International commercial arbitration
International Commercial Arbitration is commonly known as the tribunal that applies choice of law problems in three different levels. The needed time in determining the applicable laws to the arbitration agreement, the procedure to be use in the actual arbitration and the main substance of the dispute that is actually on hand in the arbitration. In determining and applying the applicable laws, having to moderately check on the impact of the required national public policies is also important to be considered in the arbitral process.
In this paper it will focus on analyzing the different possible solutions on the choice of law problems faced in the international commercial arbitration based on these three levels. Based for the old history, arbitration is one of the oldest approaches in human’s search for justice. And for some it was even established even before law started to grade mankind. Arbitration has been the main established principle of law that helps people in the early days in sorting out differences and eventually resolving conflicts.
This has become up to now the main standard that is being followed in our current legal system. But, there are also some cases that finding justice and truth may not easily achieved, there are legal processes and impediments that continuously make it difficult for an ordinary human to appreciate, but still it is being applied. They said that in order to appreciate and be prepared for whatever verdict that the arbitration process may end, it is better to study the case carefully and from there the right and expected results may be achieved.
It is also important that for this paper it should carefully provide the international arbitration theories and characteristics in order for the reader to have a good feel on how it is, before going directly on how it being applied. This importance of handling it from the theoretical side first is that it could help readers understand the basic concepts and theories and later be able to appreciate the actual practice how international commercial arbitration is being done. Let us start first with knowing the basic and standard characteristics of international commercial arbitration.
But, what does arbitration technically means in law? Arbitration is a known legal device where the settlement of a question, which is of interest among two or more person, is entrusted to one or more person or known as the arbitrator who derived their rights or powers from the previously settled agreement and not coming from the authority of the state. In other simpler definition, arbitration is also considered as a known legal mechanism in settling disputes between parties.
Disputes that may come either from personal agreement by parties where the other or both fails to arranged in private ways. Arbitration may sometimes interchangeably used as litigation since both have the same objective and that is settling disputes. Arbitration may also be legal actions conducted in the judicial system of man where both parties are expected to attend and provide statement in front of the legal panel in order to prove their own respective statements. One of the most common considerations of arbitration is its consensual nature.
This means that the power of jurisdiction is applied, in this way the jury will be the main group who may decide on the faith of the arbitration process. The faith will be based by the jury on the statements and evidence presented over the court. The judge and legal councils are those technical professionals who will preside and make statements worthy in front of the jurors. The importance of providing genuine and believable statement with the presence of evidence and the right and proper way of inclusion legal policies and guidelines will also be factors that may give advantage to parties who effectively apply it.
The job of the consensus or jury is not that easy, because there should be a majority decision come verdict time that will be decided. This will come out to be the verdict of the arbitration or legal process. The review of evidence and statement are carefully re-visited in order to achieve a fair and justly result of the process. Arbitrator, as an important part of the process is also being appointed by the parties. They may decide who they will appoint in dealing with the issues that is taken place.
Arbitrator will also stand as the main person that will help parties in providing their own truth which will help them convinced the jury. In order for this process to effectively perform the parties will also select their choice of arbitration institution that will handle the case on hand. The parties may also appoint a number of arbitrators as for their choice and wish. This is depending on the strategy or what they feel necessary in order for them to have a better team in presenting their point or statement during the arbitration process. (Chukwumerije, Okezie, 1994).
The existence of International Commercial Arbitration was also the emergence of providing priority in attesting genuine form of business in the International Trade. In other words, it has been the International Trade and Business where International Commercial Arbitration exists. With the different and conflicting laws implemented in the different countries in the world, it serves as the main law that governs as to how international business must comply. Specifically focusing on trade, exports and monetary policies are just some of the main factors of concerns of International Commercial arbitration.
