International Commercial Arbitration Practice: 21st Century Perspectives

This collective work, co-edited by Horacio A. Grigera Naon and Paul E. Mason, captures the development of ICA from different perspectives and uniquely brings together the ideas, suggestions and perspectives of in-house counsel as the most important users of ICA, along with outside counsel, arbitrators themselves, and major arbitration organizations who all help provide the service.

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The scope and importance of International Commercial Arbitration (ICA) has expanded exponentially in the last few decades and has become the natural and logical method to resolve international business and economic disputes. This collective work captures the development of ICA from different perspectives and uniquely brings together the ideas, suggestions and perspectives of in-house counsel as the most important users of ICA, along with outside counsel, arbitrators themselves, and major arbitration organizations who all help provide the service. Most, if not all, of the contributing authors have served as counsel or arbitrator in arbitrations and have further contributed, through their writings, teachings or activities in arbitral and other institutions, to the evolution of ICA covered by this collective work. Accordingly, International Commercial Arbitration Practice: 21st Century Perspectives is an indispensable tool for the reader—practitioner, arbitrator, academic, magistrate or student—not only to obtain useful general information on ICA practice today, but especially and uniquely, to gain insightful views as to the influence of arbitration in the settlement of international commercial disputes in specific economic sectors, industries, and areas of economic and legal activity. International Commercial Arbitration Practice: 21st Century Perspectives brings the process alive and provides the reader with a useful practice guide whether he or she represents a client participating in an international commercial arbitration, is in-house counsel for a company considering arbitration as a possible method of dispute resolution, or is an arbitrator with cases at hand.

The book is organized in five Parts which contain thematically related chapters. Part I deals with an overview of key elements in ICA practice, and includes chapters on institutional and ad hoc arbitration; how arbitration is conducted under different legal systems such as common law, civil law, and Shari’a law; damages in ICA (both the legal and quantum aspects); corruption of arbitrators; and a chapter on cultural issues in international arbitration.

Part II contains geographical regional overviews covering most regions of the world: Western Europe, Central and Eastern Europe, Russia/NIS countries, Asia (including China and Hong Kong, Japan, Korea, and the Indian Subcontinent), Middle East and North Africa, Latin America/Caribbean, the U.S., Canada, and Australia & New Zealand. In 2016, we expanded the geographical scope of the publication to cover Singapore, reflecting that country’s increasing importance as a venue for international commercial arbitration. As was done in the book’s first release in 2010 where most chapters included sections on the impact of the worldwide financial crisis of 2008, many regional chapters in our 2020 release contain sections on the impact of the COVID-19 pandemic on ICA there.

Part III includes individual industry sector views of how ICA is conducted in individual industry and business sectors such as oil & gas, LNG, mining, construction, telecommunications, satellite communications, intellectual property, sports, banking and finance, insurance and reinsurance, securities, shipping and maritime, corporate shareholder, and bankruptcy settings. These chapters are highly instructive because many of them were written by current or former in-house counsel in these industries or, in some cases, by outside counsel who focus on these industries.

Part IV of the book describes recent trends at several major global commercial arbitration institutions such as the ICC, ICDR, LCIA, CPR and WIPO. In recent years, we added coverage of the Hong Kong International Arbitration Centre (HKIAC) and Beijing Arbitration Commission, reflecting the increasing significance of these institutions in the arbitration of commercial disputes in the Asia Pacific region, particularly China. Since that time, new chapters have been added written by institutional representatives from Delos, JAMS, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the Singapore International Arbitration Centre (SIAC), the Swiss Rules of International Arbitration, and the Vienna International Arbitration Centre (VIAC). A chapter on the Silicon Valley Arbitration and Mediation Center (SVAMC) forms a perfect bridge between Part IV of the book and Part V dealing with ICA and Technology.

Part V deals with questions of how technology has been changing ICA practice in recent years, including chapters relating to the use of technology by some of the major arbitral institutions, videoconferencing in ICA, and online arbitration of internet domain name and e-commerce cases.

