Debevoise International Arbitration Clause Handbook

165

A model clause and a checklist of issues to consider in drafting

an arbitration clause, with suggested text and commentaries

Includes:

• Updated Debevoise Eciency Protocol (2018)

• Debevoise Protocol to Promote Cybersecurity in International

Arbitration

Debevoise

International Arbitration

Clause Handbook

A model clause and a checklist of issues to consider in drafting

an arbitration clause, with suggested text and commentaries

Includes:

• Updated Debevoise Efficiency Protocol (2018)

• Debevoise Protocol to Promote Cybersecurity in

International Arbitration

Debevoise & Plimpton LLP is offering this Debevoise International Arbitration Clause Handbook

(“Handbook”) for informational purposes only. The Handbook is not intended nor is it to be used as a

substitute for legal advice. This publication is neither a solicitation nor an offer to represent you. The

information provided to you in the Handbook is not intended to create and does not create an

attorney-client relationship with Debevoise or with any lawyer at Debevoise. You may inquire about

legal representation by contacting the appropriate person at Debevoise.

CONTENTS

I. INTRODUCTION ............................................................1

II. MODEL ARBITRATION CLAUSE .......................................5

Annotated Commentary to Model Arbitration Clause ...................5

a. Broad/Narrow ..................................................................... 5

b. Number of Arbitrators ..................................................... 6

c. Rules ..................................................................................... 8

d. Method of Selecting Arbitrators.................................. 11

e. Seat of the Arbitration ................................................... 14

f. Language ........................................................................... 15

g. Finality of the Award...................................................... 15

h. Jurisdiction to Enter Judgment .................................... 18

III. OPTIONAL CLAUSES ................................................... 19

1. Structure of the Arbitration ...................................... 19

a. Negotiation, Conciliation or Mediation .................... 19

b. Split Clauses ...................................................................... 21

c. Multiparty and Multi-contract Transactions ........... 23

i. Selection of Three-Member Tribunal ............... 24

ii. Joinder, Intervention ............................................. 25

iii. Consolidation .......................................................... 30

2. Constitution and Powers of the Tribunal ................... 37

a. Nationality of the Arbitrator(s) ................................... 37

Contents (cont’d)

b. Qualifications of the Arbitrator(s) .............................. 38

c. Independence and Impartiality .................................... 39

d. Jurisdiction to Determine Jurisdiction ....................... 40

e. Freedom to Decide in Equity ........................................ 41

3. Interim Relief ............................................................ 42

a. Provisional Measures ..................................................... 42

b. Emergency Arbitrations ................................................ 45

4. Conduct of the Proceedings ...................................... 46

a. Production of Evidence .................................................. 46

b. Requests for Documents ............................................... 47

c. Electronic Disclosure ...................................................... 50

d. Expert Testimony ............................................................ 51

e. Confidentiality ................................................................. 53

f. Cybersecurity ................................................................... 56

5. Relief ........................................................................ 56

a. Costs ................................................................................... 56

b. Waiver of Punitive or Exemplary Damages .............. 58

c. Interest ............................................................................... 59

d. Time Limit for Issuance of Award .............................. 60

e. Currency of Award .......................................................... 61

6. Finality and Enforcement .......................................... 61

a. Appeal................................................................................. 61

b. Sovereign Immunity ...................................................... 62

c. Forum Non Conveniens ................................................ 64

d. Service of Process ............................................................ 65

e. Submission to National Courts .................................... 66

Contents (cont’d)

iii

7. Particular Procedures................................................ 68

a. Interim Adjudication ...................................................... 68

b. Dispute Boards ................................................................. 69

c. Classwide Arbitration ..................................................... 73

d. Final Offer/Baseball/Pendulum Arbitration ............. 75

Appendix 1 Overview of Arbitral Seats ...................................... 77

General Considerations .................................................. 77

Top Five Seats Generally Recommended ......................... 78

A. New York ................................................................. 79

B. London ..................................................................... 80

C. Paris ........................................................................... 82

D. Singapore ................................................................. 83

E. Hong Kong .............................................................. 84

Other Frequently Used Seats (in alphabetical order

by region) ................................................................. 86

A. Europe and Russia .................................................. 86

1. Geneva or Zurich .............................................. 86

2. The Hague .......................................................... 87

3. Milan ................................................................... 88

4. Moscow or St. Petersburg .............................. 89

5. Stockholm .......................................................... 92

6. Vienna ................................................................. 93

B. Asia and the Pacific Rim ....................................... 94

1. Auckland ............................................................. 94

2. Beijing or Shanghai .......................................... 95

3. Kuala Lumpur.................................................... 98

4. Mumbai or Delhi .............................................. 99

5. Seoul .................................................................. 101

Contents (cont’d)

6. Sydney or Melbourne .................................... 102

7. Tokyo ................................................................ 103

C. Americas ................................................................. 104

1. Bermuda ............................................................ 104

2. British Virgin Islands ..................................... 105

3. Mexico City ...................................................... 106

4. Miami and Other U.S. Seats ......................... 107

5. Santiago de Chile ............................................ 109

6. São Paulo or Rio de Janeiro .......................... 109

7. Toronto ............................................................. 110

D. Africa ....................................................................... 111

1. Casablanca ........................................................ 111

2. Lagos .................................................................. 111

3. Mauritius .......................................................... 112

E. Middle East ............................................................ 113

1. Manama ............................................................ 113

2. Doha .................................................................. 115

3. Dubai International Financial Centre ....... 116

Appendix 2 Overview of Arbitral Rules .................................... 117

Major Institutional Rules ........................................................ 117

International Chamber of Commerce ..................................... 117

London Court of International Arbitration ........................... 119

International Centre for Dispute Resolution ........................ 119

Hong Kong International Arbitration Centre ....................... 120

Singapore International Arbitration Centre .......................... 121

Stockholm Chamber of Commerce ......................................... 122

CPR International Institute for Conflict Prevention

& Resolution ........................................................................... 122

Contents (cont’d)

Ad Hoc Rules ......................................................................... 124

UNCITRAL .................................................................................... 124

CPR International Institute for Conflict Prevention

& Resolution ........................................................................... 125

CIArb Chartered Institute of Arbitrators ............................... 125

Specialized Rules ................................................................... 127

P.R.I.M.E. Finance ........................................................................ 127

World Intellectual Property Organization ............................. 127

Appendix 3 Comparative Table of Major Rules .......................... 129

Appendix 4 Investor-State Contracts ...................................... 141

I. General Considerations .......................................... 141

A. Specificity of Rules .............................................. 141

B. Arbitrator Nationality ......................................... 141

C. Confidentiality and Transparency ................... 142

D. Third-Party Submissions ................................... 143

E. Third-Party Funding ........................................... 144

II. Institutional and Ad Hoc Rules ................................. 144

International Centre for Settlement of Investment

Disputes ................................................................................... 144

UNCITRAL .................................................................................... 150

Permanent Court of Arbitration ............................................... 151

Singapore International Arbitration Centre .......................... 152

Stockholm Chamber of Commerce ......................................... 153

Contents (cont’d)

Appendix 5 Debevoise Efficiency Protocol (2018) ..................... 156

Appendix 6 Debevoise’s Protocol to Promote

Cybersecurity in International Arbitration ................... 162

Debevoise’s Senior International Disputes Team ..................... 165

I. INTRODUCTION

A well-drafted arbitration clause can save costs and time at the

inception of a dispute, facilitate a more efficient arbitration, and even

deter breaches of the agreement by providing an effective dispute

resolution mechanism. An arbitration clause need not be complex to

be effective, but it is prudent to think strategically about the parties’

likely posture in any dispute and how that posture should translate

into an arbitration clause that maximizes the prospect of successful,

efficient dispute resolution.

No single arbitration clause is suitable for all contracts. The drafting

of an arbitration clause for international contracts should be

informed by careful consideration of the nature of the contract, the

parties to the contract, the types of disputes that might be expected

to arise under the contract and the jurisdictions likely to be involved

in any dispute or enforcement procedure. Drafting an appropriate

clause also requires an understanding of any circumstances that may

call for special provisions, such as provisions addressing interim

relief, confidentiality, or joinder and consolidation in a multiparty or

multi-contract dispute.

This publication provides a framework for building a clause that is

suitable to the specific transaction at issue and suggests language to

address some of the common drafting issues that arise in complex

arbitration agreements. This publication is divided into two key

sections:

I. Introduction

(i) the basic model clause, which provides a succinct

arbitration provision that, in one variation or another, will be

sufficient standing alone in a broad range of contracts and

should generally be included in every arbitration agreement;

and

(ii) optional clauses, which may or may not be appropriate for

a given agreement in light of its specific circumstances.

Both sections are accompanied by relevant annotations and

commentary.

In addition, included as appendices to this booklet are:

(i) an overview of frequently considered arbitral seats;

(ii) an overview of major arbitral rules;

(iii) a table comparing the rules of the major institutions;

(iv) specific guidance on arbitration clauses for investor-state

contracts;

(v) Debevoise’s Efficiency Protocol (2018), reflecting our

evolving insights into procedures that can make arbitrations

faster and less costly; and

(vi) Debevoise’s Protocol to Promote Cybersecurity in

International Arbitration, which provides useful guidance for

devising procedures to manage the risk of cybersecurity

threats.

I. Introduction

The model clause, while offering a number of specific options, does

not exhaust all the possible provisions that may be desirable in

particular contracts. This model clause should therefore serve as the

beginning, not the end, of the process of drafting an arbitration

clause.

II. MODEL ARBITRATION CLAUSE

Any dispute, controversy, or claim arising out of, relating to, or in

connection with this contract, including with respect to the

formation, applicability, breach, termination, validity or

enforceability thereof,

shall be resolved by arbitration. The

arbitration shall be conducted by [one or three] arbitrators,

accordance with [identify rules] in effect at the time of the

arbitration,

except as they may be modified herein or by mutual

agreement of the parties. [Method of selection of arbitrators.]

The seat of the arbitration shall be [city, country],

and it shall be

conducted in the [specify] language.

The arbitration award shall

be final and binding on the parties, and the parties undertake to

carry out any award without delay.

Judgment upon the award

may be entered by any court having jurisdiction of the award or

having jurisdiction over the relevant party or its assets.

Annotated Commentary to Model Arbitration Clause

a. Broad/Narrow

In most instances, parties will want to submit all disputes to

arbitration. It is possible however to agree to arbitrate only specific

types or categories of disputes. In that case, the scope of arbitration

should be carefully and precisely delineated in the arbitration clause.

Even with careful drafting, there is a significant risk that when a

dispute arises, one party will claim that the dispute does not fall

within the scope of the arbitration clause. Such a preliminary

dispute will delay and make eventual resolution of the primary

dispute more expensive. For that reason, it is preferable to use a

broad clause as the model text proposes.

II. Model Arbitration Clause

When a narrow arbitration clause is used, the clause should explicitly

state whether the arbitrability of any particular dispute shall be

decided in the first instance, through arbitration or by the courts.

In some instances, arbitration agreements include “split” clauses,

which provide for arbitration or court litigation at a party’s option.

Such clauses must be drafted with caution because they may be

unenforceable in certain jurisdictions. For further information on

split clauses, see Section III.1.b in the Optional Clauses section below.

b. Number of Arbitrators

The decision to select one or three arbitrators depends on the nature

of the contract, the likely amount in dispute, and the complexity of

the potential controversies. Having one arbitrator is less expensive

and generally more expeditious, so it may be preferred for smaller

disputes or disputes raising simple issues. A three-person tribunal

may be appropriate for complex factual and legal issues. A three-

arbitrator panel also provides the parties with more control over the

composition of the tribunal, because each party will normally select

one arbitrator, and the parties will also be able to influence the

selection of the third arbitrator (who serves as chair of the tribunal).

If the dispute is to be heard before a single arbitrator and the parties

cannot agree on the identity of the arbitrator, the administering

institution will ordinarily appoint the arbitrator. For more

information about arbitrator selection methods, see Section II.d

below.

Tribunals of more than three arbitrators are rare. It is never

advisable to select an even number of arbitrators. In fact, the law in

some jurisdictions prohibits the selection of an even number of

arbitrators. These include France and Austria in domestic

arbitrations and the Netherlands, Italy and Egypt more generally

II. Model Arbitration Clause

(see, e.g., French Code of Civil Procedure, Article 1453; Austrian Code

of Civil Procedure, § 586; Netherlands Code of Civil Procedure,

Article 1026(1); Italian Code of Civil Procedure, Article 809; Egyptian

Arbitration Law, Article 15(2)).

Applicable arbitration rules will also contain provisions on the

number of arbitrators in the event that the parties do not specify the

number of arbitrators in their agreement. Some rules provide that

one arbitrator is the default, except that the appointing institution

may appoint three arbitrators if it determines that the dispute

warrants a three-arbitrator tribunal. These include the International

Arbitration Rules of the American Arbitration Association’s )the

“AAA’s”) International Center for Dispute Resolution (the “ICDR

Rules”) (Article 11), the Rules of Arbitration of the International

Chamber of Commerce (the “ICC Rules”) (Article 12(2)), the Rules

of the London Court of International Arbitration (the “LCIA Rules”)

(Article 5.8) and the Singapore International Arbitration Centre

Arbitration Rules (the “SIAC Rules”) (Rule 9.1).

Other sets of rules provide for a default of three arbitrators. These

include the Convention on the Settlement of Investment Disputes

between States and Nationals of Other States (the “ICSID

Convention”) (Article 37(2)(b)) and the United Nations

Commission on International Trade Law Arbitration Rules (the

“UNCITRAL Rules”) (Article 7(1)).

The Hong Kong International Arbitration Centre Administered

Arbitration Rules (the “HKIAC Rules”) (Article 6.1) and the Rules of

the Arbitration Institute of the Stockholm Chamber of Commerce

(the “SCC Rules”) (Article 16.2) have no default and instead provide

that the appointing institution will determine whether one or three

arbitrators should be appointed.

II. Model Arbitration Clause

c. Rules

Appendix 2 in this booklet contains suggested language for selecting

arbitral rules and considerations for choosing among them. In

addition, Appendix 3 contains a table comparing features of the

main sets of arbitral rules. Unless otherwise noted, the versions of

the rules cited throughout this booklet are the versions listed in

Appendix 3. If other rules not mentioned here are being considered

for a particular transaction, it is important to obtain the advice of

experienced international arbitration counsel.

One of the key choices in selecting a set of arbitration rules is

whether to opt for institutional arbitration or ad hoc arbitration. In

institutional arbitration, an arbitral institution provides

administrative assistance with running an arbitration in exchange

for a fee. This can include, for example, facilitating communications

between the parties and the arbitrators, arranging for hearings,

collecting deposits from the parties and paying the arbitrators. In

addition to providing these administrative services, administering

institutions can assist in ensuring that arbitrators do their job

safeguarding the quality of the award.

Ad hoc arbitration requires the parties to attend to the administrative

details of the arbitration themselves. Although ad hoc rules may

provide cost savings in some cases—particularly if the parties are

experienced in international arbitration—the relatively low

administrative fee charged by administering institutions often

provides good value.

Jurisdiction-specific constraints may also apply. For example, ad hoc

arbitrations seated in mainland China generally will not be

recognized under China’s arbitration law. However, the Supreme

People’s Court issued a judicial interpretation in January 2017

II. Model Arbitration Clause

indicating that ad hoc arbitrations may be recognized if the two

parties are both registered in free trade zones and certain other

conditions are satisfied. Nonetheless, the safer course is to choose

institutional arbitration if a party is unable to avoid agreeing to

arbitration in mainland China.

Similarly, in Russia, a recent court decision refusing the

enforcement of an ICC award may call into question enforceability

of arbitration clauses which do not contain a specific reference to an

arbitration institution.

In February 2018, the Arbitrazh (Commercial) Court of Moscow

refused to enforce an ICC award on the ground that, among other

things, the underlying arbitration clause only referred to the Rules of

Arbitration of the International Chamber of Commerce, but did not

specifically identify the ICC International Court of Arbitration itself.

(see Case No. A40-176466/2017). According to the Court, the

language of the arbitration clause did not meet the requirements of

“certainty and enforceability” because it did not evidence the parties’

intention as regards a specific institution for resolution of their

disputes. The decision was upheld by the Arbitrazh (Commercial)

Court of the Moscow District (the Court of Cassation). The Supreme

Court of the Russian Federation affirmed the decision and denied

further leave to appeal.

The ICC has since recommended that, for arbitration agreements

with a Russian or Chinese seat, the arbitration clause should

explicitly refer to disputes being submitted “to the International

Court of Arbitration of the International Chamber of Commerce and

shall be finally settled under the Rules of Arbitration of the

International Chamber of Commerce by one or more arbitrators

II. Model Arbitration Clause

appointed in accordance with the said Rules.”

(see

https://iccwbo.org/dispute-resolution-

services/arbitration/arbitration-clause/).

In selecting rules to govern the arbitration, counsel should consider

whether the client is more likely to be the claimant or the

respondent in any arbitration. Certain rules provide for fee

arrangements that require the claimant to bear more up-front costs.

Also, if there is some possibility that the other party will refuse to

participate in the arbitration, it is important to select one of the

arbitration institutions or ad hoc rules cited in Appendix 2, as each

has rules permitting the arbitration to proceed in the absence of a

party (see, e.g., ICC Rules, Article 6(8); ICDR Rules, Article 26; LCIA

Rules, Article 15.8; UNCITRAL Rules, Article 30; SCC Rules, Article

35; SIAC Rules, Rules 20.9, 27(l); HKIAC Rules, Article 26). These

rules make it easier to commence arbitration in circumstances in

which the other party declines to participate. If the arbitration

clause or the applicable rules do not allow the arbitration to proceed

in the absence of a party, lengthy and costly court proceedings to

compel arbitration may be necessary.

For institutional arbitrations, the ICDR Rules, the ICC Rules or the

LCIA Rules are particularly recommended. These institutions

operate on a global basis, and their rules can be selected for

arbitrations seated anywhere between parties of any nationality in

respect of a dispute in any jurisdiction. A number of major regional

arbitration centers also offer rules that can be used for arbitration

worldwide including the SCC Rules, the SIAC Rules and the HKIAC

Rules.

II. Model Arbitration Clause

Because the major arbitration institutions amend their rules from

time to time, it is generally desirable to select the version of the rules

in effect at the time of the arbitration, except as they may be

modified by mutual agreement of the parties, so that the parties may

take advantage of rule amendments or revisions introduced between

the date the agreement to arbitrate becomes effective and the date

on which a dispute is referred to arbitration under such agreement.

Most rules provide that, in the absence of agreement to the contrary,

the choice of a particular set of rules refers to the rules in effect on

the date of commencement of the arbitration (see, e.g., ICDR Rules,

Article 1.1; ICC Rules, Article 6(1); LCIA Rules, Preamble; SCC Rules,

Preamble; SIAC Rules, Rule 1.2; HKIAC Rules, Article 1.4). Where

the parties wish to adopt the rules in existence at the time of

contracting, they should do so expressly in the arbitration clause.

For ad hoc arbitrations, the Rules for Non-Administered

International Arbitration of the CPR International Institute for

Conflict Prevention & Resolution (“CPR Rules”) or the UNCITRAL

Rules are recommended. Arbitration agreements in investor-State

contracts are discussed further in Appendix 4.

There are potentially significant differences among the major rules,

including on important substantive issues such as waiver of certain

types of damages. See Appendix 3. For these reasons, careful

attention needs to be paid when selecting the applicable rules.

d. Method of Selecting Arbitrators

In most cases, the default method for selecting arbitrators in the

rules is satisfactory, and additional text on the subject in the clause is

unnecessary. For other cases, the variants described below should be

considered. For the appointment of arbitrators in multiparty or

II. Model Arbitration Clause

multi-contract transactions, see Section III.1.c in the Optional

Clauses section below.

The words “except as they may be modified herein or by mutual

agreement of the parties” may be omitted from the clause if the

parties are content to follow the arbitrator selection method in the

selected rules and do not otherwise modify the rules in the

arbitration clause.

In both institutional and ad hoc arbitration, an “appointing authority”

is typically responsible for appointing arbitrators when the parties

fail to nominate them. The appointing authority may also be

responsible for confirming the parties’ nominees or considering

challenges to party-appointed arbitrators. In administered

arbitrations, the arbitration rules usually provide that the

administering institution will act as appointing authority (see, e.g.,

ICDR Rules, Article 12 (ICDR); ICC Rules, Articles 12-15 (ICC

International Court of Arbitration); LCIA Rules, Article 5 (LCIA

Court); SCC Rules, Article 17 (SCC Board of Directors); SIAC Rules,

Rules 9-11 (President of the SIAC Court of Arbitration); HKIAC

Rules, Articles 7, 8 (HKIAC Council)). In UNCITRAL or other ad

hoc arbitrations, the parties should provide for an appointing

authority in the arbitration clause. The ICC International Court of

Arbitration, the ICDR, the LCIA and the Permanent Court of

Arbitration (“PCA”) are most often used as appointing authorities

and are all highly recommended.

II. Model Arbitration Clause

If the parties are not satisfied with the default appointment method

in the applicable rules, the following variants may be considered:

One Arbitrator, Variant 1: Agreement by Parties and Default

Appointment by Arbitration Institution

“The parties agree to seek to reach agreement on the

identity of the sole arbitrator within [30 days] after the

initiation of arbitration. If the parties do not reach

agreement on the sole arbitrator, then [name of

appointing authority] shall appoint the sole arbitrator

within [30 days].”

One Arbitrator, Variant 2: Respondent Chooses from Pre-

selected List

“The parties agree that the sole arbitrator shall be one of

the persons listed on Schedule [x] hereto. Within [30

days] after receiving the request for arbitration, the

respondent shall select one of those persons, and such

person shall serve as arbitrator. In the event such

person is unable to serve, the respondent shall, within

[10 days] after receipt from that person of notice of such

inability, select another person from the list in

Schedule [x] hereto, and such person shall serve as

arbitrator. If necessary, this process shall continue

until the arbitrator is so designated. In the event that

none of the arbitrators listed on Schedule [x] hereto is

able to serve, the sole arbitrator shall be appointed by

[name of institution].”

II. Model Arbitration Clause

Three Arbitrators:

“The claimant shall nominate an arbitrator in its

request for arbitration. The respondent shall nominate

an arbitrator within [30 days] of the receipt of the

request for arbitration. The two arbitrators nominated

by the parties shall nominate a third arbitrator within

[30 days] after the nomination of the later-nominated

arbitrator. The third arbitrator shall act as chair of the

tribunal. If any of the three arbitrators are not

nominated within the time prescribed above, then the

[name of the institution] shall appoint the arbitrator(s).”

e. Seat of the Arbitration

The juridical “seat” of an arbitration is the jurisdiction in which the

arbitration is legally based. This may be different from the location

of any hearings. It may also differ from the law governing the

substance of the contract, which should be specified in addition to

the arbitration clause. The law of the seat (the “lex arbitri”) governs

a number of aspects of the arbitration procedure and the resulting

award. Some considerations regarding selection of a seat are

provided in Appendix 1.

Before selecting a seat of an arbitration, counsel should carefully

review the arbitration law of the proposed seat and the history of

court interference with arbitrations at that seat. Mandatory

procedural rules, if any, of the legal seat of the arbitration cannot be

overcome by agreement of the parties or by rulings of the arbitrators.

In addition, national courts in the country of the seat have the power

to review and potentially set aside awards on grounds specified in

their own national laws. Awards set aside by courts at the seat of the

arbitration may not be enforceable elsewhere. For these reasons, it is

II. Model Arbitration Clause

important to choose a seat where the courts are not likely to hinder

arbitration of disputes and to ensure that the agreement does not

contain provisions inconsistent with the mandatory law of the seat.

f. Language

If the parties are from countries with different languages, it is

important to provide for the language of the arbitration. In the

absence of such a provision, arbitrators will most often select the

language of the contract as the language of the arbitration, but this is

not always the case.

It is advisable to select only one language in most cases. Selecting

more than one language can add to the cost and length of

proceedings because of the need to translate materials and testimony

into both languages.

If a party wishes to make clear that it may submit documents or

witness testimony in a language other than the selected language of

the arbitration, with appropriate translation, the following wording

may be added:

“but either party may submit testimony or documentary

evidence in any other language if it provides [, upon the

request of the other party,] a translation into [specify

language] of any such testimony or documentary

evidence.”

g. Finality of the Award

Although most rules provide that arbitral awards are final and

binding on the parties, it is generally preferable to include this

language as a safeguard. In addition, the following language is

recommended where the law of the seat is uncertain or unduly broad

II. Model Arbitration Clause

as to the grounds for set-aside or challenging the enforcement of

awards:

“The parties waive their right to any form of recourse

based on grounds other than those contained in the

United Nations Convention on the Recognition and

Enforcement of Foreign Arbitral Awards of 1958 insofar

as such waiver can validly be made.”

The United Nations Convention on the Recognition and

Enforcement of Foreign Arbitral Awards (“New York Convention”)

provides that a court may refuse to enforce a foreign or international

arbitral award only on limited grounds, generally focusing on

considerations of basic fairness. The courts of most arbitration-

friendly countries have construed the New York Convention’s

defenses to enforcement narrowly and hold that they represent the

exclusive means for challenging the enforcement of a foreign or

international award.

For arbitrations seated in England & Wales, the Arbitration Act

1996 allows a party to seek judicial determinations of questions of

English law, either during the proceeding or on appeal from the

award. Parties may exclude such determinations by inserting the

following language:

“The parties expressly agree that leave to appeal under

section 69(1) or an application for the determination of

a preliminary point of law under section 45 of the

Arbitration Act 1996 may not be sought with respect to

any question of law arising out of an award or in the

course of the proceedings.”

II. Model Arbitration Clause

Although an express reference to section 69 is not essential, the

exclusion of rights of appeal must be clear. Provisions in the

arbitration agreement that the award shall be “final, conclusive and

binding,” for example, have been held by English courts not to be

sufficient to exclude this right of appeal. Notably, the English courts

have held that an ICC arbitration clause acts as an exclusion clause,

since the ICC Rules state that the parties “have waived their right to

any form of recourse insofar as such waiver can validly be made” (see

ICC Rules, Article 35(6)). The LCIA Rules contain a similar

provision that states “the parties also waive irrevocably their right to

any form of appeal, review or recourse to any state court or other

legal authority, insofar as such waiver shall not be prohibited under

any applicable law” (see LCIA Rules Article 26.8 and also 29.2, which

waives any right of appeal of any determination of the LCIA Court).

Therefore, reference to the LCIA Rules also should be interpreted to

include an agreement to an exclusion clause. The 2010 revision of

the UNCITRAL Rules contains a broad model waiver statement in

its Annex, which should also be effective. Reference to the ICDR

Rules will probably not be considered a waiver, however, because

they do not include such a provision.

National laws at the seat of arbitration may have specific regimes for

set-aside and challenge of awards. Legislation in Russia, for example,

allows the parties to waive the right to challenge an arbitral award in

an institutional arbitration but not an ad hoc arbitration. Where

parties have included such an exclusion in their arbitration

agreement, any application to set aside the award will be dismissed

by the Russian state court. Before agreeing to a provision waiving

any right of recourse against an award, parties should carefully

consider the consequences of giving up all rights to challenge the

award, including on grounds such as corruption of the arbitrators,

lack of fair notice of the proceeding, or lack of jurisdiction.

II. Model Arbitration Clause

h. Jurisdiction to Enter Judgment

The language regarding jurisdiction to enter judgment on the award

is recommended to avoid collateral litigation over the proper venue

for an action to enforce the award.

III. OPTIONAL CLAUSES

In addition to the issues addressed in the commentary above, the

circumstances of each case may also make it appropriate to address

other topics within the arbitration clause. These fall into seven

broad categories, discussed further below.

1. Structure of the Arbitration

a. Negotiation, Conciliation or Mediation

Parties sometimes want to require that arbitration be preceded by

efforts to negotiate a mutually satisfactory result or by conciliation

or mediation. Clauses with these provisions are sometimes called

“tiered” dispute resolution clauses. Negotiation, conciliation, and

mediation may provide a less costly means of resolving a dispute

than arbitration and may also be more effective in preserving a

continuing relationship among the parties than more adversarial

processes.

Including a provision for pre-dispute negotiation, mediation or

conciliation in the contract makes it more likely that the parties will

make use of one of these procedures. In the absence of such a

provision, it may be difficult for either party to suggest resort to one

of these procedures in the midst of a dispute because of the concern

that to do so may signal a weakness in its position. Such procedures

are more likely to be successful if the contract at issue involves an

ongoing project or a relationship between the parties. To further

increase the likelihood of success, it may be advisable to specify that

a senior executive from each party should participate in such

negotiations.

III. Optional Clauses

Clauses imposing a negotiation, mediation or conciliation

requirement should be used with care, however, because they are

subject to abuse by a party wishing to delay arbitration. If such a

provision is included, it is important to include the language below

(starting with “notwithstanding”) to make clear that either party

may commence arbitration at any time or after a short specified time

period for negotiation, conciliation or mediation, to prevent the risk

that the parties will become embroiled in collateral litigation over

whether a party failed to meet a condition precedent to the

arbitration. It is also wise to specify that any disputes about

compliance with such an obligation are themselves subject to

arbitration so that a delaying party does not attempt to litigate the

question in court.