It was also been selected as the main confidential as well as the main contributor in improving the global business process which were also very important in the global business. This does not only provide business that right and clear guidelines in performing business but also helps in streamlining the process to be conducted by the companies in the global perspective. In order not to encounter these arbitration processes or be involved in the non-compliance to international business, there are known a treaty that needs to be followed.
The following are just some of the many known International treaties and conventions: (1) United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) 330 U. N. T. S. 3, 21 U. S. T. 2517, TIAS 6997 (June 10, 1958) See UNCITRAL – Status of Conventions and Model Laws for a list of signatories; (2) Claims Settlement Declaration (Iran-United States Claims Tribunal) Established the Iran-United States Claims Tribunal. Also known as part of the Algiers Declaration.
75 AJIL 422, 20 ILM 230 (1981); (3) General Declaration (Iran-United States Claims Tribunal)General Declaration records the central commitments to resolve the crisis in relations between the Islamic Republic of Iran and the United States of America. (January 19, 1981) Also known as part of the Algiers Declaration. 75 AJIL 418, 20 ILM 224 (1981); (4) Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (Washington Convention) 575 U. N. T. S. 159, 17 U. S. T. 1270, TIAS 6090 (March 18, 1965).
Established the International Centre for the Settlement of Investment Disputes (ICSID); (5) Convention Establishing the Multilateral Investment Guarantee Agency 24 ILM 1605, October 11, 1985; (6) Inter American Convention on International Commercial Arbitration (Panama Convention) Organization of American States, Treaty Series, no. 42. Adopted January 30, 1975, entered into force June 16, 1976; (7) Inter American Convention of Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Montevideo Convention) Organization of American States, Treaty Series, no. 51.
Adopted August 5, 1979, entered into force June 14, 1980; (8) Arab Convention on Commercial Arbitration Signed April 14, 1987. Entered into force June 25, 1992. Deposited with the Secretary General of the League of Arab States; (9) Convention for the Pacific Settlement of International Disputes Adopted July 29, 1899. Replaced by convention of Oct. 18, 1907 as between contracting parties to the later convention; (10) Convention for the Pacific Settlement of International Disputes Adopted October 18, 1907; (11) European Convention on International Commercial Arbitration
484 U. N. T. S. 364 (April 21, 1961); (12) Agreement relating to application of the European Convention on International Commercial Arbitration 523 U. N. T. S. 93, CETS No. 042 (Dec. 17, 1962); (13) European Convention Providing a Uniform Law on Arbitration CETS No. 056, opened to signature January 1, 1966; has not entered into force; (14) Convention on the Execution of Foreign Arbitral Awards 92 LNTS 301. Signed September 26, 1927. Entered into force July 25, 1929; (15) Geneva Protocol on Arbitration Clauses 27 LNTS 157. Signed September 24, 1923.
Entered into force July 28, 1924; (16) Organisation pours l’Harmonisation du Droit des Affaires en Afrique (OHADA) Treaty on the Harmonization of Business Law in Africa. Title IV concerns arbitration. Provided by Juris International; (17) Convention on the Settlement by Arbitration of Civil Law Disputes Resulting from Relations of Economic and Scientific Technical Cooperation (Moscow Convention) Signed May 26, 1972; (18) United Nations Convention on Contracts for the International Sale of Goods (CISG); (19) Signed in Vienna in 1980.
The CISG established a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, including remedies for breach of contract. 1489 UNTS 3, concluded April 10, 1980 and entered into force on January 1, 1988; and (20) World Trade Organization (WTO)The General Agreement on Tariffs and Trade (GATT) came into being in 1948 as a multilateral instrument to promote trade. In 1993, the Uruguay Round of GATT established the World Trade Organization as an international organization.
The WTO deals with the rules of trade between nations and supports the multilateral trading system through the WTO agreements. (International and Regional Treaties and Conventions, n. d. ). These International treaties and conventions are just some of the common causes of arbitration cases. This die to some parties not complying with these treaties stated above. Arbitration is usually conducted in a common country, like Switzerland which is the most common country that handles conflicts in the world.