Table Of ContentCONTEMPORARY PROBLEMS IN INTERNATIONAL ARBITRATION
Contemporary Problems
in International Arbitration
edited by
JULIAN D.M. LEW
Head of the School of International Arbitration,
Centre for Commercial Law Studies,
Queen Mary College, University of London
1987 Springer-Science+Business Media, B.Y.
IV
Distrlbuton
Library of Congress Cataloging in PubUcation Data
ISBN 978-0-89838-926-5 ISBN 978-94-017-1156-2 (eBook)
DOI 10.1007/978-94-017-1156-2
Book Information
This book was first published in 1986 in a hardcover edition by the Centre of
Commercial Law Studies
Copyright
© 1987 Springer Science+Business Media Dordrecht
Originally published by Centre for Commercial Law Studies, Queen Mary College,
.
University of London in 1987.
All rights reserved. No part of this publication may be reproduced. stored in a
retrieval system. or transmitted in any form or by any means. mechanical.
photocopying. recording. or otherwise. without the prior written permission of
the publishers. Springer-Science+Business Media, B.V.
Contents
Glossary of terms ix
List of contributors xi
Table of Cases xiii
Table of Statutes xxv
Table of Treaties and Conventions xxxii
Draft Legislation xxxvi
Rules xxxviii
Resolutions xli
Declaration xlii
Draft Convention xliii
EEC Secondary Legislation (Regulations) xliv
Miscellaneous xlv
Introduction Julian DM Lew I
Part 1 The School of International Arbitration
1 The birth of the School of International Arbitration 9
Pieter Sanders
2 The School of International Arbitration: aspirations and objects 12
Roy Goode
3 International arbitration - teaching and research 16
Pierre Lalive
Part 2 The jurisdiction and authority of arbitrators
4 ICSID arbitration 23
Georges R Delaume
5 States in the international arbitral process 40
Karl-Heinz B6ckstiegel
6 The sources and limits of the arbitrator's powers 50
Sigvard Jarvin
7 Determination of arbitrator's jurisdiction and the public policy limitations
on that jurisdiction 73
Julian D M Lew
8 The sources and limits of the arbitrators' powers in England 86
Kenneth S Rokison
9 The law applicable to the merits of the dispute 101
Ole Lando
10 The applicable law: general principles oflaw - the lex mercatoria 113
Berthold Goldman
II The law governing the agreement and procedure in international
arbitration in England 126
Lawrence Collins
v
vi Contemporary problems in international arbitration
Part 3 International arbitration procedure
12 The extent of independence of international arbitration from the law of the
situs 141
Jan Paulsson
13 The role of national law and the national courts in England 149
Stewart C Boyd QC
14 The role of the courts under the UNCITRAL model law script 164
Gerold Herrmann
Annex: UNCITRAL model law on international commercial
arbitration 176
15 Supplementary rules governing the presentation and reception of evidence
in international commercial arbitration 188
David W Shenton
16 Judicial assistance for the arbitrator 195
J Martin H Hunter
17 The supervisory and adjunctive jurisdiction of American courts in
arbitration cases 207
Joseph D Becker
18 The conduct of ICC arbitration proceedings 210
Ottoarndt Glassner
19 The conduct of arbitration proceedings under English law 216
John A Tackaberry
20 Finality of arbitral awards and judicial review 230
Clive M Schmitthoff
Part 4 International arbitration involving states and state-entity
parties
21 The strengths and weaknesses of international arbitration involving a state
as a party 241
Philippe Cahier
22 Disputes between states and foreign companies 250
AH Hermann
23 The strengths and weaknesses of international arbitration involving a state
as a party: practical implications 264
Jeremy P Carver
24 International arbitration between states and corporate entities: a
cautionary note 273
Kenneth R Simmonds
25 Settlement of disputes within the framework of foreign debt rescheduling
in Latin American countries 279
Bernardo M Cremades
26 Arbitration with foreign states or state-controlled entities: some practical
questions 289
Pierre Lalive
Contents vii
27 Structuring the arbitration in advance - the arbitration clause in an
international development agreement 297
Markham Ball
28 Sovereign immunity and transnational arbitration 313
Georges R Delaume
29 Sovereign immunity and arbitration 323
Hazel Fox
30 Enforcement of arbitral awards in Eastern Europe 332
Werner Melis
31 The recognition and enforcement of foreign arbitral awards in the states of
the Arab Middle East 340
SamirSaleh
32 So far, so good: enforcement of foreign commercial arbitration awards in
United States courts 353
Robert Coulson
33 The enforcement of arbitral awards against a state: the problem of
immunity from execution 359
Giorgio Bernini and Albert Jan Van den Berg
Glossary of terms
European Convention means the European Convention on International
Commercial Arbitration, signed in Geneva on April 21, 1961.
ICC means the International Chamber of Commerce, and where appropriate
the Court of Arbitration of the International Chamber of Commerce.
