International arbitration is arbitration between companies or individuals in different states , usually by including a provision for future disputes in a contract.
56-594: Arbitration agreements and arbitral awards are enforced under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New York Convention"). The International Centre for the Settlement of Investment Disputes (ICSID) also handles arbitration, but it is limited to investor-state dispute settlement . The New York Convention was drafted under
112-552: A US proposal for that working group to develop a convention on the enforcement of conciliated settlement agreements for international commercial disputes. Within the EU, the enforceability of mediation agreements is ruled by Directive 2008/52/EC. Under the New York Convention, if a party to arbitration files a lawsuit in breach of an arbitration agreement, the court is obligated to recognize an agreement in writing under which
168-558: A barrier to collection. The legal protection of foreign direct investment is guaranteed by a network of more than 2750 Bilateral Investment Treaties (BITs), Multilateral Investment Treaties, most notably the Energy Charter Treaty and a number of free trade agreements containing chapter on investment protection through investor-state dispute settlement , such as NAFTA . The overall number of cases concluded reached 244. Of them, approximately 42% were decided in favour of
224-598: A global law firm dedicated to the management of international disputes, with offices in London, New-York and Paris. Gaillard became professor of law in 1982, after obtaining the agrégation in private law. Since then, Gaillard has taught at numerous universities: he was a professor of law at the Université Paris XII , he was a visiting professor at Harvard Law School (International Commercial Treaties, Comparative Private International Law) in 1984 and taught in
280-706: A hybrid between the common law and civil law legal systems. For example, the International Bar Association (IBA)'s Rules on the Taking of Evidence in International Commercial Arbitration, revised in 2010, do not adopt common law broad disclosure procedures (discovery) or follow the civil law in eliminating entirely the ability of engaging in some disclosure-related practices. The IBA Rules blend common and civil systems so that parties may narrowly tailor disclosure to
336-727: A large membership although the Hague Convention of 30 June 2005 on Choice of Court Agreements entered into force in 2015 for the European Union and Mexico. Similarly, no equivalent treaty exists so far for the international recognition of settlements achieved in mediation or conciliation :so far, a meeting of the UNCITRAL Working Group II in New York has taken place in February 2015 subsequent to
392-673: A mechanism for resolving state-to-state disputes, leading to the adoption of the Hague Conventions for the Pacific Settlement of International Disputes . The Conventions established the Permanent Court of Arbitration and a rudimentary institutional framework for international arbitration of interstate disputes. In recent years, international arbitration has been used to resolve a number of disputes between states or state-like entities, including Eritrea v. Yemen,
448-607: A more recent development, the Swiss Chambers of Commerce and Industry of Basel, Berne, Geneva, Lausanne, Lugano, Neuchâtel and Zurich have adopted a new set of Swiss Rules of Commercial Mediation that are designed to integrate fully with the Swiss Rules of International Arbitration that were previously adopted by these chambers to harmonize international arbitration and mediation proceedings across Switzerland. The International Arbitration Institute, until recently headed by
504-617: A non-profit association since 1974, together with ASA Below 40, has over 1’200 members, practitioners and academics engaged and/or interested in domestic and international arbitration, from Switzerland and abroad. ASA contributes to the development of arbitration law and practice through regular conferences and workshops, including the Annual Conference; the Arbitration Practice Seminar; ASA Local Group meetings; ASA below 40 events for young practitioners, and
560-580: A number of British Crown Dependencies , Overseas Territories , Overseas departments , Unincorporated Territories and other subsidiary territories of sovereign states. Under American law, the recognition of foreign arbitral awards is governed by chapter 2 of the Federal Arbitration Act , which incorporates the New York Convention. Therefore, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention") preempts state law. In Foster v. Neilson ,
616-695: A series of three arbitrations against the Russian Federation, Wena Hotels against the Arab Republic of Egypt (ICSID Case No. ARB/98/4), The Slovak Republic as Respondent in an ICSID arbitration against Ceskoslovenska Obchodni Banka, A.S. (“CSOB”) (ICSID Case No. ARB/97/4), SGS Société Générale de Surveillance S.A. as Claimant in an ICSID arbitration against the Republic of the Philippines (ICSID Case No. ARB/02/6), SAUR International against