The following language may be used if the parties wish to agree to

mandatory pre-arbitration negotiation, conciliation, or mediation:

“In the event of any dispute, controversy or claim

arising out of, relating to or in connection with this

contract, or the breach, termination or validity thereof,

a party wishing to commence arbitration shall first

serve notice on the proposed respondent(s) that a

dispute has arisen and demand that [negotiation,

conciliation or mediation] commence.”

[Specify procedure of negotiation, conciliation or

mediation.]

“Notwithstanding anything else contained herein, any

party to such [negotiation, conciliation or mediation]

shall have the right to commence arbitration at any

time after the expiration of [30 days] after service of

III. Optional Clauses

such demand for [negotiation, conciliation or mediation]

under this subsection. Any disputes concerning the

propriety of the commencement of the arbitration shall

be finally settled by the arbitral tribunal.”

Many arbitral institutions have published mediation or conciliation

rules and procedures that complement their arbitration rules. Where

this is so, it will generally be advisable to adopt the same institution’s

procedures for mediation. Where this is not possible (e.g., where the

arbitration provision calls for UNCITRAL Rules), the mediation

procedures promulgated by the ICDR, ICC, LCIA and CPR are

preferred.

b. Split Clauses

“Split” or “hybrid” clauses allow one or both parties the right to elect

litigation or arbitration once the dispute has arisen. These clauses

have the advantage of allowing the most appropriate dispute

resolution mechanism to be selected once the nature of the dispute

and the location of the respondent’s assets are actually known.

However, careful consideration needs to be given to the inclusion of

such clauses because in some jurisdictions they are not considered to

be a proper reference to arbitration and are, therefore, invalid. In

other jurisdictions, the validity of split clauses has not yet been

tested. Even if split clauses are confirmed to be valid in the seat of

arbitration, advice should also be sought on their validity in any

jurisdiction of potential enforcement of an award.

Split clauses are of two types: “sole option,” where one party has the

right of election, and “mutual option,” where both parties have the

right of election. Mutual option clauses can be very complex and run

the risk of parallel proceedings if one party elects to arbitrate and the

other elects to litigate.

III. Optional Clauses

If the parties wish to adopt a sole-option provision, the following

language may be used:

“Notwithstanding [the initial arbitration clause], [Party

B] hereby agrees that [Party A], at its sole option and for

its benefit, may choose to submit any such dispute,

controversy or claim to the courts of [jurisdiction], to

the jurisdiction of which for the purposes of such

dispute [Party B] irrevocably submits[, or to any other

court or courts which have jurisdiction to determine such

dispute or claim]. Party A shall exercise this election

promptly. If arbitration has been commenced by [Party

B] at the time that [Party A] chooses to submit the

matter to a court of competent jurisdiction, then such

arbitration shall be discontinued, unless the arbitral

tribunal finds that [Party A]’s election was untimely so

that discontinuing the arbitration would substantially

prejudice [Party B].”

Split clauses are enforceable in England & Wales, Australia, Hong

Kong, and Singapore, among others.

In the United States, split clauses are generally enforced. Sole

option split clauses may be problematic in some situations, as some

courts have found that one-sided arbitration clauses may be

unconscionable or otherwise unenforceable (see, e.g., Bragg v. Linden

Research, Inc., 487 F. Supp. 2d 593, 605-11 (E.D. Pa. 2007) (California

law); Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 939-40 (9th Cir.

2001) (Montana law); and Wolfman v. Herbstritt, 495 N.Y.S.2d 220

(App. Div. 1985) (New York law)).

III. Optional Clauses

In Russia, split clauses that apply symmetrically to both parties are

enforced. Sole-option clauses, however, are valid only if they grant

the choice between arbitration or litigation to the claimant

regardless of which party is the claimant. The Supreme Arbitrazh

(Commercial) Court of the Russian Federation has ruled that clauses

that grant an option only to one party violate the principle of

equality and the adversary nature of the arbitral process (Decision of

Presidium of Supreme Arbitrazh Court No. 1831/12, case No. A40-

49223/11-112-401, June 19, 2012). Recent court practice, however,

suggests that the Russian courts will only strike down the

asymmetric part of the arbitration agreement rather than invalidate

the arbitration agreement as a whole (see, e.g., Ruling of the Supreme

Court of the Russian Federation No. 46-KG16-29, Nov. 29, 2016;

Ruling of the Supreme Court of the Russian Federation No. 310-

EC14-5919, case No. A62-1635/2014, May 27, 2015).

In China, courts have often set aside or refused to enforce an award

arising from an arbitration agreement with a split clause. A 2006

decision from the Supreme People’s Court clarified that while these

clauses are disfavored, it is now incumbent on the respondent to

object to the split clause before the first arbitration hearing is held.

Otherwise, the respondent will be deemed to have accepted

arbitration.

c. Multiparty and Multi-contract Transactions

If a contract has more than two parties, the arbitration clause may

need to be adapted to account for the rights of the three or more

parties. Similarly, if a transaction involves multiple contracts, parties

may adapt the arbitration clause(s) to account for consolidated

proceedings of any disputes arising under the contracts.

III. Optional Clauses

i. Selection of Three-Member Tribunal

If there are more than two contracting parties, individual selection of

arbitrators for a three-member tribunal is impractical. Under most

institutional rules, the institution will appoint all three members

unless all claimants jointly agree on one nomination and all

respondents jointly agree on another (see, e.g., ICC Rules, Articles

12(6)-12(8); ICDR Rules, Article 12(5); LCIA Rules, Article 8.1;

UNCITRAL Rules, Article 10; SCC Rules, Article 17(5); SIAC Rules,

Rule 12.2; HKIAC Rules, Article 8.2).

The parties are free to vary this procedure by agreement. The

following clause may be used where the default rules are

insufficiently precise or are otherwise undesirable:

“(a) If all parties to this arbitration agree that the

alignment of parties as claimants and respondents in

the request for arbitration is correct, or if no party

objects to such alignment within [15 days] after receipt

of the request for arbitration, then each side shall

nominate one arbitrator within [30 days] of receipt of

the request for arbitration. The two arbitrators so

nominated shall nominate the third arbitrator within

[30 days] after the nomination of the later-nominated of

these two arbitrators. The third arbitrator shall act as

chair of the tribunal. If any of the three arbitrators is

not nominated within the time prescribed above, then

[name of the administering institution or appointing

authority] shall appoint that arbitrator.”

“(b) If any one of the parties to this arbitration objects

in writing to the alignment of parties in the request for

arbitration within [15 days] after receipt of the request,

III. Optional Clauses

and if the parties do not agree within [15 days]

thereafter on an alignment of the parties into two sides

each of which shall appoint an arbitrator, then [name of

the administering institution or appointing authority]

shall appoint all three arbitrators.”

In the alternative, the agreement may provide for the immediate

selection of all three arbitrators by the institution:

“If there are more than two parties to an arbitration,

there shall be three arbitrators, who shall be appointed

by [name of the administering institution or appointing

authority].”

ii. Joinder, Intervention

The parties should also consider whether to include a clause allowing

additional contracting parties to be joined to, or voluntarily

intervene in, an existing arbitration proceeding. If they do so, they

should also ensure that all parties who might participate in a dispute

agree to the joinder and intervention provision, even if they are not

all parties to the same contract.

To facilitate joinder and intervention of parties to a number of

related contracts, financing arrangements or funds agreements (e.g.,

a share purchase agreement and associated escrow agreement),

parties may either (i) insert identical arbitration clauses in each

contract that expressly cover disputes under all related agreements

or (ii) draft an umbrella arbitration agreement signed by all parties.

In either case, the arbitration clause should specifically list each of

the agreements that are covered by the joinder and intervention

provisions.

III. Optional Clauses

The following language may be used:

“Any contracting party serving a request for arbitration

or other document in the arbitration containing a claim,

including a notice pursuant to this provision (the

“Notice”), shall send a copy of the Notice to every other

contracting party. Any contracting party named as a

respondent to a claim first set forth in the Notice may

join any other contracting party as a party to the

arbitration to afford that party an opportunity to defend

against the claim or to assert against that party a claim

that is substantially related to the claim set forth in the

Notice. Any contracting party that is not already a party

to the arbitration may intervene as a party to the

arbitration to defend against a claim first set forth in

the Notice or to assert against any other contracting

party a claim that is substantially related to the claim

set forth in the Notice.

Such joinder or intervention shall be made within [30

days] from the receipt of the relevant Notice by a

written notice specifying the joinder or intervention

and setting forth the new claim or defense asserted. If

any party so requests within [30 days] after receipt of

the notice of joinder or intervention, the tribunal shall

decide whether the joinder or intervention is admissible

under the terms of this clause and whether and to what

extent any related arbitration proceedings between

contracting parties shall be discontinued in the interest

of efficiency. The tribunal’s decision shall be binding.

III. Optional Clauses

For the avoidance of doubt, the term “claim” as used in

this clause includes any claim, counterclaim cross-claim,

and any claim by or against a joined or intervening

party.

Any joined or intervening party shall be bound by any

award rendered by the arbitration tribunal even if such

party chooses not to participate in the arbitration

proceedings.”

Where it is possible to join a party after the arbitral tribunal has been

nominated or appointed, it is advisable to provide that the

administering institution shall appoint all three arbitrators as noted

in Section III.1.c.i above. If all arbitrators are appointed by the

administering institution, a joined party cannot later complain that it

was treated unequally in the selection of arbitrators.

Many of the prominent arbitral rules contain provisions for joinder

of third parties but with subtle differences. The HKIAC Rules and

SIAC Rules are the most expansive in this respect, and also uniquely

allow third parties to apply for intervention.

• The HKIAC Rules permit joinder of a third party either

(i) where all parties, including the additional party, expressly

agree (HKIAC Rules, Article 27.1(b); or (ii) without its consent

where that party is prima facie bound by the arbitration

agreement giving rise to the arbitration or by a different

arbitration agreement under the Rules, provided that a common

question of law or fact arises under the arbitration agreements,

the rights to relief claimed are in respect of, or arise out of, the

same transaction or series of related transactions, and the

arbitration agreements are compatible. (HKIAC Rules, Article

III. Optional Clauses

27.1(a)). The HKIAC Rules also give the HKIAC Council power

to join an additional party before the arbitral tribunal is

confirmed (Article 27.1).

• The SIAC Rules similarly allow an additional party to be joined

to the arbitration without its consent by the tribunal, or prior to

the constitution of the tribunal by the SIAC Court, provided that

the additional party appears prima facie to be bound by the

arbitration agreement (see SIAC Rules 7.1(a), 7.8(a)). However,

even a non-party to the arbitration agreement may be joined

with consent of all parties (see SIAC Rules 7.1(b), 7.8(b)).

• The UNCITRAL Rules allow third parties to be joined in some

circumstances, but only if the party to be joined is also a party to

the same arbitration agreement that governs the existing

arbitration. Under the UNCITRAL Rules, the arbitral tribunal

may allow joinder unless it finds that allowing joinder would

prejudice any of the new or existing parties (see UNCITRAL

Rules, Article 17(5)).

• The ICC and ICDR Rules also contain joinder provisions.

However, they do not permit joinder after any arbitrator has

been confirmed or appointed except with the consent of all

parties, including the party to be joined (ICC Rules, Article 7(1);

ICDR Rules, Article 7(1)). At the cost of reduced flexibility, this

avoids the risk that a later-joined party may challenge the award

on the ground that it was unfairly denied an opportunity to

participate in the selection of arbitrators. Under the ICDR Rules,

any jurisdictional issues are referred to the arbitral tribunal once

constituted (ICDR Rules, Articles 7(1) & 19).

• Under the ICC Rules, the ICC Court initially determines

whether (i) all of the arbitration agreements call for the

application of the ICC Rules and (ii) the ICC Court is prima facie

III. Optional Clauses

satisfied that the agreements may be “compatible” and that the

parties may have agreed that their disputes can be determined

together in a single arbitration (ICC Rules, Article 6(4)).

Arbitration agreements are not compatible, for instance, where

they specify different seats of arbitration or different numbers of

arbitrators. If all parties are not signatories to all of the relevant

agreements, the ICC Court will evaluate the nature of the

relationships and may prohibit joinder if the contracts deal with

different legal relationships, even if they are part of the same

economic transaction. For example, the ICC Secretariat has

indicated that the ICC Court will typically not allow joinder in

disputes involving an owner-contractor-subcontractor

relationship without the agreement of all parties, whether

provided at the time of the arbitration or agreed upon in the

arbitration clause itself, because the legal relationships are

usually entirely distinct (see ICC Secretariat Guide Section 3-249).

• Under the SCC Rules, any request for joinder is first considered

by the SCC Board, which may reject the request if it determines

that the SCC manifestly lacks jurisdiction over the dispute

between the parties, including the additional party requested to

be joined (SCC Rules, Articles 13(1)-(6)). If the SCC Board

decides to grant the request for joinder, any jurisdictional issues

are decided by the arbitral tribunal. (SCC Rules, Article 13(7)).

The rules allow for joinder to occur after arbitrators have been

appointed, but if a joined party does not agree to the already

appointed arbitrators, the SCC Board may release the arbitrators

and appoint an entirely new arbitral tribunal unless the parties

agree otherwise (SCC Rules, Article 13(8)).

• Unlike the other major institutional rules discussed above, the

LCIA Rules provide for joinder only with the consent of the

party to be joined and therefore may be less effective than the

III. Optional Clauses

other sets of rules discussed above (see LCIA Rules, Article

22.1(viii) (allowing joinder only where the party to be joined has

consented in writing)). The provision in the LCIA Rules permits

one party to the arbitration, usually the respondent, to add to the

proceeding a party that may or may not have been a signatory to

the contract underlying the dispute, as long as that additional

party agrees even if the other party to the arbitration does not

agree.

• The HKIAC Rules and SIAC Rules are unique among the rules

cited here in that they permit a third party to intervene by

initiating an application for joinder independently of the parties

to the existing arbitration (see HKIAC Rules, Article 27.9; SIAC

Rules, Rules 7.1 and 7.8).

In any case, if the parties wish to provide for joinder or intervention

in circumstances other than those allowed by the selected rules, they

should include in their agreement language that expressly provides

for joinder and intervention as discussed above.

iii. Consolidation

Parties to multiparty or related contracts should also consider

expressly providing for the consolidation of parallel arbitration

proceedings. It may be desirable to do so in addition to the joinder

provision because the two clauses are not necessarily

interchangeable:

• First, the model joinder clause provides for notice of claims to be

provided to all parties to the agreements at issue, while the

model consolidation clause set forth below does not. The

consolidation clause will therefore be most useful to a party that

already has knowledge of the claims and potential claims.

III. Optional Clauses

• Second, the model joinder provision requires tribunal

intervention only if a party objects to the joinder or intervention,

while the model consolidation provision requires tribunal

approval in every case, which could impose additional costs.

• Third, a consolidation provision may be more effective in

avoiding duplication where multiple arbitrations have been

commenced before a joinder provision can be invoked.

Institutional Rules

Many institutional rules, discussed below, have recently been revised

to provide a useful framework for consolidations. See Appendix 2.

The ICDR, ICC, SCC, SIAC and HKIAC Rules all permit

consolidation at the request of any party to any dispute, even in the

absence of consent from all other parties, with some distinctions:

The ICC and the ICDR Rules allow consolidation where (i) the

claims arise under the same arbitration agreement or (ii) the

arbitrations are between the same parties, they relate to claims that

arise in connection with the same legal relationship, and the

arbitration agreements are compatible (ICC Rules, Article 10; ICDR

Rules, Article 8(1)). The SIAC Rules are similar except that the

arbitrations sought to be consolidated need not be between the same

parties (SIAC Rules, Rules 8.1, 8.7).

The HKIAC Rules allow consolidation where (i) the parties agree to

consolidate; (ii) all of the claims arise under the same arbitration

agreement; or (iii) claims made under different arbitration

agreements have a common question of law or fact, the rights to

relief claimed are in respect of, or arise out of, the same transaction

or series of transactions, and the arbitration agreements are

compatible (HKIAC Rules, Article 28.1). The HKIAC Rules also

III. Optional Clauses

expressly permit the commencement of a single arbitration under

this last category (HKIAC Rules, Article 29).

The SCC Rules allow for consolidation at the request of a party if

“(i) the parties agree to consolidate; (ii) all the claims are made under

the same arbitration agreement; or (iii) where the claims are made

under more than one arbitration agreement, the relief sought arises

out of the same transaction or series of transactions” and the

arbitration agreements are compatible (SCC Rules, Article 15).

The LCIA Rules allow a tribunal to consolidate proceedings in two

situations: (i) when the parties agree to consolidation in writing and

when the LCIA Court approves, and (ii) when arbitrations have

commenced, under either the same or compatible arbitration

agreements, between the same parties (LCIA Rules, Articles 22.1(ix)-

(x)). If the tribunal has not yet been constituted, the LCIA Rules

provide the LCIA Court with similar power to order consolidation

(LCIA Rules, Article 22.6).

Under the ICC, SCC and HKIAC Rules, only the relevant

institutional body has the authority to consolidate parallel

arbitrations. The ICDR Rules allow the ICDR to appoint a

consolidation arbitrator to decide on issues of consolidation (ICDR

Rules, Article 8). The SIAC Rules empower the arbitral tribunal to

decide on applications for consolidation, but in the absence of party

consent to the consolidation, consolidation is permitted only if the

same tribunal has been constituted or no tribunal has been

constituted in the other arbitrations (SIAC Rules, Rule 8.7).

The HKIAC and ICDR Rules further provide that once the decision

to consolidate has been made, the parties to all relevant arbitrations

shall be deemed to have waived their right to designate an arbitrator,

III. Optional Clauses

and the HKIAC or, under the ICDR Rules, the appointed

consolidation arbitrator shall instead appoint the arbitral tribunal

(HKIAC Rules, Article 28.8; ICDR Rules, Article 8(6)). The SIAC

Rules contain a similar waiver provision for any party who has not

participated in the constitution of the tribunal (SIAC Rules, Rule

8.12).

In cases where the rules permit consolidation of claims between

different parties, the waiver of the right to appoint a member of the

tribunal avoids the earlier-mentioned issue that a party may

challenge the award on the ground that it was unfairly denied an

opportunity to participate in the selection of arbitrators on an equal

footing with the other parties. Notably, the HKIAC Rules also

provide that the parties waive any objection, on the basis of the

HKIAC’s decision to consolidate, to the validity or enforcement of

any award made by the arbitral tribunal in the consolidated

proceedings, insofar as such waiver can be validly made (HKIAC

Rules, Article 32.2).

Consolidation clauses should be tailored to the particular situation

presented. If selected rules do not satisfactorily provide for

consolidation, the following language may be considered for each

related agreement or as part of an umbrella arbitration agreement

signed by all parties:

“In order to facilitate the comprehensive resolution of

related disputes, and upon request of any party to the

arbitration proceeding, the arbitration tribunal may

consolidate the arbitration proceeding with any other

arbitration proceeding relating to this agreement or to

[related agreements]. The arbitration tribunal shall not

consolidate such arbitrations unless it determines that

III. Optional Clauses

(i) there are issues of fact or law common to the two

proceedings so that a consolidated proceeding would be

more efficient than separate proceedings, and (ii) no

party would be prejudiced as a result of such

consolidation through undue delay or otherwise. In the

event of different rulings on this question by arbitration

tribunal(s) constituted hereunder or under the [the

related agreement(s)], the ruling of the [identify one

panel] shall control.”

As an alternative, if the drafter considers that consolidation may be

undesirable, it may be appropriate to include language providing that

consolidation shall not be made unless parties to all of the disputes

consent. Such a clause would make consolidation significantly less

likely.

National Laws

National laws may also permit or restrict consolidation in certain

circumstances. For example, the arbitration law of the Netherlands

permits, in certain circumstances and unless agreed otherwise, an

arbitration seated in the Netherlands to be consolidated with one or

more other arbitrations seated within or outside the Netherlands

(Article 1046 of the Netherlands Code of Civil Procedure). A request

to consolidate can be granted by the tribunal seated in the

Netherlands at a party’s request even without the consent of the

other party. Consolidation may be ordered only if it does not cause

unreasonable delay in the pending proceedings and where the

arbitral proceedings are so closely connected that good

administration of justice renders it expedient to hear and determine

them together to avoid the risk of irreconcilable decisions resulting

from separate proceedings.

III. Optional Clauses

In a number of jurisdictions in the United States, such as California,

Georgia, Massachusetts and New Jersey, state law permits

consolidation without the consent of all the parties to an arbitration

agreement (see also Section 10 of the Revised Uniform Arbitration

Act, which has been enacted by a number of States). The Federal

Arbitration Act (“FAA”) (Title 9, United States Code) does not

expressly address the issue of consolidation, and courts in the United

States have overwhelmingly held that the FAA does not itself

authorize consolidation of multiple arbitrations in the absence of the

parties’ agreement (e.g., Gov’t of U.K. v. Boeing Co., 998 F.2d 68, 73-74

(2d Cir. 1993), overruled on other grounds by Green Tree Fin. Corp. v.

Bazzle, 539 U.S. 444 (2003); Protective Life Ins. Corp. v. Lincoln Nat'l

Life Ins. Corp., 873 F.2d 281, 282 (11th Cir. 1989)). The availability of

state law procedures in international cases seated in the United

States remains uncertain, and parties should not rely on the

availability or exclusion of such procedures unless expressly specified

in the arbitration clause. See Appendix 1, Section A.4.

Selection of Arbitrator(s)

Unless the parties decide on rules under which consolidation leads to

waiver of the right to designate an arbitrator such as the HKIAC or

ICDR Rules and if consolidation is a real possibility, language should

be included in the agreement providing a procedure for the selection

of arbitrators. Three options for the consolidated proceedings exist.

First, if one contract is primary (e.g., in a construction situation, the

contract between the owner and the general contractor), the parties

can provide that the arbitration tribunal constituted under that

primary contract will be the one to hear the consolidated

proceedings:

III. Optional Clauses

“In the case of a consolidated proceeding, the arbitrators

in the consolidated proceeding shall be the members of

the arbitration tribunal that was first filed pursuant to

[name of primary agreement].”

Second, the parties can provide that the arbitration tribunal in the

first-filed arbitration pursuant to any of a series of related contracts

will be the tribunal for the consolidated arbitration:

“In the case of a consolidated proceeding, the arbitrators

in the consolidated proceeding shall be the arbitration

tribunal that was appointed for the first-filed of the

consolidated proceedings pursuant to any one of this

agreement or [name of related agreements].”

Third, if the arbitration is institutional, the parties can provide that

the institution will appoint all of the arbitrators:

“In the case of a consolidated proceeding, the arbitrators

in the consolidated proceeding shall be appointed by the

[name of the institution] at the request of one of the

disputing parties.”

A 1992 decision of the highest court of France, however, may call

into question the validity of the first two methods for selecting

arbitrators on the ground that they unfairly deny one or more

parties the right to appoint an arbitrator (Siemens AG & BKMI

Industrienlagen GmbH v. Dutco Consortium Constr. Co., Ltd., Cass. 1re

Civ., 7 Jan. 1992, Nos. 89-18.708 & 89-18.726).

III. Optional Clauses

2. Constitution and Powers of the Tribunal

a. Nationality of the Arbitrator(s)

Many arbitration rules contain provisions relevant to the nationality

of arbitrators. Some sets of rules provide that the sole arbitrator or

chair of the tribunal must be of a nationality different from the

parties if the parties are of different nationalities, unless the parties

agree otherwise or fail to object (see LCIA Rules, Article 6; SCC Rules,

Article 17(6); HKIAC Rules, Articles 11.2-11.3). The LCIA rules

further specify that a party’s nationality is deemed to include the

nationality of its controlling shareholder (LCIA Rules, Article 6.2).

Others provide that the appointing authority, when appointing an

arbitrator, should consider the nationality of the arbitrator and the

parties (see ICC Rules, Article 13(1); ICDR Rules, Rule 12(4);

UNCITRAL Rules, Article 6(7)). Depending on the rules adopted,

parties may wish to consider providing that the sole arbitrator or the

chairman of the tribunal must be a citizen of a country other than

those of the parties and, if appropriate, their parent companies or

other controlling interests.

Nationality requirements may implicate antidiscrimination rules in

the country of the seat of arbitration. In England & Wales, however,

the UK Supreme Court has held that arbitrators do not fall within

the definition of persons engaged in employment under a contract

personally to do work, so that appointing parties are not bound by

laws prohibiting discrimination in employment relationships (see

Jivraj v. Hashwani, [2011] UKSC 40).

III. Optional Clauses

By making the nationality requirement subject to the applicable law,

parties may minimize the risk that a nationality provision will be

used to challenge the validity of an arbitration agreement:

“The [sole arbitrator/chair of the tribunal] shall not be a

citizen of either _______ or _______, to the extent the

applicable law permits.”

b. Qualifications of the Arbitrator(s)

In addition, if potential disputes are likely to involve complex

business, legal or technical issues, parties may include in their

agreement a requirement that arbitrators possess specific

qualifications. There are risks associated with adopting this

approach. In particular, overly stringent qualifications may unduly

narrow the pool of potential candidates, making it difficult or

impossible to constitute a tribunal. Parties also should take into

account the possibility that the qualifications may not be appropriate

for every potential dispute that may arise under an agreement.

Administering institutions usually maintain rosters of highly

qualified legal and business experts in a wide range of industries.

This should obviate the need for such a provision in most cases.

Where parties nevertheless wish to specify criteria for arbitrators,

the following language may be used:

“Each arbitrator shall [list qualifications (e.g., “be

admitted to practice law in [the jurisdiction selected by the

choice-of-law clause],” “be an attorney experienced in oil

and gas contracts,” “have a degree in civil engineering,”

“be fluent in both English and Spanish”)]. An arbitrator

shall be deemed to meet these qualifications unless a

III. Optional Clauses

party objects within [20 days] after the arbitrator is

nominated.”

Any qualifications should be carefully and unambiguously drafted to

avoid providing an avenue for a party to delay or frustrate

proceedings by arguing that one or more of the arbitrators does not

meet the criteria. The final sentence of the model language is

important to prevent a losing party from later challenging an award

on the ground that an arbitrator did not meet the necessary

qualifications and thus that the tribunal was not validly constituted.

c. Independence and Impartiality

It is generally accepted that all arbitrators in international

arbitrations should be independent and impartial.

This standard applies to an arbitrator nominated by a party as well as

to a presiding arbitrator and an arbitrator appointed by an institution.

If the chosen rules do not expressly provide for this requirement, it is

desirable to include a provision in the arbitration clause stating:

“The arbitrator[s] shall be impartial and independent.”

The leading international rules and many national laws expressly

impose such a duty and mandate that arbitrators disclose any

circumstances that might give rise to justifiable doubt concerning

their independence or impartiality (see ICC Rules, Articles 11(1)–

11(3), 13(2); ICDR Article 13; LCIA Rules, Articles 5(3),–5(5);

UNCITRAL Rules, Articles 11 and 12(1); SCC Rules, Article 18; SIAC

Rules, Rules 13.1-13.5; HKIAC Rules, Articles 11.1, 11.4). In addition,

the IBA Guidelines on Conflicts of Interest in International

Arbitration (the “IBA Guidelines”) contain general standards of

independence and disclosure that may be applied in the selection,

III. Optional Clauses

appointment and continuing service of an arbitrator. The IBA

Guidelines, as updated in 2014, are widely regarded as embodying

international best practices on arbitrator impartiality and

independence.

d. Jurisdiction to Determine Jurisdiction

It is generally accepted that arbitration tribunals have the authority

to determine their own jurisdiction (sometimes known as

“Kompetenz-Kompetenz” or “compétence de la compétence”). Major

rules generally state this expressly (see, e.g., ICDR Rules, Article

19(1); ICC Rules, Articles 6(3), (9); LCIA Rules, Article 23.1;

UNCITRAL Rules, Article 23(1); SIAC Rules, Rule 28.2; HKIAC

Rules, Article 19.1). When the rules selected do not explicitly so

provide, or if the parties wish to leave no doubt regarding their

intention to invest the tribunal with this authority and thus

minimize the possibility of protracted litigation in courts over this

threshold issue, the following language may be included:

“The arbitral tribunal shall determine the scope of its

own jurisdiction.”

The tribunal’s jurisdiction is generally subject to final review by the

court at the seat of arbitration, and lack of jurisdiction is commonly a

defense to enforcement elsewhere as well. But courts in some

jurisdictions, notably the United States, have treated arbitral

determinations of jurisdiction as final where the applicable rules

state that the arbitral tribunal may determine its own jurisdiction

(see, e.g., Shaw Group Inc. v. Triplefine Int’l Corp., 322 F.3d 115 (2d Cir.