ICC Rules means the Rules of Conciliation and Arbitration of the
International Chamber of Commerce, in force as from June 1, 1975.
ICSID means the International Centre for the Settlement of Investment
Disputes, established by the Washington Convention.
LelA means the London Court of International Arbitration.
New York Convention means the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, signed in New York on June 10,
1958.
UNCITRAL Model Law means the draft Model Law on International
Commercial Arbitration as at March 25, 1985 and as published in United
Nations Document No AlCN 9/264.
UNCITRAL Rules mean the Arbitration rules adopted on April 28, 1976 by
the United Nations Commission on International Trade Law (UNCITRAL) at
its Ninth Session.
Washington Convention means the Convention on the Settlement ofI nvestment
Disputes between States and Nationals of Other States, signed in Washington,
DC, on March 18, 1965.
ix
List of contributors
MarkhamBaU Georges R Delaume
Attorney-at-Law, Wald Harkrader & Ross, Senior Legal Adviser of the International
Washington, DC. Centre for Settlement of Investment
Disputes.
Joseph D Becker
J D Harvard; Attorney-at-Law, partner, Fox Hazel Fox
Flyn & Me1a-ed, New York City; Adjunct Director of the British Institute of
Professor of Law, New York University. International and Comparative Law; formerly
Fellow of Somerville College, Oxford.
Giorgio Bernini
Ottoamdt Glossner
Professor of Law, University of Bologna;
Chairman-Elect of the International Council President of the German Institute of
for Commercial Arbitration; Advocate, Arbitration, Cologne; President of the ICC
Studio Beniini, Bologna. Commission on International Arbitration,
Paris.
Karl-Heinz BOckstiegel
Berthold Goldman
Professor of International Business Law,
University of Cologne; President of the Iran Professor of Law, Universite de Droit
US Claims Tribunal, The Hague. d'Economie et de Sciences Socia1es, Paris.
Stewart C Boyd Roy Goode
One of Her Majesty's Counsel, practising in Crowther Professor of Credit and Commercial
England. Law; Director, Centre for Commercial Law
Studies, Queen Mary College, University of
Philippe Cahier
London.
Professor of the Graduate Institute of
AHHermann
International Studies, Geneva.
Consultant on international business law;
Jeremy P Carver Legal Correspondent of the Financial Times;
Solicitor, partner in Coward Chance, Editor of the Financial Ti11UlS Business Law
London. Brief
Lawrence Collins Gerold Herrmann
Solicitor, partner in Herbert Smith & Co, Legal OfflCer in the UNCITRAL Secretariat
London. (International Trade Law Branch office of
Legal Affairs, United Nations).
Robert Coulson
J Martin H Hunter
President of the American Arbitration
Association. Solicitor, partner in Freshfields, London.
Bemardo M Cremades Sigvard Jarvin
Practising lawyer in Madrid; Professor of General Counsel of the Court of Arbitration
Law, University of Madrid. of the International Chamber of Commerce. xi
xii Contemporary problems in international arbitration
Pierre Lalive Pieter Sanders .
Professor of Law, Geneva University and the Professor Emerims, Law Faculty of the
Graduate Institute of International Smdies, Erasmus University, Rotterdam; Chairman,
Geneva; Counsel, Lalive and Budin, Geneva; International Council for Commercial
President of the ICC Instimte of International Arbitration.
Business Law and Practice, Paris; President
of the Swiss Arbitration Association. Clive M Schmitthoff
Barrister, Visiting Professor of International
Ole Lando
Business Law, City University and of Kent at
Professor of European and Comparative Law, Canterbury; Joint Vice-Chairman of the
Instimte of European Market Law, Committee of Management, Centre for
Copenhagen, School of Economics and Commercial Law Smdies.
Business Administration.
David W Shenton
Julian D M Lew
Solicitor, Senior Partner of Lovell, White &
International Lawyer, Partner in S J Berwin King, London; Chairman of Committee D
& Co, London; Senior Visiting Fellow and (Procedures for Settling Disputes) of the
Head of the School of International Section on Business Law of the International
Arbitration, Centre for Commercial Law Bar Association.
Studies, Queen Mary College, University of
London. Kenneth R Simmonds
Professor of International Law, Queen Mary
WemerMelis
College, University of London; Former Dean
Chairman of the Arbitral Centre of the of the Faculty of Laws, Queen Mary College,
Federal Economic Chamber of Austria. London.
Jan Paulsson John A Tackaberry
Practising Lawyer, Partner in Coudert One of Her Majesty's Counsel, practising in
Freres, Paris. England.
Kenneth S Rokison Albert Van den Berg
One of Her Majesty's Counsel, practising in Partner, Messrs Van Doorne & Sjollema,
England. Rotterdam.
Samir Saleh
Attorney-at-Law (Beirut), Law Consultant
(London), Islaniic and Middle Eastern Law,
Vice-Chairman of the Court of Arbitration,
ICC, Paris.
