International commercial arbitration Guide

What is international commercial arbitration?

“International commercial arbitration is an alternative method for resolving disputes between parties arising out from commercial transactions that go beyond national boarders, which allows parties to avoid litigation in national courts.

The main goal of commercial arbitration is to simplify the resolution of commercial disputes and move them beyond the frames of national jurisdictions.”

The most popular international commercial arbitration courts:

  • International Chamber of Commerce (ICC): International Court of Arbitration
  • International Institute for Conflict Prevention and Resolution (CPR)
  • JAMS International
  • London Court of International Arbitration
  • GAFTA arbitration
  • FOSFA arbitration
  • United Nations Commission on International Trade Law (UNCITRAL)
  • World Intellectual Property Organization (WIPO) Arbitration and Mediation Center
  • American Arbitration Association (AAA)
  • The European Court of Arbitration
  • International Center for Settlement of Investment Disputes
  • Hong Kong International Arbitration Center
  • The Abu Dhabi Commercial Conciliation and Arbitration Center (ADCCAC)

Jurisdiction of commercial arbitration over the dispute

The dispute shall be resolved in an international arbitration court in the event if the parties have agreed on this in an appropriate arbitration agreement. There are a few ways how to fix this agreement. It can be an appropriate arbitration clause containing in the main contract or it can be separate agreement as well.

We recommend using model arbitration agreements (clauses) that you can find on the website of the relevant arbitration organization.

Using standard arbitration clauses will avoid risks, such as allegations of the opposing party that the arbitration agreement is not valid. For example, if there is no clear statement on the name of an arbitration court.  

The jurisdiction of the international commercial arbitration over the case is determined in accordance with the arbitration clause. It also defines which rules shall be applied while international dispute resolution process. Usually, each International arbitration court, has several arbitration rules to resolve various types of disputes.    

International commercial arbitration rules

Arbitration rules can be found on websites of the relevant arbitration organization. They are much smaller in volume and easier compared to civil procedure codes. They also contain a much smaller amount of legal proceedings.

Usually, the commercial arbitration hearing is carried out remotely, through the exchange of procedural documents and evidences.

It is generally accepted that the language of the arbitration is English. However, the party can agree to choose another language. Review the arbitration rules to get information regarding the language of the arbitration.

Now let’s take a look at the stages of the process in commercial arbitration. In general, each arbitration has similar stages. As there is a lot of arbitration organizations, we will not be able to cover all specific issues in each of arbitration rules. Therefore, we will focus on basic points to show how it works, for convenience of readers.

Stages of the process in international commercial arbitration:

Sending a notice to the opposing party. The arbitration process begins with the notice that should be sent to opposing party. The notice should contain the statement that the party intend to move the case to arbitration and the grounds of this. The notice can also contain information on proposed arbitrator/arbitrators.

The Appointments of Arbitrators. Further, the parties shall appoint arbitrators in accordance with arbitration clause and arbitration rules. If the case must be resolved by three arbitrators, each party shall appoint one arbitrator, and the third arbitrator is appointed by the arbitration court.

Filing an arbitration submission. This document shall contain the factual background of the matter, the calculation of the amount of the claim, legal position and the requested award. The submission shall contain enclosed evidences that support the claimant’s allegations.

Filing fees. Generally, the filing fee should be paid at the time of filing the claim submission. The amount of the filing fee directly depends on the number of arbitrators.

Answer by the defendant. The defendant has the right to file a written response to the arbitration submission within a certain period. This document contains objections to the claimant’s statements. The defendant can enclose evidences that support the answer. The defendant can also allege before the panel that the arbitration court has no jurisdiction over the claim, arguing for example, that the arbitration clause is not valid.

General, the claimant and defendant can amend the pleading or to file additional statements. The number of such additional submissions is limited by the rules.

Reviewing documents by the tribunal. Filed documents will be reviewed by the panel. If it is necessary, the court can request additional information/documents from the parties.

Award of arbitration. As a result of the dispute resolution process in arbitration the court issues the arbitration award, which can be appealed by each party.

Enforcement and recognition of an arbitration award of international commercial arbitration

We will consider this question in more details in our next articles. Now let’s formulate the basic points.

The legal basis for the recognition and enforcement of an award is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the New York Convention).

Up to date, 159 states are parties of this convention, including Ukraine. This convention covers a wide range of issues related to the recognition of international arbitration awards, such as:

  • Defines the term of an arbitration agreement and its form;
  • Contains the obligation of national courts, transferring the parties to the arbitration, in the case of receiving a lawsuit based on questions which should be resolved in the arbitration, upon party’s request, except of curtain exceptions.
  • Contains countries’ obligation to recognize and enforce arbitration awards.
  • Contains mandatory requirements for the recognition and enforcement of arbitration awards
  • Contains a list of reasons when the party may be denied in recognition of the award, etc.

Important points

As we see, the receipt of an arbitration award does not end the process. There is a stage of recognition and enforcement of the award.

We recommend you carefully review the prospects for the enforcement of the decision, by collecting necessary information on the defendant, including information on its assets.

After all, it is necessary to recognize and enforce a decision in the state where the defendant’s property is located to receive the satisfaction of the award. This information can be obtained from the relevant registers.

Also check out the status of the debtor’s company. After losing the case in arbitration, the owners of the company can simply liquidate it. In this case, the subsequent process of recognition and enforcement is not reasonable. In such a situation, it is necessary to change the strategy of working with debt.

It should be taken into account, that the process of recognition and enforcement of the award is sometimes much more complicated than obtaining the award itself.

If you intend to recognize and enforce the award in the United States, you should know that the award shall be recognized/enforced in each state where you intend to collect the debt.

Conclusion

Before signing a contract, read the arbitration clause. If the contract contains an arbitration clause, you will not be able to handle the dispute in court. Check out whether the arbitration clause is formulated correctly, which arbitration is chosen, and which arbitration rules is applicable for the matter.

Think carefully whether you should move the case to arbitration. As you already know, to obtain an arbitration award is quite expensive. You will bear the following costs: filing fees, arbitration attorney fees, filing and attorney fees for the recognition and enforcing the award, other expenses.

Therefore, we recommend conducting a detailed investigation on the defendant, to get information on its assets, location of these assets, current status of the company, so on. You should understand whether you will be able to achieve the ultimate goal – the return of debt.

If the amount of debt is small and the chances to collect the debt are low, think about other options to recovery the debt.

At first glance, everything is simple, but it is kind of hard to handle the case without an arbitration attorney’s help. As you can see, the arbitration dispute process is quite simple, much simpler than in a government court. But the challenge is that the parties are not aware on the foreign law that applies to the matter.

If, for example, the case is considered under English law, and the parties are residents of Ukraine or another country, then you will agree that it will be difficult for them to use English case law to prove their claims.

In addition, the process is conducted in English. To write a high-quality procedural document, understandable to the arbitrators, parties for whom English is a non-native language, it will be an unrealistic task. Hire an arbitration lawyer who well versed in international arbitration.

Parties’ representatives are not required to be admitted to practice in arbitration courts. There are no requirements for representatives to have a license or other permits to represent parties in arbitration. You can be represented in an international commercial arbitration court by any lawyer (who understands this area of law).

The arbitration process takes place remotely. In most cases, arbitration cases are heard remotely. Therefore, you will not be required to visit the court to participate in the case. Your task is to file required documents in timely manner. In some cases, when oral hearings are required, the hearing can also be conducted remotely by using video conferencing or other types of communication (of course, if the rules allow such things).

Find out about the Abu Dhabi Commercial Conciliation and Arbitration Center in our article. 

 

 

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