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International Commercial Arbitration

International Commercial Arbitration

Introduction

Introduction

International commercial arbitration is a method of dispute resolution in which the parties grant a neutral third party the power to decide a commercial dispute by means of a final and binding award. Disputes in international commercial arbitration usually arise from commercial contracts between private parties. However, from the UNCITRAL Model Law on International Commercial Arbitration, Art. 1, fn2, “[t]he term ‘commercial’ should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not.” It goes on to list as examples of commercial relationships “any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency…investment; financing....” and other examples. As to the international part of international commercial arbitration, the UNCITRAL Model Law at Art. 1 (3) states “[a]n arbitration is international if: (a) the parties to an arbitration have, at the time of the conclusion of that agreement, their places of business in different States; or (b) one of the following places is situated outside the State in which the parties have their places of business: (i) the place of arbitration if determined in, or pursuant to, the arbitration agreement; (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or (c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.”

Arbitration can be classified as either institutional or ad hoc. The terms of the contract dictate the type of arbitration. The dispute resolution clause in the contract specifies the forum, procedural rules, and governing law. It can either specify an arbitral institution to administer the dispute, or as an ad hoc arbitration, it can include its own rules for arbitration, including forum, the arbitrators, the procedure, and other administrative rules.

Law applied in commercial arbitration can include international treaties, national laws, and procedural rules of the relevant arbitral body. Arbitral awards from other disputes are considered persuasive authority but are not binding. The arbitrator may also consider scholarly works and other secondary sources.

This guide includes secondary sources on international commercial arbitration, sources for finding arbitral bodies and procedural rules, sources for national law, and sources available at Emory for finding arbitral awards. The guide includes resources on arbitration of disputes under the CISG Convention – the 1980 Convention on Contracts for the International Sale of Goods (1489 U.N.T.S. 3).

This guide also includes sources on investor-state arbitration. Investor-state arbitration is provided for in many free trade agreements and bilateral investment treaties, allowing a firm from one country that has invested in another to bring action against a unit of the host government if it has acted in a way that reduces the value of the firm’s investment, with the dispute settled through an arbitration panel rather than by a court. Investment arbitration is usually arranged through ICSID, the International Center for Settlement of Investment Disputes. ICSID was established by the Convention for the Settlement of Investment Disputes between States and the Nationals of Other States, 575 U.N.T.S. 159 (1965). The purpose of ICSID is “to provide facilities for consiliation and arbitration of investment disputes between Contracting States and Nationals of other Contracting States.” (Art. 1(2)).

Guide Authorship and Currency

Originally published  November 17, 2023 by Amy Flick.

Last updated November 17, 2023 by Amy Flick. 

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