INTERNATIONAL COMMERCIAL ARBITRATION LAW
By Dr. A. Francis Julian
I. COURSE OVERVIEW AND INTRODUCTION
A. COURSE OVERVIEW
1. What is International Commercial Arbitration?
It is a voluntary system of private international law for resolving disputes between
commercial entities in cross-border transactions.
2. What are the Specific features of International Commercial Arbitration?
i. The dispute is resolved by independent and impartial persons (Arbitrators) chosen by
parties, who give binding decisions.
ii. The Arbitrator’s decisions are enforceable in the domestic courts of most countries as
judgements
iii. Unlike domestic court decisions the arbitrator’s decisions are subject to limited review
in domestic courts
3. Whether all disputes can be resolved by International Commercial Arbitration?
i. National laws prescribe limitations on the subject matter of International Commercial
Arbitration
ii. Increasing acceptance of International Commercial Arbitration as the best method of
resolving commercial disputes
4. How International Commercial Arbitration has emerged as a Specialised field?
Specialists are required for initiating arbitration, for conducting proceedings before the
Arbitration Tribunals, and enforcement of awards in domestic courts.
B. CHARACTERISTICS OF ARBITRATION
1. Distinction between Arbitration and Litigation
i. International litigation takes place in a court in a country subject to cumbersome
jurisdictional rules involving choice of courts, forum shopping and multiplicity of
litigation. International arbitration, however, is conducted in seat/place chosen by parties,
involving neutral venue and conducive legal framework.
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ii. In litigation, Judge is assigned by court. In arbitration, parties choose the arbitrator with
expertise, neutrality, and desired skills.
iii. In litigation procedure is fixed by court. In arbitration parties choose the procedure.
iv. In litigation proceedings are open. In arbitration the proceedings are confidential
v. In litigation, appeal lies. In arbitration generally the award is final.
vi. Foreign judgments are not easy to enforce. Foreign awards are easier.
2. Distinction between Arbitration and ADR
i. ADR is a friendlier means of resolution of disputes.
ii. Parties work together with an experienced third person.
iii. Settlement is recorded in the form of a written agreement and enforceable either voluntarily
or as a contract. Conventions do not apply. The dispute resolution is faster and cheaper
and relationship between the parties continues.
iv. Arbitral awards are final and binding. Arbitral decisions are imposed.
3. Distinction between International Arbitration and Domestic Arbitration
i. Generally, many jurisdictions have different laws governing domestic arbitration and
international commercial arbitration.
ii. In domestic arbitration, parties have less freedom to determine arbitration procedure, more
possibilities of recourse to appeal and greater degree of domestic court’s involvement.
iii. In domestic arbitration the law defines the seat of arbitration.
iv. Indian Arbitration and Conciliation Act
S. 2.(f) "international commercial arbitration" means an arbitration relating to disputes
arising out of legal relationships, whether contractual or not, considered as commercial
under the law in for in India and where at least one of the parties is-
(i) an individual who is a national of, or habitually resident in, any country other than
India; or
(ii) a body corporate which is incorporated in any country other than India; or
(iii) a company or an association or a body of individuals whose central management
and control is exercised in any country other than India; or
(iv) the Government of a foreign country;
Bharat Aluminium Co. v Kaiser Al. Tech. Services Inc (2012) 9 SCC 648
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C. LEGAL REGIME OF INTERNATIONAL COMMERCIAL ARBITRATION
1. National Laws
Now modelled after UNCITRAL Model Law
2. International Treaties
i. Geneva Protocol of 1923
ii. Geneva Convention of 1927
iii. New York Convention of 1958
iv. International Convention for Settlement of Investment Disputes Convention of
1965
v. Inter-American Convention on International Commercial Arbitration of 1975
vi. European Convention on International Commercial Arbitration of 1961
vii. UNCITRAL Arbitration Rules adopted in 1976 and revised in 2010
viii. UNCITRAL Model Law adopted in 1985
ix. Revisions to the Model Law adopted in 2006
3. International Practices (Soft Law)
i. International Bar Association on the Taking of Evidence
ii. IBA Guidelines on Conflicts of Interest for Arbitrators
iii. American Bar Association Code of Ethics for Arbitrators
iv. Rules of Various International Arbitral Institutions such as ICC, LCIA, AAA and
others
4. Private Agreements
5. Agreed upon Rules
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