Twilight Issues in International Arbitration : Latent Choice of Law Challenges.

Format:

Book

Author/Creator:

Bermann, George.

Series:

International Arbitration Law Library

Language:

English

Subjects (All):

International commercial arbitration.

Arbitration and award.

Physical Description:

1 online resource (270 pages)

Edition:

1st ed.

Place of Publication:

Piraí : Wolters Kluwer Law International, 2023.

Summary:

There are many issues of arbitral practice that remain largely unaddressed, or very poorly addressed, in the sources to which tribunals and counsel conventionally turn for procedural guidance: the arbitration agreement, the lex arbitri and rules of procedure. This book brings together the most frequently recurring of such "twilight" issues--so-called because all participants in the arbitral process, when facing them, find themselves "in the dark"--showing in each case where it is best for arbitrators, counsel, and parties to look for solutions offering logic, certainty and predictability.The issues ably covered by the author include, among others, the following:Is a non-signatory bound by or entitled to invoke an arbitration agreement?When may res judicata or collateral estoppel subject?Should a tribunal issue an anti-suit injunction?When may a tribunal treat as mandatory a law other than the chosen one?On what basis may a witness invoke testimonial privilege?When may a tribunal sanction counsel for what it considers misconduct?By what standards is a determination of corruption to be made?How should a tribunal determine the interest rate applicable to an award?On what basis are costs to be allocated?Examining in turn the guidance that may be provided by normative sources--national law (and if so, which one?), simple exercise of good judgment, or "international standards" derived from soft law, arbitral jurisprudence, international law, and scholarly and professional commentary--the analysis clearly shows how, when conventional sources of legal guidance are unavailing, decisions on important matters of arbitral practice and procedure are best made. The book will prove of major relevance and value to any and all stakeholders in the international arbitral process, whether commercial or investor-state.

Contents:

Intro

Half-Title Page

Title Page

Copyright Page

Table of Contents

Foreword

Acknowledgments

Part I Normative and Non-normative Sources

Chapter 1 Introduction

I "Twilight Issues"

II The Absence of Forum Law

III Normative and Non-normative Options

Chapter 2 Normative Sources for Twilight Issues

I Choice of Law: Substantive and Procedural Issues

II Choice of Applicable Law as Choice of Procedure

III Normative Sources on Matters of Arbitral Practice

A National Law

1 The Law Giving Rise to the Cause of Action

2 The Law of the Seat

3 The Law of the Place of Probable Enforcement

4 The Law Indicated by a Choice-of-Law Methodology

B International Standards

IV Non-normative Sources: Arbitrator Good Judgment

Chapter 3 Matching Twilight Issues with National Law

I The Law Giving Rise to the Cause of Action (Lex Causae)

A Waiver of the Right to Arbitrate

B Arbitrability

C Interest

D Statutes of Limitation

II The Law of the Seat

A Arbitrability

B Application of the Non-chosen Law

C Non-signatories

III The Law of the Place of Probable Enforcement

B Application of a Non-chosen Law

IV The Law Having the Closest Connection with or Greatest Interest in the Issue

A Non-signatories

B Privilege

C Collateral Estoppel

Chapter 4 The Exercise of Arbitrator Good Judgment

I Satisfaction of Conditions Precedent

II Allocation of Costs

III International Anti-suit Injunctions

IV Sanctioning of Counsel

Part II International Standards as a Normative Source

Chapter 5 Introduction

I The Promise of International Standards

II What Constitutes an International Standard?

III The Shape of International Standards

IV Normative Sources of International Standards.

Chapter 6 "Soft Law" as Source of International Standards

I Soft Law: Strengths and Weaknesses

II Soft Law Fields

A Discovery

C Interim Relief

D Res Judicata

E Arbitrability

III Institutional Rules, Notes, and Guidelines

A Use of Tribunal Secretaries

B Conduct of Remote Hearings

Chapter 7 Arbitral Jurisprudence as Source of International Standards

I Arbitral Case Law: Strengths and Weaknesses

A Res Judicata

B Lis Pendens

II Arbitral Case Law as a Work in Progress

III Arbitral Case Law: Normative Variations

IV Unrecorded Arbitral Practice

Chapter 8 International Law as Source of International Standards

I International Agreements

II Customary International Law

III General Principles of Law

A Due Process and Burden of Proof

B Res Judicata and Lis Pendens

C Corruption

Chapter 9 Scholarly and Professional Commentary as Source of International Standards

I Arbitration Scholarship

II Professional Commentary

A Allocation of Costs

B Iura Novit Curia

Chapter 10 Conclusion

Index

Series.

Notes:

Description based on publisher supplied metadata and other sources.

Part of the metadata in this record was created by AI, based on the text of the resource.

Other Format:

Print version: Bermann, George Twilight Issues in International Arbitration

ISBN:

9789403510866

OCLC:

1374425888