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#1732771889368672-619: Is also available in Arabic, Chinese , Spanish , Hungarian, and Portuguese . He has been referred to as an "intellectuel de droite" with a strong interest in sociology in the Revue du Crieur , a left-wing journal. He acted as a chairman, sole arbitrator or member of the tribunal in numerous international arbitration proceedings (under the rules of the ICSID, ICC, LCIA, AAA, IACAC, etc.) as well as in ad hoc arbitration proceedings (UNCITRAL). He
728-503: Is conceived by international arbitration academics and practitioners to cover all aspects of international arbitration, and the Courses are taught by the most renowned experts in the fields of international commercial arbitration and investment treaty arbitration. In September 2012, Gaillard was appointed professor of law at Sciences Po Law School (SPLS), where he taught International Arbitration and Private International Law. In 2013, he
784-422: Is enforceability: an arbitration award is enforceable in most countries in the world. Other advantages of arbitration include the ability to select a neutral forum to resolve disputes, that arbitration awards are final and not ordinarily subject to appeal, the ability to choose flexible procedures for the arbitration, and confidentiality. Once a dispute between parties is settled, the winning party needs to collect
840-772: The International Chamber of Commerce (ICC) produced the first draft Convention on the Recognition and Enforcement of International Arbitral Awards to the United Nations Economic and Social Council . With slight modifications, the council submitted the convention to the International Conference in the Spring of 1958. The Conference was chaired by Willem Schurmann , the Dutch Permanent Representative to
896-550: The New York Convention , was adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959. The Convention requires courts of contracting states to give effect to private agreements to arbitrate and to recognize and enforce arbitration awards made in other contracting states. Widely considered the foundational instrument for international arbitration , it applies to arbitrations that are not considered as domestic awards in
952-809: The Abyei Arbitration, the OSPAR Arbitration, and the Iron Rhine Arbitration. An illustrative case that highlights the limitations and criticisms of early international arbitration is the Mosul dispute between Turkey and Britain in the 1920s. After the collapse of the Ottoman Empire, the oil-rich Mosul Vilayet became a contentious territory. The dispute was referred to the League of Nations for arbitration. Critics argue that
1008-821: The Agrégation des Facultés de Droit in 1982. He was admitted to the Paris Bar in 1977. His practice focused on international arbitration. He acted as counsel and arbitrator and was regularly ranked as a star performer in both categories. In 1987, he founded the international arbitration practice of Shearman & Sterling . He was the firm’s Global Head of Disputes and Global International Arbitration Practice Group Leader for 33 years. In February 2021, along with Yas Banifatemi, Mohamed Shelbaya, Benjamin Siino, Ximena Herrera-Bernal, Maude Dubois, Coralie Darrigade and Daniel Reich, he launched Gaillard Banifatemi Shelbaya Disputes,
1064-737: The Arbitral Tribunal constituted in accordance with Article 26 of the Energy Charter Treaty (ECT) and the UNCITRAL Arbitration Rules under the auspices of the Permanent Court of Arbitration (PCA) ordered Russia to pay over US$ 50 billion in compensation for the indirect expropriation of OAO Yukos Oil Company (Yukos). The main proceedings he worked on are the representation of the majority shareholders in Yukos Oil Company as Claimants in
1120-656: The Argentine Republic (ICSID Case No. ARB/04/4), SGS Société Générale de Surveillance S.A. as Claimant in an ICSID arbitration in The Hague and Paris against the Islamic Republic of Pakistan (ICSID Case No. ARB/01/13), Plama Consortium Limited as Claimant in an ICSID arbitration in Paris against the Republic of Bulgaria (ICSID Case No. ARB/03/24). Gaillard died from aortic dissection on April 1, 2021 at
1176-763: The British Columbia International Commercial Arbitration Centre (BCICAC, Canada). Specialist ADR bodies also exist, such as the World Intellectual Property Organisation (WIPO), which has an arbitration and mediation center and a panel of international neutrals specialising in intellectual property and technology related disputes. A number of arbitral institutions have adopted the UNCITRAL Rules for use in international cases. See for example, Australia's adoption of
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#17327718893681232-847: The Geneva Master in International Dispute Settlement (MIDS), a program run by the University of Geneva and the Graduate Institute of International and Development Studies . He co-founded and chaired the Arbitration Academy from 2010 to 2013, which was created to address the increasing demand for specialized teaching in international arbitration. The academy provides advanced Summer Courses in Paris to students and young practitioners interested in international arbitration. The curriculum
1288-404: The ICSID case law since 1987 and published in 2004 the first book of commentary of ICSID case law. One of his most well-known works is his seminal treatise on international arbitration, 'Fouchard Gaillard Goldman on International Commercial Arbitration', published in 1999 and frequently referred to by practitioner academics and the national courts worldwide. In 2008, he published the first work on