2003)). If parties wish to ensure that they preserve the right to

challenge an award on jurisdictional grounds, they may consider

including language along the following lines:

III. Optional Clauses

“The arbitral tribunal’s authority to determine its own

jurisdiction pursuant to [Rule [x]] does not affect a

competent court’s authority to determine the tribunal’s

jurisdiction on an action to vacate, modify, confirm,

recognize or enforce the arbitration award.”

In Russia, the parties may agree to exclude the right to challenge in

court the arbitral tribunal’s decisions on jurisdiction only if the

arbitration clause provides for institutional arbitration (as opposed

to ad hoc arbitration).

e. Freedom to Decide in Equity

The parties may also authorize the tribunal to decide ex aequo et bono

or as “amiable compositeur.” This empowers the tribunal to award

any remedy or relief which it deems just and equitable without

reference to the law governing the contract and may even allow the

tribunal to modify the contract. In certain industries, such as

reinsurance agreements, there is a practice and custom of

authorizing arbitrators not to apply strict rules of law. The custom

and practice of particular industries may sufficiently guide or

constrain the arbitrators as to make this option a reasonable choice

for contracts in those industries. It may be preferable, however, to

specify the relevant custom and practice as the governing law for

such contracts rather than rely on the inherently ambiguous ex

aequo et bono standard.

The UNCITRAL Model Law, on which many national arbitration

laws are based, and most arbitral rules provide that an arbitral

tribunal shall decide ex aequo et bono or as amiable compositeur only if

expressly authorized to do so by the parties (see UNCITRAL Model

Law, Article 28; ICDR Rules, Article 31; ICC Rules, Article 21; LCIA

Rules, Article 22.4; SIAC Rules, Rule 31; HKIAC Rules, Article 36).

III. Optional Clauses

Courts may set aside or refuse to enforce an award if the arbitral

tribunal decides the dispute ex aequo et bono or as amiables

compositeurs without due authorization. This may be difficult to

establish in practice absent specific circumstances.

The authority to decide ex aequo et bono or as amiable compositeur

does not necessarily vest an arbitrator with unfettered discretion.

Under the UNCITRAL Model Law, even an arbitrator who is

empowered to decide ex aequo et bono or as amiable compositeur must

decide in accordance with the terms of the contract and taking into

account the relevant trade practice (see UNCITRAL Model Law,

Article 28). In Canada, a 2008 decision of the highest court of the

province of Quebec held that an arbitrator acting as amiable

compositeur exceeded his authority by modifying the parties’

agreement (see Holding Tusculum BV v. Louis Dreyfus SAS (Case No

500-05-017680-966), Decision of the Superior Court of Quebec,

Montreal District, December 8, 2008). In addition, certain national

laws may be regarded as mandatory, and the arbitrators may remain

bound to follow them.

3. Interim Relief

a. Provisional Measures

It is generally accepted that the arbitration tribunal may award

interim injunctive relief (see ICC Rules, Article 28; ICDR Rules,

Article 6; LCIA Rules, Article 25; UNCITRAL Rules, Article 26; SCC

Rules, Article 37 & Appendix II; SIAC Rules, Rule 30; HKIAC Rules,

Article 23).

If the applicable arbitration law and rules do not clearly make such

relief available, the following language may be added:

III. Optional Clauses

“In addition to the authority conferred on the

arbitration tribunal by the rules specified above, the

arbitration tribunal shall have the authority to make

orders for interim relief necessary to preserve the

parties’ rights, including pre-arbitration attachments or

injunctions. The parties agree that any ruling by the

arbitration tribunal on interim measures shall be

deemed to be a final award with respect to the subject

matter of the ruling and shall be fully enforceable as

such.”

The availability of interim relief from the tribunal may, however, be

limited by practical considerations, including the time it takes to

constitute an arbitral tribunal and the tribunal’s inability to enforce

injunctive relief on its own. For that reason, the rules of most

arbitration institutions expressly allow parties to seek interim relief

from national courts without waiving their right to arbitrate under

the agreement (see ICC Rules, Article 28(2); ICDR Rules, Article 6(7);

LCIA Rules, Article 25.3; UNCITRAL Rules, Article 26(9); SCC Rules,

Article 37(5); SIAC Rules, Rule 27.1; HKIAC Rules, Article 23.9).

This may be particularly useful if urgent relief is required before the

tribunal is constituted and the rules make no provision for an

emergency arbitrator. Note, however, that after the constitution of

the arbitral tribunal, certain rules only allow parties to seek interim

relief from national courts in limited cases (see ICC Rules, Article

28(2) (“appropriate circumstances”); LCIA Rules, Article 25.3

(“exceptional circumstances” and with the arbitral tribunal’s

authorization SIAC Rules, Rule 30.3 (“exceptional circumstances”),

etc.).

III. Optional Clauses

If no such express provision exists in the chosen rules, parties should

include the following language:

“A request by a party to a court of competent

jurisdiction for interim measures necessary to preserve

the parties’ rights, including pre-arbitration

attachments or injunctions, shall not be deemed

incompatible with, or a waiver of, this agreement to

arbitrate.”

If the parties wish to specify that they retain the right to seek

provisional relief from the courts only until such time as the

arbitrators are able to order provisional relief, the following clause

may be added:

“Either party has the right to apply to any court of

competent jurisdiction for interim relief necessary to

preserve the parties’ rights, including pre-arbitration

attachments or injunctions, until the arbitrators are

appointed. After appointment of the arbitrators, the

arbitrators shall have exclusive jurisdiction to consider

applications for interim relief.”

In addition, the law of the seat may have specific provisions

regarding interim relief. In Russia, the parties may also agree that

before the constitution of the arbitral tribunal, the permanent

arbitral institution can order such interim measures as the

institution deems appropriate. However, orders of arbitral tribunals

or permanent arbitral institutions cannot be enforced by the state

courts (see Article 17 of the Federal Law on Arbitration (Arbitration

Proceedings) (Russian Federation); Article 17 of the Law of the

Russian Federation on International Commercial Arbitration).

III. Optional Clauses

b. Emergency Arbitrations

Several institutional rules provide for the appointment of an

emergency arbitrator to decide applications for interim relief prior to

the appointment of an arbitral tribunal (see ICDR Rules, Article 6;

ICC Rules, Article 29 & App’x V; SCC Rules, App’x II; SIAC Rules,

Rule 30.2, Schedule 1; HKIAC Rules, Article 23.1 & Schedule 4).

Under each of the sets of rules that provide for appointment of an

emergency arbitrator, the parties’ selection of the general arbitration

rules includes access to the emergency arbitrator procedure unless

the parties affirmatively opt out (see, e.g., ICC Rules, Article 29(6)(b);

SIAC Rules, Schedule 1). However, under the ICC, LCIA and

HKIAC Rules, the emergency arbitration provisions are not

applicable to arbitral agreements that entered into force before the

emergency arbitration provisions were added to the rules (see ICC

Rules, Article 29(6)(a); LCIA Rules, Article 9.14; HKIAC Rules,

Article 1.5).

In England & Wales, the High Court recently held that that the

court’s power to grant urgent relief under Section 44(3) of the

Arbitration Act 1996 is curtailed in circumstances where effective

relief could be granted in a timely manner by a tribunal, arbitral

institution or other relevant body (see Gerald Metals SA v Timis [2016]

EWHC 2327 (Ch)). Some commentators have observed that parties

choosing London as their seat might want to opt out of any potential

emergency arbitrator provisions in their chosen rules if they want to

preserve the power of the English courts to grant urgent relief under

Section 44.

Generally, these rules provide that a party with an urgent need for

interim relief can apply to the institution for the appointment of an

emergency arbitrator and that the institution will appoint the

III. Optional Clauses

interim arbitrator within 24 hours. Notice must generally be

provided to the other party. The emergency arbitrator sets the

procedures for a prompt hearing and must issue a decision within a

short time period (see, e.g., ICC Rules, Appendix V, Article 6(4) (15

days); SIAC Rules, Schedule 1, Article 9 (14 days); SCC Rules,

Appendix II, Article 8 (5 days); HKIAC Rules, Schedule 4, Article 12

(14 days)). The ICC Rules provide that the emergency arbitrator’s

decision takes the form of an order rather than an award so that it is

not subject to scrutiny by the ICC Court (ICC Rules, Appendix V,

Article 6(1)), while the ICDR Rules allow for the decision to take

the form of either an order or an award (ICDR Rules, Article 6(4)).

In some jurisdictions an order of an interim arbitrator (as opposed to

an award) may not necessarily be enforceable. If the seat of the

arbitration has adopted the 2006 version of the UNCITRAL Model

Law, the courts of the seat should be able to enforce the decision of

the emergency arbitrator regardless of the form it takes.

Although the parties generally must comply with an emergency

arbitrator’s decision, such a decision generally does not preclude a

subsequently-appointed arbitral tribunal from deciding the issue

differently.

4. Conduct of the Proceedings

a. Production of Evidence

The rules of most arbitration institutions grant tribunals the

authority to prescribe the procedure for obtaining and submitting

evidence (see ICC Rules, Article 25(5); ICDR Rules, Articles 20(3),

20(4), and 20(6); LCIA Rules, Article 22.1(iii)-(vi); UNCITRAL Rules,

Articles 27(3)-(4); SCC Rules, Article 31; SIAC Rules, Rule 27;

HKIAC Rules, Articles 22.2-22.4). Because the rules are typically

III. Optional Clauses

general and do not describe the mechanisms for the taking of

evidence, parties may wish to spell out in the arbitration clause

particular rules governing the exchange of documents, the use of

experts, or the manner in which the hearing is to be conducted.

The IBA Rules on the Taking of Evidence in International

Arbitration (the “IBA Rules”) were updated in 2010 and present

internationally recognized standards, which most parties will find

acceptable. If the parties wish the IBA Rules to govern the

proceeding, they may include the following language in the

arbitration clause:

“The procedures for the taking of evidence shall be

governed by the IBA Rules on the Taking of Evidence in

International Arbitration.”

Alternatively, the parties may wish to include certain provisions of

the IBA Rules and not others. If so, clauses specifically

incorporating the desired provisions can be incorporated in the

arbitration agreement, as discussed in the next two subsections.

b. Requests for Documents

Usually, the rules chosen will address the issue of requests for the

production of documents (see ICC Rules, Articles 25(5), 25(6) &

App’x IV; ICDR Article 20(4); LCIA Rules, Article 22.1(v);

UNCITRAL Rules, Article 27(3); SCC Rules, Articles 31.2 and 31.3;

SIAC Rules, Rule 27(f); HKIAC Rules, Article 22.3). Some of those

rules expressly instruct the tribunal to take into account applicable

principles of privilege (see, e.g., ICDR Rules, Article 22).

The IBA Rules contain provisions that address the production of

documents and valid objections to a production request (Articles 3

III. Optional Clauses

and 9). These provisions provide a good balance between the

narrower civil law approach and the broader common law approach

to document production. Inclusion of these provisions in an

arbitration clause gives the parties to an international arbitration

sufficient advance knowledge of the procedure that will be followed,

of conditions that must be fulfilled before the arbitration tribunal

will issue an order for the production of documents, and of valid

objections to production requests that are available to protect the

legitimate interests of the party from whom documents are

requested. If the parties wish to adopt these procedures, the

following language may be used:

“The procedure for the exchange of documents shall be

governed by Article 3 and Article 9 of the IBA Rules on

the Taking of Evidence in International Arbitration.”

In certain circumstances, it may be advantageous to agree

specifically to more expansive disclosure of documents than is

available under the applicable rules. This may be the case if, for

example, the other party will have possession of most of the

documents relevant to the dispute. The following language may be

used in these circumstances:

“In addition to the authority conferred on the

arbitration tribunal by the rules specified above, the

arbitration tribunal shall have the authority to order

such production of documents as may reasonably be

requested by either party or by the tribunal itself.”

In other circumstances, the parties may wish to preclude any

exchange of documents in order to provide for a more streamlined

III. Optional Clauses

and less costly proceeding. In that case, the following language may

be used:

“The parties agree that they shall have no right to seek

production of documents or any other discovery in the

arbitration proceeding, except that the parties shall

exchange the documents on which they intend to rely.”

Depositions (the taking of oral witness testimony before the hearing)

and interrogatories are rarely permitted or appropriate in

international arbitration. In the unusual event that the drafter

believes that pre-hearing depositions may be necessary to prove a

party’s case, the following language could be added:

“In addition, either party may request a reasonable

number of pre-hearing discovery depositions of party

witnesses.”

Usually, however, none of these provisions should be necessary, and

it is reasonable to rely upon the arbitration tribunal to afford such

discovery and document production as it deems appropriate.

As always, any clause providing for the taking of evidence cannot be

inconsistent with the law of the seat of the arbitration. In particular,

the parties cannot by contract grant the arbitrators authority over

third persons unless that law so allows. The laws of many countries,

including England & Wales, the United States and Hong Kong,

permit courts in limited circumstances to assist arbitrators in

obtaining third-party evidence.

For example, under United States federal law, a U.S. district court

may compel production of evidence from a person found within its

III. Optional Clauses

jurisdiction “for use in a proceeding in a foreign or international

tribunal” (28 U.S.C. § 1782(a)). Such discovery may substantially

increase the cost and burden of an arbitration. U.S. courts have

reached varying conclusions on whether this provision allows courts

to order discovery in support of commercial and investment

arbitration proceedings. To preclude this possibility, the following

language may be added:

“The parties shall not seek discovery for purposes of the

arbitration proceeding under 28 U.S.C. § 1782.”

c. Electronic Disclosure

Technology has changed the way information is stored and

communicated, with the effect of making large caches of electronic

information potentially subject to discovery obligations. A few

arbitration institutions have adopted guidelines that provide for the

management of electronic documents and information, primarily in

an effort to mitigate the associated financial and efficiency burdens,

and the IBA Rules on the Taking of Evidence in International

Arbitration also address the subject. (see AAA/ICDR Guidelines for

Information Disclosure and Exchange in International Arbitration

Proceedings (the “AAA Guidelines”), Articles 4, 20(2); CPR Protocol

on Disclosure of Documents and Presentation of Witnesses in

Commercial Arbitration (the “CPR Protocol”), Section 1(d) &

Schedule 2; IBA Rules, Articles 3(3)(a) and 3(12)(b)).

The IBA Rules include electronic documents within the scope of

their general disclosure framework, which gives tribunals broad

latitude to order the production of relevant evidence while at the

same time encouraging tribunals to conduct the arbitration in an

efficient manner. This includes, for example, ordering parties to

identify in any document request specific files, search terms,

III. Optional Clauses

individuals, or other means of searching for electronic documents in

an efficient and economical manner (see IBA Rules, Article 3(3)(a)).

The AAA Guidelines provide more detailed guidance than the IBA

Rules and call on arbitrators to work towards economic efficiency in

electronic disclosure. The AAA Guidelines also recommend that

arbitrators order testing or other means of narrowing electronic

document requests.

The CPR Protocol takes an even more detailed approach by

providing parties with four “Modes” providing different levels of

disclosure of electronically stored information. The narrowest,

Mode A, provides for disclosure in non-native format only of those

documents presented in support of each parties’ case. The broadest,

Mode D, contemplates full disclosure of electronic evidence

concerning non-privileged matters subject only to general

limitations of reasonableness, duplication, and undue burden.

Modes B and C constrain the scope of disclosure by limiting to

different degrees the number of custodians whose records must be

searched, the time period covered, and the need to access non-

primary sources such as back-up tapes.

If the parties wish to provide in advance for the scope of electronic

discovery, they may reference one of these sets of guidelines in their

arbitration clause.

d. Expert Testimony

While parties frequently appoint their own experts, the appointment

of experts by the arbitration tribunal itself is common in civil law

countries. Most arbitration rules make specific provision for the

arbitration tribunal to appoint its own expert or experts (see ICDR

Rules, Article 25; ICC Rules, Article 25(4); LCIA Rules, Article 21;

III. Optional Clauses

UNCITRAL Rules, Article 29; SCC Rules, Article 34; SIAC Rules,

Rule 26; HKIAC Rules, Article 25).

Depending upon the rules used, there may be some question as to

the parties’ right to examine such expert’s report and to question

such expert on his or her report. If the selected rules do not provide

for tribunal-appointed experts or adequately safeguard the parties’

right to examine such experts, the following clause should be

considered:

“The arbitration tribunal may, at its option, appoint one

or more experts to advise it with respect to any issue in

the arbitration. If any expert is so appointed, the parties

hereto shall have the right to review such expert’s

report(s) to the tribunal and to examine such expert at

an oral hearing.”

The parties may also decide to exclude the tribunal’s right to appoint

experts:

“The arbitration tribunal shall not have the authority to

appoint experts, and Article [x] of the [selected rules]

shall not apply.”

The IBA Rules contain provisions on party-appointed experts

(Article 5) and tribunal-appointed experts (Article 6). The IBA Rules

outline key elements that should be included in expert reports as

well as the various procedural rules by which any expert testimony

may be presented, submitted and considered in the arbitration. The

IBA Rules also contain an option for the tribunal to order meet-and-

confer sessions between party-appointed experts, to narrow the

remaining issues of dispute and increase the efficiency of the arbitral

III. Optional Clauses

proceedings. The IBA Rules provide a good procedural framework

for the handling of expert testimony in arbitral proceedings and the

parties may choose to include those rules in the arbitration

agreement:

“Article[s] 5 [and 6] of the IBA Rules on the Taking of

Evidence in International Arbitration shall apply to

expert testimony.”

e. Confidentiality

Most institutional rules contain a specific provision dealing with

confidentiality, although these vary considerably in detail and scope

and often provide less confidentiality than parties may expect. The

LCIA, SIAC and HKIAC Rules contain fairly comprehensive

confidentiality provisions (see LCIA Rules, Article 30; SIAC Rules,

Rule 39; HKIAC Rules, Article 45). The ICDR Rules and the SCC

Rules, on the other hand, only impose confidentiality obligations on

the tribunal and the institution, not the parties (ICDR Rules, Article

37; SCC Rules, Article 3 & App’x I, Article 9). The ICC Rules permit

the tribunal, upon request of any party, to make orders concerning

the confidentiality of the arbitration (ICC Rules, Article 22(3)).

The approaches of national laws and courts are equally varied. Some

national laws, such as that of Norway, provide that arbitrations are

presumptively not confidential (Norwegian Arbitration Act, Chp. 5,

§1). Others establish a strict duty of confidentiality on the parties as

an implied term of the arbitration agreement or default statutory

rule, qualified by exceptions, which in appropriate circumstances

may be waived by a court. That is the case, for instance, in England

& Wales and New Zealand. Even where laws or rules provide for

confidentiality, however, the contours and scope of that obligation

may not be clear.

III. Optional Clauses

The best way to ensure confidentiality of the arbitration is to include

express language to this effect in the underlying agreement before

any dispute has arisen. In drafting such a clause, a party should

consider whether it will need to disclose the existence of, or details

about, the arbitration in order to enforce its rights or to comply with

other legal obligations. For example, it will need to provide a copy of

the award to the court in an enforcement proceeding. It may also

need to disclose certain information to its insurance carrier or its

auditors, or in public securities filings.

If the contract contains a satisfactory confidentiality provision, the

parties could expressly state that the arbitration and information

disclosed in the arbitration shall be subject to that provision. In

other contracts, the parties will find it useful to include a separate

confidentiality provision in the arbitration clause itself to clarify the

scope of confidentiality or the obligations of parties receiving

confidential information. The following language may be used:

“The parties agree that the arbitration shall be kept

confidential. The existence of the arbitration, any non-

public information provided in the arbitration, and any

submissions, orders or awards made in the arbitration

(together, the “Confidential Information”) shall not be

disclosed to any non-party except the tribunal, the

[name of relevant institution or appointing authority if

applicable], the parties, their counsel, experts, witnesses,

accountants and auditors, insurers and reinsurers, and

any other person necessary to the conduct of the

arbitration.

Notwithstanding the foregoing, a party may disclose

Confidential Information to the extent that disclosure

III. Optional Clauses

may be required to fulfill a legal duty, protect or pursue

a legal right, or enforce or challenge an award in bona

fide legal proceedings. This confidentiality provision

survives termination of the contract and of any

arbitration brought pursuant to the contract.”

The exceptions to confidentiality track those listed in Article 3(13)

of the IBA Rules, which are commonly adopted as guidance. The

parties should consider carefully whether any particular disclosures

should be further subject to more precisely defined or limited

conditions.

In its Note to Parties and Arbitral Tribunals on the Conduct of the

Arbitration under the ICC Rules of Arbitration, effective January 1,

2019, the ICC included an important innovation regarding the

publication of awards. All ICC awards made as from January 1, 2019

may be published, no less than two years after their notification,

unless the parties opt out. The Note adds, however, that if a

confidentiality agreement covers certain aspects of the arbitration or

of the award, publication is subject to the parties’ specific consent.

To avoid any ambiguity, in case of selection of the ICC Rules, the

following sentence may be added at the end of the first paragraph in

the above-proposed language: “The parties do not consent to the

publication of any award.”

Different considerations apply to investor-State arbitration in light

of the public interest in transparency in those kinds of disputes.

Those concerns are discussed in the next subsection and in

Appendix 4.

III. Optional Clauses

f. Cybersecurity

Parties to international arbitrations are increasingly concerned about

the potential impact of cyberattacks. While some arbitral

institutions have adopted best practices and procedures with respect

to protecting data stored within their systems, the main institutional

rules are silent on this issue. As a result, parties may want to

reference best practices for managing cybersecurity threats in the

arbitration clause. Debevoise & Plimpton’s Protocol to Promote

Cybersecurity in International Arbitration is included as Appendix 6

to this publication. The parties may use the following language to

adopt this Protocol:

“The parties agree to follow the Debevoise & Plimpton

Protocol to Promote Cybersecurity in International

Arbitration with respect to the transfer, storage,

disclosure and use of sensitive information, as well as

potential data breaches.”

5. Relief

a. Costs

There are three main approaches to awarding costs: (i) the losing

party bears all or a substantial proportion of the prevailing party’s

costs; (ii) each party bears its own costs; or (iii) costs are awarded in

proportion to the relative success of each claim. In this context,

“costs” typically include not only institutional and arbitrator

expenses but also each party’s attorneys’ fees, experts’ fees and other

expenses. In some situations, indemnity provisions that are separate

from the arbitration clause may have the effect of imposing the

obligation to pay costs on one party or the other.

III. Optional Clauses

If parties do not specify standards of cost allocation in the contract,

arbitration rules typically afford arbitrators wide discretion in

allocating costs and fees between the parties (see ICC Rules, Articles

37 and 38, Appendix III, Article 2; ICDR Rules, Article 34; LCIA

Rules, Article 28; SIAC Rules, Rule 35; HKIAC Rules, Article 34).

The emerging trend has been for arbitral tribunals to award costs to

the prevailing party, although tribunals may also take into account a

party’s conduct throughout the proceedings.

Although the rules of administering institutions almost always

permit an award of costs in the tribunal’s discretion, parties may

choose explicitly to grant arbitrators this authority. They may also

choose to stipulate that the losing party shall bear the costs of the

prevailing party or that each party shall bear its own costs. In those

instances, one of the following variants may be included:

Variant 1: Arbitrators Have Discretion to Apportion Fees and

Expenses

“The arbitrators shall have the power to make an award

allocating the costs and expenses of the arbitration

between the parties, including reasonable legal fees and

other costs of legal representation.”

Variant 2: Losing Party Pays Prevailing Party’s Costs

“The arbitrators shall award to the prevailing party its

costs and expenses of the arbitration, including its

reasonable legal fees and other costs of legal

representation, as determined by the arbitrators.”

III. Optional Clauses

Variant 3: Each Party Bears its Own Costs

“All costs and expenses of the arbitrators and [name the

arbitral institution] shall be borne by the parties equally.

Each party shall bear its own arbitration costs and

expenses, including its legal fees and other costs of legal

representation.”

b. Waiver of Punitive or Exemplary Damages

In some cases, the law governing the parties’ substantive dispute

may permit recovery of punitive or exemplary damages. These

damages, which are meant to punish or deter unconscionable

conduct, are in addition to any damages awarded to compensate the

injured party for its losses.

In 1995, the United States Supreme Court held that arbitrators have

the authority to award punitive damages unless the parties expressly

agree otherwise (see Mastrobuono v. Shearson Lehman Hutton, Inc.,

514 U.S. 52 (1995)). A choice of law clause selecting a substantive

law that permits courts—but not arbitrators—to award punitive

damages, such as New York law, may not be sufficient to preclude an

award of punitive damages in arbitration (see Flintlock Constr. Servs.,

LLC v. Weiss, 991 N.Y.S.2d 408 (App. Div. 2014)). Parties that wish

to preclude the arbitrators from awarding punitive damages are

advised to do so expressly, by including language such as the

following:

“The parties hereto expressly waive and forgo any right

to punitive, exemplary or similar damages as a result of

any controversy or claim arising out of, relating to, or in

connection with this agreement or the breach,

termination or validity thereof.”

III. Optional Clauses

It may be preferable to place this provision in the miscellaneous

provisions of the contract or as part of the governing law clause

rather than in the arbitration clause to preclude any argument that

punitive damages are outside the scope of the arbitrators’ authority

but are otherwise available in a court proceeding instituted for that

sole purpose. Drafters should note, however, that there may be

uncertainty in some jurisdictions as to whether such a pre-dispute

waiver of punitive damages is enforceable.

The ICDR Rules uniquely contain a provision waiving the right to

punitive damages in any arbitration pursuant to those rules unless

the parties provide otherwise in their contract (ICDR Rules, Article

31(5)). The ICC, LCIA, UNCITRAL, SCC, SIAC, and HKIAC Rules

are silent on this issue.

c. Interest

The parties may also consider including a clause that determines the

interest to be awarded. Such clauses may be useful to limit the

arbitrators’ discretion or avoid the possibility that the arbitrators

may apply a statutory interest rate established by national law.

The parties may choose a fixed rate or a rate based on a publicly

available reference rate (such as LIBOR or Euribor). Where

applicable, the tenor (maturity period) of the reference rate (e.g.,

one-week deposits, one-month deposits, etc.) should be indicated as

well.

In the absence of a contrary agreement by the parties, the AAA,

LCIA, and SIAC Rules all allow the tribunal to award interest at any

rate it considers appropriate (see ICDR Rules, Article 31(4); LCIA

Rules, Article 26.4; SIAC Rules, Rule 32(9)). The HKIAC, SCC, and

UNCITRAL Rules are silent on this issue.

III. Optional Clauses

Many jurisdictions do not allow for the compounding of interest,

and some jurisdictions allow the compounding of interest only if the

parties specifically agree to compound interest.

The following language may be used:

“Notwithstanding [applicable law clause], pre-award and

post-award interest shall be awarded at [specify rate

including maturity period]. Interest shall be

compounded [monthly or quarterly].”

d. Time Limit for Issuance of Award

In the interest of efficiency and cost control, the parties may wish to

stipulate that the tribunal’s award must be issued within a specific

time period. The following language may be used:

“The time limit within which the arbitral tribunal must

render its final award is [60 days, six months, etc.]. Such

time limit shall start to run from the later of the date of

the last hearing or the final post-hearing submission.

The tribunal shall inform the parties in writing when it

considers the proceedings closed. [The tribunal may

shorten or extend the time limit pursuant to a joint

request from the parties.]”

When this type of provision is used or when the selected rules

impose similar deadlines, arbitrator candidates should be informed of

those requirements and should commit to adhering to them prior to

their appointment.

III. Optional Clauses

e. Currency of Award

It may sometimes be in the interest of the parties to specify the

currency in which the award should be paid. This can be done

simply by providing that:

“Any award shall be payable in [specify currency].”

The ICDR Rules state that a monetary award shall be in the currency

of the contract unless the tribunal considers another currency more

appropriate (ICDR Rules, Article 31(4)). The LCIA Rules say that an

award may be expressed in any currency unless the parties have

agreed otherwise (LCIA Rules, Article 26.6). The ICC, UNCITRAL,

SCC, SIAC and HKIAC Rules are all silent on the issue.

6. Finality and Enforcement

a. Appeal

One of the major advantages of international arbitration is that an

award is final and binding and may not be annulled except on strictly

limited grounds (see ICC Rules, Article 35.6; ICDR Rules, Article

30(1); LCIA Rules, Article 26.8; UNCITRAL Rules, Article 34(2) &

UNCITRAL Annex, Possible Waiver Statement; SIAC Rules, Rule

32.11; SCC Rules, Article 46; HKIAC Rules, Article 35.2).

In the exceptional circumstance that a party wishes to provide for

appeal of the arbitration award to a second arbitration tribunal, it is

possible to draft such a clause. Such clauses are complex and should

be drafted with caution. One variant is to provide for such an appeal

only if the award exceeds a certain value. Parties may also opt in to

appeals procedures established by arbitral institutions. For example,

the CPR Arbitration Appeal Procedure provides an optional

framework for the appeal of awards rendered in binding arbitrations

III. Optional Clauses

conducted in the United States, whether the underlying arbitration is

governed by the CPR Arbitration Rules or otherwise. Parties may

invoke this procedure by agreement in writing. Similarly, the AAA’s

Optional Appellate Arbitration Rules provide a framework for the

appeal of arbitral awards based on the agreement of the parties.