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Table of Contents

PART I INTERNATIONAL COMMERCIAL ARBITRATION PRACTICE: FUNDAMENTAL ISSUES FROM THE ARBITRATOR PERSPECTIVE
CHAPTER 1 Institutional and Ad Hoc Arbitrations: The Role of the Applicable Rules, by Professor Dr. Eugenio Hernandez-Breton
CHAPTER 2 Common and Civil Law Approaches to Procedure: Party and Arbitrator Perspectives, by Michael McIlwrath & Henri Alvarez
CHAPTER 3 Shari’a Law Approaches to Arbitration, by Arif Hyder Ali & Ali Ehassi
CHAPTER 4 Extending the Arbitration Agreement to Non-Signatories, by Professor William W. (“Rusty”) Park
CHAPTER 5 Corruption of Arbitrators, by Carlo Santoro & Larisa Babiy
CHAPTER 6 Cultural Issues in International Arbitration, by Dr. Shahla Ali
CHAPTER 6A Legal Bases for Damages, by Catherine Amirfar
CHAPTER 6B Quantification of Damages, by Kathleen Paisley

PART II REGIONAL OVERVIEWS OF INTERNATIONAL COMMERCIAL ARBITRATION PRACTICE
CHAPTER 7 International Commercial Arbitration Practice in Western Europe, by Yves Derains; updated by Duarte Henriques & Joana Albuquerque
CHAPTER 8 International Commercial Arbitration Practice in Latin America/Caribbean, by Paul E. Mason, Roque J. Caivano & Mauricio Gomm F. dos Santos
CHAPTER 8A International Commercial Arbitration Practice in the Sub-Saharan African Region, by Kwadwo Sarkodie & Marcelo de Souza Richter
CHAPTER 9 International Commercial Arbitration Practice in the People’s Republic of China and the Hong Kong Special Administrative Region—Implementing the “One Country Two Systems” Policy, by Sally Harpole
CHAPTER 10 Arbitration in Central and Eastern Europe, by Dr. Alexander J. Belohlavek; updated by Davor Babić & Dora Zgrabljić Rotar
CHAPTER 10A International Commercial Arbitration Practice in Austria, by Dr. Nikolaus Pitkowitz
CHAPTER 11 International Commercial Arbitration Practice in the South Asia Region, by Ashwinie Kumar Bansal & Abhishek Kumar Bansal
CHAPTER 12 International Commercial Arbitration Practice in the Russian Federation, by Glenn P. Hendrix & Ilya V. Nikiforov
CHAPTER 13 International Commercial Arbitration Practice in Canada, by Henri Alvarez, Q.C., & Tina Cicchetti
CHAPTER 14 International Commercial Arbitration Practice in the United States, by Richard L. Williamson, John H. Rooney, Jr., Judith A. Freeberg, and Sandra Friedrich
CHAPTER 15 International Commercial Arbitration Practice in Australia, New Zealand, and the Pacific Islands, by Cameron Hassall and Polly Pope
CHAPTER 16 International Commercial Arbitration Practice in the Middle East and North Africa, by Raza Mithani
CHAPTER 17 International Commercial Arbitration Practice in Japan, by Yoshiaki Muto, Takeshi Yoshida, and Dominic Sharman
CHAPTER 18 International Commercial Arbitration Practice in Korea, by Professor Joongi Kim
CHAPTER 18A International Commercial Arbitration Practice in Singapore, by Nish Shetty