1344-593: The Model Law and the New York Convention. The Model Law does not replace the Convention; it works with it. An award made in a country which is not a signatory to the Convention cannot take advantage of the Convention to enforce that award in the 169 contracting states unless there is bilateral recognition, whether or not the arbitration was held under the provisions of the UNCITRAL Model Law. In 1953,
1400-565: The New York Convention, at least one court discussed, but ultimately avoided, the issue of whether the treaty is self-executing. The court nonetheless held that the convention was, at the least, an implemented non-self-executing treaty that still had legal force as a treaty (as distinguished from an Act of Congress). Based on that determination, the court held that the Convention preempted state law that sought to void arbitration clauses in international reinsurance treaties. Emmanuel Gaillard Emmanuel Gaillard (1 January 1952 – 1 April 2021)
1456-709: The New York Convention, together with the large number of contracting states, have created an international legal regime that significantly favors the enforcement of international arbitration agreements and awards. It was preceded by the 1927 Convention on the Execution of Foreign Arbitral Awards in Geneva. International arbitration allows the parties to avoid local court procedures. International arbitration has different rules than domestic arbitration, and has its own non-country-specific standards of ethical conduct. The process may be more limited than typical litigation and forms
1512-665: The Supreme Court held "Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any legislative provision." Thus, over a course of 181 years, the United States Supreme Court has repeatedly held that a self-executing treaty is an act of the Legislature (i.e., act of Congress). With specific regard to
1568-701: The Supreme Court of the People’s Republic of China’s International Experts Committee for a period of four years. Regarded as a prestigious appointment in China, the role included “providing advice and suggestions on the formulation of judicial interpretations and judicial policies of the Supreme People’s Court,” and, in so doing, contributing to the development of international arbitration in China. His work experience contributes to elaborate legal theory and research on international arbitration law, especially on
1624-676: The Supreme People's Court upheld the refusal to enforce the arbitration agreement in 17 cases due to a provision in Article V of the convention (China has an automatic appeal system to the highest court, so this includes all such refusals). Under the convention, an arbitration award issued in any other state can generally be freely enforced in any other contracting state, only subject to certain, limited defenses. These defenses are: Additionally, there are three types of reservations that countries may apply: States may make any or all of
1680-451: The UNCITRAL Rules in its 6 July 2010 amendment to the 'International Arbitration Act 1974' (Cth). The most salient feature of the rules of the ICC is its use of the "terms of reference." The "terms of reference" is a summary of the claims and issues in dispute and the particulars of the procedure and is prepared by the tribunal and signed by the parties near the beginning of the proceedings. In
1736-709: The United Nations and Oscar Schachter , a leading figure in international law who later taught at Columbia Law School and the Columbia School of International and Public Affairs, and served as the President of the American Society of International Law. International arbitration is an increasingly popular means of alternative dispute resolution for cross-border commercial transactions. The primary advantage of arbitration over court litigation
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1792-597: The above reservations. Because there are two similar issues conflated under the term "reciprocity", it is important to determine which such reservation (or both) an enforcing state has made. As of January 2023, the convention has 172 state parties, which includes 169 of the 193 United Nations member states plus the Cook Islands , the Holy See , and the State of Palestine . Twenty-four UN member states have not yet adopted
1848-402: The agreement's particular subject matter. David Rivkin, who chaired the committee that drafted the rules, has noted that the wide adoption of these rules in international arbitration has led in practice to an unexpected use by common law practitioners to limit disclosure and by civil law practitioners to expand it. The rules can be further impacted by arbitral rules that may be agreed between
1904-619: The arbitration process was heavily influenced by British interests and did not adhere to principles of impartiality and fairness. The League's decision favored Britain's position, awarding Mosul to the British Mandate of Iraq, despite significant evidence suggesting that the local population, including Kurdish and Arab communities, preferred Turkish sovereignty. This outcome is cited as an example of "interim peace"—a temporary resolution imposed through coercive arbitration—rather than "sustainable peace," which requires just agreements free from