If the parties want to opt in to one of these procedures, the following

language may be used:

“Either party may appeal a final arbitral award ordered

pursuant to this agreement in accordance with [the

AAA’s Optional Appellate Arbitration Rules/the CPR

Arbitration Appeal Procedure].”

In addition, specific types of recourse to courts beyond the usual

limited grounds for review may be possible. For example, in some

jurisdictions, such as England & Wales and Hong Kong, it may be

possible to appeal to courts on questions of the relevant national law

arising out of awards under certain circumstances (see English

Arbitration Act, section 69, Hong Kong Arbitration Ordinance,

Schedule 2, Section 5). However, clauses providing for remedies

such as this should be thoroughly vetted with counsel

knowledgeable in the applicable law and otherwise approached with

caution, as local-law exceptions and idiosyncrasies abound. For

example, the United States Supreme Court has held that parties may

not by contract expand the grounds for federal court review of

arbitration awards beyond those set forth in the Federal Arbitration

Act (Hall Street Assocs. v. Mattel, Inc., 552 U.S. 576 (2008)).

b. Sovereign Immunity

Claims of sovereign immunity may be asserted not only by a

government and its agencies but also by a company or organization

III. Optional Clauses

owned or controlled by a State. While arbitration clauses generally

effect a waiver of immunity with respect to the arbitration tribunal’s

jurisdiction, they do not necessarily do so with respect to

enforcement by a national court of an award or execution against the

foreign entity’s assets. For the private party to an arbitration

agreement, therefore, it is of particular importance to consider the

inclusion of an explicit waiver of immunity respecting judicial

enforcement.

Such a waiver of execution may be expressed as follows:

“To the fullest extent permitted by law, [State party or

State enterprise] hereby irrevocably waives any claim to

sovereign or any other immunity in regard to any

proceedings to enforce an arbitration award rendered by

a tribunal constituted pursuant to this Agreement,

including without limitation immunity from suit,

immunity from service of process, immunity from

jurisdiction of any court, and immunity of its property

and revenues from execution or from attachment or

sequestration before or after judgment.”

Waivers of sovereign immunity are often construed more narrowly

than the breadth of their words would suggest. For example, under

United States law, a general waiver of immunity does not permit

prejudgment attachment unless the waiver contains specific

language to that effect (see 28 U.S.C. § 1610(d)(1); Reading & Bates

Corp v. NIOC, 478 F. Supp. 724 (S.D.N.Y., 1979); E-System Inc v.

Islamic Republic of Iran, 491 F. Supp. 1294 (N.D. Tex., 1980)). In

addition, regardless of waiver, the law of the enforcing jurisdiction

may not permit execution or attachment against certain State assets.

A State party may wish to draft the waiver clause expressly to

III. Optional Clauses

exclude certain classes of assets that it may regard as essential to its

sovereign operations, such as assets used for diplomatic or military

purposes and assets held by its central bank. A private party, on the

other hand, may seek an express waiver of immunity from

jurisdiction and enforcement by reference to a specific asset, such as

the key asset in a given investment. Specifying an asset in this way

will make it more difficult for the State party to claim that the

private party cannot enforce against the asset.

The ICDR, ICC, LCIA, UNCITRAL, SCC, SIAC and HKIAC Rules are

all silent on the issue of waiver of sovereign immunity.

c. Forum Non Conveniens

In certain common law jurisdictions, most notably in the United

States, a party may raise the forum non conveniens doctrine as a

defense to the recognition or enforcement of a foreign arbitral award.

The forum non conveniens doctrine, which is generally not recognized

in civil law jurisdictions, provides a court with the discretionary

power to dismiss or stay a case if another court is better suited to

hear the dispute.

Prominent commentators have argued that the application of the

forum non conveniens doctrine in the recognition and enforcement of

foreign arbitral awards is contrary to a State’s obligations under the

New York Convention, which provides an exhaustive list of the

acceptable defenses to enforcement. Nevertheless, several lower

court decisions in the United States have dismissed actions to

enforce foreign arbitral awards on the grounds of forum non

conveniens, reasoning that it is allowed under the New York

Convention because it is a procedural rather than substantive rule of

the forum state (see, e.g., Figueiredo Ferraz e Engenharia de Projeto

Ltda v. Repub. of Peru, 665 F.3d 384, 397 (2d Cir. 2011); Melton v. Oy

III. Optional Clauses

Nautor Ab, 161 F.3d 13 (9th Cir. 1998); Monegasque de Reassurances

SAM v. Nak Naftogaz of Ukraine, 158 F. Supp. 2d 377, 383 (S.D.N.Y.

2001); but see TMR Energy Ltd. v. State Property Fund of Ukraine, 411

F.3d 296 (D.C. Cir. 2005) (rejecting application of forum non

conveniens doctrine in proceeding to enforce arbitral award)).

Accordingly, particularly if the parties envision having to enforce a

foreign arbitral award in the United States, the parties may consider

including a provision expressly waiving any defense to the

recognition and enforcement of an arbitral award on forum non

conveniens grounds:

“The Parties hereby irrevocably waive any defense on

the basis of forum non conveniens in any proceedings to

enforce an arbitration award rendered by a tribunal

constituted pursuant to this Agreement.”

d. Service of Process

In actions to enforce an arbitration award, service of process may

become a tricky issue. Service of process outside the jurisdiction

where enforcement is sought may require leave of court or

compliance with a complex mechanism under a treaty, such as the

Inter-American Convention on Letters Rogatory or the Hague

Convention on Service of Process. Service through these channels

can prove costly and time consuming, in some cases taking a year or

more.

For that reason, parties may wish to consider including in their

arbitration clause a designated agent for service of process by first-

class mail or courier, with an express waiver of any objection based

on service of process. Such a clause may be expressed as follows:

III. Optional Clauses

“[Party] hereby irrevocably appoints, with respect to

itself and to its assets, [Process Agent] for service of all

pleadings, process, requests for discovery and/or other

papers in connection with any proceedings, wherever

brought, for the recognition and enforcement of any

award resulting from an arbitration brought pursuant to

this clause or any judgment of any jurisdiction resulting

therefrom. Service of process in accordance with this

paragraph may be made by delivering a copy of such

process to [Process Agent] at [address] by hand delivery,

first-class mail or courier, and [Party] irrevocably

authorizes [Process Agent] to accept such service on its

behalf. [Party] hereby waives any objection to service

of process by service on [Process Agent] in accordance

with this paragraph. Nothing in this paragraph limits

the right to serve legal process in any other manner

permitted by law.”

e. Submission to National Courts

It can be useful to select a judicial forum for any necessary court

proceedings ancillary to an arbitration, for example, an action to

compel arbitration or an application for preliminary measures or

court-assisted discovery, particularly if it is not clear that one or both

parties are subject to jurisdiction in a suitable and convenient

jurisdiction. Because it may be necessary to bring ancillary

proceedings in a number of different jurisdictions, the forum

selection clause should be non-exclusive.

“The parties irrevocably submit to the non-exclusive

jurisdiction of the courts of [name of jurisdiction] solely

in respect of any proceeding relating to or in aid of an

arbitration under this agreement, [except that a

III. Optional Clauses

proceeding to vacate or modify the award may be

brought solely in a court having jurisdiction at the seat

of arbitration]. Each party waives and agrees not to

assert as a defense in any such proceeding in the

specified court that the venue is not appropriate or that

the court lacks jurisdiction over any party. Nothing in

this paragraph limits the scope of the parties’ agreement

to arbitrate or the power of the arbitral tribunal to

determine the scope of its own jurisdiction.”

If the specified court is at the seat of arbitration, the bracketed

language at the end of the first sentence should be omitted.

If the parties draft a narrow arbitration clause that does not

encompass all potential disputes arising under an agreement, they

should consider providing an exclusive or non-exclusive forum for

the adjudication of disputes not subject to arbitration. The following

language can be used either independently or in conjunction with

the limited forum selection clause for proceedings ancillary to an

arbitration:

“The parties irrevocably submit to the [exclusive / non-

exclusive] jurisdiction of the courts of [name of

jurisdiction] for the purpose of resolving any dispute,

controversy, or claim arising out of, relating to, or in

connection with this contract that is not subject to

arbitration pursuant to this provision. Each party

waives and agrees not to assert as a defense in any such

action, suit or proceeding in the specified court that the

venue is not appropriate or that the court lacks

jurisdiction over any party.”

III. Optional Clauses

7. Particular Procedures

a. Interim Adjudication

In construction contracts, it is common to have provisions for

adjudication of certain types of disputes that may arise while

construction is ongoing. These provisions aim to facilitate a quicker

resolution than is possible in arbitration and to allow the

construction to proceed where the existence of the dispute could

otherwise suspend the construction work.

Parties also may agree to have a particular issue relevant to their

contract decided by a subject-matter expert. For example, parties

may agree that accounting disputes will be resolved by an accounting

expert or that valuation disputes will be resolved by an investment

banker.

Most commonly, these provisions refer disputes regarding technical

and operational matters arising during construction to an

independent expert or experts for resolution within a predetermined

time frame. Normally, the provisions require final adjudication of

such disputes by the expert, although it is possible to provide for

review of the expert determination in arbitration if the

determination has not become moot by the passage of time. The

following language may be used:

“If a dispute arises as to [specify disputes], such dispute

may be referred by either party for determination by an

expert agreed between and appointed by the Parties.

[Specify expert qualifications, if desired.] If the parties

are unable to agree within [5] days of the referral, the

expert shall be appointed by [name of institution]. The

expert shall have no authority to resolve or determine

III. Optional Clauses

any dispute except for those listed in this paragraph.

The determination of the expert shall be [final and]

binding on the Parties [unless and until an Arbitration

Award issued pursuant to this Agreement modifies or

annuls the determination].”

Two words of caution should be sounded about these interim

adjudication procedures. First, it is important that a clear

differentiation be made between the types of disputes that may be

referred to the interim adjudication procedure and the types of

disputes referable to arbitration. Otherwise, significant delay to the

eventual resolution of the dispute—potentially including litigation

in court—may result from a preliminary disagreement as to the

proper means of resolution. Second, as with clauses that require pre-

arbitration negotiation, conciliation, or mediation, the clause should

be carefully drafted to avoid unintentionally creating an opportunity

for a party to argue that the interim adjudication procedure is a

condition precedent to arbitration if such a result was not intended.

b. Dispute Boards

In large, complex construction projects and in construction matters

likely to give rise to disputes among multiple parties, the contract

may provide for interim dispute resolution by Dispute Review

Boards (“DRBs”) or Dispute Adjudication Boards (“DABs”). These

may be standing boards, which are established at the outset of the

project and remain in place until completion, or ad-hoc boards which

are constituted only when a dispute arises. DRBs are typically

empowered to issue recommendations, which may become binding

only if there is no objection within a specified time, while DABs issue

decisions that are immediately binding unless and until the dispute is

finally resolved in litigation or arbitration.

III. Optional Clauses

Standing DRBs and DABs are costly but may be beneficial for

complex, high-value projects. Anecdotal evidence suggests that the

existence of a DAB or DRB encourages cooperation, enables disputes

to be addressed early, and reduces the incidence of arbitration or

litigation.

The ICC, the American Arbitration Association (“AAA”), and the

International Federation of Consulting Engineers (“FIDIC”), among

others, provide procedures for the appointment and operation of

DRBs and DABs. Most procedures provide that both DRB

recommendations and DAB decisions may be subsequently reviewed

in an arbitration or litigation. General considerations and suggested

language for selecting a set of rules are set forth below.

In general, contracts that provide for a DRB or a DAB should not

provide for mandatory negotiation or mediation before the

DRB/DAB provisions can be invoked. The principal advantage of a

DRB/DAB is its ability to reach a quick resolution. Even limited

periods of mandatory negotiation or mediation before a dispute may

be submitted to the DRB/DAB can be counterproductive.

Contracts that provide for a DRB/DAB should assign all disputes to

the DRB/DAB. This minimizes the likelihood of a protracted dispute

over whether an issue is to be referred to the DRB/DAB or the

arbitral tribunal, which could significantly delay resolution.

Conversely, if the parties identify narrow areas of potential dispute

that they do not want to be decided by the DRB/DAB, those should

be defined explicitly in the contract.

The following sets of rules and procedures may be adopted by

reference:

III. Optional Clauses

• AAA Dispute Resolution Board Specifications, Operating

Procedures, and Hearing Rules and Procedures. The AAA

procedures provide for a Dispute Resolution Board, the decisions

of which (referred to as “Recommendations”) are not binding

but are admissible in a later proceeding unless the parties

otherwise agree. If the parties want to use AAA procedures but

also want to have the Board render a binding decision, it will be

necessary to specify that in the contract. The AAA procedures

set forth detailed timelines for pre-hearing submissions and for

the Board’s decision, including requiring that a Recommendation

be issued within 14 days of the hearing, which will ordinarily be

held at the next site visit after the parties’ initial submissions.

• ICC Dispute Board Rules. The ICC Rules provide three options:

a Dispute Review Board that issues “Recommendations” that

become binding only if no party objects within 30 days; a

Dispute Adjudication Board that issues binding “Decisions”; and

a Combined Dispute Board that may do either, depending on the

circumstances. The parties may provide for review of Decisions

by the ICC before the DAB issues them. ICC Rules provide

timelines for initial submissions, and also require that a Decision

or Recommendation be issued within 90 days of referral of the

dispute, or 120 days if the agreement provides for ICC review.

• FIDIC. FIDIC’s 2017 edition of its contract suite comprises three

standard form construction contracts for different procurement

methods. Under Clause 21 of each of the standard forms, parties

may bring a dispute to a Dispute Avoidance/Adjudication Board

(DAAB), which will issue a reasoned decision within 84 days or

another period of time as agreed upon by the parties. A DAAB’s

decision becomes immediately binding on the parties and must

be put into immediate effect. Either party may serve a “notice

of dissatisfaction” within 28 days of the decision, failing which it

III. Optional Clauses

will become final. If a notice of dissatisfaction is served

timeously, either party may refer the dispute to arbitration. The

DAAB may, if the parties agree, provide informal assistance so as

to resolve any issue or disagreement which has arisen. The

parties are not bound by any such informal advice or assistance.

All three sets of Rules require that a Decision or Recommendation

state the reasons for the decision. It is important to note that the

AAA Rules allow for counsel to attend Board hearings, but unlike the

ICC Rules, they expressly do not permit counsel to participate unless

the Board finds that counsel would be helpful in resolving a

particular dispute.

The following language may be used to incorporate AAA or ICC

dispute board procedures:

“The Parties hereby agree to establish a Dispute

Adjudication Board (“DAB”) [or a Dispute Review Board

(“DRB”)] in accordance with the [select rules] (“Rules”),

except as they may be modified herein or by mutual

agreement of the Parties. During the pendency of the

Project that is the subject of this Agreement, any

Disputes shall be referred to the [DRB/DAB] for

determination.

The [DRB/DAB] will consist of three members, two to

be nominated by each Party, with the third selected by

the two nominated members in consultation with

representatives of the Parties within [30 days] after

execution of this Agreement by the Parties. The third

member shall serve as the Chair. [Party A] hereby

nominates [name and/or title] and [Party B] nominates

III. Optional Clauses

[name and/or title] to serve as members of the

[DRB/DAB]. [If the [DRB/DAB] requires a hearing to

resolve a Dispute, the full board shall be convened to

hear the matter if the amount in controversy exceeds

five hundred thousand dollars ($500,000.00); otherwise,

the Chair will hear the matter alone.]

The decision of the [DRB/DAB] shall be binding on the

Parties during the pendency of the [specify project] and

shall continue to be binding after completion of the

[project] unless and until an Arbitration Award issued

pursuant to Article [X] of this Agreement modifies or

annuls such decision. An arbitration seeking review of

a [DRB/DAB] determination may be commenced only

after completion of the [project]. An arbitration to

compel a Party to comply with a determination of the

[DRB/DAB] may be commenced at any time.

Any costs associated with the [DRB/DAB] shall be split

equally between the Parties, except that the costs of any

arbitration arising from a [DRB/DAB] determination

shall be [allocated as specified in [arbitration

clause]/allocated by the arbitral tribunal/borne by the

losing party.]”

c. Classwide Arbitration

Arbitration on a “class action” basis, where a party seeks to represent

the interests of similarly situated nonparties, is rare in the context of

international business contracts. However, disputes involving bonds

or other securities may raise issues affecting large numbers of parties

that could be resolved on a common basis. If a provision for class

arbitration is desirable, it must be carefully tailored.

III. Optional Clauses

Class claims, where one party seeks to speak for a class of similarly

situated persons on a representative basis, should be distinguished

from multi-party and “mass” claims, where large numbers of

claimants bring individual claims together.

In the United States, classwide arbitration is permissible if the

agreement of the parties so provides. However, a series of decisions

by the Supreme Court has rejected the position that a right to

classwide arbitration can be inferred from silence. In 2010, the

Supreme Court held that parties who have not agreed to class

arbitration may not be compelled to arbitrate on a classwide basis

and that a right to classwide arbitration cannot be inferred where the

arbitration clause is silent on the point (Stolt-Nielsen S.A. v.

AnimalFeeds International Corp., 559 U.S. 662 (2010)). In later cases,

the Supreme Court held that clauses prohibiting classwide

arbitration may not be invalidated on the ground that they are

unconscionable under state law or on the ground that the cost of

arbitrating an individual claim would exceed the potential recovery

(AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); American

Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013)). Several

of the U.S. Courts of Appeals have held that courts, not arbitrators,

must decide the issue of whether an agreement permits class

arbitration unless the parties have clearly and unmistakably referred

the question to the arbitral tribunal (see Dell Webb Communities, Inc.,

v. Carlson, 817 F.3d 867 (4th Cir. 2016); Opalinski v. Robert Half Int’l

Inc., 761 F.3d 326 (3d Cir. 2014); Reed Elsevier, Inc. v. Crockett, 734

F.3d 594 (6th Cir. 2013)).

In the unusual circumstance where classwide arbitration may be

desired, the parties will need to include a clause that clearly and

expressly permits class arbitration. None of the main institutional

rules discussed include a rule on classwide arbitration. Some

III. Optional Clauses

institutions, such as the American Arbitration Association, have

published supplementary rules for use in classwide arbitration that

can be incorporated by reference into an arbitration agreement.

d. Final Offer/Baseball/Pendulum Arbitration

In very specific circumstances, the parties may agree to a “final offer

arbitration,” also known as “baseball arbitration” or “pendulum

arbitration.” Under such a clause, each party submits to the

arbitrator a single proposed amount to be awarded and presents

support for that amount in a summation-style argument. The

arbitrator is then bound to select one of the amounts as the more

appropriate without the authority to diverge from the amounts

proposed by the parties or to select an amount between them. The

amount selected by the arbitrator becomes a binding arbitration

award.

A final offer arbitration clause may be desirable where the parties

expect to dispute only the amount owed and not liability itself. It

may also be agreed upon for a damages phase of a bifurcated

arbitration after liability has already been determined.

The major rules are silent on this issue, so specific contractual

language is required. The following language may be used:

“The parties agree that the arbitration shall be a ‘final

offer arbitration.’ Each party shall submit to the

arbitrator and exchange with each other in advance of

the hearing a single figure representing the amount it

believes should be awarded. The arbitrator shall be

limited to awarding one of the two figures submitted.”

III. Optional Clauses

Final offer arbitration forces the parties to submit figures that are

reasonable in the hope that the arbitrator will choose that figure.

For that reason, the exchange of those figures often facilitates

settlement.

An additional variant on final offer arbitration is known as

“confidential final offer” or “night baseball” arbitration. Under the

rules of confidential final offer arbitration, the parties exchange their

own determinations of the value of the case, but the figures are not

revealed to the arbitrator. The arbitrator will assign a value to the

case, and the parties agree to accept the high or low figure closest to

the arbitrator’s value. If the parties wish to adopt this variant, the

following language may be used:

“The parties agree that the arbitration shall be a

‘confidential final offer arbitration.’ Each party shall

exchange with the other in advance of the hearing a

single figure representing the amount it believes should

be awarded, but these figures shall not be provided to

the arbitrator. The award shall be the figure closest to

the value determined by the arbitrator.”

The advantage of the confidential final offer variant is that the

arbitrator must do more than simply determine the prevailing party.

Thus, the arbitrator is likely to be engaged to a greater degree with

the details of the positions of the parties. On the other hand, for the

same reason, the proceeding may not be as streamlined as under an

ordinary final offer arbitration. Like ordinary final offer arbitration,

confidential final offer arbitration gives both parties the incentive to

present reasonable figures in order to increase the likelihood that

their figure will be closer to the value assigned to the case by the

arbitrator.

Appendix 1

Overview of Arbitral Seats

General Considerations

A. New York Convention. The seat chosen must be within a

State party to the New York Convention to ensure

enforceability in other States that are parties to the

Convention. Each of the seats below is located in a State

party to the New York Convention.

B. Mandatory Procedural Rules. The law of the seat should

permit maximum party autonomy in determining the

procedure of the arbitration. For example, some countries

impose time limits on the length of proceedings. Depending

on the matter in dispute, such time limits could be an

advantage or disadvantage.

C. Judicial Intervention. The law of the seat should limit

opportunity for judicial intervention in the arbitration,

particularly with respect to the merits of the dispute, either

during the conduct of the arbitration or by way of review of

the award.

D. Logistical Considerations. Especially if hearings are taking

place at the seat, the chosen seat should:

1. be geographically convenient;

2. have adequate hearing facilities; and

3. have available an adequate pool of local practitioners

who can support possible ancillary litigation.

Appendix 1 - Overview of Arbitral Seats

It is not essential that either the seat of the arbitration or the

hearing location be in the same place as the administering

authority’s offices, although this can facilitate logistics. The

principal administering bodies routinely administer

arbitrations taking place outside their home cities. In

addition, there are effective rules designed specifically for

non-administered arbitration.

E. Restrictions on Counsel and Arbitrators and Immigration

Restrictions. The law of the forum State should not impose

restrictions, such as nationality requirements, on the parties’

freedom to choose arbitrators or counsel. The immigration

regime and professional regulations for the country should

also not raise any barriers, to the extent possible, to entry or

participation by foreigners as counsel, arbitrators, party

representatives or witnesses. In each of the five generally

recommended seats listed below, attorneys not admitted in

the jurisdiction may represent parties in arbitrations seated

in those jurisdictions.

In 2015, the Chartered Institute of Arbitrators published a set of ten

principles, officially titled the CIArb London Centenary Principles,

aimed at helping parties identify “an effective, efficient and ‘safe’ seat

for the conduct of International Arbitration.” The Principles, which

provide useful guidance on the selection of a seat, can be found on

CIArb’s website at www.ciarb.org.

Top Five Seats Generally Recommended

While the appropriate seat for a particular transaction will be

informed by the circumstances of each case, in our experience five

seats are most frequently considered for international contracts:

Appendix 1 - Overview of Arbitral Seats

New York, London, Paris, Singapore and Hong Kong. The

foregoing section highlights the key considerations for each of these

five seats, some of which may apply to more than one seat.

A. New York

1. The United States has a strong policy favoring

arbitration. Both the Federal Arbitration Act (Title 9 of

the United States Code) and New York’s arbitration law

(Article 75 of the Civil Practice Law and Rules) are

progressive arbitration statutes that recognize party

autonomy, discourage judicial intervention and place

no nationality restrictions on arbitrators or counsel.

2. The AAA, including its international arm, the ICDR, is

headquartered in New York. The ICC also has an office

in New York, and the New York International

Arbitration Centre (“NYIAC”) has hearing facilities in

New York.

3. The New York state court system has designated a

specialized Commercial Division Justice to hear all

proceedings related to international arbitration brought

in New York County. Cases related to international

arbitration may also be heard in the U.S. District Court

for the Southern District of New York, which is the

federal court seated in New York.

Appendix 1 - Overview of Arbitral Seats

4. For any arbitration seated in the United States, the

following language should be included in the

arbitration clause in order to avoid any uncertainty over

the possible application of state law:

“Notwithstanding [the choice of law clause], the

arbitration and this agreement to arbitrate shall

be governed by Title 9 (Arbitration) of the United

States Code.”

5. For an arbitration seated in New York, courts may

vacate an arbitral award based on the grounds listed in

the Federal Arbitration Act, namely, if (i) the award

was procured by corruption, fraud, or undue means;

(ii) the arbitrators were evidently partial or corrupt;

(iii) the arbitrators were guilty of misconduct that

prejudiced a party’s procedural rights; or (iv) the

arbitrators exceeded their powers or so imperfectly

executed them that a mutual, final, and definite award

upon the subject matter was not made.

B. London

1. The Arbitration Act 1996 generally confirms party

autonomy over procedure and specifically notes that

English court procedures need not apply. As discussed

in Section II.g above, sections 45 and 69 of the

Arbitration Act permit judicial determinations and

appeals from awards on points of English law. If

parties intend to exclude such determinations, they

should include express language to this effect.

2. The English courts are widely recognized as being

supportive of arbitration. The Arbitration Act confers

Appendix 1 - Overview of Arbitral Seats

power on the courts (with the permission of the

tribunal or agreement of the parties) to secure the

attendance of witnesses before the tribunal to give oral

testimony or produce documents or other material

evidence. It also provides the courts with the power to

enforce peremptory orders of a tribunal and to make a

wide range of other orders in aid of arbitration.

3. The courts’ power to grant urgent relief under the

Arbitration Act is curtailed where timely and effective

relief could be granted by an arbitral tribunal or

institution.

4. Under the Arbitration Act, an arbitral award may be set

aside if English courts find a lack of substantive

jurisdiction or serious irregularity affecting the tribunal,

proceedings, or the award. Under section 69 of the

Arbitration Act, unless excluded by the parties’

agreement, parties may also appeal a point of English

law if (i) they agree or (ii) obtain the leave of the court.

The court will only grant leave to appeal if (i) the court

is satisfied that the question of law substantially affects

the parties’ rights, (ii) the question is one which the

tribunal had to determine and (iii) the arbitral tribunal’s

decision was either so obviously wrong or addressed a

question of general public importance and was at least

open to serious doubt. The English court must also

find it just and proper in all the circumstances for the

court to determine the legal question.

5. The LCIA is headquartered in London and the

International Dispute Resolution Centre (the “IDRC”)

has hearing facilities in London.

Appendix 1 - Overview of Arbitral Seats

C. Paris

1. The French Code of Civil Procedure guarantees party

autonomy in establishing the procedures applicable to

an international arbitration.

2. In 2011, France undertook a significant reform of its

legislative framework on arbitration, adopting a new

law on arbitration (see Decree No. 2011-48 of Jan. 13,

2011, effective May 1, 2011) with the express purpose

of making France even more arbitration-friendly than

it previously was. The law amended the Code of Civil

Procedure mainly to consolidate and codify well-

established French case law relating to international

arbitration. For example, the Code now makes explicit

the generally accepted principle of severability of the

arbitration agreement, according to which the

arbitration clause remains unaffected even if the

underlying contract is found void (see French Code of

Civil Procedure, Article 1447).

3. Awards are subject to set-aside only on narrow grounds,

such as the improper exercise of jurisdiction by the

arbitrators, an award in excess of the arbitrators’

authority or a violation of international public policy.

4. A notable innovation in the Code was to permit parties

to agree to waive their right to challenge an award (see

French Code of Civil Procedure, Article 1522). The

impact of such a waiver is limited, however, because

parties can still appeal an enforcement order

(ordonnance d’exequatur) on grounds identical to the

grounds for setting aside an award.

Appendix 1 - Overview of Arbitral Seats

5. The ICC, with its International Court of Arbitration,

has its headquarters and hearing facilities in Paris.

D. Singapore

1. Singapore has adopted the UNCITRAL Model Law for

international arbitrations with slight modification in its

International Arbitration Act (“IAA”). When the IAA

was amended in 2012, Singapore reportedly became the

first jurisdiction in the world expressly to extend the

powers of arbitral tribunals to emergency arbitrators.

2. Foreign counsel may conduct arbitrations under the

amended Singapore Legal Profession Act even when

the substantive governing law is Singapore law (see

Legal Profession Act, c. 161, § 35(1)).

3. Case law in Singapore strongly favors arbitration. As

described by the Singapore Court of Appeal, Singapore

has developed an “unequivocal judicial policy of

facilitating and promoting arbitration” (Tjong Very

Sumito v. Antig Investments Pte Ltd [2009] 4 SLR(R) 732

at 28).

4. Singapore law provides only limited grounds for set-

aside of an international arbitral award, which largely

track those set out in Article 34(2) of the UNCITRAL

Model Law. In addition, Section 24 of the International

Arbitration Act (Cap. 143A) provides that the

Singapore court may set aside an award if the making of

the award was induced or affected by fraud or

corruption, or a breach of the rules of natural justice

occurred in connection with the making of the award

by which the rights of any party have been prejudiced.

