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Table of Contents
Editorial
The Autonomy of International Arbitration Revisited
Toni Marzal
This Editorial seeks to describe how international arbitral practice, and its various claims to autonomy, have been shaped by competing visions, whose influence varies depending on changing environments, in ways that ultimately determine the field’s development and driving preoccupations. The concept of autonomy is omnipresent in arbitration scholarship and touted as central to the field’s existence. Common accounts tend however to only emphasise the degree to which international arbitration evolves freely from State control. In so doing, they pass over the specific and evolving visions that support claims to autonomy from national legal systems, as well as how such claims serve to re-embed arbitral practice in alternative non-State normativities. Two such competing visions will be identified: the first, more prevalent in an earlier period, presented autonomy as the reflection of a distinct sociological reality (that specific to commercial actors engaged in cross-border trade); the second, more popular today, largely understands autonomy as a function of self-sustaining legal principles that are not specific to international arbitration, but the expression of globally extensive and universally valid ideas of justice.
Articles
Bruno Balbiani & Federico Fernández de León
There are a considerable number of legislations that expressly admit the possibility for parties to exclude, by mutual agreement, the right to submit an application for setting aside a future award. Instead, other jurisdictions have chosen to expressly deny this possibility. However, the reality indicates that most legal systems in comparative law, including the United Nations Commission on International Trade Law Model Law [“Model Law ”], still do not contain an explicit normative solution regarding the validity of these agreements. Therefore, in cases where we do not find an express solution to this matter, should we admit the validity of these agreements?
The question of the validity of agreements waiving the right to challenge arbitral awards is a complex issue that touches upon fundamental principles of party autonomy, public policy, and international human rights. Through a careful analysis of jurisprudential and doctrinal arguments, both for and against such agreements, this note seeks to shed light on the delicate balance between justice and efficiency in international arbitration.
Arbitrator Bias And Evident Partiality: The United States Perspective
Ava Borrasso
Some of the world’s most renowned arbitrators have faced challenges to awards they issued based on claims of evident partiality. Those challenges are typically last-ditch efforts to vacate an unfavourable award. Similarly, challenges to confirmation of an award based on the New York Convention’s public policy defence or arguments that the tribunal was not formed in accordance with the agreement of the parties typically fail. This article analyses challenges centered on arbitrator conflicts of interest or bias under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards [“New York Convention”] and the Federal Arbitration Act [“FAA”] pursuant to the United States of America [“US”] law. Consistent with international norms, US law emphasises the importance of arbitration as an alternative means of dispute resolution and leans strongly in favour of upholding arbitration awards when issues of arbitrator impartiality are raised. It is the rare case that results in the vacatur of an award issued in the US, or refusal to confirm an award issued elsewhere when US law confronts the issue as a secondary jurisdiction. The inquiry is always fact-intensive, and the rise in such challenges, demonstrated most recently by a challenge to an international arbitration award involving the expansion of the Panama Canal, leads to increased cost and inefficiency in the very process meant to streamline the resolution of commercial disputes.
This article discusses a recent analysis of the issue by the Eleventh Circuit Court of Appeal (part I) then turns to an overview of cases holding vacatur was not warranted pursuant to Section 10 of the FAA (part II) before discussing cases holding vacatur was warranted (part III). Next, the article looks at decisions in which US courts with secondary jurisdiction examine bias or conflict pursuant to Article V of the New York Convention (part IV) before offering some closing remarks (part V).
Jennifer Bryant & Johannes Hagmann
The parties’ consent to arbitrate is the cornerstone of arbitration. Yet, there are scenarios where it might be appropriate to include a non-signatory in the arbitration, based on an extension of the personal scope of the arbitration agreement. Some of the most discussed legal concepts to justify such an extension beyond the signatories of the arbitral agreement are notions of implied consent, the group of companies doctrine, and the theory of piercing the corporate veil. While all these legal theories are applied to extend arbitration agreements in different jurisdictions, their acceptance and the specifics vary considerably across jurisdictions. Recent supreme court decisions from Switzerland, Germany, France, and India addressed these concepts and thereby, reflected the general approach of each jurisdiction while, at the same time, clarifying the requirements and limitations of extending arbitration agreements in each jurisdiction. This article depicts six recent decisions in that context, relates them to the respective legal concepts addressed, as well as to the general approach in each jurisdiction, and shows the fundamental differences which parties and arbitral tribunals need to bear in mind when dealing with cross-border arbitrations, in light of the recent case law related to extending arbitration agreements.