1960-437: The auspices of the United Nations and has been ratified by more than 150 countries, including most major countries involved in significant international trade and economic transactions. The New York Convention requires the states that have ratified it to recognize and enforce international arbitration agreements and foreign arbitral awards issued in other contracting states, subject to certain limited exceptions. These provisions of
2016-400: The award or judgment. If the loser voluntarily pays, no court action is necessary. Otherwise, unless the assets of the losing party are located in the country where the court judgment was rendered, the winning party needs to obtain a court judgment in the jurisdiction where the other party resides or where its assets are located. Unless there is a treaty on recognition of court judgments between
2072-456: The award. Public information on overall and specific arbitration cases is quite limited as there is no need to involve the courts at all unless there is a dispute, and in most cases the loser pays voluntarily. In China, a review of disputed cases in China found that from 2000 to 2011, in 17 cases the Supreme People's Court upheld the refusal to enforce the arbitration agreement due to a provision in Article V; China has an automatic appeal system to
2128-596: The convention. In addition, Taiwan has not been permitted to adopt the convention (but generally enforces foreign arbitration judgments) and a number of British Overseas Territories have not had the Convention extended to them by Order in Council. British Overseas Territories to which the New York Convention has not yet been extended by Order in Council are: Anguilla , Falkland Islands , Turks and Caicos Islands , Montserrat , Saint Helena (including Ascension and Tristan da Cunha). The convention has also been extended to
2184-440: The country where the judgment is rendered and the country where the winning party seeks to collect, the winning party will be unable to use the court judgment to collect. Public information on overall and specific arbitration cases is quite limited as there is no need to involve the courts at all unless there is a dispute, and in most cases the loser pays voluntarily. A review of disputed cases in China found that from 2000 to 2011,
2240-529: The highest court, so this includes all such refusals. A number of essential elements should be included in almost all international arbitration agreements, with model language available. These include the agreement to arbitrate, a definition of the scope of disputes subject to arbitration, the means for selecting the arbitrator(s), a choice of the arbitral seat, and the adoption of institutional or ad hoc arbitration rules. A number of other provisions can also be included in international arbitration clauses, including
2296-404: The language for the conduct of the arbitration, choice of applicable law, arbitrator qualifications, interim relief, costs, and procedural matters. In order to bridge the gap when parties to an international agreement have difficulty in agreeing upon an arbitral institution, some international arbitration specialists recommend using an arbitration clause that authorizes two arbitral institutions in
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2352-513: The late Emmanuel Gaillard , was created in 2001, under the auspices of the Comité français de l’arbitrage (CFA), to promote exchanges and transparency in the international commercial arbitration community. The Association for International Arbitration is a non-profit organisation founded in Paris in 2001 by Johan Billiet which provides information, training and educational activities but does not appoint arbitrators. ASA - Swiss Arbitration Association,
2408-564: The majority shareholders in Yukos Oil Company against the Russian Federation , for compensation up to US$ 50billion, the largest international arbitration ever. An award on jurisdiction was issued on November 30, 2009 in those proceedings, according to which the tribunal accepted that it has jurisdiction to hear the case pursuant to the provisions of the Energy Charter Treaty (ECT). In three awards dated 18 July 2014,
2464-413: The parties undertake to submit to arbitration. Chapter 2 of the Federal Arbitration Act sets forth the statutory basis for an American court to direct that arbitration be held. Under the New York Convention, Article III requires courts in contracting states to recognize international arbitral awards as binding and enforce them. Article V provides for seven reasons that a court can use to refuse to enforce
2520-466: The parties. A presumption of confidentiality—whether implied or explicit—exists between the parties to an international commercial arbitration; however, there may be a disconnect between that presumption and the realities of disclosure and publicity imposed by the courts, arbitrators, and even the parties themselves. Most countries, especially in the developed world, are signatories of the New York Convention. Consequently, judgements can be enforced across
