Due Process in International Commercial Arbitration

Hardcover | April 28, 2010

byMatti S. Kurkela, Santtu Turunen

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This is the first publication to identify a universal procedural code for international commercial arbitration. This informative and well-argued discussion of a uniform code for due process is a useful aid for both practitioners and scholars. More than just a useful desk reference, thispublication uncovers a unifying arbitration principle in light of the diversity of national traditions. The author Matti S. Kurkela demonstrates how this unifying principle might establish a new standard procedure in arbitration law. Guiding the reader through a step-by-step analysis of due process in international commercial arbitration, the book is comprehensive without being esoteric. Due Process in International Commercial Arbitration, Second Edition thus helps both practitioners new to arbitration procedure and experiencedattorneys looking for a cutting-edge discussion of due process issues. It can be used as a handbook for lawyers engaged in arbitral disputes. To provide the necessary guidance for lawyers in need of quick, reliable information, author Matti Kurkela and Santtu Turunen update readers on the numerouschanges made to arbitration law since the book's 2005 edition. Even more helpfully, Kurkela and Turunen have added two new chapters to show lawyers what to expect in the midst of an arbitration proceeding: a chapter on procedural rules from the New York Convention and a chapter on jurisdictionarising from sources outside the arbitration agreement. As corporations engage in more globalized commerce, and as arbitrators resolve more international legal disputes, this resource provides both the broad background and the quick reference information necessary to understand the complexities ofarbitration procedure. A thorough Table of Contents, Index, and Appendix of primary documents facilitate practitioners' research in this vital book. This new edition's balance of comprehensiveness and concision make it a one-stop resource for arbitration attorneys around the world.

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This is the first publication to identify a universal procedural code for international commercial arbitration. This informative and well-argued discussion of a uniform code for due process is a useful aid for both practitioners and scholars. More than just a useful desk reference, thispublication uncovers a unifying arbitration prin...

Matti S. Kurkela is a docent at the University of Helsinki School of Law, where he teaches International Trade Law and Private International Law. He is also a Senior Partner at Hannes Snellman (Helsinki), where his practice includes financial and contract law as well as mergers and acquisitions. Kurkela is a Foreign Associate for Ch...

other books by Matti S. Kurkela

Format:HardcoverDimensions:488 pages, 10 × 7 × 0.98 inPublished:April 28, 2010Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195377133