Appendix 1 - Overview of Arbitral Seats

5. In the Civil Law (Amendment) Act 2017, adopted in

January 2017, Singapore confirmed that third-party

funding may be used in international arbitration and

related litigation.

6. SIAC is a popular, experienced regional arbitral

institution. As noted in Appendices 2 and 4 below, the

SIAC Arbitration Rules were recently amended to

include provisions for preliminary dismissal of claims,

multiparty and multi-contract cases and expedited

procedures, and SIAC also has promulgated specific

investment arbitration rules.

7. The SIAC has its headquarters and hearing facilities in

Singapore.

E. Hong Kong

1. Hong Kong remains subject to the New York

Convention by virtue of ratification by the People’s

Republic of China (the “PRC”).

2. In November 2010, Hong Kong enacted a new

Arbitration Ordinance, which went into force on June 1,

2011. This Ordinance is based on the UNCITRAL

Model Law and was adopted with the goal of

promoting Hong Kong as a seat for international

arbitration. Hong Kong has applied a version of the

UNCITRAL Model Law to international arbitrations

since 1990 and has substantial experience with

international arbitration. The 2011 Ordinance more

closely follows the Model Law, including provisions for

interim measures and confidentiality. Significantly, the

new Ordinance also eliminates the distinction between

Appendix 1 - Overview of Arbitral Seats

domestic and international arbitration that existed

under the earlier law.

3. There is no right to set aside of an arbitral award in

Hong Kong based on the merits of the award. Pursuant

to Section 81 of the Arbitration Ordinance (Cap. 609),

which gives effect to Article 34 of the UNCITRAL

Model Law, awards are subject to set-aside only on

limited grounds, such as defects pertaining to the

jurisdiction or constitution of a tribunal, substantial

procedural irregularities, or if the award conflicts with

the public policy of the jurisdiction where the

supervising court is located. The case law also

establishes that, even where a violation of Article 34(2)

of the UNCITRAL Model Law is established, the Hong

Kong court retains a narrow and limited residual

discretion not to set-aside an award.

4. In 1999, Hong Kong and mainland China entered into

an Arrangement Concerning Mutual Enforcement of

Arbitral Awards Between the Mainland and the Hong

Kong Special Administrative Region. That

arrangement allows mutual enforcement of arbitral

awards between Hong Kong and mainland China. On

December 30, 2009, the PRC’s Supreme People’s Court

published a notice confirming that both ad hoc and

institutional arbitration awards made in Hong Kong are

enforceable in mainland PRC.

5. Hong Kong has expressly provided in its Arbitration

Ordinance that restrictions on who can serve as counsel

in court proceedings do not apply also to arbitration. In

June 2017, Hong Kong amended its Arbitration

Appendix 1 - Overview of Arbitral Seats

Ordinance to allow third-party funding for

international arbitration and related court proceedings.

6. The Hong Kong International Arbitration Centre

(“HKIAC”) is experienced in administering

international arbitration. Its Administered Arbitration

Rules were amended effective November 1, 2018.

Other Frequently Used Seats (

in alphabetical order by region

)

A. Europe and Russia

1. Geneva or Zurich

a. The Swiss International Arbitration Law, chapter

12 of the Private International Law Act, took

effect on January 1, 1989. The Act permits parties

to waive the right to set aside an award in limited

circumstances as long as the waiver expressly

invokes Articles 190 and 192 of the Act. In

January 2017, the Swiss Federal Council

submitted potential amendments to the Swiss

International Arbitration Law that would

emphasize party autonomy and clarify the scope

of issues open for international arbitration.

b. Under the Private International Law Act, grounds

for annulment are limited, and setting-aside

proceedings, which are brought directly in the

Federal Supreme Court, only last four months on

average. The Swiss Federal Supreme Court may

annul arbitral awards if (i) the arbitral tribunal

was not properly constituted, (ii) the arbitral

tribunal wrongly accepted or declined jurisdiction,

Appendix 1 - Overview of Arbitral Seats

(iii) the arbitral tribunal’s decision went beyond

or failed to decide the claims submitted to it,

(iv) the principle of equal treatment of the parties

or the parties’ right to be heard was violated or

(v) the award is incompatible with public policy.

c. The Swiss Chambers’ Arbitration Institution is

based in Geneva and is experienced in conducting

international arbitrations under the Swiss Rules

of International Arbitration.

2. The Hague

a. The Dutch Arbitration Act was amended,

effective January 1, 2015, to give parties greater

autonomy in designing arbitration proceedings

and to reduce delay in set-aside and enforcement

proceedings, among other things. Notably,

parties may now agree to refer certain challenge

proceedings to an arbitral institution rather than

to Dutch courts. Annulment proceedings are also

now heard directly by the Court of Appeal, rather

than the district courts, thereby limiting the

duration and complexity of challenges to awards.

If the Court of Appeal finds grounds to set aside

an award, it may remand the matter to the

arbitral tribunal so that the error may be

corrected rather than annulling the award

outright. The new law also creates a legal

framework for so-called “e-arbitration,” in which

pleadings may be submitted and awards rendered

solely in electronic form.

Appendix 1 - Overview of Arbitral Seats

b. Under the Dutch Arbitration Act, an award may

only be set aside on the following grounds:

(i) non-existence of a valid arbitration agreement,

(ii) the arbitral tribunal was composed in

violation of the applicable rules, (iii) the arbitral

tribunal did not comply with its mandate, (iv) the

award was not signed or was not properly or

sufficiently reasoned and (v) the award, or the

manner in which it was made, violates public

policy. Moreover, the ground for setting aside

the award must be sufficiently serious.

c. Several arbitral institutions are located in The

Hague, including the Permanent Court of

Arbitration (“PCA”) (which administers many ad

hoc arbitrations), the Netherlands Arbitration

Institute, and PRIME Finance.

d. The Hague has a long history of international

dispute resolution, including as home to the PCA,

the International Court of Justice, and several

other international tribunals.

3. Milan

a. Italy has adopted rules of arbitration procedure,

codified in Articles 806 to 840 of the Code of Civil

Procedure and last amended in 2006. These

provisions are not based on the UNCITRAL

Model Law, but include similar provisions on

most significant issues.

b. There are only limited grounds for setting aside

an arbitral award under Italian law. There is no

basis for challenging an award solely on its merits.

Appendix 1 - Overview of Arbitral Seats

Challenges to arbitral awards are brought before

the Court of Appeal of the place of the seat of

arbitration.

c. The Milan Chamber of Arbitration (“CAM”) is

often used for the administration of international

arbitration proceedings, and has gained an

international reputation. The CAM Arbitration

Rules entered into force on January 1, 2010.

4. Moscow or St. Petersburg

a. In September 2016 new legislation on arbitration

entered into force in Russia. Among other

changes, the law expands the scope of corporate

disputes that can be arbitrated, explicitly states

the types of disputes that are considered

non-arbitrable, and clarifies that an agreement to

arbitrate may be formed by an exchange of

electronic communications.

b. The new legislation is based predominantly on

the UNCITRAL Model Law and significantly

alters the regulatory framework applicable to

domestic and international arbitration in Russia.

It codifies the rules regarding the arbitrability of

various categories of disputes and introduces

important changes in the regulation of arbitral

institutions administering disputes in Russia. It

also creates more favorable rules with respect to

the form and general treatment of the arbitration

agreements, expressly stipulates the (new) ways

in which Russian state courts can support the

arbitral process, including assisting in obtaining

Appendix 1 - Overview of Arbitral Seats

evidence, and streamlines the process for the

recognition and enforcement of arbitral awards.

c. The new legislation distinguishes sharply

between institutional and ad hoc arbitration. The

benefits of the former are only available if the

arbitral institution obtained a permit to

administer arbitration disputes in Russia as a

permanent arbitral institution. The new

legislation expressly states that the International

Commercial Arbitration Court (“ICAC” or

“MKAS”) and the Maritime Arbitration

Commission at the Chamber of Commerce and

Industry (“MAC”), Russia’s oldest and leading

arbitral institutions, are considered permanent

arbitral institutions by virtue of law and are

exempt from the requirement to obtain a permit.

To date, only two arbitral institutions have

obtained a permit from the Russian Government:

the Arbitration Center at the Russian Union of

Industrialists and Entrepreneurs and the

Arbitration Center at the Institute of Modern

Arbitration. All the aforementioned Russian

permanent arbitral institutions adopted new

arbitration rules allowing them to administer

domestic and international arbitration in order to

comply with the new legislation. It is not clear

whether any foreign arbitral institutions will

apply for, or even obtain, such a permit.

d. Under the reformed arbitration legislation, most

corporate disputes in respect of Russian

companies may only be submitted to

Appendix 1 - Overview of Arbitral Seats

institutional arbitration with the seat in Russia

and must be administered in accordance with the

specialized corporate arbitration rules to be

adopted by eligible arbitral institutions

(general/default arbitration rules of the arbitral

institution will not be suitable for the

administration of corporate disputes). Certain

narrow categories of corporate disputes in respect

of Russian companies, such as corporate disputes

concerning mandatory tender offer procedures in

joint stock companies or exclusion of

shareholders, are deemed non-arbitrable and are

therefore within the exclusive domain of Russian

State courts.

e. Disputes in respect of privatization of State

property and public procurement, including

concession agreements (notably and for the time

being), remain non-arbitrable.

f. The revised arbitration legislation allows the

parties to an institutional arbitration (but not an

ad hoc arbitration) to agree on the finality of the

award or waive the right to apply for the setting

aside of the award or the right to challenge the

tribunal’s decision on jurisdiction before the State

courts.

g. The grounds for setting aside an award under the

Russian arbitration and procedural law are

limited and substantively mirror those under the

UNCITRAL Model Law. Challenges to awards

are heard by the court of first instance (by the

commercial court or the court of general

Appendix 1 - Overview of Arbitral Seats

jurisdiction), and, by default, are to be resolved

within a month. Following the proceedings in the

court of first instance, the court issues a ruling

which enters into force immediately and may be

challenged under cassation procedure rules (a

challenge in appellate proceedings is not possible).

h. In addition, as noted on page 9 above, Russian

courts have refused to enforce an ICC award on

the grounds that the arbitration clause did not

explicitly refer to the ICC International Court of

Arbitration as the relevant institution.

5. Stockholm

a. The Swedish Arbitration Act, which came into

force in 1999, is based on the UNCITRAL Model

Law.

b. Under Swedish law, an arbitration award can only

be challenged on procedural grounds and cannot

be reviewed by a court on the merits. The

Swedish Arbitration Act is currently under

review, and in 2015 a committee issued an

extensive report with suggested revisions to the

Act.

c. The Arbitration Institute of the Stockholm

Chamber of Commerce (“SCC”) is experienced in

administering international arbitrations. As

noted in Appendix 2 below, the SCC Rules were

revised effective January 1, 2017 to include,

among other things, specific provisions for

investor-State disputes and expedited procedures.

Appendix 1 - Overview of Arbitral Seats

d. Sweden has become one of the most frequently

used venues for international commercial

arbitration in recent years, with the SCC

administering more than 200 arbitrations each

year.

6. Vienna

a. The Austrian Arbitration Act, adopted in 2006, is

based largely on the UNCITRAL Model Law. In

contrast to the UNCITRAL Model Law, the

Austrian Arbitration Act draws no distinctions

between domestic and international arbitrations

or between commercial and non-commercial

disputes.

b. The Austrian Code of Civil Procedure provides

for a limited set of grounds that permit a party to

challenge an arbitral award of a tribunal seated in

Austria before the Austrian Supreme Court,

which is the only instance in these matters (with

very limited exceptions).

c. The grounds largely mirror those in Article 34 of

the UNCITRAL Model Law, but for two grounds

specifically rooted in Austrian law: (i) if the

award is either based on evidence that was

affected in a criminal manner, including the

falsification of documents or testimony in

violation of the obligation to tell the truth, or on

a criminal verdict that was reversed on appeal,

and (ii) if the proceedings were conducted in a

manner that conflicts with fundamental values of

Appendix 1 - Overview of Arbitral Seats

the Austrian legal system (procedural public

policy).

d. The Austrian Arbitration Act was amended

effective January 1, 2014. This amendment

designated the Austrian Supreme Court as the

sole court to hear arbitration-related proceedings

other than in consumer and labor law

arbitrations.

e. The Vienna International Arbitral Centre

(“VIAC”), established in 1975, has considerable

experience administering arbitrations,

particularly in Central and Eastern Europe. VIAC

arbitrations commonly apply either the Vienna

Rules or the ICC Rules.

B. Asia and the Pacific Rim

The most frequently accepted seats involving Asian and

Pacific parties are Hong Kong and Singapore. If these are not

accepted, the alternatives listed below may also be considered.

1. Auckland

a. New Zealand has adopted the UNCITRAL Model

Law through its Arbitration Act of 1996, which

applies to both international and domestic

arbitrations. Two amendments that came into

force on March 1, 2017 provide for an emergency

arbitrator and a body outside of the High Court

to resolve arbitrator appointment dilemmas.

b. The Arbitrators’ and Mediators’ Institute of New

Zealand (“AMINZ”) and the New Zealand

Appendix 1 - Overview of Arbitral Seats

Dispute Resolution Centre administer

international arbitrations.

2. Beijing or Shanghai

a. Under Chinese law, only “foreign-related”

disputes can be arbitrated outside of China.

Foreign ownership of a Chinese entity may not

be sufficient to make a dispute “foreign-related.”

In recent years Chinese courts have shown a

greater willingness to recognize that the

involvement of a party that is a Wholly Foreign

Owned Enterprise (“WFOE”) registered in a

designated free trade zone creates a “foreign

element” in the dispute.

b. The PRC is a party to the New York Convention,

and has extended the applicability of the

Convention to the Special Administrative

Regions of Hong Kong and Macau. In addition,

mainland China has entered into special

arrangements with Hong Kong, Macau and

Taiwan for the mutual enforcement of arbitral

awards, which largely mirror the Convention.

c. The China International Economic and Trade

Arbitration Commission (“CIETAC”) is

commonly selected by non-PRC parties as the

arbitration institution for arbitrations in

mainland China. Other arbitration institutions

such as the Beijing Arbitration

Commission/Beijing International Arbitration

Center (“BAC”) have also been steadily increasing

their reputation for professionalism and

Appendix 1 - Overview of Arbitral Seats

internationalization in recent years. In 2013, the

CIETAC sub-commissions in Shanghai and

Shenzhen declared their independence from

CIETAC and are now known as Shanghai

International Economic and Trade Arbitration

Commission/Shanghai International Arbitration

Center (“SHIAC”) and Shenzhen Court of

International Arbitration / South China

International Economic and Trade Arbitration

Commission (“SCIA”) respectively. Given the

controversies once surrounding the split, it is

important for parties arbitrating in mainland

China to clearly designate the arbitral institution

and, if CIETAC is selected, the sub-commission

that should administer the case.

d. The PRC Arbitration Law, introduced in 1995 and

amended in 2009, diverges from the UNCITRAL

Model Law in several major respects.

i. An arbitration agreement for arbitrations

seated in the PRC must designate an

administering institution (“arbitration

commission”). As noted below, this

institution may need to be a Chinese

institution. This leaves no room for ad hoc

arbitration, although there may now be a

limited exception for arbitrations seated in

free trade zones. The PRC courts usually

recognize and enforce ad hoc awards made

in New York Convention States or in Hong

Kong, but agreements for ad hoc

Appendix 1 - Overview of Arbitral Seats

arbitration seated in the mainland PRC are

generally unenforceable.

ii. It is unclear whether foreign arbitration

institutions may administer arbitration

cases seated within mainland China. In

April 2014, the PRC Supreme People’s

Court appeared to recognize, for the first

time, the validity of an arbitral clause

providing for ICC arbitration seated in

Shanghai. Some commentators, however,

have disputed the applicability of this

decision to other cases, and the PRC is a

civil law country whose courts are not

bound by legal precedent. For that reason,

it is advisable that parties wait for greater

certainty before using foreign arbitration

institutions for arbitrations seated in the

PRC.

iii. Mainland PRC law does not fully recognize

the principle that arbitral tribunals may

decide their own jurisdiction (Kompetenz-

Kompetenz). Arbitration commissions,

rather than arbitral tribunals, are generally

empowered to rule on jurisdiction.

CIETAC may, where necessary, delegate

such power to the arbitral tribunal

(CIETAC Rules, Article 6(1)). If one party

requests that an arbitration commission

determine the validity of an arbitration

agreement, the other party may

Appendix 1 - Overview of Arbitral Seats

simultaneously apply to a PRC court, and

the court’s ruling will prevail.

iv. Discovery is likely to be limited in most

arbitrations seated in the mainland PRC.

Parties that desire a degree of document

production should incorporate in their

arbitration clause evidentiary rules such as

the IBA Rules on the Taking of Evidence in

International Arbitration.

e. Since 1995, the PRC has adopted a special

reporting system that is applicable to court

proceedings involving foreign arbitral awards and

awards in arbitrations seated in mainland China

involving foreign-related factors, such as non-

PRC parties or subject matter located overseas.

Under this system, a lower court may not refuse

to enforce a foreign or foreign-related award

made in the PRC or invalidate an arbitration

agreement involving foreign-related elements

without prior examination and confirmation by a

higher court. This system has helped facilitate

the enforcement of awards against Chinese

parties.

3. Kuala Lumpur

a. The Malaysian Arbitration Act 2005, which came

into force on March 15, 2006 and was amended in

2011, largely adopted the UNCITRAL Model Law.

The law gives parties greater flexibility to select

the procedures governing the appointment of

arbitrators and the proceedings and allows the

Appendix 1 - Overview of Arbitral Seats

arbitral tribunal to determine its own jurisdiction,

including on the validity of the arbitration clause.

It also provides that the awards of arbitral

tribunals are final and binding, with several

grounds for setting aside the award, including

(i) the existence of procedural and jurisdictional

defects, (ii) when the subject-matter of the

arbitration is not capable of settlement by

arbitration under the laws of Malaysia and

(iii) when the award is in conflict with Malaysia’s

public policy.

b. The Act specifies several instances where the

courts are given a right to intervene in certain

matters, including staying proceedings, granting

interim measures of protection, and assistance in

taking of evidence. The Act replaced conflicting

case law in this regard. Malaysia recognizes the

doctrine of Kompetenz-Kompetenz under section

18(1) of the Arbitration Act.

c. The Kuala Lumpur Regional Centre for

Arbitration (“KLRCA”) is the primary arbitration

institution in the country. KLRCA has seen a rise

in its caseload in recent years, and adopted revised

rules in 2017.

4. Mumbai or Delhi

a. India’s Arbitration and Conciliation Act is based

largely on the UNCITRAL Model Law with some

particularities. The same law applies to domestic

arbitrations and to international commercial

arbitrations seated in India.

Appendix 1 - Overview of Arbitral Seats

100

b. An arbitral tribunal seated in India must render

an award within a maximum period of 18 months.

If the time limit is not met, the tribunal’s

mandate is considered terminated. Only a court

can extend this timeframe by an order which may

involve a reduction of the arbitrators’ fees.

c. The grounds for setting aside an award seated in

India are limited, and the 2015 amendments

clarify that the courts cannot review the merits

of the award. The grounds for refusing to enforce

a foreign award are limited to those in the New

York Convention.

d. In 2012, the Supreme Court clarified that Indian

courts cannot interfere in arbitrations seated

outside India (Bharat Aluminium Co v. Kaiser

Aluminium Technical Services (‘BALCO’), Supreme

Court of India, Civ. App. 3678 of 2007, 6

September 2012). Indian courts may still grant

interim relief or assistance in taking evidence

even in foreign-seated arbitrations, but

application of these provisions can be excluded by

agreement of the parties.

e. The Arbitration and Conciliation Act was

amended in 2015 with a view to reducing the

potential interference of Indian courts in arbitral

proceedings, although the prospect of related

court proceedings can substantially lengthen the

arbitral process.

f. There are several arbitral institutions in India,

including the Mumbai Centre for International

Appendix 1 - Overview of Arbitral Seats

101

Arbitration (“MCIA”). When choosing an

arbitral institution in India, parties should be

aware of potential restrictions on choosing

arbitrators from beyond the institution’s roster.

5. Seoul

a. South Korea's Arbitration Act is largely based on

the UNCITRAL Model Law, and applies to both

domestic and international commercial disputes

seated in South Korea. As amended effective

November 2016, the Arbitration Act now gives

arbitral tribunals more control when seeking

court-aided discovery, and provides more

expeditious enforcement procedures. Unlike the

Model Law, the Arbitration Act only allows

South Korean courts to enforce interim measures

that are issued in arbitrations with a seat in South

Korea.

b. The Korean Commercial Arbitration Board

("KCAB") administers international arbitrations.

Its amended rules, which became effective in

June 2016, introduced an emergency arbitrator

system.

c. The grounds for set aside under the Arbitration

Act largely track the UNCITRAL Model Law,

namely: the arbitration agreement was invalid, a

party was not given proper notice of the

appointment of arbitrators or was unable to

present his or her case, the award goes beyond

the agreed upon issues in the arbitration

agreement, the composition of the arbitral

Appendix 1 - Overview of Arbitral Seats

102

tribunal or proceedings were not in accordance

with the parties' agreement, the dispute's subject

matter is not arbitrable under South Korean law,

or the award conflicts with public policy.

d. Under South Korea's Arbitration Promotion Act,

which entered into force in June 2017, the

government and arbitration community will

implement short- and long-term plans to

promote international arbitration in South Korea,

including through the expansion and

improvement of international arbitral facilities

and the promotion of Seoul as a seat of

arbitration in international arbitrations.

6. Sydney or Melbourne

a. Australia’s International Arbitration Act is based

on the UNCITRAL Model Law. It has several

default provisions that parties can choose to opt

out of, including sections on evidence, costs, and

procedure. The 2015 and proposed 2017

amendments to the Act align its language more

closely with that of the New York Convention.

b. Within Australia’s federal structure, international

arbitration matters fall within the jurisdiction of

state supreme courts. In 2009, Australia’s

Parliament gave the Federal Court concurrent

jurisdiction over international arbitration. In

addition, in January 2010, the Supreme Court of

Victoria appointed an “Arbitration Coordinating

Judge,” creating an arbitration list that centralizes

arbitration matters. The list is managed by a

Appendix 1 - Overview of Arbitral Seats

103

judge with international arbitration experience

who, along with several other commercial judges,

will hear all arbitration-specific cases.

c. The Australian Center for International

Commercial Arbitration (“ACICA”), and the

Institute of Arbitrators and Mediators Australia

(“IAMA”) administer international arbitrations.

The revised ACICA Arbitration Rules came into

effect in January 2016.

7. Tokyo

a. Japan's Arbitration Law is based on the

UNCITRAL Model Law and applies to arbitral

proceedings with a place of arbitration in Japan,

as well as proceedings in Japanese courts related

to arbitral proceedings.

b. The Japanese Commercial Arbitration

Association ("JCAA") administers international

arbitrations. The most recent amendments to

the JCAA Rules, in 2014, introduced provisions

regarding expedited procedures, emergency

arbitrators, interim measures, and joinder of third

parties to an arbitration, among others.

c. The grounds for set aside under the Japan

Arbitration Law largely track the UNCITRAL

Model Law, namely: the arbitration agreement is

invalid, a party was not given notice to appoint

arbitrators or during the arbitration, a party was

not able to present its case in the arbitration, the

award covers matters beyond the scope of the

arbitration agreement or claims in the arbitration,

Appendix 1 - Overview of Arbitral Seats

104

the composition of the tribunal or the arbitral

proceedings were not in accordance with

Japanese law or the parties' agreement, the claims

in the arbitration relate to non-arbitrable subjects

under Japanese law, or the content of an arbitral

award is in conflict with the public policy or good

morals of Japan.

C. Americas

The most frequently accepted seats involving Latin American

parties are New York and Paris. If these are not accepted, the

alternatives listed below are also regularly used because of

geography, convenience, or other factors.

1. Bermuda

a. Bermuda is a common seat for arbitration

disputes in the insurance industry, as liability

insurance policies written on the so-called

“Bermuda Form” generally designate either

London or Bermuda as the seat of arbitration. As

a result, Bermudan courts are experienced in

handling commercial arbitration matters.

b. Under the Bermuda International Arbitration and

Conciliation Act of 1993, the UNCITRAL Model

Law applies to international commercial

arbitrations seated in Bermuda. Parties may

agree in writing to not apply the Model Law, in

which case the Arbitration Act 1986 (based on

the UK Arbitration Acts 1950-1979) applies,

unless otherwise agreed in writing.

Appendix 1 - Overview of Arbitral Seats

105

c. The Bermuda Commercial Court, an

administrative subdivision of the Supreme Court

of Bermuda, hears all court applications in

Bermuda relating to arbitral proceedings, except

that the Court of Appeal of Bermuda has

exclusive jurisdiction for challenges against

arbitral awards. The Supreme Court of Bermuda

can also issue interim measures of protection

before or during international arbitrations in

order to assist arbitration proceedings seated in

Bermuda.

d. The Court of Appeal for Bermuda has exclusive

jurisdiction to review arbitration awards. An

application to set aside must be brought within

three months of the award date. Grounds on

which the court can set aside an arbitral award

are limited and derived from the New York

Convention, including the invalidity of the

arbitration agreement, serious due process flaws,

an award beyond the scope of matters submitted

to arbitration, subject matter not capable of

settlement by arbitration under Bermudan law,

and an award conflicting with Bermudan public

policy (i.e. the making of the award was induced

or affected by fraud or corruption).

2. British Virgin Islands

a. The UK ratification of the New York Convention

was extended to the British Virgin Islands (the

“BVI”) in 2014.

Appendix 1 - Overview of Arbitral Seats

106

b. International arbitration in the BVI is governed

by the Arbitration Act 2013, which came into

force on October 1, 2014. The Act is based on the

UNCITRAL Model Law, with some variations.

The Act recognizes the doctrine of Kompetenz-

Kompetenz and establishes limited circumstances

under which an award may be set aside.

c. The Act also established the BVI International

Arbitration Centre, which provides facilities for

arbitral proceedings, administrative services, and

other support to tribunals seated in the BVI.

d. BVI courts generally take a liberal approach to

upholding arbitration agreements and awards,

and have experience handling complex

international commercial cases.

e. Costs of arbitration in the BVI are considerably

lower than in other leading arbitration centers.

3. Mexico City

a. Mexico has adopted the UNCITRAL Model Law,

with minor modifications.

b. In a pro-arbitration ruling in 2006, Mexico’s

Supreme Court affirmed the applicability of the

principle of Kompetenz-Kompetenz. However,

parties may resort to the courts to annul an

arbitration agreement as void or inoperative.

c. In 2009, the law governing arbitration procedure

and the recognition and execution of arbitral

awards was made expressly applicable to federal

Appendix 1 - Overview of Arbitral Seats

107

government contracts (see Law for Public Works

and Services, No. 2748-IV).

d. In Mexico, there is also an additional risk that

courts may review the merits of arbitral awards

through an Amparo proceeding, which is a legal

mechanism which is meant to protect

constitutional rights.

4. Miami and Other U.S. Seats

a. Many U.S. cities are frequently used and may be

appropriate arbitral seats. Because of Miami’s

location and culture, Latin American parties may

consider it a sufficiently “neutral” site.

b. Miami may afford lower costs than some other

seats, including for bilingual professional services,

and lower-cost flights and hotels. The ICDR has

its south-eastern regional office in Miami.

c. International arbitration seated in Florida (where

Miami is located) will generally be governed by

the U.S. Federal Arbitration Act, though it may

be supplemented by state law in some instances.

See Appendix 1, Section A above, for language

that can be included in an arbitration clause to

avoid ambiguities about the possible application

of state procedural law to the arbitration.

Florida’s legislature adopted the UNCITRAL

Model Law as state law in July 2010, replacing the

previous Florida International Arbitration Act.

d. A rule adopted by the Supreme Court of Florida

in 2006 removed restrictions on non-Florida

Appendix 1 - Overview of Arbitral Seats

108

lawyers participating in international arbitrations

in Florida.

e. If Miami or another U.S. seat is selected, the

parties should include a clause confirming that

the FAA governs the arbitration to avoid any

uncertainty over the possible application of state

law. A recommended clause appears above in the

discussion of New York as a seat of arbitration.

f. Other U.S cities, including Washington, D.C. and

San Francisco, are also suitable and frequently

chosen seats of arbitration. If San Francisco or

another California seat is chosen, parties should

be careful that they do not inadvertently include

language in the arbitration clause that could be

read as selecting California arbitration law or

providing for judicial review of arbitration awards

on the merits. California arbitration law differs

from the FAA in some respects and, unlike the

FAA, has been interpreted to allow parties to

contract for broader court review of arbitration

awards than would normally be allowed. To

prevent that possible outcome, parties should

avoid including language in the arbitration clause

to the effect that the arbitrators lack power to

commit errors of law or reasoning or to make a

decision inconsistent with the terms of the

agreement. A provision of that type may be read

as opening the award to court review under

California law for error by the arbitrators,

particularly if the parties have not included a

Appendix 1 - Overview of Arbitral Seats

109

clause providing that the arbitration is governed

by the FAA..

