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International arbitration-Part 03(Final)

  8/13/2013

Drafting International Arbitration Clauses


Most arbitral institutions have promulgated model clauses for parties to use to authorize the institution to oversee the arbitration. A number of specialized publications regarding the drafting of international arbitration clauses are available.[15]

A number of essential elements should be included in almost all international arbitration agreements. These include the agreement to arbitrate, a definition of the scope of disputes subject to arbitration, means for selecting the arbitrator(s), a choice of the arbitral seat and the adoption of institutional or ad hoc arbitration rules.[16] A number of other provisions can also be included in international arbitration clauses, including the language for the conduct of the arbitration, choice of applicable law, arbitrator qualifications, interim relief, costs, procedural matters and the like.

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 the same city. Those clauses generally empower the party commencing the arbitration to select the arbitral institution.[17]

Writing in the Business Law Today of the American Bar Association, Eric Sherby (Israel) suggested a mnemonic device – “BLINC LLC” – designed to enable the draftsman to remember a checklist for quickly drafting an international arbitration clause: Broad, Law, Institutional, Number, Costs, Location Language, and Carve-out.[18]


International Arbitration Institute (IAI)


The International Arbitration Institute, headed by 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 (AIA)


The Association for International Arbitration is a non-profit organization, founded in Paris in 2001 by Johan Billiet. The Association for International Arbitration has an increasing number of members among arbitrators and mediators of international backgrounds.

The Association was established with the aim of facilitating arbitration, mediation and general forms of dispute resolution internationally. Today, the AIA has developed into an organization dealing in the private international law field to meet the needs of the fast-growing evolution of dispute resolution within the international community. AIA provides information, training and educational activities to expand the promotion of arbitration and ADR globally by means of securing partnerships with various organizations and parties to get involved in the life of the association. The association constantly works to develop partnerships in the international realm and to provide the international community of arbitrators and ADR professionals with continuous exposure to the latest international developments, activities and opportunities in the field. AIA continually encourages the participation and contribution of its members in the pursuit of the association’s goals.


Atlanta International Arbitration Society (ATLas)[19]


Atlanta, as host to the third-largest concentration of Fortune 500 company headquarters in the United States, the economic capital of the Southeast, and sited in one of the most arbitration-friendly states in the nation, has become a center for international arbitration. Georgia took an early lead in enacting an international arbitration-friendly state statute in 1988, becoming one of the first jurisdictions to adopt substantial portions of the 1985 UNCITRAL Model Law on International Commercial Arbitration. O.C.G.A. § 9-9-30 et seq. The Atlanta International Arbitration Society (ATLas; www.arbitrateatlanta.org), composed of scholars, judges, lawyers, business leaders, arbitrators, and other professionals who specialize in international law and arbitration, is an organization that focuses on educating, counseling, and guiding the international legal community about arbitrations in Atlanta.


International Investment Arbitration


The last few decades have seen the promulgation of numerous Bilateral Investment Treaties (BITs), as well as Multilateral Investment Treaties, which are designed to encourage investment in signatory countries by offering protections to investors from other signatory states. One of the significant features of some BITs is that they provide investors with the ability to resolve disputes with the host states before the International Centre for the Settlement of Investment Disputes (ICSID).


Interstate Arbitration


Arbitration has been used for centuries, including in Antiquity, for the resolution of disputes between states and state-like entities.[20] After a period of relative disuse, Jay's Treaty between the United States and Great Britain revived international arbitration as a means of resolving inter-state disputes. The 1899 and 1907 Hague Conferences addressed arbitration as 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 inter-state disputes.[21] In recent years, international arbitration has been used to resolve a number of disputes between states or state-like entities, including Eritrea v. Yemen,[22] the Abyei Arbitration,[23] the OSPAR Arbitration,[24] and the Iron Rhine Arbitration.[25]




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