PART III INTERNATIONAL COMMERCIAL ARBITRATION IN THE MAJOR SECTORS OF COMMERCE AND INVESTMENT: ARBITRATOR, IN-HOUSE AND OUTSIDE COUNSEL PERSPECTIVES
CHAPTER 19 International Arbitration—Brazil Oil and Gas: In-House Counsel Perspective, by Carolos Cesar Borromeu de Andrade
CHAPTER 20 [RESERVED]
CHAPTER 21 International Arbitration—Venezuela Oil and Gas: Arbitrator Perspective, by J. Eloy Anzola
CHAPTER 22 International Arbitration—Russia/CIS Countries Oil and Gas: Outside Counsel Perspective, by Evgeny Raschevsky & Olga Tsvetkova (Vishnevskaya)
CHAPTER 23 [RESERVED]
CHAPTER 24 International Arbitration—Liquefied Natural Gas [LNG]: Outside Counsel Perspective, by Jonathan Sutcliffe & James Rogers
CHAPTER 25 International Arbitration—Construction: Outside and In-House Counsel Perspectives, by Stephen D. Butler & George Anthony (“Tony”) Smith
CHAPTER 26 International Arbitration—Mining: Outside and In-House Counsel Perspectives, by Pedro Freitas
CHAPTER 27 International Arbitration—Agricultural Commodities: Outside Counsel Perspective, by Luiz Cesar Aschermann Correa & Hernany Veytia
CHAPTER 28 International Arbitration—Shipping and Maritime: Outside Counsel Perspective, by Graham Harris & Michael Davar
CHAPTER 29 International Arbitration—Banking and Finance: Outside Counsel Perspective, by Matthew Kirtland & Borzu Sabahi
CHAPTER 30 International Arbitration—Securities: Outside Counsel Perspective, by Madeline Eppenstein & Theodore G. Eppenstein
CHAPTER 31 International Arbitration—Insurance and Reinsurance (London Market): Outside Counsel Perspective, by Celso de Azevedo
CHAPTER 32 International Arbitration in Project Finance Transactions, by Alden L. Atkins
CHAPTER 33 International Arbitration—Corporate Shareholder Disputes: Outside Counsel Perspective, by Joaquim de Paiva Muniz
CHAPTER 34 International Arbitration—Bankruptcy Disputes: Outside Counsel Perspective, by Arnoldo Wald & Rodrigo Garcia da Fonseca, with the collaboration of Maira de Melo Vieira
CHAPTER 35 International Arbitration—Intellectual Property Disputes: Arbitrator Perspective, by David W. Plant
CHAPTER 36 Agreements to Arbitrate Intellectual Property and Technology Disputes: Arbitrator Perspective, by M. Scott Donahey
CHAPTER 37 International Arbitration—Telecommunications: Outside Counsel Perspective, by Daniel E. Gonzalez, Maria Eugenia Ramirez & Orlando Cabrera
CHAPTER 38 [RESERVED]
CHAPTER 39 International Arbitration—Satellite Communications: Arbitrator Perspective, by Raymond G. Bender, Jr.
CHAPTER 40 International Arbitration—Sports: Arbitrator’s Perspective, by Rui Bótica Santos
CHAPTER 41 [RESERVED]
CHAPTER 42 International Franchise Arbitration: Outside Counsel Perspective, by Barry Heller

PART IV REVIEW OF THE MAJOR INTERNATIONAL ARBITRATION ORGANIZATIONS
CHAPTER 43 Review of the International Centre for Dispute Resolution, the International Division of the American Arbitration Association, by Luis M. Martinez & Thomas Ventrone
CHAPTER 43A Review of JAMS’s International Arbitration Practice, by Ranse Howell
CHAPTER 44 Review of the International Court of Arbitration of the International Chamber of Commerce, by Jason Fry & Simon Greenberg
CHAPTER 45 Review of the World Intellectual Property Organization’s Arbitration and Mediation Center, by Ignacio de Castro, Heike Wollgast, and Andrzej Gadkowski
CHAPTER 46 Review of the London Court of International Arbitration: Recent Developments in LCIA Arbitration, by Dr. Jacomijn van Haersolte-van Hof
CHAPTER 47 Review of the International Institute for Conflict Prevention & Resolution, by Helena Tavares Erickson
CHAPTER 48 Review of the Arbitration Institute of the Stockholm Chamber of Commerce, Celeste E. Salinas Quero
CHAPTER 49 Review of the Vienna International Arbitral Centre (VIAC) and the VIAC Rules of Arbitration and Mediation, by Elisabeth Vanas-Metzler
CHAPTER 49A Review of Delos Dispute Resolution, by Hafez Virjee and Ank Santens, with assistance of Suzanne Knijnenburg
CHAPTER 50 Review of the Swiss Rules of International Arbitration and Swiss Rules of Mediation, by Matthias Scherer & Caroline dos Santos
CHAPTER 51 Review of the Hong Kong International Arbitration Centre (HKIAC), by Joe Liu
CHAPTER 51A Review of the Beijing Arbitration Commission (BAC), by Dr. Cheng Fuyong & Zhang Xi
CHAPTERS 51B–51Y [RESERVED]

PART V ARBITRATION AND TECHNOLOGY
CHAPTER 51Z Technology Dispute Resolution: Silicon Valley Arbitration and Mediation Center (SVAMC), by Gary L. Benton
CHAPTER 52 Arbitration Online—Internet Domain Names and E-Commerce, by M. Scott Donahey
CHAPTER 53 Videoconferencing in International Arbitration and Mediation Proceedings, by Paul E. Mason
CHAPTER 54 Use of Technology by a Major International Arbitration Organization—WIPO, by Erik Wilbers & Hee-Eun Kim
CHAPTER 55 Use of Technology by a Major International Arbitration Organization—ICDR, by Luis M. Martinez & Thomas Ventrone
CHAPTER 56 Use of Technology by a Major International Arbitration Organization—ICC, by Jan Heiner Nedden & Laurence Marquis