5. Santiago de Chile

a. In 2004, Chile adopted the UNCITRAL Model

Law to govern international commercial

arbitration taking place in Chile (see Law

No. 19,971).

b. Courts in Chile are generally favorable to

arbitration and recognize the principle of

Kompetenz-Kompetenz. Under Chile’s

International Commercial Arbitration Act,

parties may not appeal an arbitration award to

the courts.

6. São Paulo or Rio de Janeiro

a. Brazil’s Arbitration Act, enacted in 1996 and

amended in 2015, is based on the UNCITRAL

Model Law and the Spanish Arbitration Law of

1988 (see Act No. 9,307; Act No. 13,129), with

some differences.

b. The number of both domestic and international

arbitration cases in Brazil has increased

significantly in the last few years. Brazilian

courts are generally supportive of arbitration as a

form of dispute resolution with strong

precedents opposing court intervention into

arbitration proceedings. Brazilian courts have

also recognized the validity of arbitration clauses

in government contracts.

Appendix 1 - Overview of Arbitral Seats

110

c. The ICC, ICDR and LCIA all manage cases with

seats in Brazil, and the ICC has most recently

opened an office in São Paulo. There are also a

number of Brazilian arbitration organizations, the

most prominent being the Brazil-Canada

Chamber of Commerce (“CAM/CCBC”). The

CAM/CCBC has its own arbitration rules, which

contemplate an abbreviated briefing and award

schedule. In August 2017, the PCA also signed a

Host Country Agreement with Brazil that will

facilitate the conduct of PCA proceedings within

the country.

7. Toronto

a. Each Canadian province has its own international

arbitration statute based on the UNCITRAL

Model Law. Arbitration in Toronto is governed

by Ontario’s International Commercial

Arbitration Act, 2017. The 2017 version of the

Act adopted the 2006 amendments to the

UNCITRAL Model Law, incorporated the New

York Convention, and extended the limitation

period applicable to proceedings for the

enforcement and recognition of arbitral awards.

b. Toronto has three main arbitral institutions:

Arbitration Place (which operates under

agreement with the International Chamber of

Commerce), ADR Chambers and JAMS Canada.

Appendix 1 - Overview of Arbitral Seats

111

D. Africa

1. Casablanca

a. The Moroccan Code on Civil Procedure governs

domestic and international arbitrations and is

inspired by French law and, in part, by the

UNCITRAL Model Law. The Code differs from

the Model Law in some respects, including the

appointment and challenge of arbitrators and the

available reasons for annulling an arbitral award.

Under Moroccan law, an arbitral award rendered

in Morocco may be set aside on the grounds of

jurisdictional or procedural defects, or if the

recognition or enforcement of the arbitral award

violates domestic or international public policy.

All court submissions in Morocco must be in

Arabic. A reform is currently underway to

modernize the legal framework.

b. The Casablanca International Mediation and

Arbitration Centre (CIMAC) opened at the end

of 2014, and updated rules came into force on 1

January 2017.

2. Lagos

a. The Nigerian Arbitration and Conciliation Act

1988 (“ACA”) governs international arbitration in

Nigeria and mirrors the UNCITRAL Model Law.

In addition, the state of Lagos passed its own

arbitration legislation (the Lagos State

Arbitration Law of 2009), which also is largely

based on the UNCITRAL Model Law.

Appendix 1 - Overview of Arbitral Seats

112

b. The Lagos Court of Arbitration is based in Lagos.

Its Rules include, among others, provisions

allowing a party to request interim measures

from the LCA Secretariat prior to the

constitution of an arbitral tribunal. The

articulation of the LCA Rules and the ACA is

presently uncertain.

c. Although section 34 of the ACA provides that “a

court shall not intervene in any matter governed

by this Act except where so provided,” in practice

Nigerian courts have intervened in arbitration

proceedings with greater frequency than in other

countries, and court proceedings can take many

years to reach final resolution.

3. Mauritius

a. Mauritius’s Arbitration Act, adopted in 2008 and

amended most recently in 2013, is based on the

UNCITRAL Model Law, with a number of

innovative pro-arbitration adjustments.

b. Both English and French are widely spoken in

Mauritius.

c. A specially designated and trained panel of judges

of the Supreme Court hears all applications under

the Act with the exception of applications for

interim measures, which are first heard by a

single judge before potentially being returned to

the three-judge panel. Appeal from decisions of

the panel lies directly, and as of right, to the Privy

Council in London.

Appendix 1 - Overview of Arbitral Seats

113

d. The Permanent Court of Arbitration opened its

first overseas office in Mauritius in 2010. The

PCA acts as the appointing authority under the

Arbitration Act where the parties have not

designated another appointing authority.

e. Mauritius is also home to several arbitration

institutions. The Mauritius Chamber of

Commerce and Industry’s Arbitration and

Mediation Center (“MARC”) was established in

1996. In 2017 it announced a new governance

structure reflecting international best practices in

arbitration, with a court and an advisory board

composed of leading international practitioners.

In addition, in 2011, the Mauritius International

Arbitration Centre Limited (“MIAC”) joined

forces with the LCIA to establish a joint

arbitration center in Mauritius, known as the

LCIA-MIAC Arbitration Centre.

E. Middle East

Historically, many Gulf state courts have been hostile to

arbitration and some Gulf states are not parties to the New

York Convention. Recent pro-arbitration reforms and new

arbitral institutions may change the outlook for international

commercial arbitration in the Gulf, but it may take some time

to see their impact.

1. Manama

a. Since 1995, Bahrain has hosted the Gulf

Cooperation Council Commercial Arbitration

Centre (“GCAC”). There are reciprocal

arrangements in place between the Gulf

Appendix 1 - Overview of Arbitral Seats

114

Cooperation Council (“GCC”) states that provide

for enforcement of arbitral awards issued within

other member states. As of December 2017, the

GCC states consist of the United Arab Emirates,

Bahrain, Saudi Arabia, Oman, Qatar and

Kuwait.

b. Bahrain adopted the UNCITRAL Model Law in

2004. In 2015, Bahrain significantly reformed its

arbitration regime through Law No. 9/2015 (the

“Bahrain Arbitration Law”), which incorporates

the UNCITRAL Model Law and vests the

Bahraini High Court with authority to hear all

arbitration-related applications, including

applications to enforce or set aside arbitral awards.

It also permits foreign investors to retain their

preferred legal counsel, whether local or

international, for “international commercial

arbitration” proceedings held in Bahrain.

c. The Bahrain Chamber for Dispute Resolution

(“BCDR”) was established in 2009 in partnership

with the American Arbitration Association.

BCDR tribunals are composed of two Bahraini

judges and a third member chosen from BCDR’s

roster of neutrals. Judgments issued by BCDR

tribunals are considered final judgments issued by

the courts of Bahrain and are subject to

annulment by the Court of Cassation only on

limited grounds. The arbitration rules of the

BCDR came into effect in October 2017.

Appendix 1 - Overview of Arbitral Seats

115

2. Doha

a. In March 2017, Qatari Law No. 2 of 2017

Promulgating the Civil and Commercial

Arbitration Law entered into force. This law is

based on the UNCITRAL Model Law and applies

to international arbitrations seated in Qatar that

began after or were ongoing at the time the law

entered into force in March 2017.

b. The Qatar International Center for Conciliation

and Arbitration and the Qatar International

Court and Dispute Resolution Centre are located

in Doha.

c. Qatari Law No. 2 of 2018 Does not impose

nationality requirements for arbitrators.

However, it differs from the Model Law in

providing that parties must choose an arbitrator

from a list of approved arbitrators registered at

the Arbitrators Registry at Qatar’s Ministry of

Justice, or alternatively may nominate an

arbitrator who is of full legal eligibility and

capacity, has not been finally convicted of a

felony or misdemeanor relating to honesty and

character, and is of good reputation and conduct.

d. Unless the parties agree to alternative methods of

enforcement, in order to enforce an award in

Qatar, parties must bring an application for

enforcement of the arbitral award to the

enforcement judge of the Court of First Instance,

once the time for filing an annulment application

has expired. The grounds for challenge under

Appendix 1 - Overview of Arbitral Seats

116

Qatari Law No. 2 of 2017 largely track those

under the Model Law, and parties may not

challenge an arbitral award based on questions of

law or fact.

3. Dubai International Financial Centre

a. The Dubai International Financial Centre (the

“DIFC”) is a special economic zone in the center

of Dubai’s financial district where UAE federal

and commercial laws do not apply. Parties may

choose DIFC as a seat of arbitration regardless of

whether the contract has any connection with

Dubai or the DIFC.

b. The DIFC arbitration law, introduced in 2008,

governs arbitrations with their seat in the DIFC.

The DIFC arbitration law is modeled on the

UNCITRAL Model Law and is overseen by

independent DIFC courts, which are English-

speaking common law courts.

c. An arbitral award must be confirmed by the

DIFC courts before it can be enforced. Arbitral

awards made in the DIFC and confirmed by the

DIFC courts should be directly enforceable in

Dubai and internationally, but there is relatively

little precedent.

d. In 2008, the LCIA and DIFC established the

DIFC LCIA Arbitration Centre and adopted rules

of arbitration modeled on the LCIA Rules.

e. Arbitration in Dubai outside of the DIFC is not

recommended.

117

Appendix 2

Overview of Arbitral Rules

We list below the major institutional, ad hoc and specialized arbitral

rules that are commonly considered in international transactions.

Debevoise partners hold senior leadership roles in many of the major

international and regional arbitral bodies, and we are well placed to

advise on which rules would be most appropriate for any given

transaction.

Major Institutional Rules

International Chamber of Commerce

“the Rules of Arbitration of the International Chamber of

Commerce”

The ICC Rules are familiar to many parties around the world. In

comparison to other commonly used rules, they provide for

substantially more administrative involvement at various stages of

the proceeding, including scrutiny of draft awards.

The ICC rules, which were revised effective March 1, 2017, continue

the ICC’s efforts to improve efficiency and transparency. In

particular, the 2017 revision includes the ICC’s new Expedited

Procedure Rules (Article 30 and Appendix VI). These Rules apply to

cases with arbitration agreements entered into after March 1, 2017 if

the amount in dispute is less than US$2 million, subject to a few

limited exceptions.

Along with the 2017 revision, the ICC also published a “Note to

Parties and Arbitral Tribunals on the Conduct of Arbitration,” which

Appendix 2 - Overview of Arbitral Rules

118

is “intended to provide parties and arbitral tribunals with practical

guidance concerning the conduct of arbitrations” under the ICC

Rules, as well as the practices of the ICC Court. The ICC

subsequently released updates to its Note, effective January 1,

2019. One notable innovation is a rule providing for default

publication of awards, no less than two years after their notification,

unless the parties opt out. If the parties do not wish their award to

be made public, they should expressly opt out. They can do so by

providing in the arbitration clause that “The parties do not consent

to the publication of any award.”

In addition to the increased scrutiny of draft awards, the ICC Rules

have two unique features not shared by other rules. First, the ICC

Rules require the preparation of Terms of Reference at an early stage

of the arbitration proceeding. The Terms of Reference set out the

nature of the claims and defenses and, unless the tribunal decides

otherwise, the issues to be resolved. Second, the ICC arbitrators’ fees

are based on the amount in controversy. Depending on the size of

the claim, these fee arrangements may result in higher fees and more

up-front costs being borne by the claimant than with other

institutions. The ICC also requires an advance on costs based on the

amount in controversy, which is meant to cover all of the costs of

the arbitration and must be paid at an early stage of the arbitration

(before the Terms of Reference become operative). If the

respondent does not pay its share of this advance, the claimant must

either pay the respondent’s share or provide a bank guarantee in

order for the case to proceed.

The text of the ICC Rules and the Note to Parties can be found on

the ICC’s website at www.iccwbo.org.

Appendix 2 - Overview of Arbitral Rules

119

London Court of International Arbitration

“the Rules of the London Court of International Arbitration”

The LCIA Rules also provide administered arbitration but with less

institutional involvement than the ICC Rules. The LCIA generally

acts through its President, who makes appointments of arbitrators

and appoints panels to determine challenges. The LCIA’s schedule

of costs provides administrative fees based on tasks performed and

arbitrators’ fees based on a capped daily or hourly rate rather than on

the amount in controversy. Depending in part on the amount in

controversy, this fee schedule may result in lower costs than under

some other rules. Detailed statistics on the costs and duration of

LCIA cases may be found in the LCIA’s Report on Facts and Figures:

Costs and Duration: 2013-2016. The LCIA Rules, most recently

amended in 2014, include provisions for emergency relief (Article 9B)

and other provisions concerning speed and procedure (Articles 5, 14

and 15).

The text of the LCIA Arbitration Rules can be found on the LCIA’s

website at www.lcia.org.

International Centre for Dispute Resolution

“the International Centre for Dispute Resolution International

Arbitration Rules”

The ICDR International Arbitration Rules are based in large part on

the 1976 UNCITRAL Rules for ad hoc arbitration but provide for

administrative involvement in areas where an administrator may be

useful, such as the appointment of or challenge to arbitrators. These

rules were last amended in 2014.

Appendix 2 - Overview of Arbitral Rules

120

The ICDR is the international division of the AAA and is charged

with the exclusive administration of all of the AAA’s international

matters. The rules may be used anywhere in the world.

The ICDR offers two administrative fee options for parties filing

claims or counterclaims: the Standard Fee Schedule with a two-

payment schedule, and the Flexible Fee Schedule with a three-

payment schedule that offers lower initial filing fees but potentially

higher total administrative fees for cases that proceed to a hearing.

The arbitrators’ fees are usually based on an hourly or daily rate.

According to the ICDR Fee Schedule, most recently modified on July

1, 2016, the AAA will retain a portion of the administrative filing fee

if a party files a demand for arbitration that is incomplete or

otherwise does not meet the filing requirements and the deficiency

is not corrected within a reasonable period of time.

The text of the ICDR Rules can be found at www.icdr.org.

Hong Kong International Arbitration Centre

“the HKIAC Administered Arbitration Rules”

The HKIAC released its revised Administered Arbitration Rules in

2018, expanding on its 2013 Rules. These Rules continue the

HKIAC’s practice of working within a “soft administration”

framework, where parties have more flexibility while the HKIAC

retains structures to ensure that the arbitration functions smoothly.

For example, the Rules include provisions for emergency relief

(Article 23 and Schedule 4) and multiparty and multi-contract

arbitrations (Articles 27-30). The Rules also include expedited

procedures for claims under an amount decided by the HKIAC

(currently HKD 25,000,000 as of January 2019), or by agreement of

the parties or in “cases of exceptional urgency” (Article 42). Under

Appendix 2 - Overview of Arbitral Rules

121

the expedited procedures, the award “shall be communicated to the

parties within six months from the date when HKIAC transmitted

the case file to the arbitral tribunal” (Article 42(f)). Additionally, the

Rules include an “Early Determination Procedure” (Article 43). This

procedure allows the arbitral tribunal to decide points of law or fact

at an earlier stage of the arbitration where such points of law or fact

are manifestly without merit or manifestly outside the arbitral

tribunal’s jurisdiction, or where, even if such points were assumed to

be correct, they would not result in an award in favor of the party

that submitted them.

The text of the HKIAC Administered Arbitration Rules can be found

on HKIAC’s website at www.hkiac.org.

Singapore International Arbitration Centre

“the Singapore International Arbitration Centre Rules 2016”

The SIAC Rules, initially promulgated in 1991 and most recently

updated in 2016, provide a structured format for international

arbitration proceedings. An innovative new rule permits the tribunal

to dismiss a claim or defense that is “manifestly without legal merit”

or “manifestly outside the jurisdiction of the Tribunal” (Rule 29.1).

Additionally, the Rules contain specific provisions for multi-contract

and multiparty disputes (Rules 6-8) as well as for expedited and

emergency procedures (Rule 30, Schedule 1). The revised rules also

provide an expedited procedure for cases with a value of S$6 million

or less, or by agreement of the parties, or in cases of exceptional

urgency. As noted in Appendix 4 below, SIAC also promulgated

rules specific to investor-State arbitrations.

Appendix 2 - Overview of Arbitral Rules

122

The text of the SIAC Rules can be found on SIAC’s website at

www.siac.org.sg.

Stockholm Chamber of Commerce

“the Stockholm Chamber of Commerce Arbitration Rules”

The SCC Rules were updated effective January 1, 2017. The SCC

Rules strive for flexibility, efficiency, low cost, and minimal

administrative interactions. The new Rules also include a summary

procedure intended to save time and money (Article 39).

Additionally, the 2017 Rules expressly address joinder of parties and

claims (Articles 13 & 14) and abandon the default presumption in

favor of a three-member arbitral tribunal, instead adopting a more

flexible approach (Article 16). An appendix to the SCC Rules deals

specifically with investor-State disputes (Appendix III; see also

Appendix 4 below). The SCC also adopted new Rules for Expedited

Arbitrations that may be suitable for smaller or simpler disputes.

The text of the SCC Arbitration Rules can be found on the SCC’s

website at www.sccinstitute.com.

CPR International Institute for Conflict Prevention & Resolution

“the CPR Rules for Administered Arbitration of International

Disputes”

The CPR, which has long maintained rules for non-administered

arbitration, first released its CPR Administered Arbitration Rules in

2014. The CPR Administered Rules are intended to increase

efficiency and lower costs by providing for a high degree of

flexibility while maintaining strong institutional support. The CPR

Administered Rules allow the arbitrators to establish time limits for

each phase of the proceedings (Article 9.2) and penalize parties

attempting to delay (Article 19.2). Proceedings under the

Appendix 2 - Overview of Arbitral Rules

123

Administered Rules are administered from the CPR’s offices in New

York.

The text of the CPR Administered Rules can be found on the CPR’s

website at www.cpradr.org.

Appendix 2 - Overview of Arbitral Rules

124

Ad Hoc Rules

UNCITRAL

“the UNCITRAL Arbitration Rules”

The UNCITRAL Arbitration Rules were originally adopted in 1976

and were substantially updated and revised in 2010. They are the

most commonly used rules for ad hoc arbitration and therefore may

be preferred by certain parties.

The 2010 UNCITRAL Rules include revised procedures for the

replacement of an arbitrator, the requirement for reasonableness of

costs and a review mechanism for arbitration costs, as well as

additional provisions dealing with multiparty arbitration, joinder,

and interim measures. The Rules also make express reference to the

use of modern technologies.

In 2013, the Rules were revised to incorporate the UNCITRAL

Transparency Rules in Treaty-based Investor-State Arbitration (the

“UNCITRAL Transparency Rules”). The UNCITRAL Transparency

Rules apply to arbitrations initiated pursuant to an investment treaty

that was concluded on or after April 1, 2014, unless the treaty parties

agree otherwise.

If the UNCITRAL Arbitration Rules are selected, it is recommended

that the parties expressly designate an appointing authority as

follows:

“The appointing authority shall be [insert, e.g., the

International Chamber of Commerce International Court

of Arbitration, the American Arbitration Association, or

the London Court of International Arbitration].”

Appendix 2 - Overview of Arbitral Rules

125

Each institution has its own schedule of fees for acting as the

appointing authority under the UNCITRAL Rules, which may be

used anywhere in the world. If the parties have not agreed on an

appointing authority, the default appointing authority will be the

Secretary-General of the Permanent Court of Arbitration.

The text of the UNCITRAL Arbitration Rules can be found at

www.uncitral.org.

CPR International Institute for Conflict Prevention & Resolution

“the Rules of the CPR International Institute for Conflict

Prevention & Resolution for Non-Administered Arbitration of

International Disputes”

The CPR Non-Administered Arbitration Rules, originally released in

1989 and most recently revised in 2007, provide an effective

framework for ad hoc arbitration. The CPR becomes involved only if

necessary in the appointment of, and determination of challenges to,

arbitrators. Fees charged by the CPR for performing these services

are likely to be minimal. The Rules provide for comparatively

broader document exchange than some other rules (see CPR Rule

11). CPR also offers rules for administered arbitration of

international disputes, as noted above.

The text of the CPR Non-Administered Arbitration Rules can be

found at www.cpradr.org.

CIArb Chartered Institute of Arbitrators

“the CIArb Arbitration Rules”

The CIArb Arbitration Rules, effective December 1, 2015 and

superseding the CIArb Arbitration Rules 2000, are designed for use

in both domestic and international ad hoc arbitrations. The Rules are

Appendix 2 - Overview of Arbitral Rules

126

based on the UNCITRAL Arbitration Rules 2010, but are

supplemented by optional clauses aimed at providing parties with

more choice to tailor the rules to their needs. These additional

clauses have principally been made to enable CIArb to act as the

appointing authority. Other significant additions include waiver of

the parties’ right to appeal (Article 34.2), provisions for emergency

arbitrators (Appendix I), and a checklist for case management

conferences (Appendix II).

The text of the CIArb Arbitration Rules can be found at

www.ciarb.org.

Appendix 2 - Overview of Arbitral Rules

127

Specialized Rules

P.R.I.M.E. Finance

“the P.R.I.M.E. Finance Arbitration Rules”

The Panel of Recognised International Market Experts in Finance

(“P.R.I.M.E. Finance”), established in 2012, provides expert services

to help resolve disputes in the financial sector. Arbitration services

are a key focus of P.R.I.M.E. Finance, but the panel also offers

mediation, judicial training, expert court opinions and

recommendations on legal reform for international derivatives

markets.

The P.R.I.M.E. Finance Arbitration Rules, which became effective in

February 2016, are based on the 2010 UNCITRAL Arbitration Rules.

The P.R.I.M.E. Finance Arbitration Rules also include several

mechanisms to shorten time frames of arbitral proceedings and

address topics such as tax consequences, interest calculation and

currency. The PCA administers arbitrations under the P.R.I.M.E.

Finance Arbitration Rules.

The text of the P.R.I.M.E. Finance Arbitration Rules can be found at

www.primefinancedisputes.org.

World Intellectual Property Organization

“the Rules of the WIPO Arbitration and Mediation Center”

The WIPO Arbitration and Mediation Center, based in Geneva,

Switzerland, is part of the World Intellectual Property Organization.

The Center provides dispute resolution services designed primarily

for disputes arising out of commercial transactions or relationships

involving intellectual property. The WIPO Arbitration Rules were

Appendix 2 - Overview of Arbitral Rules

128

originally promulgated in October 1994. The latest revised version

became effective on June 1, 2014.

The text of the WIPO Arbitration Rules can be found on the WIPO

ADR website at www.arbiter.wipo.int.

129

Appendix 3

Comparative Table of Major Rules

COMPARISON OF THE

HKIAC, ICC, ICDR, LCIA, SCC, SIAC AND UNCITRAL

ARBITRATION RULES

The table below compares the salient features of the following sets

of arbitration rules:

• Hong Kong International Arbitration Centre (“HKIAC”)

Administered Arbitration Rules (in force November 1, 2018).

• International Chamber of Commerce (“ICC”) Rules of

Arbitration (in force March 1, 2017).

• International Centre for Dispute Resolution (“ICDR”) of the

American Arbitration Association (“AAA”) International

Dispute Resolution Procedures (Including Arbitration Rules)

(in force June 1, 2014).

• London Court of International Arbitration (“LCIA”)

Arbitration Rules (in force October 1, 2014).

• Stockholm Chamber of Commerce (“SCC”) Arbitration

Rules (in force January 1, 2017).

• Singapore International Arbitration Centre (“SIAC”)

Arbitration Rules (in force August 1, 2016).

• United Nations Commission on International Trade Law

(“UNCITRAL”) 2010 Arbitration Rules (as amended in 2013)

131

COMPARISON OF THE

HKIAC, ICC, ICDR, LCIA, SCC, SIAC AND UNCITRAL

ARBITRATION RULES

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

ARBITRAL TRIBUNAL

DEFAULT NUMBER

OF ARBITRATORS

HKIAC

decides.

(Article 6.1)

ONE

Unless the ICC

says three.

(Article 12.2)

ONE

Unless the

ICDR

Administrator

says three.

(Article 11)

ONE

Unless the

LCIA Court

says three.

(Article 5.8)

The SCC

decides.

(Article 16.2)

ONE

Unless the

SIAC Registrar

says three.

(Article 9.1)

THREE

(Article 7.1)

APPOINTMENT OF

THREE-MEMBER

TRIBUNAL IN

MULTIPARTY

DISPUTES

In the absence

of joint

nomination by

claimants or

respondents,

HKIAC

appoints each

member of the

tribunal.

(Article 8.2)

In the absence

of joint

nomination by

claimants or

respondents,

the ICC Court

appoints each

member of the

tribunal.

(Articles 12.6,

12.8)

Administrator

appoints each

member of the

tribunal unless

the parties

have agreed

otherwise

within 45 days

of start of

arbitration.

(Article 12.5)

In the absence

of agreement

on joint

nomination by

all parties, the

LCIA Court

appoints each

member of the

tribunal.

(Article 8.1)

In the absence

of joint

nomination by

claimants or

respondents,

the SCC Board

appoints each

member of the

tribunal.

(Article 17.5)

In the absence

of joint

nomination by

claimants or

respondents,

the SIAC

President

appoints each

member of the

tribunal.

(Article 12)

In the absence

of joint

nomination by

claimants or

respondents,

the appointing

authority

appoints each

member of the

tribunal.

(Articles 10.1,

10.3)

Appendix 3 – Comparative Table of Major Rules

132

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

DEFAULT

RESTRICTIONS ON

THE NATIONALITY

OF ARBITRATORS

Sole or

presiding

arbitrator

generally shall

not be of the

same

nationality as

any party.

(Articles 11.2,

11.3)

Sole or

presiding

arbitrator

generally shall

not be of the

same

nationality as

any party.

(Article 13.5)

No restrictions.

(Article 12.4)

Sole or

presiding

arbitrator shall

not be of the

same

nationality as

any party.

(Article 6.1)

Sole or

presiding

arbitrator

generally shall

not be of the

same

nationality as

any party.

(Article 17.6)

No restrictions.

(Article 6.7)

GROUNDS FOR

CHALLENGE OF

ARBITRATORS

Lack of

impartiality or

independence;

lack of

qualifications

agreed by the

parties;

inability to

perform his or

her functions;

or failure to act

without undue

delay.

(Article 11.6)

Lack of

impartiality or

independence.

(Article 14.1)

Lack of

impartiality or

independence.

(Article 14.1)

Lack of

impartiality or

independence;

deliberate

violation of

arbitration

agreement; or

failure to

conduct or

participate in

the arbitration

with efficiency,

diligence and

industry.

(Articles 10.1–

10.2)

Lack of

impartiality or

independence

qualifications.

(Article 19.1)

Lack of

impartiality or

independence;

lack of

qualifications

agreed by

parties.

(Article 14.1)

Lack of

impartiality or

independence.

(Article 12.1)

TIMING FOR

CHALLENGE OF

ARBITRATORS

15 days from

notification of

appointment or

30 days from

notification of

appointment or

15 days from

notification of

appointment or

14 days from

formation of

the arbitral

15 days from

becoming

aware of

14 days from

notification of

appointment or

15 days from

notification of

appointment or

Appendix 3 – Comparative Table of Major Rules

133

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

from becoming

aware of

grounds for

challenge.

(Article 11.7)

from becoming

aware of

grounds for

challenge.

(Article 14.2)

from becoming

aware of

grounds for

challenge.

(Article 14.1)

tribunal or

from becoming

aware of

grounds for

challenge.

(Article 10.3)

grounds for

challenge.

(Article 19.1—

19.3)

from becoming

aware of

grounds for

challenge.

(Article 15.1)

from becoming

aware of

grounds for

challenge.

(Article 13.1)

JOINDER AND CONSOLIDATION

JOINDER

A party may

apply for

joinder if all

parties consent

to the joinder

or the

additional

party is prima

facie bound by

the arbitration

agreement

giving rise to

the arbitration

or by a

different

arbitration

agreement

under the

Rules, provided

that a common

question of law

or fact arises

A party may

apply for

joinder of an

additional

party to ICC

Secretariat any

time before

confirmation/

appointment of

arbitrator.

(Article 7)

Before

appointment of

arbitrator, a

party may

submit notice

of arbitration

against an

additional

party.

After

appointment,

consent of all

parties and

additional

party is

required.

(Article 7.1)

A party may

apply for

joinder of an

additional

party provided

that any

additional

party and the

applicant party

consent to the

joinder in

writing.

(Article

22.1(viii))

A party may

apply for

joinder of an

additional

party to the

Board.

(Article 13)

A party may

apply for

joinder if the

additional

party is prima

facie bound by

the arbitration

agreement or

upon consent

of all parties.

Third parties

may also

submit a

request for

joinder.

(Article 7)

A party may

apply for

joinder if the

additional party

is a party to the

arbitration

agreement.

(Article 17.5)

Appendix 3 – Comparative Table of Major Rules

134

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

under the

arbitration

agreements,

the rights to

relief claimed

are in respect

of, or arise out

of, the same

transaction or

series of related

transactions,

and the

arbitration

agreements are

compatible.

Third parties

may also

request joinder.

