International arbitration is well recognised as a reliable way for commercial parties to enforce their contractually agreed allocation of risk and reward consistently, confidentially and across borders.
CANDEY’s accomplished arbitration experts regularly obtain great results for clients in arbitrations They boast broad and deep experience of arbitration in all its forms, fluency with all major and numerous lesser-known institutional rules, and familiarity with different arbitral seats, applicable laws, arbitrators and funding arrangements.
Several of our practitioners decide disputes as arbitrators and publish regularly. Most have extensive sectoral expertise and/or geographic focus.
What is Arbitration?
Arbitration is a process parties use to resolve disputes without going to court, which is binding upon them. They appoint an arbitral tribunal, usually pursuant to their arbitration agreement, which analyses evidence and arguments similar to a judge. Parties are usually legally represented throughout.
The New York Convention, an international treaty with over 165 signatories, underpins international arbitration in two main ways. First, the Convention ensures that national courts respect the parties’ arbitration agreement as opposed to forcing litigation. Second, it obliges national courts to enforce awards from other signatory countries with minimal if any interference, and/or to use national laws to support such enforcement against recalcitrant award debtors.
International arbitration can be institutional or ad hoc. Institutional arbitration offers greater certainty to parties. Institutions provide model arbitration agreements to minimise issues surrounding the validity of the arbitration agreement and the jurisdiction of the arbitrators. They publish procedural rules the parties can incorporate by reference into their arbitration agreements, which include modern best practice (on technical points such as third party joinder or summary dismissal). Many oversee arbitrator appointments and grant powers to arbitrators that further reduce the need for – and possibility of – any court involvement. In contrast, ad hoc arbitration maximises party autonomy and flexibility. By reference to national arbitration laws, the parties will administer the arbitration themselves, including tribunal appointment and procedural aspects. CANDEY’s arbitration team is familiar with inter alia the ICC, LCIA, SIAC, HKIAC, SCC, ICSID, UNCITRAL, CIArb, RSC, RSPP, ISTAC and CAM-CCBC rules, and experienced in ad hoc arbitration.
All international arbitrations have a seat (sometimes called a place) of arbitration. This is the legal jurisdiction in which the tribunal will render its award and whose courts are competent to rule on any challenges to set aside the award. The law of seat will govern arbitration procedure completely (in ad hoc arbitration) or residually by filling any procedural gaps left by applicable institutional rules. The courts of the seat will support the arbitration through interim relief, if necessary. Some seats have mandatory rules from which the parties cannot derogate and which can sometimes affect the dynamics of arbitrations in unexpected ways, particularly because the law of the seat may be different from the law governing the underlying contract.
CANDEY’s arbitration team is accustomed to navigating the challenges of different applicable laws successfully.
The boundaries between arbitration and the courts of the seat are delineated mostly by two key concepts – the doctrine of separability and kompetenz-kompetenz – that are invariably included in institutional rules and/or national laws:
• The doctrine of separability stipulates that arbitration agreements exist independently of underlying contracts. Consequently, even if an underlying contract is void, its arbitration agreement survives intact and only fails if separately proven void. This ensures parties cannot defeat arbitration agreements in court by attacking the underlying contract.
• Kompetenz-kompetenz ensures tribunals can decide their own jurisdiction and the validity of the arbitration agreement without court interference until awards are rendered, after which courts can re-examine jurisdiction in set-aside and/or enforcement proceedings. This prevents parties defeating the arbitration agreement by attacking it in court before or during the arbitration.
Benefits of Arbitration
Arbitration is known to be quicker than litigation in most jurisdictions. It is also confidential. The parties can appoint a tribunal that has relevant sectoral and/or geographic knowledge, as opposed to ‘rolling the dice’ on a national court judge who may or may not have any relevant experience. As that tribunal’s authority derives from the parties’ autonomy, the arbitration process can be much more flexible than litigation: for instance, the parties could agree to limit or expand certain of the tribunal’s powers regarding document production or evidence. Given that you have to pay the hourly rate of 3 Tribunal Judges (known as “members”), it can be more expensive.
Consequently, arbitration offers greater commercial certainty in the international context. For example, two parties in different jurisdictions are collaborating on a joint venture in a third jurisdiction. Neither wants the other to have ‘home advantage’ in any litigation that may ensue, and neither trusts the courts of the third jurisdiction. International arbitration offers these parties the greater certainty and peace of mind they need to proceed with their JV. Should something go wrong, they know they can appoint their own reputable tribunal with relevant sectoral expertise to decide disputes in confidence and flexibly in their chosen seat while the JV continues to operate.
The main benefit of international arbitration is the ease of award enforceability. So well-known is this ease that most award debtors pay fully and timeously. Nevertheless, should award debtors feel cheated by elements of an award decision, they may wish to challenge that award and/or resist enforcement. On the other hand, perhaps award debtors simply do not wish to pay for their own reasons, so award creditors are forced to enforce.
CANDEY has represented clients in many post-award situations: obtaining justice for wronged losers, obtaining payment for winners through forced sales of assets where necessary, and more besides. Our deep understanding of the English Arbitration Act, the New York Convention and the UNCITRAL Model Law, coupled with our practical experience co-counselling in multiple jurisdictions, means we are well-placed to achieve our clients’ post-award objectives.
Brexit does not affect the dynamics of the New York Convention. The Brussels Regulation, which is the key EU instrument regulating jurisdiction and enforcement, is irrelevant to upholding arbitration agreements and enforcing arbitral awards.
CANDEY’s international arbitration lawyers have represented parties in some of the most high-profile treaty-based disputes in recent years, arising from business conducted across the globe, including Europe, Africa, Asia, the Middle East, and the Caribbean.
Our team has extensive experience of matters involving the enforcement of arbitral awards in different jurisdictions, and related post-award court applications. Notable examples of our most recent work in this area includes:
• Reliance Industries & BG Exploration v. The Union of India – acting for the Government of India in successfully resisting eight challenges to a US$3 billion UNCITRAL award in the oil and gas sector.
• Union of India v. Reliance Industries & BG Exploration – acting for the Government of India in making five challenges (and resisting a further three challenges) to an UNCITRAL award determined after remission.
• Successfully resisting enforcement of a $1.1 billion ICC arbitration award in the BVI, involving several contested interim applications at first instance, as well as appeals to the Eastern Caribbean Court of Appeal and the Privy Council.
• Successfully resisting enforcement of a c.$900 million ICSID award in the English High Court, with English enforcement proceedings running concurrently alongside ICSID annulment, ICSID revision and enforcement in other national jurisdictions
© CANDEY Limited, London & CANDEY LLC, New York