proceedings 152–154
- 154–156 7. State courts have an important say in challenge proceedings 154–156
- 156–158 8. State courts may be relied on to assist with the production of evidence for arbitral proceedings 156–158
- 158–160 9. State courts may determine non-arbitrable preliminary claims 158–160
- 160–163 10. The tribunal may issue interim awards, partial awards and a final award 160–163
- 164–185 VIII. Awards and enforcement in Domestic Courts (Gerrit Niehoff) 164–185
- 164–166 1. Finality of the award is more definite than a domestic court judgement 164–166
- 166–168 2. Grounds for challenging an award are usually very limited 166–168
- 168–170 3. Invalidity of the arbitration agreement is a reason for challenging an award 168–170
- 170–172 4. Violation of the right to be heard is a reason for challenging an award 170–172
- 172–174 5. Excess of jurisdiction or non-compliance with the procedure are reasons for challenging an award 172–174
- 174–176 6. Vacated award is a reason for non-enforceability 174–176
- 176–178 7. Violation of public policy is a reason for challenging an award 176–178
- 178–180 8. “Manifest disregard of the law” is usually no reason for challenging an award 178–180
- 180–182 9. Enforcement proceedings require careful preparation 180–182
- 182–185 10. The procedures for challenging and enforcing an award depend on domestic law 182–185
- 186–207 IX. Costs and damages in International Arbitration (Markus Altenkirch) 186–207
- 186–188 1. Arbitration is expensive 186–188
- 188–190 2. The means to force the other party to pay the advance on costs are limited 188–190
- 190–192 3. Cost allocation usually follows the final award 190–192
- 192–194 4. All costs are (usually) recoverable 192–194
- 194–196 5. In-house counsel costs may be recoverable 194–196
- 196–198 6. Security for costs is difficult to obtain 196–198
- 198–200 7. Third-party funding is available in international arbitration 198–200
- 200–202 8. Punitive damages are generally not awarded in international arbitration 200–202
- 202–204 9. In many jurisdictions the award may not establish penalties in case of non-performance 202–204
- 204–207 10. Defaulting on the obligation to arbitrate can be sanctioned 204–207
- 208–229 X. An introduction to Investment Arbitration (Jürgen Schramke) 208–229
- 208–210 1. Rescuing sunk investments – BITs can open the door to arbitration against a state 208–210
- 210–212 2. (Estranged) siblings: there are differences and similarities between international commercial arbitration and investment arbitration 210–212
- 212–214 3. The consent to arbitrate treaty claims – the first part is already there 212–214
- 214–216 4. Many investors enjoy protection under BITs … and the opportunity for treaty shopping 214–216
- 216–218 5. Numerous kinds of investments are protected 216–218
- 218–220 6. The investor may choose the forum, but must be aware of the fork in the road 218–220
- 220–222 7. Recognition and enforcement of ICSID awards is relatively easy 220–222
- 222–224 8. No expropriation without compensation! 222–224
- 224–226 9. The state has to accord fair and equitable treatment to the investment 224–226
- 226–229 10. Contractual rights can be protected under the “umbrella” of investment treaties 226–229
- 229–232 Editors & Authors 229–232