(Article 27)

CONSOLIDATION

HKIAC may

consolidate at

the request of

any party

where (a) the

parties agree to

consolidation;

(b) all claims

are made under

the same

arbitration

ICC Court may

consolidate at

the request of

any party

where (a) the

parties have

agreed to

consolidation;

(b) all claims

are made under

the same

Consolidation

arbitrator

(appointed by

Administrator

at request of a

party) may

consolidate

where: (a) the

parties have

agreed to

consolidation;

Tribunal may

consolidate

with approval

of LCIA Court

where (a) the

parties agree to

consolidation

in writing, or

(b) when

arbitrations

have

SCC Board may

consolidate at

the request of

any party

where (a) the

parties have

agreed to

consolidation;

(b) all claims

are made under

the same

Prior to the

constitution of

the tribunal,

the Registrar

may

consolidate

where (a) all

parties have

agreed to

consolidation;

(b) all claims

N/A

Appendix 3 – Comparative Table of Major Rules

135

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

agreement; or

made under

different

arbitration

agreements

have a

common

question of law

or fact and the

rights to relief

claimed are in

respect of or

arise out of the

same

transaction or

series of

transactions,

provided that

the arbitration

agreements are

compatible.

(Article 28.1)

Parties may

also commence

a single

arbitration

under this last

category.

arbitration

agreement; or

arbitrations are

between the

same parties,

relate to claims

that arise in

connection

with the same

legal

relationship,

and the

arbitration

agreements are

compatible.

(Article 10)

(b) all claims

are made under

the same

arbitration

agreement; or

arbitrations are

between the

same parties,

relate to claims

that arise in

connection

with the same

legal

relationship,

and the

arbitration

agreements are

compatible.

(Article 8.1)

commenced

between the

same parties

under either

the same or

compatible

arbitration

agreements.

The LCIA

Court has

similar powers

prior to the

constitution of

the tribunal.

(Articles

22.1(ix)–(x),

22.6)

arbitration

agreement; or

sought arises

out of the same

transaction or

series of

transactions,

and the

arbitration

agreements are

compatible.

(Article 15)

are made under

the same

arbitration

agreement; or

arise from the

same

transaction or

series of

transactions

and the

arbitration

agreements are

compatible.

The tribunal

may also order

consolidation

on the same

grounds,

provided that a

different

tribunal has

not been

constituted in

the other

proceeding.

(Article 8).

Appendix 3 – Comparative Table of Major Rules

136

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

(Article 29)

PROCEDURAL VARIETY

EXPEDITED

PROCEEDINGS

Upon

application if

the amount in

dispute does

not exceed the

amount set by

the HKIAC,

where the

parties agree, or

in cases of

exceptional

urgency.

(Article 42.1)

If the parties so

agree or the

amount in

dispute does

not exceed

US$2,000,000.

(Article 30.2)

If the parties so

agree or if no

claim or

counterclaim

exceeds

US$6,000,000.

(Article 1.4)

Not available.

The separate

SCC Rules for

Expedited

Arbitrations

apply if the

parties so

agree.

Upon

application if

the parties so

agree, if the

amount in

dispute does

not exceed

S$6,000,000, or

in cases of

exceptional

urgency.

(Article 5.1)

Not available.

TERMS OF

REFERENCE

REQUIRED?

N/A

Yes, except in

proceedings

governed by

the Expedited

Rules.

(Article 23)

No.

DEFAULT SEAT

Hong Kong,

unless tribunal

determines

another place is

appropriate.

(Article 14.1)

Determined by

the ICC Court.

(Article 18)

Determined by

the ICDR

Administrator.

(Article 17.1)

London, unless

the LCIA

determines

another place is

appropriate.

(Article 16.2)

Determined by

the SCC Board.

(Article 25.1)

Determined by

the tribunal.

(Rule 21.1)

Determined by

the tribunal.

(Article 18.1)

Appendix 3 – Comparative Table of Major Rules

137

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

PLACE OF HEARING

No restrictions.

(Article 14.2)

No restrictions.

(Article 18.2)

No restrictions.

(Article 17.2)

No restrictions.

(Article 16.3)

No restrictions.

(Article 25.2)

No restrictions.

(Article 21.2)

No restrictions.

(Article 18.2)

DEFAULT

LANGUAGE OF THE

ARBITRATION

Tribunal

decides.

(Article 15.2)

Tribunal

decides.

(Article 20)

Presumption in

favor of the

language(s) of

documents

containing the

arbitration

clause.

(Article 18)

Tribunal

decides.

(Article 17.4)

Tribunal

decides.

(Article 26.1)

Tribunal

decides.

(Article 22.1)

Tribunal

decides.

(Article 19.1)

CONFIDENTIALITY

THE DEFAULT RULE?

Yes, subject to

certain

exceptions.

(Article 45)

No, but the

Tribunal may

make orders

concerning

confidentiality

of proceedings

or of any other

matters and

may take

measures for

protecting

trade secrets

and

confidential

information.

(Article 22.3)

All ICC awards

made as from

January 1, 2019

No, but the

Tribunal may

make orders

concerning

confidentiality

of proceedings

or of any other

matters and

may take

measures for

protecting

trade secrets

and

confidential

information.

(Articles 37.1,

37.2)

Yes, subject to

certain

exceptions.

(Article 30.1)

Yes.

(Article 3)

Yes, subject to

certain

exceptions.

(Articles 39.1,

39.2)

Silent.

Appendix 3 – Comparative Table of Major Rules

138

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

may be

published, no

less than two

years after

their

notification,

unless the

parties opt out.

(Note to

Parties and

Arbitral

Tribunals, ¶¶

40–46)

EMERGENCY ARBITRATOR / INTERIM RELIEF

EMERGENCY

ARBITRATOR

Available

before the

constitution of

the tribunal.

(Article 23.1,

Schedule 4)

Available

before

transmission of

the file to the

tribunal.

(Article 29,

Appendix V)

Available

before the

constitution of

the tribunal.

(Articles 6.1-

6.2)

Available

before the

constitution of

the tribunal.

(Article 9B)

Available

before the file

is referred to

the tribunal.

(Appendix II,

Article 1.1)

Available

before the

constitution of

the tribunal.

(Article 30.2,

Schedule 1(1))

N/A

INTERIM RELIEF

At the request

of either party,

the tribunal

may order

interim

measures it

deems

appropriate.

At the request

of either party,

the tribunal

may order

interim

measures it

deems

appropriate.

At the request

of either party,

the tribunal

may order

interim

measures it

deems

necessary.

At the request

of either party,

the tribunal

may order

interim

measures it

deems

appropriate.

At the request

of either party,

the tribunal

may order

interim

measures it

deems

appropriate.

At the request

of either party,

the tribunal

may order

interim

measures it

deems

necessary or

At the request

of either party,

the tribunal

may order

interim

measures it

deems

necessary or

Appendix 3 – Comparative Table of Major Rules

139

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

(Article 23.2)

(Article 28)

(Articles 24.1,

24.2)

(Article 25.1)

(Articles 37.1,

37.3)

appropriate.

(Article 30.1)

appropriate.

(Article 26)

AWARD

TIME LIMIT FOR

FINAL AWARD

(subject to

extensions)

Silent.

6 months from

the date of

terms of

reference.

(Article 31.1)

60 days from

end of final

hearing.

(Article 30.1)

“Immediately

and without

any delay.”

(Article 26.8)

6 months from

the date the

case was

referred to the

tribunal.

(Article 43)

45 days from

the date of the

closure of

proceedings.

(Article 32.3)

Silent.

PUBLICATION OF

REDACTED AWARDS

PERMITTED?

Yes, unless one

of the parties

objects.

(Article 45.5)

The Rules are

silent on this,

but the ICC

routinely

publishes

redacted

awards and

decisions.

Yes, unless

parties agree

otherwise.

(Article 30.3)

No, unless the

prior written

consent of all

parties and the

tribunal is

obtained.

(Article 30.3)

Silent.

No, unless the

prior written

consent of all

parties and the

tribunal is

obtained.

(Article 32.12)

N/A

SCRUTINY OF THE

AWARD?

No.

Yes, by ICC

Court.

(Article 34)

No.

Yes, by

Registrar.

(Article 32.3)

No.

CAN AWARD BE

CORRECTED OR

INTERPRETED?

Yes, within 30

days of receipt

of the award,

either by

application of a

party, or on the

initiative of the

Tribunal.

Yes, within 30

days of receipt

of the award,

either by

application of a

party, or on the

initiative of the

Tribunal.

Yes, within 30

days of receipt

of the award,

either by

application of a

party, or on the

initiative of the

Tribunal.

Yes, within 30

days of receipt

of the award,

either by

application of a

party or on the

initiative of the

Tribunal.

Yes, within 30

days of receipt

of the award,

either by

application of a

party, or on the

initiative of the

Tribunal.

Yes, within 30

days of receipt

of the award,

either by

application of a

party, or on the

initiative of the

Tribunal.

Yes, within 30

days of receipt

of the award,

either by

application of a

party, or on the

initiative of the

Tribunal.

Appendix 3 – Comparative Table of Major Rules

140

HKIAC ICC ICDR LCIA SCC SIAC UNCITRAL

(Articles 38.1–

38.3)

(Articles 36.1,

36.2)

(Articles 33.1,

33.3)

(Articles 27.1,

27.2)

(Articles 47.1,

47.2)

(Articles 33.1,

33.2)

(Articles 38)

COST & FEES

ADMINISTRATION

FEE

Ad valorem.

(HKIAC

Schedule 1,

Registration

and

Administrative

Fees, Article

34.1 (e))

Ad valorem.

(Article 38,

Appendix III)

Ad valorem

under both the

Standard and

Flexible Fee

Schedules.

(International

Arbitration Fee

Schedule)

Fixed

registration fee

and hourly

rates.

(Article 28.1,

LCIA Schedule

of Arbitration

Costs)

Ad valorem.

(Article 49,

SCC Schedule

of Costs

Appendix IV)

Ad valorem.

(Article 34,

SIAC Schedule

of Fees)

N/A

FEES OF THE

TRIBUNAL

Hourly rates or

ad valorem,

depending on

agreement of

the parties.

(Articles 10, 34

Schedules 2 and

Ad valorem,

reflecting

relevant

circumstances.

(Article 38,

Appendix III,

Article 2)

Appropriate

daily or hourly

rates

determined by

Administrator.

(Article 35)

Hourly rates,

generally not

exceeding

£450. (Article

28, LCIA

Schedule of

Arbitration

Costs)

Ad valorem.

(SCC Schedule

of Costs,

Appendix IV,

Article 2)

Ad valorem.

(Article 36,

SIAC Schedule

of Fees)

Determined by

the tribunal.

(Articles 40,

41.1)

RESPONSIBILITY FOR

LEGAL COSTS

The Tribunal

decides

allocation

between the

parties.

(Article 34.2)

The Tribunal

decides

allocation

between the

parties.

(Article 38.4)

The Tribunal

decides

allocation

between the

parties.

(Article 34)

The Tribunal

decides

allocation

between the

parties.

(Article 28.3)

The Tribunal

decides

allocation

between the

parties.

(Article 49.6)

The Tribunal

decides

allocation

between the

parties.

(Article 35)

Unsuccessful

party or parties

responsible for

costs unless

Tribunal

decides

otherwise.

(Article 42.1)

141

Appendix 4

Investor-State Contracts

This appendix provides suggestions specific to dispute resolution

clauses in investor-State contracts. The unique nature of disputes

involving State parties requires careful consideration of specific

issues such as transparency, financing, enforcement (including

sovereign immunity) and other public interest concerns.

I. General Considerations

A. Specificity of Rules. Investor-State contracts need not be

subject to specific investment arbitration rules. For instance,

the UNCITRAL Rules were originally drafted as general

commercial arbitration rules and only later were adopted in

investor-State arbitrations. Similarly, the SCC Rules are

general commercial arbitration rules but the most recent

version includes an appendix with supplemental provisions

specific to investor-State disputes. In contrast, the ICSID

Convention and Arbitration Rules, the SIAC Investment

Arbitration Rules and the PCA Rules were drafted with the

presence of a State, State-controlled entity or

intergovernmental organization specifically in mind.

B. Arbitrator Nationality. All the major investment arbitration

rules require arbitrators to be impartial and independent.

Some arbitration rules also place specific restrictions on the

nationality of the arbitrators. For instance, the SIAC

Investment Arbitration Rules require the sole arbitrator or

chair of the tribunal to be of a different nationality than the

parties unless the parties agree otherwise (Rule 5.7). The

ICSID Rules also prevent a party from nominating a national

Appendix 4 – Investor-State Contracts

142

of its own country as a party-appointed arbitrator unless the

opposing party agrees (Rule 1(3)).

C. Confidentiality and Transparency. The recent trend towards

greater transparency in arbitrations involving State interests

may be welcome news to some, but certain parties may be

concerned about the potential loss of confidentiality,

especially if non-public business information may be disclosed

in the arbitration.

Different sets of rules take different approaches to this issue.

While acknowledging the need to safeguard confidential or

protected information, the UNCITRAL Transparency Rules

provide for the publication of (i) information regarding the

commencement of the arbitration and (ii) documents,

including the parties’ submissions as well as orders, decisions

and awards of the tribunal (Articles 2 & 3). The UNCITRAL

Transparency Rules also require hearings to be public, subject

to necessary safeguards for the protection of confidential

business and government information (Article 6). These

Rules apply automatically to arbitrations initiated under the

UNCITRAL Rules pursuant to an investment treaty concluded

on or after April 1, 2014 (Article 1). For arbitrations under

investment treaties concluded prior to that date, the

UNCITRAL Transparency Rules will apply only when (i) the

parties to the arbitration agree; or (ii) the State Parties to the

relevant treaty (or, in the case of a multilateral treaty, the

State of the claimant and the respondent State) have agreed to

their application.

In October 2017, the United Nations Convention on

Transparency in Treaty-based Investor-State Arbitration (the

“Mauritius Convention on Transparency”) entered into force

for States that have ratified it. As of the date of entry into

Appendix 4 – Investor-State Contracts

143

force, only Canada, Mauritius and Switzerland were parties,

but a number of other States have signed but not ratified the

Convention. Under the Mauritius Convention, States express

their consent to apply the UNCITRAL Transparency Rules to

investment treaties concluded before 1 April 2014.

The ICSID Convention and associated Rules and Regulations

do not contain any general presumption of transparency or

confidentiality. The ICSID Secretariat publishes details of

arbitral proceedings, including procedural status, on the ICSID

website and publishes awards with the consent of the parties.

The parties may also agree to allow public access to hearings

in person or by video broadcast (ICSID Arbitration Rule

32(2)).

The SCC Rules treat all arbitration-related matters as

confidential unless otherwise agreed by the parties, including

in investor-State cases (Article 3).

The SIAC Investment Arbitration Rules include a similar

provision that presumes confidentiality (Rule 37), although

they also permit the publication of limited information about

the arbitration—such as the nationality of parties and the

legal instrument from which the dispute arose—even without

the parties’ consent (Rule 38.2).

As noted in Section III.4.e above, the law of the seat may also

contain implied duties of confidentiality. These may, however,

be subject to exceptions where State interests are involved.

Investment treaties may also contain their own transparency

provisions.

D. Third-Party Submissions. Under certain sets of rules, third

parties may make written submissions of relevance to the

factual or legal issues in dispute (see, e.g., SIAC Rules, Rule 29;

Appendix 4 – Investor-State Contracts

144

SCC Rules, Appendix III, Articles 3-4; ICSID Rules, Rule 37(2);

UNCITRAL Transparency Rules, Articles 4-5).

E. Third-Party Funding. At present, the HKIAC Rules and

SIAC Investment Arbitration Rules are unique among the

major rules in expressly addressing third-party funding

arrangements. The HKIAC Rules require a party to disclose to

all other parties, the arbitral tribunal and the HKIAC both (i)

that a funding agreement has been made and (ii) the identity

of the third-party funder (HKIAC Rules, Article 44.2). Any

funded party must also disclose any changes to the initially

disclosed funding arrangements (HKIAC Rules, Article 44.3).

The funded party may also disclose information relating to the

arbitration to the third party funder (HKIAC Rules, Article

45.3(e)). The arbitral tribunal may take into account any

third-party funding arrangement in making cost orders in the

arbitration (HKIAC Rules, Article 34.4). Rule 24 of the SIAC

Investment Arbitration Rules states that the arbitral tribunal

may order disclosure of third-party funding arrangements, and

Rules 33.1 and 35 allow the tribunal to account for such

arrangements when apportioning the costs of the arbitration.

Third-party funding may also be addressed as part of the

ongoing revision to the ICSID Rules. The other major rules

are silent on the topic.

II. Institutional and Ad Hoc Rules

International Centre for Settlement of Investment Disputes

“the Convention on the Settlement of Investment Disputes

Between States and Nationals of Other States and the Rules

adopted thereunder, or the Arbitration (Additional Facility)

Rules of the International Centre for Settlement of Investment

Appendix 4 – Investor-State Contracts

145

Disputes if the Centre lacks jurisdiction under the Convention at

the time when any proceeding hereunder is instituted.”

ICSID is one of the most commonly selected arbitral institutions in

investor-State disputes. While many treaties provide for ICSID

arbitration, parties are also free to choose ICSID arbitration for

contractual disputes involving a State or State entity.

ICSID arbitration under the regular rules—as opposed to Additional

Facility Rules (see below)—entails a number of specific requirements,

many of which should be addressed in the drafting of the arbitration

agreement itself. To address these specificities, ICSID has published

annotated model clauses, some of which are reproduced here for

convenience.

First, for ICSID to have jurisdiction under the regular rules, the

dispute must fall within both the arbitration agreement itself and

the specific requirements of the Centre established in Article 25 of

the ICSID Convention. These jurisdictional requirements include

that (i) there must be a legal dispute arising out of an investment and

(ii) the parties must be a Contracting State under the ICSID

Convention—or a constituent subdivision or agency designated by a

Contracting State—and a national (or company) of another

Contracting State.

The ICSID Convention does not define the term “investment,”

leaving the contracting states to do so, including through the

relevant investment treaty provisions. Some tribunals and

commentators, however, have interpreted the term “investment” in

the ICSID Convention to impose certain minimum requirements

independent of those set out in the applicable investment treaty.

Appendix 4 – Investor-State Contracts

146

Because of these jurisdictional limitations, it may be advisable to

stipulate in an ICSID arbitration clause that “the transaction to

which this agreement relates is an investment” and that “the

investor is a national of [Contracting State other than respondent

State].”

If the intended claimant is a company of the respondent State, the

parties must have agreed to treat that company as a foreign national

because of its foreign control. Specific language should be inserted

in the contract to this effect:

“It is agreed that, although the investor is incorporated

in [the respondent State], it is controlled by nationals of

[Contracting State other than respondent State] and shall

be treated as a national of [that State] for the purposes

of the Convention.”

In addition, if the counterparty is not the State itself but a

subdivision or agency, specific approvals and designation to the

Centre are required under Article 25 of the ICSID Convention.

Second, if the parties fail to appoint an arbitrator or cannot agree on a

presiding arbitrator, the President of the World Bank must appoint

such arbitrator from the approved ICSID Panel of arbitrators and

may not appoint an arbitrator of the same nationality as one of the

parties. (See ICSID Convention Articles 38 and 40.)

Third, ICSID publicizes certain information regarding all requests for

arbitration and may publish excerpts of a tribunal’s legal reasoning

even if the parties do not consent to publication of the award. (See

ICSID Institution Rule 22.)

Appendix 4 – Investor-State Contracts

147

Fourth, ICSID awards are not subject to review or challenge in

national courts; instead, parties may apply to annul the award on

limited grounds set forth in the Convention and determined by a

three-member ad hoc committee.

While annulment proceedings were extremely rare in ICSID’s early

years, they have arisen much more frequently since the early 2000s.

From 2011 through mid-2017, one or both parties commenced

annulment proceedings in 48 cases, compared to 134 total awards

(see The ICSID Caseload – Statistics, Issue 2017(2)). Of these

proceedings, five granted requests for annulment in full or in part, 26

rejected such requests, and 17 were discontinued. However, even if

the incidence of actual annulment remains infrequent, annulment

proceedings can delay enforcement and result in further costs to the

parties.

Fifth, ICSID awards are subject to a simplified enforcement

mechanism under Article 54 of the Convention, which provides that

Contracting States “shall recognize an award rendered pursuant to

this Convention as binding and enforce the pecuniary obligations

imposed by that award within its territories as if it were a final

judgment of a court in that State.” The reference to enforcement of

“pecuniary obligations” only, which has been perpetuated in some

national laws (including in England & Wales and the United

States), creates the risk that injunctive relief ordered by an ICSID

tribunal would not be enforced under the ICSID Convention’s

simplified enforcement regime.

Sixth, recourse to ICSID arbitration is in principle exclusive of “any

other remedy,” including diplomatic protection and court

proceedings (ICSID Convention, Articles 26-27). It can, however,

take some months to constitute an ICSID tribunal, which can be a

Appendix 4 – Investor-State Contracts

148

disadvantage for a party requiring urgent interim relief. Moreover,

as noted, only awards of monetary relief will benefit from the

simplified enforcement procedure under Article 54 of the ICSID

Convention. If the parties wish to preserve their ability to seek

interim relief from national courts, they must explicitly say so in

their arbitration agreement (see ICSID Arbitration Rule 39(6)). To

preserve this possibility, the following language is recommended:

“Without prejudice to the power of the Arbitral

Tribunal to recommend provisional measures, either

party hereto may request any judicial or other authority

to order any provisional or conservatory measure,

including attachment, prior to the institution of the

arbitration proceeding or during the proceeding for the

preservation of its rights and interests.”

Seventh, signature of the ICSID Convention does not in and of itself

constitute a waiver of sovereign immunity with respect to

enforcement of the award. The following language is recommended

to this effect:

“[Host State] hereby waives any right of sovereign

immunity as to it and its property in respect of the

enforcement and execution of any award rendered by an

Arbitral Tribunal constituted pursuant to this

agreement.”

Finally, ICSID Rules require the tribunal to issue a final award within

120 days from the close of proceedings (Article 43). However, ICSID

tribunals usually render their awards more than 120 days after the

hearing or final post-hearing submissions. Tribunals often wait until

they are ready to issue the award to formally close the proceedings.

Appendix 4 – Investor-State Contracts

149

ICSID also administers investor-State arbitrations not falling within

the ICSID Convention under its Additional Facility Rules (the

“ICSID AF Rules”), with the approval of ICSID’s Secretary-General.

This most commonly occurs when the host State, the investor’s

State or both are not parties to the ICSID Convention. To ensure an

arbitral forum in the event that a technical objection to ICSID

Convention jurisdiction is upheld, the alternative provision for

Additional Facility arbitration noted above should be included.

Since the ICSID Convention does not apply to proceedings under the

Additional Facility Rules, the jurisdictional requirements are slightly

different and depend largely on the nature of the relevant dispute

(see ICSID AF Rules, Articles 2-3, 4(2)-(4)). All proceedings under

the Additional Facility Rules are subject to the Secretary-General’s

approval and determination, among other things, that all

requirements of the relevant arbitration agreement have been met.

(ICSID AF Rules, Article 4). In addition, proceedings under the

Additional Facility Rules are subject to national court review in the

same manner as a commercial arbitration award instead of

annulment proceedings by a tribunal constituted under Article 52 of

the ICSID Convention.

In October 2016, ICSID announced the beginning of the fourth

amendment process since the enactment of the ICSID Arbitration

Rules in 1967. ICSID intends to modernize the Rules by addressing

issues of particular public concern, including the arbitrator

appointment process (and a corresponding code of conduct), third-

party funding arrangements, the publication of decisions and orders,

security for costs and issues pertaining to witnesses, experts, and

other evidence. ICSID has invited suggestions from the public on

areas for reform and expects to publish background papers on

proposed amendments in early 2018.

Appendix 4 – Investor-State Contracts

150

The text of the ICSID Convention, Regulations and Rules, as well as

the Additional Facility Rules and model clauses for ICSID arbitration,

can be found at icsid.worldbank.org.

UNCITRAL

“the UNCITRAL Arbitration Rules”

As discussed in Appendix 2 above, the UNCITRAL Rules are

commonly used and well recognized. The UNCITRAL Rules have

some distinctive features as compared to the ICSID Convention that

may be relevant in investor-State disputes.

First, the UNCITRAL Rules are not associated with an administering

institution and thus may offer greater flexibility. In practice,

however, parties to an arbitration under the UNCITRAL Rules often

agree to use the services of an administering institution such as the

PCA.

Second, the UNCITRAL Rules impose no express restrictions on

arbitrator nationality (see Articles 7-10), although the appointing

authority is required to take into account nationality when making

its appointment (see Article 6(7)). Under the UNCITRAL Rules,

unlike the ICSID Rules, the appointing authority is not limited to a

fixed roster of arbitrators.

Third, for arbitrations in which the UNCITRAL Transparency Rules

do not apply, UNCITRAL awards “may be made public with the

consent of all parties” or to the extent disclosure is required “by legal

duty, to protect or pursue a legal right or in relation to legal

proceedings” (see Article 34(5)). This may provide greater

confidentiality than the ICSID Rules. But where the UNCITRAL

Transparency Rules do apply, as discussed in Section I.C above,

substantial information from the arbitration may become public.

Appendix 4 – Investor-State Contracts

151

Fourth, unlike the ICSID Rules (see ICSID Arbitration Rule 39(6)),

the UNCITRAL Rules recourse to national courts for interim relief is

available even if the parties have not specifically stipulated to such

recourse. Article 26(9) of the UNCITRAL Rules provides that a

request for interim measures to a judicial authority “shall not be

deemed incompatible with the agreement to arbitrate, or as a waiver

of that agreement.”

Finally, unlike ICSID awards but like ICSID Additional Facility

awards, UNCITRAL awards are subject to review and enforced in the

same manner as international commercial arbitration awards. Like

commercial awards, they are subject to set-aside under the law of the

seat and must be enforced by reference to the New York Convention

or other applicable commercial arbitration treaty (without any

distinction as to whether they award pecuniary or non-pecuniary

relief). As noted, ICSID awards may only be challenged pursuant to

the annulment process specified in the ICSID Convention, are not

subject to set-aside by national courts and benefit from the

simplified enforcement mechanism in Article 54 of the ICSID

Convention with respect to the “pecuniary obligations” awarded

therein.

Permanent Court of Arbitration

“the PCA Arbitration Rules 2012”

The PCA was established in 1899 as an intergovernmental

organization that provides arbitral services to member states,

international organizations and private parties.

The PCA adopted the PCA Arbitration Rules in 2012 as standalone

rules specific to disputes involving at least one State, State-controlled

entity or intergovernmental organization. While the PCA Rules

largely mirror the UNCITRAL Arbitration Rules, they differ in some

Appendix 4 – Investor-State Contracts

152

respects, including the number of arbitrators and provisions related

to multiparty disputes. The PCA rules contain several provisions

specific to disputes involving states, including a waiver of sovereign

immunity from jurisdiction.

The PCA Rules are less often used in practice than the UNCITRAL

or ICSID Rules, although parties frequently choose the PCA as

appointing or administrating authority under the UNCITRAL Rules.

The text of the PCA Rules can be found at pca-cpa.org.

Singapore International Arbitration Centre

“the Investment Arbitration Rules of the Singapore International

Arbitration Centre”

SIAC is the first major commercial arbitration institution to release a

separate set of rules for international investment arbitration. In

January 2017, SIAC promulgated the SIAC Investment Arbitration

Rules, a specialized set of rules for international investment disputes

involving at least one State, State-controlled entity or

intergovernmental organization. The Investment Arbitration Rules

build on the standard SIAC Rules, thus retaining some of the

advantages of commercial arbitration proceedings, but aim to be

responsive to issues of specific concern in investor-State cases,

including third-party submissions and third-party funding

arrangements. Unless the parties agree to greater confidentiality,

SIAC will publicize limited information regarding the dispute. The

SIAC Rules also require the tribunal to submit a draft award to the

Registrar within 90 days from the close of arbitral proceedings (Rule

30.3).

The text of the SIAC Investment Arbitration Rules can be found at

www.siac.org.sg.

Appendix 4 – Investor-State Contracts

153

Stockholm Chamber of Commerce

“the Arbitration Rules of the Arbitration Institute of the

Stockholm Chamber of Commerce”

In recognition of the distinct issues that arise in investor-State

disputes, the 2017 SCC Rules include an appendix (Appendix III)

with supplemental provisions specific to investor-State arbitration.

Under Appendix III, non-disputing and third parties may apply to

make written submissions to the arbitration. The tribunal may also

invite third-party submissions upon consultation with the

contracting parties.

SCC Rules require the award to be issued within six months from the

case’s date of reference to the tribunal, with limited exception

(Article 43).

The text of the SCC Rules can be found at www.sccinstitute.com.

Appendix 5

Debevoise Efficiency Protocol (2018)

156

Debevoise Efficiency Protocol (2018)

To address concerns about increased length and cost in international arbitration, in 2010

the Debevoise & Plimpton International Dispute Resolution Group issued our Protocol to

Promote Efficiency in International Arbitration. We now update our Efficiency Protocol.

