Practising Virtue: Inside International Arbitration
Practising Virtue: Inside International Arbitration
Dean, The Dickson Poon School of Law
Professor of International Economic Law and Governance
Of Counsel
Cite
Abstract
International arbitration has developed into a global system of adjudication, dealing with disputes arising from a variety of legal relationships: between states, between private commercial actors, and between private and public entities. It operates to a large extent according to its own rules and dynamics—a transnational justice system rather independent of domestic and international law. In response to its growing importance and use by disputing parties, international arbitration has become increasingly institutionalized, professionalized, and judicialized. At the same time, it has gained significance beyond specific disputes and indeed contributes to the shaping of law. Arbitrators have therefore become not only adjudicators, but transnational law-makers. This has raised concerns over the legitimacy of international arbitration. This book looks at international arbitration from the ‘inside’, with an emphasis on its transnational character. Instead of concentrating on the national and international law governing international arbitration, it focuses on those who practise international arbitration, in order to understand how it actually works, what its sources of authority are, and what demands of legitimacy it must meet. Putting those who practise arbitration into the centre of the system of international arbitration allows us to appreciate the way in which they contribute to the development of the law they apply.
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Front Matter
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Practising Virtue: An Introduction
David D Caron and others
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Part I International Arbitration as Part of the Transnational Justice System
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1
The Transnational Protection of Private Rights: Issues, Challenges, and Possible Solutions
Sundaresh Menon
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2
The Changing World of International Arbitration
Alan Redfern
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3
International Commercial Arbitration and Investment Treaty Arbitration: Analogies and Differences
Piero Bernardini
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4
International Jurisprudence, Global Governance, and Global Administrative Law
Eduardo Zuleta
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5
The Culture of Arbitration and the Defence of Arbitral Legitimacy
James H Carter
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6
Conceptions of Legitimacy of International Arbitration
Stephan W Schill
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1
The Transnational Protection of Private Rights: Issues, Challenges, and Possible Solutions
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Part II History and Sociology of International Arbitration
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7
The Historical Keystone to International Arbitration: The Party-Appointed Arbitrator—From Miami to Geneva
V V Veeder
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8
‘Black’s Bank’ and the Settlement of Investment Disputes
Antonio R Parra
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9
Judge Sir Hersch Lauterpacht’s Report on the Revision of the Statute of the International Court of Justice
Stephen M Schwebel
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10
Jurisdictional Errors: A Critique of the North American Dredging Company Case
Oscar M Garibaldi
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11
Sociology of International Arbitration
Emmanuel Gaillard
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12
From Law Professor to International Adjudicator: The WTO Appellate Body and ICSID Arbitration Compared, a Personal Account
Giorgio Sacerdoti
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13
The Advocate in the Transnational Justice System
Donald Francis Donovan
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7
The Historical Keystone to International Arbitration: The Party-Appointed Arbitrator—From Miami to Geneva
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Part III Authority of International Arbitral Tribunals and Its Limits
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14
Pre-Arbitration Procedural Requirements: ‘A Dismal Swamp’
Gary Born andMarija Šćekić
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15
At What Time Must Jurisdiction Exist?
Christoph Schreuer
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16
Local Remedies in International Treaties: A Stocktaking
Rudolf Dolzer
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17
Investor-State Tribunals and National Courts: A Harmony of Spheres?
L Yves Fortier
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18
Should International Commercial Arbitrators Declare a Law Unconstitutional?
Horacio A Grigera Naón
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19
The Enforceability of Legislative Stabilization Clauses
Joseph E Neuhaus
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20
Non-Payment of Advances on Costs: No Pay, Can Play?
Neil Kaplan
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21
Document Production and Legal Privilege in International Commercial Arbitration
Julian D M Lew
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22
Fair and Equitable Treatment of Witnesses in International Arbitration—Some Emerging Principles
David A R Williams andAnna Kirk
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14
Pre-Arbitration Procedural Requirements: ‘A Dismal Swamp’
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Part IV Reasoning and Decision-Making in the Arbitral Process
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23
Regulating Opacity: Shaping How Tribunals Think
David D Caron
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24
The Development of Legal Argument in Arbitration: Law as an Afterthought—Is It Time to Recalibrate Our Approach?
Judith A E Gill
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25
Babel and BITs: Divergence Analysis and Authentication in the Unusual Decision of Kiliç v Turkmenistan
Mahnoush H Arsanjani andW Michael Reisman
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26
Reporting from the Arbitral Shop-Floor: Treaty Interpretation in Practice
Kaj Hobér
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27
Judge Brower and the Vienna Convention Rules of Treaty Interpretation
Stanimir A Alexandrov
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28
Contemporaneity and Its Limits in Treaty Interpretation
Epaminontas E Triantafilou
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29
Deliberations of Arbitrators
Richard M Mosk
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30
Charles Brower’s Problem with 100%— Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration
Albert Jan van den Berg
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31
How to Draft Enforceable Awards under the Model Law
Michael Hwang andJoshua Lim
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23
Regulating Opacity: Shaping How Tribunals Think
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Part V Studies in Investment Treaty Arbitration
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32
The Deal with BITs: What the Parties Thought They Would Get, What They Thought They Were Giving Up to Get It, and What They Got
O Thomas Johnson
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33
Reflections on ‘Most Favoured Nation’ Clauses in Bilateral Investment Treaties
Christopher Greenwood
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34
The Non-Disputing State Party in Investment Arbitration: An Interested Player or the Third Man Out?
Loretta Malintoppi andHussein Haeri
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35
Time in International Law and Arbitration: The Chess Clock No Longer Works
Francisco Orrego Vicuña
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36
Challenges to Arbitrators in ICSID Arbitration
James Crawford
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37
‘Pure’ Issue Conflicts in Investment Treaty Arbitration
Gavan Griffith andDaniel Kalderimis
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38
Compensation Due in the Event of an Unlawful Expropriation: The ‘Simple Scheme’ Presented by Chorzów Factory and Its Relevance to Investment Treaty Disputes
Abby Cohen Smutny
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39
Future Damages in Investment Arbitration— a Tribunal with a Crystal Ball?
Hans van Houtte andBridie McAsey
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40
Allocation of Costs in Recent ICSID Awards
Arthur W Rovine
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41
The Two Annulment Decisions in Amco Asia and ‘Non-Application’ of Applicable Law by ICSID Tribunals
Carolyn B Lamm and others
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42
Of Wit, Wisdom, and Balance in International Law: Reflections on the Tokyo Resolution of the Institut de Droit International
Pierre-Marie Dupuy andJulie Maupin
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32
The Deal with BITs: What the Parties Thought They Would Get, What They Thought They Were Giving Up to Get It, and What They Got
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End Matter
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