ISBN - 13:9780195377132

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Table of Contents

Abbreviations1. Due Process and Arbitration1.1. The Origin of Due Process Requirements in Arbitration1.2. How Should the Due Process Requirements in Arbitration Be Defined?1.3. The Floating Nature of the Law of Due Process - Analogy with Lex Mercatoria1.4. The Method of Defining Due Process and Lex Proceduralia in Arbitration1.5. Due Process as a Principle of Law2. The New York Convention as a Starting Point2.1. Introduction2.2. Public Policy ("Ordre Public") as a Ground to Refuse the Recognition and Enforcement2.2.1. A Vague Category2.2.2. Procedural Aspects: Just a Right, Not a Duty; Actions Ex Officio and Sua Sponte2.2.3. What Constitutes Public Policy?2.2.4. ILA on Fundamental Principles2.2.5. ILA on Public Policy Rules2.3. Arbitrability of the Subject Matter2.4. Arbitration Agreement ("Mandate in Concreto") and the Convention2.4.1. Agreement as the Basis of the Procedure2.4.2. Breach of the Procedural Agreement as a Ground to Refuse the Recognition and Enforcement2.4.3. Ultra Petita - Matters Beyond the Scope2.4.4. Waiver Doctrine and the Breach of the Procedural Agreement2.5. Incapacity and Invalidity2.5.1. Incapacity of the Party And Invalidity of the Agreement2.5.2. Incapacity of a Person2.5.3. Invalidity of the Arbitration Agreement2.6. Ability to Present One's Case2.6.1. Ability to Present One's Case as a Fundamental General Requirement2.6.2. Ability to Present One's Case According to the Agreement and of the Law of the Seat2.7. Award has to be Final ("Condition Subsequent")2.8. Conclusions on the Analysis of Article V of the Convention3. Arbitration Agreement as Basis of Jurisdiction3.1. Agreement on Basis of Jurisdiction - Mandate in Concreto Based on Mandate in Abstracto3.2. Existence of an Arbitration Agreement3.2.1. The Written Form3.2.2. Competence Competence3.2.3. The Validity of the Agreement3.3. On Interpretation of the Arbitration Agreement3.3.1. Methods of Interpretation3.3.2. Assignment and Transfer3.3.3. Time Limit for the Award3.3.4. Time Limit in the Arbitration Clause as a Statute of Limitation3.3.5. Guarantor's or Indemnitor's Right to Invoke an Arbitration Agreement3.4. The Unconscionability or Unreasonability3.5. The Enforceability of an Arbitration Agreement and Due Process3.5.1. Agreement Defining Due Process?3.5.2. Good Faith of the Parties3.5.3. Possible Action in Case of Disloyalty3.5.4. Non-Respect of the Agreement by the Arbitral Tribunal as Violation of Due Process3.5.5. Manifest Disregard of Agreement and Substantive Law as Violation of Due Process3.5.6. Disregard of Facts as Violation of Due Process3.5.7. "Carte Blanche" Prayer for Relief and Due Process3.6. Arbitration Agreement and Due Process - Summary4. Other Aspects of Jurisdiction than the Agreement4.1. Due Process and the Jurisdiction - Problems Related to Other Aspects than the Agreement4.2. Parties to the Proceedings4.3. Arbitrability4.4. Res Judicata4.4.1. Defining Res Judicata4.4.2. "Effects" of Enforcement Dimensions4.5. Lis Pendens4.5.1. Lis Pendens Doctrine in Arbitration4.5.2. When Are the Proceedings Parallel? Test of Identity or Similarity and the Enforcement Effects Test4.5.3. The Effect of Parallel Proceedings4.6. Forum Non Conveniens4.6.1. Doctrine of Forum Non Conveniens4.6.2. Special Considerations in Arbitration4.7. Conditions Imposed by the Applicable Rules4.7.1. Security for Fees and Costs of the Arbitral Tribunal and Institution4.7.2. Security for Attorneys' Fees and Legal Costs of the Parties4.7.3. Security for Loss or Damage4.7.4. Security for the Claims or for the Enforcement of the Award4.8. Conditions Imposed by the Panel within its Autonomy4.9. Conditions Imposed by the Agreement of the Parties: Duty to Mediate or Negotiate4.10. Summary5. The Panel and Due Process5.1. Arbitration Panel in Dispute Resolution Context5.2. The Composition of the Panel5.3. Challenge of Arbitrators5.4. Impartiality and Independence5.4.1. The Requirement of Impartial and Independent Arbitrators5.4.2. The Meaning of Independency and Impartiality in Arbitration5.4.3. Same, Same but Different? The Standard of Impartiality in Arbitration5.4.4. What Constitutes Bias?5.4.5. Duty to Disclose5.4.6. IBA Guidelines - Green, Orange, Red and Non-Waivable Red Lists5.4.7. Requirement of Impartial Conduct5.5. Waiver5.6. Communication with the Parties5.7. Secretary and His Role5.8. Fees and Costs5.9. Liability5.10. Confidentiality5.11. Summary6. Facts and Evidence Related Due Process6.1. The Structure of a Legal Decision: Facts and Due Process6.2. Facts in Legal Decision: Relevance, Sufficiency and Truth6.3. On Burden of Proof6.4. Role of Arbitral Panel in Establishing the Facts6.4.1. Conflicts of Traditions and Culture6.4.2. Guidance by Consultations6.4.3. Direct Intervention by the Panel6.5. Enforcement of Evidentiary Measures6.5.1. "Tool-box" of Measures for Bringing Evidence into Proceedings6.5.2. "Internal" Orders6.5.3. "External" Orders6.5.4. Fact-Finding by the Arbitrators6.5.5. Organizing the Evidentiary Hearings6.5.6. "Entire Agreement Clauses" and Other Agreements on Admissibility of Evidence6.6. Questions and Answers6.7. Discovery6.8. Witnesses6.8.1. Prior to Hearings6.8.2. Language6.8.3. "Nothing But the Truth"6.8.4. Hostility, Evasiveness or Psychological or Emotional Ties6.8.5. Questioning6.8.6. Cross-Examination and Special Arrangements6.8.7. Timing6.8.8. Compensation for Witnesses6.9. Experts6.10. Other Evidence6.11. Summary7. The Role of the Panel in the Proceedings7.1. Managing the Proceedings7.2. The Role of the Panel in Establishing the Facts7.3. Jura Novit Arbiter and the " Burden of Education"7.4. Administration of Remedies and Consultations7.5. Summary8. Fair Arbitration - Opportunity to Present One's Case8.1. Fair Arbitration8.2. Equality of Arms and Reasonable Opportunity to Present One's Case8.3. Right to a Counsel of One's Choice8.4. Conflict between Timeliness and Opportunity to Present One's Case8.5. Award8.6. Summary9. Due Process, Lex Proceduralia, Fair Arbitration - Procedural Foundation of Arbitration9.1. The Three Facets: Due Process, Fair Arbitration and Lex Proceduralia9.2. How to Formulate Due Process Argumentation9.3. Fairness or Finality? Conflicts of Principles and Goals9.4. Access to Arbitration and Fair HearingList of ReferencesAppendicesIndex