Through this Protocol, we reiterate our commitment to explore with our clients how, in

each case, the participants can take advantage of international arbitration’s inherent

flexibility to promote efficiency without compromising fairness or our clients’ chances of

success. The procedures set out here are therefore not meant to be inflexible rules, but

instead are considerations that, when appropriate for the case, can improve the arbitration

Formation of the Tribunal

1. Before appointing arbitrators, we will ask

them to confirm:

1.1 their availability to administer the

case, including hearings, on an

efficient and reasonably expeditious

schedule;

1.2 a commitment to conduct the

proceedings efficiently and to adopt

procedures suitable to the

circumstances of the arbitration; and

1.3 a commitment not to take on new

appointments that would reduce the

arbitrator’s ability to conduct the case

efficiently.

2. We will work with our opposing counsel

to appoint a sole arbitrator for smaller

disputes or where issues do not need the

analysis of three arbitrators, even if the

arbitration clause provides for three

arbitrators.

Establishing the Case and the Procedure

3. We will seek to avoid unnecessary

multiple proceedings, for example by

considering joinder, consolidation,

overlapping appointments, stays, and

coordinated hearings and briefing

schedules.

4. We will request that the arbitral tribunal

hold an early procedural conference to

establish procedures for the case.

5. We will request our clients and opposing

clients to attend procedural meetings and

hearings with the arbitral tribunal, so that

they can have meaningful input on the

procedures being adopted and consider

what is best for the parties at that time.

6. We will propose procedures that are

appropriate for the particular case,

proportionate to its value and complexity,

and designed to lead to an efficient

resolution. We will use our experience in

crafting such procedures, and we will not

simply adopt procedures that follow the

format of prior cases. We will encourage

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Debevoise Efficiency Protocol (2018)

active participation by the tribunal

throughout the case. For example:

6.1 We will consider including a detailed

statement of claim with the request

for arbitration so that the tribunal

will be able to set the procedures

with more knowledge of the issues in

dispute.

6.2 We will consider a fast-track

schedule with fixed deadlines.

6.3 We will request additional procedural

conferences following certain

submissions to consider whether the

procedures could be made more

efficient in light of the submissions.

6.4 We will suggest page limits for

memorials in order to ensure that

they focus on the most important

issues.

6.5 We will encourage the arbitral

tribunal to establish cyberprotocols

to protect transfer and use of

sensitive information and to disclose

cyber incidents, in line with the

Debevoise Protocol to Promote

Cybersecurity in International

Arbitration.

7. When acting for claimants, we will seek

to use the time between the filing of the

arbitration and the initial procedural

conference to prepare the first merits

submission so that the schedule can

commence soon after the conference.

8. We will explore whether bifurcation or a

determination of preliminary issues may

lead to a quicker and more efficient

resolution.

8.1 For bifurcated proceedings, we will

encourage the arbitral tribunal to set

deadlines and hearing dates that

include all phases of the case. This

minimizes delay at a later stage

caused by conflicting commitments

of the tribunal members or counsel.

8.2 Such a schedule would include a

deadline for the arbitral tribunal to

indicate whether the proceeding

should continue to the next phase. A

reasoned decision can follow, but, in

the meantime, the parties can be

drafting the submissions in the next

phase.

9. In order to avoid delays in drafting the

award, we will ask the arbitral tribunal to

include in the initial procedural schedule:

9.1 the dates on which they will

deliberate following the hearing,

including at least one day

immediately following the hearing;

and

9.2 a date by which the award will be

issued.

10. We will encourage tribunals to award

costs at the time of interim decisions,

when appropriate, in order to discourage

time-wasting or unmeritorious

applications.

Appendix 5

Debevoise Efficiency Protocol (2018)

158

Debevoise Efficiency Protocol (2018)

Evidence

11. We will limit and focus requests for

the production of documents. We

believe that the standards set forth in

the IBA Rules on the Taking of

Evidence generally provide an

appropriate balance of interests.

11.1 We will work with opposing

counsel to determine the most

cost-effective means of dealing

with electronic documents.

11.2 We will request the arbitral

tribunal (or the Chair) to conduct

a telephone conference following

the submission of any objections

to document requests to the

tribunal. Such a conference can

lead to a more effective weighing

of the need for requested

documents compared to the

burden of production and

potentially narrow the disputes.

12. When possible, we will make filings

electronically and encourage paperless

arbitrations.

13. We will seek to avoid having multiple

witnesses testify about the same facts.

14. We will encourage meetings of experts,

either before or after their reports are

drafted, to identify points of agreement

and to narrow points of disagreement

before the hearing. Expert

conferencing at the hearing,

particularly with respect to quantum

experts, can also often be time-saving

and more effective.

15. We will brief the applicable law, rather

than submit expert evidence as proof,

except in unusual circumstances.

16. We will divide the presentation of

exhibits between core exhibits and

supplementary exhibits that provide

necessary support for the claim or

defense but are unlikely to be

referenced at a hearing.

The Hearing

17. In order for the hearing to focus more

effectively on the facts and issues that

need to be decided, we will ask the

arbitral tribunal to set in the initial

procedural order:

17.1 a date following the final written

submissions on which they will

confer regarding the issues in the

case and the upcoming hearing, and

17.2 a date for a prehearing conference at

which they can discuss with the

parties the disputed facts and issues

on which they hope the hearing will

focus.

18. We will consider the use of

videoconferencing for testimony of

witnesses who are located far from the

hearing venue and whose testimony is

expected to be less than two hours.

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Debevoise Efficiency Protocol (2018)

19. We will generally encourage the use of a

chess-clock process (fixed time limits)

for hearings.

20. We will not automatically request post-

hearing briefs. We will consider in each

case whether they would be helpful, and,

if so, we will seek to limit the briefing to

specific issues identified by the tribunal.

21. We will consider alternative briefing

formats, such as the use of detailed

outlines rather than narrative briefs, to

focus the issues and to make the briefs

more useful to the tribunal.

22. We will seek agreement on a common

summary format for costs schedules to

facilitate the tribunal’s comparison and

to avoid the expense of removing

privileged information from daily time

entries. We will also consider whether

any argument about entitlement to costs

is necessary.

Settlement Consideration

23. We will consider settlement options at

the outset of each case and then at

appropriate points such as when an

exchange of submissions has clarified

issues or a preliminary issue has been

determined. Routes to settlement could

include negotiations or other non-

binding ADR such as early neutral

evaluation.

24. Where applicable rules or law permit, we

will consider making a “without

prejudice except as to costs” settlement

offer at an early stage.

25. We will consider asking arbitrators to

provide preliminary views that could

facilitate settlement.

162

Debevoise Protocol to Promote

Cybersecurity in International

As the prevalence of malicious cyberactors and cyberattacks on high-profile companies and

government organizations grows, parties to commercially or politically sensitive international

arbitrations increasingly express concerns with respect to cybersecurity. Cybersecurity threats

may create significant operational and legal problems that can compromise the arbitral process,

including loss or unauthorized disclosure of sensitive data, breaches of attorney-client

confidentiality, adverse media coverage and reputational damage, costs associated with breach

notification or data recovery, and legal liability. In addition to the threat cyberattacks pose to

the parties to an arbitration, failing to address this problem could ultimately lead to a loss of

confidence in the arbitral system.

To respond to these concerns, the practitioners at Debevoise & Plimpton LLP have developed

this Protocol to Promote Cybersecurity in International Arbitration. This Protocol operates on

three principles: (i) Establishing Secure Protocols for the Transfer of Sensitive Information at

the Outset of Proceedings, (ii) Limiting Disclosure and Use of Sensitive Information, and (iii)

Developing Procedures for Disclosing Cyber Incidents.

The Protocol reflects our continued commitment to counsel clients on the most critical issues

in international arbitration. We believe consideration of the procedures reflected in this

Protocol will improve the arbitration process while appropriately managing risks. The

procedures reflected in this Protocol are meant to be adaptable, so that parties, counsel and

arbitral tribunals can use the flexibility inherent in international arbitration to develop

procedures relevant and appropriate for each individual arbitration.

163

1. We will request that the arbitral tribunal

establish protocols and procedures for the

transfer of sensitive information at the

outset of proceedings, usually in the first

procedural conference. What constitutes

such sensitive information should be

defined in light of the particular

circumstances of a dispute.

a. These protocols and procedures may

include: (i) defining categories of

sensitive information, updated as

necessary through the course of the

proceeding; and (ii) agreeing on

processes for the secure transfer of

such sensitive information between

and among the tribunal and the

parties.

b. This may include barring certain

transfer methods (e.g., use of public

WiFi to access sensitive information)

or adopting certain transfer methods

(e.g., use of secure portals instead of

email).

2. We will ask the arbitral tribunal and the

parties to consider and, if appropriate,

agree to specific encryption standards for

the transmission of sensitive information.

3. We will propose and encourage arbitral

tribunals to disfavor the use of insecure

email for the transmission of sensitive

information unless additional measures

are taken to secure the information. Such

additional measures may include applying

passwords to documents containing

sensitive information that will be

transmitted via separate channels (e.g.,

texting or via a phone call).

4. We will propose that, where possible,

email accounts maintained by third party

public servers (e.g., Gmail) have additional

access protections such as multi-factor

authentication (e.g., use of a token or

similar mechanism in addition to

username and password).

5. If third-party cloud storage is used, we

will consider whether the third-party

cloud storage incorporates adequate

security protocols.

6. We will consider, and ask that the arbitral

tribunal and opposing party consider,

applicable governmental cross-border

restrictions on the transfer of sensitive

information and adopt reasonable

measures to facilitate compliance with

any restrictions.

Limited Disclosure and Use of Sensitive Information

7. Before submitting any sensitive

information to the arbitral tribunal or

opposing party, we will weigh the

sensitivity of that information against the

relevance and materiality of that

information for that arbitration.

8. We will explore with the arbitral tribunal

whether sensitive information may be

submitted in a form that is only screen

viewable (i.e., not readily downloadable or

printable). If sensitive information is

permitted to be printed, we will ask the

tribunal to establish consistent policies

and procedures related to the destruction

of printed materials.

9. To the extent practicable, we will limit the

persons who have access to sensitive

information to those persons having a

need-to-know with respect to such

information.

164

10. To the extent practicable, access to

sensitive information on computer

systems should be restricted to those

using a secure log-in ID and password,

with a unique log-in ID and password

assigned to each individual. We will

consider, and ask that the arbitral

tribunal and opposing party consider, the

use of multi-factor authentication to

access accounts or portals used to

transmit and receive sensitive

information.

11. We will restrict the ability to transfer

sensitive information to mobile devices

only if they use encryption or other

appropriate security protocols.

12. At the client’s request, we will establish

procedures for returning or destroying

sensitive information upon the

conclusion of the arbitration.

Procedure for Disclosing Data Breaches

13. We will take reasonable steps to mitigate

any potential breach, including by

contracting with third-party vendors as

necessary.

14. We will propose and work with the

arbitral tribunal to establish policies and

procedures related to detecting breaches,

determining their scope, and notifying

affected parties. Where the existence of

the arbitration is itself confidential, we

will work with the tribunal to consider

means of notifying affected parties that

best preserve the confidentiality of the

arbitration.

15. We will propose and work with the

arbitral tribunal to establish point-

persons for each party to the arbitration

and the tribunal itself to be responsible

for coordinating communications in the

event of a data breach or other incident

that exposes or affects sensitive

information.

16. We will consider whether there are any

legal obligations to report the breach to

affected parties, regulatory agencies, or

other authorities.

165

Debevoise’s Senior

International Disputes Team

167

Catherine Amirfar

Catherine Amirfar is a partner in the International Dispute

Resolution Group, Co-Chair of the firm’s Public

International Law Group, and a member of the firm’s

Management Committee. Her practice focuses on international commercial and

treaty arbitration, international litigation, and public international law, and she

regularly appears in U.S. courts and before international courts and arbitration

tribunals. With over fifteen years of experience, Ms. Amirfar is recognized as a

top practitioner in international disputes globally. Prior to rejoining Debevoise

in 2016, Ms. Amirfar spent two years as the Counselor on International Law to

the Legal Adviser at the U.S. Department of State, and received the State

Department’s Superior Honor Award in recognition of her contributions to the

Department. Ms. Amirfar was one of the youngest lawyers ever to argue before

the International Court of Justice.

Ms. Amirfar is admitted to practice in New York.

Donald Francis Donovan

Donald Francis Donovan is Co-Chair of Debevoise’s

International Dispute Resolution Group and its Public

International Law Group, and serves as counsel in

international disputes before United States and international courts, as well as

international arbitration tribunals. He is the Immediate Past President of the

International Council for Commercial Arbitration (ICCA), the leading global

organization of international arbitrators and arbitration practitioners, and

regularly sits as arbitrator in international cases, including under the auspices of

ICSID, the ICC, and the ICDR, as president, chair, sole arbitrator, and co-

arbitrator.

Mr. Donovan is widely regarded as one of the leading international arbitration

practitioners, international lawyers, and international advocates in the world.

He is admitted to practice in New York.

168

Tony Dymond

Tony Dymond is a partner in the International Dispute

Resolution Group. His practice focuses on complex, multi-

jurisdictional construction and engineering disputes in both

litigation and arbitration. He has advised clients in a wide range of jurisdictions,

having spent the last 20 years in London, Hong Kong and Seoul. Mr. Dymond

has advised on some of the largest and most complex market-shaping disputes

in these sectors, and is widely acknowledged as a leading lawyer in energy and

infrastructure. He has appeared in arbitrations under the principal arbitration

rules and in the English and Hong Kong courts. Mr. Dymond is a regular

speaker at construction and arbitration conferences and contributor to

construction law journals.

Mr. Dymond is admitted to practice in England & Wales and Hong Kong.

Mark W. Friedman

Mark W. Friedman is a partner in the International Dispute

Resolution Group. His practice concentrates on

international arbitration and litigation, and he also has broad

experience in civil and criminal matters. Mr. Friedman has represented clients in

a wide variety of complex commercial and investor-state disputes across many

industry sectors, including energy, mining, finance, insurance, construction,

shareholder relationships, joint ventures, media, telecommunications and

manufacturing. He has acted as counsel or arbitrator in disputes under the rules

of the ICC, LCIA, AAA, ICDR, CPR, UNCITRAL and ICSID. He is a Vice

President of the ICC International Court of Arbitration and is a former Chair of

the International Bar Association Arbitration Committee.

Mr. Friedman was named “International Arbitration Attorney of the Year” by

Benchmark Litigation for both 2016 & 2017. He is admitted to practice in

New York and Massachusetts.

Debevoise’s Senior International Disputes Team (cont’d)

169

Lord Goldsmith QC, PC

Lord Peter Goldsmith QC, PC is London Co-Managing

Partner, Chair of European and Asian Litigation, and Co-

Chair of Debevoise’s Caribbean Practice. He regularly

appears in European and international courts and tribunals, acting for a variety

of clients in both arbitration and litigation. He conducts arbitrations under all

the major institutions, including LCIA, ICC and SIAC, and in ad hoc arbitrations.

Significant work includes partnership disputes, joint ventures, oil and gas

disputes, investment treaties, auditors’ liability, insurance and takeover law,

banking law, company law, insolvency litigation, public law and public

international law, including judicial review and human rights law. He served as

the UK’s Attorney General from 2001-2007, prior to which he was in private

practice as one of the leading barristers in London. He has judicial experience as

a Crown Court recorder and Deputy High Court Judge.

Lord Goldsmith is fluent in French. He became Queen’s Counsel in 1987. He is

admitted to practice in England & Wales, Paris, New South Wales, Northern

Ireland, Belize and British Virgin Islands, and he regularly appears for clients in

other Commonwealth courts.

Antoine F. Kirry

Antoine F. Kirry is a partner in the International Dispute

Resolution Group. Mr. Kirry has substantial litigation and

arbitration experience, with particular emphasis on M&A-

related disputes. He has represented defendants in some of the most publicized

insider trading cases brought before the French financial market regulator and

the French criminal courts, and has also handled arbitrations under the auspices

of the ICC Court of Arbitration, the Arbitration Institute of the Stockholm

Chamber of Commerce and the Arbitration Court of the Russian Federation

Chamber of Commerce and Industry, as well as ad hoc arbitrations in various

European countries. For over nine years, Mr. Kirry was a member of the board

of directors of Association Droit et Procédure, one of the oldest and most

respected associations of litigation practitioners in France.

Mr. Kirry is admitted to practice in Paris and New York, and is fluent in English

and French.

170

Wendy J. Miles, QC

Wendy J. Miles QC is a partner in the International Dispute

Resolution Group. Her practice focuses on international

arbitration and public international law, and she is

recognized as one of the foremost practitioners in those fields. With over twenty

years of experience, Ms. Miles has conducted arbitrations under all the major

institutions, as well as undertaking significant public international law cases.

She has advised a wide range of multi-nationals, sovereign states and state

entities, and represents clients across numerous sectors, including energy,

natural resources, gaming, manufacturing, financial services, pharmaceutical,

licensing, telecommunications, insurance and construction. Ms. Miles is a Vice

President of the ICC International Court of Arbitration and former Vice Chair

of the International Bar Association Arbitration Committee.

Ms. Miles became Queen’s Counsel in 2015. She is admitted to practice in

England & Wales and New Zealand.

Ina C. Popova

Ina C. Popova is a partner in the International Dispute

Resolution Group who focuses on international arbitration

and litigation and public international law, with particular

expertise in matters in the mining, energy and media sectors. She represents

individuals, corporations and States and has broad experience under the rules of

the major arbitral institutions and several regional institutions. She also advises

parties in international litigations involving proceedings in foreign and domestic

courts, and has represented parties before the federal and state courts in the

United States, including the United States Supreme Court. She has assumed

leadership positions in various international arbitration organizations, including

as a Member of the ICC International Court of Arbitration. Ms. Popova leads

matters throughout the world, including in particular disputes arising out of

Africa and Latin America.

Ms. Popova is fluent in French, Spanish, Italian and Bulgarian, and is proficient

in Portuguese. She is admitted to practice in New York and Paris.

Debevoise’s Senior International Disputes Team (cont’d)

171

Dietmar W. Prager

Dietmar W. Prager is a partner in the International Dispute

Resolution Group who focuses his practice on international

arbitration and litigation, with a particular emphasis on

Latin America. He is Co-Chair of the firm’s Latin America Practice Group, and

has represented parties in numerous arbitrations throughout the world under

the auspices of the ICC, ICSID, LCIA, AAA, ICDR and the PCA as well as in ad

hoc arbitration proceedings. Dr. Prager’s recent representations include disputes

involving complex construction projects, investment treaties, energy and

mining projects, oil & gas projects, the retail sector, the finance sector, sovereign

debt, and distribution agreements. Dr. Prager also regularly sits as arbitrator and

was one of the youngest lawyers ever to argue before the International Court of

Justice.

Dr. Prager is fluent in German, English, Spanish, and French, and is proficient in

Portuguese. He is admitted to practice in New York.

Natalie L. Reid

Natalie L. Reid is a partner in the International Dispute

Resolution Group and Co-Chair of Debevoise’s Caribbean

Practice. Ms. Reid focuses on international arbitration,

public international law, and complex commercial litigation matters. A Jamaican

national, she regularly advises and represents states, multinational corporations,

international organizations, and nongovernmental organizations in proceedings

in U.S. courts and international fora. Ms. Reid acts as counsel in commercial and

treaty arbitrations conducted under the rules of the major arbitral institutions,

where her recent representations include disputes arising under bilateral

investment treaties in South Asia and East Asia. She currently serves as a

Director of the London Court of International Arbitration (LCIA). Additionally

she serves on the Board of Editors of the American Journal of International Law,

and multiple committees of the American Society of International Law (ASIL).

Ms. Reid is proficient in French and Spanish. She is admitted to practice in

New York.

172

David W. Rivkin

David W. Rivkin is Co-Chair of Debevoise’ s International

Dispute Resolution Group and Past President of the

International Bar Association. Mr. Rivkin is consistently

ranked as one of the world’s top international dispute resolution practitioners

and international lawyers. He has acted as counsel and as arbitrator in

international arbitrations throughout the world and in U.S. courts. He has won

some of the largest investment treaty and commercial arbitration awards.

Subjects of these arbitrations have included long-term energy concessions,

investment treaties, public international law, joint venture agreements, financial

issues, insurance coverage, construction contracts, distribution agreements, and

intellectual property, among others, and they have involved common law, civil

law and Islamic law systems.

Mr. Rivkin is admitted to practice in New York.

Samantha J. Rowe

Samantha J. Rowe is a partner in the International Dispute

Resolution Group, whose practice focuses on international

arbitration and public international law. Ms. Rowe has

represented private clients and Sates across multiple jurisdictions (most notably,

Latin America, Asia, the Middle East, and Eastern Europe) in arbitrations

governed by various substantive laws and conducted under the rules of the ICC,

LCIA, ICSID, UNCITRAL, and SIAC. She has experience across a broad range of

industries and sectors, including energy, mining, construction, financial services

and pharmaceuticals. She advises clients on a broad range of international law

issues, including the international protection of investments, and represents her

clients in associated disputes.

Ms. Rowe is fluent in French and Spanish, and proficient in Portuguese. She is

admitted to practice in England & Wales and New York.

Debevoise’s Senior International Disputes Team (cont’d)

173

William H. Taft V

William H. Taft V is a partner in the Litigation Department.

His practice focuses on commercial and corporate

governance litigation and international arbitration. Mr. Taft

regularly acts for clients in U.S. litigation involving foreign parties and issues

such as jurisdiction, forum non conveniens and foreign discovery. He also

frequently advises clients in disputes arising from joint venture and partnership

agreements, including matters involving commercial real estate and

infrastructure development project companies, and has experience handling a

broad range of contract disputes. He is a member of the American Society of

International Law, the New York City Bar Association and has served on the

International Disputes Committee of the New York City Bar Association.

Mr. Taft is admitted to practice in New York.

Christopher K. Tahbaz

Christopher K. Tahbaz is a partner in the International

Dispute Resolution Group and currently serves as

Debevoise’s Co-Chair of Asian Litigation. He is a litigator

and arbitrator with a broad range of U.S. and international experience. Mr.

Tahbaz regularly represents U.S. and Asia-based multinational corporations in

commercial arbitration before the ICC, the LCIA and other arbitral institutions;

he also regularly represents clients in investment treaty arbitrations. In recent

years, Mr. Tahbaz has represented clients in post-M&A disputes, and in

commercial and investment treaty disputes arising out of the financial,

pharmaceutical, solar energy and gaming sectors, among others. Mr. Tahbaz

also regularly serves as arbitrator in arbitrations conducted under the HKIAC,

UNCITRAL, ICDR/AAA and ICC rules. He recently concluded a term as Co-

Chair of the International Bar Association Litigation Committee.

Mr. Tahbaz is admitted to practice in New York.

174

Patrick Taylor

Patrick Taylor is a partner in the International Dispute

Resolution Group who focuses on commercial and

investment treaty arbitration, with particular experience in

the upstream oil & gas, energy and telecommunications sectors, and tax-related

disputes. Mr. Taylor’s practice and experience is geared towards advising clients

in the most high-stakes, complex and valuable disputes. He has developed

particular expertise advising on investment protection and investment dispute

settlements in high-risk jurisdictions, the enforcement of fiscal and legislative

stabilisation clauses, production sharing and shareholder/ joint venture disputes

and complex damages analysis. Mr. Taylor has advised and represented clients in

disputes throughout the world, most frequently in Africa, Eastern Europe,

Russia and the CIS, and, increasingly, in Latin America. He has acted in

arbitrations under the rules of ICSID, the LCIA, the ICC, UNCITRAL, the

Stockholm Chamber of Commerce, the Nigerian Arbitration and Conciliation

Act and the Milan Chamber of Arbitration.

Mr. Taylor is fluent in French and is proficient in Spanish. He is admitted to

practice in England & Wales and Ireland, and is qualified as a solicitor-advocate

(High Rights Civil).

Frederick T. Davis

Frederick T. Davis is of counsel to the firm and a member of

the International Dispute Resolution Group. His practice

focuses on criminal, regulatory and civil litigation, and

investigations involving U.S. and French laws. Mr. Davis is an experienced trial

lawyer who has represented clients in high profile matters in both French and

English language tribunals. He has represented major U.S., French and

multinational companies in both domestic and international criminal

investigations. He has also appeared as legal counsel in international arbitrations

administered by the ICC, AAA and other institutions, and has served as an

arbitrator in ICC arbitrations. The French government has named him a

“Chevalier” of the National Order of Merit of France.

Mr. Davis is a former U.S. federal prosecutor. He is fluent in French and

proficient in German. Mr. Davis is admitted to practice in New York and Paris.

Debevoise’s Senior International Disputes Team (cont’d)

175

Alexandre Bisch

Alexandre Bisch is an international counsel and a member of

the firm’s Litigation Department. He has experience in

complex domestic and international commercial litigation. He frequently argues

cases before civil and commercial courts in the Paris area. His practice also

focuses on white-collar criminal defense before French criminal courts and

before the French financial markets regulator, Autorité des Marchés Financiers

(AMF). Mr. Bisch previously served for three years as a senior legal officer for

the AMF Enforcement Division where he worked on cases involving financial

misconduct, including insider trading and market manipulation.

Mr. Bisch is a member of the Paris Bar. His native language is French and he is

fluent in English.

Gavin Chesney

Gavin Chesney is an international counsel in the firm’s

International Dispute Resolution Group. His practice

focuses on international commercial disputes, both in

international arbitration and in court litigation. Mr. Chesney represents a wide

variety of clients including major corporations, high net worth individuals and

sovereign states in a range of complex, high-value disputes across sectors

including mining, power, oil and gas, and financial services.

He has appeared in proceedings under the auspices of ICSID, UNCITRAL, the

ICC, the LCIA, the SIAC and the AAA, as well as in ad hoc arbitrations and

litigation proceedings in the English courts. Mr. Chesney also has experience in

the construction sector, for which he has been recognized as a “next generation

lawyer” by The Legal 500.

Mr. Chesney is admitted as a solicitor of the Senior Courts of England & Wales

and as a solicitor-advocate exercises full rights of audience before all civil courts

of England & Wales.

176

Floriane Lavaud

Floriane Lavaud is a counsel in the International Dispute

Resolution Group. Her practice focuses on international

investment and commercial arbitration and enforcement-

related litigation, in particular in the energy and mining sectors. Ms. Lavaud

represents clients in arbitrations conducted under the auspices of the main

arbitration institutions and in related court proceedings. She has advised clients

in a variety of jurisdictions and fora on issues of civil and common law, public

international law, and treaty and contract interpretation. Her experience also

includes the assessment of damages and the enforcement of arbitration awards,

especially under the Foreign Sovereign Immunities Act and other similar

legislation.

Ms. Lavaud is a native French speaker and is proficient in Spanish and basic

Dutch. She is admitted to practice in New York, Paris, and England & Wales.

Aimee-Jane Lee

Aimee-Jane Lee is an international counsel in the firm’s

International Dispute Resolution Group, whose practice

focuses on international commercial arbitration and

litigation, and public international law. Ms. Lee has advised private clients and

states across multiple jurisdictions (notably in Asia, Africa and Eastern Europe)

and a number of industries, including mining, construction, hospitality,

advertising and, especially, energy. She also advises on the international

protection of investments (notably under bilateral investment treaties, the

Energy Charter Treaty and investor-state contracts) and represents clients in

associated disputes.

In addition to her legal experience, Ms. Lee has passed Levels 1, 2 and 3 of the

Chartered Financial Analyst (CFA) exams. She is therefore particularly

proficient in assisting clients with quantum-related aspects of their dispute and

liaising with quantum experts. Ms. Lee is admitted to practice in England &

Wales.

Debevoise’s Senior International Disputes Team (cont’d)

177

Carl Micarelli

Carl Micarelli is a counsel in the International Dispute

Resolution Group. His practice has included international

and domestic commercial arbitration, international

investment arbitration, economic sanctions compliance advice, litigation aspects

of insurance regulation, class action defense and general commercial litigation.

Mr. Micarelli regularly advises clients in connection with sanctions regulations

administered by the Office of Foreign Assets Control (OFAC) in the U.S.

Department of the Treasury. This work has included ongoing compliance advice,

investigations of potentially noncompliant transactions, licensing matters and

litigation. He also has significant experience with litigation regarding the

enforceability of arbitration agreements and arbitral awards, and has assisted a

number of life insurance companies on regulatory matters.

Mr. Micarelli is admitted to practice in New York.

Evgeny Samoylov

Evgeny Samoylov is an international counsel in the Moscow

office and a member of the firm’s International Dispute

Resolution Group. His practice spans commercial, corporate,

construction, infrastructure and real estate disputes. He advises and represents

clients from a wide range of sectors both in international arbitration and in

court litigation. Since 2010, Mr. Samoylov has been an assistant professor at

MSU, lecturing and delivering practical classes on civil (private) law.

Mr. Samoylov is admitted to practice in Russia. A native Russian speaker, he is

fluent in English and German.

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