Planning Efficient Arbitration Proceedings

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Format: Paperback
Pub. Date: 1996-07-01
Publisher(s): Kluwer Law Intl
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Summary

International arbitrators face a challenge: To improve the efficiency and predictability of arbitration proceedings. In this volume of ICCA's Congress Series, international experts and practitioners in the field of arbitration put forward answers to this challenge. For coherence, The organizers of ICCA's 12th International Arbitration Congress, held in Vienna in November 1994, divided the forum into two working groups: 'Planning Efficient Arbitration Proceedings' and 'The Law Applicable in International Arbitration'. Group I focused on the arbitrator's ability to plan proceedings, using various formal and informal methods. UNCITRAL Draft Guidelines--which provide arbitrators with a written reminder of items to cover while planning proceedings--received particular attention. During debate, proponents emphasized the 'optional' character of the guidelines to allay fears that more efficiency would reduce the ability to solve disputes flexibly. Group II addressed the complications arbitral tribunals may encounter when different law applies To The substance of a dispute and To The procedure itself. This group also turned to three other relevant systems of law: The law governing the capacity of the parties, The law applicable To The arbitration agreement, And The appropriate conflicts-of-law rules to determine the governing substantive law. Both groups reported a desire for a more standardized and international approach to arbitration proceedings and emphasized the need to prevent parochial national preference from creating unnecessary obstructions.

Table of Contents

Preface
Albert Jan van den Berg
Welcoming Addressp. 1
Opening Addressesp. 4
Forewordp. 12
Summaryp. 16
Comparative Analysis of Power of Arbitrators to Determine Procedures in Civil and Common Law Systemsp. 24
Power of Arbitrators to Determine Procedures under the UNCITRAL Model Lawp. 39
Comparative Analysis of Power of Arbitrators to Determine Procedures under Various Arbitration Rulesp. 56
Pros and Cons of More Detailed Arbitration Laws and Rulesp. 65
Pros and Cons of Terms of Reference and Specific Procedural Agreements in Arbitration Clauses: Storm in to Calm the Seap. 73
Procedures for Avoiding Unexpected Legal Issuesp. 87
UNCITRAL Project for Improving Methods of Planning Arbitral Proceedingsp. 100
Overview of Methods of Presenting Evidence in Different Legal Systemsp. 112
Burden of Proof in International Arbitrationp. 123
Improving Procedures for Discovery and Documentary Evidencep. 131
Improving Procedures for Oral and Written Witness Testimonyp. 145
Improving Procedures for Expert Testimonyp. 154
Roles of the Arbitral Tribunal in Civil Law and Common Law Systems with Respect to Presentation of Evidencep. 161
Questions Concerning the Desirability and Text of the UNCITRAL Project to Improve Planning of Arbitral Proceedingsp. 173
List of Oral Interventions to Working Group Ip. 195
International Arbitral Centre of the Austrian Federal Economic Chamberp. 197
International Court of Arbitration of the International Chamber of Commercep. 206
London Court of International Arbitrationp. 213
International Centre for Settlement of Investment Disputesp. 221
American Arbitration Associationp. 223
Various Central and Eastern European Centresp. 227
Other Arbitration Centres: Quebec National and International Commercial Arbitration Centrep. 233
Non-administered Arbitrationp. 247
Introductionp. 251
The Law Governing the Capacity to Arbitratep. 260
Towards a Possible Solution: Limitation, Interest and Assignment in London and Parisp. 268
Applicable Substantive Law in Disputes between States and Private Foreign Parties: The Case of Arbitration under the ICSID Conventionp. 294
Introduction: the Law Governing the Procedurep. 320
The Law Governing the Procedure: Express or Implied Choice by the Parties - Contractual Practicep. 322
International Arbitration under U.S. Law and AAA Rulesp. 337
Mandatory National Procedural Law and Auxiliary Powers of Courtsp. 355
Special Considerations Which May Affect the Procedure (Interim Measures, Amiable Composition, Adaptation of Contracts, Agreed Settlements)p. 362
Procedural Decisions by the Arbitral Tribunalp. 374
Express and Implied Choice of the Substantive Law in the Practice of International Arbitrationp. 380
Regulations in Arbitration Rules on Choice of Lawp. 391
Relevance of Conflict of Law Rules in the Practice of Arbitrationp. 447
International Conventions on Conflict of Laws and Substantive Lawp. 459
The Law Applicable in International Arbitration - Relevance of Reference to Trade Usagesp. 471
Special Features of the Application of Particular Laws Relevant for the Practice of Arbitration - Common Lawp. 480
Islamic Lawp. 494
Law Applicable to International Contracts in Latin Americap. 501
Arbitration Law in States after Fundamental Changesp. 518
Arbitration and Applicable Law in Japanp. 530
Mandatory Extraterritorial Application of National Law Rulesp. 538
Application of General Principles of Lawp. 553
The Law Applicable in International Arbitration: Application of Public International Lawp. 562
Thirty Years of Lex Mercatoria: Towards the Discriminating Application of Transnational Rulesp. 570
List of Oral Interventions to Working Group IIp. 591
List of Participantsp. 592
List of ICCA Officers and Membersp. 609
Table of Contents provided by Blackwell. All Rights Reserved.

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