2576-681: The publication of the ASA Bulletin, an arbitration quarterly, and of the ASA Special Series. The International Centre for the Settlement of Investment Disputes (ICSID) is an ad hoc tribunal established pursuant to UNCITRAL Rules to arbitrate International Investment Agreements and provide foreign investors with a means for redress against states for breaches of contract. The ICSID was designed so that it cannot be reviewed by domestic courts which in theory makes it more enforceable. However, state immunity to lawsuits and judgments poses
2632-640: The same city. Those clauses generally empower the party commencing the arbitration to select the arbitral institution. A mnemonic device, "BLINC LLC", reflects some of the most important clauses: broad, law, institutional, number, costs, location, language, and carve-out. Several major international institutions and rule making bodies set out rules and appoint arbitrators. The most significant are: (International Center for Dispute Resolution) (ICDR) (ICSID) (CAM-CCBC) Other Important Institutions for Arbitration in North America are JAMS International,
2688-538: The state and approximately 31% in favour of the investor. Approximately 27% of the cases were settled. Arbitration has been used for centuries, including in antiquity, for the resolution of disputes between states and state-like entities. After a period of relative disuse, Jay's Treaty between the United States and Great Britain revived international arbitration as a means of resolving interstate disputes. The 1899 and 1907 Hague Conferences addressed arbitration as
2744-467: The state where recognition and enforcement is sought. The New York Convention is very successful. Nowadays many countries have adopted arbitration laws based on the UNCITRAL Model Law on International Commercial Arbitration . This works with the New York Convention so that the provisions on making an enforceable award, or asking a court to set it aside or not enforce it, are the same under
2800-479: The subjects related to Investment Law and Arbitration ( ICSID ), Energy Charter Treaty (ECT) and Anti-Suits Injunctions. Many of his books and articles are cited as references on these topics (listed below). He was also a proponent of the existence of an autonomous arbitral legal order, arising out of but distinct from the laws of national states. He is often referred to as a primary author having written in all fields of international arbitration. He has commented on
2856-510: The theory of international arbitration, based on a course he taught in 2007 at The Hague Academy of International Law. The essay, published in French and later in English under the title “Legal Theory of International Arbitration”, was greeted by the international arbitration community as a ground-breaking and landmark work, for both the well-versed and newcomers to international arbitration. It
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#17327718893682912-471: The threat of force. The Mosul arbitration underscores how power dynamics and unequal treaties can undermine the effectiveness of international arbitration, leading to long-term instability and questioning the legitimacy of the arbitration process in such contexts. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards The Convention on the Recognition and Enforcement of Foreign Arbitral Awards , commonly known as
2968-521: The world. The New York Convention, more formally known as the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, provides for court recognition and enforcement of foreign arbitration decisions, allowing arbitration proceedings to piggyback on the authority of domestic jurisdictions across the world. In contrast, there is no equivalent treaty for the international recognition of court decisions with
3024-469: Was a chairman in NAFTA proceedings under UNCITRAL Rules. He also acted as co-arbitrator in other investment treaty arbitrations. Gaillard acted as a counsel in numerous international arbitration proceedings (mainly oil & gas, construction, international investment, environment and mergers & acquisitions matters). In 2005, he drew the attention of the world's legal community when he began representing
3080-735: Was a prominent practicing attorney , a leading authority on international commercial arbitration, and a law professor . He founded the international arbitration practice of the international law firm Shearman & Sterling before launching Gaillard Banifatemi Shelbaya Disputes, a global law firm dedicated to international arbitration, in 2021. He frequently acted as an arbitrator in international commercial or investment disputes. Gaillard studied law at Panthéon-Assas University (D.E.A. in Private Law, 1976; D.E.A. in Criminal Law, 1977) and completed his PhD in law there in 1981. He obtained
3136-663: Was appointed On-site Program Director for New York University School of Law in Paris. Gaillard taught at both Yale and Harvard law schools , and the Graduate Institute of International and Development Studies -based Geneva Center for International Dispute Settlement. In 2014, he was appointed visiting professor at Yale Law School , where he taught international commercial arbitration together with Professor Michael Reisman and Dr. Yas Banifatemi . From 2018 until his death in 2021, he had also been teaching international investment arbitration at Harvard Law School together with Dr. Banifatemi . In 2019, Gaillard had been appointed to
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